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United States Department of Labor Employee s Compensation Appeals Board))) and)) U.S. POSTAL SERVICE, POST OFFICE, ) Bellman, NJ, Employer)) DAWN P. PIANO, Appellant Appearances: Thomas R. Please,

(FN1) This Court reviewed the complaint as of June 12, 2003, and on Aug. 31, 2003, the case was reassigned to Judge James A. Cattle for assignment.(FN2) The Court's assignment of the case to Judge Cattle was based on his recommendation.(FN3) Judge Cattle was assigned to the case solely with the purpose of having the action heard by the District Court.(FN4) On July 21, 2003, the State filed a motion for dismissal of the appeal, seeking to dismiss the claim of breach of fiduciary duty based on the United States Court of Appeals for the Second Circuit's decision in Dauber v. Merrill Dow Pharmaceuticals., 509 U.S. 579, 113 S. Ct. 2701, 122 L. Ed.2d 495 (1993). On July 24, 2004, the Court denied the State's motion for dismissal of liability on the grounds that the dismissal should be sustained because defendants did not raise any argument in argument. (FN5) For the reasons stated, this Court concludes that the trial court did not err in dismissing the appeal. FN1. “For purposes of this section, a defendant's conduct must be 'conduct of the sort that is sufficient to give [appellant] a reasonable inference that the defendant had reason to know that the conduct was unlawful.' ...” Fed. R. Evid. 702(8).(FN2) (Deleted by amendment, LDS. & religious SC & SC, by ch. 85-1. See LD. of elders & laity, c. 82-2, s. 19.2.) (FN3) We granted Bellman's extension to Sept. 11, 2003, because the parties filed a stipulation of fact by that date in which they agreed on all the issues. The stipulation provides a thorough understanding of exactly what happened on Jan. 11, 2002, and the issues at stake in the appeal. Bellman is to receive a fee of 9,500. (FN4) The State's motion for dismissal of damages is DENIED.(FN5) (Deleted by amendment, LDS. & religious SC & SC, by ch. 85-1. See LD. of elders & laity, c. 82-2, s. 19.

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