text:
Kathleen Wynne: new era or new phase?
By PATRICK HUNTER
There are a number of questions about the election of Kathleen Wynne as the new Premier of Ontario. A critical one is: Are we on the verge of a new era in Ontario politics, or just a new phase? An answer in the short term is likely to be a new phase.
Yes, she is a woman. Yes, she is a lesbian. Yes, she has held portfolios that are critical to Ontario's position in the country and the world. And yes, she is the first premier of Ontario from Toronto since Bob Rae. There are other pluses as well. Overall, I extend my congratulations to Wynne on her victory. I also congratulate her on her courage to face and respond to her party and the Ontario electorate for what the media appears to have dubbed "the elephant in the room" – whether Ontario is ready for an openly gay premier.
As to the latter, Wynne has clearly provided an answer which echoes the rhetorical question posed by William Shakespeare in A Merchant of Venice:
"If you prick us, do we not bleed?"
The biggest challenge that Wynne faces is restoring an electable image for the Liberal Party of Ontario. There was a certain candour in her approach as reflected in her speeches and the post-convention news conference that presents a new spirit that was different from the somewhat cool and unemotional image of Dalton McGuinty. That image could translate into a less hard-line approach to negotiating with the teachers and other public service workers.
But let us step back a bit. Before and since the last provincial election, the Liberals have been in crisis. The closure of power plants for political reasons, the mess over the air ambulance and the ballooning deficit resulted in what can be described as a stalemated scenario – a minority government. Rather than working to minimize sharp disagreements on approach, the Liberals decided to attempt to govern as if they were a majority, without saying so. Their actions, however, pointed clearly to that approach.
Hence, they introduced legislation which imposed an agreement on the teachers. This was part of the hardline approach that Minister of Finance Dwight Duncan decided to take – an approach that led McGuinty to give up and step away using the controversial tactic of proroguing the legislature to mask his departure.
Whoever succeeded McGuinty as leader and premier would not only have to be prepared to defend the move, but would also have to diplomatically condemn it in light of the resulting tumult that followed that action. If the new leader came from the cabinet, it would be a harder task because, presumably, he or she would have been at the table when they made the decisions. Therefore, they would be equally culpable.
Had Sandra Pupatello or Gerard Kennedy won, they would have plausible deniability in that they were not even in the caucus when the decisions were made.
We may never know what the discussions at cabinet and caucus were like – who supported what – and one may speculate that Wynne opposed the approach, particularly with the teachers, but that would be pure speculation. But, if one were to read the entrails, this former Minister of Education (and Kennedy, too, for that matter) had enjoyed a positive relationship with the teachers' unions. They would more than likely have balked at the idea of going tough.
The task for Wynne is not an enviable one. You do not trash the actions of your former leader. Yet, it is clear that those actions were, and are, unacceptable. So, treading carefully through the hot coals of the trail left behind by McGuinty, Wynne will have the unenviable task of – to borrow the metaphor – putting lipstick on a pig.
The first indication of the attempt to change will come from the choice of cabinet members and the possible realignment of ministries. For example, I would be very surprised if both Duncan and Laurel Broten retain their portfolios as finance and education ministers respectively. For one thing, Duncan was an ardent supporter of Pupatello. But his hard-line approach to fixing the deficit is partially what got the Liberals into this mess in the first place. The same can be said for Broten, who is seen as the implacable conduit of the hard line against teachers.
It is unlikely that the African-Canadian community will see any noticeable change in how our issues are addressed in the short term. Apart from the fact that we do not fall within the priority index at this time, any new, bold measure would probably have to wait until and if Wynne gets her own mandate after an election.
One thing is clear: Wynne is likely to take the party to the centre-left and thus, may cut into the New Democrats' support. Andrea Horwath will need to be more definitive in demonstrating her party's differences in policies. The likelihood of another Liberal-NDP coalition is also in the air even as Tim Hudak continues to sound more and more like Mike Harris.


text:
Stone Soup by Jan Eliot
- January 15, 2012
- From Beginning
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Comments (23) (Please sign in to comment)
Can I steal this poem? Pretty please?
Thank you very much! That is beautiful…
And sometimes February is even worse!!
Winter is NOT my favorite season.
Here in KS not sure were having winter or early spring. Temps are not winter like more spring like.
wally is in shadow, sandflea
Love it. I'm a HUGE Moody Blues fan.
"Cold hearted orb that rules the night…"
Not dead, just resting. Beautiful plumage, though.
Think of all the bad things in the other seasons, and the good in the present. Constant sweating, endless mowing, ceaseless weeding, and then Thanksgiving, Snowy Christmas Eve, carols, Christmas Morning, New Year's Eve, Snowmen, romantic fires in the fireplace, comfort food, Valentine's Day…,
I February up here in SW PA, we have a couple days of real spring-like temperatures. That's when out local park taps the maple trees for real syrup. They put on an exhibit every spring.
I hate winter because I have to wear so many layers! It's heavy and exhausting to walk around in all day! The worst part is I'm STILL cold!
The only thing about winter that drives me nuts, is the cold and the way it dries out my hands.
Quote from Francine Jay, Miss Minimalist:
"Ode to January
January is my month of the year. It's not simply a matter of aesthetics—-though I do appreciate the beauty of bare branches, snow-covered ground, and a monochromatic winter landscape. The appeal, however, is more psychological: after the excessess and over-stimulation of December, January is like a huge sigh of relief.
Where December is noise, January is silence. Where December is indulgence, January is restraint. Where December is crowded and chaotic, January is empty and serene, Where December carries all the baggage of the previous year, January is a fresh start. It's an opportunity to begin with a clean slate and a free spirit, a chance to eliminate unproductive endeavors and concentrate on new, more promising ones.
In January, I buy less, eat less, and stress less then at any other time of the year. Instead of shopping, I avoid the stores and clean out my closets. Instead of dining out, I enjoy simple, healthy food at home. Instead of keeping a busy schedule, I relax, knowing I have a whole year ahead of me to accomplish my goals.
Where December is more, January is less. And to this minimalist, less is beautiful."
Did not work.
Live in the south and you have daffidils now.
- Load the rest of the comments (8).
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subset: commoncrawl


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January 11, 2012
FREDDIE V. SALMO, PLAINTIFF,v.PHH MORTGAGE CORPORATION, ET AL. DEFENDANTS.
ORDER GRANTING in part AND DENYING in part DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO FED. R. CIV. P. 12(c) [52] [Filed 09/02/11]
Pending before the Court is Defendants PHH Mortgage Corporation
("PHH"); U.S. Bancorp D/B/A U.S. Bank, National Association, as
trustee for J.P Morgan Alternative Loan Trust 2006-A6 ("U.S. Bank");
Mortgage Electronic Registration Systems, Inc. ("MERS"),*fn1
and NDeX West, L.L.C.'s ("NDeX") (collectively, "Defendants")
Motion for Judgment on the Pleadings as to Plaintiff Eddie Salvo's
("Plaintiff") First Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(c), or alternatively, for Summary Judgment pursuant
to Federal Rule of Civil Procedure 56. (Dkt. No. 52.)
Plaintiff filed an Opposition on September 12, 2011 (Dkt. No. 54), to which Defendants filed a Reply on September 19, 2011. (Dkt. No. 55.) Having considered the papers filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, Defendants' Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part.
II. FACTUAL BACKGROUND*fn2
This case arises out of a mortgage loan in the amount of $500,000 obtained by Plaintiff on September 8, 2006, and secured by Plaintiff's property located at 6499 Broken Star Court, Rancho Cucamonga, California 91701 ("Subject Property"). (FAC ¶¶ 4, 21.) In connection with the loan, Plaintiff executed a promissory note ("Note") and Deed of Trust ("DOT"), which named Plaintiff as the borrower, PHH as the lender and beneficiary of the DOT, and First American Title as trustee of the DOT. (FAC ¶ 21; Defendants' Request for Judicial Notice ("RJN"), Exh. 1.) On October 30, 2006, PHH executed an Assignment of Deed of Trust naming MERS as the DOT's beneficiary. (Defendants' RJN, Exh. 2.)
As of August 2, 2010, Plaintiff was in default in the amount of $10,956.64. (Defendants' RJN, Exh. 3.) As a result of Plaintiff's default, a Notice of Default and Election to Sell Under Deed of Trust was recorded with the San Bernardino County Recorder's Office. (Defendants' RJN, Exh. 3.)
On August 19, 2010, Marc. J Hingle, as Vice President of MERS, executed a second Assignment of Deed of Trust ("ADOT") naming U.S. Bank as the beneficiary of the DOT.
(FAC ¶ 22; Defendants' RJN, Exh. 4.) On September 2, 2010, the ADOT was recorded with the San Bernardino County Recorder's Office. (FAC ¶ 44; Defendants' RJN, Exh.
4.) Plaintiff contends that U.S. Bank has "no beneficial interest in Plaintiff's loan" because it failed "to properly document, endorse, and transfer Plaintiff's Note and Mortgage to" U.S. Bank. (FAC ¶¶ 24--25.) As a result, "Plaintiff disputes the alleged debt and alleges that [he is] not required to pay [either] U.S. Bank or PHH Mortgage since neither Defendant has legal or equitable rights to enforce the purported debt obligation." (FAC ¶ 54.)
Also on September 2, 2010, U.S. Bank executed a Substitution of Trustee substituting NDeX for First American Title as trustee under the DOT; this Substitution of Trustee was recorded on September 12, 2010. (FAC ¶ 111(c); Defendants' RJN, Exh. 5.) On November 5, 2010, a Notice of Trustee's Sale was recorded with the San Bernardino County Recorder's Office. (Defendants' RJN, Exh. 6.) On November 29, 2010, Plaintiff filed a Chapter 13 bankruptcy petition in the Central District of California, Riverside Division. (FAC ¶ 111(d).)
Plaintiff asserts that Defendants violated several federal and state laws in conjunction with the aforementioned transfers and substitutions. Consequently, on February 28, 2011, Plaintiff filed a federal Complaint. (Dkt. No. 1.) On April 14, 2011, Defendants filed a Motion for Judgment on the Pleadings (Dkt. No. 19), which this Court granted with leave to amend. (Dkt. No. 37.) Plaintiff subsequently filed a First Amended Complaint ("FAC") on August 2, 2011, alleging six claims against Defendants:
(1) declaratory relief; (2) common law fraud; (3) negligence; (4) violation of 15 U.S.C. § 1641(g); (5) violation of California Business and Professions Code section 17200; and
(6) quiet title. (Dkt. No. 46.) Defendants now move for judgment on the pleadings as to Plaintiff's entire FAC. (Dkt. No. 52.) The Court addresses Defendants' arguments and the sufficiency of Plaintiff's claims below.
A motion for judgment on the pleadings is "functionally identical" to a motion to dismiss for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6); the only major difference is that a Rule 12(c) motion is properly brought "after the pleadings are closed and within such time as not to delay the trial." Mag Instrument, Inc. v. JS Prods., Inc., 595 F. Supp. 2d 1102, 1106--07 (C.D. Cal. 2008) (quoting Fed. R. Civ .P. 12(c); Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)).
If the aforementioned criteria is met, "[j]udgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Therefore, for a court to grant a Rule 12(c) motion, "[i]t must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Butler, 521 F. Supp. 2d 1093, 1095 (C.D. Cal. 2007) (quoting Sun Sav. & Loan Ass'n v. Dierdorff, 825 F.2d 187, 191 (9th Cir.1987)). If the court does grant the motion, the court, in its discretion, may grant the non-moving party leave to amend or enter a final judgment. See Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004) ("[A]lthough Rule 12(c) does not mention leave to amend, courts have discretion both to grant a Rule 12(c) motion with leave to amend and to simply grant dismissal of the action instead of entry of judgment.") (citations omitted).
Defendants bring the instant Motion seeking dismissal of Plaintiff's claims for declaratory relief, common law fraud, negligence, violation of the Truth in Lending Act ("TILA"), violation of California's Unfair Competition Law ("UCL"), and quiet title. Because Plaintiff's claims for violation of the UCL and declaratory relief depend in part on the viability of Plaintiff's remaining causes of action, the Court will address these claims last; otherwise, the Court considers each of Plaintiff's claims in turn.
Plaintiff alleges a claim against PHH, U.S. Bank, and NDeX for common law fraud. A complaint alleging fraud must meet the heightened pleading standard under Federal Rule of Civil Procedure 9(b), which requires Plaintiff to "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). "The complaint must specify such facts as the times, dates, places, and benefits received, and other details of the alleged fraudulent activity." Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993). Plaintiff's allegations cannot "merely lump multiple defendants together but require[s] plaintiffs to differentiate their allegations when suing more than one defendant . . . and inform each defendant separately of the allegations surrounding his alleged participation in the fraud." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal quotation marks omitted). Moreover, a fraud claim involving a corporate defendant "must identify the 'names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.'" Saldate v. Wilshire Credit Corp., 686 F. Supp. 2d 1051, 1065 (E.D. Cal. 2010) (quoting Tarmann v. State Farm Mut. Auto Ins. Co., 2 Cal. App. 4th 153, 157 (1991)).
Additionally, while the Rule 9(b) requirement is a federally imposed rule, "a federal court will examine state law to determine whether the elements of fraud have been pled sufficiently to state a cause of action." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). "In California, the elements for a claim of fraud are:
(1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage." Clark v. Countrywide Home Loans, Inc., 732 F. Supp. 2d 1038, 1044 (E.D. Cal. 2010) (citing Small v. Fritz Cos., 30 Cal. 4th 167, 173 (2003))
Plaintiff's contentions with respect to NDeX revolve around certain representations made by Aaron W. Brown, who is not a party to this action. While Plaintiff initially avers that Mr. Brown was "an agent of NDEX, who was acting on behalf of Defendant PHH Mortgage and/or U.S. Bank" (FAC ¶ 110), Plaintiff immediately proceeds to allege that Mr. Brown was "an agent and/or representative of NDEX and/or PHH Mortgage" and that "NDEX and/or PHH Mortgage directed" him to make certain false representations to Plaintiff. (FAC ¶ 111.) In the course of two paragraphs, Plaintiff thus contends that Mr. Brown was an agent of NDeX, PHH, U.S. Bank, or any combination thereof, and that either NDeX or PHH, or both, directed him to make false representations to Plaintiff. These allegations fail to specify with particularity from which entity Mr. Brown derived his authority to speak, thereby falling short of Rule 9(b)'s pleading requirements for a fraud claim involving a corporate defendant.
Plaintiff's allegations with respect to PHH and U.S. Bank hinge upon certain representations made by Marc J. Hingle, who likewise is not a party to this action. Plaintiff contends that "[o]n September 17, 2010, Marc J. Hingle . . . as purported 'Vice President' of U.S. BANK by PHH Mortgage, negligently and/or falsely represented to Plaintiff in writing that NDEX was 'substituted ' into the Deed of Trust as the trustee"; that "Marc Hingle, MERS, NDEX, and/or PHH Mortgage knew such a representation was false and made . . . with the intent of inducing Plaintiff's reliance"; and that "Plaintiff did in fact reasonably rely on the false statements to his detriment," thereby causing him damages. (FAC ¶ 111(c).) In merely alleging that Mr. Hingle made certain representations "as purported 'Vice President' of U.S. BANK by PHH Mortgage" (id. (emphasis added)), Plaintiff fails to specifically plead whether Mr. Hingle derived his authority to speak from U.S. Bank or PHH, or both. As a result of this ambiguity, Plaintiff fails to adequately put Defendants U.S. Bank and PHH on notice whether Plaintiff intends to impute Mr. Hingle's statements to U.S. Bank, PHH, or both.
Plaintiff also contends that "on January 13, 2011, PHH and U.S. Bank, through their attorney, Darlene C. Vigil, . . . filed a Proof of Claim with the U.S. Bankruptcy Court" containing false representations designed to induce Plaintiff to act to his detriment. (FAC ¶ 112.) Plaintiff alleges that he "reasonably relied" on this representation to his detriment "by sending a cashier's check to PHH Mortgage in the amount of his purported Deed of Trust Payment." (Id.) This contention amounts to little more than a mere recitation of the "justifiable reliance" and "resulting damages" elements of a fraud claim and fails to meet Rule 9(b)'s heightened pleading standards. Specifically, Plaintiff fails to plead any specific facts regarding when this payment was made, the amount paid, or whether the payment was credited towards his "Deed of Trust payment." Moreover, Plaintiff in no way explains how his reliance was reasonable under the circumstances, especially in light of Plaintiff's allegations that he "filed a [C]hapter 13 bankruptcy to stop all collections activities against him and his Property." (FAC ¶ 111(d).)
In addition to the above, Plaintiff has failed to adequately "differentiate [his] allegations" and "did not inform each defendant separately of the allegations surrounding its alleged participation in the fraud." Swartz, 476 F.3d at 764. While Plaintiff does specifically list defendants by name, Plaintiff frequently strings Defendants' names together with "and/or" (see FAC ¶¶ 110--12), thereby rendering ambiguous to which Defendant Plaintiff actually intends to refer. This falls short of Rule 9(b)'s heightened pleading standard and thus Plaintiff has procedurally failed to allege a claim for fraud against all Defendants. Accordingly, Plaintiff's second claim for common law fraud fails to state a claim against Defendants PHH, U.S. Bank, or NDeX. Therefore, Defendants' Motion for Judgment on the Pleadings as to this claim is GRANTED with leave to amend.
Plaintiff alleges a claim for negligence against PHH and U.S. Bank. "In order to establish a claim for negligence, a plaintiff must establish four required elements: (1) duty, (2) breach, (3) causation, and (4) damages." Ileto v. Glock Inc., 349 F.3d 1191, 1203 (9th Cir.2003). Defendants move to dismiss Plaintiff's third claim for negligence on the ground that Defendants U.S. Bank and PHH did not owe Plaintiff a duty of care. "The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide." Castaneda v. Saxon Mortg. Servs., Inc., 687 F. Supp. 2d 1191, 1198 (E.D. Cal. 2009) (quoting Vasquez v. Residential Invs., Inc., 118 Cal. App. 4th 269, 278 (2004)). Absent special circumstances, a home-mortgage loan is an arm's-length transaction from which no duties arise outside of those set forth in the loan agreement. Castaneda, 687 F. Supp. 2d at 1198. Barring an assumption of duty or a special relationship, "a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Vann v. Aurora Loan Servs. LLC, No. 10--CV--04736--LHK, 2011 WL 2181861, at *4 (N.D. Cal., June 3, 2011) (quoting Nymark v. Heart Fed. Sav. & Loan Ass'n, 231 Cal. App. 3d 1089, 1096 (1991)). "Courts have held that this rule is applicable to loan servicers as well." Id.; see Castaneda, 687 F. Supp. 2d at 1198.
Here, Plaintiff fails to cite any authority for the proposition that PHH or U.S. Bank owed him a duty in their roles as "creditor and servicer." (Opp'n at 18.) Additionally, Plaintiff has not alleged that PHH or U.S. Bank assumed any duty or entered into a special relationship with him besides what one would expect from an arm's-length mortgage loan transaction. Plaintiff has thus failed to establish that either PHH or U.S. Bank owed him a duty of care, thereby falling short of the requisite pleading requirements for a negligence claim. Accordingly, the Court GRANTS Defendants' Motion as to Plaintiff's third claim for negligence with leave to amend.
C. PLAINTIFF'S FOURTH CLAIM FOR VIOLATION OF 15U.S.C. §1641(g)
Plaintiff alleges that Defendant U.S. Bank violated TILA, 15 U.S.C. § 1641(g), by failing to provide to him a written Notice of New Creditor within thirty days of the execution of the August 19, 2010, ADOT assigning all beneficial interest in Plaintiff's DOT to U.S. Bank. (FAC ¶ 138.) Section 1641(g)(1) provides that a creditor who purchases or is assigned a mortgage loan must notify the borrower in writing within thirty days of such purchase or assignment. Defendant U.S. Bank does not contest that it is subject to § 1641(g); rather, U.S. Bank contends that Plaintiff's TILA claim is insufficient because Plaintiff fails to allege how U.S. Bank's violation caused Plaintiff damages. (Mot. at 18.)
A creditor in an individual action relating to a credit transaction secured by real property that fails to comply with the requirements of § 1641(g) is liable for "any actual damage sustained by [a plaintiff] as a result of the failure," 15 U.S.C. § 1640(a)(1); statutory damages limited to "twice the amount of any finance charge in connection with the transaction" but "not less than $400 or greater than $4,000," id. § 1640(a)(2)(A)(i), (iv); and attorney's fees. Id. § 1640(a)(1)(3).
Here, Plaintiff has pleaded that he suffered actual damages as a result of U.S. Bank's violation of § 1641(g). (FAC ¶ 144.) Plaintiff also pleaded that he has had to pay attorney's fees and that U.S. Bank is subject to statutory damages. (FAC ¶¶ 143--44.) The Court notes, as the court noted in Vogan v. Wells Fargo Bank, N.A., No. 2:11-CV-02098-JAM-KJN, 2011 WL 5826016 (E.D. Cal. Nov. 17, 2011), that Plaintiff has not pleaded a causal connection between U.S. Bank's alleged § 1641(g) violation and Plaintiff's actual damages. As in Vogan, the event precipitating foreclosure under the DOT here was Plaintiff's default, not a lack of notice of the assignment of his mortgage to U.S. Bank. Id. Nevertheless, even if Plaintiff is not entitled to actual damages based on the allegations in his FAC, he has adequately pleaded that he is entitled to attorney's fees and statutory damages under § 1640(a). Therefore, Defendants' Motion for Judgment on the Pleadings as to Plaintiff's § 1641(g) claim is DENIED.
Plaintiff's sixth claim seeks a judicial declaration that the title to the Subject Property is vested in Plaintiff alone. (FAC ¶ 160.) Defendants move for judgment on the pleadings based on the fact that Plaintiff's FAC is not verified, as required by California Code of Civil Procedure section 761.020.*fn3 (Mot. at 19--20.) Plaintiff does not defend his quiet title claim in his Opposition. Plaintiff does, however, contend in his Opposition that he has adequately alleged a credible offer to tender.
"In California it is well-settled that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured." Briosos v. Wells Fargo Bank, No. C 10--02834 LB, 2010 WL 3341032, at *1203 (N.D. Cal. Aug. 25, 2010) (internal quotation marks omitted). Accordingly, "[i]n order to allege a claim to quiet title, Plaintiff must allege ability to tender the amounts admittedly borrowed." Garcia v. Wachovia Mortg. Corp., 676 F. Supp. 2d 895, 914 (C.D. Cal. 2009). Moreover, a Plaintiff's allegation of tender or ability to tender must be "credible." E.g., Cuaresma v. Deustche Bank Nat'l Co., No. C--11--03829 RMW, 2011 WL 4727805, at *3, *5 (N.D. Cal. Oct. 7, 2011) (finding that "plaintiffs must allege a credible tender of the amount of the secured debt to maintain any cause of action" for wrongful foreclosure and noting that "California courts apply the same tender rule to quiet title that applies in a wrongful foreclosure action.").
Plaintiff's allegations regarding his ability to tender are inconsistent at best. While Plaintiff avers that he has "offered to and is ready, willing, and able to unconditionally tender his obligation" (FAC ¶¶ 98, 156), he nevertheless challenges all Defendants' "equitable and beneficial interest in his Note and Deed of Trust" (FAC ¶ 99), "disputes the alleged debt[,] and alleges that [he] is not required to pay U.S. Bank or PHH Mortgage." (FAC ¶ 54.) Plaintiff also contends that Defendants have prejudiced his very ability to exercise his statutory right to cure his default "because he has been unable to ascertain the true and accurate amount, if any, needed to cure any purported default." (FAC ¶ 83.) Finally, Plaintiff fails to address how, if at all, his pending bankruptcy proceedings may affect his purported ability to tender.
In light of these inherent inconsistencies in Plaintiff's FAC, a mere conclusory statement alleging tender will not suffice to allege a "credible" tender. Defendants' Motion for Judgment on the Pleadings as to Plaintiff's sixth claim for quiet title is therefore GRANTED with leave to amend.
Plaintiff alleges a claim under California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, against PHH, U.S. Bank, and NDeX.
The UCL prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Id. Because the statute is written in the disjunctive, liability under each prong of the UCL is separate and distinct from the others and, therefore, the statute "applies separately to business acts or practice that are (1) unlawful, (2) unfair, and (3) fraudulent."Clark, 732 F. Supp. 2d at 1050. "As to the unlawful prong, the UCL incorporates other laws and treats violations of those laws as unlawful business practices independently actionable under state law." Id. (citing Chabner v. United Omaha Life Ins. Co., 225 F.3d 1042, 1048 (9th Cir. 2000). "An act is 'unfair' if the act threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law. . . . A practice is 'fraudulent' if members of the public are likely to be deceived." Quintero Family Trust v. OneWest Bank, F.S.B., 09-CV-1561-IEG (WVG), 2010 WL 392312, at *12 (S.D. Cal. Jan. 27, 2010) (quoting Fortaleza v. PNC Fin. Serv. Group, Inc., 642 F.Supp.2d 1012, 1019 (N.D. Cal.2009)). Additionally, allegations of fraudulent conduct under section 17200 must satisfy the heightened pleading requirements of Rule 9(b). See Vess, 317 F.3d at 1103--05. Rule 9(b) demands that "[a]verments of fraud . . . be accompanied by 'the who, what, when, where, and how' of the misconduct charged." Id. at 1106.
With respect to U.S. Bank, the Court has allowed Plaintiff's TILA claim to survive. Therefore, a predicate claim exists under the "unlawful" prong of the UCL, which makes the section 17200 claim independently actionable as to U.S. Bank only. With respect to PHH and NDeX, however, Plaintiff's UCL claim suffers from at least three fatal shortcomings.
First, Plaintiff's UCL claim is little more than a list of several statutes and claims accompanied by general allegations that Defendants have purportedly engaged in "unlawful, fraudulent and deceptive business practices" under the UCL. (FAC ¶ 148.) Because each prong of a section 17200 violation introduces a separate theory of liability, Plaintiff's failure to allege whether Defendants' actions were unlawful, unfair, fraudulent, or some combination thereof, falls short of the requirements of Rule 8(a)(2). See e.g., Clark, 732 F. Supp. 2d at 1050(finding the plaintiff's section 17200 claim deficient because the plaintiff's allegations did not specify which of the three UCL prongs defendants violated).
Second, while Plaintiff purports to allege a violation of the UCL against PHH, U.S. Bank, and NDeX, Plaintiff's entire UCL claim employs the indiscriminate term "Defendants" throughout without specifying to which Defendant or Defendants each alleged unlawful, unfair, or fraudulent business practice applies. Third, to the extent that Plaintiff brings a UCL claim under the "fraudulent" prong, Plaintiff fails to plead his allegations with sufficient particularity to survive a motion for judgment on the pleadings, as addressed supra. Accordingly, the Court DENIES Defendants' Motion for Judgment on the Pleadings with respect to Plaintiff's fifth claim for violation of section 17200 as to U.S. Bank only and GRANTS Defendants' Motion as to PHH and NDeX with leave to amend.
In her first claim for declaratory relief, Plaintiff seeks a judicial determination of her rights and title in the Subject Property. As a threshold matter, "[j]urisdiction to award declaratory relief exists only in a case of actual controversy." Because declaratory relief thus requires an underlying claim, see Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994), and no underlying claims remain as against PHH, NDeX, or MERS, Defendants' Motion for Judgment on the Pleadings is GRANTED with leave to amend as to PHH, NdeX, and MERS.
With respect to U.S. Bank, only Plaintiff's claim for violation of TILA, 15 U.S.C. § 1641(g) survives. However, declaratory relief is not an independent claim; rather, it is a form of relief. Santos v. Countrywide Home Loans, No. 09--02642, 2009 WL 3756337, at *5 (E.D. Cal. Nov. 6, 2009). Thus, "[a] claim for declaratory relief is unnecessary where an adequate remedy exists under some cause of action." Mangindin v. Wash. Mut. Bank, 637 F. Supp. 2d 700, 707 (N.D. Cal. 2009). As discussed above, 15 U.S.C. § 1640(a) provides adequate legal remedies for violations of §1641(g), including actual damages, statutory damages, and attorney's fees. Plaintiff's declaratory relief claim with respect to U.S. Bank is therefore duplicative and unnecessary. However, because Plaintiff may be able to state a claim against U.S. Bank in a subsequent amended complaint, Defendants' Motion for Judgment on the Pleadings as to Plaintiff's first claim against U.S. Bank isalso GRANTED with leave to amend.
For the foregoing reasons, Defendants' Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part. Plaintiff shall have twenty-one (21) days from the date of this Order to amend his FAC, provided that he can, in good faith, allege a claim for common law fraud, negligence, California's UCL, and declaratory relief.
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Preloading registers
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created 2004 · complexity basic · author zzapper · version 5.7
There never seem to be enough spare keys for maps.
It's possible however to preload Vim's registers in vimrc with your frequent commands, for example:
let @m=":'a,'bs/" let @s=":%!sort -u"
Here's a twisted one
let @y='yy@"'
The command is executed by doing a
You can overwrite them of course when doing a recording or a plain yank; I prefer to leave registers a-q for yanks or recordings and preload the others.
> Never seems to be enough keys to map
Why not use prefix and/or virtual keys like gnu-emacs? Then refer to it by the virtual name.
Also I think Gvim supports 5 Xmodifiers as in gnu-emacs, (C-M-S-H-s-A-<key>) = (2^6 * 40) 2500 should be enough?
All your mappings go into ,<key> (personally I like named keys) and in emacs, I can invoke by name with completions, if I forget the mapping.
I already have 96 maps many with two character combinations using , and <Leader>.Preloading registers is just a possible alternative, and maybe avoids some of the syntaxical restrictions of maps,as they contain command sequences just as you would type them ie a recording'.


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Google's Open Images and YouTube8-M have released datasets of annotated images and video to aid researchers develop new image analysis techniques
No front page content has been created yet.
Scientists from the VTT Technical Research Centre of Finland have developed a hyperspectral camera for smart phones
High-speed cameras have been used to observe the vortices created as a bird flaps its wings, the first time this has been measured
Flir Systems has acquired Prox Dynamics, a developer of nano-class unmanned aerial systems, for $134 million in cash
Xilinx has launched an online development hub to support software, hardware and system developers build next-generation embedded vision systems
Cameras, laser scanners and vision software are all allowing Fraunhofer IPA's new customer service robot, Care-O-bot 4, to greet shoppers and show them around an electronics store in Germany
Renault is working with French image sensor start-up Chronocam to apply Chronocam's sensing technology to Renault's Advanced Driver Assistance Systems
Analysis & opinion
Greg Blackman sums up some of the main talking points at the recent Vision trade fair in Stuttgart, Germany
Greg Blackman walks the show floor at Vision 2016, where innovations for Industry 4.0 and new image sensor technology were on display
Greg Blackman at the Vision trade fair in Stuttgart finds that embedded image processing looks set to transform the vision industry
Facebook, Amazon and Google are all working on high-profile deep learning projects, from speech pattern recognition to building driverless cars. Rob Ashwell looks at how the technology is being deployed in the machine vision sector to improve and speed inspection
Greg Blackman meets Alkeria, an Italian firm with a pedigree in custom embedded vision projects that's recently expanded into building off-the-shelf cameras
Matthew Dale on how intelligent monitoring systems are improving laser welding
Greg Blackman finds that 3D vision needs to become less complex and much faster in order to increase its adoption in factories
Microscan's CEO gives his thoughts on the vision industry
Show previews
Press Releases
MVTec Software has launched the latest version of its flagship product Halcon
The fourth generation of the successful CVS Trevista Surface, Cylinder and Multiline surface inspection systems from Stemmer Imaging feature brighter illumination


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shelter island beach house.
Monday, September 30, 2013
knoll CEO andrew cogan lives with his wife and three kids on new york's shelter island. no doubt the bar is set pretty high when you're CEO one of the most famous modern furniture design firms, yet their home remains extremely relatable and not the least bit over the top. ok, it's huge, but it doesn't look like a museum as i would have expected.
perhaps the yellow womb chair serves dual purpose as a lighthouse for the boats at sea.
not one, but THREE dining tables in this joint. how do you choose where to eat? and what a nice problem to have!
photos by roger davies for architectural digest.
9 comments:
- Jesse said...
ahhh, i feel relaxed just looking at these photos. what a perfect place for a weekend away with friends, they should rent it out:)
- September 30, 2013 at 10:59 AM
- Quyen Nguyen said...
Great windows. I love the indoor/outdoor feel of this house.
- September 30, 2013 at 12:27 PM
- Daina Ankrum said...
So beautiful. It is sometimes so hard to look at amazing photographs like these and then think about my little two bedroom in Queens... I have dreams of open space, dining rooms, and my very own washer and dryer!
- September 30, 2013 at 12:38 PM
- A Crimson Kiss said...
Swoon! That bathroom is heavenly...and Daina, we've got the same dreams!
- September 30, 2013 at 2:17 PM
- Andi of My Beautiful Adventures said...
OMG it is soooo gorgeous!!!!!!!
- September 30, 2013 at 4:35 PM
- ronnycakes said...
Ahhh its so cosy yet so designer!! Love the fact that it overlooks the sea, imagine waking up to a view like that... wouldn't mind waking up early everyday just to see the sun!
- September 30, 2013 at 11:31 PM
- Danielle E. Alvarez said...
Gosh... where do I sign up for my Shelter Island beach house?! Everything about it is gorgeous.
- October 1, 2013 at 4:40 AM
- shoegirl said...
Extremely well curated interiors, but really, it's all about that view. Just stunning.
- October 1, 2013 at 8:38 AM
- BIC MA said...
This is like a dream house on an island~
- November 10, 2013 at 10:41 PM


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Discussion in 'iPod touch' started by iRule, Jul 12, 2010.
I really want camera mic and FM radio
so many threads on this..
Retina Display
More Ram + Battery
new design (like iphone 4 and white color)
I would be happy with more RAM, and a bigger battery, and a faster CPU. A possible camera would be a nice addition too.
Not that I'm getting the iPod Touch 4, but that's what I want it to have.
Tfk1, why on earth would an iPod Touch need 128GB? I'm having a hard time filling 32GB on my iPod, let alone available 64GB models.
But I would like to see a retina display, camera, more RAM, faster CPU, better battery, and maybe an internal microphone (like the iPhone).
Phone connectivity
Oh wait ... that's called an iPhone4! Heh ...
If they would just come out with one for Verizon I'd ante up for it right now.
-Max Please Register or Log in to view images
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I would want it to have:
A 5 megapixel front and back camera
A retina display
More Random Access Memory
More time to do stuff (longer lasting battery)
Gyro scope
Infinite amount of pages (not the 11 max)
Scrolling folders (so you can scroll down in them)
FaceTime to iPhone 4 and iPods and iPads
More Ringtones
More wallpapers
Better multitasking
SBSettings built in
Silent swith
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Flat not curved (iPhone 4 looking)
Black silver or white backs but with the same front
I will edit my post if I think of any more
I have a 120GB Ipod Classic and it's got about 1 to 2GB left. Fill it with movies, tv shows, and high quality songs [the format], and the space gets eaten up.
Camera would be nice so I can take photos and video and bluetooth them to my 3rd gen Ipod Touch and Ipad in the fall.
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To elucidate the mechanism by which embryo-resorption and preterm birth were enhanced by pathogenic CpG motif and to develop a counter strategy for normal pregnancy outcome.
This is an animal model-based study. In pregnant nonobese diabetic (NOD) mice and wild-type (WT) mice in the same strain background, an infection was mimicked by toll-like receptor 9 (TLR9) activation through CpG1826-injection. In vivo inactivation of IL-10 was performed to enhance pregnancy loss. Regulatory T cells induced by FTY720 in vitro from splenic CD4+CD25−Foxp3− cells (iTreg cells) were transferred to improve pregnancy outcomes in NOD mice.
Embryo-resorption and preterm birth were readily induced by CpG1826 in NOD mice, but not in WT mice. However, inactivation of IL-10 using neutralizing antibody injections enhanced pregnancy loss in WT mice exposed to CpG, while adoptive transfer of iTreg cells increased decidual Foxp3+ Treg cells and IL-10+ cell number and rescued pregnancy.
NOD mice are prone to abortion and preterm birth. This can be attributed to lacking Treg cells and insufficient IL-10 expression. Adoptive transfer of iTreg cells can rescue CpG-mediated pregnancy failure.
Citation: Lin Y, Liu X, Shan B, Wu J, Sharma S, Sun Y (2014) Prevention of CpG-Induced Pregnancy Disruption by Adoptive Transfer of In Vitro-Induced Regulatory T Cells. PLoS ONE 9(4): e94702. doi:10.1371/journal.pone.0094702
Editor: Derya Unutmaz, New York University, United States of America
Received: January 5, 2014; Accepted: March 17, 2014; Published: April 8, 2014
Copyright: © 2014 Lin et al. This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
Funding: This work was supported by the National Basic Research Program of China (2014CB943300 and 2013CB967404), the National Natural Science Foundation of China (81370762, 81125004 and 31171439), the Key Program for Basic Research of the Science and Technology Commission of Shanghai Municipality, China (12JC1405800), Shanghai Jiao Tong University Medicine-Engineering Fund (YG2013ZD04 and YG2013MS68), the Superfund Program Research National Institute of Environmental Health Sciences, USA (SPR NIEHS grant P42ES013660), and the Fund for Outstanding Academic Leaders in Shanghai, China (12XD1406600 and 2013-049). The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.
Competing interests: The authors have declared that no competing interests exist.
Mammalian Toll-like receptors (TLRs) such as TLR9 initiate immune responses to infection by recognizing microbial nucleic acids [1]. In some cases, systemic or intrauterine bacterial infection results in excessive production of hypomethylated CpG DNA motifs that are recognized by TLR9 [2]–[4]. In mammals, CpG motifs trigger strong polarized immune responses that impair pregnancy and result in embryo loss or preterm birth [4], [5].
Previous studies suggested that cytokine IL-10 might be a determinant for pregnancy success. LPS caused adverse pregnancy outcomes including increased embryo resorption and preterm birth in IL-10-/- mice compared with their wild-type (WT) counterparts even at very low doses [6], [7], [8], and low doses of CpG displayed similar effects [4], [5]. Notably, NOD mice are known to be lower in both regulatory T cells (Treg cell) number [9] and IL-10+ cell number [10], and prone to pregnancy loss even without inflammatory challenge [5], [9].
It was found that CD4+CD25− T cells can be converted to CD4+CD25+ cells in the presence of TGF-β [11]. In NOD mice and other murine models, commercially available FTY720, 2-amino-2-[2-(4-octylphenyl)ethyl]propane-1,3-diol, also named fingolimod, effectively converted conventional Foxp3−CD4+CD25− cells into Foxp3+CD4+CD25+ cells (induced Treg cells, iTreg cells) in vitro and in vivo [12], [13]. When cultured in conditioned medium containing FTY720 (10 ng/mL), the percentage comprised by the fork head boxp3/winged helix-expressing (Foxp3+) subset within CD4+ T cells harvested from WT or NOD mice was increased, which probably was contributed to Foxp3-positive conversion from both CD4+CD25+ and CD4+CD25− cells [12], [13]. However, it remains unclear whether adoptive transfer of these cells can effectively rescue pregnancy loss in NK-cell deficient NOD mice with insufficient IL-10 production [10].
Our recent study found that NOD mice were sensitive to CpG-mediated pregnancy loss, while WT counterparts are resistant to CpG stimulation [5]. However, the mechanism for this differential response is not fully elucidated. In this study, we examined the role of the CpG-TLR9 pathway during pregnancy in a mouse model with a focus on the role of Treg cells and IL-10 in protecting pregnancy [12], [13]. Our observations indicate a link between immune response mediated by CpG and immune tolerance mediated by Treg cells and IL-10 at the feto-maternal interface.
Materials and Methods
Mice and Ethics
Mice used in this study, wild-type (WT) female BALB/c, female NOD in the BALB/c background, and male C57BL/6 (8–12 weeks old), were purchased from the National Resource Center for Mutant Mice, Model Animal Research Center, Nanjing University (Nanjing, China). All mice were housed in a pathogen-free facility. The immunodeficiency of NOD mice was confirmed using methods described previously [14]–[17]. All animal procedures followed the national animal care guidelines, and were approved by Shanghai Jiao Tong University's Institutional Animal Care and Use Committee. All related data were approved for publication by Shanghai Jiao Tong University's Institutional Review Board and Ethics Committee. Each experimental group contained at least four mice. The day of vaginal plug appearance was designated as gestational day 0.5 (E0.5). All the reagents were purchased from BioLegend unless otherwise indicated.
Injection of CpG1826 into Pregnant Mice
WT and NOD mice were injected intraperitoneally (IP) with CpG1826 (InvivoGen) at doses of 15, 25, 100, 300, 400, or 500 μg per dam on E6.5 in embryo-resorption experiments and E14.5 in preterm-birth experiments [4], [5]. In the embryo-resorption experiments, CpG1826 was administered on E6.5 and embryo resorption rate was measured on E9.5. Embryos with smaller size (< 20% of the average size), hemorrhage (at the implantation site), and necrosis were identified as resorbed embryos [18]. In the preterm birth experiments, CpG1826 injection was performed on E14.5 and mice were examined for signs of preterm birth of live pups (no less than 4 times a day at an interval of < 8 h) [19]. Preterm birth was defined as the finding of at least one pup in the cage or the lower vagina before E18.5 (not including E18.5) [19].
Neutralizing anti-IL-10 Ab Treatment
Purified anti-mouse IL-10 Ab (catalog No. 504902) was administered IP dosing at 250 μg on E5.5 and E7.5 with CpG1826 injection on E6.5, or on E13.5 and E15.5 with CpG1826 injection on E14.5 (Fig. 1). Embryo-resorption and preterm birth was evaluated as described above. Placenta and decidual tissue were harvested for flow cytometric analysis [4], [5].
Anti-mouse IL-10 Ab was administered IP into pregnant mice at a dose of 250 μg on E5.5 and E7.5 with CpG1826 injection on E6.5 in the embryo-resorption experiments, or on E13.5 and E15.5 with CpG1826 injection on E14.5. Arrows indicate the time-points when injections were performed.
Mononuclear and Granular Cell Preparation
Uterine mononuclear and granular cells (UMGCs) were isolated on E9.5 or at the indicated time points by mincing and mechanical dispersion of the whole uteroplacental tissue in RPMI1640 medium supplemented with 10% fetal bovine serum, penicillin/streptomycin, and L-glutamine. Single-cell suspensions from uterine horns were sifted through a 100-µm cell strainer followed by density gradient separation using Fico-Lite LM (Atlanta Biologicals). These experiments were performed on the three layers obtained from Ficoll gradient separation to determine in which layer granulocytes accumulated. It was found that granulocytes were concentrated directly below the monocyte layer. Both layers were harvested together for further experiments [4], [5].
Purification of CD4+, CD4+CD25+, and CD4+CD25− Cells
Splenic CD4+ cells were collected from virgin WT mice and purified by magnetic activated cell sorting or magnetic affinity cell sorting (MACS) using microbeads-conjugated anti-mouse CD4 mAb. The purified CD4+ cells were further separated into CD4+CD25+ and CD4+CD25− subsets by MACS using microbeads-conjugated anti-mouse CD4 and anti-mouse CD25 mAbs (all from Miltenyi Biotech, Auburn, CA) following the manufacturer's instructions. The purity and viability of the purified cells routinely exceeded 97% and 95%, respectively, as determined by flow cytometry and propidium iodide staining (Invitrogen, Eugene, OR) [15], [20].
Generation of Treg Cells Induced by FTY720
Treg cells were generated by in-vitro CD4+CD25− cell induction using FTY720-containing RPMI 1640 medium [12], [13]. In brief, in-vitro culture system was developed for Treg cell generation using naive precursor CD4+CD25− T cells isolated from NOD mice which have reduced Treg cell number [11]–[13], [21]. CD4+CD25+ cells and CD4+CD25− cells were purified from NOD mice with the same method used in WT mice. The absence of Treg cells was confirmed first in NOD CD4+CD25− T cells by flow cytometry. After RBC lysis and several washings, a total of 2×106 cells were recovered and cultured in 1-mL volume with previously optimized doses of plate-bound anti-CD3 Ab (0.125 μg /mL in 200 μL volume), rIL-2 (25 U/ mL), and FTY720 (10 ng /mL) for 6 days at 37°C in a 5% CO2 incubator in 48-well plates. MACS-purified CD4+CD25+ cells from WT counterparts were also cultured under the same condition to induce Treg cells. In control groups, cells were cultured in the conditioned medium without FTY720. After 6 days, the phenotype of cells was characterized by flow cytometry [11]–[13], [21].
Cell Sorting and Transfer
FTY720-induced CD4+CD25+ cells and CD4+CD25− cells were i.v. transferred into pregnant mice (2×106 cells for each mouse) 8 hours after CpG challenging on E6.5, and the embryo-resorption rate was measured on E9.5. In other cases, CpG challenging was performed on E14.5 and preterm birth was evaluated as described. Whole uteroplacental tissue was harvested for further analysis on Day 3 and Day 9 after adoptive transfer in embryo-resorption experiments [4], [5].
Flow Cytometry
Abs specific for murine CD45 (clone: 30-F11), CD4 (L3T4), CD25 (PC61), Foxp3 (3G3), and IL-10 (JES5-16E3) were purchased from BioLegend. Isolated UMGCs were washed in phosphate-buffered saline (PBS) and resuspended in PBS containing 2% FBS (staining buffer). For extracellular staining, the cells were incubated in the indicated combinations of Abs for 30 minutes on ice, rinsed with staining buffer, and assayed on a FACS Calibur flow cytometer using CellQuest software (BD Biosciences). Isotype controls were established by staining of isotype control Abs to exclude false-positive cells [18], [22]. Abs specific for Foxp3 and IL-10 were purchased for intracellular staining. UMGCs were washed with staining buffer and incubated in 96-well plates for 4–6 hours with Brefeldin A (BD Biosciences), PMA (Calbiochem), and ionomycin (Calbiochem). Cells were washed twice with staining buffer and stained for cell surface antigens as described above. For staining of intracellular antigens, UMGCs were washed with Perm Wash (BD Biosciences) and fixed with Cytofix/Cytoperm (BD Biosciences) for 25 minutes on ice and incubated with Abs for 30 minutes at room temperature. Cells were washed and analyzed using flow cytometry. Experiments were performed independently 4 times, and data were shown as mean±SD [4], [5], [23].
Statistical Analysis
Embryo resorption rate was compared among the groups using χ2 test. Flow cytometry data were analyzed using Quad statistics. An ANOVA was firstly used to show the effects of treatments in experiments where multiple groups were compared, and Student's t test was used as a post-hoc test. Experiments in flow cytometry were conducted independently four times in each group and the results were given as mean±SD [23]–[25].
CpG ODN Significantly Increased Pregnant Loss in NOD Mice, But Not in WT Counterparts
To evaluate the ability of CpG1826 to induce embryo resorption, doses ranging from 15 to 500 μg/dam were used. A significantly higher embryo-resorption rate was found in NOD mice than in WT mice even under the condition where only control ODN was administered (24.3% [25 of 103] vs. 5.7% [7 of 122]). The 25 μg/dam dose of CpG1826 was sufficient to induce significantly increased embryo-resorption in NOD mice when evaluated at gestational day 9.5 (E9.5). At this dose, CpG1826 increased embryo resorption rate in NOD mice (82.8% [77 of 93]; P<0.01 vs. control ODN-treated NOD mice), but not in WT counterparts (6.4% [7 of 110]) (Fig. 2A). Maternal wasting was also observed in NOD mice when CpG was given at a dose of 100 μg/dam or higher, and in WT mice when CpG was given at a dose of 500 μg/dam [4], [5]. No cranial or distal limb malformation was found in pups.
CpG1826 or control ODN was injected IP at the indicated doses (25 μg/dam for NOD mice, and 25 or 400 μg/dam for WT mice). (A) Mice were injected with CpG or control ODN at E6.5 and fetal resorption was assessed at E9.5. (B) Injection was performed at E14.5, and the preterm birth rate was assessed. (C) In addition to CpG or control ODN injection (25 μg/dam), anti-IL-10 neutralizing Ab was injected one day after CpG or control ODN injection, and fetal resorption was assessed at E9.5. (D) Anti-IL-10 Ab injection was performed one day after CpG or control ODN injection (25 μg/dam), and preterm birth was assessed. * Maximum preterm birth rate (100%) was observed at the indicated dose of CpG. Ten female mice were used in each group.
A similar trend was observed in preterm birth experiments. NOD mice more frequently delivered pups at the dose of 25 μg/dam within 72 hours of injection than control ODN-treated mice (100% vs. 10% in control ODN-treated NOD mice). No negative pregnancy outcome was observed after CpG1826-treatment in WT mice at the same dose or higher doses up to 400 μg/dam (Fig. 2B), and no malformation was found in the delivered pups.
Inactivation of IL-10 Increased Pregnancy Loss in CpG-Induced WT Mice
A neutralizing Ab was used for in vivo inactivation of IL-10. Though WT mice resisted to CpG-induced pregnancy loss at a high dose of 400 μg/dam, both embryo-resorption (61.4% [51 of 83] vs. 7.3% [8 of 109]; P<0.01) and preterm birth (60% vs. 10%; P<0.05) rates were increased in these mice when neutralizing anti-IL-10 Ab was injected together with CpG ODN stimulation as indicated. In comparison, anti-IL-10 treatment caused only a modest increase in the embryo-resorption rate and preterm birth rate in CpG-induced NOD mice and the increase was not statistically significant (embryo resorption: from 81.7% [58 of 71] to 100% [72 of 72]; preterm birth: from 90% [9 of 10] to 100% [10 of 10]) (Fig. 2, C and D).
As shown in Fig. 2B, CpG-injection in NOD mice results in 100% [10 of 10] preterm birth rate, while in another experiment, CpG-injection at the same dose in NOD mice results in 90% [9 of 10] preterm birth rate (Fig. 2D). However, no statistically supported significance was found between these two rates in preterm birth.
FTY720 Potently Induced Foxp3+ Treg Cell Conversion from CD4+CD25−Foxp3− Cells
In FTY720-containing RPMI 1640 medium, the cultured CD4+CD25−Foxp3− splenocytes from NOD or WT mice were converted into Foxp3+ Treg cells (iTreg cells) (Fig. 3A). Similar results were observed in CD4+CD25+ cells.
The percentage of Foxp3+ Treg cells was significantly increased upon FTY720 induction in vitro. CD4+CD25+ and CD4+CD25− cells were purified as indicated and cultured in the presence of FTY720 to generate Foxp3+ Treg cells from CD4+CD25− cells or increase the percentage of Foxp3+ cells in CD4+CD25+ cells. Foxp3 expression was measured using flow cytometry. (A) Representative results in flow cytometry. CD4+ cells were gated. A considerable proportion of Foxp3+ cells were found in FTY720-induced CD4+CD25− cells from both NOD and WT mice. (B and C) Data summary of flow cytometry. The percentage of Foxp3+ subset of CD4+ cells was significantly increased in both FTY720-induced CD4+CD25+ cells and FTY720-induced CD4+CD25− cells. The same trend was observed in both NOD and WT mice. (D and E) Absolute number of indicated cells with or without FTY720-induction in MACS-purified CD4+CD25+ cells (×105). * P<0.01. Experiments were conducted independently for 4 times.
In NOD mice, the percentage of Foxp3+ subset in CD4+ cells was 15.1%±3.5% after the conventional CD4+CD25− cells were cultured for 6 days in the FTY720-containing medium. The percentage was 42.5%±7.5% after CD4+CD25+ cells were cultured under the same condition. (Fig. 3, B and D)
In WT mice, the percentage of Foxp3+ subset in CD4+ cells was 22.6%±4.6% after the conventional CD4+CD25− cells were cultured for 6 days in the FTY720-containing medium. The percentage was increased from 9.3%±3.2% to 45.7%±6.4% after CD4+CD25+ cells were cultured under the same condition (Fig. 3, C and E).
Effects of iTreg Cell Transfer on Pregnancy Outcomes
CD4+CD25− cells are mainly composed of naïve T cells, while iTreg cells are included in the CD4+CD25+ cell subset. When the iTreg cells generated from both CD4+CD25+ cells (Fig. 4, A and B) and CD4+CD25− cells - (Fig. 4, C and D) were transferred into pregnant mice, respectively, the CpG1826-induced increase of fetal resorption and preterm birth in NOD mice were drastic abrogated. But no significant change of the embryo-resorption or preterm birth rate was observed in WT mice.
(A and B) Adoptive transfer of iTreg cells generated from CD4+CD25+ cells. (C and D) Adoptive transfer of iTreg cells generated from CD4+CD25− cells. Both kinds of transferred cells efficiently abrogated the CpG-induced increase of embryo-resorption and preterm birth in NOD mice. No change of embryo-resorption or preterm birth was observed in WT mice treated with CpG or cell transfer. Ten female mice were used in each group.
Because the iTreg cells from NOD mice and WT mice were similar in their capacity to prevent pregnancy loss, the cells used for adoptive transfer were mainly purified from WT mice in our further pregnancy rescue experiments.
Effects of iTreg Cell Transfer on Decidual Foxp3+ Cell Number
Decidual Foxp3+ cells were analyzed using flow cytometry after cell transfer of natural CD4+CD25+ (control cells) and FTY720-induced CD4+CD25− cells (iTreg cells), respectively. As shown in Fig. 5, when the control cells without FTY720-induction were transferred, the percentage of decidual Foxp3+ subset in CD4+ population was approximately 11% (11.1%±0.8%). However, when FTY720-induced cells were transferred, the percentage of decidual Foxp3+ subset in CD4+ cells on Day 3 and Day 9 after transfer was approximately 2.2-fold (24.9%±2.3%) and 1.6-fold (18.2%±1.9%) as high as the control group in which only control cells were transferred (P<0.01).
UMGCs were harvested after adoptive transfer of iTreg cells. Foxp3+ iTreg cells from WT splenic CD4+CD25+ T cells were generated by FTY720-induction (named as 'from CD25+ cells' group) (A-D), or from conventional WT splenic CD4+CD25− T cells (named as 'from CD25− cells' group) (E-H). In the 'control transfer' group, control cells without FTY720-induction were transferred. UMGCs were harvested and analyzed on Day 3 after transfer. The percentage of decidual Foxp3+ subset of CD4+ cells was indicated. (I) Data summary of flow cytometry. * P<0.05 vs. Day 3 and Day 9 FTY720-induced cell transfer group.
Effects of iTreg Cell Transfer on Decidual IL-10+ Cell Number
The percentage of decidual IL-10+ subset in CD4+ cell population was also evaluated by flow cytometry after anti-IL-10 Ab treatment or adoptive transfer of the iTreg cells from WT splenic CD4+CD25+ cells (data not shown) or CD4+CD25− cells induced by FTY720 (Fig. 6A). In NOD mice, IL-10+ percentage decreased after anti-IL-10 treatment (from 11.7%±3.3% to 2.2%±0.8%), but increased on Day 3 after cell transfer (62.5%±9.6%; P<0.01 for both). A similar trend was observed in WT mice (from 32.5%±7.2% to 9.5%±4.3% after anti-IL-10 treatment, but increased to 49.7%±5.9% after cell transfer; P<0.01 for both) (Fig. 6A).
UMGCs were harvested after adoptive transfer of iTreg cells. The relative (A) and absolute (B) IL-10+ cell number was measured using flow cytometry after anti-IL-10 Ab injection and iTreg cell transfer. The transferred cells were derived from FTY720-induction on conventional CD4+CD25− cells.
In NOD mouse, the absolute number of IL-10+ cells also significantly decreased after anti-IL-10 treatment, but increased after adoptive transfer of the iTreg cells from WT splenic CD4+CD25− cells (from 2.3×105 to 0.3×105 cells after anti-IL-10 treatment, but increased to 20.2×105 cells on Day 3 after cell transfer; P<0.01 for both). A similar trend was observed in WT mice (from 15.5×105 to 4.2×105 cells after anti-IL-10 treatment, but increased to 23.7×105 cells after cell transfer; P<0.01 for both) (Fig. 6B).
Previous research has shown that murine models of NK cell deficiency, such as NOD mice, are prone to spontaneous embryo loss and infertility. Restoring NK cell function improves pregnancy outcomes in NOD mice [9]. Conversely, depletion of NK cells increased embryo loss in NOD/SCID mice that retained remnants of functional NK cell populations [15], [16], [26]. In addition, when NK cell function was restored in NOD mice, embryo-resorption rates widely varied in mice [9]. We could separate these mice into the higher and lower embryo-resorption groups, and the higher embryo-resorption NOD mice had lower Foxp3+ T cell number [9].
Both T and NK cells are present in the pregnant uterus and are thought to play a critical role in modulation of maternal tolerance to an allogeneic fetus [27]–[31]. NOD mice suffer from impaired NK cell function and possibly the cross-talk between T cells and NK cells is impaired. Thus, NOD mice are prone to T cell-mediated diabetes based on T cell-mediated immune attack on pancreas β-cells [32]. In pregnant NOD mice, imbalance of T cell and NK cell function in the gestational tissue microenvironment may be related to increased pregnancy loss [11]–[13].
Though NOD mice are prone to pregnancy loss, the absolute number of pregnancy loss rate in natural pregnant NOD mice is only slightly but statistically higher than WT mice. In contrast, the pregnancy loss rate in NOD mice is remarkably higher when CpG challenge or anti-IL-10 injection is performed, as compared with the WT mice with the same treatment. Thus, we select a CpG-challenging and an IL-10-inhibiting model established in the NOD mice.
Treg cells express CD25 and a signature marker, Foxp3, and play a critical role in allo-immune tolerance induction [33]. The characteristic phenotype of Treg cells is Foxp3+CD4+CD25+ which can be detected on these cells naturally derived from thymus or derived extrathymically upon peripheral stimulation [28], [33]. Therefore, adoptive transfer of Treg cells may be a promising therapy to abortion and preterm birth in Treg cell-deficient subjects.
FTY720 has been demonstrated to bear therapeutic potential in autoimmune and allergic disorders and suppress graft-vs-host response in transplant rejection [34]. Upon phosphorylation, FTY720 is known to mimic the action of sphingosine-1-phosphate (S1P) and acts as an agonist of four of five S1P receptors [35]. When binding to S1P receptors on lymphocytes, FTY720 alters trafficking patterns of lymphocytes as migration of CD4+ T-cell into lymph nodes is elevated and their egress is impeded [36]. Other studies found that Foxp3+CD4+CD25+ cells are generated from conventional CD4+CD25−Foxp3− cells when cultured in the conditioned-medium containing FTY720 [11]–[13], [21]. The function of these converted cells remains largely unknown.
In this study, FTY720 is used to induce CD4+CD25− cell conversion into Foxp3+ cells in order to obtain more Foxp3+ cells. These Foxp3+ cells are used to prevent pregnancy loss in NOD mice challenged with CpG1826. After FTY720-treatment, the percentage of Foxp3+ cell subset is increased in both CD4+CD25+ and CD4+CD25− cell subsets. However, the conversion rate of induced cells converted into Foxp3+ cells is significantly higher in FTY720-treated CD4+CD25− cells than FTY720-treated CD4+CD25+ cells (Fig. 3).
Consequently, Foxp3+CD4+CD25+ cells from CD4+CD25−Foxp3− cells by FTY720-induced conversion were adoptively transferred into abortion-prone NOD mice [11]–[13], [21]. Both embryo-resorption and preterm birth rates were significantly decreased after cell transfer. In addition, adoptive transfer of these cells rescued the pregnancy loss induced by IL-10 inactivation in WT mice. The findings suggest that adoptive transfer of these cells may be a promising strategy in prevention of abortion and preterm delivery, especially those resulted from CpG-stimulation or similar challenges.
We previously found that NOD mice are prone to low-dose CpG stimulation and to CpG-mediated embryo-resorption and preterm birth. In contrast, WT counterparts are resistant to CpG stimulation at the same dose and even a higher dose [4], [5]. However, the mechanism was not fully elucidated. In addition, our previous work found that the percentage of IL-10+ cells in the decidual CD45+ cell population derived from NOD mice was significantly lower than WT mice [10]. NK cells have been shown to produce IL-10 in response to viral infection [37]. It is possible that NK cells from NOD mice are deficient in IL-10 production and this contributes to an inflammatory milieu. Thus NOD mice may respond to CpG in a manner similar to that in IL-10-/- mice. The findings in this study are in strong agreement with those observed in IL-10-/- mice [4].
To inhibit inflammatory pathologies, IL-10 functions at different stages of immune response and different anatomical locations. IL-10 was initially described as a T helper 2 (Th2)-type cytokine [38], but further evidence indicated that IL-10 production was associated with tolerant or Treg cell responses [39].
IL-10 is a much more broadly expressed cytokine by many cells in the adaptive immune system and innate immune system [40], [41]. The function and expression pattern of IL-10 in feto-maternal microenvironment may be distinct to that in extra-uterine tissues, because immune cells in decidua have unique phenotypes, functions, and constituent ratio [15], [42]. In this study, in vivo inactivation of IL-10 by its specific Ab significantly increased both embryo-resorption and preterm birth rates in WT mice that are resistant to CpG-mediated pregnancy loss when challenged at certain doses. In contrast, adoptive transfer of CD4+CD25–-converted Treg cells significantly increased the proportion and absolute number of decidual IL-10+ cells and prevented pregnancy loss. These findings indicate that IL-10 is critical to keeping a beneficial feto-maternal microenvironment when mammals are challenged by CpG or other pathogens.
FTY720 is believed capable of modulating peripheral effector and regulatory T cells in multiple sclerosis patients and proven to be effective in the treatment on this disease [43], [44]. Our findings suggest that adoptive transfer of FTY720-induced cells are effective in preventing CpG-induced embryo loss and preterm birth in NOD mice, and that FTY720 may be useful in developing a non-toxic therapy for reproductive failures.
Author Contributions
Conceived and designed the experiments: BS SS YS. Performed the experiments: YL XL. Analyzed the data: YL XL JW. Contributed reagents/materials/analysis tools: YS. Wrote the paper: YL XL BS SS.
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June 14, 2011
GILBERT ROBLES, JR.,PETITIONER,v.STATE OF CALIFORNIA,RESPONDENT.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on April 28, 2011 (doc. 14).
I. Background
Petitioner filed the petition in the United States District Court for the Northern District of California on January 5, 2011. On March 4, 2011, the court issued an order in which it noted that Petitioner, who had filed his action on a civil rights form, appeared to be challenging a conviction; however, he had failed to allege necessary information concerning exhaustion of state court remedies. The court concluded that it could not fairly evaluate the habeas action in its present state. It ordered the case reclassified as a habeas corpus action, and further ordered Petitioner to file within thirty days a habeas petition after completing an attached 28 U.S.C. § 2254 form. The court stated that if Petitioner did not file a completed § 2254 habeas petition form within the thirty-day deadline, Petitioner was informed that the case would be dismissed for failure to prosecute under Fed. R. Civ. P. 41(b). The order was served by mail on Petitioner on March 4, 2011. (Doc. 9, 5.)
After the deadline for filing the amended petition had passed, the case was transferred to this Court on April 15, 2011. On May 4, 2011, this Court issued an order to Petitioner to show cause within twenty-one (21) days why the action should not be dismissed for failure to file a completed petition and to follow an order of the Court. The order was served by mail on Petitioner on the same date. To date, over twenty-one days have passed, but Petitioner has not responded to the Court's order to show cause.
II. Dismissal of the Petition
Local Rule 110 provides that "...failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for the imposition by the Court of any and all sanctions... within the inherent power of the Court." District courts have the inherent power to control their dockets and "in the exercise of that power, they may impose sanctions including, where appropriate... dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must consider several factors: (1) the public's interest in expeditious resolution of litigation;(2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
In this case, the Court finds that the public's interest in expeditiously resolving this litigation and the Court's interestin managing the docket weigh in favor of dismissal, as the case has been pending since January 2011. The third factor, risk of prejudice to respondents, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor --public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a court's warning to a party that his failure to obey the court's order will result in dismissal satisfies the "consideration of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The court's order directing Petitioner to file an amended petition expressly informed Petitioner that failure to respond to the order would result in dismissal of the action. (Doc. 9, 3.) Further, the Court's order to show cause warned Petitioner that a failure to respond would result in dismissal of the action. (Doc. 15, 3.) Thus, Petitioner received adequate warning that dismissal would result from his noncompliance with the Court's order.
The Court concludes that the action should be dismissed for Petitioner's failure to follow a court order and to prosecute the case.
III. Certificate of Appealability
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.
A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, the Court will decline to issue a certificate of appealability.
IV. Disposition
Accordingly, it is ORDERED that:
1) The petition is DISMISSED pursuant to Local Rule 110 for Petitioner's failure to comply with the Court's order and to prosecute this action; and
2) The Court DECLINES to issue a certificate of appealability; and
3) The Clerk is DIRECTED to close the action.
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