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February 23, 2010
UNITED STATES, EX REL. WESTRICK, PLAINTIFFS,v.SECOND CHANCE BODY ARMOR, INC., ET AL., DEFENDANTS.
The government, by relator Aaron J. Westrick, filed a complaint against defendants Second Chance Body Armor, Inc., and related entities (collectively "Second Chance"), Toyobo Co., Ltd., Toyobo America, Inc. (collectively "Toyobo"), and individual defendants Thomas Bachner, Jr., Richard Davis, Karen McCraney, and James "Larry" McCraney, alleging violations of the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-33, as well as common law claims in connection with the sale of Zylon body armor. Toyobo moved to dismiss the suit by the government for failure to state a claim and sufficiently plead fraud. Because the government has sufficiently alleged its FCA and common law violations, Toyobo's motion to dismiss will be denied.
In May 1996, corporate defendants Second Chance and Toyobo contracted for Toyobo to supply Second Chance with the synthetic fiber "Zylon" for use in the manufacture of Second Chance bulletproof vests. (Am. Compl. ¶ 32.) Zylon was believed to be highly durable, have a long life cycle, and resist heat, prompting Second Chance to promote its new Ultima/Ultimax bulletproof vests as the "world's thinnest, lightest, and strongest armor" featuring the "world's strongest fiber, PBO Zylon." (Id. ¶¶ 39-40.) Second Chance sold over 66,000 vests between 1998 and 2004 to law enforcement agencies throughout the United States, including over 40,000 to the United States government. Each vest carried a five-year warranty. (Id. ¶¶ 27, 30.)
Beginning in July 1998, Toyobo and Second Chance discovered and exchanged communications about the degradation of Zylon fibers resulting from the exposure to light, heat and humidity. However, Toyobo continued to supply Zylon to Second Chance, which, in turn, sold the vests containing Zylon without warning purchasers and users about the potential strength loss or issuing a recall of existing vests. (Id. ¶¶ 45-62.) The government alleges that the defendants knew, within the meaning of the FCA, that the body armor was defective and that Zylon provided less protection than "[d]efendants had represented [and] warranted and/or [was] required by the contract specifications." (Id. ¶ 1.) Additionally, during 2001, Toyobo informed Second Chance and released additional data showing that it had not found any serious indication of Zylon strength degradation despite conflicting evidence in its possession. (Id. ¶¶ 58-59, 63.)
Following a Toyobo report revealing a dramatic drop in Zylon strength (id. ¶ 80), Second Chance and Toyobo held a "Crisis Management Meeting" in which they agreed that all communications related to Zylon "were to be 'pre-emptive, consistent, coordinated, and confidence inspiring.'" (Id. ¶ 81.) Second Chance asked Toyobo to remedy the problems with Zylon, as it considered the concerns with the material to be a "Toyobo problem." (Id. ¶ 85.) In response, Toyobo offered Second Chance a new volume discount program which resulted in a $6 million payment to Second Chance, retracted data showing dramatic drops in material strength, and assured Second Chance representatives that this strength would eventually level out. (Id. ¶¶ 86-88.) Despite these promises, Toyobo continued providing updates to Second Chance confirming that Zylon fiber lost strength through heat and moisture exposure. (Id. ¶ 92.)
In June 2003, a California police officer was shot and killed during a traffic stop when two bullets passed through the Second Chance Zylon vest he was wearing. (Id. ¶ 101.) That same month, a Pennsylvania officer was shot in the stomach and disabled when a bullet pierced the Second Chance Zylon vest he was wearing which had been made less than one year earlier. (Id. ¶ 102.) Second Chance then discontinued selling vests made of Zylon, notified purchasers of the degradation problem, offered options including an upgrade of existing vests or discounts on new vests and issued a safety notice calling for removing its vests containing Zylon from service. (Id. ¶¶ 104-05, 112.)
Aaron Westrick, a former employee of Second Chance, filed a qui tam complaint against Second Chance and Toyobo under the FCA, 31 U.S.C. §§ 3729-33. (Id. ¶ 5.) The government intervened under 31 U.S.C. § 3730(a)(2), and filed an amended complaint, adding four Second Chance executives as individual defendants ---Thomas Bachner, Jr., Richard C. Davis, Larry McCraney, and Karen McCraney. (Id. ¶¶ 5, 16-19.) The amended complaint asserted claims against all defendants for (1) violations of the FCA through presenting fraudulent claims, making false statements and conspiring to defraud, (2) common law fraud, and (3) unjust enrichment. (Id. ¶¶ 113-15, 116-18, 119-21, 122-30, 136-39.) Claims for payment by mistake and breach of contract were asserted against only Second Chance. (Id. ¶¶ 131-35, 140-43.) Toyobo filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) claiming that the government failed to plead fraud with the specificity required by Federal Rule of Civil Procedure 9(b), failed to plead factual allegations that Toyobo presented a false claim for payment or a false record or statement to the United States, failed to plead the existence of a conspiracy, and failed to plead factual allegations that supported any of its common law claims.*fn1 (Defs.' Mem. in Supp. of Mot. to Dismiss ("Defs.' Mem.") at 1-2.)
In evaluating a Rule 12(b)(6) motion, a court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [a court] may take judicial notice." Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)). A court considering a Rule 12(b)(6) challenge must accept as true any facts alleged by the plaintiff and grant him all reasonable inferences drawn from those facts, but need not accept either inferences unsupported by the facts or legal conclusions cast in the form of factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Rule 9(b), which applies to FCA actions,*fn2 requires that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be averred generally." Fed. R. Civ. P. 9(b). Motions to dismiss for failure to plead fraud with sufficient particularity are evaluated in light of the overall purposes of Rule 9(b) to "ensure that defendants have adequate notice of the charges against them to prepare a defense," United States ex rel. McCready v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 114, 116 (D.D.C. 2003), discourage "suits brought solely for their nuisance value" or as "frivolous accusations of moral turpitude[,]" United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir. 1981), and "protect reputations of . . . professionals from scurrilous and baseless allegations of fraud[.]" Id. at 1385 n.103 (quoting Felton v. Walston & Co., 508 F.2d 577, 581 (2d Cir. 1974)).
Rule 9(b) "does not abrogate Rule 8," and must be read in light of Rule 8's requirement that averments be "simple[,] concise and direct" and "short and plain statement[s]" of each claim. Joseph, 642 F.2d at 1386 (quoting Fed. R. Civ. P. 8); see also United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 258, 269 (D.D.C. 2002) ("While . . . Rule 9(b) requires more particularity than Rule 8, . . . Rule 9(b) does not completely vitiate the liberality of Rule 8."). In a qui tam case, Rule 9(b) requires that the pleader "'state the time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud[,]' . . . [and] individuals allegedly involved in the fraud." United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (quoting Kowal v. MCI Comm'ns Corp., 16 F.3d 1271, 1278 (D.C. Cir. 1994)). "In sum, although Rule 9(b) does not require plaintiffs to allege every fact pertaining to every instance of fraud when a scheme spans several years, defendants must be able 'to defend against the charge and not just deny that they have done anything wrong.'" Id. at 1259 (quoting United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001); accord McCready, 251 F. Supp. 2d at 116 ("A court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which she will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts." (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999))).
The FCA allows a private individual --- a relator --- to bring a cause of action seeking penalties and treble damages against anyone who "knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval[.]" 31 U.S.C. § 3729(a)(1) (1994).*fn3 See United States ex rel. Siewick v. Jamieson Sci. & Eng'g, Inc., 214 F.3d 1372, 1374 (D.C. Cir. 2000). "[T]he elements of section 3729(a)(1) are (1) the defendant submitted a claim to the government, (2) the claim was false, and (3) the defendant knew the claim was false." United States ex rel. Harris v. Bernad, 275 F. Supp. 2d 1, 6 (D.D.C. 2003). The FCA does not require proof of a specific intent to deceive when a defendant presents false or fraudulent claims to the government. 31 U.S.C. § 3729(b) (1994); United States v. TDC Mgmt. Corp., Inc., 24 F.3d 292, 296 (D.C. Cir. 1994). After relator Westrick filed his initial complaint, the government filed an amended complaint claiming that Second Chance made -- and that Toyobo caused to be made -- fraudulent claims seeking payment from the government and its grantees. (Am. Compl. ¶ 114.)
Toyobo moves to dismiss arguing that the complaint fails to provide the specific allegations required by Rule 9(b) to support liability under § 3729(a)(1). It contends that the government has not factually alleged that Toyobo knew of Second Chance's false claims for payment or that it acted in deliberate ignorance or reckless disregard for the truth. (Defs.' Mem. at 9.) Indeed, Toyobo contests that it presented any false statements to the government and asserts that liability is vested solely in Second Chance. (Id. at 10 ("Plaintiffs do not allege any facts demonstrating that Toyobo knew that Second Chance's Zylon-containing vests would not satisfy the five-year warranty. To the contrary, Plaintiffs' own account of the facts shows that Toyobo provided absolutely no warranties and refused requests by Second Chance that Toyobo provide a warranty on Zylon fiber.").) Toyobo insists that it updated Second Chance as to Zylon's degradation under certain conditions and that all fraudulent claims for presentment must be attributed solely to Second Chance.
A. Presentment
A "claim" includes "any request or demand, whether under a contract or otherwise, for money . . . which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money . . . which is requested or demanded, or if the Government will reimburse such contractor . . . for any portion of the money . . . which is requested or demanded." 31 U.S.C. § 3729(c) (1994).*fn4 The FCA covers claims presented directly to the government as well as claims presented to grantees who are subsequently reimbursed by the government. United States ex rel. Totten v. Bombardier Corp. ("Totten II"), 380 F.3d 488, 493 (D.C. Cir. 2004) ("[L]iability will attach if the Government --- . . . upon presentment of the claim --- reimburses the grantee for funds that the grantee has already disbursed to the claimant.").
The government alleges that Second Chance presented false or fraudulent invoices or claims for reimbursement through direct sales by Second Chance to federal agencies, sales to federal agencies through the government's supply schedule ("FSS"), and sales to state and local law enforcement agencies under a federal grant program, the Bulletproof Vest Partnership Grant Act ("BPVPGA").*fn5 (Am. Compl. ¶¶ 25-27, 30-31, 49, 54.) Second Chance also directly presented invoices to the government for two types of requests for reimbursement --- direct sales and FSS sales. Second Chance submitted invoices from the BPVGPA sales to state and local law enforcement agencies first to non-federal entities and then to the United States. (Id. ¶¶ 27, 30.)
Toyobo contends that the government does not allege that Toyobo itself presented any false claims to the government. (Defs.' Mem. at 10.) However, as is discussed below, the government has factually alleged a fraudulent scheme in which Toyobo played a part. "An argument that the presentation of the claims was the work of another is unavailing as a means to avoid liability under the False Claims Act." Pogue, 238 F. Supp. 2d at 266 (further noting that the "False Claims Act extends beyond the person making a false claim to 'one who engages in a fraudulent course of conduct' that induces payment by the government" (quoting United States v. Raymond & Whitcomb Co., 25 F. Supp. 2d 436, 445 (S.D.N.Y. 1999))); see also United States v. Bornstein, 423 U.S. 303, 306 (1976) (acknowledging that a subcontractor may be liable under the FCA where the contractor presented false claims for payment to the government).*fn6 Although Toyobo never warranted the Zylon material and Second Chance submitted the claims for payment (Defs.' Mem. at 11), the government has pled that Toyobo engaged in activity in concert with Second Chance that induced presentment of the false claims. Accordingly, submitting direct claims and reimbursed claims satisfies the FCA's presentment requirement. See Totten II, 380 F.3d at 493.
B. Fraud
Rule 9(b) requires that a complaint allege facts regarding a fraudulent request for payment with a higher degree of particularity. The FCA attaches liability not to underlying fraudulent activity unrelated to the claim for payment or to the government's wrongful payment, but to the claim for payment submitted. See United States ex rel. Totten v. Bombardier Corp. ("Totten I"), 286 F.3d 542, 551 (D.C. Cir. 2002). While, by itself, "the bare assertion that defendants delivered goods that did not conform to contractual specifications is not enough to state a violation of the FCA," id. (emphasis added), fraud is pled if a plaintiff alleges fraud in the inducement for payment. See John T. Boese, Civil False Claims and Qui Tam Actions 2-18 to 2-19 (3d ed. 2006). "[E]ven in the absence of evidence that the claims were fraudulent in themselves," claims that were submitted under a contract procured by fraud can be actionable. United States ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 393 F.3d 1321, 1326 (D.C. Cir. 2005) (stating that Congress intended that "each and every claim submitted under a contract . . . or other agreement which was originally obtained by means of false statements or other corrupt or fraudulent conduct . . . constitutes a false claim" (quoting S. Rep. No. 99-345, at 9 (1986))); see also United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 199 (D.C. Cir. 1995) (allowing FCA liability to attach because the defendant made an initial misrepresentation about its ability to comply with contractual terms, inducing the government to enter into the contract, and finding that "this original misrepresentation tainted every subsequent claim made in relation to the contract, including [the defendant's] claims for payment"). At the Rule 12(b)(6) stage, the government is required merely to allege with factual specificity that defendants duplicitously induced the government to pay for a product, not to prove the "specific fraudulent scheme upon which the Complaint is based." (Defs.' Mem. at 15.) See McCready, 251 F. Supp. 2d at 118 ("[A] plaintiff need not plead his legal theory of fraud in the complaint; the complaint must only plead the facts that form the basis for the fraud.").*fn7
Here, the government alleges that Second Chance predicated each Zylon vest sale and each consequent invoice submission upon a fraudulently represented five-year warranty despite the fact that Second Chance and Toyobo knew the vests lost strength when exposed to sunlight, high temperatures and humidity (Am. Compl. ¶¶ 27, 30-31, 54), inducing the government to pay the claims.*fn8 The government has pled fraudulent requests for payment with sufficient particularity such that Toyobo is more than able to "defend against the charge[s] and not just deny that [it] ha[s] done anything wrong." Lee, 245 F.3d at 1052 (quoting Neubronner v. Milken, 6 F.3d 666, 671 (9th Cir. 1993)).
As it must, the government also sets out in detail "the time, place and content" of the fraud, "identif[ies] individuals allegedly involved in the fraud[,]" and makes plain what was "retained or given up as a consequence of the fraud." Williams, 389 F.3d at 1256 (citations omitted); accord Totten I, 286 F.3d at 552 (requiring a relator to "set forth an adequate factual basis for his allegations [regarding the submission of false claims] . . . , including a more detailed description of the specific falsehoods that are the basis of his suit"). For example, contents of the alleged fraud --- that Toyobo retracted negative data contemporaneously with its offer of a $6 million rebate or discount program for continued purchase of Zylon fibers, and made promises to Second Chance that degradation studies would "level out" after Toyobo's "fiber strength tests on woven Zylon fabric . . . showed a greater and more serious degradation than Toyobo's previously published data of unused Zylon fiber" --- are averred with detail. (Am. Compl. ¶¶ 87-89, 107.) Toyobo's actions may constitute the underlying fraudulent conduct leading to Second Chance's submission of false claims. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 544-45 (1943) (finding several contractors liable because the language of the FCA "indicate[s] a purpose to reach any person who knowingly assisted in causing the government to pay claims which were grounded in fraud, without regard to whether that person had direct contractual relations with the government").
The government further alleges the time span --- from May 1996 until October 2003 --- during which Toyobo partnered with and supplied defective Zylon fiber to Second Chance.*fn9 (Am. Compl. ¶¶ 32-33, 107.) Cf. Williams, 389 F.3d at 1257 (finding that the complaint only "nebulously allege[d]" the period in question and did not allege a start date). Additionally, it was during a three-year period from October 1998 until at least July 2001 that Toyobo and Second Chance were allegedly silent about the increasing research showing the high rates of Zylon fabric degradation. The government provides numerous dates of specific memos, faxes, meetings, and sales events at or during which the parties agreed to withhold or downplay the discoveries regarding Zylon. (See, e.g., Am. Compl. ¶¶ 67, 68, 70, 75, 107.)
While the government claims that fraud was committed broadly throughout the United States, it specifically alleges the location of meetings at which the fraudulent scheme was planned or furthered. (See, e.g., id. ¶¶ 81, 88.) The government also specifies the identities of Second Chance executives, named as individual defendants, who were involved in presenting false claims and were present at specific meetings and signed letters or sent faxes warranting -- or causing their subordinates to falsely warrant -- Second Chance Zylon vests for five years. (See, e.g., id. ¶¶ 60-62, 64, 88, 93, 96-97.) Although the government does not name Toyobo executives who participated in the fraudulent scheme, this has not frustrated Toyobo's ability thus far to plead responsively or defend itself, as is clear from the extensive arguments on the merits propounded in its briefs.*fn10
While the D.C. Circuit "require[s] pleaders to identify individuals allegedly involved in the fraud" under Rule 9(b), Williams, 389 F.3d at 1256, the Williams court disapproved of that complaint's failure to identify individual defendants involved where the relator had worked with both defendant companies for five years. Id. at 1257. There is no similar allegation here that relator Westrick, a Second Chance employee, had ever worked with Toyobo over an extended period of time. Further, the Williams court found that the government's failure to identify specific individuals was but one of multiple shortcomings of the complaint. Id.; see also Lee, 245 F.3d at 1051 ("[Relator] did not specify the types of tests implicated in the alleged fraud, identify the [defendant's] employees who performed the tests, or provide any dates, times, or places the tests were conducted."). Under these circumstances, the absence of named Toyobo employees should not render the otherwise detailed complaint deficient under Rule 9(b). See United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 509 (6th Cir. 2007) ("[W]here the corporation is the defendant in a FCA action, we hold that a relator need not always allege the specific identity of the natural persons within the defendant corporation that submitted the false claims. Instead, such information is merely relevant to the inquiry of whether a relator has pled the circumstances constituting fraud with particularity." (emphasis added)).
Finally, the government makes clear that all monies paid by the government either directly or as reimbursement for falsely-warranted Zylon vests were "given up as a consequence of the fraud." Williams, 389 F.3d at 1256; see Corsello v. Lincare, Inc., 428 F.3d 1008, 1013 (11th Cir. 2005) (reasoning that plaintiff's complaint did not satisfy Rule 9(b) because it used vague allegations which "failed to provide a factual basis to conclude fraudulent claims were ever actually submitted to the government in violation of the False Claims Act"). Given that numerous contracts and purchases by disparate entities are involved in this action, it is sufficient that the government demands "the return of all payments by the United States directly or indirectly to Second Chance for Zylon vests . . . for fiscal years 1998 to the present time." (Am. Compl. ¶ 138.) The government's averments of fraud satisfy the requirements of Rule 9(b).
C. Knowledge
A person acts knowingly if he acts with "actual knowledge, deliberate ignorance or reckless disregard of the truth or falsity of information." 31 U.S.C. § 3729(b). Because Rule 9(b) permits knowledge to be pled generally, there is no basis for dismissal for failure to plead knowledge with particularity. The government maintains that although Toyobo knew of Zylon's deficiencies, Toyobo continued in its partnership with Second Chance to market Zylon-fiber vests, while concealing evidence of and issuing misleading statements about degradation. Toyobo maintains that the government has not pled facts adequate to meet the knowledge requirement because it has not shown that Toyobo knowingly made fraudulent claims or that it knew that Second Chance presented any claims to the government. (Defs.' Mem. at 11.) However, the government has factually alleged that Toyobo knew of and participated in making Second Chance's warranty to the government. (See Am. Compl. ¶ 54.) The government's allegations as to knowledge are sufficient.
The government alternatively pleads a claim under 31 U.S.C. § 3729(a)(2) (1994), which created a cause of action against anyone who "knowingly makes, uses, or causes to be made or used, a false statement to get a false or fraudulent claim paid or approved by the Government." Section 3729(a)(2) attaches FCA liability to a defendant who prepares in support of a claim a statement that it knows to be a misrepresentation, even if that defendant did not actually submit either the claims or the statement to the government. Totten II, 380 F.3d at 501 (noting that "(a)(2) is complementary to (a)(1), designed to prevent those who make false records or statements . . . from escaping liability solely on the ground that they did not themselves present a claim for payment or approval").
Congress amended § 3729(a)(2) in the Fraud Enforcement and Recovery Act of 2009 ("FERA"). The amended provision, 31 U.S.C.A. § 3729(a)(1)(B) (West 2010), creates a cause of action against anyone who "knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim." FERA provided for § 3729(a)(1)(B)'s retroactive application "to all claims under the False Claims Act . . . that are pending on or after" June 7, 2008. P.L. 111-21, at 1625. Because this suit was pending on June 7, 2008, the amended provision applies here. The amended provision "'legislatively overrules' the holding" of Allison Engine Co., Inc. v. United States ex rel. Sanders, 128 S.Ct. 2123 (2008). United States v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87, 106 (D.D.C. 2009). Sanders held that the original false statements provision, § 3729(a)(2), required the government to prove that "a defendant must intend that the Government itself pay the claim." 128 S.Ct. at 2128. Congress intended for the amended provision to eliminate any intent requirement, S. Rep. No. 111-10 (2009), and instead for liability to attach when a record or statement has "a natural tendency to influence" or "is capable of influencing[] the payment or receipt of money or property." 31 U.S.C.A. § 3729(b)(4) (West 2010). Additionally, to state a claim under § 3729(a)(1)(B), the plaintiff must show that the created statement or record was false and that the defendant knew the statement or record was false. Harris, 275 F. Supp. 2d at 6. The government alleges that Toyobo knowingly misrepresented and concealed facts, creating a false record that in part caused Second Chance to submit a false claim to the government. This more than satisfies the materiality requirement. Because the government has pled with sufficient particularity the fraud involved, it has stated a cognizable § 3729(a)(1)(B) claim as to Toyobo.
Anyone who "conspires to defraud the Government by getting a false or fraudulent claim allowed or paid" may be subject to 31 U.S.C. § 3729(a)(3) (1994) liability.*fn11 The FCA does not define a conspiracy, but courts have held that general civil conspiracy principles apply to FCA conspiracy claims. See United States ex rel. Durcholz v. FKW, Inc., 189 F.3d 542, 545 n.3 (7th Cir. 1999); United States v. Bouchey, 860 F. Supp. 890, 893 (D.D.C. 1994) ("the government must show: (1) that defendant conspired with one or more persons to have a fraudulent claim paid by the United States, (2) that one or more of the conspirators performed any act to have such a claim paid by the United States, and (3) that the United States suffered damages as a result of the claim.").*fn12
Arguing that Toyobo and Second Chance together intended to defraud buyers of Zylon vests, the government cites Toyobo's six million dollar "rebate" payment to Second Chance for the continued use of Zylon fiber and Toyobo's January 2002 retraction of its earlier data showing a dramatic drop in Zylon fiber strength as conspiratorial activities. (Gov't Opp'n to Defs.' Mot. to Dismiss ("Gov't Opp'n") at 37-38.) Despite Toyobo's claim that the government's complaint contains no factual allegations supporting an inference of conspiracy (Defs.' Mem. at 24), the government specifically alleges that the parties acted with intent to defraud consumers when they decided not to warn customers in December 2001 as they originally proposed to do (Am. Compl. ¶¶ 83, 120), and Second Chance continued selling vests with a five-year warranty until September 2003 when it offered customers options to replace defective vests. (Id. ¶¶ 104-05; see also Gov't Opp'n at 37-38.) The detailed assertion about the meetings between Toyobo and Second Chance fulfills the requirements for a conspiracy claim under § 3729(a)(3) at the motion to dismiss stage in the litigation. Cf. United States ex rel. El Amin v. George Washington Univ., 26 F. Supp. 2d 162, 165 (D.D.C. 1998) (citing the complaint's failure to "identify any agreement between the parties to defraud the government or to engage in any act that could constitute an attempt to defraud the government" (emphasis omitted)); Corsello, 428 F.3d at 1014 (rejecting a plaintiff's conspiracy claim where he failed to provide specific allegations of an agreement or overt act).
A plaintiff in an FCA action may plead -- if not ultimately recover upon -- alternative common law theories. See Fed. R. Civ. P. 8(d)(3) (allowing a party to plead "as many separate claims or defenses as it has regardless of consistency"); United States ex rel. Purcell v. MWI Corp., 254 F. Supp. 2d 69, 79 (D.D.C. 2003). A successful claim for common law fraud requires "(1) a false representation (2) in reference to material fact (3) made with knowledge of its falsity (4) and with the intent to deceive (5) with action taken in reliance upon the representation." Pence v. United States, 316 U.S. 332, 338 (1942). The government has alleged that Toyobo failed to disclose or misrepresented evidence of, among other things, the material fact of Zylon's degradation, with knowledge of the misrepresentation of its data and intention to deceive both Second Chance and consumers. (See Am. Compl. ¶¶ 1, 54, 63, 75, 107.) The United States has adequately alleged that Second Chance and Zylon vest buyers relied upon Toyobo's misrepresentations. (Id. ¶¶ 127-28.)
A plaintiff claiming unjust enrichment must show that a benefit was conferred upon a defendant, the defendant accepted the benefit, and it would be unjust for the defendant not to pay the plaintiff the value of the benefit. Miller v. Holzmann, Civil Action No. 95-1231 (RCL), 2007 WL 710134, at *7 (D.D.C. Mar. 6, 2007). "[U]njust enrichment must be determined by the nature of the dealings between the recipient of the benefit and the party seeking restitution, and those dealings will necessarily vary from one case to the next." 4934, Inc. v. D.C. Dep't of Employment Servs., 605 A.2d 50, 56 (D.C. 1992); accord In re Lorazepam & Clorazepate Antitrust Litig., 295 F. Supp. 2d 30, 50-51 (D.D.C. 2003). The In re Lorazepam court refused to dismiss an action for unjust enrichment brought by a group of plaintiffs, including insurance companies, against drug manufacturers for payments made to reimburse subscribers for prescriptions. 295 F. Supp. 2d at 51. The court held that the theory of unjust enrichment could apply to indirect payments because plaintiffs had properly alleged defendants' enrichment to the plaintiffs' own detriment and not just to the detriment of plaintiffs' subscribers. Id.
Toyobo argues that the government never conferred any benefit upon it because all federal monies were paid to Second Chance. (Defs.' Mem. at 28-29.) However, the government alleges that payment for Second Chance's submissions was based upon Toyobo's false statements and omissions, and Toyobo, as an indirect recipient of the government's payments, was unjustly enriched to the government's disadvantage. (Am. Compl. ¶ 139.) Toyobo does not dispute that it has retained all monies from Zylon sales to Second Chance and the subsequent sales of Zylon vests to the government and its grantees.
Because plaintiffs have stated claims under the FCA and the common law for fraud and unjust enrichment, Toyobo's motion to dismiss will be denied. Plaintiffs have pleaded their allegations regarding fraud with sufficient particularity to meet the standards articulated under Rule 9(b). Accordingly, it is hereby
ORDERED that Toyobo's motion [25] to dismiss be, and hereby is, DENIED.
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My secret regret it is doing methamphetamine and dangerous drugs for over 20 years in a marriage that is twenty five years old. And the regret of the money, the time, and the dangers of drug use without my family knowing or being aware of it. I do the drugs because of the character flaw with myself.
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The Wastewater Treatment Facility, located at 249 Bradford Street, is a tertiary treatment plant that uses ultra violet disinfection instead of chlorine to treat all sewage from the City of Barrie before sending it into Lake Simcoe. The facility receives domestic, commercial and industrial wastewater and provides a level of treatment to meet the water quality standards of Lake Simcoe.
The sanitary system is a series of pipes specially designed to transport the millions of litres of wastewater generated each day. Sewer piping is categorized by the type of flow it transports namely sanitary, storm and combined sewers. The City of Barrie system is constructed as a separated sanitary and separated storm sewer collection system. The sanitary system is directed to the Wastewater Treatment Facility. The storm system is direct to storm water management systems strategically located throughout the city.
The sewer system receives wastewater from the community and conveys it by gravity flow systems. Gravity flow sewer piping is laid with a slope steep enough to maintain a wastewater flow velocity of approximately 0.75 metres per second. This velocity is sufficient to keep all of the materials present suspended in its flow. In areas where it is geographically impossible to allow for gravity flow, lift stations are provided to receive wastewater from low lying areas and pumps are used to transport the wastewater for further transport by gravity sewers.
For a detailed breakdown of the treatment process as well as the historical timeline of pollution control development in Barrie download the Water Pollution Control Centre pamphlet.
The environmental services laboratory is located within the administration building at the Wastewater Treatment Facility (WwTF). It provides analysis and support for the Environmental Services branch including the WwTF Operations as well as Environmental Response and Investigation. The Laboratory. Analysis is performed on a routine basis including, but is not limited to; Ammonia, Phosphorus, pH, Turbidity, Solids analysis and Biological Oxygen Demand. The immediate availability of results aids in plant performance evaluation and compliance assurance of the plant's discharge with the Ministry of Environment Guidelines. Internal quality and assurance control are equivalent to those set out by regulatory authorities.
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The who's who of the music business turned up on the red carpet for the 55th annual Grammy awards at Nokia Theatre in Los Angeles. The 2013 55th annual Grammy Awards will be rebroadcast on Vuzu (DStv channel 116) on Monday 11 February at 19:30.
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Brand new high specification duplex apartment located within close proximity of Eastleigh train station and Southampton airport.
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September 11, 1958
FRYEv.PENNSYLVANIA RAILROAD COMPANY, APPELLANT.
Appeal, No. 174, April T., 1957, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1952, No. 412, in case of Walter W. Frye et ux. v. Pennsylvania Railroad Company. Judgment reversed.
Robert W. Smith, Jr., with him Smith, Best and Horn, for appellant.
James Gregg, with him Dan V. Crowell, and Portser, Gregg & Nichols, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 368]
The plaintiffs were the owners of 10 acres of land in Hampfield Township, Westmoreland County. The land was used for truck gardening and for the raising of chickens, both commercially. On the premises there were a dwelling house, chicken coops and other outbuildings. The tract fronted approximately 650 feet on a public road and, at the same width, extended southerly on a descending grade for about 1130 feet to a large stream known as Sewickley Creek. A branch of the defendant's railroad crossed the tract in a southwesterly direction, on a line about 750 feet from the public road, at an elevation from 2 to 4 1/2 feet above the grade of plaintiffs' land. The right-of-way of the railroad was 60 feet wide and it divided plaintiffs' land into two parcels - the one north of the railroad contained 7 acres and the other between the railroad and Sewickley Creek about 3 acres. A stream, normally small, runs southerly in a drainage ditch, from a large culvert on the main road, through a 24-inch metal or tile pipe installed by the railroad under its right-of-way, into Sewickley Creek. Rains, characterized as heavy but not unprecedented, fell on April 28 and again on June 15, 1951. The drainage pipe under the railroad had become clogged by debris at its opening on the north line of the railroad right-of-way. The flow of water down the stream on plaintiffs' land was thus impeded by the choked drain and water was diverted, which flooded an area of about 3 acres adjoining the railroad right-of-way on the upgrade side, to a depth of from 2 to 3 feet; on both occasions the land remained under water for from two to four days. Because of the condition of the land which resulted from the floods, it was impossible for
[ 187 Pa. Super. Page 369]
plaintiffs to have the 3 acre area plowed or otherwise worked for the 1951 growing season.
The three acres involved, because of their fertility were very well adapted to truck gardening and plaintiffs' testimony was that the fair rental value of the three acres was between $500 and $700 per year. Plaintiffs' suit was filed on July 14, 1952 and damages were limited to the period ending on that date. The loss of only one year's crop for the period was involved, under plaintiffs' proofs. In addition, however, the court, over defendant's objection, permitted a witness for plaintiffs to testify as to the cost of removing the debris from the clogged stream and restoring plaintiffs' land to its former normal condition.
The damage in this case did not result from rainfalls so extraordinary that their consequences could not have been foreseen. The injury therefore cannot be attributable to an act of God for which no one was liable. Helbling v. Cemetery Co., 201 Pa. 171, 50 A. 970, was an action for damages to a dwelling house, caused by an accumulation of flood water which had been diverted from the opening into a storm sewer caused by a clogged grating or crib. In affirming the plaintiff's right of recovery, the Supreme Court said: "As the injury to the plaintiff's house was not of a permanent character, the measure of damages was the cost of restoring the property to its former condition, together with compensation for the loss of its use." Substantially the same rule had been enunciated in Eshleman v. Martic Township, 152 Pa. 68, 25 A. 178. Cf. also, Hoffman v. Coal Co., 16 Pa. Superior Ct. 631; Penna. R.R.Co. v. Pittsburgh, 335 Pa. 449, 463, 6 A.2d 907 and 56 Am. Jur., Waters, § 87.
A qualified witness of the plaintiffs estimated the cost of restoring the property to its former undamaged condition at $1,450. The restoration cost was an element
[ 187 Pa. Super. Page 370]
of damage but the admission of this testimony and its submission to the jury was reversible error for the reason that the witness' estimate was based upon 1956 costs and there was no evidence that there had been no change in prices between July 14, 1952 and the time in 1956 when the witness inspected the property. Davidson v. Sanders et al., 1 Pa. Superior Ct. 432. Cf. McClosky v. Dubois Borough, 4 Pa. Superior Ct. 181; Keats v. Gas Co. of Luzerne Co., 29 Pa. Superior Ct. 480. The measure of damage on this phase of the case was the restoration cost at 1952 prices.
A retrial of the case is necessary for the above reason.
Judgment reversed with a venire.
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America's Test Kitchen From Cook's Illustrated
Spicing Up The GrillSeries Website »
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Test cook Bridget Lancaster uncovers the secrets to making the best Spicy Pork Tacos on the grill. Next, equipment expert Adam Ried reveals his favorite grilling tools in the Equipment Corner, and test cook Julia Collin Davison shows host Chris Kimball how to make perfect Jerk Chicken at home. And finally, gadget guru Lisa McManus reveals her favorite mortar and pestle.
CommentsShare your thoughts, questions, and comments on "America's Test Kitchen From Cook's Illustrated" here.
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March 31, 2009
IN THE MATTER OF DANIEL LUIZZI, APPELLANT,v.SUSAN COLLINS, RESPONDENT.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Sweeney, J.), entered December 31, 2007, which, after a hearing, dismissed his petition for a change of custody of the parties' children.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN and CHERYL E. CHAMBERS, JJ.
(Docket No. V-16526-04)
ORDERED that the order is affirmed, without costs or disbursements.
"The court's primary concern in making a determination regarding custody or visitation is the best interests of the child" (Matter of Kilstein v MacDowell, 226 AD2d 727, 727; see Matter of Lichtenfeld v Lichtenfeld, 41 AD3d 849, 849). "To formulate a sound basis for its action, the court should seek the expertise of other professionals and ascertain the wishes of the children, particularly where they are of a sufficient age to articulate their needs and preferences to the court" (Matter of Kilstein v MacDowell, 226 AD2d at 727). Here, the Family Court has conducted at least two sets of hearings over the course of several years and heard from numerous nonparty witnesses. The court ordered and reviewed forensic analyses and it ascertained the wishes of the teenage children. Contrary to the father's contention, the Family Court's determination has a sound and substantial basis in the record and it should not be disturbed (id.).
Moreover, "[t]he mere fact that the [attorney for the children] did not adopt a position that was favorable to [the father] does not demonstrate bias" (Matter of Hanehan v Hanehan, 8 AD3d 712, 714). "The role of the [attorney for the children] is to be an advocate for and represent the best interests of the child[ren], not the parents" (Matter of Brittany W., 25 AD3d 560, 560; see Matter of Hanehan, 8 AD3d at 714). Contrary to the father's contention, the attorney for the children took an active role in the proceedings and adequately represented the children's interests (see Matter of Echols v Weiner, 46 AD3d 825, 825; Matter of West v Turner, 38 AD3d 673, 674; Matter of King v King, 266 AD2d 546, 547).
MASTRO, J.P., DICKERSON, BELEN and CHAMBERS, JJ., concur.
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Ted J. Kaptchuk, OMD
Acknowledgment: The author thanks Robb Scholten, June Cobb, Pat Wilkinson, John C. Wilson, Maria Van Rompay, and Marcia Rich for editorial and research assistance.
Grant Support: In part by the National Institutes of Health (1R01AT00402-01, U24 AR43441, and 1R21AT00553), the John E. Fetzer Institute, the Waletzky Charitable Trust, the Friends of Beth Israel Deaconess Medical Center, and American Specialty Health Plan.
Requests for Single Reprints: Ted J. Kaptchuk, OMD, Beth Israel Deaconess Medical Center, Harvard Medical School, 330 Brookline Avenue, Boston, MA 02215.
Kaptchuk TJ. The Placebo Effect in Alternative Medicine: Can the Performance of a Healing Ritual Have Clinical Significance?. Ann Intern Med. 2002;136:817-825. doi: 10.7326/0003-4819-136-11-200206040-00011
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Ava Munro
Twitter Nail Polish Debate Goes Viral: Welcome To #TheShoe
Folks on Twitter are debating which nail polish a woman should use to match her shoes — apparently it's not as simple as it sounds.By Jake Godin | July 10, 2015
So there's this shoe…
"Get ready, the newest Internet debate is here and it's mind blowing," said a KCEN anchor.
Ava Munro, who uses the Twitter handle @totallymendes, tweeted to her followers a simple question — which nail polish fits her shoe better?
Article Continues Below


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text: Home Gallery Video Budweiser Clothing Drive Bud Light: Clothing Drive More naked office hijinks Published on Jan 25, 2010 Editor's Pick Bud Light follows up Swear Jar with this spot, which has office workers stripping down for the brew. Adland is fond of workplace flesh exposure - as seen in this Rolling Rock ad from 2007 and a recent Career Builder spot. Rate this Ad You must be registered to rate the ad. Please Login or Register Now About CreditsDateJan 25, 2010Agency:DDB ChicagoArt Director:Galen GrahamAssociate Creative Director:Galen GrahamClient:BudweiserCopywriter:Jason KarleyArt Director:Jamie OvercampAssociate Creative Director:Jason KarleyGroup Creative Director:Mark GrossVP Creative Director:Chris RoeVP Creative Director:Chuck RachfordProducer:Scott KemperProduction Company:Tool of North AmericaDirector:Erich JoinerExecutive Producer:Brian LattExecutive Producer:Jennifer SiegelDigital Executive Producer:Dustin CallifLine Producer:Joby OchsnerDirector of Photography:Mark PlummerProduction Designer:Samantha GoreEditorial:Whitehouse/ChicagoEditor:Matthew WoodProducer:Kristin BranstetterOnline Company:FilmworkersArtist:Rob ChurchhillSound Design:Another Country Tagsalcohol CategoryTVC GenreVisual Latest Creativity News on Ad Age 1stAveMachine, Click 3X, Humble Add Director Duos Lowe's Latest Spot Is 'Multi-Porpoise' Romance, Bromance Ruined by a Cheeky Skywriter in Slim Jim's New Spot Advertisement Ad Age Events Nov 02 Los Angeles, CA SummitAd Age Brand Summit The Ad Age Brand Summit in Los Angeles peels apart the layers of brand building with a carefully crafted roster of top marketing, technology, and creative leaders. Learn more Related work Bud Light: Labels Wieden + Kennedy - New York Bud Light: Equal Pay Wieden + Kennedy - New York Bud Light: Rainbow Billboard Wieden & Kennedy New York Want to see your work in our gallery? Submit now


text:
MY Music Challenge: Colbie Caillat vs. G.R.L.
Poll: MY Music Challenge: Colbie Caillat vs. G.R.L.
Voting ends at 9pm on 7/10. Until then, keep voting!
Hall of Fame
Congrats Tegan and Sara!! They won again last night, making it their fifth win, giving them a spot in the MY Music Challenge Hall of Fame! Congratulations!
Challenger: Colbie Caillat 'Try'
At the age of 22, Malibu native Colbie Caillat had a breakout year with her debut album, "Coco," and the singles, "Bubbly" and "Realize." She won a GRAMMY for her collaboration with Jason Mraz on "Lucky," and for her backing vocals on Taylor Swift's album, "Fearless."
Challenger: G.R.L. 'Ugly Heart''
G.R.L. are Natasha, Paula, Simone, Emmalyn and Lauren, and were formed by Robin Antin, and are from the US, Canada, and the UK. G.R.L. are featured on Pitbull's "Wild Wild Love," and their song "Vacation" was on "The Smurfs 2" soundtrack.
Vote for your favorite and come back tomorrow to see who will be crowned the CHAMPION and who will be challenging them for the title!
James TW- 'When You Love Someone'
Cobi- 'Don't You Cry For Me'
Grouplove- 'Welcome To Your Life'
Andy Grammer- 'Fresh Eyes'
Passenger- 'Somebody's Love'
We The Kings- 'Sad Song'
Dagy- 'Backbeat'
Gwen Stefani- 'Misery'
The Lumineers- 'Ophelia'
DNCE- 'Toothbrush'
Parachute- 'Without You'
Strumbellas- 'Spirits'
Conrad Sewell- 'Remind Me'
Shawn Hook- 'Sound Of Your Heart'
Demi Lovato - 'Neon Lights'
Sara Bareilles - 'I Choose You'
Phillip Phillips - 'Raging Fire'
Andy Grammer- 'Back Home'
Daughtry - 'Battleships'
Eric Hutchinson - 'Tell The World'
OneRepublic - 'Love Runs Out'
Us The Duo - 'No Matter Where You Are'
Rachele Royale - 'Unscrew U'
ZZ Ward - 'Last Love Song'
Tegan and Sara - 'I Was A Fool'
GRL - 'Ugly Heart'
The Script - 'Superheroes'
Phillip Phillips - 'Unpack Your Heart'
Matt Nathanson feat. LOLO - 'Headphones'
Gavin DeGraw - 'Fire'
Dirty Heads - 'My Sweet Summer'
Danny Mercer - 'Who Are You Loving Now?'
Jamie Scott - 'Unbreakable'
Ingrid Michaelson - 'Afterlife'
Bea Miller - 'Young Blood'
Naughty Boy ft. SAM ROMANS - 'Home'
Hoodie Allen ft. Ed Sheeran - 'All About It'
Andy Grammer - 'Honey, I'm Good'
The Veronicas - 'You Ruin Me'
The Ting Tings - 'Wrong Club'
Fifth Harmony - 'Sledgehammer'
Rachel Platten - 'Fight Song'
Lifehouse - 'Hurricane'
Christian Burghardt - 'Safe Place To Land'
MAGIC! - 'No Way No'
Andrew McMahon in the Wilderness! - 'Cecilia and the Satellite'
Adam Lambert - 'Ghost Town'
Daya - 'Hide Away'
New Politics - 'West End Kids'
Nick Fradiani - 'Beautiful Life'
Smallpools - 'Dreaming'
Leona Lewis - 'Thunder'
One Direction - 'Drag Me Down'
Gavin James - 'Bitter Pill'
Rob Thomas - 'Hold On Forever'
Andy Grammer - 'Good To Be Alive'
Marc Scibilia - 'How Bad We Need Each Other'
Pentatonix - 'Can't Sleep Love'
Kelly Clarkson - 'Pieces By Pieces'
Sara Bareilles - 'She Used To Be Mine'
Adam Lambert - 'Another Lonely Night'
DNCE - 'Cake By The Ocean'
Lukas Graham - '7 Years'
Blue October - 'Home'
Hudson Thames ft. Hailee Steinfeld - 'How I Want Ya'
Daughtry - 'Torches'
Nathan Sykes ft. Ariana Grande - 'Over And Over Again'


text:
For the second week in a row, Long County ended its football game in a deadlock, tying Bradwell Institute 22-22 Friday in Ludowici.
FPCA took on the Generals from Georgia Christian in Valdosta Friday night, and forced overtime, but fell 32-26.
The Long County softball team picked up its first region win Tuesday since moving up to a 2-AAA schedule.
Bradwell Institute was in Brunswick Tuesday and hosted the Lady Pirates Thursday in region 2-6(A) softball games. The Lady Tigers fell in both games 17-5 and 14-2 respectively.
For the second week in a row, Long County ended its a football game in a deadlock, tying Bradwell Institute 22-22 Friday in Ludowici.
Though Bradwell Institute (1-2) may be in Region 2-AAAAAA and Long County High School (1-1-1) in Region 2-AAA, the football teams go toe-to-toe Friday.
After an early bye-week, the Liberty County Panthers will host New Hampstead at Donell Woods Stadium Friday at 7:30 p.m.
Friday was a historic night for the FPCA Highlanders, who narrowly beat the Monsignor Donovan Rams 45-42.
Bradwell Institute dropped three softball games in the past week.
YMCA hosts 27th
From the opening kickoff Friday, it was clear this was going to be Bradwell Institute's night.
On Thursday the Long County High School softball team traveled over to Nahunta to take on Brantley County.
In a game that went back and forth all night, Long County and New Hampstead ended their contest on Friday in a 20-20 tie.
A big seventh inning by the Appling County softball team helped them claim a 12-3 win over Liberty County High School on Lady Panther field Thursday afternoon.
Bradwell Institute will host Tattnall County this Friday. Kickoff is set for 7:30 p.m. at Hokey Jackson Stadium.
Liberty County boys' basketball team started the season with an 83-75 win over Jenkins Saturday in Savannah.
First Presbyterian Christian Academy boys basketball team went 22-4 overall and 10-0 in their region last year to win their fourth state basketball title.
The Bradwell Institute Lady Tigers have not made the basketball playoffs since the 2012-13 season. However, with a new region of only five teams, their ...
Long County's boys and girls each had the annual Blue and White scrimmages Saturday to help prepare for the upcoming season.
When the Liberty County Panthers boys basketball team went 28-1 and won the AAAA state championship last season, everyone knew that there were some special ...
Liberty County had its annual softball banquet last week to honor the players, coaching staff and volunteers who made the 2016 season possible.
© 2016 Hinesville Publishing - All Rights Reserved
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Who is Andrew Elric, and whatas he doing here? Says heas here with answers. As Andrew would explain it, aWe live our lives shrouded with mysteries. Weare compelled to show faith in explanations that we really donat believe inathe origins of our being, the nature and existence of God, are we alone in the universe? Less weighty issues as well as stuff wead just like to knowawho really shot Kennedy? What happened to Jimmy Hoffa? You think about it and know there really are answers to all of it, but you donat have access to them. Iave got those answers and, more importantly, proof for all of it. Some of it you can hold in your hand. You follow the news, you know this place is going to blow. Iam here to try and stop it. Religion, race, nationalism . . . We all come from the same place. But the world has suffered through too many charlatans and false prophets. Iam going to use these proofs to get you savages to settle down.a Andrew has recruited renowned attorney, author, and sports agent Aron Samuelson to help him get the word out. Aron, in the throes of a midlife crisis, is looking for the next abig thinga in his life. As they say, be careful what you wish for.At the time of this printing, the whereabouts and condition of Aron Samuelson are not known. ... According to some pundits who track this kind of endeavor, we are at risk in making Answers available to the public to the ... A native of New Rochelle, New York, Samuelson earned a BA from Brown University with a dual degree in political science and economics. ... to a very successful enterprise that came to be known as ASA (Aron Samuelson and Associates) International Management, anbsp;...
|Alan Kohls
|Xlibris Corporation - 2015-07-31


text:
Piquant Heart Casserole
|Lamb hearts
|1 1⁄2 Pound
|4 Pint
|1⁄2 Teaspoon
|Allspice berries
|Black peppercorns
|Bay leaf
|1 Large
|Worcestershire sauce
|1 Teaspoon
|2 Teaspoon
|Lemon juice
|1 Tablespoon
|All purpose flour
|3 Tablespoon
|Finely chopped dill
|3 Tablespoon
Remove the gristle and tubes from the hearts.
Peel the onion and slice thinly.
Put the water, salt, allspice berries, peppercorns, bay leaf, hearts and onion in a large saucepan and bring to the boil.
Cover and simmer for 3 hours.
Meanwhile, peel the cucumber and halve lengthwise.
Remove the seeds with a spoon and cut the halves into finger-width slices.
Remove the hearts from the pan and cut into chunks.
Strain the cooking liquid and return 1 pint to the pan.
Bring back to the boil and add the cucumber.
Cover and cook gently for 15 minutes.
Stir in the heart chunks, Worcestershire sauce, sugar and lemon juice.
Dissolve the flour in 4 tablespoons of the hot liquid and add to the pan.
Simmer, stirring, until thickened, then cook gently for a further 5 minutes.
Sprinkle over the dill and serve with boiled rice.


text:
18K Yellow Gold and Sterling Silver Earrings with a Pink Amethyst Embellishment
For sale: watches, jewelry, accessories, clothes, fashion and beauty in Nigeria
18K Yellow Gold and Sterling Silver Earrings with a Pink Amethyst Embellishment
Price in Naira: NGN 57,549
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Ad description
These are delightfully crafted drop earrings showcasing a round pink amethyst accented popcorn circle motif. Polished 18K yellow gold detailing and tiny beads by the top complete the look of this sterling silver pair. Secured with french wire backings.Metal Name: Yellow Gold & Sterling SilverMetal Content: 18KWidth: 0.75 inLength: 1.50 inShape: RoundNumber Of Stones: 2Backing: French WireItemProperty: 1.50 in
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Steering you in the right direction for your Driver Training Needs!
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April 1, 2008
ELEKTRA ENTERTAINMENT GROUP, INC., ET AL. PLAINTIFF,v.RAE J. SCHWARTZ DEFENDANT.
Plaintiffs are recording companies that own exclusive rights to sound recordings under United States copyright law. In this action, plaintiffs allege that defendant, Rae J. Schwartz, has infringed these exclusive rights by downloading and distributing certain sound recordings using an online media distribution network, specifically over a peer-to-peer network. This case is one of many similar cases proceeding in this court and throughout the country in which groups of record companies have joined together to sue individuals in an attempt to combat and deter what the recording industry perceives as massive copyright infringement over the internet ("Recording Industry Association of America, or 'RIAA,' cases").
Schwartz has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on the grounds that plaintiffs have not pleaded the allegedly violative acts with sufficient specificity to state a claim for which relief may be granted. For the reasons set forth below, Schwartz's motion for judgment on the pleadings is denied.
Plaintiffs filed their complaint against Schwartz on July 18, 2006. In it, plaintiffs allege that they own valid copyrights in certain songs that they believe Schwartz infringed. Specifically, plaintiffs' complaint states,
Plaintiffs are informed and believe that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings [as defined elsewhere in the complaint], to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others. In doing so, Defendant has violated Plaintiffs' exclusive rights of reproduction and distribution. Defendant's actions constitute infringement of Plaintiffs' copyrights and exclusive rights under copyright.
Compl. ¶ 14. Because this action is part of a coordinated effort on behalf of the recording industry, the complaint at issue on this motion mirrors in all material respects the complaints that have been filed in the other RIAA cases -- differing only in the specific copyrighted recordings alleged to have been infringed. In fact, on July 31, 2006, this court held that an almost identical complaint in another RIAA action sufficiently pleaded copyright infringement to survive a motion to dismiss. Maverick Recording Co. v. Goldshteyn, No. 05 Civ. 4523, 2006 U.S. Dist. LEXIS 52422 (E.D.N.Y. July 31, 2006).
After the complaint in Godshteyn was held to be sufficient, however, the Supreme Court decided Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), which held that a complaint should have been dismissed for failing to sufficiently plead an antitrust violation under Section 1 of the Sherman Act. Defendant argues that Twombly requires a heightened standard for fact pleading, which now entitles him to judgment on the pleadings, notwithstanding this court's pre-Twombly decision in Godshteyn.
Federal Rule of Civil Procedure 12(c) provides, "After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings." "In deciding a Rule 12(c) motion, [courts] apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006) (internal citation and quotation omitted). A claim of copyright infringement must meet the pleading requirements of Federal Rule of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief," and must state: "[1] which specific original works are the subject of the copyright claim, [2] that plaintiff owns the copyrights in those works, [3] that the copyrights have been registered in accordance with the statute, and [4] by what acts during what time the defendant infringed the copyright." Goldshteyn, 2006 U.S. Dist. LEXIS 52422, at *4-5 (quoting Franklin Electronic Publishers, Inc. v. Unisonic Products Corp., 763 F. Supp. 1, 4 (S.D.N.Y. 1991)).
When this standard was applied in Godshteyn, a complaint identical to the complaint Schwartz challenges survived a motion to dismiss. The defendant in Godshteyn had argued that the complaint should be dismissed because (1) it did not allege with sufficient specificity the acts constituting copyright infringement or the times during which those acts occurred, and (2) that plaintiffs' allegations, pleaded on information and belief, failed to state a claim because they lacked facts indicating the source of plaintiffs' belief; both arguments were found unavailing. Goldshteyn, 2006 U.S. Dist. LEXIS 52422, at *4. In particular, it was held that, The complaint's failure to describe specific individual instances of infringement is not fatal to plaintiffs' claim; such details are rightly the province of the discovery phase and summary judgment. Indeed it would be difficult, as a practical matter, for plaintiffs to allege the exact times at which Goldshteyn downloaded particular recordings.
Id. at *9. Thus, Goldshteyn held that the complaint satisfied Rule 8's lenient pleading standard and alleged sufficient facts to support a claim for copyright infringement.
It would seem that the reasoning in Godshteyn, when applied to this case, should lead to the same outcome. Schwartz, however, bases his motion for judgment on the pleadings entirely on the proposition that Twombly changed the applicable standard, and thus, the reasoning applied in Godshteyn is no longer viable.
The complaint at issue in Twombly alleged a violation of Section 1 of the Sherman Act, which requires a "'contract, combination . . ., or conspiracy, in restraint of trade or commerce.'" Twombly, 127 S.Ct. at 1961. Specifically, the complaint alleged that defendants, "major telecommunications providers[,] engaged in certain parallel conduct unfavorable to competition." Id. at 1961. The complaint did not allege an express contract or agreement, but claimed that an illegal conspiracy could be inferred from parallel business behavior. This sort of conscious parallelism, absent certain additional factors, does not constitute an antitrust conspiracy. See E. I. Du Pont de Nemours & Co. v. FTC, 729 F.2d 128, 139 (2d Cir. 1984) (citing Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537 (1954)). Thus, because the complaint lacked a "factual context suggesting agreement, as distinct from identical, independent action," Twombly held that the complaint must be dismissed, concluding, "we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1961, 1974. In sum, Twombly requires "enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" Transhorn, Ltd. v. United Techs. Corp. (In re Elevator Antitrust Litig.), 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974).
Twombly noted that its holding was intended to "address the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct," Twombly, 127 S.Ct. at 1963, and to that end the Court was motivated, at least in part, by the concern that antitrust discovery can be particularly onerous, id. at 1966-67 ("[P]roceeding to antitrust discovery can be expensive."). The Second Circuit, however, has not limited Twombly's holding to the antitrust context. In re Elevator Antitrust Litig., 502 F.3d at 50 n.3.
In this case, it is clear that the complaint alleges enough facts to constitute a plausible claim of copyright infringement, and, thus, is distinguishable from the Twombly complaint. The complaint found insufficient in Twombly made allegations of conscious parallelism -- from which an antitrust conspiracy could have been inferred -- but lacked factual allegations in connection with a specific agreement or contract. Thus, because the factual allegations in the complaint could not alone satisfy the concerted action element of a Section 1 violation, the Twombly complaint did not "raise a right to relief above the speculative level." See Twombly, 127 S.Ct. at 1965. By contrast, the complaint in this case names the copyrighted recordings that were allegedly infringed and describes the manner in which they were infringed. Indeed, if these allegations in the complaint are proven true, under no circumstances will Schwartz not have infringed plaintiffs' copyrights. Therefore, the complaint certainly raises a "reasonable expectation that discovery will reveal evidence" of infringement. See id. The same cannot be said of the complaint in Twombly, which would have required an inference of an antitrust conspiracy merely from the allegation of conscious parallelism. Accordingly, the copyright infringement claim alleged by the plaintiffs here is more plausible than the antitrust conspiracy claim alleged in Twombly. Plaintiffs were not required to allege specific, individual instances of infringement, which, as Goldshteyn held, is rightly the province of the discovery phase and summary judgment. At this stage of the litigation, it is sufficient that the plaintiffs have alleged enough facts to support a claim of copyright infringement that is at least plausible.
Plaintiffs have pleaded a claim of copyright infringement which meets Rule 8's standards. The complaint sets forth the acts allegedly constituting copyright infringement with sufficient specificity to put Schwartz on notice of the grounds for their claim. Moreover, as required by Twombly, the complaint alleges enough facts to constitute a plausible, and not just a conceivable, claim of infringement. For these reasons, Schwartz's motion for judgment on the pleadings is denied.
David G. Trager United States District Judge
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decided: February 10, 1988.
CO-OPERATIVE SHIPPERS, INC., PLAINTIFF-APPELLEE/CROSS-APPELLANT,v.THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, DEFENDANT-APPELLANT/CROSS-APPELLEE
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 2359--Marvin E. Aspen, Judge.
Coffey and Ripple, Circuit Judges, and Campbell, Senior District Judge.*fn*
CAMPBELL, Senior District Judge.
In 1980, Congress enacted the Staggers Rail Act, 49 U.S.C. § 10101 et seq. and in doing so "unambiguously expressed its interest in allowing free competition, to the maximum extent possible, to govern the financial health of the railroad industry." ICC v. Texas 479 U.S. 450, 93 L. Ed. 2d 809, 107 S. Ct. 787, 793 (1987). As part of the Staggers Act, Congress enacted 49 U.S.C. § 10730(c) which states in pertinent part, "A rail carrier . . . may establish rates for transportation of property under which the liability of the carrier for such property is limited to a value established by . . . a written agreement between the shipper and carrier. . . ."
To further promote deregulation of the railroad industry, Congress also enacted 49 U.S.C. § 10505(f) which authorized the Interstate Commerce Commission (ICC) to exempt rail transportation from regulation. Pursuant to this authority, the ICC did exempt rail transportation from regulation. See 46 Fed. Reg. 14,348 (1981); see also ICC v. Texas, 107 S. Ct. at 789. However, Congress still mandates that rail carriers who desire to limit their liability to shippers do so pursuant to 49 U.S.C. § 10505(e) which states:
No exemption order issued pursuant to this section shall operate to relieve any rail carrier from an obligation to provide contractual terms for liability and claims which are consistent with the provisions of section 11707 of this title. Nothing in this subsection or section 11707 of this title shall prevent rail carriers from offering alternative terms nor give the Commission the authority to require any specific level of rates or services based upon the provisions of section 11707 of this title. (emphasis added).
Section 11707, to which section 10505(e) refers provides that a common carrier is liable for the actual loss or injury to property it transports.*fn1 49 U.S.C. § 11707(a)(1). However, § 11707(c)(4) states that a carrier "may limit its liability for loss or injury of property transported under section 10730 of this title." Thus, a rail carrier may limit its liability to a shipper if the carrier can satisfy the requirements of section 10730(c) and section 10505(e).
Our jurisdiction is pursuant to 28 U.S.C. 1291. For the reasons set forth below, we conclude that the rail carrier before us has satisfied the requirements of section 10730(c) and section 105O5(e). Accordingly, the district court's decision is reversed in part, affirmed in part and remanded.
In the present case, The Atchison, Topeka and Santa Fe Railway Company (Santa Fe) defendant/appellant/cross-appellee, a rail carrier, sought to limit its liability to Co-Operative Shippers, Inc. (Co-Op) plaintiff/appellee/cross-appellant. Co-Op is an association of shippers which consolidates the freight of its members and tenders the combined loads to carriers, thereby obtaining for its members the benefit of the carriers reduced transportation rates for volume shipping. Co-Op is managed by Coordinated Traffic Services which received $25 million in revenue in 1983.
Santa Fe was contacted in September 1982 by Ronald Salbego, the General Manager for Co-Op's management company. Salbego asked Santa Fe's representative, John Beck, about the possibility of Co-Op entering into a volume contract with Santa Fe. Salbego dep. at 37. Beck forwarded a copy of Santa Fe's volume transportation contract titled "Contract T-116" to Salbego.
On November 3, 1982 Co-Op's Assistant Operations Manager Joseph Garrity telephoned Santa Fe's Mr. Beck and requested a change in the terms of the contract. The negotiations concerned Co-Op's quota of trailers per year imposed by Santa Fe in Contract T-116. Salbego dep. at 42. Santa Fe agreed to Co-op's proposed modification. Co-Op never sought to negotiate the liability terms of the transportation contract. Garrity dep. at 15.
Mr. Beck forwarded the changed contract to Mr. Salbego on November 17, 1982 and Salbego executed the contract on November 22, 1982. Contract T-116 states that ATSF Circular TOFC-1 and ATSF Circular No. 7000 are incorporated by reference as terms and conditions governing all trailer-on-flatcar (TOFC) shipments delivered by Co-Op to Santa Fe. Co-Op had received copies of TOFC-1 and Circular 7000 prior to Co-Op's execution of Contract T-116. Salbego dep. at 40.
The pertinent provisions in TOFC-1 and Circular 7000 are as follows:
ATSF Circular No. TOFC-1
Item Subject Application
37 SUIT TO In the event that suit must be
COLLECT filed to collect any charge arising
under this contract, the amount
sued upon shall include interest
from the date of shipment at the
maximum rate of interest allowed
by law in the jurisdiction in which
suit is filed. Court costs and reasonable
attorney's fees shall be added to such
principal and interest. (emphasis added).
52 ATSF ATSF shall not be liable for any
LIABILITY loss or damage to lading or to
FOR LOSS vehicles caused by an act of God,
AND DAMAGE the public enemy, act or default
of the shipper or receiver, inherent
nature of the commodity, authority
of law, riots or strikes;
or which occurs while the vehicle
is outside the possession of
All persons involved with a
shipment shall, to the fullest
possible extent, mitigate loss and
damage on an equitable basis.
ATSF liability for loss or damage
to the loading (sic) in any single
vehicle shall be subject to released
values as established by ATSF;
but in no case shall liability for loss
and damage be more than $200,000, unless
shipper declares a higher value in
the manner prescribed in Item 57. . . .
(emphasis added).
56 RELEASED If the rate circular quotes "released
VALUE RATES value rates," transportation at
such rates is subject to all the
terms of this offer except that
such rates are based upon a maximum
value of the lading per hundred
pounds in the amount stipulated
in the rate circular. Released value
rates will be applicable only if the
Shipping Order is endorses by consignor,
before its receipt by ATSF; "RELEASED
VALUE SHIPMENT: RELEASED VALUE $cwt."
and released value amount must
be inserted by consignor. Recovery
for delay, loss, or damage to
lading will be governed by the
rules herein but in no event will
payment by ATSF exceed released
value amount. (emphasis added).
57 SECTION As an alternative to terms for
11707 RATES claims and liability for loss or
damage to lading stated herein,
ATSF also offers to transport
shipments between points on its
line subject to contractual terms
which are consistent with those
stated in Revised Interstate Commerce
Act 49 USC, Section 11707, regarding
loss or injury to lading caused by
ATSF. Such shipments will be subject
to the same terms and conditions
respecting loss, damage, or delay
to lading and claims therefor as
if such shipments had moved
upon the Uniform Straight Bill of
Lading. Rates for this transportation
will be described as "Section 11707
If Section 11707 disability is
desired, different shipping documents
will be used and a different procedure
must be strictly adhered to, without
exception or modification:
(1) Consignor must give notice
to ATSF, prior to delivery
of vehicle to ATSF, as
to the nature and declared
value of the freight
and the plan of service desired.
There will be an additional
charge. See rate circular.
(2) Notwithstanding any other
provision of this offer, a
shipment moving at Section
11707 rates must be
tendered as a complete
unit, accompanied by the
shipping order and receipt
which is endorsed "Subject
to Section 11707 Terms"
and which shows the exact
commodities and the declared
value thereof.
(3) Shipment must be fully prepaid.
Collect shipments will not be
accepted. (emphasis added).
ATSF Circular No. 7000
Released Value Not Exceeding
Commodity (Cents Per Pound) Except Noted
Glassware $.35 per lb.
The alternative claim and liability provisions may be requested subject to a surcharge equal to five (5) percent of the applicable freight charges assessed but not less than $100 per shipment. (emphasis added).
Mr. Salbego relied upon Co-Op's Operations Department, including Mr. Garrity and Mr. James Lyons to review the circulars. Salbego dep. at 40. Garrity reviewed the circulars but he failed to consider the liability or released value terms contained in TOFC-1 and Circular 7000. Garrity dep. at 30. Mr. Lyons also reviewed the circulars prior to the contract's execution but he never sought to determine the liability and released value terms prior to the contract's execution. Lyons dep. at 54.
On March 23, 1983 a shipment of glass laboratory equipment tendered by Co-Op to Santa Fe pursuant to Contract T-116 was involved in a train derailment. Co-Op sued Santa Fe to recover the full actual value of the damaged goods. Santa Fe admitted liability for the loss, but argues that Santa Fe's liability is limited to a released rate of $.35 per pound as set forth in the November 22, 1982 transportation contract.
After the close of discovery Santa Fe filed a motion for summary judgment and Co-Op filed a motion for partial summary judgment, each taking opposing views upon the applicability of the released value provision. On July 3, 1985 the district court, in a memorandum opinion and order, rejected Santa Fe's motion and held that Co-Op was entitled to the full actual value of its damaged goods. The court left undecided the issue of what the actual value was. See Co-Operative Shippers . Atchison, T. & S.F.R. Co., 613 F. Supp. 788, 795 (N.D. Ill. 1985). However, the district court rejected Co-Op's secondary argument that Contract T-116 authorized the recovery of Co-Op's court costs, interest and reasonable attorney's fees. Id. Santa Fe filed a notice of appeal and Co-Op filed a notice of cross-appeal to the court's July order. These were later dismissed, however, as premature.
On November 25, 1985 the district court issued another memorandum opinion and order and held that its July order was not a final decision pursuant to 28 U.S.C. § 1291. See Co-Op Shippers v. Atchison, T. & S.F.R. Co., 624 F. Supp. 797, 799 (N.D. Ill. 1985). The district court found that Co-Op was due prejudgment interest and established that the interest rate ran from the date of derailment to the date of entry of judgment at the rate of 8.434 percent, compounded daily. Id. at 801. The district court found further that the interest rate ran from the date of derailment to the date of entry of judgment at the rate of 8.434 percent, compounded daily. Id. at 801. The district court found further that the salvage expenses incurred by Co-Op were reasonable and held Co-Op was entitled to judgment in the sum of $73,656.46 plus prejudgment interest.*fn2 Id. Santa Fe filed a new notice of appeal and Co-Op filed a new notice of cross-appeal.
Carriers may partially limit their liability on a "released valuation" basis whereby in exchange for a low transportation rate, the shipper is deemed to release the carrier from liability beyond a stated amount. See e.g. Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1315 (2d Cir. 1977). The released valuation limitations bind the shipper, however, only if the shipper however, only if the shipper has notice of the rate structure and is given a full and fair opportunity to obtain greater protection. Id.; see also New York, New Haven & Hartford R.R. Co. v. Nothnagle, 346 U.S. 128, 135-36, 73 S. Ct. 986, 990, 97 L. Ed. 1500 (1953); Union Pacific R.R. Co. v. Burke, 255 U.S. 317, 321-23, 41 S. Ct. 283, 284-85, 65 L. Ed. 656 (1921); and Boston & Maine R.R. v. Piper, 246 U.S. 439, 444 38 S. Ct. 354, 355, 62 L. Ed. 820 (1918).
This is not a case in which a carrier sought to limit its liability to a shipper by mere implication. Instead, Co-Op made a well informed, deliberate and absolute choice. Cf. Anton v. Greyhound Van Lines, Inc., 591 F.2d 103, 108 (1st Cir. 1978) (carrier failed to properly limit its liability with an unsophisticated shipper where there was no written contract and no fair opportunity to choose between higher or lower liability by paying a correspondingly greater or lesser charge). In the instant case, it is undisputed that Co-Op held itself out as an experienced shipper. Thus, Contract T-116 was negotiated between parties of at least equal commercial awareness. See Mechanical Technology, Inc. v. Ryder Truck Lines, 776 F.2d 1085, 1088 (2d Cir. 1985); see also Ruston Gas Turbines, Inc. v. Pan American World Airways, 757 F.2d 29, 32-33 (2d Cir. 1985). It is also undisputed that the general manager for Co-Op's management company as well as Co-Op's Operations Department management personnel had ample opportunity to read Contract T-116 and ATSF Circulars TOFC-1 and No. 7000 before the transportation agreement was executed. In reality, it is difficult to imagine how any sophisticated shipper such as Co-Op could have had more opportunity or incentive to familarize itself with the liability provisions of Contract T-116. See, e.g. Deiro v. American Airlines, Inc., 816 F.2d 1360, 1365 (9th Cir. 1987).*fn3
49 U.S.C. § 10730(c) permits a rail carrier to establish limited liability transportation rates by written agreement between the rail carrier and shipper. Here, Santa Fe and Co-Op executed a written agreement, Contract T-116, and Santa Fe thereby fulfilled the requirements of 49 U.S.C. § 10730(c).
49 U.S.C. § 11505(e) permits a rail carrier to offer alternative terms notwithstanding section 11707, as long as the shipper's opportunity to receive section 11707 terms are also provided in the contract. See Yamazen U.S.A. v. Chicago and Northwestern Transp., 790 F.2d 621, 623 (7th Cir. 1986). In the present case Santa Fe offered Co-Op an alternative term, released value liability. However, Co-Op still had a full and fair opportunity to receive section 11707 full actual value liability terms pursuant to Item 57 of TOFC-1 and Item 1017 of Circular 7000. We find Co-Op's argument that it did not have a full and fair opportunity to receive section 11707 full actual value liability terms unpersuasive. Co-Op's argument is further weakened by its admission that Co-Op's sophisticated shipping management personnel more or less skipped over the liability provisions. See Salbego dep. at 40; Garrity dep. at 30; and Lyons dep. at 54.
Co-Op also argues that Santa Fe's liability cannot be limited to released values because Items 52, 56 and 57 of TOFC-1 are confusing. Item 52 plainly states that Santa Fe's liability for loss or damage "shall be subject to released values as established by ATSF. . . . unless [the] shipper declares a higher value in the manner prescribed by Item 57." Item 57 of TOFC-1 states, "If section 11707 disability is desired, different shipping documents will be used and a different procedure must be strickly adhered to, without exception or modification. . ." Item 56 of TOFC-1 merely sets out a procedure whereby a shipper is allowed to notify Santa Fe by a "shipping order" of its request for a specific rate conditioned upon a released value for a particular commodity. Absent any notification that a shipper desires a specific released value rate for a specific commodity, Item 52 of TOFC-1 provides that the released values established by Santa Fe will apply. These established released values are found in Item 1016 of Circular 7000. Co-Op did not notify Santa Fe by a shipping order that it desired a specific released value rate for its shipment of glass laboratory equipment. Co-Op's argument is unpersuasive. We conclude that Santa Fe's liability to Co-Op is limited to a released rate of $.35 per pound as stated in their volume transportation contract. Thus, we reverse this part of the district court's decision.
Santa Fe argues that the district court erred when it granted summary judgment in favor of Co-Op on the issue of storage charges for the damaged goods. Santa Fe believes there was a genuine issue of material fact as to the reasonableness and foreseeability of the storage charges claimed by Co-Op. We agree.
The district court ruled that the deposition testimony referred to by both parties made clear that expenses paid and efforts of Co-Op to salvage the goods were reasonable. See Co-Operative Shippers, Inc. v. Atchison, T. & S.F.R. Co., 624 F. Supp. at 801. However, the deposition of Albert DiVito, Co-Op's Philadelphia representative, reveals that arguably little was done to salvage the damaged goods between the end of March and June or July of 1983, a three to four month period. DiVito dep. at 58. There also appears to have been some lengthy negotiating between Co-Op and VWR Scientific, the consignee of the shipment, as to what to do with the damaged goods. DiVito's deposition suggests VWR wanted to "dump the whole thing" at one point while Co-Op wanted to put the freight in "some kind of order" (i.e. get a detailed list of what was broken in each case) to "get the claim down to a reasonable level." DiVito dep. at 59-61. There are also discussions about a change in management at VWR in the middle of negotiations. DiVito dep. at 61. We note all this testimony comes from merely four pages of DiVito's deposition.
Co-Op contends that Santa Fe, in opposition of Co-Op's motion for entry of judgment in sum certain argued below, merely argued that the DiVito testimony was insufficient in explaining the reasonableness of the charges. We conclude, however, that the DiVito testimony outlined above in and of itself creates a genuine issue of material fact as to the reasonableness of the storage charges and the time expended in the salvage effort.
There is also a genuine issue as to whether the storage costs, if they are deemed excessive, amounted to consequential, unforeseeable damages outside Santa Fe's realm of responsibility. Item 52 of TOFC-1 states that "in no event shall ATSF be liable for special or consequential damages." See also F.J. McCarty Co. v. Southern Pacific Co., 428 F.2d 690, 693 (9th Cir. 1970).
Santa Fe argued below that there was no indication the shipment, when tendered, contained laboratory glassware and that salvage costs for this type of shipment constituted consequential damages. In an effort to speed up the shipping process Co-Op supplied Santa Fe with weekly manifests rather than individual shipping orders. Co-Op's management personnel admit that often neither Co-Op nor Santa Fe knew what commodities were included in a shipment until after the fact. See Lyons dep. at 45. Santa Fe should have its day in court on this matter, as well.
We make no effort to determine the weight of the arguments from both sides on the salvage issue. It may be as Co-Op argues that this shipper merely took time to find the best salvage deal. We believe, however, that a ruling at the summary judgment stage was premature and we accordingly remand this decision to the district court for a hearing on this issue.
Any prejudgment interest granted to Co-Op by the district court would be inappropriate at this point, in light of our decision today. Santa Fe has not had the use of monies which were properly Co-Op's and hence there is no need to make Co-Op whole under the accepted rationale behind prejudgment interest awards. See generally Michaels v. Michaels, 767 F.2d 1185, 1204 (7th Cir. 1985); and George R. Hall, Inc. v. Superior Trucking Co., 532 F. Supp. 985, 996-997 (N.D. Ga. 1982). Any award of prejudgment interest at this point would be an abuse of discretion.
Co-Op's last argument is that it is entitled to recover costs, fees and interest pursuant to Item 37 of Circular TOFC-1. The district court found that Item 37 was intended to apply only to suits initiated by Santa Fe for the collection of freight charges from shippers or consignees and not to actions such as the one brought by Co-Op. See Co-Op Shippers, 613 F. Supp. at 795. We agree and affirm this part of the district court's decision.
For the reasons set forth above, this case is reversed in part, affirmed in part and remanded for a hearing on the issue of storage charges.
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Banana Blossom
Banana Blossom is the flower of the banana plant (also known as banana heart or simply banana flowers) is used in Southeast Asian, Telugu, Tamil, and Bengali, either raw or steamed with dips or cooked in soups and curries. The flower's flavor resembles that of artichoke's. As with artichokes, both the the fleshy part of the petals and the heart are edible.
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Banana Blossom Video
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Banana Blossom Recipes
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Home :: Wedding Bands :: Diamond Wedding Bands :: Designer White Gold :: Diamond Wedding Band
14K White Gold
0.32 cts.
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