Dominion Exploration & Production, Inc. et al v. Delmar Systems, Inc. et al
Filing
230
ORDER granting in part and denying in part 176 Motion for Partial Summary Judgment. Signed by Judge Jay C. Zainey. (jrc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DOMINION EXPLORATION & PRODUCTION, INC., ET AL.
CIVIL ACTION
VERSUS
NO. 07-9492
DELMAR SYSTEMS, INC., ET AL.
SECTION "A"(1)
ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment
(Rec. Doc. 176) filed by defendant/counterclaimant Delmar
Systems, Inc.
Plaintiffs, Dominion Exploration & Production,
Inc., et al., oppose the motion.
The motion, set for submission
on October 31, 2012, is before the Court on the briefs without
oral argument.1
For the reasons that follow, the motion is
GRANTED IN PART AND DENIED IN PART as explained below.
I.
BACKGROUND
A.
Factual Background
This lawsuit involves an incident that occurred on the Outer
Continental Shelf (“OCS”) off the coast of Louisiana.
1
Plaintiff
The Court had originally scheduled this motion for oral
argument but after further review of the memoranda the Court
decided that oral argument would not be helpful in light of the
issues presented.
On October 23, 2012, the Court ordered supplemental briefing
with the final supplement due on November 7, 2012 (Rec. Doc.
223).
1
Dominion Exploration & Production, Inc. (“Dominion”) is an oil
and gas exploration and production company and was at all times
pertinent the majority owner of Well #2 in the Gulf of Mexico.
(Second Amend. Comp.2
(“SAC”) ¶ 8).
During the summer of 2005,
Dominion and defendant Delmar Systems, Inc. (“Delmar”) began
discussions about a mooring system for an offshore semisubmersible drilling rig.
(SAC ¶ 12).
Delmar is engaged in the
business of providing mooring systems for offshore drilling rigs.
(SAC ¶ 10).
On October 13, 2005, Delmar issued a written
proposal to Dominion for the rental of a preset mooring system
(“the Mooring System”) for the Noble AMOS RUNNER, which was to be
used for exploration and production operations at Well #2 on the
OCS.
(SAC ¶ 14).
On December 5, 2005, Dominion and Delmar
entered into an offshore Master Service Contract (“the MSA”)
pursuant to which Delmar was to provide services to Dominion.
(SAC ¶ 13).
Beginning on September 6, 2006, Delmar installed the
Mooring System on location at Well #2.
(SAC ¶ 15).
The AMOS
RUNNER arrived at the Well #2 location on March 9, 2007, and was
thereafter tethered to the Mooring System.
2
(SAC ¶ 16).
Dominion owns a 53.3335 percent interest in Well #2.
Plaintiff Statoil owns 26.666 percent of the well and plaintiff
Anadarko owns 20 percent of the well. (SAC ¶ 8). Statoil
obtained its interest in the well from Hydro Gulf of Mexico, LLC,
the entity that owned the 26.666 percent interest in the well at
the time of the incident at issue. (SAC ¶ 22). For simplicity,
the Court will refer to all plaintiffs in the singular as
“Dominion.”
2
On April 24, 2007, at approximately 3:30 a.m., the Mooring
System failed.
(SAC ¶ 18).
The segment of the Mooring System
that failed was a 2000 foot long 6.3 inch polyester mooring rope
provided by Delmar and manufactured by Brazilian defendant
Cordoaria Sao Leopoldo, SA (“CSL”).
(SAC ¶ 19).
Dominion
contends that the Mooring System failed due to manufacturing
defects in the rope incorporated by Delmar into the Mooring
System, and that those defects existed at the time of delivery.
According to Dominion, the failure of the CSL rope within the
Mooring System caused an asymmetric mooring configuration, which
in turn caused the AMOS RUNNER to drift off location.
Opposition, Rec. Doc. 204, Exh. 1 ¶ 13).
(Pla.
Because of the
drifting, the crew of the AMOS RUNNER was required to implement
an emergency disconnect of the drill string and lower marine
riser package in order to avoid a blowout of the well.
(Id.).
Between April 24, 2007, and June 16, 2007, the Mooring System was
under repair and was unusable.
(SAC ¶ 21).
But because Well #2
had been producing at the time of the incident, MMS regulations
necessitated that the AMOS RUNNER remain on site.
Opposition, Rec. Doc.204, Exh. 1 ¶¶ 18-19).
(Pla.
Dominion claims
about $50 million in damages due to the failed Mooring System and
attributes the failure to a preexisting defect in the mooring
rope.
3
B.
Procedural Background
On December 13, 2007, Dominion filed suit against Delmar and
CSL.
The SAC, filed on March 15, 2010, alleges that 1)
Delmar breached the implied warranties and express warranties
under Sections 1 and 14(b) of the MSA by providing an inherently
defective mooring system which failed during its intended use;
2) Delmar breached the MSA by providing a mooring system that
failed, and Delmar failed to perform under the MSA “in a good and
workmanlike manner and to the full and complete satisfaction of”
Dominion.
(SAC ¶ 42); 3) Delmar is strictly liable under the
Louisiana Products Liability Act; 4) Delmar was negligent in its
failure to adequately test the Mooring System prior to delivery;
and 5) Delmar was unjustly enriched when Dominion erroneously
paid over $3 million to satisfy invoices for repair work to the
Mooring System.
On April 3, 2008, just days after answering the lawsuit,
Delmar moved for summary judgment raising the same substantive
arguments that are at issue in this motion.
(Rec. Doc. 17).
Judge Fallon denied the motion without prejudice after concluding
that the motion was premature absent further factual development
via discovery.
(Rec. Doc. 31).
Although the case is now nearly five years old, discovery
and motion practice to date have focused on CSL’s challenge to
personal jurisdiction.
According to Dominion, the substantive
4
fact-based discovery that Judge Fallon thought essential to
consideration of Delmar’s motion has not yet commenced.
(Pla.
Oppo., Rec. Doc. 204, at 1).
II.
DISCUSSION
A.
Delmar’s Motion for Summary Judgment
Delmar now reurges its previous motion for summary judgment.
Delmar’s motion for summary judgment seeks two forms of relief,
both grounded in the contractual terms of the parties’ MSA.
First, Delmar moves for summary judgment on all of Dominion’s
damage claims.
This aspect of the motion is grounded on the
contention that the express terms of the MSA–-specifically the
indemnity provision, the consequential damages waiver, and the
warranty limitation provision--preclude the precise elements of
damage that Dominion is seeking to recover.
Delmar maintains
that the sole remedy available to Dominion for the failure of the
Mooring System is the exclusive remedy provided by the warranty
limitation provision of the MSA.
Second, Delmar moves for summary judgment on its
counterclaims against Dominion for defense and indemnity on the
claims that Dominion brought against Delmar in the main demand.
As a practical matter this aspect of the counterclaim is one for
reimbursement of the attorney’s fees that Delmar has incurred
5
defending Dominion’s claims in the main demand.3
B.
Law and Analysis
Dominion makes a convincing argument that even with the
passing of over four years since the prior district judge first
denied Delmar’s motion for summary judgment, little progress has
been made toward the merits-based discovery that the judge
alluded to when characterizing Delmar’s motion as “premature.”
(Rec. Doc. 31, at 3).
And for that reason the Court will deny
many aspects of Delmar’s re-urged motion for summary judgment.
But one issue that the Court is persuaded is ripe for
determination is whether maritime law or state law governs the
claims between Dominion and Delmar.
The parties clearly consider
this a threshold issue, the resolution of which could affect the
viability of Dominion’s claims against Delmar.
Dominion takes
the position that state law should apply to the MSA, and if it
does, then Dominion maintains that the indemnity provisions that
Delmar relies upon in defense of the suit are unenforceable,
notwithstanding that this case does not involve death or bodily
injury, and therefore is not affected by the Louisiana Oilfield
Anti-Indemnity Act (“LOAIA”).
Delmar’s positions is that
maritime law applies to the MSA and that under maritime law all
3
Delmar is also seeking to recover $2,135,682.70 in overdue
invoices as part of its counterdemand against Dominion. This
claim for past due invoices is not at issue in the instant
motion. (Def. Memo., Rec. Doc. 176-1, at 6 n.21).
6
aspects of the indemnity obligations are enforceable.
1.
Does State Law or Maritime Law Govern the MSA?
Dominion invoked subject matter jurisdiction pursuant to the
Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1333, et
seq., when filing suit in this Court.4
(SAC ¶ 6).
OCSLA vests
the district courts of the United States with jurisdiction of
cases and controversies arising out of, or in connection with,
any operation conducted on the OCS which involves exploration,
development, or production of the minerals, of the subsoil and
seabed of the OCS.
43 U.S.C.A. § 1349(b)(1)(A) (West 2007).
Without question, this case falls within OCSLA’s broad
jurisdictional grant, without regard to whether maritime law
governs the claims and without regard to whether the Court’s
admiralty jurisdiction might have also provided a basis for
subject matter jurisdiction.
See Texaco Explor. & Prod., Inc. v.
AmClyde Engr. Prods. Co., 448 F.3d 760, 768 (5th Cir. 2006).
OCSLA contains a statutory choice of law provision:
The Constitution and laws and civil and political
jurisdiction of the United States are extended to the
subsoil and seabed of the outer Continental Shelf and to
all artificial islands, and all installations and other
devices permanently or temporarily attached to the
seabed, which may be erected thereon for the purpose of
exploring for, developing, or producing resources
therefrom . . . to the same extent as if the outer
Continental Shelf were an area of exclusive Federal
4
Dominion alternatively asserts diversity jurisdiction.
(SAC ¶ 6). The jurisdiction of a federal court to entertain this
suit is not in dispute.
7
jurisdiction located within a State.
43 U.S.C.A. § 1333(a)(1) (West 2007).
To the extent that they are applicable and not
inconsistent with this subchapter or with other Federal
laws and regulations of the Secretary now in effect or
hereafter adopted, the civil and criminal laws of each
adjacent State . . . are declared to be the law of the
United States for that portion of the subsoil and seabed
of the outer Continental Shelf, and artificial islands
and fixed structures erected thereon, which would be
within the area of the State if its boundaries were
extended seaward to the outer margin of the outer
Continental Shelf . . . .
Id. § 1333(a)(2)(A).
The MSA itself also contains a choice of
law section:
Where any services, products, materials, supplies, or
equipment are to be provided in a geographic location
covered by the General Maritime law, the General Maritime
laws of the United States shall apply.
Such General
Maritime law shall govern the validity, interpretation,
and performance of [the MSA].
(Rec. Doc. 100-2 ¶ 11) (emphasis added).
But when triggered,
OCSLA’s Congressionally-mandated choice of law scheme will
override the parties’ contractually-designated choice of law.
AmClyde, 448 F.3d
772 (citing Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473 (1981); Union Tex. Pet. Corp. v. PLT Eng’g,
Inc., 895 F.2d 1043, 1050 (5th Cir. 1990)).
Thus, the parties’
contractual choice of law provision will be rendered nugatory if
OCSLA mandates that state law applies to the contract.
Of course coverage by OCSLA does not perforce entail
application of state law.
See Demette v. Falcon Drilling Co.,
280 F.3d 492 (5th Cir. 2002), overruled on other grounds by Grand
8
Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 783 (5th
Cir. 2009).
In this circuit, courts apply a three-part test to
determine whether the law of the adjacent state governs as
“surrogate federal law” under OCSLA’s choice of law provision:
1) the controversy must arise on a situs covered by OCSLA, 2)
federal maritime law must not apply of its own force, and 3) the
state law must not be inconsistent with federal law.
Ace Am.
Ins. Co. v. M-I, LLC, -- F.3d --,2012 WL 5077684, at *2 (5th Cir.
Oct. 19, 2012); Grand Isle, 589 F.3d at 783 (quoting PLT Eng’g,
895 F.2d at 1047).
Thus, if maritime law applies of its own
force, then OCSLA will not mandate that the claims be governed by
state law.
In a breach of contract case, maritime law applies of its
own force when the contract sued upon is a maritime contract. See
Alleman v. Omni Energy Servs. Corp., 434 F. Supp. 2d 405, 409-11
(E.D. La. 2006) (Vance, C.J.).
In determining whether state law
applies in an OCSLA action predicated on a contract, it is
permissible to consider whether the contract at issue is a
maritime contract before considering whether the OCSLA situs
requirement has been established.
n.9.
Grand Isle, 589 F.3d at 789
Thus, if the contract sued upon is a maritime contract then
maritime law applies and state law has no application so that the
situs question need not be answered.
Id.
Determining whether a contract relating to offshore drilling
9
is maritime in nature is often a confusing “perplexing affair.”
Demette, 280 F.3d at 500 (quoting Davis & Sons, Inc. v. Gulf Oil
Corp., 919 F.2d 313, 315 (5th Cir. 1990)); Norfolk S. Ry. Co. v.
James N. Kirby Pty Ltd., 543 U.S. 14, 23 (2004)(quoting Kossick
v. United Fruit Co., 365 U.S. 731, 735 (1961) (“The boundaries of
admiralty jurisdiction over contracts–-as opposed to torts or
crimes--being conceptual rather than spatial, have always been
difficult to draw.”).
Courts in this circuit are guided by the
test enunciated in Davis & Sons v. Gulf Oil, and the Supreme
Court’s more recent decision in Norfolk Southern Railway Co. v.
James N. Kirby Pty Ltd., when evaluating whether a contract is
maritime in nature.
Whether a contract constitutes a maritime contract depends
on the “nature and character of the contract,” rather than on its
place of execution or performance.
Davis, 919 F.2d at 316
(quoting N. Pacific S.S. Co. v. Hall Bros. Marine Ry. & Shipbldg.
Co., 249 U.S. 119 (1919); Kossick, 365 U.S. at 731); Norfolk, 543
U.S. at 24.
The “true criterion” is whether the contract has
“reference to maritime service or maritime transactions.”
Norfolk, 543 U.S. at 24 (quoting N. Pacific, 249 U.S. at 125).
In a contract case, the court cannot simply look to whether a
ship or other vessel was involved in the dispute.
F.3d at 23.
Norfolk, 543
Even a contract for offshore drilling services that
does not mention any vessel is maritime if its execution requires
10
the use of vessels.
Demette, 280 F.3d at 500-01.
The court
considers the contract’s “historical treatment in the
jurisprudence” as well as the specific facts of the case.
Demette, 280 F.3d at 500 (citing Davis, 919 F.2d at 315).
For
some categories of contracts, the historical treatment is
sufficiently clear such that the fact-specific inquiry becomes
less important.5
Id.
In the context of oil and gas exploration
on the OCS, maritime law will apply only if the case has a
sufficient maritime nexus wholly apart from the situs of the
relevant structure in navigable waters.
Laredo Offshore Constr.,
Inc. v. Hunt Oil Co., 754 F.2d 1223, 1230 (5th Cir. 1985).
In
the context of contract disputes, precedent precludes the
application of maritime law except in those cases where the
subject matter of the controversy bears the type of significant
relationship to traditional maritime activities necessary to
invoke admiralty jurisdiction.
Id. (citing Kossick, 365 U.S. at
736-38).
5
In Davis the Fifth Circuit listed six factors to consider
as part of the fact-specific inquiry: 1) What does the specific
work order in effect at the time of the injury provide? 2) What
work did the crew assigned under the work order actually do? 3)
Was the crew assigned to work aboard a vessel in navigable
waters? 4) To what extent did the work being done relate to the
mission of that vessel? 5) What was the principal work of the
injured worker? 6) What work was the injured worker actually
doing at the time of the injury? 919 F.2d at 316. Davis
involved contractual indemnity based on an underlying personal
injury (death) tort claim, and hence the references to “injury”
in the factors.
11
Turning now to the dispute between Dominion and Delmar, it
is undisputed that all of the work that gave rise to this lawsuit
was performed pursuant to the MSA.6
In fact, several of
Dominion’s claims are grounded specifically on various breach of
contract theories.
Also undisputed is the “legal fact” that the AMOS RUNNER,
which is a semi-submersible drilling rig, is a vessel under the
law of this circuit.
Mooring a vessel on navigable waters is a
quintessential maritime activity.
The damages at issue in this
case arose out of the failure of the Mooring System and the
vessel having drifted off location in the aftermath of the
failure.
It would seem then to be an irrefragable conclusion
that the MSA, a contract whose primary focus is the mooring of
vessel on navigable waters, is a maritime contract governed by
maritime law.
To the extent that there is any doubt as to whether maritime
law governs the MSA, that doubt arises out of the additional
6
As is the common practice in the oil and gas industry,
Dominion and Delmar’s contractual relationship for the project
that gave rise to this lawsuit was created in two stages. The
parties’ MSA is a “blanket contract” or master services agreement
that constituted the first stage of the contractual relationship.
Work orders for the performance of specific work were
subsequently issued to form stage two of the agreement. When the
parties’ agreement consists of two parts—-the blanket agreement
and a subsequent work order–-the two must be interpreted together
when determining whether maritime law governs the contractual
dispute. Grand Isle, 589 F.3d at 787 n.6; Davis, 919 F.2d at
315-16; Ace Am. Ins., 2012 WL 5077684, at *3-4.
12
“legal fact” that the AMOS RUNNER was also an OCSLA situs.
In
Demette v. Falcon Drilling, the Fifth Circuit specifically
addressed the question of whether a movable jack-up rig, which is
a vessel, loses its vessel status when its also qualifies as an
OCSLA situs.
The majority opinion demonstrates that vessel
status and OCSLA situs status are not mutually exclusive states.
The end result in that case was that maritime law applied to the
contractual dispute of its own force, so OCSLA, which was clearly
applicable to the case, did not apply state law to the dispute.
Demette, 280 F.3d at 500.
The need for OCSLA’s state law gap-
filling function was not triggered because the rig in question
was a vessel subject to maritime law.
See id. at 504 n.52.
A
movable rig subject to maritime law does not suffer from the same
“lawless limbo” that would affect fixed platforms in the absence
of OCSLA’s choice of law mandate.
Id.
Judge DeMoss wrote a vigorous dissent in Demette.
The crux
of his dissent was that in the realm of OCSLA, it is invalid to
continue to treat movable rigs as vessels, particularly when they
are jacked up on the seabed and actively involved in the
production of oil and gas on the OCS.
08 (DeMoss, J., dissenting).
Demette, 280 F.3d at 507-
According to Judge DeMoss, the
legislative history behind OCSLA as well as the Supreme Court
cases interpreting it, made the majority’s adherence to the
vessel distinction for movable rigs, and the concomitant
13
application of maritime law, untenable.
Id.
Demette was later overruled in part by Grand Isle Shipyard
v. Seacor Marine, but only to the extent that it suggested that
the law applicable to an underlying tort, as determined by the
situs of the tort, dictates the law that applies to a contractual
indemnity dispute arising out of that tort.
Grand Isle, 589 F.3d
at 788 & n.8 (“[A]nd with respect to the extent (and only to that
extent) the ‘tort’ analysis was used in those cases to determine
situs, we disagree and overrule that portion of those
opinions.”).
Thus, Demette remains good law in this circuit and
serves as a cynosure in this case, quelling any suggestion that
OCSLA somehow operates to deprive a movable rig like the AMOS
RUNNER of vessel status when it also qualifies as an OCSLA situs.
In support of its contention that OCSLA applies state law to
this dispute, Dominion emphasizes to the Court that the AMOS
RUNNER was not simply a moored vessel in the traditional maritime
sense because its mooring gear utilized suction piles that were
driven into the seabed.
Dominion contends that once it was
tethered to the mooring system, the AMOS RUNNER was no different
than a fixed platform.
Dominion also emphasizes that the AMOS
RUNNER was actively engaged in oil and gas exploration/production
when the mooring system failed, and that offshore drilling is not
a traditional maritime activity.
In light of these facts,
Dominion contends that Texaco Exploration v. AmClyde, which was
14
decided after Demette, controls here and compels the conclusion
that OCSLA applies state law to this dispute in place of maritime
law.
At its core, AmClyde simply held that the specific causes of
action asserted in that case were insufficiently connected to
maritime activity to support the conclusion that maritime law
applied to the claims of its own force.
448 F.3d at 771.
AmClyde, which was authored by Judge DeMoss who had dissented so
vigorously in Demette, clarified how to gauge the strength of the
maritime nexus to specific causes of action in a case that
involves non-maritime activities and obligations in addition to
maritime activities and obligations.
Although the overall
project in AmClyde did involve numerous maritime obligations, the
specific damage-causing incident being sued upon–-a crane
equipment failure that caused a pre-fabricated section of a fixed
platform to fall into the Gulf of Mexico–-was not a traditional
maritime activity, and the traditional maritime activities that
were part of the project were not involved in the incident.
Given these facts and in light of OCSLA’s legislative history
that suggested that Congress did not intend for maritime law to
apply to incidents occurring on a fixed platform OCSLA situs, the
panel concluded that the district judge had erred in applying
maritime law to the dispute.
AmClyde, 448 F.3d at 771-72.
This Court is persuaded that AmClyde does not insinuate
15
state law into this case.
AmClyde did not overrule the long-
standing law in this circuit that OCSLA notwithstanding, maritime
law prevails when it applies of its own force.
And it certainly
does not overrule the vessel distinction for movable rigs that
Demette identified–-the platform in AmClyde was a fixed platform
so the case did not involve an OCSLA situs that was also a vessel
under maritime law.
AmClyde bears directly on cases that involve
both maritime and non-maritime activities, and teaches that when
OCSLA is involved, the maritime connection of the specific
activity giving rise to the claim cannot merely be tangential.
But in this case the connection to maritime activity is
substantial, not merely tangential.
This case does not involve
activities that bear a relationship to maritime activity simply
by virtue of the fact that the activity occurred on navigable
water.
Rather, this case involves the mooring of a vessel, which
is a traditional maritime activity, and the damages in this case
arose from the failure of a mooring system that allowed the
vessel to drift off location.
The damages in this case did not
arise out of an activity unique to oil and gas exploration--for
instance, the mooring system did not fail because the well
experienced a blowout--but rather because an allegedly defective
rope in the Mooring System failed, which is something that falls
in the ambit of maritime activity.
So in stark contrast to
AmClyde, this case does not involve damages arising out of a
16
traditionally non-maritime activity whose only nexus to maritime
activity was the incident’s location on navigable water, and the
necessity of other maritime activities to complete the project as
a whole.
AmClyde does not stand for the proposition that OCSLA
functions to transmogrify a movable rig from a vessel to a fixed
platform once it’s tethered and
production.
actively begins oil and gas
To apply AmClyde in such a manner would be contrary
to the law of this circuit.7
In sum, the contract between Dominion and Delmar is governed
by maritime law and maritime law governs Dominion’s claims
against Delmar.
dispute.
OCSLA does not apply Louisiana state law to the
Delmar’s motion is therefore GRANTED to the extent that
Delmar moves for a ruling that maritime law governs Dominion’s
claims.
2.
Delmar’s Remaining Contentions
The remainder of Delmar’s motion for summary judgment on
Dominion’s claims is DENIED without prejudice.
For nearly five
years Dominion and Delmar have argued their respective positions
regarding whether maritime law governs this dispute and today the
Court’s ruling puts that issue to rest for the remainder of this
7
In Hamm v. Island Operating Co., the Fifth Circuit
reiterated in an unpublished per curiam opinion that circuit
precedent recognizes that OCSLA and its choice of law provision
were not intended to displace general maritime causes of action
whenever a court has OCSLA jurisdiction. 450 Fed. Appx. 365 (5th
Cir. 2011) (unpublished) (citing Tenn. Gas Pipeline v. Houston
Cas. Ins. Co., 87 F.3d 150, 154 (5th Cir. 1996)).
17
litigation.
The parties may now more efficiently focus their
efforts on the question of whether the application of maritime
law really means as much as Delmar contends that it means.
For
instance, under maritime law the MSA’s indemnity provisions might
very well be enforceable but the Court has serious reservations
regarding Delmar’s contention that the indemnity provisions can
reasonably be read in the manner that Delmar suggests with
respect to its own alleged breach of contract.
On the other
hand, the MSA contains a valid and enforceable consequential
damages waiver that will limit the elements of recovery that
Dominion could hope to obtain from Delmar, assuming that Dominion
ultimately proves liability.
The motion is DENIED outright insofar as Delmar seeks
summary judgment against Dominion on its counterclaims for
defense and indemnity.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Partial Summary Judgment
(Rec. Doc. 176) filed by defendant/counterclaimant Delmar
Systems, Inc. is GRANTED IN PART AN DENIED IN PART as explained
above.
December 3, 2012
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
18
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