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April 29, 2011
MICHAEL A. WILLIS AND KENDRICK OWENS, PLAINTIFFS,v.WILLIAM J. LEPINE, DERECK R. GLOWACKI, AND CITY OF CHICAGO, DEFENDANTS.
Plaintiffs Michael A. Willis and Kendrick Owens filed suit against the City of Chicago and two Chicago police officers, William Lepine and Derek Glowacki, for false arrest, illegal search, and malicious prosecution. Plaintiffs alleged that Officers Lepine and Glowacki arrested them without probable cause on the evening of February 26, 2006 and that, incident to this arrest, they were subject to a strip search and other humiliating procedures at a Chicago police station. Plaintiffs further alleged that Officers Lepine and Glowacki falsely accused them of possessing a controlled substance, ecstasy, and then maliciously prosecuted them for the crime of conspiracy to manufacture or deliver a controlled substance. After a three-day trial, the jury rendered a verdict in favor of defendants on all claims. Before the court are plaintiffs' motions to vacate judgment pursuant to Federal Rule of Civil Procedure 60(b)(3) or, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59(a), arguing that defense counsel committed misconduct during closing statements and during the cross-examination of plaintiffs that severely prejudiced the presentation of plaintiffs' case. Plaintiffs and defendants have both filed motions for sanctions against their opponent. See Dkt. #64, 69. For the following reasons, plaintiffs' motions for a new trial and to set aside judgment are denied. Plaintiffs' motion for sanctions is denied. Defendants' motion for sanctions is denied.
Federal Rule of Civil Procedure 60(b)(3) authorizes the court to relieve a party from a final judgment for " . . . misrepresentation, or misconduct by an opposing party." A party moving for relief under Rule 60(b)(3) must prove that: (1) it presented a meritorious claim at trial, and (2) because of fraud, misrepresentation, or misconduct of the adverse party, (3) it was not ably to fully and fairly present its case at trial. Wickens v. Shell Oil Co., 620 F.3d 747, 758--59 (7th Cir. 2010); Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). Rule 60(b)(3) applies to both intentional and unintentional misrepresentations. Lonsdorf, 47 F.3d at 897. "In considering these requirements, a court must weigh the competing policy interests of the finality of judgment against fundamental fairness in light of all the facts." Id. A plaintiff requesting relief under Rule 60(b)(3) "need show only that [the misconduct] affected his ability to present his case, not that he would have won had the . . . misconduct not occurred." Ty Inc. v. Softbelly's, Inc., 353 F.3d 528, 536 (7th Cir. 2003).
Federal Rule of Civil Procedure 59(a) permits the court, "on motion, [to] grant a new trial on all or some of the issues -- and to any party -- . . . 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)(1)(A). When the moving party has requested a new trial because of attorney misconduct, the court's inquiry under Rule 59(a) is similar to its inquiry under Rule 60(b)(3).*fn1 See Wharf v. Burlington Northern R. Co., 60 F.3d 631, 637 (9th Cir. 1995) ("The standards for granting new trials are essentially the same under both rules, although a Rule 59 motion, because it must be made within 10 days, may require a slightly lower showing than a motion under Rule 60.");*fn2 White v. Anthology, Inc., No. 08 C 1371, 2009 WL 4215096, at *2 (N.D. Ill. Nov. 16, 2009) ("Neither side suggests that the standard for determining a motion for new trial based on introduction of false testimony differs from that for determining a motion to vacate a judgment under Rule 60(b)(3) on those grounds, so the Court will apply the same standard."); United States v. Cinergy Corp., No. 1:99-cv-1693-LJM-JMS, 2008 WL 7679914, at *11 (S.D. Ind. Dec. 18, 2008) (analyzing motion filed under Rule 59(a) using the standard articulated by the Seventh Circuit for Rule 60(b)(3)). The court will grant a new trial where "the trial was not fair to the party moving." Davis v. FMC Corp., Food Processing Mach. Div., 771 F.2d 224, 232--33 (7th Cir. 1985). "The misconduct of counsel . . . justifies a new trial where that misconduct prejudiced the adverse party." Id. at 233 (quoting Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir. 1983)); Falk v. Paluch, 163 F.R.D. 8, 9 (N.D. Ill. 1995). In assessing whether the misconduct prejudiced the jury's decision, the court's inquiry is limited by Federal Rule of Evidence 606(b), which prohibits a juror from testifying regarding deliberations or any mental and emotional reactions that occurred during deliberations. Wiedemann, 722 F.2d at 337.
The court will examine plaintiffs' Rule 60(b)(3) and 59(a) motions together, as plaintiffs rely on identical arguments in support of each motion and the applicable legal standards are substantially the same. Plaintiffs first assert that defense counsel improperly led the jury to believe that plaintiffs were gang members and drug dealers by making a prejudicial speaking objection during plaintiffs' rebuttal closing statement. The transcript reflects the following exchange between plaintiffs' counsel, defense counsel, and the court:
MS. DYMKAR: Each one of these plaintiffs' witnesses, including the plaintiffs, got on the stand and told you who they are. They're working people. They're honest people. You didn't hear anything about anybody having a criminal record or background or anything negative about anybody. They came and told you the truth. . . . And the ridicule that [defense counsel] gives about this neighborhood. If these kids were bad kids, you'd know. He would have wanted you to know that they were doing drugs and were gang bangers and they were doing drugs and --
MR. NOWICKI: Objection, your Honor. We're not allowed to introduce that, and counsel knows that. She threw that in the opening close, and she threw it in again. We can't bring that to the jury.
MS. DYMKAR: Your Honor, I object to that statement. There is nothing here.
THE COURT: All right. I overrule the objection. Go ahead.
MS. DYMKAR: Thank you. If there were negative things, you would have heard about them. We have got positive things. Good family, church, jobs, and he's complaining about that. He said this is embellishing.
01/13/11 Tr. at 23:11--24:11. Defense counsel's speaking objection was highly improper because counsel had no evidence that plaintiffs were "gang bangers" or "doing drugs," but it implied the contrary: that there was evidence regarding plaintiffs' prior criminal activities that had been excluded from evidence. Moreover, the statement was not true, as the court had not excluded evidence of either plaintiff's activities of this sort.
This court is not persuaded, however, that defense counsel's misconduct prejudiced plaintiffs such that they were not able to fully and fairly present their case at trial. See Lonsdorf, 47 F.3d at 897 (discussing Rule 60(b)(2)); Davis, 771 F.2d at 233 (discussing Rule 59(a)). The misconduct occurred during closing argument. It did not interfere with the presentation of plaintiffs' evidence, nor was it false evidence or incorrect legal argument that was left uncorrected during the course of trial. Compare with Ty Inc., 353 F.3d at 536 (witness tampering); Lonsdorf, 47 F.3d at 897 (presentation of altered document); Davis, 771 F.2d at 233--34 (defendant impermissibly argued contribution between joint tortfeasors, and verdict showed that the jury had been confused); White, 2009 WL 4215096, at *1--2 (false testimony); Cinergy Corp., 2008 WL 7679914, at *11--12 (defendant's non-disclosure of consulting relationship with former employee- witness while relying on theme that the opponent's witnesses were paid expert witnesses in contrast to the defendant's own employee- and former employee-witnesses). Ms. Dymkar immediately objected to the objection and announced, "There is nothing here." After Mr. Nowicki's objection was overruled, Ms. Dymkar continued, "If there were negative things, you would have heard about them." The court's ruling and plaintiffs' counsel's additional statements mitigated the prejudice that resulted from defense counsel's objection. See Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008) ("[I]mproper comments during closing argument rarely rise to the level of reversible error. . . . [C]urative instructions to the jury mitigate harm that may otherwise have resulted from improper comments during closing argument." (quotations and citations omitted)); Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 644 (7th Cir. 1995) ("Improper remarks during a closing argument warrant reversal of judgment only if the remarks 'influenced the jury in such a way that substantial prejudice resulted to' the opposing party." (quoting Arcor, Inc. v. Textron, Inc., 960 F.2d 710, 713 (7th Cir. 1992))); Falk, 163 F.R.D. at *9 (denying motion for new trial where counsel made "unfounded and inappropriate" objections during plaintiff's closing statement but objections had been overruled and were harmless error).
Plaintiffs also argue that defense counsel flouted the court's ruling on the parties' motions in limine by asking questions that were intended to imply that Brandon Thompson, who was arrested with plaintiffs, had been convicted of dealing drugs. Thompson was twenty-two years old at the time and, after his arrest, was charged with manufacture or delivery of a controlled substance. Thompson entered into a plea bargain in which he agreed to plead guilty in exchange for a sentence of twenty-four months' probation. Thompson also had two prior convictions and had previously been arrested. The court had ruled in limine that evidence of Thompson's guilty plea and prior arrests and convictions could only be admitted for impeachment purposes if Thompson were to testify and if plaintiffs were to raise the issue during their case-in-chief. See Dkt. #50. The court explained that "plaintiffs would be greatly prejudiced by the admission of this evidence because the jury might impute Thompson's admitted guilt to plaintiffs." Id. Plaintiffs argue that defense counsel violated the court's evidentiary rulings by "inserting Brandon Thompson's name and his implied guilt at every possible opportunity" during the trial.
Specifically, plaintiffs argue that defense counsel impermissibly asked plaintiffs "why Thompson had not filed suit against defendants," "why Thompson was not called as a witness," and "why Thompson was in the neighborhood at the time" of the arrest. After the close of trial, plaintiffs found a signed note from one of the jurors that states, "Can we find out what was the disposition of the Brandon Thompson case?" Pls.' Rule 60(b)(3) Mot., Ex. B.
Although evidence of Thompson's background was excluded, Thompson was still important to presentation of the case because he was standing with plaintiffs in front of plaintiffs' home when the incident occurred, a fact plaintiffs themselves acknowledged. In defendants' version of events, shortly before the arrest of plaintiffs and Thompson, Officers Lepine and Glowacki received a call from their dispatcher who described a person who was selling drugs in a parking lot. They testified that the description matched Thompson's physical appearance, that they did surveillance in the area, observed plaintiffs yelling, "X," "X," (a reference to Ecstacy) near Thompson, and that they found drugs in a vacant lot. Officers Lepine and Glowacki testified that they observed Thompson receive money from someone and they believed it was a sale of drugs. Defense counsel argued that the calls of "X" and the apparent transaction gave them probable cause to arrest, and that they found drugs when searching plaintiffs at the scene. Plaintiffs' counsel, during closing statements, vigorously disputed the officers' testimony, that the description in the alleged citizen report matched the physical characteristics of Thompson, see 1/13/11 Tr. at 11:22--12:11, 14:18--15:3, 22:3--9, and thoroughly disputed the multiple inconsistencies between their version and other evidence in the case.
The court's analysis of defense counsel's cross-examination questions is hampered in that plaintiffs have not submitted any relevant excerpts of the trial transcript with their motion. For example, the court's notes reflect that defense counsel asked Kendrick Owens, "To your knowledge, has Brandon ever filed a lawsuit against these police officers?" This question is different from plaintiffs' characterization of the question, carrying somewhat less impact than "why" Thompson had not filed a lawsuit. Nonetheless, these questions were plainly intended, similar to the objection discussed above, to imply that Thompson was the individual seen to have been selling drugs in the area. It was an improper effort to evade the court's ruling.
Although the conduct is unbecoming of counsel, even without the questions, it would have been clear to the jury that Thompson had not joined plaintiffs' suit and was not called as a witness. In the end, the jury must have believed the officers' testimony that they had been in search of someone presently selling drugs. That accepted, it was not a stretch of logic for the jury to conclude that the missing Thompson was that someone. Plaintiffs' counsel chose the strategy to exclude the evidence about Thompson rather than let it in and confront it. Particularly where plaintiffs do not assert that they objected to the improper questions, this court is not persuaded that plaintiffs were prevented from fully presenting their case at trial. See Deppe v. Tripp, 863 F.2d 1356, 1364 (7th Cir. 1988) (party must object to errors to preserve them for review); Davis, 771 F.2d at 232--33 (district court may grant motion for new trial where "the trial was not fair" to the moving party); Ty Inc., 353 F.3d at 536 (moving party must show that misconduct "affected his ability to present his case" before court can set aside judgment).
Plaintiffs argue that the juror note shows that defense counsel's conduct had an adverse effect on the jury by causing them to focus unduly on Thompson. Federal Rule of Evidence 606(b) precludes the admission of a juror's testimony or statement concerning "any matter . . . occurring during the course of the jury's deliberations or . . . concerning the juror's mental processes in connection therewith." Fed. R. Evid. 606(b). Plaintiffs have not cited any authority to support the conclusion that the court can consider the note as part of its assessment of defense counsel's comments. Consistent with Rule 606(b), the court will not consider the note as evidence that defense counsel's comments prejudiced the jury. See United States v. Berry, 92 F.3d 597, 601 (7th Cir. 1996) ("[A] district court must ignore a juror's comment regarding how a particular piece of material disposed a juror toward a particular verdict, and the district court must make an independent determination of the likely effect of the extraneous material."); Wiedemann, 722 F.2d at 337 (inquiry into whether misconduct prejudiced the adverse party must be limited to evidence admissible under Rule 606(b)). Even if it were considered, however, for reasons explained in the preceding paragraph, the jury had other reasons to wonder about Thompson.
For these reasons, the court concludes that the misconduct of defense counsel, neither individually or together, justifies a new trial or relief from judgment.
II. Motions for Sanctions
Defendants, in their response to plaintiffs' Rule 59(a) motion, request sanctions under Federal Rule of Civil Procedure 11 because plaintiffs' counsel supposedly misrepresented the date when the court's judgment was "entered" on the case docket. The court's publicly-available electronic docketing system shows that judgment was indeed "entered" on January 19, 2011, even though it was "dated" January 13. Defendants' patently meritless request for sanctions will be denied. The court has also stricken the last paragraph of page seven of defendants' response to plaintiffs' Rule 60(b)(3) motion, which serves little purpose other than to sling mud at opposing counsel. In the future, defense counsel should refrain from injecting personal animosity towards plaintiffs' counsel into their briefs. See also Defs.' Br. at 7 (referring to plaintiffs' counsel as being "bitter about her loss" and exhorting the court to "decline to indulge her appetite" for a "second bite at the apple").
Plaintiffs request sanctions under Rule 60(b)(3), specifically attorneys' fees and costs. Plaintiffs further request that the court order that fees and costs be assessed personally to defense counsel pursuant to 28 U.S.C. § 1927, which provides that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." Plaintiffs' motion will be denied in light of the court's ruling on the merits of their Rule 60(b)(3) motion.
Plaintiffs' motions for a new trial [#66] and to vacate judgment [#64] are denied. Plaintiffs' motion for sanctions [#64] is denied. Defendants' motion for sanctions [#69] is denied.
JOAN HUMPHREY LEFKOW United States District Judge
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Pereslavl was founded in 1152 by Yury Dolgoruky in Zalesye region, which had got its name due to the forests and fields covering the area. The history of the city is full of the events which were quite bright and important for entire Russia...Read more ››
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Distributor Timing Indicator Moroso Performance 26100
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This feature lists your most prevalent gear bonuses. You may select a bonus to see which items provide that bonus.
Strength: 505
Primary attribute for Barbarians and Crusaders.
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The amount of damage per second you can deal.
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Rep. Gary Ackerman, D-N.Y., has reintroduced a bill that would require all downed livestock to be humanely euthanized and removed from the food chain. Ackerman says the bill would protect public health, as non-ambulatory cattle are more likely to be infected with bovine spongiform encephalopathy than those that can walk on their own. The bill is pending in the House Committee on Agriculture.
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Nice breakfast spot inland. Excellent coffee and varied menu. Everything was fresh and tasted good. Liked the many menu options. Did I say excelleent coffee! A little expensive but worth it as a special treat.
Came in for brunch. We were sat at a dirty table. I had to wipe it myself with napkins. Got coffee to start with. Waited a while for our foods. Their sausage is awful! Not coming back here again!
This place is cute & cosy, a bit too wam & stuffy even for me who hates & feels the cold more than most people.
Great menu & fast friendly service, the ordered a mazoo, which was a sandwich with a fried egg (I don't usually eat fried egg as I don't like it but didn't realize it was a...
This place is good, but it's the same food you can find at any diner of breakfast place. Waiting 20+ minutes for a table isn't worth it.
One of the best for breakfast in the area of Mystic. Hard to find place but the food is great. Expensive for breakfast but if you want to have a great meal spend the money.
As a second stop on an area day trip, I took a friend( who had never been on the back roads of southeastern CT) to lunch at Somewhere in Time, after visiting the Clyde Cider Mill. I knew we had to make this the 2nd stop on our road trip, since they are only open until 2 pm. I have...
We look forward to coming here once a year if we are in Mystic. The food is excellent and it's a great little place. You get your own coffee with as many refills as you want. The food is always good...omelettes, eggs, French toast, bacon and sausage. It's always crowded but we didnt have to wait long at all. It...
Geography has prevented me from eating here more often but fortunately I was asked to have a breakfast meeting here last week. Although you are on your own when it comes to getting coffee, they offer a great selection of different coffees and teas. The staff couldn't have been more polite or accommodating and the day specials and their menu...
My husband and I stopped in for breakfast on our way home from Foxwoods because we were looking for a quant little diner and some good food. And let me tell you, this place did not disappoint! My husband ordered the pumpkin pancakes with cinnamon swirl and cream cheese glaze and they were the best pancakes I've ever eaten. I...
Recommended by a staff member at the hotel. Don't blink or you might miss this quaint friendly local eatery. Unique menu offerings include vegetarian, Mexican, southern options. We bounced between the sampler, sausage and gravy, "the topper" and "the healthy" items. Hubby choose the sampler which included French toast, pancake, bacon, eggs, potatoes, sausage, and toast. I choose the topper...
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Vegetable Rice Casserole
Total Time
Prep 15 mins
Cook 30 mins
This is a yummy dish that's a meal in itself. It's a "clean out the refrigerator" kind of meal.
Ingredients Nutrition
- 1 box uncle bens instant wild rice
- 1 (6 ounce) can tomato sauce
- cut up vegetables (I use an onion, zucchini, yellow squash and mushrooms)
- olive oil
- cheddar cheese or mozzarella cheese, grated
- Saute vegetables in olive oil.
- Stir in tomato sauce-cook until veggies are soft.
- Add box of rice and a little water.
- Cook 5 minutes.
- Add seasoning envelope from box of rice.
- When rice is cooked, put it all in a casserole dish.
- Cover with grated cheese and broil until bubbly.


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Retailers' holiday ad spending falls
Retailers shift their ad spending from TV, radio and print ads to digital ads.
Retailers' holiday ad spending falls
Retailers shift their ad spending from TV, radio and print ads to digital ads.
Retailers rack up big holiday gains on online marketplaces
Sellers say they are faring particularly well on the marketplaces of Amazon and Wal-Mart so far this holiday season.
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You have voted for 50% of the entire collection of FMLs to date.
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MaydayParade1476's favorite FMLs
Today, my grandma has been running around the neighborhood, dressed as Bobo the Evil Clown, chasing trick-or-treaters. All I've been able to do is chase after her, and apologize to the terrified children's families. FML
by bobosgonnagetyou / 11/01/2013 at 2:04am / United States (Oregon) / Miscellaneous
Today, my boyfriend and I watched Star Trek Into Darkness together. He liked it so much that he's now chosen to yell "KHAAANNNNN!" as he cums. FML
by NOKHAN / 10/25/2013 at 1:17pm / United States (North Carolina) / Intimacy
Today, my mom was sharing the story of how I was born with the umbilical cord around my neck. My sister added that it was God's first attempt to kill me off. FML
by vrossie_ / 09/08/2013 at 1:56am / United States / Miscellaneous
Today, I was at the doctor's getting a check up. He asked me if I was allergic to anything, to which I blurted out, "Cats." He gave me a weird look and said, "Don't worry, I won't give you cats." FML
by NoNotCats =^._.^= / 09/03/2013 at 4:17am / United States (Arizona) / Health
Today, my mom mentioned how she loves certain actor's "British" accent. I couldn't help but mention that there's no such thing, and that there are lots of different accents in Britain. She got pissed and lectured me for "lying" to her and trying to make her feel stupid. FML
by Anonymous / 09/01/2013 at 6:35pm / United States (Texas) / Miscellaneous
Today, I got in a heated fight and ended up being punched in the jaw. The fight was about Harry Potter. FML
by Anonymous / 08/27/2013 at 3:21am / Canada (New Brunswick) / Geek
Today, my 50-year-old dad was in a foul mood after taking an online test that put him in Slytherin house instead of Ravenclaw where he "belongs" because he's "so smart". FML
by thanksad / 08/22/2013 at 9:38pm / United States (California) / Miscellaneous
Today, my sister had an emotional breakdown because two guys love her and she can't pick just one. Meanwhile I'm single and spend my time laying treats on my floor in a pattern and watching my rabbit run in circles. FML
by Having a pretty sister sucks. / 08/18/2013 at 9:36pm / United States (Texas) / Love
Today, I woke up to my 5-year-old standing over me with a pillow. I asked him what he was doing, and he replied that he and Steve were playing a game, but Steve said I have to be asleep for it. Steve is my son's imaginary friend. I'm convinced Steve wants to kill me. FML
by DrtySnchez / 08/18/2013 at 5:37am / United States (Georgia) / Kids
Today, I received a lemon in a box in the mail. I didn't know from who it was, nor how he or she knows my address. There was a note on it: "When life gives you lemons, date me." FML
by YayItsYasmine / 08/14/2013 at 12:48pm / Austria (Karnten) / Miscellaneous
Today, while cleaning my ears with Q-tips, I came in my pants. FML
by ANON / 08/13/2013 at 7:53pm / United States (California) / Intimacy
Today, I was buying ingredients for a salad. I had only picked up a few cucumbers, when an elderly lady came up to me and murmured, "Make sure you use lots of lube, or that'll hurt. Been there, sweetheart." What the HELL? FML
by um... what the fuck, miss? / 08/02/2013 at 4:23pm / United Kingdom / Miscellaneous
Today, my eldest daughter has 'officially' removed herself from our family and will no longer communicate with any of us. Apparently it's my fault that her younger sister is having a baby before her, and she can't be part of a family that 'treats her so unfairly'. FML
by JealousBratMuch / 07/25/2013 at 8:51pm / Canada (Alberta) / Kids
Today, I was on a bus and I was so exhausted that I fell asleep. According to a few other passengers, I nestled into the chest of the guy next to me, and hit him every time he made a noise. FML
by accountnamevalid / 07/21/2013 at 12:45am / United States (Colorado) / Transportation
Today, I went on a blind date and we seemed to have hit it off nicely. I asked him if he could drive me home. Along the way he stopped on a pitch-black road and told me to get out so he could take a picture. He then gave me my bag and drove off, leaving me stranded in the middle of nowhere. FML
by Misshhh / 07/19/2013 at 12:02am / Canada (British Columbia) / Transportation


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text:
The Pageant of Civilization.
BRODEUR, Arthur G.
• Terms • Ask a Question
Place Published: New York
Publisher: McBride
Date Published: 1931
Description: Illustrated. xxvii + 537pp., 8vo, cloth. New York: Robert M. McBride & Company, 1931. A very good (+) copy.Jacket: N
Binding: hardcover
Condition: very good(+)
Language: English
Type: Books
Book ID: 230318


text:
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New York Fashion Week Fall 2016 Street Style, Day 4
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New York Fashion Week Fall 2016 Street Style, Day 4
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Backstage at Opening Ceremony Fall 2016
Opening Ceremony
Humberto Leon and Carol Lim
always embrace the theatrical at their fashion shows, and this season was no exception. For their Fall 2016 collection, Leon and Lim recruited artist Syd Mead to create graphic, science fiction-inspired illustrations, which were incorporated into several pieces including dresses, sweatshirts, and t-shirts. The futurist vibe carried onto the runway, which included floating rafts, and hair and makeup.
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text:
Peanut Butter Balls
Total Time
Prep 2 hrs
Cook 4 hrs
These are a Christmas tradition at our house. I loved making them as a little girl and my six year old daughter helped me make some this year. It is my understanding they no longer recommend you eat Paraffin wax. You can use candy making chocolate if you prefer. Of note: these freeze really well and can be made several weeks before Christmas.
Ingredients Nutrition
- 1 lb margarine
- 2 lbs confectioners' sugar
- 2 cups peanut butter
- 1 teaspoon vanilla
- 24 ounces milk chocolate chips
- 1⁄4 lb paraffin wax
- Melt margarine and peanut butter over medium heat. Add vanilla.
- Place sugar in a large bowl. Pour peanut butter mixture over the sugar. Mix well.
- Roll into small balls (about 1 inch).
- Chill in freezer until balls are firm.
- Melt wax in a double boiler. Add chocolate chips, stirring until melted.
- Dip balls into chocolate. Cool on wax paper.
Most Helpful
'Round these parts we call these "Buckeyes" and they are yummmmy. Some people use butter or shortenig in place of the wax, but I prefer the wax. :)


text:
Gobby - No Mercy Bad Poet (2016)
Artist: Gobby
Title: No Mercy Bad Poet
Year Of Release: 2016
Label: DFA
Genre: Electronic
Quality: FLAC
Total Time: 41:55
Total Size: 252 MB
1.Cancer 07:00
2.Hometown 01:41
3.The Dishwasher 04:28 video
4.Talk (x3) 02:24
5.Alcoholic 04:48
6.First Laugh (Ripple In The Dark) 03:19
7.Just One More Time 00:48
8.144 My Back 03:12
9.Anti-Meme 02:18
10.Mysterioso 03:06
11.Romance Frog 08:51
Gobby! One of our favourite mystery artists touches down on the unstoppable DFA with a blinder of an album. Just a quick note: we are always amazed at how DFA manage to continuously reinvent their sound and style, and this has been a consistent characteristic of theirs throughout the years, so hats-off and dance shoes on! No Mercy Bad Poet is absolutely genreless, a whirlpool of daring electronic sound and rhythms that somehow manage to make sense as a whole. In fact, all eleven tunes could almost be considered a new genre, something that we herein classify as 'crack house'. That's right, there is just something utterly wring with each and every one of these tunes, and we love this release for it. It's just to refreshing to hear someone going beyond the genre boundaries and rules. Heavily recommended.
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About LinksHerzt : Nothing I type here could change any impression of me you already have. The people who need to know about me already do.
LinksHerzt's FML badges
How depressing, no badges acquired at all. :/
LinksHerzt's favorite FMLs
Today, I was going to have sex with my Hispanic boyfriend. I wanted to turn him on, so I asked my friend how to say "fuck me" in Spanish. She claimed it was 'pollo frito'. I then had sex, constantly screaming 'pollo frito' for an hour. I later realized I was screaming "fried chicken." FML
590I agree, your life sucks65128You deserved it179899
by FML.. / 04/06/2009 at 3:51pm / China (Hebei) / Intimacy
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text: Born in Italy, Giovanni Alonge attended the Italian Naval Academy and graduated with a Bachelors of Science degree in electrical engineering. After the mandatory military service, Giovanni came to the United States in 1997 where he began his career as financial advisor for a regional brokerage firm, Horner Townsend and Kent.Since that time, Giovanni has working for several of the most prestigious firms on Wall Street. At JPMorgan, Giovanni worked as an International Financial Advisor where he earned the title, Vice President of Investments. In 2007, Giovanni moved to Merrill Lynch where he worked within the Global Wealth Management Division as a Vice President.Throughout his exceptional career, Giovanni Alonge has also been featured in Prensa Hispana for his work within the Hispanic community.Presently, Giovanni Alonge works as the Director of Institutional Markets for Integrated Trading and Investments


text:
Ion One Stroke Perpetual Heat Ceramic Digital Styling Iron 301610 Reviews
- Other Flat Irons:
- Average: 4.4
- High: 5.0
- Brand:
- Ion
- Model:
- 301610
Read 5 Reviews
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Reviewed by 5 customers
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Comments about Ion One Stroke Perpetual Heat Ceramic Digital Styling Iron:
I loved using this flat iron. I bought one 4 years ago and used it every day until the "coating" eventually wore off or 'weakened". I'm not sure but the iron began to cause damage so I guessed it the coating on the plates was wearing out. I bought another one and used that one for another two years. I replaced it with another Ion; which I will review next. I have very coarse, thick, frizzy, dry hair after washing. This flat iron left my hair so tame and soft. No one would ever know that my hair was so difficult to manage. It worked wonders for me.
The flat iron left my hair soft, silky and manageable. It took my frizzy, thick, dry hair and made it lovely and smooth! It only took one pass over each section of hair to achieve the desired look.
Two years of use and the iron was still in good physical working order. Again, I believe the ceramic or tourmaline coating just wore off the plates.
Comments about Ion One Stroke Perpetual Heat Ceramic Digital Styling Iron:
I have purchased a lot of hair straighteners in my life. I am the mother of 4 girls and we all have kinky curly hair. I love Ion products so I thought this would be an easy perfect fix for our need but I was wrong. It works but it causes my hand to cramp up because the spring between the two sides is so tight. It is not something that you can alter yourself or I would have. It has wonderful temp settings and an easy on and off function but it doesn't lay on the counter easily or rest except on its side. I am a little disappointed with the over purchase. It works great but I believe for the money they should have worked on the feel of it.
straightens hair great!!
Hard to use if you have long hair...it gets really heavy feeling
Comments about Ion One Stroke Perpetual Heat Ceramic Digital Styling Iron:
I was given this flat iron as a Christmas gift back in 2006. I had to replace it in 2007 (but they did it for free at Sally's!) and it just now gave out here in 2011. I think that goes to show you how long it has been used! It has been quite the dependable flat iron for me, and I liked it so much I decided to go ahead and buy another one. I did consider going for the CHI, but why spend all that money when you know you have a product you have already been happy with? I would recommend this product especially to women who have thick, wavy hair. Once my hair is blow dryed it has a strange frizzy wave to it that has to be ironed out. This flat iron has done the trick every time. I still have trouble with frizziness as the day goes on, but I don't blame this on my flat iron, but moreso the humidity and fog because of where I live. Go ahead and try this product, you will not be disappointed, trust me!
Comments about Ion One Stroke Perpetual Heat Ceramic Digital Styling Iron:
This is by far one of the best straightners I have ever had! I thinks it is so great. It heats up fast. I love that it is ceramic so it does not damaged my hair that much. I have had my styling iron for a little while now and have not even thought of getting another styling iron to replace it. I think it is worth the money you pay for it! It does take a little longer on thicker hair but of course it always takes longer for thicker hair. It leaves my hair feeling so soft, which I really really like. It also leaves my hair shiney and smooth. Which is always a great benifit for me. I feel like my hair looks like I just came from the hair dresser ever time I do my hair. I never wait to the last min to do my hair anymore either. I enjoy doing it. which when you hate or put off stylinf your hair it makes you hate doing it that much more. All and all I love this styling iron I think it is one of the best out there!!!
Comments about Ion One Stroke Perpetual Heat Ceramic Digital Styling Iron:
I had never heard of this product and when i was going to purchase a straightning iron i was actually going to buy a different brand and the sales lady told me about this product. It was very pricey but from taking the advice of the sales associate i decided to give it a try. I found this product works fairly well in getting your hair straight. Heres the thing, i for one have extremly thick hair, so for this product to be as effective i have to seperate more of my hair and do smaller portions at a time which takes up alot of my day just to straighten all of my hair. I would reccomend this to anyone with thin or not alot of hair or to someone who has the free time to sit and straighten thick hair. However, the product does straighten great and my hair will stay straight for two or three days straight, which is a plus. overall great general product, just a little more time consuming then most other straightners out there.


text:
Can macrobid cause thyroid swelling?
- Asked
- 27 Apr 2013 by Qoooo
- Active
- 27 Apr 2013
- Topics
- macrobid, thyroid disease, swelling, thyroid
Responses (1)
Hello. The quick answer is no. Macrobid is an antibiotic that often treats urinary infections or as the doctor prescribes. It does not damage the thyroid anymore than it affects your toes.
The thyroid is a gland which produces essential hormones to maintain your body. When it enlarges or gets bumps it is a sign of a thyroid problem and needs to be checked by a doctor. The sooner this is evaluated, the better for you.
Please ask more questions if you have them. Karen
Further Information
- Macrobid Information for Consumers
- Macrobid Information for Healthcare Professionals (includes dosage details)
- Side Effects of Macrobid (detailed)
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text:
A lot has happened from Cardozo Law's founding in 1976 to the first day of classes in 2016. The school kicks-off a year-long celebration to highlight the enormous achievements made by our faculty, alumni and students over 40 years.
Professor Peter Markowitz' NY Times Op-Ed Cited by Lawmakers Asking President Obama to Pardon Immigrant Youth
In a fact sheet distributed by the lawmakers, they cite a July New York Times opinion piece written by Peter Markowitz, professor at the Benjamin N. Cardozo School of Law and the director of an immigration law clinic. Markowitz writes in the article that the Constitution extends the president's pardon power to "all offenses against the United States," which "can be interpreted more broadly than just criminal offenses."
Professor Kate Shaw Speaks to ABC News on the Potential Implications of Donald Trump's Election for Abortion Rights
"Roe held that while the Constitution protects a woman's right to decide for herself whether to continue with a pregnancy, states also have a strong interest in regulating abortion, both to protect women's health and to promote potential life."
In a message from Dean Melanie Leslie Cardozo students were invited to an open forum discussion on the presidential election, which will cover questions and issues that have been raised and will feature five faculty members in conversation with students. Below is the letter to students inviting them to the Wednesday Nov. 11th event.
Dear Students:
Luis Mancheno, Clinical Teaching Fellow in the Immigration Justice Clinic on Public Radio International: "I Know You Voted For Trump For a Better Future. But Please Don't Forget My Future."
Trump has also pledged to pass the First Amendment Defense Act during the first 100 days of his administration. The law prohibits the government from taking action against anyone who "believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman."
Professor Kate Shaw on ABC News on What Donald Trump's Presidential Victory Means for the Supreme Court
For some clarity on what Trump's victory means and what might come next, we spoke to ABC News contributor and Benjamin N. Cardozo School of Law professor Kate Shaw.
Julie Suk, Professor of Law, Cardozo Law, Yeshiva University - "Our nation has just elected a man who has notoriously groped, belittled, and disparaged women. Our compatriots chose him over the opportunity to inaugurate our first woman president. The Trump presidency will thus begin in a climate that feels misogynistic and hostile to gender equality.
The Cardozo Office of Communications & Public Affairs


text:
saftied roof rack air conditioning manual windows and locks nice work vehicle
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£400,000 Guide Price
Chain free with potential to extend land estates are pleased to present this 2/3 bedroom chalet home located on perry street in crayford. although requiring updating this home offers…
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3 Bedrooms Terraced House for sale
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** price range 325,000 - 350,000 ** popular residential location ** well presented property ** mid terrace home ** three bedrooms ** bathroom ** lounge ** open plan kitchen/dining…
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3 Bedrooms Terraced House for sale
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** price range 325,000 - 350,000 ** stunning property ** must be viewed ** sought after location ** no work needed ** bay fronted mid terrace home ** three bedrooms ** modern bathroom…
4 Bedrooms Semi Detached House for sale
Family living with unlimited options, the space for your family to grow will always be enough, no matter the occasions.
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Northend Road, Erith, Kent, DA8 3QE
** looks can be deceiving ** very spacious property ** well presented ** side and rear extensions ** three/four bedrooms ** semi detached home ** first floor bathroom ** three/four…
3 Bedrooms Semi Detached House for sale
Oozing with character and period features this beautiful home won't be around long. being offered with no chain you will not have to worry about any lengthy chain.
£320,000 Guide Price
3 Bedrooms Semi Detached House for sale
Guide price of 320 - 340,000 for this 3 bed semi det family house that offers good size living accommodation & also enjoys an elevated position away from the road.the location…
2 Bedrooms Semi Detached House for sale
There is plenty of room to entertain your family and friends in the large kitchen/diner or relax watching your favourite television programmes in the cosy lounge after a long day at…
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** chain free ** offers over 220,000 ** great investment or first time buy ** two bedrooms ** first floor masionette ** own private garden ** morden kitchen ** double glazing ** gas…
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2 Bedrooms Maisonette Flat for sale
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** guide price 200,000 - 220.000 ** chain free ** first floor masionette ** two bedroom ** own private well maintained rear garden ** modern fitted kitchen and bathroom ** 95 years…
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text:
Tuxedo shirt with flowre
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Hi all.
I've got a idea about a new vanity item
We can do something like craft a tuxedo shirt with a flower by using a Tuxedo shirt and 5 units of a flower at the Loom.
Some Ideas...
|Vanity item required
|Flowers required
|1 Tuxedo shirt
|5 Dayblooms
|1 Tuxedo with yellow flower
|1 Tuxedo shirt
|5 Fireblossoms
|1 Tuxedo with fire flower
|1 Tuxedo shirt
|5 Deathweeds
|1 Tuxedo with black purple flower
|1 Tuxedo shirt
|5 Jungle roses
|1 Tuxedo with red flower
Please comment if you like my idea.


text:
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Recent Advances in Multidisciplinary Applied Physics
Proceedings of the First International Meeting on Applied Physics (APHYS-2003)
By (author) Antonio Mendez-Vilas
Format: Hardback
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Recent Advances in Multidisciplinary Applied Physics by Antonio Mendez-Vilas
Book DescriptionThe 1st International Meeting on Applied Physics (APHYS-2003) succeeded in creating a new international forum for applied physics in Europe, with specific interest in the application of techniques, training, and culture of physics to research areas usually associated with other scientific and engineering disciplines. This book contains a selection of peer-reviewed papers presented at APHYS-2003, held in Badajoz (Spain), from 15th to 18th October 2003, which included the following Plenary Lectures: Nanobiotechnology - Interactions of Cells with Nanofeatured Surfaces and with Nanoparticles; Radiation Protection of Nuclear Workers - Ethical Issues; and Chaotic Data Encryption for Optical Communications.
Buy Recent Advances in Multidisciplinary Applied Physics book by Antonio Mendez-Vilas from Australia's Online Bookstore, Boomerang Books.
Book DetailsISBN: 9780080446486
(156mm x 234mm x mm)
Pages: 600
Imprint: Elsevier Science Ltd
Publisher: Elsevier Science & Technology
Publish Date: 28-Sep-2005
Country of Publication: United Kingdom
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Salmon, trout, walnuts, flaxseed oil can reduce heart diseases921 views
A new research study has found that eating elevated levels of fatty fish for example salmon and trout and walnuts and flaxseed oil can boost up the levels of omega-3 fatty acids and lower the danger of dying from heart attacks.
The results of the study illustrated that both plant-based and seafood-based omega-3s direct to almost 10 percent reduce the danger of fatal heart attacks. As the heart diseases and heart attacks are increasing in number across the globe.
Dariush Mozaffarian, the researcher from Tufts University in Boston, in the US, stated that "Our results lend support to the importance of fish and omega-3 consumption as part of a healthy diet,"
Fish is the main food basis of omega-3 fatty acids, involving eicosapentaenoic acid (EPA), docosapentaenoic acid (DPA) and docosahexaenoic acid (DHA).
Fatty fish for example salmon, trout, anchovies, sardines and herring possess the uppermost quantities of omega-3 fatty acids, even though the entire fish hold a few levels, the US Department of Agriculture's National Nutrient Database has stated.
Furthermore to omega-3 fatty acids, fish supply particular proteins, vitamin D, selenium and further minerals and elements.
Alpha-linolenic acid (ALA) is the plant-based omega-3 fatty acid discovered in walnuts, flaxseed oil, and canola oil and a few further seed and nuts and their oils, told the research paper presented in the journal JAMA Internal Medicine.
To conduct the research study, a total of 19 studies were included from 16 countries and involving 45,637 contributors. Of these, 7,973 people increases an initial heart attack above time, involving 2,781 deaths and 7,157 nonfatal heart attacks.
Mozaffarian continued by saying that "This new global consortium provides an unprecedented opportunity to understand how blood biomarkers of many different fats and fatty acids relate to diverse health outcomes,"


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Official citation and/or docket number and footnotes (if any) for this case available with purchase.
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decided: April 16, 1980.
WEHR, KARL C.v.THE BURROUGHS CORPORATION, APPELLANT ; WEHR, KARL C., APPELLANT, V. THE BURROUGHS CORPORATION; WEHR, KARL C. V. THE BURROUGHS CORPORATION, APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-0581)
Before Aldisert and Gibbons, Circuit Judges, and Gerry, District judge.*fn*
Opinion OF THE COURT
These consolidated appeals and cross-appeals from a judgment entered following a jury verdict in this age discrimination case present many issues for review, but the major question for decision is whether the court gave a proper jury charge on what constitutes a "willful violation" of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634.*fn1 We find no reversible error in the court's instructions, and except for certain modifications of its determinations on attorneys' fees and costs, we affirm the judgment of the district court.
Karl C. Wehr had been employed as an engineer by the Burroughs Corporation since May 1967. He was discharged on August 1, 1975, ostensibly for unsatisfactory work performance, at the age of forty-four. Believing that he was a victim of age discrimination because of the company's expressed desire to replace some older employees with "young tigers," Wehr sought relief in district court in the form of lost wages, including both back and front pay, statutory liquidated damages, compensatory damages for pain and suffering, and attorneys' fees and costs.*fn2 The jury returned a verdict of $126,760 in Wehr's favor for back pay and liquidated damages, and the court awarded $83,382.13 in counsel fees and costs. In the appeal at No. 79-1265, Burroughs contends that the district court erred in its interpretation and application of the liquidated damages provision of the Act.*fn3
The rights created by the Age Discrimination in Employment Act of 1967 (ADEA) are "enforced in accordance with the powers, remedies, and procedures" of specified sections of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 626(b). Following the model of the FLSA, Congress has established two primary enforcement mechanisms within the ADEA. The Secretary of Labor may bring suit on behalf of an aggrieved individual for injunctive and monetary relief. In addition, private actions are authorized by the incorporated FLSA provisions together with § 7(c) of the ADEA, 29 U.S.C. § 626(c), for "such legal or equitable relief as will effectuate the purposes of" the ADEA. In a private action for damages under the ADEA, a plaintiff may initially recover lost wages. In addition, he may recover liquidated damages in an amount equal to the unpaid wages, see FLSA § 16(b), 29 U.S.C. § 216(b), but only when the violation is "willful." ADEA § 7(b), 29 U.S.C. § 626(b). In this respect the district court charged:
Members of the jury, the Act provides that the plaintiff is entitled to liquidated damages if the defendant's conduct in violating the Act was willful. . . . (Y)ou will have to determine whether the defendant's violation of the Act was willful. That is, did the defendant willfully use age as a determining factor in its decision to terminate plaintiff?
What do we mean by "willfully"?
An act is done willfully if it is done intentionally, deliberately and knowingly. Thus, an employer acts willfully in violation of the Act if the employer deliberately, intentionally and knowingly discharged the employee because of his age. In other words, if the employer intended to act consciously and intentionally in the discharge of the employee because of age, the employer acted willfully. The act of the employer must be intentional and cannot be an accident or it would not be willful.
Appendix to Briefs at 437a-38a.
Burroughs finds two faults with this charge. First, it contends that the ADEA incorporates the good faith test of § 11 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 260.*fn4 From this Burroughs would infer that, procedurally, the final decision to award liquidated damages properly rested with the court rather than the jury, and substantively, that the court should have considered whether Burroughs believed in good faith that it had a legitimate reason to discharge Wehr, notwithstanding the jury finding of age discrimination. We reject this contention, and for the reasons stated in Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979),*fn5 we determine that § 11 of the Portal-to-Portal Act is not incorporated into the ADEA.
Burroughs second attack on the court's jury charge centers on the definition of the term "willful" in ADEA § 7(b). Burroughs contends that the proviso in ADEA § 7(b) that allows liquidated damages only upon a showing of a "willful violation of (the Act)" should be interpreted to mean that an employer is subject to liability for liquidated damages only if he intentionally violates the Act. The district court instructed the jury that "an employer acts willfully in violation of the Act if the employer deliberately, intentionally and knowingly discharged the employee because of his age." Appendix to Briefs at 437a-38a.
Although this is a civil case, the degree of culpability known as "willful" comes to us from criminal law. The National Commission on Reform of Federal Criminal Laws has said that "(t)here may be no word in the Federal criminal lexicon which has caused as much confusion as the word "willfully' (or "willful')."*fn6 We agree. The Senate Judiciary Committee has explained that
the term "willful" has been construed by the courts in a variety of ways, often inconsistent and contradictory. The courts have defined a "willful" act as an act done voluntarily as distinguished from accidentally, an act done with specific intent to violate the law, an act done with bad purpose, an act done without justifiable excuse, an act done stubbornly, an act done without grounds for believing it is lawful, and an act done with careless disregard whether or not one has the right so to act.*fn7
The Judicial Conference of the United States has recommended the abolition of "willfully" as a degree of culpability in the proposed revision of the Federal Criminal Code.*fn8 We are encouraged that the Senate Judiciary Committee endorses the same concept. The Senate Committee Report accompanying S.1722,*fn9 summarizes the welcomed new approach:
The Federal Criminal Code, as reported, discards the confused and inconsistent ad hoc approach to culpability that now characterizes Federal criminal law. Instead it reduces the number of terms used to describe the requisite mental state to four: intentional, knowing, reckless, or negligent. All other statutory formulations within title 18, United States Code, are eliminated. The four degrees of culpability that are retained express the significant distinctions found by the courts and are sufficient for all the distinctions in defining offenses.*fn10
Until Congress excises "willfully" from our statutes, however, we must distill from the case law some semblance of a consensus in order to decide whether the district court here erred by instructing the jury that "(a)n act is done willfully if it is done intentionally, deliberately and knowingly."
Although there is an abundance of confusion in the cases about the actual meaning of "willful,"*fn11 it has been generally accepted that the term does not denote the same state of mind when used to describe civil violations of statutes as when used to describe criminal violations. Thus, in United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381 (1933), the decision cited as the leading authority for the proposition that "willful" denotes evil motive, the Court held that a defendant in a criminal prosecution for willful violation of the tax laws was entitled to a jury charge with respect to his good faith and actual belief. In considering whether the word "willfully," as used in the statute under which the indictment was brought, required more than a showing of voluntary action, the Court stated: "The word often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose . . . ." 290 U.S. at 394, 54 S. Ct. at 225. This distinction between the civil and criminal uses of the word was further elaborated in United States v. Illinois Central R. R., 303 U.S. 239, 58 S. Ct. 533, 82 L. Ed. 773 (1938), a case involving a civil violation by the railroad for improperly transporting livestock. The Court addressed the meaning "willfully" should have for civil violations by reaffirming its statement in Murdock :
In statutes denouncing offenses involving turpitude, "willfully" is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, 54 S. Ct. 223, 78 L. Ed. 381, shows that it often denotes that which is "intentional, or knowing, or voluntary, as distinguished from accidental," and that it is employed to characterize "conduct marked by careless disregard whether or not one has the right so to act."
Id. at 242-43, 58 S. Ct. at 535.
Although it is apparent that this unfortunate word is capable of a multitude of meanings and that neither the Supreme Court nor Congress has been willing to fashion a precise meaning for it, we are able to draw some conclusions to assist us in this case. First, only three degrees of culpability are associated with the term "willful": intentional, knowing, or reckless. Merely negligent conduct is never deemed "wilful." E. g., Anderson v. Commissioner, 81 F.2d 457, 460 (10th Cir. 1936). Second, when the Supreme Court speaks of "bad faith," "bad purpose," "evil intent," or "evil nature" in connection with violations of criminal statutes, it is in fact describing the highest degree of culpability. The Court is saying that proof of any of these mental states is equivalent to proof of conduct that is "intentional," as distinguished from "knowing" or "reckless." Third, unless legislative history or the statutory context compels proof of an intentional violation of the statute, or proof of the judicial equivalents "bad faith," "bad purpose," "evil intent," or "evil nature," any conduct that is intentional, knowing, or reckless should be considered "willful." This last approach comports with the National Commission's suggestion to Congress in 1970 that "(a) person engages in conduct . . . "willfully' if he engages in the conduct intentionally, knowingly, or recklessly,"*fn12 and finds precedential authority in United States v. Murdock, 290 U.S. 389, 394-95, 54 S. Ct. 223, 225-226, 78 L. Ed. 381 (1933), and United States v. Illinois Central R. R., 303 U.S. 239, 242-43, 58 S. Ct. 533, 534-535, 82 L. Ed. 773 (1938).
The starting point in any case is to ascertain the degree of culpability intended by Congress when using "willful." In the absence of enlightenment from legislative history, the term must be construed within its statutory context, civil or criminal. As the Court has directed, we "continue to recognize that context is important in the quest for the word's meaning." United States v. Bishop, 412 U.S. 346, 356, 93 S. Ct. 2008, 2015, 36 L. Ed. 2d 941 (1973).*fn13 Unfortunately, a review of the legislative history of the ADEA and its assimilated acts uncovers nothing helpful on this question. We note, however, that § 6(a) of the Portal-to-Portal Act,*fn14 which extends by one year the statute of limitations for willful civil violations of the FLSA, is specifically incorporated into the ADEA. See 29 U.S.C. § 626(e)(1). In Hodgson v. Hyatt, 318 F. Supp. 390 (N.D.Fla.1970), a case defining a willful violation of the FLSA, the court offered the following definition of "willful," which we find to be helpful:
Since the Portal-to-Portal Act limitations apply to civil actions, the term "willful" which was added by the 1966 amendment must be construed in the civil sense. It therefore applies to violations which are intentional, knowing or voluntary as distinguished from accidental and it is used to characterize conduct marked by careless disregard whether or not one has the right to act. United States v. Illinois Cent. R. Co., 303 U.S. 239, 243, 58 S. Ct. 533, 535, 82 L. Ed. 773.
Id. at 392-93.*fn15 We believe this definition of "willful" as it is used in § 6(a) of the Portal-to-Portal Act, incorporated into the ADEA by 29 U.S.C. § 626(e), also applies to ADEA § 7(b).
Accordingly, we conclude that Congress did not intend to restrict the meaning of "willful," as Burroughs suggests, to intentional violations of the ADEA. It is sufficient to prove that the company discharged the employee because of age and that the discharge was voluntary and not accidental, mistaken, or inadvertent. In our view, it would also be sufficient to prove that the discharge was precipitated in reckless disregard of consequences. Using these standards, we reject Burrough's contention that the district court erred in charging the jury that "(a)n act is done willfully if it is done intentionally, deliberately and knowingly." By charging the jury as it did, the district court actually placed a higher burden on the plaintiff in this case than would be required under our formulation.*fn16 It required the jury to find that Burroughs acted intentionally, and it omitted the culpability degree of "reckless" which, in a civil context, describes a much lower threshold of culpability than does "intentional." Compare Restatement (Second) of Torts § 8A (1965) with id. § 500.
In sum, we find no reversible error in the trial court's jury charge on willful violation of the ADEA.
Wehr makes several arguments in his appeal at No. 79-2403. Although he was awarded backpay from the date of discharge to the date of trial, Wehr argues that he is also entitled to future damages, or front pay, to some date in the future possibly to the age of retirement as a substitute for the equitable remedy of reinstatement.
We will not decide whether future damages may be awarded in ADEA cases, however, because we are persuaded that Wehr has removed this issue from consideration. Any basis for calculating front pay would include the amount Wehr would have received had he continued to be employed by Burroughs beyond the trial date. Of necessity, Wehr's argument that he is entitled to future damages in lieu of reinstatement presupposes that he wanted to be reinstated.*fn17 At pre-trial, however, Wehr specifically disclaimed any desire for reinstatement.*fn18 We therefore conclude that the question whether future damages may be recovered in ADEA cases is not properly before us at this time.*fn19 Wehr's further contention, that the court erred by refusing to permit compensatory damages for pain and suffering including emotional distress, is foreclosed by our decision in Rogers v. Exxon Research and Engineering Co., 550 F.2d 834, 839-42 (3d Cir. 1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 770 (1978).
Also in the appeal at No. 79-2403, Wehr's counsel complain that the court's award of attorneys' fees and costs was inadequate. See Wehr v. Burroughs Corp., 477 F. Supp. 1012 (E.D.Pa.1979).*fn20 Although ultimately awarded a total of $80,651.79, Wehr's counsel sought $161,879 in fees for the litigation on the merits, and $11,816.25 for time expended in preparing the fee petition. In addition, counsel requested reimbursement of $11,053.79 in costs. After Burroughs objected to the reasonableness of the proposed figures, the district court examined the documentation under the standards enunciated by this court in Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I ), Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (in banc) (Lindy II ), and their progeny. The court disallowed certain discrete amounts from the proposed lodestar and adjusted that figure downward. It also declined to augment the lodestar by a multiplier. Counsel complain that by doing so, the district court misused its discretion.
On review, except for two modifications of the award mentioned below, we will affirm the district court's determination concerning fees and costs, and we reject counsel's various contentions regarding the court's exercise of discretion over whether to multiply the award. Indeed, it appears to us that this should not have been a difficult case for counsel, yet it was overprepared, over-discovered, and overtried by counsel for both sides. Significantly, in its instructions to the jury, the trial court recognized the absence of complexity in this case and summarized the controlling issue in one sentence:
Although there has been considerable testimony in this case, your task, members of the jury, is not complicated. You must simply determine whether plaintiff has proven his claim by a preponderance of the evidence that plaintiff's age was a determining factor in defendant's decision to discharge him and if you resolve that issue in favor of the plaintiff, whether, in discharging plaintiff, plaintiff has proven by a preponderance of the evidence that defendant acted willfully.
Appendix to Briefs at 425a.
We will modify the award of attorneys' fees and costs in two minor respects. First, we note an arithmetical error in the court's computation regarding the award for the fee petition. The district court awarded $4,167 as attorneys' fees for litigating the fee petition. When computing this award, the district court incorrectly stated that counsel's request for $7,877.50 in compensation was for 164.7 hours when, in fact 117.6 hours was the actual figure requested. The district court believed that 164.7 hours greatly exceeded the time reasonably necessary to litigate a fee petition. 477 F. Supp. at 1020-21. It therefore subtracted 50 hours and made a corresponding deduction in fees. This computation resulted in an inaccurately reduced amount, however, because the figure used by the court as the minuend of its equation was the amount ($7,877.50) representing 117.6 hours and not the 164.7 hours that the court believed were billed.
Thus, because the court evidently would have allowed 114.7 hours (164.7 minus 50) to litigate the fee petition, and because counsel's billable rates for the fee petition were not determined to be too high, we have decided for the sake of judicial economy not to remand for a redetermination of this calculation, but instead to allow recovery for the entire 117.6 hours requested. Therefore, the district court's award of $4,167 will be increased to $7,877.50, an amount that accurately represents recovery for 117.6 hours.
Second, we will modify the district court's award of costs because we disagree with the court's refusal to allow recovery for computer-aided legal research as a reasonable cost of litigation. We will allow recovery of these costs. Use of computer-aided legal research such as LEXIS, or WESTLAW, or similar systems, is certainly reasonable, if not essential, in contemporary legal practice. Indeed, in at least one other case decided in this circuit, this type of cost has been awarded as a reimbursable expense. See Pitchford Scientific Instruments Corp. v. Pepi, Inc., 440 F. Supp. 1175, 1178 (W.D.Pa.1977), aff'd without opinion, 582 F.2d 1275 (3d Cir. 1978), cert. denied, 440 U.S. 981, 99 S. Ct. 1790, 60 L. Ed. 2d 242 (1979). We think this is the better rule, but we are careful to note that the amount of use must be reasonable in order to be allowed. We conclude that the $440 requested by counsel in this case was reasonable.
Accordingly, the judgment of the district court will be affirmed in all respects except that the award for the fee petition will be increased by $3,710.50 and an additional $440 will be added to the district court costs.
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Details Book
|Donna Stellhorn
|Etc Publishing
|Data Published
|25 November 2014
|Format Book
|PDF, Epub, DOCx, TXT
|Number of Pages
|348 pages
|Age +
|15 years
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