text: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 21, 2017 * Decided December 21, 2017 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 17-2523 IN RE: ANDREW U.D. STRAW, Respondent-Appellant, Appeal from the United States District Court for the Southern District of Indiana. No. 1:17-mc-13-TWP-DKL Tanya Walton Pratt, Judge. ORDER Attorney Andrew Straw appeals a federal district court’s decision declining to reconsider its refusal to end Straw’s disciplinary suspension from the court’s bar. Because the court reasonably concluded that Straw offered it no ground for revisiting its decision to maintain his suspension, we affirm. After notice and an evidentiary hearing, the Indiana Supreme Court disciplined Straw in 2017. It suspended him from the practice of law for at least 180 days because he We have agreed to decide the case without oral argument because the appeal is frivolous. FED. R. APP. P. 34(a)(2)(A). * No. 17-2523 Page 2 brought four frivolous actions in violation of the state’s rules of professional conduct. In re Straw, 68 N.E.3d 1070, 1071, 1073 (Ind. 2017), cert. denied sub nom. Straw v. Indiana Supreme Court, 137 S. Ct. 2309 (2017), reh’g denied, No. 16-1346, 2017 WL 4506877 (U.S. Oct. 10, 2017). It also ordered that Straw not be reinstated until he pays the costs of the state’s proceeding against him, fulfills the duties of a suspended attorney, and satisfies other requirements in the state’s disciplinary rules. Id. These orders prompted the United States District Court for the Southern District of Indiana to order Straw to explain why he should not be suspended from its bar. After receiving Straw’s response, in March 2017 the court ordered reciprocal discipline under Rule II of its Local Rules of Disciplinary Enforcement. The court ruled that “none of [Straw’s] assertions and details substantively addressed a Rule II reason why the court should not reciprocate the Indiana Supreme Court’s disciplinary action.” Rather than appeal, two months later Straw moved the district court to reinstate him. He relied on a decision of the Virginia State Bar Disciplinary Board, which did not reciprocate Indiana’s discipline. The district court denied the motion, explaining that its disciplinary ruling was not affected by Virginia’s. Again Straw did not appeal. Instead, after another two months, Straw asked the district court to reconsider its refusal to reinstate him, reprising his earlier arguments. Relying on its earlier reasoning, the court denied Straw’s motion, prompting this appeal. Although Straw appeals the district judge’s last order, he principally attacks the Indiana Supreme Court’s decision to impose discipline. We do not have jurisdiction to consider these objections because only the United States Supreme Court may review attacks on state-court judgments of attorney discipline. See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Johnson v. Supreme Court of Illinois, 165 F.3d 1140, 1141–42 (7th Cir. 1999). Straw may appeal the district court’s refusal to reconsider its decision not to reinstate him, but his appeal has two fatal problems. The first is the deferential standard of review, which he ignores. By not timely appealing the district court’s order of discipline or its later decision not to reinstate him, but appealing only its refusal to reconsider the latter ruling, we may review only the refusal to reconsider. Straw moved for reconsideration more than 28 days after the district court refused to reinstate him, so that motion was the equivalent of a motion under Rule 60(b) of the Federal Rules of Civil Procedure. See Banks v. Chicago Bd. of Educ., 750 F.3d 663, 666 (7th Cir. 2014). Our review of district court orders denying Rule 60(b) relief is extremely deferential; we will reverse the denial only if the district court abused its discretion. Stoller v. Pure Fishing No. 17-2523 Page 3 Inc., 528 F.3d 478, 480 (7th Cir. 2008). Straw’s motion brought no new issues or facts to the court, let alone any requiring that the court overturn its decision not to reinstate. Therefore the court did not abuse its discretion in declining to reconsider its previous decision. See id. Second, even if we ignore the deferential standard of review, Straw’s argument that the district court must reinstate him is a loser. State disbarment proceedings are entitled to great weight, and federal courts generally should follow them. In re Jafree, 759 F.2d 604, 608 (7th Cir. 1985) (citing Theard v. United States, 354 U.S. 278, 281 (1957)). Federal courts may disregard a state disbarment only if (1) the state procedure lacks notice or an opportunity to be heard, (2) the factual findings are inadequate, or (3) for “some other grave reason.” In re Reinstatement of Leaf, 41 F.3d 281, 283 (7th Cir. 1994) (citing Selling v. Radford, 243 U.S. 46, 50–51 (1917)). (These reasons are almost identical to those listed in Rule II. S.D. Ind. L.R. Disc. Enf. II (D)(1–4).) But these circumstances are absent here. The Indiana Supreme Court conducted an evidentiary hearing, its finding that Straw made frivolous filings is amply supported, and no “grave reason” requires reinstatement. See Straw v. Indiana Supreme Court, 692 F. App’x 291, 292 (7th Cir. 2017); see also Dusenbery v. United States, 534 U.S. 161, 167 (2002). Straw nonetheless contends that because he did not receive a disciplinary hearing in federal court, his discipline is invalid. He invokes our statement that a law license “can be viewed as a type of new property, the deprivation of which has drastic consequences to the individual,” to argue that a deprivation must be preceded by a hearing. In re Ming, 469 F.2d 1352, 1355–56 (7th Cir. 1972) (internal quotation marks and citations omitted). But in Ming the district court revoked Ming’s federal law license without any hearing. Id. at 1353. Straw, by contrast, received a hearing in state court and a show-cause order in the district court. Although Straw boycotted the state hearing, that does not entitle him to second chance in federal court. See In re Palmisano, 70 F.3d 483, 486 (7th Cir. 1995); Jafree, 759 F.2d at 609. Straw also points to the Virginia State Bar Disciplinary Board’s decision not to reciprocate Indiana’s discipline. That Board ruled that his “conduct was not conduct that would have resulted in disciplinary action in the Commonwealth of Virginia” largely because no client filed a complaint against him and he was never sanctioned by federal courts. But just because one jurisdiction may decline to reciprocate the discipline of another jurisdiction does not mean that all jurisdictions must do so. Filing frivolous lawsuits is sanctionable, see FED. R. CIV. P. 11(b)(2), (c); FED. R. APP. P. 38, and in our circuit it invites reciprocal discipline. See, e.g., Jafree, 759 F.2d at 605–08. No. 17-2523 Page 4 Before we end this appeal, we briefly address procedural matters that Straw has raised. Straw frivolously moved to recuse all judges of this court from hearing his appeal on the ground that, because we have previously ruled against him and taken other administrative action, we are biased. But unfavorable decisions do not warrant recusal or even “hint at bias.” See Khor Chin Lim v. Courtcall Inc., 683 F.3d 378, 380 (7th Cir. 2012). We also have considered Straw’s other filings and motions on appeal, but none warrants any discussion or action. To the extent that these filings are motions, they are denied. AFFIRMED.

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Psalm 31 is a personal lament, a cry for deliverance from enemies and affliction. It is attributed to David, along with most of the psalms in the first book of Psalms, Pss 1-41, though we do not know its origin in detail, nor its precise date. Many of the psalms were collected as part of the oral tradition of Israel’s worship over the centuries, first into smaller collections, and then only brought together into the larger collection we now know very late in Old Testament times. It is presumed the psalms were used in the worshipping community as part of temple services and private devotions, and were often set to music (though this psalm does not specify a tune as some possibly do).
In v. 1, the psalmist seeks refuge in the Lord, and prays not to be put to shame. The writer appeals to God’s righteousness, which contrasts with the wickedness of the adversaries. While in v. 1 the psalmist approaches God, in v. 2, the writer asks God to incline and to rescue them. The psalmist uses the metaphors of a rock of refuge and that of a strong fortress in which he can shelter. The theology of the psalmist echoes the sentiment that we can draw near to God (only) as God draws near to us.
In v. 3, the psalmist spells out that God is indeed a rock and fortress. They appeal to God’s good name in calling for God to lead and guide, to deliver from the hidden net set for them. This is in keeping with much of the prophetic spirit in Israel, that saw the fortunes of God’s people reflecting on the honour of God and God’s good name. It is an appeal for God to save, lest those around the psalmist conclude that God is not responsive or caring. Similar sentiments were included in Psalm 23 last week.
In v. 5, the psalmist commends their spirit to God in the words echoed by Christ on the cross, “Into your hand I commit my spirit”. In the following portion of this verse (not quoted by Christ, but perhaps implied in the first statement), the psalmist is thankful for the faithful deliverance God has shown.
The verses chosen for the lectionary reading skip over the main body of the psalm, which includes a recitation of the psalmist’s woes and a graphic account of their fear over the scheming of enemies. The poetry is moving, but general enough in its images that people with a variety of laments might make this prayer their own.
In v. 15 the lectionary again takes up the psalm with the affirmation, “My times are in your hand,” an acknowledgement that the psalmist’s life rests with God. They then pray, “deliver me from the hand of my enemies and persecutors,” a cry for deliverance. In v. 16, the psalmist asks for a sense of God’s presence, “let your face shine upon your servant,” and again for deliverance, “save me in your steadfast love.” This is an appeal to God’s hesed, God’s longsuffering care (‘loyalty’ etc.), for the people.
The theology of this psalm implies that God is responsive to those who call upon God, that it is in God’s nature to deliver and save God’s people when they are afflicted by illness or enemies, and to hear them when they cry. There is a quiet confidence in God’s love and willingness to help that is at the heart of faith. The assurance that in God, the person of faith may find refuge accords well with the gospel of the day, in which Jesus encourages his followers to believe in God, who has prepared a place for them (John 14). Our celebration of the resurrection of Jesus in this Easter season, by no means leaves behind the turmoil and troubles of this life. All now are seen, and prayed about, in the context of the promise and power of God seen in the resurrection of Jesus.
you have redeemed us, O Lord, faithful God.
Blessed be the Lord, who has wondrously shown steadfast love to you.
The Lord has heard your supplications when you cried out for help.
The Lord preserves the faithful.

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The starting point for achieving a broad claim construction is a well written application, the use of non-limiting traversal of adverse patent office assertions, and avoiding unnecessary amendments during prosecution. Despite these efforts, if disclaimers were nonetheless made during the prosecution of a patent application, scope-limiting estoppel is created. See e.g., Omega Eng’g Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). When one or more continuation or divisional applications are subsequently filed, as is often the case, the scope-limiting estoppel may similarly effect those related children applications. See e.g., Microsoft Corp. v. Multi-Tech Systems, Inc., 357 F.3d 1340, 1349 (Fed. Cir. 2004). This may be true even if the claims of children applications are broader than those of parent applications. To avoid the cascade of disclaimer and estoppel from parent to child applications, affirmative rescission of the disclaimer can be utilized to recapture the disclaimed subject matter.
Guidance for affirmative rescission was provided by the Federal Circuit in Hakim v. Cannon Avent Group, PLC, when it noted that, “a disclaimer made during prosecution can be rescinded, permitting recapture of the disclaimed scope.” 479 F.3d 1313, 1318 (Fed. Cir. 2007). But in finding that Hakim had failed in its attempt to rescind, the Federal Circuit cautioned that “the prosecution history must be sufficiently clear to inform the examiner that the previous disclaimer, and the prior art that it was to avoid, may need to be revisited.” Id.
What constitutes “sufficiently clear” has not been specifically delineated. InHakim the Federal Circuit found that Hakim’s failure to “specifically point out that he no longer intended to be limited to the specific mechanism that he had previously argued was the distinguishing feature of his invention,” was insufficient to effectuate a rescission. Id. at 1317.
To the extent any amendments, characterizations, or other assertions previously made (in this or in any related patent applications or patents, including any parent, sibling, or child) with respect to any art, prior or otherwise, could be construed as a disclaimer of any subject matter supported by the present disclosure of this application, Applicant hereby rescinds and retracts such disclaimer. Applicant also respectfully submits that any prior art previously considered in any related patent applications or patents, including any parent, sibling, or child, may need to be re-visited.
Based on Hakim, such a recapture statement appears to satisfy the shortcomings highlighted by the Federal Circuit in finding no effective rescission. See Hakim, 479 F.3d at 1317-1318 (holding that “re-filing the application with broader claims … [and] inform[ing] the examiner that the new claims were broader than those previously allowed” was inadequate for proper disavowal).
This recapture statement could be made in any communication to the patent office, but should be made as early as possible, preferably at the outset of prosecution. Importantly, in filing such a statement one should also be mindful of timing because of potential patent term adjustment pitfalls related to 37 C.F.R. §1.704. Specifically, patent term may be cut short if these recapture statements are filed with a preliminary paper less than one month before the mailing of an Office Action (see 37 C.F.R. §1.704 (c)(6)) or if filed as a supplemental reply (see 37 C.F.R. §1.704 (c)(8).
Such rescission might also be effective against statements made during litigation that are cited to the patent office. For example, in Golden Bridge Technology, Inc. v. Apple Inc., 758 F.3d 1362 (Fed. Cir. 2014), the patentee cited a stipulated claim construction (previously framed during related litigation) as part of an information disclosure statement. CitingHakim, the Federal Circuit held that that without making a disavowal sufficiently clear to the Office, submitting a stipulated construction in an information disclosure statement constitutes clear and unmistakable disclaimer of broader claim scope. See id. at 1366 (where patentees’ failure to affirmatively rescind the disclaimer in the stipulated construction effectively precluded them from obtaining broader claim scope). Accordingly, the filing of a clear and unmistakable recapture statement, as set forth above, might have altered the court’s ruling.
In short, while carefully choosing what to say and what not say is paramount to a broad claim construction, failing to implement a strategy that considers the effects of submitting (or not submitting) an affirmative rescission of disclaimer can have a profound impact on claim construction, and thus effective enforcement of an issued patent.

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This set of Rules (referred to hereafter as „Rules”) defines general terms of sale for cosmetic, chemical and sports goods (referred to hereafter as “Products”) through the internet shop operated at http://mrssystem.com (referred to hereafter as “Shop”).
The Shop is operated by Bike on Wax Polska Sp. z o.o. seated at ul. M. Wańkowicza 62/12, 54-622 Wrocław, a limited company registered at the National Court Registry of Poland by Regional Court in Wrocław Fabryczna, VI Economic Unit of KRS, under the KRS number of 0000580609, with VAT ID number NIP 894-306-76-02, commercial registry number REGON 362751697, starting capital of 5000 PLN, referred to hereafter as “Operator”.
Purchases at the mrssystem.com Shop can be made by legal entities, organizations and individuals with full legal capacity (all referred to herafter as “Customers”).
The Rules define ways of using the mrssystem.comShop, placing orders for products offered, shipping ordered products to Customers, payments for the purchased goods, order and sale agreement cancellation options and the terms for warranty claims and product returns.
Products shown in the Shop are protected by law as intellectual property and cannot be copied (Industrial Ownership Law, as published by the Polish Daily Law Registry: Dz.U. Nr 119 z 2003 r. poz. 1117).
Images and logos visible at mrssystem.com are legally protected as per the Copyright Act (Polish Daily Law Registry: Dz.U.2006.90.631 dated 2006.05.31) and Industrial Ownership Law (Dz.U.2013.1410 dated 2013.11.29).
Product details and descriptions do not constitute a comercial offer as defined by the Polish Civil Code.
Producs sold at the mrssystem.com Shop are cosmetics and sports accessories and are not suitable for children. Adult supervision is required for a child during any physical contact with these products.
The mrssystem.com Shop sells cosmetics and sports accessories and is not liable for any health deterioration or damages caused by inappropriate use of the products.
The Customer is required to read and accept this set of Rules prior to placing an order at the internet Shop.
This internet Shop accepts orders placed within the territory of Poland.
All prices shown by the mrssystem.com Shop are in Polish zloty and include VAT. Prices do NOT include the cost of shipping.
Shipping and delivery costs for each order are shown individually prior to confirming the order by the Customer and are then included in the total amount due. The total amount due includes the sale price and all shipping/delivery costs.
The Customer places an order by filling out an order form with details such as product names, invoicing information, full delivery address, recipient’s telephone and email address, method of payment, mode of delivery – and sends the form by clicking “Confirm”.
By filling out and sending the order form the Customer places an offer to conclude a purchase agreement, as defined by the Polish Civil Code.
Each order sent to the mrssystem.com Shop is confirmed by the Shop’s customer service via electronic mail sent to the email address quoted in the order form by the Customer. Order confirmation is considered to be the Shop’s acceptance of the offer described in § 2, point 6 above.
The order will not be processed if the order form contains incomplete or incorrect information.
A weekday is any day from Monday unti Friday, except days declared as public or bank holidays.
Orders are shipped the same day if placed before 12:00. Orders placed after 12:00 may be shipped the next weekday, no later than 24 hours after the order has been placed.
Delivery of orders paid for by bank transfer or cash-on-delivery is made within 2 weekdays from the first weekday after the order date.
Advance payment with a debit/credit card (Visa, MasterCard, Maestro) or an online bank transfer is made via the online payments service Przelewy24.pl, offered by DialCom24 Sp. z o.o., a limited company seated at ul. Kanclerska 15, 60-327 Poznań, registered under KRS number 0000306513, regulated by the Rules available at http://www.przelewy24.pl/regulamin. Card payments are processed by PayPro SA Agent Rozliczeniowy, ul. Kanclerska 15, 60-327 Poznań, registered at the National Court Registry by Regional Court of Poznań – Nowe Miasto i Wilda in Poznań, VIII Economic Unit of the KRS under the KRS number 0000347935, VAT number NIP 7792369887, Regon 301345068.
Product shipping and delivery costs are borne by the buyer.
Every Customer placing an order will receive a receipt or a VAT invoice, either of which is a legal proof of purchase and can be later used as the basis for warranty claims or returns.
The mrssystem.com Shop reserves the right to extend the processing time of orders for large quantities of a product. The Customer will be informed about the change by electronic mail or telephone.
The Shop is not responsible for orders not processed due to circumstances beyond the Shop Operator’s control. In case an order cannot be accepted and processed, the Customer will be notified immediately.
The Shop will do its utmost to present the most up to date pricing at mrssystem.com and to provide continuous product availability. In case of a price change by an ordered product manufacturer prior to order being processed, or if the ordered product is temporarily unavailable, the Shop will immediately inform the Customer who has the right to cancel the order, as stipulated in § 3 art. 1 of the Rules.
Ordered products are delivered to the address given in the order form as indicated by the Customer.
As per art. 27 of the Consumer Rigths Bill dated 30.05.2014 (Dz. U. 2014 r. poz. 827) the Customer, who as a Consumer concluded a distance contract with an internet shop, has an unconditional right to cancel this contract within 14 days without giving a reason to do so. As per art. 221 of the Polish civil Code, a Consumer is any individual conducting a legal transaction with a company, not related to its trade or professional activities.
The 14-day cancellation period starts from the day the product was delivered to the Consumer or to the person authorized by the Consumer, other than the delivering agent. In case of orders for multiple products, delivered partially or in parts, the cancellation period starts from the day the Consumer, or the person authorized by the Consumer, other than the delivering agent, took delivery of the last product, part or portion of the order. In case of orders being delivered regularly for a defined period of time, the cancellation period starts from the day of the first part’s delivery.
The Consumer can cancel the agreement by submitting a declaration of withdrawal to the Seller (Shop).
In case of agreement cancellation, the agreement is considered null and void. If the Consumer had submitted a declaration of withdrawal before the Seller accepted the offer to purchase, the offer is no longer binding.
In case of agreement cancellation the Consumer is required to return the product immediately, no later than 14 days from the date of informing the Shop about the cancellation.
The goods must be securely placed in their original packaging along with all accessories and fiscal receipts or VAT invoice received by the Customer and shipped to Customer Service at: Bike on Wax Polska Sp. z o.o. , ul. Szeroka 62, 55-010 Radwanice, Poland. The Customer is liable for any decrease in value of the product resulting from its use in ways other than necessary to verify the product’s attributes and functionality.
The internet shop will refund the Customer, as stated in art. 1 above, the amount equal to the sale price, not including the cost of return shipment which means the Customer pays the costs of returning the product to the Seller.
The right to withdraw from the agreement does not apply to agreements covering a delivery of sealed package goods which cannot be returned after unpacking due to potential health hazards or for hygienic reasons. Art. 38 of the Consumer Rights Act (Dz.U.2014.827 dated 2014.06.24) also lists other exclusions from the right to withdraw.
All goods available at the Shop are covered by warranty claims.
Bike on Wax Polska Sp. z o.o. is required to deliver the product free from physical and legal defects. The scope of the Shop’s responsibility to the Customer, in case a sold product is physically or legally defective (warranty), is defined by general law, in particular by the Polish Civil Code, art. 556 and subsequent articles.
All products available at the internet shop are properly transported and stored. Claims related to mechanical damages created during transport will be processed only if the product has been inspected in the presence of the courier company’s representative. Such a claim will only be accepted if accompanied by a written damage protocol signed by the courier’s representative and mailed to the internet shop’s address: sklep@mrssystem.com. Inspecting the package for transport damages immediately after delivery and informing the courier of any damages to the goods is necessary for any transport damages claim to be considered in favour of the Customer.
The product to be returned must be securely placed in its original packaging along with all accessories and shipped to: Bike on Wax Polska Sp. z o.o. , ul. Szeroka 62, 55-010 Radwanice, Poland.We recommend to include the following information in the claim: Customer name and last name, postal address and email address, the date of purchase, type of product, exact description of the defect and the date it was detected, description of the claim and the desired way of return contact. Proof of purchase must be included with the claim.
The Seller will consider the claim immediately, no later than within 14 calendar days from the date of the claim’s receipt. No answer given by the Seller during this period means the Seller has accepted the claim.
Excluded from potential claims are defects and damages resulting from Customer’s actions, e.g. improper unpacking, mechanical damages, improper use of the product.
All costs related to unwarranted claims are borne by the Customer.
Refunds for returned products are made to the bank account indicated by the Customer or as a money transfer to the address given by the Customer.
The mrssystem.com Shop is not responsible for lost or misplaced packages shipped by the Customer as part of the product return/claim process. In such cases complaints must be submitted directly to the courier/delivery company. For those reasons we recommend the Customer insures the package prior to sending it.
The Customer may have the purchased product replaced with another (difference in price will be accounted for). In that case the Customer pays the delivery costs in both directions.
Product replacement can be made within 14 days of the date of its receipt.
The product to be replaced must be securely placed in its original packaging along with all accessories and the VAT invoice or fiscal receipt included with it and shipped to Customer Service, Bike on Wax Polska Sp. z o.o. , ul. Szeroka 62, 55-010 Radwanice, Poland.
Product replacement costs are borne by the Customer.
The www.mrssystem.com Shop is not responsible for lost or misplaced packages shipped by the Customer as part of the product return/claim process. In such cases complaints must be submitted directly to the courier/delivery company. For those reasons we recommend the Customer insures the package prior to sending it.
Placing an order is equivalent to an agreement for the storing and processing of personal data by Bike on Wax Polska Sp. z o.o. seated at ul. M. Wańkowicza 62/12, 54-622 Wrocław, a limited company registered at the National Court Registry of Poland by Regional Court in Wrocław Fabryczna, VI Economic Unit of KRS, under the KRS number of 0000580609, with VAT ID number NIP 894-306-76-02, commercial registry number REGON 362751697, starting capital of 5000 PLN.
Personal data given by the Buyers during the order placement proces are processed only for the purpose of executing the order.
The Customer has the right to access, view and modify his/her personal data.
Placing an order means accepting the above terms.
The mrssystem.com Shop reserves the right to change the rules described in this document. The changes will not affect orders placed prior to any such change. The change of Rules comes into effect as indicated by the Shop, however no earlier than 14 days from the date it was published on the internet shop’s pages.
The mrssystem.com Shop reserves the right to change prices of the products displayed by the internet shop. The changes will not affect orders placed prior to any such change.
Any disputes not covered by the Rules will be considered under the Polish Law, in particular the Polish Civil Code dated 23.04.1964 (Dz. U. 2014, art. 121 with modifications) and in case of Consumers also the Consumer Rights Act dated 30.04.2014 (DZ. U. z 2014 r., poz. 827).
The Rules described in this document come into effect the 11th of May, 2016.


JASON WILLIAMS, et al., On behalf of themselves and others similarly situated Plaintiffs, v. ezSTORAGE CORP. Defendant.
Plaintiffs Jason Williams, Todd Williams, John McDonald, Edward Stokes, David Armentrout, Jr., and Stacie Armentrout (collectively 'Plaintiffs"), on behalf of themselves and those similarly situated, filed a one count complaint (ECF No. 1) against their former employer ezStorage Corporation ("ezStorage" or "Defendant") for alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Presendy pending is the Plaintiffs' Motion for Leave to File First Amended Complaint (ECF No. 56). During a teleconference conducted on November 10, 2011, this Court indicated that the Plaintiffs' motion would be granted so as to allow the parties to take the First Amended Complaint into consideration in the case scheduling. This Memorandum Order formalizes this Court's previous statements, and for the reasons that follow, the Plaintiffs' Motion for Leave to Amend (ECF No. 56) will be GRANTED.
Federal Rule of Civil Procedure 15(a), provides that leave to amend "shall be freely given when justice so requires," and the general rule is that Rule 15(a) be liberally construed. See Forwan v. Davis, 371 U.S. 178, 182 (1962). Accordingly, leave should be denied only when amending the complaint would prejudice the opposing party, reward bad faith on the part of the moving party, or would amount to futility. Steinburg v. Chesterfield Cnty. Planning Comm'n, 527 "F.3d 377, 390 (4th Cir. 2008).
The background facts of this case were described in this Court's Memorandum Opinion of April 21, 2011 (ECF No. 22) and will not be reiterated here. Breifly, the Plaintiffs seek leave to amend their Complaint in order to formally add some thirty opt-in Plaintiffs as named Plaintiffs in this case, to add a claim under the Maryland Wage and Hour Law, and in order to "more clearly allege that scope to the systemic overtime violations at issue in this case." Pis.' Mem. at 2, ECF No. 56-1.
The original Complaint was filed on November 26, 2010, and on April 21, 2011, this Court conditionally certified this case as a collective action and approved a notice to putative opt-in plaintiffs. See Memorandum Opinion and Order, ECF Nos. 22 & 23.
In their original Motion to Amend, the Plaintiffs also sought; to add some additional corporate defendants—however, in their Reply to the Defendant's Opposition, the Plaintiffs have agreed not to add the additional corporate defendants, and the issue is now moot. See Pls.' Reply at 2, ECF No. 59. The Plaintiffs have made the appropriate revisions to their proposed First Amended Complaint, and the operative Complaint in this case will be the version attached as Exhibit 1 to the Plaintiffs' Reply (ECF No. 59-1).
The Defendant does not argue that amendment would be prejudicial, or that it would reward bad faith on the part of the Plaintiffs. Instead, the Defendant only argues that formal amendment is unnecessary insofar as courts do not generally require that opt-in plaintiffs be added as named plaintiffs. The Defendant also make a futility argument—essentially, that should it file a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), that motion would be granted, and the amendment would have been futile. On this point, the Defendant notes that it "reserves the right to actually file a motion to dismiss under Rule 12 with more complete and thorough arguments with respect to the grounds articulated in this memorandum." Def.'s Opp'n at 3, ECF No. 57. This Court finds the Defendant's futility argument unavailing and improperly presented. To the extent the Defendant does file a Rule 12(b)(6) motion to dismiss that contains "more complete and thorough arguments," this Court will consider that motion. Accordingly, this Court will briefly discuss the necessity of amendment to add opt-in Plaintiffs to the Complaint, and the Plaintiffs' other arguments for amendment.
Section 216(b) is phrased in the negative, i.e. no individual may2 be a party plaintiff to a collective action unless he or she files a written consent with the court; the act of filing a written consent alone does not automatically join an individual to a lawsuit. Rather, Section 216(b) operates in conjunction with Rule 8 of the Federal Rules -of Civil Procedure and requires the employee to name the individual plaintiff and allege his or her cause of action in the complaint and that individual plaintiff must file a written consent with the court.... The filing of a written consent in and of itself is insufficient to join this lawsuit.
Harkins v. Riverboat Servs., Inc., No. 99 C 123, 2002 WL 32406581, at *2 (N.D. 111. May 17, 2002) (emphasis added); see also Becker v. Southern Soils, No. 6:06-cv-Orl-28JGG, 2006 WL 3359687, at *n.l(M.D. Fla. Nov. 20, 2006) ("The filing of a consent to join in the litigation does not operate as an automatic joinder in the action or amendment of the complaint. Rather, the consent filed pursuant to 29 U.S.C. § 216(b) must be read in conjunction with Fed. R. Civ. P. 8.") (citing Harkins, 2002 WL 32406581, at *2).
In considering this issue, this Court need not determine conclusively whether amendment of the Complaint to add opt-in plaintiffs is necessary insofar as the Plaintiffs in this case have advanced other revisions to the original Complaint. Specifically, the Plaintiffs seek to add a claim under the Maryland Wage and Hour Law. That claim, according to the Plaintiffs, arises out of the same facts and circumstances as the FLSA claims already propounded. Moreover, the Plaintiffs seek to clarify some of the claims made in the original Complaint. Therefore, in accordance with Federal Rule of Civil Procedure 15(a)'s pronouncement that leave to amend "shall be freely given when justice so requires," this Court, consistent with its previous statements on November 10, 2011, will grant the Plaintiffs' Motion for Leave to File First Amended Complaint.
3. The Clerk of the Court transmit copies of this Memorandum Order to counsel.


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When you meet Ed, you will understand how he has built so many long-term, loyal relationships with clients. From the start, you notice that Ed has a creative approach with a unique angle of vision. He is focused on the issues at hand, but also attentive to long-term goals, professional standing, and the values and reputation associated with your brand and products.Ed has an exceptional record of accomplishment in and out of the courtroom and is a well-respected litigator. Feedback from his clients often includes accolades related to his meticulous preparation, direct and honest communication, artful problem solving, and collaborative efforts involving his clients and team of experts. Ed delivers both value and results.
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In our judgment, plaintiffs' counsel should take an offensive posture with regard to nonparty defenses that are asserted by defendants and aggressively seek to force defense counsel to properly identify nonparties in a timely manner and move to strike inappropriate nonparty defenses.
The nonparty defense is a powerful tool because the claimant loses the percentage of his/her damages that equals any percentage of fault that is attributed to a nonparty. Therefore, defendants search for individuals and entities to name as nonparties to reduce their liability to a plaintiff. Defense counsel frequently name nonparties whose legal liability to the plaintiff is marginal (or nonexistent) and whose percentage of fault is small at best. Once a defendant pleads a nonparty defense, the plaintiff is then put in the position of making a tactical decision as to whether to add the nonparty as a defendant in the case.
I.C. 34-4-33-10(b) provides that the burden of proving a nonparty defense rests with the defendant, who must affirmatively plead the defense. If the plaintiff adds the nonparty as a defendant in the case, the plaintiff then bears the burden of proof with regard to that party's fault. Therefore, if a nonparty's fault is slight and/or the nonparty's liability is marginal, plaintiff's counsel may decide that the better strategy is not to sue the nonparty. The purpose of this article is to suggest steps that should be taken to identify nonparty defenses, determine whether asserted nonparty defenses are valid, and to eliminate invalid nonparty defenses from a case.
In view of I.C. 34-4-33-10(c), plaintiffs counsel should generally file suit at least 150 days prior to the expiration of the applicable statute of limitations. However, that is not always possible -- as in the situation where the plaintiff does not hire counsel until shortly before the expiration of the statute of limitiations. In addition, there are situations in which defendants name nonparties who plaintiff's counsel decides to sue, who then name other nonparties less than 150 days prior to the expiration of the statute of limitations. In such situations, pursuant to I.C. 34-4-33-10(c), plaintiff's counsel should ask the court to alter the time limitations for pleading nonparty defenses.
1. The incident out of which this lawsuit arises was a motor vehicle crash in which the Plaintiff and Defendant were involved on October 24, 1994. The Plaintiff is making a claim for personal injuries which she sustained in that crash.
2. Pursuant to I.C. 34-1-2-2, the applicable statute of limitations relative to the Plaintiff's claim is two (2) years after the date of the crash. Therefore, the statute of limitations expires on October 24, 1996.
3. The Plaintiff initiated this case by filing her Complaint for Damages against the Defendant on July 31, 1996.
4. Defense counsel entered an Appearance on behalf of the Defendant and filed a Motion for Extension of Time to answer the Plaintiff's Complaint and the Interrogatories which were filed simultaneously with the Plaintiff's Complaint, requesting that the Defendant be given until October 7, 1996 to file an Answer to the Plaintiff's Complaint and to answer the Interrogatories propounded by the Plaintiff.
(2) giving the claimant a reasonable opportunity to add the nonparty as an additional defendant to the action before the expiration of the period of limitation applicable to the claim.
6. The Plaintiff believes that this crash has been fully investigated by representatives of the Defendant. Thus, the facts of the crash are known to all parties.
7. If requested by defense counsel, the Plaintiff will make herself available for deposition prior to October 7, 1996, the date on which the Defendant's Answer to the Plaintiff's Complaint is due.
8. The Plaintiff requests that the Court alter the time limitations contained in I.C. 34-4-33-10(c) and issue an Order, requiring the Defendant to plead any nonparty defenses within the enlargement of time that has been granted to her to answer the Plaintiff's Complaint (i.e., October 7, 1996), in order to permit the Plaintiff to add any named nonparties as additional Defendants in this action prior to the expiration of the statute of limitiations.
WHEREFORE, the Plaintiff prays that the Court order the Defendant to plead any nonparty defenses within the enlarement of time granted to her to answer the Plaintiff's Complaint (i.e., October 7, 1996), and for all other just and proper relief in the premises.
Comes now the Plaintiff, Susan Clark, by counsel, and having filed her Petiton To Alter Time Limitations For Pleading Nonparty Defenses, and the Court being duly advised in the premises, now finds that said Petition should be, and hereby is, GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the time limitations set out in I.C. 34-4-33-10(c) are altered in order to allow the Plaintiff to add any nonparties named by the Defendant as additional Defendants in this action prior to the expiration of the statute of limitations. The Defedant is therefore ordered to plead any nonparty defenses within the enlargement of time granted to her to answer the Plaintiff's Complaint for Damages (i.e., October 7, 1996). The plainitff shall be entitled to join any nonparties named by the Defendant by amending her Complaint.
SO ORDERED this ________ day of September, 1996.
Another tactic employed by defense counsel is to allege in an Answer to a Plaintiff's Complaint that "Plaintiff's alleged damages, if any, were caused in full or in part by a nonparty" or that or that "the Defendant reserves the right to name nonparties who caused or contributed to cause the Plaintiff's alleged injuries and damages when such nonparties are identified." Plaintiffs counsel should take affirmative action to combat such tactics -- by forcing defense counsel to disclose the name of any nonparties or forfeit the nonparty defense.
Indiana's Comparative Fault Statute clearly requires that nonparties be specifically identified by proper name. A generic identification is not sufficient.
(2) the amount of the verdict against each defendant.
In Cornell v. Harbison Excavating, Inc.(5), the Indiana Supreme Court held that a Defendant pleading a nonparty defense under Indiana's Comparative Fault Act must specifically name the nonparty. In addition, the Court held that a motion to strike is the appropriate mechanism for challenging a nonparty defense that fails to specifically name an alleged nonparty.
In Cornell, the Plaintiffs sued an excavating company, alleging that it had been negligent in the storage of drainage and sewer pipe which the Plaintiffs' vehicle struck when it swerved into a ditch to avoid hitting a dog that had run into the roadway. In its Answer to the Plaintiffs' Complaint, the excavating company named "the unknown owner of the dog" as a nonparty. The Plaintiffs filed a motion to strike that nonparty defense, asserting that in order to constitute a valid nonparty defense, the nonparty must be specifically named. The trial court granted the Plaintiffs' motion to strike and the Defendant appealed. Both the Indiana Court of Appeals and Supreme Court affirmed the trial court's ruling.
Legislative intent is foremost in construing any statute. Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind.L.Rev. 903, 924. These statutes as presently written, coupled with their legislative history, clearly evidence the legislature's intent to place the burden of pleading and proving the specific name of the nonparty on the defendant. Thus, by clear implication, the legislature intended that a claimant's recovery is not to be diminished by the percentage of fault of unidentified nonparties.
The thrust of the amendment [the present Ind.Code Sec. 34-4-33-5(a)(1)] is that in order for a culpable nonparty to be assigned fault by the trier of fact, such person must be subject to liability by civil action. Id. This amendment illustrates the legislature's intention that a culpable nonparty cannot be assigned fault unless the nonparty is subject to civil liability in some forum. Id. An unidentified nonparty is not subject to liability.
In Eilbacher, supra, the writer commented on our Act, opining, "[i]f defendant seeks to diminish his own contribution to damages by proof of fault of the nonparty, the defendant should offer the name of the nonparty tortfeasor. The Act sacrificed a true apportionment of damages among all tortfeasors in favor of maximizing recovery by the injured plaintiff where the nonparty cannot be identified." Id. 530 N.E.2d at 773.
We concur with this view. Moreover, the plain meaning and clear language of section 6 unmistakenly require the disclosure of "the name of the nonparty", not merely a generic identification. To hold otherwise would render meaningless the express statutory language.
"Plaintiff's alleged damages, if any, were caused in full or in part by a nonparty."
Don, I have a problem with this defense in that it does not specifically identify a nonparty by name. As you know, under Indiana's Comparative Fault Act, a defendant is required to disclose the name of any alleged nonparty, rather than merely giving a generic identification. I enclose a copy of the Indiana Supreme Court's decision in Cornell Harbison Excavating, Inc. v. May (1989), Ind., 546 N,E.2d 1186, for your reference in this regard.
As you are aware, the Court signed an Order on August 5, 1996, requiring the Defendant to name any nonparties on or before September 17, 1996. The purpose of that Order is to permit the Plaintiff to add (should it be appropriate) any nonparties as Defendants before the statute of limitations expires on October 7, 1996. However, the nonparty defense that you have asserted does not permit us to do that.
Please inform us immediately as to whether there are any actual nonparties in this matter. If there are no actual nonparties, please withdraw your nonparty defense before the expiration of the statute of limitations.
"6. The Plaintiff's alleged damages, if any, were caused in full or in part by a nonparty."
The basis for this Motion is that the Defendant has failed to disclose the proper name of the nonparty as required by I.C. 34-4-33-6 and the Indiana Supreme Court's holding in Cornell Harbison Excavating, Inc. v. May (1989), Ind., 546 N.E.2d 1186.
In Cornell v. Harbison Excavating, Inc.(7), the Indiana Supreme Court held that a Defendant pleading a nonparty defense under Indiana's Comparative Fault Act must specifically name the nonparty. In addition, the Court held that a motion to strike is the appropriate mechanism for challenging a nonparty defense that fails to specifically name an alleged nonparty.
We likewise concur with the determination of the Court of Appeals that a motion to strike pursuant to Ind.Trial Rule 12(F) was an appropriate mechanism to question a nonparty defense that failed to specifically name the alleged nonparty. 546 N.E.2d 1186, 1187.
In Kveton v. Siade (1990), Ind.App., 562 N.E.2d 461, Allan Kveton made a claim for personal injuries which he sustained in an automobile collision with the Defendant. At the time of the crash, the Defendant was attempting to turn north onto Main Street in Elkhart, Indiana, from a private driveway. To do so, she had to make a left turn and cross two lanes of southbound traffic. According to the Defendant, a man driving a green pick-up truck approached in the right southbound lane and stopped to allow her room to cross the southbound lanes in front of him. He then looked to his left to check for traffic approaching behind him, turned back, smiled, and motioned for the Defendant to proceed. When the Defendant pulled out onto Main Street, she collided with the Plaintiff's car in the left southbound lane.
By directing the jury's attention to the unnamed nonparty's actions and telling them that they might consider whether such actions were the proximate cause of the collision, the court was necessarily inviting them to determine the fault of an unnamed nonparty. That is precisely what the statute, as interpreted by Cornell Harbison, forbids. 562 N.E.2d 461, 464.
In the present case, the attempted naming of a nonparty by a generic identification only is improper and the nonparty defense asserted in the Defendant's Answer to the Plaintiff's Complaint should be striken.
Comes now the Plaintiff, by counsel, and having filed her Motion To Strike Nonparty Defense, and the Court being duly advised in the premises, now finds that said Motion should be and hereby is GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the nonparty defense asserted in rhetorical paragraph 6 of the Defendant's Answer, to wit: "Plaintiff's alledged damages, if any, were caused in full or in part by a nonparty", is hereby striken, and the jury will not be permitted to consider the fault of any nonparties in this case.
Comes now the Plaintiff, Steven Barnes, by counsel, and pursuant to Trial Rule 33 of the Indiana Rules of Trial Procedure, tenders the following Interrogatories to the Defendant, Richard Rhoades, to be answered under oath, fully and without evasion, within thirty (30) days.
e. The percentages of fault that you contend should be attrributed to each individual or entity.
e. The identity of all individuals upon whose statements or opinions you rely for that contention or which you allege suports that contention or whom you expect to testify regarding that contention.
"The Plaintiff's damages allegedly sustained were caused in whole or in part or were contributed to by reason of the negligence of a "nonparty", to-wit: Trailmobile Corporation".
g. Identify and describe each and every document and item of tangible evidence that you contend supports this Affirmative Defense; describe the information contained in each document or illustrated by each item of tangible evidence; and, identify the individual or entitiy who currently has possession, custody or control of each document or item of tangible evidence.
I.C. 34-4-33-6 was not amended and there is nothing to suggest that the amendment of the definition of "nonparty" changes the Supreme Court's holding in Cornell Harbison Excavating, Inc. v. May(11), requiring that any nonparty be specifically identified by name.
I.C. 34-4-33-1 through I.C. 34-4-33-14.
2. I.C. 34-4-33-5(a)(1) and I.C. 34-4-33-5(b)(1).
3. I.C. 34-4-33-5(a)(3) and I.C. 34-4-33-(b)(3).
4. I.C. 34-4-33-5(a)(4) and I.C. 34-4-33-5(b)(4).
5. (1989), Ind., 546 N.E.2d 1186.
6. 546 N.E.2d 1186, 1187.
7. (1989), Ind., 546 N.E.2nd 1186.
10. (1996), Ind.App., 665 N.E.2d 7.


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Rather, Agents Of Statutory Defendant Are Entitled To Benefit Of An Arbitration Agreement.
In Hernandez v. AutoZone, Inc., Case No. B280206 (2d Dist., Div. 2) (May 30, 2018) (unpublished; Justice Victoria Chavez, concurred in by Justice Judith Ashmann-Gerst, A.P.J., and Justice Brian M. Hoffstadt), ex-employer AutoZone moved to compel arbitration against a former employee based upon an alleged sexual harassment/battery/negligence suit arising from her employment with AutoZone, which had employees acknowledge that they read, understood, and agreed to be bound by a “Dispute Resolution Agreement” which required employees to arbitrate “any dispute arising out of or related to [their] employment with AutoZone or one of its affiliates,” including “disputes regarding the employment relationship . . . termination, retaliation, or harassment . . . and all other state statutory and common law claims.” It was governed by the Federal Arbitration Act.
The trial judge denied AutoZone’s motion to compel arbitration on the theory that co-defendant Jose Vilchez, alleged to be an agent of AutoZone and plaintiff’s immediate supervisor, was actually a “third party” such that conflicting rulings were a possibility.
Arbitration Clause Was Infirm Because It Was A “Side Agreement” Neither Filed With Nor Approved By California’s Insurance Commissioner.
Nielsen Contracting, Inc. v. Applied Underwriters, Inc., Case No. D072393 (4th Dist., Div. 1 May 3, 2018, modified on May 23, 2018) (published) (Haller, J., author, concurred in by McConnell, P.J. and Huffman, J.) decided that the trial court is the gatekeeper on the question of whether a delegation clause in an arbitration provision is valid, extensively adopting the reasoning of SCOTUS in Rent-A-Center West, Inc. v. Jackson, 58 U.S. 63 (2010).
The circumstances of this case were that plaintiff sued defendant insurers alleging they fraudulently provided workers’ compensation policies to plaintiff that were illegal and unconscionable in nature. Defendants moved to compel arbitration, and plaintiff opposed on the ground that the arbitration’s delegation clause was unlawful and void. The trial court agreed with plaintiff, denying the motion to compel arbitration. Defendants appealed, with the 4/1 DCA panel affirming the denial order.
The arbitration provision in the applicable agreement said disputes and controversies had to be conducted in the British Virgin Islands under AAA rules by an arbitrator who was a disinterested official in the insurance/reinsurance industries and with the arbitrator delegated to determine the enforceability of the arbitration clause. Another related development was that the Insurance Commissioner in an earlier administrative proceeding brought by different insureds against the same defendants found that the arbitration clause was unlawful and void, including the key fact that the defendants failed to get approval for their arbitration clauses from the Insurance Commissioner such that they were illegal “side agreements”—an administrative ruling which admittedly had precedential value.
The appellate court agreed with the trial judge’s conclusion to find the delegation clause void because (1) Rent-A-Center does allow the lower court to adjudge the enforceability of the clause; (2) the challenge to the delegation clause could also be the same as the challenge to the underlying contract, with plaintiff’s challenge being specific enough; and (3) the defendants failed to file the arbitration provisions with the Commissioner in derogation of Insurance Code section 11658.
FAA Collective Actions And Related State Law Class Actions Governed By Individualized Arbitration Proceedings Under Employment Contract.
On May 21, 2018, the United State Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 584 U.S. __, No. 16-285. SCOTUS decided that the FAA instructed federal courts to enforce individualized arbitration proceedings under an employer-employee arbitration agreement such that nothing in the FAA’s savings clause, FLSA, or NLRA dictated a different result. This was a 5-4 decision along political lines, authored by Justice Gorsuch. The minority justices believed that the result in this case will gut the effectiveness of FLSA collective actions and state court class actions in the wage/hour area.
See my previous posts regarding this case, and the article I wrote entitled, “The Politics of Arbitration” wherein I discussed the same issue raised in Ernst & Young v. Morris. My previous posts were on August 23, 2016, October 11, 2016, November 3, 2016, January 17, 2017, July 24, 2017, September 28, 2017, and October 9, 2017. See also, my post on June 19, 2017.
Appellate Court Found That Trial Judge Must Make Determination To Add Alter Ego Nonsignatory, With JAMS Rule Not Dictating A Different Result.
Benaroya v. Willis, Case No. B281761 (2d Dist., Div. 4 May 17, 2018) (published) (Willhite, J., concurred in by Epstein, P.J. and Collins, J.) (yes, the matter did involve action star Bruce Willis) was a situation where an arbitrator made the decision to add an alleged nonsignatory alter ego respondent to an arbitration between claimant Willis/a lending company and a signatory respondent to which the added party was alleged to be an alter ego. Eventually, the arbitrator found that the nonsignatory was an alter ego and entered an award in excess of $5 million against both arbitration respondents. The trial judge granted Willis/lenders’ petition to confirm the award and denied respondents’ petition to vacate the award with respect to the arbitrator exercising jurisdiction over the nonsignatory.
The appellate court agreed with the arbitration respondents’ position on appeal, vacating the award against the nonsignatory alter ego and only confirming the award against the signatory arbitration respondent.
The reason for this overturn was that only the trial court (not the arbitrator) can decide whether an alleged nonsignatory alter ego could be compelled to arbitrate, with nothing in the JAMS arbitration rules changing that conclusion.
Failure To Highlight Provision In Multi-Page Employment Handbook And To Notify Employees That Signing The Handbook With The Provision Could Forfeit Their Ability To Participate In The Existing Class Action Cemented The Unconscionability Conclusion.
Unconscionability was the doctrine which invalidated an employment arbitration clause in relation to an employee wage/hour class action in the recent unpublished decision in Nguyen v. Inter-Coast Int’l Training, Inc., Case No. B270305 (2d Dist., Div. 4 Apr. 20, 2018) (unpublished) (Collins, J., concurred in by Epstein, P.J. and Manella, J.).
What happened here was that the employer modified its employee handbook, which had an arbitration provision and which many employees signed, over a year after a putative wage/hour class action had been filed. Sixty-two putative class members signed the arbitration provision in the modified employee handbook after the filing of the class action. Employer moved to compel arbitration, but the trial judge denied it on both procedural and substantive unconscionability grounds.
BLAWG UPDATE: The winning employees requested publication of that decision, but on May 15, 2018, the 2/4 DCA denied this request and sent a letter to the California Supreme Court (the ultimate decision-maker on the request) to see if it agreed or disagreed.
Issue Deals With Whether Generalized Language Was Akin To Silence Under Stolt-Nielsen.
In Stolt-Nielsen v. AnimalFeeds International Corp., 55 U.S. 662, 684, 687 (2010), the U.S. Supreme Court (SCOTUS) held that the differences between bilateral and class-action arbitration are too great to presume the parties’ mere silence on the issue of class-action arbitration constitutes a consent to class-action arbitration.
This case is set for argument in the October 2018 term. At least one commentator believes that the Ninth Circuit engaged in undue “hair-splitting” in light of Stolt-Nielsen’s reasoning.
BLOG OBSERVATION—Mike Hensley, co-contributor on the calattorneysfees.com blog, at Marc’s invitation, will be posting from time to time to Marc’s California mediation/arbitration blog.
The Options: The Other Side Can Pay Arbitration Fees, Or The Matter Can Move To Court.
"In its majestic equality," wrote Anatole France, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." So does this principle of equality mean that the law forbids a party, who engages in good faith in arbitration, and loses the ability to pay the arbitrator, from turning to a judicial forum for relief? As one of my law professors would have put it, do the stringent TS rules of common law contracts apply to bind the party who is unable to pay to the deal it made?
In Weiler v. Marcus & Millichap Real Estate Investment Services, Inc., et al. G053953 (4/3 4/30/18) (Thompson, Bedsworth, Moore), the Court of Appeal holds in a published opinion, "as we did in Roldan [219 Cal.App.4th 87 (2013)], when a party who has engaged in arbitration in good faith is unable to afford to continue in such a forum, that party may seek relief from the superior court." In Roldan, the subject of my August 28, 2013 post, the Fourth District, Division Three, concluded that plaintiffs, "each of whom were subsequently granted permission to proceed in forma pauperis in the trial court, could likewise be excused from the obligation to pay fees associated with arbitration."
The Court of Appeal faulted the trial judge for applying an unconscionability analysis to the enforceability of the arbitration provision in Weiler. Unconscionability is analyzed at the time the agreement to arbitrate is entered into, and at that time, the Weilers were relatively well-to-do, before losing $2M in the ill-fated 1031 exchange in which they were represented by Marcus & Millichap. It would be hard, under those facts, to say that there was overreaching at the time of contract formation. Here, however, the issue was entirely different. The circumstances had changed over time such that the Weilers, an elderly couple ground down by the arbitration, lost the ability to pay, as a result of which they confronted the possibility of not being able to proceed in any forum, unless Marcus & Millichap paid the arbitration fees, or the parties proceeded to court. Perhaps too the Court's view was colored by the hardball tactics of the defendant, who, for example, insisted on the use of three arbitrators at an hourly rate of $1,450.
Arguably the Federal Arbitration Act applied, because the 1031 exchange involved properties in different states, Nevada and Texas. And so the Court also determined that the outcome would be the same under the Federal Arbitration Act and under the California Arbitration. In reaching this conclusion, the Court relied on the federal case, Tillman v. Tillman, 825 F.3d 1069 (9th Cir. 2016), the subject of my June 15, 2016 post. Tillman relied on the provision in the Federal Arbitration Act, 9 U.S.C. section 3, that a party can apply to stay trial of the action "until such arbitration has been had in term of the agreement . . . " In Tillman, the party followed the procedure required by the AAA, participated in good faith in the arbitration process, and simply ran out of money to pay the arbitrator. The Court held in Tillman that the arbitration "had been had" and the party could now seek a judicial forum. The California Court of Appeal found the analysis in Tillman to be persuasive.
COMMENT: Tillman is a Ninth Circuit case. Query whether the US Supreme Court, as currently constituted, would show solicitude to the impecunious plaintiff, or more inclined to apply the TS rules of common law contracts.
PRACTICE TIP: One in the position of the Weilers will need to make a compelling showing of inability to pay. This matter is being remanded, and the trial court will need to find if the "party's financial status is not a result of the party's intentional attempt to avoid arbitration." If there is no intentional attempt to finagle finances, then the trial court can order the arbitration to continue if the defendant agrees to pay (or order it to pay!), or deem the arbitration to be "had", allowing the case to proceed in court.

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Reverse chronological order, no editorializing, papers in PS/PDF format.
Approximate Histogram and Wavelet Summaries of Streaming Data. S. Muthukrishan and M. Strauss. DIMACS TR 2004-52.
Radial histograms for spatial streams. G. Cormode and S. Muthukrishnan. DIMACS TR 2003-11.
QUICKSAND: Quick summary and analysis of network data . DIMACS TR 2001-43. A. Gilbert, Y. Kotidis, S. Muthukrishnan and M. Strauss. Cached.
Support for erroneous packet reporting in 802.11 data networks. IEEE 802.11e Wireless LAN Working Group Meeting, Jan 2002. S. Diggavi, X. Gao, S. Muthukrishnan and M. Sherman.
S. Bellovin , A. Buchsbaum, and S. Muthukrishnan, TCP Compression Filter . Internet Draft 1999. Cached.
S. Bellovin, A. Buchsbaum, and S. Muthukrishnan, TCP Filters . Internet Draft 1999. Cached.
Graham Cormode, S. Muthukrishnan, Ke Yi, Qin Zhang: Optimal sampling from distributed streams. PODS 2010: 77-86. This material is based upon work supported by the National Science Foundation under Grant No. 0414852.
Stochastic data streams. S. Muthukrishnan. MFCS 09. This material is based upon work supported by the National Science Foundation under Grant No. 0414852.
General Auction Mechanism for Search Advertising. G. Aggarwal, S. Muthukrishnan, D. Pal, M. Pal. WWW 09.
Bid Optimization in Broad-Match Ad Auctions. E. Even-Dar, Y. Mansour, V. Mirrokni, S. Muthukrishnan, U. Nadav.
Optimal Cache-Aware Suffix Selection. G. Francheschini, R. Grossi and S. Muthukrishnan. STACS 09.
An online mechanism for Ad Slot Reservations with Cancellations. F. Constantin, J. Feldman, S. Muthukrishnan and M. Pal. SODA 09.
Internet Ad Auctions: Insights and Directions.S. Muthukrishnan: ICALP (1) 2008.
Algorithmic Methods for Sponsored Search Advertising. J. Feldman and S. Muthukrishnan. Chapter in Book: Performance Modeling and Engineering.
Position Auctions with Bidder-Specific Minimum Prices. E. Even-Dar, J. Feldman, Y. Mansour and S Muthukrishnan. WINE 2008.
Range Medians. S. Har-Peled and S. Muthukrishnan. ESA 08.
On distributing symmetric streaming computations. J. Feldman, S. Muthukrishnan, A. Sidiropoulos, C. Stein and Z. Svitkina. SODA 08. This material is based upon work supported by the National Science Foundation under Grant No. 0414852.
Algorithms for distributed, functional monitoring. G. Cormode, S. Muthukrishnan,and K. Yi. SODA 08. This material is based upon work supported by the National Science Foundation under Grant No. 0414852.
J. Feldman, S. Muthukrishnan, E. Nikolova, M. Pál: A Truthful Mechanism for Offline Ad Slot Scheduling. SAGT 2008.
Summarizing Two-Dimensional Data with Skyline-Based Statistical Descriptors. Graham Cormode, Flip Korn, S. Muthukrishnan, Divesh Srivastava. SSDBM 08.
Query-aware partitioning for monitoring massive network data streams. T. Johnson, S. Muthukrishnan, V. Shkapenyuk, Oliver Spatscheck. SIGMOD 2008. This material is based upon work supported by the National Science Foundation under Grant No. 0414852.
On Signatures for Communication Graphs. G. Cormode, F. Korn, S. Muthukrishnan, Y. Wu. ICDE 2008.
The Magnus-Derek game. Z. Nedev and S. Muthukrishnan. Theor. Comput. Sci. 393(1-3): 124-132 (2008) JOURNAL.
Radix sorting with no extra space, G. Franceschini, S Muthukrishnan and M. Patrascu. ESA 2007.
Stochastic Models for Budget Optimization in Search-Based Advertising. S. Muthukrishnan, M. Pal and Z. Svitkina. WINE 2007, Workshop on Sponsored Search Auctions, WWW 2007.
In-place suffix sorting. G. Francheschini and S. Muthukrishnan. ICALP 2007.
Optimal suffix selection. G. Franceschini and S. Muthukrishnan. STOC 2007.
Estimating statistical aggregates on probabilistic data streams. T.S. Jayram, A. McGregor, S. Muthukrishnan and E. Vee. PODS 2007.
Budget optimization in search-based advertising auctions. J. Feldman, S. Muthukrishnan, M. Pal and C. Stein. EC 2007.
Data streaming algorithms for data in motion. M. Hoffmann, S. Muthukrishnan and R. Raman. ESCAPE 2007.
Sequential Change Detection on Data Streams. S. Muthukrishnan, E. Berg and Y. Wu. ICDM Workshop on Data Stream Mining & Mgmt. "This material is based upon work supported by the National Science Foundation under Grant No. 0414852."
No blog is an island: Analyzing connections across information networks. S. Bhagat, G. Cormode, S. Muthukrishnan, I. Rozenbaum and H. Xue. ICWSM 2007.
How to scalably skip past streams. S. Bhattacharyya, A. Madeira, S. Muthukrishnan, T. Ye. WSSP 2007. With ICDE 2007.
Query-aware sampling for data streams. T. Johnson, S. Muthukrishnan, V. Shkapenyuk and O. Spatscheck. WSSP 2007. With ICDE 2007. "This material is based upon work supported by the National Science Foundation under Grant No. 0414852."
Conquering the Divide: Continuous Clustering of Distributed Data Streams. G. Cormode, S. Muthukrishnan, W. Zhuang. ICDE 2007. "This material is based upon work supported by the National Science Foundation under Grant No. 0414852."
Monitoring Regular Expressions on Out-of-Order Streams. I. Rozenbaum, T. Johnson, S. Muthukrishnan. ICDE 2007. POSTER. "This material is based upon work supported by the National Science Foundation under Grant No. 0414852."
The string edit distance matching problem with moves. G. Cormode and S. Muthukrishnan. Transactions of Algorithms. Vol 3, No 1. 2007. JOURNAL. (Invited from SODA 2002).
A data structure for a sequence of string accesses in external memory. .V. Ciriani, P. Ferragina, F. Luzzio and S. Muthukrishnan. Transactions of Algorithms. Vol 3, No 1. 2007. JOURNAL.
Some Algorithmic Problems and Results in Compressed Sensing. S. Muthukrishnan. Allerton Conf 2006. This material is based upon work supported by the National Science Foundation under Grant No. 0354690."
Bidding to the Top: VCG and Equilibria of Position-Based Auctions. G. Aggarwal, J. Feldman, S. Muthukrishnan. WAOA 2006. TR at arXiv.
Subspace Sampling and Relative-Error Matrix Approximation: Column-Row-Based Methods. P. Drineas, M. Mahoney, S. Muthukrishnan. ESA 2006: 304-314. DIMACS TR 2006-04.
Subspace Sampling and Relative-Error Matrix Approximation: Column-Based Methods. P. Drineas, M. Mahoney, S. Muthukrishnan. RANDOM 2006.
Combinatorial algorithms for compressed sensing. G. Cormode and S. Muthukrishnan. SIROCCO 2006. DIMACS TR 2005-25.
Modeling skew in data streams. F. Korn, S. Muthukrishnan and Y. Wu. SIGMOD 2006.
Space- and time-efficient deterministic algorithms for biased quantiles over data streams. G. Cormode, F. Korn, S. Muthukrishnan and D. Srivastava. PODS 2006.
Compressing and searching XML data via two zips. P. Ferragina, F. Luccio, G. Manzini and S. Muthukrishnan. WWW 2006.
Estimating Entropy and Entropy Norm on Data Streams. A. Chakrabarti, Khanh Do Ba and S. Muthukrishnan. STACS 2006. DIMACS TR 2005-33.
Sampling algorithms for L_2 regression and applications. P. Drineas, M. Mahoney and S. Muthukrishnan. SODA 2006.
What's different: Distributed continuous monitoring of duplicate-resilient aggregates on data streams. G. Cormode, S. Muthukrishnan and W. Zhuang. ICDE 2006. "This material is based upon work supported by the National Science Foundation under Grant No. 0414852."
Special Issue on CPM Conf. Theoretical Computer Science Edited by S. Cenk Sahinalp, U. Dogrusoz and S. Muthukrishnan. JOURNAL.
The Graham-Knowlton Problem Revisited. N. Goyal, S. Lodha, S. Muthukrishnan. Theory Comput. Syst. 39(3): 399-412 (2006). JOURNAL.
Streams, security and scalability. T. Johnson, S. Muthukrishnan, O. Spatscheck and D. Srivastava. Proc. of 19th Ann. IFIP Conference on Data and Applications Security, Lecture Notes in Computer Science 3654, Springer-Verlag, 1-15, 2005.
Subquadratic Algorithms for Workload-Aware Haar Wavelet Synopses. S. Muthukrishnan. FSTTCS 2005. DIMACS TR 2004-42, 2004-25.
Structuring labeled trees for optimal succinctness, and beyond. P. Ferragina and F. Luccio and G. Manzini and S. Muthukrishnan. FOCS 2005.
Workload-Optimal Histograms on Streams. S. Muthukrishnan, M. Strauss and X. Zheng. ESA 2005. Fuller version at DIMACS TR 2005-19.
Summarizing and mining inverse distributions on data streams via dynamic inverse sampling. G. Cormode, S. Muthukrishnan and I. Rozenbaum. VLDB 2005 . DIMACS TR 2005-11 has fuller version.
A heartbeat mechanism and its application in Gigascope. T. Johnson, S. Muthukrishnan, O. Spatscheck and V. Shkapenyuk. VLDB 2005.
Detecting malicious network traffic using inverse distributions of packet contents. D. Geiger, V. Karamcheti, Z. Kedem and S. Muthukrishnan. MineNet 05 .
Improved time bounds for near-optimal sparse Fourier representations. A. Gilbert, S. Muthukrishnan and M. Strauss. SPIE Conf , Wavelets.
Space Efficient Mining of Multigraph Streams. G. Cormode, S. Muthukrishan. PODS 2005 .
Sampling Algorithms in a Stream Operator. T. Johnson, S. Muthukrishnan, I. Rozenbaum. SIGMOD 2005 .
Holistic Aggregates in a Networked World: Distributed Tracking of Approximate Quantiles. G. Cormode, M. Garofalakis, S. Muthukrishnan, R. Rastogi SIGMOD 2005. "This material is based upon work supported by the National Science Foundation under Grant No. 0414852."
Efficient string matching algorithms for combinatorial universal denoising . S. Chen, S. Diggavi, S. Dusad and S. Muthukrishnan. DCC 2005 .
Summarizing and Mining Skewed Data Streams. G. Cormode and S. Muthukrishnan. SDM 2005 .
Effective Computation of Biased Quantiles over Data Streams. G. Cormode, F. Korn, S. Muthukrishnan, D. Srivastava. ICDE 2005 .
Substring compression problems. G. Cormode and S. Muthukrishnan. SODA 2005 .
The Bin-Covering Technique for Thresholding Random Geometric Graph Properties. S. Muthukrishnan and G. Pandurangan. SODA 2005 .
Improved Range-Summable Random Variable Construction Algorithms . A. R. Calderbank, A. Gilbert, K. Levchenko, S. Muthukrishnan and M. Strauss. SODA 2005 .
What's hot and what's not: tracking most frequent items dynamically. G. Cormode, S. Muthukrishnan. ACM Trans. Database Syst. 30(1): 249-278 (2005). JOURNAL.
Domain-driven data synopses for dynamic quantiles. A. Gilbert, Y. Kotidis, S. Muthukrishnan and M. Strauss. 17(7), July 2005. TKDE. JOURNAL.
An improved data stream summary: the count-min sketch and its applications. J. Algorithms, 55(1): 58--75, April 2005, G. Cormode and S. Muthukrishnan.JOURNAL.
Approximation algorithms for array partitioning problems. J. Algorithms, 54(1): 85--104, Jan 2005, S. Muthukrishnan and T. Suel. JOURNAL.
Parallel scheduling problems in next generation wireless networks. Networks , 45(1), 9--22, Jan 2005. L. Becchetti, S. Leonardi, A. Marchetti-Spaccamela, A. Vitaletti, S. Diggavi, S. Muthukrishnan, T. Nandagopal. JOURNAL.
Wireless in loco sensor data collection and applications. S. Chen, A. Gaur, S. Muthukrishnan and D. Rosenbluth. MOBEA II , WWW04.
The Graham-Knowlton problem revisited. N. Goyal, S. Lodha and S. Muthukrishnan. FUN 2004.
How to increase acceptance ratio of conferencers? A. Czumaj, G. Cormode and S. Muthukrishnan FUN 2004.
Mining deviants in time-series data streams. S. Muthukrishnan, R. Shah, J. Vitter. SSDBM 2004 . DIMACS TR.
Diamond in the Rough: Finding Hierarchical Heavy Hitters in Multi-Dimensional Data . G. Cormode, F. Korn, S. Muthukrishnan, D. Srivastava, SIGMOD 2004.
What is new: Finding significant differences in network data streams. G. Cormode and S. Muthukrishnan. INFOCOM 2004.
An improved data stream summary: The Count-Min sketch and its applications. LATIN 2004. G. Cormode and S. Muthukrishnan.
Sublinear methods for detecting periodic trends in data streams. LATIN 2004. F. Ergun, S. Muthukrishnan and C. Sahinalp.
Online Scheduling to Minimize Average Stretch. S. Muthukrishnan, R. Rajaraman, A. Shaheen, J. Gehrke. SIAM J. Comput. 34 (2): 433-452 (2004). JOURNAL.
An efficient algorithm for sequence comparison with block reversals . TCS , 321(1), 95-101, 2004. S. Muthukrishnan and S. Cenk Sahinalp.JOURNAL. (Invited from LATIN 2002).
Approximation algorithms for average stretch scheduling. J. of Scheduling , 7(3): 195--222. M. Bender, S. Muthukrishnan and R. Rajaraman. JOURNAL.
Parallel two dimensional witness computation. I&C. 188(1): 20--67. R. Cole, Z. Galil, R. Hariharan, S. Muthukrishnan and K. Park. JOURNAL.
Maintenance of Multidimensional Histograms. S. Muthukrishnan and M. Strauss. FST&TCS 2003.
Comparing Sequences with Segment Rearrangements. F. Ergun, S. Muthukrishnan and S. Sahinalp. FST&TCS 2003.
Estimating dominance norms of multiple data streams. G. Cormode and S. Muthukrishnan. European Symposium on Algorithms (ESA) 2003. Also, DIMACS TR 2002-35.
Monitoring data quality problems in network traffic databases. VLDB 2003. F. Korn, S. Muthukrishnan and Y. Zhu.
Finding hierarchical heavy hitters in data streams. VLDB 2003. G. Cormode, F. Korn, S. Muthukrishnan and D. Srivastava.
Improved sparse approximation over quasi-coherent dictionaries. Intl Conf on Image processing ( ICIP 2003) A. Gilbert, S. Muthukrishnan, M. Strauss and J. Tropp.
What is hot and what is not: Tracking most frequent items dynamically. PODS 2003. G. Cormode and S.Muthukrishnan.
IPSOFACTO: A visual correlation tool for aggregate network traffic data. SIGMOD 2003 demo. F. Korn, S. Muthukrishnan and Y. Zhu.
Reliable transport mechanisms for wireless data networks. IEEE Intl Conf on Communications (ICC ), 2003. S. Diggavi, X. Gao and S. Muthukrishnan.
Rangesum histograms . SODA 2003. S. Muthukrishnan and M. Strauss.
Inferring tree topologies using flow tests. SODA 2003. S. Muthukrishnan, T. Suel and R. Vingralek.
Approximation of functions over redundant dictionaries using coherence. SODA 2003. A. Gilbert, S. Muthukrishnan and M. Strauss.
Generalized substring selectivity estimation. JCSS. Feb 2003. 66(1) 98--132. Z. Chen, F. Korn, N. Koudas and S. Muthukrishnan. JOURNAL. (Invited from PODS 2000).
Approximation algorithms for MAX-MIN tiling. Piotr Berman , Bhaskar DasGupta , S. Muthukrishnan: J. Algorithms 47(2): 122-134 (2003) JOURNAL.
Two-dimensional substring indexing. JCSS June 2003. 66(4): 763--774. P. Ferragina, N. Koudas, S. Muthukrishnan and D. Srivastava . JOURNAL. (Invited from PODS 2001).
Static optimality theorem for external memory string access. FOCS 2002. V. Ciriani, P. Ferragina, F. Luccio, and S. Muthukrishnan.
Estimating rarity and similarity on data stream windows . ESA 2002. M. Datar and S. Muthukrishnan.
Range Searching in Categorical Data: Colored Range Searching on Grid . ESA 2002. P. Agarwal, S. Govindarajan and S. Muthukrishnan.
Reverse nearest neighbor aggregates over data streams. VLDB 2002. F. Korn, S. Muthukrishnan and D. Srivastava.
Comparing data stream using hamming norms (How to zero in) VLDB 2002. G. Cormode, M.Datar, P. Indyk and S. Muthukrishnan.
How to summarize the Universe: Dynamic maintenance of quantiles. VLDB 2002. A. Gilbert, Y. Kotidis, S. Muthukrishnan and M. Strauss.
Parallel scheduling in next generation wireless networks. SPAA 2002. TR version. L. Becchetti, S. Diggavi, S. Leonardi, A. Marchetti-Spaccamela, S. Muthukrishnan, T. Nandagopal and A. Vitaletti.
Histogramming data streams with fast per-item processing. (prelim version) ICALP 2002. S. Guha, P. Indyk, S. Muthukrishnan and M. Strauss.
Simple and practical sequence nearest neighbors with block operations. CPM 2002. S. Muthukrishnan and S. C. Sahinalp.
An improved algorithm for sequence comparison with block reversals. LATIN 2002. S. Muthukrishnan and S. C. Sahinalp.
Fast, small space algorithms for approximate histogram maintenance. STOC 2002. A. Gilbert, S. Guha, P. Indyk, Y. Kotidis, S. Muthukrishnan, M. Strauss.
Near-optimal sparse fourier representations via sampling. STOC 2002. A. Gilbert, S. Guha, P. Indyk, S. Muthukrishnan and M. Strauss.
Mining database structure, or to How to build a data quality browser. SIGMOD 2002. T. Dasu, T. Johnson, S. Muthukrishnan and V. Shkapenyuk.
Fast mining of massive tabular data via approximate distance computations. ICDE 2002. G. Cormode, P. Indyk, N. Koudas and S. Muthukrishnan.
Efficient algorithms for document retrieval problems. SODA 2002.

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


§ 176-6 License required; application and renewals.
§ 176-7 Exceptions and exemptions.
§ 176-10 Issuance or refusal to issue license; form of license classification.
§ 176-11 Changes in ownership, management, address or trade name.
§ 176-12 Standards for refusal of issuance or renewal of license.
§ 176-13 Revocation of licenses.
§ 176-15 Violations and penalties.
This chapter shall be known and may be cited as "The Borough of Collingdale Contractor Licensing Ordinance."
The following words and phrases, as used in this chapter, shall have the meanings ascribed to them in this section, unless the context clearly indicates a different meaning. The masculine includes the feminine; the singular includes the plural, and the plural includes the singular.
An agreement, whether oral or written, and whether contained in one or more documents, between a contractor and an owner or another contractor for the performance of work, including all labor, services and materials to be furnished and performed thereunder.
Any person, other than a bona fide employee of the contractor, who undertakes or offers to perform construction, repair, reroofing, painting, remodeling, rehabilitation, demolition, paving, electrical, plumbing and any other residential or nonresidential construction or trade or demolition work in the Borough, whether as a general contractor, subcontractor, specialty contractor or home improvement contractor with respect to the property owner.
The twelve-month period beginning the first day of January of each year.
The Manager of the Borough of Collingdale.
Any property owner, tenant or other person who order, contracts for or purchases the services of a contractor, or any person entitled to the work of a contractor pursuant to a contract, gift or otherwise.
Any individual, partnership, limited partnership, association, corporation, trust or other legally recognizable entity.
The Manager or his authorized representatives and Administrative Officer or Code Enforcement Officer shall administer and enforce the provisions of this chapter.
No person shall act as a contractor in the Borough except in compliance with the provisions of this chapter. Any person, including an owner, who willfully aids a contractor or participates with a contractor in violating any provisions of this chapter is in violation of this chapter. The provisions of this chapter may not be waived by agreement.
A license issued pursuant to this chapter shall not be construed to authorize the licensee to perform any particular type of work or type of business which is reserved to qualified licensees under other provisions of state or local law.
For the license year beginning January 1, 1997 and each license year thereafter, every person desiring to continue to engage in or hereafter to begin to engage in the business of acting as a contractor in the Borough shall, on or before the first day of January of the license year, or prior to commencing business in such license year, make application for a license to act as a contractor in the Borough. Such application shall be made by the completion of an application furnished by the Borough and the payment of a license fee as hereinafter set forth in this chapter. Each application must contain information as set forth hereafter in this chapter, and each applicant must present satisfactory proof of insurance as set forth hereafter in this chapter. Each application for a license shall be signed by the applicant, if a natural person, and in the case of an association or a partnership, by a member or partner thereof, and in case of a corporation, by an officer thereof. Each successful applicant shall be issued a license. All contractors' licenses shall expire at midnight on December 31 of each license year unless the license is revoked or suspended prior thereto under the terms of this chapter. A person with an unexpired license, which has not been revoked or suspended during the current year, who makes application for a license for the following license year, need not complete an application form but must only submit the required license fee and, if he qualifies for licensing and renewal under the terms of this chapter, his license shall be renewed for the following license year. Any contractor carrying on the business of contractor in the Borough must secure a license under the terms of this chapter for each license year during which he carries on such business.
The provisions of this chapter shall not apply to the official transactions of any authorized representative of the government of the United States, any state or commonwealth of the United States, any political subdivision of any state or commonwealth, or any agency or instrumentality of the foregoing government; provided, however, that no person engaged by the representative of any of the foregoing shall act as a contractor in the Borough unless such person shall first have complied with and have been licensed under the provisions of this chapter.
A person who performs labor or services for a contractor for wages or salary.
The Borough of Collingdale's licensing does not preclude the requirement to obtain a building, electrical or plumbing permit, or any other permit(s) that may be required for construction, repair, remodeling, rehabilitation, demolition, roofing, paving, electrical, plumbing, installation or repair, or any other residential or nonresidential construction or trade.
No contractor's license shall be issued unless the applicant files a certificate of insurance with the Borough at the time of license application. The certificate of insurance shall contain a provision that coverage afforded under the policy will not be canceled until at least 15 days after prior written notice of such cancellation has been given to the Borough. The certificate of insurance must evidence policies of insurance, maintained at the expense of the applicant, for public liability, property damage, products liability, and completed operations, each of which must have a single occurrence limit of at least $100,000; proof of workers' compensation is further requested, if applicable. Blasting and demolition insurance shall also be required for blasting and demolition contractors, and the reasonable limits of such insurance shall be determined by the Manager at the time of application, based on the nature and extent of the applicant's proposed operations. All types of limits of insurance for which certificates are presented at the time of application, and based upon which a license is issued, shall be maintained throughout the license year, or the license will be suspended or revoked as hereinafter set forth; the Borough must be timely advised of any changes prior to a change in a carrier during a license year.
Builders, developers and contractors of nonresidential work: $100.
Builders and developers of new residential projects: $100.
Swimming pool and sign contractors: $100.
Contractors of residential alterations and additions: $50.
No fee or portion thereof shall be returned to a successful or unsuccessful applicant.
When an application has been filed with the Borough in proper form, the Manager or his authorized representative must, within a period of 30 days from the date following the date the application is received, issue or refuse to issue the appropriate contractor's license to the applicant. If issuance of a license is denied, the Borough shall mail to the unsuccessful applicant a written statement setting forth the reason or reasons for the denial within the aforesaid thirty-day period.
The name of owners, partners, directors and officers of the applicant, and the business address and trade names of the applicant.
A statement as to whether or not any municipalities have refused to issue or have revoked any similar contractors' licenses to the applicant within two years previous to the date of the application. In the event there has been such a denial or revocation, the applicant must explain in writing the reasons for such denial or revocation.
A listing of all previous contractor's jobs completed or accepted by the applicant within two years prior to the application, along with a statement of the location of the jobs, and the names, addresses and telephone numbers of the party or parties who contracted with the applicant for such jobs.
A listing of all convictions within two years prior to the date of the application for any crimes or offenses under any federal or state criminal statute or common law criminal offense or for violation of any municipal ordinance, so long as such convictions were for crimes or offenses related to the applicant's work or contracts as a contractor. The term "conviction" shall include guilty pleas and pleas of nolo contendere. If any such convictions exist, the applicant shall give in writing the caption, court and term number of the proceeding leading to the conviction. The applicant shall also explain, in writing, the nature of the conviction.
A listing of all unsatisfied civil judgments in any jurisdiction against the applicant, if such civil judgments were entered on a lawsuit in which it was alleged that the applicant failed to complete a contract as defined in this chapter or improperly performed a contract as defined in this chapter. The applicant shall give, in writing, the caption, court and term numbers of the civil action upon which any such judgments were entered and shall explain in writing the nature of all such civil judgments.
Every contractor/licensee shall, within 10 days after a change of ownership, directors, officers, management, address or trade name, notify the Borough of such change.
If the applicant falsely answered any question or questions contained on the application form.
If the applicant has been refused a similar contractor's license or has had a similar contractor's license revoked or suspended by another municipality within two years prior to the date of application for issuance or renewal, and if the refusal, revocation or suspensions by the other municipality was due to failure to comply with that municipality's building code.
If the applicant has been convicted within two years prior to the date of the application for any crimes or offenses under any federal or state criminal statute or common law criminal offense, or for violation of any municipal ordinance, so long as such convictions were for crimes or offenses related to the applicant's work as a contractor. The term "conviction" shall include guilty pleas and pleas of nolo contendere.
If any unsatisfied civil judgment against the applicant exists in any court in any jurisdiction, and if the record of such court shows that such judgment was entered because of the applicant's failure to complete a contract as defined in this chapter, or if such judgment was entered because of applicant's failure to properly perform a contract as defined in this chapter.
If the licensee falsely answered any question or questions contained on an application for licensing or renewal of licensing previously submitted to the Borough.
Failure of the licensee to maintain during the license year the policies of insurance required under the provisions of this chapter.
If the licensee violates any of the terms or provisions of the Borough building codes, as amended, or any terms or provisions of this chapter.
If the licensee violates any condition or requirement of a building permit, sewer construction permit or highway permit issued by the Borough of Collingdale.
If the licensee willfully deviates from or disregards any plans or specifications for any contracting job in any material respect without first obtaining the consent of the owner in writing to any such change and without first notifying the Borough of any such change.
If the licensee does any business through any person who is subject to the licensing requirements of this chapter and who is not licensed as required by this chapter.
If the licensee conducts a contractor's business in the Borough of Collingdale under any name other than that under which he is licensed.
If the licensee fails to comply with an order, demand or requirement lawfully made by the Borough under the authority of this chapter or any other Borough ordinance.
In addition to all other acts prohibited by the terms of this chapter, those acts warranting revocation of a license under this chapter shall also be prohibited acts under this chapter.
In addition to refusal or revocation of a license as provided under this chapter, any person, as defined in this chapter, or any officer, agent, servant or employee thereof, who shall fail, neglect or refuse to comply with any of the terms or provisions of this chapter, shall, upon conviction thereof before a Magisterial District Judge, be sentenced to pay a fine or penalty of $1,000 and costs of prosecution for each offense, to be collected as like fines or penalties and costs are now by law collectible. The fine or penalty imposed by this section shall be in addition to any other penalty imposed by this chapter, and each and every day in which any person, firm or corporation shall be in violation of this chapter shall constitute a separate offense.