370 F.Supp.2d 1250 (2005)
Ebony WILSON as the natural daughter and Personal Representative of the Estate of Sandra Wilson, deceased, Plaintiff,
v.
MIAMI-DADE COUNTY, Defendant.
No. 04-23250-CIV-MOORE.
United States District Court, S.D. Florida.
May 3, 2005.
*1251 *1252 Paul A. McKenna, Esq., McKenna & Obront, Miami, FL, for Plaintiff.
Craig Leen, Esq., Assistant County Attorney, Miami, FL, for Defendant.

ORDER
K. MICHAEL MOORE, District Judge.
THIS CAUSE came before the Court upon Defendant's Motion to Dismiss Count III of Plaintiff's Complaint (DE # 17).
UPON CONSIDERATION of the motion and responses, and pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

BACKGROUND
This case arises out of the murder of Sandra Wilson ("Wilson"). Wilson alleges three bases for liability against Defendant Miami-Dade County (the "MDPD"): (1) the MDPD violated Wilson's rights under the Fifth and Fourteenth Amendments of the United States Constitution; (2) the MDPD's negligent retention and supervision of Officer Leon Storr ("Storr") resulted in the murder of Wilson; and (3) the MDPD's failure to adopt or implement a sufficiently effective program of psychological screening and monitoring of police officers resulted in Wilson's death.
The facts of the Complaint are as follows: Sandra Wilson and Officer Leon Storr, both members of the Miami-Dade Police Department, were engaged in a 15-year intimate relationship that ended in early 2003. Am. Compl. at ¶ 6, 9. Upon termination of their relationship Storr became emotionally upset and began stalking Wilson. Am. Compl. at ¶ 10. Plaintiff alleges that Storr's emotional problems were known to his direct supervisors in the MDPD, Lieutenant Tony Perez ("Perez") and Sergeant Mario Sanchez ("Sanchez"). Am. Compl. at ¶ 11. Sanchez and Perez visited Storr at his residence and suggested that Storr see the MDPD psychologist. Id. When Storr advised his supervisors that he could not get an appointment Sanchez suggested that he request an emergency appointment. Id. Storr used his firearm to stalk Wilson by calling her at work and firing warning shots into the phone. Am. Compl. at ¶ 13. Storr also showed up intoxicated at a party attended by other members of the MDPD and displayed his firearm. Am. Compl. at ¶ 14. Storr told other county employees that he was distraught over his breakup with Wilson and "couldn't take it anymore," that his "life was not worth anything," and that he had "nothing to live for." Am. Compl. at ¶ 15. During this period, Storr was permitted to retain his firearm and to remain on active police officer status. Am. Compl. at ¶ 12.
Wilson requested a meeting with the Chief of the Administration and Technology Division of the MDPD, Chief J.D. Patterson ("Patterson") where she complained of Storr's harassment. Am. Compl. at ¶ 16. Wilson asked and Patterson agreed to intervene on her behalf. Am. Compl. at ¶ 16. Patterson met with Storr, whereupon Storr advised Patterson that Wilson was "still interested" in him and he thought the relationship could be "rekindled." Am. Compl. at ¶ 17. Plaintiff further alleges that according to his MDPD personnel profile Storr was willing to distort facts, overly deny personal fault, was prone to accumulated tension and was capable of explosive expressions of hostility under accumulated stress. Am. Compl. at ¶ 19. Storr's attempt to convince Patterson that Wilson was still interested in him was a red flag that Storr needed psychological help, suspension or reassignment within the department as well as confiscation of his firearm. Am. Compl. at ¶ 20.
Plaintiff alleges that notwithstanding the MDPD's knowledge that Storr had severe emotional problems, missed work and *1253 court, avoided psychological treatment and harassed Wilson over their failed relationship, the MDPD took no steps to protect Wilson or prevent Storr from harming Wilson. Am. Compl. at ¶ 11, 18, 20. The MDPD was deliberately indifferent to the need to train employees to be sensitive to complaints of harassment of fellow employees and to have specific policies, practices, and early warning systems in place to protect employees from harassment and stalking by police officers. Am. Compl. at ¶ 21
On Sunday June 29, 2003, approximately three weeks after Storr's conversation with Patterson, Storr drove to Wilson's home in North Miami Beach, Florida, shot her to death and committed suicide. Am. Compl. at ¶ 22.

DISCUSSION
Defendant argues that because Count III questions whether the County should have adopted a particular policy or program, the claim expressed in Count III is barred by the Florida state law doctrine of sovereign immunity and should be dismissed.
A. Analysis
The question of immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity. Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (citations omitted). Assuming a duty is owed, we must then determine whether sovereign immunity bars an action for an alleged breach of that duty. Kaisner, 543 So.2d at 736.
In McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), the court explained that the duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. See Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)). Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a defendant's duty to either lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. Kaisner, 543 So.2d at 735 (citations omitted).
At this stage of the litigation, this Court must accept Plaintiff's allegations as true. This Court must construe the Complaint in the light most favorable to Plaintiff, and cannot grant the Motion to Dismiss unless it appears beyond doubt that Plaintiff can prove no set of facts in support of its claim which would entitle it to relief. This Court concludes that Plaintiff has sufficiently alleged that Defendant's conduct placed Plaintiff in a "zone of risk" and thus owed Plaintiff a specific duty to either lessen the risk or see that sufficient precautions were taken to protect Plaintiff from the harm that the risk posed.
We turn then to the issue of sovereign immunity. Defendant argues that Plaintiff is challenging the government's decision not to adopt programs and policies of psychological screening and monitoring of police officers to identify those who might commit acts of murder-suicide. Defendant argues that these are quintessentially discretionary functions from which the County enjoys sovereign immunity. Def. Mem. at 3. In opposition, Plaintiff argues that it is not challenging Defendant's discretionary policies. Rather, Plaintiff is challenging the manner in which decisions were implemented. Pl. Resp. at 3.
The relevant portions of Count III state that Defendant breached its duty in the following ways:
Alvarez and MDPD negligently failed to adopt or implement a sufficiently effective program of psychological screening *1254 and monitoring of police officers to identify officers unfit to carry guns or remain in an active duty police status with firearm privileges. Am. Compl. at ¶ 48 (emphasis added).
Alvarez and MDPD either negligently failed to create an early warning system or created an early warning system that was ineffective. Am. Compl. at ¶ 48 (emphasis added).
Alvarez and MDPD's negligent failure to set up an effective early warning system identifying problem officers unfit for active duty status and firearm privileges constituted negligence which was the proximate cause of Wilson's death. Am. Compl. at ¶ 48 (emphasis added).
As a direct and proximate cause of Alvarez and MDPD's failure to set up an effective early warning system, which identified problem officers, unfit for active duty status and firearm privileges, Storr killed Wilson with his MDPD-issued firearm. Am. Compl. at ¶ 49 (emphasis added).
Under Florida law, a governmental agency is immune from tort liability based upon actions that involve its discretionary functions. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir.2001) (citing Dep't of Health & Rehabilitative Servs. v. Yamuni, 529 So.2d 258, 260 (Fla.1988)). The Supreme Court of Florida has explained that in determining whether sovereign immunity bars an action for an alleged breach of that duty, it is necessary to ascertain the character of the allegedly negligent governmental act or omission. Basic judgmental or discretionary governmental functions are immune from legal action. Operational acts, in contrast, are not protected by sovereign immunity. Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 933 (Fla.2004) (citation omitted).
A discretionary function, under Florida law, is one in which "the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning." Henderson v. Bowden, 737 So.2d 532, 538 (Fla.1999) (citation and internal quotation marks omitted). "An operational function, on the other hand, is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented." Id. (citation and internal quotation marks omitted). Florida's discretionary function exception to its general waiver of sovereign immunity "is grounded in the doctrine of separation of powers," and "it would be an improper infringement of separation of powers for the judiciary, by way of tort law, to intervene in fundamental decision making of the executive and legislative branches of government, including the agencies and municipal corporations they have created." Kaisner v. Kolb, 543 So.2d 732, 736-37 (Fla.1989).
An act is discretionary where all of the following conditions have been met: (1) the challenged act, omission, or decision necessarily involves a basic governmental policy, program, or objective; (2) the questioned act, omission, or decision is essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective; (3) the act, omission, or decision requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved; and (4) the governmental agency involved possesses the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1264 (11th Cir.2001) (citing *1255 Kaisner v. Kolb, 543 So.2d 732, 736 (Fla.1989)).
Taking all the allegations in the light most favorable to Plaintiff, Count III challenges both the MDPD's creation or adoption of a program of psychological screening and monitoring of police officers as well as the MDPD's decision regarding the implementation and operation of such a program or policy.
First, with respect to the MDPD's decision regarding the creation or adoption of such a program or policy, all four of the above criteria are answered in the affirmative. The MDPD's decision regarding whether or not to adopt or create a program or policy is clearly an exercise of governmental discretion regarding fundamental questions of policy and planning. Thus, to the extent that Wilson challenges the reasonableness of basic policy decisions made by the MDPD, the discretionary function exception to the waiver of sovereign immunity applies and her claim is barred.
Second, with respect to the MDPD's implementation and operation of its program of psychological screening and monitoring of police officers the above four criteria are not all answered in the affirmative. First, did the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? In this instance, regarding the implementation and operation of a program, it did not. Kaisner, 543 So.2d at 737. The decision as to how to implement or operate a policy is secondary to the decision to create the policy. Second, is the questioned act, omission, or decision essential to the realization of that policy? In this instance, it was not. Different methods of implementation may exist that would protect those in a foreseeable zone of danger. Id. Third, did the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? In this instance, it did not. Methods of implementation of policy are at best a secondary concern. Plaintiff, in this case is asking the Court to consider the way in which this policy was implemented and not its fundamental wisdom. Id. Fourth, was the act lawfully authorized? In this instance it was. Id. The MDPD has the authority to implement policies for the monitoring of its officers.
As noted in Kaisner, when one or more of these questions is answered in the negative further inquiry may be required. 543 So.2d at 738. We thus look to the distinction between discretionary and operational functions. As in Kaisner, the act or omission in question here certainly involved a degree of discretion, but we cannot say that it is the type of discretion that needs to be insulated from suit. Intervention of the Court in this case will not entangle it in fundamental questions of public policy or planning. It will merely require this Court to determine if the MDPD should have acted in a manner more consistent with-the safety of the individuals involved.
The issue here, as framed by Plaintiff, is the way the policies  assuming there were any  were implemented, which our courts may indeed review in a negligence action. The act or omission in this instance was operational and not discretionary. Thus, taking all the allegations in the light most favorable to Plaintiff, Count III concerns the implementation or operation of the MDPD's policies or plans. Thus, to the extent that Wilson challenges the implementation of a policy by the MDPD, the discretionary function exception to the waiver of sovereign immunity is inapplicable.

CONCLUSION
Based on the foregoing, it is
*1256 ORDERED AND ADJUDGED, that to the extent that Wilson challenges the reasonableness of basic policy decisions made by the MDPD, that the MDPD "failed to adopt," "failed to create," and "fail[ed] to set up" an early warning system to detect problem officers, the discretionary function exception to the waiver of sovereign immunity applies and Defendant's Motion to Dismiss Count III is GRANTED. It is further,
ORDERED AND ADJUDGED to the extent that Wilson challenges the implementation of a policy by the MDPD, that the MDPD "failed to implement," "created an early warning system that was ineffective," or that "any early warning system to identify problem officers failed to work," the discretionary function exception to the waiver of sovereign immunity is inapplicable and Defendant's Motion to Dismiss is DENIED. It is further
ORDERED AND ADJUDGED that pursuant to this Order Plaintiff is instructed to file an Amended Complaint consistent with the findings of this Court within thirty (30) days.


567 So.2d 972 (1990)
WESTERN AUTO and Aetna Casualty & Surety Company, Appellants,
v.
Howard MOORE, Appellee.
No. 89-509.
District Court of Appeal of Florida, First District.
October 2, 1990.
*973 Joseph Murphy, Tampa, for appellants.
Scott A. Schieb of Alex Lancaster, P.A., Sarasota, for appellee.
BOOTH, Judge.
This cause is before us on appeal of an order setting average weekly wage (AWW) and compensation rate of claimant, a 35-year-old automobile mechanic who injured his neck on February 17, 1988. Claimant testified that during 1987, he was earning between $6.75 and $6.95 hourly, and working 40 hours per week. He further testified that during the first week of January 1988, or January 15, 1988, his hourly wage increased to $7.35 per hour.
At the time of the hearing, the E/C submitted a schedule of earnings for the 13 weeks preceding the injury, reflecting an hourly rate of $6.00 per hour and an average work week of less than 40 hours. Claimant testified, however, that the E/C's schedule was incorrect since it did not reflect the correct hourly rate and hours worked, and did not show $103 deducted from his pay every two weeks for child support. Claimant stated he had pay stubs at home for the time period in question that would corroborate his testimony. Claimant offered to bring in these records.[1]
After the hearing, claimant submitted three pay stubs,[2] but none were for the 13-week period preceding the February 1987 injury. Two of his pay stubs showed earnings of $6.00 per hour during the four weeks of August 1987 and a work week of approximately 35 hours. Neither of these stubs showed any deduction for child support. The third pay stub, for two weeks in June 1988, showed earnings of $7.13 per hour and a work week of 33 hours. This stub reflected an unspecified court-ordered deduction of $103 against claimant's gross earnings.[3]
The judge of compensation claims found it was impossible to reconcile the disparity between claimant's evidence and that of the E/C. He considered pay stubs as well as claimant's testimony and ruled that claimant's hourly pay rate was $6.75 for the first 7 of the 13 weeks preceding the accident. For the remaining 6 weeks of the 13-week period, the judge found that claimant was paid $7.13 per hour. The judge also found that claimant worked 40 hours per week for each of the 13 weeks preceding his injury. The judge then, apparently, multiplied seven weeks times $6.75 and six weeks times $7.13, added the results to obtain a figure that was multiplied by 40 (hours), and divided by 13 (weeks). The result was his determination *974 of an AWW of $277.02. This appeal followed.
On appeal, the E/C contend that they submitted the only competent evidence of earnings for the 13-week period preceding the accident and that the judge was required to use that evidence to determine the AWW under the method provided in Section 440.14(1)(a), Florida Statutes. We hold that the judge, as finder of fact, was entitled to resolve conflicts and to reject evidence which the judge believes is unreliable. The judge was not, therefore, required to accept the E/C's schedule of earnings as evidence of AWW.
We must next consider what competent evidence of AWW remains after the judge's rejection of the E/C's evidence. Claimant testified that for the year of 1987, he earned $6.75 to $6.95 hourly and for the year 1988, $7.35 per hour. He testified that he worked 40 hours per week both years. However, claimant submitted pay stubs which contradict his testimony both as to the hourly rate and the hours worked. Thus, the pay stubs for 1987 show an hourly rate of $6.00 and a work week which averages approximately 35 hours.[4]
The 1988 pay stub also contradicts claimant's testimony that beginning sometime in January of 1988, he earned $7.35 per hour and worked 40 hours per week. The stub shows earnings of $7.13 per hour and a work week averaging only 33 hours.[5] Thus, the documentary evidence submitted by claimant refutes, rather than supports, claimant's testimony.
In the order sought to be reviewed, the judge recognizes the discrepancy in claimant's evidence but, instead of addressing that discrepancy, finds that the pay stubs are "probative of the accuracy of claimant's testimony."
The pay stubs are not probative, however, of either the 40-hour work week or the wage rates testified to by claimant. Thus, it cannot be said that the pay stubs support the accuracy of claimant's testimony. The judge erred in so ruling. The judge also erred in setting AWW in reliance on claimant's evidence without resolving the obvious discrepancy.
The burden is on the claimant, not the E/C, to establish AWW. See Aircraft Services International v. Rucker, 547 So.2d 1039, 1040 (Fla. 1st DCA 1989), City of Hialeah v. Jimenez, 527 So.2d 936, 938 (Fla. 1st DCA 1988); O.T. Sims & Associates v. Merchant, 435 So.2d 884, 886 (Fla. 1st DCA 1983). That burden can be met by the claimant's own testimony so long as that testimony is competent, substantial, and consistent with logic and reason. Paul H. Cowart/Building Specialty v. Cowart, 481 So.2d 83, 84 (Fla. 1st DCA 1986); Regal Marine Industries v. Cappucci, 523 So.2d 766, 767 (Fla. 1st DCA 1988).
In Paul H. Cowart/Building, supra, and in Regal Marine, supra, this court reversed because in each case AWW was based on conflicting, self-contradictory evidence submitted by the claimant. In the Cowart case, the judge fixed the AWW based on the testimony of claimant and of her husband that her salary was 40 percent of the gross receipts of the business. Claimant's husband also testified that the joint income tax returns showing 40 percent of the net being paid to claimant were prepared by an accountant and did not correctly reflect the actual agreement between him and the claimant. In reversing AWW, this court ruled that the claimant *975 did not dispute the correctness of the income/expense ratio of the business as shown on her tax return and that in view of that ratio, her testimony that she was paid 40 percent of the gross receipts was incredible and would not support the judge's determination of AWW, holding (481 So.2d at 84) that "[i]n order to be sufficient to support a conclusion, evidence must be more than competent, it must be substantial and must accord with logic and reason as well."
In the Regal Marine case, claimant sought to prove AWW by the testimony of his father, who was his supervisor, as well as by three check stubs dated after the accident. This court reversed, holding that the father's testimony was conflicting and hearsay, and that the check stubs were of minimal probative value. The court ruled, in particular, that the father's testimony as to hours worked conflicted with that shown on the check stubs, which showed less than a 30-hour week and further stated (523 So.2d at 767): "If claimant was able to obtain check stubs for three overtime payments allegedly reflecting payments after the accident, surely he could have produced some sort of documentary evidence as to his earnings during the 13-week period prior to his accident."
In the instant case, claimant could have requested pay records from the employer for the 13 weeks in question. Instead, he produced pay stubs for other time periods. Further, the stubs he produced were contrary to and belied his own testimony. As a result, there is no competent, substantial evidence which accords with logic and reason to support a determination of AWW.[6]
Finally, we address the question of the proper application of Section 440.14(1)(a), Florida Statutes, which sets out the method of determining AWW where the claimant has worked more than 13 weeks prior to the accident as follows: "[the] average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks." In applying this statute, the judge must determine the total wages earned during the 13-week period and then divide that figure by 13 to reach the AWW. By definition, AWW under subsection (1)(a) is the average earned weekly during the prescribed period. It is not clear from the order below that the judge applied subsection (1)(a) or (1)(d), or some other subsection, of the statute. However, since we must remand for further proceedings to determine claimant's rate and hours, we direct that subsection (1)(a) be applied and that total wages for the 13-week period be first determined and then divided by 13 as prescribed by the statute.
Accordingly, the order below is reversed and the cause remanded for further proceedings including the taking of such additional evidence, if any, as the parties offer or the judge requires in accordance herewith.
NIMMONS and ZEHMER, JJ., concur.
NOTES
[1]  At this point, the E/C's attorney asked for the opportunity to bring in the employer's manager to verify wages. Claimant's attorney objected and said claimant's pay stubs would be the best evidence. The E/C's counsel acquiesced and was to be afforded copies of the pertinent pay stubs.
[2]  See footnotes 4 and 5, infra, for detail of pay stubs.
[3]  There was no evidence as to when this deduction began. In any event, deductions do not affect gross earnings, which is the figure used in computing AWW.
[4]  Pay stub for two-week period August 2, 1987 through August 15, 1987:

Hours  71.20 Earnings (gross)  $427.20 $427.20 (earnings) divided by 71.20 hours = $6.00 per hour. 71.20 (hours) divided by two (weeks) = 35.6 hours per week.
Pay stub for two-week period August 16, 1987 through August 29, 1987:
Hours  70.10 Earnings (gross)  $420.60 $420.60 (earnings) divided by 70.10 (hours) = $6.00 per hour. 70.10 (hours) divided by 2 (weeks) = 35.05 hours per week.
[5]  Pay stub for two-week period June 5, 1988 through June 18, 1988:

Hours  66.10 Earnings (gross)  $471.29 $471.29 (earnings) divided by 66.10 (hours) = $7.13 per hour. 66.10 (hours) divided by 2 (weeks) = 33.05 hours per week.
[6]  Aircraft Services International v. Rucker, 547 So.2d 1039, 1040 (Fla. 1st DCA 1989); International House of Pancakes v. Ellis, 492 So.2d 454, 456 (Fla. 1st DCA 1986):

The only testimony supporting that claim [AWW] is the testimony presented by her [claimant] and by Ms. Carter. The testimony of both of those witnesses was very confusing and contained conflicting statements. Appellee presented no evidence to support her claim of additional tips that would boost her average weekly wage to $200.00 per week and even her testimony as to dollar figures did not support a $200.00 per week computation. Thus, due to the insufficiency of the evidence to support appellee's claim, we reverse and remand for further proceedings consistent with the holdings in this opinion.


          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  April 24, 2009
                                 No. 08-50592
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

RICHARD L WATSON

                                            Plaintiff-Appellant

v.

LAND AMERICA AUSTIN TITLE

                                            Defendant-Appellee

                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:08-CV-170

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Richard Watson filed the instant suit against Land America Austin Title
(“LAAT”) and its employee, Jackie Yancy, to recover damages allegedly caused
by the defendants’ actions in relation to a real estate transaction. Watson
alleged that he wished to sell a piece of real estate and was unable to do so after
the defendants reported that the Internal Revenue Service had a lien on the

      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                    No. 08-50592

property. Watson alleged that the lien was invalid and that the defendants thus
acted wrongfully by reporting it.
      The defendants filed motions for summary judgment. LAAT explained
that the contract to sell Watson’s property had been placed in escrow with LAAT
and that LAAT had examined the title to the property in anticipation of issuing
a title insurance policy. The title examination showed that there were recorded
notices of a tax lien on the property, and the IRS sent LAAT documentation
showing that the payoff amount on the liens was $531,134. LAAT reported these
liens on its commitment for title insurance. Yancy explained that she had been
assigned as the “closer” on the contract to sell Watson’s property and that the
sale was not closed as a result of the tax issues. The defendants asserted that
they were entitled to summary judgment because they had no duty to accept
Watson’s assertion concerning the invalidity of the lien.
      The district court granted the defendants’ motions for summary judgment.
The district court noted that Watson did not assert that there were no liens on
his property.    The court held that the defendants had no obligation to
investigate Watson’s claim that the liens were invalid and that Watson’s claims
were “entirely without merit” because “none of the conduct alleged in the
complaint violates any state or federal law.” Watson, proceeding pro se, filed a
timely notice of appeal.
      This court reviews the grant of a motion for summary judgment de novo.
Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).
      Watson argues that the district court erred by granting the defendants’
motions for summary judgment, because he has viable claims against the
defendants pursuant to various statutes.      This argument is without merit.
Watson does not have a viable claim against the defendants under 42 U.S.C. §
1982, because he has not alleged “an intentional act of racial discrimination by
a defendant.” Vaughner v. Pulito, 804 F.2d 873, 877 (5th Cir. 1986). He does not
have a viable claim against the defendants under the criminal bank fraud

                                         2
                                  No. 08-50592

statute, 18 U.S.C. § 1344.     He does not have a viable claim against the
defendants under 26 U.S.C. § 7426(a), which provides for suits against the
United States, but not private parties, for an allegedly improper levy. Watson
has no viable claim against the defendants under 28 U.S.C. § 3201, because it
does not provide a basis for a civil suit by a seller of property, such as Watson,
against a title company, such as LAAT, that reported the existence of recorded
notices of liens. Watson has no viable claim against the defendants under 42
U.S.C. § 1983, because he has not alleged a violation of his constitutional rights
by a state actor. He has no viable claim against the defendants under 26 U.S.C.
§ 6331, which provides for levies by the IRS against those who have wrongfully
refused to pay taxes. Finally, 28 U.S.C. § 1331 is not a basis for a viable claim
against the defendants because Watson has not shown that his suit arises under
“the Constitution, laws, or treaties of the United States.”
      We decline Watson’s request that we “review the court cases of the original
claim.”   Incorporation of other documents by reference is not permitted in
appellate briefs. See Peel & Co., Inc. v. The Rug Market, 238 F.3d 391, 398-99
(5th Cir. 2001); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). To the
extent that Watson raises arguments in his reply brief that were not presented
in his opening brief, we decline to consider them. See United States v. Jackson,
426 F.3d 301, 304 n.2 (5th Cir. 2005).
      Watson has not shown that he had a viable claim against the defendants
or that the district court erred by granting their motions for summary judgment.
The judgment of the district court is AFFIRMED.

                                         3


170 P.3d 923 (2007)
2007 MT 218
339 Mont. 50
STATE of Montana, Plaintiff and Respondent,
v.
Michael MARSHALL, Defendant and Appellant.
No. DA 06-0187.
Supreme Court of Montana.
Submitted on Briefs January 31, 2007.
Decided September 5, 2007.
For Appellant: Jack H. Morris, Jardine & Morris, Whitehall, Montana.
For Respondent: Honorable Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Mathew J. Johnson, County Attorney, Boulder, Montana.
Justice JIM RICE delivered the Opinion of the Court.
¶ 1 Michael Marshall (Marshall) appeals from the order of the Fifth Judicial District Court, Jefferson County, revoking his deferred sentence and committing Marshall to the Department of Corrections for eight years with four years suspended. The court ordered that Marshall would not be eligible *924 for parole until he successfully completes phases I and II of the sex offender treatment program, which he challenges on appeal. We affirm.
¶ 2 We consider the following issue on appeal:
¶ 3 Did the District Court err in imposing sex offender treatment as a condition of sentence because:
a. The treatment can only be imposed upon one who has either been designated as a sex offender or convicted of a sex crime?
b. The condition was not reasonably related to Marshall's burglary conviction?

BACKGROUND
¶ 4 On January 3, 2004, two months after turning seventeen, Marshall broke into a residence in Boulder, Montana. Cutting his hand in the process, Marshall bled on items throughout the house. He proceeded to break items in the house. Marshall then became aroused after going through a woman's underwear drawer, took some of the woman's underwear out of the drawer and masturbated on her bed. Marshall was arrested and charged as an adult with Burglary, a felony, in violation of § 45-6-204, MCA (2003); Attempted Theft, a misdemeanor, in violation of § 45-6-301(1)(a), MCA (2003); and Criminal Mischief, a misdemeanor, in violation of § 45-6-101(1)(a), MCA (2003). Marshall pled not guilty to the charges.
¶ 5 Marshall's counsel moved for and was granted a psychiatric evaluation of Marshall by Dr. Robert Page (Dr. Page), a clinical member of the Montana Sex Offender Treatment Association. On October 13, 2004, pursuant to a pre-trial agreement, Marshall entered a plea of guilty to burglary, and the State moved to dismiss the remaining two charged offenses. The District Court accepted the plea and granted the State's motion to dismiss the remaining offenses. The court imposed a six-year deferred sentence with a number of conditions, including that Marshall enroll in and successfully complete all treatment recommended by Dr. Page, including, but not limited to, chemical dependency and sexual offender treatment.
¶ 6 On February 1, 2005, the State filed a petition to revoke Marshall's deferred sentence, alleging that he had violated numerous conditions of his deferred sentence, including, at issue here, failure to complete sex offender treatment. Marshall had been terminated from treatment due to his failure to follow the treatment rules. Marshall appeared for a dispositional hearing on the State's petition to revoke on March 30, 2005. After receiving evidence and arguments from the parties, the District Court concluded that Marshall had violated the terms and conditions of his deferred sentence by failing to remain law abiding, failing to maintain employment, failing to complete treatment with Dr. Page and leaving his assigned district.
¶ 7 A sentencing hearing was held on August 10, 2005. Dr. Page testified regarding the evaluation of Marshall he had conducted approximately fifteen months earlier. During the hearing, the parties stipulated to continue the matter so Dr. Page could provide an updated evaluation. The court allowed Marshall to remain released on bond, but admonished Marshall that he must abide by the bond conditions, including a prohibition on the use of alcohol and the requirement that Marshall remain law abiding. Nonetheless, on September 22, 2005, Marshall was charged with several offenses arising out of the allegation that he had operated a motor vehicle while under the influence of alcohol, including criminal endangerment, minor in possession, and DUI. The State subsequently moved to revoke Marshall's bond and requested that the District Court issue a bench warrant for his arrest, which motion was granted.
¶ 8 On September 27, 2005, Dr. Page filed an updated evaluation. The District Court reconvened the sentencing hearing on October 19, 2005, and heard testimony from Dr. Page and Marshall's probation officer, Cathy Murphy, of Adult Probation and Parole. Both recommended a more structured sex offender treatment program for Marshall. Dr. Page testified that a prerelease program would provide the structured environment that Marshall needed to complete his sex *925 offender treatment, but further testified that if Marshall was not accepted into a prerelease program, then he should be sent to prison to complete phase I and II of the prison sex offender treatment program. Murphy testified that she did not believe there was any chance that Marshall would be accepted into a prerelease center, since she already had Marshall prescreened for placement in the Billings Prerelease Center  where she felt he had the best chance of getting in  and he had been denied admission. Consequently, Murphy recommended a ten-year prison sentence with five years suspended and that Marshall be designated as ineligible for parole until he completed phases I and II of the prison sex offender treatment program.
¶ 9 At the conclusion of the testimony and after the State made its recommendation of a prison sentence with sex offender treatment, Marshall's counsel argued that the court did not have the authority to order sex offender treatment because Marshall had been convicted of burglary, a non-sex offense. Marshall's counsel maintained that Marshall would be eligible for sex offender treatment only if he had been convicted of a sex crime and adjudicated a sex offender. The District Court disagreed, stating "that sex offender treatment is in play, it is a matter to be considered here," committed Marshall to the Department of Corrections for eight years with four years suspended, and ordered that Marshall would be ineligible for parole until he successfully completed phases I and II of sex offender treatment, as well as chemical dependency treatment, anger management treatment and mental health treatment. The court also designated Marshall a Level I sex offender. Marshall appeals.

STANDARD OF REVIEW
¶ 10 This Court reviews a criminal sentence for its legality; "that is, whether the sentence is within statutory parameters." State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, ¶ 8, 106 P.3d 521, ¶ 8 (citing State v. Heath, 2004 MT 58, ¶ 8, 320 Mont. 211, ¶ 8, 89 P.3d 947, ¶ 8).

DISCUSSION
¶ 11 Did the District Court err in imposing sex offender treatment as a condition of sentence because:
a. The treatment can only be imposed upon one who has either been designated as a sex offender or convicted of a sex crime?
¶ 12 First, we note that Marshall's arguments challenging the imposition of sex offender treatment are directed both to his "sentence and re-sentence." However, it is clear that he cannot now appeal his original sentence. The original deferred sentence was imposed on October 13, 2004, and Marshall had sixty days from that date, pursuant to M.R.App. P. 5(b), to appeal to this Court, but did not do so. Therefore, he is precluded from now challenging the legality of the conditions imposed therein. See State v. Muhammad, 2002 MT 47, ¶ 22, 309 Mont. 1, ¶ 22, 43 P.3d 318, ¶ 22. Having timely appealed from the sentence imposed upon revocation, Marshall may challenge the conditions of that sentence.
¶ 13 In the District Court's October 26, 2005, findings and judgment revoking deferred sentence and re-imposing sentence, the court designated Marshall as a Level I sex offender, following this colloquy at the sentencing hearing:
The Court: Do the parties wish the Court to make a designation?
Mr. Johnson: Your Honor, the State does not believe it's necessary, as long as Mr. Morris agrees with that.
Mr. Morris: I guess if the  Your Honor, as I recall from Dr. Page's report, he designated Mr. Marshall as having a low risk to re-offend; and based upon that, I think that's the only thing in the record that the Court could base a designation on. I would urge the Court, if the Court is going to adopt a designation, would be the lowest level, I think Level 1 risk to re-offend designation.
. . . .
The Court: So ordered.
¶ 14 Marshall contends the sex offender designation was not validly assigned because *926 a sex offender designation may only be made after a "strict procedure" is followed, citing § 46-18-111, MCA. He maintains the statute was not followed here and that the court made a designation based upon argument of the prosecution and not on any record evidence, and thus, Marshall will not be eligible for the prison's sex offender program and not be able to achieve eligibility for parole. Further, Marshall argues the condition is illegal because that program is limited to defendants convicted of sex crimes or validly designated a sex offender  neither of which Marshall contends occurred here.
¶ 15 The State responds that § 46-18-111, MCA, merely requires the presentence investigation to include a psychosexual evaluation and treatment recommendation when the defendant has committed certain named sex offenses, but offers no support for Marshall's claim that the defendant must receive a sex offender designation or be convicted of a sexual crime prior to undergoing sex offender treatment in prison. The State also maintains that, in any event, the sex offender designation was not based on the prosecutor's argument, as the prosecutor did not request the designation and instead told the court he did not believe it was necessary, but rather was based upon the evidence offered at the hearing and upon the request of Marshall's counsel.
¶ 16 Recently, in State v. Leitheiser, 2006 MT 70, 331 Mont. 464, 133 P.3d 185, we affirmed the imposition of sex offender treatment as a condition of Leitheiser's sentence for assault upon a minor. Leitheiser had argued that because he did not plead guilty to a sex offense, the court lacked authority to impose the condition. However, we concluded that the sentencing court had properly looked to "the facts underlying the plea to the charge to which Leitheiser pled guilty  that is, assault on a minor." Leitheiser, ¶ 24. Leitheiser's actions had involved sexual contact with the victim. We agreed with the District Court's statement that it "would be remiss if it sentenced [Leitheiser] and ignored the underlying factual situation." Leitheiser, ¶ 26.
¶ 17 The underlying factual situation here included sexual actions taken by Marshall during the burglary. Accordingly, the District Court was not precluded from imposing sex offender treatment as a condition of Marshall's sentence as a matter of law simply because Marshall had not been convicted of a sexual crime. Given this resolution, we need not further address the contention that Marshall was not validly designated a sex offender.
b. The condition was not reasonably related to his crime?
¶ 18 Marshall also insists that the sex offender treatment condition is not rationally related to the burglary to which he pled guilty, offering there is "no correlation between the conviction of burglary and the condition of sex offender treatment" and citing State v. Ommundson, 1999 MT 16, ¶ 11, 293 Mont. 133, ¶ 11, 974 P.2d 620, ¶ 11.
¶ 19 In Ommundson, a defendant convicted of DUI challenged the District Court's imposition of sex offender treatment as a condition of his sentence. We reversed the condition, holding that in order to be reasonably related to the objectives of rehabilitation and protection of the victim and society, a sentencing limitation or condition must have "some correlation or connection to the underlying offense for which the defendant is being sentenced." Ommundson, ¶ 11. Explaining that the objectives of the sentencing statute, now § 46-18-202(1)(f), MCA, were "(1) to rehabilitate the offender by imposing restitution or requiring treatment so that he or she does not repeat the same criminal conduct that gave rise to the sentence; and (2) to protect society from further similar conduct," we noted the absence of evidence that indecent exposure leads to increased occurrences of DUI or that treatment for indecent exposure will reduce the reoccurrence of alcohol abuse or lessen the incidence of DUI in society at large. Ommundson, ¶¶ 11, 12. We therefore concluded no nexus had been established between the requirement that the defendant participate in a sex offender program and the charged DUI offense. Ommundson, ¶ 12.
¶ 20 Section 46-18-202(1)(f), MCA, permits a sentencing court to impose any *927 sentencing limitation "reasonably related to the objectives of rehabilitation and the protection of the victim and society." The statutory terms "rehabilitation" and "protection of the victim and society" must be read in the context of the charged offense. Ommundson, ¶ 11; see also State v. Armstrong, 2006 MT 334, ¶ 11, 335 Mont. 131, ¶ 11, 151 P.3d 46, ¶ 11. "The objectives of § 46-18-202(1)(f), MCA, are to rehabilitate the offender by imposing restitution or requiring treatment so that he or she does not repeat the same criminal conduct and to protect society from further similar conduct. Thus, a limitation or condition in a sentence must have a correlation or connection to the underlying offense." Armstrong, ¶ 11 (citing Ommundson, ¶ 11). Stated differently, to be legal, a condition of sentence must have a nexus to the conviction. Armstrong, ¶ 11.
¶ 21 Here, the District Court found that the underlying facts of this burglary form a factual basis for the sex offender treatment requirement:
This is a burglary. This burglary is hinged upon conduct which has been ascertained to be and admitted to be sexual in nature, and sexually offensive in nature. The unrefuted evidence is that this Defendant should have sexual offender treatment, so the Court considers that as an item which is within the purview of those things which can be ordered as a condition of a sentence.
In his testimony, Dr. Page opined that "[Marshall] ha[d] admitted to committing a sexual offense." While burglarizing the house, Marshall went through a woman's underwear drawer, removed some of her underwear, aroused himself, and then masturbated on her bed. The parties did not dispute that these actions were in accordance with the evaluator's definition of a deviant sexual act. Dr. Page further noted that this behavior  which he described as "deviant sexual patterns of arousal masturbatory behavior with the use of female clothing, or particularly female underwear"  "involves suggestions of paraphilia, and potential for future deviant sexual actions, without therapy."
¶ 22 We conclude that there was a correlation or nexus between sex offender treatment and the circumstances of this crime, and that the condition was reasonable. Thus, the District Court did not err by imposing the treatment as a condition designed to rehabilitate Marshall and protect society from further offenses.
¶ 23 Affirmed.
We concur: KARLA M. GRAY, C.J., JOHN WARNER, PATRICIA COTTER, and W. WILLIAM LEAPHART, JJ.


818 F.2d 870
U.S.v.Urbalejo
86-1171
United States Court of Appeals,Ninth Circuit.
5/22/87

1
D.Ariz.

AFFIRMED


      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                    IN AND FOR NEW CASTLE COUNTY

TEAMSTERS LOCAL 237         )                    C.A. No. N04C-11-191 VLM
WELFARE FUND, et. al., on behalf of
                            )
themselves and others similarly situated,
                            )
                            )
          Plaintiffs        )
                            )
          v.                )
                            )
ASTRAZENECA PHARMACEUTICALS )
LP and ZENECA, INC.,        )
                            )
            Defendants      )

                             Submitted: May 18, 2015
                              Decided: July 8, 2015

              Upon Consideration of Defendants’ Motion to Dismiss
                    Plaintiffs’ Second Amended Complaint,
                                  GRANTED.

                                    OPINION

A. Zachary Naylor, Esquire, Chimicles & Tikellis LLP, Wilmington, DE,
Attorney for Plaintiffs.

Michael P. Kelly, Esquire, McCarter & English, LLP, Wilmington, DE,
Attorney for Defendants.

MEDINILLA, J.
                                I.     INTRODUCTION

       Plaintiffs, six New York-based health care funds,1 filed this class action suit

in November 2004 against Defendants Astrazeneca Pharmaceuticals, L.P. and

Zeneca, Inc. (“Defendants” or “Astrazeneca”) alleging consumer fraud, unjust

enrichment, and negligent misrepresentation in connection with Astrazeneca’s

marketing of its prescription heartburn medication, Nexium. Defendants moved to

dismiss. This Court stayed the action while parallel litigation involving essentially

the same factual allegations was pending in the United States District Court for the

District of Delaware (“District Court”). Following a lengthy procedural history in

the District Court, the stay was lifted. Now before the Court are Defendants’

motions to dismiss Plaintiffs’ Second Amended Complaint (“SAC”), or

alternatively, to strike certain allegations in the SAC. For the reasons set forth

below, the Motion to Dismiss is GRANTED.

                  II.    FACTS AND PROCEDURAL HISTORY

       Astrazeneca is the manufacturer of Prilosec, a drug used to treat heartburn

and related diseases. The generic term for Prilosec is omeprazole. In 2000,

1
 Plaintiffs are Teamsters Local 237 Welfare Fund, Local 237 Teamsters Retirees’ Benefit Fund,
Local 237 Teamsters-Plainview-Old Bethpage Central School District Health and Welfare Trust
Fund, Local 237 Teamsters-North Babylon School District Health and Welfare Trust Fund,
Local 237 Teamsters-Brentwood School District Health and Welfare Trust Fund, and Local 237
Teamsters-Suffolk Regional Off-Track Betting Corporation Health and Welfare Trust Fund, on
behalf of themselves and others similarly situated.
                                              2
Prilosec generated approximately $6 billion in sales for Astrazeneca.

Astrazeneca’s patent for Prilosec was set to expire in 2001. 2

       Plaintiffs are six New York-based union health and benefit funds that

allegedly reimbursed for their members’ purchases of Astrazeneca products in

fifteen different states. 3 Plaintiffs contend that Astrazeneca, a Delaware company,

engaged in consumer fraud by introducing an essentially identical drug called

Nexium to the market when generic omeprazole became available as over-the-

counter “Prilosec OTC.” 4 Plaintiffs allege that Astrazeneca falsely represented

Nexium to be superior to Prilosec in an effort to keep Astrazeneca’s market share

dominant after losing its patent for Prilosec. 5

       Plaintiffs filed their original class action complaint on November 18, 2004.

An amended complaint was filed on February 16, 2005. Defendants filed a motion

to dismiss on March 3, 2005. On May 4, 2005, the Court entered a stipulated order

2
  Second Amended Class Action Complaint (“SAC”) ¶ 2.
3
  Including Delaware, Arizona, Colorado, Connecticut, Florida, Hawaii, Kentucky, Louisiana,
Missouri, New Jersey, New Mexico, New York, Pennsylvania, Tennessee, and Washington. Id.
¶ 27.
4
  Id. ¶ 11.
5
  According to Plaintiffs, Astrazeneca’s strategy was to (1) precondition Prilosec users toward
Nexium; (2) aggressively identify and profile Prilosec users; (3) position the “makers of
Prilosec” as category experts; (4) rapidly convert Prilosec users to Nexium users; (5) create
immediate awareness of Nexium as a Prilosec upgrade; and (6) build awareness of Nexium as a
Prilosec upgrade. The marketing campaign at issue involved both physician-directed marketing
and direct-to-consumer marketing. Id. ¶¶ 4-10.
                                               3
to stay the proceedings because parallel litigation in the District Court had been

instituted. 6

       The District Court case was styled as Pennsylvania Employee Benefit Trust

Fund v. Zeneca (hereinafter “Zeneca”) and involved a putative class of plaintiffs

from Pennsylvania, New York, and Michigan. 7 Defendants moved to dismiss on

grounds that, inter alia, Plaintiffs’ claims were preempted by federal law.

Plaintiffs appealed, and the Third Circuit affirmed. 8 In 2009, the United States

Supreme Court remanded the case to the Third Circuit with instructions to

reconsider the case in light of another then-recent decision wherein the Court held

that state consumer protection laws were not preempted by federal law in all

cases. 9

       On May 6, 2010, following remand from the Third Circuit, the District Court

again dismissed the complaint.10 Specifically, the District Court held: (1) under a

Delaware choice of law analysis, the law of the plaintiffs’ home states controlled

6
  See Pennsylvania Employee Benefit Trust Fund v. Zeneca, Inc., 2005 WL 2993937 (D. Del.
Nov. 8, 2005) aff'd sub nom. Pennsylvania Employees Ben. Trust Fund v. Zeneca Inc., 499 F.3d
239 (3d Cir. 2007) cert. granted, judgment vacated, 556 U.S. 1101, 129 S. Ct. 1578, 173 L. Ed.
2d 672 (2009).
7
  710 F.Supp.2d 458 (D. Del. 2010) (ruling on Defendant’s motion to dismiss).
8
  499 F.3d 239 (3d Cir. 2007).
9
  556 U.S. 1101 (2009) (citing Wyeth v. Levine, 555 U.S. 555 (2009)).
10
   Pennsylvania Employee Benefit Trust Fund v. Zeneca, Inc., 710 F.Supp.2d 458 (D. Del. 2010)
(hereinafter “Zeneca”).
                                              4
the claims; 11 (2) the complaint failed to state a claim under each of the respective

states’ consumer protection laws; 12 (3) there was no adequate causal connection

between Defendants’ alleged misrepresentations and Plaintiffs’ decision to

purchase Nexium over Prilosec such that the unjust enrichment claim could survive

dismissal; 13 and (4) the complaint did not contain allegations of reliance such that

the claim for negligent misrepresentation could survive dismissal. 14 Although the

District Court granted leave to do so, Plaintiffs did not file an amended complaint,

nor did Plaintiffs appeal the decision.

       Following the District Court’s decision, on August 8, 2010, the Court

granted Plaintiffs’ motion to lift the stay on the instant action. Unfortunately, and

without much explanation, more than three years passed without any action taken

by either party. 15 On October 4, 2013, Astrazeneca moved to dismiss the action in

this Court for failure to prosecute.           After a status conference with the then-

presiding judge, the Court denied the motion and issued a scheduling order. On

11
   Id. at 466-470.
12
   Specifically, the Pennsylvania plaintiffs’ claims could not survive dismissal because the
complaint did not allege justifiable reliance on Defendant’s marketing/advertising campaigns as
required by Pennsylvania law, id. at 471-73; the New York plaintiff’s claims did not sufficiently
allege causation, as required by New York law, id. at 473-75; and the Michigan plaintiffs’ claims
failed because the plaintiffs did not have standing under the Michigan Consumer Protection Act,
id. at 475-77.
13
   Zeneca, 710 F.Supp.2d at 477.
14
   Id. at 477-78.
15
   This case was reassigned to this judge on January 15, 2014. Representations made by counsel
during oral argument before this Court on April 23, 2015 offered little explanation for the delay.
                                                5
April 4, 2014, pursuant to the scheduling order, Plaintiffs filed the Second

Amended Class Action Complaint (the “SAC”).

       The SAC before this Court alleges (1) violations of the Delaware Consumer

Fraud Act (“DCFA”); 16 (2) violations of the other 14 individual state consumer

protection statutes wherein Plaintiffs are alleged to have purchased Nexium; (3)

unjust enrichment; and (4) negligent misrepresentation. The SAC differs from the

original class action complaint in two respects: it removes claims for tortious

interference, and raises new factual allegations that Astrazeneca engaged in an

illegal “pay-for-delay” or “reverse” settlement scheme with potential generic

manufacturers of Nexium in order to maintain Astrazeneca’s dominance over the

omeprazole market. The “pay-for-delay” activities allegedly occurred in 2008. 17

       On May 8, 2014, Astrazeneca filed a notice of removal to the District Court.

Defendants sought removal on the basis that the new “reverse settlement” and

“pay-for-delay” allegations raised a new and distinct claim, which gave the federal

court jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”). 18

Plaintiffs disagreed and moved to remand the case back to this Court. By order

16
   6 Del. C. § 2513 et. seq.
17
   See SAC ¶ 7, 114-15, n. 62. The “pay-for-delay” allegations are the subject of Defendants’
alternative motion to strike certain allegations in the Second Amended Complaint. Because this
Court grants Defendants’ motion to dismiss, this Court does not reach the merits of Defendants’
alternative motion to strike.
18
   28 U.S.C. §1332(d), 1453, and 1711-1715.
                                               6
dated November 18, 2014, the District Court granted Plaintiffs’ motion.19 The

District Court concluded that the new allegations related back to the date of the

original filing, which occurred before the enactment of CAFA, and, therefore,

CAFA did not apply. 20

       After remand, Defendants filed the instant motion to dismiss and a briefing

schedule was issued.          Defendants also filed a separate motion to strike the

allegations concerning the “pay-for-delay” scheme from the SAC. A hearing was

held on both motions on April 23, 2015.

       On May 7, 2015, Plaintiffs filed a “Notice of Supplemental Authority” and

attached two cases from the Northern District of California, which purport to

bolster Plaintiffs’ argument against dismissal. 21 On May 12, 2015, Defendants

filed their response which urged the Court to disregard the cases as inapposite.22

On May 14, 2015, Plaintiffs filed a “Response in Furtherance of their Notice of

Supplemental Authority,” again urging this Court to consider the California cases,

19
   Teamsters Local 237 Welfare Fund, et. al. v. Astrazeneca Pharmaceuticals L.P., et al., Civ.
No. 140587-SLR (D.Del. 2014).
20
   Id. at 3-6.
21
   In re Lidoderm Antitrust Litig., -- F.Supp.3d --, 2015 WL 2088223 (N.D. Cal. May 5, 2015)
(hereinafter “Lidoderm I”); United Food & Commer. Workers Local 1776 & Participating
Employers Health & Welfare Fund v. Teikoku Pharma USA, Inc., -- F.Supp.3d --, 2014 WL
6465235 (N.D. Cal Nov. 17, 2014) (hereinafter Lidoderm II) (collectively, “In re Lidoderm”).
22
   Specifically, Defendants note that In re Lidoderm considered only the issue of whether third-
party payers have standing to assert an antitrust claim under the laws of the states in which their
members purchased a drug. See Def.’s Response (citing Lidoderm I, at *87-88; Lidoderm II, at
*32-65).
                                                 7
and restating their disagreement with Defendants’ position.23 On May 18, 2015,

Defendants filed a “Further Response Re: Plaintiffs’ Notice of Supplemental

Authority.”

       Having considered the briefs and submissions of the parties, exhibits and

appendices attached thereto, relevant case law and authorities, and the oral

arguments of the parties, the matter is ripe for review.

                             III.    STANDARD OF REVIEW

       When deciding a motion to dismiss for failure to state a claim under

Superior Court Rule 12(b)(6), all-well pleaded allegations in the complaint are to

be accepted as true,24 and the Court must draw all reasonable inferences in favor of

the non-moving party. 25 The complaint will be dismissed only if it appears to a

certainty that under no set of facts which could be proved to support the claim

asserted would Plaintiff be entitled to relief. 26

23
   In this filing, Plaintiffs attempt to inject the fact that Defendants “effectuate[d] [a] $20 million
class settlement of similar allegations” under Massachusetts law into the record in this case.
Pltfs.’ Further Response at 1 (citation omitted). Plaintiffs’ eleventh-hour submission fails to
persuade this Court to reconsider its disposition of the case.
24
   Spence v. Funk, 396 A.2d 967 (Del. 1978).
25
   In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (quoting Savor,
Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002).
26
   Id.
                                                   8
                                    IV.    DISCUSSION

       The Court will first undertake a choice of law analysis to determine what

law should apply to the claims at issue in this case. The Court will next apply the

controlling state law to Plaintiffs’ claims. Finally, the Court will address any

supplemental issues concerning the disposition of this case.

       A.      Choice of Law27

       In Pennsylvania Employee Benefit Trust Fund v. Zeneca, Inc. (“Zeneca”),28

the District Court applied Delaware’s choice of laws principles and determined that

the law of each of the plaintiffs’ residence or place of business controlled the

consumer fraud claims they asserted against Astrazeneca.29 The Court notes that

the allegations are essentially identical to those alleged in the instant complaint. 30

       Defendants argue the same analysis undertaken in Zeneca should apply in

this action, and accordingly, this Court should reach the same conclusion: that the
27
   On April 6, 2015, the Delaware Supreme Court issued its ruling on an interlocutory appeal
concerning choice of law in Bell Helicopter Textron, Inc. v. Arteaga, 113 A.3d 1045 (Del. 2015).
The Court emphasized Delaware’s public policy interest in “avoid[ing] contributing to forum-
shopping[,]” and urged trial courts to be “extremely cautious not to intrude on the legitimate
interests of other sovereign states.” Id. at 1052. This Court acknowledges the ruling of Bell
Helicopter on a general choice of law analysis. However, Bell Helicopter was issued after the
close of briefing on the instant motion, and this Court does not find that any additional briefing
regarding that case would change the disposition of this matter.
28
   710 F.Supp.2d 458 (D. Del. 2010) (Robreno, J.).
29
   See, e.g., id. at 471-72 (finding that the “location of Defendants’ principal place of business
stands, at best, in equipoise with the residence/place of business of plaintiffs. The fact that
Defendants ‘made’ the alleged misrepresentations, i.e., orchestrated the allegedly deceptive
marketing campaigns, in Delaware does not weigh more strongly than the other factors . . . .”).
30
   Id. at 464-65.
                                                9
law of Plaintiffs’ principal place of business—New York—applies to their claims.

Defendants argue that to the extent that Plaintiffs received and acted in reliance

upon the challenged marketing practices, they did so in New York. New York law

governs Plaintiffs’ contractual relationship with their members; Plaintiffs’

headquarters, their decisions to reimburse, and their money payments for Nexium

are located in New York.31

       Plaintiffs contend that Delaware law should apply because (1) Delaware has

the most significant relationship to the action because the alleged deceptive

marketing practices “emanated from” Delaware; (2) Plaintiffs’ members purchased

Nexium in 14 different states, including Delaware, where the purchase of Nexium

at the pharmacy counter should be considered the location of the injury; and (3)

there is no conflict between Delaware law and the law of the 14 states where

Plaintiffs’ members reside, such that Delaware law should apply to all claims.

Plaintiffs further argue that the District Court’s analysis was erroneous, yet

concede that no application was made to that Court by motion, appeal, or otherwise

to reconsider Plaintiffs’ position. Rather, Plaintiffs ask this Court, in effect, to

“correct” the District Court’s ruling, which would be inconsistent with and

contrary to that court’s prior analysis and conclusions.

31
  Defs. Op. Br. at 10 (citing SAC at ¶¶ 18-23; In re K-Dur Antitrust Litig., 2008 WL 2660783, at
*5) (D.N.J. Mar. 19, 2008).
                                              10
       A preliminary step when confronting a choice of law determination is to

identify the jurisdictions whose laws might apply to a claim and determine if those

laws are materially different from one another. 32            If they are not materially

different, then there is a “false conflict,” and the forum state’s law applies. 33 If

there is a material difference, the Court applies the “most significant relationship”

test in order to determine what law should apply. 34                In applying the most

significant relationship test, Sections 6, 145, and 148 of the Restatement (Second)

of Conflict of Laws (the “Restatement”) are implicated. 35

                1.      General Choice of Law Principles

       Section 6 of the Restatement provides the foundation of the most significant

relationship test:

          (1)        A court, subject to constitutional restrictions, will follow
                     a statutory directive of its own state on choice of law.

          (2)        When there is no such directive, the factors relevant to
                     the choice of the applicable rule of law include:

                     (a) the needs of the interstate and international systems;
                     (b) the relevant policies of the forum;

32
   Parlin v. Dyncorp Intern., Inc., 2009 WL 3636756, at *3 n. 16 (Del. Super. Ct. Sept. 30,
2009).
33
   Shook & Fletcher Asbestos Settlement Trust v. Safety Nat. Cas. Corp., 2005 WL 2436193, at
*5 (Del. Super. Sept. 29, 2005) aff'd, 909 A.2d 125 (Del. 2006).
34
   Travelers Indemnity Co. v. Lake, 594 A.2d 38, 47 (D. Del. 1991).
35
   Zeneca, 710 F.Supp.2d at 468.
                                              11
                (c) the relevant policies of other interested states and
                    the relative interests of those states in the
                    determination of the particular issue;
                (d) the protection of justified expectations;
                (e) the basic policies underlying the particular field of
                    law;
                (f) certainty, predictability, and uniformity of result;
                    and
                (g) ease in the determination and application of law to
                    be applied.

      Section 145 of the Restatement provides a general framework for the most

significant relationship test with respect to tort actions, and provides that contacts

to be taken into account in applying the principles of Section 6 include:

         (1)    The rights and liabilities of the parties with respect to an
                issue in tort are determined by the local law of the state
                which, with respect to that issue, has the most significant
                relationship to the occurrence and the parties under the
                principles stated in § 6.

         (2)    Contacts to be taken into account in applying the
                principles of § 6 to determine the law applicable to an
                issue include:

                (a) the place where the injury occurred,
                (b) the place where the conduct causing the injury
                    occurred,
                (c) the domicil, residence, nationality, place of
                    incorporation and place of business of the parties,
                    and
                (d) the place where the relationship, if any, between the
                    parties is centered.

         These contacts are to be evaluated according to their relative
         importance with respect to the particular issue.

                                         12
           Section 148 “recasts the rule set forth in § 145 with greater precision with

respect to fraud or misrepresentation claims.” 36           Section 148 presents two

alternative subparts; the first deals with the location of plaintiff’s action taken in

reliance occurring in the same state where the false representation was made:

              (1)   When the plaintiff has suffered pecuniary harm on
                    account of his reliance on the defendant's false
                    representations and when the plaintiff's action in reliance
                    took place in the state where the false representations
                    were made and received, the local law of this state
                    determines the rights and liabilities of the parties unless,
                    with respect to the particular issue, some other state has a
                    more significant relationship under the principles stated
                    in § 6 to the occurrence and the parties, in which event
                    the local law of the other state will be applied.

           The second subsection to § 148 sets forth factors to consider where the

plaintiff’s action taken in reliance occurred in a different state from where the false

representation occurred:

              (2)   When the plaintiff's action in reliance took place in
                    whole or in part in a state other than that where the false
                    representations were made, the forum will consider such
                    of the following contacts, among others, as may be
                    present in the particular case in determining the state
                    which, with respect to the particular issue, has the most
                    significant relationship to the occurrence and the parties:
                    (a) the place, or places, where the plaintiff acted in
                         reliance upon the defendant's representations,
                    (b) the place where the plaintiff received the
                         representations,

36
     Id.
                                             13
                      (c) the place where the defendant made the
                           representations,
                      (d) the domicil, residence, nationality, place of
                           incorporation and place of business of the parties,
                      (e) the place where a tangible thing which is the subject
                           of the transaction between the parties was situated at
                           the time, and
                      (f) the place where the plaintiff is to render performance
                           under a contract which he has been induced to enter
                           by the false representations of the defendant.

                 2.      Application of Choice of Law Principles

         This Court first examines the competing laws at issue to determine whether

an actual conflict exists. 37 The dispute arises in this case over whether the laws of

Delaware, New York, or the 14 states in which each of Plaintiffs’ individual union

members reside, apply to the respective consumer fraud claims. Plaintiffs argue

that there is no conflict between the laws of Delaware and the 14 states in which

the union members reside, and therefore Delaware law should apply to their

claims. Defendants argue there is a conflict, requiring the application of New York

law.

         At the outset, the Court finds that the competing laws at issue are the laws of

Delaware and New York. The Court is not persuaded by Plaintiffs’ argument that

the law of each of the 14 states in which individual union members reside should

apply to the claims, because, according to Plaintiffs, that is where their members

37
     See Zeneca, 710 F.Supp.2d at 468.
                                              14
most likely purchased Nexium. The Court finds that Plaintiffs are third-party

payer unions providing benefits for current and former New York City employees.

While some of the individual members may currently reside elsewhere, and thus

may have purchased Nexium “in nearly two-thirds of the United States,”38 New

York is the place with the most significant interest in enforcing its consumer

protection laws in this action. Plaintiffs are headquartered in New York where

their contractual relationships with their members, their decisions to reimburse for

Nexium, and their money payments necessarily were made. 39 The Restatement

instructs that when considering the relevant contacts to apply, “the domicil,

residence and place of business of the plaintiff are more important than are similar

contacts on the part of the defendant.”40 It logically follows that New York law

best protects the third-party payers’ justified expectations with respect to their

consumer fraud claims. Accordingly, when conducting its choice of law analysis,

this Court will consider the laws of Delaware and New York as the competing

interests in this case.

38
   SAC ¶ 27.
39
   Def.’s Op. Br. at 10 (citing In re K-Dur Antitrust Litig., 2008 WL 2660783, at *5 (D.N.J. Mar.
19, 2008)).
40
   Restatement (Second) of Conflict of Laws § 148 cmt. i. See also In re K-Dur Antitrust Litig.,
2008 WL 2660783 (D.N.J. Mar. 19, 2008) (“[T]he state with the greatest interest in a [third party
payer’s] claims brought on its own behalf is the state where the [third party payer] has its own
principal place of business and from which it presumably paid the alleged supracompetitive
prices.”).
                                               15
       Of note is that in Zeneca, the District Court conducted an extensive analysis

of the consumer protection laws of Delaware and New York. 41 The Zeneca court

concluded that an actual conflict between New York and Delaware law exists

because New York law requires some awareness, if not reliance, on defendant’s

misrepresentation, and Delaware law does not. 42

       Specifically, the Delaware Consumer Fraud Act (“DCFA”) provides, in

pertinent part:

           The act, use or employment by any person of any deception,
           fraud, false pretense, false promise, misrepresentation . . . in
           connection with the sale, lease or advertisement of any
           merchandise, whether or not any person has in fact been misled,
           deceived or damaged thereby, is an unlawful practice. 43

       Accordingly, reliance is not a required element in establishing a

misrepresentation claim under the DCFA. 44

       Under New York State General Business Law Section 349 (“GBL 349”), to

state a claim for misleading and deceptive business practices, Plaintiffs must show:

           First, that the challenged act or practice was consumer-oriented;
           second, that it was misleading in a material way; and third, that
           the plaintiff suffered injury as a result of the deceptive act. 45

41
   Zeneca, 710 F.Supp.2d at 473-75.
42
   Id. at 474.
43
   6 Del. C. §2513.
44
   See Stephenson v. Capano Dev. Inc., 462 A.2d 1069 (Del. 1983).
45
   Zeneca, 710 F.Supp.2d at 472 (quoting Vitolo v. Mentor H/S, Inc., 426 F.Supp.2d 28, 33
(E.D.N.Y. 2006)). For an act to be “deceptive” under GBL 349, it must be likely to mislead a
reasonable consumer. Id. (citing Marcus v. AT&T Corp., 128 F.3d 46, 63-64 (2d Cir. 1998).
                                              16
        Although a New York plaintiff need not prove individual reliance, he must

nevertheless “show that the defendant’s act caused the complained-of injury.”46

This requires a showing that the plaintiffs were at least aware of the deceptive

marketing practice. 47

        Plaintiffs contend that there is no conflict between Delaware and New York

law with respect to the issue of causation in a consumer fraud claim. 48 This Court

disagrees. This Court finds the analysis in Zeneca is most persuasive, and agrees

that an actual conflict exists between Delaware and New York law, specifically

with respect to the elements of causation in a consumer fraud claim.

        Having determined that there is an actual conflict between the laws of the

proposed states with respect to the issue at hand, the Court now turns to its analysis

under §148. The Court must first determine the applicable subsection. 49 Finally,

the Court will weigh this conclusion in accordance with the factors enumerated in

§6.50

        In Zeneca, the Court found that the second subsection of §148 applies to the

alleged consumer fraud in that case, because:

46
   Id. (citations omitted).
47
   Id. (citing Pelman v. McDonald’s Corp., 396 F.Supp.2d 439, 444-46 (S.D.N.Y. 2005)
(dismissing a class action complaint against a fast food restaurant for allegedly deceptive
marketing practices)).
48
   Pltfs. Opp. Br. at 23-24.
49
   Zeneca, 710 F.Supp.2d at 470.
50
   Id.
                                                17
           [the] alleged misrepresentations underlying plaintiffs’ claims
           were ‘made’ in Delaware because that is the place where the
           substance of the factual statements emanated. In other words,
           the alleged misrepresentations at issue were made in Delaware
           and then repeated in the Plaintiffs’ home states. 51

This Court agrees with the conclusions of the District Court in Zeneca, because the

District Court was confronted with the same attendant facts and circumstances as

are present in this case. Accordingly, the Court will apply the second subsection of

§148 in conducting its “most significant relationship” analysis.52

       Section 148(2) instructs that the Court must consider factors such as the

location where plaintiff received and acted in reliance upon defendant’s

representation, the place where defendant made the representation, the parties’

respective places of business, and the place where the tangible thing which is the

subject of the action is located.          This Court finds that §148(2) supports the

application of New York law to the instant action for the following reasons: (1)

Plaintiffs “received” Defendants’ representations in New York, because that is

where Plaintiffs were located when they paid for Nexium; (2) Plaintiffs “acted in

reliance upon” any allegedly deceptive statements in New York because that is

51
  710 F.Supp.2d at 470.
52
   Even if this Court conducted its analysis under §148(1), and determined that Plaintiffs’ action
in reliance on Defendants’ alleged false representations took place in Delaware, this Court would
conclude that New York has a more significant relationship to this action than does Delaware
under the principles set forth in Section 6 of the Restatement. Section 148(1) contemplates such
a balancing, and so for the reasons stated, New York law shall apply to this action.
                                               18
where they reimbursed their members for the purchase of Nexium; and (3)

Plaintiffs’ place of business is New York. 53 Although the Court recognizes that

Defendants’ place of business is Delaware, and the fact that Plaintiffs’ individual

union members may have purchased Nexium in pharmacies across the country

before Plaintiffs reimbursed for said payments, those factors do not outweigh the

factors which heavily favor the application of New York law to this action.

       Consistent with the conclusions of the Zeneca court, this Court finds that the

factors under §148 require the application of New York law to Plaintiffs’ claims.

Further, this Court finds that §6 does not countervail the presumption that New

York law should apply. GBL 349 represents the New York legislature’s intent to

protect consumer injury and harm to the public interest in that state. 54 “In light of

the strong governmental interest in shielding consumers from fraudulent practices

embodied in GBL 349, New York has at least as strong an interest as Delaware in

having its law apply.” 55 This Court agrees with the Zeneca court that “a balancing

53
   See Zeneca, 710 F.Supp.2d at 471 (discussing the application of § 148(2) to Pennsylvania
law); Id. at 475 n.8 (stating that “the Court's analysis of the second and third prongs of the
conflict of laws issue are essentially identical with respect to each Plaintiff's home state”).
54
   Zeneca, 710 F.Supp at 475 (quoting Maurizio v. Goldsmith, 230 F.3d 518, 522 (2d Cir. 2000)
(explaining that GBL § 349 was designed to augment the Attorney General’s power to curtail
deceptive trade practices toward consumers, and was later expanded to allow for a private right
of action).
55
   Id.
                                              19
of the relevant policies of the respective forums supports the conclusion that New

York maintains the most significant relationship to the instant dispute.” 56

       B.      Application of New York Law

       To state a claim for relief under GBL § 349, the SAC must allege that the

injury complained of was the result of the deceptive act, practice, or

advertisement. 57 This Court finds that the SAC fails to meet this standard because

it does not allege that that Plaintiffs purchased Nexium in response to Defendants’

representations concerning the quality of Nexium in relation to Prilosec.58

       While it is not necessary under New York law to plead justifiable or

reasonable reliance, Plaintiff must nevertheless show “some awareness” of a

defendant’s misrepresentation prior to purchasing the product in order to establish

the element of causation. 59 To plead deceptive advertising to the public, generally,

is insufficient.     The SAC does not allege that Plaintiffs ever received such

advertising, or that Defendants’ alleged misrepresentations ever played a role in

their decisions about whether to pay or reimburse for Nexium. Further, the SAC

56
   Id.
57
   Zeneca, 710 F.Supp.2d at 480 (citing Nealy v. U.S. Surgical Corp., 587 F.Supp.2d 579
(S.D.N.Y. 2008)).
58
   Because the Court finds Plaintiffs have failed to adequately plead causation, the Court assumes
without deciding that Plaintiffs have standing to pursue their claims under GBL § 349.
Additionally, because the issue of causation is dispositive, the Court does not reach the issue of
whether Plaintiffs have adequately pleaded injury within the meaning of GBL §349.
59
   Zeneca, 710 F.Supp.2d at 474.
                                               20
does not contain allegations about what advertisements their members or their

members’ physicians may have seen, or that they were misled by the allegedly

deceptive acts. Therefore, any purported chain of causation that runs from the

allegedly deceptive advertisements that may have influenced the decisions of

individual doctors to prescribe a drug to their patients to causally affect the payer

unions in this case is simply too attenuated. “[T]here are many factors that a

doctor may consider in determining what medication to administer to a given

patient,” and “doctors are presumed to go beyond advertising medium and use their

independent knowledge in making medical decisions.” 60

       Because the Court finds that the complaint has not adequately stated a claim

for consumer fraud under New York law specifically with regard to the issue of

causation, those claims must be dismissed.

       C.      Unjust Enrichment and Negligent Misrepresentation

       The Court reaches the same conclusion as in Zeneca with respect to the

claims for unjust enrichment and negligent misrepresentation.

60
   Southeast Laborers Health & Welfare Fund v. Bayer Corp., 655 F.Supp.2d 1270, 1280-81
(S.D.Fla. 2009), aff’d, 444 F.App’x. 401, 404 n.1 (11th Cir. 2011) (citing cases from the Southern
District of West Virginia, the Northern District of California and the Ninth Circuit, the Southern
District of Illinois, the Middle District of Florida, and the District of New Jersey which follow
this approach to causation).
                                               21
       As to the unjust enrichment claim, this Court finds that there is no conflict of

law between the elements of such a claim and thus will apply Delaware law. 61 To

make out a claim for unjust enrichment, Plaintiffs must allege: (1) an enrichment;

(2) an impoverishment; (3) a relation between the enrichment and impoverishment;

(4) the absence of justification; and (5) the absence of a remedy provided by law. 62

The Court finds that, for the reasons stated with respect to causation for Plaintiffs’

consumer fraud claims, Plaintiffs fail to establish a causal connection between the

alleged “enrichment” and the alleged “impoverishment” in this case. Accordingly,

the SAC fails to state a claim for unjust enrichment and must, therefore, be

dismissed.

       As to the negligent misrepresentation claim, the Court also finds there is no

conflict and will apply Delaware law to the elements of the claim. 63 To make out a

claim for negligent misrepresentation, Plaintiffs must allege: (1) a pecuniary duty

to provide accurate information; (2) the supplying of false information; (3) failure

to exercise reasonable care in obtaining or communicating information; and (4) a

pecuniary loss caused by justifiable reliance upon false information. 64 Further,

61
   See Zeneca, 710 F.Supp.2d at 477 (citing Powers v. Lycoming Engines 245 F.R.D. 226, 231
(E.D.Pa. 2007)).
62
   Nemec v. Schrader, 991 A.2d 1120, 1130-31 (Del. 2010).
63
   Zeneca, 710 F.Supp.2d at 477-78.
64
   Id. at 485-86 (citing Atwell v. RHIS, Inc., 2006 WL 268532, at *1 (Del. Super. Ct. Aug. 18,
2006).
                                               22
Plaintiffs must assert that they relied upon the misrepresentation. 65 For the reasons

set forth above, and for those addressed by the District Court in Zeneca, the SAC

fails to allege that Plaintiffs relied upon, or were even aware of, Defendants’

allegedly deceptive marketing campaigns before making reimbursement decisions

for Nexium. Because the SAC does not allege reliance, the claim for negligent

misrepresentation must be dismissed.

         D.      Dismissal is with Prejudice

         The Court finds that dismissal with prejudice is appropriate. Plaintiffs have

had ample opportunity to amend their pleadings since 2004 to cure the defects

identified in Zeneca. This case was dormant in this Court for over three years. No

application for reconsideration, re-argument, appeal or otherwise was made by

Plaintiffs in the District Court. Plaintiffs do not proffer any way that they could

amend or address the defects described above, but request instead a different result

than what was reached in the District Court. This Court cannot grant Plaintiffs’

request.

65
     Id. at 486 (citing H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129-142-43 (Del. Ch. 2003)).
                                                23
                             V.    CONCLUSION

     For the reasons stated, this Court finds that Plaintiffs have failed to state a

claim under applicable law, and Defendants’ motion to dismiss is therefore

GRANTED. The matter is DISMISSED WITH PREJUDICE.

     IT IS SO ORDERED.

                                             /s/ Vivian L. Medinilla
                                            Judge Vivian L. Medinilla

                                       24


538 U.S. 989
CASTILLOv.UNITED STATES.
No. 02-9421.
Supreme Court of United States.
April 21, 2003.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

2
C. A. 11th Cir. Certiorari denied. Reported below: 52 Fed. Appx. 491.


                             Slip Op. 15-

              UNITED STATES COURT OF INTERNATIONAL TRADE

DESIGN INTERNATIONAL GROUP,
INC.,

     Plaintiff,                         Before: Nicholas Tsoucalas,
                                                Senior Judge
v.
                                        Court No. 14-00119
UNITED STATES,

     Defendant.

                                OPINION

[Defendant’s motion to dismiss          for   lack    of    subject   matter
jurisdiction is granted.]

                                                     Dated: /PWFNCFS

John N. Politis, Politis & Politis, of Pasadena, CA for Plaintiff.

St. Lutheran Tillman, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of New York,
New York, for Defendant. With him on the brief were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Amy M. Rubin,
Assistant Director. Of counsel on the action was Beth C. Brotman,
Office of the Assistant Chief Counsel, International Trade
Litigation, United States Customs and Border Protection, of New
York, NY.

             Tsoucalas, Senior Judge:     This case is before the court

on Defendant’s motion to dismiss for lack of subject matter

jurisdiction.     See Def.’s Mem. in Supp. of its Mot. To Dismiss,

ECF No. 9 (July 17, 2015)(“Def.’s Br.”); see also Reply Mem. in

Supp. of Def.’s Mot. To Dismiss, ECF No. 13 (Sept. 3, 2015).

Plaintiff,     Design   International     Group,     Inc.    (“Design”     or
Court No. 14-00119                                                     Page 2

“Plaintiff”), opposes Defendant’s motion.           See Pl.’s Mem. in Opp.

Def.’s Mot. To Dismiss, ECF No. 10 (Aug. 10, 2015)(“Pl.’s Br.”).

                                 BACKGROUND

            This action concerns two entries of pencils, Entry Nos.

BKC    0138174-9   and   BKC    0138213-5,   made   at   the   Port    of   Los

Angeles/Long Beach. Compl. at ¶¶ 14-18. Plaintiff is the importer

of record for these entries.        Id. at ¶ 1.     On June 7, 2013, U.S.

Customs and Border Protection (“Customs”) liquidated both entries.

Id. at ¶ 2.    On July 9, 2013, Design’s customs broker filed Protest

Nos.    2704-13-101337    and    2704-13-101339,     challenging      Customs’

calculation of the number of pencils included in each entry and

the resulting assessment of duties.          Id. at ¶ 14.      On August 15,

2013, Customs denied both protests.          Id.

            On October 10, 2013, Design’s counsel filed a third

protest, Protest No. 2704-13-102066. Id. at ¶ 2.               This protest

also challenged Customs’ calculation of the number of pencils

covered by Entry Nos. BKC 0138174-9 and BKC 0138213-5.             See id. at

¶ 25. On November 19, 2013, Customs denied Plaintiff’s protest as

untimely.     Id. at ¶ 4, 5.

            After the denial of Design’s October 10, 2013 protest,

Design insisted that it timely filed its protest, and that Customs

should withdraw its denial.        Id. at ¶ 6.      However, denial of the
Court No. 14-00119                                                  Page 3

protest was not withdrawn.         Id. at ¶ 7.     Instead, Customs placed

Design on the sanction list for failing to pay the increased duties

on the subject entries.      Id. at ¶ 7.      Customs required Design to

file “live” entries, which delayed release and increased costs of

shipments.      Id. at ¶ 8.        Design informed Customs that this

situation was a mistake, and Customs responded that they would

change the status of Design’s protest from “decided” to “open” in

order to remove Design from the sanctions list.           Id. at ¶ 9.

             On March 10, 2014, Customs denied Design’s October 10,

2013 protest again, changing the reason for denial from “Untimely

filed” to “Rejected as non-protestable.”            Id. at ¶ 10.    In the

denial, Customs explained that “[w]e have no [j]urisdiction over

this [p]rotest, since a denial of a protest is not a protestable

action.” Id. at ¶ 10.

             On May 16, 2014, Design filed an action in this Court

challenging the denial of Protest No. 2704-13-102066. Id. at ¶ 4.

                           STANDARD OF REVIEW

             “Plaintiffs   carry    the   burden   of   demonstrating   that

jurisdiction exists.” Techsnabexport, Ltd. v. United States, 16

CIT 420, 422, 795 F. Supp. 428, 432 (1992) (citing McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In deciding a

Rule 12(b)(1) motion to dismiss that does not challenge the factual
Court No. 14-00119                                                              Page 4

basis for the complainant’s allegations, the court assumes “all

factual allegations to be true and draws all reasonable inferences

in plaintiff's favor.” Henke v. United States, 60 F.3d 795, 797

(Fed. Cir. 1995).

                                      DISCUSSION

            In   order   to     invoke       the   Court’s     jurisdiction      under

§ 1581(a), a civil action must be based on the denial of a valid

protest filed in accordance with 19 U.S.C. § 1514 (2012).                           See

Koike Aronson, Inc. v. United States, 165 F.3d 906, 908–09 (Fed.

Cir. 1999).      Customs contends that the Court lacks subject matter

jurisdiction under § 1581(a) because Design’s third protest filed

on October 10, 2013, Protest No. 2704-13-102066, was not a valid

protest.    See Def.’s Br. at 3-5.             In response, Plaintiff asserts

that the action was “timely commenced within 180 days of denial of

protest    number   2704-13-102066           in    accordance      with    28   U.S.C.

§ 1581(a) and 28 U.S.C. § 2636(a).”                See Pl.’s Br. at 2.

            The issue in the instant action is whether Design’s

protest is valid in light of the “one entry, one protest” rule

outlined in 19 U.S.C. § 1514(c)(1)(D).                  See 19 U.S.C. § 1514(c)

(“Only     one    protest       may     be     filed     for       each    entry     of

merchandise . . . .”).          Section 1514(c)(1) generally prohibits

multiple    protests     from    being       filed     for   the    same    entry    of
Court No. 14-00119                                                          Page 5

merchandise.        Accordingly, “[w]here a plaintiff has invalidly

filed a second protest, the court lacks jurisdiction to entertain

plaintiff’s claims.”          Mitel, Inc. v. United States, 16 CIT 4, 9,

782 F. Supp. 1567, 1571 (1992).

            Plaintiff argues that a third protest was permitted

because 19 U.S.C. § 1514(c) provides exceptions to the one protest

rule,     stating     that    “separate     protests    filed        by   different

authorized persons with respect to any one category of merchandise

. . . that is the subject of a protest are deemed to be part of a

single protest.”         Pl.’s Br. at 3 (citing 19 U.S.C. § 1514).

Specifically, Plaintiff asserts that its broker and its counsel

are “different authorized persons,” and thus, insists that Customs

violated the exceptions outlined in § 1514(c) when it failed to

consolidate the third protest filed by its counsel (Protest No.

2704-13-102066), with the two previous protests filed by its broker

(Protest Nos. 2704-13-101337 and 2704-13-101339).                Id. at 3-4.

            The court disagrees with Plaintiff’s assertions.                    The

exception articulated in 19 U.S.C. § 1514(c)(1) does not permit a

party to file an additional protest after a previous protest has

already    been     denied,   even   when   one   is   filed    by    a   different

authorized person: “only the first protest received by Customs for

filing may practicably be treated as valid.”             Alcan Aluminum Corp.
Court No. 14-00119                                            Page 6

v. United States, 28 CIT 2067, 2068 n.2, 353 F. Supp. 2d 1374,

1375 n.2 (2004); see also id. (“Because 19 U.S.C. § 1514(c)(1)

precludes the filing of two protests relating to the same entries

and same category of merchandise [. . .] only the first protest

received by Customs for filing may practicably be treated as

valid.” (citing Russ Togs, Inc. v United States, 79 Cust. Ct. 119,

122 (1977)(emphasis in original))).       Furthermore, allowing an

additional protest contesting an entry that was already subject to

the denial of a previous protest would “allow [a] plaintiff to

file an unending series of protests each protesting the previous

protest denial.” Wally Packaging, Inc. v. United States, 7 CIT 19,

22–23, 578 F. Supp. 1408, 1412 (1984) (“[S]ection 1514 does not

permit a party to protest the denial of a protest . . . such a

procedure would allow plaintiff to file an unending series of

protests    each   protesting   the   previous   protest   denial.”).

Additionally, § 1514(c)(1) provides that “[n]ew grounds in support

of objections raised by a valid protest or amendment thereto may

be presented for consideration in connection with the review of

such protest pursuant to section 1515 of this title at any time

prior to the disposition of the protest in accordance with that

section.”   19 U.S.C. § 1514(c)(1) (emphasis added).
Court No. 14-00119                                             Page 7

           Here, Customs denied Protest Nos. 2704-13-101337 and

2704-13-101339 on August 15, 2013.         Design’s October 10, 2013

protest,   Protest   No.    2704-13-102066,    effectively   contested

Customs’ denial of its first two protests.      As a result, Design’s

October 10, 2013 protest is invalid.       See Alcan Aluminum Corp, 28

CIT at 2068 n.2, 353 F. Supp. 2d at 1375 n.2 (citing Russ Togs,

Inc., 79 Cust. Ct. at 122 (1977)); see also Wally Packaging, Inc.,

7 CIT at 22–23, 578 F. Supp. at 1412.       The court therefore lacks

jurisdiction to entertain Plaintiff’s claims.      See Mitel, Inc., 16

CIT at 9, 782 F. Supp. at 1571.

                              CONCLUSION

           For the reasons stated, Defendant’s motion to dismiss

for lack of subject matter jurisdiction is GRANTED.      Judgment will

be entered accordingly.

                                              /s/ Nicholas Tsoucalas
                                                Nicholas Tsoucalas
                                                   Senior Judge
Dated: /PWFNCFS

       New York, New York