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November 14, 2008
TERRYN RISK, PLAINTIFF,v.BURGETTSTOWN BOROUGH, PENNSYLVANIA, DEFENDANT.
Re: Doc. No. 121
This case is presently before the Court on Defendant's Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b), or for a New Trial pursuant to Fed. R. Civ. P. 59. The parties are familiar with the background of the case and it need not be restated here. After a four day trial, the jury returned a verdict in favor of Plaintiff Terryn Risk, finding that the Defendant unlawfully discriminated and retaliated against Plaintiff because of his religion. For the reasons discussed below, Defendant's Motion for Judgment as a Matter of Law, or for a New Trial at Doc. No. 121 is denied.
"[J]udgment as a matter of law should be granted sparingly." Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). A motion for judgment as a matter of law "should be granted only if, viewing the evidence in the light most favorable to the non-movant and giving the non-movant the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury could reasonably find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (citing Wittekamp v. Gulf & Western Inc., 991 F.2d 1137, 1141 (3d Cir. 1993)). The standard for granting judgment as a matter of law "mirrors" the standard for summary judgment, such that "the inquiry under each is the same." Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)) (other citations omitted). Thus, the court must view all evidence in the record. Id. It may not weigh the parties' evidence or determine the credibility of the witnesses. Id. Also, the court must not substitute its version of the facts for that of the jury. Lightning Lube, 4 F.3d at 1166. Further, "the court must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151. In Reeves, the United States Supreme Court further explained that the district court "should give credence to the evidence favoring the non-movant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.'" Id. (other citation omitted). Although a Rule 50(b) motion should be granted sparingly, "a scintilla of evidence is not enough to sustain a verdict of liability." Lightning Lube, 4 F.3d at 1166 (citing Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993)). "'The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party.'" Id. (quoting Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)). See generally 9 Moore's Federal Practice §§ 50.60, 50.62, 50.63, 50.64 (3d ed. 2008).
Finally, in determining whether there is a legally sufficient evidentiary basis for the verdict, erroneously admitted evidence will play no role in the court's application of the appropriate legal standard. Weisgram v. Marley Co., 528 U.S. 440, 457 (2000).
In addition to its Rule 50(b) motion, the Defendant has moved, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59. Rule 59 states in relevant part as follows:
Rule 59. New Trial; Altering or Amending a Judgment
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues--and to any party--as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]Fed. R. Civ. P. 59(a).
The ordering of a new trial pursuant to Rule 59 is within the sound discretion of the district court. Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1017 (3d Cir. 1995). Reasons for granting a new trial include verdicts which are against the weight of the evidence or prejudicial errors of law. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). When the basis for the motion is an alleged error concerning the court's evidentiary rulings or jury instructions, a district court must first determine whether an error was made during the course of the trial, and then determine "whether that error was so prejudicial that refusal to grant a new trial would be 'inconsistent with substantial justice.'" Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600, 601 (E.D. Pa. 1989) (quoting Fed. R. Civ. P. 61), aff'd, 922 F.2d 184 (3d Cir. 1990). Whether any error committed by the court was harmless is governed by Federal Rule of Civil Procedure 61.*fn1 Trial errors are considered harmless when "it is highly probable that the error did not affect the outcome of the case." McQueeney v. Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir. 1985). "Unless a substantial right of the party is affected," a non-constitutional error in a civil case is harmless. Linkstrom v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir. 1989). "Absent a showing of substantial injustice or prejudicial error, a new trial is not warranted and it is the court's duty to respect a plausible jury verdict." Montgomery County v. MicroVote Corp., 152 F. Supp.2d 784, 795 (E.D. Pa. 2001).
The United States Court of Appeals for the Third Circuit has indicated, however, that the district court's discretion to grant a new trial is more limited when the alleged ground is that the verdict is against the weight of the evidence. Greenleaf v. Garlock, Inc., 174 F.3d 352, 366 (3d Cir. 1999). In this instance, new trials "'are proper only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience.'" Greenleaf, 174 F.3d at 366 (quoting Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)); EEOC v. Delaware Dep't of Health and Soc. Servs., 865 F.2d 1408, 1413 (3d Cir. 1989). "[T]his stringent standard is necessary to ensure that a district court does not substitute its judgment of the facts and credibility of the witnesses for that of the jury." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996) (citations omitted).
Unlike a motion for judgment as a matter of law pursuant to Rule 50, the court is not compelled to view the evidence in the light most favorable to the non-movant. Whelan v. Teledyne Metal Working Prods., 2006 WL 39156 *7 (W.D. Pa. 2006) (citing Bullen v. Chaffinch, 336 F. Supp.2d 342, 347 (D.Del. 2004). Further, the movant bears the burden of proof on a motion for a new trial. Id. (citation omitted).
Defendant's initial arguments state that certain evidence should not have been admitted at trial, "both in terms of what should not be considered in determining whether or not there is a legally sufficient evidentiary basis for the verdict, and in terms of whether defendant is entitled to a new trial." (Defendant's Brief in Support of its Motion for Judgment as a Matter of Law and for a New Trial, Doc. No. 136 at 8) [hereinafter "Doc. No. 136 at __ ]. Specifically, Defendant raises the following contentions of error: 1) the admission of evidence, argument, and jury instruction regarding the Defendant's alleged violation of the Police Tenure Act; 2) the admission of evidence, argument, and jury instruction regarding Plaintiff's cross pin; 3) the admission of evidence and argument contesting Plaintiff's decertification; 4) evidence and argument regarding Plaintiff's off-duty expression of an opinion to Amy Prevost about what Borough Council might do; 5) the introduction of Dan Johnson's testimony after both Plaintiff and Defendant had completed the presentation of their cases; and 6) the evidence and adverse inference instruction regarding the non production of audiotapes. (Doc. No. 136 at 8.) Defendant submits the above arguments in support of both its Motion for Judgment as Matter of Law, or in the alternative, Motion for a New Trial. Later in its Brief in Support of its Motion for Judgment as a Matter of Law, or for a New Trial, Defendant includes two additional sections, one containing arguments relating only to its Motion for Judgment as a Matter of Law, and the other containing arguments relating only to its Motion for a New Trial. These arguments will be included with the above arguments in their respective sections of this Memorandum Opinion.
A. Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(b)
Defendant argues that the Court erred in admitting certain evidence, and that had this evidence been excluded, there would have been insufficient evidence to support the jury's conclusion.
1. The Admission of Evidence Regarding the Defendant's Alleged Violation of the Police Tenure Act
The Court took judicial notice of the Pennsylvania Police Tenure Act solely because its seniority provisions were relevant to pretext; that is, layoffs must occur in reverse order of seniority, and Risk had been hired before others who were not furloughed. See 53 P.S. § 813. Defendant argues that by its terms, the Police Tenure Act does not apply to Defendant's police force because it has more than three members. See 53 P.S. § 811. Citing to 53 P.S. § 46190 and § 46171, Defendant also argues that although the Borough Code does apply to any borough having a police force of three or more members, part-time, hourly officers like Risk are not included in the definition of "police force." Consequently, Defendant argues that neither the Borough Code nor the Police Tenure Act apply in this case, and the Court erred in taking judicial notice that the Police Tenure Act, with its seniority provisions, applied to Plaintiff. In response, Plaintiff argues that the Borough Code, which also provides for layoffs in order of reverse seniority, defines "police force" as those who devote their normal working hours to police duty, rather than those defined as "special police" including metermaids, special school police, "extra police" serving from time to time or on an hourly or daily basis, and auxiliary policemen. See 53 P.S. § 46195. Plaintiff notes that Risk devoted normal working hours to police duty, and therefore would fall under the protections of the seniority furlough provision. Plaintiff concludes that regardless of whether the Police Tenure Act or Borough Code applies, the reverse seniority furlough provision applies to Risk and the Court's judicial notice that the Police Tenure Act applied would be harmless error.
Whether the Police Tenure Act or Borough Code applies, Risk was protected by the seniority furlough provisions. Although Plaintiff had another job as a school bus driver, no evidence was presented at trial that Plaintiff was ever unavailable when needed by Defendant; in fact, Risk's other job in no way conflicted with the needs of Defendant: Chief Roberts worked alone during these hours and consequently, would have no need to schedule Plaintiff during that time. Moreover, no evidence was presented that Plaintiff's duties placed him within the definitions of "special police," "extra police," or "auxiliary policemen." Even if the Court were to excise this evidence regarding furlough on the basis of seniority, the evidence of pretext presented at trial was sufficient to support the jury's verdict as will be discussed at Part II. A. 9., infra.
2. The Cross Pin
On summary judgment, the Court granted judgment as a matter of law on Counts I through IV of Plaintiff's Complaint holding that "[p]laintiff Risk can premise no claim of Constitutional violation on a restriction of his right to wear a symbol of his Christian beliefs on the lapel of his police uniform while performing his duties in the community." (Doc. No. 49 at 6.) Defendant now argues that in light of this ruling on summary judgment, the Court erred in allowing Risk to introduce evidence that Chief Roberts repeatedly asked Risk to remove his cross pin. Defendant contends that in light of the Court's ruling on summary judgment, all evidence, argument and jury issues concerning the cross pin "should have dropped out of the case entirely." (Doc. No. 136 at 16.) Specifically, Defendant complains of admission of the following: 1) Plaintiff wore a cross pin on the lapel of his police uniform "as a sign of his strong Christian beliefs;" 2) Chief Roberts "ordered Risk to stop wearing a cross on his police uniform and Risk protested to both the Borough Council President and Dan Johnson, the Council Police Department liason, but Roberts insisted; 3) On December 7, 2004, counsel corresponded with Chief Roberts, with copies to each member of Borough Council, requesting that Risk be permitted to wear his cross.
Plaintiff responds that although Plaintiff could premise no Constitutional claim on the restriction of his right to wear a cross pin, the evidence admitted at trial was highly relevant to his Title VII claims for two reasons: 1) the evidence was probative of Chief Robert's anti-religious animus, and highly relevant in light of the fact that Roberts was Plaintiff's direct supervisor and an individual who likely influenced the decision to fire Plaintiff; and 2) the letter from Plaintiff's attorney complaining that the forced removal of the cross pin was religious discrimination amounted to protected activity for purposes of Plaintiff's retaliation claim.
The Court found this evidence to be highly relevant to Plaintiff's Title VII claims pursuant to Federal Rule of Evidence 401. Moreover, it was not barred by any other Federal Rule of Evidence. First, evidence that Roberts objected to the cross pin was not offered for its truth, but to show his state of mind, especially in light of the fact that no other individual working for the Defendant objected to Plaintiff's pin. Further, contrary to his trial testimony, Chief Roberts never told Risk or anyone else that his reason for objecting to the cross pin was based on Constitutional grounds. Consequently, this evidence was not hearsay, but offered to show Chief Roberts state of mind. Moreover, Roberts' objection to the cross pin is relevant to Plaintiff's retaliation claim because Plaintiff's complaints about Roberts' ordering him to remove the cross pin constituted protected activity in that Plaintiff had a good faith belief that the conduct he opposed violated Title VII. Clark County Sch. Dist. V. Breeden, 532 U.S. 268, 269-70 (2001). Consequently, the evidence was properly admitted and highly relevant to the issue of pretext, and Plaintiff's retaliation claim pursuant to Title VII.
3. Plaintiff's Decertification
a. Plaintiff's Testimony Regarding His Decertification
The Defendant argues that the Court erred in allowing Plaintiff's testimony regarding his police decertification. Plaintiff had moved in limine to exclude this evidence, and Defendant argued in opposition. (Doc. Nos. 60, 64.) Relying on Federal Rule of Evidence 608 (b), the Court ruled that Plaintiff's decertification was admissible for purposes of impeaching his character for truthfulness only, and Risk's testimony concerning his decertification was limited to that effect. (Tr. 3/18/08 at 14-30.) No evidence was introduced regarding the specifics of the Pennsylvania Municipal Police Officers' Education and Training Commission's ("MPOETC") decision to revoke Plaintiff's certification. Plaintiff testified at trial that he was decertified as a police officer. (Tr. 3/25/08 at 140-41, 184-85.) He testified to MPOETC's determination that his certification was issued in error, specifically about the confusion in the meanings of "full time" and "full time capacity" in Pennsylvania and Ohio. (TR. 3/25/08 at 140-42.) Risk's testimony did not dispute MPOETC's decision, but explained that he did not receive his certification as a result of an intentional lie. (Tr. 3/25/08 at 140-42.) Such testimony was properly admitted in light of the fact that Defendant attempted to impeach Risk's character for truthfulness by introducing evidence of his decertification. See Fed. R. Evid. 608(b).
b. Preclusion
Similarly, Defendant argues that MPOETC's "decision was fully effective not only to revoke plaintiff's certification ab initio, but also to foreclose plaintiff under the doctrine of collateral estoppel or issue preclusion from contesting in this Court the Commission's decision and the findings of fact and legal conclusions that led to and were incorporated into that decision." (Doc. No. 136 at 19.)
For the reasons discussed above, the doctrine of preclusion in inapplicable. The Court did not admit any evidence concerning the details of MPOETC's decision to revoke Plaintiff's police certification. At issue in this case were Plaintiff's claims of religious discrimination under Title VII, not the facts and circumstances leading up to Plaintiff's certification, and the subsequent revocation of his certification. The Court admitted no evidence contesting MPOETC's decision.
4. Amy Prevost's Conversation with Chief Roberts
Defendant contends that the Court should have excluded the testimony of Amy Prevost concerning a conversation she had with Chief Roberts. Specifically, Defendant contends that the comments made by Roberts were his "personal opinion" about what might happen in the future concerning the layoff of certain police officers, "not a statement of fact based on personal knowledge" because he was not the actual decision maker. (Doc. No 136 at 22.)
Discriminatory comments by non decision makers are admissible as circumstantial evidence of discrimination. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). Moreover, evidence at trial demonstrated that Council member Johnson asked Roberts about the availability of certain officers; and therefore, at a minimum, Roberts participated in the decision to terminate Risk.
The statements made by Roberts were not hearsay as they were not offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c). Roberts told Prevost that Risk's church interfered with his job. (Tr. 3/24/08 at 50.) Prevost responded that that was not a good reason to let go of a good officer because they go to church. Prevost testified that in response, Roberts laughed. (Tr. 3/24/08 at 51.) Prevost also prepared a written statement that was sent by Risk's legal counsel to all Borough Council members wherein she described this conversation. (Tr. 3/24/08 at 52.) Prevost also testified about a comment made by another officer of the Defendant, Lt. Murray, that she overheard him tell another officer about the need to carry Tylenol in case Risk started preaching about church and God. (Tr. 3/24/08 at 53.) She further testified that she told Roberts about the "Tylenol comment" and that in response, Roberts laughed. (Tr. 3/24/08 at 53.) These statements were not offered to show that in fact, Risk's church interfered with his job, or that officers needed to carry Tylenol with them in case Risk spoke of his religion, but were offered as circumstantial evidence of discrimination: that Roberts made the statement about laying off an officer because of his religious practices, that others on the force ridiculed Risk for his beliefs, and that all members of Borough Council were aware of Chief Roberts' opinion as to who should be let go in the upcoming layoffs. That is, they were offered as circumstantial proof of Roberts' state of mind, or discriminatory animus, and of the managerial viewpoint concerning officers who may have religious obligations that interfere with work. The Prevost written statement was accompanied by a letter from Plaintiff's counsel complaining of discrimination. Hence, it was offered to show Defendant was aware of Plaintiff's opposition to what he believed to be discriminatory conduct, and was relevant to show protected activity, an element of his retaliation claim. SeeAbramson v. William Patterson College of New Jersey, 260 F.3d 265, 287-88 (3d Cir. 2001) (citation omitted).
Further, even if such statements were hearsay in that they were offered to prove the truth of the matter asserted, there were admissible under Federal Rule of Evidence 801(d)(2)(D). That is, they were made by an agent of the Defendant, Chief Roberts, concerning a matter within the scope of his employment or agency, and therefore admissible as a party admission. Evidence at trial demonstrated that Roberts was an agent of Defendant in that he was consulted by Borough Council on various matters affecting the police department.
5. The Testimony of Dan Johnson
Here, Defendant complains that Plaintiff subpoenaed witness Dan Johnson to testify on his behalf and then forced him to sit in the hallway for two days while Plaintiff presented his case in chief. Defendant continues that Plaintiff rested, without calling Johnson. (Doc. No. 136 at 23.) At this point, Defendant released Mr. Johnson from the subpoena. Johnson then left the courthouse. Defendant notes that the Court permitted Plaintiff to read from Johnson's deposition in rebuttal, and that the Plaintiff offered no acceptable reason why Johnson was not called during Plaintiff's case in chief. Defendant argues that even though it was offered an opportunity to introduce additional portions of Johnson's deposition testimony, "that option was unreal and unfair." (Doc. No. 136 at 25.) That is, Defendant contends that it lost its opportunity to effectively cross-examine Johnson. Hence, Defendant argues that the Court should disregard Johnson's deposition testimony in its assessment of Defendant's Motion for Judgment as a Matter of Law.
Plaintiff responds that under the McDonnell-Douglas shifting paradigm, Defendant bears the burden of asserting a legitimate nondiscriminatory reason for firing Plaintiff. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Because this was a "reduction in force" case, the employer must show why it chose to discharge the Plaintiff, not just why it chose to discharge employees in general. See Tomasso v. Boeing Co., 445 F.3d 702, 707 (3d Cir. 2006). Plaintiff supports his argument with the following comment by the Court: "Your reason that you gave was why you laid off, why you laid off anyone. You never got beyond, at least at this point, why it was Risk and not Pompe or one of the other two that were kept. I'm not even sure at this point that the burden does shift back." (Tr. 3/25/08 at 197.) Plaintiff continues that he had no need to call Johnson to the stand to contradict a reason for Risk's discharge that had not yet been given. (Doc. No. 137 at 31.)
Plaintiff had the right on rebuttal pursuant to the McDonnell-Douglas paradigm to demonstrate that any reason given by Defendant was pretextual. The Court offered Defendant an opportunity to read other portions of the deposition transcript into the record, as admitted by Defendant in its Brief. (Doc. No. 136 at 25.) As to Defendant's contention that this "option was unreal and unfair" in that it lost its right to effectively cross-examine Johnson, the Court informed Defendant that Johnson could testify in person. (Tr. 3/26/08 at 141-42.) The Court also offered to re-open the case and allow Johnson to testify after both parties rested. (Tr. 3/27/08 at 16.) Defendant cannot now request that the Court disregard Johnson's testimony when Defendant failed to take advantage of the many opportunities offered by the Court to effectively cross examine this witness on the record.
Consequently, the Court will not strike this evidence from the record in considering Defendant's Motion for Judgment as a Matter of Law.
6. The Evidentiary Adverse Inference Concerning the Council Meeting Audiotapes
Defendant argues that the Court improperly granted Plaintiff's request during the jury charge conference to give an adverse inference instruction with regard to Defendant's failure, in response to a discovery request, to provide tapes, in addition to meeting minutes, of the Borough Council meeting where it was discussed that Risk should be discharged. The adverse inference charge provided as follows:
In presenting this case, the Defendant did not produce tapes of the borough council meetings which were requested by the plaintiff prior to trial. The general rule is that where evidence is in the control of a party and that party failed to produce it, you may draw the inference that, if produced, it would be unfavorable to that party. (Tr. 3/27/08 at 79.)
Evidence that the tapes existed was elicited from witness Pam Church, Borough Council member, when she testified that she believed that an audiotape from that meeting still existed three years later. (Tr. 3/26/08 at 193.) Defendant argues that Plaintiff's counsel did not request the tape again at that time, "or ask for a recess or time to listen to the tape." (Doc. No. 136 at 26.)
Plaintiff responds that Risk asked for "any and all Burgettstown meeting minutes, tapes, or transcripts from October [2004] to the present." (Doc. No. 137 at 37.) Defendant provided no tapes or indicated that tapes existed. Ms. Church verified that the discovery response was "true and correct," and then testified twice at trial that the tapes existed. (Tr. 3/24/08 at 83; Tr. 3/25/08 at 102.) The second time she so testified, she was asked whether she brought the tapes with her, and she indicated she had not. (Tr. 3/25/08 at 102.)
As thoroughly discussed by Plaintiff, the Court did consider the factors set forth in Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994), in considering whether to give the adverse instruction: the degree of fault of the party who altered or destroyed the evidence, the degree of prejudice suffered by the opposing party, and the availability of a lesser sanction that will avoid substantial unfairness to the opposing party's rights and deter future similar conduct. First, the Court considered the fact that counsel may not have known about the tapes, but that the client did as was indicated in the testimony of Pam Church, who verified the discovery response, and at a minimum, was negligent in not turning over the tapes.
Further, even if defense counsel was not aware of the tapes at the time the discovery response was verified, he was placed on notice of their existence with the testimony of Church. Yet, on the next trial day, counsel still had not produced the tapes, even though the Federal Rules of Civil Procedure make clear the continuing obligation to turn over relevant materials as they become known. See Fed. R. Civ. P. 26 (e) (1) (A) (production responses must be timely supplemented if party learns production incomplete). Second, with regard to the degree of prejudice suffered by Plaintiff, the Court indicated the failure to produce the tapes was in fact a " big issue" in light of the conflicting testimony of what was said and done, or not said and done at this meeting. (Tr. 3/26/08 at 195.) Finally, as to the availability of a lesser sanction, the Court was careful to frame the instruction as a permissive, rather than a mandatory inference; that is, the Court instructed the jury that "the general rule is that where evidence is in the control of a party, and that party fails to produce it, you may draw the inference that, if produced, it would be unfavorable to that party." (Tr. 3/27/08 at 79.) (emphasis added). The Defendant did not suggest an alternative sanction. Consequently, the Court will not disregard the evidentiary adverse inference concerning the council meeting audiotapes in its consideration of Defendant's Motion for Judgment as a Matter of Law.
7. Plaintiff was not Qualified
Defendant argues that one element of Plaintiff's burden of proof pursuant to the McDonnell-Douglas paradigm is that he was qualified for the position, and that because his police certification was revoked over two years after his discharge from Defendant, Plaintiff cannot establish this element of his prima facie case. Therefore, concludes Defendant, it is entitled to judgment as a matter of law on this issue.
In Bowers v. NCAA, 475 F.3d 524, 536 (3d Cir. 2007), the United States Court of Appeals for the Third Circuit held that after-acquired evidence cannot be used to contest a plaintiff's qualifications for purposes of establishing a prima facie case of discrimination. In an Americans with Disabilities Act ("ADA") case,*fn2 the defendants argued that after-acquired evidence of plaintiff's drug abuse disqualified him from playing sports at any university at the time the decision was made to disqualify plaintiff. Id. at 534. Relying on McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), the Third Circuit held that the defendants could not claim that the plaintiff was not qualified based upon the after-acquired evidence of his drug abuse. Id. On remand, the United States District Court for the District of New Jersey emphasized the impact of the Third Circuit's opinion in Bowers, and its effect on McNemar v. Disney Store, Inc., 91 F.3d 610, 621 (3d Cir. 1996), relied upon by Defendant:
Although there is certainly authority from within and outside this Circuit to support Defendants' arguments concerning the applicability of the after-acquired evidence rule to the issue of whether Bowers was an otherwise qualified individual, the Court must grant Plaintiff's preclusion motion. Irrespective of what result the law of this Circuit might have required the Court to reach prior to the Court of Appeals' decision in Bowers, see McNemar, 91 F.3d at 621, the import of the Court of Appeals' application of the after-acquired evidence rule to Bowers' drug use is unmistakable. The Court of Appeals addressed the rule specifically in the context of an analysis of whether Bowers was an "otherwise qualified individual with a disability," . . . and did not adopt Defendants' argument that the after-acquired evidence rule is inapplicable to the otherwise-qualified inquiry.
Bowers, 563 F. Supp.2d at 530 (citing Bowers, 475 F.3d at 537) (citation omitted).
Consequently, Defendant's argument that Plaintiff Risk could not establish his prima facie case pursuant to the McDonnell-Douglas paradigm because he was decertified as a police officer two years after his termination from Defendant must fail. Defendant is not entitled to judgment as a matter of law on this issue.
8. Plaintiff should have not been Awarded Backpay
Defendant argues that like Plaintiff's claims for front pay and reinstatement, the Court should have denied Plaintiff's claim for back pay in its entirety, and therefore judgment as a matter of law in Defendant's favor is appropriate on this issue. Defendant supports its contention by reiterating its arguments made at Doc. No. 107 in its Response to Plaintiff's Motion for Back Pay, claiming that the circumstances at bar are so egregious as to constitute "extraordinary equitable circumstances" that should be considered by the district court in exercising its discretion to eliminate Plaintiff's claim for back pay. Defendant also relies on cases concerning the denial of back pay awards to illegal aliens as support for its argument.
Again, the Court finds the reasoning of McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), to be controlling here. In the case at bar, the jury found that a Title VII and PHRA violation had occurred. As noted by the McKennon Court, violations of this type:
[M]ust be deterred and compensated without undue infringement upon the employer's rights and prerogatives. The object of compensation is to restore the employee to the position he or she would have been in absent the discrimination, . . . but that principle is difficult to apply with precision where there is after-acquired evidence of wrongdoing that would have led to termination on legitimate grounds had the employer known about it.
McKennon, 513 U.S. at 362 (internal citation omitted). In fashioning the award, the district court "can consider taking into further account extraordinary equitable circumstances that affect the legitimate interest of either party." Id. at 362. Here, the Court did not find Risk's decertification to constitute "extraordinary equitable circumstances" so as to warrant an absolute bar to back pay, especially in light of the evidence presented that his certification was issued in error. See e.g., id. (after-acquired evidence cannot operate to bar all relief where employee stole documents from employer); Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072 (3d Cir. 1995 (back pay appropriate where after-acquired evidence demonstrated employee lied on resume). As noted by the McKennon Court, "[a]n absolute rule barring any recovery of back pay, however, would undermine [TitleVII's] objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from [] discrimination." 513 U.S. at 362.
The Court finds Defendant's reliance on cases recognizing the inappropriateness of the National Labor Relations Board ("NLRB") to provide back pay to illegal aliens to be inapposite. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902-03 (1984); Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In Sure-Tan, the United States Supreme Court emphasized the NLRB's obligation to take into account Congress' important objective of deterring unauthorized immigration embodied in the Immigration and Nationality Act ("INA"). 467 U.S. at 903. No such considerations are present in the Title VII discrimination case at bar. Moreover, decided after McKennon, Hoffman does not attempt to reconcile its holding with McKennon. The Court here finds that omission significant in its analysis of Hoffman, and its application to the case at bar.
Consequently, Defendant is not entitled to judgment as a matter of law regarding the award of back pay to Plaintiff.
9. Sufficiency of the Evidence
Defendant argues that the evidence of record, with or without the contested evidentiary rulings, is legally insufficient to support the jury's verdict. Defendant continues that without the alleged improperly admitted evidence, in conjunction with "several erroneous and prejudicial jury instructions," Plaintiff's "attacks would have failed as a legitimate basis for the jury to find pretext." (Doc. No. 136 at 39, 43.)
Reviewing the record in a light most favorable to Plaintiff, the Court cannot find that it is "critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief." Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001). Plaintiff adduced sufficient evidence at trial to support the jury's finding that he had made out the Title VII prima facie case, which requires that the plaintiff show the following: 1) he is a member of a protected class; 2) he was qualified for the position held; 3) he was discharged from that position; and 4) non-members of the protected class were treated more favorably. McDonnell Douglas Corp., 411 U.S. at 802. First, Plaintiff, a Christian, was a member of a protected class. As discussed at Part II. A. 7., supra, Plaintiff also was a certified police officer at the time he was discharged. There was evidence presented at trial that Plaintiff was discharged; and that non-members of the protected class were treated more favorably than Plaintiff. Therefore, there was sufficient evidence in the record upon which the jury could have reasonably concluded that Plaintiff succeeded on his initial burden of making out a Title VII prima facie case.
Under the McDonnell Douglas burden shifting analysis, if a Title VII plaintiff succeeds in making out a prima facie case of discrimination, the burden then shifts to the defendant to provide a legitimate, non-discriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802. Once the employer has done so, the burden shifts back to the plaintiff to demonstrate that the proffered reasons are mere pretext for discrimination. Id. Although Defendant seemed to suggest that availability was the reason Plaintiff was selected for discharge, the Court finds there was sufficient evidence in the record to support a finding that the proffered reason was pretextual. Specifically, the Court notes that there was substantial evidence in the record of pretext including, but not limited to the following:
1). The identity of Defendant's decision maker as to who was responsible for terminating Plaintiff changed throughout the litigation;
2). Defendant's reasons for terminating Risk changed throughout the litigation;
3). Chief Roberts told Amy Prevost that Plaintiff would be chosen for termination because he had to go to church;
4). Andrew Miller, a borough councilman, called Prevost's statement regarding her conversation with Chief Roberts "garbage;"
5). Borough council did not consider the letter from Plaintiff's attorney complaining about religious discrimination;
6). Defendant did not schedule Plaintiff after he complained of discrimination; and
7). Lt. Murray's "Tylenol" comment and Chief Robert's laughing reaction to it. Defendant does not contest the sufficiency of the evidence with regard to the jury's verdict on retaliation. See Doc. No. 136 at 36-43.
Accordingly, the Court must conclude that based on the evidence offered at trial, this is not a situation in which a reasonable jury could only have decided in favor of Defendant. Because the Court finds that Plaintiff offered sufficient evidence from which a jury could find in his favor on his claim of discrimination, the Court will not disturb the jury's findings and will allow the judgment to stand. Defendant's Motion for Judgment as a Matter of Law is therefore denied.
B. Motion for a New Trial pursuant to Federal Rule of Civil Procedure 59
In Bhaya v. Westinghouse Electric Corp., 922 F.2d 184 (3d Cir. 1990), the United States Court of Appeals for the Third Circuit explained that in reviewing a district court's decision to grant or deny a motion for a new trial, it must give substantial deference to the trial judge's decision "'who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.'" Bhaya, 922 F.2d at 187 (quoting Cone v. West Virginia Pulp & Paper Co., 330 U.S.212 (1947)). "Particular deference" is appropriate where the decision for granting or denying a new trial was based on evidentiary rulings that are necessarily entrusted to the trial court's discretion. See id. See also Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 921-22 (3d Cir. 1986) ("Where a contention for a new trial is based on the admissibility of evidence, the trial court has great discretion.").
1. The Police Tenure Act
As discussed in detail at Part II. A. 1., supra, the Court's judicial notice of the Pennsylvania Police Tenure Act, is harmless error. Although the Police Tenure Act, by its terms, does not apply to the Defendant, the Pennsylvania Borough Code does. It too, provides for layoffs in order of reverse seniority. See 53 P.S. § 46190.
Clearly, in light of the substantial evidence of pretext introduced at trial, any error committed by the Court in admitting evidence concerning the Police Tenure Act is harmless in that "it is highly probable that the error did not affect the outcome of the case." McQueeney, 779 F.2d at 917. Consequently, the Court's refusal to grant a new trial is not "inconsistent with substantial justice." Bhaya, 709 F. Supp. at 601.
As discussed in Part II. A. 2. supra, the Court did not err in admitting evidence concerning Plaintiff's cross pin. Consequently, the Court must respect the jury's verdict and Defendant's Motion for a New Trial based on the admission of this evidence must be denied.
Likewise, as discussed in Part II. A. 3. supra, the Court did not err in admitting testimony concerning Plaintiff's decertification. Hence, Defendant's Motion for a New Trial based on this evidentiary issue must be denied.
Similarly, as discussed in Part II. A. 4. supra, the Court did not err in admitting testimony concerning Amy Prevost's conversation with Chief Roberts. Hence, Defendant's Motion for a New Trial based on this evidentiary issue must be denied.
As discussed in Part II. A. 5. supra, the Court did not err in admitting the deposition testimony of Dan Johnson. Hence, Defendant's Motion for a New Trial based on this evidentiary issue must be denied.
6. The Council Meeting Audiotapes
Finally, as discussed in Part II. A. 6. supra, the Court did not err in giving the adverse inference instruction. Hence, Defendant's Motion for a New Trial based on this evidentiary issue must be denied.
In evaluating contentions of error with regard to jury instructions, the relevant inquiry is "whether the charge, taken as a whole and viewed in the light of the evidence, fairly and adequately submits the issues in the case to the jury." United States v. Tiller, 302 F.3d 98, 104 (3d Cir. 2002) (citing Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir. 1977)). Instead of isolating particular language, the context of the entire charge is to be examined. Id. (citing United States v. Turley, 891 F.2d 57, 62 (3d Cir. 1989)). Consequently, the Court will view the following instructions that have been called into question by the Defendant in the context of the entire charge to determine whether any one or all of them warrant the grant of a new trial.
7. The Court should not have Instructed the Jury that Plaintiff was Qualified
First, the Defendant argues that the Court committed reversible error when it instructed the jury that it could determine whether Plaintiff was qualified as a police officer when Risk had been decertified two years after his termination. (Doc. No. 136 at 44.) See Tr. 3/27/08 at 83. The Court's careful review of the trial transcript reveals that the Court properly instructed the jury pursuant to the controlling law in this Circuit as discussed above. See supra Part II. A. 7. Specifically, the court instructed the jury as follows:
More specifically, Mr. Risk must show that, number one, he is a member of a protected class; that is, that he is a Christian.
Number two, at the time he was fired, he was qualified for the position he held. Number three, that he was discharged.
And, number four, that the Defendant retained employees who were not viewed as needing religious accommodation. (Tr. 3/27/08 at 83). The above charge comports with the Third Circuit's holding in Bowers v. NCAA, 475 F.3d 524, 536 (3d Cir. 2007), that after-acquired evidence cannot be used to contest a plaintiff's qualifications for purposes of establishing a prima facie case of discrimination. The Court committed no error with regard to this instruction. Consequently, it cannot serve as a basis for granting Defendant's Motion for a New Trial.
8. The Police Tenure Act and the Cross Pin Instructions were Prejudicially Erroneous
Next, Defendant argues that the Court's instructions were "not fair, because they emphasized legal inferences that favored plaintiff, and foreclosed defendant from adequately arguing its case to the jury." (Doc. No. 136 at 45.)
a. Instruction on Police Tenure Act
Defendant challenges the following instruction:
The rules of evidence do permit a judge to accept facts that cannot reasonably be disputed. This is called judicial notice. During the trial, you heard some testimony about the Pennsylvania Police Tenure Act. This Act sets forth the rules that apply to reduction of police officers for economic or other reasons. I have decided to take judicial notice of the fact that the Pennsylvania Police Tenure Act applies to the Borough of Burgettstown.
Under that Act, in the event that a borough, such as Burgettstown, has an economic or other reason to reduce its paid work force, it is required to discharge employees in the following order. First, if there are any employees eligible for retirement, those employees must retire.
Second, the last employees hired are the first to be fired. The borough must start with the last paid employee hired and work its way backward in numerical order until it reaches the necessary number of positions to be eliminated. If the borough later increases its work force, the former employees must be re-hired in order of seniority before the borough hires any new employees.
Now, it is not your duty to determine whether the Pennsylvania Police Tenure Act was, in fact, violated. And, in fact, a dismissed employee has the right to appeal violations of this Act at the state court level. This evidence may only be considered by you in determining whether the borough's reasons for terminating Mr. Risk were pretexts. (Tr. 3/27/08 at 85-86.) Defendant contends that this instruction "sided squarely with plaintiff and foreclosed any effective argument regarding the inapplicability of the Act." (Doc. No. 136 at 45.) This part of the instruction, argues Defendant, was legally incorrect, and in effect, "was tantamount to directing a verdict for plaintiff." (Doc. No. 136 at 45.)
Plaintiff responds that the instruction on the Police Tenure Act "was offered solely to prove Defendant departed from its own policies." (Doc. No. 137 at 33). Further, Plaintiff emphasizes that the instruction did not require the jury to find pretext, but that "the evidence may only be considered by you in determining whether the Borough's reasons for terminating Mr. Risk were pretext[s]." (Doc. No. 137 at 33.)
First, as discussed at Part II. A. 1., supra, even though the Police Tenure Act was inapplicable to the case at bar, the Borough Code, with its comparable seniority furlough provision, did. In addition, as discussed at Part II, A. 9., supra, concerning the sufficiency of the evidence, substantial evidence of pretext was presented at trial such that any error must be considered harmless. That is, in light of the substantial evidence of pretext, "it is highly probable that the error did not affect the outcome of the case." McQueeney, 779 F.2d at 917. Consequently, "it is the [C]court's duty to respect a plausible jury verdict" and Defendant's Motion for a New Trial must be denied on this ground. Montgomery County v. MicroVote Corp., 152 F. Supp.2d at 795.
b. Instruction on the Cross Pin
Defendant argues that the Court's instruction concerning the cross pin "prevented Defendant from effectively arguing that Chief Robert's [sic] telling plaintiff twice to remove the cross pin was not evidence of religious discrimination against plaintiff by defendant." (Doc. No. 136 at 45.)
The brief instruction concerning the cross pin provided as follows: The government employer, such as the Borough police department, may prohibit its police officers from wearing a religious symbol on the lapel of the police uniforms while performing their duties in the community. Thus, whether or not as a general jewelry policy, a governmental employer does not infringe a police officer's constitutional right requiring that he remove a religious symbol from his uniform. However, you may, if you wish, consider the fact that the chief of police asked Mr. Risk to remove his cross pin as evidence of discriminatory animus. (Tr. 3/27/08 at 86-87.)
First, the above instruction sets forth a correct statement of the law regarding a police department's right to prohibit its officers from wearing a religious symbol on their uniforms while performing official duties in the community. City of San Diego v. Roe, 543 U.S. 77, 80 (2004); Daniels v. City of Arlington, 246 F.3d 500, 502-03 (5th Cir. 2001). As noted in Part II. A. 2., supra, evidence of the same was highly relevant as it related to Plaintiff's Title VII claims. Moreover, the instruction carefully conveyed to the jury that it may consider the fact that the chief of police asked Plaintiff to remove his cross pin as evidence of discriminatory animus; the jury was not directed to do so. This instruction legitimized Chief Roberts' own testimony that he did not wear religious articles on his own uniform because of the United States Constitution and separation of church and state. (Doc. No. 137 at 35.) See Tr. 3/26/08 at 14.
In addition, as correctly noted in Plaintiff's Responsive Brief, when the cross pin was first referenced at trial, the Court instructed the jury "it's not a violation of the law, per se, for the defendant borough to instruct its employees as to what they can and cannot wear on their uniforms." (Tr. 3/24/08 at 78.) The clear language of the instruction and the Courts explanatory comment to the jury during testimony, protected the Defendant from prejudice and appropriately separated the permissible claims relating to Title VII from the impermissible First Amendment claims disposed of on summary judgment. See supra Part II. A. 2.
9. Amy Prevost's Statement and Testimony
Defendant reiterates its arguments at Part II. A. 4., supra, in support of its Motion for a New Trial pursuant to Federal Rule of Civil Procedure 59. Defendant is not challenging a particular instruction. The Court incorporates by reference its discussion therein regarding the admissibility of this evidence. In light of that analysis, the Court did not err in admitting this evidence; consequently, this contention will not support Defendant's Motion for a New Trial.
10. The Instruction on Workplace Culture Warrants a New Trial
Defendant argues that the following instruction was "legally mistaken" and "had no factual foundation:"
In determining whether Defendant's reason for firing Mr. Risk is a pretext for religious discrimination, you may examine the reasons provided against a backdrop of Defendant's workplace culture. Thus, among other things, you may consider evidence of the atmosphere at Defendant's workplace and evidence of statements concerning religion, or the need to miss work because of religion. (Tr. 3/27/08 at 84-85.)
Defendant failed to place an objection to this instruction on the record. See Fed. R. Civ. P. 51(c)(1) (objection must be stated on the record, stating distinctly matter objected to and grounds for objection). Consequently, the Defendant may not now raise this instruction as error. See Fed. R. Civ. P. 51 (d) (1) (A). Defendant contends that the Court may review this instruction for error, although not properly preserved, pursuant to the "plain error standard." See Fed. R. Civ. P. 51(d)(2). Federal Rule of Civil Procedure 51(d) (2) provides that "[a] court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights." Here, Defendant has not established how this instruction satisfies the plain error requirements. Defendant states only that the instruction was "obviously wrong," yet, Defendant provides no case law in support of this assertion. (Doc. No. 139 at 22.) Defendant mistakenly argues case law pertaining to hostile work environment claims under Title VII,*fn3 clearly inapplicable to Plaintiff's claims here for disparate treatment and retaliation. The United States Court of Appeals for the Third Circuit has stated that an alleged error will meet the plain error standard only if it "is fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice." Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1289 (3d Cir. 1995). Reversal for plain error "should only be invoked with extreme caution in the civil context," and is only appropriate "where the error is so serious and flagrant that it goes to the very integrity of the trial." Id. (citing United States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995)).
In light of this standard, the Court cannot find that the jury instruction on workplace culture was plainly erroneous. The instruction given provided adequate guidance to the jury on a relevant inquiry in a Title VII claim; that is, whether workplace culture provided evidence of discrimination. See Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 132 (3d Cir. 1997); Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). Consequently, the instruction was not error, and most certainly, did not go "to the very integrity of the trial" pursuant to the plain error standard. See Fashauer, 57 F.3d at 1289. Accordingly, the Court cannot grant a new trial on the ground that the jury instruction on workplace culture was flawed.
11. Allowing the Belated Introduction of the Dan Johnson Deposition and the Audiotape Adverse Inference Charge also Warrant a New Trial
a. Belated Introduction of the Dan Johnson Deposition
Defendant's argument here does not relate to a particular jury instruction, but simply reiterates the arguments noted in Part II. A. 5., supra. The Court incorporates its reasoning therein and finds that the introduction of the Dan Johnson deposition testimony does not constitute a prejudicial error of law. Hence, it will not support Defendant's Motion for a New Trial.
b. Audiotape Adverse Inference Charge
Defendant argues that the adverse inference instruction discussed at Part II. A. 6., supra, requires a new trial. Here, the Court did not err in giving the adverse inference instruction. The United States Court of Appeals for the Third Circuit has indicated that "[t]he unexplained failure or refusal of a party to judicial proceedings to produce evidence that would tend to throw light on the issues authorizes under certain circumstances, an inference or presumption unfavorable to such party." Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983). In order to warrant an adverse inference, the evidence must be within the party's possession or control. Id. Further, there must be an actual withholding of the evidence as opposed to an inadvertent loss or accidental destruction of the relevant evidence. Id.
As discussed at Part II. A. 6, supra, there was no explanation offered as to why the tapes of the Borough Council meeting discussing Risk's discharge were not produced. Pam Church, Borough Council member, testified that she believed that an audiotape from that meeting still existed. (Tr. 3/26/08 at 193.) No suggestion was offered that the tape had been inadvertently destroyed or lost. Because these tapes were highly relevant to the issues in the case, were clearly requested in discovery and not produced, and no attempt was made to bring them to the trial the day after Pam Church testified that she believed tape(s) existed, the Court did not err in giving the adverse inference instruction. Consequently, Defendant's Motion for a New Trial cannot be granted on this ground.
For the foregoing reasons, the Court must deny Defendant's Motion for Judgment as a Matter of Law, or in the alternative, for a New Trial at Doc. No. 121.
ORDER AND NOW, this 14th day of November, 2008, it is hereby ORDERED that Defendant's Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b), or for a New Trial pursuant to Fed. R. Civ. P. 59 (Doc. No. 121) is DENIED.
LISA PUPO LENIHAN United States Magistrate Judge
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APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
Rehearing denied January 29, 1981.
The plaintiffs, Faye Lurie and H. Haskell Lurie, on behalf of themselves and all others similarly situated, and the defendants, Canadian Javelin Limited, William M. Wismer, then president of Canadian Javelin, Limited, and John C. Doyle, founder and owner of the controlling interest of Canadian Javelin Limited, all appeal from an order of the circuit court of Cook County which required the defendants to pay $100,000 in attorneys' fees to the plaintiffs' attorney. The plaintiffs argue that the amount of the award is insufficient. The defendants argue that the trial court's award is excessive. The defendants have also appealed from an order granting fees to the trustee and an order expanding the class. However, these orders are no longer at issue on appeal, because subsequent to the filing of this appeal the defendants have agreed to pay the trustee and the order expanding the class has been vacated.
On December 5, 1973, the plaintiffs filed a four-count class action complaint in the circuit court of Cook County alleging common-law fraud, violation of Illinois securities laws, and violation of Federal securities laws. Two days later, the plaintiffs filed an action in the United States District Court for the Northern District of Illinois against the same defendants as named in this action alleging violation of Federal securities laws.
Two days prior to the filing of the instant action, a similar class action, Bonime v. Doyle (S.D.N.Y. 1975), 416 F. Supp. 1372, was filed in the United States Court for the Southern District of New York. The Bonime complaint was based upon similar misconduct, brought against the same defendants, and grounded in similar legal theories as the instant action.
The Lurie class was certified in the circuit court on July 16, 1976, 2 1/2 years after the filing of the complaint. On October 12, 1976, the parties filed a stipulation of settlement with the court. The proposed settlement was approved by the court on April 11, 1977.
The scope of the class and the extent of recovery as set forth in the stipulation of settlement was closely tied to the scope of the class and extent of recovery in Bonime. The Bonime class included, with some exceptions, all persons who purchased Canadian Javelin, Ltd. common stock between April 30, 1969, and October 24, 1973. Pursuant to a settlement which had been approved by the court, the Bonime action was dismissed on the merits with prejudice. All persons who did not opt out of the Bonime class were enjoined from continued prosecution of the defendants.
The Lurie class was described in the stipulation of settlement as all persons who opted out of the Bonime settlement, all persons whose claims were rejected in Bonime without proper notice, and all United States residents except "insiders" who purchased Canadian Javelin, Ltd., common stock between October 25, 1973, and December 19, 1974. According to the stipulation of settlement, Lurie class members entitled to recover would recover the same proportion of his or her loss as is recovered by the plaintiffs in Bonime. The Bonime plaintiffs are to share in proportion to their losses in a fund consisting of $1,350,000 less attorneys' fees and costs.
The Lurie stipulation of settlement provided further that the defendants would pay the plaintiffs' attorneys' fees. Counsel for the parties were to attempt to agree on the amount of attorneys' fees to be paid, but upon the failure to agree either party could petition the court to set the amount. The court's decision would be appealable but "shall not be reversed or modified unless the court's decision thereon is found to constitute an abuse of the court's discretion."
The parties further agreed that the plaintiffs would move that the action filed in the Northern District of Illinois be stayed. Upon the payment of claims to the Lurie class members, the plaintiffs are to move that the Federal action be dismissed.
In June of 1977, plaintiffs' counsel petitioned for fees totaling $321,454. He sought compensation for 2408 hours of attorneys' time at $125 per hour and 681.8 hours of law clerks' time at $30 per hour. He also requested that a multiplier be applied.
Included in the hours for which the plaintiffs' counsel sought compensation were 375.5 hours of attorneys' time and 66.8 hours of law clerks' time spent in connection with the Bonime action. The plaintiffs' counsel had filed objections to the Bonime settlement and argued against the approval of the settlement. These objections were ultimately rejected by the Bonime court. Counsel's fee petition also included a request for compensation for 181.3 hours of attorneys' time and 45.5 hours of law clerks' time expended in connection with the suit filed in the Northern District of Illinois.
There was a hearing on the fee petition on November 30, 1978. The court determined the reasonable hourly rate to be $75 per hour. This determination is not disputed by either party on appeal. The court determined that the plaintiffs should be compensated for 1850 hours of the 2408 hours requested. The 1850 hour figure was reached by excluding the attorney time and law clerk time expended in connection with the Bonime case and Illinois Federal court case and by excluding all of the law clerk hours expended in connection with the instant action. By multiplying $75 per hour by 1850 hours the court determined the "lodestar computation" to be $138,750. The court ordered the defendants to pay $100,000 of the $138,750 lodestar computation.
In making its decision on the fee petition the court discussed several factors. It noted first that although fees of $321,454 were requested, the total possible recovery to the class if no claim were rejected would be approximately $30,800. The court stated that measured against the small recovery even an award of the full lodestar computation of $138,750 would be "incongruous."
The court stated further, however, that several factors weighed in favor of a large award of attorneys' fees. It noted that the reason the award here was not substantial was because the Bonime action had been settled first. Further, the court stated that plaintiffs' counsel had done "an outstanding job" and that the plaintiffs had brought to the attention of the court and the public the fraud perpetrated by the defendants. The court considered also that the plaintiffs obtained an injunction against the future perpetration of such fraud and the deterrent effect of the injunction. Lastly, the court considered that plaintiffs' counsel had to spend such an extraordinary amount of time on this case in part because of improper conduct by the defendants. Weighing these factors together, the court determined that the lodestar figure of $138,750 should be reduced to $100,000.
In considering the plaintiffs' argument that the fees awarded by the trial court were insufficient and the defendants' argument that the fees awarded were excessive, we emphasize that this is not the usual class action attorneys' fees case. Here, it was agreed by the parties as part of the stipulation of settlement that the defendants would pay the plaintiffs' attorneys' fees. The fees were not to be paid, as is usually the case, from the class fund.
The leading case in Illinois concerning the award of fees in class action suits is Fiorito v. Jones (1978), 72 Ill.2d 73, 377 N.E.2d 1019. The court stated in Fiorito that in a class action suit the right to attorneys' fees is contingent upon ultimate success. If the plaintiffs are successful the trial court must determine the number of hours actually expended by counsel and deduct those hours which were the result of unnecessary, duplicative work efforts or inefficiency and those hours which did not benefit the class. That is, the trial court must determine how many of the claimed hours were reasonable and necessary for the prosecution of the action. Once the number of reasonable and necessary hours expended has been determined the trial court must fix a reasonable hourly rate. Reasonable and necessary hours are multiplied by the reasonable hourly rate to reach what is referred to as the "lodestar computation."
Here, the trial court fixed $75 as a reasonable hourly rate, and this determination is not disputed by either party on appeal. The petitioner requested compensation for 2408 hours. The trial court reduced that figure to 1850 hours. This reduction is not disputed on appeal by the defendants. The petitioner, however, asserts that the trial judge abused his discretion in disallowing the attorney and law clerk time expended in connection with the New York and Illinois Federal court actions and in denying compensation for the law clerk time expended in connection with the proceedings below.
• 1 The trial judge, who presided over the cause since the filing of the complaint, determined that the time spent on the two Federal court matters was unnecessary and did not benefit the class. Counsel's objections to the Bonime settlement were not successful. Further, the settlement which was accepted by counsel here as fair and reasonable provides for the same proportion of recovery as is recovered by the Bonime plaintiffs under the settlement which counsel objected to. Similarly, the Lurie plaintiffs were not successful in the Illinois Federal court action. We believe the trial judge, who was intimately familiar with the intricacies of this complex and lengthy litigation, was within his discretion in disallowing the attorney and law clerk time expended in connection with the New York and Illinois Federal court actions.
• 2 We conclude, however, that the trial court abused its discretion in denying compensation for the 569.5 law clerk hours which were expended on work directly connected to the Lurie circuit court action. There is no indication that this time was the result of unnecessary, duplicative work efforts or inefficiency or that the time spent did not benefit the class. We can find no authority for the proposition that time expended by law clerks on an hourly basis for work devoted to a specific case is per se non-compensable. The defendants cite no authority for disallowing the law clerk time expended here. Therefore, the 569.5 hours of law clerk time expended directly in connection with the proceedings below should be included in the lodestar computation. We believe the requested rate of $30 per hour is reasonable.
• 3 Thus, the lodestar computation here is $155,830. This figure represents 1850 hours of attorney time at $75 per hour and 569.5 hours of law clerk time at $30 per hour. According to the Fiorito analysis, once the lodestar computation is determined that computation is then "adjusted to account for the contingent nature of the undertaking and the benefits conferred upon the class." Fiorito, 72 Ill.2d 73, 91, 377 N.E.2d 1019, 1027.
Concerning the "contingent nature" the court must examine the probability or likelihood of the plaintiff's success at the time the suit was filed, so that the amount of fees awarded will reflect the fact that in some cases the defendant's liability may have been virtually certain while in others the defendant's liability may have been quite remote. The benefits conferred upon the class is a factor because where there is little benefit "each dollar awarded in attorney fees would further reduce the recovery of the class members." (Fiorito, 72 Ill.2d 73, 92, 377 N.E.2d 1019, 1027.) In examining the benefit to the class, the court may consider non-economic benefits accruing to the class and to the public.
In determining what adjustment should be made to the lodestar computation here, we first consider the plaintiff's contention that under Fiorito the lodestar computation may never be reduced and that therefore the minimum fee that could properly be awarded here is $155,830. In support of this contention the plaintiffs argue that in Fiorito the court several times refers to increasing or multiplying the lodestar but does not refer to decreasing it.
However, the court in Fiorito did not address the issue of whether the lodestar figure could, under appropriate circumstances, be reduced. In stating the general rule, the supreme court referred to "adjusting" the lodestar. The subsequent references to multipliers and increases reflected that the facts presented in that case warranted an increase of the lodestar.
Further, as noted above, in the usual class action case attorneys' fees are paid from the class fund. Applying the plaintiff's analysis, attorneys' fees could be awarded in an amount larger than the fund from which they are to be paid. We do not believe that Fiorito, which involved the payment of attorneys' fees from the class fund, intended such a result.
We next consider the parties' arguments concerning the amount by which the trial court reduced the lodestar computation. The defendants contend that the absolute maximum potential benefit to the class here was only $30,800 and that for this reason it was improper to award fees in excess of $30,800. The plaintiffs contend that there should be no reduction and that in fact a multiplier should be applied because there was great benefit to the class and because the attorneys' fees were to be paid by the defendant and not out of a class fund.
We believe that although the benefit to the class in this case was small, the trial court acted properly in awarding $100,000 as attorneys' fees because of the interrelationship of four factors present in this case. First, this is not a case where the attorneys' fees are to be paid from the class fund. By agreement of the parties the attorneys' fees were to be paid by the defendant and not out of the class fund. One of the reasons that benefits to the class is a consideration in determining attorneys' fees in class action suits is that where there is a small award the courts> are reluctant to further reduce the recovery of the class members by a large award of fees. (Fiorito, 72 Ill.2d 73, 92, 377 N.E.2d 1019, 1027.) Therefore, where the defendant has agreed to pay the plaintiffs' attorneys' fees, the amount of fees recoverable is not so strictly constrained by a consideration of "benefit to the class" or size of the class fund as is the case where fees are to be paid from the class fund. Second, this case does involve some measure of non-economic benefit. An injunction was issued against the defendants, and, given the lengthy history of repeated securities fraud by the defendants, we believe the injunction is of some importance. Third, the small recovery here was a result of unusual circumstances. The claim here as originally filed was quite substantial and the plaintiffs succeeded in establishing liability. It was the rather fortuitous circumstance of the Bonime case being settled prior to this case which resulted in there being a small number of class members and thus a small award of damages. Finally, as noted by the trial judge, plaintiffs' counsel expended a large amount of time on this cause in part because of the defendants' improper conduct.
• 4 While a consideration of the above factors is justification for not reducing the lodestar computation to below $30,800, these factors are not sufficient to warrant the application of a multiplier or the award of the full lodestar computation. While the size of the fund has reduced significance here because the attorneys' fees are not to be paid out of that fund, the small recovery to the class is a factor under Fiorito and may not be ignored. Therefore, we believe that in light of the small recovery to the class the trial court was warranted in reducing the lodestar computation to $100,000 and in not applying a multiplier. The trial court's order awarding $100,000 for attorneys' fees is proper notwithstanding our determination that the lodestar computation is $155,830 rather than $138,750.
For the foregoing reasons the order of the trial court is affirmed.
JOHNSON and ROMITI, JJ., concur.
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TA301 - Automotive Battery/Alternator Voltage Tester 12V
Supplier: Jack Sealey Ltd | Brand: SEALEY | Product: TA301
Share this product
Details of TA301
o Professional quality, heavy-duty tester.
o Features colour-coded, 6-LED display, showing battery and alternator voltages.
o Suitable for 12V systems.
o No internal battery required.
Barcode: 5024209100953
Warranty: 1 Year
0.227 Kg
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Christmas in the Holy Land: Jerusalem Events
Want to get in the Christmas spirit in Jerusalem? These events will certainly spread the joy.
Still in the Christmas spirit? Glad to hear it, because yesterday's tourist tip – which highlighted some of the events taking place in
Want to enjoy 'Zen' reading - with no ads and just the article? Subscribe todaySubscribe now


text:
It's Gonna Go Away
KornBuy this song
Ooh fuck fuck fuck I've gotta let her go (What happened?) (What happened then?) Never let it up let it up let it up Ah! Let it up I don't want this to go away (Go away) I'm so scared (Going away) I can't stand what's going on (It's going away) We all crumble (It's still gonna go away) (It's still gonna go away) We crumble under pressure (pressure) Pressure (pressure) I can't go living on
Written by: BRIAN WELCH, DAVID RANDALL SILVERIA, JAMES CHRISTIAN SHAFFER, JONATHAN HOWSMAN DAVIS, REGINALD ARVIZU
Lyrics © Universal Music Publishing Group
Lyrics Licensed & Provided by LyricFind
Discuss the It's Gonna Go Away Lyrics with the community:
Use the citation below to add these lyrics to your bibliography:
"It's Gonna Go Away Lyrics." Lyrics.com. STANDS4 LLC, 2016. Web. 4 Dec. 2016. <http://www.lyrics.com/lyric/3296277>.


text:
Sun Sational Cheesecake
|Graham cracker crumbs
|1 Cup (16 tbs)
|3 Tablespoon
|3 Tablespoon, melted
|Cream cheese
|24 Ounce, softened (3 packages, 8 ounces each)
|1 Cup (16 tbs)
|3 Tablespoon
|Lemon juice
|2 Tablespoon
|Grated lemon peel
|1 Tablespoon
|1⁄2 Teaspoon
|4 (1 separated)
|3⁄4 Cup (12 tbs)
|2 Tablespoon
|1⁄2 Cup (8 tbs)
|Lemon juice
|1⁄4 Cup (4 tbs)
Combine crumbs, sugar and margarine; press onto bottom of 9-inch springform pan.
Bake at 325°, 10 minutes.
Combine cream cheese, sugar, flour, juice, peel and vanilla, mixing at medium speed on electric mixer until well blended.
Add three eggs, one at a time, mixing well after each addition.
Beat in remaining egg white; reserve yolk for glaze.
Four over crust.
Bake at 450°, 10 minutes.
Reduce oven temperature to 250°; continue baking 30 minutes.
Loosen cake from rim of pan; cool before removing rim of pan.
Combine sugar and cornstarch in saucepan; stir in water and juice Cook, stirring constantly, until clear and thickened.
Add small amount of hot mixture to slightly beaten egg; yolk.
Return to hot mixture; cook 3 minutes, stirring constantly.
Cool slightly.
Spoon over cheesecake; chill.
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 4866 Calories from Fat 2570
% Daily Value*
Total Fat 291 g448.2%
Saturated Fat 144 g719.8%
Trans Fat 0 g
Cholesterol 1594.2 mg531.4%
Sodium 2602.6 mg108.4%
Total Carbohydrates 513 g171.1%
Dietary Fiber 3.4 g13.8%
Sugars 426.3 g
Protein 72 g144.4%
Vitamin A 224.3% Vitamin C 102.1%
Calcium 81.2% Iron 48.1%
*Based on a 2000 Calorie diet


text:
As Big Government tightens it grip on healthcare, the field will increasing reflect the values of the liberal ruling class. Already, neglected vets are dying of treatable diseases, while bureaucrats announce that taxpayers will now foot the bill for sex change operations:
Transgender people receiving Medicare may no longer be automatically denied coverage for sex reassignment surgeries, a U.S. Department of Health and Services review board ruled Friday in a groundbreaking decision that recognizes the procedures as a medically necessary and effective treatment for individuals who do not identify with their biological sex.
Our bureaucratic masters ruled in favor of a 74-year-old man going by the name Denee Mallon, who has decided that he wants to start over as a girl and that we should pay for it.
Those with less politically correct medical needs than sex change operations will be deprioritized. But they can always just take a pill, as Obama infamously advised.
The original purpose of Medicare was to provide necessary medical coverage for the elderly when they cannot provide for themselves. But given the nature of government in general and our government in particular, it was inevitable that it would degenerate into bureaucrats stealing people's money to finance grotesque procedures to surgically deform the bodies of the aging mentally ill for the greater glory of left-wing ideology.
On tips from Hiram, Jester, and Bill T. Hat tip: Conservative Refocus. Cross-posted at Moonbattery.
Also see...
Even though my father, brother, uncles and grandfather were in the military, I seldom handled guns growing up. That's because unlike many of the other people in my family, I've...Read More
Dave Blount
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Gov't Refuses Transplant, NYTimes Says it's Insurance Problem?
It is interesting to see how people will twist and turn reality in order to support President Obama's socialistic healthcare


text:
April 22, 2016 - Product News
Webb Brake Adjusters' self-setting automatic brake adjusters will come standard on all Fontaine platform and heavy-duty trailers equipped with Hendrickson axles and suspensions.
Tags: Marmon Highway Technologies, Fontaine, Hendrickson, Automatic Slack Adjusters
September 29, 2015 - Industry News
The American Council of Frame and Alignment Specialists will focus on axle maintenance during its 23rd Technician Training Clinic.
Tags: Technician Training, ACOFAS, Hendrickson
April 17, 2014 - Industry News
The Hendrickson Vehicle Suspension Institute scheduled its next session of hands-on technical suspension training for the heavy-duty transportation industry.
Tags: Technician Training, Events, Hendrickson
August 14, 2013 - Industry News
Hendrickson has scheduled its 13th session of Hendrickson Vehicle Suspension Institute technical suspension training for heavy-duty transportation service technicians and parts personnel.
Tags: Technician Training, Hendrickson
April 8, 2013 - Industry News
Hendrickson has scheduled its next round of technical suspension training for the heavy-duty transportation industry with its 11th session of the Hendrickson Vehicle Suspension Institute in the Dallas Forth Worth area in May.
Tags: Training, Texas, Suspensions, Hendrickson
We offer e-newsletters that deliver targeted news and information for the entire fleet industry.
The expert, Shawn Whitacre from Chevron Delo, will answer your questions
The expert, Steve Carlson from Xantrex, will answer your questions
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On the Spot: Drive the Future With Volvo's SuperTruck [Video]
Highlights From ATA Management Conference & Exhibition [Video]
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App Helps Truckers Report Accidents
Charger Keeps Batteries Topped Off in Winter
Tool Designed to Remove Tie Rods and Ball Joints
Driver Wellness Courses Address 3 Key Concerns


text:
4143 Vail Lane W, Gaylord 49735
See more homes for sale in Gaylord, MI
This Cabin Needs Some Love And Attention, But Could Be A Decent Retreat With Some Elbow Grease. Lake Access Is Included. The Detached Garage Has A Large Workroom In The Upstairs Area.
Property Information
- Subdivision
- T30n R3w
- Total Finished SqFt
- 800
- Above Grade SqFt
- 800
- Garage
- 2.0
- Garage Desc.
- Detached/Unheated
- Water
- See Remarks
- Sewer
- Septic
- Home Style
- Mobile
- Taxes
- $360
Rooms and Land
- MasterBedroom:
- 11.5 x 11.5 1st Floor
- Bedroom2:
- 10 x 9 1st Floor
- Kitchen:
- combo 1st Floor
- Living:
- 26.5 x 12 1st Floor
- Dining:
- 17.5 x 11 1st Floor
- Acreage
- 1.06
- Exterior Materials
- Aluminum
- Exterior Features
- Shed
Listing Video for 4143 Vail Lane W, Gaylord MI 49735
Mortgage Calculator
Listing Broker
Listing Courtesy of Coldwell Banker Schmidt Gaylord
Office Address 700 W. Main St.
Listings last updated: . Some properties that appear for sale on this web site may subsequently have been sold and may no longer be available.
Our Michigan real estate agents can answer all of your questions about 4143 Vail Lane W, Gaylord MI 49735. Real Estate One, Max Broock Realtors, and J&J Realtors are part of the Real Estate One Family of Companies and dominate the Gaylord, Michigan real estate market. To sell or buy a home in Gaylord, Michigan, contact our real estate agents as we know the Gaylord, Michigan real estate market better than anyone with over 100 years of experience in Gaylord, Michigan real estate for sale.
The data relating to real estate for sale on this web site appears in part from the IDX programs of our Multiple Listing Services. Real Estate listings held by brokerage firms other than Real Estate One includes the name and address of the listing broker where available.
IDX information is provided exclusively for consumers personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.
The data relating to real estate one this web site comes in part from the Internet Data Exchange Program of the Water Wonderland MLS (WWLX). Real Estate listings held by brokerage firms other than Real Estate One are marked with the WWLX logo and the detailed information about said listing includes the listing office. Water Wonderland MLS, Inc. © All rights reserved.


text:
Teaching Tree is Looking for Volunteers!
Cause Areas
WhenMon Jun 13, 2016 - Tue Jun 13, 2017
Where424 Pine St.Fort Collins, CO 80524
Teaching Tree serves a critical and growing community need for quality childcare for infants and children from birth until age 5. We foster the growth, creativity and development of every child within an environment of trust, respect, comfort and security.
Volunteers assist teachers with daily activites ranging from reading and art activites, to naptime and meals. We are able to accomodate the volunteer's schedule and preference of age group, and ask that you commit to a regular weekly block of time. Backgrounds and interest in early childhood education are sought after, and flexibility, patience, and communication skills are necessary.
Good Match For
Requirements & Commitment
- Must be at least 16
- Orientation or Training
- All will be background checked and fingerprinted.


text:
|Publication number
|Publication type
|Application number
|Publication date
|Nov 3, 2009
|Filing date
|Nov 15, 2006
|Priority date
|Nov 15, 2006
|Fee status
|Also published as
|Publication number
|Yawshing Tang, Carl Xiaodong Che
|Original Assignee
|Samsung Electronics Co., Ltd.
|Export Citation
|BiBTeX, EndNote, RefMan
|Patent Citations (4), Non-Patent Citations (2), Referenced by (2), Classifications (5), Legal Events (2)
|External Links: USPTO, USPTO Assignment, Espacenet
1. Field of the Invention
The present invention relates to writing data onto a disk of a hard disk drive.
2. Background Information
Hard disk drives contain a plurality of magnetic heads that are coupled to rotating disks. The heads write and read information by magnetizing and sensing the magnetic fields of the disk surfaces. Each head is attached to a flexure arm to create a subassembly commonly referred to as a head gimbal assembly ("HGA"). The HGA's are suspended from an actuator arm. The actuator arm has a voice coil motor that can move the heads across the surfaces of the disks.
Data is stored on the disk as a series of ones and zeros. Each bit of data is typically written during an electronic timing window. A disk may be segmented into a plurality of individual magnetic areas. Each area is separated from an adjacent magnetic area by a non-magnetic space. Segmented disks can reduce the amount of magnetic interaction between magnetize areas of the disk. The difficulty with segmented disks is timing the writing to align with a magnetic area. For example, a head may write a bit when the write element is between two magnetic areas, causing magnetization of both areas. Such an event will create an additional bit in the bit stream.
It is difficult to detect such error bits because the read channel of the drive is continuously reading a stream of ones and zeros. Standard error correction techniques cannot typically account for added or dropped bits in a stream of data read from a disk. It would be desirable to detect and correct for added or dropped bits in a bitstream read from a disk of a hard drive.
A hard disk drive with a circuit that encodes a series of bits into a plurality of first codes and writes the first codes onto a disk. The first codes have a sequence so that when one of a plurality of second codes is read back from the disk and includes an extra bit, the second code can only be one of the first codes.
Disclosed is a hard disk drive with an encoder that writes data onto a disk in accordance with a plurality of first codes. Each code contains a plurality of digital bits. The first codes are selected so that if a bit is added or dropped during a write or read process the resulting bitstream can only be one of the selected first codes. This allows the bitstream to be accurately decoded to detect and correct for the added/dropped bit.
Referring to the drawings more particularly by reference numbers,
The disk drive 10 may include a plurality of heads 20 located adjacent to the disks 12. As shown in
Referring to
The hard disk drive 10 may include a printed circuit board assembly 38 that includes a plurality of integrated circuits 40 coupled to a printed circuit board 42. The printed circuit board 40 is coupled to the voice coil 32, heads 20 and spindle motor 14 by wires (not shown).
The read/write channel circuit 62 is connected to a controller 64 through read and write channels 66 and 68, respectively, and read and write gates 70 and 72, respectively. The read gate 70 is enabled when data is to be read from the disks 12. The write gate 72 is to be enabled when writing data to the disks 12. The controller 64 may be a digital signal processor that operates in accordance with a software routine, including a routine(s) to write and read data from the disks 12. The read/write channel circuit 62 and controller 64 may also be connected to a motor control circuit 74 which controls the voice coil motor 36 and spindle motor 14 of the disk drive 10. The controller 64 may be connected to a non-volatile memory device 76. By way of example, the device 76 may be a read only memory ("ROM") that contains instructions that are read by the controller 64.
The write channel may include a encoder 80 that encodes the incoming data into a plurality of first codes. The encoder 80 may include a map that maps incoming bitstreams into outgoing bitstreams having a different binary pattern. The first codes are selected so that if a bit is added or dropped during the write or read process onto the disk, the resultant bitstream read from the disk will always include one of the first codes. The read channel has a decoder 82 that selects a first code word from a bitstream and maps the code back to the original bitstream.
The first codes can be selected with the following process. Assume the code words have N bits. First, there is generated a list of all possible N+1 code words. The +1 represents an error bit that was inadvertently added during a write or read process from the disk.
Then as shown in
Next a code word is selected and all rows with this code are noted and codes associated with these rows that are not the selected word are deselected and indicated by the cross-throughs in
In this example, the code word 111 can be selected to complete the process. The selected codes are used as the first codes generated by the encoder 80. The deselected codes are not used by the encoder 80. Thus when a corrupted bitstream is read from the disk, there can only be one correct code word. For example, the read code 0011 is always decoded as 001, not 011. The first codes are decoded by the decoder 82 and then mapped back to the original bitstream.
The technique shown in
While certain exemplary embodiments have been described and shown in the accompanying drawings, it is to be understood that such embodiments are merely illustrative of and not restrictive on the broad invention, and that this invention not be limited to the specific constructions and arrangements shown and described, since various other modifications may occur to those ordinarily skilled in the art.
|Cited Patent
|Filing date
|Publication date
|Jan 28, 1997
|Dec 21, 1999
|Cirrus Logic, Inc.
|Servo decoder for decoding an error correcting servo code recorded on a disc storage medium
|Oct 29, 1997
|Sep 5, 2000
|Cirrus Logic, Inc.
|PR4 sampled amplitude read channel for detecting user data and embedded servo data
|Aug 14, 1998
|Dec 26, 2000
|Overland Data, Inc.
|Write format for digital data storage
|Jun 29, 2001
|Jan 9, 2003
|Bliss William G.
|Method and apparatus for viterbi detector state metric re-normalization
|Eiichi Tanaka et al., Synchronization and Substitution Error-Correcting Codes for the Levenshtein Metric, IEEE Transactions on Information Theory, vol. IT22, No. 2, Mar. 1976.
|H.C. Ferreira et al., Insertion/Delection Correction, IEEE Transactions on Information Theory, vol. 43, No. 2, Mar. 1997.
|Citing Patent
|Filing date
|Publication date
|Jul 28, 2008
|Jul 3, 2012
|Marvell International Ltd.
|Long latency protocol for hard disk controller interface
|Jul 2, 2012
|Jul 16, 2013
|Marvell International Ltd.
|Long latency protocol for hard disk controller interface
|U.S. Classification
|360/40, 360/48
|International Classification
|Cooperative Classification
|European Classification
|Nov 15, 2006
Owner name: SAMSUNG ELECTRONICS CO., LTD., KOREA, REPUBLIC OF
Free format text: ASSIGNMENT OF ASSIGNORS INTEREST;ASSIGNORS:TANG, YAWSHING;CHE, CARL XIAODONG;REEL/FRAME:018587/0615;SIGNING DATES FROM 20061108 TO 20061109
|Mar 14, 2013
|Fee payment
Year of fee payment: 4


text:
Apple Cream Cheese Sandwiches
|Tart apple
|1 Medium, cored and cut into 1/4-inch slices
|Lemon juice
|1 Tablespoon
|Cream cheese
|4 Ounce, softened
|4 Teaspoon
|Pumpernickel/Raisin bread
|8 (Plain Or Toasted)
1. In a mixing bowl, toss the apple slices with the lemon juice, and set aside.
2. Mix the cream cheese with the honey in a small bowl, and spread the mixture on 4 slices of the bread. Drain the apples, and place them on the cream cheese. Top with the remaining bread.
Recipe Summary
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 1063 Calories from Fat 397
% Daily Value*
Total Fat 45 g69.6%
Saturated Fat 22.8 g113.9%
Trans Fat 0 g
Cholesterol 124.7 mg41.6%
Sodium 1760.8 mg73.4%
Total Carbohydrates 142 g47.2%
Dietary Fiber 15.9 g63.5%
Sugars 36.3 g
Protein 25 g49.9%
Vitamin A 28.7% Vitamin C 363.1%
Calcium 34.6% Iron 36.1%
*Based on a 2000 Calorie diet


text:
|HEALTHCARE TRANSFER SERVICES: For businesses with serious information and data about their products, services and clients, keeping such data safe and secure somewhere where it can be retrieved quickly is critical. A cloud backup service is the right solution to make your life easier when it comes to disaster recovery.
|KANSAS CITY REAL ESTATE: Whether you are a first time home buyer or not, finding the right Kansas City Real Estate agent is important and you should interview multiple agents before you make a decision. For Sale by Owner in Kansas City is also an option or construction of a New Home and finding your own contractors to help develop your property is available on the KCMetro.com Kansas City Real Estate section.
Professional Real Estate Property Managers in KC: Since 2000, Premier Real Estate Management, Inc. has been offering full range of real estate and multifamily property management services in and around Kansas City with the help of professional and experienced team of property managers.
|CANCER AWARENESS MONTH: Renal cell cancer (RCC)is a type of cancer or maybe a mass that grows inside the meat in the kidney. It can be more widespread than cancer in the renal pelvis, the part of the kidney that accumulates the urine. Having an effect on about 32,000 Americans annually, this cancer of the kidney usually responds well to treatment when found early. Make sure you go to your health care provider if you have issues.


text:
Thread: PHP/MySQL Developer Available
08-04-2002, 09:20 PM #1New Member
- Join Date
- Jul 2002
- Location
- Canada
- Posts
- 1
PHP/MySQL Developer Available
I am available for almost any project invlolving but not limited to PHP/MySQL/PostgreSQL/mSQL/HTML/Javascript ... I have done many projects that include Shopping carts, News scripts, Banner Rotators, Pay per click websites, Server control panels and alot more. I am currently working on my portfolio, and website with the domain http://www.tickner.net which should be up in a few days to a few weeks depending on how business goes.
I charge a very low fee, and am online almost all day (So if you e-mail me I can probably get back to you in an hour or less).
MSN Messenger handle / Email : [email protected]
AOL handle: tickner911
I also check my PMs every now and then, though I dont trust it, so I would prefer the email or AIM if possible.
I look forward for working with YOU
Last edited by PHPBUG; 08-06-2002 at 06:19 AM.
09-01-2002, 09:14 AM #2Disabled
- Join Date
- Jun 2002
- Location
- Memphis TN
- Posts
- 15


text:
3 vehicles matched;
Now showing page 1 of 1. 25 results per page.
Listed by Russo And Steele (Auction)
Vehicle to be offered for Auction sale January 19th - 22nd, 2017 at Russo and Steele's 17th Annual Scottsdale Arizona
Listed by Cruisin Classics
For your pleasure, CRUISIN CLASSICS is proud to introduce an ALL STEEL, 1939 Chevrolet Sedan Delivery Master Deluxe. It is
Listed by Classical Gas Enterprises
1940 Chevrolet Sedan Delivery
With the creation of the Sedan Delivery businesses rejoiced. Suddenly the idea