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July 29, 2010
ISMAEL ROMAN, AS ADMINISTRATOR OF THE ESTATE OF NAYELIS RUIZ ROMAN, ET AL., PLAINTIFFSv.LANCASTER GENERAL HOSPITAL, ET AL., DEFENDANTS
This negligence action arises from the death of Nayelis Ruiz Roman on February 27, 2008 at the Children's Hospital of Philadelphia. She was eleven days old. Ismael Roman, as Administrator of the Estate of Nayelis, and Yadira Roman and Carlos Ruiz, as her parents, bring claims for negligence, wrongful death, survival, and negligent infliction of emotional distress against several doctors, Southeast Lancaster Health Services, Inc., and Lancaster General Hospital.
Dr. Johnsen-Martin, Dr. Eash-Scott, and Southeast Lancaster Health Services, Inc., filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), asserting they are shielded from individual liability by the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. They claim they fall under its scope by operation of the Public Health Service Act, 42 U.S.C. § 233, which provides the exclusive remedy for civil claims against federally funded public or non-profit private entities and their employees pursuant to the FTCA. See 42 U.S.C. § 233(a),(g). Because they assert special status as federal employees, I will refer to the two doctors and Southeast Lancaster Health Services as the "federal defendants."*fn1 The federal defendants also seek to substitute the United States as a party defendant in their stead and to dismiss the claims against the United States without prejudice given the jurisdictional mandates of the FTCA. The plaintiffs oppose the motion in its entirety and dispute whether the federal defendants are entitled to federal employee immunity under the FTCA. Alternatively, in the event the FTCA does govern, the plaintiffs seek to invoke the Act's savings provision, 28 U.S.C. § 2675(d)(5), to rescue their administrative claim from the express two year statute of limitations.
I. BACKGROUND*fn2
Nayelis Ruiz Roman was born on February 16, 2008 at Lancaster General Women & Babies Hospital and passed away at the Children's Hospital of Philadelphia on February 27, 2008. Pls. Ex. A ¶¶ 4-5. Ms. Roman received prenatal care at Southeast Lancaster Health Services beginning on September 18, 2007. Ms. Roman's care started with prenatal visitations, continued through her admittance to obstetric triage at Lancaster General Women & Babies Hospital on February 15, 2008, and concluded with Nayelis's birth the following day. Id. ¶ 33. The plaintiffs assert that, from Ms. Roman's initial admittance to obstetric triage through the birthing process and the delivery of Nayelis, Dr. Johnsen-Martin and Dr. Eash-Scott, acting as agents of Southeast Lancaster Health Services, provided negligent medical evaluation, care and treatment to Ms. Roman and Nayelis. Id. ¶¶ 18, 31-111. Specifically, they allege the doctors unduly delayed and negligently performed the delivery, causing Nayelis's injury and death by hypoxic ischemic brain injury. Id. ¶¶ 126-130.
The plaintiffs filed a complaint in the Court of Common Pleas of Lancaster County, Pennsylvania on December 30, 2009.*fn3 On March 31, 2010, the federal defendants removed this action to the Eastern District of Pennsylvania pursuant to 42 U.S.C. § 233(c), 28 U.S.C. §§ 1441(a) and 2679(d)(2). By virtue of the Federally Supported Health Centers Assistance Act, 42 U.S.C. §§ 233(a),(g), the federal defendants apparently fall under the Federal Tort Claims Act. The federal district courts possess original jurisdiction over claims under the FTCA. 28 U.S.C. § 1346. On April 1, 2010, the federal defendants filed this motion to dismiss, arguing the plaintiffs have not complied with the jurisdictional prerequisites of the FTCA. The plaintiffs filed an administrative claim with the United States Department of Health and Human Services on April 12, 2010 but have not received written notice of denial.
A motion to dismiss under Rule 12(b)(1)*fn4 of the Federal Rules of Civil Procedure either challenges the complaint on its face for failure to allege subject matter jurisdiction or challenges the court's jurisdiction in fact. See Robinson v. United States, No. 92-4869, 92-6175, 1993 U.S. Dist. LEXIS 3161, *2 (E.D. Pa. Mar. 16, 1993) (citing Kronmuller v. West End Fire Co. No. 3, 123 F.R.D. 170, 172 (E.D. Pa. 1988). Here, the federal defendants substantively question the court's jurisdiction, so "the court need not accept all plaintiff[s'] allegations as true." Robinson, 1993 U.S. Dist. LEXIS 3161, at * 2; see also Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) ("No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims."). In deciding a Rule 12(b)(1) motion, the court may consider facts distinct from the pleadings. See Mortensen, 549 F.2d at 891; accord Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997). The plaintiffs, as the party asserting jurisdiction, bear the burden of proof. See Dev. Fin. Corp. v Alpha Hous. & Health Care, 54 F.3d 156, 158 (3d Cir. 1995).
The United States enjoys immunity from suit except in the situations where it consents to be sued. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994); Loeffler v. Frank, 486 U.S. 549, 554 (1988). Jurisdictional in nature, sovereign immunity requires express waiver by Congress as a precondition for a court to maintain suit against the federal government. Meyer, 510 U.S. at 475; see also United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). The terms of the United States' "consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941).
The Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq, constitutes an express waiver of sovereign immunity and exposes the United States and its agencies to potential liability for private actions sounding in tort. See Pascale v. United States, 998 F.2d 186, 189 (3d Cir. 1993). The FTCA allows suit against the federal government for the negligent acts of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see also Pascale, 998 F.2d at 187 ("The [FTCA], enacted in 1946, permits the government to be sued for the negligence of its employees under the same circumstances and to the same extent as a private party.").
The district courts have "exclusive jurisdiction of civil actions on claims against the United States, for money damages... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" if the United States would be liable as a private party under the same circumstances. 28 U.S.C. § 1346(b)(1) (emphasis added);*fn5 see also Meyer, 510 U.S. at 479 ("[Section] 1346(b) describes the scope of jurisdiction by reference to claims for which the United States has waived its immunity and rendered itself liable."). Further, the FTCA provides the sole remedy for tort claims cognizable under § 1346(b). See Meyer, 510 U.S. at 476. The FTCA remedy is "exclusive of any other civil action or proceeding for money damages... against the employee whose act or omission gave rise to the claim." 28 U.S.C. § 2679(b)(1) (emphasis added).*fn6
The federal defendants contend they are employees of the Public Health Service pursuant to the Public Health Service Act. See Fed. Defs.' Mot. Dismiss 2; see also 42 U.S.C. §233(g).*fn7 Under the Public Health Service Act, 42 U.S.C. § 233, "the exclusive remedy against the United States 'for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions... by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment' shall be pursuant to the [FTCA]." Wilder v. Luzinksi, 123 F. Supp. 2d 312, 313 (E.D. Pa 2000) (quoting 42 U.S.C. § 233(a)).*fn8
Due to the exclusiveness of the remedy under the FTCA and its jurisdictional prerequisites, a court may not entertain civil suit for a claim cognizable under § 1346(b) against "any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1); see also Meyer, 510 U.S. at 476. Section 2679(d) empowers the Attorney General to certify that a "defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d)(1). Upon certification by the Attorney General, the civil suit or proceeding "shall be deemed an action against the United States... and the United States shall be substituted as the party defendant." Id. (emphasis added); see also Schrob v. Catterson, 967 F.2d 929, 934 (3d Cir. 1992) (citing United States v. Smith, 499 U.S. 160, 163 (1991)).
In order to fall within the purview of the FTCA, thus mandating the substitution of the United States, a defendant must be both an "employee of the Government" and "acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). At issue here is only whether the federal defendants were actually employees of the Government at the time of the complained-of negligence.*fn9
The plaintiffs appear to argue that they are entitled to further discovery because two of the federal defendants -- Dr. Johnsen-Martin and Dr. Eash-Scott -- may not be federal employees for the purposes of the FTCA. See Pls.' Mot. Opp'n to Defs.' Mot. Dismiss 5. First, the plaintiffs argue that they "did not know and had no way of knowing that [the federal] defendants had any connection to the federal government." Id. Second, the plaintiffs represent that "it is believed, at the time of much of the negligence, Dr. Johnsen[-Martin] and Dr. Eash[-Scott] were working at Lancaster General Hospital, not Southeast Lancaster Health Services." Id.
The plaintiffs' first allegation is without merit, as the validity of the federal defendants' status as federal employees does not turn on whether the plaintiffs were in a position to have knowledge of the federal defendants' connection to the government. See 28 U.S.C. § 2679(b)(1). Plaintiffs cite no authority suggesting the federal defendants have a duty to notify the plaintiffs of the United States' involvement. See Pls.' Mot. Opp'n to Defs.' Mot. Dismiss 5. To the contrary, it is well-established that a plaintiff, once aware of injury, is on notice of an affirmative duty to investigate the identities of those who may be liable to him. See United States v. Kubrick, 444 U.S. 111, 122-124 (1979); accord Zeleznik v. United States, 770 F.2d 20, 22 (3d Cir. 1985) ("In most cases, when a person learns of his injury, he is on notice that there is an invasion of his legal rights, and that he should determine whether another may be liable to him."); Shick v. Uberti, No. 08-0254, 2008 U.S. Dist. LEXIS 27166, *2-3 (W.D. Pa. Apr. 3, 2008); Streeper v. United States, No. 87-2675, 1988 U.S. Dist. LEXIS 6468, *18 n.10 (E.D. Pa. July 1, 1988) ("[I]t is the plaintiff's duty to seek legal advice and discover the nature of his claim.").
Contrary to the plaintiffs' second contention, it is clear from the record that Dr. Johnsen-Martin and Dr. Eash-Scott were employees of the federal government at all relevant times. Lancaster General Hospital submitted a memorandum with the express purpose of correcting the plaintiffs' misconception that either of the federal defendant doctors "[a]t all times relevant to the care at issue" were "employees, actual agents, apparent agents, ostensible agents, or servants of any of the Lancaster General Defendants."*fn10 Mem. Law Supp. Resp. Fed. Defs.' Mot. Dismiss 3. The Lancaster General defendants also confirm that Dr. Johnsen-Martin and Dr. Eash-Scott were "employed by and/or agents of Defendant Southeast Lancaster Health Services." Id. Additionally, the Attorney General of the United States, pursuant to 42 U.S.C. § 233(l)(1),*fn11 certified that each of the federal defendants is an employee of the Public Health Service with respect to all acts or omissions alleged in the plaintiffs' complaint.*fn12
See 28 U.S.C. § 2679(d)(1); Pls. Ex. B.*fn13
There is no palpable dispute whether the federal defendants were federal employees under FTCA. The plaintiffs set forth no facts indicating the federal defendants were inappropriately deemed federal employees. I find Dr. Johnsen-Martin, Dr. Eash-Scott and Southeast Lancaster Health Services were employees of the Public Health Service and thus federal employees at all times relevant to this action. I will deny the plaintiffs' request for discovery.
Similarly, I find that there is no need for discovery as to whether the federal defendants were acting within the scope of their employment at all relevant times. In Schrob v. Catterson, the United States Court of Appeals for the Third Circuit set out a metric for determining when discovery*fn14 is required to determine if a federal employee's acts or omissions were conducted in the scope of employment:
The scope certification is prima facie evidence that the employee's challenged conduct occurred within the scope of employment, but it is not conclusive. Thus, a plaintiff challenging the certification has the burden of coming forward with specific facts rebutting it. If the facts can be determined without an evidentiary hearing, the court can rule on a pretrial motion to substitute or to set aside the substitution based on the certification, pleadings, documentary evidence, and affidavits. In the event that a substitution is set aside, the defendant may probably appeal under the collateral order doctrine....
On the other hand, if there is a genuine issue of fact material to the scope of employment question, the district court should permit discovery and conduct a hearing, if necessary. But the district court should ensure that both the discovery and the hearing are circumscribed as narrowly as possible, although these are matters within its discretion.
Schrob, 967 F.2d at 936.
The plaintiffs have not challenged whether the federal defendants were acting within the scope of their employment, nor have they alleged any specific facts rebutting the Attorney General's certification. It is clear for the reasons set forth above, as well as from the allegations in the plaintiffs' complaint, that the federal defendants were acting within the scope of their employment as employees of the United States at all times.*fn15
The federal defendants satisfy the preconditions for immunity under § 2679(b)(1), and "the only proper defendant in an FTCA claim is the United States." Williams v. Kunz, No. O6-3072, 2008 U.S. Dist. LEXIS 25891, *6 (E.D. Pa. Mar. 31, 2008); see also 28 U.S.C. § 2679(d)(1). I will grant the federal defendants' motion to dismiss all claims against them with prejudice. I will also substitute the United States as a defendant.
C. DISMISSAL OF CLAIMS AGAINST THE UNITED STATES*fn16
Before filing suit in federal court under the FTCA, a claimant must comply with the Act's exhaustion requirement: a claim must first be presented to the appropriate federal agency and be "finally denied." 28 U.S.C. § 2675(a);*fn17 see also Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir. 2009). "Final denial" occurs when the agency denies the claim or fails to resolve it within six months. 28 U.S.C. § 2675(a). In 1966, Congress amended the FTCA to include the exhaustion requirement so as to afford the pertinent federal agency "a fair opportunity to investigate and possibly settle the claim before the parties must assume the burden of costly and time-consuming litigation." McNeil v. United States, 508 U.S. 106, 111-112 (1993).*fn18 The exhaustion requirement is "jurisdictional and cannot be waived." Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971); see also Lightfoot, 564 F.3d at 627. The language of § 2675(a) "is clear that a court does not have jurisdiction before administrative remedies have been exhausted, and a court must dismiss any action that is initiated prematurely." Wilder 123 F. Supp. 2d at 313 (emphasis added) (citing McNeil, 508 U.S. at 111; Wujick v. Dale & Dale, Inc., 43 F.3d 790, 793-794 (3d Cir. 1994) ("[T]he United States Supreme Court, in interpreting the exhaustion provision of the Federal Tort Claims Act, firmly rejected the 'no harm, no foul' reasoning and held that here Congress has imposed an administrative exhaustion requirement by statute, the exhaustion of those procedures is mandatory.")).
The plaintiffs failed to present their negligence claims to the appropriate federal agency and to receive final denial, as required by § 2675(a), prior to instituting suit.*fn19 The plaintiffs acknowledge that they have not exhausted their administrative remedies and did not initiate administrative action by filing a Standard Form 95 with the United States Department of Health and Human Services until April 12, 2010. See Pls.' Mot. Opp'n to Defs.' Mot. Dismiss 6. The plaintiffs also acknowledge that they filed suit prior to a denial by the Department of Health and Human Services, and six months have not yet elapsed since April 12, 2010. See id. Because the plaintiffs prematurely filed suit before exhausting their administrative remedies, this court lacks jurisdiction to entertain the FTCA claims, and I will grant the federal defendants' motion to dismiss the claims against the United States without prejudice.
I am dismissing without prejudice all the claims against the United States. This does not foreclose the possibility of future compliance with the administrative denial requirement. A claimant must abide by the strict time requisites codified in 28 U.S.C. § 2401(b) or its tort claim under the FTCA will be "forever barred."*fn20 See Bialowas, 443 F.2d at 1049. In order to sue the United States in District Court and avoid violating the FTCA's express statute of limitations, a tort claim must be "presented in writing to the appropriate Federal agency within two years after such claim accrues...." 28 U.S.C. §2401(b); see also Bialowas, 443 F.2d at 1049. Section 2401's "time bar is strictly construed." Brown v. Camden County Counsel, No.10-1098, 2010 U.S. App. LEXIS 9826, *6 (3d Cir. May 13, 2010) (citing Livera v. First Nat. State Bank of N.J., 879 F.2d 1186, 1195 (3d Cir. 1989)).
There is no dispute here as to when the claim accrued: Nayelis Ruiz Roman was delivered on February 16, 2008.*fn21 See Pls.' Ex. A ¶¶ 30-115; see also Pls.' Ex. C (citing 2/15/2008 and 2/16/2008 as the "date and day of accident"). There is also no question, and the plaintiffs acknowledge, that they did not present their administrative claim to the United States Department of Health and Human Services until April 12, 2010. See Pls.' Mot. Opp'n to Defs.' Mot. Dismiss 6; see also Pls.' Ex. C. The plaintiffs only had until February 16, 2010 to file their administrative claim, so more than two years have elapsed between the undisputed date the claim accrued and the date on which the plaintiffs first sought administrative relief. At first glance, it seems that the plaintiffs' tort claims against the United States should be "forever barred" under § 2401(b) of the FTCA. See Bialowas, 443 F.2d at 1049.
To ameliorate the harsh effects of dismissal mandated by the strict time limitations, Congress amended the FTCA in 1988. See Santos v. United States, 559 F.3d 189, 193 (3d Cir. 2009); see also Okupinski, 1989 U.S. Dist. LEXIS 14878, at *5. In the 1988 amendment, the Westfall Act added "a clause that saves from being barred by the statute of limitations certain timely claims filed in the wrong forum, such as in a state or federal court rather than with the appropriate administrative agency." Santos, 559 F.3d at 193. Section 2679(d)(5) provides that an administrative claim will be considered timely under § 2401 if "the claim would have been timely had it been filed on the date the underlying civil action was commenced" and "is presented to the appropriate Federal agency within 60 days after dismissal of the civil action."*fn22 28 U.S.C. 2679(d)(5); see also Okupinski, 1989 U.S. Dist. LEXIS 14878, at *5.
The plaintiffs fall under this provision, and their administrative claim is effectively rescued from being time-barred under § 2401(b). The plaintiffs filed their claim in the Lancaster County Court of Common Pleas on December 30, 2009. See Pls.' Ex. A. This date falls before February 16, 2010, which marked two years after the accrual date of their claim. Therefore, plaintiffs' original action would have been timely had it been filed with the relevant federal agency on December 30, 2009.
The plaintiffs have promptly filed a Standard Form 95*fn23 with the United States Department of Health and Human Services. See Pls.' Ex. C. Thus, my dismissal of their claims against the United States without prejudice does not foreclose possibility of future district court action given compliance with the final denial mandate.*fn24
I am dismissing all of the claims against the federal defendants and the United States over which this court has original jurisdiction. The only remaining claims are state tort claims against the other defendants. I will decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) and consequently remand the case to afford the plaintiffs an opportunity for appropriate disposition of those claims before the Court of Common Pleas of Lancaster County, Pennsylvania.
Because the evidence before the court confirms the federal defendants are federal employees for purposes of the Federal Tort Claims Act, I will grant the federal defendants' motion to dismiss the claims against them with prejudice and to substitute the United States as a defendant in their stead. I will also grant the motion to dismiss the claims against the United States without prejudice, because the plaintiffs have admittedly not exhausted their administrative remedies as required by the FTCA.
Finally, I will remand the state claims against the remaining defendants, as there no longer exist grounds for independent federal jurisdiction.
An appropriate Order follows.
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Despite pain, Harvin gains
Published: Thursday, January 8, 2009 at 6:01 a.m.
Last Modified: Friday, January 9, 2009 at 1:55 a.m.
MIAMI Like after most games, Florida junior receiver Percy Harvin made his way gingerly through the locker room, favoring a right ankle that has bothered him on an off throughout his career.
"It's a little painful," Harvin said with a smile. "But when you win a national championship, it's all good."
Rumors circulated hours before kickoff that Harvin had re-tweaked his ankle in practice. That led to speculation about how much, or if, Harvin would be available for Thursday night BCS title game against Oklahoma.
Harvin clearly wasn't 100 percent, but his 70 or 80 percent was enough to lift the Gators to their second BCS title in three seasons.
"Any time someone sees me limp or kind of go off the side they think I tweaked it," said Harvin, who sat out Florida's Southeastern Conference title win over Alabama last month. "I was dealing with soreness or pain the whole time so it was nothing new."
With Florida and Oklahoma tied at 14 early in the fourth quarter, Harvin came up with two huge runs, a 52-yard carry followed by a 12-yard carry during Florida's go-ahead 68-yard scoring fourth-quarter drive. The drive ended with a 27-yard Jonathan Phillips that put the Gators ahead 17-14.
On the first run, Harvin appeared favored his ankle, suggesting that the heel and ankle problems that the speedy junior had endured all season weren't completely behind him.
Harvin put Florida ahead 14-7 on a 2-yard touchdown run off a direct snap in the third quarter. For the game, he finished with 122 yards rushing and 49 more yards receiving on 14 touches (nine carries, five catches).
Was it Harvin's last game in a Florida uniform? More rumors have swirled that Harvin, a projected first-round pick, will declare for the NFL draft in the coming weeks.
"I haven't made that decision yet," Harvin said. "Right now I'm just going to celebrate, go home with my teammates and I'll get with my family and coaches later on and make that decision."
If Harvin does, two national titles in three years isn't a bad way to end a college career.
"We feel we're a dynasty," Harvin said. "We've got a great team coming back so we'll get to the drawing board and try to prepare."
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Britney Spears
Musician + Singer + Songwriter + Actress + Author
Born Dec 2, 1981
Britney Jean Spears is an American recording artist and entertainer. Born in McComb, Mississippi, and raised in Kentwood, Louisiana, Spears began performing as a child, landing acting roles in stage productions and television shows. She signed with Jive… Read More
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Also its debut on the U.S. Billboard Pop Songs chart at number 25, marks Spears's 31st chart entry, pushing her past Mariah Carey (30) for the second-most entries to the chart's October 3, 1992, launch. … Read More
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The album's lead and only single, "3" became her third number one single in the U.S. In May 2010, Spears's representatives confirmed she was dating her agent Jason Trawick, and that they had decided to end their professional relationship to focus on their personal relationship.
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On January 8, 2014, Spears won Favorite Pop Artist at the 40th People's Choice Awards at the Microsoft Theater in Los Angeles. For the week of July 26, 2014, "Alien" debuted and peaked at number 8 on the US Bubbling Under Hot 100 Singles despite not being released as a single from Britney Jean.
2015 33 Years Old 3 More Events
In March 2015, it was confirmed by People magazine that Spears would release a new single, "Pretty Girls", with Iggy Azalea, on May 4, 2015. … Read More
2016 34 Years Old 9 More Events
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It seems there's no end in sight to the feuding between Madonna and Lady Gaga and Elton John. Based on video clips from some recent concerts, it looks like Madonna is burying the hatchet the only way she knows how... with a lot of attitude. Gillian Pensavalle has more.
|Madonna Dedicates Songs to Lady Gaga and Elton John; Feuds Far From Over
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January 9, 1981
NORLITE CORPORATION, Plaintiff,
LOCAL 106-106B OF INTERNATIONAL UNION OF OPERATING ENGINEERS and Wayne Horvitz, Federal Mediation And Conciliation Director, Defendants
This suit was brought by Norlite Corporation (hereinafter, "Norlite") against Local 106-106B of the International Union of Operating Engineers (hereinafter, "Union") and Wayne Horvitz, Federal Mediation and Conciliation Director, to enjoin arbitration of a labor dispute arising from Norlite's discharge of two employees. Norlite also seeks to recover monetary damages against the Union for a wild cat strike in violation of the applicable collective bargaining agreement. In its answer and counterclaim, the Union denies the allegations concerning the alleged wild cat strike, and asserts that the disputed discharges are subject to arbitration. On the latter point, the Union seeks an order to compel arbitration.
On September 15, 1980, this matter came before the Court on cross motions for summary judgment on behalf of the Union and Norlite. Both motions relate solely to the arbitrability of the employee discharges.
The Court also heard defendant Horvitz's motion to dismiss the complaint on the ground that it fails to state a claim against him on which relief can be granted. Following the hearing, the parties consented to entry of an order dismissing the complaint against defendant Wayne Horvitz on the condition that he not appoint an arbitrator to resolve the employee discharge dispute pending a determination of the arbitrability of those discharges. The Court having reserved decision now addresses the remaining parties' cross motions for summary judgment.
Norlite is a New York corporation engaged in the operation of a rock quarry in Cohoes, New York. The defendant Union is a labor organization with its principal place of business in Albany, New York. Norlite and the Union are signatories to a collective bargaining agreement which governs their respective obligations in connection with operations at the quarry. The arbitration clause in the Agreement provides in relevant part:
ARTICLE X (Disputes)
A. In the conduct of any work under this Agreement, the Company agrees that there shall be no lockout, and the Union agrees that there shall be no strike, slowdown, or stoppage of work. Any and all disputes involving interpretation or application of this Agreement which cannot be resolved locally shall be referred to the designated representative of the Union and he or his representative shall meet with a designated representative of the Company so that the parties may ascertain the facts and render a decision thereon.
B. In the event that the representative of the Company and the representative of the Union are unable to settle such dispute, they shall refer it within fifteen (15) days of their first consideration of such dispute to an impartial arbitrator whose decision shall be final and binding upon all parties. If the parties are unable to agree on an impartial arbitrator, the matter shall be referred to the Federal Mediation and Conciliation Service for the designation of an arbitrator pursuant to the rules of said service. Such impartial arbitrator shall not have jurisdiction or authority to add to, detract from, or alter in any way the provisions of this Agreement....
The present dispute between the parties arose on or about April 18, 1980, when Norlite discharged Joseph Bramski and James Niland for alleged misconduct. Both employees are members of the defendant Union. On April 21, 1980, George Paul Moran, the business manager of the Union, contacted an officer of Norlite in an attempt to resolve the dispute over the discharges, but this informal effort proved unsuccessful. Thereafter, some preliminary steps were taken by the parties concerning the designation of an arbitrator. Affidavit of George Paul Moran, PP 6, 7.
On April 24, 1980, the Union filed an unfair labor practice charge with the National Labor Relations Board ("NLRB") based on the discharges. Shortly thereafter, Norlite advised the Union that the company was no longer willing to arbitrate the dispute. On May 5, 1980, the Union served Norlite with a Notice of Intention to Arbitrate pursuant to N.Y.C.P.L.R. § 7503(c); in response, Norlite filed this action on May 15, 1980, to enjoin arbitration of the dispute.
Meanwhile, the Regional Director of the NLRB notified the parties that the Board was deferring a determination of the unfair labor practice charge pending arbitration of the dispute. The Court is informed that no further proceedings have taken place before the NLRB.
The dispositive issue raised by the cross motions for summary judgment is whether the disputed employee discharges are subject to arbitration under the terms of the collective bargaining agreement in effect between the parties at the time the dispute arose. Because the agreement between Norlite and the Union does not manifest a contrary intention, resolution of this threshold question is properly for the Court and not the arbitrator. Gangemi v. General Electric Co., 532 F.2d 861, 865 (2d Cir. 1976). The Court is not concerned with the merits of the underlying dispute; rather, the Court's role is to decide whether the parties have agreed to submit a specific dispute to arbitration. See United Steel Workers of America v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343 n.7, 4 L. Ed. 2d 1403 (1960); United Steel Workers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 n.7, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409, 1417 (1960). In making this determination the Court must examine the collective bargaining agreement within the broader framework of the now longstanding national policy favoring private, extra-judicial resolution of labor disputes. Id.; see also, Gangami, supra, 532 F.2d at 865; John W. McGrath Corp. v. Atlantic Coast District ILA, No. 80-CV-150, Slip Op. at 5 (N.D.N.Y. March 6, 1980). In recognition of this strong national policy, the Supreme Court ruled in United Steel Workers v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 582-83, 80 S. Ct. at 1353, that:
An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
In short, where the agreement contains a broad arbitration clause together with a no-strike clause, arbitrability of disputes is the rule and non-arbitrability the exception. To be sure, the parties to such agreements may effectively preclude arbitration of specific disputes but, "the language of the agreement purporting to do so must be "clear and unambiguous' or "unmistakably clear.' " Gangemi, supra, 532 F.2d at 865, quoting, International Ass'n of Mach. & A. Wkrs. v. General Electric Co., 406 F.2d 1046 (2d Cir. 1969); International Union of E. R. & M. Wkrs. v. General Electric Co., 407 F.2d 253 (2d Cir. 1969), cert. denied, 395 U.S. 904, 89 S. Ct. 1742, 23 L. Ed. 2d 217.
Here, the collective bargaining agreement contains both a no-strike provision and a broad arbitration clause which, by its terms, embraces "(any) and all disputes involving interpretation or application of this Agreement...." Moreover, there is no language in the arbitration clause which even purports to exclude from its scope disputes over employee discharges. Notwithstanding this broad language, Norlite takes the position that because the Agreement contains no explicit provisions pertaining to the discharge of non-probationary employees for cause, there is no basis for an arbitrable dispute involving interpretation or application of the Agreement. The unstated premise on which this argument depends is the proposition that under the Agreement Norlite has reserved the right to discharge non-probationary employees at will. Thus, if there is any contractual limitation on management's right to discharge, the absence of any language excluding disputes over such discharges from the scope of the arbitration clause supports the Union's contention of arbitrability.
The Union contends that such a limitation on management's right to discharge can reasonably be inferred from Article VIII (Seniority) which provides that new and rehired employees shall be regarded as probationary employees for the first thirty days of actual work and, "(during) such period such employees may be laid off or discharged as exclusively determined by the Company." The Union argues that this last clause would be meaningless if Norlite could discharge non-probationary employees at will. The Union also points out that if Norlite can discharge non-probationary employees at will and if such discharges are for that reason non-arbitrable, then the bargained-for benefits and privileges of seniority are thereby subject to unilateral nullification.
The Union contends further that Norlite's claim that the discharges are non-arbitrable is wholly inconsistent with the broad no-strike clause in the Agreement. Finally, the Union asserts that its claims concerning a just cause limitation on management's right to discharge and the resultant arbitrability of the disputed discharges here involved are further supported by the past practice of the parties under the Agreement. Specifically, the Union states that Norlite's earlier discharge of Bramski (one of the employees involved in the present dispute) was referred to arbitration and the arbitrator found, among other things, that the discharge was not for just cause.
In the face of the facts and arguments advanced by the Union, the Court is unable to say with positive assurance that the arbitration clause in this Agreement "is not susceptible of an interpretation that covers the asserted dispute." See Johnston-Tombigee Furniture Manufacturing Co. v. Local Union No. 2462, U. B. of C. and J. of America, AFL-CIO, 596 F.2d 126 (5th Cir. 1979) (notwithstanding contract provision excluding from arbitration those discharges supported by just cause, questions concerning the meaning and existence of just cause in connection with the discharge of particular employee are proper matters for arbitration). While not conclusive on the issue of arbitrability, the parties' past practice of submitting disputed discharges to arbitration is a significant factor and one which undercuts the rather extreme position advanced by Norlite in this case. Cf. United Steelworkers v. Warrior & Gulf Navigation Co., supra, 80 S. Ct. at 1351-4 (a collective bargaining agreement is more than a contract for it "calls into being a new common law the common law of a particular industry or of a particular plant.") This Court is also mindful of the thrust of Justice Douglas' observation: "When, however, an absolute no-strike clause is included in the agreement, then in a very real sense everything that management does is subject to the agreement...." Id. at 1353.
In the final analysis, Norlite's position of non-arbitrability is not based on any express exclusionary language in the Agreement. Without voicing any opinion on the merits of the underlying employee discharges, the Court is persuaded that those discharges are subject to arbitration. Accordingly, Norlite's motion for summary judgment is denied, and the Union's motion for summary judgment on its first counterclaim is granted.
For a second cause of action, Norlite alleges that the Union failed to prevent or terminate a wild cat strike that occurred on April 11, 1980. Relying on the no-strike clause in Article X of the Agreement, Norlite seeks a determination that the Union is liable for any back pay that may be awarded if the two discharged employees are eventually ordered reinstated. Norlite's theory of recovery on this claim is not entirely clear. While it is alleged that the employees were discharged on the day that the wild cat strike occurred, Norlite contends that the misconduct which formed the basis for the discharges was the employees' assault on a business customer, not their participation in the alleged wild cat strike. In any event, it is apparent from examining the record in this case that both causes of action involve the same nucleus of operative facts and that the Union's liability on the second cause of action depends in large part upon disputed facts within the scope of the arbitration clause. Having determined that the disputed discharges are subject to arbitration, the Court concludes that the second cause of action is premature at this time. Unless and until it is determined through arbitration that the employees are entitled to reinstatement and back pay, there is no live controversy between the parties with respect to the second cause of action. Accordingly, the Court lacks subject matter jurisdiction and the second cause of action must be dismissed at this time. See Bernstein v. Universal Pictures, Inc., 517 F.2d 976, 979 (2d Cir. 1975).
It is, therefore,
ORDERED, that:
(a) the motion for summary judgment in favor of plaintiff Norlite Corporation is denied;
(b) the motion for summary judgment in favor of defendant Local 106-106B of International Union of Operating Engineers is granted as to the first counterclaim; and
(c) the plaintiff Norlite Corporation's second cause of action is dismissed.
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Mindsnacks–Learning in Bite-sized Pieces
Mindsnacks is a series of education apps on topics like geography, vocabulary, languages, and SAT. With colorful graphics and cute characters, it's a cross between flashcards and multiple choice with lots of visual thrown in. Though these are game-based learning, there's no plot as you might find simulated games. Think Number Munchers rather than Minecraft. Each app includes personalized learning, an enhanced review mode, and additional challenges to keep students motivated.
To start, download the app and log in. If you have several Mindsnacks apps, you can log into a central profile and track your progress on all of them. Here are three of my favorites:
U.S. Geography
Mindsnacks' U.S. Geography includes eight games for beginner and intermediate students with over 40 hours of interactive content, more than 600 hand-drawn graphics, and 1,000-plus questions on borders, shapes, landmarks, history, state culture, flags, mottos, capitals, and major cities. Initially, only four of the eight games are available; users unlock others by successfully navigating a virtual road trip across the country. A tutorial is provided for each state so kids can review basic information prior to beginning play. To keep learning interactive, the app includes features such as a dart players use to mark the spot on the map where a certain U.S. landform or landmark exists. Post-quiz reports show how close users are to mastering each state's information and what skills they developed during the game.
7 Great Websites to Teach Habitats
Whether you teach habitats in second grade or Middle School, understanding how animals survive in their corner of the world is critical to a well-rounded perspective on life on planet Earth. Animals evolve or disappear based on their ability to adapt to the environment.
Here are eight resources to encourage discovery of the amazing and varied worlds that surround Earth's animals:
Build a Habitat
This interactive, colorful site gamifies the process of creating a habitat that suits the selected animal. After reading brief instructions (including the definition of habitat), students select the animal, the habitat, the vegetation, and the precipitation level. Then, the site calculates how compatible their choices are to the animal's survival. For example, if the student places a beaver in the desert in a downpour, the compatibility thermometer will be low.
This game is part of the popular Switch Zoo site where students can mix-and-match body parts to create their own favorite animal. It is available on computers, Chromebooks, and in a limited edition as an app.
10 Great Tips for Teaching Geography with Tech
Here are the top geography tips according to Ask a Tech Teacher readers:
- 14 Ways to use Scribble Maps
- Lesson Plans: Where Did I Come From?
- 149 Websites for K-8 Geography/Geology
- Google Street View
- Sponge Activities for Geography
- A Virtual Tour of America–Via Biplane
- The Power of Symbols–What does the word 'Turkey' mean?
- Wonders of Google Earth
- 20 Websites to Learn Everything About Landforms
- Breathing Earth
14 Ways to use Scribble Maps
Map skills borrow concepts from many different disciplines, including Math, Art, Language and of course Geography. Map skills should be basic to student education early in their journey and then used often to measure distances, calculate routes, preview field trip locations, explore historic sites, and more.
For many of you, I'm not saying anything you don't already know — but have you tried to personalize a map? Draw a spotlight exactly where you want students to look, or sketch the route to a field trip? With most maps, it's difficult, time-consuming, and non-intuitive, but Scribble Maps make all of these chores possible and more by letting you first, select the map best suited to your purpose (for example, a topographic one for a hike — under ESRI-Topography), and second, write directly onto the maps with a freehand drawing tool or by typing, add placemarks, draw shapes, calculate distance and area, and add image overlays. You can even add video and audio files. Maps can be saved as images, PDFs, or native files, and shared via email, blogs, a direct link, or embedded into online locations. It's intuitive, easily learned by doing for students who hate reading directions, and is compatible with desktops, laptops, Chromebooks, iPads, and Android tablets. Because it uses Google Maps as its foundation, it will instantly feel familiar. Plus, it requires no log-in, so no email address for students.
23 Great Websites and Apps for Earth Day
April 22nd is Earth Day. Celebrate it with your students by letting them visit these websites:
- Breathing earth– the environment
- Breathing Earth YouTube Video–of CO2 use, population changes, and more
- Conservation Game
- Earth Day—NASA Ocean Currents
- Earth Day Printables
- Eco-friendly house
- Ecotourism Simulation–for grades 4 and above
- EekoWorld
- Electrocity
- Footprint calculator
- History of Earth Day–lots of reading
- Home of the Future
- My Garbology
- NASA City
The Power of Symbols–What does the word 'Turkey' mean?
Last year, I did a poll on the meaning of the word 'turkey'. This was to demonstrate how powerful symbols are to your students and do so with an authentic use of technology to support discussion on math, language standards, and the holidays. As a summation to your discussion with students on symbols, idiomatic expressions, geography, farms, or another topic, post this on your Smartscreen. The poll includes lots of definitions for the word 'turkey'. Have each student come up some time during the day (or class) and make their choice.
[polldaddy poll=7398424]
21 Great Websites and Apps for Earth Day
April 22nd is Earth Day. Celebrate it with your students by letting them visit these websites:
- Breathing Earth
- Breathing Earth YouTube Video–of CO2 use, population changes, and more
- Conservation Game
- Earth day collection
- Earth Day—NASA Ocean Currents
- Eco-friendly house
- Eeko World
- Ecotourism Simulation–for grades 4 and above
- Electrocity
- Footprint calculator
- Home of the Future
- My Garbology
- NASA City
Lesson Plans: Where Did I Come From?
Students find their country of origin on Google Earth and grab a screen shot of it. Save to their computer. Import it into a drawing program like KidPix and add the country flag and student name. Students learn about importing data from one program to another with this project.[caption id="attachment_5431" align="aligncenter" width="564"] Use Google Earth in Second Grade[/caption]
–from 55 Technology Projects for the Digital Classroom.
More articles on geography and Google Earth:
149 Websites for K-8 Geography/Geology
Tech Tip #65: Google Street View
Monday Freebies #40: Wonders of Google Earth
The Power of Symbols–What does 'Turkey' mean?
Here's an authentic use of technology to support discussion on math, language standards, and the holidays. As a summation to your discussion with students on symbols, idiomatic expressions, geography, farms, or another topic, post this on your Smartscreen. The poll includes lots of definitions for the word 'turkey'–from objective to idiomatic. Have each student come up some time during the day (or class) and make their choice.
[polldaddy poll=7398424]
Did your students come up with other definitions I didn't list?
9 Field Trips Free to Students
Kids love field trips. They're out of the classroom, get to travel by bus with lots of kids and not enough adults. What's not to like?
A few items come to mind: Cost, staffing, potential for disaster. And that's just off the top of my head. There's a way to provide the field trip experience with few of the risks, no cost, and a fraction of the time away from what is likely an overstuffed education day:
Virtual Field Trips, via the internet.
There are so many options for real-time webcams, conversations with experts (via Skype and Google Hangout), and the opportunity to visit locations that are otherwise inaccessible that classes have embraced this new approach to seeing the world. This enthusiasm has encouraged a cottage industry that often is far from the exciting, realistic experience teachers want for their students. When I search the internet, it seems any site with a camcorder and multimedia resources calls itself a 'virtual field trip'. Truthfully, many of them are a waste of time. Sure, I like the pictures and the movies, but I don't feel like I'm there, immersed in history or geography, with a life-changing experience that will live in my memory for decades to come.
Intellectually, I know there are good ones out there. Finally, after wearing through my favorite virtual shoes, I have a list to recommend. These next nine virtual field trips cover topics from geology to history to the human experience. See what you think:
360 Cities
What's not to love about a website that starts:
Welcome to Earth! It's a planet having an iron core, with two-thirds of its surface covered by water. Earth orbits a local star called the Sun, the light of which generates the food supply for all the millions of species of life on earth. The dominant species on Earth is the human being, and you're one of the six billion of them! Humans have iron in their blood, and their bodies are composed of two-thirds water, just like the planet they live on.
Enjoy your stay, and try to stay calm.
360 Cities contains the Internet's largest collection of uploaded panoramic images. Let's pause here for a moment. Panos–those wide pictures that cover up to 180 degrees left and right. Right?
360 Cities does panos differently. Let me show you. Here's one from my iPad:
Here's one on 360 Cities:
Coliseum. 1st floor in Tunisia


text: i have my desktop computer where all my music is stored. (very unorganized in several different folders) i also have been organizing my itunes (adding proper names and album arts). my question is if i transfer all my music files onto 1 folder on my new laptop will all that information be transferred as well? im afraid once i move the songs to 1 folder itunes wont be able to find it and ill have to re-import and possibly lose my data. so basically im asking is it safe to transfer all my files to my new computer w/o losing my itunes info?


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Porsche Panamera Turbo 4.8(A) PDK 2012 Sunroof
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RM 7,519/month
Key details
Car type Recon Car
Make Porsche
Model Panamera
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Year 2012
Engine Capacity 4806 cc
Transmission Automatic
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Specifications & Equipment
Number of Gears7
Seat Capacity4
AssembledOfficial Import
Engine Specifications
Engine CC4806
Compression Ratio10.5
Peak Power (hp)405
Peak Torque (Nm)750
Engine TypePiston
Direct InjectionDirect Injection
AspirationTwin Turbo intercooled
Fuel TypePetrol - Unleaded (ULP)
Performance & Economy
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0-100mk/h (seconds)3.8
Top Speed (km/h)306
Dimensions & Weight
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Width (mm)1931
Height (mm)1418
Wheel Base (mm)2920
Kerb Weight (kg)1995
Boot Space (litres)432
Fuel Tank (litres)100
Front BrakesVentilated discs
Rear BrakesVentilated discs
Front SuspensionDouble Wishbone
Rear SuspensionMultiple links
Steering TypeRack and Pinion
Tyres & Wheels
Front Tyre255/40 ZR19
Rear Tyre295/35 ZR19
Front Rim (inches)20x9.5
Rear Rim (inches)20x11
* Specifications and equipment have been sourced from RedBook and are based on manufacturer standard specifications. Actual specifications for this vehicle may differ, please confirm with the seller.
Air-conditioningAir Conditioning, Dual Zone Climate Control
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Leather steeringLeather steering wheel
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OtherPorsche Active Suspension Management (PASM) Spoiler/skirt, rear
Auto headlampsDynamic Range Control (Headlights)
Auto start/stopAuto Start/Stop function
Cruise controlCruise control
NavigationNavigation System
Parking sensorPark Assist Reverse/Parking aid/sensor
Remote lockingCentral locking, remote Porsche Entry & Drive
Steering wheel controlsMulti-function Steering Wheel
CDAudio - DVD Changer
Multi function screenAudio-Touch Screen Porsche Communication Management (PCM)
USBUSB/audio interface
OtherMobile Phone Preparation Rear Seat Entertainment System
Front foglampsFog lights, Front
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ABS/EBDBrake, Anti-Lock (ABS)
ImmobilizerEngine Immobilizer
Stability controlAnti-Slip Regulator (ASR) Automatic Brake Differential (ABD) Engine drag torque control (EDTC) Porsche Stability Management (PSM) Porsche Traction Management (PTM)
OtherDynamic Cornering Lights Tyre Pressure Monitoring System (TPM)
Wheels and Tyres
Rim material19'' Alloy Rims
* Specifications and equipment have been sourced from RedBook and are based on manufacturer standard specifications. Actual specifications for this vehicle may differ, please confirm with the seller.
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text:
- Description
- View Full Specifications
- Year:
- 1995
- Length:
- 35'
- Engine/Fuel Type:
- Twin / diesel
- Located In:
- Ocean City , MD
- Hull Material:
- Fiberglass
- 59909-2818389
- Current Price:
35 Cabo Flybridge powered with CAT 3208TA's. Excellent service history with the 1000 hour service completed. Many upgrades throughout. Furuno and Raymarine electronics, Autopilot, Windlass and Pompanette Helm Chairs. Spacious interior layout with all the amenities one would need for a weekend getaway or an overnight offshore trip.
Scott White @ (609)780-0309 OR EMAIL email@example.com
BOAT IS LOCATED IN: Ocean City, NJ
Please contact Scott White at 609-780-0309
Additional Specs, Equipment and Information:
LOA: 35 ft 0 in
Beam: 13 ft 0 in
Maximum Draft: 2 ft 6 in
Displacement: 24000 lbs
Total Power: 750 HP
Engine 1:
Engine Brand: Caterpillar
Year Built: 1995
Engine Model: 3208TA
Engine Type: Inboard
Engine/Fuel Type: Diesel
Location: Port
Engine Hours: 1750
Engine Power: 375 HP
Engine 2:
Engine Brand: Caterpillar
Year Built: 1995
Engine Model: 3208TA
Engine Type: Inboard
Engine/Fuel Type: Diesel
Location: Starboard
Engine Hours: 1750
Engine Power: 375 HP
Fresh Water Tanks: (100 Gallons)
Fuel Tanks: (425 Gallons)
Large Spacious 130 square foot Tournament rigged cockpit. Enter Salon on centerline to port is the L-shaped settee and to Stbd is a large U shaped dinette. Galley is forward and to port. Down the companionway steps to stbd is the full head with Electric Toilet and Shower. Forward in the vessel is the master stateroom with double berth on centerline.
Flybridge with hardtop and enclosure, two pompanette helm chairs and forward helm bench seating.
Main Salon
- L Shaped Settee to port
- To STBD Teak Dining Table
- U Shaped seating around Table
- Teak Trim Throughout
- Recessed Lighting
- Positive Latches on Cabinets and Drawers
- Carpet
- Rod Storage behind Lounge Seating
- Dinette Converts to Double Berth
- 16,000BTU AC/Heat
- Mini Blinds
- Two Burner Cooktop
- Corian Countertop
- Recessed Lighting
- Microwave
- Refrigerator AC/DC with Freezer
- Stainless Steel Sink, Recessed with Corian Cover
- Storage and Drawers
Master Stateroom
- Island Berth Forward
- Anchor Locker Access
- Foredeck Hatch
- Cedar Lined Hanging Locker
- Cabinets and Drawers
- Recessed Lighting
- Rod Storage Locker
- Corian Countertop
- Custom Vanity with Storage Cabinet
- Exhaust Blower
- Sealand Vacuflush Electric Toilet
- Recessed Lighting
- Sink Stainless Steel
- Towel Rack
- Shower
- Self Bailing Deck
- Transom Door with Gate
- Port and Stbd Tackle Lockers
- Fresh and Saltwater Washdown
- Port and Stbd Rod Racks under Gunnels
- Lazarette Access
- Coaming Bolsters
- In Deck Fishboxes with Macerator pump
- Courtesy Lights
- SS Cleats
- Bow Pulpit and Bow Rail
- Non Skid Deck Surfaces
- Pompanette Fighting Chair
- Rupp Tournament Double Spreader Outriggers
- 7 Rod Holders in Gunnels
- Lower Helm Controls
Electronics & Helm
- Single Sideband
- Standard Horizon Quantum GX2360S with 30Watt Hailer and Fog Signals and Speaker in Cockpit
- Raymarine L1250 PLUS 10.4" Color LCD Chartplotter / Sounder w/125WAAS GPS, DSM250 HD Booster, E66082 1000 Watt Transducer with B258 High Speed Fairing Block
- Dytek ST1000 Water Temp
- Roberston AP3010 Autopilot
- Furuno 36 Mile Radar
- Glendinning Engine Synchronizer
- Sony AM/FM/CD Stereo with IPOD, Remote Control with 8 Speakers
- Halon System
- ACR Remote Spotlight
- Hydraulic Steering
- Hynautic Controls
- Windlass
- Trim Tabs
- NAV Lights
- Helm Light
- Forward Helm Bench Seat
- Overhead Electronics Box
- Hardtop with Full Enclosure
- Rocket Launcher on Bridge Rail
- 50' Shore Cord (2)
- 30amp Shore Power
- 5KW Generator
- AC Distribution Panel
- DC Distribution Panel
- Circuit Breaker Protect
- Battery Parallel
- Battery Switches
- (3) Batteries
- Bonded Electrical System
- Battery Charger 40Amp
- Engine Room Lights
- 3 Bilge Pumps
- Cabin Lights and Outlets
Engine Details & Mechanical Equipment
- CAT 3208TA's 375hp approximately 1750 hours
- Bronze High Speed Scoops with integral strainer
- Shafts 1.75"
- 3 Blade Props
- Bronze Rudders
- Hydraulic Steering
- Fuel Filters for Engines and Generator
- Engine Alarms
- Emergency Crash Pumps and Engine Mains
- White Gelcoated Bilges and Engine Compartments
- Fire and Bilge Water Alarms
- Hynautic Controls
Broker's Comments
- 2013 Both aftercoolers serviced and valves adjusted
- 2013 New STBD Turbo
- 2011 Total New Cruise Air AC/Heat System
- 2011 New Pompanette Helm Chairs
Mechanical Disclaimer
* Engine hours are as of the date of the original listing and are a representation of what the listing broker is told by the owner and/or actual reading of the engine hour meters. The broker cannot guarantee the true hours. It is the responsibility of the purchaser and/or his agent to verify engine hours, warranties implied or otherwise and major overhauls as well as all other representations noted on the listing brochure.
The Company offers the details of this vessel in good faith but cannot guarantee or warrant the accuracy of this information nor warrant the condition of the vessel. A buyer should instruct his agents, or his surveyors, to investigate such details as the buyer desires validated. This vessel is offered subject to prior sale, price change, or withdrawal without notice.
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United States District Court, Seventh Circuit
January 9, 2014
BALSHE LLC, THE SIMON LAW FIRM, and THE MEYER-CHATFIELD CORPORATION, Plaintiffs,v.ALAN J. ROSS and SAVE ASSOCIATES, Defendants.
JAMES B. ZAGEL, District Judge.
This dispute arises out of an alleged violation of a Settlement Agreement between Plaintiffs Balshe LLC, Simon Law Firm, and Meyer-Chatfield Corporation and Defendants Alan J. Ross and SAVE Associates. Plaintiffs allege that Defendants breached the terms of a Settlement Agreement, executed on June 26, 2008, by refusing to deliver the 390 Patent to Plaintiffs. Currently before the Court is (1) Plaintiffs' motion for partial summary judgment against Defendants on a breach of contract claim; (2) Defendants' motion for entry of summary judgment in Defendants' favor; and (3) Defendants' motion to deny Plaintiffs' Motion for partial summary judgment and transfer venue pursuant to 28 U.S.C. § 1406(a). For the following reasons, I deny Defendants' motion to deny Plaintiffs' motion for partial summary judgment and transfer venue in its entirety, and I grant in part and deny in part Plaintiffs' motion for partial summary judgment.
Defendants seek to move the court to (1) dismiss this case for lack of subject matter jurisdiction; (2) transfer venue pursuant to 28 U.S.C. 1406(a); and (3) deny Plaintiffs' motion for partial summary judgment for Plaintiffs' lack of compliance with Local Rule 56.
A. Subject Matter Jurisdiction
There is no dispute that there exists complete diversity among the parties and that the amount in controversy exceeds the value required under 28 U.S.C. § 1332. However, Defendants contend that Plaintiffs no longer have standing because they transferred 100% of their equity interests to Institutional Longevity Assets ("ILA") and MRB Pooled Benefits LLC ("MRB") without retaining the right to enforce the Settlement Agreement. In determining that the court has proper subject matter jurisdiction over this case under 28 U.S.C. § 1332, I reaffirm my April 3, 2013 order. As signatories to the Settlement Agreement, Plaintiffs are the real parties in interest to this action. Defendants have not established that Plaintiffs have transferred their rights to enforce the Settlement Agreement, and any equity interest ILA and MRB may have in Institutional Pooled Benefits LLC ("IPB") does not, at this stage, give those parties such rights.
B. Improper Venue
Defendants move to assert that venue is improper in this court and request that this case either be (1) dismissed or (2) transferred to the U.S. District Court of Massachusetts pursuant to 28 U.S.C. § 1406(a). Defendants argue that 28 U.S.C. § 1406(a) requires a district court to dismiss or, if in the interests of justice, transfer a case to any district or division in which it could have been brought. Defendants, however, fail to establish a prerequisite to such a dismissal or transfer-that this case is "laying venue in the wrong division or district." 28 U.S.C. § 1406(a). They cannot; this case is properly before this court. 28 U.S.C. § 1391.
This case concerns the enforcement of a settlement agreement approved by this Court. Paragraph 20 of the Settlement Agreement states, in relevant part, "The parties agree that the Northern District [of Illinois] shall retain jurisdiction to enforce or settle any disputes arising out of or relating to this Agreement and agree that they will not dispute jurisdiction in the Northern District." Plaintiffs filed suit alleging that Defendants breached the Settlement Agreement pursuant to Balshe LLC v. Ross. 441 Fed.App'x. 395 (2011) ("any claim relating to nonperformance of the settlement agreement must be brought as a breach-of-contract action"). As such, a substantial part of the events or omissions giving rise to the claim occurred in this district. 28 U.S.C. § 1391(a)(2), (b)(2).
I affirm my prior order of July 16, 2013, rejecting Defendants' request to transfer this matter to a different venue. [Doc. 59]. Defendants have not established that this Court is an improper venue or that the "transferee forum is clearly more convenient" than the transferor forum. 28 U.S.C. § 1404(a); Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir.1989).
C. Failure to Comply with Rules
Defendants also move to deny Plaintiffs' motion for partial summary judgment on the grounds that Plaintiffs' failure to include a statement of material facts with its motion for partial summary judgment is in violation of Federal Rule of Civil Procedure No. 56 and Local Rule 56. Generally, district courts have broad discretion to enforce and require strict compliance with their local rules and will only be reviewed for abuse of discretion. See Elustra v. Mineo, 595 F.3d 699, 710 (7th Cir.2010) ("We defer to the district court's understanding of its own rules."); see also Koszola v. Bd. of Educ., 385 F.3d 1104, 1108 (7th Cir.2004).
Defendants contend that violation of Local Rule 56 constitutes grounds for denial of Plaintiffs' motion. While Plaintiffs failed to include a statement of material facts with its motion on July 11, 2013, they filed the relevant statement shortly thereafter on July 21, 2013. Due to Plaintiffs' untimely filing, Defendants were given additional time to respond to Plaintiffs' motion. Plaintiffs' delay in filing a material statement of facts was not prejudicial to Defendants and does not require a denial of Plaintiffs' motion for partial summary judgment. Notably, Defendants have pointed to no case law that supports their contention. This Court properly used its discretion to allow Plaintiffs to submit its statement of material facts.
As I previously held in my February 16, 2013 Order to deny a motion to stay proceedings, "the substantive issues raised by the motion for partial summary judgment will have to be decided in some court, and there is no good reason to delay substantive proceedings so that, if jurisdiction is found to exist, the substantive issues can be promptly addressed by this or another court."
I now consider the motion for summary judgment before the Court.
The action underlying the contested Settlement Agreement, dated June 26, 2008 ("Settlement Agreement") involved a dispute over the purchase of interest in the 390 Patent, a patent describing a system of pooling life insurance policies into a trust in order to create a predictable income stream for the trust owners (the "Patent"). In 1997, Ross filed an application for the Patent with the United States Patent and Trademark Office ("USPTO"). Ross assigned a one-half interest in the Patent to an affiliate of the AXA Group; this interest was then sold and transferred to Plaintiffs. Thereafter, Plaintiffs allege that Balshe and Defendants reached an agreement regarding the purchase of Ross's remaining interest in the Patent.
In 2008, Balshe and the Simon Law Firm sued Ross, who does business under the name SAVE Associates, in an Illinois court claiming that Ross had violated a contractual duty to assign Balshe his remaining interest in a patent and attempted to sell the Patent to a third party. Ross removed the action to a federal court based on diversity of citizenship. 28 U.S.C. § 1332. A settlement was reached on June 26, 2008 by Balshe and the Simon Law Firm (collectively referred to as "Balshe" in the Settlement Agreement), Ross, SAVE Associates, and the Meyer-Chatfield Corporation ("MC"). Parties stipulated to dismiss the matter, Case No. 08-cv-3256, with prejudice and to the continuing jurisdiction of the district court to enforce the Settlement Agreement.
As part of the Settlement Agreement, the parties agreed to form a new entity "Newco" for the purpose of commercially exploiting the Patent. Newco is now known as IPB. The Settlement Agreement established the rights and obligations of the parties regarding the ongoing ownership, management, and administration of IPB. The Settlement Agreement stated that the form and jurisdiction in which IPB would be organized/created would be mutually agreed upon by Balshe and MC, and that the ownership and management of IPB would be in accordance with the Settlement Agreement. Ross and SAVE agreed to execute all necessary documents to assign to IPB right, title, and interest held in the Patent. The Settlement Agreement also required that IPB use its best efforts to acquire all right, title, and interest in the Patent.
By mid-September 2009, Balshe and MC agreed to and entered into an operating agreement for IPB (the "IPB Operating Agreement"). Defendants contended that the IPB Operating Agreement contained terms to which it did not agree and did not execute the IPB Operating Agreement. Defendants refused to transfer their interest in the Patent to IPB, alleging that certain provisions contained in the IPB Operating Agreement were inconsistent with and contrary to the terms and conditions set forth in the Settlement Agreement. Defendants contested multiple provisions of the IPB Operating Agreement, in particular, a provision 6(a) that would have prohibited Defendants from attempting to dissuade banks from selling a particular type of policy to Plaintiffs.
Defendants' refusal to transfer its interest in the Patent led the parties to file cross-motions to compel compliance with the Settlement Agreement. The case was filed nearly two years after the dismissal of the original lawsuit and under the same docket number. This Court granted partial relief to Defendant Ross, ordering the Plaintiffs to strike from the Operating Agreement the provision barring Defendant Ross's right to dissuade. This Court ordered Defendant to transfer his remaining interest in the Patent to IPB in compliance with the Settlement Agreement upon removal of the language regarding the right to dissuade.
On October 1, 2010, Plaintiffs filed with the Court an Operating Agreement with provision 6(a) stricken and signed by MRB Pooled Benefits and Institutional Longevity Assets LLC. Defendants filed a motion to reconsider this Court's prior decision. Upon reconsideration, the Court found that Defendants' signature on the IPB Operating Agreement, "though necessary, [wa]s merely a formality." Defendants appealed to the 7th Circuit.
On December 8, 2011, the 7th Circuit vacated the prior judgment for lack of subject-matter jurisdiction, stating that jurisdiction cannot be retained by stipulation. The 7th Circuit remanded the matter back to the district court for further proceedings in which subject-matter jurisdiction could be established. On December 19, 2011, upon the vacating of the September 2, 2010 district court order, Defendants recorded ownership of the registered 390 Patent with the USPTO.
The present action was brought by Plaintiffs Balshe, Simon Law Firm, and MC against Defendants Ross and SAVE Associates for breach of the Settlement Agreement on February 10, 2012. On April 3, 2013, the court found that the parties had established subject matter jurisdiction; on July 16, 2013, the court denied Defendants' motion to dismiss for improper venue.
On July 11, 2013, Plaintiffs filed an incomplete motion for partial summary judgment seeking a finding in its favor that (1) Defendants have breached the Settlement Agreement; (2) Defendants are liable to Plaintiffs for all damages resulting from its breach; (3) IPB owns all right, title and interest in the Patent; and (4) Defendants may not maintain any voting right or managerial control with respect to any business formed by Plaintiffs to exploit the Patent.
On July 19, 2013, Defendant moved to deny Plaintiffs' motion for partial summary judgment for (1) failure to comply with Fed.R.Civ.P. 56 and (2) to transfer venue pursuant to 28 U.S.C. § 1406. Shortly thereafter, on July 21, 2013, Plaintiffs submitted a statement of uncontested facts with its motion for summary judgment to Fed.R.Civ.P. 56(e)(1). On September 6, 2013, Defendants filed a motion to oppose Plaintiffs' motion for partial summary judgment and moved for summary judgment in favor of Defendants.
A. Legal Standards
1. Standard of Review for Summary Judgment
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir.2001). The Court's "function is not to weigh the evidence but merely to determine if there is a genuine issue for trial." Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.2002).
Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts demonstrating that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d. 265 (1986). The nonmoving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003)(citing Lujan v. Nat'l Wildfire Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir.2000). I consider the record in the light most favorable to the nonmoving party, and draw all reasonable inferences in the non-moving party's favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.2002).
2. Breach of Contract
Under Illinois law, to prevail on a breach of contract claim, Plaintiffs must establish (1) the existence of a valid and enforceable contract; (2) performance of the contract by Plaintiffs; (3) the breach of the contract by Defendants; and (4) a resulting injury or damages to Plaintiffs. TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625 (7th Cir. 2007)(citing W.W. Vincent & Co. v. First Colony Life Ins. Co., 351 Ill.App.3d 752, 286 Ill.Dec. 734, 814 N.E.2d 960, 967 (2004). Only a duty imposed by the terms of the contract can give rise to a breach. Id. While Plaintiffs need not specify the amount of damages, Plaintiffs "bear[] the burden of proving that [they] sustained damages." Olliver v. Alden, 262 Ill.App.3d 190, 199 Ill.Dec. 579, 634 N.E.2d 418, 422 (1994).
It is undisputed that the Settlement Agreement is a valid contract between Plaintiffs and Defendants. Therefore, I turn to the key consideration: (1) whether Plaintiffs' execution of the IPB Operating Agreement constitutes performance of the Settlement Agreement. Only if performance was completed by Plaintiffs is a duty to execute the IPB Operating Agreement and transfer their rights in the Patent imposed on Defendants.
B. Application
1. Breach of the Settlement Agreement
Plaintiffs claim that they have completed performance of their duties by forming IPB in conformance with the Settlement Agreement and are entitled to have all rights, title, and interests in the Patent transferred to IPB. Defendants contend that they are not required to transfer their remaining property interest in the Patent until the IPB Operating Agreement conforms to the Settlement Agreement. Defendants point to two provisions regarding ownership and management rights to assert that there are inconsistencies between the IPB Operating Agreement and the Settlement Agreement.
First, Defendants claim that 50% of IPB is currently owned by ILA and 50% is currently owned by MRB-even as they contest the validity of MRB's ownership-in contradiction to the Settlement Agreement's provision of only 45% voting equity to both Balshe and MC and 10% non-voting equity to Defendants. Balshe and MC transferred their equity interests in IPB to ILA and MRB, respectively. The IPB Operating Agreement allows for an allocation of equity in the amount of 45% to ILA, 45% to MRB, and 10% to Ross. The distribution of equity interests in the IPB Agreement is equivalent to the allocation in the Settlement Agreement with Defendants receiving 10% equity interest under both agreements. There is nothing in the Settlement Agreement that restricts Balshe and MC from transferring their equity interests. The ownership rights provided in the IPB Operating Agreement, while not identical, are consistent with the rights provided in the Settlement Agreement.
Second, Defendants claim that the IPB Operating Agreement contains numerous modifications to the Settlement Agreement regarding management rights, but specifies only one-the prohibition to dissuade. Defendants are correct that this Court found the language in the IPB Operating Agreement restricting Defendants' right to dissuade banks from selling a particular type of policy to Plaintiffs to be inconsistent with the Settlement Agreement. In response, Plaintiffs removed this language from the IPB Operating Agreement and submitted it to the Court on October 1, 2010, pursuant to this Court's previous order. Defendants have not identified any other inconsistencies between the agreements.
The IPB Operating Agreement and the Settlement Agreement are in conformance regarding ownership and management rights. Plaintiffs have completed performance of the Settlement Agreement by forming the IPB and IPB Operating Agreement in accordance with the Settlement Agreement.
Plaintiffs contend that Defendants' continued refusal to transfer his remaining interest in the 390 Patent is a breach of the Settlement Agreement. Paragraph 2 of the Settlement Agreement expressly requires that Defendants "execute all necessary documents to assign...all right, title, and interest in the Patent held by Ross and [SA], and any of his/their affiliates, parents and assigns" to IPB. Instead of transferring his remaining interest to IPB, Defendant recorded his remaining interest in the 390 Patent with the USPTO on December 19, 2011.
Defendants have breached their obligations under the Settlement Agreement to sign the IPB Operating Agreement and transfer their interest in the Patent to IPB. As a consequence, Plaintiffs have suffered a loss from not being able to exploit its patent interests. Plaintiffs have spent over three years and almost $2 million trying to develop business opportunities to exploit the Patent.
2. Voting rights and managerial control
Plaintiffs contend that Paragraphs 4, 5, and 8 of the Settlement Agreement exclude Defendants from maintaining any managerial or voting authority with respect to IPB, as specifically outlined in the Settlement Agreement. Under the Settlement Agreement, Defendants are granted a 10% non-voting equity interest under Paragraph 4 of the Settlement Agreement. Similarly, the Settlement Agreement expressly reserves exclusive managerial control of different policies, such as BOLI, GOLI, and COLI, to Plaintiffs.
Whether the Settlement Agreement creates an absolute restriction on Defendants' right to acquire or maintain voting rights or managerial control in the future is an issue that is not yet ripe for consideration. At the present time, however, Defendants do not have a voting right and may not exercise managerial control over named policies of IPB under the Settlement Agreement or IPB Operating Agreement.
For the foregoing reasons, partial summary judgment is granted in Plaintiffs' favor. Defendants are ordered to execute the IPB Operating Agreement and transfer their right, title, and interest in the 390 Patent to IPB. Plaintiffs are granted leave to seek damages resulting from Defendants' breach of the Settlement Agreement.
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Sailor's suicide triggers lawsuit against VA
There are 4 comments on the The Daily Tribune story from Dec 7, 2012, titled Sailor's suicide triggers lawsuit against VA. In it, The Daily Tribune reports that:
On Veterans Day 2010, former Navy corpsman Kelli Marie Grese, 37, swallowed an unknown quantity of the antipsychotic Seroquel - her fourth suicide attempt in eight months using the same drug.
Join the discussion below, or Read more at The Daily Tribune.
#1 Dec 8, 2012
The VA is mostly a training facility and many doctors there do not recognize or treat patients properly. With this new issue of PTSD most doctors do not monitor their patients because they do not know the patients history or even care to read the charts. Psychiatric doctors continue to treat patients with drugs and do not monitor their effects or the patients behavior to these drugs. Again, these are training facilities and the doctors are 'protected' by the VA in most of what they treat.
#2 Dec 14, 2012
Check radiology at Medical Review board to see if they have a upgraded Body scan for MRI. It should run on all speed variations of time.
Register CHemical Makeup prior to the enterence of the Anti-anxiety that she took.
Also looking for a micro-chip, it registers vitals and co-agulates blood and blood pressure at Military headquarters. Each Dog tag has a serial number entered into their mainframe, they adjust your health form there. I believe that headquarters is in the MIDDLE of the Black Sea for USA 250 miles under sea level in base of under water Mountain Regions.
Seriqual will offset heart palpultaions, that would result in quickening of blood flow in veins, and result in heart attack, neuro combustions, annuerisms. Should be off market, Dr.s perscribe without Blood panel first, can't take it.
Most people take it from seeing spooks or aliens. IF you call exterminator, they will get verman and bugs out your walls, Brain registers additional presence on the property and you may see a bug as alein or verman as a Black shadow being. SPRAY black flag and call pest control.
Usually sightings end and no medication is needed for years until you need to clean again.
Perceptual feed adapter chip can be asserted in a standard radiology equiptment to register all time speeds, it will access the micro-chip in body and the computer will relay command, IF US NAVY killed her thru signal or another countires broadcast.
Hope this helps, although to late...
#3 Dec 14, 2012
PS Military retirees do NOT get medications form Civilan DRS> DId her Doctor validate with VA form deploy? IF not they go to prison for murder.
Retirees can only get medications from the VA of deployment locations. As a result of the micro-chips and medicaitons they were given during their tour.
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