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August 1, 2007
JANE DOE, AND JOHN DOE, PLAINTIFFSv.PLEASANT VALLEY SCHOOL DISTRICT, PLEASANT VALLEY SCHOOL BOARD, JOHN J. GRESS, DR. FRANK A. PULLO, DEFENDANTS
Before the court is defendants' motion to dismiss (Doc. 5) the instant action, plaintiffs' motion to proceed anonymously (Doc. 9) and defendants' motion to stay discovery (Doc. 14). Having been fully briefed, the maters are ripe for disposition.
In their complaint, plaintiffs allege that they are "adult, competent individuals who reside in Monroe County," Pennsylvania. (Complaint (hereinafter "Complt.") (Doc. 1) at ¶ 1). Defendants are Pleasant Valley School District, the district high school principal, and the superintendent of schools. (Id. at ¶¶ 2-4). Plaintiffs' case apparently arose after they complained about the classroom conduct of Bruce H. Smith, a history teacher at the high school. (Id. at ¶ 8). Plaintiffs told Defendants Gress and Pullo that Smith showed his history class "photographs of naked and dismembered" women, made inappropriate sexual comments to students and provided a sexually explicit book to his class of sixteen- and seventeen-year-olds.*fn1 (Id. at ¶¶ 9-10). The book contained several "sexually offensive comments." (Id. at ¶ 10). After plaintiffs complained, the defendants allowed the teacher to contact the parents at home, causing them "substantialanxiety and emotional distress." On May 9, 2007, plaintiff filed a two-count complaint against defendants pursuant to 42 U.S.C. § 1983. The first count alleged defendants violated plaintiffs' First Amendment Rights by retaliating against them for exercising their right to speak on public matters and to petition the government. Count II alleged that defendants had failed to provide proper training to district employees, resulting in a violation of plaintiffs' constitutional rights. Plaintiffs sought injunctive relief, nominal damages, punitive damages, interest, delay damages, damages for emotional distress and attorney's fees and costs.
After plaintiffs filed their complaint, defendants filed the instant motion to dismiss. The motion sought dismissal under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(2) because plaintiffs had filed their complaint anonymously without prior court approval. (Defendants' Motion to Dismiss (Doc. 5) at § 11). Defendants argued that Federal Rule of Civil Procedure 10(a) required a caption naming "'all the parties,'" and Rule 17(a) required that each party prosecute the action "'in the name of the real party in interest.'" (Brief in Support of Defendants' Motion to Dismiss (Doc. 6) at 2). A party seeking to proceed anonymously, defendants argued, must seek leave from the court to do so. Since plaintiffs did not seek such permission, defendants contend that this court does not have jurisdiction to hear the case and the complaint should be dismissed.
On June 5, 2007, plaintiffs filed a motion to proceed anonymously due to safety concerns. (Doc. 9). Plaintiffs allege that they fear for their safety if their names are revealed, contending that threats against them have been made in online publications. (Id. at ¶ 5). On June 13, 2007, defendants filed a motion to stay discovery (Doc. 12). They point out that plaintiffs has served them a request for production of documents on June 6, 2007, and that this request "would require an [sic] large-scale use of man power and time to retrieve documents." (Id. at ¶¶ 6, 8). Since a motion that could conclude the case was pending, defendants requested that discovery be delayed so that they could avoid unnecessary expense. (Id. at ¶¶ 8-9).
All of these motions have been fully briefed. Because they are related, we will dispose of them in a single opinion.
a. Motion to Proceed Anonymously
Plaintiffs seek leave of the court to proceed anonymously in this matter. The Federal Rules of Civil Procedure demand that litigants provide "the names of all the parties." FED. R. CIV. P. 10(a). The public nature of lawsuits and the public interest inherent in court cases make open and transparent proceedings imperative to equitable outcomes. See M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998) (holding that "[l]awsuits are public events. A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity. The risk that a plaintiff may suffer some embarrassment is not enough.") (quoting Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)). Courts have long recognized, however, that the circumstances of a case, particularly where litigants may suffer extreme distress or danger from their participation, may require that plaintiffs proceed without revealing their true names. Courts have found that plaintiffs could proceed anonymously because they feared that revealing their true identities would lead to physical violence, deportation, arrest in their home countries and retaliation against the plaintiffs' families for bringing suit. Doe v. Advanced Textile Corp., 214 F.3d 1058, 1063 (9 th Cir. 2000). They have also allowed children who were undocumented immigrants to proceed without revealing their true names when they sought to overturn a law that prevented their access to schools in Texas. Plyler v. Doe, 457 U.S. 202 (1982). People seeking access to abortions at a time when they were generally illegal also received leave to proceed using pseudonyms. See Roe v. Wade, 410 U.S. 113 (1973). Courts have likewise allowed those suffering from mental illness to use pseudonyms. See, e.g., Doe v. Colautti, 592 F.2d 704 (3d Cir. 1979). Children bringing a controversial challenge to a school-sponsored religious program also proceeded anonymously in the face of threatened harm for their views. Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981).
Those federal courts which have ruled on the propriety of anonymous plaintiffs have held that "a district court must balance the need for anonymity against the general presumption that parties' identities are public information and the risk of unfairness to the opposing party." Advanced Textile, 214 F.3d at 1068. The Ninth Circuit Court of Appeals, for example, has noted that "we allow parties to use pseudonyms in the 'unusual case' when nondisclosure of the party's identity 'is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.'" Id. at 1067-68 (quoting United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981)). The Fourth Circuit Court of Appeals has similarly found that "[f]ederal courts traditionally have recognized that in some cases the general presumption of open trials--including identification of parties and witnesses by their real names--should yield in deference to sufficiently pressing needs for party or witness anonymity." James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993).
The Third Circuit Court of Appeals has not articulated a standard for weighing litigants' efforts to proceed anonymously. Federal courts in the Third Circuit, however, have held that "[i]n determining whether a party may proceed under a pseudonym, the public's right of access should prevail unless the party requesting pseudonymity demonstrates that her interests in privacy or security justify pseudonymity." Doe v. Evans, 202 F.R.D. 173, 175 (E.D. Pa. 2001).
We find that the grounds articulated by the plaintiffs do not justify denying the public's right to know the litigants' identities. Plaintiffs here argue that their use of pseudonyms is justified because their safety has been threatened. They contend that exposing their identities would put them and their family at risk. As evidence of this danger, plaintiffs point to statements made by an unidentified student on an internet blog. The student claimed plaintiffs were "not releasing their names because they know about a hundred people will go chase them down with torches and pitchforks as soon as their names come out." (Brief in Support of Motion to Proceed Anonymously (Doc. 10) at 3). We do not see this statement as a direct threat to the plaintiffs or their family, but more likely idle chatter about public attitudes towards the plaintiffs' claim. Since filing a lawsuit, particularly in a matter of public interest, often exposes the litigants to controversy and disapprobation, we do not find mere expressions of anger towards the plaintiffs sufficient to warrant allowing them to proceed anonymously. Plaintiffs have not pointed to specific threats that justify the extraordinary measure of allowing them to proceed anonymously. Moreover, this lawsuit is about the exercise of free speech by the plaintiffs and the reaction of the school district to that exercise; a lawsuit of that type necessarily involves public statements that may make the parties to the case controversial figures. Accordingly, we will order the plaintiffs to amend their complaint to state their real names.
b. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1) allows defendants to move for dismissal of a complaint for "lack of jurisdiction over the subject matter." Rule 12(b)(2) allows dismissal for "lack of jurisdiction over the person. Defendants argue that we lack such jurisdiction because plaintiffs did not provide their actual identities when they filed their complaint. Because we now order the plaintiffs to provide their real names, we find that defendants' motion to dismiss is moot. We will deny it.
c. Motion to Stay Discovery
Defendants predicate their motion to stay discovery on a desire to avoid the potentially unnecessary expense of complying with discovery requests that would become meaningless if we granted defendants' motion to dismiss.As we have determined that defendants' motion to dismiss should be denied, defendants' motion to stay discovery has become moot. We will deny it as well.
AND NOW, to wit, this 1st day of August 2007:
1) Defendants' motion to dismiss (Doc. 5) is DENIED as moot;
2) Defendants' motion for a stay of discovery (Doc. 14) is DENIED as moot; and
3) Plaintiffs' motion to proceed anonymously (Doc. 9) is DENIED. Plaintiffs are DIRECTED to file an amended complaint using their real names within ten (10) days or their case will be dismissed.
JUDGE JAMES M. MUNLEY United States District Court
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Item: Portable Breast Care Enhancer Enlarger Red LED Photon Massager Beauty Device
Item ID: PE133
Treatment area: Body Area
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Weight: 0.53 kg
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Asked by GlitteribonMom at 3:08 PM on May. 2, 2011 in Crazy for CreditsLevel 56 (689,167 Credits)
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Marine Corporal Todd Love: Triple Amputee [Pic]
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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
April 27, 2012
THE PEOPLE OF THE STATE OF NEW YORK,RESPONDENT,v.KADEEM R. HARRIS,DEFENDANT-APPELLANT.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered May 17, 2010.
Decided on April 27, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15 [2]). Contrary to defendant's contention, we conclude that he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea (see generally People v Lopez, 6 NY3d 248, 256). "County Court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v James, 71 AD3d 1465, 1465 [internal quotation marks omitted]), and the record establishes that he "understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (Lopez, 6 NY3d at 256). Contrary to the further contention of defendant, his "monosyllabic affirmative responses to questioning by [the c]court do not render his [waiver] unknowing and involuntary" (People v Dunham, 83 AD3d 1423, 1424, lv denied 17 NY3d 794). Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez, 6 NY3d at 255-256; People v Gordon, 89 AD3d 1466). Finally, to the extent that defendant's contention that he was denied effective assistance of counsel survives his guilty plea and valid waiver of the right to appeal (see People v Jackson, 85 AD3d 1697, 1699, lv denied 17 NY3d 817), we conclude that it lacks merit (see generally People v Ford, 86 NY2d 397, 404).
Entered: April 27, 2012
Frances E. Cafarell Clerk of the Court
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ERIC Number: ED188406
Record Type: RIE
Publication Date: 1980-Apr
Pages: 10
Abstractor: N/A
Reference Count: 0
Piaget's Developmental Theories Used in an Early Childhood Program for Mentally Retarded Students.
Francis Christi, Sister
The author describes a Piaget based curriculum involving three main themes (classification, number measurement/space, and seriation) for young mentally retarded children. Students solve problems by doing something physically and mentally to the data, shuffling the facts about in their minds, so that they will come to a logical solution. Language is used in the program to support the mental operations so that as a child is being trained in a particular mental operation, the teacher models the appropriate language structures. (SBH)
Publication Type: Guides - Classroom - Teacher; Reports - Descriptive; Speeches/Meeting Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Piaget (Jean)
Note: Paper presented at the Annual International Convention of The Council for Exceptional Children (58th, Philadelphia, PA, April, 1980, Session F-2).


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Kseniya (ID: 74082)
Date of birth:April 03, 1993
Height:5' 3" (162 cm)
Weight:121 lb (55 kg)
Hair color:chestnut
Eyes color:brown
Religion:Russian Orthodox
Marital status:single
Education:university student
English language:Using dictionary
Others foreign languages:No
Seeks partner:25 - 40 years old
Total photos:13
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Hobbies and interests:
I am fond of reading, theater, music, dancing, singing. I like modern art, I like meeting with my good friends. I like going to restaurants, museums, cinema, parks. I like learning new things, exploring this world, traveling. I do not like to sit at home, and I can say that my life is never boring, it is always very active and bright.
About me:
I am kind and balanced, very intelligent and goal-oriented, charming and cheerful. As a woman I am very sensual, affectionate, tender and caring. I possess a flexible nature, I am easy-going and compromising. And I am an absolute optimist. I deeply love life and sincerely believe in love! I am an educated person but I like to learn something new all the time. I am an active and creative person, I like to find out something new all the time.
Looking For Men Type:
I would like to find a man to share all my life and all my love and to live with him to the ends of our lives. I am looking not for the handsome and attractive man but for the person who will support me and love me all my life, who will understand me without words. I am looking for a man with steady life principles. He should have a strong character and good moral values. Here I want to get acquainted with a man who has serious intentions, who loves kids and wants to build a good happy family. I can make my special person the happiest man in this world. I will be the perfect wife and the best mother for our children.
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Welcome to Platts Motor Company
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7 CFR 94.103 - Analytical methods.
Beta! The text on the eCFR tab represents the unofficial eCFR text at ecfr.gov.
§ 94.103 Analytical methods.
The analytical methods used by the Science and Technology Division laboratories to perform voluntary analyses for egg products shall be the same as listed in § 94.4.


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A Moment with God for Those Who Grieve - eBook
By: Dale Clem
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Abingdon Press / 2011 / ePub
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|Format: DRM Protected ePub
Vendor: Abingdon Press
Publication Date: 2011
Series: A Moment with God
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Now using the Common English Bible Translation!
This book in the A Moment with God Series will help during a time of loss. With fifty-eight moving Scriptures and appropriate prayers, it makes a perfect gift for those going through the grief process. Short bursts of inspiration allow busy youth to take time to pray in just a few short, inspirational minutes. It could easily be used in group devotion as well as for personal reflection time. The beautiful design and size make it a gift that will be treasured and remembered.
Check out some of the prayers books in this series in the Related Products Section below.
Dale Clem is pastor of Monte Sano United Methodist Church in Huntsville, Alabama. He is the author of Winds of Fury, Circles of Grace and wrote the devotions for the WordAlive! bulletin service for 2016.
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HoustonHouston, TXAge: 45-54Gender: female5 Stars Out Of 5beautiful bookNovember 11, 2015HoustonHouston, TXAge: 45-54Gender: femaleQuality: 0Value: 0Meets Expectations: 0This review was written for A Moment with God for Those Who Grieve.This is a perfect book for someone who is mourning the loss of a loved one. Bought several for friends and kept one for myself. Goes great with a sympathy card.
Little Lady5 Stars Out Of 5Lovely Gift bookApril 13, 2015Little LadyQuality: 5Value: 5Meets Expectations: 5This review was written for A Moment with God for Those Who Grieve.This is a lovely gift book for those who grieve. It has Scriptures and prayers for all stages of grief. It was helpful for me (a recent widow) and I plan to keep it it new condition and pass it on to a friend as the occasion presents itself.
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Michael did an absolutely fantastic job on our new deck the professionalism and courtesy he showed made it a pleasure to deal with him from start to finish, i would recommend him to anyone.
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St Michaels Hotel Falmouth: Find photos, reviews, information, amenities and compare prices for 4 stars hotels in Falmouth, United Kingdom.
Located in Falmouth, St Michaels Hotel Falmouth provides modern 4-star accommodation, as well as a Jacuzzi, outdoor tennis courts and a swimming pool. It is set amongst a variety of dining options and is minutes on foot from Falmouth Town Railway Station.
Hotel description
There are a range of facilities at the hotel that guests can enjoy, including sauna, 24-hours room service and a golf course. Helpful and professional team members are available 24-hours a day.
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Aurora Cruise Review by pprouse: Standards dropping and disappointed cruise.
Overall Member Rating
Standards dropping and disappointed cruise.
Destination: Western Caribbean
Embarkation: Southampton
This cruise on Aurora was to be a special cruise for our 40th wedding and husbands 65th birthday.
Ship found to be tatty and generally food and service below what to expect since our last cruise with P&O.
Noise in cabin from slamming drawers and doors in adjoining cabins and unable to sit out on balcony most days due to smoking on balcony either side.
Had to book tours due to ship location in most ports of call due to husband being unable to walk far and no shuttle buses in most ports.Tours expensive and quality of transport very poor.
Pestered all day long to buy expensive drinks by bar staff. Everything on board is geared up to get money off you and now we have finished up with a large debt on credit card.
We think we were miss sold the cruise has we paid full getaway fare after been assured by P&O that it was doubtful it would come down due to high demand and if it came down we may get upgrade which we did not get.
The More price dropped by £1200 for the both of us 4 weeks later. Last cruise we will do with P&O. Less
Published 11/18/13
Read more Aurora cruise reviews >>
Read Cruise Critic's Aurora Review >>
Cabin review:
Standards and quality dropping with P&O. Noisy cabin and poor quality transport on tours.
Group of 22 enjoyed almost eve...
Good First Cruise
Thanksgiving aboard Empress
Thanksgiving Cruise
Very average cruise
A lovely September cruise
Aurora - Sept cruise to Med / ...
So I DO Like cruises after all...
Falling standards
Eight thirty dining a big turn...
Winter Sun Southampton - Tangi...
Iberia 2016
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I recently suggested that business development companies merit further investigation for income-oriented investors. Given the complexity of some of the management structures, as well as the risky nature of the underlying investments made, investors interested in this niche should pay careful attention to the alignment of interests between management and shareholders.
I had indicated that I would follow up with a review of this dynamic if readers were interested, and that was overwhelmingly the case. Therefore, I am reviewing each of the 14 dividend-paying BDCs I had highlighted in order to assess the amount of "skin in the game."
So far, I have reviewed Ares Capital (ARCC), the largest of the group, Apollo Investment (AINV), the worst in terms of alignment, Prospect Capital (PSEC), Fifth Street Finance (FSC), BlackRock Kelso (BKCC), PennantPark (PNNT), Solar Capital (SLRC), Hercules Technology Growth Capital (HTGC), Main Street Capital (MAIN), Triangle Capital (TCAP) and MCG Capital (MCGP). TICC Capital (NASDAQ:TICC), which has a market cap of about $300 million, has traded publicly since 2003:
Click to enlarge
(Click to enlarge)
The company filed its annual proxy statement on April 29th. Like most of its larger peers, where management is provided by an affiliated company, TICC is managed by its investment adviser, TICC Management. BDC Partners, in turn, manages TICC Management. Jonathan Cohen (46) has served as CEO of both TICC and its adviser and is the managing member of BDC Partners. He also serves as the CEO of T2 Advisers. His COO and his CFO have both served in their roles since 2003. Cohen and his two executives also work with Oxford Lane Capital.
Total ownership of directors and officers is listed at 2.4%, which puts it a little below average for the BDCs. Cohen's ownership stake represented about 40% of the beneficial ownership at 310K shares. The second largest holder is Charles Royce, a director. Royce & Company is an investor in TICC Management. Royce bought about 78K shares on the open market in August.
Due to the common structure of outside management, BDC investors are often unable to clearly weigh the alignment of interests, as there is no disclosure regarding salary and incentive pay levels (or metrics) for the individuals involved in running the company. While MAIN is structured with outside management, it still discloses this information, but most don't. TICC doesn't disclose pay information either. As the 10-K describes, there are many potential conflicts of interest.
While there are two more BDCs to evaluate regarding management's alignment with shareholders, MCG Capital appears below average given skimpy insider ownership levels and an external management structure with no compensation disclosure. Main Street looks superior to all of the previously reviewed BDCs, especially Apollo Investment. With the exception of MCG Capital and Fifth Street Finance, all of the BDCs I have reviewed are permitted to sell stock below the NAV, which I find to be a negative. The best alignment so far beyond MAIN has been Hercules Technology Growth Capital. I think that Solar Capital, Triangle Capital and Fifth Street Finance stand out from the crowd as well.
While many factors ultimately influence the level of future dividends, it is unclear if the ownership of TICC's management team and outside directors creates enough of an incentive for its executives to steer it in a direction that sustains or even grows the payment without taking excessive risk.
Disclosure: I have no positions in any stocks mentioned, and no plans to initiate any positions within the next 72 hours.


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More than just a bunch of wackos. Fred Phelps was a friend of Al Gore. He even hosted a fund raiser for Gore during his 1988 run for the presidency. It's like Bill Ayers holding Obama's first fundraiser ever at his house.
Phelps, a long time Democrat and supporter of civil rights for blacks (presumably only straight blacks or perhaps just because he saw a gold mine and lots of $$ in that type of litigation at the time), did support Al Gore but that was back when TN Senator Gore had opposed a "gay bill of rights" and stated that homosexuality was not something that "society should affirm"), a position that he (Gore) had changed by 2000 when he had the support of homosexual advocacy groups for his presidential campaign. Phelps has stated that he supported Gore because of these earlier comments.
But the entire Westboro congregation picketed a 1997 inaugural ball denouncing Vice President Al Gore as a "famous fag pimp. In 1998, Westboro picketed the funeral of Gore's father, screaming vulgarities at Gore and telling him, "your dad's in Hell".
The Westboro cult first came into the national spotlight in 1998, when it was featured on CNN for picketing the funeral of Matthew Shepard, a young man from Laramie, Wyoming who was beaten to death by two men allegedly because of his homosexuality and protested performances of the Laramie Project play around the country. They later extended their protests to military funerals the Thank God for Dead Soldiers and protests of celebrity funerals, protests of the victims of natural disasters, tornados, etc., protests of the funerals of accident victims, protests of things like the Swedish embassy and protests in front of numerous Christian churches.
The Westboro clan is IMO a cult obsessed with only one issue and one issue alone and they are complete wackos and attention whores and hope to spear violence against them so they can file civil lawsuits in order to make money to further fund their activities.
While they used to actually show up in mass to protest at military funerals and other funerals or anything and everything that they could in their own twisted mind vaguely attribute to homosexuality even if it had nothing to do with homosexuality at all or any of their other peeves like Catholicism, Judaism, rock concerts, plays, churches, basically against anyone that they perceive as not prescribing to their cults beliefs, now days, probably because of the counter protests and local laws against picketing private funerals or their lack of funds for travel or people just plain ignoring them, they typically make a threat to protest but actually dont show up much now days. But they dont have to show up as now they can twitter their protests and threats, but they still get what they want attention, their name in the press and hits to their vile twisted and hateful website.
My nice and I attended this local funeral here in PA in order to shield this good Christian family who tragically lost six of their children in a fire from the Westboro cult who made threats to protest. But while the Westboro freaks didnt show up, we were glad we went.
But if anything good came and comes from this cults threats, it is that it often brings a community of good and right minded people of many POV together to stand up to these hateful twisted wackos and support grieving families.


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Richard Pryor, 1940 - 2005. RIP.
Richard Pryor, 1940 - 2005. RIP.
I think I've found it. The perfect screenshot.
Actor/Host Anthony Anderson, actors Yara Shahidi, Marcus Scribner, Tracee Ellis Ross, Marsai Martin and Miles Brown poses in the press room during the 46th NAACP Image Awards.
The cast of Heathers being adorable little shits at their final curtain call on August 4, 2014
Anthony Browne
posted by Path and Puddle
" That was a game. This is paintball. "
"You will obey me."
Planet of Fire - season 21 - 1984
marlo bolles photographed by @alexdrogers
wardrobe by @kingtroianthoni
Cast of Martin
Happy Birthday Anthony Rapp!
Original Rent star Anthony Rapp was born on October 26. Find out more about his life on Broadway, from his debut at age 10 in The Little Prince and the Aviator to his current role in If/Then, at PlaybillVault.com.
I'm always going to have love for Martin the show and Martin the person because the show was reppin' for HBCUs (and Detroit) from the beginning. From top: FAMU, a/k/a Florida A&M University (but y'all should already know. From the highest of seven hills, Rattlers stand up…then strike, strike, and strike again!), Alabama A&M, Morgan State, Grambling, Jackson State, Morris Brown.
Forgotten Path
can't stop won't stop


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Hello Guest! You are browsing the forums as a guest; you will have limited permissions as a guest so we advise registering to enjoy the forums fully. Remember: we are a Christian ONLY site - any user who is not Christian will not be approved. Blessings, Christian Forum Site StaffDismiss Notice
Western world is losing its Christian values, says leading bishop
Discussion in 'News and Articles' started by NearertoGod, Jun 25, 2008.
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Local businesses hope free sleigh rides will draw more shoppers
Submitted: 11/30/2013
Story By Lauren Stephenson
- Small businesses in Eagle River hope free sleigh rides will draw more shoppers.
Saturday kicked off the 5th year of free sleigh rides around the downtown area.
The Eagle River Business Association sponsors the rides.
Small businesses believe the free rides down Eagle River's main street will make visitors more aware of local businesses.
"We thought that it would be a good idea to get people downtown to see what businesses we do have downtown. Even if they don't shop on the day that they come down for the sleigh rides, you know they can still see what businesses we have and what a great little town we have here in Eagle River," says Eagle River Business Association president Gail Newitt.
Hundreds of people come out each year to take a scenic ride around town.
The Christmas season is the second biggest shopping season for downtown Eagle River.
Businesses depend on it to carry them through the winter.
"It definitely brings people [to] downtown Eagle River. And during the Christmas season it really helps. You know, we've got to draw as many people as we can down here. There's a lot of good shopping down in this little town. You might not find everything you want, but you certainly can find a lot of things," adds Newitt.
You can get a free sleigh ride every Saturday in December from 11am to 2pm.
Just stop by the Eagle River Historical Society Museum on Railroad Street.
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EMT couple spends weeks setting up Christmas display
Submitted: 12/07/2016
Play Video
- If you pass through Elcho, you can't miss the hundreds of Christmas lights as you drive down Highway 45.
The Elcho Christmas staple is all thanks to a couple who spends weeks setting up the display, after they spend most of their time saving lives.
Carl Bloechl and Lissa Iwanoski are both EMTs. Carl is also a R.N. in Antigo.
For four years now, the couple sets up decorations at an office building off of Highway 45 in Elcho.
It takes a couple of weeks and they use their time in between shifts to get the job done.
"We just hope we don't get called. Sometimes we do get called and we just drop it all and leave it out here and go," said Bloechl.
The cold winter weather usually slows down the set up, but this year's warmer weather allowed the couple to enjoy the visitors earlier.
"It makes me feel good inside that they enjoy it too, because it is work," said Iwanowski.
The display will be on until the beginning of next year.
The lights stay on from around 4:00 p.m. through 11:00 p.m.
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Rough pavement makes an ambulance ride painful for one Pine County woman
Submitted: 12/07/2016
Play Video
- State politicians face a battle over paying for Wisconsin roads. This week, Assembly Speaker Robin Vos rode in an ambulance to show just how bumpy some roads are. One Price County woman had a real-life ride over rough roads in an ambulance.
Not long ago, Sandy Krueger suffered a dislocated shoulder and sprained ankle after falling down a flight of stairs. An ambulance gave Kruger a painful ride over rocky roads to the hospital. Krueger says the EMT driver would even warn her when they were about to hit a "rough spot" in the road.
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Husband charged in death of West Salem woman
Submitted: 12/07/2016
- The death of a woman initially thought to be the result of a freak accident on a La Crosse County road has now been blamed on her husband.
Forty-six-year-old Barbara Kendhammer, of West Salem, was found critically injured after authorities responded to a car crash Sept. 16. Her husband, Todd Kendhammer, told authorities a pipe fell from a truck as he was driving, broke through the windshield and hit his wife, who died the following day.
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Former law school applicants at risk for identity theft
Submitted: 12/07/2016
- The University of Wisconsin Law School has notified more than 1,200 former applicants that they could be at risk of identity theft because the school's database was hacked.
The university says Social Security numbers from 2005 to 2006 applicants were recently compromised. The Law School has taken down the affected server as a result and added a firewall to better protect that data.
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Chilly weather didn't keep people away from Antigo's Chili Cook Off
Submitted: 12/07/2016
- With one of the coldest days of the season so far, most people probably chose to stay inside Wednesday.
But for people in Antigo it was the perfect day to get outside and cook up some chili.
Antigo held its annual chili cook-off.
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Granite Peak holds meeting to review plans for expansion
Submitted: 12/07/2016
- Granite Peak in Wausau wants to expand, but some people don't want that to happen.
The Granite Peak ski area held a meeting Wednesday evening to discuss those plans. The public was invited to hear about the expansion and to get answers to any of their questions.
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Students checked for mercury after scare at Green Bay school
Submitted: 12/07/2016
- Students have left a Green Bay elementary school for the day after a mercury scare.
The students at Lincoln Elementary were dismissed at 4:30 p.m. Tuesday, about an hour after the normal time, after being checked for mercury.
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Yahoo auction10 Apr 2016
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Yahoo extends deadline for suitors to file preliminary offers
Yahoo has extended the deadline for prospective suitors to put in first-round bids by a week, till April 18, with Bloomberg citing Verizon, TPG, Bain and Time Inc. as suitors for the US internet giant's core business.
Meanwhile, Yahoo investor Mario Gabelli told CNBC that a mooted $8bn takeover of the company by Verizon - the owner of AOL - would deliver synergies by harnessing the firms' advertising technologies.


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May 17, 2013
CITY OF ROYAL OAK RETIREMENT SYSTEM, ET AL.,PLAINTIFFS,v.JUNIPER NETWORKS, INC., ET AL.,DEFENDANTS.
United States District Court
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND; AND DISMISSING ACTION WITH PREJUDICE [Re: Docket Item No. 91]
For the Northern District of California
Defendants Juniper Networks, Inc. ("Juniper" or "the Company"), Kevin R. Johnson ("Johnson"), Robyn M. Denholm ("Denholm"), and Scott G. Kriens ("Kriens") (collectively, 21 "Defendants") move to dismiss Plaintiffs' second amended complaint pursuant to Rules 12(b)(6) 22 and 9(b) of the Federal Rules of Civil Procedure. See Mot. to Dismiss, ECF No. 91. The motion 23 has been fully briefed. See Opp'n., ECF No. 99; Reply, ECF No. 100. The Court found the motion 24 to be appropriate for disposition without oral argument pursuant to Civil Local Rule 7-1(b) and 25 vacated the hearing that had been set for May 16, 2013. Order Vacating Hr'g, ECF No. 104. For 26 the reasons explained below, the Court GRANTS the motion as to all defendants without leave to 27 amend and DISMISSES the action with prejudice. 28
4 against Defendants on August 15, 2011. Compl., ECF No. 1. Several entities sought appointment 5 as lead plaintiff and approval of lead counsel. The Court appointed the City of Omaha Police and 6
Scott䧊 LLP as lead counsel. Order, ECF No. 42. Plaintiffs filed an amended complaint on 8
On July 23, 2012, the Court issued an order that inter alia granted Defendants' motions to
10 dismiss the amended complaint with leave to amend ("July 23 Order"). July 23 Order, ECF No. 84.
The thirty-two page order explained in detail how the amended complaint was deficient. Id. The
order expressly advised Plaintiffs that "[f]ailure to cure the deficiencies identified herein will result 13 in dismissal with prejudice." Id. at 32. 14
Plaintiffs filed the operative second amended complaint ("SAC") on August 20, 2012,
15 asserting claims on behalf of persons who purchased or otherwise acquired Jupiter's common stock 16 between July 20, 2010 and July 26, 2011, inclusive (the "Class Period"). SAC, ECF No. 87. 17
1934 ("Exchange Act") and Rule 10b-5 of the Securities and Exchange Commission ("SEC"); (2) 19 controlling person liability under § 20(a) of the Exchange Act; and (3) insider trading under § 20A 20 of the Exchange Act. Id. 21
Juniper designs and sells communications networking equipment to larger global service
23 providers, enterprises, and public sector organizations. SAC ¶ 3, ECF No. 87. "Juniper's primary 24 product and service offerings are its core routers and switches that allow customers to move voice, 25 video, and data traffic across their networks, as well as its security products and software that enable 26 the secure and efficient operation of data networks." Id. All Juniper hardware systems, including 27 routing, switching, and security devices, use Juniper's proprietary JUNOS network operating 28 system. Id. ¶ 6. The biggest competitor of the JUNOS operating system is the IOS operating
A. Procedural History
The City of Royal Oak Retirement System filed this putative securities fraud class action
Fire Retirement System and the City of Bristol Pension Fund as lead plaintiffs and appointed 7
February 13, 2012. Am'd Compl., ECF No. 47. 9
United States District Court For the Northern District of California
Plaintiffs assert three claims: (1) securities fraud under § 10(b) of the Securities Exchange Act of 18
B. Factual Allegations
system of Cisco Systems, Inc. ("Cisco"). Id. ¶ 7. 2
Johnson was the company's president, chief executive officer ("CEO"), and director. Id. ¶ 27. 4
Johnson, Denholm, and Kriens held key positions at Juniper during the Class Period.
Denholm was the company's chief financial officer ("CFO") as well as an executive vice president. 5
On February 23, 2010, prior to the start of the Class Period, Juniper hosted an analyst day
7 conference during which it disclosed a long-term business plan calling for a 20% growth in 8 revenue and a 25% operating margin over the next three to five years. Id. ¶ 30. On July 20, 2010, 9 the first day of the Class Period, Juniper issued a press release announcing its preliminary 2Q10 10 financial results, which were filed the same date on a Form 8-K. Id. ¶ 61. Juniper reported a 24%
increase in revenue on a year-over-year basis and a non-GAAP*fn1 operating margin of 23.9%. Id.
Juniper attributed its financial results to skillful execution of its business plan and increased demand 13 for its products, and expressed bullish future expectations through a number of comments, for 14 example, that it was "well on track to delivering profitable growth in 2010 and making progress 15 against [its] long-term revenue growth objective while expanding operating margins." Id. ¶ 68; see 16 also ¶¶ 61, 69-71. 17
Throughout the Class Period, Juniper continued to report that it "was still on track to meet its
18 long-term business plan of 20% revenue growth and 25% operating margins." Id. ¶ 95. Juniper 19 also continued to make bullish statements such as the following: "[O]ur demand indicators are 20 strong, our portfolio is robust and we are focused on executing against the market opportunity ahead 21 of us." Id. ¶ 95; see also ¶¶ 88, 96-99, 103, 111, 119-23, 129, 137, 140, 142. Juniper's stock price 22 rose during the Class Period, from $26.60 per share the day before the start of the Class Period to a 23 high of $44.46 per share on March 8, 2011. Id. ¶¶ 73, 139. On March 3, 2011, when the stock price 24 was at its peak, Juniper conducted a $1 Billion Debt IPO. Id. ¶ 138. 25
"Defendants knew but failed to disclose, the Company's business fundamentals did not support 27
Id. ¶ 28. Kriens was the chairman of the board of directors. Id. ¶ 26. 6
Plaintiffs allege that Juniper's long-term projections were false and misleading because
these lofty revenue and operating margin targets." SAC ¶ 34, ECF No. 87. According to Plaintiffs, 2
Juniper was experiencing "slumping sales and intense pricing pressures," as well as problems with 3 its proprietary JUNOS operating system. Id. Moreover, Juniper did not have the sales force 4 necessary to grow its network business (routers and switches) at the projected levels. Id. 5
Defendants did not adequately disclose the impact of the company's adoption of new revenue 7 recognition rules issued by the Financial Accounting Standards Board ("FASB"). Under the old 8 rules, when Juniper sold hardware or software that included an ongoing obligation to provide 9 service or maintenance ("multiple-element arrangements" or "multiple-deliverable arrangements"), 10
obligation was satisfied. Id. ¶¶ 51-53. Under the new rules -- Accounting Standards Update
("ASU") 2009-13 and ASU 2009-14 -- Juniper had discretion to determine the value of the 13 undelivered portion of the ongoing obligation and was required to defer revenue recognition only 14 with respect to that undelivered portion. Id. ¶ 54. Once Juniper adopted the new rules, there was an 15 initial period in which it recognized more of its revenue up-front on current period sales while it 16 continued to recognize deferred revenue on past-period sales. Id. Plaintiffs allege that as a result of 17 this temporary bump in revenue, Juniper's financials gave the appearance that the company was 18 meeting its long-term growth targets when in fact Juniper's actual revenue growth was trending 19 down. Id. ¶ 55. For example, Plaintiffs allege that while Juniper reported revenue growth of 24.4%, 20
22.9%, and 26.4% in 2Q10, 3Q10, and 4Q10, respectively, Juniper's "actual" revenue growth was 21 only 17.7%, 16.8%, and 14.8%, respectively. Id. Plaintiffs allege that during this same period, 22
Juniper's much larger competitor, Cisco, reported less robust revenue growth and suffered a decline 23 in its stock price. Id. ¶ 9. While the purpose of the juxtaposition of the two companies' financials is 24 not entirely clear, Plaintiffs may wish the Court to infer that the market assumed that Juniper was 25 picking up customers from Cisco. 26
27 recognition rules. Id. ¶ 59. However, Plaintiffs assert that the disclosures were not sufficiently 28 detailed and comprehensive to inform the market that a significant portion of Juniper's apparent
Plaintiffs also allege that Juniper's financial reporting was false or misleading because
Juniper was required to defer recognition of a significant portion of the total sales price until such
Plaintiffs acknowledge that Juniper publicly disclosed its adoption of the new revenue
growth trend actually was attributable to the change in revenue recognition practices. Id. ¶¶ 59-60. 2
On June 1, 2011, Juniper disclosed that growth in certain segments of its business was
3 slowing, and that 1Q11 had started "kind of on the weak side." Id. ¶ 153. Juniper's stock declined 4 several dollars per share on this news. Id. ¶ 155. On July 25, 2011, Juniper announced "a major 5 management reshuffling." Id. ¶ 159. On July 26, 2011, the last day of the Class Period, Juniper 6 issued a press release reporting a year-over-year revenue increase of 15%, which was lower than its 7 previous guidance of a year-over year revenue increase of between 16% and 21%. Id. ¶ 160. 8
21.6%; these figures were significantly off previous guidance. Id. Juniper lowered guidance for 10
19% and 21%. Id. On this news, Juniper's stock fell nearly 21% to $24.66 per share. Id. ¶ 171.
Juniper also reported non-GAAP gross margin of 65.6% and non-GAAP operating margin of 9
3Q11 and FY11, projecting revenue growth between 12% and 14% and operating margins between
15 sufficiency of the plaintiff's claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When 16 determining whether a claim has been stated, the court accepts as true all well-pled factual 17 allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Exploration 18
(Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the court need not "accept as true 19 allegations that contradict matters properly subject to judicial notice or by exhibit" or "allegations 20 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re 21
Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations 22 omitted). While a complaint need not contain detailed factual allegations, it "must contain sufficient 23 factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. 24
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 25 claim is facially plausible when it "allows the court to draw the reasonable inference that the 26 defendant is liable for the misconduct alleged." Id. 27
In addition to the pleading standards discussed above, a plaintiff asserting a private securities
A. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) tests the legal
B. Federal Rule of Civil Procedure 9(b) and the PSLRA
fraud action must meet the heightened pleading requirements imposed by Federal Rule of Civil 2
Procedure 9(b) and the Private Securities Litigation Reform Act of 1995 ("PSLRA"). In re 3
VeriFone Holdings, Inc. Sec. Litig., 704 F.3d 694, 701 (9th Cir. 2012). Rule 9(b) requires a plaintiff 4 to "state with particularity the circumstances constituting fraud. . . ." Fed. R. Civ. P. 9(b); see also 5
In re VeriFone Holdings, 704 F.3d at 701. The PSLRA requires that "the complaint shall specify 6 each statement alleged to have been misleading, [and] the reason or reasons why the statement is 7 misleading. . . ." 15 U.S.C. § 78u--4(b)(1)(B). The PSLRA further requires that the complaint "state 8 with particularity facts giving rise to a strong inference that the defendant acted with the required 9 state of mind." 15 U.S.C. § 78u--4(b)(2)(A). "To satisfy the requisite state of mind element, a 10 complaint must allege that the defendant[ ] made false or misleading statements either intentionally
or with deliberate recklessness." In re VeriFone Holdings, 704 F.3d at 701 (internal quotation
marks and citation omitted) (alteration in original). The scienter allegations must give rise not only 13 to a plausible inference of scienter, but to an inference of scienter that is "cogent and at least as 14 compelling as any opposing inference of nonfraudulent intent." Tellabs, Inc. v. Makor Issues & 15
Rights, Ltd., 551 U.S. 308, 314 (2007). 16
19 connection with the purchase or sale of any security . . . any manipulative or deceptive device or 20 contrivance in contravention of such rules and regulations as the [SEC] may prescribe." 15 U.S.C. § 21
78j(b). Rule 10b-5 further provides that it is unlawful "[t]o make any untrue statement of a material 22 fact or to omit to state a material fact necessary in order to make the statements made, in the light of 23 the circumstances under which they were made, not misleading." 17 C.F.R. § 240.10b-5(b). The 24 elements of a claim under § 10(b) and Rule 10b-5 are: "(1) a material misrepresentation or omission 25 by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the 26 purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic 27 loss; and (6) loss causation." Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1317 (2011) 28
A. Section 10(b) of the Exchange Act and Rule 10b-5
Under Section 10(b) of the Exchange Act, it is unlawful for any person to "use or employ, in
(quoting Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157 (2008)).
3 margin of 25% were false or misleading because Defendants knew that those projections were not 4 realistic in light of Juniper's slowing sales, pricing pressure from competitors, problems with the 5
July 23 Order, the Court concluded that Defendants' projections are protected under the PSLRA's 7
1. Misrepresentations Re Long-Term Growth Projections
Plaintiffs assert that Defendants'*fn2 projections of revenue growth of 20% and operating
JUNOS operating system, and the lack of an adequate sales force. SAC ¶ 34, ECF No. 87. In its 6
"safe harbor" provision, which provides in relevant part that a defendant may not be held liable for a 8 statement that is "identified as a forward-looking statement, and is accompanied by meaningful 9 cautionary statements identifying important factors that could cause actual results to differ 10 materially from those in the forward-looking statement." 15 U.S.C. § 78u-5(c)(1)(A)(i); July 23
Order at 17-20, ECF No. 84. To the extent that any of the statements are not forward-looking -- for
example, statements that "Verizon and AT&T are strong partners," and that Juniper has "strong 13 demand metrics and good momentum" -- the Court held that the statements are vague, generalized 14 assertions of corporate optimism that are not actionable. July 23 Order at 20-21; see also In re 15
Impac Mortg. Holdings, Inc. Sec. Litig., 554 F. Supp. 2d 1083, 1096 (C.D. Cal. 2008) ("vague, 16 generalized assertions of corporate optimism or statements of 'mere puffing' are not actionable 17 material misrepresentations under federal securities laws"). Finally, the Court determined that even 18 if Juniper's projections and related statements are not protected, Plaintiffs have failed to show that 19 the statements are false or misleading. July 23 Order at 21-23. 20
21 respect to safe harbor and corporate optimism. Plaintiffs concede as much, stating in their 22 opposition that: "Plaintiffs have realleged their claims that Defendants' revenue projections were 23 false and misleading. Plaintiffs respectfully disagree with the Court's conclusion that these 24
United States District Court
For the Northern District of California
Plaintiffs have not added any new allegations in response to the Court's determinations with
statements were protected by adequate cautionary language, and wish to preserve these claims in the 2 event that an appeal becomes necessary." Opp'n at 18, ECF No. 99. 3
Juniper's revenue projections are not false and misleading. See SAC ¶¶ 48-50, ECF No. 87. Those 5 paragraphs are based upon information received from a new confidential witness, CW6.*fn3 CW6 is a 6 sales finance manager who worked at Juniper from September 2005 until May 2012. Id. ¶ 48. CW6 7 was responsible for managing Jupiter's annual operating expenditure budget for the Americas and 8 conducting monthly meetings with each division vice president in the Americas. Id. Plaintiffs 9 allege that CW6 "confirmed that throughout the Class Period, the Company's touted goal of 20% 10 year-over-year revenue was not a realistic objective and was only achieved during FY10 as a result
of the accounting rules change." Id. CW6 also "confirmed that during the Class Period, Juniper's
business was adversely affected by a variety of factors including software problems relating to the 13
Plaintiffs have added three new paragraphs in response to the Court's determination that
JUNOS operating system and its incompatibility with the SRX product suite, slumping sales due to 14 delayed release dates for major routing and switching products, and lower than expected sales force 15 headcount." Id. ¶ 49. CW6 opined that Juniper's use of the new accounting rules provided it with 16
"a cheap way" to meet its announced revenue targets notwithstanding the company's ongoing 17 problems. Id. ¶ 50. 18
Court concluded that Plaintiffs had not shown that the problems rendered the company's projections 20 unattainable. See July 23 Order at 5-6, 21-23, ECF No. 84. CW6 opines that the problems made the 21 company's forecasts unrealistic. However, CW6 managed Juniper's operating expenses; the SAC 22 does not indicate that CW6 played any role in Juniper's revenue forecasting or had any experience 23 that would render CW6's opinion particularly reliable. The SAC does allege that "CW6 utilized . . . 24 the Siebel system, which tracked financial forecasts and enabled users to conduct budget-to-actual 25 variance analysis." SAC ¶ 48, ECF No. 87. It is unclear what import may be attributed to the fact 26 that CW6 "utilized" the Siebel system. To the extent that Plaintiffs mean to allege that CW6 had 27
The problems identified by CW6 were described in detail in the amended complaint; the
access to Juniper's internal financial forecasts, the Court notes the absence of any allegation that 2 those forecasts showed that Juniper would not or could not meet its long-term projections. 3
4 targets appears to be pure speculation. Plaintiffs insist that although Juniper reported revenue 5 growth of 24.4%, 22.9%, and 26.4% in 2Q10, 3Q10, and 4Q10, respectively, Juniper's actual 6 revenue growth was only 17.7%, 16.8%, and 14.8%, respectively. SAC ¶ 55, ECF No. 87. 7
Finally, CW6's statement that Juniper took "a cheap way" to meet its announced revenue
However, Plaintiffs do not suggest that the revenue recognized by Defendants under ASU 2009-13 8 and ASU 2009-14 was not real or legitimate. Even accepting Plaintiffs' "actual" revenue growth 9 figures, it is not as though Juniper was nowhere near its target -- the fact that Juniper had "actual" 10 revenue growth of 17.7% and 16.8% in 2Q10 and 3Q10 does not suggest that Defendants knew all
along that revenue growth of 20% was impossible. To the contrary, the figures suggest that Juniper
was within striking distance of its 20% target, but ultimately was not able to meet its goal. 13
Plaintiffs' allegations simply do not give rise to a reasonable inference that Juniper's projections 14 were false and misleading. 15
In addition to asserting that Juniper's long term projections were false and misleading,
Plaintiffs assert that Juniper's reported revenues were false and misleading because Defendants did 18 not adequately disclose the impact of the company's adoption of ASU 2009-13 and ASU 2009-14. 19
SAC ¶ 51, ECF No. 87. In its July 23 Order, the Court discussed at length the FASB disclosure 20 requirements for companies in the transition period between old revenue recognition rules and new 21 rules ASU 2009-13 and ASU 2009-14. July 23 Order at 7, ECF No. 84. The Court noted that 22
10-K for FY10.*fn4 Id. at 9. The Court concluded that those Forms disclosed the effect of Juniper's
2. Failure to Disclose Effect of New Accounting Rules
Juniper in fact did disclose its adoption of ASU 2009-13 and ASU 2009-14 in its Forms 10-Q and 23
adoption of the new rules in conformity with Example 1*fn5
of the FASB disclosure guidelines. Id. at 2
24. With respect to Plaintiffs' argument that Defendants "should have
made a more fulsome 3 disclosure as set forth in Example 3*fn6
of the FASB guidelines," the Court noted that "it is well 4
established that the PSLRA does not impose a duty of completeness."
Id. The Supreme Court has 5 made clear that "§ 10(b) and Rule 10b-5(b)
do not create an affirmative duty to disclose any and all 6 material
information." Matrixx, 131 S. Ct. at 1321. Applying these standards to
the allegations set 7 forth in the amended complaint, the Court
concluded that "Plaintiffs have . . . failed to plead facts 8 showing
that Defendants had an affirmative duty to provide further disclosures
beyond what was 9 already included in Juniper's SEC filings." July 23
Order at 24-25, ECF No. 84. 10
have attached as an exhibit to the SAC. See Harden Decl., SAC Ex. A, ECF No. 87-1. Harden is
the managing partner of the Litigation and Forensic Accounting Services Group of Hemming 13
Plaintiffs rely upon the declaration of their expert, Stuart H. Harden ("Harden"), which they
Morse, LLP. Id. ¶ 2. He has more than thirty years of experience in public accounting, id., and is a 14 member of the Emerging Issues Task Force of the FASB, id. ¶ 3. Harden offers his opinion that 15
Juniper "has not disclosed information during the Class Period that enables users of its financial 16 statements to understand the effect of the change in accounting principles resulting from Juniper's 17 early adoption of Accounting Standards Update ("ASU") No. 2009-13 . . . and ASU No. 2009-14." 18
Defendants' prior motions to dismiss the amended complaint. The Court granted Defendants' 22
Id. ¶ 4. He provides his reasoning in the following sixteen paragraphs of his declaration. Id. ¶¶ 5-19
Plaintiffs previously submitted Harden's declaration in support of their opposition to
motion to strike the declaration, citing United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2002), 2 for the well settled proposition that a district court normally may not consider evidence outside the 3 pleadings when addressing a motion to dismiss under Rule 12(b)(6). See July 23 Order at 15, ECF 4
No. 84. Now the Court must determine whether Plaintiffs' attachment of the Harden declaration as 5 an exhibit to their SAC alters its prior conclusion that the declaration may not be considered in the 6 context of a motion to dismiss. 7
8 all purposes." Fed. R. Civ. P. 10(c). A "written instrument" within the meaning of Rule 10(c) is "a 9 document evidencing legal rights or duties or giving formal expression to a legal act or agreement, 10 such as a deed, will, bond, lease, insurance policy or security agreement." DeMarco v. Depotech
Corp., 149 F. Supp. 2d 1212, 1220 (S.D. Cal. 2001) (internal quotation marks and citation omitted).
"The documents that satisfy this definition consist largely of documentary evidence, specifically, 13 contracts, notes, and other writings on which a party's action or defense is based." Id. (internal 14 quotation marks and citation omitted). The Ninth Circuit has held that "[a]ffidavits and declarations 15
F.3d at 908. Most district courts within the circuit have concluded that it is inappropriate to 17 consider an expert affidavit on a motion to dismiss under Rule 12(b)(6), whether or not the affidavit 18 is attached to the complaint. See, e.g., DeMarco, 149 F. Supp. 2d at 1222 (questioning "whether 19 any good reason exists for a plaintiff to attach an expert affidavit as an exhibit to a complaint"); 20
16, 2009) ("the practice of attaching to a complaint the kind of exhibits at issue here needlessly 22 complicates challenges to the sufficiency of pleadings"). One district court has reached the opposite 23 conclusion, holding that "there exists no inflexible rule governing the sort of written instrument that 24 may be attached to a pleading." The Mannkind Sec. Actions, 835 F. Supp. 2d 797, 821 (C.D. Cal. 25
This Court is constrained by the Ninth Circuit's ruling in Ritchie and, in any event, agrees
27 with the district courts that have held that expert affidavits are not appropriate exhibits to 28 complaints. This Court finds particularly persuasive the DeMarco court's observation that "[t]he
"A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for
. . . are not allowed as pleading exhibits unless they form the basis of the complaint." Ritchie, 342 16
Montgomery v. Buege, Case No. CIV 08-385 WBS KJM, 2009 WL 1034518, at *4 (E.D. Cal. Apr. 21 2011). 26
inclusion of such an affidavit in no way relieves a plaintiff of its burden to comply with the Reform 2
Act and the applicable provisions of the Federal Rules of Civil Procedure." DeMarco, 149 F. Supp. 3
2d at 1221. "Because the Court must generally assume the truth of all material factual allegations in 4 a complaint, averments in an expert affidavit carry no additional probative weight merely because 5 they appear within an affidavit rather than numbered paragraphs of the complaint." Id. at 1222. 6
12(b)(6) motion. 8
9 into the SAC itself Harden's opinions as to why Juniper's disclosures regarding its transition to 10
106-108, 116-18, 132-34, 191, ECF No. 87, with Harden Decl. ¶¶ 18-20, ECF No. 87-1. The Court
has considered all of the facts alleged in the SAC. However, Harden's "opinions cannot substitute 13 for facts under the PSLRA." Fin. Acquisition Partners L.P. v. Blackwell, 440 F.3d 278, 286 (5th 14
*4 n.6 (W.D. Wash. 2009). 16
17 regarding its adoption of ASU 2009-13 and ASU 2009-14 were so deficient as to render Juniper's 18 financials false and misleading. Juniper's Form 10-Q for the period ending March 31, 2010, the 19 first quarter in which revenue was recognized under the new rules, expressly disclosed that: 20
"Certain Revenue Arrangements That Include Software Elements" ("ASU 2009-14") on a prospective basis as of the beginning of fiscal 2010 for new and materially
modified arrangements originating after December 31, 2009.
Form 10-Q for period ending 3/31/2010 at 37, ECF No. 93-3. The Form stated that for transactions 24 initiated prior to the first quarter of 2010, revenue would be recognized under the old rules, and 25 described how revenue for multiple-element transactions is recognized under the old rules. Id. The 26
Under the new standards we allocate the total arrangement consideration to each separable element of an arrangement based on the relative selling price of each
element. Arrangement consideration allocated to undelivered elements is deferred until delivery.
Accordingly, the Court declines to consider the Harden declaration in the context of the present Rule 7
In addition to attaching the Harden declaration as an exhibit to the SAC, Plaintiffs copied
ASU 2009-13 and ASU 2009-14 were inadequate. Compare SAC ¶¶ 15-17, 65-67, 81-83, 92-94,
Cir. 2006); see also In re Jones Soda Co. Sec. Litig., Case No. C07-1366RSL, 2009 WL 330163, at 15
None of the new facts alleged in the SAC are sufficient to show that Juniper's disclosures
We adopted Accounting Standards Update ("ASU") No. 2009-13 "Multiple-Deliverable Revenue Arrangements" ("ASU 2009-13") and ASU No. 2009-14,
Form distinguished the old rules from the new rules, explaining that:
Id. The Form also provides much more detailed descriptions of the manner in which the new rules 2 are applied. Id. Finally, and of particular note here, the Form disclosed that: 3
As a result of the adoption of ASU 2009-13 and ASU 2009-14, net revenues for the first quarter of 2010 were approximately $25 million higher than the net revenues
that would have been recorded under the previous accounting rules. The increase in revenues was due to recognition of revenue for products booked and shipped during
the first quarter of 2010, which contained deliverables for which we were unable to demonstrate fair value pursuant to the previous standards. We cannot reasonably
estimate the effect of adopting these standards on future financial periods as the impact will vary depending on the nature and volume of new or materially modified
arrangements in any given period.
Id. (emphasis added). 9
Juniper's subsequent Forms 10-Q and 10-K contained similar disclosures. Each of the
Forms explained the specific criteria used by the company in recognizing revenue, and each
expressly disclosed how much additional revenue had been recognized under ASU 2009-13 and
ASU 2009-14 than would have been recognized under the old rules. See Form 10-Q for period 13 ending 6/30/2010 at 7 ("As a result of the adoption of ASU 2009-13 and ASU 2009-14, net 14 revenues for the three and six months ended June 30, 2010 were approximately $53 million and $78 15 million higher than the net revenues that would have been recorded under the previous accounting 16 rules."), ECF No. 93-4; Form 10-Q for period ending 9/30/2010 at 6 ("As a result of the adoption of 17
2010, were approximately $50 million and $128 million higher, respectively, than the net revenues 19 that would have been recorded under the previous accounting rules."), ECF No. 94; Form 10-K for 20 period ending 12/31/2010 at 32-33 ("As a result of the adoption of ASU 2009-13 and ASU 2009-14, 21 net revenue for the year ended December 31, 2010, was approximately $237 million higher than the 22 net revenue that would have been recorded under the previous accounting rules."). 23
The Court again concludes that these disclosures comply with FASB guidelines. The
24 disclosures were sufficient to inform the market that Juniper had transitioned to the new accounting 25 rules effective January 1, 2010, and that Juniper was recognizing millions of dollars more in net 26 revenue on a quarterly and yearly basis under the new accounting rules than it would have been able 27 to recognize under the old accounting rules. Plaintiffs' new allegations in essence boil down to 28 argument that Juniper had an obligation to spell out the effects of transitioning to ASU 2009-13 and
ASU 2009-13 and ASU 2009-14, net revenues for the three and nine months ended September 30, 18
ASU 2009-14 in more detail. For example, Plaintiffs allege that Defendants should have disclosed 2 the amount of deferred revenue recognized under the old accounting rules, see SAC ¶ 191(b); 3 provided a breakdown of revenue deferred under the old and new accounting rules, see SAC ¶ 4
191(c); and disclosed the impact of the new accounting rules on "operating margins, net income or 5 earnings per share," see SAC ¶ 191(a). Plaintiffs have failed to show that Juniper had an obligation 6 to provide this information, that disclosure of the information would have significantly altered the 7
438, 449 (1976), or any other basis for concluding that Juniper's financial statements were false and 9 misleading absent this additional information.*fn7 10
To state a claim for securities fraud, a complaint must "state with particularity facts giving
rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-13
"total mix" of information available to investors, see TSC Indus., Inc. v. Northway, Inc., 426 U.S. 8
3. Scienter
4(b)(2)(A). In the Ninth Circuit, "the complaint must allege that the defendants made false or 14 misleading statements either intentionally or with deliberate recklessness." In re Daou Sys., Inc., 15
411 F.3d 1006, 1015 (9th Cir. 2005). Because Plaintiffs have failed to allege any actionable false or 16 misleading statements, they necessarily have failed to allege that Defendants made such statements 17 intentionally or recklessly. Plaintiffs agree that "[t]his is the type of case where, as the Ninth Circuit 18 observed, falsity and scienter merge." Opp'n at 18 (citing In re Daou, 411 F.3d at 1015). However, 19 for the sake of completeness, the Court briefly addresses Plaintiffs' scienter allegations. 20
In its July 23 Order, the Court concluded that Plaintiffs had failed to allege sufficient facts to
21 create a strong inference of scienter under either a core operations theory or a financial motive and 22 opportunity theory. See July 23 Order at 25-30, ECF No. 84. The SAC adds only a few new 23 allegations that are even conceivably relevant to the scienter inquiry: the three new paragraphs based 24
upon information received from CW6, discussed above, and an allegation that open market sales by 2 insiders increased in 1Q11 as compared to 2009 and 2010. See SAC ¶¶ 20, 48-50. The SAC does 3 not allege that CW6 had any contact with the individual defendants; thus, CW6 offers "little, if any, 4 reliable basis from which to infer scienter." Police Ret. Sys. of St. Louis v. Intuitive Surgical, Inc., 5
No. 10-CV-03451-LHK, 2012 WL 1868874, at *20 (N.D. Cal. May 22, 2012). At most, the 6 allegations regarding CW6 might give rise to an inference that CW6 believed that Juniper's revenue 7 growth projection of 20% was unrealistic, and that because CW6 formed this belief, Juniper's 8 officials must have formed the same belief. The allegation that insider sales increased in 1Q11 does 9 not identify the "insiders." If the sales were by non-defendants, they are irrelevant to show motive 10 on the part of the individual defendants. See Wozniak v. Align Tech., Inc., No. C-09-3671, 2011 WL
2269418, at *14 (N.D. Cal. June 8, 2011) ("Sales by insiders not named as defendants, however, are
irrelevant to the determination of the named defendant's scienter."). The addition of these 13 allegations is insufficient to alter the Court's prior conclusion that Plaintiffs have failed to allege 14 facts showing scienter. 15
Section 20(a) provides that "[e]very person who, directly or indirectly, controls any person
17 liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable 18 jointly and severally with and to the same extent as such controlled person." A plaintiff suing under 19
§ 20(a) must demonstrate: (1) "a primary violation of federal securities laws" and (2) "that the 20 defendant exercised actual power or control over the primary violator." Howard v. Everex Sys., 21
Section 20A creates liability for "[a]ny person who violates any provision of this chapter or
23 the rules or regulations thereunder by purchasing or selling a security while in possession of 24 material, nonpublic information." 15 U.S.C. § 78t-1. A plaintiff suing under § 20A must show an 25 independent violation of the securities laws. Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 26
Because Plaintiffs have failed to state a claim for a primary violation of the securities laws,
Plaintiffs likewise have failed to state a claim for violation of §§ 20(a) or 20A of the Exchange Act.
B. Sections 20(a) and 20A
Inc., 228 F.3d 1057, 1065 (9th Cir. 2000). 22
n.15 (9th Cir. 2002). 27
The Ninth Circuit has held that leave to amend should be granted with "extreme liberality."
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). When considering 4 whether to grant leave to amend, a district court should consider several factors: undue delay, bad 5 faith, or dilatory motive; repeated failure to cure deficiencies by amendments previously allowed; 6 undue prejudice to the opposing party; and futility of amendment. Foman v. Davis, 371 U.S. 178, 7
182 (1962); Eminence Capital, 316 F.3d at 1052. There is no evidence of undue delay or bad faith 8 on the part of Plaintiffs or of prejudice to Defendants if leave to amend were granted. However, the 9
Court's July 23 Order set forth the deficiencies in the amended complaint in great detail, and 10
Plaintiffs were unable to cure those deficiencies when granted leave to amend. Based upon the new
allegations in the SAC, it does not appear that Plaintiffs would be able to state a viable claim even if
they were afforded another opportunity to amend. The Court's July 23 Order informed Plaintiffs 13 that the action would be dismissed with prejudice if the deficiencies identified therein were not 14 cured by the SAC. Accordingly, the motion is GRANTED WITHOUT LEAVE TO AMEND, and 15 the action is DISMISSED WITH PREJUDICE. The Court vacates the July 17, 2013 Case 16
Management Conference. The Clerk shall close the file. 17
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