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March 13, 1985
RAYMOND J. DONOVAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, APPELLANT IN NO. 84-5217, APPELLEE IN NO. 84-5254v.DIALAMERICA MARKETING, INC., APPELLANT IN NO. 84-5254, APPELLEE IN NO. 84-5217
Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 81-4020).
Gibbons, Becker, Circuit Judges, and Van Dusen, Senior Circuit Judge.
Opinion OF THE COURT
BECKER, Circuit Judge.
This opinion concerns an appeal by the Secretary of Labor (the "Secretary") from the district court's judgment for defendant, DialAmerica Marketing, Inc., in a action brought by the Secretary under the Fair Labor Standards Act, 29 U.S.C. § 201-219 (1982) (the "FLSA"). The Secretary alleged that DialAmerica had failed to comply with the minimum-wage and record-keeping provisions of the FLSA. The district court determined that the two groups of workers in question, persons who research telephone numbers for DialAmerica in their homes and those who also distribute telephone-research work to other home researchers ("distributors"), are independent contractors, not "employees" subject to the provisions of the FLSA. The court refused, however, to grant defendant's request for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982), holding that the Secretary's position in the case, though incorrect, was substantially justified.
Because we believe the district court misapplied the relevant legal test for determining "employee" status under the FLSA, we hold that the court erred in concluding that the home researchers were not employees of DialAmerica. On the other hand, we hold that the district court did not err in its conclusion that the distributors were independent contractors rather than employees. Moreover, we agree with the court's determination that the Secretary's position in this case was substantially justified and therefore that DialAmerica is not entitled to an award of attorneys' fees. Accordingly, we will in part affirm and in part reverse the judgment of the district court. Further, we will remand the case so that the district court may determine whether DialAmerica has in fact complied with the requirements of the FLSA in connection with its employment of the home researchers.
I. FACTS*fn1
DialAmerica Marketing, Inc., is a telephone marketing firm that operates in twenty states and maintains its principal place of business in Teaneck, New Jersey. A major aspect of DialAmerica's business is the sale of magazine renewal subscriptions by telephone to persons whose subscriptions have expired or are near expiration. Under this "expire" program, publishers supply DialAmerica with the names and addresses of subscribers, and DialAmerica locates phone numbers for these subscribers and telephones them in an effort to sell renewal subscriptions.
Initially, DialAmerica located subscribers' phone numbers by employing in-house researchers who would find numbers by consulting telephone books and calling directory-assistance operators. In 1976, DialAmerica initiated its home-researcher program as a method of increasing its capacity to locate needed telephone numbers. Under the program, persons would travel to DialAmerica's office in Teaneck and pick up cards, each of which contained the name and address of a subscriber whose telephone number was needed. They would then take these cards home, use telephone books or operators to locate the telephone numbers of the persons listed, write the numbers on the cards in a specified manner, and then return the completed cards to DialAmerica's office. The home-research program remained in effect until 1982, when it was discontinued.
In June 1979, DialAmerica began a computerized telephone-number search operation. During the period from 1979 to 1982, this operation accounted for the locating of about 50% of all telephone numbers searched by DialAmerica. Another 20% of the numbers were located by the company's in-house researchers. The home-search program accounted for the discovery of about 4%-5% of all numbers sought: the remainder apparently were never found.
Upon deciding to begin the home-research program, DialAmerica sought researchers by placing a total of five newspaper advertisements, the last of which ran in May 1979. After that date, prospective home researchers approached DialAmerica after learning about the program from others. Those desiring such work met with an officer of the company. During the meeting, they were instructed how properly to complete the magazine expire cards, and they were asked to sign a document labeled an "Independent Contractor's Agreement." DialAmerica never rejected anyone who applied for such work, although it did subsequently discharge some home researchers who performed their work inadequately.
Upon signing the agreement to do home-research work, a worker was given an initial box of 500 cards to be researched. The worker was expected to set up an appointment to return the cards one week later. Appointments were designed to prevent too many of the home researchers (generally women some of whom brought their small children along) from being present in the office at one time.
Home researchers were free to choose the weeks and hours they wanted to work and the number of cards they wished to research (subject to a 500-card minimum per batch and to the sometimes-limited availability of cards). DialAmerica instructed the researchers not to look for the phone numbers of schools, libraries, government installations, or hospitals. The researchers were instructed to keep all duplicate cards separate. DialAmerica required the use of a black ink or Flair pen and sold such pens to the researchers. The researchers were required to place their initials and the letter "H" (for home researcher) on each card they completed. When DialAmerica installed a machine to read and process the completed cards automatically, DialAmerica required that the home researchers place numbers on the cards by writing them in ink around dots pre-printed on the cards. Finally, the home researchers were instructed not to wear shorts when they came to the office to pick up or deliver cards. DialAmerica did not, however, require the home researchers to keep records of the hours that they worked.
During the course of this program, six or seven of the home researchers acted as distributors for DialAmerica, picking up and delivering the cards of other home researchers. In some cases, the distributors recruited new home researchers and instructed them as to the proper method of completing the cards. Initially, DialAmerica instructed the distributors to require each of their distributes to sign the same independent contractor's agreement that was given to the other home researchers. DialAmerica retained copies of these signed agreements. Later in the program, however, DialAmerica chose not to require distributors to sign the agreements, and it discarded the ones that it had in its possession.
When the program began in 1976, DialAmerica paid its home researchers five cents for every completed telephone-number card. At the same time, DialAmerica was paying its in-house researchers the minimum-wage hourly rate. The piece rate paid to home researchers was eventually raised to seven cents and then to ten cents per card. On special projects, DialAmerica set the piece rate higher to compensate for the lower percentage of correct numbers that were likely to be found. Generally, one week after a home researcher had returned a group of cards, DialAmerica would make payment to that researcher of a check equal to the piece rate times the number of cards completed. DialAmerica made no deductions from these checks. Distributors were paid a lump sum equivalent to one cent more than the going piece rate for every completed card they returned to DialAmerica, regardless of whether the card had been completed by them or their distributees. Initially, DialAmerica instructed the distributors to pay distributees the going piece rate and to keep the remaining one cent per card for themselves. Later, however, DialAmerica gave no instructions as to the amount to be paid to distributees, allowing the distributors to negotiate their own piece rates.
The Secretary of Labor filed the complaint in this action in the United States District Court for the District of New Jersey on December 30, 1981, alleging that DialAmerica was willfully compensating the home researchers and distributors at a rate below the minimum wage, in violation of 29 U.S.C. §§ 206, 215(a)(2), and that DialAmerica had willfully failed to keep adequate records of its employees' wages, hours, and other conditions of employment, in violation of 29 U.S.C. §§ 211, 215(a)(5). The Secretary sought to enjoin DialAmerica from further violating the FLSA and to obtain other appropriate relief, including the payment of wages found to be due and owing. DialAmerica denied the Secretary's allegations, contending that its home researchers and distributors were not "employees" under the FLSA. Nevertheless, on June 1, 1982, DialAmerica discontinued its home-researcher program as a result of the filing of this lawsuit.
At a status conference, the district court, believing that there were no material facts in dispute, suggested to counsel that both parties attempt to stipulate the facts in the case and then file cross-motions for summary judgment.*fn2 Counsel agreed to do so, but each side reserved the right to present testimony on any issues of fact that remained in dispute. As it developed, these remaining issues of fact included:
(1) the extent to which home researchers and distributors were dependent on DialAmerica;
(2) the extent to which they had an opportunity for profit or loss;
(3) the extent to which they exercised initiative, business judgment, or foresight in their activities;
(4) the extent of any financial investment in conjunction with their work for DialAmerica; and
(5) the extent to which the services provided by the home researchers and distributors were an integral part of DialAmerica's business.*fn3
The district court then held a two-day evidentiary hearing in which the Secretary presented ten witnesses and DialAmerica presented seven witnesses. On January 26, 1984, in an order accompanied by a letter opinion, the court granted the motion for summary judgment which DialAmerica had filed pursuant to Fed. R. Civ. P. 56. The court subsequently filed an order and accompanying letter opinion, denying DialAmerica's request for attorneys' fees. The Secretary now appeals the district court's grant of summary judgment (No. 84-5217). DialAmerica appeals the court's denial of its application for the award of attorneys' fees (No. 84-5245). Both appeals were timely. This court has jurisdiction pursuant to 28 U.S.C. § 1291 (1982).
Given that there were several disputed issues of material fact -- which the district court resolved only after taking testimony from seventeen witnesses -- we find it difficult to understand why the court characterized its decision as a summary judgment. Although the court inappropriately labelled its judgment, its course of action was correct. The two-day hearing was sufficient for the court to find the relevant facts, and we would gain nothing beyond delay by reversing the district court's grant of summary judgment and remanding the case for further fact-finding. It appears that there exists no additional documentary evidence or testimony which, if presented at trial, would have aided significantly in the adjudication of this case. Thus, we will simply treat the court's letter opinions as the findings of fact and conclusions of law required by Fed. R. Civ. P. 52,*fn4 and its orders as judgments entered after trial pursuant to Fed. R. Civ. P. 58. We will review the court's findings of fact under a "clearly erroneous" standard. Our review of the district court's legal conclusions is, of course, plenary.
Congress and the courts have both recognized that, of all the acts of social legislation, the Fair Labor Standards Act has the broadest definition of "employee." See 81 Cong. Rec. 7657 (remarks of Senator Hugo L. Black); Equal Employment Opportunity Commission v. Zippo Manufacturing Co., 713 F.2d 32, 37 (3d Cir. 1983). In deterimining whether a worker is an "employee" of another person or organization within the purview of the FLSA,*fn5 the Supreme Court, in Rutherford Food Corp. v. McComb, 331 U.S. 722, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947), emphasized that the circumstances of the whole activity should be examined rather than any one particular factor. Id. at 730; see also Bartels v. Birmingham, 332 U.S. 126, 127, 91 L. Ed. 1947, 67 S. Ct. 1547 (1947) (determination of "employee" status under the Social Security Act); United States v. Silk, 331 U.S. 704, 705, 91 L. Ed. 1757, 67 S. Ct. 1463 (1947) (same).
In Rutherford, the Court held that boners who worked in a slaughterhouse were employees under the FLSA, even though they were paid collectively on a piece-rate basis, owned their own tools, and worked under individual employment contracts. Rutherford, 331 U.S. at 730. Specific factors examined by the Rutherford Court in rendering its decision included: whether the work being done is part of the integrated unit of production: whether the workers shift from one workplace to another as a unit: whether managers from the alleged employer keep in close touch with the workers: and whether the work is more like piecework than an enterprise dependent for success on the workers' initiative, judgment or foresight. Id. at 729-30.
Recently, the Court of Appeals for the Ninth Circuit, in Donovan v. Sureway Cleaners, 656 F.2d 1368 (9th Cir. 1981), refined the test for "employee" status originally set forth initially by the Supreme Court in Rutherford. This test lists six specific factors for determining whether a worker is an "employee":
1)the degree of the alleged employer's right to control the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of performance of the working relationship; 6) whether the service rendered is an integral part of the alleged employer's business.
656 F.2d at 1370 (quoting Real v. Driscoll Strawberry Associates, 603 F.2d 748, 754 (9th Cir. (1979)).
In addition, Sureway Cleaners instructs that neither the presence nor absence of any particular factor is dispositive and that courts should examine the "circumstances of the whole activity," 656 F.2d at 1370 (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947)), and should consider whether, as a matter of economic reality, the individuals "are dependent upon the business to which they render service." 656 F.2d at 1370 (citing Bartels v. Birmingham, 332 U.S. 126, 130, 91 L. Ed. 1947, 67 S. Ct. 1547 (1947)). The Sureway Cleaners test has been previously cited with approval by this court in dicta. See Zippo, 713 F.2d at 36-37 (3d Cir. 1983). We now adopt it as the standard for determining "employee" status under the FLSA, and we will proceed to analyze the district court's decision in relation thereto.
The district court concluded that neither those persons who performed telephone-number research at home nor those who distributed search cards to the home researchers were "employees" under the FLSA. In reaching its conclusion, the court did not apply the Sureway Cleaners test as such. It did, however, rely on the judicial decisions upon which the Sureway Cleaners test is based. Moreover, the court identified as relevant all but one of the elements of the Sureway Cleaners test.*fn6 Nevertheless, the court's opinion is based on only two of these elements: (1) the extent of DialAmerica's control over the home researchers; and (2) the extent to which the home researchers were economically dependent on DialAmerica. The court reasoned that, because these researchers worked at home without supervision and at the dates and times of their own choosing, DialAmerica exercised little control over them. Moreover, the court found that the home researchers were not economically dependent on DialAmerica because, for most of them, the money they earned from DialAmerica was not the primary source of family income, but merely "pocket money." We turn to an examination of the district court's analysis in the context of the entire Sureway Cleaners test -- the six itemized factors and the economic-realities consideration.
In its opinion, the district court conceded that three of the six Sureway Cleaners factors, when applied to the home researchers, weighed in favor of the conclusion that they were "employees." As the district court stated:
It cannot be denied that, for the most part, the
investment of these workers was not great, the
opportunity for profit and loss was small and the
skills required were few.
Donovan v. DialAmerica Marketing, Inc., Civil No. 81-4020, letter op. at 7 (D.N.J. Jan. 26, 1984). These findings are not only supported in the record, they are clearly correct.*fn7
The district court devoted most of its discussion, however, to explaining that defendant had very little control over the manner in which the home researcher did their work. The court emphasized that the home researchers had the freedom to work at any time and for as many hours as they desired, and that they were not directly supervised by defendant. See id. 4-5.*fn8 Had the district court been analyzing the status of a group of in-house workers, the court's emphasis on these facts would have been appropriate. But in the context of this case -- one involving homeworkers -- the court's emphasis was misplaced.
That the home researchers could generally choose the times during which they would work and were subject to little direct supervision inheres in the very nature of home work. Yet, courts have held consistently that the fact that one works at home is not dispositive of the issue of "employee" status under the FLSA. In a seminal decision, Goldberg v. Whitaker House Cooperative, 366 U.S. 28, 6 L. Ed. 2d 100, 81 S. Ct. 933 (1961), the Supreme Court held that members of a cooperative who made knitted goods in their homes and were pain on a piece-rate basis,*fn9 were "employees" under the FLSA. Id. at 33. The Court examined, inter alia, the legislative history of the FLSA and determined that, in general, homeworkers were intended to be encompassed by the Act. See id. at 30-32. The Court then examined the specific homeworkers at issue and, upon analyzing the economic reality of their whole situation, concluded that they were indeed "employees":
The members are not self-employed; nor are they independent, selling their products on the market for whatever price they can command. They are regimented under one organization, manufacturing what the organization desires and receiving the compensation the organization dictates. Apart from formal differences, they are engaged in the same work they would be doing whatever the outlet for their products. The management fixes the piece rates at which they work; the management can expel them for substandard work or for failure to obey the regulations. The management, in other words, can hire or fire the homeworkers.
Goldberg, 366 U.S. at 32-33 (footnote omitted).
Other federal court rulings have been consistent with Goldberg, holding that homeworkers in various situations were "employees" under the FLSA.*fn10 Thus, the facts relied on by the district court in concluding that defendant had only a slight degree of control over the manner in which the home researchers did their work were, to a large extent, insignificant. The district court therefore misapplied and overemphasized the right-to-control factor in its analysis.
The district court did not apply two other factors specified in the Sureway Cleaners test: the degree of permanence of the working relationship and whether the service rendered is an integral part of the alleged employer's business. The working relationship between the home researchers and DialAmerica was, for the most part, not a transitory one. Although there was testimony presented that several researchers performed telephone calling services for other organizations following the termination of their work for the defendant, this was not true generally. Moreover, there was no evidence to show that any home researcher performed similar services for another organization while he or she was working for the defendant. In short, the home researchers did not transfer their services from place to place, as do independent contractors. See Donovan v. Sureway Cleaners, 656 F.2d 1368, 1372 (9th Cir. 1981). Each worked continuously for the defendant, and many did so for long periods of time. As such, the permanence-of-working-relationship factor indicates that the home researchers were "employees" of the defendant.
The district court also did not expressly consider whether the service rendered by the home researchers was an integral part of the defendant's business. Given the evidence in the record, we conclude that it was. Although DialAmerica contends that beginning in June 1979, the home researchers accounted for the location of only 4%-5% of the total number of telephone numbers sought by defendant, this contention bears little relevance to the integral-economic-relationship factor. The factor relates not to the percentage of total work done by the workers at issue but to the nature of the work performed by the workers: does that work constitute an "essential part" of the alleged employer's business? See Sureway Cleaners, 656 F.2d at 1372; Hodgson v. Ellis Transportation Co., 456 F.2d 937, 940 (9th Cir. 1972). In other words, regardless of the amount of work done, workers are more likely to be "employees" under the FLSA if they perform the primary work of the alleged employer.
In this case, the primary work of the defendant is locating phone numbers of various people and calling them to sell particular products. The home researchers were engaged in the location of phone numbers, and their work was therefore an integral part of defendant's business. Thus, consideration of the integral-economic-relationship factor also weighs in favor of the conclusion that the home researchers were "employees" of the defendant.
The final consideration included within the Sureway Cleaners test is whether, as a matter of economic reality, the workers at issue "'ate dependent upon the business to which they render service.'" Sureway Cleaners, 656 F.2d at 1370, (quoting Bartels v. Birmingham, 332 U.S. 126, 130, 91 L. Ed. 1947, 67 S. Ct. 1547 (1947)). The district court clearly misinterpreted and misapplied this part of the analysis. The court reasoned that, because many of the home researchers used the money they earned from their work only as a secondary source of income for their households, they were not economically dependent upon DialAmerica. There is no legal basis for this position. The economic-dependence aspect of the Sureway Cleaners test does not concern whether the workers at issue depend on the money they earn for obtaining the necessities of life, as the district court suggests. Rather, it examines whether the workers are dependent on a particular business or organization for their continued employment. See Bartels v. Birmingham, 322 U.S. at 130; Equal Employment Opportunity Commission v. Zippo Manufacturing Co., 713 F.2d at 37; Usery v. Pilgrim Equipment Co., 527 F.2d 1308, 1311 (5th Cir.), cert. denied, 429 U.S. 826, 97 S. Ct. 82, 50 L. Ed. 2d 89 (1976).*fn11
The home researchers in this case were not in a position to offer their services to many different businesses and organizations. They worked on a continuous basis with DialAmerica and were able to work only when and if DialAmerica was in need of their services. Consequently, the home researchers were economically dependent on DialAmerica, indicating that they were indeed "employees" of the defendant under the FLSA.
In summary, of the six factors and one general consideration identified by Sureway Cleaners as the basis for determining "employee" status, only one factor weighs in favor of the conclusion that the home researchers were not "employees." And that factor, the right-to-control factor, was overemphasized by the district court because homeworkers by their very nature are generally subject to little supervision and control by an alleged employer. Federal courts have consistently held homeworkers of many varieties to be "employees" under the FLSA.
Thus, although most of the facts in this case are undisputed and we accord due deference to the district court's findings as to the remaining disputed facts, we nevertheless must conclude, as a matter of law, that the district court erred in holding that the home researchers were not "employees" of the defendant under the FLSA. Accordingly, we will reserve that portion of the district court's judgment and remand so that the district court may calculate the amount of back pay, if any, to which the home researchers are entitled under the minimum-wage provisions of the Act.
The district court concluded that the six or seven home researchers who distributed telephone-number research cards to the other home researchers were also not "employees" under the FLSA. In reaching its decision, the court again did not consider all of the factors specified in the Sureway Cleaners test for determining "employee" status. Nevertheless, upon application of the entire Sureway Cleaners test, we agree that the distributors were not "employees" and were not subject to the minimum-wage protection of the FLSA for their work in delivering cards to and from other home researchers.*fn12
With respect to the right-to-control factor, the district court correctly found that the defendant exercised little control over the distributors' delivery of cards. The distributors were permitted to recruit their own distributees, and some of them did so. Although the defendant initially kept records of all distributees, it eventually relied on the distributors to maintain those records.
Moreover, we also defer to the district court's finding that the distributors risked financial loss if they did not manage their distribution network properly. The distributors were responsible for paying all of their expenses, which consisted primarily of transportation expenses. And each distributor had the authority to set the rate at which its distributees would be paid.*fn13 Thus, theoretically at least, distributors could lose money if their expenses outweighed their revenues.
The distributors also had to make an investment in their business. Again, this investment consisted primarily of transportation expenses.*fn14 One distributor also used paid advertising in an effort to gain more distributees. Consideration of the investment factor, therefore, supports the conclusion that the distributors were independent contractors.
The distributors' need for special skills to do their work was another finding of fact identified by the district court as a basis for its conclusion. The distributors needed to possess some degree of managerial skill to ensure that their revenues exceeded expenses. Moreover, it was necessary for the distributors to be able to keep records regarding the number of cards delivered to, and completed by, each distributee so that proper payment could be made. Some distributors benefitted from their skill in persuading others to become distributees, and they certainly exercised business-like initiative in this regard. The "skill" factor favors independent-contractor status.
In terms of the permanence of the working relationship, many distributors did perform delivery work for DialAmerica continuously for several years. And there was no evidence that the distributors were doing similar delivery work for any other organizations, although they were free to do so. Thus, consideration of this factor would weigh in favor of treating distributors as "employees" of DialAmerica.
The distribution of cards to home researchers, per se, is probably not an integral part of defendant's business. As stated previously, defendant's business consists primarily of locating telephone numbers for various people and calling them to sell particular products. The delivery of telephone-number search cards to home researchers is more properly characterized as an incident to defendant's business, rather than an integral part of it. As such, application of this factor in the Sureway Cleaners test favors the conclusion that the distributors are not "employees" as defined by the FLSA.
Finally, the Sureway Cleaners test examines the circumstances of the whole activity and considers whether, in this case, the distributors are economically dependent on the defendant. It is more likely than not that the distributors were economically dependent. Although defendant did not prohibit these persons from performing distribution work for other organizations, there was no evidence that any of them did so, either during or following the period in which they worked for the defendant. Presumably, all of the distributors ceased providing such work for them. Thus, for the most part, the distributors were dependent on DialAmerica for continuing their work as distributors.
In summary, all of the factors in the Sureway Cleaners test, when applied to the distributors, do not lead to the same conclusion. Having considered the evidence with appropriate deference to the district court's fact-finding, we note that some factors support the conclusion that the distributors are "employees," while others do not. Although the question is admittedly close, we hold that the distributors qua distributors were not employees under the FLSA because they operated more like independent contractors than like employees of DialAmerica. The distributors were subject to minimal oversight or control over their distribution activities. Moreover, they faced a real opportunity for either a profit or loss in their operations, depending upon the amount of their investment and their skills in management. Finally, their work as distributors was not an integral part of DialAmerica's business and thus was less likely to be performed by an "employee" of DialAmerica.
As a result of our decision in this case, DialAmerica may be held liable for not paying the home researchers the minimum wage, even though the distributors -- who are held not to be employees of DialAmerica -- had discretion in setting the pay rates of some of these home researchers (their distributees). Such a result is possible because the distributors' status as independent contractors does not necessarily imply that they have the sole responsibility of paying their distributees the minimum wage required by the FLSA. Another employer -- in this case, DialAmerica -- may share that responsibility. See Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 756 (9th Cir. 1979) (the independent-contractor status of one party standing in the position of the direct employer of crop growers does not, as a matter of law, prevent the contractee from being a joint employer of these crop growers under the FLSA); Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir.) (claimed independent-contractor status of crew leaders, who supplied field workers for defendant-harvester, did not negate the possibility that defendant was an "employer" of the workers for FLSA purposes), cert. denied sub nom. Griffin & Brand of McAllen, Inc. v. Brennan, 414 U.S. 819, 94 S. Ct. 43, 38 L. Ed. 2d 51 (1973); see also Boire v. Greyhound Corp., 376 U.S. 473, 481, 11 L. Ed. 2d 849, 84 S. Ct. 894 (1964) (the independent-contractor status of firm under contract with defendant to clean bus terminals does not affect determination whether the cleaners are employees of defendant for purposes of the National Labor Relations Act).
Since all the home researchers were employees of DialAmerica -- by application of the relevant legal test -- it was DialAmerica's responsibility to ensure that the distributors paid their respective distributees the minimum wage. Indeed, when distributorships were first initiated, DialAmerica instructed the distributors on precisely the amount of money to be paid to each distributee. Although DialAmerica subsequently granted its distributors some discretion in paying distributees, DialAmerica demonstrated that it could control the rate of payment to distributees if it so desired.
Following the district court's grant of defendant's motion for summary judgment in this action brought by the Secretary of Labor, defendant filed with the court an application for attorneys' fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1982).*fn15 The Act provides in relevant part that "a court may award reasonable fees and expenses of attorneys, ... to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court hading jurisdiction of such action." 28 U.S.C. § 2412(b) (1982). The Act provides an exception to the award of attorneys' fees if "the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The district court denied defendant's application for attorneys' fees in an order and accompanying letter opinion dated March 5, 1984. Although it found defendant to be a "prevailing party" as defined by the Act, the court found that the Secretary's position was "substantially justified" under the three-part test set forth by this court in Dougherty v. Lehman, 711 F.2d 555 (3d Cir. 1983). DialAmerica appeals this judgment.
By our decision, DialAmerica does not prevail on the primary issue in this case, namely whether home researchers were "employees" under the FLSA. Yet, DialAmerica prevails on the less significant issue of the status of the distributors. We will therefore assume, without deciding, that DialAmerica remains a "prevailing party" for purposes of the EAJA. We will now turn to a review of the district court's determination that the position of the United States was "substantially justified."
The position of the United States includes not only its litigation position but also the agency position that made the lawsuit necessary. Dougherty, 711 F.2d at 563 n. 12; Natural Resources Defense Council, Inc. v. EPA, 703 F.2d 700, 708 (3d Cir. 1983).*fn16 Substantial justification "constitute[s] a middle ground between an automatic award of fees to a prevailing party and an award made only when the government's position was frivolous." Dougherty, 711, F.2d at 563. The government has the burden of proving that it was substantially justified. Id. at 561. To satisfy its burden the government must demonstrate (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis inlaw for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced. Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 593 (3d Cir. 1984); Dougherty, 711 F.2d at 564.
The district court determined that the Secretary of Labor had satisfied its burden of proving the existence of each element in this three-part test. We agree.*fn17
The district court was correct in its conclusion that there was a reasonable basis in truth for the facts alleged by the Secretary. Most of the facts in the case were not disputed by the parties, and those that were disputed were in the nature of inferences drawn from the undisputed basic facts. Moreover, we concur with the court's determination that there existed a reasonable basis in law for the Secretary's position that the distributors were "employees" of DialAmerica, rather than independent contractors. In formulating its position, the Secretary relied on numerous judicial decisions which held that workers who perform their duties outside the office or factory and who are paid on a piece-rate basis are nevertheless "employees" under the FLSA. See supra note 11. Finally, we agree with the district court that the facts alleged by the Secretary reasonably supported the legal theory he advanced. As we observed in our analysis of the distributors' status, not all of the relevant factors support our conclusion. Analysis of the permanency-of-working- relationship factor as well as the economic-dependence consideration supports the Secretary's position that the distributors are employees rather than independent contractors. The closeness of the case, see supra p. 23, is also evidence of substantial justification. We therefore concur with the district court's determination that the Secretary of Labor's position in this case was substantially justified. Thus, we will affirm the court's order denying DialAmerica's application for attorneys' fees.
In summary, therefore, we hold that the persons who performed telephone-number research at home were "employees" of DialAmerica under the FLSA. DialAmerica was obligated to pay them the applicable minimum wage and to comply with the other provisions of the Act. Those home researchers who also distributed telephone-number research cards to other home researchers were not "employees" while they were engaged in the act of distributing. Therefore, they were not entitled to the minimum-wage protection of the FLSA for their distribution work. Finally, we hold that DialAmerica is not entitled to an award of attorneys' fees under the Equal Access to Justice Act.
Accordingly, we will affirm in part and reverse in part the judgment of the district court. We will remand so that the court may determine whether DialAmerica has satisfied the minimum-wage and record-keeping provisions of the FLSA with respect to the home researchers. If the court determines that DialAmerica has not complied with the FLSA, the court may then order appropriate relief, including the payment of back wages.
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3004 Earth Olympics
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- "All this inspiring multi-culturalism is angrying up my blood!"
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The 3004 Earth Olympiad is an olympic events that was set in the United States of America on Earth in the year 3004. Bender took part under a female persona, Coilette. Hermes also took part in the 100M Limbo using the Professor's Flabo Dynamic Suit.
Nations in AttendanceEdit
- Barbados
- Belgium
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- Chile
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- Devil's Island
- Jamaica
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- Robonia
- Republic of French Stereotypes
- South Korea
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Term Paper:
Demand Elasticity of Gasoline
With gas prices across the country reaching record levels today, understanding the theory of demand elasticity of gasoline has assumed new importance for policymakers and consumers alike. To help understand what motivates consumers to make a purchase decision about a commodity such as gasoline, this paper provides an overview of the economic theory of demand elasticity, empirical data relating to demand elasticity for gasoline, followed by an analysis of the data. A summary of the research is provided in the conclusion.
Economic Theory of Demand Elasticity
Demand elasticity relates to how much consumers are willing to pay for something based on their individual needs and wants on an aggregated basis; economists measure this degree of elasticity along a price elasticity of the demand curve. According to Robert E. Kuenne (1968), "The degree of downward reaction of the amount demanded to a price rise or upward reaction to a price fall is measured by the economist at any given point on the demand curve with a concept called the price elasticity of the demand curve" (127). Therefore, the degree by which quantity changes as price changes is the percentage change in quantity to the percentage change in price (% Change in Quantity / % Change in Price) (Renner 2005:5).
According to Renner, inelastic demand could reasonably be expected for goods that shared the following characteristics:
Goods (or services) that have no close substitutes;
Goods (or services) that are considered necessities (i.e., not easily replaced); and,
Goods (or services) that are inexpensive and represent a small part of a consumer's budget.
The author adds that the shorter the time period of adjustment to a price change, the less elastic the market demand will be. "For instance," he says, "gasoline is considered an inelastic good. A 20% increase in its price would not in the United States result in a 20% decrease in quantity demanded, the response would be much less. Gasoline has no close substitutes; gasoline (in much of the United States) is a necessity and has only a moderate affect on budgets (for the non-poor)" (emphasis added) (6). At least for the present, therefore, this is the nature of the market for gasoline at the consumer level, with individual choices relating to how much that trip to Aunt Martha's might really mean, compared to the ability to get to work all next week.
Beyond these considerations, though, Renner suggests that in the short-term, "given the individual's car's gasoline requirements, and the distance between home, job, and school, there can be little adjustment of demand to gasoline price" (7). If given a sufficient amount of time and motivation, social changes could be made in the form of improved technologies that provided superior gas mileage over models today, improved mass transit systems could be developed and introduced and people could move closer to where they worked or opt for telecommuting positions; however, these initiatives would only have any discernible impact on the demand for gasoline at the consumer level over the long-term (Renner 8).
Empirical Data Relating to Demand Elasticity
Notwithstanding the observations made by Renner as they apply to the "non-poor," in contrast to the consumer market, the industry demand for gasoline remains fairly inelastic. In order to remain in business and stay competitive, for example, industries will require a comparable amount of fuel from month to month; however, from the perspective of the average consumer, gasoline at $2.00+ a gallon might appear to be a luxury for anything besides getting to and from work, shopping for groceries, doctor's appointments and the like. In many cases, weekend trips out of town or to the lake might be postponed or cancelled because of lack of discretionary income for the gasoline required. While these considerations might not become so readily apparent to the affluent, if a family is already struggling to make ends meet, increases in gasoline prices would have an inordinate effect on the consumer's ability and willingness to buy.
For example, Dermont J. Hayes (1989) cites the example of the impact of an adverse but temporary setback on an already heavily indebted consumer. "Additional credit may be available," he says, "but only at considerable expense and with some delay. In the interim, cash would be scarce. Items that cannot be purchased on credit (food and some services) bear the brunt of the adjustment while other categories suffer only to the extent that credit is unavailable. The attempt to stretch the budget to the next paycheck alters all the parameters of the demand system" (2). In these cases, consumers become more price conscious and purchase only the basic requirements. The analysis of the consumer's decision to seek additional credit to meet short-term needs is complex and relates to the relative interest rates on credit and savings, the expected change in the price of durables, and the ability to obtain additional credit to counteract the inflexibility that such additional repayments will undoubtedly introduce into future budgeting decisions (Hayes 2).
According to Hayes, the intimate relationship between the availability of credit for the purchase of goods and services that would otherwise be considered routine can readily be found in gasoline and oil, other nondurables, household operations, and various transport services. A possible explanation for this type of behavior is that consumers tend to cut back somewhat on travel and household upkeep when their liquidity is low; however, it is also possible that fewer of the purchases made by these consumers are able to be made using credit cards. According to Hayes, this would also serve to explain why sectors such as clothing, motor vehicles, other durables, and housing services (goods that are normally regarded as luxuries) would increase their share during periods of tight liquidity. "Whenever one share falls, however," Hayes notes, "at least one other must rise. The results do not necessarily imply that people spend more on these goods, only that they fail to reduce purchases as deeply as they do for those commodities whose shares fall" (3).
In their study, "Dynamic Pricing in Retail Gasoline Markets," Severin Borenstein and Andrea Shepard (1996) note that prior research indicates that pricing in retail gasoline markets is not well characterized by standard competitive models, but studies have shown that U.S. gasoline stations have sufficient local market power to implement price discrimination across gasoline grades or service levels (431). There are a number of theories concerning how gasoline is actually priced in the United States, and there are some important variables that help shape the final cost to the typical consumer. For example, according to Borenstein and Shepard (1996), "Wholesale gasoline price constitutes about 85% of the retail price. The other significant contributors to the marginal retail cost are (some) labor costs and the costs of delivering gasoline from the terminal to the retail outlet. Neither of these other components is nearly as volatile as the wholesale price" (430). Even the location of the gasoline outlet itself can contribute to both demand and the prices that are tolerated (Borenstein 354). Finally, the research suggests that, following the terrorist attacks of September 11, even the potential for shock news can now compel many American consumers to try to "stock up" on necessities, including gasoline (Davis & Hamilton 2004:17).
Analysis of the Data
In his analysis of price elasticity of demand, Donald E. Renner (2005) notes that the quantity demanded for a consumer at different prices can be aggregated into a market demand. "Market demand, then," he says, "s simply, the sum of all individual demand relationships" (1). As can be seen in Figure 1 below, there are two individual demand relationships from different consumers which have their quantities demanded combined (or sum up) to the market quantities in the far right graph.
The vertical axes show price (which remains the same for individual and market demand curves), while the horizontal axes shows quantity. The author also points out that because prices remain the same for all three graphs, the single line (P) (representing the same price) has been used to show the price in the horizontal line across all three graphs.
Figure 1. Individual and Market Demand Curves (Source: Renner 2005:3).
The market quantities shown in the graphs may be in thousands or millions of units (depending on the size of a market); at any rate, the demand curve reflects an inverse relationship between the price of a good and the quantity demanded. According to Rennder, "This relationship is considered so pervasive, particularly for the market demand, that in economics it has been termed the law of demand: The higher the price the lower the quantity demanded, and the lower the price the higher the quantity demanded" (4). While there are exceptions, the author suggests that most goods and services, including gasoline, are thought to follow the law of demand.
As shown in Figure 1 above, the middle graph reflects a consumer who is less sensitive to pricing consideration because the demand curve is closer to vertical with a relatively inelastic…[continue]
"Demand Elasticity Of Gasoline With Gas Prices" (2005, April 18) Retrieved December 9, 2016, from http://www.paperdue.com/essay/demand-elasticity-of-gasoline-with-gas-prices-63859
"Demand Elasticity Of Gasoline With Gas Prices" 18 April 2005. Web.9 December. 2016. <http://www.paperdue.com/essay/demand-elasticity-of-gasoline-with-gas-prices-63859>
"Demand Elasticity Of Gasoline With Gas Prices", 18 April 2005, Accessed.9 December. 2016, http://www.paperdue.com/essay/demand-elasticity-of-gasoline-with-gas-prices-63859
Elasticity is a concept in microeconomics that reflects "the degree to which a demand or supply curve varies among products" (Investopedia, 2013). Thus, the degree to which demand or supply of a good changes with a change in the price. This dynamic can be calculated using the following formula: Elasticity = (% change in quantity / % change in price) In general, a good is characterized as elastic if the change in
It could not be expected that these measures would have an immediate impact on gasoline demand. Changes are likely to take some time before the real impact is felt. However, this slowing of demand growth is indicative that the process has begun and that it will continue to grow in the future. Exploring Alternatives The answer to resolving the issue of gasoline price in the future is the same for both
Demand and Supply There are a number of different factors that Edgar needs to take into consideration with his idea to invest in the gas station business. Let's pretend for a minute that he is not just paying the fair market value for the gas station -- he is -- and simply discuss his theory about the economics of the gas market. If the market for gas stations is even remotely
Surge Is Unlikely for Prices of U.S. Gas," by Clifford Krauss (Krass, 2013). There were four main points of distinction embedded within the article. The first and arguable most important element within the article was in reference to the growing conflict in Syria. The article was written in late August when unrest in the Middle East was near its height. During this period, Americans were concerned with the subsequent
Microeconomic Effects of an Increase in Gas Prices When considering the ever-changing and highly competitive global landscape of business today, it is striking how many firms continue to rely on fossil fuels (particularly gas) as a primary means of facilitating operations. The functional inputs of countless organizations in countless industries are at the mercy of gas providers. Transportation mechanisms, factory machinery, construction equipment and climate control systems almost always require a
Supply/Demand The product being studied is the Prius, the hybrid car from Toyota. The automobile industry is one the largest industries in the world. The major players are Ford, General Motors, Chrysler, Honda, Mitsubishi, Hyundai, several European companies and regional players as well (Investopedia, 2011). These firms all contribute to intense competition among rivals, especially given the size of the industry. The result is an industry characterized by competition both along
D.). Following this period of exploration one must tackle the seismic interpreters with their predictions and drill exploration wells. If these wells are on-shore, then the cost can be modest, but if the prospected reservoir is off-shore in ultra deep water, drilling a well is very expensive and it becomes an interesting strategy game to balance the risk of drilling a dry well against the risk of missing a big cat.


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Philadelphia, Pennsylvania 19103
United States
Alison B. Weisberg is of counsel in Morgan Lewis's Intellectual Property Practice. Ms. Weisberg's practice focuses on patent prosecution and counseling matters in the computer, software, and mechanical arts, primarily for clients in the financial services industry.
Ms. Weisberg joined Morgan Lewis in 1994 as a litigation associate, focusing on intellectual property disputes. Since that time, her practice has expanded to include preparation and prosecution of patents and managing and developing strategies with regard to domestic and international patent portfolios. Ms. Weisberg's counseling practice includes conducting patent due diligence and analyzing patent validity and freedom-to-operate issues.
Ms. Weisberg is admitted to practice in Pennsylvania and New Jersey and before the U.S. Patent and Trademark Office.
|Areas of Practice
|1) Intellectual Property, 2) IP Issues in Business Transactions, 3) Licensing, 4) Business Methods & E-Commerce Patents, 5) Electrical Patents, 6) IP Litigation and 7) Patent
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...parts of the country. In the rural areas of the Wet Zone lowlands, they account for more than 95 percent of the population. The foremost concentration of the Sri Lankan Tamils lies in the Jaffna Peninsula and in the adjacent districts of the northern lowlands. Smaller agglomerations of this group are also found along the eastern littoral where their settlements are juxtaposed with...


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United States District Court, S.D. Illinois
April 22, 2015
MARCUS SMITH, Plaintiff,v.JASON PRINDABLE, SANELA KONJEVIC, Defendants.
STACI M. YANDLE, District Judge.
This matter comes before the Court on Defendant Konjevic's Motion to Dismiss (Doc. 29) and Motion for Summary Judgment (Doc. 31). For the following reasons, Defendant's Motion for Summary Judgement is GRANTED in its entirety. Defendant's Motion to Dismiss is DENIED AS MOOT.
At the time of the events giving rise to this action, Defendant Jason Prindable was employed as a police officer for the Illinois State Police and was a member of the task force "Working Against Violent Elements" (W.A.V.E.). W.A.V.E. is comprised of federal, state and local law enforcement agents operating in the Southern District of Illinois. (Doc. 11-2). Defendant Sanela Konjevic was employed by the Federal Bureau of Investigations and also worked with W.A.V.E. (Doc. 11-2).
On March 15, 2012, Plaintiff was a passenger in the front seat of a vehicle driven by Deonte Billups at the intersection of 37th at Caseyville Ave. in East St. Louis, Illinois. (Doc. 11-2). At the time, Jason Prindable and Sanela Konjevic were on duty and conducted a traffic stop of the vehicle. (Doc. 11-2). Defendants approached the vehicle along with other officers. (Doc. 11-2). Upon approaching the vehicle and looking inside, the officers saw a handgun located under the driver's seat (Doc. 2-2). The officers immediately backed away and moved into a formation around the vehicle. (Doc. 39-Exh C). At this point, Billups accelerated forward striking Prindable. (Doc. 39-Exh A&B). Prindable and Konjevic then fired 11 rounds into the vehicle), and striking Plaintiff five 5 times. (Doc. 39-Exh A).
Until Billups put his hands on the steering wheel and began to drive away, both occupants of the vehicle had their hands in the air in compliance with the officers' directions (Doc. 39-Exh A). Plaintiff's hands remained in the air above his head until he lowered them to release his seat belt and open the door. (Doc. 39-Exh A). The vehicle appeared to travel less than 20 feet. (Doc. 39-Exh G). Plaintiff was arrested, handcuffed, and taken to the hospital. (Doc. 39-Exh A).
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996).
For her motion, Defendant contends that she is entitled to qualified immunity. To determine whether qualified immunity exists, the court must use a two-step approach: first, the court must ask "whether a constitutional right would have been violated" based on the plaintiff's version of the facts; if so, the court then asks "whether the right was clearly established." Saucier v. Katz, 533 U.S. 194, 200 (2001).
All claims that law-enforcement officers used excessive force are analyzed under the Fourth Amendment's "reasonableness" standard. See Graham v. Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1 (1985). The inquiry requires analyzing the totality of the circumstances. Id. This is analyzed from the perspective "of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. A police officer may use deadly force only to seize a fleeing felon who has committed a violent crime or who presents an immediate danger to the officer or others. Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985)
In Estate of Starks v. Enyart, an officer stepped in front of a vehicle driven by a fleeing suspect. 5 F.3d 230. 232 (7th Cir. 1993). Officers then fired on the suspect, and he died of his wounds. Id. It was held that the officers' actions were not reasonable because the officer stepped in front of the vehicle after it was moving, and the officer was responsible for creating the risky situation. Id. However, the Court recognized that;
On the other hand, if Black was in the path of the car before the car started forward or if the factfinder concludes that Starks could have braked but chose not to, then the three defendants reasonably responded to Starks' acceleration toward Black. Starks would have threatened the life of a police officer, and reasonable officers could believe that the use of deadly force was appropriate.
Id. at 234. This is the situation that occurred in this case. The evidence offered by Plaintiff does not contradict the fact that Prindable was in the path of the vehicle before the driver accelerated towards him and struck him. The evidence on the record further shows that Defendant Konjevic reasonably believed that Prindable was in danger. Given those facts, the Court finds that the officer's actions in employing deadly force did not violate Plaintiff's constitutional rights.
Even assuming Defendant Konjevic's actions did violate Plaintiff's Fourth Amendment rights, she would still be entitled to summary judgment based on qualified immunity because it has not been shown that she violated a statutory or constitutional right that was clearly established. Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014). A Defendant can only be said to have violated a clearly established right "if the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Id. In other words, "existing precedent must have placed the statutory or constitutional question" confronted by the official "beyond debate." Id.
In Brosseau v. Haugen, 543 U.S. 194 (2004) it was held that a police officer did not violate clearly established law when she fired at a fleeing vehicle to prevent possible harm to "other officers on foot who [she] believed were in the immediate area, ... occupied vehicles in [the driver's] path[, ] and... any other citizens who might be in the area." Id. The Court further held that decisions regarding the reasonableness of lethal force as a response to vehicular flight depend "very much on the facts of each case" and that the cases "by no means clearly establish[ed]' that [the officer's] conduct violated the Fourth Amendment." Id.
In Plumhoff v. Rickard, 134 S.Ct. 2012 (2014), officers employed deadly force against a vehicle in a high-speed chase. Id. at 2021. During that chase, the plaintiff passed more than two dozen other vehicles, several of which were forced to alter course. Id. The plaintiff's car eventually collided with a police car and came temporarily to a near halt. Id. Less than three seconds later, however, the plaintiff resumed maneuvering his car. Id. Just before the shots were fired, the plaintiff spun his wheels as though accelerating and then threw the car into reverse "in an attempt to escape." Id. The Court held that the officers acted reasonably under the Fourth Amendment in using deadly force to apprehend the suspect. Id.
In order for Plaintiff to defeat qualified immunity in this case, he must show either (1) that the officers' conduct was distinguishable from the conduct in Brosseau and Plumhoff or (2) that since the holdings in Brosseau and Plumhoff there emerged either "controlling authority'" or a "robust consensus of cases of persuasive authority.'" Plumhoff, 134 S.Ct. at 2023. Plaintiff has not made either showing. In Brosseau, an officer on foot fired at a driver who had just begun to flee and who had not yet driven his car in a dangerous manner. Here, the vehicle was already heading for and did eventually strike an officer in its path. Plaintiff states that officers fired 11 shots, but he has not shown that it was clearly established that the number of shots fired under the circumstances, rendered the use of force excessive. Accordingly, the Court finds that the Fourth Amendment did not prohibit Defendant Konjevic from using deadly force to stop the vehicle as it accelerated forward towards another officer. In the alternative, Defendant Konjevic is entitled to qualified immunity for her conduct because it did not violate any clearly established law. Therefore, the Court GRANTS summary judgment as to Counts II and V of Plaintiff's Amended Complaint.
The remaining counts address Plaintiff's false arrest claim. In order to prevail on a false arrest cause of action, the plaintiff must prove that he was restrained or arrested by the defendant, and the defendant acted without reasonable grounds to believe that an offense was committed. Meerbrey v. Marshall Field & Co., 139 Ill.2d 455, 474, 564 N.E.2d 1222, 1231 (1990). To be deemed reasonable, a warrantless arrest made in public must be supported by probable cause. United States v. Watson, 423 U.S. 411, 414-24 (1976). Therefore, the existence of probable cause is an absolute defense to a claim for false arrest. Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir.2006).
Probable cause to arrest exists if the totality of the circumstances known to the officer at the time of the arrest would warrant a reasonable person in believing that the arrestee had committed, was committing, or was about to commit a crime. Abbott v. Sangamon County, Ill., 705 F.3d 706, 714 (7th Cir.2013). The existence of probable cause is a question of law to be answered by the Court. Beck v. State of Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). A finding of probable cause does not require that the alleged facts amount to proof of the plaintiff's guilt but rather that the facts are sufficient to support the defendant's suspicion that the plaintiff committed the crime of Unlawful Use of a Weapon under 720 ILCS 5/24-1(4). See Woods v. City of Chi., 234 F.3d 979, 996 (7th Cir.2000).
At the time of the incident giving rise to the instant case, 720 ILCS 5/24-1(4) provided that it was an A misdemeanor when a person knowingly:
(4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions:
(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card.
720 ILCS 5/24-1(d) states further that:
(d) The presence in an automobile other than a public omnibus of any weapon, instrument or substance referred to in subsection (a)(7) is prima facie evidence that it is in the possession of, and is being carried by, all persons occupying such automobile at the time such weapon, instrument or substance is found...
Plaintiff admitted in his deposition that he was aware there was a gun in the car. He further agreed that the gun was about a foot and a half from him in the vehicle. The facts currently before the Court indicate that the officers were able to see the firearm clearly from outside the vehicle and that they saw that it was in the vicinity of the plaintiff. As such, Defendant Konjevic had probable cause to arrest the plaintiff for Unlawful Use of a Weapon.[1] For the foregoing reasons, Defendant's motion is GRANTED as to Counts IV and VI of Plaintiff's Amended Complaint.
Defendant's Motion to Dismiss (Doc. 29) is DENIED as MOOT. As no claims remain pending against Defendant Konjevic, the Court DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
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Daddy, Where's Santa Clause?
I am writing to you today, dear citizens, because of a question that my young son asked me before bedlast night. As I was helping him don his Looney Tunes pajamas he asked me about some people he saw today when he was downtown shopping with his mom. He told me that he saw kids that were really dirty and they were crying. He asked about those children and I told him that they didn't have real homes to live in and that they were making the best of what they had. He then asked me about Santa Clause. I thought this an odd question to ask after the serious question about the kids. Then he explained.
It seems that Santa Clause comes to his home every year. He brings toys and candy, jackets and
I tucked in my son, kissed him on the forehead, and before I left the room, he told me that he wanted
So, I am writing this letter to you, kind people, to talk to you about my son, and to talk to you about social change. Christmas is a time for giving. The symbolic giving of gifts to loved ones is to indicate
This year, as you are buying the fancy dresses and high priced motorized cars remember the children who don't know Santa Clause. Remember those children who look forward to the excitement of a full belly or a pair of shoes. Remember those children who, like your own children, long for a time when they can have a warm bed to snuggle into and parents to hug them. When you are giving gifts at the
Even those who are not religious need to appreciate Santa Clause. After all, you celebrate Christmas, too, don't you? You give gifts to your children, your loved ones and your friends. Give a little to
The economy is not great right now, and the philanthropic few are unable to cover the entire world, as much as they would like to. You can be a philanthropist yourself. Twenty dollars goes a long way to feed a hungry family. A twenty dollar blanket will keep a child warm, a new mother feeling a little hope. My son is giving everything he would get to other children in places he's never seen, never heard of and many times cannot even pronounce. Maybe it is time we all took the lead from the sons and daughters of our lives, those who are willing to sacrifice for the happiness of others.
Can't you be Santa Clause for those people, like my son chooses to be? Can't Santa Clause be the one person that lives within us all? After all, it is truly better to give than to receive isn't it?


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properties of krypton
...reactions. The longest lived of these, krypton-81, has a half-life of 229,000 years. After it has been stored a few days, krypton obtained by nuclear fission contains only one radioactive isotope, krypton-85, which has a half-life of 10.8 years, because all the other radioactive isotopes have half-lives of 3 hours or less.


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Rajamouli appreciates Oopiri movie
Rajamouli who is one of the Top directors in Tollywood has appreciated "Oopiri" movie and its director.He shared that "Intouchables is one of my favourites. Frankly I didn't think Vamsi would be able to handle it. Thanks Vamsi for proving me wrong. The scenes you indianised made it a better film. Karthi is so good. Nagarjuna garu is a true path breaker. Congratulations to PV garu and the whole team. Oopiri is a true entertainer that stays with you for a long time. Dont miss it…".
It was a Great Achievement by "Oopiri" team and especially Vamsi Paidipally to receive Applause from Rajamouli who has expanded the market of telugu cinema with his film "Baahubali".Even,so many celebrities from the Tollywood are appreciating the "Oopiri" movie and it is receiving Positive talk everywhere which is a pluspoint for the film and can help in Long run.
As today is a Holiday,the first day collections are expected to be Good and positive talk will help the film to gain Good Box office collections in further Run.
So,let us wait and see how it performs in coming days.
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