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argued: January 22, 1992.
PAUL J. MCARDLE, APPELLANTv.MICHAEL J. TRONETTI AND STEVEN REILLY, APPELLEES
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 91-00074E)
Before: Stapleton, Scirica, and Alito, Circuit Judges
Opinion OF THE COURT
ALITO, Circuit Judge :
Paul J. McArdle appeals the dismissal of his complaint, which alleges federal constitutional and state torts. While serving a brief term of imprisonment for disorderly conduct, McArdle was involuntarily committed to a psychiatric institution. After his release, he sued a prison doctor and counsellor for giving false testimony, making false diagnoses, and filing a false petition in order to have him committed. The district court held that the defendants enjoyed absolute immunity because they were functioning as integral parts of the judicial process. We will affirm, although we hold that the defendants were not absolutely immune with respect to some of McArdle's claims.
These are the relevant facts that were alleged in McArdle's complaint. On November 8, 1990, McArdle, an attorney, was sentenced by Judge Shad Connelly of the Court of Common Pleas of Erie County to serve 90 days in Erie County prison for disorderly conduct. Judge Connelly also ordered that McArdle be given a psychiatric examination by defendant Michael Tronetti, a prison physician. Tronetti, after a brief examination at the county jail, diagnosed McArdle as a paranoid schizophrenic. On November 27, defendant Steven Reilly, a prison counsellor, filed a petition to have McArdle involuntarily committed to a mental health treatment facility. On December 5, a hearing on the petition was held. Tronetti falsely testified that McArdle was suffering from paranoia and schizophrenia and should be committed for treatment to the Warren State Hospital. On December 10, Judge Connelly ordered that McArdle be moved to Warren State Hospital. On December 13, McArdle was taken to Warren State Hospital by the sheriff.
McArdle filed his complaint in the United States District Court for the Western District of Pennsylvania, alleging that Tronetti and Reilly had violated his Fourteenth Amendment due process and equal protection rights by intentionally submitting false diagnoses, giving false testimony, and causing a false commitment petition to be filed in order to bring about his transfer to Warren State Hospital. McArdle also alleged state common law tort claims based on the same facts, including a malicious use of process claim against Reilly for the "institution of commitment proceedings" against him. Upon motion by the defendants, the district court dismissed McArdle's complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The district court held that under Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983), Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), and related cases, both defendants had absolute witness and prosecutorial immunity from Section 1983 claims arising out of the facts alleged in the complaint. The court therefore dismissed the complaint under Fed. R. Civ. P. 12(b)(6).*fn1 McArdle appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
Under 42 U.S.C. § 1983, "'every person' who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages." Imbler v. Pachtman, 424 U.S. 409, 417, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). Despite these broad terms, however, the Supreme Court has held consistently that the Section 1983 did not abolish long-standing common law immunities from and defenses to civil suits. Burns v. Reed, 114 L. Ed. 2d 547, 111 S. Ct. 1934, 1938 (1991). At common law, persons functioning as integral parts of the judicial process enjoyed absolute immunity from civil liability. Briscoe v. LaHue, 460 U.S. 325, 335, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983). This immunity was and still is considered necessary "to assure that Judges, advocates, and witnesses can perform their respective functions without harassment or intimidation." Butz v. Economou, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). Similarly, the Supreme Court has held that persons functioning as integral parts of the judicial process are immune from suits under Section 1983. Burns v. Reed, 114 L. Ed. 2d 547, 111 S. Ct. 1934, 1938 (1991). For example, Judges are absolutely immune from liability for performing judicial acts, Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967); prosecutors have absolute immunity from liability for initiating prosecutions, Imbler v. Pachtman, supra ; and witnesses have absolute immunity from liability for giving testimony at trial, Briscoe v. LaHue, supra.
The determinative issue in this case is whether Tronetti and Reilly were functioning as integral parts of the judicial system (and are therefore absolutely immune from liability under Section 1983) when they performed the acts on which McArdle's claims were based. We address each of McArdle's allegations in turn.
First, McArdle alleged that Tronetti violated his due process and equal protection rights by intentionally making a false diagnosis of paranoid schizophrenia. App. at 3-6. Tronetti made his psychiatric examination of McArdle at the request of and furnished a written report of that evaluation to Judge Connelly. App. at 109-111. Tronetti was, therefore, functioning as an arm of the court. As such, he was an integral part of the judicial process and is protected by the same absolute judicial immunity that protects Judge Connelly. Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967); Moses v. Parwatikar, 813 F.2d 891 (8th Cir.), cert. denied, 484 U.S. 832, 98 L. Ed. 2d 67, 108 S. Ct. 108 (1987); Bartlett v. Weimer, 268 F.2d 860 (2nd Cir.), cert. denied, 361 U.S. 938, 4 L. Ed. 2d 358, 80 S. Ct. 380 (1960). Moreover, Tronetti's report and recommendation to the court, made at the court's direction, constituted testimony protected by absolute witness immunity. See Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989); Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.), cert. denied, 484 U.S. 828, 98 L. Ed. 2d 58, 108 S. Ct. 97 2 (1987).
Second, McArdle alleged that Tronetti and Reilly violated his due process and equal protection rights by committing perjury during the December 5 hearing. App. at 5, 8. McArdle contends that Tronetti and Reilly lied under oath by testifying that McArdle was a paranoid schizophrenic who was a danger to himself and others when they knew such testimony to be untrue. Since witness immunity applies to testimony given at pretrial hearings*fn2 as well as to trial testimony, Williams v. Hepting, 844 F.2d 138, 140-143 (3d Cir.), cert. denied, 488 U.S. 851, 102 L. Ed. 2d 107, 109 S. Ct. 135 (1988),*fn3 Tronetti and Reilly are absolutely immune from liability with respect to these allegations as well.
Third, McArdle alleged that Tronetti and Reilly violated his due process and equal protection rights by conspiring to have him falsely diagnosed as a paranoid schizophrenic. App. at 6, 8-9. We agree with the district court and the other circuits that have addressed this issue that if persons are immune from Section 1983 liability for their acts by virtue of their function in the judicial process, they must be immune from Section 1983 liability for conspiring to do those acts. See, e.g., John v. Barron, 897 F.2d 1387, 1392 (7th Cir.), cert. denied, 112 L. Ed. 2d 43, 111 S. Ct. 69 (1990); Moses v. Parwatikar, 813 F.2d 891 (8th Cir.), cert. denied, 484 U.S. 832, 98 L. Ed. 2d 67, 108 S. Ct. 108 (1987); Ashelman v. Pope, 793 F.2d 1072, 1077-1078 (9th Cir. 1986); Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985); Holloway v. Walker, 765 F.2d 517, 522 (5th Cir.), cert. denied, 474 U.S. 1037, 88 L. Ed. 2d 583, 106 S. Ct. 605 (1985). Otherwise, Judges, prosecutors, witnesses and others "on mere allegations of conspiracy or prior agreement, could be hauled into court and made to defend their judicial acts, the precise result judicial immunity was designed to avoid." Ashelman v. Pope, 793 F.2d 1072, 1077 (9th Cir. 1986).
Finally, we interpret McArdle's complaint to allege, albeit sketchily, that Reilly violated his constitutional rights by filing the commitment petition and that Tronetti was also involved in this conduct.*fn4 While the district court did not treat these allegations separately, we find them to be fundamentally different in nature from the other allegations. As discussed above, Tronetti and Reilly are immune for the alleged false testimony, false diagnosis, and conspiracy because those allegations concern their functions as witnesses and officers acting at the court's direction. When Reilly filed the involuntary commitment petition, however, he was functioning neither as a witness nor as an arm of a court; the petition was not the equivalent of testimony offered in court or a written report made at a court's direction. We hold, therefore, that the defendants are not protected by either witness or judicial immunity with respect to the allegations that they were responsible for filing a petition for involuntary commitment which they knew contained lies.
Reilly argues that he is nonetheless protected against these claims by prosecutorial immunity under Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976) and Burns v. Reed, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991). We disagree.
In Imbler, the Supreme Court held that state prosecutors, who enjoyed absolute immunity from liability at common law, are absolutely immune from liability under Section 1983 for initiating prosecutions and presenting cases. The Court found such immunity to be based on policy considerations identical to those which underlie judicial immunity. "These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Imbler, 424 U.S. at 422-423. See supra p.4. The Court further explained the need to extend immunity to prosecutors by distinguishing between the burdens that Section 1983 suits would place on prosecutors and the burdens they place on other executive and administrative officials. The Court wrote:
Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.
Imbler, 424 U.S. at 425-426. As it has with respect to witness and judicial immunity, the Court carefully limited its holding to those prosecutorial functions which are "an integral part of the judicial process," i.e., the initiation of prosecutions and the presentation of cases. Imbler, 424 U.S. at 430-431.
In Burns v. Reed, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991), the Supreme Court held first that prosecutors are absolutely immune from liability for their participation in probable cause hearings, finding that "appearing before a Judge and presenting evidence in support of a motion for a search warrant clearly involve the prosecutor's 'role as advocate for the State'" which it had found immune from liability in Imbler. Burns, 111 S. Ct. at 1942. The Court then answered a question that it had expressly reserved in Imbler, i.e., "whether absolute immunity extends to 'those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate.'" Burns, 111 S. Ct. at 1939, quoting Imbler, 424 U.S. at 430-431. The Court rejected the argument that giving legal advice to a police officer is related to a prosecutor's case-screening advocate function, explaining that "almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive." Burns, 111 S. Ct. at 1944. The Court also rejected the government's argument that, as with the initiation of prosecutions, sufficient checks on prosecutorial misconduct already exist. The Court stated that "one of the most important checks, the judicial process, will not necessarily restrain the out-of-court activities of a prosecutor that occur prior to the initiation of a prosecution . . ." Id. at 1944. The Court held that immunity does not extend to the act by a prosecutor of giving legal advice to a police officer. It found that neither the common law nor policy considerations supported such an extension. In so finding, the Court emphasized that "absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation," and that it applies "only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct." Burns, 111 S. Ct. at 1943.
In applying these cases to the case before us, we note first and foremost that at common law citizens who were not prosecutors did not enjoy immunity from claims that they maliciously initiated judicial proceedings. On the contrary, the long-standing tort of malicious use of process provided and continues to provide recovery for just those claims. Given the strong historical basis for Section 1983 immunities, it would be anomalous to create a Section 1983 immunity for the malicious filing of a commitment petition by a non-prosecutor in the face of a common law tort that provides recovery for just such a claim.
Second, Reilly has nowhere alleged that the filing of petitions for involuntary commitment was one of his responsibilities as prison counsellor or that the judicial system depended upon him and others in his position to file such petitions. It appears that Reilly had no special authority or responsibility to file such petitions. Instead, his authority apparently rested solely on a statute that authorizes any person to file such petitions.*fn5 If any person may file such petitions and Reilly had no special duty as prison counsellor to do so, it is self-evident under Imbler and Burns that Reilly's filing of the petition cannot be considered an integral part of the judicial process warranting absolute immunity.*fn6
Moreover, the policy considerations which led the Supreme Court to find absolute prosecutorial immunity for advocate functions and no such immunity for certain administrative and investigative functions dictate that we find no absolute immunity here. As discussed above, the burdens of potential Section 1983 liability on a prosecutor for the initiation of prosecutions are "intolerable" because, among other reasons, a prosecutor is "responsible annually for hundreds of indictments and trials." Imbler, 424 U.S. at 425-426. Those responsibilities necessarily entail substantial reliance on assistant prosecutors and involve decision-making within severe time constraints. A prosecutor simply could not function effectively if every indictment brought the threat of personal liability under Section 1983. Prosecutorial immunity is, therefore, necessary to ensure that a prosecutor's professional judgments are not influenced by fears of personal financial liability. These concerns do not apply in the case before us. Here, Reilly was not responsible for hundreds of filings. On the contrary, it does not seem that his job required him to initiate any such proceedings.
In summary, we hold that the defendants are immune from Section 1983 liability with respect to the claims of false diagnosis, false testimony, and conspiracy.*fn7 We hold, however, that the defendants are not immune from Section 1983 liability with respect to the filing of the petition for involuntary commitment;*fn8 however, with respect to these claims, we will still affirm the district court's dismissal of McArdle's complaint for the reasons set forth below.
McArdle's claim with respect to the petition for involuntary commitment amounts to a claim of malicious use of civil process by state actors in violation of his Fourteenth Amendment rights. See supra p.10-11. We have held that claims of malicious prosecution brought under Section 1983 "must include the elements of the common law tort as it has developed." Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989); Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). While Rose and Lee involved malicious criminal prosecutions, we believe that the reasoning of those cases applies equally well to malicious prosecution in the civil context, i.e., malicious use of process. We hold, therefore, that a claim of malicious use of process may state a Section 1983 claim if it includes the elements of that common law tort as it has developed.
The elements of the common law tort of malicious use of civil process are similar in most jurisdictions and under the Pennsylvania statute codifying this tort, a defendant may not be found liable unless:
(1) He acted in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
42 Pa. Cons. Stat. Ann. § 8351. See also, e.g., Penwag Property Co., Inc. v. Landau, 76 N.J. 595, 388 A.2d 1265 (1978); Nix v. Sawyer, 466 A.2d 407, 411 (Del. Super. Ct. 1983); Restatement (Second) of Torts § 674 (1976); W. Page Keeton et al., Prosser and Keeton on Torts §§ 119, 120 (5th ed. 1984). Accordingly, we must determine whether McArdle's complaint alleges these elements.
We have recently held that Section 1983 claims must be pled with specificity. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.), cert. denied., 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1988). While we also construe pro se pleadings more generously and McArdle is appearing pro se, McArdle is a practicing attorney an a member of the bar of this court. In any event, even the most generous interpretation cannot make out all of the elements of the tort of abuse of process in the counts of the complaint alleging that Reilly and Tronetti violated McArdle's constitutional rights. In particular, we find no allegation that the involuntary commitment proceeding terminated in McArdle's favor. On the contrary, the complaint alleges that the Court of Common Pleas ordered McArdle's commitment and contains no allegation that this determination was subsequently reversed. The last event set out in the complaint was McArdle's transportation to Warren State Hospital by the sheriff on December 13, 1990, three days after the entry of the commitment order. Even count seven of the amended complaint, which sets out a pendent claim for abuse of process, lacks any allegation that the commitment proceedings terminated in McArdle's favor under any theory. Thus, McArdle's Section 1983 abuse of process allegations are plainly deficient.
In an affidavit filed after the defendants moved to dismiss, McArdle set out additional facts not contained in the complaint. He stated that on January 3, 1991, he was removed from Warren State Hospital and taken back to the prison because he did not need psychiatric treatment. He further stated that he was paroled from the prison that same day. While these facts might be used in constructing a theory that the commitment proceeding ultimately terminated in McArdle's favor, the complaint does not contain any of the facts -- including discharge from the hospital and parole -- on which such a theory would have to be built. It does not appear that McArdle sought leave to amend the complaint to remedy these defects even after they were pointed out in Reilly's motion to dismiss the pendent abuse of process claim, and these defects in the complaint clearly could not be remedied by the affidavit. Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2nd Cir. 1990). See Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988). We must therefore affirm the dismissal of McArdle's Section 1983 abuse of process claims for failure to allege an essential element of this constitutional tort.
For the reasons stated above, we will affirm the judgment of the district court.*fn9
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August 15, 2011
RAYMOND WRIGHT, PLAINTIFF,v.SCOTT KEBNAN, ET AL., DEFENDANTS.
ORDER STRIKING PLAINTIFF'S REPLY (ECF No. 92)
Plaintiff Raymond Wright ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the first amended complaint, filed March 27, 2008, against Defendants Lefler, Figueroa, Gonzalez, Hernandez and Rivera for interference with Plaintiff's right of access to the courts; Defendants Lefler, Gonzalez, Rivera, Desbit, Lima, Peterson, Pearce, Baires, Pennington, Grannis, and Kernan for retaliation; and Defendants Lefler, Orozco and Miller for violations of the Equal Protection Clause. On June 16, 2011, Defendant Pennington filed an answer to the amended complaint and Plaintiff filed a reply on August 11, 2011.
The Federal Rules of Civil Procedure provide, in relevant part, that there shall be a complaint, an answer, and a reply to an answer if the court orders one. Fed. R. Civ. P. 7(a). The Court has not ordered a reply to the answer and declines to make such an order. Therefore Plaintiff's reply shall be stricken from the record.
Accordingly, it is HEREBY ORDERED that Plaintiff's reply, filed August 11, 2011, is STRICKEN from the record.
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Younger vets still struggle finding jobs
There are 2 comments on the TwinCities story from Feb 23, 2013, titled Younger vets still struggle finding jobs. In it, TwinCities reports that:
Brett Culver, left, of Newalla, Okla., formerly of the Air Force, talks with Texas state trooper Deon Cockrell, right, at a Recruit Military job fair in Oklahoma City, Thursday, Jan.
Join the discussion below, or Read more at TwinCities.
#1 Feb 25, 2013
Imagine that. The government cuts out 50,000 troops into the worst economy in decades and they have a hard time finding jobs. That is a great way to thank them for their service. Now it is being said that sequestration could mean another 100K-troop cut. Along with all of the other government jobs cut with sequestration the unemployment line will continue to grow.
#2 Aug 15, 2013
Jarhead, I understand that there are a lot of veterans who, despite their honorable status, are continuously and unfortunately joining the unemployment pool. I recently read in a local newspaper article that the a large contributor to this problem is the fact that those in the military are not gaining the skills that employers are seeking, and therefore, hundreds of jobs are going unfilled.
You should check out Lakewood College or the Higher Education Network ( www.go2schoolnow.com ). They are a military-friendly accredited higher education institution offering academic programs in the legal, medical, and business fields at no cost to military spouses. They offer diplomas, certificates, and associate degrees. Everything is online, so you can work at your own pace, study on your own time, take exams when you're ready, and earn a diploma, certificate, or degree in as little as 6 months.
I know it sounds too good to be true, but you have to check it out yourself!
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Have you ever gone to this small famous garden?
2013-11-12 kenziLiang Tours Sanya 889
There is no reason that once you meet into one place, you will become crazy about it, or you can call it as either a surprise or an excitement, it will be better for getting rid of the crowned modern world, so what's in your mind? Let me give you some advice here.
Standing in the rain-forest of Baoting, the pure oxygen which totally differs from the cities makes you want to absorb the air deeply and hardly, again, the unique scenary in various locations is worthy to explored. About 9 km far from the city center is the Qixianling National Forest Park, the Global hot-spring has won a great reputation of medical, beauty and health care; and far along 48km, it is the biggest Xianlong cave in Hainan province and Xian'an stone forest with an area of 500 square meter. What's more, there are also another famous rain forest waiting for you.
Facing the rich tourism resources in Baoting, any tourists can DIY their traveling journey according to their fancies, time and members, especially it is winter in most places in China, if you don't like the cold winter and prefer to the cool spring day, it is the best time to have a reversal travel, and it is also my next plan.
Another famous feature of Baoting is that it is the Li & Miao Nationality autonomous county and the population there is nearly 100,000. Being inherited from generation by generation, Miao Nationality has created rich and colorful ethnic culture as well as many touched and moved legacies; besides, the magnificent ballad, the Hainan ethnic instrument, country music and dance are mostly attractive.
The Seven fairies water-sprinkling festival on lunar 7th, July has become the noble brand of Baoting civilization, deriving from the older qualifying contest, the noble water fetching activity, large national music show, water-sprinkling parade and the traditional athletic competition at present are the favorite events of the local people and tourists.
I also want to remind you to think about the local meal for a little bit, it will be a pity if you haven't tried the famous country characteristic food. The four famous dishes are stone-scale eels called the fish that can surf, Shiling chicken named the chicken that can climb up to the tree, the cow that don't want to enter into the cowshed together with the traditional green-bamboo rice and colorful rice of Miao nationality.


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Daily Thought
There was darkness and there was light. And He chose light. He didn't have to choose light. He could have chosen an eternal wrestling match of light and dark. What greater pleasure can there be than the aroma of darkness struck down and transformed to a throne for light? Nevertheless, he chose light. He chose to set a time for the obliteration of darkness, a time of pure and perfect light. And what does He have...
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Strawberry and Pineapple Frozen Salad
Total Time
Prep 15 mins
Cook 0 mins
This is great for fresh strawberry season and also for a cool dish on a hot summer day! Goes great as a special side for holiday meals also. Since it is frozen, you can make it up ahead a day or two and bring out when needed.
Ingredients Nutrition
- 1 1⁄3 cups whipped cream
- 8 ounces cream cheese, softened
- 1⁄2 cup sugar
- 1⁄4 teaspoon salt
- 1 -2 cup strawberry
- 1⁄2 cup chopped nuts (optional)
- 4 pineapple rings
- Mix the first four ingredients together.
- Mix in the strawberries and nuts (if desired).
- Put the pineapple rings on the bottom of a 8x8 dish and pour the mixture over them.
- Freeze.
- When serving cut into fourths and place each serving on a lettuce leaf.


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United States District Court, N.D. Illinois, Eastern Division
November 18, 2014
TERRENCE ZEHRER, Plaintiff,v.HARBOR CAPITAL ADVISORS, INC., and HARBOR INTERNATIONAL FUND, Defendants.
JOAN H. LEFKOW, District Judge.
Plaintiff Terrence Zehrer, a shareholder of Harbor International Fund ("the Fund"), filed this action on behalf of the Fund under § 36(b) of the Investment Company Act, 15 U.S.C. § 80a-1 et seq. ("the ICA"). Zehrer alleges that the Fund's investment manager and advisor, Harbor Capital Advisors, Inc. ("Harbor Capital"), charged excessive advisory fees in breach of its fiduciary duty under § 36(b). Zehrer also named the Fund as a nominal defendant. Both Harbor Capital and the Fund have moved to dismiss the complaint. The Fund's motion to dismiss (dkt. 48) is granted and Harbor Capital's motion to dismiss (dkt. 43) is denied.
Zehrer holds shares in the Fund, which is one of 29 funds under the "Harbor Funds" umbrella.[2] (Compl. ¶¶ 7-8.) Each of the 29 funds is overseen by the same eight-member Board of Trustees ("the Board"). ( Id. ¶ 32.)
The Fund opened in 2006 with approximately $15 billion of assets. ( Id. ¶ 8.) By October 31, 2013, it had grown to over $48 billion. ( Id. ) The Fund invests primarily in common and preferred stocks of foreign companies, including those in emerging markets. ( Id. ) An Investment Advisory Agreement dated July 2013 gives Harbor Capital oversight responsibility for the management of the Fund. ( Id. ¶¶ 8-9; dkt. 44, ex. 4.) Harbor Capital delegates the Fund's investment management to Northern Cross under a Sub-Advisory Agreement also dated July 2013.[3] (Compl. ¶ 16; dkt. 44, ex. 5.) Harbor Capital is not liable for the investment decisions made by Northern Cross but maintains general oversight and supervisory responsibilities for the Fund, including those related to regulatory filings, legal support, and board meetings. (Compl. ¶¶ 16-17; dkt. 44, ex. 4 at 2.)
The Board approved the fees paid to Harbor Capital for its services under the Advisory Agreement. (Compl. ¶ 29.) Harbor Capital receives a fee of 0.75% for the first $12 billion of the Fund's assets under management and 0.65% for assets above $12 billion.[4] ( Id. ¶ 19.) The Fund paid Harbor Capital over $225 million in advisory fees for the 2012 fiscal year. ( Id. ) Harbor Capital, in turn, paid Northern Cross approximately $125 million under the Sub-Advisory Agreement for its investment management services to the Fund. ( Id. ¶ 20.) Harbor Capital thus retained approximately $100 million of the fees paid by the Fund in 2012. ( Id. ) Zehrer alleges that this fee is excessive and a breach of Harbor Capital's statutory fiduciary duty under § 36(b) of the ICA. ( Id. ¶¶ 36-44.)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations in the complaint must be "enough to raise a right of relief above the speculative level." Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); Johnson v. City Shelby, 574 U.S. ___, ___ S.Ct. ___, 2014 WL 5798626, at *1 (Nov. 10, 2014) (per curiam) ("Federal pleading rules call for a short and plain statement of the claim showing the pleader is entitled to relief'... they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.").
A typical mutual fund is set up by an advisor who selects the fund's directors, manages its investments, and provides other services to the fund for a fee. See Jones v. Harris Assocs., L.P., 559 U.S. 335, 338, 130 S.Ct. 1418, 176 L.Ed.2d 265 (2010). Because of this relationship, "the fund often cannot, as a practical matter, sever its relationship with the adviser.'" Id. (quoting Burks v. Lasker, 441 U.S. 471, 481, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979)). In order to check the potential for abuse inherent in this structure, the ICA requires that investment companies, such as mutual funds, be governed by a board of trustees, at least 40 percent of whom may not be "interested persons" as defined by the ICA. 15 U.S.C. §§ 80a-2(19), 80a-10. The board is tasked with negotiating advisory fees with the investment advisor on behalf of the fund and is required to act in the shareholders' best interest. 15 U.S.C. §§ 80a-15(c), 80a-35(a). As a further protection against abuse, § 36(b) of the ICA imposes a fiduciary duty on investment advisors "with respect to the receipt of compensation for services...." 15 U.S.C. § 80a-35(b). The Securities and Exchange Commission or a fund shareholder may bring an action on behalf of the fund against the advisor for breach of this fiduciary duty with respect to compensation or payments. Id. The plaintiff bears the burden of establishing a breach of fiduciary duty. Id.
"[T]o face liability under § 36(b), an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's length bargaining." Jones, 559 U.S. at 346. To determine if a fee meets this standard, courts look to all relevant factors, including those set forth in Gartenberg v. Merrill Lynch Asset Mgmt., Inc., 694 F.2d 923 (2d Cir. 1982) and adopted by the Supreme Court in Jones. Id. at 344-46. The Gartenberg factors are, "(1) the nature and quality of the services provided to fund shareholders; (2) the profitability of the fund to the adviser-manager; (3) fall-out benefits; (4) economies of scale; (5) comparative fee structures; and (6) the independence and conscientiousness of the trustees." Am. Chem. & Equip., Inc. 401(k) Retirement Plan v. Principal Mgmt. Corp., No. 4:14-CV-00044, 2014 WL 5426908, at *4 (S.D. Iowa Sept. 10, 2014) (quoting Forsythe v. Sun Life Fin., Inc., 417 F.Supp.2d 100, 114 (D. Mass. 2006)).
Because a claim under § 36(b) need only meet the liberal pleading standards set forth in Rule 8, it is not necessary for a plaintiff to make a conclusive showing of each Gartenberg factor to survive a motion to dismiss. Am. Chem., 2014 WL 5426908, at *4; see also Reso ex rel. Artisan Int'l Fund v. Artisan Partners Ltd. Partnership, No. 11-CV-873, 2011 WL 5826034, at **5-6 (E.D. Wisc. Nov. 18, 2011); In re Scudder Mut. Funds Fee Litig., No. 04 Civ. 1921, 2007 WL 2325862, at *18 (S.D.N.Y. Aug. 14, 2007) (citing In re Evergreen Mut. Funds Fee Litig., 423 F.Supp.2d 249, 258 (S.D.N.Y. Mar. 24, 2006)); Millenco, L.P. v. MEVC Advisors, Inc., No. CIV. 02-142, 2002 WL 31051604, at *3 (D. Del. Aug. 21, 2002). But "a § 36(b) complaint is not sufficient if it rests solely on general and conclusory legal assertions that the fees charged were excessive." Forsythe, 417 F.Supp.2d at 115. A plaintiff must allege sufficient facts to plausibly support an inference that the advisory fee is so disproportionately large as to bear no reasonable relationship to the services rendered in exchange for the fee. Am. Chem., 2014 WL 5426908, at **4-5 ("At the heart of a 36(b) claim is the relationship between the fees charged to the fund and the services rendered to the fund.") (citations omitted).
I. The Fund's Motion to Dismiss
The Fund argues that the language of § 36(b) precludes an action against the Fund as a nominal defendant. Section 36(b) of the ICA is neither a purely direct nor a purely derivative action: "[W]hile section 36(b) claims are not derivative for the purposes of Rule 23.1 of the Federal Rules of Civil Procedure, which requires pre-suit demand on the board of directors, they are derivative, in the general sense of the word, because they are asserted on behalf of all shareholders and result in no direct benefit to the individual plaintiff shareholders." In re Dreyfus Mut. Fund Fee Litig., 428 F.Supp.2d 357, 359 (W.D. Pa. 2006). Because § 36(b) straddles the line between direct and derivative, courts have looked to the language of the statute to resolve procedural issues. See, e.g., Daily Income Fund v. Fox, 464 U.S. 523, 542, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984) (§ 36(b) plaintiff not required to satisfy Rule 23.1 prerequisites for derivative suits).
Zehrer argues that because the action is derivative, he must name the Fund as a nominal defendant. But § 36(b)(3) specifically provides, "No such action shall be brought or maintained against any person other than the recipient of such compensation or payments, and no damages or other relief shall be granted against any person other than the recipient of such compensation or payments."[5] 15 U.S.C. § 80a-35(b)(3). Zehrer does not cite any authority to justify ignoring this clear statutory directive. Although a corporation may be a necessary party in most derivative litigation, the court finds that it is not necessary in the instance of a § 36(b) claim under the ICA. See, e.g., Millenco, 2002 WL 31051604, at *1 n.2 (dismissing fund "[b]ecause § 36(b) of the ICA prohibits an action against the Fund because it has not received compensation or payments from a registered investment company, and because all parties have agreed to dismiss the fund as a nominal defendant"). The Fund is dismissed from this case.
II. Harbor Capital's Motion to Dismiss
Harbor Capital argues that Zehrer has failed to allege sufficient facts to state a plausible claim under § 36(b). Zehrer responds that his allegations that Harbor Capital delegates investment management responsibilities to Northern Cross but retains almost half of the fees (about $100 million) are adequate by themselves to survive a Rule 12(b)(6) challenge, and that they are bolstered by allegations relating to economies of scale and a conflicted and overworked Board.
Courts have required that § 36(b) plaintiffs allege facts supporting the disproportionality of the fees at issue in the suit rather than general facts about the potential for abuse inherent in the system. See, e.g., Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343-44 (2d Cir. 2006) (affirming dismissal of § 36(b) claim where the allegations relied on information about the industry rather than allegations "pertinent to th[e] relationship between fees and services") (quoting Migdal v. Rowe Price-Fleming Int'l, 248 F.3d 321, 327 (4th Cir. 2001)) (internal quotation marks omitted). If a plaintiff alleges specific facts about the fees paid to the defendant and their relationship to the services rendered, courts have allowed the complaint to survive a motion to dismiss. For example, in Kasilag v. Hartford Investment Financial Services, LLC, No. 11-1083, 2012 WL 6568409 (D.N.J. Dec. 17, 2012), the plaintiff alleged that the defendant advisor paid subadvisors to do substantially all of the investment management services for a third or less of the fee paid by the mutual fund. Id. at *3. Although the defendant advisor countered that it performed extensive services that were not delegated to the subadvisor, the court found that the defendant's argument was more appropriately addressed at summary judgment and that the plaintiff had adequately alleged that the fee was excessive. Id .; see also Am. Chem., 2014 WL 5426908, at *7 (finding specific allegations about defendants' practices regarding subadvisors, nature of services, economies of scale, and independence of the board sufficient to survive motion to dismiss); Millenco, 2002 WL 31051604, at *3 (finding allegations that advisor had "very little to do" because it subcontracted with another advisor along with other allegations sufficient to survive motion to dismiss).
Although it is far from clear that Zehrer will be able to meet the high standard for liability under § 36(b), he has alleged sufficient facts specific to the fees paid to Harbor Capital to survive a motion to dismiss. First, Zehrer alleges that a substantial portion of the tasks assigned to Harbor Capital in the Advisory Agreement are actually performed by the Fund's subadvisor, Northern Cross and that Harbor Capital's services "are minimal compared to the day-to-day responsibilities of managing [the Fund's] portfolio" performed by Northern Cross. (Compl. ¶ 21.) Harbor Capital's contention that it retains significant responsibility for the Fund's management is better suited for summary judgment.[6] In addition, Zehrer alleges that Harbor Capital received "economies of scale" benefits as the Fund grew that were not passed on to the Fund. Although these allegations alone may not be sufficient to survive a motion to dismiss, they support Zehrer's claim that the fees are disproportionate to the services rendered and are not the product of arm's length bargaining.[7] Compare Scudder, 2007 WL 2325862, at **16, 18 (finding breakpoint allegations regarding economies of scale insufficient to survive motion to dismiss), with Reso, 2011 WL 5826034, at *9 (denying motion to dismiss and observing, "Reso's strongest allegations relate to the economies of scale factor of Gartenberg "); Sins v. Janus Cap. Mgmt., LLC, Nos. 04-CV-1647, 04-CV-2395, 2006 WL 3746130, at *3 (D. Col. Dec. 15, 2006) (allegations regarding increase in assets without fee breakpoints could show disproportionality).
In all, Zehrer has pleaded adequate facts for the court to conclude he has a plausible claim that Harbor Capital's fee is so "disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's length bargaining." Jones, 559 U.S. at 346; see also Dumond v. Mass. Fin. Servs. Co., No. CIV. A. 04-11458, 2006 WL 149038, at **2-3 (D. Mass. Jan. 19, 2006) (reading complaint as a whole and denying motion to dismiss where plaintiff made "allowably summary" allegations regarding economies of scale, kickbacks, third party clients, and board independence).
Harbor Capital raises a few additional issues. First, Harbor Capital asks that the court strike Zehrer's alternate request for rescission of the Advisory Agreement under § 47(b) of the ICA, arguing that it is not an appropriate remedy for a § 36(b) claim and, even if it were, Zehrer must first meet the demand prerequisites for filing a derivative suit under Rule 23.1.[8] Section 47(b) of the ICA provides that "contracts that violate provisions of the ICA and accompanying regulations, or whose performance involves such violation, are unenforceable." Smith v. Oppenheimer Funds Distrib., Inc., 824 F.Supp.2d 511, 517 (S.D.N.Y. 2011) (citing 15 U.S.C. § 80a-46(b)(1)). Courts have held that § 47(b) contains a remedy rather than a "distinct cause of action or basis of liability." Oppenheimer Funds, 824 F.Supp.2d at 519-21 (noting that § 36(b) includes a private right of action that could predicate a remedy of rescission under § 47(b)) (citing Smith v. Franklin/Templeton Distribs., No. C09-4775, 2010 WL 2348644, at *7 (N.D. Cal. June 8, 2010); Stegall v. Ladner, 394 F.Supp.2d 358, 378 (D. Mass. 2006); Mutchka v. Harris, 373 F.Supp.2d 1021, 1027 (C.D. Cal. 2005)). Although at least one appellate court has determined that § 36(b)'s limitation on damages also forecloses relief under § 47(b), see Steinberg v. Janus Capital Mgmt., LLC, 457 F.Appx. 261, 267-68 (4th Cir. 2011), it is not binding on this court. And at least one court has allowed a plaintiff to proceed with its request for rescission under § 47(b) if a violation of § 36(b) is established. See Tarlov v. Paine Webber Cashfund, Inc., 559 F.Supp. 429, 438 (D. Conn. 1983); see also Oppenheimer Funds, 824 F.Supp.2d at 521(indicating that § 47(b) could be rendered a nullity if its remedy is not available in the event of a violation of § 36(b)); Laborers' Local 265 Pension Fund v. ishares Trust, No. 3:13-CV-00046, 2013 WL 4604183, at **6-7 (M.D. Tenn. Aug. 28, 2013) (denying § 47(b) remedy because § 36(b) claim could not survive). Section 36(b) is an equitable action that specifically limits money damages to restitution. See Kamen v. Kemper Financial Services, Inc., 908 F.2d 1338, 1350-51 (7th Cir. 1990), rev'd on other grounds, 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (§ 36(b) is equitable because it "creates a fiduciary duty and recovery shall in no event exceed the amount of compensation or payments received from [the] investment company'") (quoting 15 U.S.C. § 80a-35(b)(3)). It does not, however, explicitly foreclose other equitable remedies, such as injunctive relief or rescission. Because it is unsettled whether rescission under § 47(b) is an appropriate remedy if Zehrer is able to make out a violation of § 36(b), the court will not strike Zehrer's alternate request for rescission at this stage.
Second, Harbor Capital complains that Zehrer's complaint cites the fee data for the 2012 fiscal year and disputes Zehrer's assertion that this was the most recent data available at the time the complaint was filed. It is not necessary, and is often impossible, for § 36(b) plaintiffs to file suit with the fee data that relates to the entire damages period. See, e.g., Am. Chem., 2014 WL 5426908, at *1 n.1 (noting plaintiff filed complaint to preserve its claim for damages in the year between plaintiff's original filing and its second complaint filed after publicly available information was updated). Although Harbor Capital faults Zehrer for not using 2013 fee data, it does not make any claim that the fees for 2013 are not in line with the fees from 2012.
Finally, Harbor Capital asks that the court strike Zehrer's jury trial demand pursuant to the Seventh Circuit's direction in Kamen, 908 F.2d at 1351. The court grants the request and strikes the jury demand.
Based on the foregoing discussion, the Fund's motion to dismiss (dkt. 48) is granted and Harbor Capital's motion to dismiss (dkt. 43) is denied.
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Most Anticipated Release
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Not enough options
Where's the "yawn" option? That would get my vote.
re: not enough options
Well, you could always cast your yawn towards the Unoobtu choice - basically it's the same thing.
Now, now. I've just been dealing with some techie types over a new website-to-be. I ended up blowing my stack when the flow of work was interrupted for the second time in about 10 days by one of them calling for a new round of navel-gazing which undercut the whole basis of the project. None of them had the slightest comprehension of the impracticality of that whole modus operandi.
Deadlines? Oh yes, they make such a pleasant sound as they rush by. Public relations? What's 'public'? Promotion? Who cares if no one uses it as long as it's theoretically correct.
In desperation over the most prominent Foss office suite, I'm turning to KOffice. Please wish me luck.
I'm assuming that Linux Mint 3.1 Celena goes under Ubuntu. Even though it's based on 7.04, not 7.10.
re: Asterick...
that's already out tho ain't it? but yeah, anything *buntu derived...
openSUSE 10.3
openSUSE 10.3 out this Thursday, woo!
Anticipated release
To Vonskippy;
These seem to be a rehash of existing systems with software updates posing as OS upgrades.
Such is life when a rapidly maturing OS is so good that upgrades represent a "technological improvement".
Oh well, I'll live with the shame .
re: anticipated release
Never has a list held less excitement. It'd be different if any of these releases weren't destined to be just as bug ridden as their predecessors. Apparently there's no glamor in fixing problems - just creating new ones (as long as they come with new artwork, I guess we're supposed to be happy).
Please don't start
For those of you who love your stability, and find nothing lacking in the same packages you've used for years now, you still have your Debian Sarge. Just use it, and be happy. Why bother to needlessly bash the dedicated developers trying to make Linux a bit more approachable to the non-software-purists of the world. You can still have your secret club meetings...
re: please don't start.
"Why bother to needlessly bash the dedicated developers trying to make Linux a bit more approachable to the non-software-purists of the world."
It's called "FEEDBACK", perhaps you've heard of it. It's where rational, real-world people, give their valid opinions on what's lacking with Linux in an attempt to garner a workable alternative to Windows.
The idea is to create a very tiny possibility that the Linux developers will start paying attention to real users instead of the drooling unwashed hordes of linux fanboys (or worse yet, themselves) and stop churning out release after release of the same old kibble.
The 6 month cycle of churn has turned into a "look at our cool new graphics and see how fresh our package list is" instead of focusing on actually producing a better (or gasp - more stable) OS.
Debian has a slightly better release approach, but their software "politics" and lukewarm management (aka the blind leading the stupid) means it's a no go for me.
RHEL (and it's growing herd of clones) seems to be a good mix of stability, reasonably current packages, and good management (as does, or so I hear, SUSE Enterprise).
So get your bandaids out (and your excuse/apology thesaurus), and enjoy your bleeding edge eye candy release, just don't say that's the BEST that Linux can be (and we should be happy about that).
Re: Debian
I've been using Debian as my main desktop OS for about 4 years now (currently using the "testing" branch). Its package management system is both simple and powerful, it's arguably better than anything RPM-based, and its package pool is so large there's rarely a need to go outside of it. In other words, I'm very satisfied with it.
Nobody involved with Debian is stupid. They're 99.9% developers. IMHO they either a) don't give a flying **** about being, or simply have no clue know how to be, responsive to the needs of a wide user base -- or c) a bit of both. (The latest example is the NZ time zone fracas -- how many Debian users even knew there was a "volatile" repository?)
That's what you get when a distro the size of Debian has hardly anyone on its staff except for developers. That's why Ubuntu's become so popular in such a short amount of time.
Contrast that with openSUSE. Looks to me like openSUSE did improve its underlying OS with its latest release (e.g. in the area of package management). Too bad it's now owned by Novell, whose marketing geniuses are sucking up to Microsoft.
re: re: Debian
Perhaps I used a bad choice of metaphor's - instead of saying their management is akin to "the blind leading the stupid" I might have more accurately portrayed their management style (or lack there of) as "two straight guys having a serious discussion about fashion".
As you point out, they seem to be either clueless or just don't care about managing a project that has grown beyond their initial vision/scope.
That's fine for a hobby, but in the business world it's grow, get bought out (or sued in oblivion), or die. I think Debian needs to figure out which category they're shooting for.
And although apt-get is a good package manager, their ongoing repo/dependency problems tarnishes an otherwise slick system.
re: re: re: Debian
That's fine for a hobby, but in the business world it's grow, get bought out (or sued in oblivion), or die. I think Debian needs to figure out which category they're shooting for.
In Debian's case, it's "none of the above." Unlike Red Hat, Canonical, or Novell, Debian isn't owned or produced by a business, and so its main motivation as an organization isn't making money, it's producing a free OS. (That's something I greatly admire about it.)
I think "hobby" is a bad word to describe something as sophisticated as Debian. It's demeaning, as if you're comparing it to a 7-year-old's train set. I'm just a home desktop user, but from what I read, Debian is entirely suitable for use in a business setting.
(On a philosophical note, I'd also disagree that businesses always need to "grow or die" -- change, certainly, but IMO once your income reaches a certain level, the idea of "continual growth" is more a matter of greed and the way our culture defines success. If you want your business to be publicly-owned and -traded, you always have to make more money; that's the way the system is set up. But going that route is a choice, not a necessity.)
And although apt-get is a good package manager, their ongoing repo/dependency problems tarnishes an otherwise slick system.
What repo/dependency problems?
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Click here to see photos of the event
"Noche de La Luz," held this year on Saturday August 6th at Sonoma Veterans Memorial Hall, was a glow-in-the-dark extravaganza of light ("la luz" in Spanish). It was also a great success raising $470,000 for the La Luz Center, funding programs to educate and assist Valley families in need. The event was sold out to 330 lucky guests who came decked out in neon colors and LED lights.
A beautiful young couple clothed in florescent paint posed for souvenir photos with guests during the cocktail hour. Watermelon martinis with Skyy vodka and Highway 12 wines flowed freely. Caterer Elaine Bell's multi-colored hors d'oeuvres included mini bahn mi, quesadillas, and green cardamom shrimp along with a trio of colorful soups.
Guests were wowed as they entered the dining area that was magically transformed into a psychedelic dream experience. Glow-stick jewelry, flashing top hats of committee members, tables set with black cloths and blue LED lights added to the magic.
Sheila Whitney Stanford sang "Being Alive", and Marcelo Defreitas, the event's creator, producer and current La Luz Board President, joined in and welcomed the crowd. "I stand in this room filled with the most caring and generous people of this community," he said. "Once again, year after year, I plead that you continue to join me in this effort to make our community more diverse and more inclusive. One where every resident feels like he or she belongs."
Raffle winners were Mike and Mary Schuh of Glen Ellen who have graciously and generously donated their $5,000 prize back to La Luz to support our Information and Referral programs. What a bonus!
Dinner was served family style and included peach crostini starters, char grilled hangar steak and grilled cod, plates of vegetables and an extraordinary crowd-pleasing brown butter corn polenta. The grand finale was a parade of Glowing White Chocolate Splendor adorned with blinking LED lights.
Juan Hernandez, ED of La Luz, introduced 11 year old Fernanda Alvarez, daughter of La Luz clients, whose "dream is to be a singer." Fernanda wowed the crowd with her rendition of Miley Cyrus' The"Climb" then broke into tears as she hugged Marcelo, "the man with the biggest heart in Sonoma."
When the Fund a Need followed Fernanda's performance, guests opened their hearts and wallets. Major supporters jumped right in and nearly every guest raised a paddle. When Marcelo was joined by three supporters (John Story, Bill Hake and Tom Perkins) who offered to match every $100 donation, donors raised their paddles a second time!
A highlight of the evening's entertainment was an extraordinary performance by Lightwire Theater based in New Orleans. They are internationally recognized and have performed on America's Got Talent. Guests were captivated by the performance of dancers and puppets lit up in a darkened room appeared as flying birds or oversized mythical animals. As has become tradition, as the finale to the party, guests took the stage for dancing to the music of DJ Jefferson Espinosa.
La Luz is grateful to all supporters (Noche attendees, those who couldn't get tickets because the event was sold out, raffle ticket buyers) who share our mission –to ensure that Sonoma Valley residents facing all types of challenges have the opportunity to improve their lives.
Links to articles:
Read his uplifting speech. Link below:
Click link below to see a all photos from this event!
On December 11th we officially kicked off the construction of our new Community Services Center. Staff, board, donors and press gathered to watch as shovels bit the ground in preparation for the building which will provide privacy and comfort for clients and adequate work space for staff and volunteers. It will replace a decades-old, inadequate structure.
The construction is expected to be completed within about six months. The project is being funded by grants and contributions from many generous donors.
The general contractor for the project is Devcon Construction, Inc., and the architectural firm is Bevan & Associates.
MC Marcelo Defreitas and tango partner Valerie Walter Wow the crowd at Noche Latina. View more photos!
"Noche Latina" held at Glen Ellen's K2 horse ranch, was a true celebration of La Luz Center's 30th anniversary and of Sonoma Valley's Latino heritage.
The event was sold out to 400 guests who came decked out in red and black "tango" attire and costumed as Frida Khalo, Diego Rivera, Che Guevarra, Zorro, Carmen Miranda and Evita.
Volunteers in colorful La Luz tee shirts seemed to be everywhere… there were over 40 people helping park cars, directing traffic, and keeping the party running smoothly.
"Noche" was a resounding success and raised a record-breaking $452,000 for La Luz Center.
"The generosity of our donors empowers us and endorses our vision and mission of La Luz Center," said La Luz Executive Director Juan Hernandez III, "We could not be more humbled and encouraged by what happened tonight. We know our work is embraced by Sonoma Valley."
Carlos Herrera band played Latin music for the cocktail hour which took place under majestic oak trees and giant flags of Latino countries. Guests enjoyed wines by Highway 12 winery, blood orange martinis with Skyy vodka , Argentinian beef empanadas and paella stations.
Mariachi Bello and Los Charros showing their roping talents entertained when the guests promenaded into the elegant Buenos Aires tango lounge lit with chandeliers and candelabra and long tables set with red cloths and black lace.
Bare-chested matador MC Marcelo Defreitas, the event's creator and producer, and local attorney Valerie Pistole, in glittering satin, took the huge curtained stage and began the night's entertainment with a passionate, crowd-pleasing tango.
The consummate entertainer, Defreitas teased guests, played bullfight music and had a bull make a surprise attack on board member Kimberly Blattner, who "didn't get the memo" about not wearing red.
Dinner by Elaine Bell was served family style and included Latin-inspired beef, fish and vegetable dishes, with tres leches cake for birthday dessert.
A video showcasing La Luz's expanding work was shown before the Fund a Need, which was a huge vote of confidence from the crowd, topping all former auctions when three donors offered to match hundred- dollar donations. Paddles flew into the air, and the crowd roared.
Executive Director Juan Hernandez took the stage for a surprise tribute to Defreitas, thanking him for "giving five years of his life and talents to La Luz."
Noche Latina is the fifth find raising party Defreitas has created and produced. Taking the community by storm he first took La Luz supporters to his native Brazil's Copacabana nightclub, a party held at the Sonoma Barracks. In search of more space, he created a Moroccan Casbah at Hanna Boys Center; then to Jack London Park's African savannah; the South Pacific gardens of Cline Winery and has finally come full circle back to our valley's roots with Noche Latina.
Entertainment for the party included Mexican Ballet Folklorico, Sangre Latina and Aquarela do Brasil dance groups --to the crowd's delight the sexy Brazilian dancers from the Copacabana made a comeback. As has become tradition, to cap off a perfect party, guests took the stage for spirited "hang loose" disco dancing.
La Luz Center has been serving Sonoma Valley for thirty years. In the past year it has expanded its many services, and with a new collaborative with el Verano School strives to be a catalyst for change through health, education and financial security.
La Luz Center recently hosted the Leadership Challenge workshop. In this exclusive to the Sonoma Valley Sun, Sonoma Leadership Systems' Lauren Parkhill reports on the inspiring workshop.
Full article at the Sonoma Valley Sun
This year, La Luz was one of the recipients of an Impact Community Grant for $15,000 to expand the Employment Services & Computer Literacy Program. These programs provide members of Sonoma Valley's low income families with employment counseling, computer literacy classes and ongoing technology literacy assistance. The expansion will allow La Luz to reach many more families, hold job fairs and add much needed classes. The expanded program provides participants with increased confidence in their technology skills, ability to find employment and be more competitive in the Sonoma County labor market. The programs will continue to be managed by our Community Education & Engagement Program Manager, Malinalli López, who has implemented similar, successful skills improvement programming on behalf of the City of Santa Rosa prior to working at La Luz Center. Jerardo Martinez is our Technology and Employment Navigator.
La Luz is also one of the partners of On the Move, this years winner of the $100,000 annual grant from Impact 100 for the implementation of a Sonoma Valley Parent University at El Verano and Sassarini Elementary Schools. Parents learn how to support their children, improve their English, volunteer at the schools and connect with other parents. The ultimate goal is for parents to become leaders in their community and role models for their children.


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Two weekends ago our family took a trip to the Indiana Railway Museum. The museum is located in French Lick, Indiana which is perhaps better known for the French Lick Springs Resort, the West Baden Hotel, and the hometown of Larry Bird. It was a dreary, rainy day but I managed to make a few images. The train we rode.
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 Interior of a locamotive.
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 Window latch.
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 View from the train.
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 View from the rear of the train.
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