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strayer HSA300 week 4 assignment 1 and week 8 assignment 2
Question;If you are using the Blackboard Mobile Learn IOS App, please click "View in Browser."Students, please view the "Submit a Clickable Rubric Assignment" in the Student Center.Instructors, training on how to grade is within the Instructor Center.Click the link above to submit your assignment.Assignment 1: The Primary Care ClinicDue Week 4 and worth 150 pointsA small primary care clinic has 69 employees, representing 9 different clinical professions and 12 other skills. It operates two (2) sites, one (1) of which is bigger and has the departments for medical specialists, diagnostic labs, and patient services. The clinic also contracts for a variety of services, such as repair and maintenance, referral specialists, and advanced diagnostic services.You are the manager. You report to the owners who are four (4) of the family practitioners and their wives. Two of the wives still work at the clinic as registered nurses.Write a five to seven (5-7) page paper in which you:Discuss the key political, economic, and social forces that may have influenced the development of the clinic.Create a comprehensive mission statement and explain what makes it a comprehensive mission statement.Identify three (3) performance measures you would use to measure the clinic?s effectiveness and provide the rationale for each performance measure.Describe how you would approach decisions regarding clinic expansion and annual plan approval.Describe the role of the clinic as a component of the healthcare delivery system in your community.Examine how public healthcare policy has influenced the formation of outpatient clinics in the healthcare system.Use at least three (3) quality resources in this assignment. Note: Wikipedia and similar Websites do not qualify as quality resources.Your assignment must follow these formatting requirements:Be typed, double spaced, using Times New Roman font (size 12), with one-inch margins on all sides, citations and references must follow APA or school-specific format. Check with your professor for any additional instructions.Include a cover page containing the title of the assignment, the student?s name, the professor?s name, the course title, and the date. The cover page and the reference page are not included in the required assignment page length.ssignment 2: Religious Health CareDue Week 8 and worth 200 pointsReligious Health Care operates in a community of 225,000, called Middleville. Summary statistics on Religious and its competitors, from the AHA Guide, are shown in Table 1. All of the organizations in the area are not-for-profit. Although Samaritan Hospital and Protestant Hospital have religious origins, they now view themselves as secular, not-for-profit organizations.Table 1: Middleville Health Care SystemsNameBedsAdmissionsCensusOP VisitsBirthsExpenses (000)PersonnelReligious57513,000350221,0002300$125,0002000Samaritan38017,000260175,0001200$130,0001875Protestant35010,00018040,000900$80,0001200The governing board of Religious hired a consulting company to evaluate its strategic performance. As part of the consultant?s evaluation, several leaders of Religious? units were asked their perspective of the organization?s performance.You are working for the consultant. Your job is to identify the issues from the response that should be considered further by the consultant team and possibly discussed with the governing board and the CEO. The firm has a rule, ?Never offer a criticism or negative finding without suggesting how the client organization can correct it,? so you must indicate what sort of correction would be recommended as part of your list. Because you know there were about two dozen other interviews, you decide you should rank your issues in importance, to make sure the most critical are discussed.Write a six to eight (6-8) page paper in which you:Describe the five (5) important elements of the governing board? s agenda for areas of improvement in core functions.Many organizations now use a balanced scorecard or multiple dimensions of performance measurement, such as productivity, profit, market trends, quality, patient satisfaction, and worker satisfaction. Describe three (3) key performance dimensions (other than those mentioned here) and include specific measures that Religious Health Care could use to improve overall institutional performance.Determine the performance measures Religious Health Care could use to evaluate nursing staff performance in its Emergency Room. Explain the rationale for each performance measure.Suggest the steps that should be taken next by Religious Health Care to get better at managing specific patient groups. Explain the rationale for each step.Decide what strategies Religious Health Care could implement to enhance its public image and increase market share. Explain the rationale for each strategy.Describe two (2) technology-based data-collection strategies that Religious Health Care could use to conduct an internal management audit.Use at least three (3) quality resources in this assignment. Note: Wikipedia and similar Websites do not qualify as quality resources.Your assignment must follow these formatting requirements:Be typed, double spaced, using Times New Roman font (size 12), with one-inch margins on all sides, references must follow APA or school-specific format. Check with your professor for any additional instructions.Include a cover page containing the title of the assignment, the student?s name, the professor?s name, the course title, and the date. The cover page and the reference page are not included in the required page length.The specific course learning outcomes associated with this assignment are:Explain how public policy has shaped the development of the U.S. healthcare system.Examine how healthcare management concepts and theories are applied to critical issues in healthcare organizations.Analyze the critical management issues, purpose, functions, and performance measures of different departments within healthcare organizations.Use technology and information resources to research issues in health services organization management.Write clearly and concisely about health services organization management using proper writing mechanics.Grading for this assignment will be based on answer quality, logic / organization of the paper, and language and writing skills, using the following rubric.
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text: Is there a working port of the jvm for the 3.0 firmware. I Installed iPhone\Java from Cydia and then tried to run the test app HelloWorld from the gui, which failed to start, when looking in ICY it told me it couldn't find the dependency 'jvm', so I'm not sure if Cydia found it or just didn't bomb out on the error. I'm guessing the current upgrade has broken the objective-c bridge that saruik built?Also the link on his website is broken Java/iPhone Thanks Ger. PS. Please no pointless "I hate Java" comments.I have library's and apps written which would would take far too long to port especially as I can't code in objective-c


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July 21, 2006
JEFFREY A. BARNHILL AND H.C.M.B.C., INC., PLAINTIFFSv.TRANS HEALTHCARE, INC., TRANS HEALTH MANAGEMENT, INC., THI HOLDINGS, LLC, GTCR FUND VI, L.P., GTCR PARTNERS VI, L.P., GTCR GOLDER RAUNER, LLC, W. BRADLEY BENNETT, AND EDGAR JANNOTTA, JR., DEFENDANTS
Before the Court are cross-motions for summary judgment by Defendants and partial summary judgment by Plaintiffs arising out of an employment dispute. (Doc. Nos. 35, 38.) Plaintiff Barnhill alleges that he and Defendants entered into a binding employment contract that Defendants breached, whereas Defendants deny that a valid contract was formed and argue alternatively that Plaintiffs failed to meet conditions precedent to Defendants' obligations under the contract. Defendants further argue that Plaintiffs have failed to produce evidence to support their equitable claims. The Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. The motions have been fully briefed and are ripe for disposition. For the reasons that follow, the Court will grant Defendants' motion in part and will deny Plaintiffs' motion in toto.
I. Background*fn1
From February 2000 to June 2004, Plaintiff Jeffrey A. Barnhill provided finance-related services to Defendant Trans Healthcare, Inc. ("THI"), a private health-care company in the business of acquiring nursing homes. Prior to working at THI's Camp Hill, Pennsylvania office, Barnhill and his family lived in Coral Springs, Florida, where Barnhill provided financial consulting services to other companies in the medical field. In early 2000, after the conclusion of Thomas R. Waye's brief tenure as THI's Chief Financial Officer, THI's then-President and Chief Executive Officer, Anthony Misitano, requested that Barnhill provide "Chief Financial Officer ("CFO") related services to the Company" on an interim basis until a permanent CFO could be hired, with the understanding that, should Barnhill's performance prove acceptable, he could be offered a permanent position. (Doc. No. 1, Plaintiffs' Ex. A.) Barnhill had previously been considered for the permanent CFO position, but THI claims that it refrained from hiring Plaintiff because Barnhill was at that time under investigation by the Internal Revenue Service regarding outstanding payroll taxes of a company for which Barnhill had previously served as CFO. (Doc. No. 36, ¶ 21; Doc. No. 43, ¶ 21.)
Barnhill, as an independent contractor hired through Plaintiff H.C.M.B.C., Inc. ("HCMBC"),*fn2 signed an agreement with THI on February 1, 2000, (the "February 2000 letter") agreeing that Barnhill would provide consulting services in exchange for THI, in part, paying HCMBC $156,000 annually. (Doc. No. 1, Plaintiffs' Ex. A.) Additionally, in the February 2000 letter, THI and HCMBC "agree[d] to formulate an incentive compensation arrangement . . . mutually agreeable . . . [which] shall be in the form of cash and/or equity" in THI. (Id., ¶ 3(a).)
On March 22, 2000, a few weeks after Barnhill and his son moved from Florida into a company-provided apartment in Pennsylvania, THI CEO Misitano and Barnhill signed a new letter agreement (the "March 2000 letter"). (Doc. No. 1, Plaintiffs' Ex. B.) This letter would, effective April 3, 2000, convert Barnhill's position from a consultant through HCMBC to a direct employee of THI. The March 2000 letter states Barnhill's position as "Senior Vice President of THI and Chief Financial Officer," lists an annual salary of $160,000, provides for vacation time, health insurance, opportunity to receive a bonus, and payment of relocation expenses for Barnhill and his family. Most importantly, the letter provides Barnhill's equity participation in THI at "3% of the Company," along with an "opportunity to co-invest with GTCR" (a venture capital firm that was financing 80% of THI) and "participation in company stock option plan with award grant to be determined once plan is implemented." Id.
Misitano attested that the March 2000 letter agreement was rescinded very soon after it was signed, allegedly because THI learned that the IRS investigation into Barnhill remained ongoing, despite Barnhill's statements to the contrary. (Doc. No. 38, Dep. of Misitano at 27-28.)*fn3 Barnhill continued to provide financial services to THI and continued to be paid through HCMBC. Nevertheless, he contends that he became a THI employee working under the conditions of the March 2000 letter commencing on the letter's April 3, 2000 effective date, and he supports this claim by pointing to documents that list him as the company's CFO.
On December 31, 2001, Misitano and Barnhill signed a third letter agreement (the "December 2001 letter"). (Doc. No. 1, Plaintiffs' Ex. D.) In contrast to the March 2000 letter, the December 2001 letter gave Barnhill the title "Senior Vice President Finance" and did not include the title of CFO. The letter further provided that Barnhill would receive more compensation than agreed to in the March 2000 letter, but also reduced Barnhill's vacation and bonus opportunities. The December 2001 letter contemplates "participation in company stock option plan with award grant to be determined once plan is implemented. One (1) percent of THI Common Stock on terms and conditions consistent with Senior Management Agreement." Id. After this point, Barnhill began to be taxed as an employee of THI.
At THI, an employment contract for a senior executive is typically accompanied by a Senior Management Agreement ("SMA"), a document that essentially exchanges a severance package for executives in exchange for them promising not to disclose company secrets or solicit company clients or employees for a specified period after the termination of their employment. The December 2001 letter appears to contemplate that an SMA would be created for Barnhill. THI's SMAs tended to include provisions as to how and when company stock could be purchased and when it would be vested in the executive. Barnhill attests that soon after November 19, 2001, Misitano told him to create a SMA for himself out of the SMA prepared for former CFO Waye. (Doc. No. 38, Dep. of Barnhill at 189.)*fn4 Barnhill did so on November 26, 2001, but when he presented it to Misitano, he did not review it, instead instructing Barnhill to wait until a time when the office was less busy. (Id. at 176-77; Doc. No. 1, ¶¶ 33, 36.) Defendants' outside counsel, Kirkland & Ellis, was preparing SMAs for THI management in January 2004 but had not created a final SMA for Barnhill by the time he was terminated.*fn5
In September 2003, THI hired Defendant W. Bradley Bennett as the firm's CFO. (Doc. No. 38, Dep. of Bennett at 7.) After Misitano resigned, Bennett became CEO in June 2004. (Id.) For the expressed reasons that Barnhill's "services were no longer required" and that "his role had morphed into a situation where there was nothing for him to do," Bennett informed Barnhill that his employment with THI was to be terminated. (Id. at 76.) Barnhill then presented Bennett with all of the letter agreements and SMAs described above,*fn6 claiming that these agreements entitled him to severance benefits and equity in the company.*fn7 (Doc. No. 36, ¶ 58.)
On June 11, 2004, Bennett offered Barnhill a severance package of $50,000 plus six months' salary, in exchange for Barnhill agreeing to release THI from any claims against the company. (Doc. No. 1, ¶ 58.)*fn8 Plaintiff rejected this offer. (Doc. No. 38, Cont'd Dep. of Barnhill at 13-14.) Instead, Barnhill expected to receive one year's salary and continued health insurance as severance pay, along with THI agreeing to honor Plaintiff's asserted right to purchase equity in the company, consistent with the terms of the SMAs that he had reviewed. (Doc. No. 1, Plaintiffs' Ex. B.) THI declined Plaintiff's counter-offer, and Barnhill was officially terminated on June 18, 2004. (Doc. No. 1, ¶ 56.)
Plaintiffs filed suit on August 20, 2004, alleging Defendants' breach of contract with Plaintiff HCMBC (Count I) and with Plaintiff Barnhill (Count II). Should formation of a contract or its breach not be established, Plaintiffs in the alternative bring counts of promissory and equitable estoppel (Counts III and IV), fraud/intentional and negligent misrepresentation (Counts VI and VIII), and civil conspiracy (Count IX).*fn9 The parties attempted to mediate the claims on August 19, 2005, but mediation was unsuccessful. (Doc. Nos. 31, 32.) After discovery was completed, Defendants moved for summary judgment on all remaining counts, and Plaintiffs moved for partial summary judgment on Counts I and II.
II. Standard of Review
Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51 (1986). When deciding a motion for summary judgment, the Court views the facts in the light most favorable to the nonmoving party, who is "entitled to every reasonable inference that can be drawn from the record." Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). However, the non-moving party may not simply sit back and rest on the allegations in his complaint; instead, he must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Id. at 322.
III. Discussion
A. Contractual Claims
"A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." Forest Glen Condo. Ass'n v. Forest Green Commons L.P., 2006 Pa. Super. LEXIS 656 at *12 (Pa. Super. May 2, 2006) (citing Restatement (Second) Contracts § 1 (1981)). It "is formed when the parties to it (1) reach a mutual understanding, (2) exchange consideration, and (3) delineate the terms of their bargain with sufficient clarity." Weaverton Transp. Leasing, Inc. v. Moran, 834 A.2d 1169, 1172 (Pa. Super. 2003).
Under Pennsylvania law,*fn10 a breach of contract claim requires that plaintiff establish (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages. Sullivan v. Chartwell Investment Partners, LP, 873 A.2d 710, 716 (Pa. Super. 2005) (citing J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002)). "While every element must be pled specifically, 'it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties.'" Id. The terms of a contract are to be determined only by the contract's express language when the words are clear and unambiguous, but ambiguity in interpretation calls for the weighing of extrinsic evidence in order to resolve the dispute. Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa. Super. 1993). A contract "is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction." Id. (citing Z & L Lumber Co. of Atlasburg v. Nordquist, 502 A.2d 697, 700 (Pa. Super. 1985)).
A subsequent oral modification of a written agreement does not violate the parol evidence rule; such later oral modifications may be evidenced "by writings or by words or by conduct or by all three." Kersey Mfg. Co. v. Rozic, 215 A.2d 323, 324 (Pa. Super. 1965). Evidence of oral modification must be specific and direct. Gloeckner v. School Dist., 175 A.2d 73, 75 (Pa. 1961). If a party's "credibility is in issue, oral proof requires the jury's consideration and prevents the entering of a summary judgment." Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 474 (Pa. 1979).
In the instant case, Barnhill worked for Defendants essentially in two stages: first as an independent contractor through HCMBC, and later as an employee of THI. Plaintiffs divide the breach of contract claims accordingly, and Defendants raise different defenses to the two claims of breach. Accordingly, the Court will separately analyze Plaintiffs' contract claims.
1. Plaintiff HCMBC
In Count I, Plaintiffs allege that Defendants breached Plaintiff HCMBC's contract with THI to provide consulting services through Barnhill. The only documentation that names HCMBC as a party to a contract is the February 2000 letter. Plaintiffs contend that the March 2000 letter's discussion of 3% equity that would be available to Plaintiff Barnhill was an elucidation of the promise for a "mutually agreeable" incentive compensation arrangement "in the form of cash and/or equity" that is listed in ¶ 3(a) of the February 2000 letter. It is not evident that the March 2000 letter or any other letter that portends to have Defendants engage directly with Plaintiff Barnhill could possibly inform an agreement between Defendants and Plaintiff HCMBC.*fn11 Moreover, it is clear from the plain reading of the February 2000 letter that an incentive package could be made out of "cash and/or equity," meaning the package could consist of one or the other, but not necessarily both. While Plaintiffs assert the independence of cash incentives and equity in the February 2000 letter, the letter's terms are unambiguous and do not support this interpretation. (Doc. No. 43, ¶ 26.)
Further, Defendants note that they did, in fact, pay HCMBC "over $100,000 in cash bonuses tied to performance and successful acquisitions." (Doc. No. 37 at 8.) This figure appears to be taken from a document marked "Incentive Professional Fees" and directed to "HCMBC/Barnhill," stating that Defendants had paid Plaintiffs $141,000 in cash by May 26, 2003. (Doc. No. 39, Defendants' Ex. Q.) Plaintiffs concede that HCMBC was paid bonuses, usually relating to successful acquisitions. (Doc. No. 38, Dep. of Barnhill at 150, 206.) The document referencing "Incentive Professional Fees" even describes the basis by which cash bonuses would be meted out: "Acquisitions: 0.150% of purchase price; Lease Arrangements: 0.125% of Imputed Debt at 8 times." (Doc. No. 39, Defendants' Ex. Q.) Plaintiffs' acceptance of such an amount to be paid to HCMBC appears to satisfy "an incentive compensation agreement for Consultant mutually agreeable to Company CEO and Consultant . . . in the form of cash and/or equity" since it is undisputed that more than $100,000 was offered and accepted. The record does not reflect evidence to support Plaintiffs' claim that the tendered bonuses were unacceptable, nor does the record contain evidence that Plaintiffs attempted to negotiate with THI regarding the incentives.
The fact that HCMBC now claims that it is due five million dollars in equity to satisfy ¶ 3(a) of the February 2000 letter does not change the documented fact that Plaintiffs accepted cash incentives, and the evidence of record therefore demonstrates that THI performed its obligation in accordance with the terms of the agreement providing that incentives would be paid with cash or equity. Because Count I is based solely on Plaintiffs' interpretation of an unambiguous term in the February 2000 letter, later oral testimony that HCMBC was to be included in the terms of the March 2000 letter is irrelevant, as the Court need not consider oral testimony to interpret the terms of an otherwise unambiguous document. Krizovensky, 624 A.2d at 642. Accordingly, the Court will grant Defendants' motion for summary judgment with regard to Count I and will deny Plaintiffs' motion on that Count.
2. Plaintiff Barnhill
In Count II, Plaintiff Barnhill alleges that the March 2000 letter constituted a valid and enforceable contract and that THI breached the contract. Specifically, Barnhill claims that the March 2000 letter obligated Defendants to provide him equity participation in 3% of THI pursuant to the terms of the March 2000 letter. Additionally, Plaintiff contends that Defendants were contractually bound to offer him 1% of THI equity in accordance with the terms of the December 2001 letter, and a severance package according to the terms of an unexecuted SMA. As discussed below, the alleged contracts at issue are facially unclear and the parties vigorously dispute many of the relevant facts. The Court will address each of the alleged contracts in turn.
a. The March 2000 Letter
THI's former CEO, Misitano, who is not named as a defendant, attested that the March 2000 letter was almost immediately rescinded, with Plaintiff Barnhill's understanding and agreement, after Defendants learned that the IRS investigation into Plaintiff Barnhill remained ongoing. Despite the appearance of a fully-executed agreement, Defendants maintain that the March 2000 letter did not form a contract because Plaintiff assented to the revocation of the letter agreement immediately after it was executed. Such revocation could be deemed a later oral modification of a prior written agreement, which can be evidenced by writings, words, or conduct. Kersey Mfg. Co., 215 A.2d at 324.
Defendants offer evidence in support of this argument, citing a letter from Misitano to Barnhill apparently granting Barnhill a raise, where Barnhill's "current fee" as of January 23, 2001 was $156,000, less than the $160,000 that it would have been had the March 2000 letter been in effect. (Doc. No. 39, Defendants' Ex. H.) Without providing written tax records, Defendants contend that Barnhill admitted that he continued to be paid as an independent contractor through HCMBC until December 2001, receiving a 1099 tax form, rather than a standard W-2 form that employees receive. (Doc. No. 38, Dep. of Barnhill at 131.) Defendants rely on the foregoing evidence to support their position that the March 2000 letter did not form a binding contract between the parties, as all of the specific terms of the agreement continued to be those out of the February 2000 letter.
Plaintiff Barnhill counters with evidence to support his claim that the March 2000 letter was being performed by both parties under contractual terms, with the modification that his salary continued to be paid through HCMBC for tax purposes. He cites the fact that in official company documents Defendant THI held Barnhill out to be the company's CFO, the title provided in the March 2000 letter. (Doc. No. 40, Plaintiffs' Ex. 5.) Although this document labeling Barnhill as CFO appears to have been prepared in 2003, after the December 2001 letter ostensibly would have gone into effect to change Barnhill's title, a reasonable juror could believe that this continued use of the CFO title stems from a March 2000 letter that was merely modified, rather than revoked. Barnhill also attests that he began to accrue and use vacation time and received health insurance after the March 2000 letter, as contemplated by that agreement. (Doc. No. 38, Dep. of Barnhill at 153-156.)
This dispute boils down to differing claims of oral testimony offered by Plaintiffs and Defendants, each backed up with supporting evidence. A genuine issue of material fact therefore remains as to the extent of oral modification following the March 2000 letter, making summary judgment improper on this claim.
b. The December 2001 Letter
Plaintiff Barnhill also claims that, under the terms of the December 2001 letter, he is due a 1% equity stake in THI and a severance package typical of those given to THI senior management. Defendants do not deny that the December 2001 letter imposed obligations on them; rather, Defendants claim that they fulfilled all of their obligations under the terms of the letter agreement, and Barnhill cannot enforce these two terms because he failed to meet the conditions precedent to his receiving these benefits.
An opportunity to invest in company stock at a certain price is considered an option: "from the view point of the optioner, an option is a binding contract subject to the performance of a condition precedent by the optionee. From the viewpoint of the optionee, an option is an irrevocable offer which the optionee can convert into a binding bilateral contract by acceptance." Sheils v. Pfizer, Inc., 156 Fed. Appx. 446, 449-50 (3d Cir. 2005) (quoting Palo Alto Town & Country Village v. BBTC Company, 521 P.2d 1097, 1102 (Cal. 1974)). If the manner of exercising the option is explicit, it must be strictly followed. Id.
In the instant case, the December 2001 letter does not expressly determine the method by which Barnhill was required to exercise his 1% equity stake.*fn12 Plaintiff Barnhill attests that in 2002 he attempted to sign over a bonus check so that Misitano could use the proceeds to pay for a portion of Barnhill's option, but Misitano does not remember Plaintiff making such an offer. (Doc. No. 38, Dep. of Misitano at 44.) Plaintiffs also present a promissory note for a portion of Barnhill's option, but Defendants dispute that this document was ever tendered to the company. (Doc. No. 1, Plaintiffs' Ex. C at 17.) Genuine issues of material fact therefore exist as to whether Plaintiff tendered the funds necessary to exercise his option or otherwise satisfied his contractual obligations prior to exercising his option. Therefore, summary judgment is not appropriate on this issue.
c. Senior Management Agreement
Further, Plaintiff claims that he was contractually entitled to a severance package as provided through a SMA, pursuant to the terms of the December 2001 letter which mention it specifically. Additionally, Plaintiff attests that in early November 2001 Misitano told him that he would be receiving a SMA in the style of former CFO Waye. (Doc. No. 38, Dep. of Barnhill at 189.) With this information, Plaintiff took steps to create a draft SMA for himself in November 2001. (Doc. No. 1, Plaintiffs' Ex. C.) However, this document was never signed by anyone at THI. Nevertheless, Misitano continued to indicate that Barnhill was due a SMA and that by 2002 the finalization was "strictly a form thing, not a substance thing." (Id. at 128, 159.)
In contrast to Plaintiffs' claim of a right to a SMA, Defendants argue that Barnhill had no right to a SMA and that even if he did have such a right, Barnhill failed to meet obligations that were conditions precedent to receiving one. In support, Defendants rely on the fact that the SMA language in the December 2001 letter is limited to discussion of stock options, and does not specifically state that Barnhill was to receive a SMA. (Doc. No. 47 at 4.) Defendants also rely on the testimony of Misitano, which laid out Barnhill's obligations in the SMA-creation process. In 2003, Barnhill was called to "spearhead the initiative" in aiding Kirkland & Ellis in preparing SMAs. (Doc. No. 38, Dep. of Misitano at 43.) This element of Barnhill's employment obligations required him to gather together "a host of issues," including tax strategy and valuation, that needed to be considered before Kirkland & Ellis could finalize the SMAs they were preparing, but this never happened. (Doc. No. 38, Dep. of Misitano at 43-45.) As a result, by January 2004 counsel was able to create only an incomplete draft, which could not be finalized by the time that Barnhill's employment was terminated. (Doc. No. 40, Plaintiffs' Ex. 6.)
All three SMAs -- the Waye SMA (Doc. No. 40, Plaintiffs' Ex. 2), the November 2001 SMA that Plaintiff drafted (Doc. No. 1, Plaintiffs' Ex. C), and the January 2004 SMA that Kirkland & Ellis prepared (Doc. No. 40, Plaintiffs' Ex. 6) -- provide that executives would be entitled to a severance package including one year's salary and continued participation "in the Company's health insurance plans."*fn13 However, none of these documents was issued to Barnhill. The first was prepared for Waye, THI's previous CFO, and although Barnhill might have been promised a SMA similar to Waye's, it is not certain that the severance terms would have been the same.*fn14 The November 2001 SMA was not signed or even reviewed by anyone other than Barnhill, and the January 2004 SMA was not completed. (Doc. No. 39, Dep. of Barnhill at 177.)
While these written SMAs appear to leave some questions, parties "may bind themselves contractually prior to the execution of a written document through mutual manifestations of assent, even where a later formal document is contemplated." Luber v. Luber, 614 A.2d 771, 773 (Pa. Super. 1992) (citing Krause v. Great Lakes Holdings, Inc., 563 A.2d 1182 (1989)). A reasonable jury could infer specific terms and mutual manifestations of assent from this set of documents and the disparate claims as to the status of Barnhill's SMA prior to termination, but the evidence on this issue is in conflict and the Court cannot find that summary judgment is warranted for either party. Accordingly, the Court will deny summary judgment to both parties with respect to Count II.
B. Additional Claims
In addition to the claims for breach of contract, Plaintiffs seek relief under various quasi-contractual theories of relief, including estoppel, fraudulent misrepresentation, and conspiracy. Defendants have moved for summary judgment on these claims.
1. Promissory Estoppel and Misrepresentation
Pennsylvania has adopted the doctrine of promissory estoppel as set forth in the Restatement (Second) of Contracts § 90, which provides: "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. See Pittsburgh Baseball, Inc. v. Stadium Auth., 630 A.2d 505, 509 n.5 (Pa. Commw. Ct. 1993) (noting Pennsylvania's adoption of the Second Restatement on this issue). Relevant to the necessity of enforcement is the formality of the promise, and the evidentiary, cautionary, and deterrent functions of the circumstances of enforcement. Thatcher's Drug Store v. Consolidated Supermarkets, 636 A.2d 156, 160 (Pa. 1994). To establish equitable estoppel, the plaintiff must prove that a party (1) negligently misrepresented material facts (2) knowing or having reason to know that the other party will justifiably rely upon the misrepresentation to its detriment, and (3) the other party so relies. Walker v. Workmen's Compensation Appeal Board, 656 A.2d 164, 170 (Pa. Commw. 1995) (citing Williams v. Workmen's Compensation Appeal Board, 646 A.2d 633, 636 (Pa. Commw. 1994)). "Equitable estoppel applies to prevent a party from assuming a position or asserting a right to another's disadvantage inconsistent with a position previously taken." Blofsen v. Cutaiar, 333 A.2d 841, 843 (Pa. 1975) (citing 1 P.L.E. Estoppel § 21). Estoppel works to prevent the person inducing a belief from later "deny[ing] that the state of facts does in truth exist . . . or deny[ing] or repudiat[ing] his acts, conduct, or statements." Id. (quoting Northwestern National Bank v. Commonwealth, 27 A.2d 20, 23 (Pa. 1942)).
To establish intentional/fraudulent misrepresentation, a plaintiff must show: (1) a representation; (2) material to the transaction; (3) made with knowledge of its falsity or reckless disregard for whether it was true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) a resulting injury proximately caused by the reliance. Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994). To prove negligent misrepresentation, a plaintiff must show: (1) a misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend the representation to induce another to act on it; and (4) resulting injury to the party acting in justifiable reliance on the misrepresentation. Id. at 890.*fn15
The Court has reviewed the evidence of record and has determined that there remain material facts in dispute relevant to Plaintiffs' claims of estoppel and misrepresentation. Accordingly, summary judgment on these claims is unwarranted.
2. Civil Conspiracy
Plaintiffs additionally claim that Defendants should be liable for civil conspiracy, in that they allegedly "combined or agreed to intentionally or negligently misrepresent" to Plaintiffs that they would be provided equity participation and severance benefits. (Doc. No. 1, ¶ 156.) Proof of a civil conspiracy requires showing that two or more persons combined to do an unlawful act.
Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979). "[T]hough a conspiracy must ordinarily be proved by circumstantial evidence, yet it is not to be forgotten that the charge of conspiracy is easily made . . . . Mere suspicion, possibility of guilty connection, is not to be received as proof in such a case . . . ." Benford v. Sanner, 40 Pa. 9, 15 (1861).
In the instant case, Plaintiffs have failed to produce any evidence of a combination among the Defendants, or among the Defendants and Misitano, that would establish a claim of civil conspiracy. Accordingly, Defendant's motion for summary judgment will be granted with respect to Plaintiffs' civil conspiracy claim set forth in Count IX.
And now, this 21st day of July, 2006, for the reasons set forth in the within memorandum, IT IS HEREBY ORDERED THAT:
1. Plaintiffs' Motion for Summary Judgment (Doc. No. 38) is DENIED.
2. Defendants' Motion for Summary Judgment (Doc. No. 35) is GRANTED with respect to Counts I and IX of the Complaint.
3. In all other respects, Defendants' motion for Summary Judgment is DENIED.
4. The Clerk of Court shall refrain from entering judgment on Counts I and IX until the conclusion of this action.
Yvette Kane United States District Judge
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October 21, 2010
TYRONE DANIEL JOHNSON, PLAINTIFF,v.DIRECTOR OF CDCR, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed August 9, 2010, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has filed an amended complaint.
As plaintiff was previously informed, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[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, No. 07-1015, 2009 WL 1361536 at *12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff names as defendants: a court stenographer named Peggy Bakarich; Hilda Scheib, his appellate attorney; and the Director of CDCR.*fn1 Amended Complaint (AC), pp. 1-3. He alleges that defendant Bakarich failed to inform the trial court and his trial attorney [in Sacramento County] that court records were incomplete and also misled the Third Appellate Court by certifying that the trial records were complete when the oral pronouncement of the twenty-five-year-to-life sentence was not a part of the record. Id. at 3. Plaintiff includes a copy of an unsigned declaration with Peggy Bakarich's name stating that the conclusion of a hearing on the judgment and sentence on October 14, 1999, was reported but was unable to be transcribed past page 436, due a faulty diskette in the stenomachine. Id. at 18. Plaintiff alleges that he has had to endure 12 years of an illegal sentence based on the lack of transcripts. Id. at 4. Plaintiff appears to believe that the lack of a portion of the sentencing transcript signifies that no judgment/sentencing took place. Id. Alternatively, he may be claiming that no sentencing took place and because there is no transcript record, he has been subjected to an illegal sentence for years now. Id. Plaintiff accuses defendant Bakarich of having failed to inform the trial court at the time of this mistake/omission and of having failed to provide a declaration until all the briefing was submitted in his direct appeal, averring that the belated notice constituted a criminal act. Id. at 5.
Plaintiff alleges that he walked out an open door when he was sent to Yolo County on a child custody matter on October 22, 1999, some eight days after an allegedly fraudulent abstract of judgment from Sacramento County apparently shows he had been sentenced there (in Sacramento County Superior Court) to a prison term of 25 years to life. AC, p. 4. Plaintiff was picked up by Sacramento police on October 24, 1999, who released him again to the custody of the Yolo County sheriff, whereupon he was thrown into solitary confinement and forgotten for two years. Id.
Plaintiff claims that his appellate counsel, defendant Scheib, appointed on July 17, 2000, failed to contact him in Yolo County Jail before filing an opening brief. AC, p. 5. He alleges that on August 13, 2001, she filed a supplemental brief, once she was informed by petitioner that Sacramento County had forgotten to pronounce a sentence. Id. He accuses her of having filed the opening brief without having reviewed the trial records that would have revealed this omission, and he contends defendant Scheib told him defendant Bakarich was filing a declaration of absent records with the Third District Appellate Court, which did not occur. Id. at 5-6.
Plaintiff alleges, in addition, that CDCR (and presumably the defendant director) has known since 2001 that plaintiff is being illegally confined. AC, p. 7. He notes that the CDCR legal processing unit wrote to the Yolo County Superior Court [concerning the six-year sentence he subsequently received from that court] from which CDCR received no response.
AC, p. 7. In a copy of a letter dated August 27, 2001, which plaintiff includes as an exhibit, Yolo County Superior Court Judge William S. Lebov is informed by a CDCR correctional case records analyst that the abstract of judgment and minute order fails to reflect the relationship of the Yolo County Court sentence and that of the Sacramento County Court, asking for a certified copy of any minute order or modified abstract of judgment. Id. at 23. Within the letter, the case records analyst makes a reference "that an illegal sentence exists...." Id. A copy of another letter from the same analyst, dated February 26, 2002, directed to the Yolo County District Attorney identifies "an error in the sentence imposed or a discrepancy in the legal documents," and states that letters were sent on August 27, 2001 and on November 20, 2001 to the Court about the problem to which no response had been received. Id. at 24.
In a copy of another letter, dated much later, March 24, 2009 (stamped received March 26, 2009), a different case records analyst signed a letter directed to the Sacramento County Superior Court criminal clerk, indicating that, inter alia, the October 14, 1999, "transcript of proceedings at time of sentencing" was not included in the CDCR files for plaintiff. AC, p.
25. Plaintiff also includes a copy of an abstract of the Yolo County judgment indicating plaintiff was convicted on March 2, 2001, with the six-year sentence for his escape from jail pronounced on March 30, 2001. Id. at 31. Plaintiff also includes at least a partial copy of a sheet showing his criminal history, wherein it is noted the life term he is serving began on April 6, 2001. Id. at 32. Plaintiff raises the question of how he can have begun serving a sentence supposedly imposed on October 14, 1999, almost eighteen months later, such that he contends that CDCR's intake of him was illegal and fraudulent and without the necessary clerk of court's certification. Id., at 33. Plaintiff asks that the court order an investigation into the documents that support his confinement; issue an order for the Sacramento County Superior Court to issue the transcript of the oral pronouncement of his sentence; make an order for CDCR to provide plaintiff with all his legal records, including a receipt from the "sheriff department" for delivery of plaintiff to prison, in compliance with state and prison regulation/statute and for CDCR to be enjoined from continuing "there [sic] cruel confinement"; plaintiff also seeks punitive damages for his "illegal confinement." Id. at 3, 9. Plaintiff's request that the court issue an injunction for his confinement to be put to an end belies his assertion that he is not asking the court to "issue any form of release from confinement." Id. at 8.
The court has painstakingly laid out the claims of this putative action and finds the defects of plaintiff's claims are such that this action should be dismissed with prejudice for the following reasons. Plaintiff's apparent ambivalence on the question of whether or not he seeks release from his current confinement in this case appears to stem from the court's admonition in the August 9, 2010, screening order that he may not proceed in a civil rights action if the relief he seeks is his release from prison, but must pursue release in a petition under 28 U.S.C. § 2254. See docket # 10, p. 4.
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.
Muhammad v. Close, 540 U.S.749, 750, 124 S.Ct. 1303, 1304 (2004) (per curiam).
Plaintiff, however, may not be proceeding on a habeas petition because he realizes such a petition would be successive and, as such, must be authorized by the Ninth Circuit before he may, as petitioner, proceed in this court. See 28 U.S.C. 2244(b)(3); Rule 9, Rules Governing Section 2254 Cases; Ninth Circuit Rule 22-3. In the order at docket # 10 (p. 5, n.2), this court, inter alia, took judicial notice of a previous petition upon which plaintiff, as petitioner, had proceeded before the undersigned, challenging his 2001 Yolo County conviction for escape in Case No. CIV-S-03-1106 LKK GGH P.*fn2 The court further noted (id.) that the petition had been denied by order filed on August 24, 2005, and that within [the January 18, 2005, findings and recommendations adopted in the district judge's order] his sentences for both convictions, in Sacramento County and Yolo County, had been set forth plainly. The court now additionally takes judicial notice of petitioner's challenge to his 1999 Sacramento County conviction and the 25-year-to-life sentence in a separate habeas, Case No. CIV-S-02-1671 GEB JFM P.*fn3 That petition was denied in an order filed on March 3, 2008. As to CIV-S-02-1671, a certificate of appealability was denied in both the district court and by the Ninth Circuit. With regard to CIVS-03-1106, the district court's denial of his petition was affirmed by the Ninth Circuit. On the face of it, therefore, plaintiff appears to be seeking to circumvent herein the prior rulings of this court denying his challenges to the convictions/sentences of Yolo and Sacramento Counties, the legitimacy of which plaintiff seeks to put at issue again in the instant case.
Under the doctrine of res judicata, a final judgment on the merits precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995). The Supreme Court has noted that "claim preclusion" and "issue preclusion" are referred to collectively as "res judicata." Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2171 (2008).
The doctrine of res judicata is applicable to § 1983 actions. Clark v. Yosemite Community College Dist., 785 F.2d 781, 788 n.9 (9th Cir. 1986) (noting that there is no exception to the rules of issue and claim preclusion for federal civil rights actions brought under 42 U.S.C. § 1983), citing Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 84, 104 S.Ct. 892, 898 (1984); Allen v. McCurry, 449 U.S. 90, 97-98, 101 S.Ct. 411, 416-417 (1980); Piatt v. MacDougall, 773 F.2d 1032, 1034 (9th Cir.1985) (en banc). Courts have held that habeas proceedings can have preclusive effect in subsequent civil rights actions. See Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir. 1993) (per curiam) (holding that a federal habeas decision may have preclusive effect in a subsequent § 1983 action); Silverton v. Dep't. of Treasury, 644 F.2d 1341, 1347 (9th Cir. 1981) (ruling that state habeas proceedings can have issue or claim preclusive effect in subsequent § 1983 actions).
Under the doctrine of claim preclusion, a final judgment forecloses "successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit." New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Issue preclusion, in contrast, bars "successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment," even if the issue recurs in the context of a different claim. Id., at 748-749, 121 S.Ct. 1808.
Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. at 2171.
A plaintiff cannot avoid the bar of claim preclusion merely by alleging conduct not alleged in the prior action, by pleading a new legal theory, or by seeking a different remedy for violation of the same primary right. McClain v. Apodaca, 793 F.2d 1031, 1033-34 (9th Cir. 1986). Cf. Hiser v. Franklin, 94 F.3d 1287, 1291(1996) (the prisoner's claims were not precluded because they did not accrue until two years after the settlement agreement that concluded a prior class action). Claim preclusion applies where a § 1983 action implicates the same "primary rights" as those raised in a prior proceeding. Clark, 785 F.2d at 786. The focus is on the legal harm for which the plaintiff seeks redress in his second action. McClain, 793 F.2d at 1034.
By "preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate," these two doctrines protect against "the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).
Taylor, 553 U.S. 880, 128 S.Ct. at 2171.
The Ninth Circuit has identified four factors that should be considered by a court in determining whether successive lawsuits involve the same cause of action:
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action;
(2) whether substantially the same evidence is presented in the two actions;
(3) whether the two suits involve infringement of the same right; and
(4) whether the two suits arise out of the same transactional nucleus of facts.
See C.D. Anderson & Co., 832 F.2d 1097, 1100 (9th Cir. 1987); Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982); Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980) (per curiam). The fourth of these factors has been cited by some courts as the most important. See Headwaters, Inc. v. U.S. Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005), citing Costantini, 681 F.2d at 1201-02; see also, C.D. Anderson & Co., 832 F.2d at 1100. However, "[n]o single criterion can decide every res judicata question; identity of causes of action 'cannot be determined precisely by mechanistic application of a simple test.'" Costantini, 681 F.2d at 1202 n.7 (quoting Abramson v. Univ. of Haw., 594 F.2d 202, 206 (9th Cir. 1979)). "'The crucial element underlying all of the standards is the factual predicate of the several claims asserted. For it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action.'" Harris, 621 F.2d at 343 (quoting Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1234 (2d Cir. 1977)). This court finds that this action, wherein plaintiff is plainly seeking to undermine prior decisions of this court by seeking to proceed in a civil rights action, is barred by the doctrine of res judicata.
Moreover, to the extent that he may be seeking one, plaintiff is informed that, federal courts lack jurisdiction to issue a writ of mandamus to a state court. Demos v. United States Dist. Court for the E. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir. 1991), citing 28 U.S.C. § 1651. Furthermore, "[t]here is no Supreme Court or Ninth Circuit authority on the due process implications of a state court's failure to record portions of a criminal trial." Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989); see also, Peace v. Hall, 2002 WL 31689360*4 (N.D. Cal. 2002) (noting, citing Madera, supra, that in the context of a habeas petition, prejudice from a lack of recordation would have to be established to show entitlement to relief). Plaintiff, as petitioner, was unable to establish the requisite prejudice in prior litigation. This case should be dismissed with prejudice for failure to state a claim upon which relief can be granted.
"Under Ninth Circuit case law, district courts are only required to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint lacks merit entirely." Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). See also, Smith v. Pacific Properties and Development Corp., 358 F.3d 1097, 1106 (9th Cir. 2004), citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) ("a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not be cured by the allegation of other facts."). "[A] district court retains its discretion over the terms of a dismissal for failure to state a claim, including whether to make the dismissal with or without leave to amend." Lopez v. Smith, 203 F.3d at 1124. "The district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint." Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1072 (9th Cir. 2008), quoting In re Read-Rite Corp., 335 F.3d 843, 845 (9th Cir. 2003).
In this case, the court can discern no manner in which plaintiff could cure the defects of his allegations. This appears to be one of those relatively rare cases when to grant plaintiff further leave to amend would be patently futile. Thus, for the reasons set forth above, this court finds that plaintiff's complaint is wholly frivolous, with defects for which no amount of amendment could provide a cure, and for which the undersigned must recommend dismissal with prejudice.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice for plaintiff's failure to state a claim upon which relief can be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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text:
ERIC Number: ED181531
Record Type: RIE
Publication Date: 1979
Pages: 128
Abstractor: N/A
Reference Count: 0
Schools & the Courts. Volume II: Methodology, Student Rights, and Fiscal Equality.
Feeley, Malcolm M.; And Others
Eight papers examining different aspects of the effects of court decisions on education are contained in this book, the second of two volumes. The papers were solicited from scholars in the fields of law, political science, sociology, and education in conjunction with a 1979 conference held in Madison, Wisconsin. The conference was called to analyze the impact of desegregation, finance, and student rights and discipline. Chapter 1 examines ways in which sociological scholars have conceived of legal impact. Chapter 2 explores the application of cultural jurisprudence as a mode of inquiry into high court decisions and includes a discussion of how to do a values study. In Chapter 3, Supreme Court cases dealing with student rights and discipline in the schools are examined in detail. The final chapter presents a model of implementation for educational reform litigation. (Author/LD)
Descriptors: Court Litigation, Court Role, Discipline, Elementary Secondary Education, Finance Reform, Models, School Districts, Social Science Research, Student Rights, Supreme Court Litigation, Theories, Values
ERIC Clearinghouse on Educational Management, University of Oregon, Eugene, OR 97403 ($5.95; $10.95 for both Volume I and Volume II)
Publication Type: Legal/Legislative/Regulatory Materials; Reports - Descriptive
Education Level: N/A
Audience: N/A
Language: English
Sponsor: National Inst. of Education (DHEW), Washington, DC.
Authoring Institution: ERIC Clearinghouse on Educational Management, Eugene, OR.
Identifiers: Ingraham v Wright; Robinson v Cahill
Note: For individual chapters of this document, see EA 012 006-009; For related documents, see EA 012 000-009


text:
Anyone else into this show by The History Channel? I've seen every episode at least once and it's interesting as hell. If anything, you'll at least learn a lot about ancient history.You can find all of the episodes on Youtube.This talks about Cambodia at the 37:00 mark
I like the show too! I love the Greek dude with the crazy hairdo. He's my fave dude!
I saw at least twice.
I was surprised when they mention preah Pisnokar. Preah Pisnokar, is son of Tep Sodachan. Every Khmer know about tep Sodachan...
What I don't get is Tep Sodachan is an angel (Tep), in the bible---it mention angels are sexless.
Awesome series. I just wish a ufo would just land in my back yard already.
its prias pausanaugga not pishnokar. someone really need to tell our educated people in cambodia to stop adding R at the end of every word as they would write it in khmer with a silent R.
lmao! you're arguing about spelling Khmer words w/ Roman characters. Is there really a right or wrong way to to do it?
I think i've seen all the episodes besides the latest season. It's a interesting show!
its entertaining.
The Greek guy reminds me of me with his big hair
the answer to everything is Alien.
do you think a million years from now, the people of the future will have a similar report about our current advanced technologies?
Yes they mentioned all that. There's an episode dedicated to that. I forgot which episode though...
I was checking the History Channel Ancient Aliens guide and this is the summary for Season 4 Episode 10
Do you like Alien???Because some of them need friends to be communicate....


text:
1.31 / March 19, 2016
App Information Magic Cookies!
- App NameMagic Cookies!
- Package Nameuk.co.keera.games.magiccookies
- UpdatedMarch 19, 2016
- File Size8.1M
- Requires AndroidAndroid 2.3.3 and up
- Version1.31
- DeveloperKeera Studios
- Installs100 - 500
- Price$1.99
- CategoryBoard
- DeveloperVisit website Email email@example.com Privacy PolicyKeera Studios Ltd 145-157 St John Street London EC1V 4PW
- Google Play Link
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Magic Cookies! 1.31 APK
You need to remove all the cookies from themagic tray! But beware: every time you touch a position, you togglethe whole cross. Up, down, left and right, nearby cookies willdisappear, and new ones will appear where there were none. You needto remove them all and leave only the crumbles.This board game features 60 levels of increasing difficulty. Youmust finish each level in a limited number of moves. If you don't,a new tray will come out with more cookies.* IMPORTANT (Mach 19 2016): A bug affecting some users was givingthem a black screen. It's difficult to reproduce. It's beendocumented here: https://github.com/keera-studios/magic-cookies/issues/7. We believe it is now fixed. If it affects you, please, please donot rate the app with less than 5. We are working very hard to fixit; rating low will only punish us for doing our best. Check thelink for a workaround, and enable automatic updates to get apermanent fix as soon as we publish it and, if you can, send us alogcat.* Warning: This is our very first public release! Rate with 5stars, tell all your friends about this game and help us get toeveryone. Please do not rate low or leave bad comments: that willonly make us very sad! :( Let's be constructive instead! Ifsomething doesn't work, reach us by email (firstname.lastname@example.com) or open a newissue: http://github.com/keera-studios/magic-cookies/issues.All issues reported are being documented there. You may want tocheck the list before buying the app.For announcements, future versions, fixes and more games, checkour Facebook and Twitter pages:http://facebook.com/keerastudioshttp://twitter.com/KeeraStudiosThis game is written in Haskell :)* Version history:v1.30:- Fixes memory leak.v1.29:- Fixes bug saving game state in certain states.- Saves game state regularly, to avoid state loss if the gamecrashes.v1.28:- Includes fancier reset button.- Addresses problems with suspension, rendering and activitylifetime (see issues #7 and #1 on github).v1.27:- Reduces binary size by 20%.v1.26:- Improves stability and performance. Runs faster.v1.25:- Fixes issue in level selection menu in portrait mode (#6).v1.24:- Fixes orientation bug.- Fixes bug saving game state to continue from the same place lateron.v1.18 (release candidate):- Haskell game using SDL2 for multimedia and the ArrowizedFunctional Reactive Programming DSL Yampa.- Features 60 levels.- Features menus.- Supports screen rotation.v1.17 and before (available for selected beta testersonly):- Special thanks to all the beta testers who patiently tried ourprevious versions. For privacy reasons we cannot name you publicly,but a wholehearted thank you to each and every one of you. For thetime being, beta testers will still have access to the beta versionof the game for free. They will also be the first to test newfeatures as they come out before future versions are released.
Peg Solitaire in Scala (alpha) 0.4-prealpha APK
ATTENTION: This is a pre-alpha releaseintended only for developers. Please, do not rate low if it doesnot work. Contact support instead.Peg Solitaire is a traditional board game in which you move pegsfrom hole to hole, removing intermediate pegs, until only one isleft.This application implements European Peg Solitaire and iswritten in Scala, based on a similar version for Gtk written inHaskell. The resulting game is quite short, requiring less than 200lines of code, and game definitions (the parts that define therules, the initial board, etc.) are less than 100 lines ofcode.ANNOUNCEMENT: We are releasing new games in FunctionalLanguages. Please check our facebook page: http://facebook.com/keerastudiosIf you have suggestions for future versions or would like to seeother games written in Haskell, Scala or other functionallanguages, drop us a line at firstname.lastname@example.com app does not collect user data, and it is completead-free.The logo is a combination of our own logo and a Creative Commonspicture created by Sean Hickin, available at:http://www.flickr.com/photos/sean_hickin/2192219936/sizes/o/in/photostream/The high-resolution marble used for larger screens is based on aCreative Commons picture posted by ThenAndAgain at:http://www.flickr.com/photos/thenandagain/45180188/sizes/m/in/photostream/
Pang-a-lambda 1.6 APK
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WPS Connect 1.2.2 APK
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XPOSED IMEI Changer 1.6 APK
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Temukan 50 Gamecard karakter BoBoiBoy TheMovie setiap pembelian Choki-Choki bertanda khusus, dan mainkankartunya dengan aplikasi "Choki Choki AR BoBoiBoy".Temukan juga Gold Card (Kartu Emas) yang dapat ditukarkan dengantiket menonton BoBoiBoy The Movie di bioskop-bioskop terdekat.Choki-Choki akan hadir perdana dalam film layar lebar "BoBoiBoyThe Movie".Untuk menambah keseruannya Choki-Choki memberikan gamecard secaragratis dan bisa dimainkan dengan teknologi Augmented Reality yangbisa membuat karakter menjadi hidup.BoBoiBoy The Movie bercerita tentang petualangan seru BoBoiBoydan teman-temannya di pulau misteri tempat tinggal Klamkabot sangtetua pembuat Sfera Kuasa.Di pulau misteri ini BoBoiBoy akan bertemu musuh terkuatnya,yaitu Borara seorang pemburu alien yang mencari kekuatan SferaKuasa untuk menguasai seluruh antariksa. Saatnya pertarungan antaraBoBoiBoy dan alien terkuat seantariksa demi melindungi Sfera Kuasadan teman-temannya.Kumpulkan dan mainkan seluruh karakter baru BoBoiBoy dan paramusuh yang belum pernah dilihat sebelumnya.Feature:• 50 karakter BoBoiBoy & Friend• Lebih dari 10 musuh baru• Pertarungan seru antara BoBoiBoy & Friend dengan musuh-musuhbaru** Minimum Requirement : OS Android 4.4 (Kit Kat), 2GB RAM** Facebook Page :https://www.facebook.com/chokichokiindonesia/Discover 50 Gamecardcharacter BoBoiBoy The Movie Choki-Choki every purchase ofspecially marked, and play cards with the application "Choki ChokiAR BoBoiBoy".Discover also Gold Card (Gold) can be exchanged for tickets towatch BoBoiBoy The Movie in theaters everywhere.Choki-Choki will attend a movie premiere in "BoBoiBoy TheMovie".To add Choki-Choki have fun giving gamecard free of charge and canbe played with Augmented Reality technology that can make thecharacters come alive.BoBoiBoy The Movie tells the story of an adventure BoBoiBoy andhis friends on the island mystery Klamkabot residence elderAuthorization Sfera maker.In this mystery island BoBoiBoy will meet strongest enemy,namely Borara an alien hunter who sought the power Sfera power tocontrol the entire space. It's time to fight between BoBoiBoy andaliens strongest seantariksa to protect Sfera Authorization andfriends.Collect and play BoBoiBoy whole new character and the enemy whohas never seen before.feature:• 50 characters BoBoiBoy & Friend• More than 10 new enemies• intriguing battle between BoBoiBoy & Friend with newenemies** Minimum Requirements: OS Android 4.4 (Kit Kat), 2GB RAM** Facebook Page: https://www.facebook.com/chokichokiindonesia/


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VegfestUK Brighton 2017 website now live for stall bookings
Space available for 230 stalls and 18 caterers; flexible rates available for both traders and charities
VegfestUK Bristol 2017 website now live for stall bookings!
2017 event spanning Friday - Sunday May 20th 21st; space available for 180 stalls and 15 caterers
Vegfest Scotland 2016 now open for stall bookings
Space available for 160 stalls & 13 caterers at 2nd year show at SECC which expects 10,000 visitors overall
VegfestUK London 2016 website now live for bookings
4th year show at Olympia London on Oct 22nd 23rd; stalls, marketing options and sponsorship packages available - book now!
Many thanks for coming to VegfestUK Brighton 2016
Approx 10,700 visitors altogether; event returns to Brighton Centre on March 11th 12th 2017
- "Animal (De)liberation: Should the Consumption of Animal Products be Banned?" by Jan Deckers is… t.co/ZLdfoauNs0
- Vegan Living Magazine stall at #vegfestscotland2016 @ SECC t.co/dj3on9mQ7g
- All about Patisserie vegan sweet treats at #vegfestscotland2016 @ SECC t.co/Yw1zODC12j
Admission to the show is as follows:
Advance tickets: £7 (day ticket), £10 (weekend ticket) [plus booking and transaction fees]
Tickets to go on sale in January 2017
Buy one get one free and buy one get one half price offers running for limited periods only
Tickets on the gate: £10 (adults), £5 (concessions) [subject to availability]
Kids under 16: FREE
Fee includes entrance to all parts of the show.
Kids under 16 must be accompanied by an adult and may be required to show proof of age.
No dogs or animals (except assistance dogs)
Readmittance policy
If you wish to leave the venue during show opening hours (11am-6pm Sat, 10am-5pm Sun) and get readmitted afterwards, please remember to get yourself a readmittance stamp by the exit.
Zero tolerance towards unruly behaviour
VegfestUK Brighton is a friendly family event, and as organisers we wish to keep the show that way. Hence we will not tolerate any protests, violence, aggressive behaviour or bad language on the site. Anyone displaying behaviour deemed unacceptable by the organisers will be swiftly ejected from the venue, and readmittance may be refused.
Terms and conditions
Exhibitors, visitors and speakers at VegfestUK may appear in promotional photos for the event without prior consultation


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If someone or something catches your eye, you look because of interest. Example:
Suddenly something flying in the sky caught his eye. It was a big bird he had never seen before. 2) Be cut from the same cloth Meaning: Be very similar, act in a very similar way If you say two or more people are cut from the same cloth, you mean they are very alike or act in a very similar way. Example: When you teach children, remember that they are not cut from the same cloth. Each child has his/her own personality. 3) All's well that ends well - if things are good at the end of some situation then we should be satisfied with these results. 4) Don't let the grass grow under your feet. (Not let the grass grow under someone's feet)
Meaning: Act now without any delay. If someone doesn't let the grass grow under his/her feet, he/she does something right now without waiting. Example: Im the kind of person who doesn't let the grass grow under his feet.
you become afraid to do something that you planned to do or agreed to do. Example: I always get butterflies in my stomach before taking a test. If you get cold feet.5) (Have / Get) Butterflies in someone's stomach Meaning: Very nervous or excited before doing something important such as giving a speech and taking a test. 6) Get (have) cold feet Meaning: Suddenly become (be) very nervous about doing something that you were going to do. but he got cold feet when they arrived at the jump . Example: It's normal for me to get cold feet before my oral presentation He agreed to go bungee jumping with his friends.
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Indian rapper Yo Yo Honey Singh is back with another fun filled album called the 'Breakup Party'. Check him out in this music video by Leo and tell us how you liked it.
Tags :
#Yo Yo Honey Singh
Copyright Violation
Offensive or Abusive
Sexual or Pornography,
Hateful or Racism,
Violent or Repulsive
Oye Oye Video Song - Azhar
Agar Tu Hota Video Song - Baaghi
Ishq Da Sutta Video Song - One Night Stand
Dangal Title Song
Gilehriyaan Song – Dangal
Kaabil Hoon Song - Kaabil
Dil Nawaziyaan - Full Video Song
Tum Bin 2 - Full Title Song
Shayad Hum Phir Mile - Official Chukyagiri
Jaeger Bomb Song - Tum Bin 2
Dekh Lena Full Video Song - Tum Bin 2
Khulke Dulke Song - Befikre
Ae Zindagi Gale Laga Le Take 1 - Dear


text:
McAfee Gaffe Causes Chaos
Company's anti-virus update wipes out legit programs.Anti-virus powerhouse McAfee was left wiping egg from its face after shipping a virus definition update that incorrectly flagged hundreds of legitimate software programs as a low-risk virus outbreak. McAfee, of Santa Clara, Calif., released the erroneous .DAT file 4715 with definitions for a wide range of new malware threats. When the update was installed, it quarantined or deleted hundreds of innocuousand importantapplications, including Microsoft Excel, Adobe Systems Macromedia Flash Player and Adobe Update Manager, and Googles Google Toolbar installer.
The gaffe caused the software programs to be flagged as W95/CTX, an obscure Microsoft Windows 95 virus first detected in 2004.
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Christmas Center
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You know, that your beloved woman loves jewelry and you want to bestow her the best, but you're not sure that the jewelry given please her, there's nothing simpler. Give her a silverrushstyle gift card to buy jewelry.
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From zimmermann's resort ready-to-wear 14 collection, with button-closure halterneck collar & pockets at hip. Cotton blend brocade, fully lined. Dry clean only.


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Short sleepsuit in cotton and lace
Short sleepsuit in cotton and lace
€ 12,99
Additional Information
Solid colour short sleepsuit in 100% cotton. Spaghetti straps. V neck. Contrasting colour lace at neck and hem.
- Shipping all over Italy: Standard at € 4.95 and Express at € 9.95
- Cash on delivery (Italy only): 7,90€ Find out more
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Item# 004742491
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