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September 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.MARIO CHIPI A/K/A CARLOS BATCAIL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1210.
Submitted November 26, 2007
Before Judges Stern, Collester and Fisher.
In this appeal, we consider whether defendant was deprived of the effective assistance of counsel when his trial attorney failed to seek a Wade*fn1 hearing regarding the victim's identification of him at a showup. We remand for further proceedings.
The record reveals that on April 28, 2005, Fernando Montalvan was walking on Bergenline Avenue near 45th or 46th Street in Union City. Montalvan later testified that he was holding $5 in one hand, with the intention to buy a telephone calling card, and $200 in the other. A man approached, saying "[g]ive me all the money that you have there with you." Montalvan testified that he gave the man the $5 and put the money in his other hand in his pocket.
In response to the prosecutor's questions at trial, Montalvan testified that he pushed the man away and ran across the street. When asked whether he saw a knife, Montalvan testified that he and the man struggled for some two or three minutes before he was able to free himself and cross the street. In further probing by the prosecutor, during which objections to the leading nature of the examination were initially sustained, Montalvan provided this explanation of the physical encounter:
Q: When you say like this, you're moving your arms. Would you -- how did he -- did you put his arms around your body?
A: Yes. Like this as I was going like this.
Q: Were you injured during this?
A: No. He was just pinching me with something. He scratched me with something.
Q: Did you see what he scratched you with?
A: Whatever he was holding, a knife.
Q: Were you able to see what he was holding?
A: I felt that it was a knife. I didn't see it.
Montalvan acknowledged he was not injured and refused medical attention. He also testified that, as he and the perpetrator separated, the latter requested that Montalvan "[c]ome here[,] I'm going to give you the money back." Montalvan told him to "[k]eep it," and entered a nearby liquor store where he telephoned the police.
Officer Carlos Gonzalez of the Union City Police Department responded. Over the course of the next fifteen minutes, Montalvan spoke of what had occurred and described the perpetrator as a Hispanic male, possibly of Cuban descent, with a black ponytail, who was wearing a black coat, white tee-shirt and blue jeans. This description was forwarded to other officers as Officer Gonzalez drove Montalvan around the area looking for the culprit.
About the same time, Officer John Puente of the Union City Police Department responded to a call to go to Bergenline Avenue and 52nd Street. There he observed a man fitting Montalvan's description of the culprit; the man was being detained by an undercover detective of the West New York Police Department. Officer Puente testified that he took the detained man -- the defendant -- in custody and handcuffed him prior to obtaining Montalvan's later identification of defendant as the culprit. According to Officer Puente, this process took approximately five to ten minutes.
In response to a call, Officer Gonzalez took Montalvan to the intersection of Bergenline Avenue and 52nd Street. Montalvan testified that he was told by the police, presumably Officer Gonzalez, that "[w]e have captured the guy." When they arrived at 52nd Street, Officer Puente already had the handcuffed defendant in custody. Montalvan remained seated in Officer Gonzalez's vehicle; defendant remained outside, approximately fifteen feet away. Viewing defendant in an area lit only by street lights, Montalvan positively identified defendant as the man who robbed him.
As a result, defendant was charged with first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2).
During the trial, the jury heard testimony from Montalvan, Officers Gonzalez and Puente, and a third police officer. At the trial's conclusion, defendant was acquitted of armed robbery, but found guilty of second-degree robbery. He was also acquitted of the other charges.
Defendant was sentenced to a thirteen-year discretionary extended term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In this appeal, defendant raises the following arguments for our consideration:
I. THE "SHOW-UP" PROCEDURE USED BY THE POLICE IN THIS CASE WAS IMPERMISSIBLY SUGGESTIVE AND DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING ON THE ISSUE OF THE SUGGESTIVENESS AND RELIABILITY OF THE OUTOF-COURT IDENTIFICATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I ¶¶ 1, 10 (Not Raised Below).
A. The Identification Should Have Been Excluded.
B. Trial Counsel Was Ineffective in Failing To Request a Wade Hearing.
(Partially Raised Below).
A. The Imposition Of An Extended Term Was Improper.
B. The Case Should Be Remanded Pursuant To State v. Pierce.
We conclude that the issues raised in Point I cannot adequately be resolved absent the conducting of an evidentiary hearing into defense counsel's reasons for failing to request a Wade hearing. Regardless of the determination on the effectiveness-of-counsel issue, the trial court shall hold a Wade hearing to complete the record. In State v. Quezada, ___ N.J. Super. ___ (App. Div. 2008), we recently held that a claim of ineffective assistance of trial counsel, based on the failure to raise a legal claim, could be remedied by the raising of the issue on direct appeal. See also State v. Adams, 194 N.J. 186, 201 (2008) (need to develop and "present a proper record" to consider the issues before us). The judge shall make appropriate fact findings and conclusions.
We find insufficient merit in Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also conclude, with regard to Point III, as the State concedes, that defendant's sentence was rendered in a manner inconsistent with State v. Pierce, 188 N.J. 155 (2006). Accordingly, we vacate the sentence imposed and remand for resentencing based on the principles set forth in Pierce. In light of this disposition, we do not deem it either necessary or appropriate to reach any of defendant's other arguments regarding the sentence imposed.
The matter is remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
FISHER, J.A.D., concurring.
In this appeal we have considered whether defendant was deprived of the effective assistance of counsel when his trial attorney failed to seek a Wade*fn2 hearing regarding the victim's identification of him at a showup. As concluded in the per curiam opinion, the trial judge must hereafter conduct both a Wade hearing and a hearing to examine defense counsel's decision not to seek a Wade hearing. Because our decision promotes a sense of fairness to the parties, who will now have an opportunity to expand upon the points raised, and fosters the interests of judicial economy, by providing a more rapid resolution of the ineffective-assistance-of-counsel argument than would occur if reversed for a future post-conviction relief petition, I join in the court's decision to remand for that hearing, although, for the reasons hereafter expressed, I harbor doubts about whether there could be a principled reason for defense counsel's failure to request a Wade hearing in this case. It goes without saying that I do not join in my colleague's concurring opinion.
My view of defendant's claim that he was deprived of the effective assistance of counsel, is informed by the way in which we should look at the out-of-court identification that was used to convict defendant.
The due process guarantees of our federal and state constitutions, at their very core, require a criminal justice system designed to generate reliable determinations. As a result, it has long been understood that due process concepts prohibit the use of identification evidence produced by events that are "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968), because, in the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice," Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed. 2d 1199, 1204 (1967).
The "vagaries of eyewitness identification," as explained by Justice Brennan in his opinion for the Court in Wade, are "well-known," and "the annals of criminal law are rife with instances of mistaken identification." 388 U.S. at 228, 87 S.Ct. at 1933, 18 L.Ed. 2d at 1158. "A major factor" contributing to mistaken identification has been "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." Ibid.
Since eyewitness testimony plays an influential role in many criminal prosecutions, the law insists upon a heightened concern about the reliability of such evidence. This deepening concern is warranted particularly because, as our Supreme Court has recognized, empirical studies now suggest that juries "tend to place great weight on eyewitness identifications, often ignoring other exculpatory evidence," State v. Cromedy, 158 N.J. 112, 120-21 (1999), and because the degree to which a witness expresses confidence in an identification tends also to be unduly valued by juries, see Jessica Lee, No Exigency, No Consent: Protecting Innocence Suspects From the Consequences of Non-Exigent Show-Ups, 36 Colum. Hum. Rts. L. Rev. 755, 772-74 (2005). As recently summarized by our Supreme Court, "[e]yewitness identification can be the most powerful evidence presented at trial, but it can be the most dangerous too." State v. Delgado, 188 N.J. 48, 60 (2006). This understanding has caused the Court to conclude that misidentification is now "the single greatest cause of wrongful convictions in this country." Ibid. See also Timothy P. O'Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L. Rev. 109 (2006); Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523 (2005); Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions, 51 Vill. L. Rev. 337 (2006); Ruth Yacona, Comment, Manson v. Brathwaite: The Supreme Court's Misunderstanding of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006). As a result, "our courts are obliged to utilize great care in the application of the governing principles in order to prevent an accused from being convicted on the basis of unreliable eyewitness evidence." State v. Henderson, 397 N.J. Super. 398, 416 (App. Div.), certif. granted, 195 N.J. 521 (2008).
The showup has proven to be one of the most troubling types of identification techniques used by police. In a series of cases, starting with the 1967 decisions in United States v. Wade and Stovall v. Denno, the Supreme Court developed what is known as the "totality of the circumstances" test as the means for guarding against this potentially misleading type of evidence.
In Stovall v. Denno, supra, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199, decided the same day as Wade, the Court considered the suggestiveness of a handcuffed defendant being brought to a hospital room to be viewed by a gravely-injured victim. The Court held that this process was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny the defendant due process of law, but was necessary because the only person who could exonerate the defendant was in the hospital, the hospital was not far from the jail, and no one knew how long the victim would live. Id. at 302, 87 S.Ct. at 1972, 18 L.Ed. 2d at 1206.
In 1972, the Court considered whether a showup different from that considered in Stovall v. Denno was unnecessarily suggestive and whether that fact alone warranted exclusion of identification evidence. In Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 382-83, 34 L.Ed. 2d 401, 411-12 (1972), a station house showup occurred seven months after the crime and was thus quite distinguishable from the exigent circumstances presented in Stovall, where the showup immediately followed the crime and the victim was gravely injured. The Court held that this lapse of time "would be a seriously negative factor in most cases," id. at 201, 93 S.Ct. at 383, 34 L.Ed. 2d at 412, but that the test remained "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive," id. at 199, 93 S.Ct. at 382, 34 L.Ed. 2d at 411.
And, in seeking to resolve the nagging uncertainty in the lower federal courts about the application of the "totality of the circumstances" test in the five-year interval since Neil v. Biggers, the Court emphasized in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977), that "reliability is the linchpin." The Court held that the factors to be considered in ascertaining the reliability of an identification -- "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation" -- had to be weighed against "the corrupting effect of the suggestive identification itself." Ibid. This remains the test required by the federal constitution.
In State v. Herrera, 187 N.J. 493, 500 (2006), our Supreme Court was asked to depart from the thirty-year old Manson rule and invited to hold that the state constitution imposed more stringent limits on the use of identification evidence derived from showups. The defendant in Herrera urged the Court to "confine the use of showups to circumstances where they are absolutely necessary and are conducted in a fair manner." Ibid. There, the victim was seated in his car waiting for traffic to pass when approached by a man on a bicycle who asked for money and then assaulted him. When the victim regained consciousness, his car was gone. The defendant was apprehended, and the police brought the victim to a hospital emergency room where the defendant was present; he entered the emergency room, looked around and identified the defendant, who was seated on a hospital bed six feet away. Id. at 497. The only other persons in the room were police officers and nurses. Ibid.
The defendant argued in Herrera that "the fallibility of eyewitness identifications cannot be ignored and that current studies of post-conviction DNA exonerations show that a large majority of those wrongful convictions involved eyewitness error." Id. at 499. In considering whether to adopt a standard that would bar the use of evidence of identifications resulting from showups, the Court recognized that other states have deviated from the Supreme Court's federal jurisprudence regarding showups. Id. at 500.*fn3 The Court, however, observed that the defendant failed to present this "scientific evidence" until the matter was on appeal, id. at 499, and concluded that "[u]ntil . . . convinced that a different approach is required after a proper record has been made in the trial court," it would continue to adhere to the Manson approach, id. at 504.
More recently, the Court again found it inappropriate to revisit the application of the Manson test for purposes of determining whether an out-of-court identification procedure passes state constitutional muster when the issue was not raised until the filing of supplemental briefs in the Supreme Court. State v. Comer, 194 N.J. 186, 200-02 (2008). Two members of the Court again urged, as they had in Herrera, supra, 187 N.J. at 528 (Albin, J., dissenting), that the time had arrived to adopt a rule that precludes "highly suggestive identification procedures . . . except when necessary due to an exigency." 194 N.J. at 211 (Albin, J., concurring).
Although, like Herrera, Comer may be a harbinger of future change,*fn4 I recognize that we remain bound to consider the sufficiency of the showup identification that occurred here through the application of the Manson "totality-of-the-circumstances" test. This test requires that a court first "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. In determining reliability, a court must consider the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154.]
The existing record demonstrates that defendant could have presented a persuasive argument in favor of suppression of the out-of-court identification. A showup, of course, is inherently suggestive. Additional factors demonstrate beyond doubt that the showup here was impermissibly suggestive. For example, the record before us reveals that defendant was handcuffed and in police custody when Montalvan made the identification. See State v. Herrera, supra, 187 N.J. at 504 (holding that showups are "by definition . . . suggestive because the victim can only choose from one person, and, generally, that person is in police custody"). And of particular significance is the additional highly suggestive fact that Montalvan was told by police before the showup that "[w]e have captured the guy," a comment that had a great potential to impact upon the reliability of the witness's identification. See Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed. 2d 402, 407 (finding suggestive the repeated statements of the police to the witness that "[t]his is the man"); State v. Delgado, supra, 188 N.J. at 60 (holding that "the dialogue between a law enforcement officer and a witness may be critical to understanding the level of confidence or uncertainty expressed in the making of an identification and whether any suggestiveness, even unconsciously, seeped into the identification process"). The first prong of the Manson test was undoubtedly present here.
In determining the reliability of Montalvan's identification of defendant as the person who robbed him, the trial judge must also consider Montalvan's credibility, as to which the existing record presents significant questions. For example, Montalvan's testimony as to the location of the showup differs from the officers' accounts in that Montalvan testified that the showup occurred at the police station, whereas the officers testified that it took place on Bergenline Avenue at 52nd Street.*fn5 It should also be of interest to the judge at the Wade hearing, which will follow today's judgment, that the State was unable to meet its burden regarding the armed feature of the offenses charged through the testimony of Montalvan. The jury's rejection of Montalvan's credibility when he claimed that the thief was armed*fn6 is a circumstance that could persuade the judge that Montalvan was also not credible when he identified defendant at the showup.
Since defense counsel never requested a Wade hearing to test the sufficiency of the out-of-court identification, we must consider whether defendant was deprived of the effective assistance of counsel as guaranteed by the federal and state constitutions.
When a defendant claims a deprivation of the effective assistance of counsel, courts generally apply the following test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984).]
This same test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 51 (1987).
Here, the existing record reveals substantial evidence of a deprivation of the effective assistance of counsel in this regard. Despite the impermissible suggestiveness of the showup that occurred here, defense counsel simply failed to seek a Wade hearing. Left to consider this question from what the present record suggests, I would be inclined to hold that this omission fell below "the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970). Just as one would expect a doctor, during a routine physical, to listen to the patient's heart with a stethoscope or to take a reading of the patient's blood pressure, so too should the demands of our profession require that, in the circumstances presented here, an attorney seek the suppression of an identification that occurred at what must be conceded was an impermissibly suggestive showup.*fn7
The record reveals without contradiction that, when apprehended, defendant was not in possession of a knife, which Montalvan suggested was utilized by the robber, or any other similar object, and was not in possession of any other evidence linking him to the crime. Since the only evidence linking defendant to this crime was Montalvan's identification, counsel failed to strike at the heart of the State's case when he failed to seek suppression of that evidence. This failure was, in my view, inexplicable and, if we were limited to a consideration of the existing record, I would be inclined to conclude that the first prong of the Strickland/Fritz test has been met. However, like my colleagues, I believe that fundamental fairness to the parties requires that we permit the matter to be examined further at an evidentiary hearing.*fn8
The second prong of the Strickland/Fritz test requires a showing by defendant that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Here, absent further evidence that may be forthcoming in the remand proceedings, I am satisfied that, if defense counsel had sought a Wade hearing, defendant would have had a reasonable chance of having the evidence excluded. The fact that the showup was impermissibly suggestive, which cannot be disputed, would have left the trial judge with the opportunity to determine, by way of the Manson test, whether the procedure nevertheless resulted in a reliable identification. I do not presume to know how the trial judge would have ruled on this question since no hearing was ever conducted.*fn9 But, when viewing the existing record, I would be inclined to conclude that counsel's omission deprived defendant of a reasonable opportunity to obtain suppression of evidence relating to this impermissibly suggestive out-of-court identification. Notwithstanding those views, I agree with my colleagues that a final determination on this issue must await the results of the evidentiary hearing that we have now mandated.
In short, our solution to the issues presented, which is consistent with our approach in other cases, see State v. Johnson, 365 N.J. Super. 27, 37 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004), has the salutary effect of avoiding appellate speculation at what would have been the results of a Wade hearing in this case had it been requested by defense counsel, as I believe it should have,*fn10 while also providing a far more expeditious resolution of the unexplored issues without the delay normally caused by postponing the issue to a future PCR application. In this way, should there be any future appeal, our remand will provide us with the factfinder's view of the credibility of the witnesses and his view of the reliability of Montalvan's identification of defendant when weighed against the "corrupting effect of the suggestive identification itself." Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253,
53 L.Ed. 2d at 154. See State v. Henderson, supra, 397 N.J. Super. at 415.
For these reasons, I join in the judgment of the court.
COLLESTER, J.A.D., concurring.
In joining the per curiam opinion, it goes without saying that I do not join in my colleague's concurring opinion. Since we both agree that the matter should be remanded for further hearing, it is not necessary to express my different view as to what is or should be the law regarding exigent showups or field identifications. However, I must state my disagreement with my colleague's finding that the trial record "reveals substantial evidence of a deprivation of the effective assistance of counsel" for not requesting a Wade*fn11 hearing. The reason or strategy by trial counsel for foregoing Wade lies outside the record and will be considered on remand. What the record does show is that what the defense presented was not that the wrong person was identified but rather that the criminal event never occurred. Obviously, the issue whether defendant received ineffective assistance of counsel is to be determined by the remand judge under the Strickland/Fritz standard independent of any expressed or implicit opinion by us. Finally, I also distance myself from the suggestion that the jury did not find the victim credible. The unassailable fact is that the jury - the factfinder - convicted defendant of robbery based on his testimony.
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Bonnie ^O^
This is a family salad we have enjoyed for many years, especially when lettuce was not available. You will love the clean fresh taste. Enjoy!
Photos are my own, and so is this humble recipe.
Photos are my own, and so is this humble recipe.
Featured Pinch Tips Video
- 1
- large bunch of washed curly parsley, chopped very fine
- 3 or 4
- large tomatoes, diced
- 1
- lemon juiced with some pulp
- 1
- bunch of slim green onions, chopped fine
- 1/4
- cup extra virgin olive oil
- salt to taste
Directions Step-By-Step
1Wash the curly parsley and drain it. Blot with paper towels. Remove the stems. Chop very fine by hand.
4Mix lemon juice, olive oil and salt and pour over the salad, toss to mix thoroughly. Refrigerate overnight to blend flavors. Enjoy!
About this Recipe
Course/Dish: Other Side Dishes, Other Salads
Dietary Needs: Vegetarian
Other Tag: Quick & Easy

subset: commoncrawl


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A redbrick pub with attractive stonework prominently situated on the busy A6 right opposite the access road to Stockport station. It is believed that Robinson's Brewery may still have plans to resurrect this one.
Recording the slow, sad death of the British pub
A redbrick pub with attractive stonework prominently situated on the busy A6 right opposite the access road to Stockport station. It is believed that Robinson's Brewery may still have plans to resurrect this one.
A relatively modern opening on the town's Market Place, previously called the Academy, that appears to have had a chequered career.
(My own picture)
An attractive rural pub that has for a long been a prominent landmark on the A59 east of Preston. The fact that Robinson's have removed their signgage suggests they have no plans to reopen it themselves, but it's hard to believe that a pub cannot be viable in this location.
(My own picture)
A medium-sized inter-wars pub situated next to a branch of the Stourbridge Canal. The image dates from 2009, but it was still disused in 2016, although showing signs of redevelopment.
A small stone-built pub left high and dry alongside the much widened Manchester Road dual carriageway.
An exuberant Edwardian pub right in the town centre that has now been closed for a number of years with little sign of redevelopment.
(My own picture)
A large roadside pub on the A41 south of Newport, that has obviously received considerable investment in the relatively recent past, but according to StreetView has been closed since at least 2009.
An impressive three-storey inter-wars estate pub on a housing estate on the south side of the town.
A three-storey pub in a rather sorry state, situated on a sharp bend on the A46 on the fringes of the Cotswolds.
A white-painted pub with a portico entrance prominently situated at a busy rural crossroads. Still looks very much open and inviting on StreetView.
A distinctive Edwardian pub in an Arts and Crafts style standing on a busy crossroads halfway between the town centre and the station. It appears to have been converted to housing, but still carries some elements of Greenalls signage.
(My own picture)
A large inter-wars roadhouse-style pub, still in Tetley livery, that seems somewhat incongruous well off the main roads in a West Lancashire village.
A typical large post-war estate pub on a road junction on the northern side of the town.
A double-fronted terraced pub, still in John Smith's livery, on the main road between Ashton and Stalybridge. Also note the impressive green tiling on the front of the still-open White Horse a few doors to the right.
A solid redbrick former Robinson's pub south of the town centre just off Hillgate. The pub was situated opposite the former Strawberry Studios and in the past has seem many famous musicians enjoying a drink. Closed in August 2016 and still open on StreetView.
(My own picture)


text:
If anyone is interested in buying homes, town houses, condos, and apartments in Arizona, especially the east valley region please get in touch with me at Show email. I would love to talk about what you might be looking for in a property. Thanks guys.
- May 5, 2014 2014-05-05 19:59:00
- Adona, AR


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Mexico -- One Plate At A Time With Rick Bayless
The Kernel Of DeliciousnessSeries Website »
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The variety of corns available in Oaxaca boggles the mind and the taste buds. Rick introduces us to Amado Ramirez Leyva who believes that corn, domesticated some 9,000 years ago in Mexico, is the basis of Mexican culture. From championing the protection of ancient varieties, to cooking and grinding it into masa for tortillas, Amado just might be the corn guru of Oaxaca. All manner of enticing snacks served at Itanoni, his Oaxaca restaurant, including memelas, tetelas, tostadas, and tacos, use carefully selected types of maiz criollo (native corn). Abigail Mendoza, a superb village cook from Teotitlan del Valle, transforms her handmade fresh blue and white masa into simple, yet amazing village-style tamales cooked in a traditional olla over a wood fire. Rick riffs on her yellow mole to make his own fresh empanadas on his kitchen griddle. With the skyline of Oaxaca as the back drop, chef and restaurateur Pilar Cabrera shows Rick her beautiful squash blossom tamales. Together they make sweet pumpkin tamales laced with Oaxacan chocolate that prove transcendent.
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Ariat® Men's Terrain Lace Boots
A super all-around boot, the Ariat® Men's Terrain Lace Boot provides comfortable support for riding, hiking, walking or running. Made of full-grain leather, it weighs only 12 ounces and offers fatigue-fighting stability with Ariat's ATS® footbed technology, a composite-fiber forked shank, a moisture-wicking footbed, EVA™ midsole and Duratread™ outsole. Read more...
This Ariat® Men´s Terrain Lace Boot delivers high-performance support for riding, running or walking. This is a great footwear choice for wearing around the barn or walking show grounds, too! It's a versatile boot constructed of full-grain leather with Ariat´s ATS® footbed technology for stability, comfort and grip. Weighing just 12 ounces, it won´t make you feel bogged down. It´s equipped with Ariat´s composite-fiber forked shank, a removable, moisture-wicking footbed and a durable but flexible Duratread™ outsole. The EVA™ midsole absorbs fatigue-causing shock. Order half size smaller than normal Ariat size.


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$ 12.00
These fitted pillow cases look so cute we've had requests to buy them individually. Just like the chevron pillow case that comes with the Miss Matched bed set this is for those who are pillow crazed just as much as we are. Perfect for adding additional pillows to any bed because can you really ever have too many pillows?
Sold Out.
This goes perfectly with our Always Enchanting set.


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October 4, 1983
CITY OF POUGHKEEPSIE, NEW YORK and THOMAS C. APOSPOROS, Plaintiffs,
POUGHKEEPSIE CABLEVISION, INC., Defendant, and THE NEW YORK STATE COMMISSION ON CABLE TELEVISION, Defendant-Intervenor
In this action for breach of contract, the City of Poughkeepsie, New York (the "City") is suing its cable television franchisee, Poughkeepsie Cablevision, Inc. ("Cablevision"), for damages stemming from its refusal to pay the full amount of the monthly franchise fee that is specified in Cablevision's contract with the City. In its answer, Cablevision has set forth, inter alia, the affirmative defense that both New York law and federal law have rendered illegal the contractual provision in question. The City now moves for summary judgment pursuant to Fed. R. Civ. P. 56. Cablevision and New York's State Commission on Cable Television (the "Commission"), which has intervened as a party defendant, cross-move, inter alia, for dismissal of the action for lack of subject matter jurisdiction. For the reasons discussed below, the Court concludes that the City's motion must be denied and the defendants' motion must be granted.
On December 17, 1965, the City and Cablevision entered into a contract giving Cablevision a franchise to provide cable television services within the City for a period of twenty-five years. In return, Cablevision agreed to pay the City 5% of its gross receipts from its customers within Poughkeepsie. In 1970, the contract was amended to incorporate a series of yearly increases in the franchise fee payments, which were to culminate in January 1974 in a 7% fee. Under the amended contract, this 7% fee was to remain in effect until the end of the term of the franchise on December 17, 1990.
However, in 1972, both the federal and New York State governments promulgated rules regulating the maximum fee a cable television franchisor could charge its franchisee. First, the Federal Communications Commission (the "F.C.C.") limited franchise fees to a maximum of 3% of a franchisee's yearly gross revenues. 36 F.C.C.2d 143 (1972), codified and hereinafter referred to as 47 C.F.R. § 76.31 (1982). This franchise ceiling was made immediately effective upon franchises granted after March 31, 1972. However, for franchises granted before this date, as was Cablevision's, the ceiling would become effective either at the end of the franchise term or 15 years after the date of the initial grant, whichever occurred first. 47 C.F.R. § 76.31. Thus, the effect of the regulation should have been to reduce Cablevision's fee from 7% to 3% on December 17, 1980, even though the parties' amended contract called for a continuation of the higher fee for another ten years.
At approximately the same time, the State of New York enacted section 818 of article 28 of the Executive Law, which became effective January 1, 1973.
That section provides:
Nothing in this article shall be construed to limit the power of any municipality to impose upon any cable television company, a fee, tax or charge, provided that any such fee, tax or charge when added to the amount payable to the commission pursuant to section eight hundred seventeen does not exceed the maximum amount permitted by applicable federal law, rules or regulations.
N.Y. Exec. Law § 818 (McKinney 1982). The reference therein to "section eight hundred seventeen" is to that provision which authorizes the State Commission on Cable Television to allocate its costs among the state's cable television companies in proportion to their "gross annual receipts" and to charge those companies accordingly. N.Y. Exec. Law § 817 (McKinney 1982). Thus, the effect of section 818 is twofold: first, it limits the cable franchise fees charged by a municipality to the maximum amount allowable under the federal law; second, the statute requires the municipality to reduce the maximum amount by whatever amount is assessed and charged to the franchisee by the Commission. The second restriction was made effective on all franchises, including Cablevision's, as early as January 1, 1973.
Shortly after Cablevision reduced its monthly franchise fee payments in accordance with the federal and state provisions, the City brought this action seeking both damages for breach of contract and a declaratory judgment that the defendant has breached its contract, that the contract and its specific terms are legally valid, and that the New York law on which Cablevision rests its affirmative defense is unconstitutional because it impairs the obligation of contracts in violation of article I, section 10, clause 1 of the U.S. Constitution.
The City asserts that this Court has jurisdiction under 28 U.S.C. § 1331 (Supp. V 1981), which provides that "the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Specifically, in its statement of jurisdiction, the City alleges that a federal question is raised under the "contracts clause" of the Constitution because New York's law adopting the federal limitation on franchise fees impairs its contractual relationship with Cablevision. Cablevision and the Commission respond that the City's complaint is a common law action for breach of contract that is not based on federal law and that this Court, therefore, does not have the jurisdiction to hear the City's complaint.
The elementary requirement that must be met before federal jurisdiction may be invoked is that the federal question in the complaint must be well pleaded. Put differently, the complaint must, on its face, state the federal law under which relief is sought.
It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution.
Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908).
Those words, written in 1908, could very well have been written about the instant case. In Mottley, the railroad had agreed to issue lifetime passes for free travel to the Mottleys in settlement of a tort claim. Following passage of federal legislation prohibiting such free passes, the railroad ceased issuing them and the Mottleys brought suit in federal court alleging that their constitutionally protected contract rights had been violated by the federal law. The Supreme Court held that the district court did not have jurisdiction to hear the Mottleys' suit because "a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution." Id.
The parallel between Mottley and the instant case is striking. The City is suing Cablevision for breach of contract and seeks to invoke federal question jurisdiction by contending that Cablevision will raise as an affirmative defense a state law that incorporates a federal regulatory restriction on franchise fees. The City asserts that the state law, but not the federal regulation incorporated therein,
is unconstitutional because the law impairs Cablevision's obligation to pay the full 7% franchise fee. This, under Mottley, the City cannot do because its complaint does not state on its face the federal grounds on which its claim for relief rests. The principles laid down in Mottley have been reaffirmed on many occasions. See, e.g., Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 129, 39 L. Ed. 2d 209, 94 S. Ct. 1002 (1974) (per curiam); Gully v. First Nat'l Bank, 299 U.S. 109, 113, 81 L. Ed. 70, 57 S. Ct. 96 (1936); New York v. White, 528 F.2d 336, 338 (2d Cir. 1975).
The City also seeks a declaratory judgment that its contract with Cablevision is legally valid and that the New York law on which Cablevision rests its affirmative defense is unconstitutional. These requests must also be denied because the Court has no jurisdiction to rule on the validity of the contract or the constitutionality of the law.
The Declaratory Judgments Act, 28 U.S.C. § 2201 (Supp. V 1981), (the "Act") empowers the federal courts to grant declaratory judgments. The Act provides, in pertinent part, that "in a case of actual controversy within its jurisdiction. . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration . . . ." Id. (emphasis added). Relying on Mottley, the Supreme Court has held that the Act allows relief to be given even where no immediate enforcement is asked, but that this extension of the courts' power was not intended to expand their jurisdiction. Thus, where there is no subject matter jurisdiction, the courts cannot grant declaratory relief. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 94 L. Ed. 1194, 70 S. Ct. 876 (1950). Put simply, "an action for declaratory judgment may be brought in federal court ordinarily only if there would exist a basis for federal jurisdiction in a coercive action between the two parties." Warner-Jenkinson Co. v. Allied Chemical Corp., 567 F.2d 184, 186 (2d Cir. 1977); see also Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323, 327 (2d Cir. 1982). Since, as noted above, this Court lacks subject matter jurisdiction over the breach of contract claim, it necessarily lacks jurisdiction to issue a declaratory judgment on the same matter.
In sum, the plaintiff has failed to assert a claim arising under the Constitution or federal laws. Consequently, this action must be dismissed for lack of subject matter jurisdiction.
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Henry's Birth Story...
Thursday May 2nd I had my 41 week midwife appointment and learned that I was still 0 cm dilated but 100% effaced. They checked my amniotic fluid and it was low. My midwives talked and one wanted me to go the hospital immediately to get induced and the other said I should wait until Monday. So I chose to wait.
I went home and immediately starting having contractions. I thought I should get some sleep so I went to bed at 10pm. At 11:45pm or so I woke up to pee and noticed a gush of fluid. My water had broken, but it had tons of blood in it. I called my midwife and she made us go to the hospital.
We got to the hospital at 12:15am and I was check and indeed my water had broken. The blood she thought was leftover my cervical exam. After for contracting for a couple of hours in the hospital, I noticed I was gushing meconium with my waters. They told me that my because of the meconium, that I would not be able to hold my baby skin to skin or be allowed to have dealyed cord clamping because the nicu team would need to clear his airways immediately. They also said if my labor was longer than 18 hours I would need IV drip antiobiotics because of the meconium.
So when I got to the hospital I was dialted to 2cm. I was happy about the progress since just that afternoon I was 0cm. However after 13 hours of contracting on my own, I got rechecked and I was just barely at 3cm. My midwife said we would have to induce.
We started the lowest dose of pitocin and I was doing great. Then they upped the dosage and the midwife said she would check my progress at the 17 hour labor mark. The contractions got much much worse when they upped my dosage. They were lasting for 5-8 minutes with no real dip in peak like before. The nurses couldn't believe it. Everyone started to get very worried for me and we discussed narcotics or epidural.
I thought for sure that at the 17 hour mark I would be more dilated especially witht those crazy contractions. I decided that if I was 8cm or more I'd continue natural. If I was 5-6cm or more, I'd consider narcotics. And if I had made no progress I would get and epi. She checked me and I was at a very tight 4, more like 3.5cm. I screamed and cried and said I needed the epidural. Once I made that decision, I became very emotional and my doula and midwife talked me thru the decision saying I did experience natural labor and even a harder one than most natural birthing moms. And that even if I had done a home birth or birth center birth, that I would have been one of the 3% of ladies that are transferred because my body was just not cooperating. That helped and then I was just focused on getting that epi.
The anasthesioligist was fast and good. He heard my painful moaning, which I know was crazy loud and decided to give me an extra dose of pain meds in my spinal. About 15 minutes later I didn't feel my contractions. He gave me a great epidural because I could still move my toes and feel the pressure of the contractions but not the pain. She checked me about 20 minutes after the epi and I was already dilated to 7.5 cm. I just needed something to relax my cervix I guess. The epi made me shake and tremble horribly but I finally took a nap.
I woke up and they said I was dilated 10cm and at a station +2 and time to start pushing. This was getting close to the 24 hour mark where they transfer you for a c-section, plus henry was having heart decels from cord compression. So they said I needed to be an effective pusher and get him out fast. Well I listened and since I could feel a bit down there it was easy to know how to push.. I pushed 4x and pushed his entire body out in one push. Apparently I pushed so hard that he flew to the opposite side of the bed. Henry Arnone Vaughan was born on May 3rd at 8:46pm. He weighed 6lbs. 7oz and was 18.5 inches long. His apgars were 8 and 9.
He went immdiately to the nicu crew inside my room. I heard they suctioned quite a bit out of him. They determined he was SGA (small gestational age) and because of that there was a blood sugar protocol they had to follow before I could feed him.
I had a 4th degree tear and my midwife said she had never seen anything like it and didn't feel comfortable repairing it. So she called a consutling physician and I waited 2 hours before he got there to stitch me up. I bled through 35 surgical towels and they told me I lost a lot of blood.
The next day they decided I had to have a blood transfusion. The heplock for the transfusion really pissed me off. That's a whole other story..
But Mr. Henry is doing great. His blood sugar is normal now and he LOVES to eat. The longest he has gone to eat is right now...which has been 45 minutes. We are home now and so thankful for that and that we are both healthy. Justin has been so great thru all this.


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Virgin Media to supply new build homes
VIRGIN Media broadband should be available to more new-build homes in England and Wales, as the ISP enter into partnership with the Home Builders Federation (HBF).
Members of the HBF will be able to take advantage of extra technical guidance, free initial site assessments, and a rebate scheme to cover the cost of any work required.
The ISP also say they'll be able to offer exclusive service discounts to people moving into the resulting homes.
At the same time, BT have confirmed the first nine locations to benefit from plans to expand their fibre to the premises (FTTP) network - although they're focusing for now on small business rather than residential connections.
Project Lightning
The partnership with the HBF appears to be another sign of Virgin Media's confidence in Project Lightning - and their determination to provide "a major alternative to BT and Openreach".
Project Lightning itself is far more ambitious than previous expansion efforts, committing to add another four million premises to the network nationwide, rather than tens of thousands here and there at a time.
While they were initially criticised for saying they planned to focus on filling in holes in their network, earlier this year Virgin announced their intentions to connect smaller, less urban, communities.
Houston, Crosslee, Craigends and Brookfield, Renfrewshire
Kilmacolm, Inverclyde
Kirknewton, West Lothian
Hartley Wintney and Phoenix Green, Hampshire
Lightwater, Surrey
Oakley, Dorset
Ratby, Leicestershire
Stoke Poges, Buckinghamshire
Wilsden, West Yorkshire
The first 10, named in May, will be among the first of at least one million FTTP connections Virgin Media are promising to have in place by 2019.
Then last week, they announced that as well as adding 45,000 properties to their network in Chester, they'd be hopping over the border to make Wrexham the first place in north Wales to be Virgin-enabled.
New build ambitions
Perhaps, given that Project Lightning was originally supposed to help plug the holes in their network as well as expand it, Virgin's decision to start connecting new build developments isn't all that surprising.
A large number of the homes that don't have Virgin Media when those surrounding them do are in developments that simply didn't exist when the original cable network was built.
Even so, Virgin Media still require considerable evidence of high demand in an area before they'll consider going back to fill in the gap.
But it costs less, and it's much easier, to lay the cables required to connect new homes at the building stage - and as the HBF's Stewart Baseley points out, "being able to equip today's modern, high quality housing with 21st century connectivity is a key consideration for builders".
So HBF members - responsible for around 80% of the new homes being built in England and Wales - who register a development with Virgin Media will get a free initial site assessment, technical help and a dedicated site liaison officer and construction inspector.
They'll also get all the equipment free of charge as well as being able to claim a rebate on the cost of the construction and installation work.
The competition
Virgin's decision to branch into new build developments may also be partly down to the fact that earlier this year BT Openreach entered into an agreement with the Government and the HBF to connect suitable developments to their FTTP network free of charge.
Those projects will need to contain more than 250 properties and be within 4.5km of the existing Openreach fibre network.
As long as they're within that distance, smaller developments can at least benefit from the offer of a joint funding option, but those further away from the existing network are still likely to miss out, as a result of the excess construction charges they'd face.
Other homes should start to see the arrival of ultrafast broadband over the Openreach network from next summer, when BT begin to roll out G.fast - but their more immediate plans to extend their FTTP network are centred on getting more businesses connected.
The first places to benefit will be high streets, science and business parks, and areas that don't already have access to the Openreach fibre network in Bath, Bradford, Bristol, Liverpool, Manchester and Salford - and in Westminster, Holborn, and the City, in London.
BT say that "hundreds of thousands" of nearby residential buildings will eventually gain from these projects - possibly because they'll be close enough to a truly ultrafast network to be near the front of the queue when G.fast arrives.
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We aim to provide free reviews and comparisons of consumer products and to keep our editorial content as objective as possible. To keep the site free, we are paid by some providers when new customers take products after they've clicked on our links. We don't allow our editorial content to be affected by those links, however we may not include all of the products available in the market. Finally, we do not submit or process any applications for any products or services and we cannot guarantee that any product or service listed on this website will be available to you. Credit providers make the final decision on whether an application for credit will be accepted.
If you would like to get in touch with us you can contact us here.


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£59,950 Offers Over
Let's Move presents to the market this traditional preferred top floor flat, located in the heart of the town centre & close to all amenities. Internally the subjects are in a neutral decor throughout and boast good size living space all on the level, suited to both young & elderly purchasers alike.
A secured entry system opens to the well maintained communal hallway, stairs lead to the top floor landing. A timber hardwood door opens to the welcoming reception hall. There is new carpets laid and access can be gained to all apartments. Particular mention must be made to the open lounge kitchen. This area within the flat offers a good living space and is bright with a d/g bay window to the front. To the rear is where the modern breakfasting kitchen is found. There is a 4 ring gas hob with extractor hood above and oven/grill below, in addition there is a space for a fridge freezer & plumbing for a washing machine. There is a range of wall and floor standing units complete with complimentary worktops and splash back above. The bedroom is a fabulous size double with feature mirror. There is a d/g window to rear and a walk-in cupboard which house's the combi boiler. To complete the accommodation the internal bathroom enjoys a white 3 piece suite with shower over the bath and is fully tiled. There is a common courtyard to the rear which is maintained by a resident. The courtyard has a slabbed patio and a lawned area with a drying pole and is also enclosed. Further features include d/g & g.c.h.
Hamilton town centre is a short distance which offers a comprehensive range of amenities which include excellent supermarket and retail shopping, transport and recreational facilities. For the commuter there is a 1st class railway and bus link to Glasgow. There is also easy access to the M8/M74 which connects East to Edinburgh, West to Glasgow and all surrounding districts.
Reception Hall
Open Lounge Kitchen 13'6" x 10'2" (4.11 x 3.10m)
Bedroom 17'3" x 15'5" (3.26 x 2.23m)
Bathroom 5'7" x 5'4" (1.7m x 1.62m)
Travel Directions
From the Agents office continue along Cadzow Street, take the first left onto Auchingramont Road, continue to the T junction and turn left onto Union Street. At the traffic lights turn right onto Auchincampbell Street, then next on you left. At the traffic lights turn left then a sharp right into John Street. At the T-juntion turn right into High Partick Street.
This house description is based upon information supplied by the owner, or on behalf of the owner. These property particulars are produced in good faith and do not constitute or form part of any contract. s1homes do not take any responsibility for the accuracy of the information contained in this document.
If a property value displays '0', don't worry it just means no properties have been sold in that area during that time.
Sold house price data is supplied to us by the Registers of Scotland, a government department responsible for compiling and maintaining property registers, every month. There can be a delay of up to 3 months from when a property is sold to being recorded with Registers of Scotland. We provide house price data for your information only, we do not accept any liability for any errors. If you have noticed any incorrect information, please contact Registers of Scotland.


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Share your thoughts, win an iPod shuffle! - CLOSED
This giveaway is now closed.
The Winners Box
Final week winner: Bigdaddyc69 from Calgary, Canada
2nd week winner: Azhar Chougle from Mumbai, India
1st week winner: Oren J. Hayon (AngerBoy) from Dallas, Texas
Apple has launched the iPod shuffle, and iLounge is giving away three of them, one to each of three lucky iLounge forum members.
If your entry is randomly selected from all those received, we'll send you one of the three new 512mb units.
Entry is simple. Post a message containing your honest opinions of the iPod shuffle in the official iPod shuffle opinions thread in iLounge's new iPod Shuffle general discussion forum:
Post your message here:
Giveaway: The Official iPod shuffle Opinions Thread
Winners will be selected randomly with no regard to whether the opinions expressed are positive, neutral, or negative. Be honest, but only post once in the thread. Messages posted outside the thread - including messages in the comments box below - WILL NOT BE CONSIDERED. Only forum posts in the thread will qualify.
iLounge will select one winning entry per week for three weeks. Your chances of winning are highest in the first week, as all entries in the thread will be considered collectively after the first week. One entry per person. Duplicate entries will be disqualified. Good luck!
Official Rules
- No purchase necessary to enter.
- The iPod shuffle x3 giveaway will begin as of this posting.
- Deadlines for drawings: 1st week: Friday at 11:59 pm, February 4, 2005 2nd week: Friday at 11:59 pm, February 11, 2005 3rd week: Friday at 11:59 pm, February 18, 2005
- This giveaway is open to U.S. and international residents.
- Must be 18 years or older to enter.
- Void where prohibited.
- iLounge is not responsible for computer malfunctions, bugs or viruses, and causes beyond our control. iLounge has the right to terminate this giveaway at any given time without notice.
- All information submitted becomes the property of iLounge. iLounge will not release any personally identifiable information to any third party other than necessary to deliver the prize to winners, and identify the winners.
- The prize consists of (1 of 3) Apple iPod shuffles (512MB) valued at $99 each.
- Winner will be notified by email and announced here.
- Associates, employees, principles, or relatives thereof of iLounge are not eligible.
- All taxes are the responsibility of the winners.
- The prize selected does not imply or express any endorsement from the manufacturer or any other relationship with iLounge.
- iLounge reserves the right to modify these terms to comply with the laws of the State of California, to correct errors and omissions, or to ensure fairness as determined by iLounge. Such modifications, if any, will be posted at iLounge.
- Any attempt to manipulate, interfere with, or otherwise alter any entries, other systems or services of iLounge will disqualify all those implicated and subject them to prosecution in the State of California, United States and/or other jurisdictions.
- Your entry implies and expresses your agreement to these terms and your waiver of any other related rights you may have in any jurisdiction.
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RTSPShort for Real Time Streaming Protocol, a standard for controlling streaming data over the World Wide Web.
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United States District Court, E.D. California
June 13, 2014
MICHAEL VASILE, et al., Plaintiffs,v.FLAGSHIP FINANCIAL GROUP, LLC, et al., Defendants.
KIMBERLY J. MUELLER, District Judge.
On cross motions, plaintiffs Michael Vasile and Sally Ann Burt Kelsch and defendant Flagship Financial Group, LLC move to enforce a settlement agreement. Pls.' Mot. Enforce Settlement ("Pls.' Mot.") at 1, ECF No. 66; Def.'s Mot. Enforce Settlement ("Def.'s Mot.") at 1, ECF No. 70. Plaintiffs also move for attorneys' fees and costs. Pls.' Mot. Att'y Fees & Costs at 1, ECF No. 67. The court heard argument on May 23, 2014, with Anthony A. Gorman appearing for plaintiffs and Jere B. Reneer appearing pro hac vice for defendant. Plaintiff Kelsch was present at counsel's table.
For the reasons below, the court GRANTS IN PART and DENIES IN PART both motions to enforce settlement. Plaintiffs' motion for attorneys' fees and costs is DENIED.
Plaintiffs filed suit in November 2012, alleging several state and federal employment and whistleblowing claims. Compl. ¶¶ 3-148, ECF No. 1. After minimal motion practice, the parties successfully participated in the court's Voluntary Dispute Resolution Program and filed a notice of settlement. Notice of Settlement at 1, ECF No. 63. The court directed the parties to file dispositional documents by February 27, 2014. Minute Order, ECF No. 64.
On February 24, 2014, three days before the court-imposed deadline, plaintiffs informed the court that defendant was "already in breach of the settlement agreement" and that they therefore intended to file a motion to enforce settlement, including an award of attorneys' fees. Pls.' Notice of Status at 2, ECF No. 65. Plaintiffs then filed the instant motions. Defendant opposed, Def.'s Opp'n at 1, ECF No. 68, and simultaneously filed the instant countermotion, Def.'s Mot. at 1. Both parties filed replies, Pls.' Reply at 1, ECF No. 77; Def.'s Reply at 1, ECF No. 76, with plaintiffs' reply also serving as their opposition. Defendant did not separately brief the motion for fees.
"[A] district court has the equitable power to enforce summarily an agreement to settle a case pending before it." Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987) (citations omitted). "[A] motion to enforce [a] settlement agreement essentially is an action to specifically enforce a contract, " Adams v. Johns-Manville Corp., 876 F.2d 702, 709 (9th Cir. 1989), and the "court's enforcement power include[s] authority to award damages... [or] specific performance, " T.N.T. Mktg., Inc. v. Agresti, 796 F.2d 276, 278 (9th Cir. 1986).
"[T]he district court may[, however, ] enforce only complete settlement agreements." Callie, 829 F.2d at 890 (emphasis in original) (citations omitted). A complete agreement requires: (1) accord on all " material terms "; and (2) "the intent of the parties to bind themselves." Id. at 891 (emphasis in original). Intent is established "[i]f the record... show[s] that the [parties] had agreed to the settlement, or that the attorneys had authority to settle the suit and dismiss the action." See Harrop v. W. Airlines, Inc., 550 F.2d 1143, 1144 (9th Cir. 1977).
Plaintiffs argue defendant materially breached the agreement by failing to pay the agreed-upon sum by March 20, 2014.[1] Pls.' Mot. at 2. At present, plaintiffs have received no payment, and they thus move the court to either enforce the settlement or rescind it and permit the case to go to trial. Id. at 1. Defendant responds that by failing to comply with the dismissal, non-disparagement and non-disclosure provisions, it was in fact plaintiffs who breached the agreement. Def.'s Mot. at 5. It moves the court for "[a]n order dismissing the case pursuant to the parties' Settlement Agreement" or "[a]n order granting Defendant... damages, liquidated damages, and attorney fees pursuant to the Agreement." Id. at 2.
1. Jurisdiction
The court may properly exercise jurisdiction over the instant motions to enforce settlement. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Facebook, Inc. v. P. Nw. Software, Inc., 640 F.3d 1034, 1042 (9th Cir. 2011) (affirming district court's grant of motion to enforce settlement). Although "[a] claim for breach of... a settlement agreement, even if part of the consideration was dismissal of a federal case, will not provide the basis for federal jurisdiction, " this principle has no application where an action is already properly before the court and has not been dismissed. Glass v. Beer, No. 1:04-cv-05466-OWW-SMS PC, 2011 WL 1528471, at *1 (E.D. Cal. Apr. 20, 2011) (citing Kokkonen, 511 U.S. at 377). Here, the court's original jurisdiction has not been challenged, and the case has not been dismissed. Thus, the court may properly address the motions under its ancillary jurisdiction. See Kokkonen, 511 U.S. at 380-82.
The instant settlement agreement includes the following pertinent provisions:
1. [P]ayment [from defendant to plaintiffs] will be made within thirty (30) business days after the date on which the fully executed Agreement has been delivered to both parties (the " Execution Date ").
5. a PARTY MAY OBTAIN ATTORNEY FEES FOR ANY BREACH OF THIS Agreement....
7. Neither party will..., directly or indirectly, disclose the terms of this Agreement to any third person, except as necessary to effect its terms, [or] secure its enforcement....
8. The parties shall not make or publish... any disparaging remarks or comments in any form about or concerning any other party either personally or professionally.
10. The release, non-disclosure, and non-disparagement provisions... are material terms of this Agreement....
11. The parties agree that it would be impracticable... to ascertain the... actual damages caused by material breach of the confidentiality and non-disparagement provisions.... Therefore, ... in the event it is established by reasonable evidence that either Plaintiff has violated such provision, the breaching Plaintiff shall pay to [defendant]... a sum equal to [his or her] portion of the Settlement Amount....
12. In the event of any dispute or litigation among the parties... with respect to this Agreement, the unsuccessful party to such dispute or litigation shall pay to the successful party all costs and expenses, including, without limitation, reasonable attorney fees, incurred therein by the successful party.... For purposes of this Agreement, the term "successful party" shall mean the party which achieves substantially the relief sought, whether by judgment, order, settlement, or otherwise.
16. The parties agree to file with the federal court, within three (3) business days after the Execution Date, all appropriate papers necessary to seek and obtain dismissal with prejudice of the Pending Litigation, including all claims, counterclaims and pending motions.
Def.'s Mot., Ex. A ¶¶ 1-16 (emphasis in original), ECF No. 68-1. The parties do not dispute the validity of the contract formation or the parties' intent to be bound. Pls.' Mot. at 8; Def.'s Mot. at 5. Rather, in moving for enforcement of the settlement agreement, both parties necessarily assert that a valid, enforceable contract was formed. Thus, the court need only determine (1) whether the contract was materially breached, and if so, (2) by whom and (3) the appropriate remedy.
2. Contract Principles
California contract law governs the parties' dispute. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Def.'s Mot., Ex. A ¶ 18. Under California law, "there is no contract until there has been a meeting of the minds on all material points." Am. Emp'rs. Grp., Inc. v. Emp't Dev. Dep't, 154 Cal.App.4th 836, 846 (2007) (emphasis and internal quotation marks omitted). "Mutual intent is determinative of contract formation because there is no contract unless the parties thereto assent, and they must assent to the same thing, in the same sense." Id. (internal quotation marks omitted); accord CAL. CIV. CODE §§ 1550, 1565, 1580.
In analyzing "[m]utual consent[, courts apply]... an objective standard... to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings." Bustamante v. Intuit, Inc., 141 Cal.App.4th 199, 208 (2006) (internal quotation marks omitted). "[I]f the parties attach materially different meanings to their manifestations and... (a) neither party knows or has reason to know the meaning attached by the other; or... (b) each... knows or... has reason to know the meaning attached by the other, " "[t]here is no manifestation of mutual assent...." Merced Cnty. Sheriff's Emps.' Ass'n v. Cnty. of Merced, 188 Cal.App.3d 662, 676 (1987) (internal quotation marks omitted). "The basic principle governing material misunderstanding is thus: no contract is formed if neither party is at fault or if both parties are equally at fault." Id.
If a contract is validly formed, "a breach [is] defined as an unjustified or unexcused failure to perform all or any part of what is promised in a contract." Sackett v. Spindler, 248 Cal.App.2d 220, 227 (1967). However, "[t]he law sensibly recognizes that although every instance of noncompliance with a contract's terms constitutes a breach, not every breach justifies treating the contract as terminated." Superior Motels, Inc. v. Rinn Motor Hotels, Inc., 195 Cal.App.3d 1032, 1051 (1987). "California courts allow termination only if the breach can be classified as material, ' substantial, ' or total.'" Id. "[A] term may be material' in one of two ways: It may be a necessary term, without which there can be no contract; or, it may be an important term that affects the value of the bargain." Facebook, Inc., 640 F.3d at 1037; accord Sackett, 248 Cal.App.2d at 229.
Finally, "the modern trend of the law is to favor the enforcement of contracts, to lean against their unenforceability because of uncertainty, and to carry out the intentions of the parties if this can feasibly be done." Denver D. Darling, Inc. v. Controlled Env'ts Constr., Inc., 89 Cal.App.4th 1221, 1237 (2001) (alteration and internal quotation marks omitted). "[I]f the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires... the filling of some gaps that the parties have left." Id. (internal quotation marks omitted). "The usual and reasonable terms found in similar contracts can be looked to, ... and custom and usage may be resorted to in an effort to supply a deficiency if it does not alter or vary the terms of the agreement." Id. (internal quotation marks omitted).
3. Payment and Dismissal Provisions
Plaintiffs correctly note that under paragraph 1 of the agreement, defendant was required to make payment "within thirty (30) business days after the date on which the fully executed Agreement has been delivered to both parties (the Execution Date ')." Def.'s Mot., Ex. A ¶ 1. As the date of execution was February 5, 2014, the payment period elapsed on March 20, 2014. However, to date, defendant has not remitted payment. Thus, defendant has not complied with the written terms of the agreement.
Nonetheless, defendant is correct in asserting that plaintiffs first failed to comply with the agreement as written. Under paragraph 16 of the agreement, both parties were required "to file..., within three (3) business days after the Execution Date, all appropriate papers necessary to seek and obtain dismissal with prejudice of the Pending Litigation...." Def.'s Mot., Ex. A ¶ 16. When defendant sent plaintiffs a signed stipulation of dismissal on February 27, 2014, plaintiffs refused to countersign, despite the fact that more than three days had elapsed since the February 5th execution date. Id., Ex. C. Still awaiting payment, plaintiffs continue to refuse to dismiss the action.
Notwithstanding the parties' respective omissions, the court finds no breach to have occurred. When queried at argument why neither party had filed the proper paperwork within the allotted time, plaintiffs' counsel stated he mistakenly thought the parties had agreed to sign the necessary documents within thirty days, the same period in which defendant was to pay the lump sum. Defendant's counsel similarly conceded that he had not reviewed the dismissal provision closely and was initially unaware of the three-day deadline. Accordingly, the court understands the defense to concede the dismissal provision should provide for thirty days to properly reflect the parties' agreement. See Denver D. Darling, Inc., 89 Cal.App.4th at 1237. The parties should thus simultaneously remit payment and dismiss the suit.
Even if the parties had attached "materially different meanings [of a contractual term] to their manifestations and... neither party kn[ew]... the meaning attached by the other, " Merced Cnty. Sheriff's Emps.' Ass'n, 188 Cal.App.3d at 676, the term would not, for lack of a meeting of the minds, form part of the agreement. Id .; accord CAL. CIV. CODE §§ 1550, 1565, 1580. Where, as here, there is no provision that time is of the essence, such an omission does not prevent formation of a contract because the term is nonmaterial. Denver D. Darling, Inc., 89 Cal.App.4th at 1237; Gold Mining & Water Co. v. Swinerton, 23 Cal.2d 19, 27 (1943) ("[W]hen time is made of the essence of a contract, a failure to perform within the time specified is a material breach of the contract."); cf. Superior Motels, Inc., 195 Cal.App.3d at 1051.
4. Nondisclosure and Nondisparagement Provisions
Defendant also asserts that plaintiffs breached the nondisclosure and nondisparagement clauses of the agreement. The court finds, however, that plaintiffs disclosed terms of the agreement only "as necessary to effect its terms, [or] secure its enforcement...." Def.'s Mot., Ex. A ¶ 7. Plaintiffs' purported disclosure stated that a sum was to be paid before a certain date, Notice of Status at 2, but this information was necessary to explain to the court why the parties had failed to file dispositional documents as directed. Indeed, it is defendant who filed the complete settlement agreement on the docket. Def.'s Mot., Ex. A. Plaintiffs did not disclose extraneous information; therefore, there was no breach in this respect.
Similarly, the court finds plaintiffs did not breach the nondisparagement clause. California courts have observed that "[t]he term disparage' is itself somewhat ambiguous, " Vivian v. Labrucherie, 214 Cal.App.4th 267, 277 (2013), but have "defined it variously as to lower in rank or reputation, ' to depreciate by indirect means (as invidious comparison): speak slightingly about', [sic] treat or speak of with disrespect: belittle', [sic] and bring discredit upon, '" id., 214 Cal.App.4th at 277 (citations omitted). Even if a statement is disparaging, it may be protected under California's litigation privilege. Id. at 276-77.
"California's litigation privilege applies to communications: (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Avid Life Media v. Infostream Grp., Inc., No. CV 12-09201 DDP (AJWx), 2013 WL 6002167, at *5 (C.D. Cal. Nov. 12, 2013) (quoting Wentland v. Wass, 126 Cal.App.4th 1484, 1490 (2005)). "[W]hether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege.'" Id. (quoting Wentland, 126 Cal.App.4th at 1492). "These policies include the promotion of full and truthful testimony, zealous advocacy, free access to the courts, and the finality of judgments." Id. (citing Wentland, 126 Cal.App.4th at 1492).
Here, plaintiffs' notice informed the court that "another action ha[d] been filed against Defendant... [in this district] for very similar unlawful acts[, ] including... fraud and breach of fiduciary duty, as alleged in the instant Plaintiffs' pleadings...." Notice of Status at 2. The court finds this to be an objective statement of fact rather than a disparaging statement. Cf. City of Costa Mesa v. D'Alessio Investments, L.L.C., 214 Cal.App.4th 358, 378 (2013) ("[T]he plaintiff seeking damages for [product disparagement]... must carry the burden of proving that the disparaging statement is false.'" (quoting Guess, Inc. v. Superior Court, 176 Cal.App.3d 473, 479 (1986)).
However, even assuming an objective statement of fact may be construed as disparaging, the court does not find the contested language to violate the nondisparagement clause. Rather, even as plaintiffs' counsel conceded reference to the other case was unwise, the statement is protected under the litigation privilege. See Wentland, 126 Cal.App.4th at 1490. Similar to the statement that allegedly violated the nondisclosure clause, this statement was made to explain imminent noncompliance with the deadline for dispositional documents. Additionally, it was made by plaintiffs in the course of the instant litigation. Thus, it meets each of the Wentland elements. Id.
Further, the court finds the statements to comport with "the policies underlying the privilege." Id. at 1492. First, because the court requires parties to divulge information concerning potentially related matters, see Local Rule 123(b), protecting such a statement encourages "full and truthful testimony" before the court, Wentland, 126 Cal.App.4th at 1492. Additionally, in light of what would otherwise be unexplained noncompliance with a court order, the statement was made to protect the clients' best interests. Privileging the statement thus also promotes zealous advocacy.
5. Enforceability
In sum, although a contract was validly formed, no breach occurred. Thus, neither party is entitled to damages. Instead, the court finds the proper remedy to be the exercise of its equitable power to enforce the settlement agreement as against both parties. Callie, 829 F.2d at 890 (citations omitted). Enforcement is consistent with California's "strong policy in favor of enforcing settlement agreements." U.S. EEOC v. Hosp. Housekeeping Sys. of Houston, Inc., No. 1:11-cv-1658-LJO-SAB, 2013 WL 5817726, at *3 (E.D. Cal. Oct. 29, 2013) (citing Osumi v. Sutton, 151 Cal.App.4th 1355, 1357 (2007)).
As the court finds no breach to have occurred, attorneys' fees and costs are denied as to both parties. Def.'s Mot., Ex. A ¶¶ 5, 12.
As set forth above, the court GRANTS IN PART and DENIES IN PART the motions to enforce settlement. Plaintiff is directed to file dispositional documents dismissing the case with prejudice within seven days of the filing of this order and defendant is ordered to remit payment pursuant to the terms of the settlement agreement, also within seven days. The motions to enforce are also granted insofar as the parties are ordered to comply with the other provisions of the agreement that are consistent with this order. The motions are denied insofar as they seek relief inconsistent with this order.
Attorneys' fees and costs are DENIED as to both parties.
Failure to comply with this order may result in an order to show cause issued to the noncompliant party.
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Volume 133, Issue 2, 14 July 2010
The geometric, electronic and magnetic properties of the three metallic cobalt phases: , , and have been theoretically studied using periodic density functional calculations with generalized gradient approximation (GGA) and plane wave basis set. These results have been compared with those obtained with approach which have shown a noticeable improvement with regard to experimental data. For instance, the cohesive energy values predicted by GGA are overestimated by , whereas underestimate them by 14%–17%. On the other hand, magnetic moment values are underestimated in GGA while are overestimated for approach by almost the same amount. Besides, the introduction of U parameter gives rise to an electronic redistribution in the d-band structure, which leads to variations in the magnetic properties. Moreover, a higher attention has been paid in the study of the electronic and magnetic properties of the -phase that has not described previously. These studies show that this phase posses special properties that could lead to an unusual behavior in magnetic or catalytic applications.
Communications: On the relation between the scalar and tensor exchange-correlation kernels of the time-dependent density-functional theory133(2010); http://dx.doi.org/10.1063/1.3455711View Description Hide Description
The scalar and tensor exchange-correlation (xc) kernels are key ingredients of the time-dependent density functional theory and the time-dependent current density functionaltheory, respectively. We derive a comparatively simple relation between these two kernels under the assumption that the dynamic xc can be considered "weak." A calculation of the frequency-dependent dielectric function of silicon using this relation in conjunction with Vignale–Kohn demonstrates a potential of our method to account for the dynamic many-body effects within the rigorous scheme of time-dependent density functional theory. Our formula provides a bridge between the scalar , which directly enters many applications, and the tensor which, due to its locality in space, is much easier to approximate.
Communication: Energetics of reaction pathways for reactions of ethenol with the hydroxyl radical: The importance of internal hydrogen bonding at the transition state133(2010); http://dx.doi.org/10.1063/1.3455996View Description Hide Description
We find high multireference character for abstraction of H from the OH group of ethenol (also called vinyl alcohol); therefore we adopt a multireference approach to calculate barrier heights for the various possible reaction channels of . The relative barrier heights of ten possible saddle points for reaction of OH with ethenol are predicted by multireference Møller–Plesset perturbation theory with active spaces based on correlated participating orbitals (CPOs) and CPO plus a correlated orbital . Six barrier heights for abstracting H from a bond range from 3.1 to 7.7 kcal/mol, two barrier heights for abstracting H from an bond are both 6.0 kcal/mol, and two barrier heights for OH addition to the double bond are −1.8 and −2.8 kcal/mol. Thus we expect abstraction at high-temperature and addition at low temperature. The factor that determines which H is most favorable to abstract is an internal hydrogen bond that constitutes part of a six-membered ring at one of the abstraction saddle points; the hydrogen bond contributes about 3 kcal/mol stabilization.