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United States District Court, E.D. Pennsylvania
July 28, 2004.
UNITED STATES OF AMERICA ex rel., PAUL E. ATKINSON, Plaintiff,
PENNSYLVANIA SHIPBUILDING CO. and FIRST FIDELITY BANK, N.A., Defendants.
Memorandum and Order
This is a qui tam action brought by Paul E. Atkinson pursuant
to the False Claims Act ("FCA"), 31 U.S.C. § 3729. The lawsuit
stems from a pattern of fraud allegedly perpetrated by defendants
Pennsylvania Shipbuilding Co. ("Penn Ship" or "PSB") and First
Fidelity Bank, N.A. ("Fidelity") on the United States Navy in
connection with the bidding for, and construction of, two Henry
J. Kaiser class fleet Oiler ships. The case, originally filed on
December 5, 1994, features an extensive factual and procedural
history, both of which have been delineated at length in two
prior opinions by this court. See Atkinson v. Pennsylvania
Shipbuilding Co., 2000 WL 1207162 (E.D. Pa. Aug. 24, 2000)
("Atkinson I"); Atkinson v. Pennsylvania Shipbuilding Co.,
255 F. Supp.2d 351 (E.D. Pa. 2002) ("Atkinson II").
In his third amended complaint Atkinson asserted twelve claims
against defendants, all but one of which I dismissed in Atkinson
II. Presently before the court are defendants' motions for
summary judgment with respect to plaintiff's remaining claim,
which asserts that defendants conspired to defraud the U.S. Navy in violation of the FCA.
Having considered each of the parties' submissions and the
arguments raised therein, I will grant summary judgment for
Because the vast majority of the factual and procedural history
of this ten-year old case is not relevant to the motions before
me, I will reiterate only those facts which give rise to
plaintiff's claim for conspiracy.
In 1984, the Navy solicited bids for the construction of oil
tanker ships. Penn Ship sought this contract ("Oiler Contract")
and ultimately was determined to have submitted the lowest bid.
Before the Oiler Contract was awarded to Penn Ship, however, the
Navy requested that Penn Ship secure it against the reprocurement
costs it would incur should Penn Ship default on the
contract.*fn1 To address the Navy's concerns, Penn Ship
proposed to secure the Navy through the creation of a trust
which, by naming the Navy as the beneficiary, would provide a
layer of financial comfort and security to the Navy.*fn2
Penn Ship then drafted this Trust Indenture akin to an escrow
agreement for which Fidelity served as trustee.*fn3 The trust indenture transferred to Fidelity, as trustee for the
Navy,*fn4 second lien security interests in (1) all but
seven acres of the Chester shipyard, where Penn Ship's building
operations were centered; (2) all fixtures and equipment owned by
Penn Ship; (3) "Drydock No. 4," a floating, 70,000-ton capacity
drydock; and (4) "Sun 800," an 800-ton capacity floating crane.
These liens secured the Navy for up to $20 million in
reprocurement costs in the event that Penn Ship's contract was
terminated for default. The Navy's security interests, however,
were subordinated to $18 million in existing first liens and
mortgages, and provided that Penn Ship had the right to
substitute additional first liens up to $24 million. See Trust
Indenture, PSB App. at 1226. On March 26, 1985, the trust
indenture was finalized and signed by all parties.
The Navy awarded the Oiler contract to Penn Ship on May 6,
1985. Pursuant to its terms, the trust indenture became effective
immediately upon execution of the T-AO contract between Penn Ship
and the Navy for construction of the oil tankers. See Trust
Indenture, PSB App. at 1226. Under paragraph 14 of the trust
indenture Penn Ship was also required, upon award of the
contract, to "promptly file all mortgages, financing statements
and other documents necessary to perfect the Trustee's secured
status under the Security Instruments." PSB App. at
1236.*fn5 Penn Ship, however, never recorded the documents
required to perfect Fidelity's security interest in the various property and equipment identified by the trust indenture.
PSB App. at 706.*fn6
Penn Ship experienced financial difficulty in the late 1980s
and was unable to complete its responsibilities under the Oiler
contract. After two unsuccessful attempts to modify the financing
and timing of Penn Ship's construction of the tankers, see Mod.
5 and Mod. 11, the Navy and Penn Ship decided on August 24, 1989,
to end their contract, terminate the trust indenture, and
transfer the two original oil tankers to another shipyard. See
Mod. 17, PSB App. 159-225.
Modification 17 established Penn Ship's liability for excess
reprocurement costs as a fixed liability of $19 million, which
was satisfied by the transfer of Drydock No. 4 to the Navy, and a
contingent liability of up to $5.09 million. PSB App. at 159-225;
see also id. at 1054-55. The contingent liability would occur
if Penn Ship was able to generate excess cash flow by liquidating
its assets over the thirteen-month period following execution of
Mod. 17. Id. As Penn Ship was unable to produce excess cash
flow, the contingent liability never arose. Pl.'s Statement of
Facts in Response to PSB's Facts ("Pl.'s Facts"), ¶ 87. On
January 12, 1992, Penn Ship and the Navy entered into
Modification 20, pursuant to which the Navy fully released Penn
Ship from all responsibility and liability under the Oiler
contract. PSB App. at 1090-95.
II. PROCEDURAL BACKGROUND*fn7
Atkinson and his former co-relator Eugene Schorsch filed this
action their second qui tam action under seal on December
5, 1994. In addition to the two defendants named in this case, Sun Ship Inc. ("Sun Ship") was originally a named defendant
as well. Over the next six years this case underwent substantial
delay: the government requested and received multiple extensions
of time within which to inform the court of its determination of
whether to intervene in the action;*fn8 plaintiffs requested
and received several extensions of time within which to serve
their amended complaint on the defendants so that they could
obtain an attorney; this court ordered plaintiffs to file a
second amended complaint; and this action was placed in civil
suspense while the Supreme Court determined that a private
citizen has standing in qui tam actions.*fn9
Following this delay, each defendant moved, pursuant to
Fed.R.Civ.P. 12(b)(6), to dismiss every count in the second amended
complaint for failure to plead allegations of fraud with
sufficient particularity under Rule 9(b). On this basis, I
dismissed some of plaintiff's claims against Penn Ship, without
prejudice, and dismissed plaintiff's claims against Fidelity and
Sun Ship in their entirety, also without prejudice. See Atkinson
I. On October 16, 2000, Atkinson filed his third amended
complaint, which dropped Sun Ship as a defendant and asserted
twelve distinct claims against Fidelity and Penn Ship.
On August 30, 2002, I granted defendants' motions to dismiss
plaintiff's third amended complaint in large part, holding that I
lacked subject matter jurisdiction over counts 2-11. See
Atkinson II. With respect to plaintiff's first count, which
alleged a conspiracy in violation of 31 U.S.C. § 3729(a)(3), I
granted defendants' motions to dismiss to the extent that
plaintiff's first count is based on reverse false claims and to the extent that it
is based on claims subitted prior to December 4, 1988.
Defendants' motion to dismiss was denied with respect to
Atkinson's first count, however, insofar as it sounded in Penn
Ship's non-recording of the Navy's security instruments and
Fidelity's failure to ensure such recordation.
Summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). This court
may not resolve disputed factual issues, but rather should
determine whether there are genuine, material factual issues that
require a trial. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). Where "the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party,"
however, there is "no genuine issue for trial." Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quotations omitted). In order to determine whether summary
judgment is appropriate in this particular case, all of the facts
delineated above are stated in the light most favorable to the
plaintiff as the non-moving party. See Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001). While this court will draw all
reasonable inferences in plaintiff's favor, however, plaintiff
must do more than rest upon mere allegations, general denials, or
vague statements. Trap Rock Indus., Inc. v. Local 825,
982 F.2d 884, 890 (3d Cir. 1992). Rather, plaintiff "must present
affirmative evidence" in order to defeat a motion for summary
judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).*fn10
In the sole claim remaining before this court, Atkinson alleges
that defendants Penn Ship and Fidelity conspired to defraud the
United States in violation of 31 U.S.C. § 3729(a)(3). More
specifically, Atkinson contends that Penn Ship and Fidelity
agreed to defeat the Navy's security interests under the Trust
Indenture by not recording its underlying security instruments.
Penn Ship's participation, according to Atkinson, consisted of
its failure to record, while Fidelity's role involved its failure
to ensure that the security instruments were in fact recorded. By
Atkinson's account, these actions were undertaken in furtherance
of an agreement, between defendants, to defraud the government
out of monies and property to which it was entitled under the
terms of the Oiler Contract.
A. FCA Conspiracy, 31 U.S.C. § 3729(a)(3)
To state a claim under the FCA for conspiracy pursuant to
section 3729(a)(3), a plaintiff must show: (1) that the defendant
conspired with one or more persons to get a false or fraudulent
claim allowed or paid by the United States, and (2) that one or
more conspirators performed any act to get a false or fraudulent
claim allowed or paid. United States v. Hill, 676 F. Supp. 1158,
1173 (N.D. Fla. 1987) (citing Blusal Meats, Inc. v. United
States, 638 F. Supp. 824, 828 (S.D.N.Y. 1986) aff'd 817 F.2d 1007 (2d Cir. 1987)).*fn11
General principles of civil conspiracy apply to FCA conspiracy
claims. See United States v. Murphy, 937 F.2d 1032, 1039 (6th
Cir. 1991); see also General Refractories Co. v. Fireman's Fund
Ins. Co., 337 F.3d 297, 313 (3d Cir. 1999) (the Third Circuit,
interpreting Pennsylvania law, held that civil conspiracy
requires a showing of "(1) a combination of two or more persons
acting with a common purpose to do an unlawful act or to do a
lawful act by unlawful means or for an unlawful purpose; (2) an
overt act done in pursuance of the common purpose; and (3) actual
legal damage") (citing Strickland v. Univ. of Scranton,
700 A.2d 979, 987-988 (Pa. 1997) (citation and internal quotations
marks omitted)).
B. Element One: A "Meeting of the Minds"
The first required element of a conspiracy under section
3729(a)(3), the agreement itself, has typically been described as
a "meeting of the minds." United States ex rel. Durcholz v. FKW
Inc., 189 F.3d 542, 545 (7th Cir. 1999). Indeed, the "essence"
of an FCA conspiracy is "an agreement between two or more persons
to commit a fraud." United States ex rel. Stinson, Lyons, Gerlin
& Bustamante, P.A. v. Provident Life & Acc. Ins. Co.,
721 F. Supp. 1247, 1259 (S.D. Fla. 1989). Put differently, Atkinson must
present evidence that would enable a reasonable juror to conclude that Penn Ship and Fidelity shared a
"conspiratorial objective." Durcholz, 189 F.3d at 545 (holding
that an FCA plaintiff cannot withstand summary judgment where the
"meager evidence" of the alleged conspirators' silence cannot
"support the inferential leaps that would be required" to find a
meeting of the minds).
To establish a "meeting of the minds," it is not sufficient for
a relator to show that the alleged conspirators "intended to
engage in the conduct that resulted in the injury" to the
government; rather, the parties must be "aware of the harm or
wrongful conduct at the inception of the combination or
agreement." Peavy v. WFAA-TV, Inc., 221 F.3d 158, 173 (5th Cir.
2000) (applying Texas law, which is substantively similar to the
Pennsylvania law of civil conspiracy). More specifically,
"innocent mistakes and negligence" are not actionable under the
FCA. United States v. Taber Extrusions, LP, 341 F.3d 843, 845
(8th Cir. 2003) (holding that defendants must have "knowledge" of
the intended fraud in order to be held liable for conspiracy
under the FCA); see also United States ex rel. Reuter v.
Sparks, 939 F. Supp. 636, 638 (C.D. Ill. 1996) (holding that
"negligence is not actionable" under the FCA). It is also not the
case that "any breach of contract, or violation of regulations or
law, or receipt of money from the government where one is not
entitled to receive the money, automatically gives rise to a
claim under the FCA." United States ex rel. Hopper v. Anton,
91 F.3d 1261, 1265 (9th Cir. 1996) (quoting and agreeing with the
district court's analysis).
To demonstrate the existence of the "agreement" required in
federal civil conspiracy claims, a plaintiff/relator may rely on
either direct or circumstantial evidence. See Adams v. Teamsters
Local 115, 2003 WL 22005708, *6 (E.D. Pa. Aug. 6, 2003); see
also Intervest, Inc. v. Bloomberg, L.P. 340 F.3d 144, 159 (3d
Cir. 2003) (evidence of a conspiracy to violate the Sherman Act may be proven by either direct or circumstantial
evidence). Because conspiracies, "by their very nature, are not
often susceptible to direct proof," Durcholz, 189 F.3d at 546,
plaintiffs alleging civil conspiracies most often rely upon
circumstantial evidence.
Circumstantial evidence can, in certain instances, give rise to
the existence of a conspiracy. See Intervest, 340 F.3d at 159
("plaintiffs have been permitted to rely solely on circumstantial
evidence (and the reasonable inferences that may be drawn
therefrom) to prove a conspiracy") (quoting Rossi v. Standard
Roofing, Inc., 156 F.3d 452, 465 (3d Cir. 1998)). Where a
plaintiff relies upon circumstantial evidence to establish a
conspiracy, however, he must "produce more than a whiff of the
alleged conspirators' assent" to withstand summary judgment.
Durcholz, 189 F.3d at 546 (quotations omitted); see also
Scully v. US WATS, Inc., 238 F.3d 497, 516 (3d Cir. 2001)
(holding that while a civil conspiracy "may be proved by
circumstantial evidence, the evidence must be full, clear and
satisfactory") (quoting Fife v. Great Atlantic & Pacific Tea
Co., 356 Pa. 265 (1947)). To "raise a fact question" in an FCA
conspiracy case, therefore, plaintiff "must provide proof that
[defendants] each intended to commit [] fraud, and that they
entered into an agreement with that specific objective." United
States ex rel. Reagon v. E. Tex. Med. Ctr. Regional Healthcare
Sys., 274 F. Supp.2d 824, 857 (S.D. Tex. 2003).
More specifically, "a plaintiff cannot withstand a summary
judgment motion by establishing only consciously parallel
behavior on the part of the defendants." Petruzzi's IGA
Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224,
1232 (3d Cir. 1993) (citing Theatre Enters., Inc. v. Paramount
Film Distrib. Corp., 346 U.S. 537, 541 (1954)) (assessing
circumstantial evidence in the context of an alleged conspiracy
to fix prices in violation of section 1 of the Sherman Act).
Ultimately, a court must focus on whether the evidence proffered by the plaintiff "tends to exclude the possibility that [the
defendants] were acting independently." Intervest, 340 F.3d at
160 (citations omitted) (in the context of a Sherman Act
C. Plaintiff's Evidence of Penn Ship's and Fidelity's "Meeting
of the Minds"
In support of its claims that "a jury could easily conclude
that a conspiracy involving defendant[s] existed" and that a
"concerted breach of contractual and fiduciary duties" occurred,
Pl.'s Mem. at 21, plaintiff offers the following evidence.
Atkinson claims that a trust indenture provision requiring
Fidelity to deliver all recording documents to the Navy a
provision absent from the final version of the trust indenture
was consciously stricken by defendants as part of the conspiracy.
The sequence of meetings and revisions which led up to the
finalization of the trust indenture is undisputed, as is the
sequence and substance of the correspondence stemming from the
Navy's award of the Oiler Contract to Penn Ship.*fn12 Due to
the critical importance Atkinson places upon these events, it
seems worth briefly revisiting the relevant chronology.
Greg Leatherbury, an attorney for Penn Ship, prepared the first
draft of the trust indenture sometime in early March, 1985. Pl.'s
Facts, ¶ 20. Leatherbury then discussed the terms of the trust
indenture in greater detail with Terence McPoyle, a corporate
trust administrator with Fidelity's Corporate Trust Department,
and Stephen Mygatt, a Fidelity in-house attorney. Id. ¶¶ 21-22.
After these discussions, the initial draft of the trust indenture
was signed on March 15, 1985, by Thomas Weller, Chairman of Penn
Ship, and McPoyle, on behalf of Fidelity. Id. ¶ 23. Later that day, the signed draft was sent to the Navy for
revision and approval.*fn13 Id. ¶ 24.
The substance of the March 15th trust indenture is
undisputed.*fn14 Neither is it disputed that Leatherbury and
other Penn Ship representatives met with NAVSEA officials to
discuss the trust indenture. Id. ¶ 30. During this meeting
which was not attended by anyone from Fidelity Leatherbury met
separately with Gene Angrist, NAVSEA Counsel, and Shauna Russell,
associate counsel, to undertake a page-by-page review of the
trust indenture. Id. ¶¶ 31-34. Leatherbury's notes from this
three-person meeting include an additional sentence to paragraph
14, now crossed out, stating "the trustee shall deliver copies of
all recording documents to the Navy." Id. ¶ 35. Plaintiff does
not dispute that this sentence is crossed out in Leatherbury's
notes and that it never appeared in any subsequent version of the
trust indenture. Id. ¶ 36.
After this meeting with Russell and Angrist, Leatherbury sent
his notes and a marked-up version of the trust indenture to
McPoyle and Mygatt, at Fidelity. After separate conversations
with Mygatt and Russell, Leatherbury incorporated all changes to
the trust indenture and created a final draft. Id. ¶¶ 37-38.
The final version of the trust indenture was signed by Penn Ship
and Fidelity, as trustee for the Navy, on March 26, 1985. Id. ¶
39. On March 27, 1985, Leatherbury sent an original fully-executed
final version of the Trust Indenture to McPoyle. PSB App. at 886.
McPoyle responded to this letter on April 1, 1985, thanking him
for the copy of the trust indenture and further noting:
We will of course await notification from you
regarding the awarding of the contract.
In conjunction with this, we will then expect to
receive evidence of insurance on the mortgaged
property, a letter from the United States Navy
advising us of who to contact in the future, and
proof of all filings performed concerning the
mortgaged properties.
A month later, on May 6, 1985, Penn Ship was awarded the Oiler
Contract by the Navy, pursuant to the terms of which it would
provide the Navy with two ships. PSB App. at 502 ("Contract
2115"). The Oiler Contract triggered Penn Ship's obligation under
the trust indenture to record the security instruments. Trust
Indenture, ¶ 14 (PSB App. at 1236).*fn15 After receiving the
executed UCC-1 financing statements from a Penn Ship attorney at
the outside firm of Reid & Priest, see Pl.'s Facts, ¶ 60,
Leatherbury sent the signed UCC-1 statements to McPoyle at
Fidelity on May 21, 1985 with an accompanying letter:
Enclosed are the UCC Financing Statements in
connection with the trust indenture. Please execute
them on behalf of the Bank, as trustee, and return
them to me. I am then going to forward the financing
statements and mortgages for appropriate filing and
McPoyle testified that he never received the May 21st
letter and its enclosed financing statements. PSB App. at 968.
Plaintiff disputes this fact, arguing that "an inference of
receipt follows from the mailing." Pl.'s Facts, ¶ 65. Regardless of
whether McPoyle did or did not receive this letter, it is
undisputed that he did not respond, and neither he nor
Leatherbury undertook to follow-up with one another. Pl.'s Facts,
¶¶ 66-67. McPoyle asserts that he did not learn of the award of
the Oiler Contract to Penn Ship until four years later, in late
1989. McPoyle Decl., ¶ 18.
Two to three months after the trust indenture was signed,
however, McPoyle did compose a short file memo on the subject of
the trust indenture, in fulfillment of the bank's requirement
that it "have some kind of a one- or multi-page document just
giving a quick overview of a transaction." PSB App. at 957-58,
1008. In his summary of the trust indenture's "purpose," in this
file memo, McPoyle noted:
U.S. Navy has contracted with Penn Ship to build (3)
T-AO 187 Class Fleet Replenishment Oiler Ships and
Penn Ship has given us a Pledge of Mortgage we are to
hold in case the ships are not build or on time or to
avoid cost overruns, etc.
We are to do nothing until and if we receive
notification from the Navy that there is a problem.
At that point, we would have to read and follow
procedures in the documents which were modified by S.
Mygatt of our legal department.
With respect to his statement that the Navy "has contracted
with Penn Ship," McPoyle later testified that this portion of the
file memo was in error: "At the time I prepared the summary
statement, I was unaware as to whether the contract had been
awarded to Penn Ship, and the misstatement in my summary
statement on this point is the result of inattentive, sloppy
drafting on my part at the time of its preparation." McPoyle
Decl., ¶ 16. Atkinson labels this assertion "self-serving" and "facially preposterous," pointing out that
McPoyle did not offer any such explanation at his Senate
Subcommittee deposition in 1995. Pl.'s Mem. at 9.*fn16
D. Analysis
Plaintiff highlights three main events which he believes
demonstrate the existence of a conspiracy. I will address them
each in turn.
(1) The Crossed-Out Provision
From the facts discussed above, Atkinson concludes that Penn
Ship, "on at least two occasions in the March 15 Proposal, and
in striking the Navy's request consciously omitted a
requirement that the Navy or the Trustee be notified of filing."
Pl.'s Mem. at 6. Omitting a provision from a trust indenture,
however, does not amount to a conspiracy to defraud the
government. First, neither Leatherbury nor Russell, the Navy
attorney, recalls why the provision was suggested, by whom, why
it was stricken, or whether its subsequent omission was the
result of a conscious or extensive discussion. See Russell
Dep., PSB App. at 383, 439-40 (Russell testified that she could
not recall whether the Navy had made any un-granted requests for
changes to the trust indenture to Leatherbury and that she had no
recollection as to whether the Navy was negotiating for a
provision requiring the delivery of copies of all recording
documents); Leatherbury Dep., PSB App. at 599 (testifying that he
did not recall how the crossed-out provision came into existence
in the first place nor why it was ultimately stricken). Such a
lack of knowledge and inability to recall cannot reasonably give
rise to a "concerted effort," as required by section 3729(a)(3). Moreover, Leatherbury and other Penn Ship officials deny any
illegal purpose underlying this editorial decision. See
Leatherbury Dep., PSB App. at 672 (Leatherbury's testimony
indicated that his intention was to send all relevant documents
off to be recorded). Finally and most importantly plaintiff
has pointed to nothing implicating Fidelity, the supposed
coconspirator, in this alleged conspiracy to consciously omit the
provision in question. Plaintiff asserts that "Fidelity actively
participated in this glaring omission." In support of this
statement, however, plaintiff cites vague references made by
Fidelity employees to "procedures" in the trust indenture,
drafting meetings, and "further documentation." Pl.'s Mem. at 6.
From these bits and pieces of unenlightening evidence, Atkinson
makes two unsubstantiated legal leaps. First, he assumes that "at
the very same time that Leatherbury was striking the requirement
that the Trustee Fidelity would deliver[] copies of the
documents to the Navy, he was meeting with Fidelity. A logical
and reasonable inference is that a provision directly dealing
with Fidelity's role was expressly discussed." Id. at 6-7
(emphasis added). Secondly, Atkinson argues that because the
delivery requirement would have imposed such a minimal burden on
both Penn Ship and Fidelity, "the striking of this basic delivery
requirement was part of a broader plan not to record." Pl.'s Mem.
at 7.
Plaintiff's proffered evidence in support of these two bold
inferences is simply not the type of "full, clear, and
satisfactory" evidence required to establish the existence of a
conspiracy. The evidence does not suggest a conscious omission.
With respect to Atkinson's inferential leap that express
discussions were taking place, both Leatherbury and McPoyle the
individuals who would have actually engaged in these purported
discussions, had they in fact taken place specifically deny Atkinson's inference.*fn17 Regarding
Atkinson's second argument that the de minimus burden posed
by the inclusion of a delivery requirement must mean that the
omission of such a requirement stemmed from a conspiracy
plaintiff's logic eludes this court. The fact that undertaking
illegal activity would impose a minimal burden does not compel
the conclusion that such activity did in fact occur. Plaintiff's
argument presupposes a causal relationship for which he has
offered no evidence and which, more importantly, is not causal at
all. By plaintiff's logic, any time an individual could have
completed a crime with little effort, he could be assumed to have
in fact committed that crime despite a total lack of evidence
to that effect.
Moreover, even if Penn Ship's decision to exclude the sentence
in question was a conscious omission, there is nothing in the
evidence before this court to suggest that Fidelity participated
in this omission. No one from Fidelity attended the March 15,
1985 meeting where the provision was introduced and,
subsequently, deleted. Importantly, the provision had been
crossed out before Fidelity ever reviewed the document.
Furthermore, even if Fidelity had desired that the provision be
excluded, plaintiff has introduced nothing indicative of a
"conspiratorial objective" or other "meeting of the minds." In
fact, plaintiff has barely even hinted at the existence of a
In his single reference to an agreement, or conspiracy,
Atkinson refers only to his belief that it is inevitable that,
during the drafting of the trust indenture, Fidelity and Penn
Ship "expressly discussed" the recording provision. A
"discussion," however, does not a conspiracy make. In order to be held liable for conspiracy under section
3729(a)(3), defendants must be shown to have formed an
"agreement" to "commit a fraud." Stinson, 721 F. Supp. at 1259.
Coincidental agreement as to the best structure and wording of a
draft of the trust indenture, however, is not an agreement to
commit fraud. Indeed, courts have repeatedly held that "conscious
parallelism" cannot give rise to liability for civil conspiracy.
See, e.g., Petruzzi's, 998 F.2d at 1232.
Finally, it seems worth noting that the omission of the
provision to which Atkinson attaches such great importance had
very little effect upon the trust indenture. The Navy had
reviewed the trust indenture language and was aware that Fidelity
had no obligation to provide it with copies of the recording
documents. To the extent that plaintiff's concern regarding the
absence of this provision is grounded in a worry that the Navy's
interests be secured, the Navy had knowledge that it was not to
depend upon Fidelity for the relevant documentation and accepted
the trust indenture with this knowledge.*fn18
The "conscious omission" of the provision requiring Fidelity to
provide copies of all recording documents to the Navy appears
neither conscious, conspiratorial, nor relevant. A reasonable
juror, therefore, could not find that the absence of this
provision in the trust indenture establishes the existence of a
conspiracy. (2) Fidelity's Knowledge
The second set of events that plaintiff suggests as giving rise
to an inference of conspiracy involves the reach of Fidelity's
knowledge concerning the award of the Navy contract to Penn Ship.
As discussed above, McPoyle of Fidelity claims that he was not
aware of the contract award which triggered Fidelity's
obligations as trustee and Penn Ship's duty to record. According
to plaintiff, however, Fidelity's ignorance is a "recent
invention" rendered implausible due to the existence of McPoyle's
file memorandum, from the spring of 1985, which stated that the
"Navy has contracted with Penn Ship to build (3) T-AO 187 Class
Fleet Replenishment Oiler Ships." Pl.'s Mem. at 8. Plaintiff
places great weight on the inconsistency generated by this
memorandum and McPoyle's later testimony that he was unaware that
the contract had been awarded. The factual dispute as to
McPoyle's level of knowledge, however, is immaterial.
Even if McPoyle knew that the Navy had awarded the Oiler
contract to Penn Ship, plaintiff has nonetheless failed to
establish a conspiracy under the FCA. Fidelity's knowledge of the
contract award triggered its status as Trustee.*fn19 Its
failure to ensure the perfection of the Navy's security
interests, then, could at most amount to a breach of its
fiduciary duty to the Navy.*fn20 Assuming arguendo that
the Navy could successfully bring a cause of action for breach of fiduciary duty against Fidelity, this breach neither involves
Penn Ship nor a "meeting of the minds," nor does it otherwise
suggest the existence of a conspiracy to defraud the Navy. Under
the trust indenture, Penn Ship was responsible for recording all
security instruments and Fidelity had no obligation to ensure
that this recordation occurred. Even if Fidelity knew of Penn
Ship's receipt of the contract and subsequent duty to record,
this knowledge did not trigger any specific duties of Fidelity
with respect to the recording of the trust indenture's security
instruments.*fn21 Fidelity's failure to ensure perfection of
these interests, therefore, was in line with its contractual
duties and can in no way regardless of whether Fidelity knew of
the contract enable a reasonable juror to find the existence of
a conspiracy.
(3) Motive
Plaintiff's final argument in support of finding the existence
of an agreement between Penn Ship and Fidelity relates to
defendants' motives for creating the trust indenture.
Essentially, plaintiff argues that Penn Ship's motives for
non-recording were so compelling that there is simply no other
explanation other than the existence of a conspiracy for the
creation of the trust indenture.
More specifically, plaintiff contends that because defendants
can point to no legitimate rationale driving the creation of the
trust indenture, it must have been the product of a conspiracy. Plaintiff points out that the trust indenture was an uncommon
arrangement, was not necessary to protect the Navy's interests,
but was necessary to Penn Ship's success in obtaining the Oiler
contract. Because Penn Ship could have given direct liens to the
Navy rather than to a trustee, the only purpose of the trust
indenture, according to plaintiff, must have been to facilitate
non-recording and fraud.
Plaintiff also highlights the factors encouraging Penn Ship's
non-recording, pointing to three specific reasons Penn Ship would
have been inclined toward non-recording: first, he claims that
perfecting the trust indenture's security instruments would have
alerted losing bidders to the existence of the allegedly improper
trust indenture and therefore have necessitated a second bidding
process, thus delaying construction and posing a risk to Penn
Ship's acquisition of the contract; second, plaintiff argues that
Penn Ship's non-recording increased the potential collateral
value of its properties to other companies and banks, from which
it was attempting to secure additional financing; and third, he
contends that Penn Ship's failure to record the security
instruments enabled it to threaten the Navy with its bankruptcy.
With respect to Fidelity, Atkinson claims that because the bank
stood to benefit from an ongoing banking relationship with Penn
Ship, it had compelling reasons to encourage Penn Ship not to
As defendants each note, plaintiff's inability to identify a
compelling reason behind the use of a trust indenture does not
necessarily mean that no such reason existed, or even more
implausibly that a conspiracy or fraud must have been the
driving force behind the trust indenture's creation. The United
States Navy the party upon which the alleged fraud was
perpetrated had extensive opportunities to review the trust
indenture's provisions, make revisions, and discuss the document
with Leatherbury. Had the trust indenture been constructed solely as a tool to be employed by defendants in carrying out a
conspiracy, two NAVSEA attorneys, Angrist and Russell, would not
after reviewing it and making changes have accepted the trust
indenture. Furthermore, as Penn Ship points out in its reply,
"nothing in the Trust Indenture prevented the Navy from checking
to determine whether the security interests were recorded." PSB
Reply at 3. While the trust indenture may have been unusually
structured, the document itself clearly obligated Penn Ship to
perfect the Navy's security instruments. An agreement which
inured to the benefit of the Navy, while uncommon, cannot be
relied upon as evidence of a conspiracy to defraud the Navy
itself. No reasonable juror could conclude that the use of the
trust indenture structure, despite the lack of an absolute
"necessity" that it exist, establishes the requisite "agreement"
to defraud the Navy.
If the use of the trust indenture was not itself
conspiratorial, plaintiff's argument goes, the failure to record
was. Plaintiff's argument that Penn Ship conspired not to record
the security instruments because of the risk of alerting other
bidders who might, in turn, contest the contract award, ignores
the fact that an FCA conspiracy must involve an intent to defraud
the government. While non-recording could have without
offending conventional logic be perceived as having been
intended to conceal an unusual contract modification from other
bidders, so as not to delay the construction of the oilers, this
intent would have been shared by the Navy itself and thus would
have benefited the Navy as well as Penn Ship. This allegedly
compelling motive not to record, therefore, cannot reasonably
give rise to a conspiracy to defraud the Navy.
Furthermore, plaintiff has failed to demonstrate that Fidelity
shared this desire to avoid re-bidding in any specific way.
Atkinson argues that Fidelity stood to profit from Penn Ship's
successes because it enjoyed a banking and investment banking
relationship with Penn Ship. According to the evidence, however, it is undisputed that Penn
Ship never made any corporate investments nor paid any fee to
Fidelity for investment banking services. See Pl. App. at 71
(Weller Dep. at 53); Pl. App. at 205 (Stevens Dep. at
55).*fn22 Moreover, Atkinson has pointed to no evidence
indicating that Fidelity had any opportunity to profit from the
avoidance of a second bidding process.
This position is, at its core, an assertion that Penn Ship's
desire to avoid a re-bidding process was so strong that Penn
Ship's subsequent failure to record the security instruments
constitutes evidence of a conspiracy to defraud the government.
Quite simply, plaintiff has failed to connect the dots in this
argument. Even assuming that Atkinson is correct, and Penn Ship
did desire to avoid a re-bidding process and thus possessed a
motivation not to record both of which are disputed it also
possessed a contractual obligation to record, under the trust
indenture. Conflicting motivations as to whether or not to comply
with a contract requirement do not establish a conspiratorial
objective. More significantly, plaintiff has failed to suggest
any tangible way in which this particular motivation even if
powerful enough to motivate Penn Ship not to record involved
Fidelity, the alleged co-conspirator.
In his second assertion regarding Penn Ship's motivations not
to record, plaintiff claims that Penn Ship's non-recording
increased the potential collateral value of its properties to
other companies and banks, from which it was attempting to secure
additional financing.
The trust indenture specifically permitted Penn Ship to use the
trust indenture assets to secure first liens up to $24 million.
PSB App. 132-33. With respect to the $5 million line of credit
extended to Penn Ship 18 months later by Fidelity itself, because
Fidelity knew of the trust indenture liens it was aware that any
liens on the trust's assets in favor of Fidelity that exceeded
the $24 million cap would have been subordinate to the Navy's
interests. The lack of constructive notice through recording does
not trump actual notice. Penn Ship's acquisition of this $5
million loan, therefore, cannot be construed as a manifestation
of the motive driving Penn Ship not to record.
Penn Ship also obtained a $10 million loan from the Water
Facilities Loan Board ("WFLB") in May, 1986. PSB Supp. App. at
12-22. Plaintiff suggests that this additional financing could
not have been obtained had Penn Ship properly recorded the
security instruments, as the WFLB loan was itself secured by the
trust indenture collateral. See Pl.'s Mem. at 14. According to
defendants, however, Penn Ship's existing $18 million debt to Sun
Ship which counted toward the $24 million cap on Penn Ship's
first liens was reduced by almost $10 million simultaneously
with the acquisition of the WFLB loan. PSB Supp. App. at 23-25
(1986 Sun Ship/Penn Ship Mutual Release).
The document cited by Penn Ship in support of its assertion
that its WFLB loan did not exceed the trust indenture's $24
million cap, due to a simultaneous loan reduction, does not
specify a dollar value for this reduction; it notes only that
Penn Ship was released from all obligations under an "Agreement"
dated February 8, 1982. Id. at 23-24. Plaintiff, however, has
offered only vague and unsupported assertions that Penn Ship did
exceed the $24 million cap; he has produced no quantitative evidence that such was the case,
much less that Penn Ship's motivation to secure additional
financing by relying upon the trust assets was so powerful as to
constitute a conspiracy.
Finally, plaintiff argues that by failing to record the trust
indenture's security instruments, Penn Ship was able to threaten
the Navy with bankruptcy during contract modification
negotiations. More specifically, Atkinson asserts that the
non-recording resulted in a substantially weakened bargaining
position for the Navy; because the unrecorded liens would be
voidable in a bankruptcy, he claims, the Navy would be an
unsecured creditor and thus unlikely to be able, in the event of
a bankruptcy, to recoup its reprocurement costs as anticipated by
the trust indenture. As Penn Ship points out, however, the Navy
was never put in such a compromised position.
Harold Hanson, the NAVSEA officer who negotiated and executed
Mod.17 on behalf of the Navy, testified regarding the Navy's
bargaining position during these negotiations:
Q: Do you recall whether or not the nonrecording of
the security instruments under the trust indenture
were [sic] a factor in the negotiations of
modification 17?
A: No, it was not a factor.
* * * *
Q: Did the nonrecording of the security instruments
under the trust indenture have any impact at all on
the negotiations of modification 17 from the Navy's
A: No . . . had it been recorded or not recorded, I
think the end result would have been the same. I
think Penn Ship operated in a fashion I mean, they
never came to us and said, hey, these things aren't
recorded, so you[] really don't have a security
interest. I mean, everybody operated as if it were
valid and recorded and so I don't think it had any
Q: In your view, would the Navy had gotten a better
deal from Penn Ship if the security instruments had
been recorded?
[Objection, form]
A: No, I think we got the best deal we could,
recorded or not. As a matter of fact, I don't even
know if I was aware that they weren't recorded at
that time.
Hanson Dep., PSB App. at 44-45.
As best I can discern, Atkinson's argument runs as follows: in
1985, Penn Ship's desire to exert undue influence over the Navy,
should Penn Ship find itself on the verge of bankruptcy in 1989,
was so powerful that Penn Ship conspired with Fidelity not to
perfect the security instruments upon which the Navy would have a second lien security
interest in the event that Penn Ship could not complete an Oiler
contract which it had yet to sign. This argument rests on
speculation and contingency. Moreover, while the nonrecording of
the security instruments in question could have had an adverse
financial impact upon the Navy in the event of a Penn Ship
bankruptcy, the testimony is clear that the nonrecording had no
effect at all on the negotiations or terms of the contract's
ultimate termination.
(4) The Absence of a Conspiracy
Despite Atkinson's numerous assertions of conspiracy, he has
not offered sufficient evidence of a "meeting of the minds"
between Penn Ship and Fidelity. Even if Fidelity knew of the
Oiler contract award; even if the trust indenture was a novel
form of security agreement; and even if Penn Ship stood to
benefit financially from nonrecording; plaintiff has failed to
produce any evidence of a conspiratorial objective shared by Penn
Ship and Fidelity.
In Durcholz, the Seventh Circuit affirmed the district
court's grant of summary judgment for the defendant in an FCA
qui tam action. 189 F.3d 542. The plaintiff in Durcholz,
which involved the bidding process used by the Navy to select a
general contractor for a pond-clearing project, alleged that the
contracting Naval Officer ("Strange") and FKW, the general
contractor, had conspired to defraud the government by selecting
the second-lowest subcontract for dredging, rather than a lower
bid submitted by plaintiff. United States ex rel. Durcholz v.
FKW Inc., 997 F. Supp. 1159 (S.D. Ind. 1998). As evidence of
this conspiracy, Durcholz submitted testimony that FKW was
coerced by Strange, the Naval Officer, into selecting the
second-lowest bid. Id. at 1173. The district court found that
FKW's decision to follow Strange's orders did not amount to an
"agreement" as required by the law of civil conspiracy. Id.
Even if it did constitute an agreement, reasoned the district court, an agreement to select
a particular bid a bid that was not the lowest but that enabled
defendants to maintain a business relationship with a valued
customer could not be considered "an agreement in order to
defraud the government." Id. at 1173 n. 27.
Affirming, the Seventh Circuit reiterated that evidence of one
defendant following the instructions of another did not establish
a "meeting of the minds." Durcholz, 189 F.3d at 545. Noting
that the evidence of a conspiracy was actually stronger than the
district court had first admitted, however, the court went into
some detail with respect to the evidence that Strange had
supplied misinformation during the bidding process while
Frederick, an FKW manager who was present, remained silent and
declined to correct the misstatement. Id. at 546. Considering
whether a reasonable jury could infer from this silence that
Strange and FKW "were in cahoots to withhold the proper
information about Durcholz's bid," the court held that it is
"impossible" to find a "meeting of the minds from Frederick's
silence alone," noting that countless other explanations for
silence exist.*fn24 Id. Ultimately, the court found it
impossible to construe a conspiracy from the paucity of evidence
before it:
Even were we to believe that Frederick's alleged
silence was fraudulent, however, there is nothing to
suggest that the objective of his fraud was shared by
Strange. In any event and whatever the reason for
Frederick's alleged silence, there is no evidence
that Frederick was mum in order to advance a plan
that he had hatched with Strange. And, in light of
all of the other evidence, . . . no reasonable jury
could infer a conspiracy from the meager evidence of
an agreement produced by Durcholz.
Atkinson has not satisfied that burden. Despite his laundry
list of the reasons Penn Ship might, conceivably, have wished to
avoid its obligation to record, he has failed to offer "more than
a whiff of the alleged conspirators' assent." Durcholz, 189
F.3d at 546. With respect to Fidelity whose alleged role in the
conspiracy was its failure to ensure recordation plaintiff has
provided this court with no evidence that Fidelity played any
role whatsoever in the nonrecording, nor that Fidelity had any
incentive to pursue such a goal. Furthermore, the Navy itself
the purported victim of plaintiff's alleged conspiracy claims
that the contract termination process took place as if the
security interests had been recorded, see Hanson Dep., PSB
App. at 45, increasing the likelihood that the non-recording was
a mistake or oversight as opposed to a well-orchestrated and
far-reaching scheme to defraud the government. And finally, as
defendants each point out, the correspondence among Penn Ship,
its outside attorneys, and Fidelity, actually reveal an intent to
record, or at the very least Penn Ship, in working toward
completing the UCC-1 financing statements, had set the ball in
motion and was taking the initial steps necessary to record the
security instruments.*fn25 V. CONCLUSION
I am unable to find any evidence in the record from which a
reasonable jury could conclude that Penn Ship and Fidelity formed
an agreement. Absent such a "meeting of the minds," no conspiracy
in violation of the FCA can exist. Accordingly, summary judgment
will be entered for defendants. An appropriate order follows. And now, on this ____ day of July, 2004, upon consideration
of all parties' motions for and in opposition to summary
judgment, it is hereby ORDERED that:
1.) Defendant Penn Ship's motion for summary judgment
(Doc. # 192) is GRANTED;
2.) Defendant Fidelity's motion for summary judgment
(Doc. #194) is GRANTED;
3.) Judgment is entered in favor of Defendants
Pennsylvania Shipbuilding Co. and First Fidelity Bank
and against plaintiff-relator Paul E. Atkinson.
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February 3, 2011
BARBARA JORDANv.SOUTHEASTERN PENNSYLVANIA TRANSIT AUTHORITY, ET AL.
Ludwig, J. February 3, 2011
This is an employment discrimination case. Jurisdiction is federal
question. 28 U.S.C. § 1331. The nine-count complaint alleges, inter
alia, that plaintiff Barbara Jordan, a SEPTA employee, was disciplined
and wrongfully terminated in retaliation for making complaints about
race and sex discrimination.*fn1 Defendants*fn2
move to dismiss Counts Eight and Nine for failure to state a
claim for which relief can be granted. For the following reasons,
defendants' motion will be granted as to Count Nine and denied as to
Count Eight.*fn3
According to Count Nine, plaintiff was "subjected to termination of her employment after asserting her rights under the Pennsylvania Worker's Compensation Act [in] violation of the public policy of the Commonwealth of Pennsylvania." Complaint, ¶ 64. Defendants move to dismiss because Pennsylvania law bars this claim: "An action for the tort of wrongful discharge is available only when the employment relationship is at will." Phillips v. Babcock & Wilcox, 503 A.2d 36, 355 (Pa. Super. 1986), citing Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974).
In Phillips, the complaint also alleged that plaintiff was wrongfully discharged in retaliation for filing a worker's compensation claim, in violation of public policy. Summary judgment was granted to plaintiff's employer, holding that the tort did not apply to someone who was not an at-will employee by reason of being subject to a collective bargaining agreement. Id. at 37. The Superior Court's affirmance noted that plaintiff's recourse was embodied in the grievance process established by the employer and the union, and that strong public policy favored the parties' right to contract and militated against extending a wrongful discharge cause of action to non-at-will employees. Id. at 38.
Here, plaintiff, a SEPTA bus operator, is a member of the Transport
Workers' Union of Philadelphia, Local 234. The applicable collective
bargaining agreement provides that Union members may be disciplined or
discharged for "just cause." Collective Bargaining Agreement,
p.9, Article II, ¶ C(a)(1), Exhibit 1 to defendants' memorandum.*fn4
As a result, plaintiff was not an at-will employee, in that
the presumption of an at-will employment relationship is rebutted upon
a showing of "an agreement specifying that the employee will be
discharged for just cause only." Helpin v. Trustees of University of
Pennsylvania, 969 A.2d 601 (Pa. Super. 2009). Inasmuch as the tort may
accrue only to at-will employees, plaintiff's claim is not
Plaintiff cites the Pennsylvania Supreme Court's decision in Shick v. Shirey, 716 A.2d 1231, 1232-33 (1998). However, in Shick, plaintiff was an at-will employee.
Count Eight purports to state a claim for violations of the Family Medical Leave Act. Defendants' objection is that the complaint lacks allegations that plaintiff requested leave under FMLA, and was entitled to FMLA protection. However, it is alleged that plaintiff was injured, took leave from employment, and was terminated while on leave. It cannot be said that the complaint does not "contain either direct or inferential allegations respecting the material elements necessary to sustain recovery under some viable legal theory," Haspel, supra, note 3, at *1, - namely, violations of FMLA. Defendants' motion as to Count Eight must be denied.
Edmund V. Ludwig, J.
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Scott Reitherman was planning to record the second Pillar Point album at home in Seattle, when he received an unexpected invitation - extended backstage in Phoenix after opening for of Montreal - to cut it at Kevin Barnes' home studio in Athens, Georgia. "I couldn't believe it to be honest," says Reitherman. "I was overwhelmed; we're halfway through the tour and I'm already having the time of my life."
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Wedding Cars Weston-super-mare
11 results for Wedding Cars in Weston-super-mare
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wedding cars chauffeur driven by professional experienced drivers. Our services cover all budgets so whatever your wedding style we can help you make it a day to remember. Our cars are fully valeted...
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The Paper Studio. 01934 644451. Specialists in printed stationery for Florists and Garden Centres. Card envelopes, message cards, folded cards, order pads, labels, sympathy cards, foil cards. ... and Services, floral, wedding supplies, wedding cars, sympathy cards., cards, photographic,...
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Chandrayaan-1 update: Still in Earth orbit, closer to the Moon
Posted by Emily Lakdawalla
According to an update posted to the Chandrayaan-1 website this morning, the Indian lunar orbiter has now performed four orbit-raising maneuvers, and is now (after a maneuver at 02:08 UTC today) on an orbit with an apogee of 267,000 kilometers. This is a six-day orbit. If I am not mistaken, they should only need one more maneuver to get them into the 11-day lunar transfer orbit. The soonest that could happen is six days from this morning, or around November 4.
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Ever struggled to write a critical essay? Ever wondered what critical thinking actually is and how you can apply it in your academic work and practice? This bestselling guide takes you through every stage of becoming a critical thinker, from approaching your subject to writing your essays or dissertation in health and social care. Each chapter tackles a different aspect of critical thinking and shows you how it's done using examples and simple language. Beginning with an overview of the importance of critical thinking, the book goes on to cover: How to think critically about different types of information as potential evidence, including books, journals, articles, websites, and, new to this edition, social media How to demonstrate critical thinking in written work and presentations How to adopt critical thinking in practiceUpdated with more references to online resources and critical appraisal tools, this fully revised second edition includes: The key tool 'Six questions for critical thinking' which will assist you in developing your skills for academic work and practice - updated for this edition in response to student evaluation An expanded worked example of critical analysis New exploration of the connection between theory and practice This book is an essential purchase for students and qualified healthcare staff alike and was highly commended in the BMA Medical Book Awards 2012. "This is an amazing book that I recommend to all levels of students as there is something in it for all. It is written in an easy to understand and friendly style that is accessible to anyone has an interest in critical thinking whether they are studying or not. It puts a different perspective on one's thinking and has even turned it on its head for some students. I love this book and the sound of the penny dropping for my learners!" Liz Rockingham, Adult Field Lead / Teaching Fellow, University of Surrey, UK "In my estimation this is the definitive beginner's guide to critical thinking and writing in health and social care. After reading this book any student should understand why and how critical thinking underpins professional practice and the highest endeavours in academic work and research. Within the book are three invaluable checklists: 1) 'Six questions for critical thinking',2) 'Critical thinking skills in your written work' and 3) 'Critical thinking, or relying on routine'. A wonderful book for both Undergraduate and Masters' students and a must for hard-pressed academics who wish to encourage and endorse the need for critical thinking at all levels in all of their students". Dr Ruth Davies, Associate Professor Child and Family Health, Swansea University, UK "I did not intend to read this book cover to cover but it was such a pleasure I did. The book by Aveyard, Sharp and Woolliams achieves exactly what it sets out to do and is a comprehensive and highly readable guide. In this little gem the mysteries of critical thinking and writing are unpacked. Useful tools, resources, activities and worked examples are included and the reader is guided to develop their own skills. From the initial challenge to explore their personal values, beliefs and assumptions, through to how to adopt critical thinking in practice, the reader is left in no doubt as to the valuable contribution this book will make to developing their skills of critical thinking and writing for professional practice." Ailsa Espie, Senior Lecturer, Division of Nursing, Queen Margaret University, UK "Health and social care professionals navigate through extensive quantities of information in the course of their work. The ability to think clearly and critically is fundamental for appraising and implementing evidence and knowledge in practice. This book is an excellent place to start learning these vital skills and I recommend it to my students and to you." Dr Martin Webber, Anniversary Reader in Social Work, University of York, UK
About Helen AveyardHelen Aveyard is a qualified nurse and Senior Lecturer at Oxford Brookes University, UK, and author of the bestselling books Doing a Literature Review in Health and Social Care, 3rd edition and A Beginner's Guide to Evidence Based Practice, 2nd edition. Pam Sharp is a qualified nurse and Senior Lecturer at Oxford Brookes University, UK. She is co-author of A Beginner's Guide to Evidence Based Practice, 2nd edition. Mary Woolliams qualified as a nurse and health visitor in 1990, then specialised in acute general medical nursing and the care of older people. In 2003 Mary joined the Faculty of Health and Life Sciences at Oxford Brookes University, UK, as a Senior Lecturer in Adult Nursing.
Details Book
|Helen Aveyard
|Open University Press
|Data Published
|01 March 2015
|Format Book
|PDF, Epub, DOCx, TXT
|Number of Pages
|192 pages
|Age +
|18 years
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This content has been marked as final. Show 3 replies
1. Re: Annoying Cache-Full Problems when Launching Business RulesJohnGoodwin Feb 5, 2013 7:49 AM (in response to FinFu)There are lots of factors that could be contributing to the issue.1 person found this helpful
What is the exact error message you are getting, I assume it is "Error "1006023: Data cache is full. Please increase the data cache size for database [databaseName]."
Do you get it with running every rule, do you get the same error if run as a calc script from essbase.
What is the block size and dimensionality (no of members, dense/sparse), other cache cfg settings, database size, what sort of calculation is causing the error.
Is essbase 32/64bit (assume 64bit with such large cache sizes), which OS, memory, have you tried not using memscalingfactor and decreasing the cache to see if it is an issue with memscalingfactor, I know there can sometimes be issues with using it probably the reason why it has now been removed so you would need to rule it out.
For 11.1.1.x then it is worth reading the documentation on Optimizing Essbase Caches - "http://docs.oracle.com/cd/E12825_01/epm.111/esb_dbag/frameset.htm?pt09.htm"
2. Re: Annoying Cache-Full Problems when Launching Business RulesFinFu Feb 6, 2013 6:48 AM (in response to JohnGoodwin)Thank you John,
We have found that it is the entity dimension that should be responsible to this problem.
I remember we have encountered this kind of problem before when we aggregate an application with the entity dimension hierarchy mixed with shared and stored instances of the same level 0 members. To put it simple, there are three members under "Entity" dimension member, which represents different view of entity hierarchies of same level 0 members. the first one has stored level 0 entity members while the other two have shared ones. And at that time, our client added another hierarchy with shared level 0 members, but they did not put this tree under "Entity" dimension member directly, but rather put it under the first child of "Entity", which is the one with stored level 0 members.
It is a little bit confusing to describe the situation only by text. Anyway, at that time, the first hierarchy had both stored and shared instances of the same group of level 0 members. And the data cache is always full when aggregating. and after we moved the forth hierarchy to another tree so under that hierarchy the level 0 members are all shared instances, the aggregation worked flawlessly.
I wondered why this happened and consider this is related to detailed calculation logic of Essbase. May you shed some light on this topic? Thank you with all my heart!
Warm Regards,
3. Re: Annoying Cache-Full Problems when Launching Business RulesFinFu Apr 29, 2013 6:29 AM (in response to FinFu)After reviewing the Entity architecture, we found that it's the mixture of store/shared instance that caused the problem.


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N. prodotti: 0
Totale ordine: € 0,00
FASCICOLI E ARTICOLI I PIÙ LETTI eTOC
Indexed/Abstracted in: Chemical Abstracts, CINAHL, Current Contents/Clinical Medicine, EMBASE, PubMed/MEDLINE, Science Citation Index Expanded (SciSearch), Scopus
Impact Factor 1,111
Periodicità: Mensile
Online ISSN 1827-1928
Yingjie TAN 1, Pu ZHOU 1, Changyu MA 2
1 College of Physical Education, Langfang Teacher's University, Langfang, China; 2 Oriental College, Beijing University of Chinese Medicine, Langfang, China
BACKGROUND: In this study, we aimed to investigate the college students' injury patterns caused by sport activities in anterior cruciate ligament (ACL) reconstruction stage, and to estimate the association between activities at the time of injury and the odds of simplex ACL injuries.
METHODS: A cohort of 2548 college students with primary ACL reconstruction was recruited from Hebei Province, China. Football, basketball, sprint, table tennis and badminton had been chosen as the most prevalent sports activities causing injuries in colleges. The concurrent injury patterns at the time of ACL reconstruction were simplex ACL, meniscus, cartilage, and multi-ligament injuries.
RESULTS: Compared with football, college students playing basketball were 4.95 (95% confidence interval [CI], 2.61-8.76) times more likely to have simplex ACL tear, 2.31 (95% CI, 1.73-3.05) times more inclined to have lateral meniscus injury, 2.53 (95% CI, 1.22-3.67) times more likely to have a cartilage injury, and 1.93 (95% CI, 1.22-3.04) times more likely to have a medial meniscus injury. Students playing sprint were 2.04 (95% CI, 1.78-3.38) times more likely to have cartilage injury.
CONCLUSIONS: Injury patterns are associated with certain sports. Compared with football, basketball has a greater possibility of leading to simplex ACL tear, as well as medial meniscus, lateral meniscus and cartilage injuries. Additionally, injury patterns observed during surgery may reflect the forces applied to the knee by the given sports performed.
lingua: Inglese


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I Dream of Genies by Judi Fennell
Publication Date: January 2011
Publisher: Sourcebooks
Genre: Paranormal Romance/ Magical Elements
(Received for review from Sourcebooks)
Purchase: Barnes & Noble, Book Depository, Books-A-Million, IndieBound
If you live in Morehead, KY or the surrounding area:
Purchase from our local independent bookstore: CoffeeTree Books
Borrow from our public library: The Rowan County Public Library
Judi Fennell on the Web: Website, Blog, Facebook, Twitter
Excerpt from I Dream of Genies
Book Trailer: Judi Fennell talks about her Mermaid series and her new book, I Dream of Genies
Matt Ewing would gladly hunt down a fortune in lucky pennies if he thought it would help save his business. But for all his hoping , Matt's clueless when his long-awaited lucky charms falls in his lap in the form of a beguiling genie. He just can't believe that this beautiful woman could be the answer to his prayers...
Spending 2,000 years in a bottle would make any woman go a little stir-crazy. So when Matt releases Eden from her luxurious captivity, she's thrilled to repay him by giving him the magical boost he needs...
But for all her good intentions, Edan's magical prowess is a little rusty and her magical mistakes become more than embarrassing. And though Eden knows falling in love will end her magic and immortality, she can't help but be drawn to the one man who wants her just for herself...
Award winning author Judi Fennell is known for her descriptive writing and extraordinary imagery. Fennell's latest novel, I Dream of Genies is no exception. The book is filled with magical places and characters that Fennell brings to life with humor, wit and the power of the mind's eye. Her descriptions of the magical city of Al-Jannah will make readers feel like they are on a magic carpet ride of a lifetime.
Eden has been cooped up in her bottle for over 2,000 years, serving a punishment for the accidental murder of a former master. Looking out the window of a Seattle antique shop every day, she spots a man that captures her interest. Matt Ewing is down on his luck. His business is about to tank due to the recession and he's at his wits end when he is practically ran over by a woman in a genie costume. Eden was inadvertently set free when a garbage truck almost crushes her bottle. Now Eden wants to repay Matt for helping her, but she has a wayward Egyptian cat, a baby dragon and a very angry vizier to deal with. Will she risk giving up her new found freedom and her magic to fall in love?
Judi Fennell has created a book with dazzling scenery and magical adventures galore, but there is also a serious romance blossoming between Matt and Eden that gives the book some serious heat. The love scenes between Eden and Matt practically sizzle off the pages. Fennell has some descriptive magic of her own that really adds to this part of the book. These two characters just can't seem to get enough of each other. Of course if you'd been in a bottle 2,000 years you might get a little hot and bothered too! I liked this aspect of the book, a lot but it could be a bit much for some readers.
The characters in the novel were well thought out and very interesting. Eden of course reminds me of all the great re-runs from the "I Dream of Jeanne" television show primarily because she's a genie and because of her little magical mishaps along the way. But, she is very determined character, who thinks she knows what she wants: Freedom. Eden's character grows significantly throughout the book and she begins to realize that there are many different kinds of freedom. Freedom from being forced to do things you don't want to do, freedom to be able to love who you want to love, freedom from your past and freedom to create your own destiny.
Matt is a great hero for a lot of reasons. He is willing to risk his life to save Eden which is admirable, but he is still unable to accept the help of a family who just wants to see him succeed. He has great loyalty, not only to Eden but to the dream he and his father shared. Matt learns a lot about freedom himself throughout the book as well. He learns that being free to make your own decisions and go your own way, doesn't mean you have to do it alone. I liked the way that Matt was able to just accept that there is magic in the world as well. He was open to the impossible which is something I wish more men were capable of.
I really enjoyed this book and I'm looking forward to the next from Judi Fennell. Character development and descriptive prowess really give this book an edge on some of the other supernatural kinds of books out there right now. Wit and humor abound in this one, as Eden gets herself and Matt into one mess after another and that gives the book a very light-hearted feel. It is pretty high on the heat meter, which in my book is a good thing!
I would recommend this one to romance lovers and even those who lean toward the paranormal. With all the magical characters I think it will satisfy both types of readers. The supporting cast from Obo, the cat, to Humphrey the dragon add a lot of pizazz to the story and some definite comic relief.
I Dream of Genies is available NOW from your favorite bookseller.
I'm giving this one 4 out of 5 apples from my book bag!
Judi Fennell is an award-winning author. Her romance novels have been finalists in Gather.com's First Chapters and First Chapters Romance contests as well as the third American Title contest. She spends vacations at the Jersey Shore, the setting for some of her paranormal romance series. She lives in suburban Philadelphia, PA.
Tuesday, January 18, 2011
Review: I Dream of Genies
I Dream of Genies by Judi Fennell
Posted by justpeachy36 at 11:56 AM
2 comments:
- Judi Fennell said...
so glad you enjoyed it! Thanks for the review!
- January 18, 2011 at 2:18 PM
- justpeachy36 said...
You're welcome, Judi! Thanks for stopping by. I really enjoyed the book and am looking forward to the second in this series...
- January 18, 2011 at 3:27 PM


text:
The 2016 CDS & IACD Conference took place July 24-27, 2016. Thank you for making the 47th CDS conference one of our most successful ever!
During the four days of the conference we rocked with 3 keynotes, 47 sessions that included more than 125 presentations, 7 mobile learning workshops and 4 pre conference workshops. There were more than 275 conference attendees including more than 50 international participants.
Thank you to our incredible volunteers on the Minnesota Host Committee, the Conference Planning Committee, and the staff at AOM, the association management company for CDS for putting in countless hours, and whose time and energy helped make this possible.
Please contact us if you would like to help support the 2017 CDS and NACDEP Conference at email@example.com
Networking with the most diverse group of community development
professionals in the world
Learn, share, and network with others at the CDS Annual International
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working in community development
I found my professional home when I attended my first CDS conference 30 years ago. It was amazing because I'm interested in so many things; I could finally see the interconnections.
Jane Leonard,
Past-president of the Community Development Society


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Guar Gum - Manufacturing Plant, Detailed Project Report, Profile, Business Plan, Industry Trends, Market Research, Survey, Manufacturing Process, Machinery, Raw Materials, Feasibility Study, Investment Opportunities, Cost And Revenue, Plant Economics
|Guar gum is one of the few products having very good export potential. Guar is a leguminous plant being grown in semi aried regions of India, Pakistan, USA. etc. The manufacture of guar gum, being an agro and resource based industry, has a great scope for development in a agricultural country like India. Guar is the main raw material required for the manufacture of guar gum. This have very important and vast application in different industrial areas. It is widely used in food industries, oil industries. The industries like textile, paper, pharmaceuticals, ice cream, confectioneries etc also has application of guar gum vastly. So far as future demand is concerned, are the end use industries are growing at a moderate rate. Therefore in future, it can be assured that there is a good scope for new investment.
|Plant capacity: 30.00 Ton/Day
|Plant & machinery: Rs. 79 Lakhs
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|Return: 106.28%
|Break even: 22.77%
|Email Us | Add to Inquiry Basket
We can provide you detailed project reports on the following topics. Please select the projects of your interests.
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