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United States District Court, E.D. New York
November 14, 2014
KEITH McKenney, Plaintiff,v.VINCENT F. DEMARCO, Defendant.
SANDRA J. FEUERSTEIN, District Judge.
On December 20, 2013, incarcerated pro se plaintiff Keith McKenney ("McKenney" or "plaintiff') filed a complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") against Suffolk County Sheriff Vincent F. DeMarco ("Sheriff DeMarco" or "defendant"). [Docket Entry No. 1 (the "Complaint")]. On April 9, 2014, the Court dismissed plaintiff's in forma pauperis complaint and granted plaintiff leave to file an amended complaint alleging a plausible claim within thirty (30) days. [Docket Entry No. 7]. On April 24, 2014, plaintiff filed an unsigned, single handwritten page entitled "Amended Complaint." [Docket Entry No. 8]. The Court's Pro Se Office sent plaintiff a letter instructing plaintiff to sign and return the enclosed copy of his amended complaint in order to proceed with his case. [Docket Entry No. 9]. In accordance with the Court's letter, plaintiff re-filed a signed copy of the amended complaint. [Docket Entry No. 10 (the "Amended Complaint" or "Am. Compl.")]. For the reasons that follow, plaintiff has failed to allege a plausible claim against the defendant. Accordingly, the Amended Complaint is dismissed.
I. Background
The Amended Complaint alleges the following, in its entirety:
On 8/26/13 two "John Doe" correction officers who work for Vincent F. DeMarco in the Riverhead jail violated my 8th Amendment rights. They told the other inmates in 3 South where I was incarcerated about my crimes. I was victimized and taken advantage of by other inmates. The inmates stole my food and harassed me. Later, while imprisoned in the Yapank [sic] jail [indeciperable] and South 2 the harassment and extortion continued. I was a sentenced prisoner being held with non/sentenced inmates who wanted to hurt me. An inmate who I was incarcerated with in Riverhead was imprisoned with me in Yapahnk [sic]. He told the other inmates of my crimes and the harassment and extortion continued. If it wasn't for these 2 correction officer[s] telling the inmates of my crimes, these terrible things never would have happened. I was scared for my life, I did not sleep well and I suffered mental anguish. I seek to recover 2 million dollars.
See Am. Compl, at 1.
II. Discussion
A. Standard of Review
Under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. It is axiomatic that district courts are required to read pro se complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted), and to construe them "to raise the strongest arguments that they suggest." Gerstenbluth v. Credit Suisse Securities (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013) (quotations and citations omitted). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the complaint." Harrington v. Cnty. of Suffolk, 607 F.3d 31, 33 (2d Cir. 2010); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Nevertheless, a complaint must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The pleading of specific facts is not required; rather a complaint need only give the defendant "fair notice of what the...claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (quotations and citation omitted); see also Anderson News, LLC v. American Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied by Curtis Circulation Co. v. Anderson News, LLC, ___ U.S. ___, 133 S.Ct. 846, 184 L.Ed.2d 655 (2013) (accord). However, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.' Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id (quoting Twombly, 550 U.S. at 557); see also Pension Benefit Guaranty Corp. ex rel. St. Vincent Catholic Medical Centers Retirement Plan v. Morgan Stanley Investment Management Inc., 712 F.3d 705, 717 (2d Cir. 2013) (accord). The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft, 556 U.S. at 678; see also In re Amaranth Natural Gas Commodities Litig., 730 F.3d 170, 180 (2d Cir. 2013).
B. Section 1983
Section 1983 of Tile 42 of the United States Code provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured...
42 U.S.C. § 1983. "Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights under color' of state law." Filarsky v. Delia, ___ U.S. ___, 132 S.Ct. 1657, 1661, 182 L.Ed.2d 662 (2012). Thus, to state a Section 1983 claim, a plaintiff must allege: (1) that the challenged conduct was "committed by a person acting under color of state law, " and (2) that such conduct "deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see also Rehberg v. Paulk, ___ U.S. ___, 132 S.Ct. 1497, 1501-02, 182 L.Ed.2d 593 (2012). Section 1983 does not create any independent substantive right; but rather is a vehicle to "redress... the deprivation of [federal] rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
To state a claim for relief under Section 1983, a plaintiff must allege the personal involvement of a defendant in the purported constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006)). "Personal involvement" may be established by evidence of direct participation by a supervisor in the challenged conduct, or by evidence of a supervisory official's "(1) failure to take corrective action after learning of a subordinate's unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates." Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003). "An individual cannot be held liable for damages under Section 1983 merely because he held a high position of authority.'" Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). A complaint based upon a violation under Section 1983 that does not allege the personal involvement of a defendant fails as a matter of law. See Johnson v. Barney, 360 F.Appx. 199 (2d Cir. 2010).
Plaintiff names Sheriff DeMarco as a sole defendant in the amended complaint. However, plaintiff does not include any allegations of conduct attributable to Sheriff DeMarco; rather he complains of conduct by unidentified corrections officers "who work for" Sheriff DeMarco. Am. Compl. at 1. Thus, plaintiff has not adequately pled the personal involvement of Sheriff DeMarco and seeks to impose liability merely because of the supervisory position he holds. Because plaintiff has not alleged a plausible claim for relief against Sheriff DeMarco, the complaint is dismissed.
C. Federal Rules of Civil Procedure 8 and 10
Plaintiff's submission also fails to comply with Rule 8 and Rule 10 of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 10 requires that "[e]very pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint [or amended complaint] must name all the parties...." Fed.R.Civ.P. 10. Federal Rule of Civil Procedure 8 provides that "[a] pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." Fed.R.Civ.P. 8.
Plaintiff's submission does not have a caption; rather, it begins: "AMENDED COMPLAINT ORDER: 13-CV-7270(SJF)(AKT)" and then reads "Keith McKenney vs. Vincent F. DeMarco." Am. Compl. at 1. Nor does plaintiff's submission include include "a short and plain statement of the grounds for the court's jurisdiction" (Fed. R. Civ. P. 8) or "short and plain statement of the claim showing that the pleader is entitled to relief' (Fed. R. Civ. P. 8), but merely demands recovery of "2 million dollars" (Am. Compl. at 1) for a host of grievances, and, as explained supra, fails to allege a plausible claim for relief against the sole defendant, Sheriff DeMarco.
III. Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party shall be given leave to amend "when justice so requires." Fed.R.Civ.P. 15(a). When addressing a pro se complaint, a district court should not dismiss without granting leave to amend at least once "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Thompson v. Carter, 284 F.3d 411, 419 (2d Cir. 2002) (citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)). Nevertheless, "[heave to amend, though liberally granted, may properly be denied for: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Where an amendment would be futile, i.e., if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6), leave to amend may be denied. See Lucente v. Int'l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002).
Construing the plaintiffs complaint liberally, and interpreting it as raising the strongest arguments it suggests, Burgos v. Hopkins, 14 F.3d 787, 780 (2d Cir. 1994), the Court finds that plaintiff's allegations do not rise to the level of a constitutional deprivation. Not "every injury suffered by one prisoner at the hands of another...translates into constitutional liability for prison officials" at a facility. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A "prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Thus, "the failure to protect an inmate only violates the constitution when prison officials act with deliberate indifference.' Parris v. New York State Dept of Corr. Svcs., 947 F.Supp.2d 354, 362 (S.D.N.Y. 2013) (citations omitted).
To establish that a prison official's actions rise to the level of deliberate indifference: (1) "the deprivation alleged must be, objectively, sufficiently serious, " and (2) "a prison official must have acted or failed to act with a sufficiently culpable state of mind." Farmer, 511 U.S. at 834 (internal quotation marks and citations omitted); see also Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) ("to state a cognizable section 1983 claim, the prisoner must allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence will not suffice"). The Second Circuit has set forth a two-part test for deliberate indifference:
First, the plaintiff must demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm. Second, the plaintiff must demonstrate that the defendant prison officials possessed sufficient culpable intent. The second prong of the deliberate indifference test, culpable intent, in turn, involves a two-tier inquiry. Specifically, a prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.
Hayes, 84 F.3d at 620. A prison official has sufficient culpable intent only where he "acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 842.
Here, the amended complaint does not allege any facts to support a reasonable inference that the defendant knew of and disregarded an excessive risk to plaintiff's safety. Indeed, plaintiff alleges only that other "inmates stole my food" (Am. Compl. at 1) and "harassed me" ( Id. ) and provides no facts from which a reasonable inference may be drawn that the defendant was aware of these circumstances or that the other inmates' conduct posed a threat to plaintiff's safety. Thus, plaintiff has not alleged a plausible failure to protect claim. See Hayes, 84 F.3d at 621 (noting that prisoner asserting failure to protect claim must prove that defendant officers had "the requisite knowledge of risk to [plaintiff's] safety" and failed to take "reasonable measures to abate the risk of harm"). Accordingly, plaintiff has not alleged a plausible failure to protect claim in his amended complaint and the Court declines to afford plaintiff another opportunity to further amend his complaint.
IV. Conclusion
For the foregoing reasons, the amended complaint does not allege a plausible Section 1983 claim against the defendant. Accordingly, the amended complaint is sua sponte dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly and close this case.
The Clerk of the Court is directed to serve notice of entry of this Order in accordance with Rule 77(d)(1) of the Federal Rules of Civil Procedure by mailing a copy of this Order to the pro se plaintiff at his last known address, see Fed.R.Civ.P. 5(b)(2)(c), and record such service on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
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Death penalty is the kind of punishment that the crime or offences life is executed Over many years the issue that whether the Governments all over the world should apply death penalty as the highest punishment still has been debated Some argue that the capital punishment is one of the best ways to reduce the crime rate and allow justice to be done However it in fact is not There is a wide range of factors against the death penalty including its risk of executing innocent people its ineffectiveness in reducing the murder rate and finally is its inverse the fundamental human rights First and foremost it is undoubted that each person life is precious and priceless Everybody has the right to live until their natural death Killing a person under any circumstancesl is immoral and cruel even when it is done by the Government Death penalty therefore should never been use It is said that one of the useful methods to decline the rate of committing crime is capital punishment It however has not been proved to be a better deterrent than life in a prison Actually the offender normally commits a crime under the influence of some factors like drugs or alcohol For example the murderers do not think about the consequence or the kind of punishment they are going to receive when killing somebody Thus the reduction in crime cannot be done by the capital punishment Last but not least it cannot be said for sure that there is no chance of executing innocent people Humans are fallible so accusing the wrong people is likely to happen Meanwhile the death penalty unlike other punishments is fixed Once it is carried out there is no way no pardon and no compensation can be done to correct the fault In conclusion a host of reasons can be given to against the use of capital punishment The first thing is that it
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Estonian businessman Oliver Kruuda who owns, among others, Estonia's largest dairy Tere, has sued the tax authority for labelling him as a tax fraud, writes Äripäev.
Kruuda says that he is demanding a simple apology and is not claiming financial damages.
According to the claim filed by the businessman, the tax authority damaged his reputation by naming him a tax fraud before proving that he was guilty.
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State-owned Port of Tallinn handled 10.7 million tons of freight in six months which is 11 percent less than a year earlier, announced the company.
Nortal Group shareholders bought back 50% of Group shares from Enterprise Investors and LHV Pension Funds, regaining full ownership of the company. Simultaneously Nortal is expanding its shareholder base among employees.COMMENTS (7)
Aripaev writes in its editorial that the good news from last week was that the parliament adopted amendments which should make e-residency more accessible to foreigners.
Aripaev writes that the hope of the Estonian government is to collect more money into budget by increasing fuel excise duties is backfiring because more and more vehicle owners are filling up in Latvia.
Commenting the report of the National Audit Office which claimed that the government rushed its decisions on national carrier Estonian Air, former PM and current vice president of the European Commission Andrus Ansip said that he is convinced that the government did the right thing at the time when it decided to aid Estonian Air.COMMENTS (1)
Aripaev writes that more and more Latvians are choosing Estonia and in particular Southern Estonia as place of employment, mainly because of higher wages.COMMENTS (6)
Raul Kirjanen, owner of Graanul Invest, writes in Aripaev that he wants to praise the government for not rushing to borrow cheaply.
Aripaev writes that the proposals made by Justice Minister Urmas Reinsalu on amending the commercial code in a way that would ease requirements on e-residents may turn Estonia into another offshore country just like Panama.COMMENTS (1)
Aripaev writes that the actual costs that Estonia is spending on its e-residency poject and benefits are hard to estimated.COMMENTS (1)
At the time when Latvians are working hard to make their economy grow faster, Estonia's leaders are perfectly happy with what Estonia has achieved and see no need to change anything.
Attorney at law Leon Glikman writes in Aripaev that Estonian entrepreneurs are thankful for anything that makes business in Estonia more attractive, especially for investors.
Estonia's former Finance Minister Maris Lauri writes that the Estonian tax system does not need major changes.
The long-time chief executive of Tallinn Airport, Rein Loik, has tendered his resignationand the supervisory board of the state-owned company will gather on February 29 toconsider it.COMMENTS (1)
Janek Mäggi, owner of a public relations agency, writes in Aripaev that one way to make sure that Estonia is successful is to make Estonians happier.COMMENTS (5)
Finnish manufacturer of cable harnesses PKC Oy announced yesterday that it will close its Estonian assembly plant PKC Eesti next year.COMMENTS (7)


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Your wedding day involves a large financial outlay which can be protected by wedding insurance giving you peace of mind should things go wrong. Nobody wants to think about anything…
Written by Tyler Goodyer Last updated: April 2, 2016
When planning a wedding there are many things that couples have to decide on, while some of these are incredibly trivial and simple there are massive choices to make. Last names can cause rather large arguments and fall outs. To give you an insight into this, here are five opinions on husbands who take their wife's name.
Many men are completely open to the idea of taking their wife's name, for a myriad of reasons. Here are the thoughts of three men who are absolutely fine with this idea.
The first man just thought that his wife's last name was "pretty amazing" and he was the one who suggested it to his wife, purely because he thought it was a much cooler name. He goes on to say that people choose their nicknames so he chose his last name.
The second bloke said that he doesn't care what their last name is as long as they love each other. For him, marriage is two people coming together in love, not as one person dominating the other.
The third man polled was happy with either solution. "I really don't give a sh*t what last name we use" a slightly less crude way to put it would be "A rose by any other name would smell as sweet", but I do understand what he meant.
Of course, for every man in favour of taking his wife's surname, there are those who are against it. Let's hear from them:
One guy believes that he is the one who runs the house and is the bread winner so the household name should be his surname. He states that he's "Earned the right to have her take my name".
The second is an only child; he feels that it's his duty to keep his family name going and not let the name die off, which is an understandable argument.
What's your opinion? Sound off in the comments!
Better weather is on its way and if you have a son or daughter who is getting married this summer,...


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Peterson's The Best Scholarships for the Best Students-How to Write About Yourself focuses on how to craft a strong personal statement. In addition, there are shorthand lists of do's and don'ts for writing personal statements that help readers further develop their writing styles. Peterson's The Best Scholarships for the Best Students provides expert strategies to help successful students apply for and win major academic and experiential awards. For more information see Peterson's The Best Scholarships for the Best Students.Your first paragraph is critical. It sets the direction of the entire essay and serves as the portal for your readers. It needs to grab their attention and build a sense of anticipation for the rest of the statement. The conclusion draws the statementanbsp;...
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As Tropical Storm Isaac accelerated northward through the Gulf of Mexico, officials at the Republican National Convention in Tampa postponed the formal nomination of Mitt Romney as the party's presidential candidate from Monday to Tuesday, and Florida governor Rick Scott declared a state of emergency. "Preparation is a key to success," said Scott. "Cigarettes," said one resident. "I'm stocking up on those." The storm, which killed several people as it passed over Haiti and temporarily halted ferry service to the U.S. naval base at Guantánamo Bay, was expected to become a Category 1 or Category 2 hurricane by the time it makes landfall along the Florida panhandle and Louisiana coast.[1][2][3][4][5] Supporters of Ron Paul, who was denied a speaking slot at the Republican convention after refusing to fully endorse Romney or allow Romney's team to vet his speech, held a rally on Sunday near the site of the Republican convention. "Isaac is a distraction," said the master of ceremonies. "This is liberty."[6][7] Senate candidate Todd Akin (R., Mo.), who recently said that women's bodies are capable of preventing pregnancy in cases of "legitimate rape," affirmed that he would not bow out of the race despite calls for him to do so by prominent Republicans.[8] Romney told supporters during a campaign rally in Michigan that "No one's ever asked to see my birth certificate," in reference to President Barack Obama. "Humor," Romney later explained. "We've got to have a little humor."[9] The United Nations denied that it would invade Texas in the event that Obama was elected and a second U.S. civil war broke out, following speculation by a Lubbock County judge that it would. "Not even the United Nations," said a spokesman for Secretary-General Ban Ki-moon, "would ever mess with Texas."[10] In Nepal, a man bit to death a cobra that had bitten him, and in Delaware, three employees of the Hands of Our Future Daycare were arrested after police obtained video showing the workers encouraging two toddlers to fight one another. "He's pinching me!" complains one child in the video. "No pinching," responds a worker. "Only punching."[11][12]
A Norwegian court declared Anders Behring Breivik sane and sentenced him to indefinite "preventative detention" for the massacre of 77 people last summer. "I wish to apologize to all militant nationalists," Breivik told the court, "that I wasn't able to execute more."[13] Activists reported that hundreds of Syrians had been killed during a government assault on a suburb of Damascus.[14] Nineteen people were shot in seven incidents during a single night in Chicago, and in New York City, police inadvertently wounded nine bystanders in the course of shooting down a suspected murderer outside the Empire State Building.[15][16] Ethiopian president Meles Zenawi died at 57.[17] Police in Nicaragua caught 18 people smuggling $7 million while disguised as a crew from Mexico's Televisa television network.[18] Ecuadorian president Rafael Correa announced that the United Kingdom had withdrawn a purported threat to enter his country's London embassy and arrest WikiLeaks founder Julian Assange, who has been sheltered there for two months while facing extradition to Sweden.[19] The website TMZ published photos of a nearly nude Prince Harry carousing in Las Vegas. "The real scandal," said London mayor Boris Johnson, "would be if you went all the way to Las Vegas and you didn't misbehave."[20][21] A young male mountain lion tried to enter a casino in Reno, but was foiled by a revolving door.[22]
A California jury ordered Samsung to pay Apple $1 billion for infringing on six of Apple's patents for mobile devices, a Massachusetts judge upheld an order requiring a former Boston University student to pay $675,000 in damages to the Recording Industry Association of America for pirating 31 songs in the mid-2000s, and the United States Anti-Doping Agency banned seven-time Tour de France winner Lance Armstrong for life and stripped him of all titles he won after August 1, 1998, citing evidence that the cyclist had used performance-enhancing drugs.[23][24][25] A Los Angeles comedian confessed to having been drunk and on magic mushrooms when he appeared as a contestant on The Price Is Right in May. "We go to local high schools," he told host Drew Carey after claiming he worked as a skateboard rabbi, "and try to turn religious extremism into religious X-TREMEism!"[26][27] Researchers discovered that hermaphroditic Siphopteron quadrispinosumsea slugs engage in self-harming nonreproductive sex.[29] A study of Icelandic nuclear families showed that men pass on nearly four times as many new genetic mutations to their offspring as do mothers, and that older fathers pass on more such mutations than do younger ones.[30] White-handed gibbons who were observed calling out after inhaling helium were found to display operatic vocal technique.[31] Neil Armstrong, the first human to set foot on the surface of the moon, died at age 82. "May his vision for our human destiny in space," said Apollo 11 crewmate Buzz Aldrin, "be his legacy."[32][33] On Mars, the rover Curiosity lifted its robotic arm for the first time and went for a test drive across the planet's surface.[34][35]
More from Jeff Ernsthausen:
Commentary — August 17, 2012, 9:11 am
Why are multilevel-marketing companies making big donations to state attorney-general candidates?
Estimated number of people who watched a live Webcast of a hair transplant last fall:
America's Health Network (Orlando, Fla.)
A rancher in Texas was developing a system that will permit hunters to kill animals by remote control via a website.
A man in Japan was arrested for stealing a prospective employer's wallet during a job interview, and a court in Germany ruled that it is safe for a woman with breast implants to be a police officer.
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one's acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."


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Having unnecessary fat in different areas of your body can have a significant impact on your health and self-confidence. While conventional weight-loss through exercise and diet plan is an excellent method to slim down overall, even the best exercises cannot target issue locations like the stomach, inner thighs, arms, and buttocks. Liposuction is a time evaluated treatment that is used to eliminate excess fat from particular locations of the body, permitting an individual to shape and contour their body to their liking. Is liposuction right for you? Find out now.
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Laser liposuction is a more recent, minimally intrusive treatment that involves heating the fat cells to melting point and eliminating the melted fat through a small cannula. The procedure is generally done right in your doctor's workplace and is an excellent choice for individuals who have less than 500 ml of fat to get rid of from any one area. Laser liposuction can be a safe, complementary procedure to weight reduction in order to sculpt the body you have actually always desired.
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United States District Court, W.D. Pennsylvania
April 14, 2015
ZAHM & MATSON, INC. d/b/a Z&M AG AND TURF, Plaintiff,v.KENNETH CHALLENER, M.D., Defendant.
NORA BARRY FISCHER, District Judge.
I. Procedural History
On May 29, 2014, Plaintiff, Zahm & Matson, Inc. ("Z&M"), filed this action against Defendant, Kenneth Challener ("Challener"), seeking replevin of certain items of farm equipment (the "McLaren Equipment"). (Docket No. 1). On July 31, 2014, Z&M filed its First Amended Complaint, adding two additional counts relating to Challener's lease of a combine and a planter. (Docket No. 7). Challener moved to dismiss the First Amended Complaint on August 13, 2014. (Docket No. 8). In response, Z&M filed a motion for leave to file a Second Amended Complaint, which, on October 1, 2014, the Hon. J. Frederick Motz granted. (Text Order of October 1, 2014). The Second Amended Complaint contained five counts, relevantly including, Count I, seeking replevin of certain farm equipment. (Docket No. 13 at 6-8). On October 14, 2014, Challener filed a Partial Motion to Dismiss the Second Amended Complaint, challenging only Count I. (Docket No. 15). Z&M responded on November 13, 2014. (Docket No. 19).
On January 9, 2015, this case was reassigned to the undersigned. (Text Order of January 9, 2015). Although the Motion was ripe at that time, the Court held its ruling in abeyance, pending ongoing settlement discussions before the Hon. Mark Hornak. (Docket No. 25). Having been advised that Judge Hornak believes "that future settlement conference proceedings at this point would not be fruitful, " (Text Order of March 17, 2015), the Court now considers the Motion.
II. Background
Z&M is a business corporation organized under the laws of the State of New York. (Docket No. 13 at ¶1). Amongst its operations is "Z&M Ag and Turf, " located in Edinboro, Pennsylvania. (Id. at ¶2). From that location, Z&M sells various types of farm equipment. ( See Id. at ¶¶ 6-8).
From approximately January 2012 to July 2013, Challener, a medical doctor, acquired a number of different pieces of farm equipment from Z&M Ag and Turf. (Docket No. 13 at ¶7). At issue in the instant Motion are those pieces termed the "McLaren Equipment." (Id. ). This equipment is so called because it was transferred from Z&M's possession to Challener's by Z&M's employee, Justin McLaren ("McLaren"). (Id. at ¶6). As set out in the Second Amended Complaint, the McLaren Equipment comprises:
(a) one Miller Tunnel Top and Extension (Model 42600607);
(b) one 2012 Combine Header Carrier (Model CHC2520, product identification number 1200558);
(c) one 2012 Combine Header Carrier (Model CHC2520, product identification number 1200559);
(d) one 3 B 16' W/ROF All Steel Forage Box (Model FBTA 16, product identification number 114889);
(e) one 3 B 16' W/ROF All Steel Forage Box (Model FBTA 16, product identification number 114870);
(f) one 12 Ton 6 Wheel (Model HS612, product identification number 115667);
(g) one 12 Ton 6 Wheel (Model HS612, product identification number 115651);
(h) one M700-06 Manure Scraper QTACH 6'-11" (Model M700-06, product identification number 25642);
(i) one JD8630 Tractor (Model 8630, product identification number RW8630H073539);
(j) one 2004 X595W/60' Deck (Model X595, product identification number M0X595X031398);
(k) one Knight 8114 Spreader (product identification number C0989);
(l) one John Deer Diesel XUV Gator (Model 855D, product identification number 041255);
(m)one Mandeko Twister Tillage Tool (product identification number UT-12-07-12-42); [and]
(n) one John Deere 630 Pickup Head (product identification number CC3MPUX049919
(Id. at ¶8).
McLaren allegedly "provided each of the above-listed pieces of equipment to Defendant at a steep discount, or in some cases, for free." (Id. at ¶9). Z&M seeks replevin on the basis that the transfers are not binding on it because McLaren exceeded his authority in making the transfers and Challener knew or reasonably should have known same. (Id. at 29).
III. Legal Standard
Defendant contends that, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Count I of Plaintiff's Second Amended Complaint fails to state a claim upon which relief may be granted. (Docket No. 15). When considering a motion made under Rule 12(b)(6), the Court "accept[s] as true all allegations in the plaintiff's complaint as well as all reasonable inferences that can be drawn from them, and we construe them in a light most favorable to the non-movant." Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). To survive dismissal pursuant to Federal Rule of Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). While Rule 8 of the Federal Rules of Civil Procedure "does not require detailed factual allegations, '... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (quoting Twombly, 550 U.S. at 555). "Generally speaking, a trial court has discretion to address evidence outside the complaint when ruling on a motion to dismiss." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 559 (3d Cir. 2002) (citing Kulwicki v. Dawson, 969 F.2d 1545, 1462 (3d Cir. 1992)). Specifically, "the court may consider documents which are attached to or submitted with the complaint...." (Id. (quoting 62 Fed. Proc., L.Ed. § 62:506 (emphasis omitted)).
Although Plaintiff is a New York entity, the law of the Commonwealth of Pennsylvania controls this action, as it is the forum with the greatest interest in the action. See, e.g., Hammersmith v. TIG Ins. Co., 480 F.3d 220, 227 (3d Cir. 2007); Cipolla v. Shaposka, 267 A.2d 854, 856 (Pa. 1970). Accordingly, Pennsylvania common law controls.
"The action of replevin is founded upon the wrongful taking and detention of property and seeks to recover property in the possession of another." Com. ex rel. Anderson v. Fidelity & Deposit Co. of Md., 811 A.2d 1040, 1042 (Pa.Super. Ct. 2002) (quoting Valley Gypsum v. Pa. State Police, 581 A.2d 707, 710 (Pa.Commw. Ct. 1990)). "To successfully assert a replevin action, the plaintiff must show not only title, but also the exclusive right of immediate possession of the property in question.'" Mason v. Threshman, 2012 WL 3696177, at *4 (M.D. Pa. Aug. 27, 2012) (quoting Susquehanna Commercial Fin., Inc. v. French, No. 10-7481, 2011 WL 1743503, at *4 (E.D. Pa. May 5, 2011) and ( Ford Motor Credit Co. v. Caiazzo, 564 A.2d 931, 933 (Pa.Super. Ct. 1989)).
IV. Discussion
As to Count I, the Second Amended Complaint relevantly alleges the following:
From approximately January 2012 through July 2013, McLaren fraudulently transferred possession to Defendant the items of farming equipment listed in Paragraph 8 [of the Second Amended Complaint]. These transactions and transfers of possession were fraudulent in that they were carried out by McLaren by falsifying documents, misrepresenting facts to Plaintiff, establishing unauthorized prices below market rates, granting unauthorized trade-in values above market rates, and purportedly "gifting" equipment to Defendant without reason and without authorization from Plaintiff.
(Docket No. 13 at ¶7).
It further alleges that Z&M "is unaware of the specifics of each individual transaction because the transactions were undertaken surreptitiously by McLaren and Defendant Challener." (Id. at ¶10).
It also avers that:
McLaren's actions - including falsifying documents, misrepresenting facts to Plaintiff, establishing unauthorized prices below market rates, granting unauthorized trade-in values above market rates, and purportedly "gifting equipment to Defendant without reason and without authorization from Plaintiff - were undertaken outside the scope of authority and were such that a reasonable person, including Defendant, would have known that McLaren was not acting as agent for Plaintiff.
(Id. at ¶29).
Defendant argues that the assertions in Plaintiff's Second Amended Complaint merely show that he "purchased equipment from Z&M through its employee and agent, McLaren, based upon terms that Z&M now regards as imprudent or unfair." (Docket No. 16 at 4). He argues that, while Z&M may have a plausible action against McLaren, the allegations of Count I fail to state a claim against Challener. (Id. at 5). Challener further posits that, assuming Count I asserts a cognizable cause of action, Z&M's Second Amended Complaint fails to plead sufficient facts regarding the allegedly fraudulent transfers to satisfy FED.R.CIV.P. 9(b). (Id. at 6).
Z&M responds that Challener's argument "incorrectly assumes the validity of the transfers of the McLaren equipment, " stating that its argument is "that Challener either knew or reasonably should have known that McLaren was not acting as an agent of Z&M at the time of the transfers." (Docket No. 19 at 3). Accordingly, per Z&M, because Challener was or reasonably should have been aware "that McLaren was acting outside the scope of his authority, the transfers are not binding against Z&M, which has an immediate right to possession of the McLaren Equipment." (Id. ).
In Pennsylvania, "agency cannot be assumed by the mere fact that one does an act for another." Bross v. Varner, 48 A.2d 880, 881 (Pa. 1946) (citing Reifsnyder v. Dougherty, 152 A. 98 (Pa. 1930)). The existence of an agency is a question of fact. Bolus v. United Penn Bank, 525 A.2d 1215, 1221 (Pa.Super. 1987), allocatur denied, 541 A.2d 1138 (Pa. 1988). Z&M suggests that, if the allegations of the Second Amended Complaint are proven, a fact finder could conclude that Challener knew or reasonably should have known that McLaren was acting outside the scope of his agency by giving away equipment, selling it too cheaply, and providing trade-in credit beyond the actual value of the traded-in property. (Docket No. 19 at 6-7). If it can prove that, Z&M argues, then it would not be bound by the transfers, and would have an immediate right to possession of the McLaren Equipment. (Id. at 7).
Z&M identified the parties to the transfers, (Docket No. 13 at ¶¶6-7), identified the equipment at issue, (Id. at ¶8), alleged that said equipment was transferred for less than its value, and, in some cases, for free, (Id. at ¶¶ 7, 29), and contends that the nature of the transactions was such that Challener knew or reasonably should have known that McLaren was exceeding the scope of his authority, (Id. at ¶29). In the Court's estimation, these allegations are sufficient to allow this case to proceed through discovery; if proven, a fact-finder could determine that the McLaren Equipment is wrongfully in Challener's possession and should be returned to Z&M immediately.
The Court is similarly unconvinced by Challener's argument that Count I of the Second Amended Complaint should be dismissed for failure to comply with FED.R.CIV.P. 9's heightened pleading requirement for fraud actions. While, the Court notes that, as pointed out by Z&M, Count I is not technically based on a fraud theory, (Docket No. 13 at ¶¶28-31), it does allege fraudulent transfers occurred, (Id. at ¶7). As such, to the extent fraud may need to be proven to establish an element of Plaintiff's case, the Court will analyze Challener's argument. Rule 9(b) requires "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." FED.R.CIV.P. 9(b). The Third Circuit has found a Complaint in conformity with Rule 9(b)'s requirements when it "alleged the acts involved and the people [Plaintiffs] believe committed them." Petro-Tech, Inc. v. W. Co. of N. Am., 824 F.2d 1349, 1362 (3d Cir. 1987). In its Second Amended Complaint, Z&M specifically identified fourteen pieces of farm equipment, including serial numbers for many. (Docket No. 13 at ¶8). It alleges that McLaren transferred all of that equipment to Challener. (Id. at 7). Z&M also provides a timeframe that the transfers occurred. (Id. ).
"The purpose of Rule 9(b) is to provide notice, not to test the factual allegations of the claim." Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 414 n.2 (3d Cir. 2003) (citing Gutman v. Howard Sav. Bank, 748 F.Supp. 254, 257 (D.N.J. 1990). In short, the Second Amended Complaint alleges the "who, what, when, and where" of the transfers at issue. Given that Defendant was a party to each of the transfers at issue, which, again, are all detailed in the Second Amended Complaint, he has been provided more than sufficient notice of the claim against him. As such, the Court believes Z&M's Second Amended Complaint meets Rule 9(b)'s requirements.
V. Conclusion
AND NOW, this 14th day of April, 2015, upon consideration of the pending Partial Motion to Dismiss, (Docket No. [15]), the Brief in support thereof, (Docket No. [16]), the Brief in Opposition, (Docket No. [19]), and for the foregoing reasons,
IT IS HEREBY ORDERED that the Partial Motion to Dismiss, (Docket No. [15]), is DENIED.
IT IS FURTHER ORDERED that Defendant shall file his Answer to the Second Amended Complaint by April 28, 2015.
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