United States District Court, M.D. Alabama, Eastern Division.
VRP TRANSPORTATION, INC., and Geico Casualty Company, Defendants.
Seth Bryant Grissom, Teddy Lee Mann, Mann & Potter, PC, Birmingham, AL, for Plaintiffs.
Keri Donald Simms, Webster, Henry, Lyons, White, Black & Bradwell PC, Birmingham, AL, Joshua Jonathan Jackson, Kevin W. R. Bufford, Samford & Denson, LLP, Opelika, AL, for Defendants.
*1 Before the court is Plaintiffs’ motion to remand. (Doc. # 8.) For the reasons stated below, Defendants are granted leave to conduct limited jurisdictional discovery on the amount in controversy, and additional briefing will be permitted. Ruling is reserved on the motion to remand.
Plaintiffs filed this case on August 30, 2018, in an Alabama circuit court bringing state-law claims related to a motor vehicle accident. (Doc. # 1-1.) Plaintiffs assert they were involved in a collision with a tractor-trailer driven by an unidentified employee of Defendant VRP Transportation, Inc. (“VRP”). Plaintiffs maintain that the tractor-trailer unexpectedly slowed, causing a collision. After the collision, the VRP driver is alleged to have left the scene of the accident in violation of state law.
Plaintiffs sue VRP based on various theories of negligence and wantonness. They also bring a claim for uninsured/underinsured motorist coverage against their carrier, Defendant Geico Casualty Company (“Geico”). Seeking unspecified compensatory and punitive damages, Plaintiffs allege serious and permanent injuries. They have sought medical treatment for their injuries and combined their current bills total nearly $12,000.
The state-court record reflects that Geico was served on August 31, 2018 (Doc. #1-2, at 3), but it does not reflect the date of service on VRP, much less whether service on VRP was proper. The state-court record contains only a notation that service for VRP was “issued” by certified mail on August 30, 2018. (Doc. # 1, at 2; Doc. # 1-2, at 2); see also Ala. R. Civ. P. 4(a)(1) (“Upon the filing of the complaint, … the clerk shall forthwith issue the required summons or other process for service upon each defendant.”). The record contains no information about whether or when VRP was served after issuance of the service documents.
VRP filed a notice of removal on October 1, 2018, based on diversity jurisdiction. See 28 U.S.C. §§ 1332(a), 1446(b)(1). Plaintiffs admit that the removal would have been timely if Geico had filed a consent to the removal on the same date. (Doc. # 8, at 13.) But Geico did not affirmatively join the removal. Instead, VRP merely stated in the notice of removal that it “anticipate[d]” that Geico would file a notice of consent but did not explicitly state whether Defendant Geico in fact had consented. (Doc. # 1, at 8.) And, at the time of removal, there was nothing else in the record establishing that VRP had Geico’s consent when it removed this action. (Doc. # 1.) While VRP attached to the notice of removal an affidavit from a Geico representative confirming its citizenship (Doc. # 1-5), the affidavit is silent as to whether Geico joined in the removal.
*2 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Accordingly, they only have the power to hear cases over which the Constitution or Congress has given them authority. See Kokkonen, 511 U.S. at 377. Congress has empowered the federal courts to hear cases removed by a defendant from state to federal court if the plaintiff could have brought the claims in federal court originally. See 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal courts may exercise diversity jurisdiction over civil actions where the amount in controversy exceeds $75,000 exclusive of interest and costs, and the action is between citizens of different states. 28 U.S.C. § 1332(a)(1).
The removing defendant bears the burden of establishing that the federal district court has jurisdiction over an action. See Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996) (placing burden of establishing federal jurisdiction on the defendant seeking removal to federal court). And, although the Eleventh Circuit favors remand where federal jurisdiction is not absolutely clear, see Burns, 31 F.3d at 1095, “federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996).
Federal courts obtain diversity jurisdiction when the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount of $75,000. See 28 U.S.C. § 1332(a). When a case brought in a state court falls within the original jurisdiction of the federal courts, the case may be removed “to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). When removing under § 1441(a), “all defendants who have been properly joined and served must join in or consent to the removal of the action.” Id. § 1446(b)(2)(A). In this case, to be timely, the notice of removal must be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading….” Id. § 1446(b)(1). This statutory “requirement that all defendants consent to and join a notice of removal in order for it to be effective is referred to as the ‘unanimity rule.’ ” Stone v. Bank of New York Mellon, N.A., 609 F. App’x 979, 981 (11th Cir. 2015) (citing Bailey v. Janssen Pharm., Inc., 536 F.3d 1202, 1207 (11th Cir. 2008) ). Moreover, “[i]f defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.” § 1446(b)(2)(C). “The failure to join all defendants in the [removal] petition is a defect in the removal procedure.” In re Bethesda Mem’l Hosp., Inc., 123 F.3d 1407, 1410 n.2 (11th Cir. 1997) (collecting cases); see also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) (“[W]hether removal is timely … is not a jurisdictional issue.”).
Plaintiffs are citizens of Alabama, and Plaintiffs noted in their Complaint that Defendants VRP and Geico are “foreign corporation[s].” (Doc. # 1-1, at ¶¶ 2–3.) Plaintiffs do not dispute that there is complete diversity of the parties, and VRP has established that it and Geico are not citizens of Alabama. (Doc. # 1-5.) Plaintiffs, instead, assert that Defendants failed to meet the timeliness requirement for removal due to Geico’s delayed consent and that Defendants failed to establish the requisite amount in controversy.
A. Geico’s failure to consent is a procedural defect that has been cured.
Although ultimately Defendants’ argument prevails, it is initially noted that Defendants have not identified the last date on which they contend Geico had to join in the removal. Some courts have interpreted § 1446(b)(2)(C) to require an earlier-served defendant (presumably Geico) to consent to removal within the later-served defendant’s thirty-day removal window, while other courts have construed it to permit an earlier-served defendant thirty days from the date of the later-served defendant’s removal to consent. See Couzens v. Donohue, 854 F.3d 508, 514 (8th Cir. 2017) (observing that “the time frame for an earlier-served defendant to consent to a later-served defendant’s notice of removal under § 1446(b)(2)(C) is unclear” and collecting cases where “courts have reached differing conclusions on this question,” but declining to decide the issue). Defendants have not pointed to any Eleventh Circuit published opinion interpreting § 1446(b)(2)(C), a 2011 amendment that codified the later-served defendant rule. Prior to § 1446(b)(2)(C), however, the Eleventh Circuit had adopted the later-served defendant rule and required that “the later-served defendant receive the consent of all then-served defendants at the time he files his notice of removal.” Bailey, 536 F.3d at 1207; but see Jones v. Commonwealth Land Title Ins. Co., 459 F. App’x 808, 810 (11th Cir. 2012) (holding that the removal was timely where the last-served defendant, who was served on June 1, 2011, filed a notice of removal on June 30, 2011, and the earlier-served defendant consented to the removal on July 1, 2011). In any event, because Defendants have not pinpointed the date that Plaintiffs served VRP or, alternatively, the date that VRP received a copy of the summons and complaint, calculating the commencement and end of the thirty-day period for Geico to consent to removal is unfeasible. This ambiguity, however, need not be clarified because even if Geico’s consent to removal was filed late, it is a technical defect that can be and has been cured.
There is circuit authority, albeit in an unpublished panel opinion, that a “technical defect related to the unanimity requirement may be cured by opposing a motion to remand prior to the entry of summary judgment.” Stone, 609 F. App’x at 981 (citing Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009) ). In Stone, all defendants were served with the initial pleading on the same date. All but one of the defendants timely removed the action within the statutorily required thirty days of service. The remaining defendant did not indicate its consent to removal until after the thirty-day removal period when it filed an opposition to the plaintiff’s motion to remand. The Eleventh Circuit recognized that the “unanimity rule must be strictly interpreted and enforced because of the significant federalism concerns arising in the context of federal removal jurisdiction.” Id. (citation omitted). It held, however, although the one defendant “did not join the notice of removal, it did oppose remand, and therefore the district court did not err by refusing to remand for a technical defect related to the unanimity rule.” Stone, 609 F. App’x at 981; see also Esposito, 590 F.3d at 77 (Even if the non-removing defendant failed to timely satisfy the unanimity requirement, “resulting in a technical defect in the removal process, the defect was subsequently cured when [the defendant] opposed [the plaintiff’s] remand motion, thereby clearly communicating its desire to be in federal court.”).
*4 Assuming without deciding that Geico’s consent to removal was untimely, Geico, like the defendants in Stone and Esposito, filed an opposition to the motion to remand. Geico’s opposition to the motion to remand cured the technical defect in the removal.
While the Stone decision is unpublished and not binding precedent on this court, given the recentness of this opinion and the similarity of facts, it is persuasive — more so than any cases cited by Plaintiffs. Other district courts in this circuit also have found convincing and applied the Stone decision’s reasoning to deny motions to remand where a non-removing defendant belatedly consented to removal. See Govan v. Yale Carolinas, Inc., 114 F. Supp. 3d 1183, 1189 (N.D. Ala. 2015) (denying motion to remand based on the reasoning in the Stone decision, which the court found “to be persuasive”); James v. McDaniel, No. CV 16-51-KD-M, 2016 WL 1573457, at *3 (S.D. Ala. Apr. 19, 2016) (denying motion to remand and finding, based on “the guidance provided by Stone,” that the non-removing defendant’s “untimely acquiescence to removal was a curable ‘technical defect’ ”). On this record, Geico’s after-the-fact notice of consent and its joinder in the opposition to remand cured the failure of Geico to join in the original notice of removal.
Plaintiffs argue that Defendants have failed to demonstrate the threshold jurisdictional amount by a preponderance of evidence. Defendants argue, however, that it is apparent from the face of the complaint that the amount in controversy exceeds $75,000 based on Plaintiffs’ allegations of serious and permanent physical injuries and demand for punitive damages.
Defendants bear the burden of demonstrating that the requisite amount in controversy for diversity jurisdiction is satisfied. Where, as here, “a plaintiff makes ‘an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the … jurisdictional requirement.’ ” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (quoting Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000) ). In some cases, the removing defendant must provide evidence to sustain its burden of proving that removal is proper. See id.; see also Pretka, 608 F.3d at 755 (clarifying that, for a first-paragraph removal (now codified at § 1446(b)(1) ), for “defendants may submit a wide range of evidence in order to satisfy the jurisdictional requirements of removal”). In other cases, “removal from state court is [jurisdictionally] proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement.” Pretka, 608 F.3d at 754 (alteration in original) (citation and internal quotation marks omitted). But the jurisdictional amount is not facially apparent where the complaint’s allegations are conclusory. In Williams v. Best Buy Co., 269 F.3d 1316 (11th Cir. 2001), the Eleventh Circuit held that the complaint’s boilerplate allegations of “permanent physical and mental injuries,” “substantial medical expenses,” “lost wages,” and “diminished earning capacity,” accompanied by a demand for unspecified punitive damages, did not demonstrate that the amount in controversy was facially apparent from the complaint. Id. at 1320; see also Thompson v. Target Corp., No. 2:18-CV-97-MHT-DAB, 2018 WL 1750754, at *3 (M.D. Ala. Mar. 21) (“In this Circuit, a complaint’s reference to punitive damages does not automatically satisfy the jurisdictional amount in controversy requirement so as to trigger this court’s jurisdiction.” (citing Williams, 269 F.3d at 1320) ), report and recommendation adopted, No. 2:18CV97-MHT, 2018 WL 1748116 (M.D. Ala. Apr. 11, 2018).
*5 While the existence of jurisdiction cannot be divined “by looking at the stars,” a removing defendant can rely on “reasonable deductions, reasonable inferences, or other reasonable extrapolations” to establish the amount in controversy. Pretka, 608 F.3d at 753–54. It also is appropriate to consider “the nature of injury alleged and damages sought.” Townsend v. Win-Holt Equip. Corp., No. 2:17-cv-218, 2018 WL 4608476, at *2 (M.D. Ala. Sep. 25, 2018). Furthermore, “the defendant can take into account damages …, as long as the estimate is not overly speculative.” Porter v. MetroPCS Commc’ns Inc., 592 F. App’x 780, 783 (11th Cir. 2014) (citing Leonard v. Enter. Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002) ).
Contrary to Defendants’ argument, the amount in controversy is not facially apparent from Plaintiffs’ complaint. The deficiencies in the complaint in Williams v. Best Buy Co. also are present here. See 269 F.3d at 1318, 1320. Plaintiffs allege “serious” and “permanent” injuries, “permanently diminished” earning capacities, and that they have suffered “great physical pain and mental anguish” at the hands of Defendants. (Doc. # 1-1 ¶ 12.) But the description ends there with no concrete allegations describing the nature of Plaintiffs’ alleged permanent injuries, diagnoses, or treatment. As the Williams court teaches, these conclusory allegations do not provide a way to measure the value of Plaintiffs’ unspecified requests for compensatory and punitive damages. Any determination of the value would be an exercise in impermissible speculation. Accordingly, Defendants have not met their burden of proving the amount in controversy based on the complaint alone.
Defendants also rely upon a mortality table. (Doc. # 16-1.) They observe that Plaintiff Piard is just twenty years old and, under the mortality table, is expected to live fifty-six more years. Defendants reason that reimbursement of just $4 a day (approximately $1,460 a year) to compensate Plaintiff Piard for his alleged permanent disability and loss of wages for the rest of his life, establishes damages at around $81,700 — an amount that exceeds the jurisdictional amount. Plaintiffs do not respond to this specific allegation about the amount in controversy. Instead, they assert generally that Defendants have not offered any evidence. While Defendants’ observations regarding Plaintiff Piard’s potential loss of earnings could be helpful in assessing the amount in controversy, the numbers are not based upon specific facts in the record, and, thus, the calculations turn out to be speculative.
On this record, though, Defendants have shown enough — based on the complaint’s allegations of permanent injuries, claimed future expenditures of “large sums of money,” and a demand for punitive damages, as well as evidence suggesting potentially ongoing medical bills — to justify post-removal discovery. Although not required, in its discretion, the court will grant Defendants’ request to conduct discovery on the amount in controversy prior to ruling on the motion to remand. Cf. Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014) (indicating that, in a removal under the Class Action Fairness Act, the district court may permit post-removal discovery and make jurisdictional findings under the preponderance-of-the-evidence standard when after removal the amount in controversy is in dispute) (citing H.R. Rep. No. 112-10, p. 16 (2011) ); Pretka, 608 F.3d at 744 (Pryor, J., concurring) (“Our precedents have taken for granted that a defendant who removes a civil action has the same right that a plaintiff enjoys to conduct discovery about jurisdictional facts.”). The parties are cautioned that discovery on the merits will not be permitted, and discovery is limited to evidence relevant to the amount in controversy at the time the case was removed. See Williams, 269 F.3d at 1319 (“[A] district court may properly consider post-removal evidence in determining whether the jurisdictional amount was satisfied at the time of removal.”) (citing Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000) ).
(2) Defendants are GRANTED until February 28, 2019, to file a supplemental memorandum with evidence in opposition to Plaintiffs’ motion to remand.
(3) Plaintiffs’ may file a reply in support of their motion to remand within ten days after Defendants file their supplemental memorandum.


New “Employment” Computer Fraud and Abuse Act case … but with a twist!
It’s always the same: Employee decides to go work for a competitor. Employee takes confidential information. Employee uses it in new job with competitor. Employer sues.
We see it all the time and, in fact, it is probably the most common scenario of cases asserting claims under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq. This case, however, handed down on April 20, 2011, has an interesting twist.
In Meats by Linz, Inc. v. Dear, 2011 WL 1515028 (N.D. Tex. Apr. 20, 2011), the court handed down a decision denying the Defendant’s Motion to Dismiss the CFAA claim on two distinct grounds: “access” and “loss”.
Steve Dear was employed by Meats by Linz, Inc. (“MBL”) as the general manager of its Dallas sales facility. He had an employment agreement that included a confidentiality / non-disclosure agreement. Dear decided to go work for one of MBL’s competitors but, before announcing he would be leaving, accessed MBL’s password-protected confidential and proprietary information to which only he, and others on a “need to know” basis, had access. In fact, he accessed it at 9:15 p.m. on a Sunday night, downloaded it, and sent an email resignation about two hours later. In the words of Gomer Pyle, “Surprise! Surprise!” … not long afterwards, he was working for a competitor and soliciting MBL’s customers by, according to MBL, using its confidential and proprietary information that he had taken.
MBL sued alleging, among other things, violation of the Computer Fraud and Abuse Act for improperly and illegally accessing its confidential and proprietary information on its computer system “without authorization” or by “exceeding authorization”. Dear moved to dismiss the CFAA claim on two grounds.
Dear’s first ground was based on the “access” issue. He argued that he had authorization to access the information and did not exceed his authority by accessing or downloading it. (Opinion p. 5) In essence, Dear was arguing for the Brekka position on the access issue but, to no avail, and for good reason. In United States v. John, 597 F.3d 263, 271 (5th Cir. 2010), the Fifth Circuit solidified its earlier holding in United States v. Phillips, 477 F.3d 215 (5th Cir. 2007), and created on this access issue what appears to be the third line of cases–a trilogy of access theories.
The Trilogy started with the Seventh Circuit in International Airport Centers, LLC v. Citrin, 440 F.3d 418, 420-21 (7th Cir. 2006) (citing Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121 (W.D. Wash. 2000)) in which it held that under common law agency principles, an employee’s right to access his employer’s computer is premised on his serving the interests of his employer. Should his loyalties to his employer change and his interests become adverse, so to would his authorization change by becoming unauthorized. Under this “agency theory” the authorization to access was based upon the employee’s own subjective loyalties and interests and, if they changed, his authorization to access the employer’s computer changed with it.
The Ninth Circuit, however, in LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009) refused to follow the Citrin theory and expressly rejected it, holding instead that a strict interpretation of the the CFAA prohibits unauthorized access to the computer rather than unauthorized use of the information. According to Brekka, once an employee was authorized to access the computer, his access continued to be authorized even if his loyalties to his employer changed and began doing “another’s bidding,” so to speak. Regardless of an employee’s subject loyalties and intentions, the only way his authorization could be terminated is by an express act by the employer.
The Fifth Circuit came up with third line of cases analyzing this issue, one that splits the difference between the expansive interpretation of the CFAA under Citrin (the Agency Theory) and the narrow interpretation under Brekka (the Access Means Access Theory).
In United States v. John, 597 F.3d 263, 271 (5th Cir. 2010), the court explained its “intended-use analysis” as follows: access to a computer and data that can be obtained from that access may be exceeded if the purposes for which access has been given is exceeded and the employee is actually aware of those limitations on purpose through policies or contractual agreements. Under this theory, an employee’s own subjective changing of allegiances is not enough by itself to terminate authorization, yet an employer is not required to expressly notify the employee that his access is terminated. Rather, the employer can implement certain restrictions on access and use of information obtained thereby, ahead of time by policies and agreements, that are known by the employee, and if the employee still violates those limitations by accessing information and using it for improper purposes–not for its intended use–that access will be considered as having been unauthorized for purposes of the CFAA.
How Do You Think the Dear Court Ruled on “Access”?
Come on, you read the Trilogy of Access Theories, didn’t you? Now that you know where the Fifth Circuit stands on this issue under the Computer Fraud and Abuse Act so tell us, how do you think the Dear Court ruled?
18 U.S.C. § 1030(e)(11). This issue has been litigated for a while and the courts have been pretty clear on it.
The term “loss” encompasses only two types of harm: costs to investigate and respond to an offense, and costs incurred because of a service interruption.
Alliantgroup, L.P. v. Feingold, 2011 WL 1157315, at *15 (S.D. Tex. Mar. 24, 2011) (citing Quantlab Technologies Ltd. (BVI) v. Godlevsky, 719 F. Supp.2d 766, 776 (S.D. Tex. 2010) (citing Nexans Wires S.A. v. Sark-USA, Inc., 319 F. Supp.2d 468, 472 (S.D.N.Y. 2004), aff’d 166 Fed. Appx. 559, 562-63 (2nd Cir. 2006))).
The Dear case did not involve allegations of interruption of service so we must be talking about the first type of harm: costs to investigate and respond to an offense, right?
In the case Quantlab Technologies Ltd. (BVI) v. Godlevsky, 719 F. Supp.2d 766, 776 (S.D. Tex. 2010), decided on June 23, 2010, the facts were very similar to the Dear case in that a former employee had accessed his employer’s computer while he was was employed and took confidential and proprietary trade secrets that he then used to compete with his former employer. The trade secrets were literally worth millions of dollars but the issue was whether they met the $5,000 jurisdictional loss requirement. They did not. Why?
Because, it is relatively well settled that misappropriated trade secret information, and the conclusory profits that may be earned therefrom are not considered to be costs to investigate and respond to an offense, regardless of how much they may be worth. See Quantlab Technologies Ltd. (BVI) v. Godlevsky, 719 F. Supp.2d 766, 776 (S.D. Tex. 2010).
In Quantlab the court found there was no adequate pleading of loss. Same with with the Alliantgroup, L.P. v. Feingold case cited above, just decided on March 24, 2011–employee took trade secrets then used the information to compete–the information was worth well over $5,000 but it was not a “loss” as defined by the CFAA. Alliantgroup, L.P., 2011 WL 1157315, at *15.
While these cases are certainly not binding precedent, it has seemed as though this issue was becoming fairly well settled. In the Dear case, the court found the facts supporting the pleading of loss was that meat products were sold to specific customers listed in the proprietary information. (Opinion p. 8). In other words, the only “loss” that was pleaded was essentially the loss of trade secrets. Here is a copy of the Complaint for your review, at paragraph 32.
MBL alleges that Dear’s actions resulted in “damage or loss to MBL aggregating at least $5,000 in value.” Compl. ¶ 32. This allegation is augmented by factual assertions that meat products were sold to specific customers listed in MBL’s Gross Profit Report. These averments make plausible MBL’s theory that Dear obtained confidential business information while exceeding his authorized access, then used this customer data to deprive MBL of sales from regular customers, resulting in lost revenue that could amount to over $5,000 over the course of one year.
(Opinion p. 8 ) Accordingly, the Motion to Dismiss was denied.
The court’s ruling on the “loss” issue does not seem to comport with much of the nonbinding prior case law, which is not unusual for a body of law that is still developing like the CFAA. This case could very well be setting this issue up for the Fifth Circuit to decide given that both the Quantlab and Alliantgroup courts, as well as the Dear Court, are all within the Fifth Circuit. Given this situation, many times when a court decides to depart from one particular line of reasoning and adopt a different one, they acknowledge the other line, explain why it doesn’t apply or why it should be changed, and then explain how they believe the issue should be handled. This happens all of the time and is part of the process for how these issues are refined by judicial reasoning. Moreover, this is how the issues get “framed up” for the appellate courts to then decide. Given that the Dear opinion did not spend much time on this issue, however, I decided to review the briefing to see for myself how extensively the issues were briefed for the court and have linked to the relevant briefing for your review as well: Defendant’s Motion to Dismiss and the Plaintiff’s Response to Motion to Dismiss and Brief in Support.
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Athenahealth v. ADP AdvancedMD, Inc. Represented athenahealth, Inc. (Athena) in litigation against ADP asserting Athena’s patent directed to its core technology. The case required multiple source code experts and ADP identified a broad swathe of prior art. After securing key claim constructions which foreclosed several of ADP’s non-infringement and invalidity positions, the case reached a client-favorable settlement.
Kantar v. TRA (TiVo) Successfully defended WPP plc, the world’s largest advertising company, and its subsidiaries in a suit involving three patents, 24 trade secrets, four separate contracts, fiduciary duty claims, and a $120 million damages claim. We eliminated all claims through summary judgment and in limine motions.
Teashot v. Keurig. We represented Keurig in a lawsuit brought by a Colorado tea supplier, Teashot, for infringement of a patent directed to a type of tea-filled container. After securing a favorable claim construction, the district court granted our motion for summary judgment of non-infringement. The Federal Circuit fully affirmed the decision on appeal.
Goldfarb v. W.L. Gore & Associates. After winning the one of the most contested and longest running patent interferences in Patent Office history, we were part of the litigation team that represented Goldfarb and Bard Peripheral Vascular in their subsequent patent infringement suit against Gore over its enormously valuable vascular grafts. The judgment against Gore, affirmed in three Federal Circuit decisions, now totals over $1 billion.
Red v. Sony & Sony v. Red. In a series of patent cases concerning high-end digital cinema cameras, we defended Sony against two patents asserted by a competitor and filed a countersuit asserting seven Sony patents. Following Sony’s countersuit, the parties agreed to dismiss both cases without prejudice.
ADT v. Sony Electronics Inc. Representing our client Sony in the Eastern District of Texas, we secured summary judgment that one asserted patent was invalid and a favorable claim construction for the second asserted patent. Following these victories, the case settled favorably.
CIEA v. The Jackson Laboratory. We secured summary judgment of no patent infringement for our client The Jackson Laboratory, which had been accused of infringing a patent on a transgenic mouse. This pioneering case turned on a novel question of claim construction, namely the proper interpretation of mouse nomenclature in patent claims. After securing a favorable claim construction from the court, the parties stipulated that there was no literal patent infringement by Jackson’s accused mouse strain, and we established by summary judgment that the Jackson mice did not infringe under the doctrine of equivalents.
Keurig v. Kraft. Our client, Keurig, sued Kraft Foods for infringement of a Keurig patent directed to a type of cartridge for use in single-serve coffee brewers. We successfully opposed Kraft’s attempt to obtain summary judgment of patent invalidity and non-infringement, and we prepared the case for trial. With just a week remaining before trial and significant pre-trial evidentiary motions pending before the Court, Kraft agreed to pay Keurig a lump sum of $17M for a limited, nonexclusive license.
Diomed v. AngioDynamics and Vascular Solutions. On behalf of medical device client Diomed, won largest Massachusetts patent infringement verdict of 2007. The jury’s award of $12.46 million was increased post-verdict to $14.7 million, and a permanent injunction was entered against defendants. Prior to jury trial, we secured summary judgment that Diomed’s patent was valid over eight separate prior art references and an inequitable conduct challenge.
In re Certain Point-to-Point Network Communication Devices and Products Containing the Same. We defended Sony in the International Trade Commission against a patent owner targeting a wide array of Sony products, including the PlayStation 4. We identified key third-party witnesses concerning prior art products and developed a compelling record to establish that such products invalidated the asserted patents. Further, despite the ITC’s reputation for expansive discovery, we kept Sony’s burdens reasonable and defeated a high-stakes motion to compel. The complainant dropped its case less than two weeks before the hearing.
In re Certain Consumer Electronics and Display Devices and Products Containing Same. We defended Sony in the International Trade Commission against a non-practicing entity seeking to monetize patents originally owned by Silicon Graphics. The accused products spanned a wide range of technologies including graphic processing units (GPUs), central processing units (CPUs), and liquid crystal displays (LCDs). Out of over ten summary determination motions collectively filed by the several respondents in the investigation, ours was the only one that the ITC Staff Attorney recommended the Administrative Law Judge grant. The investigation settled shortly thereafter on very favorable terms for Sony.
In the Matter of Certain Antivenom Compositions and Products Containing the Same. Wolf Greenfield recently secured a favorable settlement for our long-time client, BTG plc, manufacturer of CroFab® rattlesnake antivenom, in a complex patent infringement investigation before the International Trade Commission (ITC). The settlement prevents the accused infringers from entering the market until 2018 and requires royalty payments from that point until BTG’s patent expires in 2028. In October 2013, BTG filed a complaint with the ITC asserting that several foreign biotechnology companies and their U.S. partners had begun to violate BTG’s hard-won patent rights by importing and selling antibody-based snake antivenoms into the U.S. Utilizing a multidisciplinary legal and technical strategy, our team secured a string of pre-trial victories, including a favorable claim construction decision. We also achieved success on several key discovery motions, including compelling critical discovery from the defendants while at the same time defeating over a dozen different procedural and substantive motions that the defendants filed, including several motions for summary judgment. These and many other successes positioned BTG favorably for settlement negotiations on the eve of trial in August 2014. As a result, BTG negotiated a resolution that secures its market-leading position through 2018 and ensures fair compensation once the defendants eventually do enter the market.
U.S. International Trade Commission Investigation No. 337-TA-741/749. In June 2012 the International Trade Commission issued a final ruling in favor of our client, MStar Semiconductor, Inc., in a case brought by Thomson Licensing. The Commission found no infringement by either MStar’s scaler chips, or the LCD products, sold by MStar’s customers, that incorporate those chips. The complainant, Thomson Licensing, had sought to exclude from importation a significant proportion of the LCD products imported into the United States.
In the Matter of Certain Electronic Devices. One of our litigators defended parallel International Trade Commission and Eastern District of Texas cases involving power adaptor technology.
In the Matter of New Skies Communications and Astrium, SAS. One of our litigators defended a $120 million International Chamber of Commerce arbitration arising out of the design and construction of solar power panels and steering rockets on a telecommunications satellite.
Under the America Invents Act (AIA), interferences will be phased out in the coming years; however, they are still a viable alternative for patents filed before March 16, 2013. For information on our other post grant services, please see our Post Grant Proceedings page.
Cooper v. Goldfarb. In this case involving enormously valuable vascular graft technology, we won the longest-running patent interference in USPTO history, prevailing in three Board of Patent Appeals and Interferences decisions and two Federal Circuit appeals. The resulting patent issued in 2002 and has been litigated with success.
Regents of the University of California v. University of Iowa Research Foundation. In this patent interference involving a client’s core biotechnology IP, we sought dismissal of the interference (provoked by a competitor) for failure to meet statutory requirements. We won a dismissal that not only preserved our client’s valuable patent rights, but also significantly expanded the existing law and provided additional protection to all patent holders by restricting the ability of patent applicants to provoke an interference against an issued patent.
Raz v. Krieg. We represented the prevailing inventor in two related patent interferences regarding patent applications for methods of treating asthma. In the first interference, we prevailed in the preliminary motions period, and the other side appealed. During the appeal, the other side abandoned the appeal. In the second interference, the other side conceded and requested that judgment be entered in our favor.
Massachusetts Institute of Technology v. Catalyst Assets. In this patent interference, we obtained dismissal of an interference provoked by one of our client’s competitors for failure to meet statutory requirements. This decision confirmed and extended the holding that we had previously secured for a different client in the case Regents of the University of California v. University of Iowa Research Foundation.
Bestfoods v. Barber Foods. In this case involving food processing technology, we represented the applicant who discovered a former collaborator had filed for, and had obtained, a patent on subject matter our client believed was derived from them. We developed a strategy that caused the patentee to concede the interference, resulting in the collaborator’s patent being cancelled and allowing our client to obtain a patent on that subject matter.
Landers v. Sapolsky. Successfully represented Massachusetts Institute of Technology in an interference with respect to methods for detecting genetic defects. We prevailed on §112 grounds as Sapolsky’s claims were not supported because they were broader in scope than the method disclosed in the specification.
Bern v. Burton. Bern sued multiple manufacturers of snow sports helmets, including our client Burton, for alleged infringement of Bern’s trade dress in a particular shape of helmet. We developed an argument on summary judgment that Bern had failed to show that its trade dress had achieved “secondary meaning,” or that the relevant class of consumers recognized the particular helmet shape as originating from Bern. The district court found that every relevant factor weighed against secondary meaning, granted summary judgment, and dismissed all of Bern’s claims—a complete victory for Burton.
Bridgewater Candle v. Yankee Candle. This case has become one of the leading trademark, trade dress and copyright infringement cases in the First Circuit. We represented Bridgewater Candle against industry leader Yankee Candle, represented by one of the largest intellectual property firms in the world. We prevailed on all issues both in trial court and again before First Circuit Court of Appeals and were awarded a seven-figure sum in attorneys’ fees and costs.
Perfection Fence v. Fiber Composites. We represented Perfection Fence in an action over the marks PERFECTION® and PERFECTION FENCE® for fences and related products. After we secured a preliminary injunction forcing defendant to stop using the marks, the case settled on confidential terms favorable to our client.
General Healthcare v. Qashat. In this trademark battle over rights to a mark for a consumer product, we won summary judgment that our client properly obtained rights abandoned by third party and plaintiff had failed to properly secure U.S. trademark rights. We successfully defended this judgment before the First Circuit Court of Appeals.
Tootsie Roll v. Sathers. We successfully obtained a temporary restraining order against a bulk purchaser selling candy with wrappers that infringed on the trade dress of our client Tootsie Roll’s wrappers. The bulk purchaser had to recall hundreds of thousands of dollars worth of candy and destroy the wrappers. We later secured a permanent injunction.
Nabisco v. Tootsie Roll. Nabisco sued our client, Tootsie Roll, in the Southern District of New York over Tootsie Roll’s red pennant trademark. After a full trial, but before judgment, the case settled with Nabisco agreeing to drop its claims in exchange for our client’s adoption of its current logo, a brown rectangle with the word ‘TOOTSIE’ on its face. The logo was well received as an improvement of what had been used before, since it was more directly relevant to the famous shape of Tootsie Rolls.
Paramount v. Venture Tape. We represented Venture Tape in a suit brought by Paramount on its KLINGON mark from Star Trek. Our client used CLINGON in relation to optical masks for manufacturing progressive lenses. We defeated a preliminary injunction motion by Paramount, and the case settled shortly thereafter on favorable terms that allowed our client to continue using its mark.
Represent Photographic Illustrators Corporation (PIC) in ongoing, seven-figure copyright enforcement campaign. The cases arise from unlicensed use of and manipulations to PIC’s copyrighted images. The multiple, client-favorable settlements resulted from negotiating numerous legal issues including contract interpretation of conditions versus covenants, the scope of the Lanham Act’s protections under Dastar v. Twentieth Century FoxFilm Corp., DMCA violations, and the fair use defense to copyright infringement.
American Century Home Fabrics v. Ashley Furniture Industries. We represented American Century, a small fabric importer and converter, in a lawsuit against the world’s largest furniture corporation for copyright infringement of American Century’s most popular fabric line. Disputed issues in the case included the identity of the original authors, the validity of the copyright registration, and the amount of Ashley’s profits. After discovery involving depositions of artists in the U.K. and manufacturers in Hong Kong, we prepared the case for trial where the parties entered into a confidential settlement just before opening statements.
Photographic Illustrators v. Gillette. On behalf of a commercial photographer (PIC), we won a permanent injunction against Gillette Corporation in a complex copyright and breach of contract case. In the course of that litigation, we also successfully moved to hold Gillette in contempt of court for litigation misconduct, resulting in the Court imposing an evidentiary inference in our client’s favor. We then mediated the case, resulting in a favorable settlement for our client, shortly before the trial began.
OnAirWare v. MacroMedia. We secured summary judgment that our client was a co-author of the copyrighted work in dispute, and thus could not be liable for copyright infringement. The other counts in the case were dismissed pursuant to a favorable confidential settlement.
Foster-Miller v. Babcock & Wilcox. We won the largest trade secrets jury verdict in Massachusetts history, in a case relating to nuclear power reactor technology. We successfully defended this verdict before the First Circuit Court of Appeals.
Karol v. Burton. We successfully defended a major patent and trade secret case brought against Burton. First, we secured transfer of the case from Colorado to Burton’s home court in Vermont. We then obtained summary judgment that four of the five asserted patents were invalid, and forced plaintiff to withdraw seven of the eight trade secrets underlying his trade secret allegation. Following these results, the case settled on very favorable terms.
First National Bank of Omaha v. Trans Union Corporation. One of our litigators won a $23.7M jury verdict against a national credit reporting company for misuse of confidential computerized customer information.
BlueChip v. HCA. We represented software company, BlueChip Technologies, Ltd., against a branch of HCA, Inc., one of the world’s largest healthcare corporations. We obtained a finding of likelihood of success on the merits in a hotly-contested preliminary injunction battle. That ruling led to a very lucrative confidential settlement for our client.
Software licensing settlement. A major consumer software provider came to us for a second opinion eight weeks before trial on a $100 million claim. We identified to in-house counsel a previously undiscovered and potentially dispositive issue. Based on our analysis and a resulting motion, we negotiated a favorable confidential settlement for our client.
Burton v. Vans. We represented snowboard equipment manufacturer Burton in a California declaratory judgment action brought by Vans, asserting a Burton patent was invalid and not infringed. We won dismissal of that case, and filed a separate lawsuit against Vans in Vermont. Vans ultimately agreed to take a license to the patent on terms favorable to Burton.
Imperial Credit Industries, Inc. v. Steadfast Insurance Company. One of our litigators recovered $12.5 million settlement for bad faith insurance litigation in the Northern District of Illinois.
Williams v. Poulos. One of our litigators secured a permanent injunction and attorney fees against a former federal bankruptcy judge and others for illegal use of wiretap evidence in a RICO and securities fraud case.
We represent clients under Uniform Dispute Resolution Policy (UDRP) domain name arbitration process. In addition, Michael Albert serves as a UDRP arbitrator and has arbitrated over 85 cases for World Intellectual Property Organization and National Arbitration Forum.
Aro Manufacturing v. Convertible Top Replacement Co. We represented the winning party in this seminal U.S. Supreme Court case on the repair doctrine. The Supreme Court held that purchasers of cars with a patented convertible top – the combination of fabric and a supporting structure – did not infringe the patent when replacing worn fabric. The case was before the Supreme Court twice, resulting in two decisions in our client’s favor.
O2 Micro International, Ltd. v. Beyond Innovation Technology Co., Ltd. One of our litigators defended a semiconductor manufacturer in a jury trial in Marshall, TX, resulting in the plaintiff’s abandonment of its $120 million damage claim and defense judgments as a matter of law on direct and contributory infringement claims (inducement infringement verdict reversed on appeal).
Vitronics v. Conceptronic. We won this landmark case on the types of evidence courts may consider for claim construction. The reasoning from this case was later upheld and quoted extensively by the Federal Circuit in its en banc decision in Phillips v. AWH, a leading case on claim construction.
State Street Bank v. Signature Financial. We represented the winning party in this leading Federal Circuit case establishing the right to business method patents.
Unette Corp. v. Unit Pack Co. We represented the prevailing party in this seminal 1985 case dealing with “point of novelty” issue in design patents. We prevailed again on appeal to the Federal Circuit.
To view older publications, go to Publications.
The Safe Harbor Under 271(e)(1): Is Post-Approval Activity "Routine"?
For older news items, please go to News & Events.
A replay of our patent litigation seminar is now available. Watch now.


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Your personal data (e.g. title, name, address, e-mail address, telephone number) will only be processed by us in accordance with the provisions of German data protection law and the data protection law of the European Union (EU). In addition to the processing purposes, recipients, legal bases, storage periods, the following regulations also inform you about your rights and the person responsible for your data processing. This data protection declaration only applies to our websites. If you are redirected to other sites via links on our website, please inform yourself there about the respective handling of your data.
We process your personal data, which you make available to us by e-mail, contact form etc., to answer and deal with your inquiries. You are not obliged to provide us with your personal data. However, we cannot answer you by e-mail without your e-mail address.
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c) In all other cases (in particular when using a contact form) Art. 6 Sec. 1f) GDPR forms the legal basis.
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§ 147
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§ 186-14 Purpose and intent.
§ 186-15 Provisions adopted by reference.
§ 186-16 Maximum exemption granted.
§ 186-18 When effective; applicability.
This article shall be known as the "Alternative Veterans Exemption Law of the Town of Perinton."
It is the purpose and intent of this article to implement legislation which increases the maximum exemption allowable for the alternative veterans exemptions, as set forth by the Real Property Tax Law of New York State § 458-a, Subdivision 2(a), (b) and (c), to $18,000, $12,000 and $60,000, respectively.
All applicable provisions of § 458-a of the Real Property Tax Law of New York State, including all subdivisions, together with any and all appropriate amendments thereto, are hereby approved and adopted as and for law and procedures of the Town of Perinton except where provisions of this article or any other local law or ordinance of the Town of Perinton shall prescribe differently. In such event, compliance with the provisions of such local law or ordinance shall constitute proper compliance with this article.
The Assessor of the Town of Perinton is hereby directed to increase the maximum exemption allowable for the alternative veterans exemption under § 458-a, Subdivision 2(a), (b) and (c), of the Real Property Tax Law of New York State to $140,000, $160,000, $180,000, $200,000, $220,000 or $240,000 respectively, and to make appropriate adjustments to all alternative exemptions on the assessment roll of the Town of Perinton to accurately reflect said increase.
The Town Board may from time to time amend, supplement, change, modify or repeal this article pursuant to the provisions of the Town Law, the General Municipal Law and the Real Property Tax Law of New York State applicable thereto.
This article shall take effect immediately upon the filing with the Secretary of State and shall apply to assessment rolls prepared on the basis of taxable status dates occurring on or after January 1, 1997.


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This post examines an opinion the Michigan Court of Appeals recently issued in a civil case: Latture v. Emmerling, 2013 WL 5225243 (2013). The case began when Fay Latture, Superintendent of the Clio, Michigan school district, sued three people: Rebecca Freifeld and Julie Keyes, who were “parents with children who attended Clio public schools” and Diane Reed, a “school teacher” (presumably at Clio). Latture v. Emmerling, supra.
appeared at Board of Education (Board) meetings in their capacity as parents. They voiced several points of dissatisfaction with [Latture’s] performance as Superintendent and made several requests for materials through the Freedom of Information Act (FOIA). In the spring of 2005, [Freifeld and Keys], with the help of . . . Diane Reed, found a way to infiltrate [Latture’s] e-mails.
[Latture] began to notice her e-mails were being deleted when people told her they had e-mailed her and questioned why she had not responded. [She] would go back into her e-mails and could not find what they sent. [Latture] could not account for how people at Board meetings knew whether she was taking her vacation days or not and where she was going; whether she used personal days and did she report them; and whether she was attending certain events.
Parents came to Board meetings with e-mails, sometimes crying, sometimes upset and angry concerning disclosures from the e-mails. Others contacted [Latture] with concerns that confidential information they e-mailed her may have been released. In addition to school related communications [her] e-mails contained medical information, communications with attorneys and private discussions with her sister. . . . [Latture] experienced anxiety, nausea, headaches, stomach ache, and could not sleep. Coworkers, her husband, and sister observed her altered demeanor, anxiety, and physical distress.
accessed to the Clio School District Director of Technology Howard Buetow, who investigated and reported his findings to Clio Chief of Police James McLellan. Buetow ultimately traced the intrusions to the internet provider (IP) addresses of Freifeld and Keyes. Buetow determined that [Latture’s] e-mails were read 9,081 times.
McLellan conducted an investigation where Reed, Freifeld, and Keyes provided Proffer Statements in which they admitted to accessing [Latture’s] e-mails without authorization. Freifeld additionally admitted to having taken [Latture’s]s trash on three occasions. Reed admitted that in April 2005 she sent [Latture] an e-mail with Spyware software on it that allowed her to record [Latture’] keystrokes and obtain [her] school e-mail password.
Reed admitted to reading e-mails that involved student matters, Board member communications, and some information that would have been embarrassing and caused [Latture] distress if revealed publicly. Reed told McLellan she shared the password with Freifeld and Keyes on May 24, 2005. Keyes admitted the three of them did meet in her basement on that day and accessed [Latture’s] e-mails for over two hours, printing them out and storing them in a binder.
Keyes further admitted that she forwarded the e-mails to other people. Freifeld admitted the same involvement as Reed and Keyes, and added that she anonymously delivered [Latture’s] e-mails to people by leaving them at their residences.
In October 2005, [Latture] took her home computer to Paul Lee, owner of Clio Computers in Clio, Michigan, because it was running slow and she thought it had a virus. Eighty to ninety percent of Lee's daily work dealt with spyware, adware and viruses. Lee told [Latture] her home computer had Spyware on it.
In December 2005, McLellan told [Latture] that her school e-mails had been stolen and that someone had taken her garbage. Around the same time, Buetow told [her] that [Freifeld, Keys] and Reed were the ones that had accessed her school e-mails.
In January of 2006, “Reed, Keyes, and Freifeld pled guilty to the misdemeanor charge of conspiracy to commit fraudulent access to computers.” Latture v. Emmerling, supra. According to the news story you can find here, the three spent some time in jail. Latture then sued them, alleging three causes of action: intrusion upon seclusion, intentional infliction of emotional distress and civil conspiracy. Latture v. Emmerling, supra.
The opinion says that on “February 28, 2011,” a jury found for Latture on all three claims, “against each defendant” and awarded “damages against Freifeld in the amount of $250,000 and against Keyes in the amount of $125,000.” Latture v. Emmerling, supra. It does not say if anything was awarded against Reed. Latture v. Emmerling, supra.
an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case.
The Court of Appeals began its analysis of the defendants’ argument on the intrusion upon seclusion claim by noting that this tort claim has “three elements: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private;” and (3) obtaining information “about that subject matter through some method objectionable to a reasonable man.” Latture v. Emmerling, supra.
It began with the issue of whether Latture’s emails were “private,” noting that courts use dictionaries to discern the meaning of particular terms. Latture v. Emmerling, supra.
[Latture’s] school e-mail was provided by the Clio school district and maintained by the school's computer server. Only individuals with a password, provided by the school district, could use the school e-mail system. There was a specific and limited method by which a limited class of persons could access the e-mails of persons other than themselves and the contents of such observation were confidential.
The characteristics of the school e-mail system were such that this Court can conclude that the system was restricted and therefore, private between users. Thus, [her] e-mails were private.
attorneys, parents, and with medical professionals.” Latture v. Emmerling, supra. The Court of Appeals explained that Michigan courts have held that communications between a lawyer and client and communications involving someone’s medical treatment or condition are private. Latture v. Emmerling, supra.
It also noted that Latture “intended the matters in the e-mails to be private.” Latture v. Emmerling, supra. Given all this, the court found “sufficient evidence” supported a finding that her “e-mails contained private information. Latture v. Emmerling, supra.
contained private matters and that she shared and forwarded e-mails to Freifeld. Freifeld admitted that she then shared e-mails with Keyes. Buetow determined that e-mails were read over 9,000 times in a matter of just months. Defendants' unfettered access to the entirety of plaintiff's e-mails, subsequently granted them access to private and non-private matters. The trial court appropriately found that there was evidence that defendants read private information from plaintiff's e-mails.
The defendants also claimed they had a right to access and disseminate Latture’s private e-mails.
First, they contend that [Latture] wrongly asserted the privacy rights of her children. Second, they allege that [her] privacy right was voided by the school district's technology policy. . . .
The trial judge found the intrusion was reading any e-mail and accessing garbage. Even if [Latture’s] children's medical information were not considered, there was still evidence of other private matters including communicating with attorneys regarding the lawsuits she was involved in and the private conversations with her sister.
Likewise, the Clio school district's technology policy did not void [Latture’s] claim that she had a right to privacy. The Clio school district e-mail system was a private system that was restricted to use by password holders only.
Defendants were not employees of the school district, were not password holders and did not have permission to access the school e-mail system. [Latture[ maintained a privacy right against third parties, like the defendants, who would not, under any technology policy, be afforded the opportunity to access her e-mails.
Finally, as to the third element, the court found Latture proved that the information was obtained “`through some method objectionable to a reasonable man” because it was “undisputed that defendants illegally accessed the Clio school’s computer system” and “[c]riminal activity is an objectionable method of obtaining information.” Latture v. Emmerling, supra. The Court of Appeals therefore held that the trial judge did not err in denying the defendants’ motion for a directed verdict. Latture v. Emmerling, supra.
The Court of Appeals then took up the intentional infliction of emotional distress claim, which has four elements: “(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.” Latture v. Emmerling, supra. Here, the defendants claimed their motion for directed verdict should have been granted because Latture (i) “did not prove intent or causation” and (ii) her “severe emotional distress was not solely attributable to defendants, but to a variety of other circumstances occurring at the same time.” Latture v. Emmerling, supra.
The Court of Appeals also noted that the trial judge “correctly understood that the claimed extreme and outrageous conduct was actually the infiltration and unprivileged dissemination of [Latture’s] e-mails and the taking of her garbage.” Latture v. Emmerling, supra.
As to intent and causation, the Court of Appeals explained that a plaintiff can prove “intent or recklessness” by (i) showing that the defendant “specifically intended to cause plaintiff emotional distress” or (ii) sowing the defendant’s conduct “was `so reckless that any reasonable person would know emotional distress would result.’” Latture v. Emmerling, supra (quoting Lewis v. LeGrow, 258 Mich. App. 175, 760 N.W.2d 675 (Michigan Court of Appeals 2003)). It then noted that “[d]efendants' admissions to law enforcement and the trial testimony of Reed, are evidence of their motive in accessing and disseminating plaintiff's e-mails”, which means the trial judge did not err in denying the motion for a directed verdict on the intent issue. Latture v. Emmerling, supra.
It also found Latture presented “competent evidence” on the issue of causation; as noted above, witnesses described her “change in demeanor and behavior after the emails were disseminated” and Latture testified about the physical problems she suffered. Latture v. Emmerling, supra. “While there was testimony regarding other possible causes for [Latture’s] distress, this Court will not substitute its judgment for the judgment of the jury when `reasonable jurors could honestly have reached different conclusions.’” Latture v. Emmerling, supra (quoting Silberstein v. Pro–Golf of America, Inc., 278 Mich. App 446, 750 N.W.2d 615 (Michigan Court of Appeals 2008)).
The court therefore found the trial judge did not err on denying a directed verdict on the intentional infliction of emotional distress issue. Latture v. Emmerling, supra. For these and other reasons, the Court of Appeals affirmed the jury’s verdict. Latture v. Emmerling, supra.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
[H] [G], 'provincial government', 'province'.
The producer must sell direct to the consumer.
R. Judah b. Bathyra who allowed profiting in wine because by raising its price, consumption and consequent levity are diminished.
And there was no fear that prices would rise in consequence.
Selling for two shekels, for instance, that which was bought for one.
'Twice' means 'selling to two dealers'. This is forbidden because a double profit is thus made, and prices are raised.
Lit., 'to sound the alarm', by the institution of intercessory prayers with or without the blowing of the shofar.
The falling prices endanger the existence of the trading section of the community.
I.e., a drop of 40%.
Certain precepts can be performed in Palestine only. One should not, therefore, depart from it unless there is no other alternative.
Ruth married Boaz. V. Ruth IV, 13.
One of the judges of Israel. Cf. Judg. XII, 8.
V. p. 376, n. 5.
Manoah, before the birth of Samson, had no children to whose wedding feasts he could extend invitations. Cf. Ibid.
I.e., children that do not survive you.
As Boaz (Ibzan) married Ruth in his later life. Cf. p. 375, n. 6.
David, King of Israel, who descended from Boaz and Ruth. Cf. Ruth IV, 21-22.
This statement in the name of Rab, which can only be intelligible if it is assumed that Boaz and Ibzan are one and the same person, must be read in conjunction with the previous one, also made in the name of Rab.
The mnemonic consists of key words in the following paragraphs.
[H] Peloni Almoni (Ruth IV, 1), the unnamed kinsman of Naomi.
Cf. Ex. VI, 23; Num. X, 14.
As evidenced by the tragic end of Elimelech and his sons.
[H] 'outside the land'. V. p. 375, n. 4.
From Kar, [H] 'lamb', [H] ('Mount of) Nebo'.
V. II Kings, XVII, 24.
Abraham's birthplace. Gen. Xl, 31.
It was the custom for those who came to offer comfort to mourners to stand in a line.
Rabbah b. Bar Hana said in the name of R. Johanan: [This]7 has only been taught [in the case when] money is cheap and fruit is dear, but [when] money is dear, even if four se'ah cost [only] a sela, it is permitted to leave [the country].
For9 R. Johanan said:10 I remember [the time] when four se'ah cost a sela and there were numerous deaths from starvation11 in Tiberias, for want of an isar12 [wherewith to buy bread].
R. Johanan further stated: I remember [the time] when a child would break a carob pod and a line of honey would run down over both his arms. And R. Eleazar said: I remember [a time] when a raven would take [a piece of] flesh, and a line of oil would rundown from the top of the wall to the ground.
R. Johanan further stated: I remember [the time] when lads and lasses of sixteen and seventeen years of age took walks [together] in the open air and did not sin.
[Why] has it been written, Mahlon and Chilion16 [in one place], and Joash and Saraph17 in another?18 — Rab and Samuel [explained]. One said: Their names were Mahlon and Chilion, but they were called Joash and Saraph [for this reason]: Joash,19 because they lost hope in the [messianic] redemption [of Israel;] [and] Saraph,20 because they were condemned by the Omnipresent to be burned. And the other says: Their names were Joash and Saraph, but they were called Mahlon and Chilion [for this reason]: Mahlon,21 because they profaned their bodies; and Chilion,22 because they were condemned by the Omnipresent to destruction.
Our Rabbis taught: [It is written], And ye shall eat of the produce, the old store;38 [that is] without [the necessity for] a preservative.39 What [is the meaning of] 'without salminton'? — R. Nahman said: Without the grain worm. And R. Shesheth said: Without blast. A Baraitha has been taught in agreement with [the interpretation] of R. Shesheth, [and] a Baraitha has been taught in agreement with that of R. Nahman. In agreement with that of R. Nahman it has been taught: [It is written], and ye shall eat … the old store; one might [think that] Israel will be looking out for the new [produce] because the old40 had been destroyed [by the grain worm], therefore it is expressly said, until her produce came in, that is, until the produce will come [naturally] of itself.41 In agreement with that of R. Shesheth, it has been taught: [It is written], And ye shall eat of the produce of the old store; one might [think that] Israel will be looking out for the new [produce] because the old was spoilt42 [by the blast], therefore it is expressly said, until her produce come in, [that is] until the produce will come in the natural course.
This is inferred from the text which in Heb. reads, [H] and which may be rendered as in E.V., supra, as well as, 'through thee is appointed he who is raised as chief over anything'.
That the famine (cf. Ruth I, 1) should cease.
Isa. LVII, 13. By praying for the delivery of others, one is himself delivered.
That one must not leave Palestine.
The mnemonic is an aid to the recollection of the statements of R. Johanan that follow.
Reason for statement in previous para.
This probably means that people were so starved that the odour of the bread baked in the east, and presumably wealthier part of the town, had a fatal effect upon them.
At an unguarded moment they rob him of all he has.
The assumption here is that they are the same two persons.
[H] is taken to be derived from the root [H] 'to give up hope'.
[H] from [H] 'to burn'.
[H] is derived from the root [H] 'profane'.
[H] from [H] 'to destroy'; [H] 'destruction'.
[H] same root as that of [H] 'and Jokim'.
Cf. Josh. IX. 15, 26.
Cf. ibid. vv. 4ff. Lied, [H] from the same root as [H] 'Cozeba'.
V. p. 378, n. 9.
V. p. 378, n. 10.
[H] from the same root as [H] and Jashubi'.
[H] the second word being the same as the second word in [H] 'and Jashubilehem'.
Cf. Dan. VII, 9, 22. The series of events and circumstances, which commenced with the departure of Naomi's family from Palestine and terminated with the birth of David, was pre-ordained by God.
[H] taken to be from a root similar to that of [H] 'the potters'.
[G], the supreme council and highest court of justice in Jewry in Talmudic times.
I.e., Ruth the mother of the dynasty of David. Cf. Ruth, IV, 10, 21-22.
Which had been promised to Israel in the previous section of the verse to last until, but not into, the new harvesting season.
There will be no need to have recourse to an early and forced harvesting.
'spoilt' not 'destroyed'. The grain worm destroys, the blast only spoils the crops.
Lit., 'whatever is older than the other, is better'.
[H] 'old, very old'. The repetition indicates that any old things, even though not usually stored away, are included.
'Ye shall bring forth' implies 'under compulsion'. There will be so much new that no space for the old will remain.

matches: V. V. V. V. V. V.


Plaintiff Dunlop Tire Corporation appeals from an order of the district court denying its motion for a new trial. We reverse and remand.
In February 1997, Dunlop contracted with I.M.E. to rebuild a tire press Dunlop planned to use on a new production line. The contracted delivery date was June 23, 1997. On May 20, I.M.E. notified Dunlop it was anticipating delays in the delivery of necessary parts. Although remaining optimistic that it could complete the project on time, I.M.E. requested a later delivery date. On June 19, Dunlop sent I.M.E. a letter invoking the penalty clause of the contract as of June 27, but giving I.M.E. until July 12 to complete the project.(1) On July 1, 1997, Dunlop terminated the contract in anticipation of I.M.E.'s inability to meet the July 12 completion date. Dunlop obtained possession of the press and hired another company to complete the project.
Dunlop then commenced this action seeking the costs it incurred to have the job completed, as well as liquidated damages. I.M.E. counterclaimed for the work it had completed but for which it was not paid. The case was tried to a jury, which found for I.M.E. Dunlop moved for a new trial on the ground that the jury ignored the overwhelming weight of the evidence and based its verdict on sympathy, prejudice or issues not before it. The court denied the motion and Dunlop appeals.
On appeal, Dunlop argues the district court erred in not granting its motion for a new trial. Dunlop asserts that in order to find for I.M.E., the jury had to determine that Dunlop was the sole cause of I.M.E.'s failure to complete the contract on time. Dunlop maintains the evidence shows that it was not responsible for I.M.E.'s delay.
We review the trial court's denial of a motion for a new trial on the ground that the jury's verdict is against the weight of the evidence for "a manifest abuse of discretion." Blanke v. Alexander, 152 F.3d 1224, 1235 (10th Cir. 1998); see also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433 (1996) (federal trial judge has "discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence."). We will hold that the district court abused its discretion in denying a motion for a new trial where "the verdict is clearly, decidedly, or overwhelmingly against the weight of the evidence." Black v. Hieb's Enter., Inc., 805 F.2d 360, 363 (10th Cir. 1986).
Dunlop claims that it is entitled to damages from I.M.E. due to breach of contract, because I.M.E. failed to deliver the tire press to Dunlop as provided in their agreement. Dunlop further claims that as a result, it cancelled its contract with I.M.E. in accordance with the terms of the agreement.
Dunlop claims that it was justified in cancelling the contract with I.M.E. once it concluded that the Defendant was unable to meet the July 12, 1997 completion date. If you find that Dunlop's conduct was not the sole cause of I.M.E.'s inability to meet the July 12 deadline, and that it was reasonable for Dunlop to conclude that the equipment could not be completed by July 12, then you must find for Dunlop.
Id. at 57 (emphasis added).
I.M.E. claims that it is entitled to damages from Dunlop due to breach of contract. In particular, I.M.E. claims that Dunlop breached the implied covenant of good faith and fair dealing in the contract. . . . This covenant embodies an implicit understanding that neither party will intentionally do anything to prevent the other party from carrying out its part of the agreement.
In this case, I.M.E. claims that Dunlop's conduct was such as to interfere with I.M.E.'s ability to complete the contract in a timely manner. If you find that the [sic] Dunlop's conduct was the sole cause of I.M.E.'s delay, then you must find in favor of I.M.E.
Id. at 56 (emphasis added).
As the emphasized passages in the instructions reflect, Dunlop's cause of action turned on negating the very premise of I.M.E.'s counterclaim, i.e., that Dunlop's conduct was the sole cause of I.M.E.'s inability to perform on time. In light of this overlap, the parties agreed to reverse the usual order of deliberations. Consequently, the jury was instructed that "[b]ecause of the way the law applies to the facts of this case, it is necessary for you to decide I.M.E.'s [counter]claim first." Id. at 55.
Evidence was adduced at trial that, at least facially, supported I.M.E.'s basic allegation that Dunlop had breached the contract. Specifically, Dunlop had been late paying I.M.E. a substantial interim invoice, had been late in providing necessary approval of certain items (though Dunlop offered evidence in excuse of this delay), and had terminated the contract prior to the completion date of July 12. Indeed, this evidence appears to be the focus of the district court's order denying Dunlop's motion for new trial, in which the court stated "that there was sufficient evidence adduced at trial to support the jury's conclusion that Dunlop breached the contract. Therefore, the Court concludes that this is not an exceptional case in which the verdict is clearly, decidedly, or overwhelmingly against the weight of the evidence." Id. at 114.
However, I.M.E.'s counterclaim and defense to Dunlop's cause of action, as outlined in the instructions, clearly required more than a mere breach by Dunlop. I.M.E. had to prove that Dunlop's conduct had been the sole cause of I.M.E.'s failure to complete its performance in a timely manner. On this critical point, even I.M.E. had indicated that its inability to meet the contract completion date was caused, rather, by the delay of several of its vendors in providing necessary parts. Indeed, I.M.E.'s vice president and general manager expressly admitted that no part of the problem it "had in getting the press done was [Dunlop's] fault." Id. at 236.
We therefore conclude that the verdict rendered in favor of I.M.E. was against the overwhelming weight of the evidence. Under the authorities cited above, the denial of Dunlop's motion for new trial should be reversed and the case remanded for a new trial.
I.M.E. attempts to forestall a new trial by arguing that Dunlop waived the evidentiary deficiency (1) by failing to move for judgment as a matter of law at the close of the case, and (2) by approving a verdict form which permitted the jury to find in I.M.E.'s favor on all claims without ever determining whether Dunlop's alleged breach was the sole cause of I.M.E.'s own nonperformance.
With regard to I.M.E.'s first argument, Dunlop's motion for new trial under Fed. R. Civ. P. 59(a) must be distinguished from a post-trial motion for judgment as a matter of law (JMOL) under Fed. R. Civ. P. 50(b). The rules serve different purposes, implicate different substantive standards and standards of review, and involve different procedures. See generally 12 James Wm. Moore et al., Moore's Federal Practice § 59.05 (3d ed. 2000). Most importantly for present concerns, while the failure to move for JMOL at the close of the evidence bars subsequent challenges to its legal sufficiency, there is no such prerequisite to a post-trial motion for new trial on the ground that the jury's verdict is against the weight of the evidence, see, e.g., Ketchum v. Nall, 425 F.2d 242, 243 (10th Cir. 1970); Brown v. Poland, 325 F.2d 984, 985-86 (10th Cir. 1963).
1. Has I.M.E. . . . proven by a preponderance of the evidence that Dunlop . . . breached the contract?"
in the amount of $______.
If you have filled out Number 2, you are finished. Please sign and date this form below. Do not complete Numbers 3 and 4 [which relate to Dunlop's cause of action for breach].
Appellant's App. at 66-67 (italics added for emphasis).
The flaw in I.M.E.'s waiver argument, however, is that verdict forms are not to be viewed in isolation. On the contrary, arguably incomplete verdict forms "must be construed in light of the totality of the surrounding circumstances, including the court's instructions." Putnam Resources v. Pateman, 958 F.2d 448, 455 (1st Cir. 1992); see, e.g., Sanjuan v. IBP, Inc., 160 F.3d 1291, 1301 (10th Cir. 1998); Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1249 (10th Cir. 1998). As explained above, the jury was instructed at length on the elements of the parties' claims and the proper procedure for their resolution. Thus, while the bare-bones verdict form was perhaps inartfully crafted, the overall charge given to the jury properly put before it the "sole cause" issue that was the focus of Dunlop's new trial motion. We therefore reject I.M.E.'s contention that by acquiescing in the verdict form Dunlop somehow waived the deficiency in I.M.E.'s proof on that issue.
1. The district court held that this letter constituted a novation of the contract setting a new delivery date of July 12. Neither party challenges this legal determination.
2. The jury instructions stated: "A contract is breached or broken when a party does not do what it promised to do in the contract. When one party has breached a contract, subsequent failure of the other party to do what it promised under the contract does not constitute a breach." Appellant's App. at 58.
3. As discussed above, we have before us only the question whether the verdict was against the weight of the evidence. "Ordering a new trial is therefore the only relief available on appeal." Walker v. AT&T Techs., 995 F.2d 846, 848 (8th Cir. 1993).