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Dueling student pep rallies set the stage for last night's public hearing on the Noble charter network's proposal to open a school in Brighton Park. Hundreds of students, parents and activists turned out in about equal numbers to show support or disapproval.
Cops aggressively guarded the front doors of Central Office and physically moved people — including reporters — out of the way if they were not registered to speak. Most of the speakers who made it into the hearing were Noble supporters who'd shown up en masse hours earlier and got the bulk of the speaking spots.
The public hearing was just the latest opportunity to air arguments for and against the proposed campus, which would be Noble's 17th in Chicago and located a few blocks from Kelly High School.
District officials say they will consider testimony from the hearings as well as recommendations of Neighborhood Advisory Councils in making their own recommendation to the Board of Education, which is scheduled to vote on a dozen charter proposals next month.
While Noble's proposal was by far the most controversial, two separate proposals to co-locate charters inside existing CPS schools also drew significant criticism. One is from the KIPP charter group, which wants to open an elementary school inside Orr High School in West Humboldt Park.
Orr students, teachers and even the principal spoke against the KIPP proposal, expressing concern it would siphon students from neighborhood schools. The principal's participation was noteworthy because Orr is a turnaround school run by the non-profit AUSL.
KIPP's chief operating officer, Nicole Boardman, said the charter network tries to be "good partners" with schools at co-location sites and doesn't recruit from their attendance boundaries. "The whole goal is to make sure we are bringing resources into underutilized schools in Chicago so we can be part of the solution to keep schools open," she said.
Similarly, parents and teachers from Hirsch Metro High School spoke up against a proposal from a group connected to New Life Covenant Church that wants to co-locate a performance-arts-themed school in that building.
2. No new alternative programs … Also on Wednesday, school officials announced that no privately run alternative programs for dropouts would be opened this year because of the ongoing CPS budget crisis. (These types of programs, which CPS calls ALOPs, are different from alternative charter schools and are allowed to offer shorter school days; much of students' work is done online.)
Two groups — Acceleration Academies and Catapult Academies — had proposed opening about 2,500 seats at 11 new alternative programs across the city, mostly in low-income black neighborhoods.
"CPS has doubled its capacity over the past three years to serve out-of-school and off-track youth, but because we continue to work on our budget challenges with Springfield, we will not be funding any new [alternative programs]," CPS spokeswoman Emily Bittner said in a statement.
Earlier this year, Catalyst and WBEZ produced a three-part series on the district's growing number of private operators who run alternative learning programs — some of questionable quality — and are making millions of dollars in profit. There are currently more than 11,500 seats at these privately run programs, CPS officials say.
3. Dyett boundaries set … The attendance boundary for the new Dyett High School will be the same as the old one, the Board decided on Wednesday. Activists who lobbied and conducted a hunger strike to reopen the school contend that means most students who attend the new arts- and technology-focused school will come from outside the neighborhood.
The boundaries will continue to be Martin Luther King Drive to the west, Cottage Grove Avenue to the east, 41st Street to the north and 60th Street to south, with a six-block area in the northernmost part of the boundary that extends out past Cottage Grove to the lake.
CPS held a hearing on the boundaries Friday night in the district's Loop offices. It was sparsely attended, which activists attributed to the inconvenient time and location, the Sun-Times reports. Activists who had proposed to open a school focused on green technology and leadership had wanted nearly all students to come from a larger area around Washington Park, with just 5 percent of seats for citywide applicants.
The board also approved just under $400,000 in incubation and start-up costs for Dyett to be spent this school year, though Janice Jackson, the chief education officer, says the district will still request $11 million to $13 million in capital improvements at Dyett.
Board members also unanimously approved:
- A change in how high schools will be rated this fall. This was prompted by the discovery that 9th- and 10th-graders last year took assessments — the EXPLORE and PLAN tests — that were previously available on the Internet. CPS will throw out those scores and decrease the importance of assessments in determining this year's high school ratings.
- The sale of the former Trumball Elementary site for just under $5.3 million to Svigos Asset Management, which plans to build up to 49 residential units and a community theater. It's the most CPS has received for a school shuttered in the historic 2013 closures.
- The addition of a 7th- and 8th-grade academic center that will serve up to 100 students at Brooks College Prep Academy, a selective-enrollment high school in Roseland. The center will open next fall, adding grades one year at a time, and will need about $1 million in capital improvements and staffing costs, CPS says. As at other academic centers, students who gain entry will automatically qualify for admission to the host high school.
- The closure of the 7th- and 8th-grade academic center at nearby Harlan Community Academy High School in Roseland, due to declining enrollment. The 17 students currently in the center will be allowed to finish there, but CPS won't take new applicants for next school year.
4. New preschool study … A new study released this week by Nashville's Vanderbilt University found that while children in Tennessee's state-funded preschool program for low-income children were better prepared for kindergarten than their peers who did not attend the program, those who did not attend caught up by the end of kindergarten and moved ahead by the end of second grade, NPR reports.
But researchers caution that the quality of the preschool programs — and elementary classrooms — likely had an effect on the results. The preschool program "was rolled out very quickly and not all pre-K classrooms in Tennessee are alike," one of the lead researchers said in a news release.
Bruce Atchison, who directs early learning programs for the Education Commission of the States, told Chalkbeat Tennessee: "You can have high-quality pre-K and talk about a kindergarten-ready child, but if you don't have a high-quality K-3 programs in place, some fade-out is going to occur."
Steven Barnett, who directs the National Institute for Early Education Research, told NPR that Tennessee made some key mistakes in scaling up its program by not putting "quality control" mechanisms in place and by under-funding the program.
5. STEM after-school programs … New data released earlier this week by Afterschool Alliance found that after-school STEM programs — short for Science, Technology, Engineering and Math — are a good way to bring underrepresented groups into the field.
These programs help bridge the gap between white students and students of color because African-American and Hispanic children are at least two times more likely to join an after-school program than white children. Overall, girls are participating in the programs at slightly lower rates than boys, according to the report.
In Illinois, 55 percent of parents consider STEM when selecting an after-school program, and 65 percent said STEM opportunities are offered in their child's program. The U.S. Department of Education projected that STEM jobs would grow at a faster rate than other jobs by 2020.
The report also found that nationwide STEM programs are more prominent in urban communities than rural and suburban areas, and math and science are more commonly offered than technology and engineering.
A few more things … One of the two dozen MacArthur "geniuses" named this week is Juan Salgado, president and CEO of Instituto del Progreso Latino, which focuses on educating Hispanic immigrants in Chicago. "What we do in Instituto is we believe that any learner can become basically a college student — that if you're at a 4th-grade, 6th-grade reading level and you're an immigrant mom, you can become a registered nurse, a master's degree nurse," Salgado told NPR earlier this week. Apart from its adult education programs, Instituto also has an alternative school and a charter school focusing on health care.
And our long-read recommendation for the week comes from The Hechinger Report, which took a look at how New York City has put small high schools on the back burner after seeing improvements — as well as some unintended negative consequences. (Small schools were rolled out so quickly, one study found, that in some parts of the city larger high schools became "dumping grounds" with large enrollment increases.)
Small-school initiatives funded with more than $2 billion from the Bill & Melinda Gates Foundation have seen mixed results across the country. Back in 2010, the University of Chicago Consortium on Chicago School Research found that the 23 small high schools opened in Chicago facilitated closer relationships among students and adults and had a positive effect on graduation rates, but didn't see significant improvements in student test scores.


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AC70 - Screwed Adaptor Female 1/2"BSP Pack of 5
Supplier: Jack Sealey Ltd | Brand: SEALEY | Product: AC70
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Details of AC70
o Manufactured in the UK.
o Ideal for workshop/engineering use with all types of wrenches, sanders and grinders.
o Adaptors will fit Vertex slim type coupling bodies.
Barcode: 5051747771581
Warranty: 1 Year
0.29 Kg
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We have collected these Vintage Chenille Santa Ornaments with Paper Faces for a number of years. They just have the happiest sweet faces. We have 5 of these vintage pipe cleaner Santa's with paper faces. Mid Century treasures that are getting harder and harder to find. They each have a thin gold thread for hanging. They each have printed paper faces. NOTE: They are priced per piece. If you are interested in more than one I will be happy to combine shipping for you. Not marked but I'm quite certain they are Japanese.
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Around this time last year, Skepta's new album Konnichiwa was due to be released. The scheduled drop date came and went and not a huge amount happened. Still, he was hardly to blame. Kanye had recruited him to turn his Brits performance into the talked-about viral hit it was, New York wanted a taste of Joseph Jr., the fashion world was becoming more than a little enamored with him, and a slew of international live shows beckoned.
Sure we've had a few tunes; it's not totally clear if "That's Not Me" will be on there, but "Shutdown", "It Ain't Safe", "Top Boy", "Ladies Hit Squad" and a brief video of a track called "Man" being performed. Besides that, some tweets and Instagram posts, there's hasn't been much info.
Can't believe I can see the checkpoint. ?
— SKEPTA (@Skepta) 16 марта 2016 г.
As the release of Konnichiwa draws ever closer, we pulled together every concrete bit of information we had about the album so that you can reacquaint yourself before the album actually comes out—which is soon, by the way.


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170K 📈 The #NRL club membership tracker is keeping tabs on how all sixteen sides are faring - and we...
2 days ago - 6 Likes
Western Suburbs v Newtown - NSWRL VB NSW Cup Friday, June 20th 2008 Campbelltown Stadium Kick-Off: 6.00pm.
Second leg of the 2008 Tom Raudonikis Cup challenge series.
Newtown supporters would be very ill-advised to think that this is the same Western Suburbs team that Newtown comprehensively crushed at Henson Park back on March 22nd.
The Magpies have turned their season right around and are now challenging for a place in the competition


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June 20, 2007
PHILIP BARASH, PLAINTIFF,v.FORD MOTOR CREDIT CORPORATION, DELL COMPUTER CORPORATION, EXPERIAN AND TRANS UNION, DEFENDANTS.
On November 3, 2006, pro se plaintiff Philip Barash ("Mr. Barash") commenced a civil action in the Supreme Court of the State of New York, Nassau County against defendants Ford Motor Credit Corporation ("Ford"), Dell Inc.*fn1 ("Dell"), Experian Information Solutions, Inc.*fn2 ("Experian") and Trans Union LLC*fn3 ("TransUnion") (collectively, "defendants") pursuant to the New York Fair Credit Reporting Act, N.Y. Gen. Bus. Law §§ 380-380-u (hereinafter, "the NYFCRA"), and New York Personal Property Law §§ 302, 401-403, 405. On December 6, 2006, defendant Experian filed a notice of removal to remove this action to federal district court for the Eastern District of New York. Defendants Ford, Dell and TransUnion join in Experian's notice of removal.
Plaintiff now moves to remand the action to state court, for sanctions against counsel for Experian pursuant to Federal Rule of Civil Procedure 11, and for attorney's fees. For the reasons that follow, plaintiff's motions are denied.
A. The Complaint
The following facts are taken from the amended complaint and are not findings of fact by the Court.
1. The Ford Loan
On June 23, 2003, an individual purchased a 2003 Lincoln Navigator vehicle ("the vehicle") from Margate Lincoln Mercury ("Margate"), a car dealer located in Broward County, Florida. (Compl. Exs. 2, 8.) A car loan for the vehicle was obtained from Ford in the amount of $59,419. (Id.) The loan was to be paid in installments. (Compl. Exs. 1, 2.) The retail installment contract for the vehicle, which listed Philip Barash as the borrower, was signed in Massachusetts. (Compl. Ex. 1.) According to plaintiff, he did not sign the installment contract.*fn4 (Id.) Plaintiff avers that "[Ford] paid [Margate] for the vehicle without proper contact with Philip Barash a citizen of New York." (Compl. Ex. 2.) Mr. Barash claims that he "did not execute any vehicle retail installment contract with Margate Lincoln Mercury, has never been to Margate Lincoln Mercury, and never took possession of any Lincoln Motor Car from Margate Lincoln Mercury." (Compl. Ex. 2.)
On July 16, 2003, a certificate of title to the vehicle was filed in Florida. (Compl. Ex. 8.) The title was made out in plaintiff's name, with a Florida address, and identified Ford as the sole lienholder on the vehicle. (Compl. Ex. 8.) Mr. Barash asserts that he "did not execute, cause to execute nor authorize anyone to file with the State of Florida for a Certificate of Title for a Lincoln Navigator in his name." (Compl. Ex. 2.)
According to Mr. Barash, the vehicle "had been tendered to Jonathan Barash," who made nineteen (19) installment payments on the vehicle to Ford.*fn5 (Id.) Ford accepted the payments from Jonathan Barash. (Id.) Mr. Barash asserts that, "[w]hen Jonathan Barash could not [sic] longer afford to make payments he voluntarily returned the vehicle to [Ford]."*fn6 (Id.) The vehicle was returned on May 20, 2005, when Jonathan Barash brought it back to Margate. (Id.)
On May 26, 2005, six days after the vehicle was returned to Margate, Ford filed a complaint against Mr. Barash in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida. On April 18, 2006, Mr. Barash moved to dismiss the complaint on grounds that venue was improper in Florida state court, since Mr. Barash is a New York citizen who did not conduct business in Florida, and because the installment contract was not signed in Florida. (Compl. Ex. 1) On May 8, 2006, Judge Alfred J. Horowitz granted plaintiff's motion and dismissed the action with prejudice. (Id.)
An outstanding balance of $14,234.59 remained on the installment loan, and Ford sought the funds from Mr. Barash. (Compl. Exs. 8, 13.) Mr. Barash objected to Ford's repeated requests for payments on the outstanding balance, and claimed that the car loan had been fraudulently obtained in his name. (See id.)
On August 6, 2005, Mr. Barash drafted a document entitled "Notice of Fraudulent Use of a Credit Report" (hereinafter, "Police Notice"), addressed to the Old Brookville Police Department, in which he claimed that his credit report had been fraudulently used. (Compl. ¶ 8(g), Ex. 3.) In the document, Mr. Barash refers to his credit report and states that the Ford account listed therein was not "opened by, continued by, or authorized by" him.*fn7 (Compl. Ex. 3.)
Nevertheless, according to Mr. Barash, the defaulted car loan remained on his credit reports issued by Experian and TransUnion, two credit reporting agencies, despite his requests to Ford, Experian and TransUnion to have it removed. (Id. ¶ 8(f).) The Ford car loan is not listed on plaintiff's credit report from Equifax, another credit reporting agency. (Id. ¶ 8(h), Ex. 12.)
2. The Dell Loan
During May 2004, Dell delivered a personal computer, which had been purchased in Mr. Barash's name, to a Florida address. (Compl. ¶ 9, Ex. 10.) When the computer was purchased, a revolving account was opened with Dell. (Compl. Ex. 10.) The credit limit on the account was $2,000. (Id.) According to Mr. Barash, Dell "did not deliver any computer to the Plaintiff." (Compl. ¶ 9.) Mr. Barash stated that "[t]he computer was obtained through the fraudulent use of the Plaintiff's personal credit report." (Id.) However, the allegedly improper debt has remained on Mr. Barash's credit reports with TransUnion and Experian. (Id.) Mr. Barash also claims that, in addition to reporting the incorrect debt to the credit reporting agencies, Dell also conspired with TransUnion and Experian to add an incorrect Florida address for Mr. Barash to his reports - the same address to which Dell claims that the computer, which Mr. Barash never received, was sent. (Id.) The Dell debt has remained on Mr. Barash's TransUnion and Experian credit reports, despite his request that it be removed. (Compl. ¶ 9, Ex. 9.)
A. Motion for Remand
On December 6, 2006, defendants filed a notice of removal of the instant action from state court pursuant to 28 U.S.C. § 1441, on the basis that the complaint alleges violations of the federal Fair Credit Reporting Act (hereinafter "the FCRA"), 15 U.S.C. §§ 1681 et seq.*fn8 (Notice of Removal ¶¶ 4-5.) Alternatively, defendants assert that jurisdiction is proper under 28 U.S.C. § 1332, based upon diversity of citizenship between the parties. (Id. ¶ 6.)
1. Standard of Review
A district court "must remand a case to state court `if at any time before final judgment it appears that the district court lacks subject matter jurisdiction.'" Vera v. Saks & Co., 335 F.3d 109, 113 (2d Cir. 2003) (quoting 28 U.S.C. § 1447(c)). "Generally, a defendant in an action pending in state court may remove that case to federal court only if it could have originally been commenced in federal court on either the basis of federal question jurisdiction or diversity jurisdiction." Citibank, N.A. v. Swiatkoski, 395 F. Supp. 2d 5, 8 (E.D.N.Y. 2005) (citing 28 U.S.C. § 1441(a)). "When a party challenges the removal of an action from state court, the burden falls on the removing party `to establish its right to a federal forum by competent proof.'" In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., No. 00-CV-1898, MDL 1358 (SAS), M 21-88, 2006 U.S. Dist. LEXIS 20575, at *7 (S.D.N.Y. Apr. 17, 2006) (quoting R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979) (quotation omitted)). Further, "[i]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability." Lupo v. Human Affairs Intern., Inc., 28 F.3d 269, 274 (2d Cir. 1994) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)); accord Somlyo v. J. Lu-Rob Enter., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991); Fed. Ins. Co. v. Tyco Int'l Ltd., 422 F. Supp. 2d 357, 367 (S.D.N.Y. 2006).
2. Federal Question
A case may be filed in federal court "`when a federal question is presented on the face of the plaintiff's properly pleaded complaint.'" Vera, 335 F.3d at 113 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). A well-pleaded complaint may raise a federal question either by (1) asserting a federal cause of action, or (2) presenting state claims that "`necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.'" Broder v. Cablevision Sys. Corp., 418 F.3d 187, 194 (2d Cir. 2005) (quoting Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005)). "Ordinarily, a plaintiff is master of his complaint and may elect to proceed solely under state law even if federal remedies are available." In re "Agent Orange" Prod. Liab. Litig., 996 F.2d 1425, 1430 (2d Cir. 1993) (citing Caterpillar, 482 U.S. at 392; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)), overruled in part on other grounds by Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002). Accordingly, "[a] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated." Caterpillar, Inc., 482 U.S. at 398-99. Moreover, the Second Circuit has acknowledged that, while exceptions to the "well-pleaded complaint rule" exist, such exceptions are narrowly limited, on the basis that "state and federal laws have many overlapping or even identical remedies" and because courts generally "respect a plaintiff's choice between state and federal forums." Id. at 1431 (citation omitted).
In this instance, plaintiff's complaint explicitly asserts state law claims under New York Personal Property Law §§ 302, 401-403, 405 and New York General Business Law §§ 380. (Compl. ¶¶ 8(a), 8(e)-(f), 8(i), 9(a), 9(d)-(e), 10(c).) However, in a section of the complaint entitled "Applicable Precedents," plaintiff also refers to 15 U.S.C. § 1681 and cites a number of federal cases construing the statute. (Compl. ¶ 11.) Specifically, the complaint states: "[P]hilosophy behind . . . USC 15 Sect 1681 . . . was protection of the consumer and state law can go further as long as not inconsistent," and "Congress intended to protect unreasonable or careless invasion of consumer privacy." (Id. (citing Credit Data of Ariz. v. Arizona, 602 F.2d 195 (1979); In re TRW Inc., 460 F. Supp. 1007, 1009 (E.D. Mich. 1978)). Where plaintiff cites federal, non-New York cases, he refers to the "Fair Credit Reporting Act," without specifying whether he means the state or federal statute; in addition, citing one Eighth Circuit case, plaintiff refers to "the Fair Credit Reporting Act, Article 25, Section 380." (Id.) The conclusion of this section of the complaint states "[w]herefore additionally based upon the foregoing precedents this action is right and proper and the remedies sought are right and proper."*fn9 (Id.)
Defendants argue that plaintiff's references to "USC 15 Sect. 1681," "Congress" and numerous federal cases indicate that, on the face of the complaint, plaintiff seeks relief under the federal statute. (Dell Br. at 2-3; Ford Br. at 6-7.) However, the Court finds that the pro se plaintiff intended for his claims to be grounded in state law. The "Cause of Action" section of his complaint makes no reference to federal law and states, with regard to each defendant, that the plaintiff seeks damages on the basis of New York State law. (See Compl. ¶¶ 8-10.) In fact, the title of the complaint is "Complaint for Damages Pursuant to New York State General Business Law Article 25, Section 380 L (b)(c)." Therefore, the Court cannot find that the mere mention of federal claims or cases converts the instant complaint into a removable action. See, e.g., Pullen-Walker v. Roosevelt Univ., No. 05-C-7053, 2006 U.S. Dist. LEXIS 19596, at *6 (N.D. Ill. Apr. 3, 2006) (holding that, where plaintiff titled her claims as state law actions, "we cannot conclude that Plaintiff inadvertently converted her state law claim into a removable action based on the mention of federal claims"). As "`master of the complaint,'" the plaintiff chose to base his claim in New York law. Id. (quoting Caterpillar, Inc., 482 U.S. at 398; citing Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 282 (1918) ("The plaintiff may by the allegations of his complaint determine the status with respect to removability of a case.")). As the complaint repeatedly and specifically lists the plaintiff's desired causes of action, all of which are pursuant to state law, and only refers specifically to 15 U.S.C. § 1681 in the course of quoting two federal cases that discuss the general purposes underlying such statutes, the Court disagrees with defendants that the complaint, on its face, seeks to assert a federal claim.*fn10 Accordingly, the Court declines to find that removal is proper on the basis of federal question jurisdiction.
3. Diversity of Citizenship
In order to support removal pursuant to 28 U.S.C. § 1332, the defendant "must demonstrate that the parties are citizens of diverse states and that the amount in controversy exceeds $75,000." Cazaubon v. Korean Airlines Co., No. 07-CV-2197 (NGG) (JO), 2007 U.S. Dist. LEXIS 40080, at *3 (E.D.N.Y. Jun. 1, 2007) (citing 28 U.S.C. § 1332(a) and Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006) ("It is well-settled that the party asserting federal jurisdiction bears the burden of establishing jurisdiction.")); Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) ("A party invoking the jurisdiction of the federal court has the burden of proving that it appears to a `reasonable probability' that the claim is in excess of the statutory jurisdictional amount.") (citing Moore v. Betit, 511 F.2d 1004, 1006 (2d Cir. 1975)). The parties do not dispute that there is complete diversity of citizenship between the plaintiff, a citizen of New York State, and the defendants.
However, the parties dispute whether the requisite $75,000 minimum amount in controversy has been reached in this case. Plaintiff's complaint seeks punitive damages in the amount of $100,000 against each of the four defendants. (Compl. ¶¶ 8(i), 9(f), 10(d).) Plaintiff also seeks attorney's fees and costs, and does not seek compensatory damages.*fn11 Plaintiff also states that "this cumulative action is for the recovery of $400,000 in total from the four Defendants as provided under New York Statute." (Id. ¶ 13.) While defendants argue that plaintiff's complaint therefore satisfies the amount in controversy requirement because it seeks relief in an amount greater than the jurisdictional minimum, plaintiff contends that "the suggestion . . . that a $100,000 fine to each defendant for its violation of State Statute, is an arbitrary amount based upon the Plaintiff's assessment of what sum would prevent such acts in the future by each Defendant." (Pl.'s Br. ¶ 8.)
In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288 (1938), the Supreme Court held that:
The rule governing dismissal for want of jurisdiction in cases brought in federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.
Therefore, the plaintiff's good faith demand, as set forth on the face of the complaint, determines whether the claim meets the jurisdictional minimum amount in controversy. Scherer v. Equitable Life Assurance Soc'y of the U.S., 347 F.3d 394, 397 (2d Cir. 2003) ("We recognize `a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy.'") (quoting Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999)). In order to overcome "the faceof-the-complaint presumption, the party opposing jurisdiction must show `to a legal certainty' that the amount recoverable does not meet the jurisdictional threshold." Id.; St. Paul Mercury Indem. Co., 303 U.S. at 288-89 ("[I]f from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed."). Where, as here, a plaintiff seeks punitive damages, such damages "must be considered to the extent claimed in determining jurisdictional amount." Bell v. Preferred Life Ass. Soc'y, 320 U.S. 238, 240 (1943); A.F.A. Tours, Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir. 1991) ("[I]f punitive damages are permitted under the controlling law, the demand for such damages may be included in determining whether the jurisdictional amount is satisfied.") (citation omitted). However, "[w]hen punitive damages are used to satisfy the amount in controversy requirement, the trial judge is accorded greater discretion than for a claim of actual damages, and special judicial scrutiny is triggered." O'Conner v. Sears Holding Corp., No. 05-CV-5708 (DGT) (LB), 2006 U.S. Dist. LEXIS 60109, at *7 (E.D.N.Y.Aug. 14, 2006) (citing Zahn v. Int'l Paper Co., 469 F.2d 1033, 1034 n.1 (2d Cir. 1972), aff'd, 414 U.S. 9253 (1973), superseded by statute, 28 U.S.C. § 1367, as recognized in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 571 (2005)); Miller v. European Am. Bank, 921 F. Supp. 1162, 1167 (S.D.N.Y. 1996)). As set forth below, in this instance, the Court finds that plaintiff cannot demonstrate with "legal certainty" that his punitive damages claims will not exceed $75,000.
While this Court must look to New York State law in determining whether the plaintiff could conceivably obtain punitive damages in an amount that exceeds the jurisdictional minimum, see, e.g, O'Conner, 2006 U.S. Dist. LEXIS 60109, at *7-*8 ("Under diversity jurisdiction, the law of the forum state is applied. As such, we look to state law to determine whether punitive damages in this amount are appropriate.") (citing Bank of N.Y. v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir. 1994)), because the FCRA and the NYFCRA are interpreted similarly and there is no case law specifically applying the state statute in comparable circumstances, the Court shall also consider analysis of the FCRA in reaching its conclusions as to plaintiff's claims under the NYFCRA in this case. Ali v. Vikar Mgt. Ltd., 994 F. Supp. 492, 498 (S.D.N.Y. 1998) (citing Scott v. Real Estate Finance Group, 956 F. Supp. 375, 384 (E.D.N.Y. 1997), aff'd in part and rev'd in part on other grounds, 183 F.3d 97 (2d Cir. 1999)). Under New York State law, punitive damages are available for "willful" violations of the NYFCRA:
Any person, firm, partnership, corporation or association whose knowing and willful violation of section three hundred eighty-s of this article resulted in the transmission or provision to a consumer reporting agency of information that would otherwise not have been transmitted or provided, and any consumer reporting agency or user of information who or which willfully and knowingly fails to comply with any requirement imposed under this article with respect to any consumer is liable to that consumer in an amount equal to the sum of:
(a) Any actual damages sustained by the consumer as a result of such failure or as a result of a violation of section three hundred eighty-s of this article;
(b) Such amount of punitive damages as the court may allow;
(c) In the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
N.Y. Gen Bus. Law § 380-l. Moreover, such damages are available even where a plaintiff has sustained no actual damages. Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 476 (2d Cir. 1995) (citing 15 U.S.C. § 1681n(2); Boothe v. TRW Credit Data, 557 F. Supp. 66, 71-72 (S.D.N.Y. 1982)). In construing "willful" noncompliance with regard to the FCRA, the Supreme Court has held that "both knowing and reckless disregard of the law" can create liability for punitive damages. Safeco Ins. Co. of Am. v. Burr, Nos. 06-84, 06-100, 127 S.Ct. 2201, 2007 U.S. LEXIS 6963, at *24 (Jun. 4, 2007).
In the instant case, plaintiff alleges both knowing and willful conduct by defendants in refusing to alter his credit reports or to cease collection activities after receiving repeated complaints from him that he had not incurred the debts listed; therefore, relief in the form of punitive damages may be available, should plaintiff's claims be found meritorious. Neither party has cited cases indicating the potential amount of plaintiff's recovery. Plaintiff, seeking remand, argues that his request for $100,000 against each defendant was merely "arbitrary," and appears to suggest that his actual expectations fall below the $75,000 threshold. (Pl.'s Br., at ¶ 9.) However, where a plaintiff has filed a complaint in state court asserting a claim for relief in excess of the minimum federal amount in controversy, he may not later, after removal, amend his complaint or stipulate that he will seek relief in a lesser amount in order to obtain remand to state court. It is wellsettled that, even if a plaintiff, "after removal, by stipulation, by affidavit, or by amendment of his pleadings, reduces the claim below the requisite amount, this does not deprive the district court of jurisdiction." St. Paul Mercury Indem. Co., 303 U.S. at 292; Purple Passion, Inc. v. RCN Telecom Servs., 406 F. Supp. 2d 245, 246-47 (S.D.N.Y. 2005) ("`Once a case that has been initiated in state court has been removed properly, subsequent events that reduce the amount recoverable, such as the plaintiff's amendment of the complaint, will not defeat the federal court's subject matter jurisdiction.'") (quoting 14C Charles Alan Wright et al., Federal Practice and Procedure § 3725, at 115 (3d ed. 1998)) (collecting cases). Therefore, plaintiff's proposed reduction of his original punitive damages claim to an amount below the jurisdictional threshold, in connection with the motion for remand, does not thwart federal diversity jurisdiction, because punitive damages in excess of $75,000 could possibly be awarded, for the reasons set forth below.
Under these circumstances, some courts have relied upon evidence put forward by the removing party of past jury verdicts involving analogous facts in order to determine the amount of punitive damages that the plaintiff would likely recover. See, e.g., Cable v. Merit Life Ins. Co., No. 06-CV-0804 (GEB) (KJM), 2006 U.S. Dist. LEXIS 51084, at *6 (E.D. Cal. Jul. 14, 2006). Based upon a review of analogous cases, as well as of the plaintiff's claims, the Court cannot find to "a legal certainty" that punitive damages, if awarded in the instant case, would be $75,000 or less. For instance, in Saunders v. Equifax Info Servs., LLC, 469, F. Supp. 2d 343 (E.D. Va. 2007), a jury awarded $80,000 in punitive damages where a plaintiff filed an FCRA action concerning the reporting of derogatory information about a car loan to credit reporting agencies against the issuer of the loan and the agencies. In another case where a plaintiff filed an FCRA claim on the basis that false information was listed on her insurance claims report, a jury awarded $197,000 for mental distress (which was later reduced by the court to $100,000) and $250,000 in punitive damages, even though the plaintiff claimed no compensatory damages for out-of-pocket losses. Boris v. Choicepoint Servs., 249 F. Supp. 2d 851 (W.D. Ky.), amended by 2003 WL 23009851 (W.D. Ky. 2003). Therefore, the Court concludes that plaintiff has not overcome the "face-of-the-complaint presumption," Scherer, 347 F.3d at 397, by demonstrating to a legal certainty that punitive damages in excess of $75,000 could not be awarded in this case. Accordingly, the requirements for federal diversity jurisdiction have been met in the instant case.
B. Motion for Rule 11 Sanctions
Plaintiff also moves, pursuant to Federal Rule of Civil Procedure 11, for sanctions against defendants' attorneys for improperly removing his case from state court to federal court, and for allegedly making false statements regarding plaintiff in the notice of removal. For the reasons set forth below, plaintiff's motion for Rule 11 sanctions is denied.
First, the Court notes that plaintiff has not satisfied the procedural requirements for filing the instant motion. A request for sanctions must be made by separate motion, Fed. R. Civ. P. 11(c)(1)(A), "and failure to do so is a ground for denial of sanctions." Daniel v. Safir, 135 F. Supp. 2d 367, 378 (E.D.N.Y. 2001) (quoting Lambertson v. Kerry Ingredients, Inc., 50 F. Supp. 2d 163, 170 (E.D.N.Y. 1999)). In addition, a motion for sanctions under Rule 11 must describe the "specific conduct alleged to violate" the rule. Fed. R. Civ. P. 11(c)(1)(A). Finally, the motion must be served on the subject of the motion, "but shall not be filed with or presented to the court unless, within 21 days after service of the motion . . . the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn." Fed. R. Civ. P. 11(c)(1)(A); see Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 389 (2d Cir. 2003). Here, plaintiff has not fulfilled the requirement that he serve his Rule 11 motion on defendants and then present it to the Court twenty-one (21) days after defendants' failure to withdraw the challenged motion upon receipt of the Rule 11 notice, and therefore, the motion is procedurally deficient. See, e.g., Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir. 1995) (holding a district court's imposition of sanctions to be an abuse of discretion where the party seeking sanctions did not provide opposing party with 21-day "safe-harbor" period to correct his misstatements before filing Rule 11 motion); Vermande v. Hyundai Motor Am., Inc., 352 F. Supp. 2d 195, 204 (D. Conn. 2004) (denying motion for Rule 11 sanctions where party failed to comply with procedural requirements).
Moreover, even assuming arguendo that plaintiff had followed the proper procedure, the Court finds that plaintiff's accusations against defendants are without merit. In considering whether to award sanctions under Rule 11, a court must determine whether the contested motion is objectively unreasonable. Salovaara v. Eckert, 222 F.3d 19, 34 (2d Cir. 2000) (quoting Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000)); see also MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 73 F.3d 1253, 1257-58 (2d Cir. 1996). In this case, where defendants' removal of the instant action was properly initiated, and was substantiated by federal law, the Court declines to find such removal objectively unreasonable.*fn12 As explained in the Court's discussion of plaintiff's motion for remand, supra, this Court has jurisdiction over the instant action pursuant to 28 U.S.C. § 1332; therefore, defendants' removal of this action to federal court is "well-grounded in fact, legally tenable, and not interposed for any improper purpose." Gal v. Viacom Intern., Inc., 403 F. Supp.2d 294, 307 (S.D.N.Y. 2005) (quoting Cooter & Gell, 496 U.S. at 393) (internal quotation marks omitted). In reaching this conclusion, the Court also rejects plaintiff's argument that defendants' pleadings "constitute[] a fraud upon the Court." (Pl.'s Br., at ¶¶ 1-9). While plaintiff argues that defendants have attempted to defraud the Court by representing that federal jurisdiction is appropriate in this case, there is no indication that defendants have falsely represented the facts or the law relating to removal of the instant action. Furthermore, plaintiff's assertion that "the removal to Federal Court is for the sole purpose of harassment, to cause unnecessary delay and needless increase in the cost of litigation" is unfounded and without any support whatsoever in the record.*fn13 (Pl.'s Rule 11 Mot. ¶ 2.) Accordingly, defendants are not subject to Rule 11 sanctions, and plaintiff's motion is denied.
C. Motion for Attorney's Fees
Notwithstanding his pro se status, plaintiff seeks attorney's fees pursuant to 28 U.S.C. § 1447(c), which provides that "an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). As this Court has denied plaintiff's motion for remand, his accompanying motion for attorney fees pursuant to the removal statute is likewise denied.*fn14
For the foregoing reasons, plaintiff's motion is denied in its entirety.
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Beef Jerky
Total Time
Prep 24 hrs
Cook 6 hrs
You can use an oven or dehydrater. Use the measurements as a guide, but adjust to your taste.
Ingredients Nutrition
- 1 lb beef eye round
- 1⁄4 cup soy sauce
- 1⁄2 teaspoon ground black pepper
- 1 teaspoon brown sugar
- 1 teaspoon hot pepper sauce
- In a medium bowl, combine the soy sauce, ground black pepper and brown sugar to taste.
- Adjust the amounts to your taste.
- Mix well and add the steak slices.
- Place entire mixture with meat into a sealed plastic container and refrigerate for 12 to 24 hours.
- If doing in the oven, place one oven rack on the highest rack setting and one rack on the lowest setting.
- Place a piece of aluminum foil OR a baking sheet on the lowest rack, to catch any drippings.
- (If doing in your dehydrater, follow your manufactures instructions).
- Preheat oven to 160F degrees.
- Insert a wooden toothpick through the end of each slice of meat, and suspend each slice from the top rack in the oven, using the toothpick as a support for the slice.
- Bake at 160 degrees F (with the oven door propped open to allow moisture to escape).
- Bake for 6 to 8 hours depending on thickness of slices.
- Jerky should bend, and not snap.
Most Helpful
Thumbs up from the jerky junkie (that would be the boyfriend...)! The seasonings don't overpower the flavor of the meat; we used Tabasco's Chipotle flavored sauce for some smoke flavor and threw in a little Liquid Smoke for good measure - very nice seasoning blend! Thanks, Tish, for suggesting your recipe to me!
Tish -- This was a total hit with the whole family. Made it about 6 months ago and have listened to requests to get another roast and make some more ever since. In fact the 3 pounds of meat were gone in just 3 days last time. Just had to come back and search for THIS recipe again. Was going to use my dehydrator last time, but your instructions were so clear and the results were so incredibly good, that I'll use the oven again (and again.) The roast is sliced and marinating now... Tomorrow there will be 5 happy (jerky) people in our house. This is a winner and saved to my RecipeZaar cookbook, so I don't waste time trying to find it again. I may make changes to the basic recipe for variety... but won't deviate too much. Thanks for this GREAT recipe! 2/1/09 -- can't tell you how many times we've made this recipe now. My 16 year old son does variations of his own, but it is GREAT! Thanks again!!!
Hi... I am new to this site and just stumbled onto it looking for new jerky recipes. This recipe sounds great and best of all simple!


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When you see the snow report and powder fever sets in, don't wait! We're just 35 minutes from the Salt Lake City International Airport, so you can ski in Park City the same day you arrive. With two world-class resorts just 10 minutes from each other, you can indulge in near-endless fresh turns.
The Rolling stones echo off the lift towers and snow guns, bouncing off the mountain in front of me, making the bass even more powerful. While Jagger isn't on stage, the cover band playing outside at the base of Purgatory's main lift is impressive, and it shows no signs of stopping in the below-freezing temps. While I can barely account for the contents of my own gloves, their bare fingers fly across fret boards and nimbly pick out rockin' solos, guitar amps screaming through the cold winter air. Is this good for my ears? Absolutely not.
It's official. SKI Magazine's resort rankings are in, and Whistler Blackcomb has been named North America's #1 Resort for the 2016.17 winter season. This marks the third year in a row, and fourth time in five years as part of Ski Magazine's 29th annual SKI Magazine Reader's Poll. While we're proud of the accolades, we'd like to take a moment to focus on the immeasurable. That bigger picture. That feeling you have when you're here, and when you leave.
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A tall transgender woman wearing hot-pink ski togs perches on a bench at the foot of a snowy Southern California ski slope, adjusting her boot buckles and striking a pose.
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Go to skiingmag.com
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I am not only a business customer, but I have been for 10 years with AT&T. I was also a AT&T employee for 29 years prior to that.
Our business contract ended in October 2011, Since that time we have spent no less than 50 hours on the phones with AT&T trying to get our new contract established. We have had to do this three times now and as of today January 9th 2012 they still do not show any record of it even though we have numerous conformations. Everyone we have delt with has dropped the ball and the frustraiting part is there is no one I can call to escalate the problem to or will take responsibility for anything.
We have recieved phone bills that do not reflect the price we contracted for dating back to our first contract we signed back in October 2011. In fact our most recient phone we were charged 70% more than we contracted fo for the past 3 months. I have made payments for what we should have been charged...but nothing more.
I have done all that I can do if I don't get any help by posting this I have no choice but to terminate service and refuse payment.
Hello mrcmrc,
It appears that you need assistance for a business related service. These forums are primarily for consumer products and services.
I would suggest posting the same message in the AT&T Business Community. You should get a quicker response there.
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2XU Compression Arm Sleeve Pair
By 2XU
In Stock Items Arrive in time for Christmas!
Shipping handling time is available on products that are In Stock.
Excludes Preorder Items, Out of Stock Items, Custom Imprint Orders.
Free Economy Shipping is 5-7 business days.
- Using PWX POWER for enhanced compression
- Graduated seamless design
- Highest power denier targeted to biceps, triceps + forearms
- Graduated fit to promote increased circulation for recovery
- Reduces soreness + enhances flushing if blood lactates from exercising muscles
- UPF 50+ Sun Protection
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- Sold In Pairs
2XU Graduated Pressure
2XUs graduated compression technology boasts regulated pressure throughout all garments to deliver performance benefits during and post exercise. By enhancing circulation through increased venous function, more oxygenated blood is delivered to the muscles that need it most. At the same time, by-products created by exercise, such as lactic acid, are flushed from the muscles to reduce fatigue and decrease recovery time.
How should my 2XU Compression garments fit?
Your 2XU Compression garment should fit the body snugly and firmly without uncomfortably 'cutting in' to the body. If this is the case, you should review your size choice.
For upper body garments, a free range of movement in the shoulders is essential, as is comfort in the underarms.
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Best and worst sweets: No. 10 - Marshmallows
Sugar: 40g
Serving: 10 sweets
Diet rating: 4/10
Toasted over a fire, marshmallows can be delicious but don't let their fluffy texture fool you! These sweet treats have almost double the sugar content of a pack of Starburst and the calorie content of a small meal.
Goodtoknow tip: If you can't get enough of them, top your hot chocolate with two marshmallows instead of eating 10 on their own
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Author: Ben Strauss (DLA Cliffe Dekker Hofmeyr)
With effect from 1 March 2015, the highest marginal income tax rate for individuals was increased from 40% to 41%. It appears likely that the rate may increase in future, which means individuals should try to minimise their personal income tax as far as possible.
The highest marginal rate takes effect on taxable income above the amount of R701,301.
There is an opportunity for owners of closely held companies and close corporations to reduce their personal taxes by using the arbitrage between the highest marginal rate, on the one hand, and the corporate income tax rate and the dividends tax rate, on the other hand.
Consider, for example, the case of Ms X who holds 100% of the shares in Company Y and who is employed by Company Y. For the 2015 tax year, Ms X wishes to realise a pre-tax income of R1,5 million.
Now, if Company Y pays Ms X a salary of R1,5 million, she will realise a net, after-tax income as follows:
Please click here to view article.
This article first appeared on cliffedekkerhofmeyr.com.
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Construction is under way on two hotels being built in Glenwood Springs, Colo. -- a 124-room Residence Inn and a 101-room Courtyard Hotel. The hotels will sit next to the Glenwood Meadows mall and are part of a larger plan for a full-service hospitality site including a multi-screen movie theater, retail uses and outdoor recreational opportunities.
Full Story:Post Independent (Glenwood Springs, Colo.)


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This community is for beginners and experts willing to share their Odoo knowledge. It's not a forum to discuss ideas, but a knowledge base of questions and their answers.
How to inherit Openerp Web services.?
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I have to deal with openerp server request and response. How can i do that . Please help me with some ideas
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Mr Paxton's answer was clear enough for a layman; it helped me take the next course of action in my case.


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Monday, 11/14/2016
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BFW, Inc.
BFW, Inc., the industry leader in surgical headlight technology, announced an unprecedented warranty for a high intensity fiber optic headlight system. Its new ChromaLUME™ turbo plasma light source lamp is now warranted for a period of five years or 10,000 hours, which ever comes first, under normal use.
BFW's new ChromaLUME™ Turbo – the next generation high-intensity surgical headlight system, introduces the first intelligent means to a powerfully bright, ecologically clean, functionally stable solution for the operating room with unprecedented lamp life and significant cost savings to end users.
BFW™ developed ChromaLUME™ Turbo by utilizing LIFI® technology, an innovative plasma lamp capable of producing 10,000 hours of sunlight equivalent (5,800° Kelvin) light that operates safer, longer and more stable, while remaining consistently brighter than a xenon cermax lamp. Xenon is the current industry standard, but significantly dims after 100 hours and must be replaced after 500 hours of use.
With this new approach, LIFI® maximizes solid-state electronics with consistent output and digital control while emitting the high intensity, full spectrum output surgeons require. It also uses one-third less energy than any existing high-intensity medical lighting technology. LIFI, developed by the Luxim Corporation of Sunnyvale, California is world leader in light emitting plasma technology. BFW™ is the first to develop a fiber optic surgical illuminator with this innovation.
ChromaLUME™ turbo meets Certified Standards IEC/EN 60601-1, IEC 60601-1-2,
CE, CAN/CSA C22.2 No. 601.1, CAN/CSA C22.2 No. 601.1.2.
According to BFW President/CEO Lynn R. Cooper, "Rather than push a technology we have promoted for two decades such as xenon, we acknowledge that it met its limit. Our new group of engineers worked on the next innovation in dynamic surgical lighting. Our new team's way of thinking led to our greatest achievement."
The new system offers BFW's all new XtremeBeam™ fiber optic headlight – an industry breakthrough in high-comfort ergonomics with the high performance engineering, design and technological advancements expected by the most demanding surgeon.
CHROMALume™ Turbo Offers Unmatched, Innovative Features:
Unprecedented 10,000 Hours of Consistent, Intense Lamp Life.
Depending on the individual needs of a surgeon, CHROMALume™ Turbo allows the surgeon dual modes of intensity. For example in Normal Mode: 170,000 LUX or 17,000 foot-candles of light is available, while in Turbo Mode illumination can be increased to 220,000 LUX or 22,000 foot-candles exceeding 300-watt xenon and offering twenty times more lamp life, hence saving the user thousands of dollars in bulb replacement costs during the unit's operational life span. Typically xenon bulbs are replaced every 500 hours at an average cost of $1,000 per lamp. LIFI® eliminates illumination intensity decay by producing light with solid-state plasma, not with tungsten electrodes as in xenon lamps. Electrodes significantly decay and lose brightness after 100 hours.
A Greener Technology
ChromaLUME™ with LIFI® utilizes one-third less energy than xenon bulbs while producing brighter, whiter and more consistent illumination. It also eliminates the pollution caused by disposing spent bulbs with xenon gas into landfills.
BFW ChromaLUME™
Reduces Down Time- Lowers Cost of Operation By eliminating the metal to glass construction seen in traditional xenon bulbs, ChromaLUME™ with LIFI® significantly reduces down time from mechanical failures.
Stable and Flicker-free CHROMALume™ Turbo offers an extremely stable light output with no flicker or variation in intensity as seen in xenon illumination. As a result, signal-to-noise ratio enhanced for sensitive applications requiring visualization and digital imaging.
Extended Life of the Unit
Groundbreaking LIFI® technology eliminates conventional failure modes and excessive heating associated with xenon and metal halide systems. The result is unprecedented reliability in a surgical illumination system, significantly reducing cost of ownership and increasing up time.
Ergonomic Design
With the surgical suite in mind, CHROMALume™ Turbo offers flat membrane touch pad controls prohibiting build up of debris or contaminants on the unit, a four-port rotating turret accommodating most fiber optic cables.
"On-Board" Diagnostics
Digital screen readout offers lamp life, intensity and maintenance warning icons for easy assessment.
BFW, Inc. is a privately held small business based in Louisville, Kentucky that manufacturers surgical lighting and surgical headlight imaging systems. For more information call 1-800-717-4673. www.bfwinc.com.


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August 11, 2009
WALTER CAMPBELL AND MARLENE CAMPBELLv.BANK OF AMERICA, NA
This action arises from defendant's failure to record satisfaction of a mortgage secured by property jointly owned by plaintiffs. The action, arising under Pennsylvania state law and filed in state court, was properly removed to this court under 28 U.S.C. § 1332 (diversity jurisdiction). The matter was tried without a jury. This opinion constitutes the court's findings and conclusions under Federal Rule of Civil Procedure 52(a)(1).*fn1
I. BACKGROUND*fn2
On February 10, 1998, plaintiffs acquired title to real property consisting of 2.302 acres located at 746 Langhorne-Yardley Road in Middletown Township, Pennsylvania (Bucks County Parcel Number 22-21-42-2) (hereinafter, the "Property"). On or about November 3, 2000, the Campbells obtained a construction loan in the amount of $389,200 from Summit Bank.*fn3 The construction loan was secured by: (1) a mortgage on the Property (hereinafter, the "Mortgage"); (2) mortgages on three commercial or investment properties owned by the Campbells; and (3) certificates of deposit totaling $89,000 purchased by the Campbells from Summit Bank. The Mortgage was recorded in the Office of the Bucks County Recorder. The Campbells used the construction loan to build a home on one of the two subdivided lots on the Property (hereinafter, "Plot A" and "Plot B"). Upon the building's completion, the Campbells repaid the construction loan by obtaining a permanent mortgage on Plot A, on which their residence was built; they planned to sell Plot B.
On May 18, 2001, the Campbells attended a closing on the permanent mortgage during which they tendered full payment of $391,006.47, inclusive of interest and fees, of the construction loan to Joseph Campbell (of no relation to plaintiffs), an employee of Summit Bank. Before and after the closing, Walter Campbell made numerous oral demands for a satisfaction piece for the Mortgage to document plaintiffs' repayment of the construction loan and clear the Property of the encumbrance.*fn4 By letter of June 27, 2003, Walter Campbell submitted a written request for the satisfaction piece (Pl. Ex. 5). By letter dated June 18, 2004, Walter Campbell acknowledged receiving satisfaction pieces for the three other mortgages used as security for the construction loan, but not the satisfaction piece for the Mortgage secured by the Property (Pl. Ex. 8). On August 25, 2004, Bank of America tendered a satisfaction piece for the Mortgage. On September 8, 2004, the Campbells recorded the satisfaction piece with the recorder of deeds. Bank of America does not contest these facts. The Campbells filed this action in state court on January 21, 2005.
The Campbells claim they are entitled to damages under 21 P.S. §§ 681 and 682*fn5 for defendant's failure to record satisfaction of the Mortgage.*fn6 The statute provides, in relevant part:
§ 681. Satisfaction of mortgage on margin of record or by satisfaction piece
Any mortgagee of any real or personal estates in the Commonwealth, having received full satisfaction and payment of all such sum and sums of money as are really due to him by such mortgage, shall, at the request of the mortgagor, enter satisfaction either upon the margin of the record of such mortgage recorded in the said office or by means of a satisfaction piece, which shall forever thereafter discharge, defeat and release the same; and shall likewise bar all actions brought, or to be brought thereupon. § 682. Fine for neglect And if such mortgagee, by himself or his attorney, shall not, within forty-five days after request and tender made for his reasonable charges, RETURN to the said office, and there make such acknowledgment as aforesaid, he, she or they, neglecting so to do, shall for every such OFFENCE, forfeit and pay, unto the party or parties aggrieved, any sum not exceeding the mortgage-money, to be recovered in any Court of Record within this Commonwealth, by bill, complaint or information.
Claiming Bank of America provided the satisfaction piece 380 days after receipt of Walter Campbell's written request and the 45-day grace period under 21 P.S. § 682, the Campbells seek $389,200, the maximum damages allowed by statute. The Campbells contend:
(1) strict proof of actual damages should not be required because the harm arising from defendant's violation is difficult to quantify; (2) Section 682 provides liquidated damages as a remedy for defendant's extensive delay in recording satisfaction; and (3) the legislature intended the penalty under 21 P.S. § 682 to be in proportion to amount of the mortgage: "If the size of the transaction is large the penalty may likewise be large." Pl. Trial Memorandum, p. 3 (paper no. 36).
At trial, plaintiffs presented evidence of their purported damages. Mr. Campbell testified he was embarrassed when he attempted to sell Plot B and the buyers discovered the uncleared encumbrance. However, it seems unlikely that the Campbells had reason to be embarrassed by the buyers' discovery of the lien. The transaction was satisfactorily completed and plaintiffs received the full purchase price; they were not required to indemnify the buyers against a potential claim from defendant. Mrs. Campbell, who might also have been embarrassed, was present in the courtroom but did not testify.
Mr. Campbell testified that defendant's violation prevented plaintiffs from purchasing investment property in North Brigantine, New Jersey. Plaintiffs, who own several properties at the New Jersey shore including six in Brigantine, were planning to purchase two units of a duplex property offered by the developer for $219,900 each, for a total investment of $439,800.
The seller's terms of sale offered the properties for $391,000 if plaintiffs paid cash; plaintiffs would have to tender a non-refundable $50,000 deposit and the balance in cash within 30 days. Mr. Campbell testified that plaintiffs were unable to obtain a timely home equity loan on the Property because the potential lender discovered, in addition to the permanent mortgage, a lien for the Mortgage recorded as unsatisfied. Plaintiffs produced no documentary evidence of the bank's rejection or proof the bank would have granted financing if the Property had been encumbered by one mortgage instead of two. Mr. Campbell testified that plaintiffs refused to pursue financing by using one of several other properties they owned as collateral because that alternative would have been more expensive. Plaintiffs offered no evidence of why the use of alternative collateral would have made financing the North Brigantine properties more expensive.*fn7
Mr. Campbell testified that the North Brigantine properties he had hoped to purchase in 2004 for $215,000 are each worth $570,000 today, an appreciation of more than 265%. Plaintiffs did not provide an appraisal of the North Brigantine properties and proffered no evidence for the court to credit this estimate. Plaintiffs offered no evidence of litigation expenses incurred in bringing this action to trial. Reasonable attorney's fees might have been recoverable as damages arising from defendant's violation (although not as an independent claim under state law), but plaintiffs failed to present evidence of litigation costs or argue for such an award. The evidence of record demonstrates that plaintiffs suffered no actual monetary damages resulting from defendant's violation of 21 P.S. § 681.
The Campbells suffered some frustration from defendant's violation, as evidenced by Mr. Campbell's visibly emotional and angry demeanor during his testimony. Although Mr. Campbell is a knowledgeable attorney and real estate investor, he failed to take legal action until nearly four years after settlement of the Mortgage. The Campbells' delay in taking action suggests their frustration was not as great as they claim.*fn8
Both parties agree that the quantum of damages to be awarded under 21 P.S. § 682 is discretionary. Plaintiffs failed to present evidence justifying their demand for $389,200, but are entitled to a reasonable amount to compensate for the inconvenience and frustration caused by defendant's violation. The court will award damages of $3,892.00 under 21 P.S. § 682.
Plaintiffs also seek one percent of the delinquency for defendant's failure to enter satisfaction of the Mortgage under 42 Pa. Cons. Stat. § 8104, which provides in relevant part:
Duty of judgment creditor to enter satisfaction
(a) GENERAL RULE.-- A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.
(b) LIQUIDATED DAMAGES.-- A judgment creditor who shall willfully or unreasonably fail without good cause or refuse for more than 90 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each month of delinquency beyond such 90 days, but not less than $250 nor more than $2,500. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered.
The plain language of the statute applies to satisfaction of judgments, not mortgages. Plaintiffs fail to allege or prove that defendant is a creditor who received satisfaction of a judgment in a tribunal of this Commonwealth. To the contrary, plaintiffs claim they satisfied the mortgage voluntarily and not under compulsion. Plaintiffs have failed to state a claim under 42 Pa. Cons. Stat. § 8104.
Plaintiffs, having established defendant violated 21 P.S. §§ 681 and 682, are entitled to statutory damages in the amount of $3,892.00 as a penalty and compensation for plaintiffs' pain and suffering, with no prejudgment interest.
A judgment order follows.
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Organisms live in a wide range of environments, including extremes of temperature, pH, salt concentration, and pressure. While intracellular pH and salt concentration can be modulated, the various proteins in prokaryotes must be stable and functional throughout the entire range of temperatures that these organisms experience. At first it might seem surprising that the same mechanisms of protein stabilization act in both psychrophiles at temperatures below 0°C and hyperthermophiles active above 100°C. Because the relatively modest thermodynamic stability of proteins (5–10 kCal/mol) results from the small difference between large stabilizing (hydrophobic, ion-pair, hydrogen-bonding, van der Waals interactions) and destabilizing (conformational entropy) contributions, small changes in the number or strength of these contributions can cause a large proportional change in this difference. In fact, the wide range of interactions that can be adjusted means that different proteins from different organisms can use various combinations of modulations to adjust their thermostability. This has made it difficult to delineate common principles (Vogt and Argos 1997; Jaenicke and Bohm 1998).
One of the difficulties in studying the thermostability of organisms from different temperatures is that the interactions that stabilize proteins are themselves temperature dependent. One of the main stabilizing effects in proteins is due to the hydrophobic effect. At room temperature, where the hydrophobic effect is maximal, nonpolar molecules in contact with aqueous solvent results in organization of the solvent molecules in order to reduce enthalpically unfavorable interactions. The result is a decrease in entropy of the solvent, which is the dominant contribution. This entropic contribution to the free energy has an explicit temperature dependence, decreasing as the temperature is reduced, contributing to the phenomenon of cold denaturation. As the temperature is increased, the entropic nature of the hydrophobic effect is replaced by an enthalpic contribution, as it becomes more favorable to lose the enthalpically favorable interactions than to structure the higher temperature water. This changing nature of the hydrophobic interaction results in a decreasing hydrophobic effect as the temperature is increased above room temperature.
Other interactions can have their own temperature dependences. The conformational entropy of the protein is, like all entropic contributions, explicitly temperature dependent. Even interactions such as van der Waals interactions, salt bridges, and hydrogen bonds can lose effectiveness at higher temperatures as molecules become more disordered and fluxional, as optimal geometries are no longer maintained.
The main issue in thermophilic proteins is in the understanding of how they avoid denaturing at high temperatures. There has been much interest in thermophiles for two important reasons. One is the possibility that life has a thermophilic origin, arising, for instance, in deep-sea vents (Wiegel and Adams 1998). There are also important biotechnological applications for proteins that are able to function at higher temperatures. For this reason many would like to engineer higher thermostability for normally mesothermal proteins. It is important to note, however, that while the mechanisms of natural thermophilic stabilization can provide insights into possible approaches for such protein-engineering applications, there might not be a strict equivalence between the gradual changes in protein sequence that can be accomplished through the natural evolutionary process and the relatively few mutations technologically optimal for engineered thermostability. There is experimental evidence, for instance, that enhanced thermal stability can result from interactions distributed throughout the structure (Hollien and Marqusee 1999).
Much less work has been done on psychrophiles, even though most of the biosphere consists of psychrophilic environments. Although proteins undergo cold denaturation, due to the temperature dependence of the hydrophobic effect, the emphasis is more on function than on structure—how, for instance, enzymes can function at temperatures where significant activation energies are difficult to obtain, and where the flexibility required for catalysis may be reduced. Interestingly, however, it has been observed that regions of psychrophilic proteins not involved in catalysis might be equally or even more rigid then their mesophilic homologs (Liang et al. 2004; Papaleo et al. 2006), possibly related to the reduced efficacy of the hydrophobic interactions.
Two different approaches have generally been used to look at thermostability in extremophiles. The first involves studying a specific set of proteins, such as a mesophilic and thermophilic homolog, examining in-depth the differences between these proteins. The advantage of this approach is the detailed understanding it can generate of the specific proteins under examination. The disadvantage is the uncertainty of extrapolating the insight gained to other proteins that may use quite different mechanisms for thermostability. The second approach involves a broader investigation of sequence and structure properties of a set of database proteins by examining the frequency of different residues or different interactions at different types of locations. The result is a broader survey of the ensemble of different methods for changing thermostability. The difficulty is estimating the effect of these different interactions. The effect of an increased number of exposed salt bridges, for instance, can only be assessed if we have an idea about how much they would contribute to the folding free energy difference, a matter of some disagreement (Hendsch and Tidor 1994; Elcock and McCammon 1997).
One method of bridging this gap is to use the more general properties of the set of database proteins to estimate interaction strengths. This can be done using the quasi-chemical approximation first applied to proteins by Miyazawa and Jernigan (1985). They postulated that the number of any given type of interaction would be proportional to the Boltzmann factor of the strength of that interaction. While many of the assumptions in their analysis are unlikely to be strictly true, other investigators have established justifications for the Boltzmann-like distribution of interactions based on evolutionary considerations (Finkelstein et al. 1995a,b). The advantage of this approach is that one can look over a large database of structures and derive general principles, including estimates of the strength of temperature-dependent interactions, complementing the other approaches that have been developed.
In this study we apply the quasi-chemical approach of Miyazawa and Jernigan (1985) to four different databases of proteins, psychrophiles, mesophiles, thermophiles, and extreme thermophiles. We observed trends that seem to highlight the packing interactions in thermophiles and extreme thermophiles, with a more modest role for salt bridges and other charged interactions. We also observed trends with the psychrophilic proteins consistent with less compact structures.


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