INDEPENDENT SCHOOL DISTRICT 612 et al., Appellees.
Rehearing Denied Feb. 28, 1975.
William B. Korstad, Minneapolis, Minn., for appellant.
Norvell C. Callaghan and James F. Nelson, Winter & Nelson, Ltd., Glenwood, Minn., for appellees.
3. All other situations where a conflict of interest occurs.
Where the employment of a husband and wife in Independent School District 612 causes a conflict of interest to occur or should one of the above three conditions arise, that then either the husband or the wife shall resign. In the event neither the husband or the wife resigns within 10 days of notification of the conflict of interest or the occurrence of the above conditions, that then and in that event the Board of Education shall determine which position should be terminated according to statute.
Edward Keckeisen, the principal of Glenwood High School, was married of Lois Korbel, a physical education teacher at the school, in December 1972. Both were tenured teachers, having been employed three and six years, respectively, at their positions. The School Board's policy, the constitutionality of which is the subject of this appeal, was officially adopted by the Board on June 12, 1972, notice of its adoption being sent to all faculty members in the school district. The record indicates that the Board was apprised of the intention of Keckeisen and Korbel to marry at the time that it officially adopted the policy in question, but there is no allegation or evidence that the policy was invidiously tailored to fit the circumstance of their prospective marriage. In the record of the hearing that was held before the School Board on March 29, 1973, there was testimony by the Superintendent of Schools and past board members, dating back to 1945, that there had been a policy in the district not to hire married couples in the school system. There was testimony that on several occasions persons had not been hired, or that they had been asked to resign, because of the fact that they were married to someone who was already employed by the school district. It was also pointed out in that hearing that the district does use husbands or wives of faculty members as substitute teachers from time to time. This was explained as being necessary due to the small size of the community, and the scarcity of qualified persons who can be available on short notice. It is clear to the court that the problems of substitutes and those of permanent staff members are quite different and are distinguishable for purposes of the issue to be decided here.
Upon the marriage of Keckeisen and Korbel, the School Board notified the Keckeisens of the applicability of the policy to them, and in March 1973 a public hearing was held to determine whether the Keckeisens, or either of them, should be terminated in their employment. By resolution of the School Board, appellant was notified, on March 29, 1973, that his employment contract would not be renewed beyond the end of the school year, and, in fact, appellant has not been employed by appellee since the completion of the 1973 academic year.
In considering the constitutionality of appellees' policy, and particularly its application to Edward Keckeisen, it is instructive to note that appellees' alternatives were rather strictly limited by the setting of the events. Glenwood is a small town in which there is only one high school. There is an elementary school in Glenwood, but neither of the Keckeisens were certified, as required by Minnesota law, to teach at the elementary level; and the position of principal of the elementary school was filled by a tenured teacher. It was not possible, therefore, to transfer either of the Keckeisens to another school within the district, which would have mitigated the severity of the result reached pursuant to the Board's policy.
Appellees contend that the matter is not properly one of federal cognizance because appellant has not exhausted the remedies provided by Minnesota law and because appellees are not 'persons' within the import of 42 U.S.C. §§ 1983 and 1985. This court finds, however, that appellant has properly stated a cause of action under 42 U.S.C. § 1983.
Although the states are given immunity by the Eleventh Amendment from the prosecution of civil claims, individuals and associations acting under color of state law are not immune to the sanctions of the Civil Rights Act and may be sued, unless it is clear to the court that the claim is actually a ruse by which personal jurisdiction over the state is sought to be exercised. See Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969) (action dismissed as to state and college, but allowed to proceed against board of trustees); Porcelli v. Titus, 302 F.Supp. 726, 730 (D.N.J.1969), aff'd, 431 F.2d 1254 (3d Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1612, 29 L.Ed.2d 112 (1971); Miller v. Parsons, 313 F.Supp. 1150 (M.D.Pa.1970). Cf. Board of Trustees of Arkansas A & M College v. Davis, 396 F.2d 730 (8th Cir. 1968), cert. denied, 393 U.S. 962, 89 S.Ct. 401, 21 L.Ed.2d 375 (1968). Likewise, municipal corporations were not intended to be included as 'persons' under § 1983, as appellees point out, but it would defeat the central intention of the Civil Rights Act to disallow actions against individuals employed by municipal corporations. Such is the holding of the Supreme Court in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), where it was held that individual police officers, but not the city itself, were subject to the sanctions of § 1983. This court, in affirming the district court in Brenden v. Independent School District 742, 477 F.2d 1292 (8th Cir. 1973), found school districts to be within the meaning of 'persons' for the purposes of § 1983.
We would defeat those purposes (of 42 U.S.C. 1983) if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court. The First Congress created federal courts as the chief--though not always the exclusive--tribunals for enforcement of federal rights.
See also Monroe v. Pape, supra.
The case at bar is unlike Loving in a signally important respect, however. The policy in question here does not deny to peple the right to marry; it only prohibits the employment of married couples in administrator-teacher situations.2 The stated purpose of the rule is a laudatory one: preventing conflicts of interest and favoritism. What we have before us then is the state's interest in providing good education for its children--and we have that interest fully and directly before us because conflicts of interest in the administration of education are clearly subversive of the state's interest--and, on the other hand, a somewhat attenuated claim involving the right to marry. Were the right to marriage claim not so attenuated by the fact that marriage itself is not the subject of the School Board's policy--i.e., were the right more directly involved--then we should perhaps, reach a different result. Under the facts of this case, however, we are constrained to uphold the decision of the district court.
It is important to note that the record gives no indication that appellant's performance as principal of the high school was in any way unsatisfactory from the time of his marriage through the end of the school year. We are convinced that Keckeisen was, in fact, fair-minded in his administration of the school, but the policy of the School Board is quite naturally concerned not only with the actual administration of the school, but also with the effect of an apparently prejudiced arrangement on the morale of the other teachers. To put the matter more simply, the mere existence of the husband-wife/administrator-teacher situation is bound to have a deleterious effect on the morale of the faculty. We have no doubt that in many cases where husbands and wives are employed in supervisor-supervisee capacities, the married couple makes an exemplary effort to maintain fairness, but we cannot say that a policy based on the assumption that married couples are susceptible to the natural prejudices of their relationships is irrational, arbitrary or capricious. There was testimony at the school board hearing that the policy was implementated to avoid situations where a conflict of interest was likely to arise. The superintendent of the district testified that where a teacher is married to an administrator, under whose supervisory control he or she is working, there is a strong possibility of conflicts of interest becoming a problem in several areas. The superintendent of a neighboring district, called as an expert witness, concurred in this opinion. Such problem areas would include: evaluation of the teacher's performance by the administrator, disciplinary problems with students in the teacher's classes where the administrator might be called upon to decide a dispute between student and teacher, the disciplining of teachers themselves, the assignment of classrooms and extracurricular duties, recommendations for the purchase of supplies and equipment, and the assignment of school aides. There was testimony that the situation could, in light of the above-mentioned areas where a conflict could arise, create a morale problem among the other members of the faculty under the control of the administrator in question. The superintendent testified that there was some competition among faculty members in the areas of classroom assignments, extra duties, requisitioning supplies, and the assignment of school aides.
In light of these considerations, the court cannot say that the Board was clearly wrong in attempting to avoid conflicts before they arose. With so many areas where a conflict could occur, there is a strong possibility that an administrator, no matter how careful he might be, could unintentionally let his judgment be swayed by his close relationship with one of the teachers. It also could place the administrator in the position of having to defend his actions where normally he would not.
This court does not feel that where such definite possibilities of conflict of interest exist, the Board should be placed under a constitutional burden of having to wait until a conflict of interest becomes a problem situation before it can take any action. The law should not block legitimate measures taken to anticipate problems and avert them.
It must be noted that appellant did not offer any evidence at the hearing and he has failed to inform the court of any possible alternatives by which appellees might have served the state's interests in eliminating conflicts of interest. Such alternatives are by no means inconceivable, but in the absence of any showing as to what the School Board might have done short of terminating appellant, the court must be satisfied that no such alternatives exist. Had appellant showed some reasonable alternatives of accomplishing the same result, this court might have found the incidental burden on the right to marriage to be, in balance, greater than the burden on the state.


§ 260-6 Application for license; pumping prior to issuance of license.
§ 260-9 Inspection and servicing reports.
§ 260-10 Nuisances to be corrected; water conservation devices.
§ 260-11 Operation and maintenance guide.
§ 260-13 Right of entry.
§ 260-14 Issuance and renewal of licenses; licenses and inspection fee.
§ 260-15 Revocation of license.
§ 260-16 Hearing on issuance, denial, renewal or revocation of license.
§ 260-17 Additions to District.
§ 260-18 Small community systems.
§ 260-19 Rules and regulations.
§ 260-20 Violations and penalties.
Water Resources and Sewerage Planning Committee — See Ch. 9, Art. III.
Utilities — See Ch. 72.
Sewers and water — See Ch. 192.
Individual sewage disposal systems — See Ch. 256.
Individual water supply systems — See Ch. 262.
This chapter shall be known and cited as the "On-Site Wastewater Disposal Management District Ordinance of the Borough of Chester."
On-site subsurface sewage disposal systems and alternate wastewater disposal systems are in widespread use within the Borough of Chester.
Such systems constitute a potential source of pollution of ground- and surface waters, contamination of potable water supplies, foul odors, nuisance problems and other hazards to public health.
It is determined to be in the interest of public health, safety and welfare to establish the within Management District to regulate the maintenance of such systems to protect the public against system failures and resultant pollution.
The repair, modification or replacement of any component of an on-site or alternate wastewater disposal system.
A licensed health officer, professional engineer, sanitarian, plumbing inspector, soil scientist, or any other qualified or licensed person, partnership, corporation or public agency delegated to function within specified limits as the agent of the Board of Health to carry out provisions of this chapter.
An alternate wastewater disposal system using a sealed tank to collect and store a specified maximum amount of liquid, semisolids and solid wastes until pumping is required.
An on-site or alternate wastewater disposal system is malfunctioning when it causes pollution of ground- or surface waters, contamination of private or public drinking water supplies, nuisance problems, or a hazard to public health. Indications of a malfunctioning system may include, but are not limited to, foul odors, break out, backup of wastewater into attached building, and soggy ground over the system, occurring at any time of the year. Water and/or soil samples may be taken to confirm the existence of a malfunctioning system.
The portion of the Borough of Chester identified in Appendix A attached to and part of this chapter.
A natural person, partnership, corporation, homeowners' association or any subdivision of the State of New Jersey.
A system for the disposal and treatment of sewage and other domestic wastewater located on or near the site of the building or buildings being serviced by the system.
Any on-site or alternate wastewater disposal system which services more than one property, dwelling, commercial unit or other premises.
Editor's Note: Said Appendix A is included at the end of this chapter.
The owner and/or occupant of any realty improvement serviced by an on-site or alternate wastewater disposal system located in the Management District shall be a member of the Management District and subject to all of the requirements of this chapter. The Management District shall be comprised of all on-site or alternate wastewater disposal systems that had been licensed by the Board of Health prior to January 1, 2009, and all on-site or alternate wastewater disposal systems located anywhere in the Borough which shall be installed, altered or repaired subsequent to January 1, 2009.
It shall be unlawful for any member of the Management District to operate, use, or maintain an on-site or alternate system within the Management District unless the Board of Health has issued a valid license therefor which is in full force and effect.
Application for a license hereunder shall be made to the Board of Health in such form and manner as it may prescribe. The application shall include all such information and data respecting the on-site or alternate wastewater disposal system in use as the Board of Health may prescribe. All members shall apply for such license within 30 days of inclusion within the district as set forth in Appendix A.
The Board of Health may at its discretion require that any on-site or alternate wastewater disposal system be pumped prior to issuing a license.
Initial inspection. Members of the Management District shall have their on-site or alternate wastewater disposal system inspected by the Board of Health or its authorized agent within 30 days of an application for license as provided in this chapter.
Regular inspection. Members of the Management District shall have their on-site or alternate wastewater disposal system inspected by the Board of Health or its authorized agent every three years after initial licensing to determine whether their system is operating properly. The scope of the inspection(s) shall depend upon on-site conditions observed and the past performance of the system.
Increased frequency in inspection. The Board of Health may increase the frequency of inspection if the system is presently malfunctioning, if a regular inspection reveals a malfunctioning system, if the system has malfunctioned in the past, if tank pump out is required less than every three years pursuant to § 260-8 of this chapter, if seasonal use will significantly increase the use of the system, and for any other good cause.
Inspection report. An inspection report shall be prepared in full at the time of each inspection on forms supplied by the Board of Health. A copy of the inspection report shall be furnished to the owner and/or occupant (and also to the Board of Health in the event that the inspection is performed by one other than the Board of Health or its authorized agent).
For the purpose of this section, such inspection and report may be made by a licensed pumper of the system at the option of the Board of Health or its authorized agent. In the event the pumper or an authorized agent has reason to believe that the on-site or alternate wastewater disposal system displays any deterioration, malfunction or is likely to malfunction based on observations made at the time of pumping, he shall immediately notify the Board of Health.
Members of the Management District utilizing a septic or alternate wastewater disposal system shall have the septic tank(s) pumped out within three years of the initial licensing as provided for in this chapter and once every three years thereafter.
Members of the Management District utilizing a holding tank system must have the tank(s) pumped out before overflow occurs, and shall provide to the Board of Health a quarterly report stating all dates of pumping, quantities removed, and the name of the licensed pumper.
Increased frequency of pumping. The Board of Health or its authorized agent may require septic or alternate waste disposal system tanks to be pumped out at more frequent intervals for proper operation of the system if it finds that the system is malfunctioning, that the system has malfunctioned in the past, that seasonal use will significantly increase use of the system, that the number of people using the system has increased above its designed capacity, that a garbage grinder has been installed in a building serviced by a system not designed to handle the increased waste load, or for any other good cause shown.
Decreased frequency of pumping. The Board of Health may allow septic or alternate wastewater disposal systems to be pumped out at less frequent intervals when the owner can demonstrate to the Board of Health that the system can operate properly without the need for pump out at three-year intervals. In no case, however, shall such period be extended beyond six years. Such request may be made at any time and must be filed in writing with the Board of Health together with all supporting documents attached. The Board of Health in making its determination shall take into account the information submitted by the owner and any other information including reports of inspections and maintenance of the system, water conservation practices and devices in use by the owner, and may conduct an on-site inspection. The owner shall bear the cost of any inspection, surface or subsurface, and soil or water sampling conducted for the purpose of evaluating the request. A decision on the request shall be made by the Board of Health within 90 days of the receipt of all necessary information.
Other maintenance. The Board of Health may require the owner or occupant to conduct other necessary maintenance activity during regularly scheduled pump out of the septic or other on-site or alternate wastewater disposal system, if in the opinion of the Board of Health or its authorized agent such maintenance is required to maintain the system in proper functioning order. The owner or occupant shall, in each case, be responsible to pay for the cost of such other maintenance. In the event that the owner or occupant shall refuse to conduct such additional maintenance, the Board of Health may revoke the license in question.
Whenever an on-site or alternate wastewater disposal system is inspected, pumped out or other maintenance activity performed, an inspection/servicing report will be completed on forms supplied by the Board of Health. The contractor performing such work shall provide to the owner of the on-site or alternate wastewater disposal system a copy of the report (which copy shall also be provided to the Board of Health).
The system owner or principal user may be required to certify to the Board of Health either by signature on the original maintenance report or upon separate documents supplied by the Board that the septage or waste material removed does not contain any of the prohibited substances listed in § 260-12.
Any on-site or alternate wastewater disposal system or component thereof which is found to be malfunctioning and causing pollution of ground- or surface waters, contamination of public or private drinking water supplies, a nuisance or a hazard to public health shall be repaired, modified or replaced pursuant to an order of the Board of Health or its authorized agent, to correct the condition caused by the malfunction. Alterations shall be performed in accordance with "Standards for the Construction of Individual Subsurface Sewage Disposal Systems" as adopted and implemented by the Board of Health of the Borough of Chester and any amendments thereto or successor ordinances.
The Board of Health or its authorized agent may require the use of water conservation devices in the building or buildings being serviced by an on-site or alternate wastewater disposal system if, in the opinion of the Board of Health, such devices may improve the operation of said on-site or alternate wastewater disposal system.
The Board of Health shall provide upon request to all owners and users of on-site and alternate wastewater disposal systems within the Borough of Chester, whether or not a member of the district, a pamphlet explaining the workings of their septic or other on-site and alternate wastewater disposal systems, and the requirements of the Board of Health as provided in this chapter.
In addition, water conservation information will be provided by the Board of Health upon request.
Industrial wastes, unless special approval is granted by the New Jersey Department of Environmental Protection and the Board of Health.
Automobile oil and other noncooking oil.
Drainage from basement floors, footings and roof, unless same are discharged into an approved dry well.
Toxic and hazardous substances and chemicals, including but not limited to pesticides, acids, paint, paint thinner, herbicides, solvents and photographic chemicals.
Septic or cesspool cleaning and drain opening products including halogenated and aromatic hydrocarbons and organic chemicals, including but not limited to methylene chloride, 1,1,1,-tricloroethane and orthodichlorobenzene.
In addition to those rights granted to the Board of Health in N.J.S.A. 26:3-45 et seq., the Board of Health or its authorized agent, upon presentation of identification, shall have the right to enter upon property of members of the Management District for the purpose of observing, inspecting, monitoring and/or sampling of the on-site or alternate wastewater disposal system. This authority is exercised by virtue of N.J.S.A. 26:3-31 as a necessary and reasonable method of furthering the duties of the Board of Health as enumerated therein.
Not less than five days prior to the date of the inspection of an on-site wastewater system as defined herein, the Board of Health shall notify the owner or resident of the property that the inspection will occur.
Notwithstanding the provisions of Subsection B(1) above, the Board of Health or its authorized agent may accompany any pumper or other contractor to the site when such pumper or contractor performs services to the on-site or alternate system. The inspection referred to in Subsection A above may be conducted at the time that the Board of Health or its authorized agent accompanies the pumper or contractor to the site, and in this connection the notice requirement of Subsection B(1) shall not apply.
The right of entry expressed in this section shall not extend to the interior portions of any enclosed structure and is accordingly limited to out-of-doors areas associated with the on-site wastewater system.
The provisions of this section shall not apply where the Board of Health has probable cause to believe that the system is malfunctioning or is being operated improperly or is causing a nuisance, water pollution or public health hazard or is otherwise in violation of the provisions of this chapter or any ordinance, statute or regulation. In such case, the provisions of N.J.S.A. 26:3-45 et seq. shall apply.
Initial license. Each member of the Management District shall obtain an initial license for each on-site wastewater disposal system within 30 days after the effective date of any ordinance or amendment thereto which shall include such member within the Management District. Initial license requirements with respect to realty improvements served by small community systems are set forth in § 260-18B.
Expiration. Each license, whether an original or renewal license, shall expire at the end of three years from the date of issuance (which date of expiration shall be stated upon its face), unless sooner revoked.
Form and transferability. The licenses shall be issued on forms adopted by the Board of Health. Licenses shall be transferable upon change of ownership or occupancy of the premises with respect to which the license has been issued.
License fee and inspection fee. Each application for a license or renewal thereof shall be accompanied by a fee of $15. In the event the fee is submitted late, a surcharge of $15 per month shall be added to the fee.
Renewal of license. The Board of Health shall deny any application for renewal unless proof is submitted that, within the preceding three-year period, the septic or alternate wastewater disposal system has been pumped out at least one time, or more frequently if required. In addition, the Board of Health shall deny the renewal of such license in the event that the system is a malfunctioning system, as defined herein, or in the event that the owner or occupant is otherwise in violation of this chapter or any rule or regulation adopted hereunder.
The Board of Health may revoke or suspend any license issued hereunder where it has determined that the system is a malfunctioning system as defined herein or that the owner or occupant is otherwise in violation of this chapter, including the denial of the right of entry as referred to in § 260-13 or the failure on the part of any licensee to comply with the lawful orders or instruction of the Board of Health or its authorized agent pursuant to this chapter.
The Board of Health prior to an effective date of any revocation shall provide notice to the owner or occupant that the Board of Health proposes to revoke the license in question. Such notice shall clearly state the reasons for such proposed revocation, and shall indicate clearly the steps that the owner or occupant must take to correct the condition, and shall further provide a time limit by which time the correction or other necessary steps shall be taken. The notice shall refer to the appeal rights afforded by § 260-16 of this chapter. Further, the notice shall state that if the owner or occupant does not take the corrective steps required within the time period specified or, in the alternative, does not request a hearing pursuant to § 260-16, the revocation shall be effective automatically on the date set forth in such notice.
Any person aggrieved by an order of the Board of Health or its authorized agent issuing, denying, renewing or revoking a license as provided herein may file a written request for a hearing before the Board of Health within 10 days of the decision appealed from. The Board of Health shall give notice of a public hearing upon this request to be held not less than 30 days after service of the notice on the person requesting the hearing. At such hearing, the Board of Health shall determine whether the issuance, denial, renewal or revocation of the license was in accordance with the provisions and intent of this chapter and rules and regulations adopted hereunder and shall issue a written findings of facts and conclusions. These findings of facts, conclusions of law and order shall be filed with the Secretary of the Board of Health and served by the Board of Health on all parties appearing or represented at the hearing. At such hearings any interested party including the licensee shall be afforded the right of cross examination, may be represented by counsel of his or her choosing and afforded other procedural due process protections.
The Board of Health may require that any on-site or alternate wastewater disposal system located in the Borough of Chester, whether in use or proposed, be incorporated into and become part of the Management District. In the event that any system now in use shall be so incorporated, Appendix A hereof shall be amended by ordinance. In the event any proposed system shall be included in the Management District inclusion of such system shall be by virtue of a condition to approval of the proposed system at the time the Board of Health considers such proposed system. In the event that any owner or occupant of a realty improvement makes application to the Board of Health for a permit to alter or repair such system, the Board of Health may, as in the case of a proposed system, require inclusion in the Management District by virtue of condition to such approval.
A list of names and addresses (including lot and block numbers) of all participants in the small community system shall be provided to the Board of Health.
Expenses incurred on the individual property of participants in the small community systems by the Board of Health or its authorized agent may be assessed against the individual participant.
The legal entity owning the premises in question shall be identified by virtue of a copy of a certificate of incorporation, partnership agreement, or other legal document. The owner, so identified, shall be the entity responsible for all maintenance, operation and compliance of this chapter. The legal entity responsible for the maintenance and operation of the system may be assessed directly for expenses incurred by the Board of Health or its authorized agent, if any.
Where a small community system is included within the Management District, new members of the District whose realty improvements are serviced by such small community systems may be required to pump out the existing septic tank within 30 days of inclusion within the district and shall obtain an initial license within 60 days of inclusion in the District.
The Board of Health may adopt and promulgate rules and regulations in furtherance of the goals of this chapter.
Any person, persons, firm, partnership, entity or corporation violating any of the provisions of this chapter or any order promulgated under this chapter shall, upon conviction thereof, pay a penalty of not less than $5 nor more than $500 for each violation. Each day a particular violation continues shall constitute a separate offense.


§ 85-1 Definitions; word usage.
§ 85-4 Effective date of sections.
§ 85-5 Planning Board recommendations.
§ 85-12 Issuance of building permits and universal design permit to build; restrictive covenants.
§ 85-13 Information to be submitted with building permit application or universal design permit application or solar energy fast-track permit application.
§ 85-15 Certificates of occupancy.
§ 85-16 Certificates of existing use.
§ 85-17 Letters of correction.
§ 85-18 Temporary use of second home.
§ 85-30 Purpose and intent.
§ 85-31 Mandated certified educational training; costs and expenses.
§ 85-32 Procedure for removal of member.
§ 85-33 Removal for cause.
§ 85-34 When effective; applicability; severability.
§ 85-41 Purpose and intent.
§ 85-42 Minimum attendance requirements.
§ 85-43 Attendance records; notice of absences.
§ 85-44 Procedure for removal of member.
§ 85-45 Removal for cause.
§ 85-47 When effective; applicability.
§ 85-54 Adoption of rules; meetings; records.
§ 85-56 Delegation of authority to Town Board.
§ 85-57 Powers and duties.
§ 85-59 Duration of special permits, variances and land divisions.
§ 85-67 Powers and duties of Town Board.
§ 85-68 Review and issuance.
§ 85-82 Land use intensification mitigation fee.
§ 85-83 Amendment of restrictive covenants.
§ 85-84 Vote on amendments to restrictive covenant.
§ 85-86 Town Board determination.
§ 85-87 Procedure on motion of Town Board.
§ 85-88 Vote on amendments; amendments subject to written protest.
§ 85-90 Extension of time for implementation.
§ 85-99 Membership; terms of office.
§ 85-103 Assignment and delegation of powers, functions and responsibilities.
§ 85-107 Special permits from Planning Board.
§ 85-108 Area variances from Planning Board.
§ 85-113 Site plan review and approval.
§ 85-115 Preliminary site plans.
§ 85-117 Minor site plans.
§ 85-134 Designation of districts.
§ 85-135 Building Zone Map.
§ 85-136 Interpretation of district boundaries.
§ 85-138 Transition between districts.
§ 85-145 Stipulations, applications, and parcels subject to exemption.
§ 85-158 Penalties for offenses.
§ 85-159 Remedies and penalties for violations in Central Pine Barrens.
§ 85-166 Legislative intent and purpose.
§ 85-168 Building permits and certificates of occupancy.
§ 85-169 Affordable and workforce rental housing units.
§ 85-170 Affordable and workforce homeownership units.
§ 85-171 Ongoing monitoring requirements; certification.
§ 85-175 Residence District standards.
§ 85-176 Maximum building and driveway size.
§ 85-177 Table of Dimensional Regulations.
§ 85-183 Minimum habitable area.
§ 85-184 One-family dwellings; floor area.
§ 85-190 A Residence District.
§ 85-197 A Residence 1 District.
§ 85-204 A Residence 2 District.
§ 85-211 B Residence District.
§ 85-218 B Residence 1 District.
§ 85-225 C Residence District.
§ 85-232 D Residence District.
§ 85-239 A Residence 5 District.
§ 85-246 A Residence 10 District.
§ 85-265 Multifamily Residence District standards.
§ 85-266 Table of Dimensional Regulations.
§ 85-267 MF Residence District (Multifamily).
§ 85-271 Town Board special permits - accessory uses.
§ 85-274 Minimum lot area.
§ 85-275 Minimum width of lot.
§ 85-276 Minimum front yard setback.
§ 85-277 Minimum side yard and rear yard setbacks.
§ 85-278 Maximum permitted height.
§ 85-279 Maximum permitted floor area ratio (FAR).
§ 85-280 Density (units per acre).
§ 85-290 PRC Residence District (Planned Retirement Community).
§ 85-294 Town Board special permits for accessory uses.
§ 85-298 Density (units per acre).
§ 85-299 Affordable and workforce housing.
§ 85-316 PRCHC Residence District (Planned Retirement Congregate Housing Community).
§ 85-320 Planning Board special permits for accessory uses.
§ 85-322 Minimum lot area.
§ 85-323 Minimum width of lot.
§ 85-324 Minimum front yard setback.
§ 85-325 Minimum required side yard and rear yard setbacks.
§ 85-326 Maximum permitted height.
§ 85-327 Maximum permitted floor area ratio (FAR).
§ 85-328 Density (units/beds per acre).
§ 85-329 Transfer of development rights.
§ 85-339 NH-H Health Facility District.
§ 85-343 Site plan review.
§ 85-344 Nonconforming hospital; amortization.
§ 85-345 Regulations for certain lease agreements in multifamily residence districts.
§ 85-348 Lease of land.
§ 85-349 Sale of homes.
§ 85-350 Prohibited conduct by planned retirement community owner or operator.
§ 85-351 Required conduct of planned retirement community owner or operator.
§ 85-352 Grounds for eviction.
§ 85-353 Penalties for offenses; additional remedies.
§ 85-359 Site plan review.
§ 85-360 Time limitations on construction.
§ 85-361 Recreational facilities fee.
§ 85-368 Standards for horse farms.
§ 85-369 Site plan review.
§ 85-370 Exemptions from standards.
§ 85-389 Purpose and intent.
§ 85-392 Planning Board special permit for accessory uses.
§ 85-395 Special permit criteria.
§ 85-396 Property previously developed with golf course use.
§ 85-399 Business District standards.
§ 85-404 J Business District (Transitional Business).
§ 85-406 Adoption of J Business District Design Manual.
§ 85-408 Planning Board special permits.
§ 85-424 J Business 2 District (General Business).
§ 85-426 Town Board special permits.
§ 85-427 Planning Board special permits.
§ 85-429 Town Board special permits for accessory uses.
§ 85-430 Planning Board special permits for accessory uses.
§ 85-433 Special permit criteria.
§ 85-445 J Business 4 District (Professional and Business Offices).
§ 85-447 Planning Board special permits.
§ 85-449 Planning Board special permits for accessory uses.
§ 85-452 Special permit criteria.
§ 85-458 J Business 5 District (High Intensity Business).
§ 85-460 Town Board special permits.
§ 85-461 Planning Board special permits.
§ 85-463 Town Board special permits for accessory uses.
§ 85-464 Planning Board special permits for accessory uses.
§ 85-467 Special permit criteria.
§ 85-473 J Business 6 District [Main Street Business (MSBD)].
§ 85-475 Adoption of Main Street Business Design Manual.
§ 85-477 Town Board special permits.
§ 85-478 Planning Board special permit.
§ 85-480 Town Board special permits for accessory uses.
§ 85-483 Special permit criteria.
§ 85-484 Minimum site improvements.
§ 85-496 J Business 8 District (Hotel-Motel District).
§ 85-499 Planning Board special permits.
§ 85-501 Special permit criteria.
§ 85-511 Commercial Recreation (CR) District.
§ 85-515 Town Board special permits.
§ 85-517 Town Board special permits for accessory uses.
§ 85-518 Planning Board special permits for accessory uses.
§ 85-526 K Business District.
§ 85-534 PC Business District (Pet Cemetery Business District).
§ 85-537 Special requirements for pet cemeteries.
§ 85-538 Marine Commercial (MC) District.
§ 85-540 Permitted accessory uses.
§ 85-541 Planning Board special permits for accessory uses.
§ 85-544 Special permit criteria.
§ 85-553 Industrial District standards.
§ 85-558 L Industrial 1 District (Light Industry).
§ 85-561 Town Board special permits.
§ 85-563 Town Board special permits for accessory uses.
§ 85-564 Planning Board special permits.
§ 85-565 Planning Board special permits for accessory uses.
§ 85-568 Minimum site improvements.
§ 85-569 Special permit criteria.
§ 85-570 Hydrogeologic sensitive zones.
§ 85-577 L Industrial 2 District (Heavy Industry).
§ 85-579 Town Board special permits.
§ 85-581 Special permit criteria.
§ 85-589 L Industrial 4 District.
§ 85-598 Overview and historical background.
§ 85-600 Authority and supersession of Town Law.
§ 85-601 Terms and provisions of this article control.
§ 85-603 Designation of Ronkonkoma Hub TOD District.
§ 85-605 Development standards and requirements.
§ 85-621 Wetland Overlay District.
§ 85-625 Required buffer area within Wetlands Overlay District.
§ 85-626 Land division and subdivision yield calculation.
§ 85-633 HD Historic District.
§ 85-634 Purpose and policy.
§ 85-635 Historic District Advisory Committee.
§ 85-636 Establishment of historic districts or historic landmarks; exclusion of religious institutions and school district properties.
§ 85-637 Powers and duties of Commissioner.
§ 85-640 Limitation or remission of taxes.
§ 85-641 Violations; historic districts, historic district transitional area, historic landmarks.
§ 85-647 Lawrence Aviation Overlay District.
§ 85-648 Purpose, intent and objectives.
§ 85-649 Designation of Lawrence Aviation Overlay District.
§ 85-651.1 Density, clearing, setbacks and buffers.
§ 85-651.2 Designation of Lawrence Aviation Residential Transitional Overlay District.
§ 85-652 Montauk Highway Transitional Area Overlay District for Mastic and Shirley.
§ 85-653 Legislative purpose and intent.
§ 85-654 Designation of Montauk Highway Corridor Transitional Area Overlay District.
§ 85-657 Site development review standards.
§ 85-658 Enhanced dimensional requirements.
§ 85-659 Enhanced parking and access standards.
§ 85-660 Enhanced design standards.
§ 85-661 Enhanced site lighting requirements.
§ 85-662 Enhanced landscape requirements.
§ 85-663 Enhanced sign requirements.
§ 85-664 Enhanced screening of outdoor storage.
§ 85-665 Incentive uses permitted within District.
§ 85-666 Planning Board incentive special permits.
§ 85-674 Route 25A Hamlet Center Overlay District.
§ 85-675 Purpose, intent and objectives.
§ 85-676 Designation of Hamlet Center Overlay District.
§ 85-677 Development permitted within District.
§ 85-681 Front yard restrictions.
§ 85-682 Access to site; parking.
§ 85-684 Site lighting requirements.
§ 85-688 Route 25A Transition Overlay District.
§ 85-689 Purpose, intent and objectives.
§ 85-690 Designation of Route 25A Transition Overlay District.
§ 85-691 Development permitted within District; standards.
§ 85-694 Site development guidelines.
§ 85-696 Front yard parking restricted.
§ 85-697 Access to site; parking.
§ 85-699 Site lighting requirements.
§ 85-703 Planned Conservation Overlay District.
§ 85-704 Purpose, intent and objectives.
§ 85-705 Designation of District.
§ 85-706 Development permitted within District.
§ 85-708 Planning Board special permits.
§ 85-709 Special permit criteria.
§ 85-718 Central Pine Barrens District.
§ 85-721 Core Preservation Area.
§ 85-722 Compatible Growth Area.
§ 85-725 Pine Barrens Credit Program.
§ 85-727 Munsell Road Industrial Overlay District.
§ 85-737 Legislative purpose and intent.
§ 85-738 Creation of Planned Development District.
§ 85-741 Density and intensity.
§ 85-742 Standards and dimensional requirements.
§ 85-751 Severity of existing blight.
§ 85-752 Location characteristics of existing blight.
§ 85-753 Redevelopment benefit potential.
§ 85-755 Redevelopment initiative packages.
§ 85-756 Permitted and accessory uses.
§ 85-758 General severability; interpretation.
§ 85-787 Permitted uses and uses subject to administrative approval.
§ 85-788 Uses subject to special permits.
§ 85-789 Site plan and other approvals.
§ 85-790 Removal of abandoned antennas and towers.
§ 85-800 Wind energy conversion systems (WECS).
§ 85-805 Agriculturally used parcels.
§ 85-806 Other regulations; inspection and maintenance.
§ 85-807 Abandonment of use.
§ 85-808 Geothermal energy systems.
§ 85-809 Permitted geothermal systems and locations.
§ 85-812 Solar energy production.
§ 85-813 Solar energy production facilities.
§ 85-843 Land development standards.
§ 85-844 Setback and buffer requirements.
§ 85-845 Arterial highway buffer and setback requirements.
§ 85-846 Preferred tree species.
§ 85-847 Green landscaping and design standards.
§ 85-849 Required parking spaces.
§ 85-850 Required loading spaces.
§ 85-851 Alteration or enlargement of structure.
§ 85-852 Table of Parking Requirements.
§ 85-853 Plot plan required.
§ 85-854 Construction and maintenance of facilities.
§ 85-856 Availability of parking spaces.
§ 85-857 Revocation of certificate of occupancy.
§ 85-862 Exterior lighting standards.
§ 85-864 Applicability; nonconforming lighting; exceptions.
§ 85-865 Placement and height of fixtures for residential and nonresidential exterior lighting.
§ 85-866 Illumination levels and prohibited effects for residential and nonresidential exterior lighting.
§ 85-867 Illuminance and type of lamp for all nonresidential exterior lighting.
§ 85-868 General standards for nonresidential exterior lighting.
§ 85-869 Procedures for review of nonresidential exterior lighting.
§ 85-870 Guidelines for Exterior Lighting.
§ 85-871 Illegal exterior lighting.
§ 85-880 Corner and through lots.
§ 85-882 Visibility at intersections.
§ 85-884 Uses prohibited in all districts; advertising nonpermitted uses.
§ 85-885 Reduction in lot area.
§ 85-886 Uses prohibited in front yards.
§ 85-887 Sales trailers and sales offices.
§ 85-888 Temporary use mobile structures.
§ 85-889 Construction site trailers or mobile structures.
§ 85-890 Junk- and wrecking yards.
§ 85-913 Resubdivision of real property.
§ 85-915 Inactive subdivision and land division applications.
§ 85-918 Sewage disposal and treatment facilities.
§ 85-924 Agricultural Advisory Board.
§ 85-925 Farmland Bill of Rights.
Signs — See Ch. 57A.
Towing businesses — See Ch. 66.


Douglas J. BUCKLES, Appellee, v. FIRST DATA RESOURCES, INC., a Nebraska Corporation, Appellant.
Before McMILLIAN, FAGG, and BEAM, Circuit Judges. James B. McVay, Omaha, NE, argued, for Appellee. Andrew Stevenson Bogue, Omaha, NE, argued (Christopher M. Bikus, on the brief), for Appellant.
First Data Resources, Inc., (First Data) appeals the denial of its motion for judgment as a matter of law following a jury verdict in favor of former employee Douglas J. Buckles. Buckles, who has sinusitis, was fired from his job and alleges his termination violates the Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12101-12213. First Data argues, inter alia, that Buckles was not qualified to perform the essential functions of his job since he was excessively absent, and further, that he did not advance a reasonable accommodation. We agree and reverse.
In 1982, Douglas Buckles began working for First Data Resources as an authorizations agent. Authorizations agents verify credit card charges over the phone by entering specific information into a computer. Some time between 1986 and 1988, Buckles was diagnosed with acute recurrent rhinosinusitis. This condition, when manifested, could create a burning sensation, swelling in the face, wheezing or tightness in the chest, concentration problems, and eyes that watered and sometimes turned red. Buckles' sinus attacks were triggered by irritants such as heavy perfumes, smoke, nail polish, glue, tar, and various adhesives. In response to Buckles' condition, First Data created a work station for him in a room with better ventilation, and issued a memorandum prohibiting the use of nail polish in his department.
Throughout the course of his employment, Buckles' performance was generally satisfactory but he consistently struggled with his attendance. Like many employers, First Data maintains an attendance policy. First Data's policy allocates hours into three pools: pool A for vacation hours; pool B for sick leave; and pool C for additional sick leave. When an employee uses pool C hours after exhausting pools A and B, automatic corrective or disciplinary action is triggered.
On June 21, 1994, Buckles' anniversary of employment, his allotted hours for each pool were replenished. By August 3, Buckles had exhausted his pool A and B hours and used pool C hours. He received no disciplinary action for exceeding pool B hours, but instead his supervisors met with him and created a procedure to deal with any problems associated with his sinus condition. The procedure established that if he perceived or believed he would be exposed to irritants, he could sign off his phone, tell a supervisor of the potential problem, and vacate the area while an investigation ensued and a remedy was pursued.
Buckles continued to have attendance problems, however, resulting in three notices for corrective action. When Buckles thought he would be exposed to potential irritants, he went home. After leaving work again on September 20, Buckles was finally suspended and terminated on October 2, 1994. Buckles then brought this suit alleging violation of the ADA. The jury found in favor of Buckles and the district court entered judgment in the amount of $98,998.56 for back pay, front pay, attorney's fees, costs, and general compensatory damages. First Data brings this appeal following denial of its motion for judgment as a matter of law.
We review de novo the denial of a motion for judgment as a matter of law. See Gray v. Bicknell, 86 F.3d 1472, 1478 (8th Cir.1996). Judgment as a matter of law is appropriate if there is insufficient evidence to support the jury verdict. Id. The evidence is insufficient if “no reasonable juror could have returned a verdict for the non-moving party”-Buckles. Morse v. Southern Union Co., 174 F.3d 917 (8th Cir.1999) (sources omitted). In making this determination, we view all facts and resolve any conflicts in favor of Buckles, giving him the benefit of all reasonable inferences. See Varner v. National Super Markets, Inc., 94 F.3d 1209, 1212 (8th Cir.1996).
For claims under the ADA, we utilize the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998). Under McDonnell Douglas, Buckles must first establish a prima facie case of discrimination by showing “that [he] is disabled within the meaning of the [ADA]; [that he] is qualified to perform the essential functions of [his] job with or without reasonable accommodation; and [that he] suffered an adverse employment action because of [his] disability.” Webb v. Mercy Hosp., 102 F.3d 958, 959-60 (8th Cir.1996). First Data argues that Buckles is not disabled within the meaning of the ADA and is not qualified to perform the essential functions of his job with or without reasonable accommodation.
We focus our attention on Buckles' burden to establish that he is qualified to perform the essential functions of his job with or without reasonable accommodation.1 First Data contends that Buckles is not qualified because of his excessive absences. In the context of the ADA, we have recognized that “regular and reliable attendance is a necessary element of most jobs.” Nesser, 160 F.3d at 445. First Data is no exception and considers attendance to be an “essential function,” as illustrated by the detailed attendance policies and procedures. Buckles, an hourly employee, disputes that attendance is essential to First Data since there are numerous employees and the company accounts for possible absences. We are not persuaded by such a conclusory argument,2 which runs contrary to the express policies and procedures of First Data.
On June 21, 1994, Buckles' allotted vacation and sick leave time was replenished. In the short space of the six weeks that followed, he exhausted his entire year's worth of vacation and permitted sick leave time. Over the next two months, Buckles continued to have numerous absences and was finally terminated on October 2, 1994. Because of Buckles' frequent absences, he was unable to meet an essential function of his employment.
Buckles, nevertheless, argues that he is qualified to perform the essential functions of his employment-namely regular and reliable attendance-with a reasonable accommodation. Significantly, prior to his termination First Data made great efforts to accommodate Buckles. First Data issued a memorandum to employees prohibiting use of nail polish in Buckles' department. First Data also moved Buckles from the department he was in and created a work station in another room with better ventilation. Finally, a system was arranged for Buckles whereby if he was sensing an irritant he could sign off his phone, notify his supervisor, and wait until the problem was remedied.
Buckles contends that First Data's accommodation was not reasonable because it did not provide for “avoidance” of irritants in the workplace. In this situation, there is only so much avoidance that can be done before an employer would essentially be providing a bubble for an employee to work in. Even assuming Buckles is disabled within the meaning of the ADA, we think that First Data's accommodations in this regard were reasonable because they sought to avoid exposure, and in the event of possible exposure to an irritant, Buckles could “exit the area.” Instead of exiting the area, however, Buckles went home when he thought he would be exposed to an irritant. Unfettered ability to leave work at any time is certainly not a reasonable accommodation here. Additionally, Buckles argues that First Data's accommodation was not in writing. However, an accommodation need not be in writing to be reasonable.
Although the adjustments made by First Data proved unsuccessful, the burden remains with Buckles. He must show that a reasonable accommodation, allowing him to perform the essential functions of his job, is possible. See Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir.1998). The accommodation Buckles advances is “an irritant-free work environment” and “additional unpaid sick time.” There is no precise test for what constitutes a reasonable accommodation, but an accommodation is unreasonable if it “either imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program.” DeBord v. Board of Educ., 126 F.3d 1102, 1106 (8th Cir.1997).
The accommodation sought by Buckles would impose an undue financial and administrative burden on First Data. An employer is not required by the ADA to create a wholly isolated work space for an employee that is free from numerous possible irritants, and to provide an unlimited absentee policy. While the ADA notes examples of reasonable accommodations, including restructuring of a job and providing part-time or modified work schedules, see 42 U.S.C. § 12111(9)(B), these are limited by the reasonableness requirement. As noted, First Data reasonably attempted to alter the work environment and procedures to reduce Buckles' absences. This effort was unsuccessful, and Buckles continued to have numerous and unpredictable absences. Cf. Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir.1994) (stating there was no reasonable accommodation for “numerous unpredictable absences” within the first few months of temporary employment).
Because Buckles failed to advance a reasonable accommodation, he has not met his initial burden to show that he is a qualified individual under the ADA. Therefore, he “has not established a prima facie case of disability discrimination.” Moritz, 147 F.3d at 788. Consequently, there is not sufficient evidence to support the jury verdict and First Data is entitled to judgment as a matter of law.
For the foregoing reasons we reverse the denial of judgment as a matter of law and remand for entry of judgment in favor of First Data.
1. We do not reach the question of whether Buckles is disabled within the meaning of the ADA.
2. Buckles urges that under Carlson v. InaCom Corp., 885 F.Supp. 1314, 1321 (D.Neb.1995), First Data must additionally show a specific financial impact resulting from the absences. The showing of a financial burden relates to the rebutting of a requested reasonable accommodation. See DeBord v. Board of Educ., 126 F.3d 1102, 1106 (8th Cir.1997).


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FindACase | Noel v. Wal-Mart Stores, Inc.
Noel v. Wal-Mart Stores, Inc.
DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
Defendant Wal-Mart Stores, Inc., (“Wal-Mart”) moved for summary judgment  in this malicious-prosecution case brought by former employee Plaintiff Gregory Noel. For the following reasons, the Court grants in part and denies in part Wal-Mart's motion; Noel's malicious-prosecution claim will proceed, but his claim for punitive damages will not.
This case relates to alleged embezzlement by Gregory Noel, a former Wal-Mart employee. Wal-Mart hired Noel as an overnight maintenance associate at its Clinton, Mississippi, store in April 2015. A few months later, on June 26, 2015, Noel purchased several items in a transaction that was recorded by two video cameras, one directly above the cash register, and the other capturing a wider shot of the department where Noel made his purchases. There is no dispute that the cashier, Eric Redmond, “hand-keyed” the purchases, meaning he entered the prices by hand rather than scanning the items. This violated Wal-Mart policy.
Redmond was already on Wal-Mart's radar for expected theft. So at some point after this incident, Wal-Mart's asset-protection manager Alexandria Brookins reviewed the video footage. She also pulled the transaction history from that night and discovered that Noel paid $5.00 for his purchases-$1.42 less than he should have. Pl.'s Mem.  at 2. Based on this evidence, Brookins reported Noel's alleged theft, and he was charged with embezzlement. The charge was later dropped after Noel prevailed at trial.
Aggrieved, Noel sued Wal-Mart in state court alleging false arrest, malicious prosecution, intentional infliction of emotional distress, false imprisonment, and defamation. See Compl. [1-2]. Wal-Mart promptly removed the action to federal court based on diversity jurisdiction and, after discovery, requested summary judgment. See Notice of Removal ; Def.'s Mots. [27, 30]. Noel responded to Wal-Mart's motion, expressly conceding his false-arrest, false-imprisonment, and intentional-infliction-of-emotional-distress claims. See Pl.'s Mem.  at 7. The Court has subject-matter jurisdiction and will now consider Noel's remaining claims for defamation and malicious prosecution.
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when the evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
Wal-Mart seeks summary judgment on Noel's defamation and malicious-prosecution claims. See Def.'s Mem.  at 4-7, 10-12. Regarding defamation, Wal-Mart says the statements Noel relied upon are “privileged and, as such, not actionable.” Id. at 10 (citing Richard v. Supervalu, Inc., 974 So.2d 944, 949-50 (Miss. Ct. App. 2008)). Noel failed to address this argument, focusing instead on malicious prosecution. “If a party fails to assert a legal reason why summary judgment should not be granted, that ground is waived and cannot be considered or raised on appeal.” Criner v. Texas-New Mexico Power Co., 470 F. App'x 364, 368 (5th Cir. 2012) (quoting Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002)). Therefore, the Court finds that Noel has waived his defamation claim.
(1) the institution of a criminal proceeding; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage as a result of prosecution.

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Vamegh is the Department Chair and continental resources distinguished Professor at the Department of Petroleum Engineering, University of North Dakota, USA. He served as the head of Department of Petroleum Eng of Curtin University in Western Australia prior to his move to the States. Vamegh has been involved in development of Petroleum Eng Programs at both undergraduate and graduate levels, establishment of advanced labs in the area of Geomechanics and Drilling and has supervised several PhD students. He has a strong record of collaboration with oil and gas industry and has been the recipient of several industry and research funded projects. Vamegh has been a consulting Engineer to Schlumberger in the past and is now serving as an instructor for their NExT (Network of Excellence in Training) program, delivering industry short courses worldwide in different subjects including Petroleum Geomechanics, Drilling Eng, Hydraulic Fracturing, Pore pressure estimation and Sand Control.
- Rasouli, V., 2015. Book Chapter: Chapter 8: Geomechanics of Gas Shales. Fundamentals of Gas Shale Reservoirs. John Wiley & Spons. Inc. 2015. p. 169-190. http://www.amazon.com/Fundamentals-Shale-Reservoirs-Reza-Rezaee/dp/1118645790.
- Gholami, R., and Rasouli, V., 2015. Geomechanical and numerical studies of casing damages in a reservoir with solid production. Journal of Rock Mechanics Rock Engineering.
- Gholami, R., Rabiei, M., Rasouli, V., Aadnoy, B., and Fakhari, N., 2015. Application of quantitative risk assessment in wellbore stability analysis. Journal of Petroleum Science and Engineering. Accepted for publication.
- Sarmadivaleh, M., and Rasouli, V., 2015. Test Design and Sample Preparation Procedure for Experimental Investigation of Hydraulic Fracturing Interaction Modes. Journal of Rock Mechanics and Rock Engineering. Vol. 48 Issue 1, p93, 13 p.
- Gholami, R., Rasouli, V., Aadnoy, B., and Mohammadi. R., 2015. Application of in-situ stress estimation methods in wellbore stability analysis under isotropic and anisotropic conditions, Journal of Geophysics and Engineering. Accepted for publication.
- Mishani, S., Evans, B., Rasouli, V., Rofail, R., Soe, S., and Jaensch, P., 2015. Interlaminar modelling to predict composite coiled tube failure. APPEA Journal.
- Raza, A., Rezaee, R., Gholami, R., Rasouli, V., Han Bing, Ch., Nagarajan, R., abd Ali H., 2015. Injectivity and quantification of capillary trapping for CO2 storage: A review of influencing parameters. Journal of Natural gas science and engineering. Accepted for publication.
- Sarmadivaleh, M., and Rasouli, V., 2014. Modified Reinshaw & Pollard criteria for a non-orthogonal cohesive natural interface intersected by an induced fracture. Journal of Rock Mechanics and Rock Engineering. Vol. 47 Issue 6, p2107.
- Gholami, R., Moradzadeh A, Rasouli, V, Hanachi. J. (2014). Shear wave splitting analysis to estimate fracture orientation and frequency dependent anisotropy assessment, Acta Geophysica. Accepted for publication.
- Maleki, Sh, Moradzadeh, A., Gholami, Sadeghzadeh, F. (2014). Comparison of empirical correlations and artificial neural networks in prediction of shear wave velocity, NRIAG Journal of Astronomy and Geophysics. Accepted for publication.
- Gholami, R., Moradzadeh, A, Rasouli. V. (2014). Practical application of failure criteria in determination of safe mud weight windows in drilling practice, Journal of Rock Mechanics and Geotechnical Engineering, In Press.
- Gholami, R., Rasouli. V. (2014). Mechanical and Elastic Properties of Transversely Isotropic Slate, Rock Mechanics Rock Engineering, DOI 10.1007/s00603-013-0488-2.
- Gholami, R, Moradzadeh A., Rasouli, V., Hanachi. J. (2014). Shear wave velocity prediction using seismic attributes and well log data, Acta Geophysical, Accepted for publication.
- Rasouli, V., Sutherland, A., 2013. Geomechanical Characteristics of Gas Shales: A Case Study in the North Perth Basin. Journal of Rock Mechanics and Rock Engineering. Vol 47, Issue 6, 2031-2046.
- Gholami, R., Moradzadeh, A., Rasouli, V., & Hanachi, J., 2014. A new approach to determine geomechanical parameters of Vertical Transverse Isotropic media using VSP data. Journal of Applied Geophysics 111 (2014) 183–202.
- Maleki, S., Gholami, R., Rasouli, V., Moradzadeh, A., Ghavami Riabi, R., & Sadaghzadeh, F., 2014. Comparison of different failure criteria in prediction of safe mud weigh window in drilling practice. Earth Science Review. 136 (2014) 36–58. doi: 10.1016/j.earscirev.2014.05.010.
- Bineshian H., Rasouli, V., 2014. A practical modification to Ramamurthy et al strength criterion. Journal of Australian Geomechanics, Vol. 49, No.1.
Bineshian H., Rasouli, V., Bineshian, Z., & Ghazvinian, A., 2014, ‘Modification to Ramamurthy et al strength criterion based on lab data analysis of different intact rock types and coal’, Australian Geomechanics, 49 (1): 105 - 116.
- Abualksim, A., Rezaee, R., and Rasouli, V., 2014. Significance of compressional tectonic on pore pressure distribution in Perth Basin. Journal of Unconventional Oil and Gas Resources. Volume 7, September 2014, Pages 55–61.
- Rasouli, V., 2014. Some lessons learnt from drilling a gas shale well in Australia. APPEA Journal. p.p. 15-22.
- Fallahzadeh, and S.H., Rasouli, V., 2014. Challenges in Hydraulic Fracturing from Perforated Boreholes in Unconventional Reservoirs. APPEA Journal. p.p. 285-294.
- Joodi, B., and Rasouli V., 2014. Optimising drilling parameters using a newly developed lab scale drilling rig. APPEA Journal. p.p. 313-318.
- Kamyab, M.R., and Rasouli, V., Mandal, S., and Soe, Soren, 2014. Coiled tube drilling for unconventional reservoirs: importance of cuttings transport in directional drilling. APPEA Journal. p.p. 329-336.
- Minaeian, V., and Rasouli, V., 2014. A Laboratory Procedure Proposed for Mechanical Testing of Shales in the North Perth Basin. APPEA Journal.. p.p. 337-344.
- Gholami, R., Moradzadeh, A., Rasouli, V., Hanachi, J., 2013. Practical application of failure criteria in determination of safe mud weight windows in drilling practice. Journal of Rock Mechanics and Geotechnical Engineering. Volume 6, Issue 1, February 2014, Pages 13–25.
- Gholami, R., and Rasouli, V., 2013. Estimation of Geomechanical properties of TIV formations using VSP data in a case study in Iran. Journal of Rock Mechanics and Rock Engineering.
- Gholami, R., and Rasouli, V., 2013. Mechanical and elastic properties of transversely isotropic slate. Journal of Rock Mechanics and Rock Engineering. Volume 47, Issue 5 , pp 1763-1773.
- Younessi, A., Rasouli, V., and Wu, B., 2013. Sand production simulation under true-triaxial stress conditions. Int. Journal of Rock Mech. & Min. Sci. 61:130-140.
- Gholami, R. Moradzadeh, A., Rasouli, V., and Hanachi, J., 2013. Shear wave velocity prediction using seismic attributes and well log data. Acta Geophysica. Volume 62, Issue 4 , pp 818-848.
- Kamyab, M., Rasouli, V., Mandal., S., and Cavanough, G., 2013. Rheological properties and slurry behaviour in hard rock drilling. Mining Technology. 122 (4): pp. 185-192.
- Bineshian, H., Rasouli, V., Ghazvinian, A., & Bineshian, Z., 2013. Proposed constants for Bieniawski’s strength criterion for rocks and coal. International Journal of Remote Sensing & Geoscience (IJRSG). Vol. 2, Issue 3. ISSN No: 2319-3484. p.p. 12-21.
- Saeidi, O., Rasouli, V., Vaneghi, R.G., and Gholami, R., 2013. A modified failure criterion for transversely isotropic rocks. Geoscience Frontiers (GSF). Volume 5, Issue 2, March 2014, Pages 215–225.
- Saeidi, O., Vaneghi, R.G., Rasouli, V., & Gholami, R., 2013. A modified empirical criterion for strength of transversely anisotropic rocks with metamorphic origin. Bulletin of Engineering Geology and the Environment. Volume 72, Issue 2 , pp 257-269.
- Sarmadivaleh, M., Joodi, B., Nabipour, A., and Rasouli, V., 2013. Steps for conducting a valid hydraulic fracturing laboratory test. APPEA Journal.
- Mokaramian, A., Rasouli, V. and Cavanough, G. (2013). Coiled Tube Turbodrilling: A proposed technology to optimise drilling deep hard rocks for mineral exploration. International Journal of Mining and Mineral Engineering. 4 (3): pp. 224-248.
- Mokaramian, A., Rasouli, V. and Cavanough, G. (2013). Fluid Flow Investigation through Small Turbodrill for optimal Performance, Mechanical Engineering Research, Vol 3 (1), Canadian Center of Science and Education. ISSN 1927-0607. Doi: 10.5539/mer.v3nlpl.
- Minaeian, V., Rasouli, V., and Dewhurst, D., 2013. True Triaxial Strength Testing of Sandstones. 75th EAGE Conference & Exhibition incorporating SPE EUROPEC 2013 in London, England, 10-13 June 2013.
- Rasouli, V., and Evans, B., 2013. Design of an untra-speed Lab-scale drillnig rig for simulation of high speed drilling operations in hard rocks. 23rd World Mining Congress (WMC). 11-15 Aug, Montreal, Canada.
- Roufail, R., Rasouli, V., Mokaramian, A., Kamyab, M., Lagat, C., and Cavanough, G., 2013. Utilizing Coiled tube rig for mineral exploration application. 23rd World Mining Congress (WMC). 11-15 Aug, Montreal, Canada.
- Kamyab, M., Rasouli, V., Cavanough, G., and Mandal, S., 2013. Design of a slurry loop for cuttings transport studies in hard rock drilling applications. 23rd World Mining Congress (WMC). 11-15 Aug, Montreal, Canada.
- Kamyab, M., Rasouli, V., Cavanough, G., and Mandal, S., 2013. Numerical Simulations of Cuttings Transport in Mineral Exploration Boreholes. 23rd World Mining Congress (WMC). 11-15 Aug, Montreal, Canada.
- Fallahzadeh, S.H., and Rasouli. V., 2013. Experimental Investigation of Hydraulic Fracturing in Vertical and Horizontal Perforated Boreholes. 47th American Rock Mechanics Association (ARMA), 23-26 June, San Francisco, California, USA.
- Rasouli, V. & Younessi, A., 2012. Whicher Range Tight Gas Sands Study. Report 112. ISBN: 9781741684339. Government of Western Australia, Department of Mines and Petroleum. Geological survey of Western Australia. Chapter 5: Geomechanical characteristics of Tight Formations- A case study in Whicher Range Well 5 ST2.
- Rasouli, V. & Joodi, B., 2012. Whicher Range Tight Gas Sands Study. Report 112. ISBN: 9781741684339. Government of Western Australia, Department of Mines and Petroleum. Geological survey of Western Australia. Chapter 8: Well Construction and completion considerations for Whicher range tight gas sands.
- Gholami, R., and Rasouli, V., 2012. Improved RMR rock mass classification using artificial intelligence algorithms. Journal of Rock Mechanics and Rock Engineering. Volume 46, Issue 5 , pp 1199-1209.
- Parhizkar, A., Ataei, M., Moarefvand, P., and Rasouli, V., 2012. A probabilistic model to improve reconciliation of estimated and actual grade in open-pit mining. Arab J Geosci (2012) 5:1279–1288.
- Asadi, M.S., Rasouli, V., and Barla, G., 2012. A Bonded Particle Model simulation of shear strength and asperity degradation for rough rock fractures. Journal of Rock Mechanics and Rock Engineering. 45:649–675.
- Asadi, M.S., Rasouli, V., and Barla, G., 2012. A laboratory shear cell used for simulation of shear strength and asperity degradation of rough rock fractures. Journal of Rock Mechanics and Rock Engineering.
-Rasouli, A. & Rasouli, V., 2012. Simulations of fluid flow through a porous formation with a single rough fracture plane. Eurock 2012. Stockholm, Sweden.
- Asadi, M.S. & Rasouli, V., 2012. Physical simulation of asperity degradation using laboratorial shear tests of artificial fractures. Eurock 2012. Stockholm, Sweden.
-Fallahzadeh, S.H. & Rasouli, V., 2012. The impact of cement sheath mechanical properties on near wellbore hydraulic fracture initiation. Eurock 2012. Stockholm, Sweden.
- Younessi, A. & Rasouli, V., Wu, B., 2012. Experimental Sanding analysis: Thick wall cylinder versus true triaxial tests. The 2nd South Hemisphere Int. Rock Mech. Conf. (SHIRMS), May 2012. Sun City, South Africa.
-Younessi, A. & Rasouli, V., Wu, .B, 2012. Proposing a sample preparation procedure for sanding experiments. The 2nd South Hemisphere Int. Rock Mech. Conf. (SHIRMS), May 2012. Sun City, South Africa.
-Younessi, A. & Rasouli, V., 2012. Numerical simulations of sanding under different stress regimes. Americal Rock Mechanics Association (ARMA).
-Younessi, A. & Rasouli, V., 2012. The Eeffect of stress anisotropy in sanding: an An experimental study.
Americal Rock Mechanics Association (ARMA).
-Mokaramian, A., Rasouli, V. and Cavanough, G., 2012. A hydraulic specific energy performance Indicator for Coiled Tubing drilling in hard rocks. Americal Rock Mechanics Association (ARMA).
-Mokaramian, A., Rasouli, V. and Cavanough, G., 2012. Adapting oil and gas Downhole Motors for Deep Mineral Exploration Drilling. Deep mining Conference, 475-486. May 2012, Perth.
-Mokaramian, A., Rasouli, V. and Cavanough, G., 2012. A feasibility study on adopting coil tubing technology for deep mining exploration drilling. Deep mining Conference, 487-499. May 2012, Perth.
-Rasouli, V., 2012. Hydraulic fracturing for in situ stress measurements—a simulation and experimental study. Deep mining Conference, 239- 246. May 2012, Perth.
-Mokaramian, A., Rasouli, V. and Cavanough, G., 2012. Quality Sampling using Coiled Tubing drilling in Deep Mineral Exploration. Sampling Conference. P. 73-79. 21-22 Aug Perth.
-Rasouli, A., and Rasouli, V., 2012. Simulations of fluid flow through a porous formation with a single rough fracture plane. Eurock 2012. June 2012, Stockholm, Sweden.
- Mokaramian, A., Rasouli, V. and Cavanough, G., 2012.Turbodrills design and performance analysis for efficient drilling in hard rocks. 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Kamyab, M., Rasouli, V., Cavanough, G., & Mandal, S., 2012. Challenges of cuttings transport in micro – borehole coiled tubing drilling for mineral exploration, 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Gotti, A., Fallahzadeh, S.H., Rasouli, V., 2012. An experimental study to investigate hydraulic fracture reorientation with respect to principal stresses, 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Archer, S., & Rasouli, V., 2012. A log based analysis to estimate mechanical properties and in-situ stresses in a shale gas well in North Perth Basin, 1st International Conference on Petroleum and Mineral Resources, 4- 6 December, Koya, Kurdistan, Iraq.
-Le, K., & Rasouli, V., 2012. Determination of safe mud weight windows for drilling deviated wellbores: A case study in the North Perth Basin. 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Lock, E., Ghasemi, M., Mostofi, M., & Rasouli, V., 2012. An experimental study of Permeability Determination in the lab. 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Cole, J., & Rasouli, V., 2012. Numerical Simulations of CO2 Injection into a Porous Sandstone Formation. 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Smith, S., & Rasouli, V., 2012. Torque and Drag Modelling for Redhill South-1 in Northern Perth Basin, Australia. 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Kosasih, W., & Rasouli, V., 2012. Geostatistical analysis of surface morphology and its relationship with hydro-mechanical properties of natural fractures. 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Gholami, R., & Rasouli, V., 2012. Numerical simulations of casing collapse: A case study in Southern Iran. 1st International Conference on Petroleum and Mineral Resources, 4 - 6 December, Koya, Kurdistan, Iraq.
-Rasouli, V., and Hosseinian, A., 2011. Correlations developed for estimation of hydraulic parameters of rough fractures through simulation of JRC flow channels. Journal of Rock Mechanics & Rock Eng. 44 (4): 447-461.
-Mostofi, M., Rasouli, V., Elike, M., 2011. An estimation of rock strength using a drilling performance model: A case study in Blacktip field, Australia. Journal of Rock Mechanics & Rock Eng.
- Rasouli, V., Zacharia, J., and Elike, M., 2011. The influence of perturbed stresses near faults on drilling strategy: A case study in Blacktip field, North Australia. Journal of Petroleum Science & Engineering. 76: 37-50.
-Tokhmechi, b., Memarian, H., Moshiri, b., Rasouli, V., and Ahmadi Noubari, H., 2011. Investigating the validity of conventional joint set clustering methods. Journal of Engineering Geology.
-Younessi, A., and Rasouli, V., 2011. A preliminary experimental study on sand production under true triaxial stress conditions. APPEA journal. 51: 567-576.
-Asadi, M. S., and Rasouli, V., 2011. A laboratory shear cell used for simulation of fracture reactivation. APPEA journal. 51: 487-498.
-Sarmadivaleh, M., and Rasouli, V., Shihab, N., K., 2011. Hydraulic fracturing in an unconventional naturally fractured reservoir: a numerical and experimental study. APPEA journal. 51: 507-518.
-Rasouli, V., and Sarmadivaleh, M., Nabiour. A., 2011. Some challenges in hydraulic fracturing of tight gas reservoirs: An experimental study. APPEA journal. 51: 499-506.
-Chamani, A., and Rasouli, V., 2011. 3D numerical simulation of maximum injection pressure in natural gas storage. APPEA journal. 51: 653-666.
-Sarmadivaleh, M., Rasouli, V., Nabipour, A., 2011. A PFC2D Simulation of Hydraulic Fracture and Natural Interface Interaction. Accepted for publication in and presentation at the 2nd International FLAC/DEM Symposium, February 2011, Melbourne, Australia.
-Sarmadivaleh, M., Rasouli, V., Ramses, W., 2011. Numerical simulations of hydraulic fracture intersecting an interbed of sandstone. ISRM, Beijing.
- Soroush, H., Tokhmechi, B., Rasouli, V., and Qutob, H., 2011. A Novel Approach for Breakout Zone Identification in Tight Gas Shale. SPE-143072.
- Chamani, A., and Rasouli, V., 2011. Simulation of Depletion-induced Surface Subsidence in a Coal Seam. The 3rd Asia Pacific Coalbed Methane Symposium. Brisbane, May 3-6.
- Minaeian, V., and Rasouli, V., 2011. A rock mechanical model developed for a Coal Seam Well. The 3rd Asia Pacific Coalbed Methane Symposium. Brisbane, May 3-6.
- Torbatynia, M., and Rasouli, V., 2011. Simulations of gas flow in a Coal seam. The 3rd Asia Pacific Coalbed Methane Symposium. Brisbane, May 3-6.
- Nazaralizadeh, S., and Rasouli, V., 2011. Stress induced permeability changes due to production from a Coal seam. The 3rd Asia Pacific Coalbed Methane Symposium. Brisbane, May 3-6.
- Rasouli, V., 2011.Hydraulic fracturing experiments in tight formations. The 3rd Asia Pacific Coalbed Methane Symposium. Brisbane, May 3-6.
- Rasouli, V., and Evans, B., 2011. Seismic and geomechanical response of anisotropic fractured rock masses GP087. GeoProc2011, Perth, July 6-9.
- Rasouli, V., and Chamani, A., 2011. A 3D numerical study on Geomechanical response of a structural reservoir due to gas injection. GP086. GeoProc2011, Perth, July 6-9.
- Rasouli, V., 2011. A true triaxial stress cell (TTSC) used for simulations of real field operations in the lab. True Triaxial Testing of Rocks: Proceedings of the TTT Workshop, Beijing, October 17th, 2011 -An Edited Volume by Marek A. Kwasniewski. Page 311-319, Chapter 24.
The 12th ISRM International Congress on Rock Mechanics. Beijing, October 18-21.
- Sarmadivaleh, M., Rasouli, V., and Ramses, W., 2011. Simulations of Hydraulic Fracture Intersecting an Interbed of Sandstone. The 12th ISRM International Congress on Rock Mechanics. Beijing, October 18-21.
-Soroush, H. and Rasouli, V., 2011. A Combined Bayesian-wavelet-data Fusion Workflow for Breakout Zone Identification in Oil and Gas Wells. The 12th ISRM International Congress on Rock Mechanics. Beijing, October 18-21. Paper No. 11-0265.
- Iglauer, S., Wang, S., and Rasouli, V., 2011. Hydraulic fracturing induced by tri-axial stress fields measured via micro-computed tomography. Asia Pacific Oil & Gas Conference and Exhibition. 20-22 September 2011. Jakarta, Indonesia. SPE 145960.
- Parhizkar, A., Ataei, M., Rasouli, V., and Moarefvand, P. 2010. A Probabilistic Model to Improve Reconciliation of Estimated and Actual Grade in Open Pit Mining. Arabian Journal of Geosciences.
- Rasouli, V., and Harrison, J. P., 2010. Assessment of rock fracture surface roughness using Riemannian statistics of linear profiles. International Journal of Rock Mechanics & Mining Sciences. 47: 940-948.
- Younessi, A., and Rasouli, V., 2010. A fracture sliding potential index for wellbore stability analysis. International Journal of Rock Mechanics & Mining Sciences.47: 927-939.
- Soroush, H., Rasouli, V., and Tokhmechi, B., 2010. A combined Bayesian-Wavelet-Data Fusion approach proposed for borehole enlargement identification in Carbonates. International Journal of Rock Mechanics & Mining Sciences. 47: 996-1005.
- Rasouli, V., and Evans, J, B., 2010. A True Triaxial Stress Cell (TTSC) to simulate deep downhole drilling conditions. APPEA journal 50:61-70.
-Younessi, A., and Rasouli, V., 2010. Rock Engineering Systems adapted for sanding prediction in perforation tunnels. APPEA journal. 50: 613-621.
-Sarmadi, M., Rasouli, V., 2010. Simulations of Hydraulic fracturing in tight formations. APPEA journal. 50: 581-591.
-Bahrami, H., Rezaee, R., Rasouli, V., Hosseinian, A., 2010. Liquid Loading in Wellbore and Its Effect on Clean-Up Period and Well Productivity in Tight Gas Reservoirs. APPEA journal. 50: 559-566.
- Rasouli, V., Zacharia, J., and Elike, 2010. Optimum well trajectory design in a planned well in Blacktip field, Australia. APPEA journal.50: 535-548.
- Rasouli, V., Evans, B. J., 2010. Maximised production through deviated drilling and fraccing. Petroleum exploration society of Australia (PESA) resources. Issue No. 103, December/January 2009/2010. ISSN 1039-4419. pp. 62-64.
- Asadi, M. S., Nabipour, A., Sarmadivaleh, M., Sabogal, J., and Rasouli, V., 2010. Discrete Element Simulation of Induced Damaged Zones in Perforation of Deep Gas Reservoirs. SPE Deep Gas Conference and Exhibition held in Manama, Bahrain, 24–26 January 2010. 131264-MS.
-Bahrami, H., Hosseinian, A., Rasouli, V., Siavoshi, J., Mirabolghasemi, M., and Sinanan, B., 2010. Prediction of Downhole Flow Regimes in Deviated Horizontal Wells for Production Log Interpretation. SPE 132830. Trinidad and Tobago Energy Resources Conference held in Port of Spain, Trinidad, 27–30 June.
- Rasouli, V., and Tokhmechi, B., 2010. Difficulties in using geostatistical models in reservoir simulation. SPE North Africa Technical Conference and Exhibition. Cairo, Egypt, 14–17 February. SPE 126191-MS.
- Asadi, M. S., Rasouli, V., 2010. Direct Shear Test Simulation of Real Rough Rock Fractures. Eurock 2010. Switzerland. 231-234.
- Hosseinian, A., Rasouli, V., and Utikar, R., 2010. Fluid flow responses of JRC exemplar profiles. Eurock 2010. Switzerland. 239-242.
- Hosseinian, A., Rasouli, V., and Bahrami, H., 2010. Analytical and numerical analysis of fluid flow through rough natural fracture profiles. 44th US Rock Mechanics Symposium (ARMA) and 5th U.S.-Canada Rock Mechanics Symposium, Salt Lake City, UTAH June 27–30.
- Nabipour, A., Sarmadivaleh, M., Asadi, M. S., Sabogal, J., and Rasouli, V., 2010. A DEM Study on Perforation Induced Damaged Zones and Penetration Length in sandstone reservoirs. 44th US Rock Mechanics Symposium (ARMA) and 5th U.S.-Canada Rock Mechanics Symposium, Salt Lake City, UT June 27–30.
- Younessi, A.R. and Rasouli, V., 2010. Representing Rock Engineering System (RES) for Sanding prediction in perforation tunnels. Eurock 2010. Switzerland. 845-848.
- Ghamgosar, M., Fahimifar, A., and Rasouli, V., 2010. Estimation of rock mass deformation modulus from laboratory experiments in Karun dam. Eurock 2010. Switzerland. 805-808.
-Sarmadi, M., Rasouli, V., 2010. Controlling parameters in Hydraulic Fracturing of tight formations. GEO 2010 9th Middle East Geo-science Conference and Exhibition, Manama, Bahrain.
- Bagherian, M., Sarmadivaleh, M., Ghalambor, A., Nabipour, A., Rasouli, V., and Mahmoudi, M. 2010. Optimization of Multiple-Fractured Horizontal Tight Gas Well. SPE International Symposium and Exhibition on Formation Damage Control. Lafayette, Louisiana, USA, 10–12 February 2010.
- Asadi, M. S., Rasouli, V., and Zhang, Y., 2010. On the Coupled Hydro Geomechanical Simulation and Analysis of Fault Reactivation: Influence of Fault Geometry. SPE-133070-PP. SPE Asia Pacific Oil and Gas Conference & Exhibition (APOGCE). 18-20 October 2010, Brisbane, Australia.
-Bahrami, H., Rezaee, R., Akim Kabir, A., Siavoshi,J., Jammazi, R. "Using Second Derivative of Transient Pressure in Welltest Analysis of Low Permeability Gas Reservoirs", SPE Production and Operations Conference and Exhibition held in Tunis, Tunisia, 8–10 June 2010.
-Bahrami, H. , Rezaee, R. , Asadi, M. S., "Stress Anisotropy, Long-Term Reservoir Flow Regimes and Production Performance in Tight Gas Reservoirs", SPE Eastern Regional Meeting held in Morgantown, West Virginia, USA, 12–14 October 2010.
-Sarmadivaleh, M., Nabipour, A., Asadi, M., Sabogal, J., Rasouli, V., 2010. Identification of Porosity Damaged Zones around a Perforation Tunnel Based on DEM Simulation. The 6th Asian Rock Mechanics Symposium - Advances in Rock Engineering, October 2010, New Delhi, India.
-Tokhmechi, B., Memarian, H., Rasouli, V., Ahmadi Noubari, H. and Moshiri, B., 2009. Fracture detection using water saturation log data based on a Fourier-Wavelet approach. Journal of Petroleum Sci & Eng. Vol. 69, 129-138.
-Asadi, M. S., Rasouli, V., and Tokhmechi, B., 2009. Wavelet Analysis of JRC exemplar profiles. Eurock 2009, Croatia. 215-220.
-Hamzehpour, H., Parhizkar, A., Radman, A.M. and Rasouli, V., 2008. Modeling and estimation of rock mass deformation modulus using geostatistical approaches in Bakhtiary dam, Iran. 5th Asian Rock Mechanics Symposium (ARMS5), The 2008 ISRM-Sponsored International Symposium. 24-26 Nov, Tehran, Iran.
-Younessi, A.R. and Rasouli, V., 2008. Representing a rock engineering system to analyse wellbore instability due to fracture reactivation. 1st Southern Hemisphere International Rock Mechanics Symposium, 381-394. Perth, Australia.
-Parhizkar, A., Rasouli, V., Osanloo, M., 2008. Studying the scale effect and uniformity of grade parameter using geostatistical approaches. 17th international symposium on mine planning and equipment selection (MPES), 337-341. Beijing, China.
-Parhizkar, A., Osanloo, M. and Rasouli, V., Bangian, A.H., 2008. Optimisation of road position in open pit mining using location theory. 17th international symposium on mine planning and equipment selection (MPES), 184-190. Beijing, China.
-Rasouli, V., John, Z., 2008. Mechanical Earth Model for Enfield field. Technical report submitted to Woodside.
-Eskandari, S., Rasouli, V. and Najafabadi, M., 2006. The use of principal component technique to study the anisotropy in spatial structure of iron grade in Gol-E-Gohar No 3 mine. Journals of Mines, Metals and Fuels, 393-396.
-Rasouli, V. and Harrison, J.P., 2004. A comparison of linear profiling and an in-plane method for the analysis of rock surface geometry. International Journal of Rock Mechanics and Mining Sciences, 377-378.
-Rasouli, V. and Harrison, J.P., 2003. Is it wavy or rough? 10th ISRM Congress, 943-946. Johannesburg, South Africa.
-Rasouli, V. and Harrison, J.P., 2001. Is the observational method of roughness determination trustworthy? Proc. ISRM Int. Symp. Eurock 2001, 277-282. Espoo, Finland.
-Rasouli, V. and Harrison, J.P., 2000. Scale effect, anisotropy and directionality of discontinuity surface roughness. ISRM Int. Symp. Eurock 2000, 751-756. Aachen, Germany.

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