Hi, it’s David Perecman, owner of the Perecman Firm P.L.L.C. This is my monthly column, “David’s Corner.” In it, I will talk about the latest developments in the area of New York construction accidents. That includes news on major rulings and case law which may affect construction workers across NYC and the state, legislative updates and new laws, current industry trends, and other pertinent information relevant to workers, their legal rights, and the risks they face when on the job.
If you have questions about your own construction accident case, options, and how our firm can help, we’re available 24/7 to take your call, and offer free and personalized consultations. Contact us.
Dec 13, 2018 Here, we have the Court discussing the law regarding one of the most typical types of construction site accidents, a slip and fall. In this case, it was due to snow covered pipes on the ground next to the worker’s shanty. The worker slipped on the pipes. Since this is a non-gravity case, it must only involve Labor Law § 241(6) or 200. For a plaintiff to win the Labor Law §241(6) case, they must show that the pipes somehow violated a NYCRR regulation. We know that. He named the tripping regulations NYCRR 23-1.7(e)(1) and (2). The first regulation 23-1.7(e)(1), creates liability for a broad category of hazards, “obstructions or conditions which could cause tripping,” but that is only if it’s in a passageway. Passageway is defined as “a typically narrow way connecting parts of a building” or doorways and areas immediately adjacent to them. Here, since it was an outdoor open area, it’s not a passageway. But the Court said that 23-1.7(e)(2) can apply since it covers “working areas” not just passageways and is violated if there are scattered tools or materials that cause the fall. The Court said that the cause of the accident may have been the pipes themselves (scattered materials) as well as the snow that may have been the dangerous condition that caused the accident.
Dec 13, 2018 Here the Appellate Division, First Department Court applied a principle we have come to understand only over the past 10 or so years: that objects don’t have to fall straight down onto a worker and don’t have to fall long distances for Labor Law § 240 to apply. Here, a heavy object fell a short distance and tips; Labor Law § 240 still applies particularly where the lifting device is inadequate to hold it.
Nov 21, 2018 This is an interesting case from the Appellate Division, Second Department. People who argue that Labor Law § 240 is unfair, take heart. Here, the Court acknowledged that the worker doesn’t just win because he says the scaffold moved causing him to fall. Since a witness says that he was told by the worker that he just tripped and fell, a jury has to decide the case. The Court also spoke about another issue that pops up in these cases: who is a general contractor under Labor Law § 240? The answer, in a nutshell, is someone who acts like a general contractor and has the authority and control over the worker’s work. Here, if you really didn’t control safety you walk away from 240 liability. Finally, the court kept Rockledge Scaffold in the case because even though Labor Law § 240 doesn’t apply to them, plain old rules about negligence do apply to them and if the injured worker proves the scaffold moved and shouldn’t have, you could lose.
Nov 14, 2018 This case is a mixed bag. The worker injured himself while climbing up a broken ladder attached to a building, while doing a project at the building. He was climbing the ladder to screw it the top rung which was missing a bolt. This is an example of what I believe to be an unduly harsh interpretation of the Labor Law § 240(1) and Labor Law § 241(6) case law by the Appellate Division, Second Department. Here, a worker climbed up a ladder that was fixed to a building’s wall and led to the roof in order to replace a bolt that was missing from the top rung. He grabbed onto the top rung while climbing and fell. The court simply said he didn’t make out a strong enough case to win summary judgment on the gravity statute, Labor Law § 240(1). I think the court simply was bothered because the worker did something that was not too well thought out. But that’s the point in Labor Law 240 cases. A worker’s negligence can’t be the sole cause if another cause is the failure to provide proper protection. It was the obligation of his boss or the general contractor to have him use another device or to prevent him from using the fixed ladder. Once they failed in that obligation, Labor Law 240 was violated. And that’s where it should have ended, in my humble opinion. On the non-gravity Labor Law § 241(6) theory, the court said there is a question if it was integral to the work and again denied summary judgment even though they said he made out a prima facie (on its face) violation. Again, I think they just felt the worker was foolish and didn’t want him to win summary judgment.
Oct 24, 2018 This is a useful case for lawyers because it covers a lot of topics, and it also explains a lot for workers to know. The case restated the law for the “scaffold law” or Labor Law 240(1) that when a worker is injured at a construction site because a part of their elevation safety device (ladder, scaffold, hoist, ropes, etc.) broke, failed, collapsed or moved, they are entitled to what we call summary judgment. That means the worker already wins the “who is legally responsible for their accident” part of their case without a trial, and would only have a trial for a jury to determine how much compensation they get – the money decision. The rest of the case is somewhat technical. The case explains what happens when one of the participants/parties to the lawsuit makes or allows evidence to disappear. Here, it was the broken plank. The court can give them some very stiff penalties that help the other parties to the case, including the worker. The court also spoke about the rules and laws between the contractors. In these cases, the contractor, owners, and sub-contractors try to put the blame on each other since they already lost and probably knew they were going to lose against the plaintiff, the injured worker.
Oct 24, 2018 I have handled countless cases over the years where a worker used an A-frame ladder in the closed position because they didn’t have the room to open it, only to have the ladder slide out and cause the worker to suffer a serious injury. Since they don’t really have six-foot straight ladders available, workers, knowing that the boss wants the job done, close and lean the ladder on a wall. Far too often, their bosses are well aware of this dangerous situation. The Gillett case made it clear that those workers don’t just get their cases thrown out of court. The worker has the right to present their case to a jury. I should mention that there are also similar “closed A-frame” cases where the worker doesn’t even have to present the case to a jury. The court instead says, if that’s what happened you win. The case is either then settled or you present your case to a jury who only decide how much you get because you already won the case that they are at fault.
Oct 17, 2018 We see the court here saying what we’ve explained before – that you can’t sue your employer. However, you can get workers’ compensation benefits from them. On a construction site, you can sue other parties like the owner and general contractor. They are responsible for the things done, not done, or not done safely, by any contractor, even if the owner or general contractor didn’t see it or know about it. It’s their responsibility to make sure the site is safe. This case also shows how important good lawyering is. While I can’t be sure what the worker’s lawyers did there, I know they didn’t show the Court that the contractor should have known that it was likely that the roof that partially collapsed would do so; so no summary judgment. That doesn’t mean the worker lost, it only means that that worker will have to win the “who is responsible” part at a trial – unlike the MacDonnell case I mentioned above where the worker won because a scaffold collapsed. The difference is that the court presumes the contractors know safety devices like ladders and scaffolds can break, fall, or cause a worker to fall. Roofs shouldn’t just fall or collapse. But if the worker’s lawyer shows that the contractors should have known the roof could partially collapse, they would win summary judgment too.
Oct 10, 2018 Construction worker wins summary judgment where worker falls from scaffold without rails. This was a simple case where a worker fell from a scaffold that had no rails nor any other safety device to prevent them from falling, and they won summary judgment. This case doesn’t discuss it, but workers should know that they don’t have to have a witness to win or even to win summary judgment. It helps but it is not required.
Oct 10, 2018 A fire marshal who inspecting the sprinklers can bring a suit under the laws protecting construction workers if he trips on debris at the site during ongoing construction.
Oct 9, 2018 In these kind of cases, it’s not always easy to explain why the worker can and should win, but they often do. The whole idea of Labor Law 240, the “scaffold law,” is that scaffolds and ladders are dangerous, period. Workers can and will fall. So here, even though the worker set the ladder up sideways and straddled both sides because he was on the sidewalk and he had to keep clear of pedestrians, he won summary judgment. He won because a worker’s partial fault doesn’t mean he loses. The owner and general contractor were required to provide a safer device and are required to make sure the ladder doesn’t fall. They also did not prove that the worker was instructed to use another safer device and refused to do so.
Oct 3, 2018 In the Simmons case, a plumber was injured when a compressor fell a few inches off a pallet while being moved. The Court decided that he can sue because the pallet got stuck on debris on the floor. When a worker comes to my office and tells me how their accident happened, they really don’t care whether they have a case because of Labor Law section 200, 240, or 241(6). They just want a chance to be made whole again. Here, where the compressor fell three to six inches off the pallet, it was not a significant enough distance for section 240 to apply. That law provides protection for workers injured due to a lack of safety devices to protect them from gravity-related hazards. Typically, it applies when they fall or an object falls on them. But sometimes an object may only move a small distance downward, but because of its weight causes a lot of harm. One such case decided a few years ago was Kempisty v. 246 Spring Street, LLC, et al. Our firm won that case after an appeal to the Appellate Division. There, a four-ton steel block was being hoisted by a crane and, as soon as it was lifted, it moved sideways catching the heel of Mr. Kempisty, a union dock builder, in between that block and another block on the ground. My theory was that when a block moves like that upon being lifted, it’s because it is swinging to get to its lowest point, like a pendulum. I hired an expert who explained what I knew to the court, that it was from gravity. We won, and the case went on to a trial on to a trial on damages where the jury awarded close to $8 million and settled after for $7.25 million.
The Perecman Firm’s team of NYC personal injury attorneys have recovered more than $400 million in verdicts and settlements for their clients. We understand the financial and emotional toll a serious accident can have on your life. That’s why we dedicate ourselves to maximizing your recovery and securing what you deserve.


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Owing to their magnetic properties, iron oxide nanoparticles are of considerable interest for applications in high-density data storage or in medicine.[1–3] In the case of small particles though, the superparamagnetic limit is reached and the relevant magnetic properties lost. Retaining appealing magnetic properties while maintaining a small nanoparticle size has thus proved a highly challenging task. However, in these small nanoparticles, the magnetic properties are predominantly governed by the surface magnetic anisotropy and modifying it represents one of the best approaches to improve the properties. Following this approach, we have been investigating a novel synthetic strategy to enhance the anisotropy of sub-10 nm maghemite nanoparticles. Surface functionalization was achieved to coordinate anisotropic cobalt containing complexes to the surface of maghemite nanoparticles.
To further our comprehension of the surface anisotropy effect, we have investigated different particles sizes and different complexes (either changing the metal nature (Co, Ni) or the complex geometry). Thus, three batches of nanoparticles with diameters of 4.2 nm, 5.9 nm, and 8.5 nm with low polydispersity were synthesized (figure 1a). Additionally, several complexes were successfully prepared, allowing one or two available coordination sites toward the nanoparticles surface (figure 1b). In the case of [CoII(TPMA)Cl2] complexes (TPMA: tris(2- pyridylmethyl)amine), a first evidence of the role of surface functionalization is given by the variation of hydrodynamic diameter versus the functionalization rate. When normalized to the diameter of particles, a domain with good colloidal stability is revealed for less than 1.8 complexes per nm2 (figure 2a). In this range of surface functionalization, a significant and progressive increase of the magnetic anisotropy (coercive fields measured at 5 K and blocking temperatures determined with zero-field-cooled and field-cooled curves) was obtained, and directly correlated to the amount of complexes at the surface of the nanoparticles (figure 2b). Besides, element-specific X-ray Absorption Spectroscopy (XAS) and X-ray Magnetic Circular Dichroism (XMCD) reveal the existence of a room-temperature persistent magnetic interaction between the complexes and the nanoparticles as the possible origin of the enhancement effect. Our strategy is thus unique to tune the enhancement of the anisotropy in iron oxide nanoparticles.
 N. A. Frey, S. Peng, K. Cheng, S. Sun, Chem. Soc. Rev. 2009, 38, 2532.  S. Singamaneni, V. N. Bliznyuk, C. Binek, E. Y. Tsymbal, J. Mater. Chem. 2011, 21, 16819.  D. Yoo, J.-H. Lee, T.-H. Shin, J. Cheon, Acc. Chem. Res. 2011, 44, 863.  V. Skumryev, S. Stoyanov, Y. Zhang, G. Hadjipanayis, D. Givord, J. Nogués, Nature 2003, 423, 850.  Y. Prado, N. Daffé, A. Michel, T. Georgelin, N. Yaacoub, J.-M. Grenèche, F. Choueikani, E. Otero, P. Ohresser, M.-A. Arrio, C. Cartier-dit-Moulin, P. Sainctavit, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais, Nat Commun 2015, 6, 10139.
Yoann Prado, Nielie Daffe,, Aude Michel, Thomas Georgelin, Nader Yaacoub et al.
Nature Communications, Nature Publishing Group, 2015, 6, pp.10139.
GDR MCM, Décembre 2013, Dourdan, France, communication orale : Modulation de l’anisotropie de particules magnétiques par des complexes magnétiques moléculaires. Y. Prado, A. Michel, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
Soleil User’s meeting satellite workshop, High Resolution Spectroscopies and Applied Science, Janvier 2016, Saint-Aubin, France, communication orale : Molecule-based anisotropy enhancement of superparamagnetic nanoparticles. Y. Prado, N. Daffé, A. Michel, T. Georgelin, N. Yaacoub, J.-M. Grenèche, F. Choueikani, E. Otero, P. Ohresser, M.-A. Arrio, C. Cartier-dit-Moulin, P. Sainctavit, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
GDR MCM2, Décembre 2015, Dourdan, France, communication par affiche : Molecule-based anisotropy enhancement of superparamagnetic nanoparticles. Y. Prado, N. Daffé, A. Michel, T. Georgelin, N. Yaacoub, J.-M. Grenèche, F. Choueikani, E. Otero, P. Ohresser, M.-A. Arrio, C. Cartier-dit- Moulin, P. Sainctavit, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
ICMM 2016 satellite meeting, Molecular technology for the design and control of functionalities in materials, Septembre 2016, Tokyo, Japon, communication orale : Molecule-based anisotropy enhancement of superparamagnetic nanoparticles. Y. Prado, N. Daffé, A. Michel, T. Georgelin, N. Yaacoub, J.-M. Grenèche, F. Choueikani, E. Otero, P. Ohresser, M.-A. Arrio, C. Cartier-dit-Moulin, P. Sainctavit, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
ICMM 2016, 15th International conference on molecule-based magnets, Septembre 2016, Sendai, Japon, communication par affiche : Molecule-based anisotropy enhancement of superparamagnetic nanoparticles. Y. Prado, N. Daffé, A. Michel, T. Georgelin, N. Yaacoub, J.-M. Grenèche, F. Choueikani, E. Otero, P. Ohresser, M.-A. Arrio, C. Cartier-dit-Moulin, P. Sainctavit, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
GDR MCM2, Décembre 2016, Dourdan, France, communication orale : Fonctionnalisation de nanoparticules magnétiques par des complexes moléculaires. Y. Prado, T. Georgelin, M.-A. Arrio, P. Sainctavit, C. Cartier-dit- Moulin, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
GDR MCM2, Novembre 2017, Dourdan, France, communication orale : Fonctionnalisation de nanoparticules magnétiques par des complexes moléculaires. Y. Prado, T. Georgelin, M.-A. Arrio, P. Sainctavit, C. Cartier-dit- Moulin, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
Congrès Gecom-Concoord 2017, Forges-les-Eaux, France, communication orale : Exaltation de l’anisotropie magnétique de nanoparticules superparamagnétiques par des molécules. Y. Prado, N. Daffé, A. Michel, T. Georgelin, N. Yaacoub, J.-M. Grenèche, F. Choueikani, E. Otero, P. Ohresser, M.-A. Arrio, C. Cartier-dit-Moulin, P. Sainctavit, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
Journée Soleil@UPMC, 6 novembre 2017, Exaltation de l’anisotropie magnétique de nanoparticules superparamagnétiques par des molécules, Y. Prado, N. Daffé, A. Michel, T. Georgelin, N. Yaacoub, J.-M. Grenèche, F. Choueikani, E. Otero, P. Ohresser, M.-A. Arrio, C. Cartier-dit-Moulin, P. Sainctavit, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
Workshop « Matériaux hybrides et systèmes de basse dimensionnalité à effets électroniques et magnétiques remarquables » par les Labex MiChem et Matisse, 15 Juin 2018, Paris, France, communication orale : Molecule-based anisotropy enhancement of superparamagnetic nanoparticles. Y. Prado, A. Michel, E. Otero, P. Ohresser, M.-A. Arrio, P. Sainctavit, C. Cartier-dit-Moulin, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.
ACIN 2018, 4th international conference on advanced complex inorganic nanomaterials, Namur, Belgique, communication orale : Molecule-based anisotropy enhancement of superparamagnetic nanoparticles. Y. Prado, A. Michel, E. Otero, P. Ohresser, M.-A. Arrio, P. Sainctavit, C. Cartier-dit-Moulin, B. Fleury, V. Dupuis, L. Lisnard, J. Fresnais.

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During any lawsuit, something occurs that causes nearly every attorney and his or her client to question the fairness and functionality of the system. This is to be expected, digested, and then overcome with professionalism, patience, and good lawyering. However, in rare circumstances, an attorney or client insists that their trial judge cannot provide a fair hearing due to insurmountable prejudice or bias. The attorney files a motion to disqualify or recuse the judge, and you are called into action to defend the Court. This article discusses the improper grounds to disqualify a judge for bias or prejudice, to provide the Court with ammunition to deny the motion and stay on the case. If you have questions about disqualification or recusal, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.
A motion to disqualify is legally insufficient where it fails to establish a well-grounded fear that the movant will not receive a fair hearing; a mere subjective fear of bias is not legally sufficient, as the fear must be objectively reasonable. Arbalaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (aff’ing denial of motion to disqualify even though judge made comments that “certainly evinced a predisposition regarding the outcome of [Defendant‘s] case”); Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986) (aff’ing denial of disqualification even though judge refused to admit testimony or look at movant or her attorney); Keitel v. Agostino, 162 So. 3d 88, 90 (Fla. 4th DCA 2014) (aff’ing denial of motion to disqualify on rumors or gossip).
If the motion is based on statements made by a judge during a motions hearing, those statements must be taken in context. See City of Miami v. Village of Key Biscayne, 2016WL3414378 at *1 (Fla. 3d DCA 2016) (holding judge’s statements “taken in context” did not create in reasonably prudent person a well-grounded fear of impartiality) (aff’ing denial of motion to disqualify where judge’s statements “taken in context” did not create in a reasonably prudent person a well-grounded fear of not receiving a fair and impartial trial.”); Pilkington v. Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015) (holding judge’s comments during hearing, including that “the chronology doesn’t make it look real good for [defendant],” did not create objectively reasonable basis to fear judge was biased, where judge provided qualifiers that he could not “jump to that conclusion” and that “looks can be deceiving.”); see also Mansfield v. State, 911 So. 2d 1160, 1167–70 (Fla. 2005) (aff’ing denial of disqualification at penalty phase despite judge’s numerous comments on the negative impact on victims, “minor issues” in the prosecution’s case, race and the death penalty, “an outstanding State Attorney’s Office,” and that he found troubling any offer for a lesser sentence); Arbelaez, 898 So. 2d at 41 (Fla. 2005) (aff’ing denial of disqualification even though judge’s comment “that if found competent to proceed, the Defendant would be getting a jolt of electricity,  certainly evinced a predisposition regarding the outcome of [Defendant’s] case”).
Id. (holding “The judge’s comments cited in the motion do not create an objectively reasonable basis to fear Judge Smith was biased.”).
Similarly, subjective inferences that the trial judge has based his ruling on a previously fixed opinion of the case are not sufficient to sustain disqualification. See, e.g., Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992) (aff’ing denial of motion to disqualify as legally insufficient, even though judge had heard the case five times, convicted two co-defendants, made previous adverse rulings, previously heard the evidence and ruled against it, appeared to have formed a fixed opinion of the movant’s guilt and discussed his opinion with others, and made comments that “seem to infer a predisposition by the judge as to the facts”); Moser v. Coleman, 460 So. 2d 385, 386 (Fla. 5th DCA 1984) (holding fact that judge heard some of the evidence and expressed an attitude regarding the guilt of defendant at a preliminary hearing was not a ground for disqualification).
The basis of disqualification must be actual, not presumptive, and cannot stem merely from the judge’s making an adverse ruling or by ruling on sensitive issues. Gilliam v. State, 582 So. 2d 610, 611 (Fla. 1991) (aff’ing denial of disqualification and holding merely receiving adverse rulings is not a ground for recusal); Enter. Leasing Co. v. Jones, 750 So. 2d 114, 115 (Fla. 5th DCA 1999) (denying disqualification where, taken to its logical extreme, movant’s argument would require disqualification every time judge made rulings on movant’s criminal history, personal habits, religious beliefs, or sexual preferences); Davis v. Bat Mgmt. Found., Inc., 723 So. 2d 349, 350 (Fla. 5th DCA 1998) (aff’ing denial of motion to disqualify and holding movant’s citations to denial orders were legally insufficient); Solana v. Solana, 706 So. 2d 414, 415 (Fla. 5th DCA 1998) (aff’ing denial of motion to disqualify and holding allegations of prior adverse rulings by trial judge did not constitute a sufficient basis to disqualify).
Thus, it is improper for a party seeking disqualification to cherry pick statements from an adverse ruling by the judge, where those statements in context do not support any objectively reasonable fear of bias, requiring denial. City of Miami v. Village of Key Biscayne, 2016WL3414378 at *1 (Fla. 3d DCA 2016) (holding judge’s statements “taken in context” did not create in reasonably prudent person a well-grounded fear of impartiality); Pilkington v. Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015) (holding judge’s comments that “the chronology doesn’t make it look real good for [defendant],” did not create objectively reasonable basis to fear bias, where judge provided qualifiers that he could not “jump to that conclusion” and that “looks can be deceiving.”); see also Arbalaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (denying disqualification even though judge’s comments “certainly evinced a predisposition regarding the outcome of [Defendant‘s] case”); Jackson, 599 So. 2d at 107 (holding allegations that judge previously heard the evidence, made adverse rulings, had formed a fixed opinion of defendant’s guilt, and discussed this opinion with others, was legally insufficient to mandate disqualification.).
If a complete review of the record statements and their context shows the judge has been objectively fair and impartial to all parties, then the motion should be construed as an attempt to forum shop after an adverse ruling, which the Court should reject. If you have questions about disqualification or recusal, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.
Bernhard Law Firm files $2M in lawsuits for IP at Penn State, recovery of Turkish glass, determination of Venezuelan bank accounts, and claw-back from a FINRA broker-dealer.

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§ 65-4 Application for permit.
§ 65-5 Review of application; grant or denial of permit.
§ 65-6 Conditions for issuance of permit.
§ 65-9 Written notice of violations; suspension of permit.
§ 65-10 Violations and penalties; effect on eligibility for permit.
§ 65-11 Removal of sidewalk cafe.
§ 65-12 Reservation of rights.
Streets and sidewalks — See Ch. 135.
The Ligonier Borough Council encourages attractive, functional and economically vital community and shopping areas that are safe and pleasant environments to live near and to do business within. As the current Code does not allow sidewalk cafes, Council believes that sidewalk cafes can contribute to a pedestrian-friendly community if they conform to specific public health and safety requirements defined herein. This chapter permits and regulates outdoor dining on the public right-of-way within the Borough. This chapter does not regulate outdoor dining on private property.
That paved portion of a sidewalk area which is free of any obstruction, fixture or appurtenance and is used for pedestrian travel.
A public telephone, mailbox, bench or other facility provided for the use of the general public.
An outdoor dining area operated by a restaurant, has tables that seat one or more patrons, is with or without wait staff for its patrons, and is located on a sidewalk area or other designated public place.
No person shall engage in the operation of a sidewalk cafe without first applying for and obtaining a permit from the Borough of Ligonier ("Borough") and then operating within the terms and conditions of all applicable Borough ordinances. The sidewalk cafe permit enables a restaurant to have outdoor dining consistent with the terms herein during the calendar year for which the permit is issued.
Before any permit is issued pursuant to this chapter, the plans submitted to the Borough pursuant to this chapter shall be referred to and reviewed by the Public Works Director, Mayor, and President of Borough Council to determine if the applicant has complied with all the provisions of this chapter.
The Borough may impose any other restriction on the location, size or design of the sidewalk cafe in order to protect the health, safety and welfare of the public.
The applicant agrees in writing to obtain and maintain in full force and effect, at the permit holder's own expense, an insurance policy naming the Borough of Ligonier as an additional insured with coverage of not less than $1,000,000. The policy shall afford comprehensive general liability insurance including contractual liability insurance covering the permit holder's defense, indemnification, and hold harmless obligations under Subsection A(1) above, and shall provide that the Borough be notified upon the expiration of coverage in the event the policy is canceled or the applicant fails to renew the insurance policy. Within 10 days of the approval of the sidewalk cafe permit application, and each year thereafter, the permit holder shall submit a certificate of insurance in accordance with the agreement and maintain a copy on the premises for review.
Sidewalk cafes shall provide and maintain adequate lighting of not less than 1/2 footcandle (0.5 lm/feet2) in and around the pedestrian walkway so as to allow sidewalk users to observe and avoid obstructions.
Sidewalk cafes shall not obstruct access any public service facility on the sidewalk area or street.
No alcoholic beverages may be served or allowed to be consumed upon the sidewalk cafe.
Sidewalk cafes, the public property on which they are located and the surrounding area shall at all times be kept free and clear of litter, debris and any substance that may damage the sidewalk or cause pedestrian injury. As an express condition of the acceptance of a permit hereunder, the recipient agrees to police for trash and debris an area extending at least 15 feet in each direction from the outermost portion or boundary of the sidewalk cafe.
All sidewalk cafes and attendant facilities may be inspected at any time by the Public Works Director, his designee, or the Police Department.
Upon finding by either the Public Works Director or Borough Police Department that an applicant has violated any provisions of this chapter, the Public Works Director or Police Department shall give written notice to the applicant to correct said operational violation. Upon failure to correct said operational violation within the time frame specified, the Public Works Director or Borough Police Department may take appropriate action, as necessary, to maintain the pedestrian walkway. The Borough, Public Works Director, or Borough Police Department may suspend the applicant's permit issued pursuant to this chapter, as well as pursue prosecution in accordance with the requirements herein. The Public Works Director or Borough Police Department may give a violator reasonable time to correct any violation of any provision of this chapter. An appeal before Borough Council shall be accorded if requested.
Failure to observe any of the conditions set out herein is grounds for revocation of a permit. Prior to such revocation, the Borough shall give 10 days' written notice to the permit holder of his violation of or his failure to observe a general condition as set out above. If the permit holder requests a hearing prior to the expiration of that ten-day notice period, the Borough shall hold a hearing to determine if the permit should be revoked. The permit holder may present evidence in his own behalf if he so desires. If a hearing is not requested, the revocation shall become effective upon the expiration of the ten-day notice period. If a permit granted under this section is revoked, all tables, chairs and other appurtenances used as a part of the sidewalk cafe shall be immediately removed from the sidewalk.
If the Borough incurs any costs in removing any tables, chairs, or other materials from a sidewalk cafe for any reason the Borough may bill the property owner for the actual costs incurred by the Borough plus any additional administrative fees. The tables, chairs, and other materials removed shall remain in the Borough's possession until the bill for removal and any fines or fees are paid in full.
Neither the adoption of this chapter nor the granting of any permit pursuant hereto shall be construed as a waiver of any right, privilege or immunity of the Borough of Ligonier with respect to streets and sidewalks, whether express or implied.
Ligonier Borough reserves the right to suspend sidewalk cafe permits during Fort Ligonier Days, and at other times for community events as determined by the Borough Council at its sole discretion. No sidewalk cafe may operate during these periods as determined by the Borough.
Editor's Note: See Ch. 89, Fort Ligonier Days.
Ligonier Borough reserves the right to revoke or suspend sidewalk cafe permits for cause and to amend sidewalk cafe permit requirements and regulations as may be necessary for compliance with any change in local, state, or federal laws.


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Laurie Webb Daniel chairs Holland & Knight's Appellate Practice Group. Her experience includes arguments before the United States Supreme Court, and other federal and state appellate courts, as well as the authorship of numerous appellate briefs. Her appellate work has involved subject areas such as antitrust law, banking law, business torts, employment law, and many types of commercial disputes. She also has experience with complex business litigation in the trial courts, including multidistrict litigation.
Ms. Daniel has been elected to membership in the American Law Institute and as a fellow of the American Bar Foundation. She presently serves as Co-Chair of the Amicus Curiae Committee of the American Bar Association's Litigation Section, having previously served as a subcommittee co-chair of the Appellate Practice Committee.
I. BEGIN PREPARING FOR THE APPEAL AS SOON AS YOU GET THE CASE.
Too often, lawyers make the mistake of considering the issues for appeal only after they have lost the case in the trial court. A lawyer who waits until receiving an adverse jury verdict before thinking of the appeal, however, likely has waived at least some arguments, perhaps even the best ones. To ensure that your case is in the best posture on appeal, you should prepare for the possibility of appeal during every stage of the litigation. Laying an early foundation for an eventual appeal early is never a waste of resources. Even if there is never an appeal, it strengthens your position with respect to settlement or trial. If the case does not settle and things turn out badly at trial, it gives you the most flexibility in framing your request for a reversal.
A. BEFORE ANYTHING ELSE, DEVELOP YOUR "ROADMAP."
One of the best ways of preparing for an appeal is to develop the "roadmap" for your case. The most effective roadmap is a thorough written analysis addressing the legal theories of the case as well as all applicable standards and burdens of proof. For example, if you are representing the plaintiff, even before filing your complaint you should analyze the controlling authorities, then list each of the essential elements of your claims and the facts on which you will rely to satisfy them. You should anticipate the defenses that will be lodged and discuss your proposed rebuttal. If you are defending the case, you should conduct a similar analysis to make sure that you know from the start what defenses to plead in your answer and what evidence you will need to present to support them.
B. USE YOUR ROADMAP AS A CHECKLIST FOR YOUR PLEADINGS, MOTIONS AND TRIAL PREPARATION.
It pays to spend the time to produce a comprehensive written analysis early in the case because the effort will provide guidance, hopefully a checklist, later on when you are preparing your discovery requests, motions, pretrial order, witness outlines, exhibits, Rule 50 motions and, if necessary, your appeal. With the legal theories, standards and burden of proof memorialized in writing, you will have an easy reference to use throughout the case to make sure that you don't forget an important point. Such a memorandum is particularly helpful in a case that spans years with intermittent dormant periods.
The roadmap, of course, should be updated at each new stage of the litigation to include new developments of fact or law. Even with such updates, however, the initial analysis usually continues to provide the underlying structure for the development of the case for trial and any eventual appeal. Indeed, much of the analysis of controlling authorities in a well crafted initial "roadmap" can be copied verbatim into a summary judgment brief and then carried forward into the appellate brief when the time comes.
II. MAKE SURE THAT YOUR PRETRIAL ORDER IS COMPLETE.
Under F.R.Civ.P. 16, the pretrial order supersedes the pleadings and "shall control the subsequent course of the action . . . ." It is important to remember that Rule 16 not only shapes the trial of a case by identifying witnesses and documents, it also serves to shape the issues on appeal. Courts have strictly construed Rule 16 to bar review of an issue that was omitted from the pretrial order. See Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1529 (11th Cir. 1989). See also American Nat. Bank & Trust Co. of Chicago v. Regional Transportation Authority, 125 F.3d 420, 429 (7th Cir. 1997) (appellate review of strict enforcement of pretrial order is deferential). It is important, therefore, to include all legal theories in the pretrial order.
III. OBSERVE THE TEN COMMANDMENTS FOR PRESERVING THE RECORD AT TRIAL.
The trial of a case provides the most fertile ground for error. Unless the error is brought to the attention of the district court, however, it will not support a reversal. With rare exception, the federal Courts of Appeals adhere to the fundamental rule of appellate practice that a point not raised below is waived. See e.g., Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1323 n. 9 (11th Cir. 1999); United States v. Gilkey,118 F.3d 702, 707 (10th Cir. 1997); Foley v. City of Lowell, Mass.,948 F.2d 10, 22 n. 17 (1st Cir. 1991).
While the types of possible errors at trial are numerous and various, there are some standard methods of preserving points for appeal. Following are ten "commandments" to keep in mind when trying your case.
FIRST: WHEN POSSIBLE, SUBMIT YOUR POSITION IN WRITING.
? File Written Motions In Limine Before Trial.
? At the Beginning of Trial, File A Trial Brief That Outlines Your Case.
? File Short Trial Memoranda On Unexpected Issues That Come Up During Trial.
To a Rule 50 Motion For Judgment as a Matter of Law.
? In Addition To Submitting Your Requested Jury Instructions In Writing, File Written Objections to the Instructions That Are Given.
? Use Both the Broad Brush and Fine Point Pen When Presenting Your Case.
SECOND: FOLLOW UP MOTIONS IN LIMINE WITH NECESSARY OBJECTIONS AND PROFFERS OF PROOF.
Motions in Limine are a good idea because they raise issues before the heat of battle when they can be decided outside the presence of the jury. Often, however, litigants fail to follow up after an adverse ruling to preserve their objections for appeal. This is an easy mistake to make because one would think that a party's position should be preserved if stated in a brief filed in connection with a motion in limine. If the district court denies your motion in limine, however, you should object to the evidence when it is offered at trial to preserve the issue on appeal. See United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1503-04 (11th Cir. 1985); Petty v. Ideco, Div. Of Dresser Indus. Inc., 761 F.2d 1146, 1150 (5th Cir. 1985). Further, if the district court grants your motion in limine but the evidence nonetheless comes in at trial, you must renew your objection at trial in order to preserve the issue for appeal. See Collins v. Wayne Corp., 621 F.2d 777, 785-86 (5th Cir. 1980). If the district court grants your opponent's motion in limine, you should make a proffer of evidence unless the substance is readily apparent from the context of the court's ruling. See F.R.E. 103(a)(2).
THIRD: BE POLITE -- BUT NOT BASHFUL -- IN MAKING OBJECTIONS.
If there is one particular subject on which trial lawyers and appellate lawyers disagree, it is whether to object during an opponent's closing argument. Many trial lawyers keep their silence even in the face of outrageous arguments out of concern that an objection will offend the jury. Then, when a disastrous verdict is rendered, they condemn the unfair tactics of opposing counsel. Without an objection at trial, however, even the most egregious misconduct of opposing counsel will escape review by the appellate court. The advice of the appellate practitioner, therefore, is to go ahead and make the objection --during the closing argument --but in the most polite way possible. That way, you will preserve your objection for appellate review. Moreover, you likely will not make your position any worse off with the jury than it was before. If a jury is going to hold such an objection against you, it most likely has already made up its mind in favor of the other side anyway. You are better off buttressing your position for appeal.
The same view applies to other types of objections during the course of trial, beginning with voir dire and the opening statements. If faced with improper and prejudicial questions, evidence or conduct, be polite -- but not bashful -- in making your objections. A bench conference sometimes helps alleviate concerns over offending the jury. The bottom line, however, is that timely objections are critical to preserving your position for an appeal. Without a proper objection, there is very little chance of appellate review. Of course, if you are confident that the opposing counsel has not hurt your case, you do not need to make the objection.
It also is important to stay alert to the need for objections. For example, don't forget to object to deposition testimony that is read at trial. Your objections to such testimony in the pretrial order will not protect your position if they are never ruled on by the court. You should make sure that your objection is made during trial when the deposition is read unless it previously is preserved in the trial record.
FOURTH: MAKE SURE THAT EVERYTHING IS REPORTED.
You cannot appeal an incident that is not reflected in the record. It is very important, therefore, to make sure that the court reporter takes down everything that occurs of significance. This is not usually a problem during testimony. Sometimes, however, issues come up during a break. Be sure that the discussion is recorded or, at least, that a summary of the discussion is later placed on the record. Bench conferences likewise should be reported.
It is not sufficient merely to make an objection or a motion in limine or motion to strike. In order to have something from which to appeal, the district court must rule on the point. See United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000). Therefore, if you object during the examination of a witness, do not allow your opposing counsel to continue the examination until the court has ruled on your objection. If the court has taken a motion in limine under advisement and your opponent begins to offer the objectionable evidence, get a ruling on the point before the evidence is presented to the jury.
SIXTH: MOVE FOR A MISTRIAL WHEN A "CURATIVE" INSTRUCTION IS INSUFFICIENT.
Sometimes the court sustains an objection after the damage has been done, for example, after the witness has answered the improper question or after the jury has heard the improper closing argument. In such a circumstance, you have two available remedies: you can ask for "curative" instructions or you can move for a mistrial. Curative instructions, however, generally are not thought to cure anything, except the chance for an appeal based on the incident. The jury has already heard the damaging statement and the "curative" instruction likely only will reinforce the jury's memory of it. Moreover, if curative instructions are given, the appellate court usually will find the instructions sufficient to prevent harm. See United States v. Flores-Rivera, 56 F.3d 319, 329 (1st Cir. 1995). If faced with a particularly damaging transgression, therefore, it is better to go ahead and move for a mistrial without seeking curative instructions. See Government of Virgin Island v. Charleswell, 24 F.3d 571, 577 (3rd Cir. 1994) (since party requested corrective instructions rather than a mistrial, trial Judge was entitled to assume that party did not want a mistrial). If the court suggests curative instructions, present it with the reasons why the instructions are insufficient to remedy the harm.
SEVENTH: USING YOUR ROADMAP AS A CHECKLIST, MAKE SURE THAT ALL OF YOUR EVIDENCE HAS BEEN ADMITTED OR PROFFERED BEFORE YOU CLOSE YOUR CASE.
You should not rest your case without making sure that all necessary evidence has been admitted or, if it was excluded, at least proffered. See F.R.E. 103. Your "roadmap" will help with this by providing a list of the essential elements of each cause of action and defense and the evidence that you are relying on in support of your position. You should check with the courtroom clerk regarding the admission of documents to confirm that your list of admitted exhibits is accurate and that you haven't missed anything.
If you are the plaintiff facing a motion for directed verdict and realize that you missed an important point, you can seek to reopen the evidence to remedy the omission. After all, one of the reasons behind the rule that limits a post-trial motion for judgment as a matter of law to the grounds advanced in support of the pre-judgment Rule 50 motion is that the plaintiff should have the opportunity to respond to the points made in the Rule 50 motion before the case is submitted to the jury. See Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998) (instructing that Rule 50 was designed to protect a litigant's Seventh Amendment right to cure evidentiary deficiencies before the case goes to the jury).
Your Rule 50(a) motion for judgment as a matter of law at the end of your opponent's case should be as inclusive as possible because you cannot prevail on a post-trial Rule 50(b) motion on any ground not raised in your initial Rule 50(a) motion, nor will an appellate court rule that you are entitled to judgment as a matter of law on a new ground not raised in connection with your initial pre-judgment Rule 50(a) motion. See Ross, 146 F.3d at 1289-90. See also Morrison Krudson Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1246 (10th Cir. 1999) (failure to renew Rule 50(a) motion limits appellate relief to new trial). But see Rankin v. Evans, 133 F.3d 1425, 1432-33 (11th Cir. 1998) (holding that technical non-compliance with Rule 50 requirements was excused where court and opposing counsel had actual notice of grounds for asserted deficiencies).
It is a good idea to prepare your initial pre-judgment Rule 50(a) motion and supporting brief early, if possible before the trial even starts, when you have time to carefully consider the points. It then can be revised at the end of trial as needed to reflect the actual evidence that was admitted. Usually, the legal arguments will remain the same and the evidence will not vary much from what you anticipated. Also, incorporate by reference into your Rule 50 motion any points that you made in pretrial motions as well as any other written submissions such as objections to requested jury instructions.
When making your initial Rule 50 arguments, try to be both general and specific. State your proposition in a general manner and offer specifics as examples without limiting the argument to the specifics offered. Sometimes a general argument is deemed broad enough to preserve an interrelated concept that is explained more thoroughly for the first time in post-trial motions or on appeal.
NINTH: IF YOU FAILED TO INCLUDE A LEGAL THEORY IN THE PRETRIAL ORDER, MOVE TO AMEND THE PLEADINGS PURSUANT TO F.R.CIV.P. 15(b).
As mentioned earlier, the pretrial order supersedes the pleadings and is meant to control the trial of the case. Sometimes evidence relating to an omitted theory is nonetheless admitted at trial. If so, the omitted legal theory can be redeemed through a motion to amend the pleadings to conform to the evidence pursuant to F.R.Civ.P. 15(b). This rule provides that even when the evidence has been objected to at the trial on the ground that it was not within the issues made by the pleadings, the court shall freely allow the pleadings to be amended. At the very least, a Rule 15(b) motion will enhance the chances of appellate review of the omitted legal theory.
TENTH: OBJECT TO ANY IRREGULARITIES APPEARING IN CONNECTION WITH THE JURY INSTRUCTIONS, THE JURY'S DELIBERATIONS OR THE FORM OF THE VERDICT.
It is well established that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." F.R.Civ.P. 51; Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1934 (11th Cir. 1997). You should make sure, therefore, that the record reflects your objections to the jury instructions and that your grounds for objection are clearly stated. Otherwise, you will be deemed to have waived your objection on appeal unless the very narrow plain error doctrine applies. See Alexander v. Riga, 2000 WL 295288, *7 (3rd Cir. 2000).
The form of the verdict often does not receive the attention that it deserves. Usually, it is discussed at the end of the trial when the parties and the court are worn down by other battles that precede it. The form of the verdict, however, sometimes provides an easy ground for reversal. For example, in the Eleventh Circuit, a general verdict will not stand if any of the theories presented to the jury were defective. See Richards v. Michelin Tire Corp., 21 F.3d 1048, 1055 (11th Cir. 1994); Grant v. Preferred Research, Inc., 885 F.2d 795 (11th Cir. 1989). On the other hand, a special verdict form sometimes runs the risk of producing an inconsistent verdict that cannot stand. These issues should be thought through in advance of trial and you should be prepared to address them if the court decides to submit the case on a verdict form that could cause problems. If you fail to object on the record to the form of the verdict before the jury is released, you will be deemed to have waived the objection. See United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998); Landsman Packing Co., Inc. v. Continental Can Co., 864 F.2d 721, 726 (11th Cir. 1989).
Similarly, you should state on the record all objections to the handling of jury questions during deliberations. To do so, make sure that every juror communication is taken down by the court reporter, and that your position on the communication is presented to the trial court at a time when it can remedy the concern.
Please keep in mind that this list of "ten commandments" is not meant to be a catalog or exhaustive list of necessary objections. Always stay alert to possible error and think about whether there is anything that you need to do to make sure that your position is adequately reflected in the record.
IV. USE POST-TRIAL MOTIONS TO CLEAN UP THE RECORD.
Of course, you should do everything possible to state your position clearly on the record during trial. Sometimes, however, a point will hit you after the trial is over. If you are in the unfortunate position of trying to salvage your case through a post-trial motion, consider whether the "new" point is related to one of the general points asserted during trial. Often arguments at trial are in need of further clarification and elaboration. There is nothing improper about explaining a concept further in a post-trial motion using new authorities, examples or closely related arguments. See National Indus. Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549-50 (11th Cir. 1986). Post-trial motions are useful for "cleaning up" the record to make sure that you have properly explained your legal theories. One thing is for certain. It is better to make the argument in the post-trial proceedings than to raise it for the first time on appeal.
V. CAREFULLY REVIEW THE RECORD ON APPEAL AND MOVE TO SUPPLEMENT WITH INTERVENING OR OMITTED MATERIAL.
The appellant is responsible for ordering the transcript. If the appellant does not order the entire transcript, the appellee has the opportunity to request that the entire transcript be included on appeal. Of course, it is safer to have the entire record included. You should check the local rules of the appellate court for requirements that might be peculiar to that court with respect to the record on appeal.
Counsel should carefully review the record index to make sure that all items filed in the district court are included in the record on appeal. Sometimes the clerk's office does not include a filing, such as a letter to the judge, in the record index. Also, it sometimes is unclear whether exhibits to a filing are in the record on appeal. If in doubt, consider paying a visit to the district court clerk's office to inspect for yourself the way that the record on appeal is put together. Then, if you discover that a filing has been omitted from the record on appeal, you can move to supplement the record.
Occasionally, there is an intervening development that comes up after the trial that is proper for inclusion in the record on appeal. If so, the rules provide for a method of supplementing the record on appeal to include such matter.
It is important to remember that appellate review is limited to the record before the appellate court. Take every measure, therefore, to make sure that all of your legal arguments and supporting materials are contained in the record on appeal.

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The Supreme Court has granted certiorari to hear arguments in Home Depot U.S.A., Inc. v. Jackson. The case has been described as “an esoteric battle that only a lexicographer or civil procedure nerd would find interesting.” Indeed, the thrust of the argument in the case is whether the use of an adjective so modifies a noun such that the noun should be given a different meaning. Yet at its core, the case is a battle over to the extent to which third-party counterclaim defendants haled into a forum they never chose have any control over where they fight.
In Jackson, Citibank brought a debt collection action against George W. Jackson for failure to pay for a water treatment system. In his Answer, Jackson brought a class action counterclaim against not only Citibank, but Home Depot and Carolina Water Systems, Inc., asserting deceptive trade practices claims. Citibank voluntarily dismissed the debt collection action, leaving only Jackson’s claims against Home Depot and Carolina Water Systems. It was now as if Jackson had brought the class action claims as a plaintiff.
Home Depot timely sought to remove the action to federal court, claiming federal jurisdiction under the Class Action Fairness Act of 2005 (CAFA). The removal provisions of CAFA permit “any defendant” to remove an action to federal court. Assuming that Home Depot met the other requirements of CAFA jurisdiction, it seems like an easy case, right? Home Depot is, after all, a “defendant” to the class action.
Wrong. The district court denied the motion to remove and the Fourth Circuit affirmed.What happened? The reasoning derives from a Supreme Court decision in 1941.
In Shamrock Oil & Gas Corp. v. Sheets, the Supreme Court held that under removal statutes analogous to those in force today, an original plaintiff that filed in state court who became subject to a counterclaim could not remove the counterclaim to federal court.The Court relied on an expression of Congressional intent; when Congress modified the removal rules to allow only defendants to remove, they had expressed concern about plaintiffs gaming the rules to “obtain unfair concessions and compromises from defendants.” Thus, plaintiffs should be required to stick with the forum they chose.
This is perfectly cromulent statutory interpretation. Courts presume Congress legislates against the backdrop of well-established terms. Additionally, courts strive to give the same word the same meaning throughout a statute. Thus, even though Congress appears to have intended CAFA to enlarge federal jurisdiction over class actions,presumably Congress knew about Shamrock Oil and intended the term “defendant” in CAFA to carry the same meaning as the term “defendant” in the general removal statute.
In light of Shamrock Oil and subsequent decisions solidifying the so-called “original-defendant rule,” CAFA’s statutory language appears inescapable to this author, despite arguments by Home Depot to the contrary. To reach the result that Home Depot desires, the Court would have to conclude that an original plaintiff subject to a counterclaim that no longer asserts claims against the defendant is not a “defendant” while a third-party counterclaim defendant is a “defendant.” While it may be the desirable result, to reach this result would require extreme contortions of the English language.
While the High Court may certainly be capable of straining language to its limits, the principal issue with this language is not a matter of interpretation, but a matter of policy, traditionally the domain of Congress. While it “seems strange” that Congress could have intended this result, especially given CAFA’s general expansion of federal jurisdiction, it is a matter squarely within Congress’s province to resolve. The policy argument is straightforward: third-party counterclaim defendants had no say in the forum and are “dragged into state court by service of process the same way that any other ‘defendant’ is brought into court.” Indeed, the very reasoning behind Shamrock Oil in the first place was that original plaintiffs who had a choice in the forum should not be able to change their minds once a counterclaim was brought. This reasoning has no clear application to third-party defendants and yet language and precedent demand its application to Home Depot in Jackson.
No. 17-1471, 2018 WL 1950484 (U.S. Sept. 27, 2018).
Jackson v. Home Depot U.S.A., Inc., 880 F.3d 165, 167 (4th Cir. 2018), cert. granted, No. 17-1471, 2018 WL 1950484 (U.S. Sept. 27, 2018).
Id.; see 28 U.S.C. § 1453 (2012).
28 U.S.C. § 1453(b) (emphasis added).
Jackson, 880 F.3d at 167.
Compare 28 U.S.C. § 71 (1940) (“Any suit of a civil nature . . . may be removed by the defendant or defendants . . . .”), with 28 U.S.C. § 1441 (2012) (“Except as otherwise expressly provided by Act of Congress, any civil action . . . may be removed by the defendant or the defendants . . . .”).
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106–07 (1941).
See id. at 106 n.2 (quoting H.R. Rep. No. 1078, at 2 (1886)).
See H.R. Rep. No. 1078, at 1 (1886) (“The next change proposed is to restrict the right to remove a cause from the State to the Federal court to the defendant. . . . [I]t is believed to be just and proper to require the plaintiff to abide his selection of a forum.”).
See, e.g., Jackson, 880 F.3d at 170–71; Tri-State Water Treatment, Inc. v. Bauer, 845 F.3d 350, 354–57 (7th Cir. 2017), cert. denied sub nom. Home Depot U.S.A, Inc. v. Bauer, 137 S. Ct. 2138 (2017); Westwood Apex v. Contreras, 644 F.3d 799, 804–05 (9th Cir. 2011); In reMorgan & Pottinger, P.S.C., No. 10-0309, 2010 WL 9476582, at *1 (6th Cir. June 16, 2010). It is somewhat noteworthy that the Supreme Court has granted cert given the lack of a circuit split. See Ryan M. Tosi & Scott G. Ofrias, Does “Any Defendant” Really Mean “Any Defendant”?, Nat’l L. Rev. (Oct. 4, 2018), https://www.natlawreview.com/article/does-any-defendant-really-mean-any-defendant.
See, e.g., Jackson, 880 F.3d at 170–71.
See, e.g., Palisades Collections LLC v. Shorts, 552 F.3d 327, 335 (2008) (applying the principle to interpreting “defendant” in CAFA). Courts make this assumption regardless of any empirical truth of the matter. See John F. Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911, 1941–42 (2015).
See, e.g., Palisades, 552 F.3d at 335.
See Class Action Fairness Act of 2005, Pub. L. 109-2, sec. 2, 119 Stat. 4 (2005).
See Brief for Petitioner at 21–22, Home Depot U.S.A., Inc. v. Jackson, No. 17-1471 (U.S. Nov. 9, 2018) (arguing that there is a distinction supported by Shamrock Oil between a “plaintiff who is the only defendant to a counterclaim” and a third-party counterclaim defendant).
See, e.g., U.S. Const. art. I, § 1.
Westwood Apex v. Contreras, 644 F.3d 799, 809 (9th Cir. 2011) (Bybee, J., concurring).
Id. at 808 (quoting Ford Motor Credit Co. v. Aaron–Lincoln Mercury, 563 F.Supp. 1108, 1113 (N.D. Ill. 1983)).
See Zachary A. Madonia et al., Supreme Court to Review Whether Third-Party Defendants May Remove Class Action Counterclaims Under CAFA, Bradley: Declassified (Oct. 2, 2018), https://www.classactiondeclassified.com/2018/10/supreme-court-review-whether-third-party-defendants-may-remove-class-action-counterclaims-cafa/ (“Reading the tea leaves, the Supreme Court’s grant of cert despite circuit agreement seems to strongly suggest that the Supreme Court disagrees with—and will overturn—settled law.”).
Westwood Apex, 644 F.3d at 809.


Title VI Of The Civil Rights Act Of 1964: Limited English Proficient (“LEP”) Patients and Obtaining Proper Consent - Craig M. Sandberg - Sandberg Law Office, P.C.
Chicago, IL – In recent years, trial courts across the country have been asked to clarify whether, under both state and federal law, English-language consent forms alone may bind the individual who signs them. Or, it is merely a rebuttable presumption. For instance, does the signature of a Limited English Proficient (“LEP”) patient carry the same weight as someone with Engligh-languge proficiency? Does the calculus change when a hospital does not provide provide a Spanish-speaking individual an interpreter or a translated form before obtaining the patient’s signature on a consent form. As a practical matter, most individuals believe that the document they are signing is related to their consent for the proposed medical procedure and not, for instance, to any notice related to the employment status of the health care staff to the hospital, i.e., “I understand that all physicians providing services to me, including emergency room physicians, radiologists, pathologists, anesthesiologists, my attending physician and all physician consultants are independent medical staff and not employees or agents of [the hospital].” “Notice in its legal sense is information concerning a fact, actually communicated to a person by an authorized person, or actually derived by him from a proper source, and is regarded in law as ‘actual’ when the person sought to be affected by it knows thereby of the existence of the particular fact in question.” Black’s Law Dictionary 1061 (6th ed. 1990).
Notice, in the context of physican-patient relationship, is important because, as the Illinois Supreme Court noted over 20 years ago in Gilbert v. Sycamore Mun. Hosp., 156 Ill. 2d 511 (1993), there is an important “reality” related to the “business of a modern hospital.” Gilbert, 156 Ill. 2d at 520; see also York v. Rush-Presbyterian-St. Luke’s Med. Ctr., 222 Ill. 2d 147, 854 N.E.2d 635 (2006). “‘[H]ospitals increasingly hold themselves out to the public in expensive advertising campaigns as offering and rendering quality health services…Modern hospitals have spent billions of dollars marketing themselves, nurturing the image with the consuming public that they are full-care modern health facilities. All of these expenditures have but one purpose: to persuade those in need of medical services to obtain those services at a specific hospital. In essence, hospitals have become big business, competing with each other for health care dollars.’” Gilbert, 156 Ill.2d at 520. (quoting Kashishian v. Port, 481 N.W.2d 277, 282 (1992)).
Federal anti-discrimination laws require that health care facilities receiving federal funds provide professional interpretation services for their Limited English Proficient patients. Colwell v. Dep’t of Health and Human Serv., 558 F.3d 1112 (9th Cir. 2009). In Colwell, the plaintiffs-appellants filed “a pre-enforcement challenge to the Policy Guidance issued by the Department of Health and Human Services (“HHS”) in August 2003 (“2003 Policy Guidance” or “Policy Guidance”).” Colwell, 558 F.3d at 1116. “The stated purpose of the Policy Guidance is to clarify the legal obligation of recipients of federal funds to provide meaningful access for individuals with limited English proficiency (‘LEP’) to programs supported by those funds.” Colwell, 558 F.3d at 1116. LEP refers to individuals whose primary language is not English and who have limited ability to read, write, speak, and understand English.
Section 601 of Title VI of the Civil Rights Act of 1964 provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Section 602 authorizes and directs federal agencies that are empowered to extend federal financial assistance to any program or activity “to effectuate the provisions of [section 601]…by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d-1.
“In 2000, President Clinton issued an Executive Order ‘to improve access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (LEP).’ Exec. Order No. 13,166, 65 Fed.Reg. 50,121 (Aug. 11, 2000).” Colwell, 558 F.3d at 1117. The 2003 Guidance was published in order effectuate the Executive Order and federal law. Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed.Reg. 47,311, 47,312 (Aug. 8, 2003). “The stated purpose of the 2003 Policy Guidance ‘is to assist recipients in fulfilling their responsibilities to provide meaningful access to LEP persons under existing law’ and to ‘clarif[y] existing legal requirements for LEP persons by providing a description of the factors recipients should consider in fulfilling their responsibilities to LEP persons.’” Colwell, 558 F.3d at 1118 (citing id. at 47,313). The non-discrimination requirements of Title VI may be enforced either through termination of federal financial assistance or “by any other means authorized by law.” 42 U.S.C. § 2000d-1.
The classification of a document as “vital” depends upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately and in a timely manner. This comes from a memorandum from the Joint Commission (January 2008) indicating that “consent” forms and “notices of rights” constitute “vital” materials needing interpretation. According to the National Council on Interpreting in Health Care (NCIHC), quality medical interpretation calls for accuracy, confidentiality, impartiality, respect, cultural awareness, role boundaries, professionalism, professional development, and advocacy, goals that are likely to remain unmet when relying on lay volunteers and untrained staff. National Standards of Practice for Interpreters in Health Care (“NCIHC”), National Council on Interpreting in Health Care 2005. “The Office for Civil Rights (OCR) issued a policy guidance for Title VI compliance in 2004 that states LEP persons must be notified of the availability of free interpreting services, and the services must not require friends or family to provide interpretation. Interpreters must be competent in medical terminology and understand issues of confidentiality and impartiality.” Id.
So, how does this apply in the real world? For hospitals, they should re-familiarize themselves with Title VI of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. § 2000d et seq.) and its regulations, 34 C.F.R. § 100.3 et seq. If an institution receiving federal funds is found in violation of Title VI, that institution can lose its federal funding. Loss of funding is not an ultimate aim, but, rather, a correction of systemic injustice. For patients, because institutions receiving federal funds must comply with Title VI, in the context of consent forms, it should be argued that the hospital has an affirmative obligation (i.e., duty) to provide interpreter services to patients to ensure that the consent that is obtained is both “knowing” and “voluntary”.
A person who believes that he/she has been discriminated against because of race, color or national origin may file a complaint with Office of Civil Rights ("OCR") for the U.S. Department of Health & Human Services ("HHS") within 180 days of the date on which the discrimination took place. The State of Illinois is located in OCR Regional Office (Region V) in Chicago, Illinois. More information can be found at the OCR HHS website.


Benefits. The primary benefit of a judicial foreclosure over a nonjudicial foreclosure (trustee sale) is the ability to obtain personal money judgment in addition to the foreclose. This feature is relevant if the amount of equity in the property is insufficient to cover the association's lien once all liens senior to the association's lien have been satisfied. It also has the benefit of allowing for court-authorized publication of certain notices where the owner is deceased.
Initiating Judicial Foreclosure. The process of collecting starts with following the procedures outlined in Civil Code §5660 including sending a statutorily compliant notice of intention to lien (or pre-lien letter) followed by a statutorily compliant recording of a notice of assessment lien. The Association then files a lawsuit seeking two remedies: money damages against the owner personally and the right to foreclose on the association’s lien.
Litigation. In approximately 95% of judicial foreclosure cases, a defendant will fail to answer the complaint and this will permit the Association to file a default against the defendant. The legal effect of a default is removing the defendant as an active litigant to the case which then permits the association to seek a judgment against the defendant. If the defendant answers the lawsuit, the case is litigated as any other case.
Deficiency Judgment. Should the board elect to foreclose on the property and the proceeds from the sale not yield enough to cover the amount of the association’s judgment, the association can apply for a deficiency judgment against the defendant. The application for a deficiency judgment must be made within 3-months of the issuance of the foreclosure sale. Failure to seek a deficiency judgment within this time waives the Association’s right to seek it later on, without exceptions. (Code Civ. Proc. §726; Life Savings Bank v. Wilhelm (2000) 84 Cal.App.4th 174.) A deficiency judgment is effectively a hearing before the court for the court to determine the amount of deficiency based on the fair market value of the property sold.
Excess Funds. If the property has more equity than what is needed to cover the judgment amount, the former owner has a right to recover any surplus funds after the costs of sale have been paid, the judgment is paid, and any senior and then junior liens are satisfied (in order of their priority) (Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2s 284; Schumacher v. Gaines (1971) 18 Cal.App.3d 994).
Redemption Rights. One of the negatives to judicial foreclosures is the owner's right of redemption. In a trustee's sale, the redemption period is 90 days. In a judicial foreclosure, the redemption period is 90 days if the proceeds of the sale are sufficient to satisfy the association's lien. Code Civ. Proc. §729.030(a). The redemption period becomes one year if the monies from the sale are insufficient to satisfy the delinquency plus interest and collection costs. Code Civ. Proc. §729.030(b). The redemption period prevents the association from taking possession of the property unless the foreclosed owner voluntarily turns over possession.
Negatives. Judicial foreclosures can take longer and cost more than simple money judgment or a trustee's sale, especially when the matter is contested by the delinquent owner. As a result, associations tend to use small claims and superior court personal money judgments and trustee sales more often than judicial foreclosures.


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Chemoselective Immobilization of Peptides on Abiotic and Cell Surfaces at Controlled Densities. Venkata R. Krishnamurthy, John T. Wilson, Wanxing Cui, XueZheng Song, Yi Lasanajak, Richard D. Cummings, and Elliot L. Chaikof. Langmuir. 2010, 26 (11) pp 7675-7678. May 7, 2010. DOI: 10.1021/la101192v.
Constant-speed vibrational signaling along polyethylene glycol chain up to 60-Å distance. Zhiwei Lin and Igor V. Rubtsov. PNAS. 2012, 109 (5) pp 1413-1418. January 31, 2012. DOI:10.1073/pnas.1116289109.
Ballistic energy transport along PEG chains: distance dependence of the transport efficiency. Zhiwei Lin , Nan Zhang , Janarthanan Jayawickramarajah and Igor V. Rubtsov. Physical Chemistry Chemical Physics. 2012, 30 (14) pp 10445-10454. April 12, 2012. DOI: 10.1039/C2CP40187H.
An Intein-Mediated Site-Specific Click Conjugation Strategy for Improved Tumor Targeting of Nanoparticle Systems. Drew R. Elias, Dr. Zhiliang Cheng, and Prof. Andrew Tsourkas. Small. 2010, 6 (21) pp 2460–2468 November 5, 2010. DOI:10.1002/smll.201001095.
Peptide-Targeted Nanoglobular Gd-DOTA Monoamide Conjugates for Magnetic Resonance Cancer Molecular Imaging. Mingqian Tan, Xueming Wu, Eun-Kee Jeong, Qianjin Chen, and Zheng-Rong Lu. Biomacromolecules. 2010, 11 (3) pp 754–761. March 8, 2010. DOI:10.1021/bm901352v.
Protein addressing on patterned microchip by coupling chitosan electrodeposition and ‘electro-click’ chemistry. Xiao-Wen Shi,, Ling Qiu, Zhen Nie, Ling Xiao, Gregory F Payne and Yumin Du. Biofabrication. 2013, (5) 041001 pp 7. September 23, 2013. DOI:10.1088/1758-5082/5/4/041001.
Clickable Poly(ethylene glycol)-Microsphere-Based Cell Scaffolds. Peter K. Nguyen, Christopher G Snyder, Jason D. Shields, Amanda W. Smith, Donald L. Elbert. Macromolecular Journals. 2013, 214 (8) pp 948-956. March 4, 2013. DOI: 10.1002/macp.201300023.
Nano-Scale Alignment of Proteins on a Flexible DNA Backbone. Tatsuya Nojima1, Hiroki Konno, Noriyuki Kodera, Kohji Seio, Hideki Taguchi, Masasuke Yoshida. PLoS ONE. 2012, 7(12): e52534. December 26, 2012. DOI:10.1371/journal.pone.0052534.
A Mild and Reliable Method to Label Enveloped Virus with Quantum Dots by Copper-Free Click Chemistry. Jian Hao, Li-Li Huang, Rui Zhang, Han-Zhong Wang and Hai-Yan Xie. Analytical Chemistry. 2012, 84 (19) pp 8364−8370. September 4, 2012. DOI: org/10.1021/ac301918t.
ADIBO-Based ”Click” Chemistry for Diagnostic Peptide Micro-Array Fabrication: Physicochemical and Assay Characteristics. Denis Prim, Fabien Rebeaud, Vincent Cosandey, Roger Marti, Philippe Passeraub and Marc E. Pfeifer. ADIBO-Based ”Click” Chemistry for Diagnostic Peptide Micro-Array Fabrication: Physicochemical and Assay Characteristics. Denis Prim, Fabien Rebeaud, Vincent Cosandey, Roger Marti, Philippe Passeraub and Marc E. Pfeifer. Molecules. 2013, 18 pp 9833-9849. August 16, 2013. DOI: 10.3390/molecules18089833.
Bio-Inspired Liposomal Thrombomodulin Conjugate through Bio-Orthogonal Chemistry. Hailong Zhang, Jacob Weingart, Rui Jiang, Jianhao Peng, Qingyu Wu, and Xue-Long Sun. Bioconjugate Chemistry. 2013, 24 (4) pp 550–559. March 4, 2013. DOI: 10.1021/bc300399f.
Design and synthesis of glycoprotein-based multivalent glyco-ligands for influenza hemagglutinin and human galectin-3. Helen Wanga, Wei Huang, Jared Orwenyo, Aditi Banerjee, Gerardo R. Vasta, Lai-Xi Wang. Bioorganic & Medicinal Chemistry. 2013, 21 (7) pp 2037–2044. April 1, 2013. DOI: 10.1016/j.bmc.2013.01.028.
A Method for Determining Small Anharmonicity Values from 2DIR Spectra Using Thermally Induced Shifts of Frequencies of High-Frequency Modes. Zhiwei Lin , Patrick Keiffer , and Igor V. Rubtsov. Journal of Physical ChemistryB. 2011, 115 (18) pp 5347-5353. December 28, 2010. DOI: 10.1021/jp1094189.
3D Tumor tissue analogs and their orthotopic implants for understanding tumor-targeting of microenvironment-responsive nanosized chemotherapy and raditation. Pallavi Sethi, PhD., Amar Jyoti, PhD, Elden P. Swindell, PhD, Ryan Chan, PharmD, Ulrich W. Langner, DABR, PhD, Jonathan M. Feddock, MD, Radhakrishnan Nagarajan, PhD, Thomas V. O'Halloran, PhD, Meenakshi Upreti, PhD. Nanomedicine. 2015, 11 (8) pp 2013-2023. July 22,2015. DOI: 10.1016/j.nano.2015.07.013.
Click Chemistry Applied to the Synthesis of Salmonella Typhimurium O-Antigen Glycoconjugate Vaccine on Solid Phase with Sugar Recycling. Giuseppe Stefanetti, Allan Saul, Calman A. MacLennan and Francesca Micoli. Bioconjugate Chemistry. 2015. November 9, 2015. DOI: 10.1021/acs.bioconjchem.5b00521.
Energy Transport in PEG Oligomers: Contributions of Different Optical Bands. Layla N Qasim, Arkady A Kurnosov, Yuankai Yue, Zhiwei Lin, Alexander L Burin, and Igor V Rubtsov. The Journal of Physical Chemistry. 2016, October 31, 2016. DOI: 10.1021/acs.jpcc.6b09389.
Streptavidin-hydrogel prepared by sortase A-assisted click chemistry for enzyme immobilization on an electrode. Takuya Matsumoto, Yuki Isogawa, Tsutomu Tanaka, and Akihiko Kondo. Biosensors and Bioelectronics. 2017, 99 (2018) pp 56-61. July 17, 2017. DOI: http://dx.doi.org/10.1016/j.bios.2017.07.044.
Lysosomal Targeting Enhancement by Conjugation of Glycopeptides Containing Mannose-6-phosphate Glycans Derived from Glyco-engineered Yeast. Ji-Yeon Kang, Keun Koo Shin, Ha Hyung Kim, Jeong-Ki Min, Eun Sun Ji, Jin Young Kim, Ohsuk Kwon, & Doo-Byoung Oh. Scientific Reports. 2018, 8 (8730) pp 1-14. June 7, 2018. DOI: 10.1038/s41598-018-26913-4.
Streptavidin-hydrogel prepared by sortase A-assisted click chemistry for enzyme immobilization on an electrode. Takuya Matsumoto, Yuki Isogawa, Tsutomu Tanaka, and Akihiko Kondo. Biosensors and Bioelectronics. 2018, 99 pp 56-61. 1/15/2018. DOI: 10.1016/j.bios.2017.07.044.
A Modular Platform for the Rapid Site-Specific Radiolabeling of Proteins with F Exemplified by Quantitative Positron Emission Tomography of Human Epidermal Growth Factor Receptor 2. Herman S. Gill, Jeff N. Tinianow, Annie Pgasawara, Judith E. Flores, Alexander N. Vanderbilt, Helga Raab, Justin M. Scheer, Richard Vandlen, Simon-P. Williams, and Jan Marik, J. Med. Chem., 2009, 52 (19), pp 5816–5825 September 9, 2009. DOI: 10.1021/jm900420c.
An Effective Targeted Nanoglobular Manganese(II) Chelate Conjugate for Magnetic Resonance Molecular Imaging of Tumor Extracellular Matrix. Mingqian Tan, Xueming Wu, Eun-Kee Jeong, Qianjin Chen, Dennis L. Parker, and Zheng-Rong Lu,Mol. Pharmaceutics, 2010, 7 (4), pp 936–943 May 19, 2010. DOI: 10.1021/mp100054m.
Constant-speed vibrational signaling along polyethylene glycol chain up to 60-Å distance. Zhiwei Lin and Igor V. Rubtsov. PNAS, 2012, 5 (109), pp 1413-1418, January 31, 2012. DOI:10.1073/pnas.1116289109.
Ballistic energy transport along PEG chains: distance dependence of the transport efficiency. Zhiwei Lin , Nan Zhang , Janarthanan Jayawickramarajah and Igor V. Rubtsov. Physical Chemistry Chemical Physics. 2012, 30 (14), pp 10445-10454. April 12, 2012. DOI: 10.1039/C2CP40187H.
Enzymatic Ligation of Large Biomolecules to DNA. Rasmus Schøler Sørensen, Anders Hauge Okholm, David Schaffert, Anne Louise Bank Kodal, Kurt V. Gothelf, and Jørgen Kjems. ACS Nano. 2013, 7 (9) pp 8098–8104. August 8, 2013. DOI: 10.1021/nn403386f.
Click Chemistry Immobilization of Antibodies on Polymer Coated Gold Nanoparticles. Chiara Finetti, Laura Sola, Margherita Pezzullo, Davide Prosperi, Miriam Colombo, Benedetta Riva, Svetlana Avvakumova, Carlo Morasso, Silvia Picciolini, and Marcella Chiari. Langmuir. 2016, 32, pp 7435-7441. July 1, 2016. DOI: 10.1021/acs.langmuir.6b01142.
Design, Synthesis, and Characterization of Fully Zwitterionic, Functionalized Dendrimers. Esther Roeven, Luc Scheres, Maarten M. J. Smulders, and Han Zuilhof. ACS Omega, 2019, 4 (2), pp 3000–3011. February 11, 2019. DOI: 10.1021/acsomega.8b03521.
Modular Assembly of Cell-targeting Devices Based on an Uncommon G-quadruplex Aptamer. Felipe Opazo, Laura Eiden, Line Hansen, Falk Rohrbach, Jesper Wengel, Jørgen Kjems, and Günter Mayer. Molecular Therapy Nucleic Acids. 2015, 4 pp e251. 9/1/2015. DOI: 10.1038/mtna.2015.25.
Chemoselective Immobilization of Peptides on Abiotic and Cell Surfaces at Controlled Densities. Venkata R. Krishnamurthy, John T. Wilson, Wanxing Cui, XueZheng Song, Yi Lasanajak, Richard D. Cummings, and Elliot L. Chaikof,Langmuir, 2010, 26 (11), pp 7675–7678, May 7, 2010. DOI: 10.1021/la101192v.
Constant-speed vibrational signaling along polyethylene glycol chain up to 60-Å distance. Zhiwei Lin and Igor V. Rubtsov. PNAS, 2012, 5 (109), pp 1413-1418, January 31, 2012. DOI: 10.1073/pnas.1116289109.
Shape-Encoded Chitosan-Polyacrylamide Hybrid Hydrogel Microparticles with Controlled Macroporous Structures via Replica Molding for Programmable Biomacromolecular Conjugation. Eunae Kang, Sukwon Jung, John H. Abel, Allison Pine, and Hyunmin Yi. Langmuir. 2016, 32 (21) pp 5394-5402. May 18, 2016. DOI: 10.1021/acs.langmuir.5b04653.
Towards personalized peptide-based cancer nanovaccines: a facile and versatile synthetic approach. Hamilton Kakwere, Elizabeth S Ingham, Riley Allen, Lisa M Mahakian, Sarah M Tam, Hua Zhang, Matthew Thomas Silvestrini, Jamal S Lewis, and Katherine W. Ferrara. Bioconjugate Chemistry. 2017, pp 1-27. September 28, 2017. DOI: 10.1021/acs.bioconjchem.7b00502.

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Judge Bauer Imposes Fees Against City When Interest Group Obtains Reversal of the City’s Council Approval of a Freeway-Sign Exception Permit.
In May 2008, Orange County Superior Court Judge Ronald Bauer overturned the San Clemente City Council’s prior approval of a freeway sign exception permit for a proposed outlet mall project. The exception permit had allowed up to 32 freeway-oriented signs for Plaza San Clemente on Marblehead Coast property along the I-5 freeway at the Avenida Vista Hermosa exist. This reversal was obtained in a lawsuit brought by San Clemente Citizens for Integrity in Development, headed by Richard Boyer.
Later, in early October 2008, Judge Bauer awarded the City of San Clemente to pay $114,427 in attorney’s fees and costs to plaintiff as the prevailing party. This award was over and above about $125,000 that the City had paid in defending against the lawsuit in the first instance.
More details on this award can be found in an October 6, 2006 Orange County Register article by Fred Swegles, “San Clemente must pay plaintiff’s fees in lawsuit over all signs,” which is available for review by clicking here.
Small Claims Appeals—What Attorney’s Fees Are Available to the Winning Party?
Code of Civil Procedure sections 116.780 and 116.790 Provide Answers.
Mike Hensley recently had to appear at a trial de novo of a small claims judgment won by a developer client. Small claims jurisdiction reaches disputes of either $5,000 or $7,500, depending on the type of case. When a losing litigant appeals the judgment, the matter proceeds to a trial de novo (which ranges from being very informal to a full-fledged trial on the merits). Attorneys may participate in the appeal hearing. Code Civ. Proc. sec. 116.770.
What attorney’s fees can be obtained by the winner in the small claims appeal hearing?
The answers are found in Code of Civil Procedure sections 116.780 and 116.790. Section 116.780(c) provides that the court may award the winning party attorney’s fees actually and reasonably incurred in connection with the appeal, but not exceeding $150 (as well as lost earnings and transportation/lodging expenses not exceeding an additional $150). Section 116.790 allows the court, if it finds the appeal “was without substantial merit and not based on good faith, but was intended to harass or delay the other party, or to encourage the other party to abandon the claim,” discretion to award the other party actual, reasonable fees that do not exceed $1,000 (as well as an additional $1,000 in lost earning and transportation/lodging expenses).
Mike’s client prevailed, and Judge Margaret Anderson, who sits in Orange County-Harbor court, awarded the client $150 in attorney’s fees.
What if there is a contractual attorney’s fees clause? Can the winner obtain the actual and reasonable fees over the small claims statutory limits? We know of no decision that has considered this issue. The “pro” argument would be that the winner of a small claims appeal had to hire an attorney in many cases and that the litigant will not be made whole unless more fees are awarded. The “con” argument relies on the statutory limits as reaffirmation by the Legislature that the small claims procedure is meant to inexpensively resolve minor disputes without fear of a large fee exposure.
Trial Judge Held That Lender Lost Any Right to Deficiency So That There Was No Obligation In Existence for Offsetting Purposes.
For several years culminating in a trial in late 2002, Mike Hensley represented borrowers in a judicial foreclosure action brought by an out-of-state lender seeking to obtain the collateral real estate and a substantial deficiency when values plummeted in the late 1990s. Mike’s clients successfully defensed the deficiency claim after a protracted bench trial, even though the property was ordered sold at a future sheriff’s sale. (For those of you that are interested, the case is Beal Bank, S.S.B. v. Lot 9 Industrial, Ltd., 2003 WL 22390286 (4th Dist., Div. 2 Oct. 21, 2003, affirmed on appeal in a nonpublished decision).) The loan documents had a fee clause. Borrowers sought to recover a little shy of $346,000 in fees in a law and motion proceeding before the trial judge.
Lender primarily opposed on the basis that nothing should be awarded because any possible fee award was eclipsed by the deficiency between the value of the collateral to be foreclosed and the loan balance. In response, Borrowers countered that the trial judge found there was no deficiency, meaning that Borrowers owed no obligation to Lender that could be the subject of an offset by the fee award. Borrowers relied on Birman v. Loeb, 64 Cal.App.4th 502 (1998), an analogous case arising in a nonjudicial foreclosure context. Ruling? The trial judge found Birman instructive and rejected Lender’s argument.
However, the trial judge did reject Borrowers’ claim to recoup about $30,000 in overhead costs as fees. The lower court found that Bussey v. Affleck, 225 Cal.App.3d 1162, 1166 (1990), reviewed in our June 4, 2008 post, had been discredited—a prescient ruling in light of the fact that the Bussey court itself abrogated its own holding in 2005.
That left Borrowers with a fee award of approximately $315,000, which was increased some more after the appellate court also awarded them fees for prevailing in the appeal of the underlying “no deficiency” judgment.
POST-TRIAL ARBITRATION PROCEEDING NETS ATTORNEYS FEES FOR PREVAILING PARTIES WHO LOST AT TRIAL.
Defendants in Real Estate Concealment Case Win at Arbitration and Get Partial Recoupment of Attorneys Fees.
At a month trial in Orange County Superior Court, two individual clients of Mike Hensley suffered an adverse jury award of about $285,000. The clients sold their prior San Juan Capistrano house to plaintiff buyers, who did suffer water intrusion after heavy rains in early 2003—which followed on the heels of several dry years from a precipitation standpoint. Buyers sued sellers (Mike’s clients), sellers’ brokers, and buyers’ retained home inspectors for fraudulent concealment, negligent misrepresentation, breach of fiduciary duty, negligence, and nuisance. The jury absolved all defendants but the sellers.
Sellers brought a new trial motion based on the theory that the evidence showed they had actually made disclosures of prior water intrusion incidents that had been fixed and never recurred. The trial judge granted a new trial unless buyers remitted down to around $85,000. Buyers chose not to do so, with the result that both buyers appealed the new trial ruling and sellers appealed the adverse judgment based on the jury verdict.
While the case was on appeal, buyers suggested a binding JAMS arbitration, as long as all claims were in play (including negligent misrepresentation, fiduciary duty breach, and nuisance claims that had been jettisoned through pretrial motions). Sellers agreed under a written arbitration agreement that chose Justice William A. Masterson (Ret.) as the Arbitrator. Both sides dismissed their appeals and went to arbitration.
In the underlying residential purchase agreement between sellers and buyers, there was an attorney’s fees clause that has been held to give rise to a fee award by the prevailing party even though the thrust of a case happens to involve a nondisclosure situation. See Lerner v. Ward, 13 Cal.App.4th 155 (1993); Palmer v. Shawback, 17 Cal.App.4th 296 (1993). Sellers were willing to arbitrate, but only if they could recoup fees for winning the second time around. The written arbitration agreement reflected that reality, indicating that only costs and fees expended in the pending appeals would be borne by each side.
After a two and ½ day arbitration, Justice Masterson decided in favor of sellers, effectively reversing the prior jury verdict (a verdict he was unaware of based upon an agreement between the parties). Because of the attorney’s fees clause in the residential purchase agreement, and based on the written arbitration agreement that never waived fees except limited appellate costs, Justice Masterson set a schedule for a hearing on sellers’ fee petition.
Even though sellers’ fees eclipsed $325,000 in total, Mike Hensley was concerned that the Arbitrator might believe awarding this full amount was high given that some of the pretrial motions and actual trial work was not germane to the arbitration. So, although presenting evidence of the higher fee, sellers also apportioned out work directly related to the arbitration (including discovery or trial testimony related to the arbitration witnesses) and asked for an alternative award of $153,000.
*The language of the fee clause was broad enough to allow an award of fees and costs for the entirety of the litigation, but the Arbitrator found it reasonable to award fees for work that directly benefited the arbitration, namely, the $153,000 award.
The message here is that litigants, under the right circumstances, can garner post-trial arbitration fee awards of a substantial nature, if they are willing to focus on the Arbitrator’s frame of mind and take a discount to face concerns that would naturally arise from the “retrial” of a prior jury matter.
VENTURA TRIAL JUDGE AWARDS FEES TO SUCCESSFUL PLAINTIFFS IN TRESPASS FLOODING CASE.
Gregory P. Regier, a colleague of Mike Hensley when he was at Jackson DeMarco Tidus & Peckenpaugh, and Mike won a case for citrus farming clients in Ventura County who were flooded by their neighboring farmers when the neighbors notched a watercourse on their property, resulting in various property damages and citrus production loss to clients. Greg/Mike’s clients prevailed on trespass and nuisance theories, winning compensatory awards of $255,598.14 on the trespass claim and other monies on the nuisance claim. The case is Hobsons v. Leavens, Ventura County Superior Court Case No. CIV 238746.
The trial judge denied defense motions for judgment notwithstanding the verdict and for new trial.
That brings us to the stage of the proceedings which this blog was created to report on: the fee motion, which was heard on May 14, 2008.
So, having won, Greg and Mike presented a fee petition under section 1021.9 for over $784,000. The fee petition was supported by attorney declarations that attached monthly invoiced billings of a detailed nature.
The defense came back with lots of arguments, both procedural and factual in nature.
*ARGUMENT: The trial court lacks jurisdiction to consider the fee petition because the underlying judgment is on appeal.
ANSWER: Wrong; the trial court has continuing jurisdiction. See Gregory v. State Board of Control, 73 Cal.App.4th 584, 599 n.8 (1999).
*ARGUMENT: The fee petition was untimely filed, because it was filed more than 15 days after the cost memorandum deadline.
ANSWER: Wrong; Cal. Rules Ct., rule 3.1702 (former rule 870.2) provides that the fee petition must be filed within the time to file an appeal, not the quicker timetable for routine costs memorandum, which is dealt with in rule 3.1700—the shorter 15 day deadline.
*ARGUMENT: The fee petitioner must prove that petitioner actually paid the fees for which recovery is sought from the other side.
ANSWER: Wrong; the fee petitioner need only show that the costs were “incurred” even if another outside party agreed to be primarily liable. See Lolley v. Campbell, 28 Cal.4th 367, 374 (2002); Beverly Hills Properties v. Marcolino, 221 Cal.App.3d Supp. 7, 11-12 (1990).
That brought the parties to the main challenge—the fees were unreasonable in nature.
The trial judge kept reminding the losing parties that they had heavily contested every legal and factual issue in the case and asked what they proposed the court should do.
The response was interesting, to say the least—knock down the civil litigator rates by two thirds because losing parties’ counsel charged at insurance defense rates. The trial judge challenged this as being unrealistic because the argument did not reflect the true marketplace, namely, noninsurance civil litigator rates. Support for the trial judge’s sentiments can be found in such cases as Trevino v. Gates, 99 F.3d 911, 925 (9th Cir. 1996); U.S. v. City & County of San Francisco, 748 F.Supp. 1416, 1431 (N.D.Cal. 1990), aff’d in relevant part sub nom., 976 F.2d 1539, 1547 (9th Cir. 1992); National Assn. of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir. 1982).
The trial judge did want Greg/Mike to answer if they needed to apportion fees between the trespass (fee basis) claim and the nuisance (no fee basis) claim. Mike answered “yes, but not much,” because the discovery and proof on each were “inextricably intertwined,” but went on to note that some hours were devoted exclusively to the nuisance claim while he was involved during trial.
The trial judge also expressed concerns about legal research and internal lawyer conferencing charges, which mirrors a “hot button” with many in-house attorneys when reviewing bills. However, the same judge did indicate that he saw many “NO CHARGE” entries, a mitigating factor which weighed in the winning parties’ favor. The judge indicated that he wanted to independently review the monthly bills for duplication, unreasonableness, and apportionment.
The judge took the matter under submission, and recently issued his order.
The result: Hobsons were awarded attorneys fees of $319,000. Judge Walsh reduced attorney hourly rates by about $50 (not the two thirds proposed by the defense), and also reduced the fee petition for (1) duplicative entries and (2) entries that went to the nuisance claims (and, under his reasoning, needed to be apportioned out and not counted for prevailing on the fee compensable trespass claim).

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