Smith ex rel. Estate of Smith v. Terumo Cardiovascular Sys. Corp.
Smith ex rel. Estate of Smithv.Terumo Cardiovascular Sys. Corp.
BUZZIE SMITH, individually and on behalf of The Heirs and Estate of CHARLES A. SMITH, deceased; Plaintiff, v. TERUMO CARDIOVASCULAR SYSTEMS CORPORATION; IHC HEALTH SERVICES, INC.; and INTERMOUNTAIN HEALTH CARE, INC.; Defendants.
Chief District Judge David Nuffer referred this matter to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A). Before the court is Buzzie Smith's ("Plaintiff") motion to compel answers to deposition questions. The court has carefully reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court has concluded that oral argument is not necessary and will determine the motion on the basis of the written memoranda. See DUCivR 7-1(f).
See docket nos. 32 & 37.
On September 13, 2010, Charles Smith was undergoing open heart surgery at the Intermountain Medical Center, when his blood ceased to flow for approximately eleven minutes. Plaintiff alleges that the improper flow of Mr. Smith's blood was caused by either a defect in or malfunction of Terumo Cardiovascular Systems Corporation's ("Terumo") heart/lung bypass machine, or the improper use of the bypass machine by employees of IHC Health Services, Inc.; Intermountain Medical Center; and Intermountain Health Care, Inc. (collectively, "IHC"). During the surgery, and while Mr. Smith's blood was not properly flowing, IHC employees called Terumo representatives to notify them of the event.
Terumo initiated an investigation to comply with numerous regulatory programs developed and enforced by the Federal Drug Administration. The investigation allegedly included two telephone calls between Terumo representatives and IHC employees on the date of the surgery, as well as a visit to Intermountain Medical Center made by Terumo for the purpose of examining the bypass machine. During the visit to Intermountain Medical Center, Terumo met with employees of IHC as part of Terumo's obligation to identify the cause of the adverse action and to prevent future recurrence. Moreover, the investigation allegedly included a conference call held between Terumo and IHC to follow up on Terumo's visit to Intermountain Medical Center.
During the deposition of Stephen Garrett, an IHC perfusionist, Plaintiff's counsel attempted to ask him specific questions about the conversations that took place on the evening of Mr. Smith's surgery involving Mr. Garrett, Terumo employee Bob Herbert, and IHC technical specialist David Douglas. IHC's counsel objected on the basis of the care review/peer review privilege and instructed Mr. Garrett not to answer. While Plaintiff has not conducted the additional depositions of IHC employees, Plaintiff's counsel believes that IHC intends to invoke the peer care/peer review privilege regarding the conversations that took place during Terumo's investigation.
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows for "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). The broad language used in the rule suggests that it is to be liberally construed, thereby allowing discovery of all relevant information, even if that information may not be admissible at trial. See id. Although the rules regarding discovery are to be liberally construed, they are not without limits or privileges. Because such privileges contravene the fundamental principles of discovery, the court construes such privileges narrowly and "only to [a] very limited extent." Trammel v. United States, 445 U.S. 40, 50 (1980).
medical care, or for the purpose of peer review of the ethics, competence, or professional conduct of any health care provider.
Utah R. Civ. P. 26(b)(1). The burden is on the "party asserting a privilege to establish that the material sought is protected from discovery." Allred v. Saunders, 342 P. 3d 204, 211 (Utah 2014).
In the instant motion, Plaintiff seeks to compel IHC's employees to provide answers to deposition questions concerning the conversations that took place between Terumo employees and IHC's employees during Terumo's investigation. Plaintiff contends, and Terumo agrees, that the peer review/care review privilege does not apply in this situation because the information being sought was created by Terumo's investigation and was not created specifically, or solely, for care review purposes. In response, IHC asserts that the information in question was provided to Terumo in an effort to find the cause of the problems with the machine, in the context of the hospital's regular process to evaluate and improve patient care, and is therefore protected from disclosure.
This court concludes that IHC's argument is flawed for several reasons. It assumes that the information surrounding Terumo's investigation was solely for the benefit of IHC's efforts to find out why the bypass machine did not perform as expected. However, the investigation was conducted by Terumo to comply with FDA regulations and was not for the sole benefit of IHC. In addition, Terumo is not an entity to which the privilege extends. The information IHC provided to Terumo was not provided to a health care provider, a health care facility, a peer review committee, or an in-house committee that would qualify the communication(s) for the care review privilege. See Utah Code Ann. § 26-25-1(1)-(3). While IHC provided information to Terumo that IHC may have used in their own care review, Terumo was not engaged in care review as envisioned by the care review statute and, in any event, was not a defined entity that could receive the information and have it remain care review privileged.
IHC contends that the information Plaintiff seeks "constitutes information provided during and created specifically as part of an investigation of care review or quality assurance processes of an organization of health care providers for the purposes of evaluating care to reduce mortality and morbidity or to improve the quality of medical care." Again, the court disagrees. IHC is attempting to expand the scope of the privilege at issue by suggesting that anything that may end up as part of a care-review investigation is protected. But that is not what the rule says. It says that the information must be "provided during and created specifically" as part of a request for an investigation or the actual investigation, not simply that it eventually was included in an investigation. There is no evidence of any request by IHC for an investigation in this case. Instead, IHC argues that the conversations were held and information gathered as part of "an investigation," which it defines as "a systematic inquiry regarding some question." For the privilege to apply, the investigation cannot be by just anyone; it must be part of a peer-review, care-review, or quality assurance process of an "organization of health care providers" as defined in the Utah Health Care Malpractice Act for the purpose of evaluating care provided to reduce morbidity and mortality (among other things).
Docket no. 43 at 10.
Furthermore, IHC relies on the affidavit testimony provided in support of its memorandum. The court notes that the affidavits speak in conclusory terms, carefully tracking the key elements of the language of rule 26(b)(1). "To hold that the affidavit[s] set forth an adequate evidentiary basis for the care review privilege leaves [IHC] with a virtual monopoly on the information the trial court will be able to consider." Cannon v. Salt Lake Reg'l Med. Ctr., Inc., 121 P.3d 74, 79 (Utah Ct. App. 2005). Putting aside the fact that the affidavits attempt to create a "virtual monopoly on the information," the testimony contained in them are irrelevant. Whatever IHC's employees thought the purpose of their conversations were during the investigation is of no moment to the court and does not change the purpose of Terumo's investigation. While the IHC employees may have had an expectation that the information they discussed might later be used by IHC to prevent similar problems in the future, that expectation is not enough to make the conversations with Terumo representatives privileged.
In conclusion, Terumo was conducting an investigation to abide by FDA regulations. Thus, its investigation was not "created specifically as part of an investigation of care review or quality assurance processes." Utah R. Civ. P. 26(b)(1). Rather, it was created and conducted by Terumo to determine what happened in Mr. Smith's operating room. Plaintiff ought to be afforded the opportunity to understand what did in fact occur in the operating room.
IHC has not met its burden demonstrating that the information requested is privileged, and, as such, Plaintiff's motion is hereby GRANTED. Accordingly, Plaintiffs may inquire as to the content of the conversations between Terumo representatives and IHC employees as set forth in their motion and memoranda.
DATED this 10th day of August, 2015.


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Huspeni, Judge Blue Earth County District Court File No. 07-CV-06-3020 William A. Moeller, Jill K. Baker, Blethen, Gage & Krause, PLLP, 127 South 2nd Street, P.O. Box 3049, Mankato, MN 56001 (for respondent) Charles J. Lloyd, Livgard & Rabuse, P.L.L.P., 2520 University Avenue Southeast, Suite 202, Minneapolis, MN 55414 (for appellant) Considered and decided by Dietzen, Presiding Judge; Ross, Judge; and Huspeni, Judge.
1. The Minnesota No-Fault Automobile Insurance Act, Minn. Stat. �� 65B.41-.71 (2006 & Supp. 2007), allows the district court to determine coverage issues before compelling arbitration.
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, � 10.
Auto Owners Insurance Co., Respondent, vs. Star Windshield Repair, Inc., as Intended Assignee of A & E Construction Supply, Inc., et al., Appellant.
2. A nonassignment clause in an insurance policy may prohibit the assignment of postloss insurance proceeds. O P I N I O N HUSPENI, Judge Appellant challenges the district court�s award of summary judgment to respondent, arguing that the court incorrectly permanently enjoined arbitration proceedings, and incorrectly determined that respondent�s nonassignment clause prevented assignment of postloss proceeds. Because we conclude that the Minnesota No-Fault Automobile Insurance Act, Minn. Stat. �� 63B.41-.71 (2006 & Supp. 2007) permits district courts to determine coverage issues, that the nonassignment clause is enforceable, and that respondent did not waive its right to nonassignment, we affirm. FACTS The dispute in this case involves ten customers of appellant Star Windshield Repair, Inc. who were insured by respondent Auto Owners Insurance Co. As payment for windshield-repair work, Star Windshield accepted an assignment of each customer�s insurance proceeds. After Star Windshield billed Auto Owners, the insurance company sent Star Windshield a payment for less than the amount billed.
Star Windshield. The district court issued a temporary restraining order, enjoining the arbitration proceeding. Star Windshield moved to dismiss the declaratory-judgment action. The company argued that arbitration was mandatory under the act and that the district court therefore lacked subject-matter jurisdiction to rule on the nonassignment clause. The district court denied the motion. Auto Owners then moved for summary judgment, arguing that the nonassignment provision in the insurance contracts prevented the customers from assigning the proceeds. Star Windshield argued in response that Minnesota law permits the assignment of postloss property insurance proceeds even when a policy includes a nonassignment clause. The district court granted Auto Owners� motion for summary judgment, and in an accompanying memorandum, reasoned that the plain language of the nonassignment clause prevented assignment of rights under the policy. In addition, the district court stated that even if Star Windshield had been assigned the proceeds, it did not have the power to enforce its rights directly against Auto Owners. Star Windshield now appeals. ISSUES 1. Was the district court required to compel arbitration under the Minnesota No-Fault Automobile Insurance Act? 2. Does the nonassignment clause prevent assignment of the right to an undetermined amount of postloss proceeds? 3. Did Auto Owners waive its rights under the nonassignment clause when it sent a payment directly to Star Windshield?
ANALYSIS I. The Minnesota No-Fault Automobile Insurance Act requires �the mandatory submission to binding arbitration of all cases at issue where the claim at the commencement of arbitration is in an amount of ,000 or less against any insured�s reparation obligor for no-fault benefits or comprehensive or collision damage coverage.� Minn. Stat. � 65B.525 (2006). The first issue in this case�which the parties frame in terms of subject-matter jurisdiction�is whether the district court may rule on legal questions before compelling arbitration under the act. This issue involves a question of law, which we review de novo. See Olmanson v. LeSueur County, 693 N.W.2d 876, 879 (Minn. 2005) (reviewing question of law de novo). When should legal questions be submitted to arbitration? The general rule is that an issue should first be submitted to arbitration if it is �reasonably debatable� whether the issue is covered by the arbitration clause in a contract. See State v. Berthiaume, 259 N.W.2d 904, 909 (Minn. 1977) (stating that arbitrator should decide issue of whether dispute is arbitrable if issue is reasonably debatable); Cmty. Partners Designs, Inc. v. City of Lonsdale, 697 N.W.2d 629, 632 (Minn. App. 2005) (same); see also State by Sundquist v. Minn. Teamsters Pub. & Law Enforcement Employees Union Local No. 320, 316 N.W.2d 542, 544 (Minn. 1982) (stating that generally arbitrator is final judge of law and fact).
unauthorized arbitration of both the coverage dispute and the merits of the insured�s claim.� U.S. Fid. & Guar. Co. v. Fruchtman, 263 N.W.2d 66, 71 (Minn. 1978). Thus, �it is not inappropriate for the parties to seek . . . a judicial determination of coverage prior to arbitration.� Myers v. State Farm Mut. Auto. Ins. Co., 336 N.W.2d 288, 291 (Minn. 1983). The same standard applies in no-fault-arbitration cases, where arbitration is required by statute rather than contract. See Johnson v. Am. Family Mut. Ins. Co., 426 N.W.2d 419, 421 (Minn. 1988) (holding that courts must determine legal issues in no-fault-arbitration cases). Arbitration is only mandatory under the act if there is a �claim . . . for no-fault benefits or comprehensive or collision damage coverage.� Minn. Stat. � 65B.525. Thus, by the text of the statute, the district court must determine whether the claim and the benefits exist before compelling arbitration. Furthermore, in no-fault arbitration, the courts have a duty to provide consistent statutory interpretation. Johnson, 426 N.W.2d at 421. Therefore, district courts have an additional reason for determining legal questions before compelling arbitration.
opinion suggests that a district court may not rule on coverage or legal issues as a screening measure to consistently prevent unauthorized arbitration. In fact, in Ill. Farmers Ins. Co., the supreme court remanded the case to the district court to determine whether arbitration should be compelled under the facts of the case. Id. at 807. In this case, Auto Owners has raised a coverage dispute. It requested a declaratory judgment that it was not required to pay money to Star Windshield under the terms of the insurance contract. This is the type of issue that can be judicially determined prior to arbitration. See Myers, 336 N.W.2d at 290-91 (permitting prior judicial determination of whether underinsured-motorist provision in policy applied to passenger in car that struck tree). Therefore, the district court properly ruled on the coverage issue before deciding whether to compel arbitration. II. The standard insurance contract used by Auto Owners states, �No interest in this policy may be assigned without our written consent.� Star Windshield argues that this provision did not prevent the policyholder from assigning the proceeds. According to Star Windshield, Minnesota law permits the assignment of postloss property-insurance proceeds even when a policy includes a nonassignment clause. The interpretation of a contract provision involves a question of law, which we review de novo. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 311 (Minn. 2003).
nonassignment clause should not apply to postloss assignment of proceeds. We note initially what we consider to be an overarching principle that threads through Minnesota appellate court opinions that have addressed the issue of nonassignment clauses in insurance policies. The principle is that insurers should not have to do business with parties with which the insurer has not chosen to enter a contractual relationship. This principle, although not explicitly set forth in most case law, is illustrated with special clarity where an insurer, as here, is compelled to negotiate with a non-contractual party issues involving the actual dollar amounts owed on a claim. Review of case law both informs our decision here and assists in our harmonization of precedent that both parties cite to support their opposite positions in addressing the issue of nonassignment clauses. As a preliminary matter, we note that the Ill. Farmers Ins. Co. decision does not support Star Windshield�s argument that postloss proceeds are assignable. 683 N.W.2d at 792. The issue of whether postloss proceeds were, in fact, assignable was not discussed by the supreme court. Id. It was not necessary to address that issue because it was not raised. Id. Although the supreme court references Minnesota�s statutory scheme for automobile insurance, the reference does nothing to bolster the strength of Star Windshield�s reliance on that case. See id. at 792 (stating that �[b]y forbidding deductibles Minnesota�s statutory scheme for automobile insurance essentially removes the auto glass customer from the payment process� and that �[a]s a result, auto glass companies routinely bill their customers� insurance companies directly�).
In this court�s decision in In re Estate of Sangren, we permitted the assignment of insurance proceeds despite the presence of a nonassignment clause. 504 N.W.2d 786, 790 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). But that case does not establish a general rule permitting the assignment of insurance proceeds. Instead, our decision was based on waiver. Id. Because the insurance company had failed to assert its right to nonassignment, the insurance company could not change its mind four months later and attempt to enforce the nonassignment clause. Id. Thus, the nonassignment clause was not enforced because it was waived. Id. In Liberty Mut. Ins. Co. v. Am. Family Mut. Ins. Co., the supreme court held that a nonassignment clause prevented an attempted assignment of an insured�s existing claim for benefits. 463 N.W.2d 750, 755-56 (Minn. 1990). In that case, a driver, who had been involved in an automobile accident, settled with the insurer for another driver who was found to be 85 percent at fault. Id. at 752. As part of the settlement, the driver that was 15% at fault assigned to the other driver�s insurer his right to recover on his own uninsured/underinsured policy, up to 5,000. Id. at 752-53. The supreme court held that this assignment was not an assignment of the personal-injury action itself and thus not an assignment prohibited by law. Id. at 755. Nonetheless, the supreme court concluded that the nonassignment clause prohibited the assignment. Id. at 756.
supreme court suggested that public policy would be advanced by enforcing the nonassignment clause. Id. Although the supreme court used narrow language in Liberty Mut., its reasoning is generally applicable to the case before us. It is difficult to imagine an assignment of postloss proceeds that does not raise the public-policy concerns associated with champerty and maintenance. In this case, Star Windshield has attempted to purchase the policyholders� ability to collect against the insurance company. If such assignments were permitted, the insurance company would face additional risk that it expressly avoided through the language of the contract. Because of the public policy against champerty, as expressed in Liberty Mut., a nonassignment clause can properly restrict the assignment of postloss proceeds.
proceeds, explaining that the assignment was not precluded by the language of the State Farm policy: [Reitzner] did not receive a pure assignment of the policy, but rather, received an assignment of the proceeds due under the policy should the claim be successful. An assignment of insurance monies due on a successful claim does not require the insurance company�s written consent. An insurance company has a right to put in its policy a provision that the policy cannot be assigned without its consent, but an insured can put in a claim under a policy and promise the claimed proceeds to another without first checking with the company. Id. at 26. In Reitzner, the insurance contract prohibited only the assignment of the �policy� itself. In this case, the insurance contract prohibits the assignment of any �interest in this policy.� Thus, the language of the nonassignment clause here has a considerably broader sweep. In addition, we note that in Reitzner, unlike in this case, there was no indication that the amount payable by the insurer would be challenged or that the assignee would be in a position to contest that amount. In Wilkie v. Becker, the supreme court upheld the assignment of proceeds from a farm auction. 268 Minn. 262, 267-68, 128 N.W.2d 704, 707-08 (1964). Although the assignment was upheld, that case did not involve a nonassignment clause. In upholding the assignment, the supreme court expressly noted that a contract could prevent assignment of money due under a contract if the parties manifested their intention that the contract not be assignable. Id. at 267, 128 N.W.2d at 707. Thus, Wilkie also supports the view that a nonassignment clause can limit the assignment of postloss proceeds.
void the policy under a provision that if it is assigned without the insurer�s consent it shall become void. Id. at 283, 43 N.W.2d at 102. Because there was no assignment at issue, this reasoning was not necessary to the supreme court�s decision. Furthermore, we again note that the policy in this case does more than just limit the assignment of the policy. It prohibits the assignment of any �interest in� the policy. In addition, although Windey permitted an assignment, the opinion contains no indication that the parties disputed the amount due under the assignment, nor is there any indication that the insurer would in any way be compelled to negotiate with the assignee�a party with whom it had no contractual relationship. The law regarding nonassignment clauses was recently revisited in Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267 (Minn. 2004). In Travertine, the supreme court addressed a �management agreement� under which James E. Lennon was to provide management services to Travertine Corp. 683 N.W.2d at 269. The agreement contained a nonassignment clause limiting Lennon�s ability to assign his rights under the management agreement. Id. at 269-70. Lennon then attempted to assign his right to compensation under the agreement to Lexington-Silverwood as part of the settlement of an unrelated dispute. Id. at 270. When Lexington-Silverwood attempted to collect the compensation due to Lennon, Travertine asserted its rights under the nonassignment clause. Id.
The primary issue in Travertine was whether the language in the nonassignment provision was sufficiently clear to invalidate the attempted assignment. Id. at 270-74.
The court held that �[w]hen a contract prohibits assignment in very specific and unmistakable terms, any purported assignment is void.� Id. at 273. Thus, the supreme court concluded that the nonassignment clause in the management agreement was sufficiently specific and contained unmistakable terms that were definite enough to limit Lennon�s ability to assign his rights. Id. at 274. Travertine also acknowledged the general rule that money due under an existing contract is assignable. See id. at 272 (citing Wilkie, 268 Minn. at 267, 128 N.W.2d at 707). But the court went on to emphasize that this general rule only applies when the parties have not included something in the contract�such as a nonassignment clause�manifesting their intention that the contract be non-assignable. Id. We note, also, that in Travertine there was no indication that the amount due the assignor was fixed. The record in that case indicates that the attempted assignment was of a percentage of the company�s net profits. Id. at 269-70. It is very possible that this amount would have been disputed.
assignment of fixed postloss proceeds,1 it would not apply to the case before us. Therefore, because we conclude that Travertine controls our analysis, we conclude that Auto Owners can assert its rights under the nonassignment clause and that the assignment to Star Windshield is invalid. We see no basis upon which to distinguish this case from those cases reflecting the tradition of Minnesota contract law simply because one of the parties here is an insurance company. In Vetter v. Sec. Cont�l Ins. Co., the supreme court noted that insurance policies�such as the one in this case�are treated like ordinary contracts unless a statutory limitation applies. 567 N.W.2d 516, 521 (Minn. 1997). The supreme court then went on to explain that �in the absence of a contractual provision to the contrary, an obligor on a contract may assign all beneficial rights to another, or may delegate his or her duty to perform under the contract to another, without the consent of the obligee.� Id. (emphasis added). Thus, the court anticipated that a contractual provision could limit a policyholder�s ability to assign insurance proceeds. We conclude that Minnesota case law fully supports and is fully consistent with our conclusion that a nonassignment clause can limit the assignment of postloss insurance proceeds, such as the amount due for the windshields in this case. III.
1 Indeed, public policy would almost certainly prohibit enforcement of a nonassignment clause in the hypothetical case of an insured receiving a check from an insurer and endorsing that check over to a third person.
Windshield. Waiver of rights under a contract ordinarily involves a question of fact. Fedie v. Mid-Century Ins. Co., 631 N.W.2d 815, 819 (Minn. App. 2001), review denied (Minn. Oct. 16, 2006). Summary judgment is appropriate only when no genuine issue of material fact exists. Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 788 (Minn. 2005). The rights provided in a nonassignment clause can be waived. Sangren, 504 N.W.2d at 790. The waiving party must make a voluntary and intentional relinquishment or abandonment of a known right. Id. In this case, the record shows that Star Windshield billed Auto Owners directly for its work. Auto Owners then made a payment directly to Star Windshield. Auto Owners objected to the assignment only after Star Windshield disputed the amount of the payment. An insurance company has constructive knowledge of its right to nonassignment. Id.
statute, the company did not voluntarily and intentionally relinquish its right to nonassignment. Therefore, no genuine issue of material fact exists as to waiver and the district court properly granted summary judgment. D E C I S I O N Because Minnesota�s No-Fault Automobile Insurance Act permits district courts to resolve coverage disputes, and because the nonassignment clause in respondent insurer�s policy is enforceable, and was not waived, the district court properly granted summary judgment. Affirmed.

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Kamelia K. Shaw, Esq., Law Firm of Way Associates, New York, NY, Attorney for Plaintiff.
Dan Brecher, Esq., Scarinci Hollenbeck, LLC, New York, NY, Attorney for Defendant.
Leonard Allen ("Allen"), brings this diversity action against Helen Robinson Cox ("Cox") for breach of contract for monies promised by Cox to Allen. Allen alleges that Robinson orally promised to pay him for helping her recover from a serious illness. Allen seeks relief for: (1) breach of contract; (2) conversion; (3) misrepresentation; (4) fraud; and (5) prima facie tort. Defendant now moves to dismiss these claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiff fails to state a claim for which relief can be granted. For the following reasons, defendant's motion to dismiss is granted in part and denied in part.
The following facts are drawn from the Complaint ("Compl.") and are presumed to be true for purposes of this motion.
Allen and Cox were involved in an intimate relationship in which they lived together as domestic partners for twenty-five years. Plaintiff alleges that Cox's health problems began in 1998, and resulted in "various operations including thyroid removal and removal of several `cysts'." Additionally, Allen alleges that Cox was diagnosed and treated for cancer and required medical treatment for this and other health conditions. Allen does not specify if Cox's cancer also occurred in 1998, or at some later date. As a result of apparent medical malpractice during treatment, Cox was "judicially awarded a settlement in excess of $1,000,000."
As a result of her continued health problems, Cox called upon Allen for help and support, but this came at a price. Allen alleges that in June 2006, he and Cox entered into an oral contract whereby Cox offered that "[i]f you take care of me until I get completely through this recovery, I will give you the settlement money." Allen alleges that this was a service contract where the parties agreed that in exchange for Cox's settlement money, Allen would render the personal services needed to help her recover. Plaintiff alleges that at the time of this alleged promise, defendant stated that she could have the money ready for Allen within weeks, given that she received the settlement funds on or about July 1, 2006. Allen alleges that Cox repeated the promise regularly and, at times, in front of witnesses. After the initial offer and acceptance, Allen alleges that on two separate occasions, modifications were made to the amount of money he would receive. The first alleged modification occurred on July 1, 2006, when he agreed to accept $800,000.00. The second modification was in January of 2008, where the promised payment was reduced to $700,000.00.
Allen alleges that soon after Cox received the settlement money in July 2006, she deposited it into joint accounts held in both their names. While Allen acknowledges that Cox, as a joint account holder, had access to and control over their funds, he alleges that it was understood that the money belonged exclusively to him. Allen alleges that in May or June 2007, Cox informed him that the promised money was subject to a large early withdrawal penalty and, therefore, would not be available until September 2009 — three years following the initial deposit. Allen asserts that he was never paid for his services, and that he "has performed all the conditions, covenants, and promises required to be performed in accordance with the terms and conditions of the contract."
Allen also alleges that Cox breached the contract because she deposited the promised funds into a joint bank account, rather than into an account over which he had exclusive control. Allen alleges that he was the sole owner of the money deposited into the couple's joint bank account. He alleges that from November 7, 2006 until June 13, 2007, Cox withdrew funds from the account. "Ms. Cox unbeknownst to Plaintiff, withdrew approximately $430,000 between November 7th and 10th, 2006. Thereafter, Cox continued on this course . . . and began making telephone withdrawals in amounts under $50,000, culminating in a total depletion of . . . Mr. Allen's contract proceeds around June 13, 2007." Allen alleges that Cox misused her access to the money, and that she has continued to deprive him of his money through a "stall tactic of a `substantial pre-term withdrawal penalty' . . ." Allen argues that Cox misrepresented that she would pay him the money she promised him in their oral agreement and that he relied to his detriment on this factual misrepresentation. Allen maintains that Cox's actions were "motivated by maliciousness and malevolence."
Plaintiff commenced this action on September 16, 2011. Cox maintains that plaintiff fails to state a plausible claim, arguing that: (1) there was never any oral contract; and (2) any purported contract is barred by the Statute of Frauds and the Statute of Limitations.
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court evaluates the sufficiency of the complaint under the "two-pronged approach" promulated by the Supreme Court in Ashcroft v. Iqbal. First, a court "`can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'" "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to withstand a motion to dismiss. Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of "plausibility." A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Plausibility "is not akin to a probability requirement;" rather, plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."
556 U.S. ___, 129 S.Ct. 1937, 1950 (2009).
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950). Accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010).
Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Id. at 1950. Accord Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010).
Twombly, 550 U.S. at 564.
Iqbal, 129 S. Ct. at 1949 (quotation marks omitted).
Eternity Global Master Fund Ltd., 375 F.3d 168, 177 (2d Cir. 2004) (quoting Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)).
Bellis v. Tokio Marine and Fire Ins. Co., No. 93 Civ. 6549, 2002 WL 193149, at *9 (S.D.N.Y. Feb. 7, 2002).
N.Y. Gen. Oblig. Law § 5-701(a)(1).
To state a claim for conversion under New York law, a plaintiff must allege facts sufficient to establish that the defendant acted without authorization, defendant exercised dominion or right of ownership over property belonging to the plaintiff, plaintiff has made a demand for the property, and that demand has been refused. Plaintiff must also "demonstrate legal ownership or an immediate superior right of possession to a specific identifiable thing."
See Seanto Exports v. United Arab Agencies, 137 F. Supp. 2d 445, 451 (S.D.N.Y. 2001). "Demand is not always required in order to make out a claim for conversion. It is required only when the original possession is lawful." Reserve Solutions, Inc. v. Vernaglia, 438 F. Supp. 2d 280, 288 (S.D.N.Y. 2006).
Gateway Overseas, Inc. v. Nishat Ltd., No. 05 Civ. 4260, 2006 WL 2015188, at *7 (S.D.N.Y. July 13, 2006) (quotation marks and citation omitted).
"Money can be the subject of a conversion action `where there is a specific identifiable fund, and an obligation to return or otherwise treat in a particular manner the specific fund in question.'" However, an action for conversion of money may not lie where damages are merely being sought for breach of contract. "[P]laintiff must allege acts that are unlawful or wrongful as distinguished from acts that are a mere violation of contractual rights." Conversion claims are governed by a three-year statute of limitations.
Id. (quoting Manufacturers Hanover Trust Co. v. Chemical Bank, 559 N.Y.S.2d 704, 711-12 (1st Dep't 1990)).
Global View Ltd. Venture Capital v. Great Central Basin Exploration, LLC, 288 F. Supp. 2d 473, 479 (S.D.N.Y. 2003) (citation omitted).
In order to prove fraud under New York Law, a plaintiff must show a material misrepresentation of fact made with the intent to defraud the plaintiff, reasonable reliance on the misrepresentation, and an injury suffered as a result of the reliance. Where fraud is not considered duplicative of a breach of contract claim, a plaintiff must either "(i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages."
See Bridgestone/Firestone, Inc. v. Recovery Credit Serv., Inc., 98 F.3d 13, 20 (2d Cir. 1996).
Civil Practice Law and Rules ("CPLR") § 213(2).
The elements of a cause of action for prima facie tort under New York law are: "`(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful[.]'" "Special damages" is defined as a "`specific and measurable loss.'" "`Special damages must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts. . . . They must be fully and accurately stated.'" In addition, the complaint must allege that the defendant was motivated solely by the malicious intention to injure the plaintiff.
Langhorne, 2005 WL 3018265, at *5 (quoting Freihofer, 65 N.Y.2d at 142-43).
Langhorne v. Port Auth. of New York and New Jersey, No. 03 Civ. 4610, 2005 WL 3018265, at *5 (S.D.N.Y. Nov. 10, 2005) (quoting Freihofer v. Hearst Corp., 65 N.Y. 2d 135, 143 (1985)).
D'Angelo-Fenton v. Town of Carmel, 470 F. Supp. 2d 387, 401 (S.D.N.Y. 2007) (quoting Lincoln v. First Bank of Rochester v. Siegel, 400 N.Y.S.2d 627, 637 (4th Dep't 1977)).
See Rodgers v. Grow-Kiewit Corp., 535 F. Supp. 814, 816 (S.D.N.Y.), aff'd, 714 F.2d 116 (2d Cir. 1992). "The plaintiff must establish that the only motivation for the behavior of the defendant was `disinterested malevolence'. . . . This means that `the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another.'" Langhorne, 2005 WL 3018265, at *5 (quoting Ruderman v. Stern, No. 39179/97, 2004 WL 3153217, at *16 (Sup. Ct. N.Y.Co. Oct. 25, 2004)).
Defendant argues that plaintiff has failed to plead the requirements necessary to state a valid breach of contract claim. Plaintiff has alleged, inter alia, (1) that he entered into an oral contract with Cox to take care of her throughout her illness in exchange for $700,000.00; (2) that he performed the promised services for Cox; (3) that he was never paid for his services; and (4) he has suffered damages as a result of the breach. These allegations are sufficient to allow plaintiff to maintain his breach of contract claim.
Alternatively, defendant argues that the oral agreement does not satisfy the Statute of Frauds. However, because the terms of the alleged agreement did not specify an amount of time in which performance must have been completed, it could have been performed within one year and, therefore, it satisfies the Statute of Frauds. Indeed, plaintiff claims the alleged agreement was to be performed within a year of its making.
Defendant also claims that the breach of contract claim is time-barred. In New York, breach of contract claims are governed by a six-year statute of limitations. Because the alleged breach occurred in 2009, the action is not time-barred. Therefore, defendant's request to dismiss the breach of contract claim is denied.
Plaintiff next argues that defendant's withdrawal of money from the couple's joint account constitutes conversion. Because this claim is duplicative of the breach of contract claim, it must be dismissed. Moreover, to sustain a claim of conversion where the original possession is lawful, plaintiff must make a demand for the specified property. Plaintiff alleges that defendant promised him the settlement money three years after she received it, a term to which he expressly agreed. Therefore, any right to payment had not yet accrued when defendant withdrew the money from the joint account in 2007. At that time, defendant retained both ownership and control of the money. Moving the funds did not violate any of plaintiff's rights. As the money was in a joint account, defendant was authorized to withdraw the money. Because plaintiff failed to plead that he made any demand for the money, other than filing the instant suit, his conversion claim is dismissed.
See Ad Rendon Commc'ns, Inc. v. Lumina Americas, Inc., No. 04 Civ. 8832, 2007 WL 2962591, at *4-5 (S.D.N.Y Oct. 10, 2007). ("[E]ven if a plaintiff meets all of the elements of a conversion claim, the claim will still be dismissed if it is duplicative of a breach of contract claim . . . [S]imilarly, a conversion claim will `be deemed redundant when damages are merely being sought for breach of contract.'") (quoting Rolls-Royce Motor Cars, Inc. v. Schudroff, 929 F. Supp. 117, 124 (S.D.N.Y. 1996)).
Plaintiff alleges claims of misrepresentation and fraud due to defendant's statement that he would have to wait three years for the settlement money because of an early withdrawal penalty, and that he relied on this alleged misrepresentation to his detriment. Allen has failed to allege that this was in fact a misrepresentation. Nor has he alleged that Cox made the statement with an intent to defraud. Plaintiff claims he was injured by Cox's failure to pay him for his services. As such, the allegations here are duplicative of his breach of contract claim. Moreover, the damages Allen seeks for his fraud and misrepresentation claims are recoverable under his breach of contract claim. A general request for punitive damages is not enough to differentiate the damages recoverable for fraud from those sought for breach of contract. Accordingly, plaintiff's misrepresentation and fraud claims must be dismissed.
See Bridgestone/Firestone, Inc., 98 F.3d at 20 ("where a fraud claim `is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties' agreement, a cause of action sounding in fraud does not lie'") (quoting McKernin v. Fanny Farmer Candy Shops, Inc., 176 A.D.2d 233, 234 (2d Dep't 1991)).
See Krantz v. Chateau Stores of Can., Ltd., 683 N.Y.S.2d 24 (1st Dept 1998).
Finally, plaintiff has failed to plead the elements of a prima facie tort. Allen failed to plead any special damages with particularity. Therefore, this claim is dismissed.
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that other than amendments as a matter of course, "a party may amend its pleading only with the opposing party's written consent or with the court's leave." Although "[t]he Court should freely give leave when justice so requires," it is "within the sound discretion of the district court to grant or deny leave to amend." "When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint." However, "it is well established that leave to amend a complaint need not be granted when amendment would be futile."
Slayton v. American Express Co., 460 F.3d 215, 226 n. 10 (2d Cir. 2006) (quotation marks omitted).
McCarthy v. Dun Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999).
Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003).
In the instant action, plaintiff's claims for conversion, fraud and misrepresentation were dismissed, in part, because they are duplicative of his breach of contract claim. As such, amending the Complaint would be futile and is therefore denied. However, plaintiff may amend his claim for prima face tort, within twenty-one days of the date of this Order.
For the foregoing reasons, defendant's motion to dismiss is granted in part and denied in part. The Clerk of the Court is directed to close this motion (Docket No. 14). A conference is scheduled for July 18, 2011, at 5:00pm.


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DUŠEK, K. et al. Diagnostika defektu způsobeného svodem mezi vývody integrovaných kondenzátorů. [Výzkumná zpráva] 2016.
ZDĚNEK, J. et al. Research Report JC2016-TCU-0019. [Výzkumná zpráva] 2016. Zpráva č. JC2016-TCU-0019.
ČERNÁ, L. et al. STUDIE MOŽNOSTÍ INSTALACÍ HYBRIDNÍCH FOTOVOLTAICKÝCH SYSTÉMŮ ZÁLOHOVANÝCH SÍTÍ V ČR. [Výzkumná zpráva] PRAŽSKÁ PLYNÁRENSKÁ, a.s., 2016.
KOŠŤÁL, T. et al. Research Report JC2016-TCU-0018. [Výzkumná zpráva] 2016. Zpráva č. JC2016-TCU-0018.
BREJCHA, M. et al. Research Report JC2016-TCU-0015. [Výzkumná zpráva] 2016. Zpráva č. JC2016-TCU-0015.
KONEČNÁ, Z., P. ŽÁK a J. KÁBRT. Qualification of I&C components. [Nepublikovaná přednáška] IAEA. 2016-10-19.
HOLOVSKÝ, J. Subbandgap absorption spectroscopy of photovoltaic materials: applicability and interpretation. [Nepublikovaná přednáška] 2016-08-23.

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Omega S.A. v. Costco Wholesale Corp.
In this case the court determined that despite the U. S. Supreme Court’s decision in Quality King Distributors, Inc. v. L'anza Research International, Inc., 523 U.S. 135 (1998), it is still the law of the Ninth Circuit that the first sale doctrine is not a valid defense to an infringement claim for an unauthorized sale of a copyrighted work, when the copies containing the work were manufactured and first sold overseas. Costco sold in its U.S. stores authentic Omega watches (containing a copyrighted design) that had been manufactured and first sold outside the U.S. Omega had not authorized Costco to sell the watches in its stores and it sued Costco for copyright infringement. Costco asserted the “first sale” doctrine as a defense, and the district court granted summary judgment for Costco. The Ninth Circuit reversed and remanded.
Omega argued that the first sale doctrine did not apply in this case because the watches were manufactured and first sold overseas and thus were not “lawfully made under” the Copyright Act, as required by the language of § 109(a). Costco argued that, although several Ninth Circuit decisions supported Omega’s argument (BMG Music v. Perez, 952 F.2d 318 (9th Cir. 1991), Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477 (9th Cir. 1994), and Denbicare U.S.A. Inc. v. Toys "R" Us, Inc., 84 F.3d 1143 (9th Cir. 1996)), the U.S. Supreme Court effectively overruled those cases in Quality King Distributors, Inc. v. L'anza Research International, Inc., 523 U.S. 135 (1998).
The court stated that Omega's position was clearly correct under pre-Quality King Ninth Circuit precedent. Before Quality King, the Ninth Circuit had construed 17 U.S.C. § 109(a) to provide no defense to an infringement action under §§ 106(3) and 602(a) that involved (1) foreign-made, nonpiratical copies of a U.S.-copyrighted work, (2) unless those same copies had already been sold in the U.S. with the copyright owner's authority.
In the instant case, the court held that “the first portion of this construction is not ‘clearly irreconcilable’ with Quality King, and that it remains the law of this circuit.” According to the Ninth Circuit, Quality King did not directly overrule BMG Music, Drug Emporium, and Denbicare because Quality King involved "round trip" importation. In Quality King, a product with a U.S.-copyrighted label was manufactured inside the United States, exported to an authorized foreign distributor, sold to unidentified third parties overseas, shipped back into the United States without the copyright owner's permission, and then sold in California by unauthorized retailers. The Supreme Court held that § 109(a) can provide a defense to an action under § 602(a) in this context, but the court did not address the effect of § 109(a) on claims involving unauthorized importation of copies made abroad.
The Ninth Circuit concluded that the first sale doctrine is unavailable as a defense to the claims under §§ 106(3) and 602(a) because there is no genuine dispute that Omega manufactured the watches in Switzerland.


§ 102.98 Petition for advisory opinion; who may file; where to file.
§ 102.99 Contents of petition for advisory opinion.
§ 102.100 Notice of petition; service of petition.
§ 102.101 Response to petition; service of response.
§ 102.103 Proceedings before the Board; briefs; advisory opinions.
§ 102.104 Withdrawal of petition.
§ 102.105 Petitions for declaratory orders; who may file; where to file; withdrawal.
§ 102.106 Contents of petition for declaratory order.
§ 102.107 Notice of petition; service of petition.
§ 102.108 Response to petition; service of response.
§ 102.110 Proceedings before the Board; briefs; declaratory orders.
24 FR 9102, Nov. 7, 1959, unless otherwise noted. Redesignated at 82 FR 11754, Feb. 24, 2017.


The good news for artists is that New York Law protects artists from art dealers.
Artists and art dealers have a symbiotic relationship which should be based on trust and mutual respect.
In short, they depend on each other and a good artist/art dealer relationship can be very beneficial and prosperous for all involved. That does not, however, mean that the artists and art dealers’ interests, actions and motives are always completely in synch. In fact, there are many potential pitfalls and conflicts of interest in this complex relationship.
Under the best of circumstances, the relationship between artists and art dealers is fraught with potential problems that could and should be addressed in a written consignment agreement (see Anatomy of a Consignment Agreement).
But, what happens when artists and art dealers fail to enter into a consignment agreement detailing their respective rights and obligations?
What are their respective rights and obligations? Well, at least in New York, there is a well-developed body of statutory and common law to address these very situations.
Under New York’s Arts and Cultural Affairs Law (“NYACAL”), the delivery of work to an art merchant by an artist or his/her estate “for the purpose of exhibition and/or sale on a commission, fee or another basis of compensation” establishes a consignor/consignee relationship. 4 N.Y. ARTS & CULT. AFF. LAW § 12.01(1); see also In re Friedman, 64 A.D.2d 70, 82-83 (N.Y. App. Div. 1978) (finding that “consignments of art not sales are the prevalent business arrangement between artists, or their estates, and art dealers”).
Thereafter, the art merchant holds the consigned work as trust property on behalf of the artist and his/her estate. See N.Y. Arts & Cult. Aff. Law § 12.01(1); see also id. § 11.01 (“‘On consignment’ means that no title to, estate in, or right to possession of, the work of fine art or multiple that is superior to that of the consignor vests in the consignee, notwithstanding the consignee’s power or authority to transfer or convey all the right, title and interest of the consignor, in and to such work, to a third person.”). Where an art merchant claims ownership of consigned work, the art merchant bears the burden of establishing that full payment was made for that work to the artist or the artist’s estate. See Grosz v. Serge Sabarsky, Inc., 24 A.D. 3d 264, 265 (Dec. 22, 2005).
As an initial matter, it must be determined if the individual or entity in possession of the falls within the definition of “art merchant” under the NYACAL. Under the NYACAL “art merchant” is defined as “a person who by his occupation holds himself out as having knowledge or skill peculiar to such works, or to whom such knowledge or skill may be attributed by his employment of an agent or other intermediary who by his occupation holds himself out as having such knowledge or skill.” N.Y. Arts & Cult. Aff. Law § 11.01(2); see Wesselmann v. International Image Inc., 172 Misc. 2d 247, 250 (N.Y. Sup. Ct. 1996) (pointing to the defendants’ prior statements that the plaintiff’s “success was largely attributable to [their] skill and efforts” as evidence of defendants status as an art merchant), aff’d, 259 A.D.2d 448 (N.Y. App. Div. 1999), appeal dismissed, 94 N.Y.2d 796 (1999).
As noted in Wesselmann v. International Image Inc., 172 Misc. 2d 247, 250 (N.Y. Sup. Ct. 1996), the “clear intent of the [NYACAL] is to create a trust relationship even when the art merchant makes a financial investment in the art.” Wesselmann, 172 Misc. 2d at 252; see also In re Freidman, 91 Misc. 2d at 204 (noting that the NYACAL was enacted in order to “‘protect artists who have a limited market and access to that market only through art dealers’” (quoting Memoranda of State Department, 1966 N.Y. Sess. Laws 1963-64 (McKinney)).
Thus, under the NYACAL, an art merchant’s financial investment in an artist’s work does not transform an otherwise valid consignment into an outright sale unless and “until the price [of such work] is paid in full.” N.Y. Arts & Cult. Aff. Law §§ 11.01, 12.01(1) (stating that payment in full is required to transfer title “[n]otwithstanding . . . any agreement, note, memorandum or writing to the contrary” and that any waiver of these protections by either the artist or art merchant is “absolutely void”).
In addition, an artist or his/her estate may recover compensatory damages for any works that are shown to be missing or are believed to have been disposed of by the art dealer through undocumented transactions. See N.Y. Arts & Cult. Aff. Law § 12.01(1) (defining consigned work as “trust property in the hands of the consignee”); see also Scher v. Stendhal Gallery, Inc., 117 A.D. 3d 146, 161 (N.Y. App. Div. 2014) (permitting plaintiff to recover for “all prints that are missing or believed to have been disposed of through undocumented sales”).
An art dealer’s liability for any missing or unaccounted for works flows from his/her status as a consignee. In New York, a consignment is considered, “essentially, an agency with a bailment.” See United States v. Nektalov, 440 F. Supp. 2d 287, 298 (S.D.N.Y. 2006). Moreover, under New York law where “a bailee fails to return a bailor’s property, there is a presumption of liability, and if the property cannot be found, a prima facie case of negligence exists.” Maisel v. Gruner & Jahr USA, Inc., 89 A.D.2d 503, 504 (N.Y. App. Div. 1982). It is then up to the bailee (the art dealer) to rebut this presumption by showing that the bailed property is not lost or that the cause of the loss was not within his/her control. See Isik Jewelry v. Mars Media, Inc., 418 F. Supp. 2d 112, 121 (E.D.N.Y. 2005); Maisel, 89 A.D.2d at 504.


text:
As follows from the actual data of operating wells, the dynamics of their technological indicators are very often characterized by an expressed nonmonotonicity. Today the problem of physical and/or technological factors contributing to such nonmonotonic dynamics of well work has not been studied yet, largely due to the complexity of detailed mathematical modeling of wells. Thus, the experience of mathematical modeling of individual wells (even using sectoral models) typically demonstrates the impossibility of commercial hydrodynamic simulations with a sufficient degree of detail to simulate complex nonmonotonic dynamics of technological indicators. In this regard, it is necessary to use specialized software.
Today, there are specialized software to simulate the work of individual wells; however, the complexity of multiphase filtration near wells, which often cannot be explained from the standpoint of traditional physical and mathematical models, necessitates the development of original software. In particular, this concerns the effect of nonlinear effects and nonequilibrium on the relative phase permeability (RPP), while the non-equilibrium factor is much less studied.
This paper observes the results of applying the developed software for numerical analysis of oil well’s operation on the reservoir BV81-3 of Samotlor Field. The computer program is created on the basis of physical and mathematical model describing the filtration of oil and water in the reservoir, including the nonequilibrium RPP model of G. I. Barenblatt.
Barenblatt’s nonequilibrium filtration model involves the use of relaxation time. Since relaxation time values do not have unambiguous evaluation, this work presents a sensitivity analysis with different relaxation times. The results show that the examined system reservoir-fluid relaxation time is approximately 100 days.
This work shows the research results of well water cut dynamics depending on its operation mode and the reservoir characteristics. In all cases the nonequilibrium RPP leads to expressed pulsations of water cut.
Aziz K., Settari A. 1982. Matematicheskoe modelirovanie plastovykh system [Petroleum Reservoir Simulation]. Translated from English. Moscow: Nedra.
Barenblatt G. I., Entov V. M., Ryzhik V. M. 1984. Dvizhenie zhidkostey i gazov v prirodnykh plastakh [The Movement of Liquids and Gases in Reservoir]. Moscow: Nedra.
Basniev K. S., Kochina I. N., Maksimov V. M. 1993. Podzemnaya gidromekhanika [Underground hydromechanics]. Moscow: Nedra.
Zakirov E. S. 2001 Trekhmernye mnogofaznye zadachi prognozirovaniya, analiza i regulirovaniya razrabotki mestorozhdeniy nefti i gaza [Three-Dimensional Multiphase Problem of Forecasting, Analysis and Regulation Reservoir Engineering of Oil and Gas Fields]. Moscow: Graal.
Pichugin O. N., Solyanoy P. N., Gavris A. S., Kosyakov V. P., Kosheverov G. G. 2015. “Sovershenstvovanie sistem razrabotki mestorozhdeniy na osnove kompleksnogo analiza informatsii o maloamplitudnykh tektonicheskikh narusheniyakh” [Updating of Fields Development Systems on the Basis of Complex Analysis of the Information about Low-Amplitude Tectonic Faults]. Neftepromyslovoe delo, pp. 5-15.
Stepanov S. V., Efimov P. A. 2006. “Vliyanie perekhodnoy zony i skorosti vytesneniya na dinamiku obvodneniya skvazhiny” [Effect of a Transition Zone and Speed of Displacement on Drowning Dynamics]. Oil Industry, no 7, pp 84-86.
Stepanov S.V. 2006. “Ispol'zovanie dannykh razrabotki mestorozhdeniy nefti dlya polucheniya krivykh fazovykh pronitsaemostey” [Use of oil Field Development Data for Phase Permeability Curves Obtaining]. Oil Industry, no 4, pp. 112-114.
Stepanov S. V. 2006. “Matematicheskoe modelirovanie skvazhiny s uchetom struktury nasyshcheniya raschetnoy yacheyki” [Mathematical Modelling of a Well in View of Structure of Saturation of a Computational Mesh]. Oil Industry, no 4, pp. 114-115.
Stepanov S. V. 2008. “Chislennoe issledovanie vliyaniya kapillyarnogo davleniya i szhimaemosti na dinamiku obvodnennosti skvazhiny” [Numerical Research of Capillary Pressure and Compressibility Effect on the Drowning Dynamics]. Oil Industry, no 8, pp. 72-74.
Khasanov M. M., Bulgakova G. T. 2003. Nelineynye i neravnovesnye effekty v reologicheski slozhnykh sredakh [Nonlinear and Nonequilibrium Effects in Rheologically Complex Environments]. Moscow-Izhevsk: IKI.

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Section 3005, Pub. L. 94–463, §6, as added Pub. L. 107–171, title X, §10605(a), May 13, 2002, 116 Stat. 513 ; amended Pub. L. 110–234, title X, §10106, May 22, 2008, 122 Stat. 1337 ; Pub. L. 110–246, §4(a), title X, §10106, June 18, 2008, 122 Stat. 1664 , 2098; Pub. L. 112–240, title VII, §701(g)(1), Jan. 2, 2013, 126 Stat. 2366 ; Pub. L. 113–79, title X, §10003, Feb. 7, 2014, 128 Stat. 940 , established the Farmers' Market and Local Food Promotion Program.
Section 3006, Pub. L. 94–463, §7, Oct. 8, 1976, 90 Stat. 1983 ; Pub. L. 105–362, title I, §101(d)(2), Nov. 10, 1998, 112 Stat. 3281 , related to authorization of appropriations.


George C. WALLACE, Governor of the State of Alabama, et al.
In these cases probable jurisdiction is noted limited to Question 1 in the jurisdictional statements. The cases are consolidated and a total of one hour is allotted for oral argument. The judgment with respect to the other issues presented by the appeals is affirmed.
In his amended complaint in this case, appellee sought (1) a judgment holding two statutory provisions, Ala.Code § 16-1-20.1, Ala.Code § 16-1-20.2, and certain allegedly State sanctioned, though not statutorily sanctioned, school prayer practices invalid under the Establishment Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, and (2) an injunction against the enforcement of these statutory provisions and nonstatutory practices. The District Court dismissed the amended complaint. The Court of Appeals reversed the District Court's judgment in relevant part. It held the challenged statutory provisions and nonstatutory practices unconstitutional and ordered the District Court to enter an injunction. Appellants invoke this Court's appellate jurisdiction under 28 U.S.C. § 1254(2) regarding the Court of Appeals' judgments on the statutory provisions.
As I understand it, the order this Court enters today is a holding that Ala.Code § 16-1-20.2 is invalid as repugnant to the Establishment Clause of the First Amendment, applicable to the States under the Fourteenth Amendment. Moreover, the Court's order also affirms the judgment of the Court of Appeals insofar as it directed the District Court to enjoin the appellants from enforcing Ala.Code § 16-1-20.2. The judgment of the Court of Appeals concerning the nonstatutory school prayer practices is not within the appellate jurisdiction of this Court and is challenged in a petition for a writ of certiorari in No. 83-804. The Court denies that petition.
"Whether a state statute which permits, but does not require, teachers in public schools to observe up to a minute of non-activity for meditation or silent prayer has the predominant effect of advancing students' liberty of religion and of mind rather than any effect of establishing a religion." Juris. Statement, No. 83-812 i.
"Does a moment of silence for individual silent 'prayer or meditation' at the beginning of each school day in a public school classroom violate the Establishment Clause of the First Amendment as interpreted by its language, framers' intent, and history?" Juris. Statement, No. 83-929 i.
On the understanding that the Court has limited argument to the question whether Ala.Code § 16-1-20.1 is invalid as repugnant to the Establishment Clause, applicable to the States under the Fourteenth Amendment, I join the Court's order.


text:
This data protection information applies to data processing by NORTROP Speditions- und Schiffahrtsgesellschaft mbH (responsible person), Segelckestr. 38, 27472 Cuxhaven, Germany, Tel. + 49 4721 6663-0, Fax. + 49 4721 6663-15.
When the customer places an order with us, we collect the following information: title, first name, last name, a valid e-mail address, address, telephone number (landline and / or mobile) as well as information necessary for carrying out the order placed with us.
We use this data for order processing, collection, delivery, order picking, returns processing, goods traffic, payment transactions, credit checks, delivery to the specified address and, if necessary, the processing of cancellations and refunds. In short, to fulfill our logistics services. We also use the data to inform our customers about our offers.
Data processing takes place at the request of the customer and is required according to Art. 6 para. 1 p. 1 lit. b DSGVO (German General Data Protection Regulation = GDPR) for the stated purposes for the proper execution of the order and for the mutual fulfillment of obligations arising from the order.
The personal data collected by us in connection with the order will be stored for a period of ... years and then deleted, unless we are obliged to store data for a longer period of time in accordance with Article 6 para. 1 sentence 1 lit. c GDPR due to tax and commercial requirements for storage and documentation (German Commercial Code, German Panel Code or German Tax Code) or unless the client has consented to further storage in accordance with Art. 6 para. 1 sentence 1 lit. a GDPR.
When you visit our website https://www.nortrop.de, the browser used on your device automatically sends information to the server of our website. This information is temporarily stored in a so-called log file. The following information is collected without your intervention and stored until automated deletion after seven days: IP address of the requesting computer, date and time of access, name and URL of the retrieved file, website from which the access is made (referrer URL), status code, browser used and, if necessary, the operating system of your computer as well as the name of your access provider.
The above data will be processed by us for the following purposes: ensuring a smooth connection setup of the website, ensuring a comfortable use of our website, evaluation of system security and stability as well as for other administrative purposes.
The legal basis for data processing is Art. 6 para. 1 p. 1 lit. f GDPR. Our legitimate interest ensues from the data collection purposes listed above. Under no circumstances we will use the collected data for the purpose of drawing conclusions about you.
Voluntary contact via e-mail is technically separate from the website. Your personal data such as name and e-mail address will be needed in order to answer your request. This data will under no circumstances be passed on to third parties.
We will only disclose your personal data to third parties if you have expressly consented to this in accordance with Art. 6 para. 1 sent. 1 lit. a GDPR, if disclosure pursuant to Art. 6 para. 1 sentence 1 lit. f GDPR is required for the execution of the order and if there is no reason to believe that you have a predominantly legitimate interest in the non-disclosure of your data, in the event of a legal obligation of disclosure pursuant to Art. 6 para. 1 sentence 1 lit. c GDPR, as well as if this is permitted by law and in accordance with Art. 6 para. 1 sentence 1 lit. b GDPR and necessary for the settlement of contractual relationships with you.
to complain to a supervisory authority pursuant to Art. 77 GDPR. As a rule, you can contact the supervisory authority of your usual place of residence or work or of our office.
If your personal data is processed based on legitimate interests in accordance with Art. 6 para. 1 sentence 1 lit. f GDPR, you have the right to file an objection against the processing of your personal data in accordance with Art. 21 GDPR, provided that there are reasons for this arising from your particular situation or the objection is directed against direct advertising. In the latter case, you have a general right of objection, which will be implemented by us without any particular situation being specified.
We use the popular SSL (Secure Socket Layer) method for visits to our website, in conjunction with the highest level of encryption supported by your browser. In general, this is a 256-bit encryption. The actual strength of encryption depends on the browser. If your browser does not support 256-bit encryption or if you are using older versions of browsers, it can happen that encryption only takes place with 128, 56 or 40 bits, whereby always the best possible encryption for the respective browser is automatically used. Whether an individual page of our website is encrypted is shown by the closed representation of the key or lock icon in the lower status bar of your browser.

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§ 708.001. DEFINITIONS. In this chapter, “department” and “license” have the meanings assigned by Section 521.001.
Added by Acts 2003, 78th Leg., ch. 1325, § 10.01, eff. Sept. 1, 2003.
§ 708.002. RULES. The department shall adopt and enforce rules to implement and enforce this chapter.
§ 708.003. FINAL CONVICTIONS. For purposes of this chapter, a conviction for an offense to which this chapter applies is a final conviction, regardless of whether the sentence is probated.
(2) an offense covered by Subchapter C.
Added by Acts 2003, 78th Leg., ch. 1325, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 8, § 2.03, eff. Jan. 11, 2004.
§ 708.052. ASSIGNMENT OF POINTS FOR CERTAIN CONVICTIONS.
(a) The driver’s license of a person accumulates a point under this subchapter as of the date the department records a conviction of the person under Section 521.042 or other applicable law.
(2) three points for a moving violation of the traffic law of this state, another state, or a political subdivision of this or another state that resulted in an accident.
(c) The department by rule shall designate the offenses that constitute a moving violation of the traffic law under this section.
(d) Notwithstanding Subsection (b), the department may not assign points to a person’s driver’s license if the offense of which the person was convicted is the offense of speeding and the person was at the time of the offense driving less than 10 percent faster than the posted speed limit. This subsection does not apply to an offense committed in a school crossing zone as defined by Section 541.302.
(e) Notwithstanding Subsection (b), the department may not assign points to a person’s license if the offense committed by the person was adjudicated under Article 45.051 or 45.0511, Code of Criminal Procedure.
§ 708.053. ANNUAL SURCHARGE FOR POINTS.
Each year, the department shall assess a surcharge on the license of a person who has accumulated six or more points under this subchapter during the preceding 36-month period.
§ 708.054. AMOUNT OF POINTS SURCHARGE.
The amount of a surcharge under this chapter is $100 for the first six points and $25 for each additional point.
§ 708.055. NOTICE OF ASSIGNMENT OF FIFTH POINT.
The department shall notify the holder of a driver’s license of the assignment of a fifth point on that license by first class mail sent to the person’s most recent address as shown on the records of the department.
This subchapter does not apply to an offense committed before September 1, 2003.
§ 708.102. SURCHARGE FOR CONVICTION OF CERTAIN INTOXICATED DRIVER OFFENSES.
(a) In this section, “offense relating to the operating of a motor vehicle while intoxicated” has the meaning assigned by Section 49.09, Penal Code.
(b) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.
(2) $2,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.
(d) A surcharge under this section for the same conviction may not be assessed in more than three years.
§ 708.103. SURCHARGE FOR CONVICTION OF DRIVING WHILE LICENSE INVALID OR WITHOUT FINANCIAL RESPONSIBILITY.
(a) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been convicted of an offense under Section 521.457, 601.191, or 601.371.
(b) The amount of a surcharge under this section is $250 per year.
§ 708.104. SURCHARGE FOR CONVICTION OF DRIVING WITHOUT VALID LICENSE.
(a) Each year the department shall assess a surcharge on the license of a person who during the preceding 36-month period has been convicted of an offense under Section 521.021.
(b) The amount of a surcharge under this section is $100 per year.
(c) A surcharge under this section for the same conviction may not be assessed in more than three years.
§ 708.151. NOTICE OF SURCHARGE.
The department shall notify the holder of a driver’s license of the assessment of a surcharge on that license by first class mail sent to the person’s most recent address as shown on the records of the department. The notice must specify the date by which the surcharge must be paid and state the consequences of a failure to pay the surcharge.
§ 708.152. FAILURE TO PAY SURCHARGE.
(a) If before the 30th day after the date the department sends a notice under Section 708.151 the person fails to pay the amount of a surcharge on the person’s license or fails to enter into an installment payment agreement with the department, the license of the person is automatically suspended.
(b) A license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.
§ 708.153. INSTALLMENT PAYMENT OF SURCHARGE.
(a) The department by rule shall provide for the payment of a surcharge in installments.
(2) may provide that if the person fails to make a required installment payment, the department may declare the amount of the unpaid surcharge immediately due and payable.
§ 708.154. CREDIT CARD PAYMENT OF SURCHARGE.
(a) The department by rule may authorize the payment of a surcharge by use of a credit card. The rules shall require the person to pay all costs incurred by the department in connection with the acceptance of the credit card.
(b) If a surcharge or a related cost is paid by credit card and the amount is subsequently reversed by the issuer of the credit card, the license of the person is automatically suspended.
(c) A license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.
§ 708.155. CONTRACTS FOR COLLECTION OF SURCHARGES.
The department may enter into a contract with a private attorney or a public or private vendor for the provision of services for the collection of surcharges receivable and related costs under this chapter. The total amount of compensation may not exceed 30 percent of the amount of the surcharges and related costs collected.
Added by Acts 2003, 78th Leg., ch. 1325, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 8, § 2.04, eff. Jan. 11, 2004.
§ 708.156. REMITTANCE OF SURCHARGES COLLECTED TO COMPTROLLER.
Each surcharge collected by the department under this chapter shall be remitted to the comptroller as required by Section 780.002, Health and Safety Code.