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October 15, 2010
ROSALINDA BAEZ, PLAINTIFF,v.JETBLUE AIRWAYS AND TIFFANY MALABET, DEFENDANTS.
Plaintiff Rosalinda Baez ("Baez") brings this action under 42 U.S.C. § 1983 and state law against JetBlue Airways ("JetBlue"), and Tiffany Malabet ("Malabet") (collectively, "Defendants"). (Am. Compl. ("Complaint") (Docket Entry # 35) ¶¶ 1, 2.) Plaintiff claims that Defendants violated her constitutional rights by subjecting her to false arrest and depriving her of a fair trial. (Id. ¶¶ 73, 77.) Plaintiff further claims that Defendants defamed her and intentionally inflicted emotional distress upon her. (Id. ¶¶ 83, 85.) Malabet moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Malabet Mot. to Dismiss (Docket Entry # 46).) JetBlue moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (JetBlue Mot. to Dismiss (Docket Entry # 36).) JetBlue also moves for sanctions against Baez pursuant to Federal Rule of Civil Procedure 11. (JetBlue Mot. for Sanctions (Docket Entry # 38).) For the following reasons, JetBlue's motion to dismiss is granted in part and denied in part, and its motion for sanctions is denied. Malabet's motion to dismiss is granted in part and denied in part.
I. BACKGROUND*fn1
A.The Parties
Plaintiff Rosalinda Baez is a citizen and resident of Texas. (Complaint ¶ 1.) Defendant JetBlue is a Delaware corporation licensed to do business in the state of New York. (Id. ¶ 2.) JetBlue's principal place of business is in Queens, New York. (Id.) Defendant Tiffany Malabet is a citizen and resident of New York. (Id. ¶ 3.) JetBlue employed Malabet as a gate agent at John F. Kennedy International Airport ("JFK") in Queens, New York.
B. Factual Background
On April 15, 2008, Baez arrived at JFK at 6:23 a.m. (Complaint ¶ 11.) She checked in at the JetBlue counter and received a boarding pass for her 8:05 a.m. flight to Austin, Texas. (Id. ¶ 12.) At the check-in counter, a JetBlue representative informed Baez that her plane would depart from Gate 18, but failed to tell her that Gate 18 was located in a separate terminal. (Id. ¶¶ 13-14.) Baez proceeded through security and waited for her flight in the wrong terminal. (Id. ¶ 15.) An hour later, when Baez did not hear her flight announced, she spoke with a JetBlue representative who told her that the flight was departing from a different terminal. (Id. ¶ 16.)
When Baez arrived at the correct gate, the waiting area was empty. (Id. ¶ 17.) Baez approached JetBlue agent Tiffany Malabet, who was exiting the jet bridge. (Id.) Baez asked to board the plane, which was still at the gate. (Id. ¶ 18.) Malabet told Baez, "I just closed the flight and you ain't getting on it." (Id. ¶19.) Baez told Malabet she had been waiting in the wrong terminal for over an hour, but Malabet refused to let her board the plane. (Id. ¶ 22.)
Baez then asked Malabet what would happen to her luggage if she were to board a different flight. (Id. ¶ 23.) Malabet told Baez that her bag would be in Austin when she arrived. (Id. ¶ 24.) Baez responded, "[t]hat doesn't make any sense. Isn't it a security risk to let a bag go on a plane without a passenger, what if there was a bomb in the bag?" (Id. ¶ 25.) Malabet said that if there were a bomb in the bag, Transportation Security Administration ("TSA") officials would know, to which plaintiff replied, "TSA -- my ass." (Id. ¶ 26.) Baez and Malabet then parted ways. (Id. ¶ 27.) Baez's flight remained at the gate for an additional thirty minutes before departing. (Id. ¶¶ 28-29.) During that time, Malabet did not report Baez's comment to the TSA or JetBlue. (Id. ¶ 30.)
Baez returned to the JetBlue customer service counter to re-book her flight. (Id. ¶ 31.) While an agent was re-booking Baez's flight, Malabet approached the agent and said, "this one thinks she's getting on a flight . . . [s]he['s] nasty, I['m] gonna mark her record." (Id. ¶¶ 32, 33.) Baez commented that she was a frequent flier with JetBlue and asked why Malabet was treating her so rudely, but Malabet did not respond. (Id. ¶ 34.) The booking agent gave Baez a boarding pass for the 1:05 p.m. flight to Austin. (Id. ¶ 35.)
While she waited for her flight, Baez filed an online complaint with JetBlue that identified Malabet by her first name and detailed their exchanges at the gate and at the customer service counter. (Id. ¶¶ 36, 37.) In response to Baez's complaint, JetBlue officials spoke with Malabet about the incident while Baez was still in the airport waiting for her flight. (Id. ¶¶ 38, 39.) Malabet told the JetBlue officials that, during their conversation at the jet bridge, Baez had said, "[w]ell I have a bomb in my bag, so are you guys going to turn the plane around, 'cause I need my bag." (Id. ¶ 41.) Malabet also told the officials that Baez had said that, "TSA does not know how to do their f-ing job, because if it did, TSA would not catch [the bomb] and let it go through." (Id. ¶ 42.)
In response to Malabet's accusations, a JetBlue security agent approached Baez and directed her to accompany him to the security office. (Id. ¶ 46.) Then, for approximately five hours, law enforcement officials interrogated Baez about her patriotism, whether she had suicidal thoughts, and whether she used prescription drugs.*fn2 (Id. ¶¶ 46-48.) They repeatedly asked Baez to admit that she had made a bomb threat, but she refused. (Id. ¶ 49.) After finishing the interrogation, the officials arrested Baez and "charged" her with making a false bomb threat. (Id. ¶ 50.)
The story of Baez's arrest garnered international media attention, receiving coverage in the United States, South Africa, Denmark, Germany, and Sweden. (Complaint ¶ 54.) Baez alleges the publicity damaged her personal and professional reputation, and permanently impaired her employment prospects. (Id. ¶¶ 53, 54). Prior to this incident, Baez had never been arrested. (Id. ¶ 55.)
C. Procedural Background
Baez filed her initial complaint in this action against JetBlue and Tiffany "Doe" on February 12, 2009. (Docket Entry # 1.) In it, she asserted four federal claims under 42 U.S.C § 1983: false arrest, malicious prosecution, malicious abuse of process, and denial of the right to a fair trial. (Id. ¶¶ 52, 55, 65, 70.) She also asserted state law claims of false arrest, malicious prosecution, malicious abuse of process, intentional infliction of emotional distress, prima facie tort, negligent hiring, negligent training, negligent supervision, negligent retention, unjust enrichment, and defamation. (Id. ¶ 52, 55, 65, 70, 74, 79, 84, 88, 94.) On April 15, 2009, JetBlue moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (See Docket Entry # 9.)
On June 10, 2009, Baez moved for default judgment against Tiffany "Doe" for "failure to plead or otherwise defend" herself under Federal Rule of Civil Procedure 55 and Local Rule 55.2. (Docket Entry # 17.) On June 15, 2009, JetBlue moved to dismiss all claims against Tiffany "Doe" for failure to effect service on her pursuant to Federal Rule of Civil Procedure 4(m). (Docket Entry # 19.) On February 17, 2009, Baez left a summons for Tiffany "Doe" with a JetBlue employee described in the summons as a "co-worker." (See Docket Entry # 4.) Baez subsequently mailed a summons and complaint addressed to "Doe" to JetBlue headquarters. (Id.) Malabet has not worked at JetBlue since December 31, 2008. (Carbone Aff. (Docket Entry # 22) ¶ 2.) Furthermore, Baez never asked JetBlue to further identify Tiffany "Doe." (Burns Aff. (Docket Entry # 21) ¶ 2.)
On August 3, 2009, Judge Charles P. Sifton granted JetBlue's motion to dismiss Baez's claims against JetBlue and denied as moot JetBlue's motion to dismiss the claims against Tiffany "Doe." (Memorandum and Order dated August 3, 2009 ("Sifton Order") (Docket Entry # 26) 1.) Judge Sifton also granted Baez leave to amend her claims for false arrest, negligence, denial of the right to a fair trial, intentional infliction of emotional distress, and defamation, and granted Baez 30 days to plead diversity jurisdiction as to "Doe," which she had failed to do in her initial complaint. (Id. at 29.)
On October 22, 2009, Baez filed an amended complaint against JetBlue and Tiffany Malabet. (Complaint ¶ 2, 3.)*fn3 That complaint adequately pleads complete diversity. (Id ¶ 3.) Baez properly served Malabet for the first time on October 5, 2009. (Malabet Summons (Docket Entry # 33).). The case was reassigned to this court on November 24, 2009.
When evaluating a motion to dismiss under Rule 12(b)(6), a court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008) (citation omitted). To survive a Rule 12(b)(6) motion, 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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A mere "formulaic recitation of the elements of a cause of action" is insufficient. Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient "[f]actual allegations . . . to raise a right to relief above the speculative level." Id. A court may consider "any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference . . . and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit" on a motion to dismiss. ATSI Commc'ns. Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted).
A. Section 1983 Claims
Section 1983 creates no substantive rights; rather, it provides a "mechanism for enforcing a right or benefit established elsewhere." Morris-Hayes v. Bd. Of Educ., 423 F.3d 153, 159 (2d Cir. 2005) (citation omitted). "To state a claim under §1983, a [p]laintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law." Nest v. Atkins, 487 U.S. 42, 48 (1988).
For the purposes of a §1983 action, private parties act under color of state law if (1) the state compelled the private party's conduct, (2) the private party acted jointly with a state, or (3) the private party fulfilled a role that is traditionally a public function performed by a state. See Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008). A private party also acts under color of state law if it conspires with state actors to deprive someone of his or her constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). There must be "such a close nexus between the State and the challenged [private] action that seemingly private behavior may be fairly treated as that of the State itself." Tancredi v. Metro Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations and internal quotation marks omitted).
Baez's allegations are insufficient to state a claim that either JetBlue or Malabet acted under color of state law. Baez contends that Defendants acted under color of state law because they provided false information to law enforcement officials who then interrogated and arrested her. But "providing false information to the police does not make a private individual . . . a state actor and liable under §1983." Chodkowski v. City of New York, No. 06-cv-7120 (LBS), 2007 U.S. Dist. LEXIS 67822, at *28 (S.D.N.Y. September 11, 2007). See also Fisk v. Letterman, 401 F. Supp. 2d 362, 368 (S.D.N.Y. 2005) (dismissing a §1983 claim because the false testimony of a private actor is insufficient to show conspiracy with a state). A longstanding pattern of repeated lies and false accusations made for the purpose of procuring an arrest may constitute state action. Chodkowski, 2007 U.S. Dist. LEXIS 67822, at *27. Baez makes no such allegation here. She only cites the isolated incident on April 15, 2008. Because Baez insufficiently alleges that Defendants are state actors, Defendants' motions to dismiss are granted with respect to all federal claims.
B. State Law Claims*fn4
1)Relation Back of Amended Complaint
Malabet asserts that Baez's state law claims against her should be dismissed as untimely under N.Y. C.P.L.R. §215(3). ((Docket Entry # 46) at 15, 25.)*fn5 The events that gave rise to all of Baez's state claims occurred on April 15, 2008. (Complaint ¶ 11.) Baez did not name Malabet as a party until she filed her amended complaint on October 22, 2009, more than one year and six months later. (Id. ¶ 3.) Baez argues that her amended complaint naming Malabet was timely because it relates back to the initial complaint, which was filed within the statute of limitations period. ((Docket Entry # 48) 33.)
An amended complaint filed after the applicable limitations period has expired is nonetheless timely if it relates back to the original complaint. See Fed. R. Civ. P. 15(c). When an amendment to a pleading changes "the naming of the party against whom a claim is asserted, the amendment relates back to the date of the original pleading" if the claim arises "out of the conduct, transaction, or occurrence set out . . . in the original pleading," and "if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed. R. Civ. P. (c)(1)(B)-(C).*fn6
Under federal law, the "linchpin" of the relation back doctrine is notice to the defendant. Schiavone v. Fortune, 477 U.S. 21, 29 (1986). "If the notice requirement is met . . . a complaint may be amended at any time to correct a formal defect such as a misnomer or misidentification," including the omission of a defendant's first or last name. Godlewska v. Human Dev. Ass'n, CV-03-3985 (DGT), 2006 U.S. Dist. LEXIS 30519, at *15 (E.D.N.Y. May 18, 2006).A defendant need not have received formal notice in the form of a summons and complaint; "[i]t is sufficient that such notice occur through informal means." Blaskiewicz v. County of Suffolk, 29 F. Supp. 2d 134, 138 (E.D.N.Y. 1998). The relevant inquiry is what the improperly named defendant "knew or should have known during the [relevant] period, not what the plaintiff knew or should have known at the time of filing her original complaint." Krupski v. Costa Crociere S.P.A.; 130 S.Ct. 2485, 2493 (2010) (emphasis in original).
Baez's claims against Malabet indisputably arose from the same incident as Baez's claims against JetBlue, namely, that she was falsely arrested due to Malabet's accusations. Baez provided Malabet's first name, Tiffany, in her initial complaint. She also gave sufficient details regarding her arrest that, had Malabet seen the complaint, she should have known that, but for a mistake, Baez would have brought the claims against her. See, e.g., Godlewska, 2006 U.S. Dist. LEXIS 30519, at *15. The only remaining question is thus whether Malabet had timely notice of the complaint. Determining whether Malabet had adequate notice "poses two factual questions, that is, whether the defendant received some form of notice on a timely basis and whether such notice as [s]he received was adequate to prevent resultant prejudice from the delay in naming [her] as a defendant." Sigmund v. Martinez, 06 Civ. 1043 (RWS), 2006 U.S. Dist. LEXIS 49265, at *13 (S.D.N.Y. July 10, 2006).
Under federal law, notice would have been timely until the 120 day period for service ended on June 12, 2009. See Fed. R. Civ. Proc. 4(m). The record is insufficient for the court to determine whether or not Malabet had timely informal notice of Baez's claims and whether Malabet was prejudiced. The court orders limited discovery on these two issues. Malabet's motion to dismiss is denied without prejudice pending that discovery. After such discovery is completed, the parties may submit new motions.
2) Preemption
Defendants argue that Baez's state law claims are expressly and impliedly preempted by the Airline Deregulation Act ("ADA"), 49 U.S.C. § 1305. (JetBlue Mem. 25.) The ADA expressly preempts any state law relating to "a price, route, or service of an airline carrier."
49 U.S.C. §1305. The Second Circuit has not as yet ruled on exactly what types of claims § 1305 preempts. However, "actions in which plaintiffs invoke traditional elements of tort law . . . overwhelmingly incline against federal preemption." Pittman v. Grayson, 869 F.Supp. 1065, 1072 (S.D.N.Y. 1994). "The threshold inquiry" when determining whether claims are preempted under § 1305 is to "define whether the activity at issue in the claim is an airline service." Rombom v. U.S. Airlines, 867 F.Supp. 214, 221 (S.D.N.Y. 1994). "If the court determines that an activity is not an airline service for § 1305 purposes, the preemption inquiry ceases, and the state law claims are actionable." Id.
Baez's state law claims do not involve the type of activity that courts have considered to be a "service" under § 1305. See id. at 223 (barring claims of mistreatment during flight because air travel is a service, but allowing false arrest claim because it occurred after plaintiff had disembarked); see also Von Hundertmark v. Boston Professional Hockey Ass'n, Inc., CV-93-1369, 1996 U.S. Dist. LEXIS 20231, at *6 (E.D.N.Y. March 7, 1996) (allowing claims of negligent training and supervision of flight attendants because claims only marginally related to airline service). Baez's claims are not preempted by the ADA.
3) Intentional Infliction of Emotional Distress
Under New York law, an IIED claim requires a showing of "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Conboy v. AT&T Corp., 241 F.3d 242, 258 (2d Cir. 2001). Whether the alleged conduct is sufficiently outrageous to satisfy the first element is a matter of law for a court to decide. Howell v. N. Y. Post Co., 81 N.Y.2d 115, 121 (1993). "[T]he standard for stating a valid claim of intentional infliction of emotional distress is rigorous, and difficult to satisfy." Conboy, 241 F.3d at 258 (internal quotation marks omitted). "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Id. (internal quotation marks omitted). "Courts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious campaign of harassment or intimidation." Cohn-Frankel v. United Synagogue of Conservative Judaism, 667 N.Y.S.2d 360, 363 (1st Dep't 1998).
Baez's allegations are insufficient to state a claim that JetBlue engaged in extreme and outrageous conduct when it relayed Malabet's accusations to law enforcement officials. Baez does not present any facts indicating that any JetBlue employee other than Malabet knew Malabet's statements were false. With respect to JetBlue, she merely alleges that, after receiving a report of a bomb threat from one of its employees, one of JetBlue's security agents took Baez to a security office for questioning. (Complaint ¶ 46.) This conduct falls far from the standard of extreme and outrageous behavior.
Baez's allegation that Malabet falsely accused her of making a bomb threat is sufficient to state a claim for IIED. Generally, "allegations of providing false information to the police . . . do not suffice" for an IIED claim absent additional outrageous behavior. Rivers v. Towers, Perrin, Forster & Crosby, Inc., No. CV-07-5441(DGT), 2009 U.S. Dist. LEXIS 26301, at *9 (E.D.N.Y. March 27, 2009). However, as an airline employee in post-9/11 America, Malabet knew or should have known that her false accusations would, at the very least, likely subject Baez to extensive police interrogation and potentially serious criminal charges.
4) False Arrest
Under New York law, to state a claim for false arrest, a plaintiff must show that "(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). A "civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution." Levy v. Grandone, 789 N.Y.S.2d 291, 293 (2d Dep't 2005). For a private defendant to be liable for false arrest, "[t]he defendant must have affirmatively induced the [arresting] officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal to the point where the officer is not acting of his own volition." Curley v. AMR Corp., 153 F.3d 5, 13-14 (2d Cir. 1998). Furthermore, to show that a private party "intended to confine [the plaintiff] . . . [i]t is not enough that the defendant's words or actions caused a police officer to confine him; plaintiff must show that the defendant directed an officer to take him into custody." Du Chateau v. Metro-North Commuter R.R. Co., 668 N.Y.S.2d 12, 16 (1st Dep't 1999) (internal brackets and quotation marks omitted).
Baez alleges that JetBlue actively took part in her arrest when a JetBlue security agent approached her and "ordered [her] to accompany [the] agent to a security office" where law enforcement officials "detained and interrogated [her] for approximately five hours." (Complaint ¶¶ 46, 47.) Baez's allegations concerning JetBlue's security agent's actions alone are insufficient to plead a false arrest claim. Furthermore, Baez has not alleged facts suggesting that JetBlue personnel directed law enforcement officials to arrest her or that JetBlue personnel acted with officious and undue zeal in procuring her arrest. Her false arrest claim against JetBlue is therefore dismissed.
Baez claims that Malabet acted with "officious and undue zeal" in procuring her arrest when she falsely accused Baez of making a bomb threat. This allegation is sufficient to survive Malabet's motion to dismiss. Although falsely accusing someone of a crime does not generally rise to the level of false arrest, Malabet, an airline gate agent working after 9/11, knew or should have known that falsely stating that Baez said, "I have a bomb in my bag" in JFK airport would likely lead to Baez's detention and interrogation. Depending on the context in which Malabet made this accusation, it could rise to the level of acting with "officious and undue zeal" in procuring Baez's false arrest.
6) Defamation
The Second Circuit has held that a defamation claim under New York law requires a plaintiff to show (1) that defendants made a false defamatory statement of fact; (2) that the statement was published to a third party; (3) that the statement concerned the plaintiff; (4) that the defendant was responsible for making the statement; and (5) that the statement was slander per se or caused special damages. Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001).
Judge Sifton previously determined that Baez adequately pleaded her defamation claim against Defendants. (Sifton Order at 28.) JetBlue challenges this conclusion on the ground that Baez's amended complaint failed to plausibly plead that JetBlue made its defamatory statements "with malice." (JetBlue Mem. at 31.) However, under New York law, a "plaintiff is not required to include . . . allegations of malice in its complaint." Util. Metal Research, Inc. v. Generac Power Sys., 179 Fed. Appx. 795 (2d Cir. 2006). JetBlue's motion to dismiss the defamation claim is thus denied.
Malabet argues that Baez's defamation claim should fail because Baez failed to allege whether the defamatory statements were written or oral or to whom Malabet made them. Baez did not name an individual to whom Malabet made defamatory statements or say whether she made the statements orally or in writing, but she did allege that Malabet "provided false and misleading information to various news and/or media outlets." (Complaint ¶ 85.) Baez's allegations meet the standard for a defamation claim, which only requires a plaintiff to show that a defendant "published [defamatory statements] to a third party." Albert, 239 F.3d at 265. Malabet's motion to dismiss Baez's defamation claim is consequently denied.
6) Negligence Claims against JetBlue
Under New York law, an employer can "be held liable under theories of negligent hiring, negligent retention, and negligent supervision." Kenneth R. v. Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 793 (2d Dep't 1997). "[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury." Id. To assert a claim for negligent training, a plaintiff "must demonstrate deficiencies in the training of employees that, if corrected, could have avoided the alleged harm." Carter v. Port Auth. of N.Y. & N.J., 03 Civ. 8751 (DLC), 2004 U.S. Dist. LEXIS 25633, at *16 (S.D.N.Y. December 20, 2004).
Judge Sifton previously indicated that "amendment to [Baez's] negligence claim would not be futile" if she "plausibly allege[d] facts indicating that defendant Jet[B]lue knew or should have known of Doe's propensity for retaliating against customers for making complaints, or that there were deficiencies in employee training that caused the harm." (Sifton Order at 23.)
Baez amended her Complaint accordingly. She claims that JetBlue was negligent in hiring Malabet because it "failed to make reasonable inquiries into" Malabet's background, and that, had JetBlue "used reasonable care in inquiring into [her background], it would have learned that [Malabet] was patently unqualified for [her] position." (Complaint ¶¶ 96- 97.) Baez alleges JetBlue was negligent in retaining Malabet as an employee because "JetBlue knew, or in the exercise of reasonable care, should have known, that [Malabet] had a propensity for retaliating against customers who made complaints against her." (Complaint ¶ 102.) Baez further claims that JetBlue "failed to adequately train its employees . . . to properly respond to passenger complaints," and, even when it "learned of previous instances in which [Malabet] had made false allegations against passengers who had filed complaints against her . . . , [JetBlue] failed to discipline" Malabet. (Complaint ¶¶ 109, 113-14.) Drawing all inferences in Baez's favor and accepting all of her allegations as true, Baez has adequately pled her claims for negligent hiring, retention, training, and supervision.
C. JetBlue's Motion for Sanctions Under Federal Rule 11
The purpose of Federal Rule of Civil Procedure 11 is to "deter baseless filings in district court." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). Rule 11 sanctions are appropriate only where there is clear evidence that a plaintiff's claims are brought in bad faith. See Browning v. Debenture Holders' Comm. V. DASA Corp., 560 F.2d 1078, 1088 (2d Cir. 1977).
JetBlue argues that Plaintiff's pleadings are so legally and factually inadequate that the filing of the amended complaint warrants sanctions. (Mot. for Sanctions at 1.) Baez maintains that her allegations have ample legal and factual support, and that the court should award her the costs of responding to JetBlue's motion. ((Docket Entry # 38) at 1.) Baez has adequately pleaded claims for defamation, negligent hiring, negligent supervision, negligent training, and negligent retention against JetBlue, and JetBlue has presented no evidence of bad faith on Baez's part. See Browning 560 F.2d at 1088. JetBlue's motion for sanctions is therefore denied. The court declines, however, to exercise its discretion to award costs to Baez, in part because there is no evidence that her attorney spent a significant amount of time responding to JetBlue's motion. See Fed. R. Civ. P. 11(C)(1)(A) (a court may award reasonable expenses and attorney fees to the party prevailing in presenting or opposing a motion for sanctions).
For the reasons set forth above, Malabet's motion to dismiss the Amended Complaint is GRANTED as to the § 1983 claims and DENIED without prejudice as to the state law claims for defamation, false arrest, and intentional infliction of emotional distress. JetBlue's motion to dismiss the Amended Complaint is GRANTED as to the § 1983 claims and the claims for false arrest and intentional infliction of emotional distress and DENIED as to the claims for negligent supervision, negligent retention, negligent training, negligent hiring, and defamation. JetBlue's motion for sanctions is DENIED.
NICHOLAS G. GARAUFIS United States District Judge
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January 25, 2012
BILLY D. MOORE,PLAINTIFF,v.ATWATER POLICE DEPARTMENT, ET AL., DEFENDANTS.
ORDER DIRECTING SERVICE BY THE UNITED STATES MARSHALS SERVICE WITHOUT PREPAYMENT OF COSTS (Doc. 27)
PLAINTIFF is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. The Court previously found service of the complaint appropriate and ordered Plaintiff to provide the necessary documents and information for service of process. Accordingly, pursuant to Federal Rule of Civil Procedure 4, it is HEREBY ORDERED that:
1. The following parties and governmental entities shall be served: Defendant Atwater Police Department, Defendant Atwater Police Officer Richards, and Defendant Atwater Police Officer Wisdom. Pursuant to F. R. Civ. P. 4(j)(2), Defendant Atwater Police Department shall be served by delivering a copy of the summons and complaint to its chief executive officer.
2. For service of each Defendant or Governmental party to be served, the Clerk of the Court is directed to forward the following documents to the United States Marshals Service:
(1) One completed and issued summons;
(2) One completed USM-285 form;
(3) One copy of the amended complaint filed on January 14, 2012 (Doc. 24), plus an extra copy for the Marshals Service; and
(4) One copy of this order, plus an extra copy for the Marshals Service.
3. Within ten (10) days from the date of this order, the Marshals Service is directed to serve each Defendant or governmental entity listed in paragraph one above with a copy of the summons and complaint, as well as a copy of this order by registered or certified mail, return receipt requested.
4. Within ten (10) days after service is effected, the United States Marshal shall file the return of service for each Defendant or governmental entity upon which service is required. Costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshals Service for photocopying any additional copies of the summons and complaint and for preparing new USM-285 forms, if required.
5. The United States Marshal is directed to retain copies of the summons and complaint in his file for future use.
6. Despite the means by which a defendant has been served, each defendant is required to reply to the complaint. 42 U.S.C. § 1997e(g)(2).
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Cherry Tomato Salad
Total Time
Prep 15 mins
Cook 0 mins
This recipe is great when your tomato plants are producing. I leave out the green olives since I don't like them.
Ingredients Nutrition
- 40 cherry tomatoes, halved
- 1 cup pitted and sliced green olives
- 1 (6 ounce) can black olives, drained and sliced
- 2 green onions, minced
- 3 ounces pine nuts
- 1⁄2 cup olive oil
- 2 tablespoons red wine vinegar
- 1 tablespoon white sugar
- 1 teaspoon dried oregano
- salt and pepper
- In a salad bowl, combine cherry tomatoes, green olives, back olives, and green onions.
- In a dry skillet, toast pine nuts over medium heat until golden brown, turning frequently. Stir into tomato mixture.
- In a small bowl, mix together olive oil, red wine vinegar, sugar, and oregano. Season to taste with salt and pepper.
- Pour over salad, and gently stir to coat.
- Chill for 1 hour.


text: We're sorry, Homemade Shortbread Personalised Christmas Garland is no longer available Why not try one of these instead? Christmas Eve Gift For Santa And Reindeer by Nila Holden Cookies & Biscuits £15$25.74€17.97$19.22 free UK delivery Christmas Gingerbread Tree Decorations by Nila Holden Cookies & Biscuits £20$34.32€23.97$25.62 free UK delivery Personalised Engagement Biscuits Gift by The Biscuit Box £13$22.31€15.58$16.65 free UK delivery The Yorkshireman's Tin Of Treats by LOTTIE SHAW'S £16.95$29.08€20.31$21.71 Homemade Shortbread Personalised Christmas Garland by Bisquites £17.50$30.03€20.97$22.42 This item is no longer available Favourite Favourite View your favourites name required (required) name required (required) name required (required) name required (required) name required (required) we're sorry we're sorry, This item is no longer available buy a gift voucher related categories christmas > christmas decorations > garlands & bunting weddings > living & decorating > parties > sweets & chocolate christmas > food gifts > sweet treats by Bisquites Location: Lancashire, GB read seller's profile see seller's complete range more items from this seller Homemade Shortbread Christmas Biscuit Hamper by Bisquites £55$94.39€65.91$70.47 Homemade Shortbread Biscuit Doughnuts by Bisquites £18$30.89€21.57$23.06 Homemade Shortbread Special Age Birthday B... by Bisquites £7.50$12.87€8.98$9.61 Homemade Shortbread Christmas Stocking Bis... by Bisquites £7$12.01€8.38$8.96 Homemade Shortbread Knicker Biscuit Gift by Bisquites £17.50$30.03€20.97$22.42 Homemade Shortbread Biscuit Heart Bouquet by Bisquites £16.50$28.31€19.77$21.14 view all you may also like PRODUCT DETAILS CUSTOMER REVIEWS DELIVERY RETURNS Made in Britain can be personalised gift wrapping available ask seller a question save for later This unique personalised Christmas Stocking Biscuit Garland, is made from our fabulous shortbread, hand-iced in red with white decorations and your very own personalisation. This unique personalised Christmas Stocking Biscuit Garland, is made from our fabulous shortbread, hand-iced in red with white decorations and your very own personalization. All five of the mini stocking biscuits can be personalised, and would make a great alternative Christmas decoration, for a Fireplace or anywhere you fancy. The Garland is cream grosgrain ribbon approx. 4mmwide and 1.4m in length trimmed at either end with a lovely bright red bow in grosgrain 4mm ribbon. The individual stockings are in a bag tied with red ribbon for you to assemble on the garland. All 5 of the biscuits are individually personalised and wrapped and tied on to glorious red ribbon with bows at either side, makes a stunning alternative christmas decoration for use in the office or all around the home. made from: Ingredients, Butter, Flour, Ground Rice, Icing Sugar, Fondant icing, Royal Icing, Edible glitters and decorations. dimensions: The garland is approxinately 1.4 metres in length. product code: 140179 1 customer review read about our product rating system ratings guide trusted independent customer feedbackforum excellent bad good poor This product is dispatched to you by Bisquites. All Bisquites are sent by Royal Mail First Class. We can offer a special delivery service and customers must call to book this service. Bisquites do not accept any responsibility for any delays in delivery by Royal Mail, this includes industrial action. We also do not accept responsibility for return postage costs, items lost or damaged in transit, it is down to circumstances that are out of our control. You have 28 days, from receipt of cancellable goods, to notify the seller if you wish to cancel your order or exchange an item. Please note: goods that are personalised, bespoke or made-to-order to your specific requirements, perishable products and personal items sold with a hygiene seal (cosmetics, underwear) in instances where the seal is broken are non-refundable, unless faulty. Read more about our returns policy.Should you choose to return or exchange your order you will need to deliver the item(s) to the UK, where this seller is based. Bisquites's return policy Please see notonthehighstreet.com's returns policy.


text:
Hike to Kettlespout Falls in Hogsback
Visiting Hogsback for the first time (see our post here), after living in South Africa all my life, was honestly like stepping into another country- A greener, lushious region where forests and mountains took up nearly all of the space and left tiny areas for houses and roads. Even without names around town such as Lothlorien, Middle Earth and Striders, this green oasis immediately took me back to the Lord of the Rings and the Shire.
The cottage we stayed in at Away with the Fairies Backpackers had paintings of little gnomes and fairies beside the fireplace, next to the tiny doors and near the little bath. The cottage was aptly named 'The Hobbit' with other rooms named Frodo or Bilbo's Rest. Even before we set off outdoors, we were surrounded by large trees, gardens filled with bright blooms, a 15m tree house and large logs used as benches.
In the morning, we set off with our guide, Vuyo, who obviously knew what damp and wet conditions lay before us in the forest and wore gumboots. The rest of us wore hiking boots or walking shoes and even these were no match for the forest who had just recently seen a lot of rain. We started at the Hogsback Arboretum filled with red Japanese Maples, oaks and bright, pink flowers.
We slid across wooden poles knocked together to form bridges, dug our feet into wet earth that led up slight inclines and tried to keep dry in the light constant rain. My broken rain poncho helped somewhat but the persistent rain ensured that I play hide and seek with my camera and take shots whenever I could get them.
I was in absolute awe at how green and fresh this mountainside was, having come from the dry Wild Coast which hadn't seen rain in a long time, this seemed to be the place where God displayed favouritism and ensured that all things grow in abundance. Forests of pine trees grew tall and lined the pathway we walked through.
Vuyo showed us a tiny Yellowwood, South Africa's National Tree, which could grow to be very old and tall. Lichen grew on trees and branches throughout the forest showing signs of clean air and healthy conditions.
We pushed branches aside, walked between dead trees that had to be sawed to clear the pathway and stopped to eye the Poisonous, apples which are said to be able to blind and kill you.
After hopping across a few gently flowing streams, past little waterfalls along the path, we walked uphill for a little bit longer before we reached the top. And there bubbling over the mountainside at full force, was the Kettlespout waterfall. Even though Vuyo warned us against standing near the edge of the cliff, everyone especially the guys seemed to have the strong desire to peek over to see it falling down below.
It gets its name from the wind which moves through the valley and lifts the water up to resemble the spout of a kettle. Down below we could see the entire 'shire' below. A few houses and buildings were scattered below but mostly just varying shades of forest, emerald and jade green.
Going back down the mountain was even more interesting. We slipped and slid along the bridges, down hilly parts and held hands to one point to avoid one hiker losing their footing and crashing into all the others below. Soon we were back down at the bottom, but thank goodness we were still surrounded by trees, flowers and the ever-beautiful green.
To do guided hikes in the area including the Hike to Kettlespout Falls in Hogsback, enquire about Hogsback Adventures through Away with the Fairies. This hike takes about 2 and half hours and is fairly easy for those of a reasonable fitness.
Away With The Fairies:
Bag End, Ambleside Close, Hogsback, 5721, Eastern Cape
Telephone: +27 (0)45 962-1031
Useful Hogsback Links:
- Hogsback Attractions
- Hogsback Self Catering
- Eastern Cape Self Catering
- South Africa Self Catering
- South Africa Accommodation
Thank you for Around About Cars for taking us around South Africa and to Hogsback.
Photographs by and © Vaughan McShane
You are reading Popular Hiking Trails and Walks in South Africa Series Read more from this series of articles.
- Hiking the Otter Trail
- Walking above Simons Town
- The Whale Trail - the five-day Whale Hiking trail
- Table Mountain Hikes
- The Walk to Elephants Eye Cave
- Cape of Good Hope Trail (overnight hiking trail)
- Hike the Hoerikwaggo Trail
- Waterworks Museum Hike, Cape Town
- Valley of the Gods Hiking Trail
- Crouching Lion, Hidden Mountain
- Game for a Walk? Game Viewing Walk
- Easy Walks Cape Town: A couple of the easiest and most beautiful walks in Cape Town
- Take a hike ... in Gauteng!
- Orange Kloof Forest Trail
- Tranquillity Cracks
- Constantia Walks - Discovering the Constantia green belt – city walks with a difference
- Rock-hopping in Bainskloof
- The Postberg Flower Trail
- Forget about its name - there's nothing cute or cuddly about the Otter Trail
- Table Mountain Pipe Track
- Skeleton Gorge hiking trail
- The Hunter Gatherer Hiking Trail
- Hout Bay and beyond ... the Oude Skip hike
- Kologha Forest Trails, Eastern Cape
- The St Lucia Wilderness Trail
- Hiking in Hogsback
- The Swartberg Hiking Trail
- The Strandloper Trail in South Africa's Eastern Cape
- The Swellendam Hiking Trail - a 6-day hike in the Langeberg mountains
- Suicide Gorge – the ultimate kloofing experience
- Take a walk on "The Wild Side of the Drakensberg" - Wartrail Skywalk
- Yellowwood trail Kirstenbosch
- Foot safaris in Kruger National Park
- Walking on clouds: Hiking in the Drakensberg
- A walk at Silvermine - so much more than a breath of fresh air
- Walk above St James - a perfect child-friendly Cape Town hike via the Old Mule Path
- Botterboom Hiking Trail
- Follow the yellow brick road – the yellow route at Helderberg Nature Reserve
- Strolling the pipe track
- Scaling Steenberg Peak - a 2.5 hour circular route at Silvermine
- Kgalagadi - two day wilderness trail that will leave you changed
- Rambling in Robberg Nature Reserve
- Boesmanskloof Trail (also known as the Greyton-to-McGregor trail)
- 7 most memorable hikes in South Africa
- 8 great day trails (not that well known)
- Lazy man's hikes – where to walk off the wrath of the holidays
- Fun in the sun at Umgeni Valley
- Cecilia Waterfall from Kirstenbosch - a wonderful walk
- Hiking up Du Toitskloof in the Limietberg Nature Reserve - The Krom River hike
- Garden Route Day Walks – we select the best
- Peers Cave Hike
- Last chance for Crystal Pools hike
- Hiking Above Wellington – Happy Valley Trail in the Limietberg
- The Thomas T Tucker Shipwreck Trail in Cape Point
- Walking Silvermine – the Amphitheatre Route Around the Dam
- Safety In Hiking
- Hike to Muizenberg Cave
- The Darwin Trail – Retrace Darwin's Visit To The Cape
- Walking Table Mountain
- Three Awesome Hikes To Do When In The Cape
- Three Must-Do Hikes in Limpopo
- The Wild Coast Trail – escape like never before
- Newlands Forest Walk To The Base Of Newlands Ravine
- The Otter Trail
- Scaling Vlakkenberg – a hike in the heart of Cape Town's suburbs
- A Morning Hike Up Lions Head
- Hiking Trails in the Tsitsikamma
- Popular Walks and Hikes in Cape Town, South Africa
- Hiking In and Around Pretoria
- Hiking Mossel Bay
- Hiking Jonkershoek Tweede Waterval - a wonderful easy ramble, perfect for families
- Top 5 winter hiking trails in South Africa
- 5 best family hikes in South Africa
- Day Hikes of the Drakensberg
- Hike to Kettlespout Falls in Hogsback
- Coastal Hike in Coffee Bay
- Sentinel Peak Hike - Drakensberg
- Hiking up Table Mountain - The Platteklip Gorge Hike
- The Baviaanskloof Hartland Hike
- The Leopard's Kloof Trail and Other Magical Discoveries at Harold Porter Garden


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The second series of John Sullivan's Peckham-based comedy, featuring the market trading activities of Del and Rodney Trotter. The episodes are: 'The Long Legs of the Law', 'Ashes to Ashes', 'A Losing Streak', 'No Greater Love', 'The Yellow Peril', 'It Never Rains', 'A Touch of Glass' and 'Diamonds are for Heather'.
Entire fourth series of the Peckham-based wheeler-dealer sitcom. In 'Happy Returns', Del (David Jason) is horrified to think that Rodney's (Nicholas Lyndhurst) new, nineteen-year-old girlfriend might well be the fruit of his youthful loins. 'Strained Relations' sees the Trotter clan gathered for Grandad's funeral (following the sad passing of actor Lennard Pearce in real life); but how keen will Del be to take in long-lost seafarer Uncle Albert (Buster Merryfield)? In 'Hole in One', Albert tries to help the boys out when they don't have enough money for Grandad's headstone. 'It's Only Rock and Roll' sees Del taking over as manager of Rodney's recently-formed rock band, while in 'Sleeping Dogs Lie', the Trotter brothers agree to look after Boycie and Marlene's 'puppy', Duke, while they are away on holiday. 'Watching the Girls Go By' sees Rodney in need of a date for the Nag's Head party after making a rash bet with Mickey Pearce, and in 'As One Door Closes', Del finally gets the chance to become a millionaire when an old friend cuts him in on a lucrative business deal in Australia. But will there be a place in the new set-up for Rodney and Albert?
Entire fifth series of the Peckham-based, wheeler-dealer sitcom. In 'From Prussia with Love' Del (David Jason) sees an opportunity for a nice little earner when Rodney (Nicholas Lyndhurst) inadvertantly takes in a pregnant German girl. 'The Miracle of Peckham' sees Del exploiting a miracle at the local church. 'The Longest Night' has Del, Rodney and Albert (Buster Merryfield) taken hostage in a supermarket by the gun-toting Shadow. 'Tea for Three' sees Rodney and Del falling out over Trigger's comely niece, Lisa. 'Video Nasty' finds Rodney's chance to make a community film ruined by his double-dealing sibling. Finally, in 'Who Wants to Be a Millionaire', Del gets the chance to realize his lifelong dream, but is he prepared to leave his family behind in order to move up in the world?
The entire sixth series of John Sullivan's Peckham-based comedy. In 'Yuppy Love', Del attempts to turn himself into a yuppy, while Rodney finds true love (this episode contains the famous 'falling through the bar' scene - voted one of television's top ten moments). 'Danger UXD' sees Del's newly acquired consignment of dolls not turning out to be quite what he expected, while in 'Chain Gang' the Trotters and chums are taken in by a cunning con man. 'The Unlucky Winner is...' sees Del, Cassandra and Rodney winning a holiday in the Mediterranean - the only snag being that Rodney must pretend to be fourteen years old! In 'Sickness and Wealth', Del becomes concerned that he may not have long for this world when he ends up in hospital. Finally, 'Little Problems' sees the arrangements for Rodney and Cassandra's impending marriage going awry when Del ends up in debt to the Driscoll brothers.
The entire seventh series of John Sullivan's hugely popular wheeler dealer sitcom. In 'The Sky's the Limit', Boycie asks Del Boy (David Jason) to try and retrieve his stolen satellite dish. 'The Chance of a Lifetime' sees Rodney (Nicholas Lyndhurst) lose his job with Cassandra's dad, while Del thinks he can finally achieve his life-long dream. 'Stage Fright' finds Raquel making a singing comeback with Del as her manager, and in 'The Class of '62', the evil Roy Slater re-enters the Trotters' lives - but is he a reformed character? 'He Ain't Heavy, He's My Uncle' sees Albert busy pumping iron and working out, while Rodney is on the slow slide into drink and depression, and in 'Three Men, a Woman and a Baby', Del looks forward to becoming a dad.


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- Party Tableware
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Stemless Personalized Wine Glass
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Imprinted Celestial Star Stem Flute
Clear Twist Stem Flute Gel Candle
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Plastic Personalized Wine Glass
Eiffel Tower Clear Charleston Glass
Large Personalized Plastic Pilsner Glass
Tall Tiki Personalized Glass Tumbler
Silver Plastic Champagne Glasses
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Govino 16 oz. Stemless Wine Glass
Fill a large personalized snifter with colored water and a flower and use it as a place setting for each guest at a formal. Stuff a colorful bandana into a customized canning jar mug and fill the glass with old-time candy sticks for a Western party theme. About the only limits on working personalized glassware into your party theme are your imagination. The options for custom glassware are almost as limitless these days, with more than two dozen selections in mugs alone.


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Black FitFlop™ Black F-Sporty™ Mary Jane
Regrettably this item is unavailable to order.
These Mary Janes are leather office shoes that work their socks off. Slimmer, sportier midsoles are packed with Anatomicush™ comfort. And wide elastic straps, in sleek all-over black,– save you seconds every time you slip them on. It's our chilled take on the Mary Jane…and it's an instant cult classic.
Upper - Leather, Lining and Sock - Leather, Sole - Other Materials.


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Personal friend needs to sell his house going into forclosure, we submitted an offer to the #bank and already got a 2.8M approval! Can sell for 3.2M without repairs, was on the market for 19M in 2010 and had a 79M listing for a new construction home on there as well. You can put 500k into it and sell for 5M
- Sep 2, 2012 2012-09-02 22:22:57
- Newport Coast, CA


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Watch Pathfinders: In the Company of Strangers (2011) Free Online
Pathfinders: In the Company of Strangers
IMDB Link:
Rating: 3.5/10 (1,072 votes)
Director: Curt A. Sindelar
Writer: Charlie Armstrong, Curt A. Sindelar
Stars: Christopher Serrone, Kyle Erickson, Michael Conner Humphreys, Philip De Lorenzo
Runtime: 100 min
Rated: N/A
Year: 2011
Genre: Action, Drama, History
Quality: 720p HD, HD
Language: English
Released: 11 Jan 2011
|Plot: Untold and lost history. A true story of the American Pathfinders, the volunteer paratroopers whose deadly mission was to land 30 minutes before the Normandy invasion, locate and mark strategic "drop zones" and set up the top-secret navigation equipment needed to guide the main airborne assault on D-Day.
Tip: If the video does not play, just reload the page after 2 minutes.


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Hey guys, just wondering if any one has had problems blowing bulbs? I have a 2005 wr450 that blows the headlight and tail light bulb within 60seconds of running like its over charging or something....anyone have any ideas?
WR 450 keeps blowing bulbs
Started by WR450James , Mar 06, 2010 02:18 AM
5 replies to this topic
Posted March 06, 2010 - 05:08 AM
possibly the regulator? measure the voltage across your battery terminals with the bike running.. shouldnt be above 15 volts
Posted March 06, 2010 - 08:05 AM
Most likely, the regulator. Also check the regulator plug (poor contact)
Posted March 09, 2010 - 02:34 AM
Give a man a commission and remove his brain. Good to see you are keeping up the fine traditions of the RAN.
Posted March 10, 2010 - 01:37 AM
Hi gents, good call was the voltage reg, she is all good now. Not sure what the last comment was about what is RAN?
Posted March 10, 2010 - 05:24 PM
dont worry about it... an in joke not related to this problem or thread!!
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Emera Inc.OTCPK - Current
Mon, Nov. 7, 5:47 PM
- Emera (OTCPK:EMRAF): Q3 EPS of $0.73.
- Press Release
Fri, Sep. 30, 3:33 PM
- Emera (OTCPK:EMRAF) declares C$0.5225/share quarterly dividend, in line with previous.
- Forward yield 4.42%
- Payable Nov. 15; for shareholders of record Nov. 1; ex-div Oct. 28.
Mon, Aug. 8, 5:33 PM
- Emera (OTCPK:EMRAF): Q2 EPS of $1.59
- Revenue of $499.4M (-5.2% Y/Y)
- Press Release
Tue, Jul. 5, 10:08 AM
- Emera (OTCPK:EMRAF) declares $0.5225/share quarterly dividend, 10% increase from prior dividend of $0.475, representing an annual yield of 5.6%.
- "The significant earnings and cash accretion expected from the TECO Energy acquisition, combined with the growth potential for the merged businesses, has provided our Board of Directors with the confidence to increase the common share dividend by 10 percent, and extend the 8 percent dividend growth target through 2020," said Chris Huskilson, President and CEO of Emera.
Mon, May 9, 5:51 PM
- Emera (OTCPK:EMRAF): Q1 EPS of C$0.81
- Revenue of C$877M (-1.3% Y/Y).
Tue, Apr. 12, 9:58 AM
- Emera (OTCPK:EMRAF) reached a settlement yesterday with groups in New Mexico, including the state's attorney general, on its $6.5B takeover of Teco Energy (TE +0.5%), bringing the deal first announced last September another step closer to completion.
- Emera agrees not to seek a base rate increase before Dec. 31, 2017, will evaluate a pipeline project that would increase the state's gas-export capacity to Mexico, and plans to establish a $10 M matching fund to extend gas systems in underserved communities.
- New Mexico's Public Regulation Commission is scheduled to consider the merger proposal next month.
Fri, Apr. 8, 9:29 AM
- Emera (OTCPK:EMRAF) declares C$0.475/share quarterly dividend, in line with previous.
- Forward yield 4.05%
- Payable May 16; for shareholders of record May 2; ex-div April 28.
Thu, Feb. 25, 9:14 AM
- Cleco (NYSE:CNL) -2.7% premarket, on top of yesterday's 9.4% plunge, after Louisiana's Public Service Commission rejected a $4.9B proposed takeover by a Macquarie-led (OTC:MCQEF) investor group, saying the deal was not in the best interest of customers.
- Among their objections, commissioners cited the purchase by Australian and Canadian investors who planned to sell the utility in 8-10 years, and the "double leverage" method of financing the transaction that left open the possibility that CNL customers could be on the hook for the debt.
- The rejection comes as foreign buyers including Fortis (OTCPK:FRTSF) and Emera (OTCPK:EMRAF) are seeking approval to take over U.S. power companies, and the CNL ruling may hurt the chances of future acquisitions by non-U.S. companies.
- Shares are downgraded to Sell from Neutral at Ladenburg Thalmann on the news.
Fri, Feb. 12, 5:09 PM
- Emera Inc. (OTCPK:EMRAF): Q4 EPS of C$0.59
- Revenue of C$731.6M (-6.5% Y/Y)
Sep. 8, 2015, 6:42 PM
- Company officials say they expect TECO Coal will not be a part of TECO Energy (NYSE:TE) when Emera Energy's (OTCPK:EMRAF) $10.4B deal to buy the utility company closes in mid-2016.
- "Emera and TECO both agree that we need to exit the coal business, and our expectation is that's going to happen sooner rather than later," TE CEO John Ramil said during a conference call earlier today.
- TE shares jumped 25% in today's trade in reaction to the acquisition, announced after Friday's close.
Sep. 4, 2015, 5:14 PM
- TECO Energy (NYSE:TE) +24.1% AH after agreeing to be acquired by Canada-based energy company Emera (OTCPK:EMRAF) in a $10.4B deal, including $3.9B of debt.
- The $27.55/share price is a 30% premium over today's closing price and a 48% premium based on TE's unaffected closing stock price on July 15, the last trading day prior to news reports regarding the company's strategic review.
- The companies say the merger creates a North American energy leader with more than $20B of assets and more than 2.4M electric and gas customers.
Aug. 11, 2015, 10:20 AM
- Emera Inc. (OTCPK:EMRAF) declares C$0.475/share quarterly dividend.
- Forward yield 4.33%
- Payable Nov. 16; for shareholders of record Nov. 2; ex-div Oct. 29.
Sep. 29, 2014, 6:23 AM
- Emera (OTCPK:EMRAF) declares $0.3875/share quarterly dividend, 6.9% increase from prior dividend of $0.3625.
- Forward yield 5.12%
- Payable Nov. 17; for shareholders of record Nov. 3; ex-div Oct. 30.
Jul. 10, 2014, 8:41 AMABB has been awarded a $400M from NSP Maritime Link, a subsidiary of Emera (EMRAF), to attach electricity generated in Newfoundland and Labrador to the North American grid in Nova Scotia via a 500 MW high voltage direct current connection. (PR) | Jul. 10, 2014, 8:41 AM
Oct. 16, 2013, 9:13 AM
- Emera Inc. (EMRAF.PK) declares $0.3625/share quarterly dividend
- Forward yield 5.06%
- Payable Nov. 15; for shareholders of record Nov. 1; ex-div Oct. 30.
Aug. 28, 2013, 9:58 AM
- Emera (EMRAF.PK) agrees to acquire three New England natural gas fired power generation plants from Capital Power for $541M, adding 1,050 MW to its generating capacity in the region.
- Nova Scotia-based Emera says adding gas generation to its existing generation portfolio of wind and hydro assets in the northeast U.S. fulfills a strategic objective.
- Capital Power says it's also winding down its commodity and energy trading business outside Alberta before year-end.


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Biological ActivityERK dimerization inhibitor (IC50 ~ 0.5 μM); inhibits ERK dimerization without effecting phosphorylation or kinase activity. Suppresses growth of tumor cells expressing RAS-ERK oncogenes in vitro. Induces apoptosis and prevents tumor progression in vivo.
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March 11, 2009
GORDON ROY PARKER, PLAINTIFF,v.VIACOM INTERNATIONAL, INC. ET AL., DEFENDANTS.
Defendant Viacom International Inc. filed the instant motion to dismiss (doc. no. 4), arguing that Plaintiff failed to state a claim upon which relief can be granted. For the reasons that follow, Defendant's motion to dismiss will be granted.*fn1
Pro se Plaintiff Gordon Roy Parker, an individual who currently residing in Pennsylvania, brings the instant action against Defendants, Viacom International Inc., Venusian Arts Corp. (hereinafter "VAC"), and Erik "Mystery" Von Markovik.
Defendant Viacom International Inc. is a Delaware corporation with its principal place of business in New York, and the network on which the reality show, "The Pickup Artist" (hereinafter "TPUA") aired. Defendant Venusian Arts Corporation is headquartered in California, and provides information and live seminars on "dating" related advice. Defendant Von Markovic is an owner/ officer of Defendant VAC.
Defendant Viacom's reality television program, TPUA, debuted on August 5, 2007.*fn2 Plaintiff alleges violations of the Lanham Act, Fair Housing Act, and Antitrust law stemming from this television program. Specifically, Plaintiff's complaint contains five clusters of allegations:
1. Misleading advertising under the Lanham Act
This assertion is premised upon three misrepresentations:
(a) Defendant Viacom lied about whether certain women in a dance club scene were paid actors; (b) one scene in a strip club was "completely fake;" and (c) Defendant Viacom overstated the social awkwardness of male contestants.
2. False Designations of Origin Under the Lanham Act
Plaintiff contends that he is in the business of providing "seduction" advice to members of the public. In connection with this venture, Plaintiff authored a book entitled, "29 Reasons Not to Be a Nice Guy." Plaintiff asserts that he has "first use trademark" to the use of the term 'pivot,' as used in his book, in commerce related to "seduction" advice. Plaintiff contends that Defendants' use of the term constitutes false designations of the origin under the Lanham Act.
3. Fair Housing Act Violations
Plaintiff alleges that Defendant Von Markovik posted disparaging messages about Plaintiff on the Internet and attempted to harass Plaintiff, "in the hope" that Plaintiff would move out of his residence and thereafter lose his internet access.
4. Antitrust Violations
Plaintiff contends that Defendant Von Markovik won a battle among the seduction gurus and is now "abus[ing] their majority relevant market share."
5. Tortious Interference
Plaintiff alleges that Defendants tortiously interfered with Plaintiff's housing contract.
A. Legal Standard - Pro Se Litigant
In deciding a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 216 (3d Cir. 2007) (quotation omitted). The Court need not, however, "credit either bald assertions or legal conclusions in a complaint when deciding a motion to dismiss." Id. (quotation omitted). The "'[f]actual allegations must be enough to raise the right to relief above the speculative level.'" Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007)). Viewing the complaint in this manner, the Court must dismiss the complaint if it fails to state a claim upon which relief can be granted. In cases involving pro se litigants, the Court must "liberally construe" Plaintiff's pleadings. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).*fn3
B. Analysis
Defendant Viacom International Inc. filed the instant motion to dismiss, or in the alternative, motion for a more definite statement (doc. no. 4). Defendant addresses each of Plaintiff's claims in turn. Plaintiff has filed a response in opposition to this motion (doc. no. 7).
1. False and Misleading Advertising Claim under the Lanham Act
Defendant contends that Plaintiff's false and misleading advertising claims fail under the Lanham Act for three reasons: (1) Plaintiff lacks standing to bring a false and misleading advertising claim under this Act; (2) the alleged false statements at issue do not constitute commercial advertising or promotion; and (3) Plaintiff's alleged injuries are wholly speculative.
To have standing*fn4 to assert a false and misleading advertising claim under the Lanham act, a plaintiff must show that he "has a reasonable interest to be protected against false advertising." Thorn v. Reliance Van Co., 736 F.2d 929, 933 (3d Cir. 1984). The Third Circuit identified the following factors to consider in the determination of whether Plaintiff has a "reasonable interest": (a) nature of plaintiff's alleged injury; (b) directness or indirectness of asserted injury; (c) the proximity or remoteness of the party to the alleged injurious conduct; (d) the speculativeness of the damages claim; and (e) the risk of duplicative damages or complexity in apportioning claims. Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 233 (3d Cir. 1998) (citing Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 538, 540, 542, 543, 544)).
In Conte, the Third Circuit affirmed the district court's dismissal of plaintiffs' complaint, concluding that plaintiffs lacked standing to sue under the Lanham Act. Id. at 224. The plaintiffs in Conte, a nationwide class of retail sellers of motor oil, alleged violations of the Lanham Act caused by the false advertising of defendant, a company manufacturing Slick 50, a Teflon-based engine lubricant.*fn5 Plaintiffs contended that defendant's false advertising statements increased Slick 50 sales and decreased sales of competing products sold by plaintiffs. Id.
In deciding that plaintiffs lacked standing under the Lanham Act, the Third Circuit applied the above articulated factors to determine if plaintiffs had a "reasonable interest to be protected against false advertising." First, the court analyzed the nature of plaintiffs' injuries and noted that plaintiffs alleged a commercial interest but not a competitive harm. Id. at 234. Specifically, the plaintiffs alleged a loss of sales at the retail level because of alleged false advertising, but did not allege an impact on the ability to compete; accordingly, the harm alleged was not the type of injury that the Lanham Act sought to prevent. Id. at 234-35. Second, the court found that the remoteness of the allegedly injurious conduct weighed against the plaintiffs' right to sue because the defendant's conduct did not directly relate to plaintiffs' alleged harm. Id. at 235.*fn6 Third, the court noted that the plaintiffs' injuries, "if not speculative, were certainly avoidable," because the plaintiffs could have adjusted their Slick 50 stock to fit the "artificially-increased popularity" of the product. Id. Finally, the court found that recognizing the right of all potentially injured parties in the distribution chain to assert standing under the Lanham Act would subject the defendant to multiple liability for the same conduct and would result in administratively complex damages proceedings. Id.*fn7
Similarly, here, Defendant argues that Plaintiff lacks standing to assert a cause of action in the instant matter. As previously detailed, Plaintiff alleges that Defendant committed three instances of false advertising: (a) Viacom lied about whether certain women in a dance club scene were paid actors; (b) a certain scene in a strip club was "completely fake;" and (c) Viacom overstated the social awkwardness of male contestants. Even assuming that these instances do in fact constitute false advertising, applying the factors articulated by the Third Circuit in Conte, Plaintiff has failed to establish standing to sue under the Lanham Act for several reasons.
First, similar to the insufficient commercial interest alleged by the Conte plaintiffs, here, Plaintiff alleges commercial interest in the "seduction education" industry, but fails to allege the required competitive harm caused by Defendant's actions. Second, like the remoteness of the alleged harmful conduct to the plaintiff's injuries in Conte, Plaintiff's injuries are remote as he has failed to state a direct connection between Defendants' false statements and his injuries. Finally, allowing Plaintiff to establish Lanham Act standing on these facts would raise the same administrative concerns expressed by the Third Circuit in Conte, as Defendants would face multiple liability for the same conduct. Accordingly, because Plaintiff lacks standing to assert this claim under the Lanham Act, his claim on this ground is dismissed.
2. False Designation of Origin Claim
Plaintiff argues that Defendant Viacom's unattributed use of the word "pivot" constitutes a claim for false designation of origin under the Lanham Act. According to Plaintiff, the term "pivot" describes a seduction technique, "a true 'gaming' tactic," that "any man can implement . . . with relatively equal effectiveness." Pl's Compl. at ¶ 47. Plaintiff contends that he "debuted and defined both the term 'pivot' and the underlying concepts behind the theory in his 1999 book '29 Reasons Not to Be a Nice Guy.'" Id. at ¶ 46. Defendant argues that Plaintiff has failed to allege the essential elements of a false designation of origin claim under the Lanham Act.
To state a claim for false designation of origin under the Lanham Act, a plaintiff must show: (1) defendant "uses a false designation of origin;" (2) "[t]hat such use of a false designation occurs in interstate commerce in connection with goods and services;" (3) "[t]hat such false designation is likely to cause confusion, mistake or deception as to origin, sponsorship, or approval of [plaintiff's] goods or services by another person;" and (4) "[t]hat [plaintiff] has been or is likely to be damaged." AT&T v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1428 (3d Cir. 1994). Plaintiff has failed to state any of the essential elements of this action.
First, the "false designation of origin" element is unsatisfied because Defendant is the producer or "origin of" TPUA, the good or service in question. Pursuant to Supreme Court precedent "the phrase 'origin of goods' is . . . incapable of connoting the person or entity that originated the ideas or communications that 'goods' embody or contain." Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31 (2003). In Dastar, the defendant allegedly copied content from plaintiffs' television series and repackaged the content as videotapes that it sold on its own. Id. The plaintiffs asserted that the sale of the videotapes, without proper credit to the television series, violated the false designation of origin prong. The Court held that because the "origin of goods" was the actual, tangible videotapes produced, and not the ideas or concepts within the videotapes, the plaintiffs' claim failed the "origin of goods" prong.
This principle was applied in Schiffer Publ'g, Ltd. v. Chronicle Books, LLC, 350 F. Supp. 2d 613, 618 (E.D. Pa. 2004). In Schiffer Publ'g, the court held that false designation of origin did not arise where the defendant published a textile book containing plaintiff's copyrighted photographs. Id. Determinative to the court's decision, the court found that the "origin of goods" at issue was the actual book that defendant publishers compiled, rather than the plaintiff's photographs contained within. Id.
Like the videotapes in Dastar and the textile book in Schiffer Pub'g, the "origin of the goods or services" at issue in the instant matter is Defendant's production of TPUA. Just as the plaintiff's television series in Dastar, and the plaintiff's photographs in Schiffer Pub'g, were component parts of the good or service at issue, Plaintiff's term "pivot" is a component part of TPUA, but not the "origin of good or service" itself. Accordingly, because Defendant's production of TPUA is the "origin of the good" at issue, rather than Plaintiff's term "pivot," Plaintiff failed to satisfy the false designation of origin element.
Second, the facts viewed in the light most favorable to Plaintiff do not satisfy the requirement that the party asserting copyright violation has "a valid and legally protectable mark." Louis Vuitton Malletier & Oakley Inc. v. Veit, 211 F. Supp. 2d 567, 580 (E.D. Pa. 2002). Notably, a claim for false designation of origin presupposes the plaintiff has used the designation of origin in issue to identify the plaintiff's own goods or services. A.J. Canfield Co. v. Honickman, 808 F.2d 291, 296 (3d Cir. 1986).
Here, Plaintiff alleges that he "has a 'first use trademark' to the use of the term 'pivot' in commerce related to seduction-advice, but then notes that the work has acquired a secondary meaning as applied to seduction. (Pl.'s Compl. at ¶ 56 and 48). Importantly, Plaintiff does not allege that the secondary meaning in the industry is a mark to identify himself as the source of any goods or services that he manufactures or provides. Plaintiff's allegations undermine Plaintiff's conclusory claim that he has used the term as a trademark or that the term has acquired a secondary meaning.
Finally, even if the Court were to conclude that Plaintiff's use of the term "pivot" constituted a designation of origin, Plaintiff's claim still fails because Plaintiff did not assert that the false designation is "likely to cause confusion, mistake, or deception" as to the origin of Plaintiff's goods.
In Parker v. Google, Inc., Plaintiff brought a claim under the same theory which was rejected by the Third Circuit. 242 Fed. Appx. 833, 838. There, Plaintiff also alleged that defendant Google republished "Ray FAQ," a website which contained defamatory comments about him. Id. Plaintiff asserted that Google users searching for Plaintiff's site would find "Ray FAQ" and believe that Plaintiff created the site. Id. However, because Plaintiff failed to allege a likelihood of confusion with respect to the origin of his seduction website, the Third Circuit held that dismissal of the claim was appropriate. Id. As in Parker, Plaintiff in the instant matter failed to allege how Defendant's use of the term "pivot" created any confusion to the origin of this term. Accordingly, Plaintiff's claim on this ground is dismissed.*fn8
Defendant avers that Plaintiff has failed to state a claim for a violation of the Fair Housing Act. Plaintiff contends that Defendant Von Markovik, posted an internet link and exhibit which implied Plaintiff was mentally ill, disclosed his home address, and encouraged third parties to contact authorities about him. Because of these alleged internet posts, Plaintiff contends that Defendant aimed to "force him to move, in the hope Plaintiff would lose his internet access." (Pl.'s Compl. at ¶ 134).
Under the Fair Housing Act, discrimination is the sale or rental of housing is prohibited on the basis of race, color, religion, sex, familial status, or national origin. 42 U.S.C §§ 3601-3631. To assert a violation under the Fair Housing Act, plaintiff must show: (1) he is the "victim of a discriminatory housing practice;" (2) "that make[s] unavailable or den[ies]' housing" on account of a protected classification. 42 U.S.C. § 3604(a). Here, Plaintiff has made no such claim. Rather Plaintiff describes Defendants' behavior as harassment, designed to make him lose access to the Internet.
Plaintiff alleges that the migration of the "seduction community" from a newsgroup on USENET to a website owned by Learn the Skills Corporation caused Defendant Von Markovik to win the "mini war" among the gurus for the favor of non-party Neil Strauss, which purportedly "shifted the balance of power in the community" to Defendant Von Markovik. Plaintiff also alleges that Defendants Von Markovik and VAC created an "affiliate program," through which Plaintiff asserts they "abused their majority relevant market share."*fn9
Section 2 of the Sherman Act makes it unlawful to monopolize, or conspire to monopolize interstate or international commerce. 15 U.S.C. § 2. Liability under Section 2 requires, "(1) the possession of monopoly power in the relevant market; and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." United States v. Grinnell Corp., 384 U.S. 563, 570-571 (1966); Schuylkill Energy Resources v. Pennsylvania Power & Light Co., 113 F.3d 405, 412-413 (3d Cir. 1997). To support an inference of monopoly power, a plaintiff must allege that a firm has a dominant share in a relevant market, and that significant "entry barriers" protect that market. Harrison Aire, Inc. v. Aerostar Int'l, Inc., 423 F.3d 374, 380 (3d Cir. 2005). Barriers may include such factors as "regulatory requirements, high capital costs, or technological obstacles that prevent new competition from entering a market in response to a monopolist's supracompetitive prices." Parker v. Learn the Skills Corp., 530 F. Supp. 2d 661, 677 (D. Del. 2008) (citing United States v. Microsoft, 253 F.3d 34, 51 (D.C. Cir. 2001)).
Anti-competitive conduct is defined as conduct to obtain or maintain monopoly power as a result of competition on some basis other than the merits. LePage's Inc. v. 3M, 324 F.3d 141, 169 (3d Cir. 2003). Importantly, conduct that merely harms competitors, while not harming the competitive process itself, is not anti-competitive. Parker, 530 F. Supp. 2d at 677 (citing Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224 (1993)).
Plaintiff brought a similar antitrust claim, premised upon market share abuse, which was rejected by the District of Delaware. Parker, 530 F. Supp. 2d at 661. In Parker, Plaintiff alleged that defendants created a market for seduction products and specifically prohibited anyone from dealing with him. Id. Specifically, Plaintiff alleged that defendants posted derogatory and hostile comments about him on USENET, instructed internet users to use software to avoid messages and information generated by plaintiff, and invited readers interested in seduction to visit a private message board hosted by defendant. Id. 669. Finding that Plaintiff failed to state an antitrust claim, the court held that although defendants' conduct may have harmed Plaintiff, it did not harm the competitive process as a whole. Id. at 677.
In the instant case, Plaintiff makes a virtually indistinguishable argument. Specifically, Plaintiff contends that Defendants attempted restrict the flow of information in the seduction industry, so as to divert internet traffic from Plaintiff's website.*fn10 Just as in Parker, here, Plaintiff alleges personal harm, but does not allege harm to the competitive process as a whole. Accordingly, for the reasons set forth in Parker, Plaintiff's claim on this ground is dismissed.
Plaintiff alleges that Defendants tortiously interfered with his housing contract. The Court is without jurisdiction over this claim for two reasons. First, Plaintiff's complaint is predicated upon federal question jurisdiction. Because Plaintiff's claims based on federal questions are dismissed, the Court will decline to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over Plaintiff's tortious interference claims. Second, to the extent that the Court could exercise diversity jurisdiction over this claim, Plaintiff has failed to allege jurisdiction on this basis, or plead the necessary amount in controversy and citizenship requirements. Accordingly, because the Court does not have jurisdiction over this claim, Plaintiff's tortious interference claim is dismissed.
An appropriate order follows.
AND NOW, this 11th day of March 2009, upon consideration of Defendant's Motion to Dismiss (doc. no. 4) and response thereto (doc. no. 7), it is hereby ORDERED that Defendant's Motion to Dismiss is GRANTED;
IT IS FURTHER ORDERED that as to Plaintiff's Counts I., II., III., IV., and V., Plaintiff's claims are dismissed on the merits. As to Plaintiff's Count VI, Plaintiff's claim is dismissed for lack of jurisdiction;
IT IS FURTHER ORDERED that the case shall be marked CLOSED.
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Ok, I could down a box of Fruity Pebbles in no time flat. I don't eat cereal anymore, but when I did, I loved Fruity Pebbles!
Do you like to travel? Are you a fan of The West Wing? Aaron Sorkin? Do you like the theater? Does it irk you when people send you an email using text-speak? Are you well educated, well traveled, and do you understand stocks and know what a Roth IRA is? (Extra points if you actually have one.) Do you like sushi with red wine? Are you a lover of REALLY good pizza and do you know where to get the best hamburger in Chicago? And lastly, do you believe that people are inherently good, and that the world is a good place? Answer yes to a few of those, and drop me a line.