Under Arizona law a recorded judgement does not become a lien on homestead property : Ellett Law Offices, P.C.
Under Arizona law, a recorded judgment does not become a lien on a homestead property. Arizona law provides that a recorded judgment “shall become a lien . . . on all real property of the judgment debtor except real property exempt from execution, including homestead property . . .” A.R.S. § 33-964(A). The Arizona Revised Statutes further prescribes that any person, “entitled to a homestead on real property as provided by law holds the homestead free and clear of the judgment lien.” A.R.S. § 33-964(B).
There is an impressive line of cases holding that a recorded judgment does not become a lien on homestead property under Arizona State law. In all, the Bankruptcy Appellate Panel, the Arizona Supreme Court, the Arizona Appellate Court, and Judge Haines have all ruled that a recorded judgment does not become a lien on homestead property under Arizona law. Furthermore, the Bankruptcy Appellate Panel’s unanimous ruling is controlling precedent.
The only Judge to hold that a recorded judgment becomes a lien on an Arizona homestead property was Bankruptcy Judge Maggoire who, as a result, found himself duly reversed by the unanimous Bankruptcy Appellate Panel in Charles v. Carter Shield, 25 B.R. 331 (9th Cir. BAP 1982). In Charles the facts were undisputed. The Chapter 13 Debtors had equity in the homestead in excess of the homestead exemption amount. The Appellants argued that the recorded judgments did not become liens on the homestead, while the Appellees argued the recorded judgments became liens on any equity above the homestead amount. The Bankruptcy Appellate Panel followed the controlling Arizona Supreme Court cases of Union Oil v. Norton Morgan Co., 23 Ariz 326 (1922) and Security Trust & Savings Bank McClure, 29 Ariz. 325 (1925) in holding that a recorded judgment does not become a lien on a homestead under Arizona law. The Bankruptcy Appellate Panel also pointed out that the Arizona Supreme Court’s ruling in Schreiber v. Hill, 54 Ariz. 345 (1939) was also consistent with the earlier ruling by the Arizona Supreme Court. The Bankruptcy Appellate Panel noted that, “as federal tribunals, neither we nor the court below may depart from this consistent exposition of Arizona law by that state’s highest Court.” Charles v. Carter, 25, BR. 331, 334, (BAP 9th Cir. 1982).
In making its ruling in Charles, the unanimous Bankruptcy Appellate Panel rejected the obligatory argument, made by every creditor, that the statute had changed. The Charles panel considered and rejected this over-used argument. The correctness of the Charles court’s ruling was reinforced the following year by the decision of Evans v. Young, 135 Ariz. 447, 661 P2d. 1148 (App.Div 1 1983). The Arizona Appellate Court conducted a detailed review of the statue and held that A.R.S. 33-964 specifically prevents a recorded judgment from attaching to homestead property. The Evans court unanimously concluded that this result was compelled by the Union Oil v. Norton Morgan Co., 23 Ariz 326 (1922). The principle had been upheld at that point for a period of sixty-one years.
[T]he only statutory amendment that might affect the Evans analysis was the addition of the initial “except” clause to the beginning of A.R.S. 33–963(B), “[e]xcept as provided in section 33–1103.” Porsche argues that the addition of the qualifier “except as provided in section 33–1103” refers specifically to 33–1103(a)(4) and allows a recorded judgment to become a lien on homestead property if the debtors’ equity in their homestead exceeds the homestead exemption.
But as noted above, a plain language reading of the revised 33–964(B) reveals that this provision still does not create any judgment liens. Judgment liens are only created by 33–964(A), which contains no exception to the prohibition of any such liens on homestead property. And, as noted above, Porsche’s reading of the effect of the introductory clause of the first sentence of paragraph B would render it contradictory not only to paragraph A but also with the second sentence of paragraph B.
More importantly, however, the statutory amendment has no effect on the analysis or reasoning of Evans. It remains the case that both the homestead statute and the judgment lien statute both conceive of the “homestead” as being the real property, not the equity value of such real property. So when A.R.S. 33–964(A) and (B) both prohibit judgment liens from attaching to “homestead property,” they mean the lien does not attach to the real property, regardless of its value. It would have taken far more extensive amendments to both the homestead statute and the judgment lien statute to change that interpretation of those statutes as clearly held in Evans. It also remains the case that there remains another method in A.R.S. 33–1105 for a judgment creditor to reach the value in excess of the homestead value cap, not by obtaining and foreclosing a judgment lien but rather by requiring an execution sale and obtaining a bid in excess of the consensual liens and the homestead amount. And finally it remains the case that the judgment lien statute still does not expressly permit a judgment lien to attach to property claimed as a homestead, but merely contains an oblique cross reference in an exception to the exception to the statute that creates judgment liens.
In re Rand, 400 B.R. 749, 753-54 (Bankr. D. Ariz. 2008).
As recited by the unanimous Bankruptcy Appellate Panel, “as federal tribunals, neither we nor the court below may depart from this consistent exposition of Arizona law by that state’s highest Court.” Charles v. Carter, 25, BR. 331, 334, (BAP 9th Cir. 1982).


79-304. Place of listing of certain property for taxation purposes. Every person required to list property on behalf of others shall list such property in the taxing districts in which the property is located and such person shall list such property separate and apart from such person's own property, specifying the name of the person, estate, company or corporation to which the same may belong.
All tangible personal property stationed, located, or stored on any municipal airport or airfield shall be listed and taxed in the township, school district, city or taxing district in which the owner resides, but if the owner is a nonresident of this state or of the county in which such tangible personal property is located, then such property shall be listed and taxed in the same township, school district, city, or taxing district in which the property is located. All personal property shall be listed and taxed each year in the taxing district in which the property was located on the first day of January, but all moneys and credits not pertaining to a business located shall be listed in township or city and school district in which the owner resided on the first day of January, except that, a motor vehicle which is being used by and is in the possession of a student who is attending a university or college and which is owned by such student or by another person shall be listed and taxed in the township, school district, city or taxing district in which the owner of the motor vehicle resided on the first day of January. Whenever any person, association or corporation removes tangible personal property from this state between November 1 and the next succeeding January 1 and returns such property to this state prior to the next succeeding March 1, such person, association or corporation shall list such property for taxation with the county appraiser of the county to which such property is returned as required by K.S.A. 79-306, and amendments thereto unless the owner of such property submits proof to the county appraiser under oath that such property was removed from the state for legitimate business purposes, and has been listed for taxation for the appropriate tax year in some other state or territory.
The property of banks, bankers, brokers, merchants, and of insurance or other companies, except of mutual fire insurance companies, shall be listed and taxed in the taxing district where their business is usually done, and manufactories and mines in the taxing district where the manufactories or mines are located.
Personal property in transit shall be listed in the taxing district where the owner resides except that, if such property is intended for a particular business, it shall be listed at the place where the business is to be transacted.
History: L. 1881, ch. 34, § 1; L. 1919, ch. 302, § 1; R.S. 1923, 79-304; L. 1927, ch. 322, § 1; L. 1935, ch. 299, § 1; L. 1947, ch. 442, § 1; L. 1955, ch. 397, § 1; L. 1959, ch. 365, § 1; L. 1963, ch. 456, § 7; L. 1965, ch. 512, § 1; L. 1975, ch. 495, § 22; L. 1988, ch. 375, § 4; L. 1989, ch. 290, § 1; July 1.


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Sokulsky was born into a peasant family. From 1962-1964 he studied at the Language and Literature Faculty of Lviv University, then in third year transferred to Dnipropetrovsk University. In 1965 he was expelled for “nationalism”.
He worked in a large newspaper “Energetyk”’ [“Power Engineering Specialist”] (but here too was “asked” to leave for political reasons), on Dnipropetrovsk factories, in the Lviv-Volyn coal mines, as a fire fighter and a sailor on the river fleet.
He was arrested on 14 June 1969 as one of the authors of the “Letter of creative young people of Dnipropetrovsk” in defence of O. Honchar’s novel “Sobor” [“Cathedral”] and against the Russification of the country. The letter was signed by several hundred people and sent to State executive bodies in Dnipropetrovsk and Kyiv. Sokulsky was also charged with distributing samizdat, with writing the poems “Voly” [“Oxen”], “Nostalgiya”, “Svyatoslav” and others.
On 27 January 1970 Sokulsky was sentenced by the Dnipropetrovsk Regional Court under Article 62 § 1 of the Criminal Code (CC) of the Ukrainian SSR (“anti-Soviet agitation and propaganda”) to four and a half years in the labour camps. He served his sentence first in the Mordovian political labour camps, then from the end of 1971 in the Vladimir Prison, then in the psychiatric hospital of the Mordovian penal zone ZhKh-385/3, in the Perm political labour camps, No. VS-389/35 (Vsekhsvyatskaya, Chusovsoi district), VS-389/36 (Kutchino, Chusovoi district). He was freed on 14 December 1973.
From the end of 1973 Sokulsky lived in Dnipropetrovsk. He was involved in human rights work and from October 1977 was a member of the Ukrainian Helsinki Group (UHG). In Autumn 1979 he signed the UHG Memorandum stating that, in spite of persecution, the Group had survived and remained active.
In December Sokulsky managed to attend the trial of P. ROZUMNY. In the same year he wrote a statement “For the right to be Ukrainian” about the violation in the USSR of fundamental human rights. This document was published abroad in the journal “Vyzvolny shlyakh” [“Path of Liberation”] No. 12 for 1980, as well as in the publication of the Helsinki Commission of the US Congress.
In March 1980 Sokulsky received an official warning in accordance with the Decree of the Presidium of the Supreme Soviet of the USSR of 25.12.72, and within a month, on 11 April, he was arrested by the KGB on the same charges as H. PRYKHODKO.
The charges against Sokulsky claimed defamatory remarks, mainly in poems, including those for which he had already served a sentence in the case of 1969, for example the poems “Nostalgiya”, “Shevchenko Duma” [“Shevchenko’s thoughts”]. In particular, Sokulsky stated in “Shevchenko Duma”, written in 1968, that Ukraine and Ukrainians were in a position of slavery within the USSR, “in fetters”, and that they were being threatened with annihilation. In the poem “Nostalgiya” (1965), he talked of the oppression perpetrated by Russian against other republics of the USSR. In all the poems the court found defamation of the Soviet political and social system, in particular, of the position of Ukraine within the USSR, talking about the lack of democratic liberties, the dire state of the Ukrainian language and culture. In half the cases, Sokulsky’s arguments that in this or that poem there was no defamation in that the described events were in the past, were rejected by the court with no proof being given, since Sokulsky “constantly, in order to conceal the anti-Soviet content of the verse, resorts to allegory, figurative means, and in this way hides other concepts behind the specific images”. In the majority of cases the court did not even try to prove distribution of the documents he was being charged with, mentioning that they had been kept at Sokulsky’s flat up to the day they were removed during the search. Not one of the episodes proved the purpose of undermining the system, although the description of each began with the words – “with the aim of subverting and weakening the Soviet regime”. Sokulsky rejected the services of the lawyers appointed by the court. The latter refused to accept his rejection and Sokulsky in protest declared a hunger strike. Four days later, the defence lawyer himself refused to take part in the case.
His relatives were not at the trial since they were informed only after it had ended. Not one of his friends was summoned to the court as a witness. At the trial, Sokulsky rejected the charges and refused to give evidence. When allowed to give his final words, he spoke for 6 hours.
He was convicted on the same charges as H. PRYKHODKO, and from 7-13 January 1981, the Dnipropetrovsk Regional Court sentenced him under Article 62 § 2 of the CC of the UkrSSR to 10 years deprivation of liberty (the first five in prison, the rest in a special regime labour camp), and to 5 years exile. He was declared a particularly dangerous repeat offender. He served his sentence in the Chistopolsk prison (Tatarstan).
Sokulsky was arrested for the third time by the Nizhnyokamsk Prosecutor’s office on 3 April 1985, 9 days before the end of the prison part of his sentence of imprisonment. On a trumped up charge he was sentenced by the Chistopolsk City Court under the same Article 62 § 2, as well as Article 206 § 2 of the CC of the RSFSR (“hooliganism”) to 3 years, to be added to the part not served of his sentence, meaning in all, another 8 years deprivation of liberty, followed by 5 years exile.
On 7 October 1985 he arrived at the unit of the special regime camp VS-389/36-1. He was frequently locked in the punishment isolation cell for refusing to work and other “infringements of the regime”. He was deprived of the right to correspondence and parcels since he wrote all the papers in Ukrainian. In April 1988 he was locked in the punishment isolation cell for 50 days for writing letters to the Prosecutor General of the USSR. In spring that year he declared that he was asserting his right to political prisoner status.
He was released on 2 August 1988 within the framework of Gorbachev’s campaign for “pardoning” political prisoners.
In January 1989 Sokulsky became involved in political life. He was one of the founders of local organizations of the Taras Shevchenko Association of the Ukrainian Language, Narodny Rukh Ukrainy [Popular Movement of Ukraine] (Rukh), the Ukrainian Helsinki Union (UHU), the Ukrainian Republican Party (URP)УХС-УРП (УкраинскийХельсинкскийСоюз —Украинская Республиканская партия);, “Memorial” and others. He published the journal “Porohy” [“Thresholds”].
On 20 May 1991 he was brutally beaten by KGB agents in Dnipropetrovsk during a picket in support of Ukrainian independence. This led to a serious deterioration in his state of health.
Ivan Sokulsky died on 22 June 1992 and was buried in Dnipropetrovsk.
Two collections of his poetry were published after his death: “Vladar kamenyu” [“Lord of stone”] and “Oznachennya voli” [“Definition of liberty”].
I. Sokulsky. Vladar kamenyu.— Kyiv.: Ukrainsky pysmennyk, 1992.
I. Sokulsky. Oznachennya voli. Dnipropetrovsk: Sich, 1997.
Г.Касьянов. Незгодні: українська інтелігенція в русі опору 1960-1980-х років. / G. Kasyanov. Dissenting voices: the Ukrainian intelligentsia in the resistance movement of the 1960s to 1980s — Kyiv: Lybid, 1995.— pp. 84, 170, 171.
А.Русначенко. Національно-визвольний рух в Україні. / A. Rusnachenko. The National Liberation Movement in Ukraine. – Kyiv: The O. Teliha Publishing house, 1998, pp.156, 173.
The Ukrainian Helsinki Group. On the twentieth anniversary of its creation. — Kyiv.: URP, 1996.— pp. 24.
’Khronika tekushchykh sobytiy’ [‘Chronicle of Current Events’] (CCE). - New York: Khronika, 1983, No. 63.— p. 79.
Vesti iz SSSR. V. 2. 1982-1984.— Munich : Prava cheloveka — 1982, 1-16, 10-7, 13-4; 1984, 7-19.
Vesti iz SSSR. V. 3. 1985-1986.— Munich : Prava cheloveka .— 1985, 20-24.
Visnyk represiy v Ukraini [Bulletin of repression in Ukraine]. External Representation of the Ukrainian Helsinki Group. – New York, 1982, No. 7-8.— p. 3; 1984, No. 4.— p. 7.

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On October 14, 2018, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent (for the 2ndtime) who had been found removable for being present in the U.S. without admission of parole. The Immigration Judge (IJ) had ordered the respondent removed, denying his cancellation of removal application. The initial appeal was dismissed by the BIA; the case was then brought before the Ninth Circuit Court of Appeals, which remanded it to the Board for further consideration of the applicant’s eligibility for cancellation under INA §240A(b)(1).
Respondent had been convicted of possession of a forged instrument under California Penal Code (CPC) §475(a) and sentenced to 12 days incarceration. The IJ found the offense to be a crime involving moral turpitude (CIMT) “for which a sentence of one year or longer may be imposed”, per INA §237(a)(2)(A)(i), because the maximum possible sentence at the time of conviction was 365 days; because of the CIMT conviction the IJ found the respondent ineligible for cancellation.
As background, after the first appeal to the BIA, California enacted CPC §18.5, which states that every offense now punishable by imprisonment in county jail up to or not exceeding one year shall be punishable by imprisonment in county jail for a period not to exceed 364 days. Despite this provision, the Board found respondent had been convicted of an offense under §237(a)(2)(A)(i) because, at the time of the conviction, the maximum possible sentence for the crime was 1 year. Noting that §18.5 did not become effective until after appellant’s conviction and nothing indicated the statute had retroactive effect, the BIA dismissed the initial appeal.
While respondent’s petition for review was pending with the Ninth Circuit, California amended §18.5 to apply retroactively to all convictions, regardless of when the case became final. In response, the Government filed a motion to remand the matter back to the Board so it could consider the amendment’s impact on respondent’s eligibility for cancellation. Given that the BIA claimed the forgery offense is “clearly” a CIMT because it necessarily involved the specific intent to defraud another, the decision set forth the “sole issue” as whether, in light of §18.5, respondent’s conviction remains a crime for which a sentence of one year or longer may be imposed under §237 (a)(2)(A)(i)(II). This, concluded the BIA, requires a “backward-looking inquiry” into the maximum sentence respondent could have received for his offense at the time of his conviction.
The BIA thus held that the amendment to CPC §18.5, which retroactively lowered the maximum possible sentence that could have been imposed from 365 to 364 days, does not affect the applicability of INA §237(a)(2)(A)(i)(II) to a past conviction for a CIMT “for which a sentence of one year or longer may be imposed”, citing to prior Board [Matter of Cortez, 25 I & N Dec. 301 (BIA 2010)] Ninth Circuit [United States v. Diaz 838 F.3d 968 (9thCir. 2016), cert. denied sub nom. Vasquez v. United States, 137 S. Ct. 840 (2017)], and U.S. Supreme Court [McNeill v. United States, 563 U.S. 816 (2011)] case law. Because respondent’s forgery conviction was entered in 2003, prior to the effective date of §18.5, at which time “the maximum possible sentence for the crime was 365 days,” the BIA reiterated that 18.5 “does not affect the applicability of 237(a)(2)(A)(i)(II) to his forgery offence and dismissed the appeal. Matter of Velasquez-Rios, 27 I & N Dec. 470 (BIA 2018).


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The Complainant is Public Service Electric & Gas Company (“PSEG”) and its affiliates and subsidiaries of Newark, New Jersey, United States of America (“U.S.”), represented by Lowenstein Sandler PC, U.S..
The Respondent is SamIngram of Bound Brook, New Jersey, U.S.
The disputed domain names, <mypseg.com> and <mypseg.net> (“Disputed Domain Names”), are registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2011. On October 24, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the Disputed Domain Names. On October 24, 2011, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 31, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 20, 2011. The Response was filed with the Center on November 20, 2011.
The Center appointed Michael A. Albert as the sole panelist in this matter on November 29, 2011. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant in these proceedings is Public Service Electric & Gas Company (“PSEG”), a New Jersey corporation, one of the largest combined electric and gas companies in the U.S., that recognized over USD 11 billion in revenue for PSEG-branded services.
According to the undisputed allegations and exhibits provided by the Complainant, Complainant currently owns approximately 14 U.S. federal trademark registrations and applications for the PSEG trademark and related trademarks. These trademarks include PSEG, as well as a well as the larger family of trademarks to which the PSEG trademark belongs, which also includes the PSEG POWER LLC, PSEG ENERGY HOLDINGS, PSEG GLOBAL, PSEG WE MAKE THINGS WORK FOR YOU, PSEG FOSSIL LLC, PSEG ENERGY RESOURCES AND TRADE LLC, PSE&G, PSEG NUCLEAR LLC, PSE&G WE MAKE THINGS WORK FOR YOU, PSEG RESOURCES, and PUBLIC SERVICE ENTERPRISE GROUP. Complainant’s PSEG trademark was registered in the United States on August 3, 2004. In 2009 and 2010, Complainant spent approximately USD 12 million and USD 4 million, respectively, on the marketing and promotion of the PSEG brand.
According to Complainant’s undisputed allegations, Complainant currently owns numerous top-level and country code domain names incorporating the PSEG Mark, including, but not limited to, <pseg.com>, <psegbill.com>; <psegelectric.com>; <psegelectricity.com>; <psegnj .com>; <psegprices.com>; <psegrates.com>; and <psegrebate.com>. In 2010 and 2011, there have been approximately 6 to 8 million visitors to the <pseg.com> website per year.
Respondent, SamIngram, registered the Disputed Domain Names, <mypseg.com> and <mypseg.net>, on June 27, 2008. According to the information provided by the concerned Registrar, GoDaddy, Inc., the contact address for the Respondent is Bound Brook, New Jersey, U.S.
Complainant contends that the Disputed Domain Names are identical or confusingly similar to a trademark in which Complainant has rights, that Respondent has no rights or legitimate interests in the Disputed Domain Names, and that Respondent registered and is using the Disputed Domain Names in bad faith in order to deceive visitors to the website to which the Disputed Domain Names resolve.
Complainant contends that the Disputed Domain Names are confusingly similar to Complainant’s PSEG trademark. Complainant observes that the only difference between the Complainant’s PSEG trademark and the Disputed Domain Names is the addition of the word “my.” The addition of “my”, Complainant contends, focuses the reader’s attention on Complainant’s PSEG trademark and creates the impression of an economic relationship between Respondent and Complainant.
Complainant argues that Respondent cannot demonstrate any rights or legitimate interests in the Disputed Domain Names under paragraph 4(a)(ii) of the Policy. Complainant contends that Respondent is not known by the Disputed Domain Names and has not used the Disputed Domain Names in connection with a bona fide offering of goods or services. Complainant avers that Respondent is not making legitimate non-commercial or fair use of the Disputed Domain Names. Complainant has presented evidence that Respondent is using the Disputed Domain Names in connection with a portal website that provides links to various third-party goods and services, some of which compete with Complainant’s goods and services.
Finally, Complainant contends that that the Disputed Domain Names were registered and are being used in bad faith under paragraph 4(a)(iii) of the Policy. More specifically, Complainant maintains that the unauthorized use of a complainant's trademark to generate pay-per-click revenue or to sell competitive products constitutes bad faith under paragraphs 4(b)(iii) and (iv) of the Policy.
Respondent does not dispute the validity of the PSEG trademark. Nor does Respondent dispute that the Disputed Domain Names are “identical or confusingly similar” to the PSEG trademark under paragraph 4(a)(i).
With respect to paragraphs 4(a)(ii) and (iii) of the Policy, Respondent asserts that he has a legitimate interest in the Disputed Domain Names. Respondent claims to have been a member of the Credit Union movement in the United States for 23 years, as a member as well as a vice president of marketing. Respondent states that being a member of a Professional Select Employer Group is a prerequisite for becoming a member of a credit union. Respondent notes that the acronym for Professional Select Employer Group is “PSEG”. Respondent also claims to have purchased domain names incorporating the text “segsareus” and “segsrus”. (These domain names are not at issue here.) Although Respondent concedes that he offers no goods or services in connection with the Disputed Domain Names, Respondent states that he hopes to use the domains names registered by Respondent, including the Disputed Domain Names, as part of his effort to promote the credit union movement.
Complainant provides sufficient evidence that it is the owner of a valid U.S. trademark (offered into evidence as Exhibit 4 to the Complaint). Trip.com, Inc. v. Daniel Deamone, WIPO Case No. D2001-1066 ([R]egistration of a mark is prima facie evidence of validity [. . . .] Respondent has the burden of refuting this assumption.”). Respondent has provided no evidence to refute the conclusion that Complainant possesses valid and enforceable trademark rights.
The Disputed Domain Names, however, are not identical to the PSEG trademark. Therefore, the first issue is whether the Disputed Domain Names and the PSEG trademark are confusingly similar.
The Panel agrees with Complainant that the addition of the word “my” to the PSEG trademark does not mitigate the risk of confusion; indeed, it may draw the viewer’s attention to the trademark. See, e.g., Sony Kabushiki Kaisha also trading as Sony Corporation v. Sin, Eonmok, WIPO Case No. D2000-1007 ("The addition of the letters “my” has the effect of focusing the reader's attention on the Complainant's trademark. Accordingly, the Panel considers that a reader of the domain name would be confused into thinking that the domain name is associated with the Complainant."); Mastercard International Incorporated v. Daniel Kaufman, WIPO Case No. D2006-1031 ("The domain name differs from Complainant's registered MASTERCARD marks only in that it contains the generic possessive pronoun “my.” ‘The addition of “my” is not sufficient to avoid confusion’ Sony Kabushiki Kaisha also trading as Sony Corporation v. Sin, Eonmok, WIPO Case No. D2000-1007.”); Lance Armstrong Foundation v. CSA Marketing, WIPO Case No. D2005 0886 (“The Panel also finds that the Domain Name is confusingly similar to the LIVESTRONG mark. It incorporates the mark in its entirety, adding only the generic and non-distinctive word “my”, which is often used as a prefix in domain names and therefore does not lessen the likelihood of confusion.”). Moreover, the addition of the “.com” and “.net” gTLDs does not remove the confusing similarity between the Disputed Domain Names and Complainant's PSEG trademark. Deutsche Lufthansa AG v. Nadeem Qadir, WIPO Case No. D2009-0003.
For the all of the foregoing reasons, this Panel finds that the Disputed Domain Names are confusingly similar to Complainant’s trademark, in which Complainant has established rights. Therefore, the Panel finds that Complainant has proven the first element of the Policy.
The Panel concludes that Complainant has demonstrated that Respondent has no rights or legitimate interests in the Disputed Domain Names.
Respondent has no rights or legitimate interests in the Disputed Domain Names. The unrebutted evidence of record shows that Complainant has never assigned, licensed, or otherwise conveyed any rights in its mark to Respondent. “Th[is] fact, on its own, can be sufficient to prove the second criterion [of the Policy].” Six Continents Hotels, Inc. v. IQ Management Corporation, WIPO Case No. D2004-0272.
While Respondent claims to have registered the Disputed Domain Names in order to promote the Credit Union movement, Respondent concedes that in the more than three years he has owned the domains names he has “yet to develop marketing sites” that would serve this stated purpose. Respondent has not provided evidence that he has made demonstrable preparations to use the Disputed Domain Names in connection with a bona fide offering of goods and services. Instead, Respondent “parked” the Disputed Domain Names with GoDaddy, Inc. Respondent does not deny Complainant’s allegation that he has collected pay-per-click revenues.
No evidence of record suggests that Respondent has become known by the Disputed Domain Names. Respondent does not appear to have used the Disputed Domain Names in connection with any bona fide offering of goods or services. Rather, as evidence offered by the Complainant shows, Respondent is using the Disputed Domain Names in connection with a portal website that provides links to various third-party goods and services, some of which compete with Complainant’s goods and services. See MBI, Inc. v. Moniker Privacy Services/Nevis Domains LLC., WIPO Case No. D2006-0550 (“the operation of commercial link services of this type, designed to lure Internet users and divert them to other commercial sites by the use of domain names identical or similar to a complainant’s trademark, do not confer a legitimate right to or interest in a domain name.”); Emmis Television Broadcasting, L.P., d/b/a KHON-TV v. Henry Chan, WIPO Case No. D2004-0366 (“[A] skeletal website, which serves only to redirect users to a search engine and unrelated third party vendors” is not a bona fide offering of goods or services.).
For all of the foregoing reasons, this Panel finds that Complainant has proven that Respondent lacks rights or legitimate interests in respect of the Disputed Domain Names. Therefore, the Panel finds that Complainant has proven the second element of the Policy.
Paragraph 4(a)(iii) of the Policy requires that Complainant show registration and use of the Disputed Domain Names in bad faith. Paragraph 4(b) presents a non-exhaustive list of circumstances considered sufficient to demonstrate registration and use in bad faith. One of the listed circumstances, paragraph 4(b)(iv), is where Respondent attempts to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a product or service on Respondent’s website.
Respondent may be found to have registered the Disputed Domain Names in bad faith if Respondent knew or should have known of the existence of Complainant’s trademark rights. See Yahoo! Inc. v. Jorge O.
Kirovsky, WIPO Case No. D2000-0428. Here, Respondent registered the Disputed Domain Names in June of 2008, almost four years after the PSEG mark was registered. Respondent does not claim to have been unaware of Complainant’s PSEG trademark. Indeed, PSEG is a Fortune 500 company that has been providing electric or transportation services in New Jersey for more than a century. As noted above, Respondent provided a New Jersey address as a contact address to GoDaddy.com, Inc. when he registered the Disputed Domain Names. The Panel concludes that Respondent knew of Complainant’s PSEG trademark rights when Respondent registered the Disputed Domain Names.
The Panel also concludes that Respondent purchased the Disputed Domain Names in bad faith. While Respondent claims that he purchased the Disputed Domain Names in order to “promote the Credit Union movement in the United States”, the undisputed facts show that Respondent has never actually used the Disputed Domain Names for this purpose. Rather, Respondent has “parked the disputed domains on GoDaddy” and collected click-through revenue. When confronted by Complainant, Respondent attempted to sell the Disputed Domain Names to Complainant. In short, there is sufficient circumstantial evidence that Respondent registered the Disputed Domain Names in bad faith. Respondent’s unsupported assertions regarding aspirations for use of the Disputed Domain Names cannot overcome this evidence. See Aspen Holdings Inc. v. Rick Natsch, Potrero Media Corporation, WIPO Case No. D2009-0776 (“[W]hile the Respondent claims it did not register the disputed domain name in order to profit from or exploit the Complainant’s mark, compelling facts and circumstances [. . . .] suggest otherwise.”).
Complainant has established that Respondent used the Disputed Domain Names in bad faith by showing the Disputed Domain Names resolve to a website featuring sponsored links and pop-up advertisements. Villeroy & Boch AG v. Marino Pingerna, WIPO Case No. D2007-1912 (“Respondent’s use of the disputed domain name with the intention to attract internet users for commercial gain is established by the sponsored links and pop-up advertisements on its website.”). Complainant attached as Exhibit 5 a printout demonstrating that the Disputed Domain Names resolve to websites with sponsored links connecting Internet users to third-party websites, some of which provide energy-related services that compete with Complainant. Respondent fails to rebut the evidence Complainant offers regarding Respondent’s use of the Disputed Domain Names. Indeed, Respondent concedes that the Disputed Domain Names are “parked” with GoDaddy.com, Inc. As such, the Panel finds that the Disputed Domain Names are being used in bad faith.
For all of the foregoing reasons, the Panel finds that Complainant has proven that the Disputed Domain Names have been registered and are being used in bad faith by Respondent. Therefore, the Panel finds that Complainant has proven the third element of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Names <mypseg.com> and <mypseg.net> be transferred to the Complainant.

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text:
Posted On November 27, 1894 by &filed under High Court, Madras High Court.
1. The suit was brought for an order directing defendant to close a window opened by him in a wall newly built by him. Plaintiff’s case is that the window opens on to a passage immediately to the west of the wall, which passage leads to the plaintiff’s house, and the privacy of which is invaded by reason of the window. The District Munsif found it to be a fact that plaintiff’s privacy was thus invaded and gave her a decree directing the closing of the window.
2. On appeal the District Judge affirmed the District Munsif’s decree.
3. Hence this second appeal, in which we are referred to the decision of Holloway and Innes, JJ., in the case of Komathi v. Gurunada Pillai 3 M.H.C.R. 141 where it was held, following the English law on the subject, that the invasion of privacy by opening windows is not a wrong for which an action will lie. As observed by Innes, J., the person whose privacy is so invaded has it in his power to build on his own ground so as to shut out the view from the offending window. To the same effect is the decision of the Calcutta High Court in Mahomed Abdur Hakim v. Birju Sahu 5 B.L.R. 676 and of the Bombay High Court in Shrinivas Udpirav v. Reid 9 Bom. H.C.R. 266. The cases in Manishankar Hargovan v. Trikam Narsi 5 Bom. H.C.R. 42 and Kuvarji Premchand v. Bai Javer 6 Bom. H.C.R. 143 are decisions with reference to the special custom of Guzerat. The decisions of the Allahabad High Court in Gokul Prasad v. Radho I.L.R. 10 All. 358 and Abdul Rahman v. Emile I.L.R. 16 All. 69 rest on the customary right which prevails in various parts of the North-Western Provinces.
4. Following the decision in Komathi v. Gurunada Pillai 3 M.H.C.R. 141 we allow the appeal and, setting aside the decree appealed against, direct that plaintiff’s suit be dismissed; but considering the circumstances of the case, we direct that each party do bear his and her costs throughout.

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NFL PRODUCTIONS LLC, a/b/a NFL FILMS, et al., Defendants.
WILLIAM J. PINILIS, PINILIS HALPERN, MORRISTOWN, NJ, Attorney for plaintiffs Curley Culp, John Riggins, Ron Yary, Dave Casper, Thomas Mack, Phil Villapiano, Roman Gabriel, Jr., Willie Buchanon, Joe Kapp, and Mike Bass.
STEPHEN M. ORLOFSKY, JONATHAN M. KORN, BLANK, ROME, LLP, PRINCETON, NJ, Attorneys for defendants NFL Productions LLC d/b/a NFL Films and the National Football League.
NOEL L. HILMAN, District Judge.
Plaintiffs are retired National Football League players who filed a class action complaint in this Court alleging that they, and others similarly situated, should be compensated each time the defendants show their images in NFL films. Defendants have moved to have this case transferred to the United States District Court for the District of Minnesota. For the reasons explained below, defendants' motion will be granted.
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), as plaintiffs have raised claims pursuant to the federal Lanham Act, 15 U.S.C. § 1125.
According to the allegations in plaintiffs' complaint, plaintiffs are all former National Football League ("NFL") players. Defendant NFL Productions LLC d/b/a NFL Films ("NFL Films") is a Delaware limited liability company with its principal place of business located in Mt. Laurel, New Jersey. Defendant NFL is a tax-exempt association under 26 U.S.C. § 501(c)(6) with its headquarters located in New York, New York.
The plaintiffs in this case opted-out of a settlement reached in the class action case of Dryer v. Nat'l Football League, No. 09-cv-02182-PAM-AJB (D. Minn. filed Aug. 20, 2009). The Dryer case involved the same issue presented here: whether retired NFL players should be compensated each time the NFL uses or displays films that contain the plaintiffs' images. Plaintiffs in this matter filed a separate complaint asserting class action allegations and state that they are suing on behalf of two classes of persons, namely (1) the "declaratory and injunctive relief class" defined as all former NFL professional football players, or their heirs or assigns, that have opted-out of the class action settlement in Dryer; and (2) the "damages class" defined as all former NFL professional football players, or their heirs or assigns, that have opted-out of the class action settlement in Dryer, and whose images or likenesses have been utilized, following the conclusion of their NFL careers, in any NFL Films footage displayed, sold, and/or licensed by Defendants or their affiliated entities from August 20, 2003 through the time of a final judgment in this litigation." Plaintiffs assert claims for false endorsement under the Lanham Act, for violation of rights of publicity under several state laws, and unjust enrichment.
In addition to this case, there are three other pending opt-out cases that raise similar claims. One of those cases, the Dryer opt-out case, was filed in Minnesota and is pending before Judge Paul A. Magnuson of for the District of Minnesota who presided over the original Dryer case. The two other opt-out cases were filed in the Western District of Pennsylvania and motions to transfer venue to the District of Minnesota were granted in both cases. See Tatum v. National Football League, No. 2:13-cv-1814, 2014 WL 1652794, at *1 (W.D.Pa. Apr. 24, 2014); Thompson v. National Football League, No. 1:13-cv-367, 2014 WL 1646929, at *1 (W.D.Pa. Apr. 24, 2014).
Defendants now seek to transfer this case to Minnesota as well.
The statute governing transfers of venue, 28 U.S.C. § 1404(a), provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Section 1391(b) provides guidelines as to when venue is proper, which is "(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action." 28 U.S.C. § 1391(a). If venue is appropriate, then the Court has discretion as to whether to transfer an action based on a balancing of certain private and public factors. See Jumara v. State Farm Ins. Co. , 55 F.3d 873, 879 (3d Cir. 1995).
The private factors are: "(1) plaintiff's forum preference as manifested in the original choice; (2) the defendant's preference; (3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their relative physical and financial condition; (5) the convenience of the witnesses - but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum)." Id . (citations omitted).
The public factors are: "(1) the enforceability of the judgment; (2) practical considerations that could make the trial easy, expeditious, or inexpensive; (3) the relative administrative difficulty in the two fora resulting from court congestion; (4) the local interest in deciding local controversies at home; (5) the public policies of the fora; and (6) the familiarity of the trial judge with the applicable state law in diversity cases." Id., at 879-80 (citations omitted).
It is the movant's burden to show a need for transfer. Id.
The parties do not dispute that this case could have been brought in the District of Minnesota. There is no dispute that defendants regularly transact business in Minnesota, at least one named plaintiff resides in Minnesota, certain putative class action members likely reside or played in NFL games there, and at least a portion of the claims in this case arise from NFL footage shown or produced in Minnesota.


In the Matter of New York City Water Board, Petitioner, v. Michael D. Zagata, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Environmental Conservation concerning certain water rates to be charged by petitioner.
DISPOSITION: The determination is confirmed, without costs, and petition dismissed.
COUNSEL: Paul A. Crotty, Corporation Counsel (Gail Rubin of counsel), New York City, for petitioner.
Dennis C. Vacco, Attorney-General (Kathleen Liston Morrison of counsel), Albany, for respondents.
JUDGES: Cardona, P. J., White, Spain and Carpinello, JJ., concur.
When upstate municipal corporations or water districts buy water from the New York City water supply system, they must pay New York City the fair and reasonable water charges or rates for the water that they take (see, Administrative Code of City of NY § 24-360 [a], [b]). Upon the application of either party, the rates will be fixed by respondent Department of Environmental Conservation (hereinafter DEC) after hearing all interested parties (see, Administrative Code [**139] of City of NY § 24-360 [b]). [***2] These charges or rates may not exceed the charges or rates charged by New York City to persons using water in [*1006] the City (see, Administrative Code of City of NY § 24-360 [c]). The charges or rates are determined on the basis of the actual total cost of the water to New York City, after deducting from the total costs all construction costs and expenses of operation, maintenance and carrying charges incurred in connection with the distribution and delivery of the water within New York City limits (see, Administrative Code of City of NY § 24-360 [c]).
In 1992, petitioner approved an increase in the rate for upstate users to $ 165.23 per million gallons (hereinafter /MG) for phase II (eff July 1, 1993) of a two-year phase period. Westchester County challenged petitioner's proposed rate based on a report prepared by its own consultant, which would reduce the rate from $ 165.23/MG to $ 153.71/MG. In the hearing conducted by DEC, an Administrative Law Judge determined the rate to be $ 158.31/MG and phased it in over two years, 87% in the first year and increasing that by 13% in the second year. Respondent Commissioner of Environmental Conservation (hereinafter [***3] the Commissioner) determined that the rate set by the Administrative Law Judge was fair and reasonable, as were the percentages of the phase-in, so that the rate charged by petitioner to upstate communities which take water from the New York City water supply system should be $ 137.73/MG effective July 1, 1992 and $ 158.31/MG effective July 1, 1993. Petitioner commenced this CPLR article 78 proceeding seeking to annul certain portions of the Commissioner's determination.
Initially, petitioner claims that the Commissioner's use of fiscal year 1988 as a basis for estimating fiscal year 1990 chemical costs was not supported by substantial evidence and was, therefore, improper. Because the cost of fluoride increased 150% and the cost of chloride increased 12% from fiscal year 1988 to fiscal year 1989, the Administrative Law Judge concluded that such drastic increases were isolated and unusual instances and provided no reasonable basis for estimates of future chemical expenses. As a result, the Administrative Law Judge made a downward adjustment from the fiscal year 1989 costs of $ 3,391,081 to the fiscal year 1988 costs of $ 1,839,040. Petitioner objects to this adjustment and contends [***4] that there was a reasonable basis to conclude that fiscal year 1989 chemical costs were a well-considered estimate of future expenses.
The record demonstrates, however, that petitioner spent $ 2,625,000 on chemical costs in fiscal year 1992 and $ 3,391,081 for the fiscal year 1989, a figure that is substantially higher than the costs in 1992. Petitioner further argues that the decision [*1007] to rely on fiscal year 1988 chemical costs, rather than fiscal year 1989 costs, or fiscal year 1988 costs raised to a reasonable approximation of fiscal year 1990 costs, was entirely unjustified by the record and arbitrary and capricious. However, having determined that the unusually high increase of costs between 1988 and 1989 was an isolated event, it was reasonable for the Commissioner to use fiscal year 1988 chemical costs as the basis and add only 5% to the computation to account for inflation over that period. We conclude, therefore, that the Commissioner's adjustment of chemical costs was supported by substantial evidence (see, Matter Marinelli Constr. Corp. v State of New York, 200 AD2d 294, 296).
Furthermore, we believe that the Commissioner acted within the scope [***5] of his authority in phasing in the increased rate. The Commissioner has been given the power to fix fair and reasonable charges or rates to be charged by petitioner to upstate communities after hearing all interested parties (see, Administrative Code of City of NY § 24-360 [b]). This rate increase was the first increase in 20 years and was admittedly substantial. Petitioner cannot complain of spreading the implementation over a two-year period when petitioner itself proposed to implement the increase over two years by imposing 87% of the rate in the first year and increasing that by 13% in the second year. Therefore, the Commissioner acted reasonably and within his power in fixing the rate for the 1992 fiscal year at $ 137.73/MG and $ 158.31/MG for the 1993 fiscal year and [**140] in exercising his discretion in phasing that rate in over a two-year period. Accordingly, the determination is in all respects confirmed.
Cardona, P. J., White, Spain and Carpinello, JJ., concur.


text:
The Complainant is Jack Daniel’s Properties, Inc. of California, United States of America, represented by Seyfarth Shaw of Los Angeles, California, United States of America.
The Respondent is Imanez of Essex/jackdanielsgifts.com, United Kingdom of Great Britain and Northern Ireland.
The disputed domain name <jackdanielsgifts.com> is registered with Tucows Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2007. On October 3, 2007, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the domain name at issue. On October 3, 2007, Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 10, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 30, 2007. The Response was filed with the Center on October 27, 2007.
The Center appointed John Swinson as the sole panelist in this matter on November 6, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is the owner of the JACK DANIEL’S whiskey brand.
The Complainant has registered a trademark in the United States Patent and Trademark Office for JACK DANIEL’S. It has also registered a trademark for JACK DANIEL’S in the Britain and Northern Ireland Trademarks Registry and other countries. In both the United States Patent and Trademark Office and the Britain and Northern Ireland Trademarks Registry, the trademark has been registered in a number of classes, including Class 33 (whiskey), Class 25 (caps, jackets, aprons, sweaters, belts, shirts, t-shirts, overalls and jeans), Class 21 (serving trays, drinking glasses, jugs, decanters, flasks, cups, sponges, pitchers and coasters) and Class 34 (matchsafes not made of precious metals, matches and lighters).
The Complainant and its predecessors-in-interest have licensed the JACK DANIEL’S trademark extensively for use in connection with a wide variety of collateral and gift merchandise, which has been sold and distributed in the United States of America, the United Kingdom of Great Britain and Northern Ireland and many other countries.
The Respondent registered the disputed domain name <jackdanielsgifts.com> on May 8, 2002.
The Complainant asserted ownership of the JACK DANIEL’S trademark and expressed concern about the use of the trademark on the Respondent’s website. The Complainant requested that the Respondent make a number of changes to the background of the website and provide a broader disclaimer that the site is not affiliated with or endorsed or sponsored by the Complainant.
The Respondent replied that it considered the disclaimer already on the website to be sufficient to comply with legislation. The Respondent indicated a willingness to make the requested changes to the background of the website and advised that it would consult with its web designers.
The Complainant raised for the first time the issue of the domain name and requested that changes be made to the domain name to eliminate a direct reference to the Complainant’s trademark.
The Respondent was demanded to transfer the disputed domain name to the Complainant by February 17, 2006.
The Respondent indicated a willingness to amend the website, but a reluctance to transfer the domain name. The Respondent requested that it be permitted to adhere to the “original agreement” that it make the requested changes to the website only.
The correspondence stated that the Complainant could not agree to the Respondent retaining the domain name, as the Complainant must protect its brand and prevent consumer confusion. The Complainant denied the existence of an “original agreement”.
The Respondent argued that the domain name had been available for purchase many years before the Respondent bought it, so the Respondent could only assume that the Complainant did not want it. The Respondent argued that it was unfair to now take the domain name from the Respondent, who had worked hard in making the website successful.
The Respondent was granted a period of three months from May 1, 2006, to implement the changes to the website that had been demanded by the Complainant.
The Respondent stated that it was beginning to implement the changes to the website, but would not change the domain name unless the Complainant indemnified the Respondent for its loss.
An offer of �750 was made for the transfer of the disputed domain name.
The Respondent indicated a reluctance to sell the domain name, but stated that it would do so for the amount of �2,500, which the Respondent had calculated as a reasonable amount to cover costs.
An offer of �1,500 was made for the transfer of the disputed domain name.
The Respondent refused the offer.
An offer of �2,000 was made for the transfer of the disputed domain name.
The Complainant is the owner of the world-famous trademark JACK DANIEL’S for whiskey.
Jack Daniel’s whiskey was first sold in the United States of America over 140 years ago and has been sold continuously since. It is the United States of America’s best selling whiskey. It has been sold in over 150 countries around the world, including the United Kingdom of Great Britain and Northern Ireland where the Respondent is located.
Jack Daniel’s whiskey has also been advertised extensively. A print advertising campaign has been running continuously in the United States of America since 1955.
The Respondent registered the disputed domain name in 2002, long after the JACK DANIEL’S trademark was registered and had become well-known in the United States of America and the United Kingdom of Great Britain and Northern Ireland. The disputed domain name was first resolved to an operating website some time in 2005. The Complainant first learned of the registration and use of the disputed domain name in 2005.
The Respondent’s website offers a variety of what appears to be licensed goods bearing the JACK DANIEL’S trademark, as well as other unbranded and branded products. Some of the goods sold by the Respondent bear the trademarks of the Complainant’s competitors, such as JIM BEAM, BUDWEISER and GUINNESS.
The disputed domain name is identical or confusingly similar to the Complainant’s “JACK DANIEL’S” trademark for the purposes of the Policy.
A gTLD has no significance and must be disregarded in assessing confusing similarity.
The domain name reflects the Complainant’s trademark, and the generic term “gifts” does not serve to make the resulting domain name dissimilar from the trademark. The term “gifts” is inextricably linked to the Complainant’s products, which only strengthens a finding of confusion.
The Complainant has never licensed or authorized the Respondent to use the Complainant’s trademark and the Complainant has never designated the Respondent as an authorized reseller of licensed goods bearing the JACK DANIEL’S mark.
The Respondent purports to be a reseller of genuine goods produced by the Complainant’s licensees. The Respondent may claim that its sale of these genuine goods permits it to register and use the disputed domain name. However, the Respondent’s conduct does not give it any rights or legitimate interests in the disputed domain name on the basis that it resells certain licensed merchandise bearing the JACK DANIEL’S mark.
The Respondent uses the Complainant’s trademark in the disputed domain name to induce Internet users to visit its website and consider purchasing not only licensed Jack Daniel’s merchandise, but also numerous other gifts bearing the trademarks of some of the Complainant’s competitors. This is not using the disputed domain name in connection with a bona fide offering of goods or services.
The Respondent is using the disputed domain name to intentionally divert Internet users to its website by exploiting the confusing similarity between the disputed domain name and the Complainant’s trademark. The Respondent’s illegitimate use of the Complainant’s mark to sell products of the Complainant’s competitors is a clear indication of bad faith.
The Complainant corresponded with the Respondent from September 2005 to July 2007 in an effort to resolve this matter, without success. There is no indication in any of the correspondence that the Complainant approved of or acquiesced in the Respondent’s registration and use of the disputed domain name. In all correspondence, the Complainant demanded that the Respondent cease use of the disputed domain name and transfer it to the Complainant, but the Respondent failed and refused to do so.
The passage of time from registration of the disputed domain name to the initiation of the proceeding, or from the Complainant’s first awareness of the use of the disputed domain name to the initiation of the proceeding is irrelevant. “If the requirements of a valid complaint are established, the Policy does not provide any defense of laches”. The E.W. Scripps Company v. Sinologic Industries, WIPO Case No. D2003-0447; Tax Analysts v. eCorp, WIPO Case No. D2007-0040. If any equitable doctrines may apply under the Policy, the Respondent cannot show that it will suffer injury or harm as a result of the Complainant’s delay in initiating the proceeding while attempting to settle the underlying dispute.
The Respondent is an e-Commerce company trading in the United Kingdom of Great Britain and Northern Ireland.
The Respondent is selling Jack Daniel’s officially licensed products incorporating the Complainant’s trademark. The Respondent cannot be accused of an infringement for selling the correct packaged product or for using wording in an attempt to improve sales of the “famous Jack Daniel’s brand”.
The disputed domain name was set up to describe exactly what was sold on the Respondent’s website. Prior to the Complainant’s letter of September 30, 2005, the Respondent’s website purely promoted Licensed Jack Daniel’s Giftware. It was the Complainant’s letter that prompted the Respondent to add other products to the website in an effort to distinguish the website from the Complainant. The Respondent also changed the layout of the website as requested by the Complainant.
The Respondent’s website does not sell alcohol, which is the Complainant’s main business activity. It also does not sell in the United States of America, which is the Complainant’s main business region.
The Respondent’s website includes a disclaimer: “This site is not directly affiliated to any of the Brands we promote”.
The Respondent is of the opinion that the Complainant, in its letter dated September 30, 2005, by implication gave the Respondent permission to continue using the disputed domain name as long as the Respondent complied with the Complainant’s requests to change the website layout.
The Respondent has gone to considerable effort and expense to change the layout and design of the website as requested by the Complainant. Throughout this matter, the Respondent has tried within reason to accommodate the wishes of the Complainant. The Respondent even offered to sell the disputed domain name to the Complainant at a significant loss to the Respondent.
The Respondent purchased the disputed domain name in good faith and has worked hard to promote it and has invested heavily in its success.
The Respondent has not been prepared to submit to the Complainant’s unreasonable demands to simply sign over the Respondent’s business to the Complainant.
The Complainant has a registered trademark of JACK DANIEL’S in the United States of America and the United Kingdom of Great Britain and Northern Ireland. The Panel finds that the Complainant has trademark rights in JACK DANIEL’S.
The next issue is whether the disputed domain name is identical, or confusingly similar, to the JACK DANIEL’S mark.
The domain name <jackdanielsgifts.com> is not identical to the JACK DANIEL’S trademark. However, it is confusingly similar for the purposes of the Policy. The disputed domain name incorporates in its entirety the JACK DANIEL’S trademark. It is a minor and insignificant difference that the domain name does not incorporate the apostrophe in the trademark.
Multiple panels have held that the fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish confusing similarity, despite the addition of other common descriptive words to such marks: Tiffany and Company, Tiffany (NJ) Inc. v. Janet White, WIPO Case No. D2003-0456; Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.
The content of the Respondent’s website is irrelevant in the finding of confusing similarity. The test for confusing similarity is a comparison between the trademark and the disputed domain name to determine the likelihood of confusion (Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698).
Finally, the gTLD “.com” has no distinguishing capacity and does not alter the value of the trademark represented in the domain name (Telecom Personal, S.A., v. NAMAZERO.COM, Inc, WIPO Case No. D2001-0015; Nokia Corporation v. Private, WIPO Case No. D2000-1271).
For all these reasons, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark, and that the requirements of the Policy, paragraph 4(a)(i), are satisfied.
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue”. (Policy, paragraph 4(c)).
For the purposes of paragraph 4(a)(ii) of the Policy, it is sufficient for the Complainant to show a prima facie case, after which the burden of proof is shifted onto the Respondent.
The Complainant has not granted the Respondent any license or other authorization to use its trademarks in relation to the disputed domain name. The Respondent has also failed to show that the Respondent is commonly known by the disputed domain name so as to satisfy paragraph 4(c)(ii) of the Policy.
The question is whether paragraph 4(c)(i) of the Policy applies to the facts of this dispute. There is no dispute that the Respondent uses the website under the disputed domain name to offer for sale licensed Jack Daniel’s goods and merchandise. The issue is whether the Respondent’s offering of goods may be considered bona fide.
(1) The Respondent must actually be offering the goods or services at issue.
(2) The Respondent must use the site to sell only the trademarked goods; otherwise, it could be using the trademark to bait Internet users and then switch them to other goods.
(3) The site must accurately disclose the registrant’s relationship with the trademark owner; it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, if, in fact, it is only one of many sale agents.
(4) The Respondent must not try to corner the market in all domain names, thus depriving the trademark owner of reflecting its own mark in the domain name.
In this case, the Panel finds that the Respondent’s conduct easily satisfies elements one, three and four of the above test.
As regards element one, the Respondent is actually offering the goods at issue.
As regards element three, the Respondent’s website contains a disclaimer that the site is not directly affiliated to any of the Brands promoted on the website. The Respondent has also apparently gone to considerable effort to remove the JACK DANIEL’S logo and bottle images for the website’s background in order to remove any suggestion that the website is sponsored by or affiliated with the Complainant. The Respondent has not held itself as the Complainant or as the exclusive provider of the Complainant’s merchandise.
As regards element four, there is no evidence that the Respondent has attempted to corner the market in all domain names, as the Respondent has only registered one domain name (the domain name presently in dispute).
The contentious element in the particular circumstances of the present case is element two. It has been established that the Respondent’s website, at present, also offers for sale products of the Complainant’s competitors. However, the above test must be read in light of paragraph 4(c)(i) of the Policy, which contains the qualification, “before any notice to you of the dispute”. The Respondent states that it did not sell the competing products until after receiving the Complainant’s letter of September 30, 2005, and in fact only began selling other products in an attempt to comply with the Complainant’s demands to change the website so as to prevent confusion among Internet users as to the website’s source. Although this may have been a misunderstanding of the Complainant’s request, it is not in this Panel’s view sufficient to turn what was initially a bona fide offering of goods into an illegitimate offering for the purpose of the current UDRP dispute.
The Panel finds, on the facts as presented, that the Respondent registered the disputed domain name with the intention of selling only licensed Jack Daniel’s goods. The Respondent registered the domain name in circumstances in which it had reason to conclude that the trademark holder would not object (Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a/ The Power Tool Store, WIPO Case No. D2002-0774). The provided correspondence between the parties reflects the Respondent’s surprise at how the Complainant has objected to the Respondent’s use of the disputed domain name. The Panel acknowledges that the Respondent has apparently gone to considerable effort to comply with the Complainant’s demands throughout the course of their dispute.
The Panel considers that, notwithstanding the sale of certain apparently competing products that there are extenuating circumstances and, there has been no deception of Internet users here. The Respondent uses the website primarily to sell genuine licensed Jack Daniel’s products, and this is reflected in the domain name.
The Panel finds that the Respondent was, before any notice to the Respondent of the dispute, using the domain name in connection with a bona fide offering of goods or services. Accordingly, and without in any way endorsing on an ongoing basis what may be a mistaken offering of certain competing products on the Respondent’s website, on balance the Panel finds that the Respondent nevertheless has a current legitimate interest in the disputed domain name and the Complainant has not made out paragraph 4(a)(ii) of the Policy in this proceeding.
Paragraph 4(b) of the Policy enumerates four, non-exhaustive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.
Subparagraph (iv) includes circumstances where the Respondent, by using the disputed domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
In light of the above finding, it is unnecessary for the Panel to reach a decision on whether the domain name was registered and used in bad faith.
For all the foregoing reasons, the Panel finds that the Complainant has failed to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name within the meaning of paragraph 4(a)(ii) and 4(c)(i) of the Policy, and the Complaint is denied.

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The Case: Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 157 (Tenn. Ct. App.2007).
The Basic Facts: Various members of the Crawford family brought action against funeral home, a cremation facility and others alleging irregularities in the cremation of their son and brother. The decedent's wife did not bring suit.
We have not been able to find any dissent from the general propositions asserted in Larson v. Chase, supra.
The plaintiff in the present case, having the undoubted right to refuse to permit an autopsy to be held at all, had the right to clothe her consent with any stipulations or limitations she might choose to make. The expressed limitation that the body should not be mutilated clearly negatives any consent on the part of the plaintiff that any portion of the body should be severed and removed. Also, we think the plaintiff had the right to dictate that the autopsy be held in private and not in a public place. The violation of either or both of these limitations on the permission given by the plaintiff for the autopsy was a trespass on her rights as defined in the authorities hereinabove cited.
It is our conclusion, therefore, that the declaration did state a cause of action against both of the defendants."
253 S.W.3d at 156-57, citing Hill, 294 S.W. at 1098-99.
"Two important concepts are revealed by Hill. First, 'mutilating or otherwise disturbing' a dead body is an actionable wrong. Second, it is the surviving spouse, if there is one, that has the right to possession and control of the body that the law protects. See also Foley v. St. Thomas Hospital, 906 S.W.2d 448, 453 (Tenn. Ct. App.1995) ('Plaintiff, as a surviving spouse, had the sole legal authority over the disposition of her husband's remains.'); Estes v. Woodlawn Memorial Park, Inc., 780 S.W.2d 759, 762 (Tenn. Ct. App.1989) ('Absent an expressed desire of deceased, the surviving spouse and, if no surviving spouse, the next of kin, has the right of custody and burial of the remains of the deceased. 25A C.J.S. Dead Bodies § 3, pp. 491, 492, notes 11, 12.')." Id. at 157.
"When considering all of the above, we conclude that, in Tennessee, any tort claims for negligent, reckless or intentional interference with a dead body and the like can be brought only by the person or persons who have the right to control disposition of the body.FN6 Pursuant to Hill, it is the surviving spouse who has the superior right to control disposition of the body. Therefore, in the present case, the Trial Court correctly held that because Wife had the right to control disposition of the decedent's body, she alone had the right to bring the various tort claims against the Funeral Home and Tri-State.FN7 These claims were properly dismissed for lack of standing.
FN6 This would also include tort claims such as negligent and/or intentional infliction of emotional distress. It would not, however, include claims for breach of contract. In the present case, the plaintiffs were not a party to the contract with the Funeral Home and, on appeal, Teri Crawford does not argue that she was a party to any contract with the Funeral Home or Tri-State.
FN7 Since the decedent in the present case had a surviving spouse, the issue of priority among next of kin is not an issue on this appeal. The issue of who has control over disposition of a body when there is no surviving spouse is discussed at length in Akers v. Buckner-Rush Enterprises, Inc., [270 S.W.3d 67 (Tenn. Ct. App. 2007)]."
Other Sources of Note: Akers v. Buckner-Rush Enterprises, Inc., 270 S.W.3d 67 (Tenn. Ct. App. 2007) (the order of priority among relatives of the deceased for bringing tort claims arising from unauthorized mutilation of a dead body is as follows: (1) the spouse of the decedent; (2) adult children of the decedent; (3) parents of the decedent; (4) adult siblings of the decedent; (5) adult grandchildren of the decedent; and (6) grandparents of the deceased). This result was affirmed by implication in Seals v. H&F, Inc., ____S.W.3d ____, No. M2009-00330-SC-R23-CQ, 2010 WL 152185 (Tenn. Jan. 15, 2010).

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Figure 1. The life cycle of V. cholerae alternates between aquatic reservoirs such as ponds or estuaries, and the human small intestine.
Each year 2-5 million people suffer from the diarrheal disease cholera. This disease is caused by V. cholerae, a mostly marine bacterium that also thrives in the human gastrointestinal (GI) tract and in fresh water environments in cholera endemic areas. Upon ingestion by the host, V. cholerae colonizes the small intestine, multiplies extensively, and secretes cholera toxin. The toxin initiates a signal transduction cascade in the host that leads to a massive efflux of fluid into the intestinal lumen; this ultimately (in regions with poor sanitation systems) releases V. cholerae back into the environment. Thus, the life cycle of V. cholerae involves repetitive transitions between aquatic environments and the host GI tract (Figure 1). It remains unclear, however, how the bacteria are able to rapidly adapt to and multiply within these varying niches. Moreover, cholera represents a paradigm for complex, ecological bacterial diseases. Understanding the entire life cycle of V. cholerae, specifically how it modulates its physiology to adapt to different environments, is critical to enhancing our ability to combat infectious diseases as a whole.
The long-term goal of my research is to understand how V. cholerae adapts to different carbon sources and thereby persists in its environmental reservoirs. Specifically, the objective of this project is to identify and characterize molecular mechanisms by which V. cholerae synchronizes its physiology with available carbon sources. This research is led by a central hypothesis that V. cholerae relies on a suite of small regulatory RNAs (sRNAs) to adapt to changing environmental conditions. There is growing evidence that in many bacteria, including V. cholerae, sRNA regulatory circuits modulate metabolic and behavioral processes. Thus, to truly understand how V. cholerae is able to adjust its physiology for long-term persistence, the multiple sRNAs involved must be identified and characterized. Toward this end, I am actively researching the biological roles of novel RNAs that I previously identified in V. cholerae, focusing on sRNAs that may affect carbon metabolism in the pathogen. I expect that my research will identify molecular components of V. cholerae that allow it to adapt and persist in its natural environments.

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CITY OF HOUSTON, Appellant, v. Rosalaba RODRIGUEZ, Appellee.
Bertrand L. Pourteau II, Judith Saldana Lee Ramsey, Houston, for appellant. Paul A. Higdon, Bellaire, Geary Todd Taylor, Sugar Land, for Appellee.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and BOYCE.
Appellant, the City of Houston (“the City”), files this interlocutory appeal from the trial court's order denying the City's plea to the jurisdiction. We issued our original opinion on July 12, 2011. Thereafter, the City filed a motion for rehearing and a motion for en banc reconsideration. We overrule the City's motion for rehearing, withdraw our previous opinion, and issue this substitute opinion affirming the trial court's order. The City's motion for en banc reconsideration is denied as moot.
Appellee, Rosalaba Rodriguez, alleges she was injured when the vehicle in which she was traveling was struck by a motor-driven vehicle operated by Leslie Carl Hudson, an employee of the City. At the time of the accident, Hudson was operating his vehicle within the course and scope of his employment. Rodriguez filed suit against Hudson and the City simultaneously.The City filed a motion to dismiss Hudson from the suit pursuant to section 101.106(e), which mandates dismissal in favor of a governmental employee when suit is filed against both the employee and the governmental unit. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (West 2011). The trial court granted the motion. The City then filed a plea to the jurisdiction in which it requested dismissal of Rodriguez's suit. In its plea, the City referred to section 101.106(b), which provides that the filing of a suit against a governmental employee forever bars suit against the employee's governmental unit regarding the same subject matter unless the governmental unit consents. Id. § 101.106(b). The trial court denied the City's motion, and the City now brings this interlocutory appeal.
We have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, which authorizes interlocutory appeals from denials of motions for summary judgment based on section 101.106. SeeTex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (West 2008). The fact that the City entitled its pleading “plea to the jurisdiction” does not affect the application of section 51.014(a)(5). See Phillips v. Dafonte, 187 S.W.3d 669, 674–75 (Tex.App.-Houston [14th Dist.] 2006, no pet.), disapproved of on other grounds by Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011).
In its sole issue, the City contends the trial court erred by denying its plea to the jurisdiction because Rodriguez irrevocably elected to sue Hudson by suing both the City and Hudson and, thus, suit against the City is barred under subsection (b).
Generally, we review a trial court's order on a motion to dismiss under an abuse-of-discretion standard. Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). However, the proper standard of review is determined by the substance of the issue rather than the type of motion considered by the trial court. See In re Doe, 19 S.W.3d 249, 253 (Tex.2000) (to determine proper standard of review, “we must determine whether the [issue] is a question of fact or of law”). The City's plea to the jurisdiction presents an issue regarding statutory interpretation of section 101.106.
Matters of statutory construction are reviewed de novo. City of San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex.2003). In construing a statute, our primary goal is to determine and effectuate legislative intent. Grimes Cnty. Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 316 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (citing In re Canales, 52 S.W.3d 698, 702 (Tex.2001) (orig. proceeding)). If a statute is clear and unambiguous, we need not resort to rules of construction. Id. We may consider, among other things, the statute's objectives and the consequences of a particular construction. Id. We give effect to all the words of a statute, treating none of its language as surplusage when reasonably possible. Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex.2009). We presume that every word of a statute has been included or excluded for a reason. Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex.2004).
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem.Code Ann. § 101.106. “Because the decision regarding whom to sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.2008).
The City argues that Rodriguez's petition naming both the City and Hudson triggered application of subsections (b) and (e) and barred her suit against the City. Essentially, the City contends that a plaintiff forfeits her claims when she files suit simultaneously against both governmental employee and governmental unit because the governmental unit may seek permanent dismissal of its employee pursuant to subsection (e) and permanent dismissal of the claims against itself pursuant to subsection (b). In support of this contention, the City cites Garcia, in which the supreme court concluded that subsection (b) applies even when suit is filed against both the employee and governmental unit. Id. at 659–60. The court explained that “to the extent subsection (b) applies, it bars any suit against the governmental unit regarding the same subject matter, not just suits for which the [TTCA] waives immunity or those that allege common-law claims.” Id. at 660 (emphasis added). Relying on this language, the City argues the trial court was required to dismiss Rodriguez's suit against it despite the fact that her claims fall within the TTCA's waiver of immunity. SeeTex. Civ. Prac. & Rem.Code Ann. § 101.021(1) (providing waiver of immunity for liability arising from governmental employee's “use of a motor-driven vehicle or motor-driven equipment”). However, in Amadi v. City of Houston, our en banc court recently rejected the identical argument. 369 S.W.3d 254 (Tex.App.-Houston [14th Dist.] 2011, no. pet. h.) (en banc op. on rehearing).
In Amadi, the plaintiff sued the City and its employee simultaneously for injuries stemming from the employee's operation of a motor-driven vehicle within the course and scope of his employment with the City. Id. at 255–56. We acknowledged the supreme court's broad language in Garcia that subsection (b) “bars any suit ..., not just suits for which the [TTCA] waives immunity.” Id. at 260 (quoting Garcia, 253 S.W.3d at 659). Nevertheless, we focused on the plain language of subsection (b), which mandates that a suit against a governmental unit is barred regarding the same subject matter when a plaintiff sues the governmental employee “unless the governmental unit consents.” Id. We would have ignored the “unless the governmental unit consents” language if we determined subsection (b) requires dismissal of the plaintiff's claims against the City even though they fall within TTCA's waiver of immunity. Id. Accordingly, we concluded that the plaintiff's claims against the City were not barred under subsection (b) because the City consented to the claims under the TTCA. Id. Furthermore, we explained that our holding did not contradict the Garcia court's conclusion that the plaintiff's common-law tort claims were barred under subsection (b) because immunity for the specific common-law tort claims asserted in Garcia was not waived under the TTCA. Id. (citing Garcia, 253 S.W.3d at 659–60);see also City of N. Richland Hills v. Friend, 337 S.W.3d 387, 392 (Tex.App.-Fort Worth 2011, pet. filed) (recognizing Garcia stands for proposition that subsection (b) bars all claims against a governmental unit except claims for which immunity is waived, such as certain tort claims under the TTCA). Applying Amadi to the present case, we hold that subsection (b) does not bar Rodriguez's claims against the City because the City's immunity relative to the claims is waived under the TTCA. SeeTex. Civ. Prac. & Rem.Code Ann. § 101.021(1).
The First Court of Appeals has recently addressed the identical issue presented in this case. See City of Houston v. Esparza, 369 S.W.3d 238 (Tex.App.-Houston [1st Dist.] 2011, no pet. h.). Although the First Court ultimately determined that subsection (b) does not bar a plaintiff's claims against a governmental unit when the plaintiff initially files suit against both governmental unit and governmental employee, the court's reasoning differs substantially from that used by our court. Compare id. at 246–54,with Amadi, 369 S.W.3d at 260–61 (addressing differences in reasoning used by First Court and Fourteenth Court).
We note that our holdings here and in Amadi potentially conflict with the holdings in two cases cited by the City. See Huntsville v. Briggs, 262 S.W.3d 390 (Tex.App.-Waco 2008, pet. denied); Tex. Dep't of Agric. v. Calderon, 221 S.W.3d 918 (Tex.App.-Corpus Christi 2007, no pet.), disapproved of on other grounds by Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011). In these cases, the plaintiffs sued governmental employees for injuries stemming from the employees' operation of motor-driven vehicles within the scope of their government employment. Briggs, 262 S.W.3d at 391;Calderon, 221 S.W.3d at 920, 923 n. 3. The employees filed motions to dismiss pursuant to subsection (f), which provides that on a governmental employee's motion, suit against the employee must be dismissed if the employee was sued for conduct committed within the scope of his employment and the suit could have been brought under the TTCA against the governmental unit; however, the plaintiff's suit is not dismissed if he amends his pleadings to dismiss the employee and name the governmental unit as defendant on or before the thirtieth day after the date the motion is filed. Briggs, 262 S.W.3d at 391;Calderon, 221 S.W.3d at 920;see alsoTex. Civ. Prac. & Rem.Code Ann. § 101.106(f). The plaintiffs amended their petitions to add the governmental units as defendants but did not dismiss the employees within thirty days of the date the motion was filed. Briggs, 262 S.W.3d at 392;Calderon, 221 S.W.3d at 920. The governmental units filed pleas to the jurisdiction, arguing that the plaintiffs' claims against them were barred because the plaintiffs failed to comply with the procedures of subsection (f) and, thus, subsection (b) applied; the trial courts denied the governmental units' motions. Briggs, 262 S.W.3d at 391;Calderon, 221 S.W.3d at 920. Although the rationale employed by the courts of appeals differed in certain respects, each held that the plaintiffs' claims against the governmental units must be dismissed because subsection (b) applied. Briggs, 262 S.W.3d at 395–96;Calderon, 221 S.W.3d at 924. Neither court considered whether the phrase “unless the governmental unit consents” in subsection (b) prevented dismissal because immunity for the plaintiffs' claims was waived under the section 101.021 of the TTCA.
The City also cites the supreme court's recent decision in Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011). However, the court focused its analysis on specific language of subsection (f) not relevant to our case. Id. at 379–85. Further, the court's discussion regarding Garcia does not support the City's position that subsection (b) operates to bar all claims, even those falling within the TTCA's waiver of immunity. See id. at 377–79.
Though we make no comment regarding the relationship between subsections (b) and (f), to the extent the Briggs and Calderon courts implicitly held that subsection (b) bars claims for which a governmental unit's immunity has been waived under section 101.021 of the TTCA, we disagree. In fact, the Austin Court of Appeals recently disagreed with the Briggs and Calderon courts and held that subsection (b) did not bar the plaintiff's claims against the governmental unit—even though the plaintiff initially sued only the governmental employee for injuries stemming from the employee's operation of a motor-driven vehicle—because the governmental unit's immunity was waived by the TTCA. See Barnum v. Ngakoue, Nos. 03–09–00086–CV, 03–09–00087–CV, 2011 WL 1642179, at *2, *7–12 (Tex.App.-Austin April 29, 2011, pet. filed) (mem. op.).
As explained in Amadi, we disagree with the First Court of Appeals's opinion in Esparza for the same reason. See Amadi, 369 S.W.3d at 259 (citing Esparza, 369 S.W.3d at 249).
Interestingly, in dicta, the Barnum court interpreted the “unless the governmental unit consents” phrase of subsection (b) to mean that suit against a governmental unit is barred unless the governmental unit presently consents to that particular suit.2011 WL 1642179, at *10–11. In other words, the court would interpret the phrase not to encompass prior waivers of immunity, such as those afforded in the TTCA. Id. Nonetheless, the court recognized that it was bound by Garcia, in which the supreme court interpreted the phrase to include prior waivers of immunity. Id. at *11.
Accordingly, we overrule the City's sole issue and affirm the trial court's order denying the City's plea to the jurisdiction.