text:
Mr. Seth W. Richardson, of Washington, D.C., for petitioner.
In July, 1933, information was conveyed to the District Probation Officer that petitioner had broken these conditions. In a letter written by his father he was charged with drunkenness and the forgery of two checks. The officer made report of this information to the District Judge and requested a revocation of the order for suspension of sentence. On July 29, 1933, the District Judge issued a mandate for a warrant of arrest. On August 5, he signed an order that the suspension be revoked and that the defendant be committed to prison to serve the stated term. Upon arrest under the warrant the defendant was not brought by his custodian before any court or judge. He was transported at once to the penitentiary at Leavenworth, Kansas, and there imprisoned. Later, in December, 1933, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Kansas, contending that his imprisonment was unlawful for the reason that probation had been ended without the opportunity for a hearing made necessary by statute. The District Judge dismissed the application for the writ, and the Circuit Court of Appeals for the Tenth Circuit [295 U.S. 490, 492] affirmed his order. 74 F.(2d) 924. A writ of certiorari issued from this court. 294 U.S. 704 , 55 S.Ct. 640, 79 L.Ed. --.
Upon the suspension of sentence in October, 1932, the applicable statute made provision as follows: 'At any time within the probation period the probation officer may arrest the probationer without a warrant, or the court may issue a warrant for his arrest. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.' Act of March 4, 1925, c. 521, 2, 43 Stat. 1260, 18 U.S.C. 725 (18 USCA 725.) An amendment of the statute in June, 1933 (Act of June 16, 1933, c. 97, 48 Stat. 256, 18 U.S.C. Supp. 725 (18 USCA 725)), permits the execution of the warrant by a United States marshal as well as by a probation officer, but does not change the procedure otherwise. Under the statute as amended as well as in its original form, the probationer 'shall forthwith be takn before the court.' This mandate was disobeyed. The probationer, instead of being brought before the court which had imposed the sentence, was taken to a prison beyond the territorial limits of that court and kept there in confinement without the opportunity for a hearing. For this denial of a legal privilege the commitment may not stand.
In thus holding we do not accept the petitioner's contention that the privilege has a basis in the Constitution, apart from any statute. Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of [295 U.S. 490, 493] its duration as Congress may impose. Burns v. United States, 287 U.S. 216 , 53 S.Ct. 154. But the power of the lawmakers to dispense with notice or a hearing as part of the procedure of probation does not mean that a like dispensing power, in opposition to the will of Congress, has been confided to the courts. The privilege is no less real because its source is in the statute rather than in the Fifth Amendment. If the statement of the Congress that the probationer shall be brought before the court is command and not advice, it defines and conditions power. French v. Edwards, 13 Wall. 506, 511. The revocation is invalid unless the command has been obeyed.
We find in this statute more than directory words of caution, leaving power unaffected. This is so if we consider the words alone, putting aside for the moment the ends and aims to be achieved. The defendant 'shall' be dealt with in a stated way; it is the language of command, a test significant, though not controlling. Richbourg Motor Co. v. United States, 281 U.S. 528, 534 , 50 S.Ct. 385, 73 A.L.R. 1081. Doubt, however, is dispelled when we pass from the words alone to a view of ends and aims. Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation. The charge against him may have been inspired by rumor or mistake or even downright malice. He shall have a chance to say his say before the word of his pursuers is received to his undoing. This does not mean that he may insist upon a trial in any strict or formal sense. Burns v. United States, supra, 287 U.S. 216 , at pages 222, 223, 53 S.Ct. 154. It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper. Burns v. United States, supra. That much is necessary, or so the Congress must have thought, to protect the individual against malice or op- [295 U.S. 490, 494] pression. Almost equally it is necessary, if we read aright the thought of Congress, for the good of the probation system with all its hopes of social betterment.
If these are the ends to be promoted by bringing the probationer into the presence of his judge, the act is seen at once to be mandatory in meaning as well as mandatory in form. Statutes are not directory when to put them in that category would result in serious impairment of the public or the private interests that they were intended to protect. French v. Edwards, supra; Lyon v. Alley, 130 U.S. 177, 185 , 9 S.Ct. 480; Erhardt v. Schroeder, 155 U.S. 124, 128 , 130 S., 15 S.Ct. 45. Such is the situation here. When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal. When an opportunity to be heard is denied altogether, the ensuing mandate of the court is void, and the prisoner confined thereunder may have recourse to habeas corpus to put an end to the restraint. It is beside the point to argue, as the government does, that in this case a hearing, if given, is likely to be futile because the judge has made it plain how his discretion will be exercised in that already he has canceled the suspension on the strength of an ex parte showing. The non sequitur is obvious. The judge is without the light whereby his discretion must be guided until a hearing, however summary, has been given the supposed offender. Cf. Snyder v. Com. of Massachusetts, 291 U.S. 97, 116 , 54 S.Ct. 330, 90 A.L.R. 575. Judsgment ceases to be judicial if there is condemnation in advance of trial.
The discharge is without prejudice to his arrest and commitment as a result of subsequent proceedings conforming to the statute. [295 U.S. 490, 495] The judgment is reversed and the cause remanded with instructions that the writ must be sustained and the prisoner discharged.


Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) of section 1427(a) of this title if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.
Any person, (1) whose spouse is (A) a citizen of the United States, (B) in the employment of the Government of the United States, or of an American institution of research recognized as such by the Attorney General, or of an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof, or of a public international organization in which the United States participates by treaty or statute, or is authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States, or is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States, and (C) regularly stationed abroad in such employment, and (2) who is in the United States at the time of naturalization, and (3) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required.
Any person who (1) is employed by a bona fide United States incorporated nonprofit organization which is principally engaged in conducting abroad through communications media the dissemination of information which significantly promotes United States interests abroad and which is recognized as such by the Attorney General, and (2) has been so employed continuously for a period of not less than five years after a lawful admission for permanent residence, and (3) who files his application for naturalization while so employed or within six months following the termination thereof, and (4) who is in the United States at the time of naturalization, and (5) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon termination of such employment, may be naturalized upon compliance with all the requirements of this subchapter except that no prior residence or specified period of physical presence within the United States or any State or district of the Service in the United States, or proof thereof, shall be required.
Any person who is the surviving spouse, child, or parent of a United States citizen, whose citizen spouse, parent, or child dies during a period of honorable service in an active duty status in the Armed Forces of the United States and who, in the case of a surviving spouse, was living in marital union with the citizen spouse at the time of his death, may be naturalized upon compliance with all the requirements of this subchapter except that no prior residence or specified physical presence within the United States, or within a State or a district of the Service in the United States shall be required. For purposes of this subsection, the terms “United States citizen” and “citizen spouse” include a person granted posthumous citizenship under section 1440–1 of this title.
Notwithstanding any other provision of law, a spouse described in paragraph (1) shall be eligible for naturalization proceedings overseas pursuant to section 1443a of this title.
2003—Subsec. (d). Pub. L. 108–136, § 1703(h), inserted “, child, or parent” after “surviving spouse” and “, parent, or child” after “whose citizen spouse”, and substituted “who, in the case of a surviving spouse, was living” for “who was living”.
2000—Subsec. (a). Pub. L. 106–386 inserted “, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty,” after “citizen of the United States” and “(except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent)” after “has been living in marital union with the citizen spouse”.
1990—Subsec. (a). Pub. L. 101–649, § 407(c)(5), substituted “application” for “petition” wherever appearing.
Subsec. (b). Pub. L. 101–649, § 407(d)(4)(A), substituted “before the Attorney General” for “before the naturalization court” in cl. (3).
Pub. L. 101–649, § 407(b)(1)(B), substituted “within a State or a district of the Service in the United States” for “within the jurisdiction of the naturalization court”.
Subsec. (c). Pub. L. 101–649, § 407(d)(4)(B), substituted “Attorney General” for “naturalization court” in cl. (5).
Pub. L. 101–649, § 407(c)(5), substituted “application” for “petition”.
Pub. L. 101–649, § 407(b)(1)(C), substituted “district of the Service in the United States” for “within the jurisdiction of the court”.
Subsec. (d). Pub. L. 101–649, § 407(b)(1)(B), substituted “within a State or a district of the Service in the United States” for “within the jurisdiction of the naturalization court”.
1968—Subsec. (d). Pub. L. 90–369 added subsec. (d).
1967—Subsec. (c). Pub. L. 90–215 added subsec. (c).
1958—Subsec. (b). Pub. L. 85–697 inserted provision relating to persons performing religious duties.
Amendment by Pub. L. 108–136 effective as if enacted Sept. 11, 2001, see section 1705(a) of Pub. L. 108–136, set out as a note under section 1439 of this title.
For purposes of section 319(c) of the Immigration and Nationality Act (8 U.S.C. 1430(c)), the George C. Marshall European Center for Security Studies, located in Garmisch, Federal Republic of Germany, shall be considered to be an organization described in clause (1) of such section.
Subsection (a) shall apply with respect to periods of employment before, on, or after the date of the enactment of this Act [Nov. 30, 1989].
No more than two persons per year may be naturalized based on the provisions of subsection (a).


text:
ALMEIDA, L. A.; DE ALMEIDA, L.; DAMINELI, A.; RODRIGUES, V, C.; CASTRO, M.; LOPES, C. E. FERREIRA; JABLONSKI, F.; DO NASCIMENTO JR, J-D; PEREIRA, M. G. Orbital Period Variation of KIC 10544976: Applegate Mechanism versus Light Travel Time Effect. ASTRONOMICAL JOURNAL, v. 157, n. 4 APR 2019. Citações Web of Science: 0.
DAMINELI, A.; FERNANDEZ-LAJUS, E.; ALMEIDA, L. A.; CORCORAN, M. F.; DAMINELI, D. S. C.; GULL, T. R.; HAMAGUCHI, K.; HILLIER, D. J.; JABLONSKI, F. J.; MADURA, T. I.; MOFFAT, A. F. J.; NAVARETE, F.; RICHARDSON, N. D.; RUIZ, G. F.; SALERNO, N. E.; SCALIA, M. C.; WEIGELT, G. Distinguishing circumstellar from stellar photometric variability in Eta Carinae. Monthly Notices of the Royal Astronomical Society, v. 484, n. 1, p. 1325-1346, MAR 2019. Citações Web of Science: 0.
ALMEIDA, L. A.; DAMINELI, A.; RODRIGUES, C. V.; PEREIRA, M. G.; JABLONSKI, F. HS 2231+2441: an HW Vir system composed of a low-mass white dwarf and a brown dwarf. Monthly Notices of the Royal Astronomical Society, v. 472, n. 3, p. 3093-3100, DEC 2017. Citações Web of Science: 0.
MOYANO, M.; ALMEIDA, L. A.; VON ESSEN, C.; JABLONSKI, F.; PEREIRA, M. G. Multi-band characterization of the hot Jupiters: WASP-5b, WASP-44b and WASP-46b. Monthly Notices of the Royal Astronomical Society, v. 471, n. 1, p. 650-657, OCT 2017. Citações Web of Science: 0.
OLIVEIRA, A. S.; RODRIGUES, C. V.; CIESLINSKI, D.; JABLONSKI, F. J.; SILVA, K. M. G.; ALMEIDA, L. A.; RODRIGUEZ-ARDILA, A.; PALHARES, M. S. Exploratory Spectroscopy of Magnetic Cataclysmic Variables Candidates and Other Variable Objects. ASTRONOMICAL JOURNAL, v. 153, n. 4 APR 2017. Citações Web of Science: 2.
ALMEIDA, L. A.; SANA, H.; TAYLOR, W.; BARBA, R.; BONANOS, A. Z.; CROWTHER, P.; DAMINELI, A.; DE KOTER, A.; DE MINK, S. E.; EVANS, C. J.; GIELES, M.; GRIN, N. J.; HENAULT-BRUNET, V.; LANGER, N.; LENNON, D.; LOCKWOOD, S.; MAIZ APELLANIZ, J.; MOFFAT, A. F. J.; NEIJSSEL, C.; NORMAN, C.; RAMIREZ-AGUDELO, O. H.; RICHARDSON, N. D.; SCHOOTEMEIJER, A.; SHENAR, T.; SOSZYNSKI, I.; TRAMPER, F.; VINK, J. S. The Tarantula Massive Binary Monitoring I. Observational campaign and OB-type spectroscopic binaries. Astronomy & Astrophysics, v. 598, FEB 2017. Citações Web of Science: 17.
SHENAR, T.; RICHARDSON, N. D.; SABLOWSKI, D. P.; HAINICH, R.; SANA, H.; MOFFAT, A. F. J.; TODT, H.; HAMANN, W. -R.; OSKINOVA, L. M.; SANDER, A.; TRAMPER, F.; LANGER, N.; BONANOS, A. Z.; DE MINK, S. E.; GRAFENER, G.; CROWTHER, P. A.; VINK, J. S.; ALMEIDA, L. A.; DE KOTER, A.; BARBA, R.; HERRERO, A.; ULACZYK, K. The Tarantula Massive Binary Monitoring II. First SB2 orbital and spectroscopic analysis for the Wolf-Rayet binary R145. Astronomy & Astrophysics, v. 598, FEB 2017. Citações Web of Science: 11.
DAMINELI, A.; ALMEIDA, L. A.; BLUM, R. D.; DAMINELI, D. S. C.; NAVARETE, F.; RUBINHO, M. S.; TEODORO, M. Extinction law in the range 0.4-4.8 mu m and the 8620 angstrom DIB towards the stellar cluster Westerlund 1. Monthly Notices of the Royal Astronomical Society, v. 463, n. 3, p. 2653-2666, DEC 2016. Citações Web of Science: 8.
ALMEIDA, L. A.; SANA, H.; DE MINK, S. E.; TRAMPER, F.; SOSZYNSKI, I.; LANGER, N.; BARBA, R. H.; CANTIELLO, M.; DAMINELI, A.; DE KOTER, A.; GARCIA, M.; GRAEFENER, G.; HERRERO, A.; HOWARTH, I.; MAIZ APELLANZ, J.; NORMAN, C.; RAMIREZ-AGUDELO, O. H.; VINK, J. S. DISCOVERY OF THE MASSIVE OVERCONTACT BINARY VFTS 352: EVIDENCE FOR ENHANCED INTERNAL MIXING. ASTROPHYSICAL JOURNAL, v. 812, n. 2 OCT 20 2015. Citações Web of Science: 13.
HOWARTH, I. D.; DUFTON, P. L.; DUNSTALL, P. R.; EVANS, C. J.; ALMEIDA, L. A.; BONANOS, A. Z.; CLARK, J. S.; LANGER, N.; SANA, H.; SIMON-DIAZ, S.; SOSZYNSKI, I.; TAYLOR, W. D. The VLT-FLAMES Tarantula Survey XXIII. Two massive double-lined binaries in 30 Doradus. Astronomy & Astrophysics, v. 582, OCT 2015. Citações Web of Science: 2.
SILVA, K. M. G.; RODRIGUES, C. V.; OLIVEIRA, A. S.; ALMEIDA, L. A.; CIESLINSKI, D.; COSTA, J. E. R.; JABLONSKI, F. J. MLS110213:022733+130617: a new eclipsing polar above the period gap. Monthly Notices of the Royal Astronomical Society, v. 451, n. 4, p. 4183-4192, AUG 21 2015. Citações Web of Science: 2.

matches: v. v. v. v. v. v. v. v. v. v. v.


text:
To simplify the language in this Offering Circular "PBFC," "us" and "we" mean Planet Beach Franchising Corporation, the franchisor. The term "you" means the person who buys the franchise, or the franchisee. The person buying the franchise may be a natural person, partnership, corporation, or limited liability company. If the franchisee is a partnership, corporation, or limited liability company the term "you" does not include the entity's partners, officers, directors, shareholders, members or managers unless otherwise stated.
We were formed on September 26, 1996, as a Louisiana corporation, and do business under our corporate name and as Planet Beach Tanning Salons. Our principal business address is 5161 Taravella Road, Marrero, Louisiana 70072. Our agents for service of process are identified in Exhibit 2 of this offering circular.
We have been offering franchises of the type being offered in this offering circular since April 1996. We have never offered franchises in any other line of business.
We have been offering Area Representative development rights since January 1997. Area Representatives operate at least one spa and sell additional spas to others in their territories. Area Representative rights are offered through a separate registration as well as a separate Uniform Franchise Offering Circular.
Our affiliate, Planet Beach Real Estate, LLC ("PBRE") was formed on February 1, 2002 as a Louisiana limited liability company, with a principal place of business of 5161 Taravella Road, Marrero, Louisiana 70072. PBRE has never offered franchises in this or any other line of business nor has it ever operated a business of the type being franchised in this offering circular.
Our affiliate, Planet Beach Tanning Salons, Inc. was formed on April 1, 1996 as a Louisiana corporation. Its principal place of business is located at 5300 Tchoupitoulas Street, #F-7, New Orleans, Louisiana 70115. Planet Beach Tanning Salons, Inc. has never offered franchises in this or any other line of business nor has it ever operated a business of the type being offered in this offering circular. PBTS owns all of the Marks and has licensed the Marks to us and has given us the right to sublicense the Marks to our franchisees.
Our affiliate, Planet Beach Franchising, LLC ("PBF") was formed on August 20, 1998 as a Louisiana limited liability company. PBF is no longer engaged in business in any capacity. From August 1998 until June 1999, PBF sold 13 franchises of the type being offered in this offering circular. PBFC has assumed the obligations of PBF under the outstanding franchise agreements, and all renewals will be through PBFC.
Other than as set forth above we have no other predecessors or affiliates.
Beach" and such other trademarks, service marks, logos and other indicia of origin (our "Proprietary Marks") as we may designate for use in connection with the Franchised Business. You will operate the Franchised Business according to the form of franchise agreement ("Franchise Agreement") included in this joffering circular as Exhibit 6, and our confidential operations manual (''Operations Manual"), described in Item 11 of this offering circular.
subject to all laws and regulations that apply to businesses generally.
PBFCi Mr. Smith is a franchisee of one Planet Beach Spa in New Orleans.
PlanefBeach Spa in Marrero, Louisiana.
Since July 1996, Mr. Juka has served as our Vice President and Chief Operating Officer.
i Mr. Mesa was the Director of Business Operations for Allegis Group from February 1.995 until November 2003. He joined PBFC in December 2003.
Ms. Moll began her career with Planet Beach while attending Tulane University in New Orleans as a salon associate in the fall of 1996. Upon graduating from Tulane she became the General Manager of the Planet Beach tanning salon in Marrero, LA in September of 1999. In March of 2000 she began working for PBFC and in February of 2003 she was promoted to the executive position she now holds.
Planet Beach Franchising Corporation f.
Mr. Kendall was the Director of Product Development for Interactive Design, Inc. in Atlanta, GA from July 1995 to September 1998. From September of 1998 until the present Mr. Kendall has been the Chief Information Officer for Planet Beach Franchising Corporation.
Ms, Dowell began working with Planet Beach in March 1998 as a Salon Manager, continuing on as a District Manager and Grand Opening Specialist. From February 2001 through January 2002, she worked as a Franchise Sales Representative for PBFC, and then resumed the position of Equipment & Lamp Specialist, which she held through December 2003. Ms. Dowell was the Director of Education & Research in 2004, Franchise Performance Director in 2005 and currently oversees the Education and Executive Development Departments for PBFC.
Mr. Calongne was employed by Property One, Inc. where he concentrated on leasing office and retail space for landlords from February 2000 to October 2001. From October 2001 until November 2002, Mr. Calongne was Director of Leasing and Property Management for Orthodontic Centers of America, Inc. There he focused on working with affiliated orthodontist and pediatric dentist to strategically locate their practices and maximize revenue. From November 2002 until October 2004, Mr. Calongne was hired by Sizeler Real Estate Management Company, Inc., subsidiary of Sizeler Property Investors, Inc., to lease two regional malls and seven strip centers consisting of over 1.5 million square feet of retail space. From October 2004 until August 2005, Mr. Calongne worked as Director of Leasing and Property Management for Orthodontic Centers of America, Inc. In August of 2005, Mr. Calongne became Planet Beach Franchising Corporation's Director of Leasing.
Prior to joining the PBFC family in June 2005 as Franchise Finance Coordinator, Ms. Rogers served as an Accounting/Finance Consultant for the Offshore Marine Service Association (OMSA), from September 2003 to August 2004. In addition, Ms Rogers served as the Finance Consultant for the retired President of OMSA for his personal business, Alario and Associates, LLC from September 2003 to May 2005. From August 1997 to January 2001, she worked as Senior Accountant for the Citizens Utilities Company, formerly known as Louisiana Gas Company. Ms. Rogers received her Bachelors of Science degree in Accounting from the University of New Orleans in May 1997. She also received her Masters of Business Administration (MBA) with a concentration in Human Resources from the University of New Orleans in May 2003.
Ms. Jo Marie Evans was employed by the New Orleans Metropolitan Convention and Visitors Bureau in membership sales until October 2000. She worked as a product sales representative with Planet Beach Franchising Corporation from October 2000 through December 2001. From December 2001 through the present Ms. Evans has held the position of Director of Product Sales and Development.
Ms. Matherne started at Planet Beach Marrero, LA in 1998 as an associate and was promoted to assistant manager in October of 2000 and in December of 2001 she was again promoted to manager. In August 2002, ishe became the Grand Opening Specialist Director for PBFC. In April of 2004, Ms. Matherne became Director of In House Salon Performance. In September of 2004 Salon Performance was combined with the Education Department and the department was renamed to Franchise Performance and her title changed to Director of In House Franchise Performance.
Brokers is attached to this offering circular as Exhibit 12.
In certain regions, we have granted area development rights to qualified j individuals ("Area Representatives"). Area Representatives are often engaged in the sales process and are contractually required to perform certain support services to our franchisees. Information about these Area Representatives is attached to this offering circular as Exhibit 13.
Seller and Associates. L.L.C. and Michelle Seiler, individually and d/b/a Planet Beach West Esplanade v. Stephen P. Smith. Nancy Price, Richard L. Juka. Planet Beach Franchising Corporation. Planet Beach Franchising. L.L.C. and Solarware, L.L.C, (No. 2002-649, Civil District Court for tl.e Parish of Orleans, State of Louisiana, Division "K"). In March 2001, PBFC discovered that Ms. jSeiler breached her fiduciary duty to PBFC as an Area Developer. PBFC terminated her as an Area Developer and sued for a temporary restraining order barring her from contact with PBFC and PBFC franchisees. In the fall of 2001, Ms. Seiler filed a counter suit claiming PBFC breached its contractual duties pursuant to the Area Development Agreement. PBFC holds claims for actual damages in excess of $150,000 for refunds that were made to franchisees that claimed Ms. Seiler made claims of misrepresentation. Ms. Seiler did not specify an amount of damages. This case is pending and the parties are currently engaging in discovery.
Stephen P. Smith and Planet Beach Franchising Corporation v. Kelly Langlev. Sun Mask Tanning. L.L.C. and Mandeville Tan, L.L.C. (No. 2002-10581, 22nd Judicial District Court foi the Parish of St. Tammany, State of Louisiana, Division "A"). Mr. Smith is 49% owner of the Mandeville tanning salon and Ms. Langley is the 51% owner. In the summer of 2001, Mr. Smith filed suit because of Ms. Langley's refusal to make any lease payments to PBFC for tanning equipment andlfor recovery of his 49% interest in the equity and profits of the salon. On September 24, 2002, Ms. Langley then filed a counter suit claiming 100% ownership. Unspecified amount of damages to be determined at trial. This case is pending and the parties are currently engaging in discovery.
$15,000 franchise fee paid for the right to open and operate a second Salon. Plaintiffs won summary judgment in the amount of $15,000 plus attorneys' fees, costs and interest. PBFC appealed this judgment and the Burks, on behalf of their corporation, Nani Kai, Inc., filed a subsequent suit alleging business disparagement, deceptive trade practices and civil conspiracy (Nani Kai, Inc. v. Planet Beach Franchising Corporation and Don Campbell, No. 048-196553-02, 48th District Court, Tarrant County, Texas). PBFC filed an answer denying all allegations. The parties have settled all claims out of court. In May of 2003 PBFC paid to the Burks an amount of $12,000 and agreed that for a period of two years from December 23, 2002 not to open or operate or permit a PBFC franchisee to open or operate a tanning salon at any location within a three mile radius from the Burk's tanning salon.
Melissa Smith. Burnell Smith and Vita Amoure. L.L.C. v. Planet Beach Franchising Corporation. (No. 366-02108-01, 366th District Court, Collin County, Texas). In October 2001, plaintiffs filed suit to recover a $5,000 territory deposit fee paid for the right to open and operate a Salon. On April 1, 2001, PBFC defaulted and judgment was entered in favor of the plaintiffs in the amount of $16,879. In November of 2002, PBFC paid the judgment in full and an Order Granting NonSuit was filed. In January of 2003 a Release of Judgment was signed by Burnell Smith, Melissa Smith and Vita Amore acknowledging payment of the default judgment.
James R. Barnhill and Lara Barnhill v. Planet Beach Franchising Corporation (No. 04 CVS 011235, Superior Court Division in Wake County, State of North Carolina). On August 12, 2004, our franchisees, Mr. and Mrs. Barnhill filed an action in which they alleged breach of contract and specific performance arising from a purported award by PBFC of an Area Representative Agreement to the Barnhills. On November 24,2004, Mr. and Mrs. Barnhill dismissed the action without prejudice. Thereafter, on or about December 7 of 2004, the parties reached an amicable resolution in which PBFC awarded Mr. and Mrs. Barnhill an Area Representative Agreement and granted them an option to acquire an additional franchise at a discounted price.
Jeffrey A. Brewer, individually, Bert R. Struck, individually, Robert F. Struck, individually and Sun King, L.L.C. v. Planet Beach Franchising Corporation and Planet Beach Tanning Salon Inc., Stephen P. Smith and Ronald Simmons (No.CV0406488, Circuit Court of Jefferson County, State of Alabama). On October 28, 2004, our franchisees, Mr. Jeffrey R. Brewer, Mr. Bert R. Struck and Mr. Robert F. Struck filed an action in which they alleged that PBFC purposely excluded information from PBFC's UFOC to induce the franchisees to purchase a franchise. They further alleged that PBFC omitted corporate financial information and that PBFC purposefully omitted information relating to a "National Advertising" fee. On December 16, 2004, PBFC filed a demand for arbitration. On December 16, 2004, PBFC filed a Motion to Stay Proceedings, Compel Arbitration or Dismiss. On January 21, 2005, the Circuit Court of Jefferson County compelled this matter to arbitration and stayed the state action pending the outcome of the arbitration. Thereafter, the plaintiffs filed a demand for arbitration asserting a claim for breach of contract. On or about January 17 of 2006, the parties reached an amicable resolution in which PBFC purchased the assets and rights to Claimant's franchise location. On January 27, 2006 the state action was dismissed with prejudice in the Circuit Court of Jefferson County, Alabama.
Corporate Development Outsourcing L.L.C. v. Planet Beach Franchising Corporation (AAA No. 51 110 00110 05). On January 19, 2005, Corporate Development Outsourcing, L.L.C. ("CDO"), a project management firm, filed an arbitration with the American Arbitration Association against PBFC alleging that PBFC breached a Construction Management Agreement between the parties. PBFC filed a counterclaim on February 16, 2005 asserting that CDO breached the Construction Management Agreement. On August 23, 2005, the Arbitrator, with the American Arbitration Association, found that the contract could be construed according to its terms without finding a breach by either party and awarded CDO $18,400.00. The Arbitrator found that neither party was the "prevailing party" under the agreement.
is stayed pending resolution of plaintiffs bankruptcy.
Other than these 8 actions, no litigation is required to be disclosed in this offering circular. Information relating to Franchise Brokers and Area Representatives are attached as Exhibits 13 and 14 respectively.
No person previously identified in Items 1 or 2 has been involved as a debtor in proceedings under the U.S. Bankruptcy Code required to be disclosed in this Item. !
Franchisees pay a lump sum initial franchise fee when they sign the franchise agreement. The initial franchise fee for a Traditional Planet Beach with a minimum of 7 pieces of equipment is $30,000. The initial:franchise fee for an Express Planet Beach with 5 to 6 pieces of equipment is $30,000. PBFC reserves the right to alter these prices as the market warrants at any time. This fee is deemed fully earned upon receipt and is non-refundable.
In honor of Planet Beach's 10 Year Anniversary, Franchisees may pay a lump sum] initial franchisee fee of $30!,000 for a Traditional or Express Planet Beach and get an option for $1,000. | Franchisees may be awarded 1 franchise license and 2 options for $51,000 and receive up to two more options for $1,000 each. Franchisees must have scheduled an appointment no later than May 11, 2006.
franchisees who sign a Multi-Unit Option Agreement will pay the following: for 3 Spas, they will pay the franchise fee of $30,000 for 1 Spas and at the same time, pay an option fee of $21,'000 for 2 additional Spas; for 5 Spas, they will pay the franchise fee of $30,000 for 1 Spas and at the samo time, pay an option fee of $35,000 for 4 additional Spas; and for 10 Spas, they will pay the franchise fee of $30,000 and at the same time, pay an option fee of $70,000 for 9 additional Spas. These fees are deemed fully earned upon receipt and are non-refundable.
Effective August 1, 2006 Franchisees who sign a Multi-Unit Option Agreement will pay the following: for 3 Spas, they will pay the franchise fee of $30,000 for 1 Spa and at the same time, pay an option fee of $29,000 for 2 additional Spas; for 5 Spas, they will pay the franchise fee of $30,000 for 1 Spa and the same time, pay an option fee of $43,000 for 4 additional Spas.
PBFC participates in the VetFran Program and qualified franchisees may receive a discount in the initial franchise fee.
PBFC may offer Area Representative Agreements to accelerate the development of certain markets. The Representative Agreement may vary from market to market, depending on the population of the market and the number of salons that may be opened in a market. In some markets, the Area Representative will provide some or all of the services to be provided to you by PBFC. Information regarding our Area Representatives is attached as Exhibit 13 to this offering circular. An offer for an Area Representative Agreement can only be made by way of a separate UFOC.
The following table describes other recurring or isolated fees or payments that you must pay to us, or which we impose or collect on behalf of a third party, in whole or in part. All fees and payments are nonrefundable unless otherwise stated.
There is no transfer fee when an individual transfers to his/her corporation or L.L.C. Franchisee's may transfer only to existing Planet Beach Franchisees.
Payment will be made through the Autodraft System.
For any payments made by you to us or any purchases made by you from PBFC.
Interest' is also charged on any overdue amounts at 18% per annum or the maximum rate permitted by state law, whichever is less.
You must defend, indemnify and hold us harmless from all fines, suits, proceedings, claims, demands,1 obligations or actions of any kind arising in whole or in part from the operation of your Franchised Business.
This fee does not include travel and lodging, only convention registration.
This includes cost of travel and lodging. It does not take into account r.iiscellaneous expenses such as food and entertainment. Prices may vary depending on where you are traveling from.
Note 1: All fees are imposed by and are payable to PBFC. All fees are non-refundable. PBF,C is charged a credit card processing fee by various credit card companies. PBFC will charge you the credit card processing fee that it is required to pay to the credit card company when you make purchases from PBFC.
"Retail.V Gross Sales does not include sales tax imposed by any federal, state or governmental authority.
Note 3:! Franchisor-owned outlets have no voting power on any fees imposed by franchisee cooperatives.
Note 1. Estimates are based on a single unit, both Traditional and Express Spas. Traditional Spas feature 7-12 pieces of equipment. Express Spas feature 5-6 pieces of equipment.
Note 2\ The initial franchise fee and certain expenses are discussed in detail in Item 5. This ;ee is non-refundable.
the city or county requires will be the responsibility of the franchisee.
unit mix and amount of equipment. You are responsible for any taxes due to your state.
Note 5. The low estimate is based on an Express Spa with an estimated 600 to 800 square foot space with landlord participation and no demolition. This estimated range will vary depending on the location, necessary leasehold improvements and landlord participation.
i Note 6.1 Owner Furnished Items (OFIs) consist of interior modular wall and door system);, millwork (including retail fixtures, various shelving and counter), interior signage, exterior signage, flooring and lij'jht fixtures.
Note 7.. Some landlords may require a deposit of first and last month's rent. Deposits on utilities will also vary. Deposits will vary based on the market rental rates for your market.
Note 8.: You will need to obtain Commercial General Liability ($1 Million Minimum ■ Coverage) insurance, Worker's Compensation, Business Interruption insurance, Life insurance (equal to the amount borrowed) and Construction Coverage insurance.
Note 9. ] This figure includes the costs for the monitor, keyboard, cash drawer, credit card machine, receipt printer, printer and the installation of PBFC's software and credit card software.
Note 10. Shipping is based on several factors, including weight of shipment and destination.
Note 11. Set-up of equipment includes the crew meeting the delivery truck at your location, offloading and carrying equipment into your Spa and assembling the equipment. This price is based on the type of tanning and spa equipment.
Note 12. Timer System includes T-Max Manager, Communication Cables, RJ22 Couplers and UV Meter and price is based on the specific layout of your Spa.
Note 13. Printing includes Guest Passes, Lead Boxes, Sign-up slips, Membership contracts, Freeze Forms, Termination Forms, Boutique Bags, Business Cards, Postcards, Gift Cards, Gift Card Deluxe Package (Thank You Cards, PB Envelopes, Gift Cards, PB Gold Seals), and Tattoos.
Note 14. You are required to spend this amount on grand opening advertising. You may spend additional amounts with PBFC approval.
Note 15. You will be required to purchase a specified amount based on the size of your Spa for the initial inventory of products to be offered for sale. A selection of PBFC's proprietary lotion and national brand products must be stocked.
Note 16. Zero dollars as a "Low" because not all Spas can accommodate a utility room due to size or layout restrictions. Therefore, the washer and dryer are optional.
Note 17. This figure includes inspection fees, occupational licenses, and the costs for transportation, meals and other expenses associated with pre-opening training.
Note 18. PBFC suggests that your working capital be approximately 3 to 6 months worth of expenses. This figure may vary depending on the season in which your Spa opens. This 3 to 6 month period does not necessarily mean that you will "break even" or that you will reach any certain financial position. This figure may also change as required by a lender.
Note 19. PBFC relied on its 10 years experience in the tanning business to compile these estimates. You should review these figures carefully with a business advisor before making any decision to purchase the franchise.
Note 20. PBFC does offer indirect financing to franchisees for some of these items.
Note 1. Estimates are based on a single unit, both Traditional and Express Spas. Traditional Spas feature 7-12 pieces of equipment. Express Spas feature 5-6 pieces of equipment. This Initial Investment range will be the same for your 2nd Spa and 3rd Spa.
Note 2. The multi unit option fee and certain expenses are discussed in detail in Item 5. This fee is non-refundable. This option fee will be the same for the 2nd Spa and the 3rd Spa. After August 1, 2006, the Multi-Unit Option fee will increase to $29,000 for two (2) additional spas.
Note 3. The low estimate is for drawings prepared by PBFC only. The architectural fee will vary depending on your state and local municipality requirements. PBFC drawings consist of existing and proposed floor plans, reflected ceiling plans, fixture schedules and wall details. Any additional stamps or upgrades to the drawings that the city or county requires will be the responsibility of the franchisee.
Note 4. The low end represents a basic 5 unit mix for an Express Spa, including 1 Mystic Tan spray booth and 1 Spa unit. The high end represents a 12 unit mix, which includes 1 Mystic Tan spray booth, 1 Elite lay-down bed, 1 Elite stand-up bed and 2 Spa units. This estimated range does not include T-Max Timer system or wiring. All Express Spas are required to have a minimum of 1 Mystic Tan spray booth and 1 Spa unit. All Traditional Spas are required to have a minimum of 1 Mystic Tan spray booth, 2 Spa units (1 of each type of Planet Beach approved Spa equipment). This does not include costs for set-up, shipping, handling and tax. This amount may vary depending on unit mix and amount of equipment. You are responsible for any taxes due to your state.
Note 6. Owner Furnished Items (OFIs) consist of interior modular wall and door systems, millwork (including retail fixtures, various shelving and counter), interior signage, exterior signage, flooring and light fixtures.
Note 7. Some landlords may require a deposit of first and last month's rent. Deposits on utilities will also vary. Deposits will vary based on the market rental rates for your market.
Note 8. You will need to obtain Commercial General Liability ($1 Million Minimum Coverage) insurance, Worker's Compensation, Business Interruption insurance, Life insurance (equal to the amount borrowed) and Construction Coverage insurance.
Note 9. This figure includes the costs for the monitor, keyboard, cash drawer, credit card machine, receipt printer, printer and the installation of PBFCs software and credit card software.
Note 15. You will be required to purchase a specified amount based on the size of your Spji for the initial inventory of products to be offered for sale. A selection of PBFC's proprietary lotion and national brand products must be stocked.
Note 19. PBFC relied on its 10 years experience in the tanning business to compile these estimates. You should review these figures carefully with a business advisor before making any decision to purchasi; the franchise.
Note 1. Estimates are based on a single unit, both Traditional and Express Spas. Traditional Spas feature 7-12 pieces of equipment. Express Spas feature 5 - 6 pieces of equipment. This Initial Investment range will be the same for your 2nd Spa, 3rd Spa, 4,h Spa and 5,h Spa.
Note 2. The multi unit option fee and certain expenses are discussed in detail in Item 5. This fee is non-refundable. This option fee will be the same for the 2nd Spa, 3rd Spa, 4th Spa and 5rd Spa. After August 1, 2006, the Multi-Unit Option fee will increase to $43,000 for four (4) additional spas.
your i state and local municipality requirements. PBFC drawings consist of existing and proposed floor plans, reflected ceiling plans, fixture schedules and wall details. Any additional stamps or upgiades to the drawings that the city or county requires will be the responsibility of the franchisee.
Note;4. The low end represents a basic 5 unit mix for an Express Spa, including 1 Mystic Tan spray booth and 1 Spa unit. The high end represents a 12 unit mix, which includes 1 Mystic Tan spray booth, 1 Elite lay-down bed, 1 Elite ]stand-up bed and 2 Spa units. This estimated range does not include T-Max Timer system or wiring. All Express Spas are required to have a minimum of 1 Mystic Tan spray booth and I Spa unit. All Traditional Spas are required to have a minimum of 1 Mystic Tan spray booth, 2 Spa units (1 of each type of Planet Beach approved Spa equipment). This does not include costs for set-up, shipping, handling and tax. This amour'it may vary depending on unit mix and amount of equipment. You are responsible for any taxes due to your state.
I Note 6. Owner Furnished Items (OFls) consist of interior modular wall and door systems, mill work (including retail fixtures, various shelving and counter), interior signage, exterior signage, flooring and light fixtures.
Note l|0. Shipping is based on several factors, including weight of shipment and destination.
Cards, PB Envelopes, Gift Cards, PB Gold Seals), and Tattoos.
Note 15. You will be required to purchase a specified amount based on the size of your Spa ^or the initial inventory of products to be offered for sale. A selection of PBFC's proprietary lotion and national brand products must be stocked.
P anet Beach Franchising Corporation 90 !
may vary depending on the season in which your Spa opens. This 3 to 6 month period does not necessarily mean that you will "break even" or that you will reach any certain financial position. This figure may also change as required by a lender.
Note 1. Estimates are based on a single unit, both Traditional and Express Spas. Traditional Spas feature 7-12 pieces of equipment. Express Spas feature 5-6 pieces of equipment. This initial Investment range will be the same for your 2^ Spa, 3rd Spa, 4,h Spa, 5Ih Spa, 6,h Spa, 7th Spa, 8,h Spa, 9th Spa and 10th Spa.
Note 3. The low estimate is for drawings prepared by PBFC only. The architectural fee! will vary depending on your state and local municipality requirements. PBFC drawings consist of existing anil proposed floor plans, reflected ceiling plans, fixture schedules and wall details. Any additional stamps or upgrades to the drawings that the city or county requires will be the responsibility of the franchisee.
Note 7. Some landlords may require a deposit of first and last month's rent. Deposits on utilities will also vary.
Deposits will vary based on the market rental rates for your market.
I^Jote 8. You will need to obtain Commercial General Liability ($1 Million Minimum Coverage) insurance, Worker's Compensation, Business Interruption insurance, Life insurance (equal to the amount borrowed) and Construction Coverage insurance.
printer and the installation of PBFC's software and credit card software.
You must purchase goods and materials, which adhere to our minimum standards and requirements. These items include start-up equipment, inventory, interior and exterior signs, insurance, grand opening advertising and on-going marketing, printing and supplies. Estimated costs for these items are described in Item 7 of this offering circular.

matches: v. v. v. v. v. v. v.


Cindy J. Lovato-Farmer, Narvaez Law Firm, Albuquerque, New Mexico, appearing for Appellants.
Joseph P. Kennedy, Albuquerque, New Mexico, appearing for Appellee.
Before TACHA, Chief Judge, KELLY, Circuit Judge, and LUNGSTRUM,(*) District Judge.
The defendant appeals from the district court's order denying summary judgment based on the defense of qualified immunity. Because we lack jurisdiction, we dismiss the defendant's appeal of the district court's decision regarding the wrongful arrest claim, but we exercise jurisdiction under 28 U.S.C. § 1291 to review and reverse the district court's decision regarding the excessive force claim. We remand to the district court for proceedings consistent with this opinion.
Based on the record, the relevant facts are as follows. At approximately 10:45 p.m. on November 13, 1998, Plaintiff William Gross was detained at a sobriety checkpoint. Mr. Gross admitted to consuming alcohol with dinner but passed a field sobriety test. Noticing Mr. Gross was driving a vehicle with a dealer license plate, Defendant Deputy Quent Pirtle then questioned him about the use of the dealer plate. Mr. Gross contends that he told Deputy Pirtle he owns a car dealership and was road testing the vehicle in accordance with New Mexico law. In addition, both parties acknowledge that Mr. Gross asked Deputy Pirtle to review a statute that, according to Mr. Gross, applied to his use of the dealer plate. Deputy Pirtle returned to his car and read the statute but concluded it did not support Mr. Gross's lawful use of the dealer plate.
Deputy Pirtle then asked Mr. Gross to sign a traffic citation for improper use of evidence of registration under section 66-8-2 of the New Mexico Code. According to Deputy Pirtle, he informed Mr. Gross that a signature was not an admission of guilt but Mr. Gross repeatedly objected to signing the citation. Eventually Mr. Gross did sign the citation, writing "under protest" under the signature line. The parties disagree about the subsequent details. Because Mr. Gross's signature on the citation did not resemble his signature on his driver's license, Deputy Pirtle contends that he asked Mr. Gross to sign another citation, which Mr. Gross refused to sign. Mr. Gross, however, claims he properly signed the citation using his initials as he signs all his business documents, and Deputy Pirtle did not ask him to sign a second citation.
In addition to refusing to sign the second citation, Deputy Pirtle claims Mr. Gross demanded an immediate appearance before a magistrate, which Deputy Pirtle explained would require a custodial arrest. Shortly thereafter, Deputy Pirtle arrested Mr. Gross under section 66-8-122 of the New Mexico Code, which authorizes a custodial arrest for a traffic violation upon the occurrence of one of the specified conditions, including an arrestee's request for an immediate appearance before a magistrate and an arrestee's refusal to "give his written promise to appear in court." N.M. Stat. Ann. § 66-8-122(A) & (F). During the course of the arrest, Mr. Gross contends that, although he did not resist arrest, Deputy Pirtle kicked him "very hard" in his foot, resulting in a bone spur injury.
Mr. Gross subsequently brought suit against Deputy Pirtle and Dona Ana County for various civil rights and tort violations of state and federal law. The only claims at issue on appeal are the Fourth Amendment claims against Deputy Pirtle. Mr. Gross argues that Deputy Pirtle violated his Fourth Amendment rights in unreasonably detaining and wrongfully arresting him. In addition, he claims Deputy Pirtle used excessive force during the arrest. In response to the defendants' summary judgment motion raising the defense of qualified immunity, the district court concluded genuine issues of material fact remain regarding the wrongful arrest and excessive force claims. The defendant Deputy Pirtle appeals the district court's denial of the summary judgment motion with respect to these two claims.
Although actions for damages provide an important remedy for individuals injured by governmental officials' abuse of authority, such actions sometimes subject officials to costly and harassing litigation and potentially inhibit officials in performing their official duties. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). In order to balance these competing interests, courts recognize the affirmative defense of qualified immunity, which protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court has emphasized the broad protection qualified immunity affords, giving officials "a right, not merely to avoid 'standing trial,' but also to avoid the burdens of 'such pretrial matters as discovery.'" Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Consequently, courts should resolve the "purely legal question," Siegert v. Gilley, 500 U.S. 226, 232 (1991), raised by a qualified immunity defense "'at the earliest possible stage in litigation.'" Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
We review the denial of a summary judgment motion raising qualified immunity questions de novo. Wilson v. Meeks, 52 F.3d 1547, 1551 (10th Cir. 1995) [hereinafter Wilson I]; Bella v. Chamberlain, 24 F.3d 1251, 1254 (10th Cir. 1994). Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions. Nelson v. McMullen, 207 F.3d 1202, 1205-06 (10th Cir. 2000). After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff. Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). Applying the same standards as the district court, we must determine whether the plaintiff has satisfied a "heavy two-part burden." Albright, 51 F.3d at 1534; accord Wilson I, 52 F.3d at 1552.(1) The plaintiff must first establish "that the defendant's actions violated a constitutional or statutory right." Albright, 51 F.3d at 1534; see also Wilson v. Layne, 526 U.S. 603, 609 (1999) (noting the court must first decide whether the plaintiff has alleged deprivation of a constitutional right). If the plaintiff establishes a violation of a constitutional or statutory right, he must then demonstrate that the right at issue was clearly established at the time of the defendant's unlawful conduct. Albright, 51 F.3d at 1534. In determining whether the right was "clearly established," the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether "the right [was] sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Wilson v. Layne, 526 U.S. at 615 (internal quotation marks omitted).
This two-step analysis "is designed to 'spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Wilson v. Layne, 526 U.S. at 609 (quoting Siegert, 500 U.S. at 232)). If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity. Albright, 51 F.3d at 1535. If the plaintiff successfully establishes the violation of a clearly established right, the burden shifts to the defendant, who must prove "'that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.'" Id. (quoting Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir. 1993)). In short, although we will review the evidence in the light most favorable to the nonmoving party, Nelson, 207 F.3d at 1205, the record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.
A district court's denial of a defendant's summary judgment motion based on qualified immunity is an immediately appealable "collateral order" when the issue appealed concerns whether certain facts demonstrate a violation of clearly established law. Mitchell v. Forsyth, 472 U.S. 511, 527-28 (1985) (concluding summary judgment order deciding qualified immunity issues satisfies the test from Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), because it is "effectively unreviewable," separate from the merits, and "conclusively" settles the issue of a defendant's immunity from suit). The Supreme Court has, however, cautioned that not every denial of summary judgment following the assertion of qualified immunity is immediately appealable. Johnson v. Jones, 515 U.S. 304, 313 (1995). Courts of appeals clearly lack jurisdiction to review summary judgment orders deciding qualified immunity questions solely on the basis of evidence sufficiency"which facts a party may, or may not, be able to prove at trial." Id. Consequently, an order will not be immediately appealable unless it "present[s] more abstract issues of law." Id. at 317.
Hence, we have observed that defendants may not immediately appeal a pretrial order deciding "nothing more than whether the evidence could support a finding that particular conduct occurred." Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997). We need not, however, decline review of a pretrial order denying summary judgment solely because the district court says genuine issues of material fact remain; instead, we lack jurisdiction only if our review would require second-guessing the district court's determinations of evidence sufficiency. Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996) ("Denial of summary judgment often includes a determination that there are controverted issues of material fact . . . and Johnson surely does not mean that every such denial of summary judgment is nonappealable."). An order denying summary judgment based on qualified immunity necessarily involves a legal determination that certain alleged actions violate clearly established law. Id. at 313. Defendants may therefore assert "on appeal that all of the conduct which the District court deemed sufficiently supported for purposes of summary judgment" meets the applicable legal standards. Id. Even when the district court concludes issues of material fact exist, we have reviewed the legal question of whether a defendant's conduct, as alleged by the plaintiff, violates clearly established law. Malik v. Arapahoe County Dep't of Soc. Servs., 191 F.3d 1306, 1315 (10th Cir. 1999); Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997); see also Wilson v. Meeks, 98 F.3d 1247, 1251-52 (10th Cir. 1996) [hereinafter Wilson II] (noting thatfollowing Johnson and Behrensother circuits characterize review of whether the plaintiff's version of the facts establishes a constitutional violation as a legal question, which is immediately appealable).
Mr. Gross argues his arrest violates his Fourth Amendment rights because Deputy Pirtle did not have probable cause to detain and subsequently arrest him for unlawful use of the dealer plate. Because the district court concluded issues of material fact exist without making explicit factual findings, we must review the record to extract the facts the district court likely relied on in reaching its conclusion. Johnson, 515 U.S. at 319 (explaining that the appellate court "may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed"). If we determine the district court's conclusion rests on findings of evidence sufficiency, we must dismiss for lack of jurisdiction.
Although many of the facts in this case are disputed, not all of these facts are necessarily material. For example, the disagreement regarding whether Mr. Gross properly signed the first citation and whether he was asked to sign a second citation is immaterial if Deputy Pirtle lacked probable cause to detain Mr. Gross after the purpose of the initial stop ended. See V-1 Oil Co. v. Means, 94 F.3d 1420, 1424 (10th Cir. 1996) (noting a "detention must be reasonably related in scope to the circumstances that justified the stop" and a detention outside the scope violates the Constitution); United States v. McSwain, 29 F.3d 558, 561-62 (10th Cir. 1994) (holding that, after purpose of the traffic stop ended, reasonable suspicion no longer existed and further detention of the driver exceeded the permissible scope). In order for the arrest to be lawful, Deputy Pirtle must have had probable cause to detain Mr. Gross for unlawful use of the dealer plate.
After reviewing the record, we find that genuine issues of material fact remain concerning whether Deputy Pirtle believed he had probable cause to detain Mr. Gross following the administration of the sobriety field test. Although section 66-3-401 of the New Mexico Code permits general use of a special dealer plate, certain vehicles, such as parts or delivery vehicles, owned by dealers are excluded from the subsection authorizing general use. N.M. Stat. Ann. § 66-3-401(B). The district court could, therefore, have identified disputed facts concerning Deputy Pirtle's classification of the vehicle and its concomitant use under the vehicle registration laws. Because further review would necessitate an assessment of the district court's evidentiary conclusions, we must dismiss Deputy Pirtle's appeal of the district court's decision that issues of material fact exist regarding the wrongful arrest claim.
Claims of excessive force are analyzed under the objective reasonableness standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). The reasonableness of an officer's conduct must be assessed "from the perspective of a reasonable officer on the scene," recognizing the fact that the officer may be "forced to make split-second judgments" under stressful and dangerous conditions. Id. at 396-97. The Fourth Amendment standard requires inquiry into the factual circumstances of every case; relevant factors include the crime's severity, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest. Id. at 396. The reasonableness standard is "clearly established" in the context of § 1983 actions. Wilson I, 52 F.3d at 1552.
Despite the district court's decision that issues of material fact exist concerning Mr. Gross's excessive force claim, we have jurisdiction to determine whether Deputy Pirtle's conduct, as described by Mr. Gross, violates clearly established law. After reviewing the record, we conclude Mr. Gross's claim that Deputy Pirtle kicked his foot "very hard" does not contravene the Fourth Amendment's reasonableness standard. In reviewing excessive force claims, we acknowledge that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham, 490 U.S. at 396 (internal citations and quotation marks omitted). In making an arrest, officers may "use some degree of physical coercion or threat thereof to effect it." Id. For example, in order to position an arrestee for a pat down search for weapons, officers frequently use a reasonable amount of force. See Dixon v. Richer, 922 F.2d 1456, 1462 (10th Cir. 1991) (noting that what the plaintiff characterized as a "kick" could be characterized as a "reasonable act" intended to prepare arrestee for a pat down). Viewing the record in the light most favorable to Mr. Gross, we conclude he has failed to establish that Deputy Pirtle's actions constituted excessive force, and Deputy Pirtle is therefore entitled to qualified immunity as a matter of law.
Because the record reveals genuine issues of material fact, we DISMISS the defendant's appeal of the district court's order denying summary judgment with respect to the wrongful arrest claim. The plaintiff has, however, failed to show that the defendant used excessive force in violation of his Fourth Amendment rights. We therefore REVERSE the district court's denial of summary judgment with respect to the excessive force claim. We REMAND to the district court for proceedings consistent with this opinion.
*.Honorable John W. Lungstrum, Chief District Judge for the District of Kansas, sitting by designation.
1. This circuit has previously required plaintiffs to meet a heightened pleading standard when subjective intent is at issue and the defendant raises a qualified immunity defense. See, e.g., Breidenbach v. Bolish, 126 F.3d 1288 (10th Cir. 1997). We recently held that the heightened pleading requirement does not survive the Supreme Court's opinion in Crawford-El v. Britton, 523 U.S. 574 (1998). Currier v. Doran, 2001 WL 202045 (10th Cir. Mar. 1, 2001). Our decision in Currier is not directly implicated in this case because we review the issues presented in the context of summary judgment.


These Terms and Conditions apply to the purchase of online shops operated by VYKOM s.r.o. (http://www.vykom.cz/eshop) with effect from 1st January 2014.
The Business Terms and Conditions further define and specify the rights and obligations of the seller (entrepreneur, supplier) that is a trading company VYKOM s.r.o., registered office at U Splavu 67, 507 91 Stará Paka, ID: 25281526, registered in the Commercial Register in Section C, the court in Hradec Králové, and the buyer (customer, consumer).
All contractual relationships are concluded in accordance with the legal order of the Czech Republic. If the consumer is a party to the contract the relations explicitly not governed by the business conditions are governed by the Act No. 89/2012 Coll., The Civil Code and the Act No. 634/1992 Coll., On Consumer Protection, as amended. If the consumer is not a party to the contract legal relations not governed by the business conditions are also governed by Act No. 89/2012 Coll., The Civil Code (hereinafter referred to as "CC").
Consumer contract is a contract that a consumer concludes with an entrepreneur. All communications to the consumer the entrepreneur must make a clear and comprehensible manner in the language in which the contract is concluded.
The seller is a company VYKOM s.r.o., registered office at U Splavu 67, 507 91 Stará Paka, ID: 25281526, registered in the Commercial Register, Section C, File No. 12567 at the Regional Court in Hradec Kralove, as a legal person, who at the conclusion of the contract is in the course of their business or other business activity. It is an entrepreneur who delivers products or services to the buyer directly or through other entrepreneurs.
The entrepreneur is pursuant to the provisions. § 420 par. 1 CC person who independently carries out on its own account and responsibility gainful employment trade or similar means with the intention to do so consistently for profit.
The customer of online store is a buyer. In view of the current legislation a buyer who is a consumer and a buyer who is not a consumer is distinguished.
Buyer consumer (the “consumer”) is a natural person who at the conclusion of the contract is not in the course of its business or as part of a separate exercise of his profession, the consumer is in accordance with the provisions. § 419 CC everyone who outside his entrepreneurial activity or outside the scope of the independent exercise of his profession, concludes a contract with, or otherwise deals with, the entrepreneur.
The buyer that is not a consumer is the entrepreneur who buys goods or services used for the purposes of their business with these products or services. Any person who concludes contracts related to his own business, production or similar activity or in the independent exercise of his profession, or a person acting in the name or on behalf of the entrepreneur, is also considered to be non consumer entrepreneur.
If the buyer is a consumer, the proposal for the conclusion of the purchase contract, ie the offer, is not the placement of the offered goods by the seller (entrepreneur, supplier) on the website since this is only informative. The contract for the conclusion of the contract is the sending of an order by the buyer when the purchase agreement is established only after the order has been received by the supplier, the contractual relation between the buyer and the seller arises from the moment of receipt of the acceptance of the order (accepting), which is sent to the buyer by e-mail to the buyer's e-mail address. The resulting contract (including the agreed price) may be altered or canceled only by agreement of the parties or for legal reasons. Section 1732 (2) CC does not apply.
The supplier expressly states that prior to submitting the order, using electronic means, that the consumer is allowed to check and modify the input data entered in the order in accordance with § 1826 (3) CC, also in view of the buyer's ability to identify and correct the errors entering data into the order before sending it. The details given in the order are considered correct by the seller.
If the buyer is not a consumer, the proposal for the conclusion of the purchase contract is the order sent by the buyer to the buyer and the purchase contract itself is concluded at the moment of delivery of the binding agreement of the seller to the buyer with this proposal.
By signing the purchase agreement, the buyer confirms that he has become familiar with these terms and conditions and agrees with them. The buyer is notified of these Terms and Conditions and has the opportunity to get acquainted with them in sufficient detail before making the order.
Buyer acquires the right to ownership of the goods up to the payment of the purchase price and the seller hereby reserves the right of ownership under § 2132 CC. However, the risk of damage to the item is passed on to the buyer by its takeover.
The seller reserves the right to cancel the order or part of it before the purchase agreement is concluded on the basis of an agreement with the buyer in the following cases: the goods are no longer produced, delivered or the price of the goods supplier has changed significantly. If the buyer has already paid the purchase price or part of it, this amount will be transferred back to his account or address and the contract will not be concluded.
Goods that are provided free of charge as gifts by the mutual agreement of the parties cannot be invoked by any consumer's rights when the gift agreement between the seller and the buyer is concluded with the condition that if the buyer withdraws from the contract, with respect to such a gift of efficiency and the buyer is obliged to return the given gift together with the goods to the seller.
In the event that the seller delivers something to the buyer without an order and the buyer, as the consumer of the holding, treats him as a fair holder. In this case, the buyer does not have the obligation to return to or return to the seller the goods delivered at his own expense.
The goods have properties negotiated by the parties and, in the absence of an arrangement, such properties as the seller or the manufacturer has described or which the purchaser expects with regard to the nature of the goods and the advertising they make.
The goods are suitable for the purpose which the seller indicates or to which the thing of its kind is usually used.
The goods correspond to the quality or performance of the agreed sample or masterpiece if the quality or design was determined according to the agreed sample or original.
The goods are in the appropriate quantity, degree or weight.
If the property does not have the above properties, the buyer may also require the delivery of a new item without defects if this is not disproportionate due to the nature of the defect, but if the defect only affects the part of the item, the buyer may only require replacement parts; if this is not possible, it can withdraw from the contract. However, if the defect is disproportionate in view of the nature of the defect, in particular if the defect can be remedied without undue delay, the buyer is entitled to a free removal of the defect. The right of delivery of a new item or replacement of the part has a buyer even if a defect can be remedied if the item cannot be properly used for repeated defects after repair or for more defects. In that case, the buyer has the right to withdraw from the contract. If the buyer does not withdraw from the contract or does not exercise the right to deliver a new item without defects, to replace its part or to repair the item, it may require a reasonable discount. The buyer has the right to a reasonable discount even if the seller cannot deliver a new thing without defects, replace its part or repair the item as well as if the seller fails to remedy the remedy within a reasonable time or that the remedy for the remedy would cause considerable difficulties to the consumer.
The right of defective performance of the buyer does not belong if the buyer knew before the takeover of the goods that the goods were defective or if the buyer caused the defect himself.
The consumer is entitled to exercise the right to a defect that occurs on consumer goods within 24 months of the takeover. If a defect occurs within 6 months of the takeover, it is assumed that the matter was defective already at takeover.
All valid current prices listed on the seller's website are in the final amount, ie including VAT, any other taxes and fees that the consumer has to pay to acquire the goods remain valid for as long as they are displayed on the Seller's website. This does not apply to any shipping charges, etc., when the information regarding the costs associated with the packing and delivery of goods is stated on the seller's website and is valid when the goods are delivered to the territory of the Czech Republic. The buyer is obliged to pay the costs associated with the delivery and packaging of the goods to the seller at the agreed rate. This provision is without prejudice to the seller's right to enter into a purchase contract under individually determined conditions.
The promotional prices are valid until the stock is sold out, when the number of pieces of the stock or the time of the sale is specified.
If it is customary in the course of trade or if it is stipulated by generally binding legal regulations, the seller shall issue a tax document - invoice to the purchaser in respect of payments made under the purchase contract. The seller is a value added tax payer. Tax document - The invoice is issued by the seller to the purchaser after paying the price of the goods and sends it in electronic form to the e-mail address of the buyer.
The purchaser may pay the buyer in cash at the seller's place of business and any costs associated with the delivery of goods under the Purchase Agreement, by cash on delivery at the buyer's place of purchase in the order, by bank transfer to the Seller's account stated on the order confirmation or consumer credit. All of the above payment methods are accepted by the seller and one of them is chosen by the buyer.
Buyer will be supplied with the goods at the price valid at the time of his order, respectively at the price valid at the time of conclusion of the contract. The buyer, as a consumer, has the opportunity to acquaint himself with the total price, including VAT and all other fees, before making the order. This price will be stated in the order and in the confirmation message of receipt of the order of the goods. The consumer is also able to know before the order is made how long the offer or price remains valid.
The orders are ranked by the seller according to the date of their receipt. Delivery of the goods takes place over a period of 1 to 6 weeks. The buyer will be informed of the delivery date in advance in the agreed manner.
Photos are informative only and individual shades may vary according to the individual settings of the monitor.
The rights and obligations of contractors regarding defective performance are governed by applicable generally binding regulations (in particular, Articles 1914 to 1925, 2099 to 2117 and 2161 to 2174 CC).
The matter is defective if it does not have the features listed in § 2095 and § 2096 CC. A defect is also considered to be the fulfilment of another matter and a defect in the documents necessary for the use of the thing.
Rights to defective performance create a defect that is inherent in the passing of the risk of damage to the buyer, even if it will only occur later. The buyer's right to defective performance will create a later defect that the seller has caused in breach of his duty. The buyer is obliged to see the thing as soon as possible after the risk of damage to the item has passed and to see its properties and quantities, and the risk of damage to the thing passes to the buyer by taking over the item. If the buyer finds damage to the goods, he shall immediately make a record of the defects found. Later claims of mechanical defects will be disregarded. If the buyer fails to notify the buyer of the defect in good time, he will lose the right to withdraw from the contract.
If the defective performance is a substantial breach of contract, the buyer has the right to remove the defect by delivering a new item without defect or by delivering the missing item, repairing the defect, making a reasonable discount on the purchase price, or withdrawing from the contract. If the defective performance is an irrelevant breach of contract, the buyer has the right to remove the defect or to a reasonable discount on the purchase price. Section 2108 CC relating to the non-payment of part of the purchase price corresponding to an estimate determined by the appropriate right to discount shall not apply when the buyer is obliged to pay the seller the full purchase price.
The rights of the purchaser exercises defective performance by the seller, in which the case was purchased, that at his facility, which is possible taking into account the assortment of goods sold, or at the headquarters of the seller or via e-mail address of the seller obchod@vykom.cz. The moment when the claim is made is the moment when the seller received the goods claimed from the buyer.
All delivered goods are subject to warranty according to the warranty terms and deadlines specified in the warranty card or invoice invoice. The buyer is entitled to claim the right to a defect that occurs on consumer goods within 24 months of receipt of the goods.
If the consumer exercises the right of defective performance, the other party confirms the written form in which he has exercised the right, as well as the repair and the duration of the repair, ie the content of the claim and the manner in which the claim is settled by the buyer. Claims, including the removal of a defect, must be settled without undue delay, no later than 30 days after the date of the claim, unless the parties agree for a longer period. In the event of a claim being rejected, the Buyer shall provide the purchaser with a written explanation of this refusal.
All purchased goods are subject to the assembly authorized trained service technician. The seller of the buyer expressly pointed out that the right to apply for defects does not apply to defects caused by improper installation.
If the purchase contract is concluded by means of distance communication (in the online shop), the consumer has the right, in accordance with § 1829, paragraph 1, of the CP without giving any reason to withdraw from the contract within 14 days of receipt of the goods (if the subject of the purchase contract is several types of goods or the delivery of several parts, this period runs from the date of the last delivery of the goods). The withdrawal from the sales contract must be sent to the seller within the time limit specified in the previous sentence.
If the consumer wishes to withdraw from the contract in accordance with the previous paragraph within 14 days, he / she will contact the seller and will preferably state in writing that he / she will withdraw from the contract, ideally with the order number, purchase dates and money account number.
To withdraw from the contract, the consumer may also use the model form provided by the seller, annexed to these terms and conditions. Withdrawal from the sales contract may be sent by the consumer, inter alia, to the address of the seller's premises or to the seller's e-mail address.
In the event that buyers withdraw from the contract in accordance with the preceding paragraphs, the seller shall return the money received from the buyer (except for the additional cost of delivering goods resulting from buyers of the chosen delivery method which is different from the least expensive standard delivery of goods offered by the seller) 14 days after the buyer withdraws from the purchase agreement in the same manner as the seller has accepted from the buyer unless the buyer specifies otherwise. The seller is also entitled to return the performance provided by the buyer upon return of the goods or otherwise, provided that the buyer agrees to do so without incurring additional costs. If the buyer withdraws from the purchase contract, the seller is not obliged to return the received funds to the buyer before the buyer returns the goods or shows that the goods have been dispatched to the seller.
However, the provisions of the law of withdrawal within the 14-day period cannot be understood as the possibility of free-of-charge lending. In the event that the consumer has the right to withdraw from the contract within 14 days of the receipt of the transaction, the consumer must, within 14 days of the withdrawal, deliver everything he or she has obtained on the basis of the purchase contract and the contract is canceled from the outset. If this is no longer possible (for example, in the meantime, the goods have been destroyed or consumed), the consumer must provide a cash refund in return for what cannot be issued. If the returned goods are only partially damaged, the seller may claim a claim for damages on the consumer and set off his claim on the returned purchase price. In such a case, the seller is obliged to prove the damage. In this case, the seller returns only the reduced purchase price.
At the purchase price to be returned to the buyer, the seller may offset his actual costs of returning the goods.
Upon receipt of the goods by the buyer, the seller has the right to withdraw from the sales contract at any time. In such a case, the seller shall return the purchase price without undue delay to the buyer, by bank transfer to the buyer's bank account.
The provision of services if they were fulfilled with his prior explicit consent before the expiration of the withdrawal period and the entrepreneur had informed the consumer before concluding the contract that in such a case he would not have the right to withdraw from the contract.
The supply of goods or services, the price of which depends on financial market disparities, irrespective of the will of the trader, and which may occur during the withdrawal period.
The supply of alcoholic beverages, which can only be delivered after thirty days, and whose price depends on financial market displacements independent of the will of the entrepreneur.
The delivery of the goods, which has been adjusted according to the wishes of the consumer or his / her person.
The delivery of perishable goods as well as goods that have been irreversibly mixed with other goods after delivery.
Repair or maintenance carried out at a place designated by the consumer at his request; this does not apply in the case of subsequent repairs other than repairs requested or delivery of spare parts other than those requested.
The delivery of goods in closed packaging, which the consumer has removed from the packaging and cannot be returned for hygienic reasons.
The delivery of an audio or video recording or a computer program if it violated their original packaging.
The delivery of newspapers, periodicals or magazines.
Accommodation, transportation, meals or leisure time if the entrepreneur provides these services within a specified time.
Concluded on the basis of a public auction under the law governing public auctions.
The delivery of digital content, if it was not supplied on a physical medium and was supplied with the consumer's prior express consent before the expiration of the withdrawal period, and the entrepreneur informed the consumer, before concluding the contract, that he had no right to withdraw from the contract in such a case.
Seller reserves the right to cancel the order for goods labeled "Not Currently Available" if the goods can no longer be supplied or replaced with other goods or if the price has changed significantly and the customer does not accept this before the purchase contract is actually accepted. The vendor informs the customer about this situation. If a part or whole order has been paid, the buyer will be returned to the buyer's account.
Customer information is maintained in accordance with applicable laws of the Czech Republic, in particular the Personal Data Protection Act No. 101/2000 Coll. as subsequently amended and supplemented. The Buyer agrees to process and collect their personal data in the seller's database even after the successful fulfilment of the contract, until such time as it is in writing to disagree with this processing. Personal data are processed for an indefinite period of time and can be removed based on a written request from the customer. Customer's personal data is fully secured against misuse.
The Buyer acknowledges that he is required to present his or her personal information correctly and truthfully and that he is obliged to inform the seller of any change in his or her personal information without undue delay.
Seller is authorized to process personal data to another person as processor. The processed personal data are stored only for the needs of the seller and will not be conveyed to third parties without the consent of the buyer, with the exception of persons carrying out the transport of goods by which the personal data of the buyer are handed over to the minimum extent necessary for the delivery of the goods.
The buyer has the right of access to his or her personal data and the right to correct them, including other legal rights to such data. If the buyer requests information on the processing of his or her personal data, the seller is required to pass on this information. Seller has the right to provide information under the preceding clause to request reasonable compensation not exceeding the costs necessary to provide the information.
Individual contracts are archived after they have been closed by the operator in electronic form and are only accessible to the business operator.
Most of the goods are shipped in the assembled condition. The normal delivery time is listed in the order paragraph. The seller provides the transportation through contractual logistics services under the following conditions.
All requests for payment are received by the buyer at the e-mail address by phone or email order. The place of delivery is the address indicated by the buyer in the order of the goods.
- personal takeover of goods (point f).
The amount of reimbursement converted into EUR will be sent to the seller upon subscription to the buyer's email address. The exchange rate for the EUR is based on the CNB daily rate.
Shipping is determined by the weight of the package and the country of delivery. We are preparing the payment terms, we can now individually agree on the goods. Contact us via our phone number or email.
Payment is made through the payment gateway to the seller's website. Detailed conditions include a separate payment gateway, including payment instructions.
The buyer will pay for the delivery service when picking up the shipment.
The buyer can use the free pick up of the ordered goods free of charge at the seller's headquarters, by prior telephone or e-mail arrangement.
If the seller is obliged to deliver the goods in the place specified by the buyer in the order, according to the purchase contract, the buyer is obliged to take over the goods upon delivery. If the buyer does not take the goods for any reason on his side, he / she will bear the costs of repeated deliveries.
Upon receipt of the goods, the buyer is required to check the integrity of the packaging of the goods and, in the event of any defects, notify the carrier of this in turn. In the event of a violation of the packaging indicating unauthorized entry into the consignment, Buyer is not required to take over from the Goods Carrier.
The cost of using telecommunications remotely (telephone, internet, etc.) for the execution of the order is in the normal amount, depending on the tariff of the telecommunication services used by the buyer and does not differ from the basic rate.
The buyer agrees to use the means of communication remotely when concluding the purchase contract, with the purchaser paying for himself the costs incurred by the buyer when using remote means of communication in connection with the conclusion of the purchase contract (cost of internet connection, telephone call costs, etc.).
Consumers can also use the platform for online dispute settlement, which is established by the European Commission at http://ec.europa.eu/consumers/odr/ . "
The seller is authorized to sell the goods on the basis of a trade license. The trade license is carried out within the scope of its competence by the relevant Trade Licensing Office. Supervision of the area of personal data protection is carried out by the Office for Personal Data Protection. The Czech Trade Inspection exercises to a limited extent, among others, the supervision of compliance with Act No. 634/1992 Coll.
These Terms of Business are valid as stated on the Seller's website on the date of the purchase agreement. The consumer's order is confirmed as a signed contract between the buyer and the seller for the purpose of completing it and other records and its status is accessible to the buyer. The contract may be concluded in the Czech language, or in other languages as well, if this is not the reason for the conclusion of the contract. By purchasing, the customer agrees to send business messages.
These terms and conditions allow for their archiving and reproduction. By the conclusion of the purchase contract, the buyer accepts all terms and conditions of the Business Terms and Conditions as in force on the day of dispatch of the order, including the price of the ordered goods stated in the confirmed order, unless otherwise agreed otherwise in the specific case.
Seller is not bound by any codes of conduct in relation to the buyer in accordance with Section 1826 (1) e) CC.


text:
Yesterday, the Supreme Court held that the trial court abused its discretion by placing unreasonable restrictions on the plaintiff's right to seek discovery of percipient witness names and contact information in an action under the Labor Code Private Attorneys General Act ("PAGA"). Williams v. Superior Court (Marshalls of CA, LLC), ___ Cal.5th ___ (Jul. 13, 2017).
The unanimous opinion by Justice Werdegar (perhaps one of her last opinions before her retirement) confirms principles of civil discovery that will have broad application not only in PAGA cases, but also in class actions and in civil litigation generally.
Our prior decisions and those of the Courts of Appeal firmly establish that in non-PAGA class actions, the contact information of those a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief, without any requirement that the plaintiff first show good cause. Nothing in the characteristics of a PAGA suit, essentially a qui tam action filed on behalf of the state to assist it with labor law enforcement, affords a basis for restricting discovery more narrowly.
On its face, the complaint alleges Marshalls committed Labor Code violations, pursuant to systematic companywide policies, against Williams and others among its nonexempt employees in California, and seeks penalties and declaratory relief on behalf of Williams and any other injured California employees. The disputed interrogatory seeks to identify Marshalls’s other California employees, inferentially as a first step to identifying other aggrieved employees and obtaining admissible evidence of the violations and policies alleged in the complaint. The Courts of Appeal have, until the decision in this case, uniformly treated such a request as clearly within the scope of discovery permitted under Code of Civil Procedure section 2017.010. .... [T]he default position is that such information is within the proper scope of discovery, an essential first step to prosecution of any representative action.
In a class action, fellow class members are potential percipient witnesses to alleged illegalities, and it is on that basis their contact information becomes relevant. (Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 374; Crab Addison, Inc. v. Superior Court, supra, 169 Cal.App.4th at p. 969; Puerto v. Superior Court, supra, 158 Cal.App.4th at p. 1254.) Likewise in a PAGA action, the burden is on the plaintiff to establish any violations of the Labor Code, and a complaint that alleges such violations makes any employee allegedly aggrieved a percipient witness and his or her contact information relevant and discoverable.
[O]verlapping policy considerations support extending PAGA discovery as broadly as class action discovery has been extended. California public policy favors the effective vindication of consumer protections. (Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 374.) State regulation of employee wages, hours and working conditions is remedial legislation for the benefit of the state’s workforce. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026–1027.) Discovery of fellow consumer or employee contact information can be an essential precursor to meaningful classwide enforcement of consumer and worker protection statutes. (Pioneer Electronics, at p. 374; Crab Addison, Inc. v. Superior Court, supra, 169 Cal.App.4th at p. 968; Puerto v. Superior Court, supra, 158 Cal.App.4th at p. 1256.) Similar state policies animate PAGA. Representative PAGA actions “directly enforce the state’s interest in penalizing and deterring employers who violate California’s labor laws.” (Iskanian v. CLS Transportation Los Angeles, LLC, supra, 59 Cal.4th at p. 387; see Arias v. Superior Court, supra, 46 Cal.4th at pp. 980–981.) Hurdles that impede the effective prosecution of representative PAGA actions undermine the Legislature’s objectives. (See Iskanian, at p. 384.) It follows that in PAGA cases, as in the class action context, state policy favors access to contact information for fellow employees alleged to have been subjected to Labor Code violations.
Id. at 9, 11, 15, 16-17 (footnote omitted).
Id. at 20; see also id. at 31.
Id. at 20-21 (emphasis added).
The final section of the opinion discusses the defendant's privacy arguments. Slip op. at 22-32. The opinion explains that the plaintiff was "willing to accept as a condition of disclosure, and share the costs of, a Belaire-West notice to employees affording them an opportunity to opt out of having their information shared." Id. at 26 (citing Belaire-West Landscape, Inc. v. Superior Court, 149 Cal.App.4th 554 (2007)). Under such circumstances, the trial court's order imposing such a condition was appropriate, even though the trial court should have, but did did not, apply the governing balancing test stated in Hill. Id. at 24 (citing Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994)).

matches: v. v. v. v. v. v. v. v. v. v. v. v.


75-4101. Committee on surety bonds and insurance; composition; officers; meetings; compensation; acquisition of insurance, restrictions and exceptions. (a) There is hereby created a committee on surety bonds and insurance, which shall consist of the state treasurer, the attorney general and the commissioner of insurance or their respective designees. The commissioner of insurance shall be the chairperson of the committee and the director of purchases or the director's designee shall be ex officio secretary. The committee shall meet on call of the chairperson and at such other times as the committee shall determine but at least once each month on the second Monday in each month. Meetings shall be held in the office of the commissioner of insurance. The members of the committee shall serve without compensation. The secretary shall be the custodian of all property, records and proceedings of the committee. Except as provided in this section and K.S.A. 74-4925, 74-4927, 75-6501 through 75-6511 and K.S.A. 76-749, and amendments thereto, no state agency shall purchase any insurance of any kind or nature or any surety bonds upon state officers or employees, except as provided in this act. Except as otherwise provided in this section, health care coverage and health care services of a health maintenance organization for state officers and employees designated under subsection (c) of K.S.A. 75-6501, and amendments thereto, shall be provided in accordance with the provisions of K.S.A. 75-6501 through 75-6511, and amendments thereto.
(d) Any postsecondary educational institution as defined by K.S.A. 74-3201b[*], and amendments thereto, may purchase insurance of any kind or nature except employee health insurance. Such insurance shall be purchased on a competitively bid or competitively negotiated basis in accordance with procedures prescribed by the state board of regents. Such insurance may be purchased independent of the committee on surety bonds and insurance and without complying with K.S.A. 75-3738 through 75-3744, and amendments thereto. Such insurance shall be purchased from an insurance company authorized to transact business in the state of Kansas.
(e) The state board of regents may enter into one or more group insurance contracts to provide health and accident insurance coverage or health care services of a health maintenance organization for all students attending a state educational institution as defined in K.S.A. 76-711, and amendments thereto, and such students' dependents, except that such insurance shall not provide coverage for elective procedures that are not medically necessary as determined by a treating physician. The participation by a student in such coverage shall be voluntary. In the case of students who are employed by a state educational institution in a student position, the level of employer contributions toward such coverage shall be determined by the board of regents. The board of regents may adopt rules and regulations necessary to administer and implement the provisions of this section.
History: L. 1965, ch. 458, § 39; L. 1969, ch. 406, § 1; L. 1971, ch. 281, § 1; L. 1974, ch. 364, § 27; L. 1977, ch. 110, § 8; L. 1979, ch. 293, § 1; L. 1982, ch. 360, § 1; L. 1984, ch. 329, § 14; L. 1986, ch. 329, § 1; L. 1987, ch. 345, § 1; L. 1989, ch. 273, § 1; L. 2006, ch. 189, § 1; May 25.