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April 5, 2010
CHARLES LAMONT MILLER, PLAINTIFF,v.STATE OF CALIFORNIA, ET AL., DEFENDANTS.
(Docs. 1 & 15)
Screening Order
Plaintiff is a state prisoner proceeding pro se in this action pursuant to 42 U.S.C. § 1983 and California state law. On December 16, 2008, Defendant State of California removed this action from Kern County Superior Court pursuant to 28 U.S.C. § 1441(b).*fn1 On January 19, 2010, Plaintiff moved for the Court to complete within 30 days the screening required by the Prison Litigation Reform Act (42 U.S.C. § 1997e(d)) (the "PLRA") (Doc. 15).
I. Screening Requirement
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
II. Pleading Standards
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, a plaintiff must set forth the legal and factual basis for his claim.
III. Plaintiff's Claims
A. Factual Background
In his state court complaint, Plaintiff alleged that, upon his arrival at the Reception Center at Wasco State Prison ("WSP"), Defendants Reyes and Fuhlrodt informed Plaintiff that he was not allowed to possess his personal property in prison and that, since he was indigent, the policy of the Defendant California Department of Corrections and Rehabilitation ("CDCR") permitted him either to donate it or destroy it. As a result, Plaintiff was deprived of everything in his possession at arrest.
In addition to the corrections officers and CDCR, Plaintiff names as Defendants the State of California and WSP Warden P. L. Vazquez.
After Defendants removed the case to federal court, Plaintiff requested judicial notice of various documents (Docs. 5, 7, 8, and 14). At any stage of a proceeding, "[a] court shall take judicial notice if requested by a party and supplied with the necessary information." Fed.R.Evid. 201(d) and (f). The Court may take judicial notice of any fact "not subject to reasonable dispute in that it is... (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Accordingly, this Court notes that Plaintiff contends that he was deprived of his suit, shirt, tie, shoes, gold designer pen, cell phone, and his wallet and its contents, including debit and gift cards valued at $2500.00 (Doc. 5). The Director's Level appeal decision concluded that WSP staff had complied with applicable regulations (Cal. Code Regs., tit. 15, § 3191)(Doc. 5). Because Plaintiff had depleted his cash on canteen items while incarcerated in the county jail, he lacked funds to ship his property home and had to specify whether to donate or destroy it (Doc. 5).
B. Eleventh Amendment Immunity
"The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials in their official capacities." Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir.), cert. denied, 128 S.Ct. 441 (2007)(citations omitted). Accordingly, Plaintiff may not sue the State of California in federal court. Id. Similarly, because CDCR is a state agency entitled to Eleventh Amendment immunity, Plaintiff may not sue it in federal court. Id. See also Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 421 (9th Cir. 1996); Brooks v. Sulphur Spring Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991), cert. denied, 503 U.S. 938 (1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Finally, as an entity that is part of CDCR, WSP is also protected by the Eleventh Amendment. Mitchell v. Los Angeles Comm. College Dist., 861 F.2d 198, 201 (9th Cir. 1988), cert. denied, 490 U.S. 1081 (1989). Accordingly, Plaintiff may not advance federal constitutional claims against Defendants State of California, CDCR and WSP as a matter of law.
C. Supervisory Personnel
Plaintiff names Warden P. L. Vazquez as a Defendant. Supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior. Taylor, 880 F.2d at 1045. For defendants in supervisory positions, a plaintiff must specifically allege a causal link between each defendant and his claimed constitutional violation. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under § 1983 for supervisory liability, Plaintiff must allege facts indicating that each supervisory defendant either personally participated in the alleged deprivation of Plaintiff's constitutional rights, knew of the violations and failed to act to prevent them, or promulgated or "implemented a policy so deficient that the policy 'itself is a deprivation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor, 880 F.2d at 1045. The complaint includes no specific allegations against Vazquez.
D. Due Process: Deprivation of Property
Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). The Due Process Clause protects prisoners from being deprived of their property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). An authorized, intentional deprivation of property is actionable under the Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984); Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). In contrast, "[a]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson, 486 U.S. at 533.
An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Logan, 455 U.S. at 436; Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). Authorized deprivations of property are permissible if carried out pursuant to a regulation that is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 96-97 (1987).
Plaintiff was deprived of his personal property in accordance with such regulations. Inmates are permitted to possess only state-issued property and authorized personal property items based on the institution's mission, the inmate's assigned security level, and any applicable disciplinary provisions. Cal. Code Regs. tit. 15, § 3190(a). They may possess only state-issued clothing and authorized personal clothing. Cal. Code Regs. tit. 15, § 3190(h). They may not possess "any membership cards, identification cards, or service-type cards other than those issued by the department." Cal. Code Regs. tit. 15, § 3190(r). In addition, an authorized personal property schedule is established by consensus for all reception centers. Cal. Code Regs. tit. 15, § 3190(b). Authorized personal property does not include pens, wallets, or cell phones. CDCR Department Operations Manual § 54030.17.5. The security reasons for deeming Plaintiff's personal property to be contraband are readily apparent.
Inmate personal property that is not permitted by the provisions of § 3190, may be mailed or shipped home at the inmate's expense, provided that the inmate has sufficient trust account funds. Cal. Code Regs. tit. 15, § 3191(c)(1) & (2). If the inmate does not choose to ship contraband property or lacks the funds to do so, he may donate the property to a charitable organization or the institution, or render the item useless and dispose of it. Cal. Code Regs. tit. 15, § 3191(c)(3), (4) & (5). Inmates may not transfer their property to any state agency or agent. Cal. Code Regs. tit. 15, § 3191(d). Because Plaintiff had depleted his personal funds before arriving at WSP, his only alternatives under the regulations were donation or disposal.
E. State Claims
Plaintiff also alleges that Defendants' actions gave rise to California tort claims. Section 1983 does not provide a cause of action for violations of state law. See Weilburg v. Shapiro, 488 F.3d 1202, 1207 (9th Cir. 2007); Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007); Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001); Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997); Lovell v. Poway Unified School Dist., 90 F.3d 367, 370 (9th Cir. 1996); Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986); Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir.), cert. denied, 454 U.S. 857 (1981).
Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the district court "shall have supplemental jurisdiction over all other claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III," except as provided in subsections (b) and (c). "[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). "The district court my decline to exercise supplemental jurisdiction over a claim under subsection (a) if... the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367 (c)(3). The Supreme Court has cautioned that "if the federal claims are dismissed before trial... the state claims should be dismissed as well." United Mine Workers of Amer. v. Gibbs, 383 U.S. 715, 726 (1966).
Because the complaint states no cognizable federal claim, this Court should not exercise its supplemental jurisdiction. Accordingly, the Court recommends that Plaintiff's state claims be remanded to state court.
IV. Motion to Screen
As previously noted, Plaintiff moved to compel the Court to screen his complaint within thirty days, having personally deemed thirty days to be sufficient time for the Court to complete the process. Because the District Court for the Eastern District of California has the highest case load of all federal district courts, all litigants experience substantial delays in the processing of the cases that they have filed with the Court. Prisoners bringing civil rights claims subject to PLRA screening are no exception. Because this order screens Plaintiff's complaint, however, his motion is moot.
V. Conclusion and Recommendation
Plaintiff's complaint fails to state a claim upon which relief may be granted under federal law. Because amending the complaint will not cure the deficiency, the Court HEREBY RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim.
In the absence of any cognizable federal claim, the Court recommends that the District Court decline to exercise jurisdiction over Plaintiff's state tort claims. These claims should be remanded to the state court.
These Findings and Recommendations will be submitted to the Hon. Oliver W. Wanger, pursuant to the provisions of 28 U.S.C § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that, by failing to file objections within the specified time, he may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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District heat may run $2 million over projections
MONTPELIER The $20 million district energy project, which includes a state-owned heating plant and city-owned pipelines to businesses and municipal buildings, could cost around $2 million more.
The city learned last week that the states side of the project is costing more than expected, in part due to an expedited work schedule to meet an Oct. 1 deadline, Administration Secretary Jeb Spaulding said Wednesday. The increase could require intervention by the Legislature to make up the difference, as the city says its strapped for cash.
Weve told the state we dont have any funds available, said Mayor John Hollar. That said, we have an obligation to hear from them the scope of the problem.
The city has essentially expended or allocated all of the money for its share of the project, which was less than $4 million, Hollar said. A federal grant for $8 million is also helping.
Hollar met with Spaulding on Friday and told the City Council on Monday that the cost overrun in the states portion of the project could be $2.3 million or $2.6 million. Members of Gov. Peter Shumlins Cabinet have suggested the increase is less than $2 million.
Top administration officials said the state is still committed to the project. Spaulding also said that within the level of recommended bonding for the next two years, the state would either have to delay some items or find savings elsewhere.
The project plan has the state building a new power plant behind the Motor Vehicles Department building. The wood chip-burning plant would deliver heat and hot water, and the city is working to create distribution pipelines to various businesses, municipal buildings and Union Elementary School.
One of the primary reasons for the cost increase is that lengthy negotiations with the city delayed the projects start, said Buildings and General Services Commissioner Michael Obuchowski on Wednesday.
Despite the states commitment to the project, it has not been immediately clear to the City Council where the state would get the additional money. City Council member Tom Golonka said Wednesday he wasnt sure if the cost increase meant the state would have to reduce the capacity of the plant. The state has already ordered boilers, seeming to limit that possibility.
Spaulding said that considering a smaller project is an important exercise but a possibility unlikely to be implemented.
Obuchowski, however, said one theoretical possibility could be to use the boilers ordered for the Montpelier heating plant at a new state office complex in Waterbury.
The October deadline marks the beginning of the heating season, so if the district energy plant is not in place by that time, a mobile boiler would be needed. It was not clear Wednesday whether contingency provisions have included that extra cost.
The council will meet this evening for a public briefing from the state, Hollar said. The council likely will go into executive session for a private discussion because the terms of the citys contract with the state could be modified, Hollar said. The meeting is scheduled for 6 p.m. at the Police Department community room. Buildings and General Services officials plan to give a presentation at the meeting.
In the past, several City Council members have expressed reservations about certain financial unknowns in the project, and the council even voted in the fall to cancel the project, only to reverse the decision a week later.
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The Executioner's Last Songs, Vols. 2 + 3
The Pine Valley Cosmonauts
Abre iTunes para escuchar un fragmento, comprar y descargar música.
|27 canciones
Se formó en: 1996 en Chicago, IL
Género: Country
Años de actividad: '90s, '00s, '10s
Yet another project providing an outlet for the talents of eternally busy artist and musician Jon Langford (best known for his work with the Mekons and the Waco Brothers), the Pine Valley Cosmonauts were conceived by Langford as a vehicle for performing music written by others, with a membership that grows and shifts with the needs of each project, often featuring the cream of the Chicago alt-country and indie rock community. Langford originally coined the name in 1996 to credit his backing band...Biografía completa
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Oprah Winfrey
Oprah Winfrey is a very famous talk show host. Maybe you have heard of her. She may not pump her own gas anymore, but she's extremely...
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text:
Prep Time: 1 Hour Cook Time: 1 Hour Ready In: 10 Hours
- Yield
- 8 Servings
1 cup chocolate cookie crumbs
3 tablespoons white sugar
1/4 cup butter, melted
1 (10 ounce) package frozen raspberries
2 tablespoons white sugar
2 teaspoons cornstarch
1/2 cup water
2 cups white chocolate chips
1/2 cup half-and-half cream
3 (8 ounce) packages cream cheese, softened
1/2 cup white sugar
3 eggs
1 teaspoon vanilla extract
- 1. In a medium bowl, mix together cookie crumbs, 3 tablespoons sugar, and melted butter. Press mixture into the bottom of a 9 inch springform pan. 2. In a saucepan, combine raspberries, 2 tablespoons sugar, cornstarch, and water. Bring to boil, and continue boiling 5 minutes, or until sauce is thick. Strain sauce through a mesh strainer to remove seeds. 3. Preheat oven to 325 degrees F (165 degrees C). In a metal bowl over a pan of simmering water, melt white chocolate chips with half-and-half, stirring occasionally until smooth. 4. In a large bowl, mix together cream cheese and 1/2 cup sugar until smooth. Beat in eggs one at a time. Blend in vanilla and melted white chocolate. Pour half of batter over crust. Spoon 3 tablespoons raspberry sauce over batter. Pour remaining cheesecake batter into pan, and again spoon 3 tablespoons raspberry sauce over the top. Swirl batter with the tip of a knife to create a marbled effect. 5. Bake for 55 to 60 minutes, or until filling is set. Cool, cover with plastic wrap, and refrigerate for 8 hours before removing from pan. Serve with remaining raspberry sauce.
Nutritional Info
- Calories711
- Carbohydrates85 g(28%)
- Fat38 g(59%)
- Protein9 g(18%)
- Saturated Fat20 g(100%)
- Sodium326 mg(14%)
- Polyunsaturated Fat1 g
- Fiber5 g(19%)
- Monounsaturated Fat6 g
- Cholesterol130 mg(43%)


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decided: November 19, 1987.
WILLIE BETHEA, PETITIONER-APPELLANT,v.CHARLES SCULLY, SUPERINTENDENT, GREENHAVEN CORRECTIONAL FACILITY, RESPONDENT-APPELLEE
Appeal from order of United States District Court for the Eastern District of New York, Charles P. Sifton, J., denying petition for habeas corpus based on claim that felony-murder conviction cannot constitutionally be predicated on reckless felony. Affirmed.
Feinberg, Chief Judge, Newman and Winter, Circuit Judges.
FEINBERG, Chief Judge:
Willie Bethea appeals from an order of the United States District Court for the Eastern District of New York, Charles P. Sifton, J., which denied Bethea's petition for habeas corpus. Bethea claims his convictions in state court for felony murder were unconstitutional because punishing him as a murderer is fundamentally unfair when the felony underlying each conviction required proof of only reckless rather than intentional misconduct. For reasons set forth below, we do not agree, and we affirm the decision of the district court.
I. Background
The facts leading to this appeal can be succinctly stated. In April 1979, a fire in a New York City apartment building killed two people: a 74-year-old woman and her two-year-old granddaughter. Willie Bethea was arrested two days later and indicted on two counts of felony murder based on his having committed arson in the fourth degree.
Under New York law, a person is guilty of felony murder (one of the types of second-degree murder) when he commits or attempts to commit, among other listed crimes, "robbery, burglary, kidnapping, arson, [or] rape . . . and in the course of and in furtherance of such crime . . . he . . . causes the death of a person," N.Y. Penal Law § 125.25(3) (McKinney 1987), and is guilty of fourth-degree arson "when he recklessly damages a building . . . by intentionally starting a fire." N.Y. Penal Law § 150.05(1) (McKinney Supp. 1987). "Reckless" action is action taken when a defendant "is aware of and consciously disregards a substantial and unjustifiable risk" that a particular result will occur, provided the risk is "of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." N.Y. Penal Law § 15.05(3) (McKinney 1987).
During Bethea's jury trial in the New York Supreme Court, Kings County, the state argued that Bethea, angered that someone had broken into his mailbox and stolen his welfare check, set fire to his mattress, and after his attempts to extinguish the blaze failed, left the building without sounding the alarm, and walked past a fire station without notifying the fire department. The jury found Bethea guilty on both counts, and he was sentenced to two concurrent terms of 25 years to life in prison, which he is now serving. The Appellate Division affirmed without opinion, 94 A.D.2d 982 (1983), and the New York Court of Appeals denied leave to appeal, 60 N.Y.2d 589 (1983).
In July 1986, Bethea, represented by counsel, filed a petition for habeas corpus with the United States District Court for the Eastern District of New York. Judge Sifton denied the petition in February 1987, and this appeal followed.
II. Discussion
A. Jurisdiction and Standard of Review
At the outset, we note that the state, citing People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383 (1986), desultorily argues that Bethea waived his constitutional claim by not raising it at trial. We assume that the state is obliquely arguing that Wainwright v. Sykes, 433 U.S. 72, 87-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), strips us of jurisdiction to consider Bethea's constitutional claim because Bethea's failure to raise that claim at trial violated state procedural rules, thereby providing an independent and adequate state ground for the Appellate Division's affirmance. However, we have previously held that "if the prosecutor does not raise the procedural point [in state court], and if the [state] court gives no indication that it is relying on it, then the federal claim is open for our consideration." Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 74 L. Ed. 2d 97, 103 S. Ct. 109 (1982). This is such a case, since the Appellate Division wrote no opinion and since, as the parties apparently agree, the state's brief in that court made no mention of procedural default. We therefore conclude that we have jurisdiction over this appeal, and turn to its substance.
Bethea argues that his convictions and sentence were unconstitutional. Although he does not clearly state which provisions are violated, we construe his argument as raising fifth, eighth, and fourteenth amendment claims. As we understand him, Bethea makes two claims: that the Constitution forbids punishing as a murderer any felon guilty of a crime involving only recklessness, and that the punishment exacted in this case is excessive.
Bethea's argument is premised on reading the New York arson statute to require only a reckless state of mind. To support this reading, Bethea cites the practice commentaries and notes that New York does not recognize attempted fourth-degree arson, apparently on the theory that one cannot attempt to be reckless. Judge Sifton, however, disagreed and found that Bethea was not punished for purely reckless conduct because the crime "does contain an intent element": intentionally lighting a fire. We are not sure it is fruitful to try to isolate the key state of mind of a crime requiring two mental states--intent to start a fire and recklessness in damaging a building. Cf. Liparota v. United States, 471 U.S. 419, 423 n. 5, 85 L. Ed. 2d 434, 105 S. Ct. 2084 (1985). In any event, we need not decide the matter because we find Bethea's constitutional argument unpersuasive even assuming that the statute's gravamen is recklessness.
The standard for reviewing Bethea's claim that a reckless arsonist may not be convicted of murder is the same under either the due-process clause or the eighth amendment. We start with the proposition that "preventing and dealing with crime is much more the business of the States than it is of the Federal Government . . . and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States." McMillian v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 2416, 91 L. Ed. 2d 67 (1986) (quoting Patterson v. New York, 432 U.S. 197, 201-02, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977)). Thus, a state's decision will not be overturned unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. (quoting Speiser v. Randall, 357 U.S. 513, 523, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958)). Several factors are usually used to help reveal which principles of justices are fundamental to our nation. History helps how whether a rule is "rooted in the traditions," see Mullaney v. Wilbur, 421 U.S. 684, 692-96, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), and the practices of the various states help determine what lies in the "conscience of our people," see In re Winship, 397 U.S. 358, 361-62, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). The severity of the burden that the challenged rule places on a defendant and the state interest furthered by the rule are also important, see Patterson v. New York, 432 U.S. 197, 209, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977).
B. Recklessness and Felony Murder
Bethea claims, essentially, that predicating a felony murder conviction on a felony requiring only a reckless mens rea violates fundamental principles of justice. A major flaw in this argument is that the law has long punished reckless conduct as murder, and such rules do not violate the conscience of our people.
At common law, a defendant could be convicted of murder even if he intended to inflict only serious bodily harm or if he exhibited a "depraved heart," which in modern codes is usually described as reckless murder. For example, in New York a defendant is guilty of second-degree murder (the same degree as felony murder) if "under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." N.Y. Penal Law § 125.25(2) (McKinney 1987). Historically, then, murderers could be convicted even if they did not intend to kill their victims, and most would agree that this practice does not offend the Constitution.
Bethea, however, was not charged with being reckless with regard to life but with being reckless regarding the burning of a building. We recognize that recklessness as to property is not the same as recklessness as to life, but under the circumstances here we do not think the difference amounts to a breach of a fundamental principle of justice. It is not unreasonable for New York to punish severely those who consciously ignore the risk of burning a building, since fires often kill people, see Inciardi, Arson: Behavioral and Economic Aspects, in 1 Encyclopedia of Crime and Justice 79 (1983) (estimating at least 1,000 deaths and 3,000 injuries each year), perhaps more often then do some other predicate felonies. See U.S. Dep't of Commerce, Statistical Abstract of the United States, Table 267 (1987) (in 1983, 1.6 % of 18,673 murders occurred during sex offenses). Indeed, at common law, arson was not viewed as a property crime but an offense against habitation since it was "frequently more destructive than murder itself, of which too it is often the cause . . . [since] fire too frequently involves in the common calamity persons unknown to the incendiary." Blackstone, Commentaries, Book IV, Chap. XVI. Setting fire to a mattress in an occupied tenement and walking away without calling the fire department exhibits the same depraved indifference to human life as shooting into a crowd, the archetype of reckless murder. See Model Penal Code § 210.2 comment 4 (1980). It is even possible that Bethea could have been convicted of second-degree murder under a recklessness theory, had the prosecutor so charged, since Bethea stated that he knew the building was occupied and that the occupants might be hurt by the fire. He told the police that he set the fire "to teach them [his neighbors] a lesson by giving them some trouble like they have been giving me." Thus, we think it can fairly be said that the conscience of the community is not offended by punishing this sort of behavior as murder.
We could stop here, but Bethea recasts his objection in other ways that deserve a response. He argues that predicating felony murder on a reckless crime departs from the historical underpinnings of felony murder, runs counter to the general practice of the states, and violates New York's interest in proportionality.*fn1 We find none of these arguments persuasive.
Bethea's argument from history is that since felony-murder convictions have historically been predicated only on intentional felonies, his conviction is unconstitutional.*fn2 We have several problems with this argument. First, scholars disagree on the doctrine's roots, rationale, and development, see Roth & Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446 (1985), and we are loath to rely heavily on an ambiguous historical record. Second, it is far from certain that the record supports Bethea. For example, at common law any felony could be the basis of a felony-murder conviction, W. LaFave & A. Scott, Jr., Criminal Law 545 (1972), and New York did not abolish that rule until 1965, when it adopted the current scheme of enumerating felonies. People v. Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85 (1973). Additionally, the punishment for arson was death by burning, R. Perkins, Criminal Law 173 (1957), a punishment far more severe than twenty-fives to life imprisonment. Moreover, Bethea might have been guilty of felony murder even at common law; his reckless acts might have constituted common-law arson since someone who intentionally set fire to the contents of a building may be guilty of arson "if he acted with reckless indifference as to whether the building would be ignited." A. Curtis, A Treatise on the Law of Arson 82 (1936) (citations omitted). Finally, the legal landscape has changed dramatically since felony murder developed. At least some theorists suggest, for example, that felony murder was created to punish attempted felonies resulting in death, since attempts were not felonies at common law, and that the felony-murder rule mattered little if the felony were completed because all felonies were punishable with death. Roth & Sundby, supra, at 450. Today, of course, attempts are of ten felonies, the death penalty is rarer, and many more felonies exist. Thus, although the history of felony murder is fascinating, it implies little about the doctrine's constitutional acceptability today.
Bethea's argument from general practice is not compelling. According to his brief, 32 of the 47 jurisdictions with felony-murder rules list as felony-murder predicates only arson that requires either intent or its substantial equivalent. The other side of this coin, however, is that about one-third of the jurisdictions agree with New York that such laws do not violate fundamental principles of justice. And there is no indication that even those states that have changed the rule have done so because they regarded it as unconstitutional, as distinguished from unwise. We do not believe that such statistics require us to hold the rule unconstitutional.
Bethea also argues that punishing reckless arsonists as murderers violates New York's own interest in proportionality because felons reckless with regard to property are less serious than felons reckless with regard to human life. In principle, we agree that property crimes are less culpable than crimes against people, but because arson often results in death, especially in crowded tenements, we are not persuaded that New York's decision is so out of line with principles of proportionality as to be unconstitutional.
Finally, apparently as a variation of his proportionality argument, Bethea claims that the statute as applied to him resulted in an unconstitutionally harsh sentence. The eighth amendment, in rare instances, forbids courts form imposing unduly long prison terms, but "in view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." United States v. Ortiz, 742 F.2d 712, 714 (2d Cir.) (quoting Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)), cert. denied, 105 S. Ct. 573 (1984).
Bethea has not shown that his sentence is unconstitutionally serve. Although he received the maximum prison time, his crime -- setting a fire in an apartment house--evinces a despicable disregard for human life. Bethea was aware that many people could be hurt in the fire-indeed, he intended to give them some "trouble" -- but he nonetheless went ahead with his plan for revenge against the unknown pilferer. Although there might be some fourth-degree arsonists for whom a minimum of twenty-five years imprisonment would be unconstitutionally harsh, cf. Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), Bethea is not one of them.
For the reasons given above, we are not persuaded that Bethea's convictions were unconstitutional. The order of the district court denying the petition for habeas corpus is affirmed.
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decided: January 30, 1970.
MALISv.ZINMAN ET AL., APPELLANTS
Appeal from decree of Court of Common Pleas of Montgomery County, No. 67-12398, in case of David S. Malis et al. v. Jacques Zinman et al.
Bernard J. McLafferty, with him Huganir, Butera & Detwiler, for appellants.
Robert H. Malis, with him Peter J. Cianci, and Malis & Feldman, and Wisler, Pearlstine, Talone & Gerber, for appellees.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
[ 436 Pa. Page 593]
This case presents for our determination the question of the jurisdiction of a court in equity in an action brought to set aside an allegedly fraudulent conveyance of Pennsylvania real estate to out-of-state residents served with process by registered mail in Massachusetts. Since this appeal originates from the decree of the lower court overruling preliminary objections,
[ 436 Pa. Page 594]
the only facts before us are those averred in the complaint, which are taken as true for the purpose of considering preliminary objections.*fn1
In 1964, defendant Dorothy Levy, then Dorothy Zinman, an appellant here, hired the law firm of Malis, Malis & Malis to represent her in connection with marital difficulties she was experiencing with her then husband, defendant Jacques Zinman. The law firm, along with an accounting firm, Sardinsky, Herlich & Co., performed services for Mrs. Levy until 1966 when she dismissed them from her employ. The law firm and the accounting firm are the plaintiffs in this action, and appellees here.
After obtaining other attorneys, Mrs. Levy filed an action for divorce a.v.m. against Jacques Zinman in the Court of Common Pleas of Philadelphia County. A decree of divorce was entered on May 9, 1967. At the time of the divorce decree, defendants Dorothy Levy and Jacques Zinman, as tenants by the entireties, owned certain real estate situated in Montgomery County, Pennsylvania. As a consequence of the divorce, they became tenants-in-common in the property. Act of May 10, 1927, P. L. 884, § 1, as amended, 68 P.S. § 501.
Shortly after the divorce Dorothy Levy married defendant Allyn Levy and moved to Boston, Massachusetts, the home of her new husband. By a deed recorded in Montgomery County on May 24, 1967, Mrs. Levy conveyed, for no consideration, her interest in the real estate to herself and Allyn Levy, as tenants by the entireties. Plaintiffs thereupon brought this action in equity against Dorothy Levy, her new husband Allyn Levy, and her former husband Jacques Zinman.
[ 436 Pa. Page 595]
The complaint alleged that the conveyance by Dorothy Levy of her interest in the real estate rendered her insolvent and was done in order to prevent application of her interest therein to the payment of her just debts to plaintiffs. Plaintiffs prayed that the conveyance be declared "fraudulent, void and of no effect", that the Levys be enjoined from conveying or encumbering the interest of Dorothy Levy in the property, that the Levys be ordered to reconvey the property to a receiver, that a receiver be appointed for the real estate to protect the interest of the creditors of Dorothy Levy, and that money judgments be entered, presumably against Mrs. Levy, in favor of plaintiffs for amounts claimed for services rendered.
Service of process was made on Jacques Zinman personally at his home in Montgomery County. Service of a copy of the complaint was made on Mr. and Mrs. Levy by registered mail sent to Boston, Massachusetts.*fn2 The Levys filed preliminary objections to plaintiffs' complaint on the grounds that the Court of Common Pleas of Montgomery County has no jurisdiction over their persons and that, since plaintiffs have an adequate remedy at law, i.e., a suit in assumpsit with ancillary attachment proceedings, equity lacks jurisdiction in the matter.*fn3 The trial court dismissed these preliminary objections, and defendants Dorothy Levy and Allyn Levy then brought this appeal under the Act of March 5, 1925, P. L. 23, § 1, 12 P.S. § 672.
Section 9(1)(a) of the Pennsylvania version of the Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P. L. 1045, § 9, 39 P.S. § 359(1)(a) arms a creditor with the right to have a fraudulent conveyance
[ 436 Pa. Page 596]
set aside "to the extent necessary to satisfy his claim." By this enactment, the legislature explicitly grants the allegedly defrauded creditor an equitable remedy which alleviates the necessity of his resorting to the cumbersome procedure on the law side, where real estate is involved, of obtaining a judgment, levying execution on the conveyed property, purchasing it at sheriff's sale, and bringing against the transferee of the debtor an action of ejectment which finally adjudicates the question whether the conveyance from the debtor to the defendant is fraudulent as to the plaintiff creditor. See Sauber v. Nouskajian, 286 Pa. 449, 133 Atl. 642 (1926); American Trust Co. v. Kaufman, 287 Pa. 461, 135 Atl. 210 (1926); Taylor v. Kaufhold, 379 Pa. 191, 108 A.2d 713 (1954); Amadon v. Amadon, 359 Pa. 434, 59 A.2d 135 (1948).
Equitable jurisdiction being thus available to have the transfer of the property from Mrs. Levy to her husband and herself as tenants by the entireties set aside as a fraudulent conveyance, plaintiffs-appellees acted under equity Pa. R. C. P. 1504(b)(2)(b) to gain service of process upon defendants-appellants living in Massachusetts by registered mail to their Boston home. Mr. and Mrs. Levy assert that such out-of-state service is defective in this circumstance and that the lower court therefore lacks the requisite personal jurisdiction to grant the relief requested against them.
The relevant portion of Rule 1504(b)(2)(b) reads as follows: ". . . if the subject matter of the action is property within the jurisdiction of the court, the plaintiff shall have the right of service upon a defendant . . . outside the State . . . by sending the defendant by registered mail a copy of the writ or the complaint if the action is commenced by complaint." This dispute, accordingly, centers on the question whether, in a suit to set aside an allegedly fraudulent conveyance of an interest in real estate located in Pennsylvania, the interest
[ 436 Pa. Page 597]
in land is property which "is the subject matter of the action" within the meaning of the Rule.
Mr. and Mrs. Levy contend, first, that the action brought by plaintiffs concerns the allegedly fraudulent conveyance of Mrs. Levy's interest in the realty and not the real property itself; since the intangible event of transfer presumably has no presence in Pennsylvania, it fails to come within the rule aimed at a concrete res situated within the Commonwealth. In the second place, appellants point out that the relief requested in the complaint includes a claim for money damages for breach of contract, a classic example of an action in personam, and that Section 9 of the Fraudulent Conveyance Act was not designed to give this kind of remedy.
Plaintiffs counter with the argument that their suit to have the conveyance of the undivided one-half interest in real estate set aside constitutes a proceeding in rem concerning real property located within the jurisdiction of the Montgomery County court and that, if the Levys refuse to defend the action brought against them, that court will have jurisdiction only with respect to the property. If, on the other hand, defendants undertake to defend the action on the merits they will have thereby submitted themselves to the jurisdiction of the court, which will thereupon have acquired the power to enter a judgment for money damages against them.
We agree with the position of the plaintiffs. Twenty-five years ago, in Alpern v. Coe, 352 Pa. 208, 42 A.2d 542 (1945), this Court, speaking through Justice (later Chief Justice) Charles Alvin Jones, held that a court of equity in Pennsylvania "can act in rem with respect to lands lying within its territorial jurisdiction." (ibid., at 213). In that case, plaintiff, the occupant of real estate in Allegheny County then negotiating for the purchase of the property, brought a bill
[ 436 Pa. Page 598]
in equity against the record owner, a Mrs. Moody, her husband and her brother, one Coe. The bill alleged that Coe purchased the property under circumstances which constituted fraud on the plaintiff; that Coe was the plaintiff's employee and stood in a position of trust to plaintiff; that, in aid of the alleged fraud, he caused title to be taken in the name of his sister, Mrs. Moody, who forthwith gave plaintiff notice to vacate. The bill prayed that Mrs. Moody and her husband be declared trustees of the property for plaintiff; that they be directed to convey the property to him and be restrained from conveying it to anyone else; and that all the defendants be enjoined from evicting plaintiff from the premises. Coe lived in Allegheny County and was personally served; the Moodys lived in West Virginia and were served there pursuant to a court order under the Act of April 6, 1859, P. L. 387, § 1, as amended, 12 P.S. § 1254, the forerunner of Pa. R. C. P. 1504. As do the Levys in the case at bar, the Moodys claimed that the relief sought as to them, i.e., the execution of a deed, would be in personam and that the court lacked power to summon persons from beyond its territorial jurisdiction and make them answerable for relief of such nature. The court held that the real relief sought by the suit was in rem, not in personam, and that "the ancient doctrine that the decree in equity can only act upon the person of a party" has been virtually abolished by such statutes as the Act of April 6, 1859, supra, and the Act of April 19, 1901, P. L. 83, § 1, 21 P.S. § 53. The latter act enables the sheriff, prothonotary or clerk in a county in which land is located to execute a valid deed to the property when ordered by the court having jurisdiction. Thus the court concluded: "The Act of 1859 operates to make the court's decrees in rem effective as to nonresident defendants who have been served in accordance with the provisions of that Act, while the Act of 1901 makes available the efficient
[ 436 Pa. Page 599]
means for effectuating the court's orders or decrees in such regard without the defendant's personal compliance." The opinion makes it crystal clear that this equitable in rem power with respect to land lying within the jurisdiction of a Pennsylvania court for the protection of persons who claim interests therein under the law of the state applies "even as to non-residents" (352 Pa. at 216), such as the Moodys were there and the Levys are here. Accordingly, regardless of whether the Levys come into Pennsylvania to defend, the Court of Common Pleas in the case at bar can order reconveyance of the undivided half interest in the Zinman home owned of record by the Levys, provided that the plaintiffs prove their case. American Trust Co. v. Kaufman, supra; American Optical Company v. Philadelphia Electric Company, 228 F. Supp. 293 (E.D. Pa. 1964). See, also, Esher v. Esher, 25 Pa. D. & C. 2d 464 (C.P. Del. Co. 1961).
Nothing effectively differentiates the instant situation from that in Alpern v. Coe, supra. The fact that plaintiffs-appellees here possess no judgment establishing their status as creditors is not relevant. The Fraudulent Conveyance Act carries no requirement that the creditor have a judgment before initiating an action to have a fraudulent conveyance set aside. While Sections 9 and 10 of the statute distinguish creditors with matured claims from those whose claims have "not yet matured", both classes of creditors are entitled to the remedy of setting aside a fraudulent conveyance. No logical interpretation of this legislative pattern supports the conclusion that a judgment creditor may bring a valid in rem or quasi in rem proceeding with respect to real estate fraudulently conveyed to out-of-state residents, but that a creditor lacking a judgment may not. While the plaintiff in Alpern v. Coe, supra, did not expressly base his claim on the Fraudulent Conveyance Act, it is to be noted that he also possessed
[ 436 Pa. Page 600]
no prior judgment adjudicating his right to become the owner of the property, which was the basis of his claim to a constructive trust.
Nor is it of significance that the principal alleged wrongdoer in Alpern v. Coe, supra, was a Pennsylvania resident who was served personally and was thus before the court from the beginning, whereas in the present case the principal alleged wrongdoer, Mrs. Levy, is a resident of Massachusetts, and has been served only by registered mail. As indicated above, the extent of the court's power will depend on whether the Levys do or do not see fit to appear generally in the case. But non-residence does not insulate when property of the nonresident is located in the territorial jurisdiction of the court. The whole proceeding in Foreign Attachment, for example, is based on this proposition. Act of June 13, 1836, P. L. 568, § 43, 12 P.S. § 2861; Pa. R. C. P. 1251 et seq.; Goodrich-Amram, § 1251-6. Indeed, the present proceeding in equity under the Fraudulent Conveyance Act bears close analogy to a proceeding in Foreign Attachment. In both forms of process, plaintiffs without judgments are able to imperil the in-state property of persons not then subject to personal jurisdiction in Pennsylvania.
We have examined the cases cited to us by appellants Levy, and do not find them applicable. None of them concerns the alleged fraudulent conveyance of real estate or an interest therein; all of them involved matters over which the court had no power to act except through personal jurisdiction, so that personal service was prerequisite.
In conclusion, we hold that the subject matter of this suit is Mrs. Levy's interest in property within the jurisdiction of the court, her conveyance of which placed it beyond the reach of creditors; that the service of process as provided by Rule 1504(b)(2)(b) was proper; and that the lower court acted correctly in
[ 436 Pa. Page 601]
overruling the preliminary objections of appellants, the Massachusetts defendants.
The decree is affirmed; costs on appellants.
Decree affirmed.
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Photos: The 16th Street Mall celebrates its thirtieth birthday
All photos by Elyse Mitchell.
Although the 16th Street Mall officially turned the big 3-0 on Thursday, today was the big party. In Skyline Park, Mayor Michael Hancock presented a proclamation that recognizes the anniversary, RTD and Downtown Denver Partnership. Hancock congratulated both organizations on "all that you have meant to this city -- and to this region, for that matter...We have some challenging decisions to make as we look to renovate the mall, bring the aesthetics up to a more modern look for the 21st century for the next 30 years..."
Westword can't vouch for the next thirty, but we dedicated our current cover story to the first thirty. Continue reading for more photos from today's birthday bash.
See also: - Thirty years in, the 16th Street Mall is still going strong - Ten best patios on the 16th Street Mall - From the Archives: Denver's 16th Street a century ago
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U.S. Kids Far Less Likely To Out-Earn Their Parents, As Inequality Grows
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4 Maritime Ontario Blvd., Brampton, ON L6S 0C2
+ taxes & licensing
Leather Seats Upgrade! All new brake pads and rotors! Power sunroof, alloy wheels, bluetooth, keyless entry, power windows, power locks, AUX and USB. Come to Family Honda and take this Belize Blue Honda Accord EX Coupe for a test drive with one of our knowledgeable staff today! Visit myfamilyhonda.com or call (905) 595-4500 to book a test drive today! Family Honda is synonymous with world-class service and a part of the Policaro Automotive Family, with more than 30 years of industry experience, we invite you to come experience it for yourself.
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Deo-Pits Natural Stick Deodorant Recipe
Spa Pedicure Foot Scrub Recipe
Enjoy a rejuvenating foot scrub right in your own home. An aromatic foot scrub for effective exfoliation of rough, dry skin. Spa Pedicure Foot Scrub is a lightly fragrant, water soluble, oil-free formula that goes a long way and rinses away to leave your feet and legs totally polished.Read More
Mind at Peace Recipe
After a long day or during a tense moment, when the kids just won't stop screaming and you've run out of Excedrin,™ have a tube of Mind @ peace handy and in moments you'll feel tranquil and refreshed. Rub some on your temples, the back of the neck or even your tired feet at the end of the day. You'll feel the natural tingling start working immediately. A convenient size to take along in your purse or when traveling, but you may want to make a bigger batch!Read More
Lick-able Massage Oil Recipe
Edible massage oil can be made with all-natural, vitamin fortified oils that will be completely absorbed by the skin, leaving it soft, supple and revitalized. Lightly scented with the natural aphrodisiac of chocolate-mint or the flavors of your choice.Read More
Kona Coffee Body Lotion Recipe
Kona coffee is a fantastic sensory feast for both men and women – you won't be able to make it fast enough.Read More
Fresh Mint Foot Cream Recipe
This amazingly easy cream can be whipped up in 10 minutes. Getting someone to rub your feet may take a bit longer, but it will be worth your efforts and your feet will thank you for it.Read More
Sunscreen DIY Recipe
Make your own sunscreen with this recipe!Read More
Tei-Fu Massage Lotion Recipe
Tei-Fu Massage Lotion is a unique blend of anciently-known essential oils and skin emollients. It applies smoothly to the skin and penetrates deeply into stiff muscles and joints. Its emollient, greaseless properties leave the skin soft and smooth.Read More


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Prices, promotions, styles and availability may vary by store and online.
Action - Bolt Action
Caliber - .300 Win. Mag.
Barrel Length - 26"
Weight - 8.0 Lbs.
Sights - Weaver Scope Bases
The innovative Browning A-Bolt delivers dependable, pinpoint accuracy that exceeds the stringent standards of the modern rifleman. The A-Bolt feeds very smoothly because of its unique, patented cartridge depressor that stays in position, independent of the bolt rotation, as the bolt slides gently over the cartridges in the magazine. The bolt face is recessed, completely surrounding the cartridge base. A cocking indicator located at the rear of the bolt offers visual and tactile firing pin status. The Medallion edition features a blued finish, free-floating, hand-chambered target crown barrel and a checkered, select gloss walnut finish stock with a Rosewood forend and grip caps. This rifle has a 26-inch barrel with a compensator, a tang-mounted safety, and a set of Weaver scope mounting bases. Its wood is in good condition and its metal and bore are in very good condition.


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Okay, we woke up to more snow this morning - a lot more snow. They boys immediately wanted to go outside and play in it. So they did, but just for a few minutes because we still had to get ready for school.
Notice how the trees in the background are just covered with that wet heavy snow. I think it may have broken one of the branches on our trees in the back yard too.
Anyway, nothing like a little snow to put you in the crafting mood for a little snow decor. I found a similar idea here but I found a square plate at Kohl's and a round plate at Ross and then added some vinyl I got from Jill and look how cute they turned out.
Oh Happy Day!!
Wednesday, October 27, 2010
Let it Snow!!!
Posted by Kathy@DandelionsandDustBunnies at 2:20 PM
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The Utter Romance Dotted Mesh Babydoll from Seven Til Midnight gives you a sensually romantic look. The babydoll features molded, underwire, lace balconette bra cups lined in nude fabric. The skirt is made of sheer dotted mesh and edged in ribbon. Gold-toned hardware. A matching g-string panty is included.
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Belagavi and Palanpur are located at a distance of 1225Kms from each other. Palanpur can be reached in about 18hrs 45min.Bus travel is a popular travel option between these two cities, and many buses ply between Belagavi and Palanpur. SRS Travels is a major operator along this route. The first bus starts from 02:25 AM and you can catch buses till 03:30 PM. The lowest fare for these buses starts from Rs.2500, and the maximum fare is around Rs.2800.
SRS Travels provide a number of options in the type of buses like Volvo Non A/C Multi-Axle SemiSleeper for your to choose from.


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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
Fiat / Chrysler -- Leadership - Teambuilding
The Chrysler merger with Fiat was met with skepticism and doubts when it was first proposed. Chrysler had just recently emerged from near bankruptcy -- saved by a U.S. government bailout -- and Fiat is a strong internationally respected corporation building cars, earth-moving machines, and more. The merging of Chrysler and Fiat was seen as having a greater opportunity for success than did the merger between Chrysler and Daimler-Benz, but still there were doubters in the industry. However, as of May, 2012, the blending together of the two companies (Fiat and Chrysler) has produced a profitable situation. This paper examines the cultures -- and leadership -- shown within the two companies, a strong combination that has allowed success to be achieved. The paper also critiques the leadership styles in the dynamics of this merger, and delves into the concept of teambuilding when two companies merge into one.
The Literature - Examination of Cultures, Conflict, and Leadership in the Merger
An article in The New York Times (Sorkin, 2009) notes that mergers between automobile companies "…have a poor track record and seldom yield lasting results." In fact, Sorkin asserted in 2009, there is a "long list of deals" that have "soured because of the cultural differences" between the merged companies. Moreover, typically auto firms that merge have not been able to "meld product lines and deliver on promises to cut costs" (Sorkin, p. 1).
The reason that the Chrysler-Daimler-Benz marriage ended so poorly was because the leaders of the deal from the German side, first Jurgen E. Schrempp and then Dieter Zetsche, "…refused to tear down the walls" separating the two companies (Sorkin, p. 1). In fact Daimler-Benz tried to operate using Chrysler as a "stand-alone division," Sorkin continued. One Fiat executive (who preferred to be anonymous) told Sorkin that merging Daimler and Chrysler was like "…Neiman Marcus merging with Home Depot" -- and it was destined to fail, the executive from Fiat stated. The cultural basis for the failed merger, according to Italian union leader Giorgio Airaudo, was that the management style in Germany is "…more rigid, hierarchical" than the way Italians manage companies (Sorkin, p. 2). Indeed DaimlerChrysler was "crippled with endless committees" during which arguments erupted over "why [the] think wouldn't work," according to Ferdinand Dudenhoffer, an auto research executive in Germany (Sorkin, p. 2).
In fact when it was clear that the Daimler experiment had failed, Daimler dumped Chrysler into the lap of what journalist Jeremy Cato refers to as "…the vulture capitalists from Cerberus Capital," a group that was "expert at careless and wicked cost-cutting, trying in their minds to put lipstick on what they thought was a pig, so it would fetch a profitable price" (Cato, 2012, p. 2). After the German owners had failed to share "their toys and their games" with what they viewed as "their wards in Auburn hills," Daimler "sold out to Cerberus" and everyone "with eyes" could see that Chrysler had been "starved for investment and know-how" (Cato, p. 2).
Shortly after the Chrysler -- Fiat merger process was launched (in June, 2009), an article in The Detroit News focused on the cultural issues preceding the merger. "The culture clash was too great" between Daimler and Chrysler workers, Alisa Priddle writes after interviewing Chrysler workers in November 2009. One employee told Priddle, "There was a lot of fear and loathing under DaimierChrysler, but this feels like a good partnership" (Priddle, 2009, p. 1). "…We're all in this together," another worker told Priddle; "things are moving fast and it's contagious" (p. 2).
The Daimler executives were "deathly afraid of diluting the Mercedes brand," said Joe Phillippi, an analyst with Auto Tends Consulting (Priddle, p. 2). Daimler apparently never understood that Chrysler had something going for it, too, Phillippi explained, adding that in fact Daimler set rules to "preserve Mercedes' sanctity" (Priddle, p. 2). University of Michigan professor Gerald Meyers, who chaired American Motors at one time and is a retired Chrysler executive, said that the Daimler people "felt superior and that came through at decision-making time" (Priddle, p. 2). Meyers remembers Chrysler employees and executives "…being put in a straitjacket" and resenting it, Priddle continued.
The Chrysler-Fiat arrangement is the reverse of what Chrysler-Daimler marriage turned out to be, according to an employee; "It's a partnership of inclusion…the Fiat people are saying, here are our platforms and technologies -- what do you want?" (Priddle, p. 2). Another notable aspect of the new merger that is dramatically different from the previous merger is there are far fewer Fiat executives at Chrysler than there were with the Daimler group. And with so very few Fiat executives in Auburn Hills (Michigan) "…a culture class is almost a non-issue," commented Gualberto Ranieri, communications executive with the new merged company (Priddle, p. 2). Moreover, while engineers and designers do travel back and forth between Italy and Detroit, there are strict travel restrictions "…to keep costs down," Ranieri explained (Priddle, p. 2). That is a far cry from the Daimler days, when, according to former Chrysler communications director Mike Aberlich, the company "…jet shuttled employees round trip between Pontiac and Stuttgart three times a week" (Priddle, p. 2).
The Literature -- Leadership From Fiat
Matthew Curtin writes in The Wall Street Journal (June, 2011) that Fiat was going through an "unprofitable European business" cycle at the time Chrysler and Fiat merged. And so, now that Fiat owns 58.5% of Chrysler Group, and now that the newly merged company is showing big profits, the vision shown by CEO Sergio Marchionne when he negotiated the deal with the Detroit automaker, is showing signs of being realized. As of June, 2011, a year after the launch of the merger, "Marchionne is increasingly running the companies as a single business" (Curtin, 2011, p. 2). At the time of this article, Marchionne had "…24 executives reporting to him from each manufacturer," Curtin explains, but within months Marchionne whittled down the number of executives reporting to him to just 24 in total.
Curtin added a note of caution to this story: "…Transcontinental auto mergers are notoriously tough, as Daimler found out when it took on Chrysler. Investors buying the story have to believe in a Hollywood ending for Mr. Marchionne's Italian-American adventure."
Hollywood ending? It's too early for those predictions, but thus far in this merger things are smooth and profitable for the new company. The Associated Press reported in January, 2012, that Fiat has "…added 5% to its majority ownership of Chrysler" due to the success of the Dodge Dart (AP, 2012, p. 1). As noted earlier, Fiat now owns 58.5% of Chrysler, and the additional 5% ownership is due to the leadership shown by Marchionne, and the creative restructuring the U.S. Government insisted upon when bailing out Chrysler.
Along with the billions of bailout dollars, the U.S. Government insisted on specific environmental and consumer-friendly performance goals. Uncle Sam demanded that the merged companies build cars that get good mileage, and when the Dodge Dart compact -- tested by the U.S. Environmental Protection Agency in December, 2011 -- proved out at 40 miles per gallon, Fiat got the extra 5% ownership. In fact one of the Dodge Dart's three optional engines will be a Fiat-designed 1.4 liter turbocharged engine -- the same one that goes into the Fiat 500 -- showing again that the two companies are actually combining resources for the good of the newly merged companies (AP, 2012).
Board Chairman and Director of Chrysler-Fiat, Marchionne was born in 1952 and has dual Canadian and Italian citizenship, according to Forbes. He is a "barrister, solicitor and chartered accountant," and he was appointed Chief Executive Officer of Fiat in June, 2004, after many years of leadership in a number of Canadian and European industries. In June, 2009, Marchionne was appointed Chief Executive Officer of Chrysler Group LLC (the two companies' name now that they have merged).
In a question and answer interview with Marchionne in June, 2011, two years after Chrysler and Fiat teamed up, Forbes journalist Joann Muller asked the CEO of Fiat and Chrysler if he is perhaps "pushing people…too hard" (Muller, 2011, p. 2). Marchionne agreed that he does push people hard, but he said he has a "keen sense of burnt engines or engines that are just about to crash," and he sends them on vacation. "Just get your head set back'," he tells them. And yes he admits he is a workaholic, and he carries six Blackberries. If someone calls him, leaves a message, and he doesn't return the call, it was either because "…I'm bored stiff and I felt the question was irrelevant…" (Muller, p. 3).
What was it that Marchionne did to convince the U.S. Treasury Department to loan bailout money to Chrysler? First of all, the CEO said he had credibility coming into the negotiation. His leadership and vision was internationally known, hence, he figures the government was thinking something like this: "Somehow he managed to fix…[continue]
"Fiat Chrysler -- Leadership - Teambuilding" (2012, May 12) Retrieved December 5, 2016, from http://www.paperdue.com/essay/fiat-chrysler-leadership-teambuilding-79928
"Fiat Chrysler -- Leadership - Teambuilding" 12 May 2012. Web.5 December. 2016. <http://www.paperdue.com/essay/fiat-chrysler-leadership-teambuilding-79928>
"Fiat Chrysler -- Leadership - Teambuilding", 12 May 2012, Accessed.5 December. 2016, http://www.paperdue.com/essay/fiat-chrysler-leadership-teambuilding-79928


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5605 Loon Drive, Big Lake MN, 55309
Sold Price:
3 beds , 2 Full/1 Three-Qtr baths
1,760 sqft
Status: Sold
Listing Provided Courtesy Of: Re/Max Reliance, Inc.
Real Living 1st MSP Realty
Last Updated: 12/7/2016 11:37 PM
Description for 5605 Loon Drive Big Lake, MN 55309
Very nice 3 BR, 2 BA home. Home has new stainless steel appliances, new carpet and paint. It has a nice large deck, fenced backyard. A nice wooded view out the back and much more.
Sold Price:
Sold Date:12/30/2015
2 Full/1 Three-Qtr
1,760 (approx)
Very nice 3 BR, 2 BA home. Home has new stainless steel appliances, new carpet and paint. It has a nice large deck, fenced backyard. A nice wooded view out the back and much more.
Listing Information
1,760 Sq. Ft. (approx)
City Water - Connected
City Sewer - Connected
School Information
Room Information
Kitchen/Dining Room
Main Floor Full Bath, Full Basement
Interior Features
980 Sq. Ft. Above Ground ,780 Sq. Ft. Below Ground
Central Air
Gas Heat, Forced Air
Full, Finished (Livable)
Exterior / Lot Features
2 Garage Spaces, Attached Garage, Driveway - Asphalt
Asphalt, Pitched
Driving Directions
Hwy 10, North on County Rd 81, Right on 206th Ave (CR 73), Left on Loon Drive to home on right.
Financial Considerations
FHA, DVA, Conventional, Rural Development, Adj. Rate/Gr Payment, Cash
Big Lake Real Estate
Big Lake is located in Minnesota. Big Lake, Minnesota 55309 has a population of 10,292.
The median household income in Big Lake, Minnesota 55309 is $53,483. The median household income for the surrounding county is $52,943 compared to the national median of $53,046. The median age of people living in Big Lake 55309 is 43 years.
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Mindy is a 3 year old Chihuahua mix. She is a little shy, but coming out of her shell in her foster home. She will bark at people coming in the house. She does not bark outside much at all, though. She loves to play with the resident dog & chase those silly squirrels! She loves to cuddle and lay on your lap. She ignores the cat, and is mostly housebroken. If you would like to make Mindy a part of your family, please get in touch with us!
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Tails of Hope is currently run by a small team of volunteers. We are all dedicated to rescuing animals in need, providing a safe environment for these animals, and matching the rescue animals to good families who will provide a lifetime of loving care for them.
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