text:
Edward S. Wardell (Argued), Kelley, Wardell & Craig, Haddonfield, NJ 08033, Attorney for U.S. Healthcare, Inc.
Melvin Greenberg (Argued), Greenberg, Dauber Epstein & Tucker, Newark, NJ 07102, Attorney for Medemerge, P.A., John Pilla, M.D., Carol E. Sgambelluri, M.D., and Kent R. Ellis, M.D.
Before us is Linda Pryzbowski's appeal of two orders of the United States District Court for the District of New Jersey: (1) the December 3, 1997 order dismissing her claims against U.S. Healthcare for its delay in approving requested services after determining that those claims were completely preempted under S 502(a) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. S 1132(a)(1)(B); and (2) the September 8, 1999 order granting summary judgment on the state law claims in favor of the remaining defendants, Medemerge, P.A. and Dr. John Pilla, Dr. Carol E. Sgambelluri, and Dr. Kent R. Ellis ("the physician defendants"), on the ground that those claims were expressly preempted by S 514(a) of ERISA, 29 U.S.C. S 1144(a). See Pryzbowski v. U.S. Healthcare, Inc., 64 F. Supp. 2d 361 (D.N.J. 1999).
Our review of the District Court's orders granting dismissal and summary judgment based on ERISA preemption is plenary. See Travitz v. Northeast Dep't ILGWU Health & Welfare Fund, 13 F .3d 704, 708 (3d Cir. 1994). When reviewing the order granting dismissal, we must accept as true all the factual allegations in the complaint and draw all reasonable inferences from them. See Banks v. Wolk, 918 F.2d 418, 419 (3d Cir . 1990). When reviewing the order granting summary judgment, we must draw all reasonable inferences in favor of the non-moving party and may only affirm if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Travitz, 13 F .3d at 708.
Pryzbowski is enrolled in The Health Maintenance Organization of New Jersey, Inc., a wholly owned subsidiary of U.S. Healthcare, Inc. (hereafter "U.S. Healthcare"), which is a health maintenance organization ("HMO") offered by the employer of Pryzbowski's husband under its employee benefit plan within the terms of ERISA. On November 10, 1993, Pryzbowski sought treatment from Medemerge, her primary care provider, for sever e back pains that she had been experiencing for several days. Medemerge is a physician practice group under contract with U.S. Healthcare to provide health care services. Pryzbowski had previously undergone numerous surgeries for her back, the most recent having been performed by Dr. Giancarlo Barolat of Thomas Jefferson University Hospital in Philadelphia, all of which were covered under her previous health care plan. At Medemerge, she was treated at different times by Dr. John Pilla, Dr. Carol E. Sgambelluri, and Dr. Kent R. Ellis.
A CT scan performed on November 29, 1993 revealed disc degeneration and a large, extra-dural defect compressing the thecal sac, consistent with disc herniation. It also showed a previously implanted neurostimulator. Medemerge referred Pryzbowski to Dr . Alan Sarokhan, an orthopedic surgeon. Dr. Sarokhan wrote to Dr. Ellis, stating that "[s]he certainly needs a neurosurgical evaluation and needs one promptly. . . . It is my opinion that she will most likely find that the most recent operating surgeon is the only one in the area who will be likely to even approach this with any confidence." App. J, at J-2. On December 9, 1993, Pryzbowski went to see Dr. Aiden Doyle, a neurosurgeon, again through a referral from Medemerge. Dr. Doyle concluded, "she should go back to the surgeon who put it in. I have discussed this with them and obviously I really don't feel that I should be fiddling with that." App. K, at K- 3.
Based on these two reports, Medemerge sent a request to U.S. Healthcare on December 15, 1993 for a consultation with Dr. Barolat, who was the neurosurgeon who last performed surgery on Pryzbowski. Dr. Barolat was not a participant in the particular plan offered by U.S. Healthcare. Pryzbowski's policy with U.S. Healthcare required that it give prior written authorization for services by non-participating providers and facilities. U.S. Healthcare approved the consultation and Dr. Barolat examined Pryzbowski on January 19, 1994. He concluded that surgery was needed and that the following specialists or specialists' services were required: spinal instrumentation and fusion by a separate orthopedic surgeon, pulmonary clearance and follow-up from Dr. Cohen, consultation with the Pain Service, and a psychological assessment and follow-up. The specialists to whom he referred were also associated with Thomas Jefferson University Hospital and outside U.S. Healthcare's network.
Over the next few months, Pryzbowski sought to get U.S. Healthcare to approve the recommended surgery by Dr. Barolat and the related services. In the meantime, Pryzbowski was seen by in-network specialists, including Dr. Edward Barrett (a mental health specialist), Dr. Alexander Levin (a pain management specialist), and Dr. M.A. Sarraf (a pulmonary specialist) between February 19, 1994 and April 18, 1994, and they transmitted their reports thereafter. It is evident that this was not satisfactory to Dr. Barolat, because a handwritten note dated May 3, 1994, headed "Stephanie - Dr. Barolat's office," states "Dr. will not perform the surgery unless specials [sic] at Jefferson in consult. USHC will not approve." Appellees' App., Lang Certification, Ex. A. U.S. Healthcare authorized the out-of- network specialists' services and the back surgery on June 30, 1994, and Dr. Barolat performed the surgery on Pryzbowski on July 7, 1994. Unfortunately, Pryzbowski continued to suffer from severe back pain after the surgery. Dr. Barolat later opined "that the persistence of the excruciating pain . . . was most likely caused by the significant delay that occurred between the onset of the symptomatology and the surgical intervention." App. M, at M-4.
Pryzbowski filed a complaint, later amended, against U.S. Healthcare, Medemerge, and three physicians with Medemerge in the Superior Court of New Jersey. She asserts six counts against U.S. Healthcare, which allege that U.S. Healthcare "negligently and carelessly delayed in giving its approval for the necessary surgery which the plaintiff . . . urgently needed," causing Pryzbowski severe and permanent injury, emotional distress, and future expenses for medical care and treatment (Count One); that U.S. Healthcare's delay was arbitrary and capricious (Count Two); and that, by delaying its approval for the surgery, U.S. Healthcare "acted with a willful and wanton disregard for the harm that would likely result to the plaintiff " (Count Three). The complaint also asserts that U.S. Healthcare's delay in approving the surgery breached its health insurance contract with Pryzbowski (Count Four); that the delay in surgery approval was "in bad faith" (Count Five); and that U.S. Healthcare breached its duty to "screen, hire, train and employ capable and responsible individuals . . . to make thoughtful and reasonable decisions as to healthcare" (Count Seven).
In the five counts Pryzbowski asserts against Medemerge and/or the physician defendants, she alleges that Medemerge "negligently and carelessly delayed in authorizing and/or obtaining authorization from U.S. Healthcare" for the surgery (Count Eight); that Medemerge, in failing to obtain authorization, "acted with a willful and wanton disregard for the harm that would likely result to the plaintiff " (Count Nine); that the physician defendants "negligently and carelessly delayed in authorizing and/or obtaining authorization" for the back surgery (Count Ten); and that they "acted with a willful and wanton disregard" in delaying authorization (Count Eleven). Another count alleges that Medemerge breached its duty to "screen, hire and employ capable and responsible individuals to serve as its agent, servants, and/or employees" (Count Six).
U.S. Healthcare removed the case to the United States District Court for the District of New Jersey. On December 3, 1997, the District Court granted U.S. Healthcare's motion to dismiss the counts against it (Counts 1-5, 7). Subsequently, Medemerge and the physician defendants moved for summary judgment on the remaining counts, which motion was granted on September 8, 1999. Pryzbowski now appeals both the December 3, 1997 dismissal and the September 8, 1999 summary judgment order. We have jurisdiction under 28 U.S.C. S 1291.
There are two separate but related preemption issues that arise under ERISA, both of which are presented in this case. The application of express preemption, set forth in S 514(a) of ERISA, arises in connection with Pryzbowski's claims against Medemerge and the physician defendants. Her claims against U.S. Healthcare raise the issue of complete preemption, a jurisdictional concept based on S 502(a) of ERISA.
We first consider Pryzbowski's challenge to the District Court's holding that removal was proper and that it had subject matter jurisdiction over the claims against U.S. Healthcare because they were completely preempted under S 502(a) of ERISA. Pryzbowski's complaint, originally filed in state court, appeared on its face to allege only state causes of action and named as defendants parties who were not completely diverse from Pryzbowski, thereby displaying no obvious basis for removal to federal court under 28 U.S.C. S 1441. In Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 9-10 (1983), the Supreme Court stated, "where there is no diversity of citizenship between the parties [as in Pryzbowski's case] . . . the propriety of removal turns on whether the case falls within the original `federal question' jurisdiction of the United States district courts."
Under the "well-pleaded complaint" rule, federal question jurisdiction exists only when an issue of federal law appears on the face of the plaintiff 's complaint. The anticipation that a defendant may raise a federal defense will not confer federal question jurisdiction. On the other hand, "any complaint that comes within the scope of [a] federal cause of action necessarily `arises under' federal law" and is therefore completely preempted. Franchise Tax Bd., 463 U.S. at 24. The paradigmatic example of this extraordinary preemptive force is S 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C.S 185. See Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968). In Franchise Tax Board, the Court did not reach the question of complete preemption under ERISA because the claim asserted there was not within the original jurisdiction of the federal courts and therefore could not be removed by defendant to federal court. See 463 U.S. at 24-25.
It was in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), that the Supreme Court faced the question "whether or not the Avco principle can be extended to statutes other than the LMRA in order to recharacterize a state law complaint displaced by S 502(a)(1)(B) as an action arising under federal law." Id. at 64. After noting the similarity between the language of ERISA and that of the LMRA, the Court concluded that Congress intended that S 502(a) of ERISA be given the same extraordinary preemptive force as had been given to S 301 of LMRA. See id. at 65. This conclusion from the statutory language was confirmed not only by the statements of one of the sponsors of ERISA but also by the Conference Report, which stated that all suits "to enforce benefit rights under the plan or to recover benefits under the plan . . . are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor -Management Relations Act of 1947." H.R. Conf. Rep. No. 93-1280, at 327 (1974), reprinted in 1974 U.S.C.C.A.N. 5038, 5107. Following the decision in Metropolitan Life, there can be no question that "causes of action within the scope of the civil enforcement provisions of S 502(a)[are] removable to federal court." Metropolitan Life, 481 U.S. at 66.
We do not understand Pryzbowski to be challenging the principle that such claims are completely preempted but to be arguing that the claims she asserts against U.S. Healthcare were not removable because they did not fit within S 502(a). Section 502(a) allows a beneficiary or participant of an ERISA-regulated plan to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. S 1132(a)(1)(B). Under S 502(a), a beneficiary may obtain accrued benefits due, a declaratory judgment about entitlement of benefits, or an injunction to require the administrator to pay benefits. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 53 (1987). It follows that if Pryzbowski's claims fall within the scope of ERISA's civil enforcement provisions, they are completely preempted.
This court has on several occasions considered whether a plaintiff 's claim against his or her HMO is completely preempted under ERISA. In Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995), we distinguished between claims directed to the "quality of the benefits [plaintiffs] received" and claims "that the plans erroneously withheld benefits due" or that seek "to enforce [plaintiffs'] rights under the terms of their respective plans or to clarify their rights to future benefits." Id. at 356. We stated that claims that merely attack the quality of benefits do not fall within the scope of S 502(a)'s enforcement provisions and are not completely preempted, whereas claims challenging the quantum of benefits due under an ERISA-regulated plan are completely preempted under S 502(a)'s civil enforcement scheme. See id. at 356-57. We held that, because the plaintiffs in Dukes alleged that the HMO failed to exercise reasonable care in providing medical treatment, their claims were not completely preempted. See id. at 358.
Thereafter, in In re U.S. Healthcare, Inc., 193 F.3d 151 (3d Cir. 1999), we applied the quality-quantity distinction in determining whether claims by parents against U.S. Healthcare based on the death of their newborn baby were completely preempted. In making that decision, we relied upon the distinction made in Dukes between "an HMO's role in `arranging for medical treatment' rather than its role as a plan administrator determining what benefits are appropriate." Id. at 162 (quoting Dukes, 57 F.3d at 360). We held that U.S. Healthcare's adoption of a policy of discharging newborn infants within 24 hours after their delivery was essentially a medical determination that could be subject to a state-law medical malpractice action. See id. at 162-63. We also held that the HMO's alleged negligence in selecting, training, and supervising medical personnel implicated the quality of medical treatment. See id. at 163- 64. Therefore, we concluded that none of the claims were completely preempted and we directed that the case be remanded to state court. See id. at 162-65.
Most recently, in Lazorko v. Pennsylvania Hospital, 237 F.3d 242 (3d Cir. 2000), we again applied the distinction between claims raising quality of care issues and claims raising quantity of benefits issues. Lazorko alleged that financial disincentives imposed by the HMO discouraged medical providers from hospitalizing a mentally ill beneficiary who later committed suicide. W e decided that this was a quality of care claim because "the denial of [the beneficiary's] request for hospitalization occurred in the course of a treatment decision, not in the administration of the [plaintiff 's and beneficiary's] plan generally." Id. at 250. Thus, we held that the plaintiffs' claim was not completely preempted under S 502(a).
Though the quality-quantity distinction was helpful in those cases, we have acknowledged that the distinction would not always be clear. See Dukes, 57 F.3d at 358. We recognized that there might be a situation where the quality of the medical care provided would be so deficient that the beneficiary essentially would not have received any health care benefit at all. See id. And in In re U.S. Healthcare, we noted that making the quality-quantity distinction would be particularly difficult when an HMO has acted as both a plan administrator and a provider of medical services. See 193 F.3d at 162.
The recent Supreme Court decision in Pegram v. Herdrich, 530 U.S. 211, 120 S. Ct. 2143 (2000), suggests preferable terminology. Although that case concerned fiduciary acts under ERISA and not preemption, the distinction made there between "eligibility decisions," which "turn on the plan's coverage of a particular condition or medical procedure for its treatment," and "treatment decisions," which are choices in "diagnosing and treating a patent's [sic] condition," 120 S. Ct. at 2154, is equally applicable for complete preemption analysis. Regardless of the language used, the ultimate distinction to make for purposes of complete preemption is whether the claim challenges the administration of or eligibility for benefits, which falls within the scope of S 502(a) and is completely preempted, or the quality of the medical treatment performed, which may be the subject of a state action.
This court has not had occasion to consider how a claim that the HMO or plan administrator delayed in the approval of benefits should be treated under ERISA. It is evident that a claim alleging that a physician knowingly delayed in performing urgent surgery on a patient whose appendix was about to rupture would relate to the quality of care, and not be subject to removal on the basis of complete preemption. On the other hand, a claim alleging that an HMO declined to approve certain requested medical services or treatment on the ground that they were not covered under the plan would manifestly be one regarding the proper administration of benefits. Such a claim, no matter how couched, is completely preempted and removable on that basis. See Dukes, 57 F.3d at 356 (noting that a claim that the plans erroneously withheld benefits due would be completely preempted); Jass v. Prudential Health Care Plans, Inc., 88 F.3d 1482, 1488-89 (7th Cir. 1996) (holding that a claim against an HMO's utilization review decision was completely preempted by ERISA). In analyzing whether a claim falling between these poles is completely preempted, it is necessary to refer to S 502(a). As the Court stated in Metropolitan Life , "Congress has clearly manifested an intent to make causes of action within the scope of the civil enforcement provisions of S 502(a) removable to federal court." 481 U.S. at 66. Accordingly, we must examine Pryzbowski's claims against U.S. Healthcare to determine whether they could have been the subject of a civil enforcement action under S 502(a).
Counts One through Five of Pryzbowski's complaint allege that U.S. Healthcare negligently and carelessly delayed approval of her surgery with Dr . Barolat, acted in an arbitrary and capricious manner in doing the same, acted in willful and wanton disregard of her health, acted in bad faith, and breached her health insurance contract. Underlying these allegations of delay is the policy adopted by U.S. Healthcare (and many other HMOs) requiring beneficiaries either to use in-network specialists or to obtain approval from the HMO for out-of-network specialists. These activities fall within the realm of the administration of benefits.
Had Pryzbowski sought to accelerate U.S. Healthcare's approval of the use of out-of-network providers, she could have sought an injunction under S 502(a) to enforce the benefits to which she was entitled under the plan, thereby using the provisions of the civil enforcement scheme provided by Congress. There have been numerous cases in which the courts have issued preliminary injunctions under similar circumstances. See, e.g., Marro v. K-III Communications Corp., 943 F. Supp. 247 (E.D.N.Y. 1996) (granting preliminary injunction to compel plan administrator to precertify high dosage chemotherapy); Mattive v. Healthsource of Savannah, Inc., 893 F. Supp. 1559 (S.D. Ga. 1995) (granting preliminary injunction enjoining plan administrator from denying coverage for high-dose chemotherapy); Dozsa v. Crum & Forster Ins. Co., 716 F. Supp. 131 (D.N.J. 1989) (granting preliminary injunction enjoining plan administrator from denying coverage for autologous bone marrow transplant treatment).
Pryzbowski's final claim against U.S. Healthcare (Count Seven) alleges that it failed properly to hire, train, and supervise its employees "to make thoughtful and reasonable decisions as to healthcare." Amended Complaint, Count 7. Although ostensibly directed at the provision of medical treatment, a federal court may "look beyond the face of the complaint to determine whether a plaintiff has artfully pleaded his suit so as to couch a federal claim in terms of state law," Jass, 88 F.3d at 1488; accord Parrino v. FHP, Inc., 146 F.3d 699, 704 (9th Cir. 1998); cf. Franchise Tax Bd., 463 U.S. at 22 (noting that "a plaintiff may not defeat removal [to federal court] by omitting to plead necessary federal questions in a complaint"). Inasmuch as Pryzbowski has not alleged that U.S. Healthcare or its employees engaged in any medical treatment with r egard to her, the alleged negligence by U.S. Healthcare in the hiring, training, and supervising of its employees necessarily concerns the administration of her benefits, U.S. Healthcare's only role in this case. It follows that Count Seven is also completely preempted under S 502(a) of ERISA.
Pryzbowski contends that her claims are analogous to the claims made in Dukes and In re U.S. Healthcare, where we held that complete preemption was inapplicable and removal improper. In both cases, we recognized that the HMO had assumed the dual role of an administrator of benefits and a provider of medical services. In In re U.S. Healthcare, we held that the HMO's policy to discharge newborn infants within 24 hours was essentially a "medical determination of the appropriate level of care." 193 F.3d at 163. We also held that the claim that the HMO was negligent in failing to provide an in-home visit by a pediatric nurse, despite having given assurances that such a visit would be provided, was directed at the HMO's function as medical provider. See id. at 164. Therefore, the plaintiffs' claims alleged medical malpractice and were not completely preempted by ERISA. In Dukes, the plaintiffs' claims centered on "the low quality of the medical treatment that they actually received." 57 F.3d at 357. They argued that the HMO was liable under an agency theory and also directly responsible for negligence in selecting, retaining, screening, monitoring and evaluating the personnel who actually provided the medical services. See id. at 352. We held that those claims did not involve failure to provide benefits due under the ERISA plan and therefore were not completely preempted.
In the case before us, as we note above, Pryzbowski's claims against U.S. Healthcare are limited to its delay in approving benefits, conduct falling squarely within administrative function. A holding that Pryzbowski's claims against U.S. Healthcare are not completely preempted would open the door for legal challenges to core managed care practices (e.g., the policy of favoring in-network specialists over out-of-network specialists), which the Supreme Court eschewed in Pegram. Cf. 120 S. Ct. at 2156-57 (rejecting claims attacking financial incentives behind HMO structure, in light of congressional policy of promoting HMOs). We conclude that the District Court did not err in holding that the claims Pryzbowski asserts against U.S. Healthcare are completely preempted. It follows that the District Court properly exercised subject matter jurisdiction over the case and dismissed the claims against U.S. Healthcare.
We are not unaware that our holding that U.S. Healthcare will not be required to explain or defend the delay in provision of services to Pryzbowski may leave her, and other beneficiaries, without effective relief for the improper administration of benefits. The delay attendant on the required preauthorization by HMOs has been a matter of public concern. In fact, this has led the Department of Labor recently to publish a long pending final rule that requires that claims seeking pretreatment authorization for medical services must be decided within 15 days and that imposes other stringent time limits on appeals from adverse decisions. See 65 Fed. Reg. 70,245 (Nov. 21, 2000). While the new rule applies only to claims filed on or after Jan. 1, 2002, it should serve to give notice to health care administrators that ERISA not only provides protection from litigation arising from benefits administration but imposes certain responsibilities with respect to such administration.
Unlike U.S. Healthcare, Medemerge and the physician defendants do not contend that the claims against them are completely preempted under S 502(a). Neither can their anticipated defense of express preemption under S 514(a) be the basis for removal of these claims. See Franchise Tax Bd., 463 U.S. at 23-27. As we stated in Dukes, "[w]hen the doctrine of complete preemption does not apply, but the plaintiff 's state claim is arguably preempted under S 514(a), the district court, being without removal jurisdiction, cannot resolve the dispute regarding preemption." Dukes, 57 F.3d at 355. Federal jurisdiction over Pryzbowski's claims against Medemerge and the physician defendants, if it is to be sustained, must be based on another ground.
In this case, the District Court did not rely on S 502(a) preemption for its jurisdiction over these defendants but instead exercised supplemental jurisdiction under 28 U.S.C. S 1367. That section authorizes a district court to exercise "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. S 1367(a). W e have interpreted this provision to require the following: (1) " `[t]he federal claims must have substance sufficient to confer subject matter jurisdiction;' " (2) " `[t]he state and federal claims must derive from a common nucleus of operative fact;' " and (3) " `the plaintiff 's claims [must be] such that [s/]he would ordinarily be expected to try them all in one judicial proceeding.' " In re Prudential Ins. Co. Am. Sales Practices Litig., 148 F.3d 283, 302 (3d Cir . 1998) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), which sustained the constitutionality of pendent jurisdiction).
We have already determined that the District Court had subject matter jurisdiction over Pryzbowski's claims against U.S. Healthcare. Moreover, Pryzbowski's claims against Medemerge and the physician defendants are derived from the same factual predicate as her claims against U.S. Healthcare, as all her claims stem from the treatment she received from all of the defendants in response to her complaint of back pain and the delay she experienced in securing the approval for the out-of-network physicians and services that Dr. Barolat believed were necessary. Under these circumstances, it would be expected that all of Pryzbowski's claims against the defendants would be combined in one judicial proceeding. Therefore, the District Court had the authority for its exercise of supplemental jurisdiction over the claims against Medemerge and the physician defendants.
Pryzbowski argues that once the claims against U.S. Healthcare were dismissed, the District Court should have remanded her claims against the other defendants to state court. That was certainly an option for the District Court but not one it was obliged to take. In New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1506 (3d Cir. 1996), we stated that "where the jurisdiction-conferring party drops out and the federal court retains jurisdiction over what becomes a state law claim between non-diverse parties, the bounds of Article III have not been crossed." In such situations, district courts have discretion to continue exercising supplemental jurisdiction. See id.
Pryzbowski's challenge to the District Court's failure to remand seems to be directed exclusively to a lack of jurisdiction in the District Court. She has given us no persuasive reason why the District Court's decision to exercise supplemental jurisdiction was an abuse of its discretion. The District Court had become fully familiar with the factual background and the positions of the parties, and we see no reason why it should not have continued to exercise jurisdiction over Pryzbowski's claims against Medemerge and the physician defendants. We certainly cannot conclude that its decision was an abuse of discretion.
moved for summary judgment. In support of their motion, defendants filed the certification of their counsel, Joseph R. Lang, who attached extensive documentary evidence and references to certain depositions. These documents set forth Pryzbowski's medical history in connection with her complaints of back pain and efforts to obtain the necessary treatment and services.2 The District Court noted that "plaintiff has not provided this court with any evidence whatsoever in opposing this motion but merely has referenced defendants' exhibits fr om time to time," and that it was "unable to consider unsupported conclusory allegations." Id. at 364 n.6.
The District Court viewed the defendants' motion for summary judgment as having two bases. The first was that Pryzbowski's claims were preempted by S 514(a) of ERISA. The second was that Pryzbowski failed to state a claim for which relief can be granted. We consider them in turn.
Section 514(a), the express preemption provision of ERISA, provides that ERISA "shall supersede any and all State laws insofar as they . . . relate to any employee benefit plan" covered by the statute. 29 U.S.C. S 1144(a). ERISA also includes a saving clause protecting from preemption state laws regulating insurance, banking, or securities. See 29 U.S.C. S 1144(b)(2)(A). As we have explained, "[u]nlike the scope of S 502(a)(1)(B), which is jurisdictional and creates a basis for removal to federal court, S 514(a) . . . governs the law that will apply to state law claims, regardless of whether the case is brought in state or federal court." Lazorko, 237 F .3d at 248.
to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government . . . , [and to prevent] the potential for conflict in substantive law . . . requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.
Id. at 656-57 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990) (citation omitted) (ellipses and brackets in original)). Thus, the basic objective of the express preemption provision was "to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans." Id. at 657.
In Travelers and several cases thereafter, the Court held that the challenged state statutes were not preempted because they were laws of general application that were neither directed to ERISA plans nor interfered with their administration. For example, in Travelers the Court held that a statute that imposed surcharges on hospital rates for patients with commercial insurance purchased by ERISA plans, which was intended to help Blue Cross/Blue Shield plans, had only an indirect economic effect on ERISA plans and was not expressly preempted by S 514(a). See id. at 658-62; see also California Div. of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316 (1997) (state prevailing wage law does not "r elate to" employee benefit plans and is not preempted by ERISA where statute is indifferent to ERISA coverage); De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806 (1997) (generally applicable gross receipts tax on health care facilities not preempted despite some burden on administration of ERISA plans); but see Alessi v. Raybestos- Manhattan, Inc., 451 U.S. 504 (1981) (state compensation act barring offset of workers' pension benefits by compensation benefits preempted).
The issue of express preemption arises in other contexts than challenges to state statutes. One of the most frequent is the reliance by HMOs and insurance companies on S 514(a) in defending suits brought by beneficiaries arising out of the denial of plan benefits. This line of cases stems from the Supreme Court's decision in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987), where a beneficiary of an ERISA plan sued the insurance company that covered his employer's long-term disability employee benefit plan, alleging it improperly denied his claim for long-term disability benefits. He claimed tortious breach of contract, breach of fiduciary duties, and fraud in the inducement. Plaintiff sought to avoid preemption under S 514(a) by trying to fit some of his claims into the saving clause exception for state laws regulating insurance, but the Court rejected that effort. Instead, the Court viewed the common law causes of action raised in plaintiff 's complaint as based on alleged improper processing of a claim for benefits under an employee benefit plan, stated that such claims "undoubtedly meet the criteria for pre-emption under S 514(a)," and held that the suit could not proceed because of the "expansive sweep of the pre-emption clause." Id. at 47-48.
Thus, suits against HMOs and insurance companies for denial of benefits, even when the claim is couched in terms of common law negligence or breach of contract, have been held to be preempted by S 514(a). See, e.g., Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003, 1007-08 (9th Cir. 1998) (holding that S 514(a) preempted, among other things, a claim alleging bad faith denial of benefits); Tolton v. American Biodyne, Inc., 48 F.3d 937, 941-43 (6th Cir. 1995) (holding that S 514(a) preempted claims for wrongful death, medical malpractice, and insurance bad faith based on a refusal to authorize treatment); Corcoran v. United HealthCare, Inc., 965 F.2d 1321, 1331-34 (5th Cir. 1992) (holding that S 514(a) preempted a wrongful death action based on the negligent denial of benefits). The rationale for these holdings is that the decision whether a requested benefit or service is covered by the ERISA plan falls within the scope of the administrative responsibilities of the HMO or insurance company, and therefore "relates to" the employee benefit plan. The same rationale has been applied by courts holding that suits against HMOs for delay in authorizing benefits were preempted under S 514(a). For example, in Kuhl v. Lincoln Nat'l Health Plan of Kan. City, Inc., 999 F .2d 298, 302-03 (8th Cir. 1993), the court considered a claim that the HMO canceled the beneficiary's surgery in an out-of-network hospital, thereby delaying his ability to receive treatment and leading to his death. Although the complaint brought by his survivors alleged common law claims and characterized the HMO's actions as malpractice, the court viewed the claim as based on improper processing of medical benefits, and therefore expressly preempted by S 514(a). See id. Likewise, in Spain v. Aetna Life Ins. Co., 11 F.3d 129, 131-32 (9th Cir. 1993), the court held that a wrongful death claim based on the HMO's delay in authorizing cancer treatment was expressly preempted because it dealt with the negligent administration of benefits.
When Congress enacted ERISA it was concerned in large part with the various mechanisms and institutions involved in the funding and payment of plan benefits. That is, Congress was concerned "that owing to the inadequacy of current minimum[financial and administrative] standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered." S 2, 29 U.S.C. S 1001(a). Thus, Congress sought to assure that promised benefits would be available when plan participants had need of them and S 502 was intended to provide each individual participant with a remedy in the event that promises made by the plan were not kept.
We followed that view in In re U.S. Healthcare, 193 F.3d 151, where we held that claims against the HMO resulting from its adoption of a policy to discharge newborns from the hospital within 24 hours after birth went to the quality of care provided. They were ther efore to be evaluated as an ordinary state-law tort claim for medical malpractice. There is no reason why the distinction between quality of care issues and benefits administration issues made in those cases, which arose in the context of complete preemption under S 502(a), would not be equally applicable to express preemption under S 514(a).
Moreover, there is a strong suggestion in Pegram that claims based on medical treatment decisions remain outside the preemptive effect of ERISA. In holding that mixed eligibility/treatment decisions made by an HMO are not encompassed by the fiduciary duties imposed by ERISA, the Court made clear its view that ERISA was not designed to allow plan participants "to bring malpractice actions in the guise of federal fiduciary br each claims against HMOs." 120 S. Ct. at 2158. The Court took a dim view of an interpretation that would lead to ERISA preemption covering "the subject of a state-law malpractice claim." 120 S. Ct. at 2158.
The District Court here recognized that a malpractice claim by Pryzbowski against Medemerge and the physician defendants would not be preempted. However , that court, after conducting a comprehensive review of the relevant cases, concluded that "[i]t is clear that plaintiff 's claims, at their core, challenge the poor administration of her plan -- the failure to promptly approve the request for Dr. Barolat to perform the surgery -- rather than the quality of care she received. " 64 F. Supp. 2d at 369. The District Court also stated that "a claim for negligent delay in the utilization review, or pre-authorization process, even if alleged as a state law violation against the physician, would, at the very least, `relate to' an ERISA plan and, thus, be preempted." Id. at 367. W e cannot agree that all of Pryzbowski's claims against Medemerge and the physician defendants should be characterized as "relating to" the administration of her plan.
It is true that Pryzbowski has not alleged that the physician defendants at Medemerge failed to diagnose or properly treat her back pain. She concedes that those physicians found that her problem required specialty care and referred her to an orthopedic surgeon, a neurosurgeon, and eventually the out-of-network neurosurgeon who had originally performed surgery on Pryzbowski. On the other hand, Pryzbowski's claims against Medemerge and the physician defendants are not based on a denial of benefits and therefore differ from the typical administration of benefits claims against HMOs. Medemerge and the physician defendants do not contend that they acted as U.S. Healthcare's agent in the administration of the plan that covered Pryzbowski. Admittedly, they did not have the responsibility to make coverage decisions. Indeed, they argue in their brief that they had no power to authorize services by out-of-network physicians and that those questions -- which have been held to be administrative as to HMOs -- were always relayed to U.S. Healthcare. As these defendants disclaim any administrative authority or responsibility with respect to the plan, it follows that the preemption afforded by S 514(a) for claims "relating to" a plan is inapplicable.
Our decisions have not focused on the extent to which the scope of a physician's responsibility to a patient goes beyond the mere treatment of that patient's medical complaint. It remains unclear whether the New Jersey Supreme Court would include within the physicians' duty of care the processing of their patients through the office, including matters such as the completion of for ms, referral to other physicians, arrangements for laboratory tests, and other general office procedures that may be necessary for the complete care of the patient.
We note that in Nealy v. U.S. Healthcar e HMO, 93 N.Y.2d 209, 711 N.E.2d 621 (1999), a primary care physician allegedly delayed in submitting to the HMO a request for authorization for a beneficiary to see an out-of-network cardiologist. The HMO eventually denied authorization, and the beneficiary died before seeing an in-network cardiologist. The New York Court of Appeals held that the wrongful death and negligence claims brought by the beneficiary's wife were not preempted by S 514(a). See id. at 219, 711 N.E.2d at 625. The court stated that "[p]laintiff 's allegations of negligent medical care do not `relate to' the administration of an ERISA plan merely because they refer to [the physician defendant's] delay in submitting the US Healthcare form seeking a referral to [the out-of-network cardiologist]. Plaintiff does not allege that [the physician defendant] is responsible for delay caused by US Healthcare's decision-making process with respect to coverage or benefits. Her claim against [the physician defendant] is that he failed to take timely action to treat her husband." Id. at 219-20, 711 N.E.2d at 625 (footnote omitted).
Our decision that Pryzbowski's claims against Medemerge and the physician defendants are not expressly preempted does not mean that they necessarily survive dismissal under summary judgment. Only after the District Court determines the scope of New Jersey malpractice law will it be able to decide whether Pryzbowski has offered sufficient evidence to make a genuine issue of material fact that Medemerge and the physician defendants failed to meet the applicable standard.
There is one claim, however, that we are in a position to resolve. The District Court held that Pryzbowski failed to state a claim for negligence upon which relief can be granted. The District Court equated the negligence claim with Pryzbowski's contention that the physician defendants violated a state common law "duty to advocate" to the HMO so as to expedite the approval of her surgery. Although we read Pryzbowski's negligence claim against Medemerge and the physician defendants as broader than the claimed duty to advocate, we agree with the District Court's analysis of the latter.
The District Court reasoned that a state law claim for negligence must allege "(1) a duty of car e owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97, 100 (App. Div. 1997). "Whether a duty exists is solely a question of law to be decided by a court." Id. The Medical Society of New Jersey filed an amicus curiae brief in this court to advance its position that a physician does not, and should not, have a "duty to advocate" with a patient's health care plan when it denies or delays treatment the physician has requested. Pryzbowski attempts to identify such a duty through her medical ethics expert, the Hippocratic Oath, and the American Medical Association's Code of Medical Ethics. The Medical Society, besides providing the surprising information that the Hippocratic Oath is not universally used throughout the medical schools of this country and that there are at least ten versions of that oath, asserts that there is no "legal duty that subjects physicians who have committed no malpractice to liability for injuries resulting from delays in benefit determinations by plan administrators over whom the physicians have no control." Br. of Medical Society at 8-9 (emphasis in original).
We take no position whether New Jersey, or any other state, should impose such a duty, as that is not within our domain. On the issue before us, we agree that physicians, under existing New Jersey law, have no duty to advocate on behalf of their patients to an HMO or any health insurance plan for the timely approval of benefits. Cf. Baxt v. Liloia, 155 N.J. 190, 202, 714 A.2d 271, 277 (1998) (noting that state disciplinary codes for attorneys "ar e not designed to establish standards for civil liability"); Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 76, 417 A.2d 505, 514 (1980) (concluding that the Hippocratic Oath "does not contain a clear mandate of public policy" upon which a cause of action may be based). We therefore agree with the District Court that Pryzbowski has failed to state a claim on her duty to advocate allegation.
In summary, we hold that the District Court did not err in holding that Pryzbowski's claims against U.S. Healthcare were completely preempted; that New Jersey does not recognize a physician's duty to advocate; and that the other claims asserted by Pryzbowski against Medemerge and the physician defendants are not expressly preempted as a matter of law but require additional consideration by the District Court.
We note that, as a result of the enactment of ERISA and the substantial changes in the delivery of health care, new legal issues regarding rights and responsibilities have arisen. The law remains, to some extent, in a state of flux. It is for Congress and not the courts to decide whether it is sound policy for our health care system to limit or channel the relief available or whether ERISA should allow for broader remedies for beneficiaries in the world of managed care.
For the reasons set forth above, we will affirm the December 3, 1997 order dismissing the claims against U.S. Healthcare. We will affirm that portion of the order of September 8, 1999 dismissing the claims against Medemerge and the physician defendants insofar as they allege duty to advocate, and we will vacate the remainder of that order and remand to the District Court for further proceedings in accordance with this opinion.

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Please excuse the delay in responding to your inquiry concerning whether certain transactions are covered by the Iowa Consumer Credit Code (ICCC). You should be aware that this Office is responding as administrator of the ICCC and that this letter is advisory in nature and is not a formal attorney general's opinion, nor should it be construed as such or relied upon as such.
In your letter, you posed two separate, presumably hypothetical, situations each of which raises a number of related questions in connection with the jurisdiction of the ICCC.
''Will an Iowa court enforce promissory notes secured by purchase money security interest in personal property where the buyer-debtor is an Iowa resident who traveled to the State of South Dakota to purchase the personal property securing the obligation from a South Dakota retailer who thereafter assigned the obligation, (as secured), to a South Dakota finance company?"
If, with respect to charges and agreements, the person does not collect or enforce that transaction except to the extent permitted by this chapter.
There may be no administrative enforcement of the ICCC or application of penalties under the ICCC so long as the transaction was: closed-end; the consumer was outside the state when the transaction was entered into; and the transaction complies with the laws of the lender's residence. However, if the lender moves to collect and enforce on that transaction, any collection or enforcement must be done pursuant to the provisions of the ICCC.
You also asked the following four separate questions in connection with the first hypothetical question.
Attorney General's Opinion written in 1974, this section is not presently enforced. There are no other Iowa licensing provisions for retailers as credit sellers.
The retailer and the lender should, however, take note of the assignment provisions of the ICCC since questions concerning any defenses the debtor might have against the retailer might arise in the course of any efforts to collect and enforce the ICCC (See: § 537.3404).
You also asked whether under the circumstances o£ your first hypothetical, the lender must be licensed in Iowa. So long as the facts are as stated above, there is no consumer credit loan being made by the lender, therefore licensing provisions of Chapter 536 and 536A and § 537.2301 of the ICCC would not apply.
Thirdly, you asked whether, if the transaction complied, with South Dakota law on interest or finance charge restr%ctions, would the ICCC impose further restrictions. Under the peculiar or limited facts as stated above, the ICCC applies only as regards collection and enforcement. This of course also answers your fourth question concerning your first hypothetical regarding methods of collection. The lender would have to comply with all the default and repossession provisions set out in §§ 537.5103, .5104, .5105, .5109, .5110, and .5111 of the ICCC and the debt collection provisions of Article 7 of the ICCC.
Your second hypothetical raises the entirely separate question of a consumer credit loan made by the South Dakota lender to the Iowan after the Iowan has travelled to South Dakota.You posed the same related questions for your second hypothetical as you did your first with the exception that you do not inquire whether the retailer must be licensed since there is no retailer involved in this transaction.
In order to answer your second hypothetical, certain assumptions must be made. You state that the loan is "secured by property located in Iowa" but you do not stake whether the property is personal or real property. You also do not indicate whether the purpose of the loan is for personal, family or household use and whether it is for less than $25,000. This answer assumes the loan is for less than $25,000 and is primarily for a personal, family or household purpose and is also secured by personal and not real property (but See: § 537.2307 and 537.3301 regarding security interest in real estate).
The limited exception discussed in the answer to your first hypothetical does not apply in this situation for a number of reasons. Firstly, § 537.1201 (1) (a) in its limited jurisdictional exceptions would not apply because the credit extended in this situation is most likely not closed-end credit (See: Definition of open-end credit at § 537.1301). Secondly, the transaction in your second hypothetical question differs from that in your first because it is far more likely that this transaction was "entered into" in Iowa as defined in § 537.1201(2) (a) and § 537.1201(2) (b) . Please note that we are not assuming, as you recommended, that there was no solicitation received by the Iowan in Iowa since such an across-the-board assumption would be unfounded in the ordinary consumer credit loan situation.
The lender must be licensed pursuant to § 537.2301 (2) before it engages in any such loan transactions so long as the finance charge exceeds the floating rate set out in § 535.2 (3) (a) of the Code of Iowa, 1983. You should note that even if the narrow jurisdictional exception discussed in the answer to your first hypothetical did apply to the second hypothetical as well, § 537.2301(2) clearly provides that the licensing is required to collect and enforce on supervised loans.
The interest rate or finance charge could not: exceed the limit set out in § 537.2401 and § 537.2402.
Collection and enforcement in Iowa would have to be pursuant to the ICCC as stated above in hypothetical number 1. If you should have any further questions after having reviewed our response to your inquiry, please feel free to contact the undersigned.


STATE v. GIBSON et al.
*511 Atty. Gen. Harry McMullan and Asst. Atty. Gen. T. W. Bruton, for the State.
P. W. Glidewell, Sr., Reidsville, Shelley B. Caveness and Joe D. Franks, Jr., Greensboro, for defendants.
We have here for decision (1) the validity of the indictment, (2) the competency of evidence, (3) the propriety of a colloquy between court and counsel, and (4) the legality of suspended sentences.
I. The Validity of the Indictment.
The defendants have pressed their motion for quashal of the indictment with conviction and apparent confidence. They seem assured that it offends the rule against duplicity or multifariousness in a single bill, and that in the first and fourth counts, two separate and distinct offenses are joined without naming the defendants in respect of the second alleged offense. For this latter position, they cite State v. Camel, 230 N.C. 426, 53 S.E.2d 313, as controlling: and State v. Robinson, 224 N.C. 412, 30 S.E.2d 320; State v. Wilson, 121 N.C. 650, 28 S.E. 416, and State v. Cooper, 101 N.C. 684, 8 S.E. 134, as fully supporting their position.
We think the defendants have misconceived the intent and purpose of the First and Fourth Counts in the bill. These counts charge only a single offense, i. e., conspiracy to do two things: (1) to operate a lottery (violative of G.S. § 14-290), and (2) to sell tickets therein (violative of G.S. § 14-291.1). Thus, the State elected in drafting these counts to assume a double burdento establish the operation of a lottery by the defendants and the sale by them of tickets therein. The court was careful to make this plain to the jury. However, just one offense is charged, and a single sentence was imposed on each count. Hence, the authorities cited and relied upon would seem to be inapplicable to the facts of the instant record.
In respect of the alleged duplicity or multifariousness of the entire bill, it is sufficient to say the central indictment is for conspiracy. All the remaining counts are related to each other "and to the single transaction or series of transactions which grow out of the one concatenated design". State v. Dale, 218 N.C. 625, 12 S.E.2d 556, 564; State v. Jarrett, 189 N.C. 516, 127 S.E. 590.
Speaking to the question in State v. Malpass, 189 N.C. 349, 127 S.E. 248, 250, Varser, J., said: "The rule in this state now is that different counts relating to the same transaction, or to a series of transactions, tending to one result, may be joined, although the offenses are not of the same grade", citing as authority for the position. State v. Lewis, 185 N. C. 640, 116 S.E. 259; State v. Burnett, 142 N.C. 577, 55 S.E. 72; State v. Howard, 129 N.C. 584, 40 S.E. 71; State v. Harris, 106 N.C. 682, 11 S.E. 377; State v. Mills, 181 N.C. 530, 106 S.E. 677.
The bill here suffices to withstand the charge of duplicity. The challenge is not sustained. G.S. § 15-152; State v. Anderson, 208 N.C. 771, 182 S.E. 643; 5 R.C.L. 1081; 11 Am.Jur. 562; I Wharton's Crim.Procedure 624; Joyce on Indictments (2d) 657.
*512 II. The Competency of Evidence.
The defendants objected to the testimony of Leonard reciting that L. C. Sykes was one of the operators of the lotteries; that he had a calculator in his home for totaling tickets, which the witness identified; that Sykes had been tried and convicted and had since left the State or town.
The indictment charges that the defendants (naming them) "did * * * conspire together and with each other and divers other persons" to operate lotteries in Guilford County, etc. It was therefore competent to show who the "divers other persons" were, or to make known the other conspirators in the enterprise. State v. Andrews, 216 N.C. 574, 6 S.E.2d 35. Without objection, the witness freely told of conversations and transactions with C. A. (Shug) York after a mistrial had been ordered as to him or in his case. If the defendants now find it embarrassing to be identified as associates of L. C. Sykes, they have no one to blame but themselves. State v. Beal, 199 N.C. 278, 154 S.E. 604. The association was originally of their own choosing.
Those who enter into a conspiracy to violate the criminal laws thereby forfeit their independence, and jeopardize their liberty, for, by agreeing with another or others to engage in an unlawful enterprise, they thereby place their safety and freedom in the hands of each and every member of the conspiracy. State v. Williams, 216 N.C. 446, 5 S.E.2d 314. The acts and declarations of each conspirator, done or uttered in furtherance of the common, illegal design, are admissible in evidence against all. State v. Ritter, 197 N.C. 113, 147 S.E. 733. "Everyone who enters into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any one of the others, in furtherance of such common design". State v. Jackson, 82 N.C. 565; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; State v. Summerlin (Hole-in-the-Wall Case), 232 N.C. 333, 60 S.E.2d 322; State v. Anderson, 208 N.C. 771, loc. cit. 786, 182 S.E. 643; State v. Herndon, 211 N.C. 123, 189 S.E. 173.
The calculator was competent to be shown in evidence as a part of the paraphernalia used in the operation of the lotteries. State v. Wells, 219 N.C. 354, 13 S.E.2d 613; State v. Fogleman, 204 N. C. 401, 168 S.E. 536; State v. Lea, 203 N.C. 13, 164 S.E. 737; Stansbury's N. C. Evidence, Sec. 85.
Moreover, in cases grounded on fraud or conspiracy, considerable latitude is allowed in the reception of evidence offered to establish the gravamen of the charge or offense. Direct evidence of the charge is not essential, though here it is both direct and positive, with its credibility, however, sharply challenged. The calculator was offered to bolster the testimony of the witness whose credibility was being attacked. It was competent for this purpose. State v. Anderson, supra.
III. Propriety of Colloquy Between Court and Counsel.
The defendants stressfully contend that their cases were prejudiced when the court directed counsel to "sit down" as a result of the colloquy shown in the record; that the direction clearly revealed the court's impatience with their defenses and the manner in which they were being conducted, and that the court's displeasure or opinion in this respect was further emphasized at the opening of the charge when the jury was told the State's evidence "is not contradicted".
Conceding that the direction in question and the further remark in respect of the State's uncontradicted evidence may have been somewhat incautious or infelicitous or even indicative of impatience with the defenses offered by the defendants, we hardly think the effect was as hurtful or impeaching as the defendants now contend. At least, as we apprehend the record, the impeachment appears insufficiently pronounced to overcome the presumption against it. In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12. The appellants have the burden of showing harmful error, and they must make it appear *513 plainly, as the presumption is the other way. Nor is it sufficient merely to cast doubt on the validity of the proceeding. The appellants have the burden of showing error. Collingwood v. Winston Salem Southbound R. R. Co., 232 N.C. 192, 59 S.E.2d 584; Nichols v. Wachovia Bank & Trust Co., 231 N.C. 158, 56 S.E.2d 429; Scott v. Swift & Co., 214 N.C. 580, 200 S.E. 21.
True, the authorities are to the effect that at no time during the trial of a cause may the presiding judge cast doubt upon the testimony of a witness, impeach his credibility, or discredit the efforts of either party before the jury. State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378; State v. Perry, 231 N.C. 467, 57 S.E.2d 774. This may be done by the use of language or conduct calculated to impair the credit which the jury might otherwise or under normal conditions give to the testimony or the position of one of the parties. State v. Simpson, 233 N.C. 438, 64 S.E.2d 568; State v. Carter, 233 N.C. 581, 65 S.E.2d 9; State v. Russell, 233 N.C. 487, 64 S.E.2d 579.
Of course, the fact the court later afforded counsel an opportunity to examine the witness further, or to have any question read, would not have cured the impeachment, if such it were, for impeachment or depreciation at any time during the trial ordinarily is incurable or incorrectible and fatal to the proceeding. State v. McNeill, 231 N.C. 666, 58 S.E.2d 366, and cases there cited.
In the light of the record as we understand it, the exception is not sustained.
IV. Legality of Suspended Sentences.
It is the position of the defendants, Gibson, Coble, Graves and Farley, that as they were convicted of misdemeanors, the court was without authority to suspend their sentences on Counts Two and Five for a period of ten years on good behavior; that they did not consent to such suspensions, and that these suspended judgments should be vacated.
The position appears to be well taken in the light of G.S. § 15-200 which appears in the Chapter on Criminal Procedure and provides that, "The period of probation or suspension of sentence shall not exceed a period of five years and shall be determined by the judge of the court and may be continued or extended, terminated or suspended by the court at any time, within the above limit".
In the case of State v. Wilson, 216 N.C. 130, 4 S.E.2d 440, 442, the inherent power of a court having jurisdiction to suspend judgment or stay execution in a criminal case for determinate periods and for a reasonable length of time, was recognized and upheld under authority of the earlier cases, citing some of them, but it was there observed, "Since that time the period during which the execution of a sentence in a criminal case may be suspended on conditions has been fixed as five years, regardless of the term of imprisonment authorized by statute", citing the above statute.
What was said in Wilson's Case has not been changed or modified in subsequent decisions. State v. Miller, 225 N.C. 213, 34 S.E.2d 143, and cases cited. The general authority recognized in G.S. § 15-197 is to be read in connection with the limitation fixed by G.S. § 15-200.
Perhaps it should be noted the defendant, Sammie Scott, has not appealed, and the judgment against the defendant Coble on Count Three is void for uncertainty or indefiniteness; immaterial, however, since only a concurrent sentence was entered on this count.
Those who are disposed or inclined to take part in a lottery, or the numbers racket, might do well to read the evidence in this case. It comes from the inside and is quite revealing. Duplicity, fraud, overreaching and false pretense appear to be the basis of operation. Chicanery is also employed. The appeal is to cupidity, rapacity, avarice and covetousness. It is a shabby business, if it can be called a business at all. How any one could hope to gain in such an enterprise is difficult to perceive or to understand. The fixed *514 pattern undoubtedly is heads I win; tails you lose", with just enough lure or bait to attract and mislead the unwary. You can't win at the other fellow's game, especially if he be a charlatan. It would seem that only a knave, a dupe, a simpleton or a "blind fish" would bite at such a hook. But then, there are those who act as if they think with their feet or only in the aftertime. "A fool and his money are soon parted"English Proverb.
A careful perusal of the transcript leaves us with the impression the validity of the trial should be upheld, but as indicated, the case will be remanded for correction of errors in the suspended judgments.


text:
CGR, a company incorporated in France, Defendant-Appellee.
Howard J. Beck (Diana J. Payne, with him on the briefs), of Beck & Cassinis, Aurora, Colo., for plaintiff-appellant.
Robert H. Harry (Richard P. Holme and Susan E.H. Ragsdale, with him on the brief), of Davis, Graham & Stubbs, Denver, Colo., for defendant-appellee.
The appellant in this case ("the Trustee"), Paul G. Quinn, is the trustee in bankruptcy for Life Imaging Corporation, a chapter 7 debtor. Life Imaging Corporation manufactured an ultrasound breast scanning device termed a "LIBS (Life Imaging Breast Scanner). The appellee, CGR (Compagnie Generale Radiologie), is a french company that manufactures radiation equipment. In 1980, Life Imaging and CGR entered into a distributorship agreement under which Life Imaging was to supply 140 LIBS to CGR through 1984. CGR received exclusive distribution rights of the LIBS in certain areas outside the United States. In June 1982, CGR telexed its intention to terminate the agreement to Life Imaging. The parties disagree as to the cause of this dissolution. The Trustee asserts that this was a unilateral breach on CGR's part. CGR claims that termination was permitted under the contract because the LIBS were unmarketable, failed to be "clinically accepted in the United States" and failed to perform as warranted.
On May 2, 1983, Life Imaging filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the District of Colorado.1 Those proceedings were converted to a chapter 7 liquidation on April 26, 1984. On January 17, 1985, the Trustee filed this adversary proceeding in district court against CGR for $8,303,370.00 alleged due on the distributorship agreement.
All disputes arising in connection with the Agreement shall be resolved by application, by either party, to the Standing Committee for the Regulation of Contractual Relations of the International Chamber of Commerce (ICC) in order that a third person who shall be appointed in accordance with the Rules on the Regulation of Contractual Relations of the ICC and who shall carry out his mission in accordance with the said Rules may on the parties' behalf make a final decision which shall be binding on the parties and shall be deemed to be incorporated in the Agreement. During the pendency of any proceeding hereunder, obligations under this Agreement shall be suspended.
The district court, relying primarily on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, T.I.S.A. No. 6997, 330 U.N.T.S. 3 reprinted in 9 U.S.C.A. (West Supp.1986), pp. 205-13, granted the motion to compel and ordered the case "closed, to be reopened upon a showing of good cause," 48 B.R. 367. The Trustee appeals both parts of the order.
In a prologue to its brief, CGR cites this court's recent opinion in Pioneer Properties, Inc. v. Martin, 776 F.2d 888 (10th Cir.1985) for the proposition that the court has no appellate jurisdiction over the order in this case. Because we find this argument dispositive of this appeal we do not reach the parties' other arguments.
Section 1291 of title 28, the jurisdictional section upon which this appeal is based, is limited to appeals from final orders. This limitation on our appellate jurisdiction reflects a congressional policy of limiting piecemeal appeals, and preserving the integrity of the hierarchy of trial and appellate courts in our judicial system. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 476, 98 S.Ct. 2454, 2462, 57 L.Ed.2d 351 (1978). See also 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure Sec. 3906 (1976). Any exception to this general limitation on jurisdiction under Sec. 1291 must be carefully limited and parsimoniously applied.
This court has held that an order staying a district court proceeding pending arbitration is not a final order within Section 1291. Pioneer Properties v. Martin, 776 F.2d 888 (10th Cir.1985).
The Trustee attempts to distinguish Pioneer Properties from the present case in two ways. First, the Trustee argues that the district court dismissed the present case, whereas in Pioneer Properties the district court merely stayed the court proceedings. Thus, the Trustee argues, the order ends the federal litigation.
We do not read the order in this case as a dismissal. The order is worded: "[T]his case is ordered closed, to be reopened upon a showing of good cause." Although "closing" a case might in some circumstances be argued to be a dismissal, in this case the order clearly contemplates the possibility of continued federal litigation.2 To reiterate the standard enunciated in Pioneer Properties, the order does not place the Trustee "effectively out of court." 776 F.2d at 891 (quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 at 9 n. 8, 10 & n. 11, 103 S.Ct. 927, 933 n. 8, 934 n. 11, 74 L.Ed.2d 765 (1983). Therefore, the district court's order is not distinguishable from the order in Pioneer Properties on the grounds that it is technically a final dismissal.
The Trustee's second argument is that the expense of pursuing arbitration before the International Chamber of Commerce would prevent continued pursuit of the debtor's contract claim. Thus, the Trustee contends, the exception to the finality rule in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) should apply.
To come within the "small class" of decisions excepted from the final-judgment rule in Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from final judgment.
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (footnote omitted). We must now consider whether Cohen 's narrow exception to the final judgment rule, as defined by Coopers & Lybrand, applies to the order compelling arbitration in the present case.
The Trustee cites Moses H. Cone Hospital v. Mercury Construction Co., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) as supporting the existence of the Cohen exception, and thus appellate jurisdiction, in the present case. But a close examination of the Moses H. Cone case makes clear that it is inapposite to the situation presently before the court.
In Moses H. Cone, a contractor filed suit in federal court to seek an order compelling arbitration of a contract dispute. At the same time, the opposing party had filed suit in state court seeking to void the arbitration provision. The district court stayed the construction company's federal suit pending resolution of the issue of arbitrability in state court. The court of appeals reversed. After granting certiorari, the Supreme Court held that the order granting the stay in Moses H. Cone was appealable.
The appeal in Moses H. Cone was proper for two reasons. First, the Court held that the order was, in effect, a dismissal of the suit. Moses H. Cone, at 10, 103 S.Ct. at 933. Second, applying the three-part test described above, the Court concluded that the order granting the stay fell within the exception to the finality rule recognized in Cohen. "An order that amounts to a refusal to adjudicate the merits," the Court reasoned, "plainly presents an important issue separate from the merits." Moses H. Cone, 460 U.S. at 12, 103 S.Ct. at 935. Because the only issue in the federal suit was arbitrability and because the state court's decision, once rendered, would be res judicata, the Supreme Court reasoned that the stay effectively ended the federal court's role in the case, and that the order was therefore appealable. Id., at 10, 103 S.Ct. at 933. Such is not the case in the facts at hand.
The critical difference between Moses H. Cone and the present case is that Moses H. Cone did not involve an order compelling arbitration and staying the federal proceeding during that arbitration. Rather, it concerned a stay of a federal proceeding pending resolution of the arbitration issue in a state forum. The Court determined that because of the parallel state proceeding, the issue of arbitrability would be resolved conclusively outside of the federal forum. The res judicata effect of the state decision would have rendered the federal decision to stay its proceeding effectively unreviewable. It was on this basis that the Moses H. Cone Court found the Cohen rule applicable. And it is on this same basis that Moses H. Cone is unlike the present case when the Cohen standard is applied.
In Pioneer Properties v. Martin, 776 F.2d 888 (10th Cir.1985), this court distinguished Moses H. Cone, noting that decisions to compel arbitration normally are reviewable after, but only after, final judgment. In this case, as in Pioneer Properties, neither the issue of arbitrability nor the merits of the arbitration decision will necessarily evade later review. No state decision will render any issues res judicata as was the case in Moses H. Cone. The district court's order compelling arbitration can be reviewed on final judgment, and the substance of any arbitration award also can be subject to the limited review of such awards set out in 9 U.S.C. Sec. 10. Moreover, the fact that the Trustee may decide not to pursue arbitration because of its cost does not make the district court order final. The Pioneer Properties court rejected the notion that when "the practical effect of the district court's decision ... to stay proceedings pending arbitration was to terminate all federal litigation on the merits," the decision to stay should be immediately appealable. Pioneer Properties, 776 F.2d at 891. Even in Moses H. Cone, the Supreme Court recognized that "[t]here is an obvious difference between a case in which the plaintiff himself may choose not to proceed and a case in which the district court refuses to allow the plaintiff to litigate his claim in federal court." 460 U.S. at 11 n. 11, 103 S.Ct. at 934 n. 11 (emphasis in original). In the present case, the district court did not refuse to allow the claim's litigation. On the contrary, the court's order expressly contemplates the reopening of the case for cause. Moses H. Cone notwithstanding, the Cohen exception to 28 U.S.C. Sec. 1291's requirement of finality is inapplicable to the case at hand.
Cohen is not the only exception to the finality rule, however. This court has recognized that the intent of Congress would be frustrated by a mechanical application of section 1291's finality requirement. Bender v. Clark, 744 F.2d 1424, 1427 (10th Cir.1984) (citing Cohen ). In Bender, this court advocated a balancing approach in determining appealability of ostensibly interlocutory orders when denial of review might "violate basic judicial principles." Id. In such cases, Bender held, "[t]he critical inquiry is whether the danger of injustice by delaying appellate review outweighs the inconvenience and cost of piecemeal review." Id. Thus, before dismissing an appeal, this court has acknowledged a duty to weigh the possibility that denying immediate review might sound the "death knell" of an otherwise worthy action against Congress's unequivocal policy of requiring review to be delayed until after final judgment. See Ringsby Truck Lines Inc. v. United States, 490 F.2d 620, 624 (10th Cir.1973) (recognizing "death knell" exception to final judgment rule in context of review of district court's remand to Interstate Commerce Commission), cert. denied, 419 U.S. 833, 95 S.Ct. 59, 42 L.Ed.2d 59 (1974), cited in Bender, 744 F.2d at 1427.
The exception to finality described in Bender and Ringsby must be applied only in the most exceptional circumstances. As the Supreme Court has noted, such an exception has the potential of entirely eliminating the finality requirement of section 1291, replacing it instead with a system of "indiscriminate interlocutory review of decisions made by the trial judge." Coopers & Lybrand v. Livesay, 437 U.S. 463, 474, 98 S.Ct. 2454, 2461, 57 L.Ed.2d 351 (1978) (emphasis by the Court) (rejecting death knell exception to finality review in the context of appeals from the denial of class status). The Coopers & Lybrand Court rejected a system of appeals in which appellate jurisdiction was determined by consideration of the appellees' financial ability to continue to pursue the lawsuit. 437 U.S. at 470-71, 98 S.Ct. at 2458-59. It is a similar system for which the Trustee argues in this case. Although in extraordinary cases the policies supporting the finality requirement may need to be weighed against the effect of delaying review, this is not such an extraordinary case, and we must respect Congress's intent to require finality as a prerequisite to appellate review.
Of course, Congress has not blindly sought to impose the finality requirement in every case. Normally in cases such as the present, rather than resorting to "death knell" arguments, the parties should avail themselves of the statutory procedure for interlocutory review that Congress has provided. See 28 U.S.C. Sec. 1292(b). Nothing in the record indicates any attempt by the Trustee in this case to request the district court to certify the arbitrability question for interlocutory review. Had the Trustee availed himself of this procedure, many of the concerns warranting denial of appellate review might have been allayed. See Coopers & Lybrand, 437 U.S. at 476, 98 S.Ct. at 2462. As the case stands now, this court lacks jurisdiction, based on Pioneer Properties v. Martin, 776 F.2d 888 (10th Cir.1985), to proceed to the merits.
CGR has moved this court to award it its attorneys' fees on appeal, claiming that the appeal is frivolous. We cannot find that this appeal merits such a sanction. We note that both Pioneer Properties and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), a case potentially important to the merits of the action, had not been decided at the time the appeal was filed. The motion for attorneys' fees pursuant to Fed.R.App.Pro. 38 is denied.

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* "qmailctl stat" now shows something like "0 days, 00 hours 16 mins"
* change "up" and "down" to green and red color.
* fixed a bug where the filesize part of the S=<filesize> component of the Maildir++ compatible filename is wrong (tx MG). More info here and here.
It now manages long TXT records, avoiding the rejection of some hotmail.com messages.
* dkim patch updated to v. 1.19: verification will not fail when a dkim signature does not include the subject provided that the UNSIGNED_SUBJECT environment variable is declared. More info here.
-the SSLv3 connection upon the auth was switched off because of security reasons (thanks to Florian).
-modified the QUEUE_EXTRA variable in extra.h to record the Message-ID in the qmail-send's log (thanks to Simone for the hint). Look here for details.
roundcube upgraded to v. 1.0.3.
Bruce Guenter has released a new version of ezmlm-idx, getting the program to be compliant with the Yahoo DMARC Policy Change. You have to recompile qmailadmin against ezmlm as well.
-added qmail-smtpd-liberal-lf patch, which allows qmail-smtpd to accept messages that are terminated with a single \n instead of the required \r\n sequence. This should avoid some "read failed" reject.
-added qmail-SRS patch. You must install libsrs2 now.
-DKIM patch upgraded to v. 1.17. Defined -DHAVE_SHA_256 while compiling dkimverify.cpp in the Makefile. This solved an issue while verifying signatures using sha256.
-new combined patch released. The DKIM patch has been upgraded to v. 1.16; the signing at qmail-remote level has been revised by its author.
-I added notes about qmail-remote signing in the DKIM page of this guide.
ucspi-tcp6: upgraded to v. 0.99. The current version includes an hack by Manvendra Bhangui from indimail.org which gets tcpserver and qmail's spfcheck to be IPv4-mapped IPv6 addresses compliant, provided that you install his modified qmail-spf patch (my combined patch already has this adjustment to spf).
-DKIM patch upgraded to v. 1.12. The new patch adds surblfilter functionality.
-the dovecot's expunge shell script was simplyfied. Using the sql driver solved all issues of the old vpopmail backend related to the missing iteration feature.
The qmail-forcetls patch was simplyfied accordingly.
2012.10.25 vpopmail: upgraded to v. 5.4.33 (now marked as stable). Be aware that you have to recompile netqmail, qmailadmin and vqadmin as well.
2012.01.21 Roundcube: updated to v. 0.7.1. All plugins have been updated to latest version as well.
2011.12.13 dnsbl.sorbs.org is not on my RBL examples anymore, as it proved to be a bad list. It's rejecting gmail's IPs and also confusing the IP of my own server as dynamic.
2011.12.12 New combined patch released.
-modified update_tmprsadh to chown the .pem files to vpopmail to avoid hang-ups during the smtp conversation on port 587 caused by permission problems.
2011.10.06 New combined patch released.
2011.07.27: Big patch updated. My force-tls patch allows the management of STARTTLS and CRAM-MD5 variables in the run file, so that there's no need to recompile each time anymore.
2011.07.03 Added support for rblsmtpd. Added a page about the greetdelay patch.
2011.06.29 New combined patch released. Added ext-todo and big-todo patches, which adress the "silly qmail syndrome" on big servers.
2011.05.25 RoundCube: updated to v. 0.5.2. Updated almost all roundcube's plugin to latest version.
2011.04.06 Vermulen's TLS patch updated (security fix, see http://www.kb.cert.org/vuls/id/555316).
New qmail combined patch releasead.
* removed, because it was causing more problems than advantages, as the domain of the log@yourdomain.tld had to match the system domain inside control/me and can't be a virtual domain as well."
In my setup I have a log@defaultdomain.tld which is a very important mailbox that I cannot change.
#define QUEUE_EXTRA "Tlog\0" -> #define QUEUE_EXTRA ""
If I understand correcty with the qmail-extra patch removed this is not going to be needed, correct ?

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Yesterday the 9th Circuit Court of Appeals issued an opinion holding that limiting an employee’s access to the company computers solely for business purposes, i.e. not stealing the data for a competitor, cannot be the predicate for a violation of the federal computer crime statute, the Computer Fraud and Abuse Act (“CFAA”), Title 18, U.S. C. § 1030. U.S. v. Nosal, 2012 WL 1176119 (9th Cir. April 10, 2012). The CFAA makes it a crime in various instances to access a computer “without authorization” or to have “exceeded authorized access” to obtain information from the computer and permits those, including companies, who are victims of violations of the statute to bring a civil action against the perpetrators.
The history of this case dates back to LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009). Brekka involved the classic employee theft of data whereby employees, before they leave to compete, e-mail to themselves competitively sensitive company data. The Brekka court refused to apply the CFAA to this theft of data, holding that employees cannot act “without authorization” because their employer gave them “permission to use” the company computer. Id. at 1133. Thus, Brekka was predicated on the simplistic proposition that employees have permission to access the company computers and, thus, by definition cannot access the company computers without authorization.
Two years later, in U.S. v. Nosal, 642 F.3d 781(9th Cir. 2011), the 9th Circuit clarified its decision in Brekka, and allowed a violation of company policies to serve as a predicate to prove unauthorized access in the employer/employee context. As of the Nosal decision, Brekka had been relied upon by numerous district courts in and out of the 9th Circuit as a bar to using the CFAA against employees who stole data from their employers’ computers.
David Nosal, a Korn/Ferry executive, was indicted for stealing confidential data from the company computers prior to joining a competitor. Nosal had allegedly recruited “three Korn/Ferry employees to help him start a competing business.” Id. at 782. The Indictment charged these employees with “using their user accounts to access the Korn/Ferry computer system” who then “transferred to Nosal source lists, names, and contact information from the ‘Searcher’ database – a ‘highly confidential and proprietary database of executives and companies’ – which was considered by Korn/Ferry ‘to be one of the most comprehensive databases of executive candidates in the world.’” Id.
The district court had initially rejected Nosal’s motion to dismiss the CFAA counts but reversed itself after the Brekka decision. The government appealed relying upon Korn/Ferry’s computer policies that restricted the scope of employees’ access to the company computers including one that “restricted the use and disclosure of all such information, except for legitimate Korn/Ferry business.” Id.
The government argued that based on these policies, Nosal had exceeded authorized access. The court agreed, holding that “an employee ‘exceeds authorized access’ under §1030 when he or she violates the employer’s computer access restrictions – including use restrictions.” Id. Nosal distinguished Brekka on the lack of computer policies governing Brekka’s right to access the company computers — “[b]ecause LVRC [the employer] had not notified Brekka of any restrictions on his access to the computer, Brekka had no way to know whether – or when – his access would have become unauthorized.” Id. at 787.
The court concluded that “as long as the employee has knowledge of the employer’s limitations on that authorization, the employee ‘exceeds authorized access’ when the employee violates those limitations.” Id at 788. Subsequently, the court granted an en banc hearing of its decision in Nosal.
As the court admits, it basically defines “without authorization” to mean “the circumvention of technological barriers” in the computers. There is, however, nothing in the plain language of the CFAA that supports such a restrictive interpretation of access “without authorization.” Based on Morrison v. National Australia Bank Ltd., 130 S.Ct. 2869 (2010), where the Supreme Court criticized “judicial-speculation-made-law- divining what Congress would have wanted if it had thought of the situation before the court,” it is highly unlikely that the Supreme Court will read such a restriction into the statute.
This of course raises an issue of prosecutorial discretion. A similar laundry list of wacky hypotheticals could also be posited with the mail and wire fraud statutes, yet the Supreme Court has upheld both statutes. For example, a student who called home from college asking his parents to send him money for books, when he really intended to use the money to buy beer is technically in violation of the wire and mail fraud statutes. The bottom line is, as the dissent in Nosal pointed out, it is simple to come up with a contorted application of any criminal statute. That does not make the law unenforceable or unconstitutional.
This entry was posted in Computer Fraud and Abuse Act, Disloyal Employees and tagged 9th Circuit, Brekka, CFAA, Computer Fraud and Abuse Act, Korn/Ferry, Nosal. Bookmark the permalink.
»Company computer policies risk becoming obsolete — Policies must reflect new laws and court decisions on data theft, social networking and cloud computing.


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Mondada, L. (accepted). The situated organization of directives in French: imperatives and action coordination in video games. In : Chevalier, F.H.G. (ed) (forthcoming 2011) French Language and Social Interaction: Studies in Conversation Analysis and Interactional Linguistics, Nottingham French Studies (Special Issue), Volume 50 (2).
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Bertrand, R. & Priego-Valverde, B. (2011), Does prosody play a specific role in conversational humor?, Special Issue of Pragmatics and Cognition, vol. 19, no. 2, 333-356.
Brunellière, A., Dufour, S., & Nguyen, N. (accepted). Regional differences in the listener's phonemic inventory affect semantic processing: An ERP study, Brain and Language.
Dufour, S., Nguyen, N., & Frauenfelder, U. (2010). Does training on a phonemic contrast absent in the listener's dialect influence word recognition?, Journal of the Acoustical Society of America, Express Letters 128, EL43-EL48.
Mondada, L. (2009). The Embodied and Negotiated Production of Assessments in Instructed Actions, Research on Language and Social Interaction, 42 : 4, 329–361.
Bert, M., Bruxelles, S., Etienne, C., Jouin, E. , Mondada, L., Teston, S., Traverso, V. (2010). Grands corpus et linguistique outillée : enjeux de la mise à disposition de corpus de français en interaction (bases CLAPI et CIEL). Revue Pratiques (CRESEF, Metz), n° 147-148 (décembre 2010).« Interactions et Corpus Oraux ».
Mondada, L. (submitted). An interactionist perspective on the ecology of linguistic practices: The situated and embodied production of talk. In Ralph Ludwig, Peter Mühlhäusler & Steve Pagel (eds.). Language ecology and language contact. Amsterdam: Benjamins.
Mondada, L. (accepted). Coordinating mobile action in real time: the timed organization of directives in video games. In: Haddington, P., Mondada, L., Nevile, M. (eds). Being mobile: Movement as social action.
Mondada, L. (accepted). Coordinating action and talk-in-interaction in and out of video games. In R. Ayass, C. Gerhradt (eds.). The appropriation of media in everyday life. What people do with media. Amsterdam: Benjamins (Pragmatics and Beyond New Series).
Nguyen, N. Representations of speech sound patterns in the speaker's brain: Insights from perception studies, in Cohn, A., Fougeron, C., & Huffman, M., éditeurs, Handbook of Laboratory Phonology (Oxford University Press, Oxford, UK), sous presse.
Bruxelles, S. ; Traverso, V. (2011). Making one’s own voice heard in other-repetitions. Panel "Understanding varieties and functions of other-repetition in interaction" (Oloff, F.; Traverso, V.), 12th International Pragmatics Conference (IPRA), Manchester, 4-8 juillet.
Bruxelles, S., Etienne, C., Jouin, E., Mondada, L., Oloff, F., Traverso, V. (2011). Phénomènes et unités : questions autour de la détection automatique des répétitions dans un corpus de langue parlée en interaction. Colloque international « (Dés-)organisation de l'oral ? De la segmentation à l'interprétation » (24-25 mars 2011, Rennes).
Garnier, M, Lamalle, L. & Sato, M. (2011). Neural correlates of intentional versus automatic imitation of speech. 17th Annual Meeting of the Organization for Human Brain Mapping, June 26-30, Québec, Canada.
Garnier, M, Lamalle, L. & Sato, M. (2011). Neural correlates of phonetic convergence and speech imitation. Ninth International Seminar on Speech Production, June 20-23, Montreal, Canada.
Michelas, A, & Nguyen, N. (2011). Uncovering the effect of imitation on tonal patterns of French Accentual Phrases. Interspeech 2011, Florence, 28-31 august.
Oloff, F. (2011). Re-completing a turn: repeats as receipts of collaborative completions. IIEMCA 2011, 10th Conference of the International Institute of Ethnomethodology and Conversation Analysis, Fribourg, 10-14 juillet.
Oloff, F. ; Mondada, L. (2011). "Repeating" gestures while translating: Translation as an embodied practice. Panel "Understanding varieties and functions of other-repetition in interaction" (Oloff, F.; Traverso, V.), 12th International Pragmatics Conference (IPRA), Manchester, 4-8 juillet.
Oloff, F. (2011). L'hétéro-répétition suite aux complétions collaboratives : une étude multimodale de tours produits conjointement. Colloque international « (Dés-)organisation de l'oral ? De la segmentation à l'interprétation », Rennes, 24-25 mars.
Oloff, F., & Traverso, V. (2011). Understanding varieties and functions of other-repetition in interaction. Panel accepted at the Colloque International de la International Pragmatics Association (IPRA), Manchester, 4-8 juillet.
Sato, M., Grabski, K., Garnier, L., Granjon, L., Schwartz, J.-L. & Nguyen, N. (2011). Plasticity of auditory goals in speech production: behavioral evidence from phonetic convergence and speech imitation. Ninth International Seminar on Speech Production, June 20-23, Montreal, Canada.
Alho, J., Jaaskelainen, I., Sato, M., Schwartz, J.-L., Tiitinen, H., Kauramäki, J. & Sams, M. (2010). To listen and to talk: auditory M100 response shifts posteriorly when perceiving phonemes before speaking, Neurobiology of Language Conference 2010, San Diego, 11-12 nov. 2010.
Bigi, B., Bertrand, R., & Guardiola, M. (2010). Recherche automatique d'he´te´ro-re´pe´titions dans un dialogue oral spontané, Actes des XXVIIIèmes Journées d’Étude sur la Parole, Mons, 25-28 mai 2010.
Brunellière, A., Dufour, S., & Nguyen, N. (2010). Y a-t-il un impact de l’imitation sur la reconnaissance des mots parlés dans un accent régional non-natif? Actes des XXVIIIèmes Journées d’Étude sur la Parole, Mons, 25-28 mai 2010, pp. 321-324.
Brunellière, A., Dufour, S., & Nguyen, N. (2010). Electrophysiological evidence for the impact of non-native regional accent imitation on sentence comprehension, Neurobiology of Language Conference 2010, San Diego, 11-12 nov. 2010.
Sato, M., Grabski, K., Granjon, L., Schwartz, J.-L., & Nguyen, N. (2010). Converging to a common speech code: automatic imitative and perceptuo-motor recalibration processes in speech communication, Neurobiology of Language Conference 2010, San Diego, 11-12 nov. 2010.
Traverso, V. (2010). Répétition, accord et désaccord : analyse d'une réunion de travail. Communication accepted at the Colloque International « Dialogisme », 8-11 septembre, Montpellier.
Sato, M. (2011). Die Rolle der Spiegelneuronen bei der Sprachentwicklung. 2nd Neurotherapy Symposium, May 14, Zurich, Switzerland.
Nguyen, N. (2010). The dynamical approach to speech perception, CPMSP2 Summer School, Berlin, sept.
Nguyen, N. (2009).The sound shape of words in the mental lexicon : Insights from studies on imitation between talkers, Linguistisches Kolloquium, LMU, Munich, juil.
Sato, M. (2009). Percevoir et agir ? Interactions sensorimotrices lors de la perception de parole. Laboratoire Linguistique, Langues, Parole, December 12, Strasbourg, France.
Sato, M. (2009). Interactions sensorimotrices lors de la perception de parole. Laboratoire Parole & Langage, May 29, Aix-en-Provence, France.
Sato, M. (2009). La nature sensorimotrice de la parole. Centre de Recherche en Sciences Cognitives et du Langage, February 20, Bruxelles, Belgium.
Aubanel, V. Traitement perceptif de la variation phonologique : le français de Marseille (Supervisor : N. Nguyen).
Fiasson, R. Dynamique des mouvements articulatoires dans l'interaction conversationnelle (Supervisor : N. Nguyen).
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