§16-5L-4. Creation of the state long-term care ombudsman program.
§16-5L-5. State long-term care ombudsman; qualifications; duties.
§16-5L-6. Establishment of regional long-term care ombudsman programs.
§16-5L-7. Regional long-term care ombudsmen; qualifications; duties; training; certification.
§16-5L-8. Long-term care ombudsman volunteers; qualifications; duties.
§16-5L-9. Long-term care ombudsman volunteer training and certification.
§16-5L-11. Access to long-term care facilities.
§16-5L-14. Cooperation among government departments or agencies.
§16-5L-17. Availability of legal counsel.
§16-5L-18. Willful interference; retaliation; penalties.
§16-5L-19. Facility posting of long-term care ombudsman program information.
§16-5L-20. Funding for long-term care ombudsman programs.
This article may be known and cited as the "West Virginia Long-Term Care Ombudsman Program Act."
The Legislature recognizes that the state commission on aging, as set forth in article fourteen, chapter twenty-nine of this code, pursuant to a grant from the federal government, has established a West Virginia long-term care ombudsman program. The Legislature declares that it is the public policy of this state to encourage community contact and involvement with residents of long-term care facilities. The Legislature finds that in order to comply with the federal Older Americans Act of 1965, as amended, and to effectively assist residents of long-term care facilities in the assertion of their civil and human rights, the structure, powers and duties of the West Virginia long-term care ombudsman program shall be herein defined under this article.
(i) "Guardian" means a person lawfully invested with the power and charged with the duty of taking care of another person and managing the property and rights of another person who for some peculiarity of status or defect of age, understanding or self control is considered incapable of administering his or her own affairs, to include committees or other references under the code.
There is hereby created within the state commission on aging, as set forth in article fourteen, chapter twenty-nine of this code, the West Virginia long-term care ombudsman program, pursuant to the Older Americans Act of 1965, as amended.
(a) The state commission on aging shall employ a state long-term care ombudsman to effect the purposes of this article. The state long-term care ombudsman shall have at least a master's degree in gerontology, social work, health or a related field and shall have demonstrated experience in one of the following areas: (1) The field of aging; (2) health care; (3) community programs; (4) long-term care issues; (5) working with health care providers; (6) working with an involvement in volunteer programs; and (7) administrative and managerial experience. In lieu of the above educational and experience qualifications, the state long-term care ombudsman shall have a four-year degree in gerontology, social work, health or a related field, plus five years of full-time equivalent experience in gerontology, social work, health or a related field. The state long-term care ombudsman shall participate in ongoing training programs related to his or her duties or responsibilities. The state long-term care ombudsman shall not have been employed within the past two years prior to the date of his or her employment under this section by a long-term care facility, or by any association of long-term care facilities, or by any organization or corporation that directly or indirectly regulates, owns, or operates a long-term care facility.
(b) Neither the state long-term care ombudsman nor any member of his or her immediate family shall have, or have had within the two years preceding his or her employment under this section, any pecuniary interest in the provision of long-term care. For the purposes of this section, the term "immediate family" shall mean the spouse, children, natural mother, natural father, natural brothers or natural sisters of the state long-term care ombudsman.
(7) Other duties as mandated by the Older Americans Act of 1965, as amended.
(a) The state commission on aging shall designate and maintain regional long-term care ombudsman programs encompassing all planning and development areas of the state under the direction of the state long-term care ombudsman. Any regional long-term care ombudsman program so designated and maintained shall be a representative of the state long-term care ombudsman program.
(b) In order to be so designated, a regional long-term care ombudsman program shall meet the following requirements: (1) It shall have no pecuniary, licensing, or organizational interest with long-term care facilities or an association thereof; and (2) it shall (i) maintain a private, nonprofit status as defined under the Internal Revenue Code of 1986, or (ii) function as a local or regional government agency.
(a) Each regional long-term care ombudsman program shall employ one or more regional long-term care ombudsmen to effect the purposes of this article. The regional long-term care ombudsman shall have either: (1) At least a bachelor's degree in gerontology, social work, health, or a related field and demonstrated experience in one of the following areas: (A) The field of aging; (B) health care or social service programs; (C) community programs; or (D) long-term care issues; or (2) at least a bachelor's degree in any field and at least three years of experience in gerontology, social work, health or a related field. Experience in gerontology, social work, health or a related field may be substituted for up to two years (sixty hours) of college on a year-for-year basis. The supervising ombudsman must have at least a bachelor's degree in gerontology, social work, health or a related field and demonstrated experience in one of the following areas: (A) The field of aging; (B) health care or social service programs; (C) community programs; and (D) long-term care issues. Persons employed in a designated regional long-term care ombudsman program on the date of enactment of this article may be given a waiver from these requirements provided that within one year from the date of enactment of this article they enter into a program leading to a degree in gerontology, social work, health or a related field or complete fifty hours of continuing education units in gerontology, social work, health or a related field every two calendar year periods. The regional long-term care ombudsman shall participate in ongoing training programs related to his or her duties or responsibilities. The regional long-term care ombudsman may not have been employed within the past two years prior to the date of his or her employment under this section by any association of long-term care facilities. If a regional long-term care ombudsman has been employed within the past two years prior to the date of his or her employment under this section by a long-term care facility, or by any organization or corporation that directly or indirectly regulates, owns or operates a long-term care facility, that ombudsman may not act with the authority of a regional long-term care ombudsman in the facility of prior employment or in any other facility regulated, owned or operated by the same ownership as the facility of prior employment.
(b) Neither the regional long-term care ombudsman nor any member of his or her immediate family may have, or have had within the two years preceding his or her employment under this section, any pecuniary interest in the provision of long-term care. For the purposes of this section, the term "immediate family" shall mean the spouse, children, natural mother, natural father, natural brothers or natural sisters of the regional long-term care ombudsman.
(6) Other duties as mandated by the Older Americans Act of 1965, as amended.
(d) The state long-term care ombudsman shall develop and implement procedures for training and certification of regional long-term care ombudsmen. Regional long-term care ombudsmen who satisfactorily complete the training requirements shall be certified by the state commission on aging and shall be given identification cards which shall be presented to employees of a long-term care facility upon request. No regional long-term care ombudsman may investigate any complaint filed with the West Virginia long-term care ombudsman program unless the person has been certified by the state commission on aging. Consistent with the provisions of this article and any rules promulgated pursuant to section twenty-one, certified regional long-term ombudsmen shall be representatives of the state long-term care ombudsman program.
(a) The regional long-term care ombudsman programs shall each create and maintain a volunteer program to effect the purposes of this article, pursuant to rules promulgated by the state long-term care ombudsman and the state commission on aging.
(b) A long-term care ombudsman volunteer shall have demonstrated interest in the field of aging and long-term care issues and be able to communicate effectively orally and in writing.
(c) No long-term care ombudsman volunteer nor any member of his or her immediate family shall have, or have had within the two years preceding his or her employment under this section, any pecuniary interest in the provision of long-term care. Nor shall any long-term care ombudsman volunteer perform his or her duties in any specific facility in which an immediate family member of the long-term care ombudsman volunteer is or has been a resident or applicant of that specific facility. For the purposes of this section, the term "immediate family" shall mean the spouse, children, natural mother, natural father, natural brothers or natural sisters of the long-term care ombudsman volunteer.
(7) Performing other duties as assigned by the regional long-term care ombudsman which are not contrary to this article, to any applicable federal law, or to rules promulgated by the state long-term care ombudsman and the state commission on aging.
(e) Notwithstanding the duties described above, no ombudsman volunteer may undertake or be assigned duties involving complaint investigation activities, as defined in section ten of this article, except for information gathering to ascertain the nature and facts of a complaint for the ombudsman's review. No ombudsman volunteer, during the course of his or her volunteer service, may initiate or pursue legal proceedings, actions or remedies on behalf of a resident or long-term care ombudsman program relating to a long-term care facility, its employees, or its residents.
(a) The state long-term care ombudsman shall develop procedures for training and certification of long-term care ombudsman volunteers. The regional long-term care ombudsman shall implement certification training for all ombudsman volunteers in accordance with the procedures developed by the state long-term care ombudsman. No ombudsman volunteer shall perform any of the duties enumerated in section eight of this article prior to the completion of the training program, except as a supervised portion of that training program.
(b) Ombudsman volunteers who have satisfactorily completed the training and certification requirements shall be given identification cards valid for one year which shall be presented to employees of a long-term care facility upon request. Every year thereafter, the long-term care ombudsman volunteer shall complete at least seven hours of additional training before a new identification card is issued. Consistent with the provisions of this article and any rules and regulations promulgated pursuant to section twenty-one, certified long-term ombudsman volunteers shall be representatives of the state long-term care ombudsman program.
(a) Upon receipt of a complaint filed on behalf of a resident, or on his or her own initiative, a state or regional long-term care ombudsman shall investigate any act, practice, policy or procedure of any long-term care facility or government agency which affects the health, safety, welfare or rights of any resident.
(b) Investigative activities of the state or regional long-term care ombudsman shall include, but shall not be limited to: Information gathering, mediation, negotiation, informing parties of the status of the investigation, notification to any aggrieved party of alternative processes, reporting of suspected violations to a licensing or certifying agency, and the reporting of suspected criminal violations to the appropriate authorities.
(5) A real or apparent conflict of interest exists and no other ombudsman is available to investigate the complaint in an impartial manner.
If a determination is made by a regional long-term care ombudsman not to investigate any complaint, then the complaint shall be referred to the state long-term care ombudsman who shall make a final decision as to whether the matter warrants further investigation.
(2) Ensure that state and regional ombudsmen have sufficient access to legal counsel to bring actions on behalf of residents in civil court: Provided: That nothing in this subsection shall be construed to prevent a resident of a long-term care facility from filing directly, on his or her own behalf, a suit for relief of any sort in any state or federal court.
(e) The state commission on aging and other appropriate state governmental agencies shall establish and implement cooperative agreements for receiving, processing, responding to and resolving complaints involving state governmental agencies under the provisions of this section.
(a) A state or regional long-term care ombudsman shall, with proper identification, have access to any long-term care facility for the purposes of investigations of a complaint filed pursuant to section ten of this article. The state or regional long-term care ombudsman may enter a facility at a time appropriate to the complaint. The visit may be announced in advance or be made unannounced as appropriate to the complaint under investigation. Upon entry of the facility, the state or regional long-term care ombudsman shall promptly and personally advise one of the following persons of his or her presence: (1) The administrator or acting administrator; (2) the residence director; or (3) another available supervisory agent of the facility. If entry is refused by the person in charge of said facility, the long-term care ombudsman may apply to the magistrate court of the county in which the facility is located for a warrant authorizing entry, and the court shall issue an appropriate warrant if it finds good cause therefor.
(4) Supervise, direct or assist a long-term care ombudsman volunteer in the performance of his or her assigned duties.
Access to long-term care facilities under this section shall be deemed to include the right to private communication with residents.
(c) A state or regional long-term care ombudsman who has access to a facility under this section shall not enter the living area of a resident without identifying himself or herself to the resident. After identifying himself or herself, an ombudsman shall be permitted to enter the living area of a resident unless that resident communicates on that particular occasion the resident's desire to prevent the ombudsman from entering. A resident shall have the right to terminate, at any time, any visit by a representative of the ombudsman program who has access under this section or any other applicable section of this article.
(d) Access to a facility pursuant to subsection (a) or (b) of this section includes the right to tour the facility unescorted: Provided, That individual residents may terminate at any time any communication by an ombudsman having access under this section and that nothing in this section shall be construed as to grant a long-term care volunteer ombudsman the right of entry to the drug rooms and treatment rooms of a long-term care facility.
(4) If the resident is unable to express written or oral consent and there is no guardian or attorney in fact or the notification of the guardian or attorney in fact is not achieved for the reasons set forth in subsection (3) of this section, or if the resident is deceased, inspection of records may be made by the ombudsman.
(b) The state or regional long-term care ombudsman is allowed access to all records of any long-term care facility that are reasonably necessary for the investigation of a complaint under section ten of this article, including, but not limited to, facility incident reports, dietary records, policies and procedures of the facility that the facility is required to maintain under federal or state law, admission agreements, staffing schedules, any document depicting the actual staffing pattern of the facility and resident council and grievance committee minutes.
(2) Apply to the circuit court of the appropriate county or the circuit court of the county of Kanawha for the issuance of a subpoena duces tecum to compel any person to produce at a specific time and place, before a person authorized to administer oaths, any documents, books, records, papers, objects or other evidence which the state or regional long-term care ombudsman reasonably believes may relate to a matter under investigation.
(b) No subpoena or subpoena duces tecum applied for by the state ombudsman or designee pursuant to subsection (a) of this section shall be issued until a circuit court judge in term or vacation thereof has personally reviewed the application and accompanying affidavits and approved, by a signed order entered by the judge, the issuance of the subpoena or subpoena duces tecum. Subpoenas or subpoenas duces tecum applied for pursuant to this section may be issued on an ex parte basis following review and approval of the application by the judge in term or vacation thereof.
(c) The Attorney General shall, upon request, provide legal counsel and services to the long-term care ombudsman program in all administrative proceedings and in all proceedings in any circuit court and the West Virginia Supreme Court of Appeals. The prosecuting attorney of any county shall provide without compensation legal counsel and services in criminal actions to the long-term care ombudsman program in circuit court proceedings in that county.
(a) The state or regional long-term care ombudsman shall have access to publicly disclosable records of any state government department, agency, or office reasonably necessary to any investigation carried out pursuant to section ten of this article. The regional long-term care ombudsman shall be notified of and be allowed to observe any survey conducted by a government agency affecting the health, safety, welfare or rights of residents of a long-term facility.
(b) The state long-term care ombudsman shall develop referral procedures to refer any complaint to any appropriate state government department, agency or office. The department or agency shall acknowledge receipt and disposition within thirty calendar days on any complaint referred to it by a state or regional long-term care ombudsman.
(c) When abuse, neglect or exploitation of a resident of a long-term care facility is suspected, the state or regional long-term care ombudsman shall make a referral to the office of adult protective services of the Department of Health and Human Resources and to the office of health facility licensure and certification of the Department of Health and Human Resources. The state or regional long-term care ombudsman shall coordinate with the office of adult protective services and the office of health facility licensure and certification on any investigation of suspected abuse, neglect or exploitation undertaken by those offices under the provisions of this subsection.
(d) Any state government department, agency, or office which responds to a complaint referred to it by a state or regional long-term care ombudsman shall forward to the long-term care ombudsman copies of publicly disclosable inspection reports and plans of correction, and notices of any citations and sanctions levied against the long-term care facility identified in the complaint.
(e) The state or regional long-term care ombudsman shall seek to establish coordination with programs which provide legal services for the elderly, including, but not limited to, programs funded by the federal legal services corporation or under the Older Americans Act of 1965, as amended.
(4) Upon order of any appropriate county circuit court after the judge in term or vacation thereof has conducted a hearing following adequate notice to all parties and rendered a determination as the interests of justice may require.
(b) Notwithstanding any other section within this article, all information, records and reports received by or developed by a state or regional long-term care ombudsman which relate to a resident of a facility, including written material identifying a resident, are confidential and are not subject to the provisions of chapter twenty-nine-b of this code, and shall not be disclosed or released by the long-term care ombudsman, except under the circumstances enumerated in this section.
(c) Nothing in subsection (a) or (b) of this section shall be construed to prohibit the preparation and submission by any state or regional long-term ombudsman of statistical data and reports, as required to implement the provisions of this article or any applicable federal law, exclusive of any material that identifies any resident or complainant.
(d) The executive director of the state commission on aging shall have access to the records and files of the long-term care ombudsman program to verify its effectiveness and quality where the identity of any complainant or resident is not disclosed.
(a) An ombudsman participating in an investigation carried out pursuant to section ten of this article and long-term care ombudsman volunteers who are performing their duties pursuant to section eight of this article shall be immune from any civil liability that otherwise might result by reason of his or her participation in the investigation as long as such participation is not violative of any applicable law, rule or regulation, done within the scope of their employment and done in good faith.
(b) If an act or omission by any long-term care ombudsman, or by any facility employee acting in good faith at the direction of a long-term care ombudsman pursuant to a specific resident complaint, causes a resident's rights to be violated, no long-term care facility, its owners, administrators, officers, director, agents, consultants, employees or any member of management shall be held civilly liable as a result of said act or omission.
(b) The long-term care ombudsman program has the ability to pursue administrative, legal and other appropriate remedies on behalf of residents of long-term care facilities.
(a) Any individual who willfully interferes with or impedes a state or regional long-term care ombudsman or ombudsman volunteer in the performance of his or her official duties shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100 or imprisoned in the county jail for not more than ninety days, or both fined and imprisoned.
(b) Any individual who institutes or commits a discriminatory, disciplinary, retaliatory or reprisal action against any officer or employee of a long-term care facility or government department or agency, against any resident of a long-term care facility or against any guardian, attorney in fact or against any family member of any resident of a long-term care facility for having filed a complaint with or provided information in good faith to a state or regional long-term ombudsman or ombudsman volunteer to aid the long-term care ombudsman or ombudsman volunteer in carrying out the duties pursuant to this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100, or imprisoned in the county jail for not more than ninety days, or both fined and imprisoned.
(c) Any individual violating the provisions of subsection (a) or (b) of this section shall, for the second or any subsequent offense under either of these subsections, be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $250, or imprisoned in the county jail for not more than ninety days, or both fined and imprisoned. Each day of a continuing violation after conviction shall be considered a separate offense.
(7) Any restriction against a state or regional long-term care ombudsman or ombudsman volunteer which impedes the carrying out of duties pursuant to this article.
(e) Nothing in this section shall be construed as to infringe upon the rights of an employer to supervise, discipline or terminate an employee for other reasons.
Every long-term care facility in this state shall provide each resident with a copy and shall post in a conspicuous location in at least ten-point type a notice of information on the long-term care ombudsman program. Such notice shall include: (1) The name, address and telephone number of the designated long-term care ombudsman program serving the region in which the facility is located; (2) a brief description of the services provided by the long-term care ombudsman program; and (3) a statement as to the penalties for willful interference and retaliation as provided in section eighteen of this article. The form and wording of the notice shall be approved by the state long-term care ombudsman program.
The state long-term care ombudsman program shall receive such funds as are appropriated pursuant to the Older Americans Act of 1965, as amended, for the operation of the state long-term care ombudsman program, and shall receive such funds as are appropriated by the Legislature for the operation of the program.
The regional long-term care ombudsman program shall receive such funds as are appropriated by the area agencies on aging pursuant to the Older Americans Act of 1965, as amended.
Any long-term care ombudsman program may solicit and receive funds, gifts and contributions to support the operation of the program. No program shall solicit or receive any funds, gifts or contributions where the solicitation or receipt would jeopardize the independence and objectivity of the program.
Pursuant to chapter twenty-nine-a of this code, the state long-term care ombudsman and the state commission on aging shall promulgate rules to effectuate the purposes and provisions of this article.
If any provision of this article, or the application thereof to any provision or circumstance, shall be held unconstitutional or otherwise invalid, such invalidity or unconstitutionality shall not affect the provisions or application of this article which can be given effect without the unconstitutional or invalid provisions of application, and to this end the provisions of this article are declared to be severable.


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What did Nash v. Nash recently rule?
The Arizona Court of Appeals ruled on three main topics (1) child support calculations; (2) the use of social media to disparage another party; and (3) disclosure of materials related to the litigation. ?First, the court held that a family law court cannot limit child support to meet only the child?s minimal needs.? Nash v. Nash, No. 1 CA-CV 12-0039 (Ariz. Ct. App. July 23, 2013).? Instead, the Court can permit that the children ?continue to enjoy the reasonable benefits they had while their parents were married.?? ??In cases dealing with parents of significant wealth, expenses such as travel, entertainment, and other such costs can be taken into consideration when calculating child support.? ??Additionally, if the primary residential parent is able to provide for the children?s needs, it does mean the other parent should not contribute their proportionate share of the Total Child Support Obligation.
Second, the Court ruled that parties, who include language in a custody agreement prohibiting parents from disparaging the other in front of the children, are also barred from ?posting disparaging remarks about each other on social media? because comments made on social media outlets ?are likely to make their way to the children.?
Lastly, the Court affirmed that, although court materials can be sealed or made confidential, it can only be done upon ?a finding that the confidentiality or privacy interests of the parties [or] their minor children?outweighs the public interest in disclosure.?? Ariz. R. Fam. L. P. 13(D).
What are the Arizona Child Support Guidelines?
In the recent ruling of the Arizona Court of Appeals in Nash v. Nash, the Court explains that A.R.S. ? 25-320(A) (West 2013) specifies that a family law court ?may order either or both parents owing a duty of support to a child.?? Nash v. Nash, No. 1 CA-CV 12-0039 (Ariz. Ct. App. July 23, 2013). ??Later, in subpart (D), it instructs the supreme court to ?establish guidelines for determining the amount of child support.?? A.R.S. ? 25-320(D).? These guidelines have become the Arizona Child Support Guidelines, Appendix to A.R.S. ? 25320 (West 2013).? ?The amount resulting from the application of [the] guidelines is the amount of child support ordered unless a written finding is made, based on criteria approved by the supreme court, that application of the guidelines would be inappropriate or unjust in a particular case.? ?A.R.S. ? 25-320(D).?
The Child Support Guidelines set out steps for calculating a child support amount ?consistent with the reasonable needs of children and the ability of parents to pay.?? Guidelines, ? 1.? The Guidelines are built upon two principles of the Income Shares Model:? (1) ?The total child support amount approximates the amount that would have been spend on the children if the parents and children were living together,? and (2) ?Each parent contributes his/her proportionate share of the total child support amount.? , Background.
According to the Arizona Child Support Guidelines ?8, if a parent is seeking higher child support than is presumed under the Guidelines, they ?shall bear the burden of proof to establish that a higher amount is in the best interests of the children.?? Notably, the Guidelines do not specify that the parent has to specify every dollar requested in the deviation.? Instead, in the recent ruling by the Arizona Court of Appeals in Nash v. Nash, the Court stated that ?in asking the court to establish a child-support amount in excess of the amount derived from the Schedule, Mother only had to prove that some upward deviation was in the best interests of the children.?? Nash v. Nash, No. 1 CA-CV 12-0039 (Ariz. Ct. App. July 23, 2013).? Ultimately, the inability to prove the necessity of every dollar requested in the deviation does not mean that parent is ?entitled to no deviation whatsoever.?
Significantly, when the parents possess significant resources, the family court must ?consider the reasonable needs of the children in light of the parents? resources.?? When deciding If an upward deviation in child support is warranted, ?the court must give considerable regard to the reasonable benefits, beyond their ?basic needs,? accorded to the children during the marriage.???? This is in accord with what is stated in the Background of the Guidelines that the ?total child support amount approximates the amount that would have been spent on the children if the parents and children were living together.?? Arizona Child Support Guidelines, Background.
In Nash v. Nash, the Court found that even expenses such as international travel can be considered in calculating child support for children from affluent homes.? Nash v. Nash, No. 1 CA-CV 12-0039 (Ariz. Ct. App. July 23, 2013).? The Court, in citing to Miller v. Schou, 616 So.2d 436, 438-39 (Fla. 1993), stated that ?in such a situation, the court must look beyond the basic necessities of survival because children are entitled to share reasonably in their parents? economic good fortune.? (quotations omitted).?? The Court goes on to explain that ?a child?s share in the good fortune of his or her parents must be subject to the limitation that the award be consistent with an appropriate lifestyle.???? (quotations omitted).
Included in some custody agreements, is language that prohibits the parties from making disparaging comments or anything else that would negatively impact the children?s opinions or respect for the other parent.? In the recent ruling of the Arizona Court of Appeals in Nash v. Nash, where a party tweeted a critical statement about the other, the Court tackled the difficult case of disparaging comments made on social media outlets.? Nash v. Nash, No. 1 CA-CV 12-0039 (Ariz. Ct. App. July 23, 2013).? If too restrictive, the Court?s enforcement of a custody agreement could encroach on 1st Amendment free speech rights.

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J & J TRUCKIN LLC and Theodore Taylor, Defendants.
David Neil Ventker, Nathaniel Gavin Zaleski, Ventker & Warman PLLC, Norfolk, VA, David Thomas Maloof, Thomas Mark Eagan, Maloof Browne & Eagan, LLC, Rye, NY, for Plaintiffs.
RAYMOND A. JACKSON, District Judge.
*1 Before the Court is Defendant Theodore Taylor’s (“Taylor”) Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6) against Plaintiffs Certain Institute Companies and Lloyds Syndicates Subscribing to Policy Number JC487009, RLI Insurance Company, The Travelers Companies, Great American Insurance Company, Mitsui Sumitomo Insurance Company of American, Tokio Marine & Nichido Fire Insurance Company, Ltd. (United States Branch), XL Specialty Insurance Company, and Astro II, a captive insurance company of The Boeing Company and The Boeing Company (collectively, “Plaintiffs”). For the reasons stated herein, Defendant’s Motion to Dismiss is GRANTED.
On or about May 22, 2009, The Boeing Company, or its customer, shipped from Baltimore, Maryland an over height radar antenna (“the Shipment”) to be delivered to Northrop Grumman Corporation (“Northrop Grumman”) in Norfolk, Virginia for use in commercial airplanes. Am. Compl. ¶ 9. The Shipment was 14 feet, 10 1/2 inches high and was listed on its permit application as 14 feet, 11 inches high. Am. Compl. ¶ 10. Defendant J & J Truckin was responsible for transporting and carrying the Shipment to Northrop Grumman. Am. Compl. ¶ 11.
Plaintiffs claim that the Virginia Department of Transportation (“V–DOT”), by its hauling technician, Defendant Taylor, chose a route for the Shipment which included going under an overpass at Route 54 over Route 95 in Virginia that was listed in their records as 14 feet, 7 inches high.FN1 Am. Compl. ¶¶ 8, 10. They argue that Taylor failed to comply with state procedures as set forth in the Virginia Hauling Permit Manual, requiring him to verify that a route will meet the parameters of a truck. Am. Compl. ¶ 10. On May 21, 2009, while traveling on Interstate 95, the Shipment struck a bridge overpass whose height was unmarked. Am. Compl. ¶ 13.
FN1. In his Memorandum of Law in Support of the Motion to Dismiss, Defendant Taylor maintains that he was an employee of the Virginia Department of Motor Vehicles and not a former employee of V–DOT. Mem. Law. Supp. Mot. Dismiss 1.
Plaintiffs insured the Shipment and paid an insurance claim. Subsequently, on January 31, 2012, they filed an Amended Complaint in this Court alleging five counts against Defendants J & J Truckin, Carlton Express, Inc., Kimbera Derr d/b/a Kim’s Flag Car, and Theodore Taylor. Plaintiffs’ Amended Complaint lays out claims for Breach of Duties under The Carmack Amendment against Defendant J & J Truckin (Count I), Breach of Contract against Defendant J & J Truckin (Count II), Bailment against Defendant J & J Truckin (Count III), Negligence and/or Gross Negligence and/or Recklessness and/or Willful Conduct against all Defendants (Count IV), & Negligence Per Se against Defendants J & J Truckin and Taylor (Count V).FN2 The Amended Complaint seeks damages in the amount of $1,300,000.
FN2. On April 13, 2012, by voluntary motion of the Plaintiffs, the Court dismissed Defendants Carlton Express and Kimbera Derr from this action.
On March 6, 2012, Defendant Taylor filed the instant Motion to Dismiss the portions of Counts IV and V which pertain to him. In order to fully adjudicate this matter, the Court held a hearing on the motion on July 30, 2012.
A motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6), tests the legal sufficiency of a complaint. Federal Rule of Civil Procedure 8 only requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, a plaintiff must still provide the Court with more than a mere “formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The complaint must be supported by factual allegations that raise a right to relief above the speculative level. Id. In fact, a claim is considered facially plausible when the plaintiff gives the court more than a “sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).
*2 Taylor asserts that, because he was a state employee acting in his official capacity, he is entitled to sovereign immunity on Plaintiffs’ claims. Mem. Supp. 3. He further claims that because the Amended Complaint raises only allegations of simple negligence and not gross negligence, the Plaintiffs cannot recover. Id.
The Plaintiffs argue that Taylor is not entitled to sovereign immunity because his duties as a hauling permit technician were ministerial in nature. Mem Opp’n Law Mot. Dismiss 3. Additionally, the Plaintiffs believe that, even if the Court finds that Taylor is entitled to sovereign immunity, they have sufficiently pled a claim for gross negligence bypassing the doctrine of sovereign immunity. Id. at 6–7.
“[N]o single all-inclusive rule can be enunciated or applied in determining entitlement to sovereign immunity.” James v. Jane, 282 S.E.2d 864, 869 (Va.1980). However, the Virginia Supreme Court has reasoned that “… the question of whether a particular act is entitled to the protection of sovereign immunity depends upon whether the act under consideration is classified as discretionary or ministerial in nature.” Colby v. Boyden, 400 S.E.2d 184, 186 (Va.1991).
To determine whether an act is ministerial or discretionary, Virginia courts employ a four-factor test as enunciated in James and reiterated in Messina v. Burden, The four factors include: “(1) the nature of the function performed by the employee; (2) the extent of the state’s interest and involvement in the function; (3) the degree of control and direction exercised by the state over the employee; and (4) whether the act complained of involved the use of judgment and discretion.” See Messina v. Burden, 321 S.E.2d 657, 663 (Va.1984).
Based on the James test, the Court concludes that Taylor’s job as a hauling permit technician requires discretionary acts. First, the Court finds that the state has great interest in controlling the issuance of excessive size and weight vehicle permits to ensure safety on its highways. Therefore, the question of whether Taylor is entitled to sovereign immunity in this case turns largely on whether the nature and function he performed involved the use of judgment and discretion.
The Commissioner and local authorities of cities and towns, in their respective jurisdictions, may, upon written application and good cause being shown, issue a permit authorizing the application to operate on a highway a vehicle of a size or weight exceeding the maximum specified in this title. Any such permit may designate the route to be traversed and contain any other restrictions or conditions deemed necessary by the body granting the permit.
(emphasis added). The statutory language itself calls for discretion in determining whether to grant a permit. Defendant Taylor was responsible for issuing search permits and mapping routes for vehicles to follow. The allegations contained within the Plaintiffs’ Amended Complaint also suggest that Taylor’s duties were discretionary. Plaintiffs allege that Taylor “selected the route for the Shipment” and “issued the permit.” Am. Compl. ¶ 8. Moreover, they contend that Taylor was supposed to “verify the route will fit parameters of truck, based upon customer information, using various resources.” Am. Compl. ¶ 10. Each of these acts Plaintiffs pled suggests that Taylor had discretion to select a route from among alternatives and choose whether to grant a permit.
Traditionally, sovereign immunity has extended to employees of immune government entities. The Act preserved the immunity enjoyed by government employees, but the protection of immunity covers only some employee actions.
A government employee is liable for negligence in performing a ministerial act. A ministerial act is one that an employee performs in a prescribed manner in obedience to authority without the exercise of his or her own judgment. Typically, these acts are clearly defined tasks performed with minimum leeway as to personal judgment, and they do not require the weighing of alternatives. (A commonly cited example is highway maintenance.).
Nevertheless, when an act is considered discretionary or supervisory, a government employee may be protected by immunity. An act is considered to be discretionary if it has the following characteristics: (1) an authorized individual or agency gave the employee the power and duty to make a decision; (2) the decision was made from a set of valid alternatives; and (3) the employee or agency exercised independent judgment in making the selection. Discretionary acts are also called planning functions, such as design, allocation of resources, and allocation of labor.
“Tort Liability. A Handbook for Employees of the Virginia Department of Transportation and Virginia Municipal Corporations,” (Virginia Transportation Records Council, May 2003) (hereinafter, “the Handbook”) (emphasis in original).
Even relying upon the Plaintiffs’ proposed explanation of discretionary and ministerial acts as found in the Handbook, the Court’s conclusion remains unchanged. There is no dispute among the parties about whether Taylor was given the power to make a decision as mentioned above. Additionally, factors two and three from the Handbook weigh in favor of Taylor. He clearly had the option of choosing from a valid set of alternatives, using various resources in determining whether to grant a permit and in determining which route to use to guide the Shipment. Plaintiffs’ counsel admitted at the hearing that there was at least one alternative route that Taylor could have chosen which would have safely guided the Shipment to its destination. Simply because Taylor may have failed to choose the proper route or failed to perform his duties correctly does not alter the Court’s conclusion that he had the discretion to choose a correct route. The information the parties provided the Court shows that Taylor’s job required him to rely upon independent judgment in the hauling permit process.
The only remaining factor—the degree of control and direction exercised by the state over the employee—is of less importance on the facts of this case, but this factor still weighs in favor of granting Taylor sovereign immunity. The state did exercise some control and direction over Taylor by codifying many of his duties, but it empowered Taylor and other similarly situated employees with discretion in performing their jobs. Conducting this analysis of the James test leads the Court to determine that Taylor is entitled to sovereign immunity.
*4 Finally, the Court recognizes that there is minimal case law addressing the issue of sovereign immunity in the specific context the parties have brought before the Court. The Plaintiffs cite to a California case they argue should govern the Court’s ruling while the Defendant cites to an Indiana case he maintains is more closely analogous to the case at bar. In Hill v. The People ex rel. Dept. of Transp., 154 Cal.Rptr. 142, 146 (Cal.Ct.App.1979) to which Plaintiffs cite and Crossno v. State of Indiana, 726 N.E.2d 375, 380 (Ind.Ct.App.2000) to which Defendant cites, the California and Indiana courts reach contrasting conclusions about whether the act of issuing a hauling permit involves discretion.
While neither courts’ holding is binding in this district, the Court finds instructive the Indiana court’s emphasis on the statutory language’s use of the word “may” which reads a level of discretion into the acts of employees tasked with carrying out those statutory duties. See Crossno, 726 N.E.2d at 380. It is the Court’s conclusion that the statutory language considered contemporaneously with the Court’s understanding of Taylor’s duties necessitates a finding that he is entitled to sovereign immunity.
Notwithstanding the Court’s conclusion that Taylor is entitled to sovereign immunity, “[i]n Virginia, a government agent entitled to protection of sovereign immunity is not immunized from suit. Rather, the degree of negligence which must be shown to impose liability is elevated from simple to gross negligence.” Colby v. Boyden, 400 S.E.2d 184, 186 (Va.1991) (citations omitted). In other words, “[a] state employee who acts wantonly, or in a culpable or grossly negligent manner, is not protected.” James, 282 S.E.2d at 869.
Defendants directly or through their employees, agents or independent contractors, each negligently, with gross negligence, recklessly and/or willfully failed to exercise the degree of care in relation to the Shipment which a reasonably careful man would exercise under the circumstances, and/or negligently, with gross negligence, recklessly and /or willfully failed to manage the shipping process and/or permit process and/or to handle the Shipment such as was required to be safe and would be sufficient to prevent the damage to the Shipment.
Plaintiffs argue that whether Taylor’s actions constitute gross negligence should be an issue for discovery and ultimately a jury question. Mem. Opp’n 6; see also Gedrich, 282 F.Supp.2d at 475 (“Whether certain behavior constitutes gross negligence is ‘generally a factual matter for resolution by the jury and becomes a question of law only when reasonable people cannot differ.’ ”) (internal citation omitted). The Court finds that the above statement amounts to a mere recitation that Defendant Taylor was allegedly grossly negligent without providing any factual support for the allegation. In support of their gross negligence claim, Plaintiffs incorporate by reference paragraph 10 of the Amended Complaint. Paragraph 10 outlines Taylor’s failure to comply with state procedures which Plaintiffs submit ultimately led to the destruction of a Boeing radar unit and $1.3 million damage. Mem. Opp’n 6.
FN3. In addition to the allegations contained within the Amended Complaint, Plaintiffs have attempted to argue new facts (e.g., that the verification process never occurred at all) in their pleadings and at the hearing before the Court that were not contained in their Amended Complaint. See Mem Opp’n 7. However, in ruling on a motion to dismiss and testing the legal sufficiency of the Amended Complaint, the Court must only consider the face of the Amended Complaint, any exhibits attached to it, and matters of public record. See, e.g., Moore v. Flagstar Bank, 6 F.Supp.2d 496, 500 (E.D .Va.1997).
Therefore, the Court finds that Plaintiffs have failed to satisfy the requirements of Rule 12(b)(6) with respect to their claim of gross negligence. Thus, the Court dismisses the claims of Count IV relating to Defendant Taylor.
Count V of the Amended Complaint alleges that Defendants J & J Truckin and Taylor are liable for negligence per se. Specifically, Plaintiffs allege that Defendant Taylor violated Va.Code § 46.2–1139. Am. Compl. ¶ 33. However, because the Court has determined that Taylor is entitled to sovereign immunity, claims of negligence rooted in anything other than gross negligence cannot remain. See Colby, 400 S.E.2d at 186 (requiring proof of gross negligence to overcome defense of sovereign immunity).
Accordingly, the Court dismisses the claims of Count V relating to Defendant Taylor.
For the reasons stated above, it is ORDERED that Defendant Taylor’s Motion to Dismiss those portions of Counts IV and V of the Amended Complaint which pertain to him is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ are granted leave to file a Second Amended Complaint in this Court within fifteen (15) days from the date of this Order.
The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to counsel of record.
Lacey FREDRICS, et. al., Defendants.
F. Lachicotte Zemp, Jr., Roberts & Stevens, PA, Asheville, NC, for Plaintiffs.
Brian Forrest Davis, Asheville, NC, Andrew A. Aun, Aun & McKay, PA, Irmo, SC, John Paul Detrick, Peters, Murdaugh, Parker, Eltzroth & Detrick, Hampton, SC, for Defendants.
*1 THIS MATTER is before the Court on the Plaintiffs’ Objections to Magistrate’s Order [Doc. 124].
On November 11, 2010, the Plaintiff Great West Casualty Company (Great West) initiated this statutory interpleader action on behalf of its insureds, Globe Carrier Company (Globe), Roumen T. Velkov (Velkov) and Gergana Lazova (Lazova) FN1 pursuant to 28 U.S.C. § 1335. [Doc. 1]. Great West insured Globe, an Illinois corporation and commercial trucking company. Lazova is the president of Globe. Globe employed Velkov who, on October 24, 2010, was driving a tractor trailer owned by Globe and carrying a load for Ferrara Pan Candy Company (Ferrara) when an accident occurred in Henderson County, North Carolina. The tractor trailer collided with and allegedly caused collisions with numerous vehicles on Interstate 26 resulting in multiple deaths and numerous personal injuries.
FN1. Lazova was actually added as a named party in a later amended complaint. [Doc. 28].
Prior to the accident, Great West had issued one liability insurance policy to Globe in the amount of one million dollars. At the time Great West brought this interpleader action, it had not been able to locate any other policies and was of the belief that no other policies had been issued by another company. Great West also claimed that neither Globe nor Velkov, who has been discharged in bankruptcy, has assets available to satisfy any potential judgments which may result from the accident. Great West thus was confronted with the possibility of claims exceeding one million dollars due to the extensive nature of the collision and resulting deaths and injuries. As a result, Great West was in the position of being unable to ascertain an equitable allocation of proceeds and sought leave to pay into court the full amount of its insurance policy pursuant to statutory interpleader. Great West also moved pursuant to 28 U.S.C. § 2361 for an order restraining potential claimants from initiating or pursuing state or federal actions which would affect the proceeds of the insurance policy paid into court. [Doc. 5].
On November 22, 2010, the undersigned granted the Plaintiffs’ motion and entered an Order for Deposit, Restraining Order and Order for Service of Process.FN2 [Doc. 7]. The next day, Great West filed a First Amended Complaint which added new Defendants. [Doc. 8]. On January 14, 2011, Great West dismissed certain Defendants after learning that they declined to assert claims. [Doc. 26]. On January 20, 2011, Great West filed its Second Amended Complaint which added Lazova as a Plaintiff as well as an additional Defendant. [Doc. 28].
FN2. Great West deposited the policy proceeds on November 29, 2010.
On April 25, 2011, a Third Amended Complaint was filed with court permission which, again, added potential claimants/defendants. [Doc. 73]. Taylor and Murphy Construction Company, Inc. (Taylor) and Ferrara were added because of the possibility that they may be held liable to the claimants and thus seek contribution from the deposited funds.FN3 Taylor owned a dump truck which had collided with a bridge approximately two hours before the collision at issue in this case. The dump truck’s collision with the bridge was the cause of the traffic backup which existed at the time the tractor trailer being driven by Velkov collided with several stopped vehicles. [Id.]. As noted above, Velkov’s truck was carrying a load for Ferrara. [Id.]. The relief sought in the Third Amended Complaint, however, remained the same: statutory interpleader pursuant to which Great West had paid the total proceeds of its insurance policy into Court in order for the Court to make a determination of the distribution thereof.
FN3. Aimee Petit was also added as a Defendant/Claimant. She was a passenger in one of the cars involved in the collision.
*2 On April 26, 2011 Defendants Reed, Clark, Frederics, Kimble, Carpenter and Novak (the Illinois plaintiffs) filed an action in state court in Illinois against all the Plaintiffs herein, in addition to others. [Doc. 89]. They did so without seeking relief from this Court’s prior restraining order. On June 13, 2011, th eIllinois plaintiffs moved to stay this action pending the conclusion of that Illinois case. The Magistrate Judge granted the motion to stay and the Plaintiffs now seek reconsideration.
When a pretrial matter not dispositive of a party’s claim … is referred to a magistrate judge to hear and decide, the magistrate judge must …, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy…. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. Fed.R.Civ.P. 72(a).
A ruling is clearly erroneous if a reviewing court is “left with the definite and firm conviction that a mistake has been committed.” United States v. DeSilva, 613 F.3d 352, 356 (2d Cir .2010); United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S .Ct. 525, 92 L.Ed. 746 (1948). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Rathgaber v. Town of Oyster Bay, 492 F.Supp.2d 130, 137 (E.D.N.Y.2007) (internal quotation and citation omitted); High Voltage Beverages, LLC v. Coca–Cola Co., 2010 WL 2342458 (W .D.N.C.2010).
Although Great West seeks reconsideration of the Magistrate Judge’s decision to stay the action, it appears that the motion to stay may have been premature. As noted above, this Court allowed the third amendment of the Complaint on April 25, 2011 which added Taylor and Ferrara as Defendants/Claimants. The relief sought in this interpleader action is a determination of the rights of the parties to the fund and a distribution thereof in accord with that determination. [Doc. 73]. The day after that amendment, April 26, 2011, Reed, Clark, Frederics, Kimble, Carpenter and Novak brought suit against Great West and its insureds in state court in Illinois.FN4 [Doc. 89–3]. They also sued Ferrara. [Id.]. The relief sought in the state court action is for monetary damages for wrongful death and survivors’ losses resulting from the defendants’ alleged negligence.
FN4. The copy of the Illinois complaint that has been filed with this Court [Doc. 89–3] is incomplete, and from it the Court cannot determine the nature of the claim against Great West or why it is named as a party defendant in that suit.
After bringing the state court action, Reed, Clark, Fredrics, Kimble and Novak then moved this Court to stay the federal court action pending the outcome of the Illinois case. In that motion, they do not seek a lifting of the Restraining Order issued in this case to allow prosecution of the Illinois action. [Doc. 89]. In fact, in the Motion to Stay, these parties claim that the “relative culpability of the various parties needs to be fully determined [in the state court action] before this Court can equitably distribute the interpleader fund[.]” [Id.]. Indeed, they go so far as to state that “the victims of the truck crash have claims against other tortfeasors that must be resolved in other courts before a fair division of the interpleader fund can be made as between all defendants/claimants.” [Doc. 89–1 at 5] (emphasis provided). However, not all of the parties are before the Illinois state court. Indeed, the Plaintiffs have disclosed that other parties to this action, Defendants/Claimants Catherine Clark and Theresa Seaver, have now brought state court actions in North Carolina. [Doc. 124 at 6]. None of the other Defendants in this action joined in the Motion to Stay, although it must also be noted that none of them opposed it.
*3 The utility of interpleader as a device for efficient, consistent resolution of a multi-sided dispute would be threatened if several courts could litigate the issues underlying the interpleader case simultaneously. Absent self-restraint of the parties, the only way to ensure that there will not be overlapping litigation is to have the interpleader court issue an injunction against other proceedings. In response, Congress empowered courts hearing statutory interpleader cases to enjoin other proceedings—in state courts or federal district courts—relating to the stake.
4. Moore’s Federal Practice, § 22.04[a] (Matthew Bender 3d Ed.).
Pursuant to 28 U.S.C. § 2361, on November 20, 2010, this Court entered a Restraining Order which provides that “the claimants [in this action] shall be restrained from initiating, instituting or prosecuting any proceeding in any State or United States Court against the one million dollars ($1,000,000.00) in liability coverage insurance proceeds pursuant to the [Great West] Policy GWP39171 E.” [Doc. 7 at 7]. The Restraining Order also provides that it shall be applicable to parties added to the action after the entry thereof, such as Ferrara and Taylor have been. [Id.]. “In an interpleader action the district court may … enter an order restraining the claimants from instituting any proceeding affecting the property until further order of the court.” Rhoades v. Casey, 196 F.3d 592, 600–01 (5th Cir.1999) (emphasis provided). The Order entered here thus operates to restrain actions against the res at issue but does not extend “to actions against the insured or other alleged tortfeasors if those suits are not claims against the fund.” Moore’s, supra. (emphasis provided). In other words, to the extent that the plaintiffs in the state court actions seek a recovery outside the limits of the interpleader fund, there is no restraint. Id. (citing State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 533, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967)). Likewise, to the extent they seek merely to establish liability but not to reach the fund in this action, there is no restraint. Carolina Cas. Ins. Co. v. Mares, 826 F.Supp. 149 (E.D.Va.1993).
This Court does not imply that it will enjoin other state or federal courts from proceeding, although the statute certainly provides for such relief. Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, 589 F.3d 835, 844 (6th Cir.2009). The Court will, however, require the parties to provide information to the Court concerning the status of and claims presented in any other litigation between these parties.
1. All Defendants/Claimants who have filed suit in any court regarding the accident at issue herein shall provide all information about such suit including the identities of the parties thereto, where it is pending, when it was filed, and the purpose of such suit (including particularly whether such Claimant is seeking recovery from the res that has been paid into this Court in the matter), and shall provide a copy of the current complaint (or amended complaint) in such suit.
*4 2. All Defendants/Claimants who have not filed suit in another court regarding the accident at issue herein are directed to inform the Court whether they intend to pursue a claim regarding said accident only by way of participation in this interpleader action.
3. All parties shall inform the Court whether they support or oppose the current Motion for Stay.
4. All parties shall inform the Court as to whether it is their position that the filing of suits in other courts regarding the accident at issue herein violates this Court’s restraining order, along with the basis for their position.


William H. Edwards, Providence, R. I., with whom Ernest N. Agresti and Edwards & Angell, Providence, R. I., were on brief, for appellant.
Alfred B. Stapleton, Providence, R. I., with whom Graham, Reid, Ewing & Stapleton, Providence, R. I., was on brief, for appellee.
This is an appeal by Ritz Metal Products, Inc., the reorganized debtor, from an order of the United States District Court for the District of Rhode Island authorizing Alfred B. Stapleton, the trustee in reorganization, pursuant to an approved, accepted and confirmed plan of reorganization under Ch. X of the Bankruptcy Act, 52 Stat. 883 et seq. (1938), 11 U.S.C.A. § 501 et seq., to complete payment of a dividend amounting to approximately twenty-five per cent of its unsecured claim and one hundred per cent of its secured claim to Marine Finance Corporation, a creditor of the debtor corporation. The objection of the appellant to this payment is based on the ground that it should be offset by a debt alleged to be owing to the trustee from Marine Finance Corporation (hereinafter called Marine) arising out of excessive rent paid by the trustee during the period of his occupancy of premises owned by Marine.
From the record before us it appears that the original debtor, Ritz Products, Inc. (hereinafter called Ritz) signed a lease on February 6, 1957 with Marine for two floors of a building for a three year term. About three weeks thereafter, Ritz filed a voluntary petition for reorganization under Ch. X. Stapleton was thereupon appointed trustee and a plan of reorganization based upon the insolvency of the debtor was approved, accepted and confirmed. Following the confirmation of the plan the name of Ritz was to be changed to Ritz Metal Products, Inc., new officers were to be elected, and in consideration of, among other things, the payment of twenty-five per cent of the creditors' claims, as set forth in the plan, all assets were to be transferred to the reorganized corporation, Ritz Metal Products, Inc. (hereinafter called Metal). This transfer was made on May 2, 1958 and all outstanding matters have been settled with the exception of the claim of Marine.
The background of the failure to pay this claim is as follows: the trustee although occupying the leased premises did not assume the lease, as was permissible in the plan of reorganization, until May 2, 1958, the date of transfer of the assets of the trustee to Metal. During the period of his occupancy he had been paying a monthly rental of fifteen hundred dollars which was equal to that set forth in the lease and which he had independently determined was a fair rental for the occupied premises. The appellant does not argue that this was not a fair rental for the space actually occupied but does point out that the trustee did not occupy the entire two floors and that during the fourteen month period prior to the transfer of assets, portions of the leased two floors had been rented by Marine to other tenants from whom it had collected rent. Appellant maintains that by the assumption of this lease, the trustee became retroactively entitled to that portion of the monthly fifteen hundred dollars rental applicable to those portions of the two floors not occupied by the trustee and rented by Marine to other tenants. The appellant further contends that it did not make this objection known to the trustee or the district court prior to the confirmation or the transfer of assets because it was unaware at that time of the words of the lease although the lease was a matter of public record.
After being made aware of the possible existence of this counterclaim several days after the transfer of assets, the trustee apparently made an investigation of the circumstances of the execution of the lease and stated in his petition for authorization to pay the claim of Marine that in his considered opinion there existed no valid legal basis for any setoff by the debtor against the claim of Marine. However, at the hearing on this petition the trustee orally expressed the desire that the district court pass on the question as to his responsibility to pursue the claim against Marine and stated that the court could not very well decide this question without considering the merits of the claim at least in part. The appellant also appeared at this hearing and similarly contended that there should be a hearing on the merits of the claim. The attorney for Marine, however, contended that the district court did not have to hear evidence as to the merits of the claim because upon the transfer of assets the claim became the property of Metal. He further argued that even assuming that the claim did not become the property of Metal, there was so little merit to it that the trustee should not be required to pursue it.
The district court, without hearing evidence as to the merits of the claim, decided that the final payment to Marine should be made. The grounds for holding the trustee was not obligated to withhold this final dividend, although not explicitly expressed in the district court's oral opinion, were indicated to be: the delay of Metal or the investors therein in making known this claim to the trustee until after the transfer of assets, the probable invalidity of the claim itself based upon the representations made by the parties in interest at the hearing, and the delay in consummation of the reorganization through the imposition of the burden of pursuing this doubtful claim upon the trustee following the confirmation of the plan of reorganization by all parties concerned and the transfer of practically all the assets of the insolvent debtor to the reorganized corporation.
Neither of the parties to this appeal have been able to point to any precedent clearly in point on the issue presented to us here. That issue is whether the district court abused its discretion under the special circumstances presented here in authorizing the trustee to pay out this claim thereby absolving him of the responsibility of further pursuing the counterclaim for allegedly excessive rental paid during the trusteeship period.
It is clear that if this claim against Marine arose prior to the petition for reorganization or perhaps even prior to the confirmation of the plan, it would have to be either settled or adjusted in the reorganization plan or retained by the trustee and enforced by him pursuant to § 216(13)1 of the Bankruptcy Act, 52 Stat. 895 (1938), 11 U.S.C.A. § 616. But here the claim not only did not accrue prior to the petition but became known only following the approval, acceptance and confirmation of the plan and the transfer of assets. Moreover, while this claim cannot be said to be the usual account receivable apparently intended to be excluded from the literally all encompassing coverage of § 216(13), it also cannot be said to have the nature of a claim for breach of fiduciary duty by the officers or directors of the debtor corporation which Congress certainly intended should be enforced under § 216(13) for the benefit of the creditors of the insolvent corporation. See 6 Collier on Bankruptcy, ¶ 10.22 n.18 (14th Ed. 1947). It would, therefore, seem evident that the mandatory aspects of § 216(13) of the Act are not applicable to the situation presented here. On the other hand, we do not accept the appellee's argument that because the claim was not specifically retained by the trustee in the plan of reorganization, which was impossible as he did not know of its existence, it automatically passed as an asset to the reorganized corporation under the plan of reorganization. It is asserted by the reorganized corporation, Metal, that it also was unaware of this claim when it assented to the plan of reorganization. It would follow, therefore, that its value was not considered in the plan of reorganization. It would seem inequitable that the trustee would have no right under such circumstances to recover the undisclosed asset for the benefit of the creditors of the insolvent corporation even though this might require post-confirmation modification of the plan of reorganization. However, this is not the situation before us for here the trustee set forth in his petition to the district court that he was of the opinion the claim against Marine had little merit or value. In essence his petition was not only for permission to pay the Marine claim but also by necessary implication to abandon his alleged counterclaim against that creditor.2 The district court decision did not adjudicate the merits of the claim against Marine; it merely held that the trustee did not have to enforce it. Whether the district court would have summary jurisdiction to enforce this claim either to protect its own jurisdiction sua sponte, cf. In re Thomas, 7 Cir., 1953, 204 F.2d 788, 41 A.L.R.2d 941, or upon formal and timely petition by proper parties, see Governor Clinton Co. v. Knott, 2 Cir., 1941, 120 F.2d 149, decided under the old § 77B, has not been presented to us on this appeal.
Under the special circumstances presented here3 we are of the opinion that the district court did not abuse its discretion in issuing the order appealed from nor was it reversible error for this limited order to have been issued without a full hearing on the merits of the asserted claim.
"§ 216 Provisions of plan.
"(13) may include provisions for the settlement or adjustment of claims belonging to the debtor or to the estate; and shall provide, as to such claims not settled or adjusted in the plan, for their retention and enforcement by the trustee * * *."


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First, he filed a copyright infringement suit against Falwell for republishing Hustler 's Campari ad without permission. Coakley Packingham v. The deposition deteriorated, ended with a string of venomous attacks by Flynt on Grutman and his client. This page was last edited on 8 October , at In New York Times , the Court held that the First Amendment gives speakers immunity from sanction with respect to their speech concerning public figures unless their speech is both false and made with "actual malice", i. Day Jacobellis v. Seymour Halleck to the stand.
Daniela. Age: 20. We might both find that our encounter might be beyond expectations and it will become over years a precious memory.
Socialist Workers '74 Campaign Committee Regan v. And, as we stated in FCC v. Subversive Activities Control Board , Yates v. The judgment of the Court of Appeals is accordingly Reversed. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm.
CIO Schneider v. Respondent, a nationally known minister and commentator on politics and public affairs, filed a diversity action in Federal District Court against petitioners, a nationally circulated magazine and its publisher, to recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the publication of an advertisement "parody" which, among other things, portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. Ceballos Borough of Duryea v. Bennett American Tradition Partnership v. Coakley Packingham v.
A jury found in favor of Flynt on the libel claim, stating that the parody could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. Keefe Lloyd Corp. Beason Schneider v. Falwell co-founded the socially conservative and politically active Moral Majority in , an organization that was credited with helping to elect Ronald Reagan the next year. Paty Widmar v.

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Appeal from the Circuit Court, Cole County; Patricia Joyce, Judge.
John E. Beetem, Hearne, Nicholaus, Green Beetem, Jefferson City, for appellants.
Thomas A. Vetter, Matthew A. Clement, Cook, Vetter, Doerhoff Landwehr, Jefferson City, for respondents.
Before ULRICH, C.J.,P.J., and HANNA and ELLIS, JJ.
On September 6, 1991, Mrs. Helen Haverkortt executed a nine page trust document entitled, "Helen H. Haverkortt Trust," naming herself as Trustee. The same day, Mrs. Haverkortt executed a warranty deed conveying her home to the Trust and a will bequeathing her estate to the Trust. Mrs. Haverkortt expressly reserved the right to change, alter or amend the Trust during her lifetime, by written agreement executed by her and delivered to the Trustee. All assets held in the Trust were identified on page nine of the Trust document, which was entitled "Schedule A." Pursuant to the terms of the Trust, the assets were to be distributed upon Mrs. Haverkortt's death, as follows: (a) a sum of $1,000 to her church, (b) one sixth of the trust assets to each of her five nieces and nephews, and (c) one eighteenth of the trust assets to each of her three great nieces.
Since my home is "personal property", at the time of my demise, if I still have and own my property at 206 Donald Drive, I would like to have this sold and the money to be divided between Virginia Pritzel and Judith Ann Scrivner.
Virginia Pritzel and Judith Ann Scrivner are two of Mrs. Haverkortt's nieces.
Balance of fine jewelry crystal to be sold at a private sale for nieces nephews mentioned in Living Trust.
should be made of said written statement or list.
In an effort to resolve the conflict between these provisions, the Successor Trustee filed a petition in the Probate Division of the Circuit Court of Cole County, requesting that the court construe the Trust document. On October 30, 1996, the Probate Court entered its findings of fact, conclusions of law and judgment, declaring that the bequeaths of the directives in Schedule B were void and of no force and effect due to their conflict with Article V of the Trust. In so holding, the court specifically found that Schedule B was not an amendment to the Trust document, and was merely an effort to dispose of the specified items of property. Nieces, Judith Ann Scrivner and Virginia Pritzel (Appellants), appeal from the court's order.
Appellants' sole point on appeal challenges the court's invalidation of the directive relative to Mrs. Haverkortt's home. Appellants contend the court was obligated to reconcile any conflicting instructions according to Mrs. Haverkortt's intent, that it erred in failing to do so, and that its ultimate construction of the provision was against the weight of the evidence. Appellants claim they adduced evidence to explain the special relationship between Mrs. Haverkortt and Appellants and establish her intent.
The trial court's judgment is presumed valid. Delaney v. Gibson, 639 S.W.2d 601, 604 (Mo. banc 1982). We will reverse only if the judgment is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. In re Estate of Strick, 934 S.W.2d 312, 314 (Mo. App. E.D. 1996). The appellant carries the burden of demonstrating the incorrectness of the judgment. In re McDonald Revocable Trust, 942 S.W.2d 926, 932 (Mo. App. S.D. 1997).
Missouri courts generally apply the same rules for construing both trusts and wills. Lehr v. Collier , 909 S.W.2d 717, 723 (Mo. App. S.D. 1995). Where as here, the trust and will form parts of the same plan, they must be construed together. Id. The grantor's intent controls when construing the meaning of a trust provision. Marvin F. Hall Trust v. Hall, 810 S.W.2d 710, 714 (Mo. App. S.D. 1991). In determining the grantor's intent, we consider the entire trust instrument; no single clause or word is given undue preference. Id. The grantor is presumed to know and intend the legal effect of the language used. In re Nelson, 926 S.W.2d 707, 709 (Mo. App. S.D. 1996). The words used must be given their usual, ordinary and natural meaning, unless a contrary meaning appears in the instrument. Lehr v. Collier, 909 S.W.2d at 723.
It is our task here to find the general purpose of the [grantor], to reconcile and coordinate provisions which may appear to be in conflict where such reconciliation and coordination can reasonably be made consistent with the general purpose, and, if the [grantor] was confused in the expression of his desires, to pierce through such confusion and reduce to articulate terms the underlying intent.
Id. at 253-54 (quoting Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931, 932-33 (Mo. 1928)).
A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities and property used in trade or business. . . .
statement or list similar to the type authorized by Section 474.333 of the Revised Statutes of Missouri which is intended by the Grantor to create a gift of certain items of tangible personal property not otherwise referred to in this trust to be effective upon the death of the Grantor. . . . The Grantor intends that said written statement or list shall not be used to give, bequeath, or dispose of money, evidences of indebtedness, documents of title, securities, real property used in a trade or business, and no contrary construction should be made of said written statement or list. Accordingly, it is the Grantor's intention that said written statement or list only dispose of those items of personal property which would be permitted by Section 474.333 RSMo. Such list may be considered as an amendment to this Trust, but only with respect to those items of personal property described therein.
In accordance with RSMo 474.333 (effective 1/1/81) and Article V of the Helen H. Haverkortt Trust, I hereby give and bequeath unto the following persons, the personal property listed after their names: . . . NOTE: This form may not be used to give land, money, securities, etc. This form may be used only to give personal property, for example, silver, china, furniture, jewelry, etc.
Appellants, nonetheless, argue that the directive regarding the sale and disposition of Mrs. Haverkortt's home amended the original terms of the Trust. We disagree. Article V provides that Schedule B may be considered an amendment to the Trust "only with respect to those items of personal property described therein." Schedule B operates to amend the provisions of the Trust only to the extent that it disposes of personal property which would otherwise make up the corpus of the Trust and be distributed according to the provisions of Article X. The terms of the Trust expressly and unequivocally limit the scope of Schedule B to those items of personal property authorized by § 474.333. Moreover, the Trust instrument expressly prohibits a construction of Schedule B that is contrary to Mrs. Haverkortt's intent that it not be used to give, bequeath, or dispose of money, evidences of indebtedness, documents of title, securities, or real property used in a trade or business. Accordingly, the trial court did not err in finding that the directive in Schedule B regarding the sale of Mrs. Haverkortt's home and the distribution of the proceeds therefrom was void and of no force or effect.
Article X provides for the following distribution of the Trust assets: $1,000 to Mrs. Haverkortt's church, one sixth to each of her five nieces and nephews, and one eighteenth to each of her three great nieces.


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Andrei Iancu v. Erik Brunetti, No. 18-302, February 26, 2019. Brief of New York Intellectual Property Law Association as aAmicus Curiae in Support of Neither Party.
Return Mail, Inc., v. United States Postal Service, Et Al., No 17-1594, December 17, 2018. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Neither Party.
Mission Products Holdings, Inc., v. Tempnology. LLC. N/K/A Old Cold LLC., No. 17-1657, December 17, 2018. Brief of New York Intellectual Property Law Associations as Amicus Curiae in Support of the Petitioner.
Russell Brammer, v. Violent Hues Productions, LLC, Fernando Mico, Owner, No. 18-1763, October 29, 2018. Brief for Amicus Curiae New York Intellectual Property Law Association in Support of Neither Party.
RPX Corporation, v. ChanBond LLC, No. 17-1686, July 20, 2018. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Neither Party.
Regeneron Pharmaceuticals, Inc. v. Merus N.V., No. 17-1616, June 29, 2018. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Neither Party.
Syngenta Crop Protection, LLC v. Willowood, LLC., No. 2018-1614, May 4, 2018. Brief for Amicus Curiae New York Intellectual Property Law Association in Support of Neither Party.
WesternGeco LLC v. ION Geophysical Corporation, No. 16-1011. February 27, 2018. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Neither Party.
Regeneron Pharmaceuticals, Inc. v. Merus N.V., No. 2016-1346. September 26, 2017. Amicus Curiae Brief of New York Intellectual Property Law Association in Support of the Petition for Rehearing En Banc.
Impression Products INC v. Lexmark International INC., No. 15-1189. February 22, 2017. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Respondent on the First Question Presented.
Wi-Fi One, LLC v. Broadcom Corporation., No. 2015-1944. February 2017. Amicus Curiae Brief of the New York Intellectual Property Law Association in Support of Neither Party.
Oracle America, INC. v. Google INC., No. 2017-1118. February 2017. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Neither Party.
Michelle K. Lee, Director, USPTO v. Simon Shiao Tam, No. 15-1293. November 2016. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Neither Party.
Star Athletica, LLC v. Varsity Brands, Inc., No. 15-886. July 22, 2016. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Neither Party.
MCM Portfolio LLC v. Hewlett-Packard Company, No. 15-1330 May 31, 2016. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Neither Party.
Sequenom, Inc., v. Ariosa Diagnostics, Inc., Natera, Inc., and DNA Diagnostics Center, Inc., No. 15-1182. April 19, 2016. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Petitioner.
Cuozzo Speed Technologies, LLC v. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, No. 15-446. February 25, 2016. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Petitioner on the second question presented and in Support of Neither Party on the first question presented.
Sankyo Company, Ltd. Vs. Michelle K. Lee, December 17, 2015. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Petitioner.
Milo Shammas v. Drew Hirshfeld, Commissioner for Patents., December 1, 2015. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Petitioner.
Cuozzo Speed Technologies, LLC, v. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office., No. 15-446., November 9, 2015. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Petitioner.
Ariosa Diagnostics, Inc. v. Sequenom, Inc., No. 2014-1139, -1144., August 27, 2015. Amicus Curiae Brief of the New York Intellectual Law Association in Support of Petition for Rehearing En Banc.
Akamai Technologies, Inc., The Massachusetts Institute of Technology v. Limelight Networks, Inc., Nos. 2009-1372, 2009-1380, 2009-1416, 2009-1417., August 13, 2015.
Stephen Kimble and Robert Michael Grabb v. Marvel Enterprises, Inc., No. 13-720., February 4, 2015. Brief ofAmicus Curiae New York Intellectual Property Law Association ("NYIPLA") in Support of Petitioners.
B&B Hardware, Inc. v. Hargis Industries, Inc., et al., No. 13-352., October 31, 2014. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Respondents.
American Broadcasting Companies, Inc., et al. v. Aereo, Inc, F/K/A Bamboom Labs, Inc., No. 13-461., March 3, 2014. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Petitioners.
Alice Corporation PTY. LTD. v. CLS Bank International, et al., No. 13-298., January 27, 2014. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Neither Part.
Highmark Inc. v. Allcare Health Management Systems, Inc., No. 12-1163. December 9, 2013. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Neither Part.
Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184., December 9, 2013. Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Neither Part.
Alice Corporation PTY. LTD., v. CLS Bank International, et al., No. 13-298., October 7, 2013. Brief of the New York Intellectual Property Law Association as Amicus Curiae in support of the petitioner.
Patrick Cariou v. Richard Prince, et al., No. 13-261., September 27, 2013. Motion of the New York Intellectual Property Law Association for leave to file a brief Amicus Curiae in support of granting the petition.
The Association for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398, March 14, 2013. Brief for the New York Intellectual Property Law Association as Amicus Curiae in support of respondents.
Federal Trade Commission v. Actavis Inc., et al., No. 12-416, February 28, 2013. Brief of Amicus Curiae New York Intellectual Property Law Association in support of respondents.
Vernon Hugh Bowman v. Monsanto Company, et al., No. 11-796, January 19, 2013. Brief of Amicus Curiae New York Intellectual Property Law Association in support of respondents.
CLS v. Alice Corporation, No. 2011-1301, December 7, 2012. Brief of Amicus Curiae New York Intellectual Property Law Association in support of neither party.
Merck & Co., and Upsher-Smith v. Louisiana Wholesale Drug, Nos. 12-245 and 12-265, September 24, 2012. Brief of Amicus Curiae New York Intellectual Property Law Association in support of petitioners.
Myriad Genetics, Inc., No. 2010-1406, June 15, 2012. Brief of New York Intellectual Property Law Association as Amicus Curiae in support of neither party.
Mayo v. Prometheus, No. 2010-1150, September 8, 2011. Brief of New York Intellectual Property Law Association as Amicus Curiae in support of neither party.
Hyatt v. Kappos, No. 2010-1219, September 6, 2011. Brief of Amicus Curiae New York Intellectual Property Law Association in support of neither party.
McKesson Technologies v. Epic Systems, No. 2010-1291, August 16, 2011. Brief of Amicus Curiae New York Intellectual Property Law Association in support of defendant-appellee on rehearing En Banc.
Akamai v. Limelight, Nos. 2009-1372, -1380, -1416, -1417, August 10, 2011. Brief of Amicus Curiae New York Intellectual Property Law Association in support of defendant-cross appellant on rehearing En Banc.
Tivo v. Echostar Corporation, No. 2009-1374, August 2, 2010. Brief of Amicus Curiae New York Intellectual Property Law Association for En Banc rehearing in support of neither party.
Ontario v. Quon, No. 2008-1332, June 17, 2010. Cited at page 11 of the SCOTUS Slip Opinion.
Wiley & Sons, Inc. v. Supap Kirtsaeng, No. 2009-4896, March 8, 2010. On appeal from the United States District Court for the Southern District of New York brief for Amicus Curiae New York Intellectual Property Law Association in support of plantiff-appellee.
Hyatt v. Kappos, No. 2007-1066, December 14, 2009. Brief Amicus Curiae New York Intellectual Property Law Association in support of plaintiff-appellant's combined petition for rehearing or rehearing En Banc.
Princo v. ITC and U.S. Philips Corporation, No. 2007-1386, December 7, 2009. Brief of Amicus Curiae New York Intellectual Property Law Association on Rehearing En Banc in support of intervenor U.S. Philips Corporation in favor of Affirmance of the Underlying ITC Decision.
Ariad Pharmaceuticals v. Eli Lilly, No. 2008-1248, October 15, 2009. Brief of Amicus Curiae New York Intellectual Property Law Association on En Banc rehearing in support of neither party.
Shire v. Sandoz, No. 2009-1180, July 22, 2009. Brief of Amicus Curiae New York Intellectual Property Law Association in support of Shire LLC and Affirmance.
Princo v. ITC and U.S. Philips Corporation, No. 2007-1386, July 2, 2009. New York Intellectual Property Law Association's Brief Amicus Curiae in support of Philips' Motion for rehearing En Banc and in opposition to Princo's Motion for rehearing En Banc.
Princo v. ITC and U.S. Philips Corporation, No. 2007-1386, July 2, 2009. New York Intellectual Property Law Association's motion for leave to file brief Amicus Curiae in support of Philips' motion for rehearing En Banc and in opposition to Princo's motion for rehearing En Banc, and motion for leave to file overlength brief.
Tafas v. Doll,No. 2008-1352, June 16, 2009. Brief of Amicus Curiae New York Intellectual Property Association in support of appellees' petitions for panel rehearing and rehearing En Banc.
Tafas et al. v. Dudas et al, No. 2008-1352, October 3, 2008. Brief of Amicus Curiae New York Intellectual Property Law Association in support of appellees.
Finisar Corp. v. DirectTV Group, Inc.,Nos. 2007-1023 and 2007-1024, November 5, 2007. Reply brief of Amicus Curiae New York Intellectual Property Law Association in support of neither party on cross-appeal.
Finisar Corp. v. DirectTV Group, Inc.,Nos. 2007-1023 and 2007-1024, June 20, 2007. Brief of Amicus Curiae New York Intellectual Property Law Association in support of neither party on cross-appeal.
KSR International co., v. Teleflex Inc. and Technology Holding Co.,No. 2004-1350, October 16, 2006. Brief for Amicus Curiae New York Intellectual Property Law Association in support of respondents.
Medimmune, Inc. v. Genentech, Inc., et al., No. 2005-608, July 26, 2006. Brief of New York Intellectual Property Law Association as Amicus Curiae in support of respondents.
Illinois Tool Works, Inc. v. Independent Ink, Inc., No. 2004-1329, August 4, 2005. Brief of New York Intellectual Property Law Association as Amicus Curiae in support of petitioners.
Merck KGaA v. Integra LifeSciences I, Ltd., No. 2003-1237, February 22, 2005. Brief of New York Intellectual Property Law Association as Amicus Curiae in support of petitioner.
US Philips v. International Trade Commission, No. 2004-1361, November 18, 2004. New York Intellectual Property Law Association's reply brief as Amicus Curiae in support of appellant U.S. Philips.
Edward H. Phillips v AWH Corporation, Nos. 2003-1269 and 2003-1286, September 20, 2004. Brief of Amicus Curiae New York Intellectual Property Law Association regarding the issue of claim construction, in which the Tennessee Bar Association and its IP Law Section, State Bar of Michigan IP Law Section, and Los Angeles Intellectual Property Law Association join.
US Phillips v. ITC, No. 2004-1361, August 27, 2004. Brief of Amicus Curiae New York Intellectual Property Law Association in support of appellent.
Andrx Pharmaceuticals Inc. v. The Kroger Co., No. 2003-779, December 29, 2003. Motion of New York Intellectual Property Law Association and brief of Amicus Curiae in support of petitioner.
Knorr-Bremse Systems v. Dana Corp., Nos. 2001-1357, 2001-1376, 2002-1221, and 2002-1256, November 3, 2003. Brief for Amicus Curiae New York Intellectual Property Law Association in support of eliminating the adverse inference arising from the assertion of attorney-client privilege in defense of willful infringement.
CSU L.L.C. v. Xerox Corp., No. 1999-1323, July 16, 1999. Brief for Amicus Curiae New York Intellectual Property Law Association in support of defendant-appellee.
Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, No. 1998-531, March 22, 1999. Brief of Amicus Curiae New York Intellectual Property Law Association in support of respondents.
Lehman v. Zurko, No. 1998-377, January 15, 1999. Brief of Amicus Curiae New York Intellectual Property Law Association in support of respondents.
In re Zurko, No. 1996-1258, October 30, 1997. Brief for Amicus Curiae New York Intellectual Property Law Association in support of reviewing patent and trademark office fact-finding under the clearly erroneous standard of review.
Life Technologies Corporation; Invitrogen IP Holdings, Inc.; Applied Biosystems, LLC v. Promega Corporation, No. 14-1538. October 25, 2016. Brief of Amicus Curiae New York Intellectual Property Law Association in Support of Respondent.
College Savings Bank v. Florida Prepaid Postsecondary, No. 1997-1246, October 27, 1997. Motion for leave to file revised brief Amicus Curiae on behalf of the New York Intellectual Property Law Association in support of plaintiff-appellee.

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§ 105-2 Excessive noise prohibited.
§ 105-3 Maximum permissible sound pressure levels.
§ 105-4 Noise measurement locations.
§ 105-7 Violations and penalties.
Editor’s Note: This ordinance also repealed former Art. II, Noise.
It shall be unlawful for any person to make or produce excessive noise, thereby causing annoyance, inconvenience or detriment to the public or to any other person or persons. Noise shall be considered excessive if the sound is subject to this chapter and the sound exceeds the limits hereinafter set forth.
The maximum SPL and the LEQ average SPL levels shall be increased by five dBA over the background sound level up to a maximum of 75 dBA.
The background sound level shall be measured at the same location as the measurement for the sound contribution of the specific source in question and at a time immediately preceding that measurement.
Sound measurements shall be made on the receiving property within 10 feet from the property line nearest the noise source, at least five feet from any structure that reflects sound, and at least three feet above the ground. Where the source of the noise occurs within a multi-unit building, or where buildings have a common party wall, the measurement shall be taken in a habitable space in the complainant's dwelling unit closest to the noise source.
All sound measurements shall be taken with a measurement instrument as defined in § 105-1. The manufacturer's published indication of compliance with such specifications shall be prima facie evidence of such compliance.
Traffic noises, noises from the lawful operation of motor or utility vehicles, noises created by governmental units, and noises created or necessitated by emergency and civil defense activities.
Nonresidential districts: only during the hours of 6:00 a.m. to 8:00 p.m., Monday to Friday, and during the hours of 8:00 a.m. to 6:00 p.m., Saturday and Sunday.
Upon application, the Director of Building and Planning may grant an exception to the aforesaid activity exemptions set forth in this § 105-6A(2) if reasonably necessary to conduct the activity in question for a specifically limited duration, and as appropriate, subject to reasonable conditions to protect the public welfare. The decision of the Director of Building and Planning on such application shall be appealable in accordance with the procedures set forth in Chapter 5 of the Township Code.
Noise associated with permitted outdoor dining activities located in nonresidential districts, during the hours of 8:00 a.m. to 10:00 p.m., Sunday to Thursday, and 8:00 a.m. to 11:00 p.m., Friday and Saturday.
Monday through Friday between the hours of 6:00 p.m. and 8:00 p.m., a maximum of one piece of landscaping equipment exceeding the decibel limits in § 105-3 may operate. If there is more than one piece of landscaping equipment operating during these hours and the decibel limit exceeds the decibel limits established in § 105-3, the use of this equipment is in violation of this exception.
Upon application, the Director of Building and Planning may extend the aforesaid activity exemptions set forth in this § 105-6A(4) if reasonably necessary to conduct the construction work in question for specifically limited durations, and as appropriate, subject to reasonable conditions to protect the public welfare. The decision of the Director of Building and Planning on such application shall be appealable in accordance with the procedures set forth in Chapter 5 of the Township Code.
Such exemption shall not apply from 10:00 p.m. to 8:00 a.m. the following day, Sunday through Thursday, or from 11:00 p.m. to 9:00 a.m. the following day on Friday and Saturday and federal holidays.
Warning devices: sounds made by warning devices operating continuously for three minutes or less, except that in the event of an actual emergency, the time limitation shall not apply.
Noise created by emergency generators during a power outage. Noise created by emergency generator testing shall be exempt, but only during the hours between 10:00 a.m. and 4:00 p.m.; provided however, that if generator testing from 10:00 a.m. to 4:00 p.m. is prohibited by another governmental entity, then testing occurring after 4:00 p.m., but no later than 8:00 p.m., shall be exempt.
Noise created by the unamplified human voice; provided however, that such noise shall be subject to the applicable provisions of Chapter 111 (Peace and Good Order).
Noise associated with snow removal activity.
If there are any provisions of the Lower Merion Code that set forth noise standards or authorize activities that conflict with the noise level regulations set forth in this chapter, the more restrictive language shall apply.
Any person who shall fail to comply with any of the provisions of this chapter shall be liable, on conviction thereof, to a fine or penalty of not less than $25 nor more than $1,000 for each offense. Whenever such person shall have been notified by the Director or by the service of a summons in a prosecution or in any other way that he is committing a violation of this chapter, each day in which he shall continue such violation after notification shall constitute a separate offense, punishable by a like fine or penalty. Such fines or penalties shall be collected before any District Justice as like fines or penalties are now by law collected.
This chapter shall be cumulative and shall be in addition to other Township regulations and, in particular, to any regulations pertaining to disorderly conduct. This chapter and the foregoing penalties shall not be construed to limit or deny the right of the Township or any person to such equitable or legal remedies as may otherwise be available.
Editor's Note: See Ch. 111, Peace and Good Order, Art. VI, Disorderly Conduct Generally.