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Meet our #LittleMissSunshine Abigail Breslin! Abigail is approx 1 year old Hound Mix, who took an epic road tripped from Florida to New York to become a #Badass. She's adjusting well to big city life and is working to perfect her leash skills and city manners. Her foster mama tells us that Abigail is a sweet and playful girl, who loves people and dogs. She wiggles and does her signature play bow with other pups and insists on saying hello to everyone! To foster or adopt please visit badassbk.com.


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3 Days in New York City
First Time in the City
Manhattan to Remember
One of the best pizza's outside Italy, and very friendly staff. Come early or book, this place is justifiably busy. A must for any NY visit.
Some of the best thin crust pizza around. A small, local restaurant that's always crowded. Just strike up a conversation and you'll have even more fun. For dinner on 11/17, we had the spinach salad - outstanding. We goofed on the pizza order, however; the toppings were not to our liking - our fault. The crust, as always, was outstanding....
We've been to Vezzo's twice and the quality of food has been consistent. Service is quick and friendly, and the pizzas are to die for. Love the location too. A great find away from the tourist traps closer to midtown.
Vex of was delicious!
We started with a grilled pear salad with Gorgonzola dressing.....Yum
Then each had a personal size pizza!
The best thin crust I've ever had...better than any I have eaten in Italy....
We arrived very early evening and were seated promptly...
A fab meal.lovely pizzas .very large and thin - one would do between you!!
Would definitely visit again!!
I have been to Vezzo numerous times for their excellent and creative thin crust pizzas. The place is clean and has a friendly vibe...although it can get very loud--especially when the music is really cranked up! Vezzo also has a great neighborhood feel to it. The salads are large, varied and delicious--plenty large enough to share. We particularly enjoyed the...
Travelled to New York with friends and stayed on Lexington. Found this place one night and were so glad we did. The staff were friendly and efficient, and the pizzas were excellent. It was so good we had to go back before we left for home.
The place is nice and cozy. Thers's a great variety of salads,amazing pizza and very good service. Recommended
My sister and brother in law came to NYC for a visit. We bought a Shroomtown and a Meat Lovers. My sister just raved about the crust. If you like thin crust pizza than Vezzo pizza is a must if you are in the Murray Hill area.
To start, the staff was nice and the service was good. Now for the food. We started w/ the Rotella, which is prosciutto wrapped around peppers and mozzarella cheese. This was not good. The prosciutto was cut too thickly, which makes it very chewy. And it lacked flavor. We also had the bruschetta which was had no flavor. Needed salt...
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This 4-star hotel is within close proximity of Let's Make A Deal and Bali Hai Golf Club.
Make yourself at home in one of the 3220 air-conditioned rooms featuring minibars and flat-screen televisions. Complimentary wireless Internet access keeps you connected, and cable programming is available for your entertainment. Private bathrooms with separate bathtubs and showers feature deep soaking bathtubs and designer toiletries. Conveniences include phones, as well as safes and desks.
Relax at the full-service spa, where you can enjoy massages, body treatments, and facials. Before a night out at the casino, the 3 outdoor swimming pools are a perfect way to relax and recharge. This hotel also features complimentary wireless Internet access, concierge services, and gift shops/newsstands.
Grab a bite to eat at one of the hotel's 19 restaurants and 3 coffee shops/cafés, or stay in and take advantage of 24-hour room service. Relax with a refreshing drink from a poolside bar or one of the 13 bars/lounges.
Featured amenities include a business center, limo/town car service, and express check-in. Planning an event in Las Vegas? This hotel has 1,700,000,000 square feet (0 square meters) of space consisting of a conference center and meeting rooms. Self parking (subject to charges) is available onsite.Information missing or incorrect? Tell us! Opens in a new window
Mandalay Bay's casino houses 120 gaming tables and 2,000 slot machines; race and sports wagering is also available. The House of Blues offers headlining musical acts, the Mandalay Bay Theatre hosts Broadway productions, and the Mandalay Bay Events Center is the site of major sporting and musical events (surcharges).
Other facilities include a 30,000-square-foot (2,787 square meter) health spa and fitness center (surcharge), and a hair salon.
Shopping options include everything from Mandalay Place mall to shops selling flowers and resort wear.
For recreation, guests enjoy a sandy beach with seasonal wave pool and lazy river, Moorea Beach Club, 3 outdoor splash pools, and 2 poolside cafés.
Among the dining venues are several fine-dining restaurants, a sushi bar, a 24-hour café, a buffet restaurant, and a coffee shop.
On-site meeting and event space includes a 1.5-million-square-foot convention center and a wedding chapel. Self and valet parking are available onsite (surcharge).
Available in all rooms: Free WiFi
Available in some public areas: Free WiFi
Self parking (surcharge) , Valet parking (surcharge)
Aureole - Based on Chef Charlie Palmer's New York eatery, this dinner restaurant features a 4-story wine tower.
Border Grill - Enjoy modern Mexican cuisine for lunch and dinner.
Burger Bar - The ultimate burger experience at Mandalay Place from Hubert Keller.
Citizens Kitchen & Bar - The menu features American comfort food at its best with something to satisfy every craving.
Crossroads @ House of Blues - Enjoy southern-inspired and Cajun cuisine for lunch and dinner at this live music and restaurant venue.
Kumi - Chef Akira Back's world famous cuisine features a modern Japanese menu with a Korean American twist.
Fleur - This restaurant serves small plates of international cuisine.
Lupo by Wolfgang Puck - Savory dishes inspired by Rome at Wolfgang Puck's first Italian restaurant.
1923 Bourbon & Burlesque by Holly Madison - The Prohibition-era of bootleg liquor and seductive cabaret come to life with a modern twist.
RM Seafood - Rick Moonen's restaurant offers intimate dining for lunch and dinner, with fresh seafood.
STRIPSTEAK - Chef Michael Mina's first steakhouse welcomes guests looking for the perfect filet in a modern alternative to the traditional steakhouse setting.
Beach Bar & Grille - This spot serves burgers, sandwiches, and snacks poolside.
Bayside Buffet - Enjoy sweeping beach views with a variety of cuisines from around the world.
House of Blue Foundation Room - With a view of the Las Vegas Strip, this restaurant serves Angus steaks, long bone short ribs, fresh market fish specialties, and other delicious menu items.
Hussong's Cantina - Authentic Baja cuisine, original margaritas, and sing-along rock-and-roll Mariachi band. Open for lunch and dinner.
Mizuya - Japanese restaurant serving fresh sashimi, hand rolls, and specialty rolls, with an extensive sake menu. Open for lunch and dinner.
The Noodle Shop - Guests can enjoy authentic Cantonese or Mandarin entrees for lunch and dinner.
Raffles Café - Extensive breakfast, lunch, and dinner menus are available at this 24-hour café.
Red Square - This restaurant features contemporary American favorites with Russian influences.
Ri Ra Irish Pub - Offers live music and an extensive drink list.
Slice of Vegas - This pizzeria serves NY-style pizza and fresh pasta dishes, as well as sandwiches and salads.
Sports Book Grill - Enjoy sandwiches, burgers, and salads while watching a game at this restaurant located in the casino's race and sports book.
Starbucks - Two Starbucks locations are on site, offering sandwiches, pastries, coffee, and tea.
The 135,000-square-foot casino has gaming tables, slot machines, a high-limit gaming parlor, and a race and sport book offering sorts and thoroughbred wagering.
Shark Reef (surcharge) is a walk-through, predator-based aquarium with 2,000 aquatic animals from the world's tropical waters, including 15 species of sharks.
The Mandalay Bay Events Center (surcharge) is a 12,000-seat sports and entertainment complex that hosts concerts, major sporting events, and television specials.
Mandalay Bay Theater (surcharge) is a state-of-the-art, 1,600-seat theater hosting Broadway productions and comedy headliners.
The 1,800-seat House of Blues (surcharge) concert hall offers a range of live music acts.
LIGHT: Cirque du Soleil has unveiled its first-ever nightclub at Mandalay Bay. Located near the doors to the parking garage, the 38,000-square-foot space is a creative laboratory showcasing a mix of entertainers and theatrics. The nightclub also has the largest general admission dance floor in Las Vegas and features an exclusive lineup of world-renowned DJs.
Michael Jackson - ONE by Cirque du Soleil: Combining dance, music and awe-inspiring visuals, Michael Jackson ONE by Cirque du Soleil brings alive Jackson's creative genius in a new adventure.
DAYLIGHT Beach Club: Centered around a luxurious pool with three wet decks, 5,000-person DAYLIGHT Beach Club sets the new standard for daylife in Vegas.
ECLIPSE: Vegas' first outdoor late-night pool show. Day and night, it delivers the ultimate Vegas pool party.
T-Mobile Arena is a 20,000-seat sports and entertainment venue that opened in April 2016 and is located just west of the Strip. The arena will host exciting, world-class events with something for everyone - from UFC, boxing, hockey, basketball, and bull riding to high-profile awards shows and top-name concerts.The Park also opened in April 2016 and serves as the official gateway to T-Mobile Arena. It offers an eclectic blend of restaurants, bars, and entertainment with rich desert landscaping reminiscent of the Mojave.
The 30,000-square-foot Spa Mandalay (surcharge) provides spa treatments, personal training, fitness equipment, a redwood sauna, eucalyptus steam room, warm and hot spa tubs, and cold plunge pool. An 11-acre sandy water complex includes 3 free-form pools, a seasonal lazy river, wave pool, and Moorea Beach Club. Beachside dining and cabanas are available.
The South Seas-themed Bali Hai Golf Club is a half-mile away; preferential tee times can be arranged for Mandalay Bay Resort guests upon request. The 18-hole courses at Desert Pines Golf Club and Royal Links Golf Club are both within 11 miles of the hotel.
Red Rock Canyon National Conservation Area, 21.5 miles away, provides rock climbing, biking and hiking trails, and scenic drives.
The recreational activities listed below are available either on site or near the hotel; fees may apply.
If you have requests for specific accessibility needs, please note them at check-out when you book your room.
Check-in time starts at 3 PM
Check-in time ends at midnight
Minimum check-in age is 21
Check-out time is 11 AM
Extra-person charges may apply and vary depending on property policy.
Government-issued photo identification and a credit card are required at check-in for incidental charges.
Special requests are subject to availability upon check-in and may incur additional charges. Special requests cannot be guaranteed.
Union Pay
No cribs (infant beds) available
You'll be asked to pay the following charges at the property:
We have included all charges provided to us by the property. However, charges can vary, for example, based on length of stay or the room you book.
The following fees and deposits are charged by the property at time of service, check-in, or check-out.
The above list may not be comprehensive. Fees and deposits may not include tax and are subject to change.
Green / Sustainable Property
This property participates in Green Key Eco-Rating Program, a program that measures the property's impact on one or more of the following: environment, community, cultural-heritage, the local economy.
* Rooms for this hotel are currently unavailable on our site.
† This room is not available on our site.


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September 3, 2010
JOHN JUSTIN JAMES, PLAINTIFF,v.SHANT SHEKLANIAN, DEFENDANTS.
REGARDING PLAINTIFF'S MOTION AMENDED MEMORANDUM DECISION FOR NEW TRIAL (Doc. 85)
On April 28, 2010, the jury returned its verdict in this action. The jury found that Madera Police Officer Shant Sheklanian ("Defendant") unlawfully used excessive force in the arrest of John James ("Plaintiff") in violation of Plaintiff's Fourth Amendment rights under the U.S. Constitution. (Doc. 79). However, the jury also found that Defendant's Fourth Amendment violation was not the cause of harm or damage to Plaintiff. (Id.). Following instructions on the verdict form, the jury made no finding as to damages.
On May 28, 2010, Plaintiff filed a motion seeking: (1) to set aside the judgment; (2) to grant judgment as a matter of law; (3) to amend the judgment; or (4) a new trial. (Doc. 85). Defendant filed opposition to Plaintiff's motion on June 17, 2010. (Doc. 89).
The court issued a Memorandum Decision on Plaintiff's motion on August 26, 2010. (Doc. 94).
Defendant filed a request for clarification of the Memorandum Decision on September 1, 2010 (Doc. 96).
II. FACTUAL BACKGROUND*fn1
On January 26, 2007, at or about 11:20 p.m., an altercation arose inside the Back Street Bar & Grill in Madera ("the Bar"), California. Approximately 20 to 30 patrons exited the bar, and several individuals began fighting in the street. Plaintiff exited the Bar and attempted to intervene in a confrontation between one of his friends and another person. A few moments later, several Madera Police Officers arrived at the scene.
Although the circumstances surrounding Defendant's use of force on Plaintiff are subject to dispute, it is undisputed that Defendant tackled Plaintiff, punched Plaintiff after tackling him, and later utilized his taser on Plaintiff. Plaintiff was then arrested, placed in the back of a patrol car, and taken to a local hospital where he was treated for his injuries. Plaintiff paid approximately $466 dollars for medical care related to the injuries he sustained on January 26, 2007.
Plaintiff testified that the taser strike was "very painful" and that he had "a lot of pain" in his left shoulder for about three weeks after the attack. Two taser barbs where lodged in Plaintiff's chest area and where not removed until Plaintiff arrived at the hospital, where his wounds were treated. Plaintiff also sustained a laceration and a knot above his left eye. Plaintiff stated that he experienced limitations with respect to his ability to lift items over two pounds, to lay down with his arms in certain positions, and to engage in recreational activities. At the time of trial, tension and pain in Plaintiff's shoulder persisted.
Federal Rule of Civil Procedure 50 provides, in pertinent part:
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue
Fed. R. Civ. P. 50. A renewed motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) is properly granted "if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." E.g. Harper v. City of L.A., 533 F.3d 1010, 1021 (9th Cir. 2008)(citation omitted). "A jury's verdict must be upheld if it is supported by substantial evidence, which is evidence adequate to support the jury's conclusion, even if it is also possible to draw a contrary conclusion." Id.
Federal Rule of Civil Procedure 59 states in part, "A new trial may be granted . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed. R. Civ. P. 59(a)(1). Historically recognized grounds include, but are not limited to, claims "that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving." Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). Where a Rule 59 motion is based on a challenge to the jury's assessment of the evidence, the trial court may grant a new trial only if the jury's verdict was against the clear weight of the evidence. See, e.g. Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1083 (9th Cir. 2009).
A district court may set aside a jury's verdict and order a new trial where the jury's findings are so inconsistent that they cannot be reconciled with each other. White v. Ford Motor Co., 312 F.3d 998, 1005 (9th Cir. 2002). In an inconsistent verdict case, a court asks not whether the verdict necessarily makes sense under any reading, but whether it can be read in light of the evidence to make sense. Id. Only in the case of fatal inconsistency may the court remand for a new trial. Floyd v. Laws, 929 F.2d 1390, 1396 (9th Cir. 1991) (citing Gallick v. Baltimore & O.R.R. Co., 372 U.S. 108, 110 (1963)). A court determines the meaning of the verdict in light of the jury instructions. Borck v. City of L.A., 303 Fed. Appx. 437, 439 (9th Cir. 2008) (unpublished) (citing Floyd, 929 F.3d at 1399); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1038 (9th Cir. 2003).
A. Inconsistency of the Verdict
Plaintiff contends that in light of the jury instructions and evidence presented at trial, the jury's finding that Defendant used excessive force on Plaintiff but that Plaintiff's excessive force was not the cause of harm to Plaintiff is fatally inconsistent. The jury was provided with the following causation instruction:
In order to establish that the act of Officer Shant Sheklanian deprived the plaintiff of his particular rights under the laws of the United States Constitution as explained in other instructions, the plaintiff must prove by a preponderance of the evidence that the act was so closely related to the deprivation of the plaintiff's rights as to be the moving force that caused the ultimate injury.
(Doc. 77, Instruction 15).
The causation instruction accurately informed the jury of the causation requirement. Causation is established where the evidence demonstrates that a defendant's action was a substantial factor in bringing about the harm underlying a plaintiff's claim. E.g., Whiteley v. Philip Morris, Inc., 117 Cal. App. 4th 635, 701 (Cal. Ct. App. 2004) (discussing substantial factor standard); Hardison v. Bushnell, 18 Cal. App. 4th 22, 26 (Cal. Ct. App. 1993) ("simple test for determining whether the cause-in-fact component of legal cause exists: Was the actor's conduct 'substantial factor in bringing about the harm[?]'"); accord Harpe v. City of L.A., 533 F.3d 1010, 1027 (9th Cir. 2008) (causation established where defendants action was "moving force behind the injury of which the plaintiff complains"). Harm is established by evidence that a plaintiff suffered a detrimental change to the body. Macy's California, Inc. v. Superior Court, 41 Cal. App. 4th 744, 755 (Cal. Ct. App. 1995). Use of force on another is so closely connected to the injury resulting from such force that it is the legal cause of the harm sustained. See Delgado v. Interinsurance Exchange of Automobile Club of Southern California, 47 Cal. 4th 302, 308 (Cal. 2009) (discussing causation element of assault and battery).
The evidence presented at trial indicated that Defendant was responding to a reported fight in a public street outside the Bar. Defendant, upon arrival, saw no fighting among people gathered in the street. Defendant saw Plaintiff talking to two or three individuals. Defendant tackled Plaintiff to the ground, punched him in the face, and utilized a taser on Plaintiff. The evidence presented at trial also indicated that Plaintiff suffered pain as a result of Defendant's use of force, and that Plaintiff incurred medical bills at a local hospital emergency room in connection with the physical injuries he sustained during Defendant's use of force, including removal of taser darts from his chest. No evidence was presented, nor did any exist, regarding alternate causes of Plaintiff's physical injuries. In light of the evidence presented at trial, the jury's finding that Defendant did not cause Plaintiff harm cannot be reconciled with the jury's finding that Defendant violated Plaintiff's Fourth Amendment right to be free from unreasonable seizure under color of law.
Defendant's opposition to Plaintiff's motion for a new trial contends that the jury could have reasonably found that Defendant used excessive force but that Plaintiff was not entitled to damages. The jury did not reach the issue of damages because it found no causation. This was clear error. That defendant suffered physical and mental pain and sustained physical injuries as a result of Defendant's use of force is undisputed. There was no evidence presented that would allow the jury to conclude that Defendant was not the cause of such pain and injuries. The fundamental inconsistency in the jury's verdict is its finding that Defendant used excessive force, but that such force did not cause harm to Plaintiff. The jury's verdict is legally irreconcilable. Whether, in the jury's mind, the act which rose to the level of excessive force was Defendant's tackling, punching, or tasing of Plaintiff is immaterial. Because Defendant's use of excessive force is inseparable from the pain, medical treatment, and injury caused thereby, the jury's finding that Defendant did not cause Plaintiff harm renders the jury's verdict fatally inconsistent and requires granting of Plaintiff's motion for a new trial. See Floyd, 929 F.2d at 1396.
B. Compromise Verdict
A compromise verdict "is one reached when the jury, unable to agree on liability, compromises that disagreement by entering a low award of damages." E.g. National Railroad Passenger Corp. v. Koch Industries, Inc., 701 F.2d 108, 110 (10th Cir. 1983). Compromise verdicts are a species of juror misconduct. See Aczel v. Labonia, 584 F.3d 52, 61 (2nd Cir. 2009) (characterizing compromise verdict as juror misconduct); see also Eastland Partners Ltd. Partners v. Village Green Mgmt. Co., 342 F.3d 620, 633 (6th Cir. 2003) (same); United States v. Straach, 987 F.2d 232, 241-42 (5th Cir. 1993) (distinguishing compromise verdict from other types of jury misconduct involving external influences). When a jury renders a compromise verdict, it "subvert[s] the law and contort[s] findings of fact in favor of a desired result." See Cal. v. Altus Fin. S.A., 540 F.3d 992, 1009 n.17 (9th Cir. 2008). A compromise verdict demonstrates that they jury failed to give due regard to the evidence. National Fire Ins. Co. of Hartford v. Great Lakes Warehouse Corp., 261 F.2d 35, 38 (7th Cir. 1958).
To determine whether a verdict is a compromise verdict, a court looks for a close question of liability, a damages award that is grossly inadequate, and any other indicia of compromise apparent from the record. E.g. National Railroad Passenger Corp., 701 F.2d at 110; accord D'Hedouville, 552 F.2d at 897; Hatfield v. Seaboard A.L.R. Co., 396 F.2d 721, 723-24 (5th Cir. 1968). Although an insufficient damages verdict, standing alone, does not necessarily indicate a compromise verdict, Mekdeci v. Merrell Nat'l Lab., 711 F.2d 1510, 1513 (11th Cir. 1983), a clearly insufficient damages award raises suspicion of a compromise verdict, Pagan v. Shoney's, Inc., 931 F.2d 334, 339 (5th Cir. 1991). A district court may not set aside a verdict on the basis of an improper compromise where the jury might have reasonably reached an allegedly improper award based on the evidence in the record. E.g. Pagan, 931 F.2d at 339.
Where it appears the jury rendered a compromise verdict, a district court may order a new trial. E.g. Romberg v. Nichols, 970 F.2d 512, 521 (9th Cir. 1992) (citing National Railroad Passenger Corp., 701 F.2d at 110); D'Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 897 (9th Cir. 1977). A jury's impermissible compromise verdict taints the entire proceeding and the proper remedy is a new trial on all issues. Carter v. Moore, 165 F.3d 1071, 1083 (7th Cir. 1998) (citation omitted); Pryer v. C.O. 3 Slavic, 251 F.3d 448, 456 (3rd Cir. 2001) ("the probability that the verdict was tainted by compromise also leads us to favor a new trial on all issues"); D'Hedouville, 552 F.2d at 897 (new trial on all issues warranted where circumstances indicate improper compromise verdict); Lucas v. American Mfg. Co., 630 F.2d 291, 292-94 (5th Cir. 1980) (ordering new trial on all issues where compromise verdict was apparent); Hatfield v. Seaboard Airline R.R. Co., 396 F.2d 721, 723-24 (5th Cir. 1968) (same); Schuerholz v. Roach, 58 F.2d 32, 34 (4th Cir. 1932) (same). "Grant of a partial new trial is appropriate only in those cases where it is plain that the error which has crept into one element of the verdict did not in any way affect the determination of any other issue." Pryer, 251 F.3d at 455 (citations omitted).
The jury's contradictory findings regarding liability and causation strongly suggest that the jury failed to give due regard to the evidence, subverted the law, and contorted the facts in order to achieve a desired result. Although it is undisputed that Plaintiff suffered injuries as a result of Defendant tackling, punching, and tasing Plaintiff, the jury found that Defendant's use of excessive force did not cause Plaintiff harm. The jury's finding of no harm is not only contrary to the undisputed facts established at trial, it is illogical on its face. No rational juror could find that Plaintiff did not suffer some amount of harm as the result of Defendant's actions. The jury's "disregard for uncontested and obvious damages" establishes an intolerably high probability that the jury rendered a compromise verdict. See Pagan, 931 F.2d at 339. Because a clearly insufficient damages award is sufficient to raise serious suspicion of a compromise, a fortiori, where the jury does not even reach the issue of damages because it renders an illogical, unsupportable finding on an undisputed question of harm, the probability that the jury rendered an impermissible compromise verdict is too high to permit any portion of the verdict to stand. See, e.g., Pryer, 251 F.3d at 456. It is not plain that the error which affected the jury's verdict on Plaintiff's excessive force claim did not affect the jury's determination of Plaintiff's unlawful arrest claim. Id. at 455. Because it is impossible to ascertain the full scope of the jury's compromise, See Fed. R. Evid. 606(b), the jury's misconduct has tainted the entire proceeding and the appropriate remedy is a retrial on all issues, including Plaintiff's unlawful arrest claim, Carter, 165 F.3d 1071 at 1083; Pryer, 251 F.3d at 456; D'Hedouville, 552 F.2d at 897.
For the reasons stated, IT IS ORDERED:
1) Plaintiff's motion for a directed verdict is DENIED;
2) Plaintiff's motion to amend the judgment is DENIED;
3) The Clerk of Court is DIRECTED to vacate the judgment;
4) Plaintiff's motion for a new trial is GRANTED; and
5) A new trial date shall be set in accordance with the parties' early availability.
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When Bob Newhart played a psychologist in the 1970s sitcom "The Bob Newhart Show" and then as innkeeper Dick Loudon in the 1980s sitcom "Newhart"; the last episode of Newhart made us believe the entire 80s series was illusory. The wife in the 1970s series played by Suzanne Pleshette suddenly awoke next to "Bob" as he shared with her that he had a strange dream.
This is the only way I can explain the surreal feelings that I had when I came back to Chattanooga for a visit.
It was too soon to come back for me, but I had work to do and I did want to see my youngest son and his family. Having the twins and Landon and Kylee up for a visit last weekend helped me not miss my family so much but, honestly, I loved being on the farm and I didn't want to leave even for a weekend.
Most of my time since getting married has been spent unpacking or catching up on work or organizing the house. Jason lived on the farm as a fairly neat bachelor and the house was in order to the naked eye, but after moving in my guess is that he had not once cleaned the ceiling fans since he moved in or dusted the baseboards or cleaned the 'extra' things that even most cleaning agencies or bachelors don't do – but a 'wife' does, and I was quite the busy bee.
Still a newlywed, I wasn't through 'setting up camp' nor feeling acclimated in my new home and new town just yet and it was still new to me. I needed to go to Chattanooga for work and I had hoped to see my youngest son, but he was working and my time in Chattanooga was short.
Before heading out on my trip, I felt myself stalling. I had not packed. I had not made plans. I had no excitement in going.
In fact, as Jason and I talked about me leaving he would say, "Gosh, it feels like you are going back home to stay…" and that was exactly how I felt. I wasn't ready to leave my husband even for a couple of days. I did want to see Mama and I know that she had missed me, but my new life had just begun and it really started feeling like it was all just a dream.
I think because Jason's and my courtship involved us being together for a few days or a week at a time, only for me to return home, caused this unnerving feeling.
As life takes its many turns there is always the transition phase (no matter how wonderful it may be) and it is somewhat foreign.
When I first became single after an 11-year marriage being single was foreign to me. I didn't know how to be single. When I remarried after being single for five years – even though it felt right, it was still new and I had a lot to get used to. It takes time to develop a comfort-zone in a new setting and the easiest way to do that is to slowly accept and embrace the new. As a single person it was not what I wanted, but I accepted it and I embraced that time in my life and eventually, I saw the good in it.
I learned to be single and I learned to create my own identity and to create a life for myself which was dependent on nobody else but me. That was a very important time in my life and it was important before God would bring me my true soul mate.
Even as I made a life for myself and I was already happy before Jason and I found each other, I cannot imagine my life without him and I believe I will always feel my heart swell and my eyes water when I think of how much I love him.
I had finished an assignment for work early on Friday morning, but I knew Jason would be home at lunch to meet with Matt of WK&T Communications to discuss the fiber optics installation that I had hinted to him about (I missed my EPB) and I thought I would wait to leave after he went back to work.
After the representative left and Jason decided to go with the fiber optics for faster Internet speed, we said our goodbyes and I went to pack my Army backpack that my son Andrew gave to me. That was all I needed.
When I would pack to go see Jason, I had several outfits 'to impress', all my make-up and hair products and about five-10 pairs of shoes. This time, all I needed was to have a change of clothes for Saturday and traveling clothes for Sunday morning.
As I headed out, I put in my favorite "As Isaac" CD to sing along with and realized 'they' had been in my Jeep since I moved. I had missed them. I packed two cell phones that I promised to bring to Meleah, the manager of the group, for a donation to an upcoming mission trip and I would be glad to see her.
After singing with my favorite group, I hit Nashville traffic and felt it was time for a little classical to soothe me. I put in my Jackie Evancho CD and listened to her sweet, angelic voice. When she began singing my favorite song, "Nessun dorma" I tried to sing along. I used to be able to sing very high notes but I have been so out of practice.
Of course, the song is in another language and it is on my bucket list to learn the words, but until then I have a few of the words memorized where the notes are held out longer at the end of a verse. Basically, I will sing, "La la da da da la la-a-a … di speranza" and then I will finish the ending forte with the only words I really know, "All'alba vincerò! Vincerò! Vincerò!"
While Nashville traffic is at 10-mile-per-hour speed, fellow travelers would see me with my mouth open wide and jaw dropped, trying to hit the high notes.
When I drove through Monteagle Mountain, the familiarity spoke to my senses and I had this strange feeling of being back home… but it wasn't home. Home is with Jason. Home is on Whisper Run Farm in Kentucky.
My wedded bliss felt as if it were just a dream that came to an abrupt end.
Here I was traveling back from 'a visit' to Jason's and now I was going 'back home' to Mama's house to sleep in a single bed, listening to the interstate traffic and watching the Waltons. I knew that I had to get a hold of my feelings as I felt tears welling up in my eyes. I didn't want Mama to feel that I dreaded my visit or that I didn't want to see her. That wasn't it at all.
When I pulled in the driveway, Mama was outside waiting. I told her to be ready to go out to eat and we would have dinner together. I didn't want her to treat me as company and prepare special meals or have to get groceries she would not usually have.
We had a nice dinner and then went back to the house. I set my backpack down and plopped down in the same recliner I used to sit in and Mama turned on the television to the Waltons.
That was when it really felt strange - strange because it felt so normal. It felt as though I had never left and as though I were not married. I did not have a husband and I did not live on a farm. I shared with Mama how I felt and she understood. I knew that I would not stop feeling unsteady until I drove back to the country to my Kentucky home. That night I woke at 3 a.m. and Jason wasn't beside me. I was glad to have the feeling that 'he was missing', because I was afraid of his being 'just a dream' was becoming real.
Knowing that my son couldn't make plans with me, I made the whole Saturday for Mama. I wanted to make her feel special so I took her to get a pedicure and shopping to get a few new tops.
Mama walked with me through the mall, but she is not used to walking far distances and she grew tired and needed to rest. She told me she didn't have to pick out anything, that she trusted me to get it and she would sit and wait on me. I had her sit in a chair outside of Dillard's and I went in the store. In seven minutes I had found, purchased and came out with three new tops for her. I barely gave her time to make a butt-print in the chair. That's how I shop – mission minded. I know what I need to get and I get it and get out of there.
Of course, when one hurries, one is apt to be forgetful.
When we pulled in the driveway I realized I did not have my cell phone. Mama and I headed back to the mall and I was certain I left it at the register and told Mama to just stay in the car. When the sales clerk told me my phone was not there I hoped it had fallen under the seat in the car and maybe if I called it, I would find it there.
I fast-walked back to my Jeep… but I passed it up. When I found myself in a sea of black Jeeps and SUV's I heard a muffled voice call out, "Jenny!" I looked in one direction, but didn't see my Jeep. Then I heard the voice again, "Jen-n-n-n-ny!" and I saw my sweet Mama waving me back to shore. She got a good laugh out of that.
I told her my phone was not at the mall, so I asked her to call it from her cell phone. She did and when we didn't hear it ringing in the car, I wanted to know if it was perhaps left at the nail salon. Mama started to hang up and I said, "No, let it keep ringing … see if anyone answers it – it could be at the salon." She did, but after several rings it went to voicemail. I got tickled when she started to leave a message.
Just then, my phone rang as I was headed back to the nail salon. Mama answered it for me and it was a girl at the salon telling us they had my phone. Mama let them know we were on our way to get it.
After I retrieved my phone and got back in the car, I began laughing and Mama asked what was so funny. I told her to call my phone again.
When she called my phone, she could hear my new ring tone with the trumpet blasting the Kentucky Derby's "Call to Post".
I said, "Can you imagine what all the ladies in the salon were thinking when all of a sudden they heard that??"
Mama and I chuckled all the way home. We had a good time eating out, quickly shopping and laughing.
On Sunday morning, I packed much quicker than I had before. I was ready to head back "home". On my way, I met with my girlfriend Mary who was able to swing some time to see me and we enjoyed brunch together before I traveled the long four-hour trip. I know I said it was just a short three hours and 40 minutes in my last article but that was to get my children to come see me. It felt much further now and I couldn't drive fast enough to see the flat pastures of Kentucky!
I am not one to speed – ever, but I found myself on a Sunday drive with hardly any traffic going 10 miles faster than usual. I developed a terrible headache that worsened as time went on, but nothing felt any better than pulling in my driveway at my house in my hometown.
I am sure my next trip to Chattanooga will be more exciting for me and I will be ready to come back for a visit, but right now… there is no place like HOME.
December 9, 2016
CDOT announces intermittent lane closures on Vance Road between Airport Road and Lee Highway for resurfacing. Work will start on Monday and continue until Saturday, Dec. 17. Traffic control devices ... (click for more)
Hamilton County Sheriffs Office is partnering with the Tennessee Highway Safety Office to enhance drunk-driving enforcement from Dec. 15 to Jan. 1, surrounding the holiday season. The statewide ... (click for more)
The Tennessee Department of Transportation will conduct quarterly testing and maintenance on the Market Street Bridge in downtown Chattanooga on Sunday, during which time the bridge ... (click for more)
CDOT announces intermittent lane closures on Vance Road between Airport Road and Lee Highway for resurfacing. Work will start on Monday and continue until Saturday, Dec. 17. Traffic control devices will be in place to direct traffic, but motorists should expect delays during these times. In order to view a map of these closures, click here . (click for more)
Hamilton County Sheriffs Office is partnering with the Tennessee Highway Safety Office to enhance drunk-driving enforcement from Dec. 15 to Jan. 1, surrounding the holiday season. The statewide Booze It and Lose It Campaign is part of a national mobilization to prevent drunk driving. During this time, the HCSO will be involved in helping to inform drivers about the ... (click for more)
Rev. Lurone Jennings, administrator of City Youth and Family Development, has been suspended for one week for misallocation of funds. He also is to be issued a letter of reprimand and will undergo ethics training. The action came after a critical audit report from City Auditor Stan Sewell. It says Mr. Jennings transferred $18,500 of funds to a program, Journey Educational ... (click for more)
Walker County Sole Commissioner-Elect Shannon Whitfield said there will be a new arrangement for holding of public commissioner sessions when he takes place at the start of January. Current Commissioner Bebe Heiskell has held Thursday meetings at 3:30 p.m. from time to time in a conference room at her office near the Walker County Courthouse in LaFayette. Mr. Whitfield said those ... (click for more)
Spreading false information isn't only harmful, as we've been made aware recently. The spread of false information can be outright dangerous. Calling himself a Christian and all, Roy truly disappoints on so many levels with his recently opinion piece about black students attending predominately white schools being the cause of so much problems and grief at those schools. ... (click for more)
If I could change one thing about the schools in Chattanooga, my wish would be that everybody could become good friends. I'm talking about the private schools versus the public schools. The rancor is so bad we hardly ever play in sports anymore and what the loathsome TSSAA has done in recent years to the out-numbered private schools is sinful. My dream would be that there would ... (click for more)


text: 5 Best Moments Of Carmelo Anthony With New York Knicks By Gustavo Braga PREV NEXT 5 Best Moments Of Carmelo Anthony In New York Getty Images Carmelo Anthony is 30 years old today, and to celebrate his career let's take a look at five of his best moments playing for the New York Knicks. Anthony came a long way since being drafted in 2003 by the Denver Nuggets, and now he faces a crossroad, needing to decide if he is going to stay in New York or play for another franchise. Whatever his decision might be, New York fans are grateful for Melo and everything he's done for the team. 5. 62 Points At The Madison Square Garden Getty Images 5. 62 Points At The Madison Square Garden Getty Images During the past season, few moments made the fans really get out of their seats, but Anthony's performance against the Charlotte Bobcats was one of them. He banked 62 points, breaking the Madison Square Garden's all-time record for points in a game. For that, he was honored and everyone can see his feat at the Garden since then. 4. Altercation With Kevin Garnett Getty Images 4. Altercation With Kevin Garnett Getty Images Carmelo showed that his honor and his wife's are not for sale. One of the best trash talkers in the league -- Kevin Garnett -- forced Anthony to take a stand for himself and physically defend his family against KG's offensive lines. That's just another thing to add to the Knicks/Celtics rivalry. 3. Back To The Playoffs Getty Images 3. Back To The Playoffs Getty Images After a decade of being mediocre, Carmelo put the Knicks back on the map. In 2011, Anthony led the team to their first playoffs since 2004. Anthony hadn't missed the playoffs in his career and wasn't about to lose with the Knicks. 2. 2012-13 Season Getty Images 2. 2012-13 Season Getty Images The 2012-13 season as a whole belonged to Melo. Getting his first scoring title, he led the team to a superb season that would end tragically against the Indiana Pacers in the Conference Semifinals. If there was any doubt that he could carry a team on his shoulders, Melo made sure to answer that with authority. 1. Clutch Threes vs. Chicago Bulls in 2012 Getty Images 1. Clutch Threes vs. Chicago Bulls in 2012 Getty Images To illustrate what kind of player Carmelo Anthony is, the game with the Chicago Bulls in April 2012 is a perfect example. With not one but two clutch threes, the forward got the game to overtime and eventually got the victory. Anthony is like that -- clutch. This is one of the many times Melo took the responsibility on himself and was rewarded for it. Teams in this article » New York Knicks Share You May Also Like Related Stories Chicago Bulls SG Jimmy Butler Says Goodbye To Derrick Rose With Heartfelt Instagram Post Derrick Rose Will Not Substantially Improve New York Knicks' Roster New York Knicks Must Sign Two Of These 5 Free Agents In 2016 Chicago Bulls Shouldn't Trade Derrick Rose To New York Knicks Cleveland Cavaliers Rumors: Kevin Love For Carmelo Anthony Swap Would Be A Lateral Move New York Knicks Must Trade For One Of These 5 Players In 2016


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August 4, 2009
THE COOPER HEALTH SYSTEM, PLAINTIFF,v.VIRTUA HEALTH, INC., DEFENDANT.
This matter is before the Court on the "Motion of Non-Parties The Star Group and Plesser & Clifford for Protective Order" (hereinafter collectively "moving parties"). [Doc. No. 39]. The issue to be addressed is whether the non-parties' allegedly privileged and irrelevant documents must be produced to plaintiff. The Court has received plaintiff's opposition [Doc. No. 47] and the moving parties' reply [Doc. No. 57]. The Court has exercised its discretion to decide the moving parties' motion without oral argument (see Fed. R. Civ. P. 78 and L. Civ. R. 37.1(b)(3)). For the reasons discussed herein, the moving parties' motion is GRANTED in part and DENIED in part.*fn1
By way of brief background, this case involves a dispute between a local hospital and health care system over their respective advertisements. The Star Group ("Star") is defendant's advertising agency of record. Star contends that Plesser & Clifford ("Plesser") is an independent research firm that performed "certain services" for Star related to Star's work for defendant. Moving Parties' Brief at 1, Doc. No. 39. This action was originally filed in New Jersey Superior Court, Camden County, Chancery Division, on February 11, 2009, and was removed to this court on February 20, 2009. While the action was pending in state court the Honorable Mary E. Colalillo entered a February 11, 2009 Order temporarily enjoining defendant from engaging in the publication and distribution of certain advertising. On February 18, 2009, Judge Colalillo modified her February 11, 2009 Order and entered temporary injunctive relief. Defendant removed the action to this court on February 20, 2009.
On February 11, 2009, Star was served with plaintiff's subpoena asking for the production of documents on February 16, 2009. On February 18, 2009, the moving parties produced documents. Star supplemented its production on February 19, 2009. On March 9, 2009, Plesser served additional documents in response to another subpoena plaintiff served. Brief at 2-3. On February 17, 2009, Judge Colalillo held a hearing on Star's motion to quash filed on February 13, 2009. Star contends it agreed at the hearing to produce documents from itself and Plesser by the next day, without waiving any of its objections. Star and Plesser allege that Judge Colalillo directed them to produce documents but to redact objectionable material "pending further determination." Brief at 2. After Plesser was served with plaintiff's subpoena in this case, it produced additional documents and a privilege log listing twelve documents "withheld by virtue of attorney client, work product, litigation strategy, and relevancy." Brief at 2-3.
The documents Star produced to plaintiff contained redactions. Star alleges its redactions fit into three categories (1) the amount of the monthly agency fee Virtua paid Star "which information is highly sensitive," (2) the amount Star charges Virtua for advertising and marketing work performed by vendors and media outlets "which are rates specially negotiated by The Star Group with such third parties and which information is highly sensitive," and (3) strategic recommendations from Star to Virtua for future advertising which is "highly sensitive." Brief at 3.
Plesser claims it withheld documents concerning (1) Cooper's attempt to obtain a temporary restraining order against Virtua, (2) Cooper's subpoena to Plesser, and (3) decisions regarding Plesser's representation and selection of counsel. Brief at 3. Plesser argues, "[b]ecause Cooper has criticized the work of Plesser performed for The Star Group, and The Star Group's work in turn for Virtua, both Plesser and The Star Group share a substantially similar legal interest in ensuring that Cooper's criticism's (sic) of the work are disproven." Brief at 3-4.
Plesser also objects to plaintiff's request for six reports prepared for Plesser's clients including Star. These reports were identified by Mr. Bernard Plesser during his April 29, 2009 deposition. The reports are: Medical Monitor Studies (2), TEVA Study, Tinea Pedis Study, St. Clair's Hospital Study and Cancer Cooperative Group Study. Brief at 4. Plesser claims "these reports are not the property of Plesser and Plesser does not believe that he has the authority to release them." Brief at 4. Star, which only owns the Medical Monitor Studies, objects to the production of the reports because they are irrelevant to plaintiff's claims. Id.
Plaintiff argues the withheld documents are not protected by the community of interest privilege. Plaintiff also argues that Star's redactions are excessive and exceed what was permitted by Judge Colalillo's February 18, 2009 Order and her February 17, 2009 ruling. Brief at 22, Doc. No. 47. In addition, plaintiff argues that Star and Plesser do not have standing to object on relevancy grounds to the production of the requested documents. The Court has reviewed in camera Star's redacted documents and Plesser's documents withheld on the grounds of privilege.
Star's Redactions
Plaintiff's basic dispute with Star is its claim that Star's redactions "far exceed the advertising rate information." Brief at 21. Plaintiff also claims that Star's redactions "clearly far exceed that permitted by [Judge Colalillo in her] ... February 18, 2009 Order and as stated by the Court during the February 17,2009 hearing." Brief at 23. Plaintiff concludes "that this Court has no power to modify or alter the prior Order of Judge Colalillo" (id.) and, therefore, Star's motion should be denied. Star disputes that Judge Colalillo limited its redactions in the manner alleged by plaintiff.
In order to decide the present motion the Court does not have to determine the precise parameters of Judge Colalillo's directions to the parties. This is so because the Court will independently review Star's documents to decide what is discoverable and should be produced. Plaintiff is incorrect when it argues that the Court may not modify or alter Judge Colalillo's Orders.
After a state court action is removed to federal court the "case will then proceed as if it had been brought in the federal court originally." Tehan v. Disability Management Services, Inc., 111 F. Supp. 2d 542, 547 (D.N.J. 2000)(citations omitted). As to orders that were previously entered in the state case, they remain in full force and effect until dissolved or modified by the district court. 28 U.S.C. §1450. This statute does not set forth the standard a federal court should apply to determine if it should dissolve or modify orders or judgments entered in a state case. "Instead, the orders or judgments entered by the state court prior to removal should be treated as orders or judgments entered by the district court." Tehan, 111 F. Supp. 2d at 547. This means that a district court has the power to enforce, continue or modify orders of the state court as it would any such order it might itself have entered. Id. See also James Wm. Moore, Moore's Federal Practice, §107.31[3] (3d ed. 2008) ("[i]n general, the federal court takes the case on removal exactly as the case stood in state court. Accordingly, the state court pleadings, any discovery had, orders entered, or proceedings will be presumed valid by the district court." Also stating, "[s]tate court rulings (including discovery orders and all other orders up to and including judgment) remain in effect until modified or supplanted by the federal court").
Judge Colalillo's Orders and directions to the parties were interlocutory. An interlocutory order "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Although a court has the power to revisit prior decisions, it should hesitate to do so absent a change in circumstances such as when new evidence is available. See Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116-17 (3d Cir. 1997). Although this Court has the utmost respect for Judge Colalillo, the Court finds it appropriate to re-examine her discovery Orders. This is necessary because the case is now subject to federal rather than state discovery rules. Also, given the time that has passed since the case was filed, the claims and defenses in the case are now understandably more focused than when Judge Colalillo was facing an imminent injunction hearing.
The Court's in camera review of Star's documents confirm that Star's redactions generally fit into one of the three subject matter categories it identified. Further, the Court finds that the amount of the monthly agency fee defendant pays Star, the amount Star charges defendant for advertising and marketing work by vendors and media outlets, and Star's strategic recommendations for future advertising are irrelevant to the issues in the case. As this Court has previously noted, while the scope of Fed. R. Civ. P. 26 discovery is broad, it is not unlimited and may be circumscribed. See July 1, 2009 Order at 6, Doc. No. 60. Nonetheless, the Court finds that the following complete documents should be produced because the subject matter is relevant to the issues in the case: STB 0081, 00215 (only as to the identified media outlets), 249 - 251 and 304-305 (duplicate of 249-251). The remainder of Star's redactions are not relevant to plaintiff's claims concerning defendant's "Top Docs" advertising and do not have to be produced.
The Court rejects plaintiff's argument that Star does not have standing to object to its subpoena on relevancy grounds. Plaintiff is judicially estopped from making this argument because it took a contrary position when it moved to quash defendant's subpoenas directed to non-parties.*fn2 See plaintiff's Reply Brief in Support of Motion to Quash at 1-3, Doc. No. 52.*fn3
Plaintiff argues "there appear to be many documents related to the Top Doc website which were not produced by Star, ...." Brief at 23. Plaintiff refers to e-mail communications and documents related to the design and operation of the website. Id. at 23-24. Since it is unclear whether these documents were Ordered to be produced by Judge Colalillo, the Court will not address the issue in this Order. Now that Star has been joined in the case plaintiff will undoubtedly pursue discovery pursuant to Federal Rules 33 and 34. To the extent plaintiff believes Star's Rule 26 disclosures and discovery answers are inadequate, it may pursue its rights under the Federal Rules and L. Civ. R. 37.1.
Plesser's Privilege Claim
The Court has examined in camera the twelve (12) documents identified in Plesser's privilege log. See Motion at Exhibit G, Doc. No. 39-8.*fn4 Documents 1 to 8 on the list are e-mails between Star and Plesser regarding plaintiff's state court litigation and subpoena. No attorney is copied on the e-mails. Item 9 is an e-mail from Star to Plesser identifying the attorneys for defendant and Star. Item 10 is a fax cover sheet from Plesser to defendant's counsel. Item 11 is an e-mail from defendant's counsel to Plesser regarding Plesser's Certification. Item 12 is Plesser's draft Certification. Plesser claims these documents are protected by the attorney client privilege and work produce doctrine. Plesser also claims the documents are protected by the "community of interest" privilege.*fn5
The moving parties' focus their argument on the community of interest privilege. This privilege "allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others." In re Teleglobe Communications Corp., 493 F.3d 345, 364 (3d Cir. 2007). However, the community of interest privilege is only applicable if an underlying privilege has been established. Louisiana Municipal Police Employees Retirement System v. Sealed Air Corp., 253 F.R.D. 300, 309 (D.N.J. 2008)(citation omitted). Thus, the Court must analyze whether Plesser satisfied its burden of proving that the attorney client privilege or work product doctrine applies. Id. at 305-06.*fn6
The Court finds that no privilege attaches to documents 1 to 8 and therefore they should be produced. As to the attorney-client privilege, none of the documents was authored by or sent to an attorney. More importantly, Plesser has not established that the e-mails were necessary to obtain informed legal advice which might not have been made absent the attorney client privilege. See Fisher v. United States, 425 U.S. 391, 403 (1976). As noted in In re Gabapentin Patent Litigation, 214 F.R.D. 178, 181 (D.N.J. 2003)(quoting In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed. Cir. 2000)), "the central inquiry is whether the communication is one that was made by a client to an attorney for the purpose of obtaining legal advice." Since Plesser has not satisfied its burden of proof, the Court finds that documents 1 to 8 are not protected by the attorney client privilege.
As to the work product doctrine, the Court finds that it does not apply. The work product doctrine "shelters the mental processes of the attorney, providing a privileged area within which he [or she] can analyze and prepare his [or her] client's case." In re Cendent Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003)(citation omitted). The doctrine not only applies to an attorney's work product, but also to the work product of an attorney's agents and consultants. Id. at 662. Here, the work product doctrine does not apply because no attorney work product is implicated. The documents at issue consist of e-mail communications between representatives of Plesser and Star regarding the lawsuit between plaintiff and defendant. The e-mails were not prepared by or for attorneys. Further, no evidence has been presented that when Star and Plesser prepared the e-mails they were acting as agents or consultants for attorneys.
Plesser argues its documents are protected by the community of interest privilege because:
The Star Group, Plesser, and Virtua all share a common interest in that Cooper in this lawsuit is attempting to impugn the quality and accuracy of work performed by The Star Group and Plesser for Virtua. If Cooper's allegations were accepted, it would suggest that The Star Group and Plesser were involved in creating false advertising claims for Virtua. The Star Group, Plesser, and Virtua have a common interest in combating Cooper's false allegations.
Brief at 8. The Court disagrees. The community of interest privilege is not applicable because no underlying attorney client or work product protection applies to the documents.
There are other reasons why the community of interest privilege is not applicable. The community of interest privilege permits "attorneys representing different clients with similar legal interests to share information without having to disclose it to others." Teleglobe, 493 F.3d at 364. Here, Plesser and Star are not represented by different attorneys. Further, the privilege does not extend to communications between non-attorneys who simply have a joint interest. The community of interest privilege is applicable to communications amongst attorneys, "to be eligible for continued protection, the communication must be shared with the attorney of the member of the community of interest. " Id. (emphasis in original). The Third Circuit explained:
[t]he requirement that the clients' separate attorneys share information (and not the clients themselves) derives from the community-of-interest privilege's roots in the old joint-defense privilege, which (to repeat) was developed to allow attorneys to coordinate their clients' criminal defense strategies.
Id. (emphasis in original). Further:
[t]he attorney-sharing requirement helps prevent abuse by ensuring that the common-interest privilege only supplants the disclosure rule when attorneys, not clients, decide to share information in order to coordinate legal strategies.
Although Plesser acknowledges the withheld e-mails are not communications amongst attorneys, it nevertheless argues the community of interest privilege applies. Plesser contends the e-mails are protected because they "all have to do with legal strategy regarding the coordinated response to Cooper's improper attempt to force 'compliance' with a temporary restraining order not issued against Star or Plesser; Cooper's subpoena served on Plesser; and retention of Woodcock Washburn to represent both parties in response to Cooper's actions." Reply Brief at 3, Doc. No. 59. Plesser further argues the communications "involve legal strategy ultimately employed by Star and Plesser's joint attorneys, and involve communications between 'privileged persons'". Id. Plesser's argument fails, however, because Plesser and Star exchanged non-privileged information at a time when they were not acting as an agent or consultant for different attorneys. The community of interest privilege does not encompass communications between two non-parties about a non-privileged matter of joint interest.*fn7
Document 9 is an e-mail from Star to Plesser supplying the names of the attorneys for Star and defendant. Star asks Plesser to send the attorneys a copy of the subpoena Plesser served. Since the e-mail is not an attorney client communication, and it is not attorney work product, the document must be produced.
Document 10 is a fax cover sheet from Plesser to Virtua's counsel that attaches documents 11 and 12. Document 11 is an e-mail from Virtua's counsel (Philip H. Labowitz, Esquire) to Plesser with a draft Certification for Mr. Plesser to sign. Document 12 is the draft Certification with a handwritten comment.
The Court finds that documents 10, 11 and 12 are protected by the attorney work product doctrine and do not have to be produced. The e-mail and draft Certification were plainly prepared by Virtua's counsel for litigation purposes and reflect counsel's strategy and thought processes. Further, the Court finds that the discovery protection afforded to these documents was not waived. The waiver of the work-product doctrine is different than the waiver of the attorney-client privilege. "The predicate of the waiver inquiry in the work-product context is not, as it is in the attorney-client context, whether the material was disclosed, but whether the material was disclosed to an adversary." Maldonado v. New Jersey ex. rel. Administrative Office of Courts-Probation Division, 225 F.R.D. 120, 131 (D.N.J. 2004). The essential question with respect to waiver of work product is whether the material has been kept away from adversaries. Id. The party alleging that a waiver occurred, rather than the party seeking work product production, has the burden of proof on the waiver issue. Id. at 132. The Court finds that plaintiff has not demonstrated that the contents of documents 10, 11 and 12 were divulged to an adversary. Plesser and Star had similar interests when they responded to plaintiff's subpoena. After all, both companies challenged plaintiff's contention that their joint or combined work was misleading. Therefore, the disclosure of Mr. Labowitz's work product to Plesser and Star did not result in the waiver of the work product doctrine, and documents 10, 11 and 12 do not have to be produced.
Six Prior Studies
Cooper requests that Plesser produce six (6) studies it performed for Star's clients. Two of the reports are owned by Star. Cooper argues the reports are discoverable because they may disclose that Plesser made different disclosures than it did in its "Top Docs" work. Brief at 26-27. Cooper argues:
For example, if all or many of the prior reports prepared by Plesser for Star disclosed such information, why was it not disclosed in this case related to this study? Further, if all or many of the prior reports failed to disclose such information, this would support Cooper's claim that the retention of Mr. Plesser was nothing more than a commercially orchestrated advertising scheme and that Plesser was never independent or unbiased and always prepared reports for Star which were beneficial to Star's clients. Thus, these prior reports prepared by Plesser for Star and Star's clients are likely to lead to the discovery of relevant evidence related to Cooper's claims and are therefore discoverable.
Id. at 26-27.
Based on the present record before the Court, the Court finds that the six reports are not relevant to the claims and defenses in the case. Further, even if the reports are minimally relevant, the Court finds that a weighing of the factors in Fed. R. Civ. P. 26(b)(2)(C) results in a finding that the reports should not be produced. The issue in dispute concerns Star and Plesser's work for defendant, not work they did for other clients. If the Court permits plaintiff to discovery Plesser's reports for clients that have nothing to do with the issues in the case, it would unreasonably expand the scope of discovery and result in needless satellite litigation. Plaintiff's hope that the requested reports may contain relevant information does not justify its request. Although Plesser's work for clients other than defendant is not necessarily immune from discovery because of trade secret or confidentiality concerns, the requested reports must be relevant before they will be ordered to be produced. See generally Opperman v. Allstate New Jersey Insurance Co., C.A. No. 07-1887 (RMB), 2008 WL 5071044, at *2 (D.N.J. Nov. 24, 2008). Plaintiff has not demonstrated that the requested reports are relevant. Indeed, plaintiff has not even addressed the subject matter of the reports.
In response to plaintiff's argument that Plesser does not have standing to raise a relevancy objection, the Court relies on Fed. R. Civ. P. 26(b)(2)(C)(iii), to deny plaintiff's discovery request. This rule provides that the Court, "on its own ... must limit the frequency or extent of discovery ... if it determines that ... the burden or expense of the proposed discovery outweighs its likely benefit" (emphasis supplied). The Court makes this finding and exercises its discretion to bar the production of Plesser's six reports. The Court has already determined that plaintiff has not demonstrated that the reports are relevant. Plesser and its clients should not be burdened by the disclosure of their confidential business information simply because plaintiff hopes the requested reports might contain information which at most is marginally relevant to the issues in the case. Pursuant to Rule 26(b)(2)(C), the Court can and does exercise its discretion to limit discovery of Plesser and Star's trade secret or confidential business information where the requested documents are irrelevant to the claims and defenses in the case.
For all the foregoing reasons, and good cause being shown,
IT IS HEREBY ORDERED this 4th day of August, 2009, that Star and Plesser's Motion for Protective order is GRANTED in part and DENIED in part; and
IT IS FURTHER ORDERED that Star shall produce complete copies of documents Bates stamped STB 0081, 00215 (only as to the identified media outlets), 249-251 and 304-305 (duplicate of 249-251). None of Star's other redactions shall be produced; and
IT IS FURTHER ORDERED that Plesser shall produce documents 1 to 9; and
IT IS FURTHER ORDERED that documents 10, 11 and 12 do not have to be produced; and
IT IS FURTHER ORDERED that by August 18, 2009, Plesser and Star shall produce the documents identified in this Order.
JOEL SCHNEIDER United States Magistrate Judge
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California Court of Appeals, Fourth District, Second Division
June 26, 2015
LAW OFFICES OF MARC GROSSMAN, Plaintiff and Appellant,v.VICTOR ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. No. CIVVS1103873 David S. Cohn, Judge.
Page 1011
Law Office of Marc Grossman and Jake Richards for Plaintiff and Appellant.
Page 1012
Orrock, Popka, Fortino, Tucker & Dolen; Dennis G. Popka and M. Wayne Tucker for Defendant and Respondent.
Law Offices of Marc Grossman (plaintiff or Law Firm) represented a student of defendant Victor Elementary School in a civil action arising from an assault that took place at the school. Plaintiff, in the name of the Law Firm, filed a petition for writ of mandate in the trial court under the California Public Records Act (Gov. Code, § 6258) seeking documentation reflecting the amount of money spent defending the litigation. That petition was denied, so relief was sought in this Court, which granted the petition. Upon issuance of the remittitur, plaintiff filed a Memorandum of Costs seeking, among other costs, attorneys' fees for the petition. The trial court granted defendant's motion to tax costs, denying attorneys' fees. Plaintiff appealed from the denial of attorneys' fees.
On appeal, plaintiff argues the trial court erred in denying fees on the ground plaintiff represented itself in the trial court. We reverse.
Due to the limited record, we take judicial notice of the records in the previous writ proceedings in Law Offices of Marc E. Grossman v. Victor Elementary School (Oct. 10, 2012, E056931) (nonpub. opn.). In that proceeding, plaintiff Law Firm filed a petition for writ of mandate in the trial court, as a member of the public, seeking disclosure of documents reflecting the amount defendant had expended in defense of the civil action entitled Jose E. v. Victor Elementary School District (Super. Ct. San Bernardino County, No. VCVVS041304.
The trial court denied the petition, giving rise to the filing of a petition for writ of mandate in this Court, again in the name of the Law Firm. We directed that the Superior Court vacate its order denying the petition and enter a new order granting the requested disclosure. (Law Offices of Marc E. Grossman v. Victor Elementary School, supra, E056931. Our disposition further stated that pursuant to Government Code section 6259, petitioner was entitled to recover its court costs and reasonable attorney fees. (Law Offices of Marc E. Grossman v. Victor Elementary School, supra, E056931.)
Following issuance of the remittitur, plaintiff filed a Memorandum of Costs, including $16, 327.00 for attorney fees on line 10. Defendant filed a motion to tax costs, challenging only the amount of attorney fees sought. The trial court
Page 1013
Noted that a judgment in the mandamus matter had not yet been entered. The court entered judgment directing defendant to release to plaintiff all documents reflecting the total amount of money spent on attorney's fees defending, awarded plaintiff costs in the amount of $1375.00, but awarded no attorney fees on the ground that an attorney representing himself cannot recover attorneys' fees. Plaintiff appealed.
Government Code section 6259, subdivision (d), part of the California Public Records Act (CPRA), provides that the court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. (Garcia v. Bellflower Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1065 [163 Cal.Rptr.3d 689].)
The CPRA was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies. (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 342 [201 Cal.Rptr. 654].) The Legislature has declared that such "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Gov. Code, § 6250; see Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425–426 [121 Cal.Rptr.2d 844, 49 P.3d 194] (Filarsky).)
The CPRA includes protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure, one of which is the provision that the court shall award court costs and reasonable attorney fees to the prevailing plaintiff. (Filarsky, supra, 28 Cal.4th at p. 427.) The very purpose of the attorney fees provision is to provide protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure. (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1447 [164 Cal.Rptr.3d 644].) The CPRA mandates a fee award to a plaintiff if it prevails, and to a defendant only if the plaintiff's case is clearly frivolous. (Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391 [107 Cal.Rptr.2d 29].)
We review an award of fees and costs by the trial court for abuse of discretion. (Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1379 [159 Cal.Rptr.3d 484].) However, de novo review of an award is appropriate where the determination of whether the criteria for an award of attorney fees and costs has been satisfied amounts to statutory construction
Page 1014
and a question of law. (Ibid.; Bertoli v. City of Sebastopol (2015) 233 Cal.App.4th 353, 365 [182 Cal.Rptr.3d 308].)
Here, plaintiff was the prevailing party in the underlying mandamus proceeding. On remand, defendant did not initially challenge plaintiff's entitlement to an award of attorney fees. Instead, at the hearing on the motion to tax costs, it was the court, which, for the first time, questioned plaintiff's entitlement to attorney fees, referring to the holding of Trope v. Katz (1995) 11 Cal.4th 274 [45 Cal.Rptr.2d 241, 902 P.2d 259] (Trope). This was improper, without giving plaintiff an opportunity to address the issue.
On appeal, defendant relies on the reasoning of Trope, but Trope is inapposite. In Trope, a law firm sued an ex-client for unpaid attorney fees and sought attorney fees with regard to the action for recovery of those attorney fees. There, the action to recover fees was based on Code of Civil Procedure section 1717, which permits an award of fees in any action on a contract where the contract specifically provides for such fees and costs. The Supreme Court reasoned that the term "fee" related to the consideration that a litigant actually paid or became liable to pay in exchange for legal representation, and that an attorney litigating in propria persona pays no such compensation. (Trope, supra, 11 Cal.4th at p. 280.) That case did not involve a petition brought pursuant to the CPRA, and it did not involve a law firm seeking disclosure of public information relating to civil litigation defense costs in other cases.
Here, the Law Firm represented a plaintiff, Jose E., in an action against defendant arising from injuries sustained in a violent bathroom assault.[1] Although the Law Firm filed the petition for writ of mandate in its own name, the petition clearly alleged that it sought documentation relating to the amount of money spent defending the civil case litigated on behalf of Jose E. The mandamus action was not filed to seek compensation for the Law Firm or to obtain any other relief beneficial to the plaintiff firm alone. It was filed to obtain information pertinent to three separate civil actions filed on behalf of separate clients of plaintiff. To deny fees because the petition was filed in the name of the Law Firm is to elevate form over substance. But "[w]e care about the nature of the transaction, not the label attached." (Microsoft Corp. v. Franchise Tax Board (2006) 39 Cal.4th 750, 761 [47 Cal.Rptr.3d 216, 139 P.3d 1169].)
More importantly, our order in the previous proceedings on mandamus stated that "petitioner shall recover its court costs and reasonable attorney
Page 1015
fees." (Italics added.] In defendant's motion to tax costs, the school district did not contend that attorney fees were not allowed, nor did defendant assert that plaintiff was not entitled to fees because it had litigated the mandamus petitions in propria persona. It merely objected to the amount requested by plaintiff for attorney fees. The trial court abused its discretion by applying an inapposite decision to deny attorney fees without prior notice to plaintiff.
The portion of the judgment denying attorney fees to plaintiff is reversed. The matter is remanded to the San Bernardino Superior Court for a determination of reasonable attorney's fees to which plaintiff is entitled.
McKinster, J., and Codrington, J., concurred.
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Bibliographic Details
Title: THE WIZARD OF OZ
Publisher: Bobbs-Merrill
Binding: Hardcover
Book Condition: Fair
B000I7SYPS Slightly loose binding. Scuffed edges. Pages slightly browned from age. Small tear in the cover. Book cover shows considerable signs of shelf wear and age. Spine is coming loose by the cover and front page. Page edges are aged. There are slight tears and stains on a few of the pages. Text and illustrations are clean, clear and bright. Bookseller Inventory # 380596663
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Alternative Titles
English: Attack on Titan: Crimson Bow and Arrow
Japanese: 劇場版「進撃の巨人」前編~紅蓮の弓矢~
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Episodes: 1
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Producers: Dentsu, Mainichi Broadcasting System, Pony Canyon, Kodansha
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It's always good to reassess the bottom line. But especially when costs are rising and income is stagnant, you need to take a good look at where you can cut expenses.
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Sanders pushes for minimum wage hikeJanuary 04,2014Sanders pushes for
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Vermont U.S. Sen. Bernard Sanders is calling for an increase in the minimum wage.
The independent senator made the call for an increase in the federal minimum wage to $10.10 per hour while the minimum wage in Vermont jumped 13 cents an hour with the new year to $8.73 an hour.
Sanders said Vermont and the other states that increased their minimum wages Wednesday are doing the right thing because working people cannot survive on the federal minimum wage of $7.25 per hour.
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Personal Computing — Flaming May Get You in a Hot Spot
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Rage, rage, rage! If you spend any amount of time at all in online discussion groups, particularly in unmoderated Usenet newsgroups, you've undoubtedly seen your share of explosive arguments."Flamewars" are one of the most pervasive facts of life in online forums. Separated by space and often by time as well, people online are more likely than in person to let their hair down and lose all traces of civility. The rule of thumb seems to be: If you can't say something nice about someone, say it in Usenet. You may have participated in a flamewar or two yourself, or been tempted to do so. What's the harm? The reality is that you can indeed be hurt by firing off an ill-conceived insult, in both your personal life and your worklife. Even though the chances are remote of any of the following outcomes occurring, there's still some risk here, a risk you should weigh when conducting yourself online.
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Sure, such a suit will likely never make it to court. "Libel claims are notoriously difficult and expensive to prove," says Blake A. Bell, a New York City attorney who's writing a book on "cyberlaw." But this doesn't stop the threats. And if the person threatening to sue hires a lawyer, you may have to do the same, which could turn into an expensive proposition. Often what happens is that a lawyer will send a letter demanding a retraction in behalf of a client who feels that he or she has been libeled. People receiving these letters are sometimes…IBPA Members – Click here to view the full article (login required).
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Connect Modbus slaves to ETHERNET
The EJ1N-HFU-ETN provides the solution to connect a CelciuX° (EJ1) in-panel multiloop PID controller to PROFINET and Modbus/TCP. Although built on the CelciuX° (EJ1) platform, this unit can be used as a gateway for discrete Modbus units when only using the EJ1N-EDU endplate.
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Brothers and Sisters
Release Date: January 1st, 1980
Not Yet Rated|1 hr. 36 min.
Plot Summary
Following a part-time prostitute's (Carolyn Pickles) murder, members (Sam Dale, Robert East) of a communal household become suspects.
Cast: Carolyn Pickles, Sam Dale, Robert East, Elizabeth Bennett, Jenifer Armitage, Barry McCarty, Barrie Shore, Norman Claridge
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Genres: Thriller


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Plebes of today are graduates of tomorrow. It is our honor to host you for all your cadet's milestone - like R-Day, A-Day, and Graduation - and look forward to celebrating with you.
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