Higgins v. NMI Enterprises, Inc.
Higgins v. NMI Enterprises, Inc.
Opinion of the Court
ORDER AND REASONS
Before the Court are the parties’ memoranda regarding the timeliness of the plaintiffs’ claims, which this Court ordered after it indicated that it was inclined to grant summary judgment independent of a motion pursuant to Federal Rule of Civil Procedure 56(f)(3).
I. Background
A. Parties and Their Relationship
Defendant NMI Enterprises, Inc. is a Texas corporation and general partner of DROR International, L.P. (“DROR”). Defendant DROR is a limited liability company in the business of magazine publishing. Defendant Nitzan Mendelbaum (“Mendelbaum”) is the president of NMI and a limited partner of DROR.
B. Prior Legal Actions
The above-captioned matter is not the first round of litigation many of these parties and entities have pursued against one another. DROR initially brought suit against Thundervision, Smith, Higgins, and Wright Avenue for the alleged non
As a result of Thundervision’s filing for bankruptcy, DROR’s state court suit was automatically stayed and a temporary injunction was granted in favor of Smith, Higgins, and Wright Avenue pending trial on the merits against Thundervision in bankruptcy court, because, according to DROR and Mendelbaum, “issues in state court ... were identical to the issues before the bankruptcy court and [ ] proceeding in both courts concurrently would not be in the interest of judicial economy.”
On a motion for partial summary judgment, the bankruptcy court found Thundervision liable on five invoices to DROR totaling $143,728.05.
After the bankruptcy proceedings, the temporary stay against Smith, Higgins, and Wright Avenue was lifted and the state court suit resumed.
C. Instant Lawsuit
1. Factual Allegations
The complaint in the action pending before this Court was filed on September 29, 2009, and initially named Mendelbaum, DROR, NMI, and Felton as defendants.
On December 15, 2010, Plaintiffs filed an amended complaint before this Court, wherein they added several more defendants and incorporated by reference against the new defendants all allegations made in the first complaint.
2. Procedural Background
On November 30, 2012, 2012 WL 5997951, the Court granted Defendants Mendelbaum and DROR’s motion to dismiss them from this lawsuit; specifically, the Court found that the claims of Smith, Higgins, and Wright Avenue were barred by res judicata, and Wallace’s claims were subject to dismissal because she failed to meet her pleading requirements and demonstrate her entitlement to relief.
On January 2, 2013, 2013 WL 27556, the Court also granted Felton’s motion to dismiss,
On June 25, 2013, 2013 WL 3242495, this Court entered an order granting reconsideration on its order granting Felton’s motion to dismiss, because the order was based on the Citizen’s Complaint, a matter outside the pleadings.
A. Plaintiffs’Memorandum
Plaintiffs concede that on March 21, 2007, “Smith filed a Citizens’ Complaint with the Louisiana Department of Justice Investigation Division because he believed someone had infiltrated Thundervision’s proprietary information,” and that he “suspected that it might have been Felton.”
Regarding their claims under Louisiana Civil Code article 2315, Plaintiffs contend that this Court must recognize that the claims here are brought by individual plaintiffs, not on behalf of Thundervision, and therefore the Citizen’s Complaint is “irrelevant.”
Regarding their claim under the Computer Fraud and Abuse Act (“CFAA”), Plaintiffs note that such a cause of action is subject to a two-year statute of limitations that begins to run from the date of the discovery of the damage.
In initially granting Felton’s Motion to Dismiss based on prescription in connection with the Computer Fraud claim under 18 U.S.C. [§ ]1030, the Court accepted as true the proposition that [Thundervision] had knowledge of the hacking of the email by virtue of the Citizen’s Complaint filed on March 21, 2007. It dismissed [Plaintiffs]’ argument that the purpose of the Citizen Complaint was to obtain identification of*634 who owned the IP addresses who hacked the email account. In other words, although Thundervision didn’t know that Felton had hacked the email account, as it only had generic IP addresses, the Court held that the knowledge that someone had hacked the account started the clock, even though Thundervision didn’t know who that someone was until October 2, 2007 when Smith met with the investigator.
The problem with that reasoning is that it begins the running of prescription before [Plaintiffs] even [knew] who the perpetrator [was]. Smith had generic IP addresses, without names, which was the whole reason for the Citizen’s Complaint. Smith did not actually discover that DROR and Felton had committed the illegal acts until October 2, 2007, when a Department of Justice Agent met with Smith to discuss the investigatory findings. Thus, under the CFAA, Smith had until October 2, 2009 to file an action. As Smith’s action was filed within two years on September 29, 2009, his 18 U.S.C. 1030 claim was filed within the two year prescriptive period.52
Plaintiffs additionally contend that this Court’s reasoning was “inconsistent” with Quantlab Technologies Ltd. (BVI) v. Godlevsky,
Further, Plaintiffs claim that acting on their suspicions of Felton would have “resulted in a premature lawsuit,” and as a result “could have been seen as frivolous and therefore sanctionable” under Federal Rule of Civil Procedure 11(b).
[T]he above rationale places Smith in the position of either choosing to perform [a] legitimate investigation in order to determine the proper perpetrator, or simply guess at who the perpetrator is, without evidentiary support, and risk filing a frivolous suit and subject himself to possible sanctions. Furthermore, yet again one must start the inquiry with the fact that the action is brought by these individual petitioners, and not Thundervision. The actual loss to these petitioners, in the form of loss of income, did not take place until Thunder-vision became defunct in 2011.56
Finally, with regard to the CFAA claim, Plaintiffs assert that this argument is even more “tenuous” when applied to Higgins, Wallace, or Wright Avenue.
With regard to their Wiretap Act claims, Plaintiffs acknowledge that this claim also imposes a two-year statute of limitations from when they first had a reasonable
[Plaintiffs] had to file their Complaint within two years of the date upon which they first had a reasonable opportunity to discover the violation. The violations at issue are complex and are not ascertainable without special skill. Smith initially had generic IP addresses without names. Though he had suspicion, nothing could be confirmed until an investigation took place by someone who was skilled and trained enough to retrieve the information. The results of that investigation were told to Smith on October 2, 2007, when a Department of Justice Agent met with Smith to discuss the investigatory findings. Before then, Smith had no reasonable opportunity to discover the violation because he did not have the skill or training to properly navigate the computer system, etc. Smith’s action was filed within two years on September 29, 2009. As the statute establishes the prescriptive period as two years from the date upon which the claimant first has a reasonable opportunity to discover the violation, Smith’s action was filed within the prescriptive period.61
Again, Plaintiffs argue that at best the date of the Citizen’s Complaint could only apply to Smith and that there is a genuine issue of material fact as to Higgins, Wallace, and Wright Avenue’s knowledge base and reasonable opportunity to discover the violation.
B. Felton’s Memorandum
In response, Felton argues that Thundervision’s only members were Smith and Higgins, and that a “review of the company’s operating procedures reveals that the business entity and its members have acted as one in the same on many occasions,” and therefore “it can easily be concluded that the individuals and the company are one in the same.”
Likewise, Felton contends that Plaintiffs CFAA claims were untimely filed. Felton argues that while Plaintiffs argue that the purpose of the Citizen’s Complaint was to obtain the identification of who owned the IP address of who hacked the email account, Smith already “specifically and singularly named Laurie Felton as the individual responsible for accessing his business computer account without authorization, leaking sensitive business information and stalking him.”
Additionally, Felton refutes Plaintiffs’ claims that filing early would have resulted in a premature or frivolous lawsuit that would have violated Rule 11(b). Felton avers that “the internal investigation performed on the server by Thundervision’s technology staff would more than constitute ‘reasonable inquiry under the circumstances.’ ”
Lastly on this cause of action, Felton disputes Plaintiffs’ claim that any knowledge of wrongdoing evidenced by the Citizen’s Complaint can only be imputed to Smith, the party who submitted the complaint:
[Plaintiffs] put forth the argument that because Roger Smith filed the Citizen’s Complaint, the prescriptive period should only apply to Smith. However, Roger Smith both contacted the Department of Justice and filed the Citizen’s Complaint in his capacity as the managing editor of Thundervision, thus acting as a representative for Dale Higgins, Melanie Wallace and Wright Avenue, LLC.; but, in following suit with [Plaintiffs’] reasoning, because Thundervision is not a party to these proceedings, Roger Smith would be the only individual [plaintiff] with a legitimate cause of action against Felton, which has prescribed.73
With regard to the Wire Tap Act claim, Felton rejects Plaintiffs’ argument that it could not have discovered the violation sooner because the violations were complex and not ascertainable without special skill.
Finally, Felton argues that because she was not served within 120 days after the complaint was filed, the claims against her must be dismissed without prejudice or the Court must order that service be made within a specific time, noting that she was first served on January 17, 2012.
III. Standard on a Motion for Summary Judgment
A district court may grant summary judgment on its own, independent of a motion, after giving notice and a reasonable time to respond, if the court “on its own identifies] for the parties material facts that may not be genuinely in dispute.”
Because factual disputes may not be resolved on summary judgment, a nonmovant need not offer all of its evidence, but rather only enough so that a jury might return a verdict in its favor.
IV. Law and Analysis
A. Claims under Louisiana Civil Code Article 2315
1. Law
A delictual obligation arises from the “intentional or negligent causing of damages” to another in the absence of a contract.
2. Analysis
Plaintiffs did not raise a claim under Article 2315 in the original complaint, but rather only brought federal causes of action under the CFAA and the Wire Tap Act.
The plaintiffs have suffered damages as a direct result of all defendants’ invasion of the plaintiffs’ privacy as the result of the defendants’ unauthorized access of their computer system, records and emails, including private business matters and strategies and privileged communications between plaintiffs and their attorneys. Pursuant to La. C.C. art. 2315, the defendants are liable unto the plaintiffs for any and all damages that are just under the premises [sic].
It was only after the Court granted Felton’s motion to dismiss and dismissed Plaintiffs’ Article 2315 claims that Plaintiffs disregarded their invasion of privacy theory.
Plaintiffs’ arguments are problematic for several reasons. First, the amended complaint clearly states that the “damage” they allege under this cause of action is for “invasion of privacy,” and Plaintiffs argued this throughout, until this Court dismissed those claims. Plaintiffs even admitted that they discovered their damage by at least October 2, 2007.
Plaintiffs’ assertions are contradictory and implausible. How could Plaintiffs file suit in 2009 and raise claims for lost wages in 2010 via the amended complaint, before they lost any wages or where the event that allegedly caused their lost wages, the bankruptcy of Thundervision, would not occur until 2011 ? The faulty logic in this argument is undeniable, and Plaintiffs’ implausible claims could not even survive the more deferential standard their claims would be entitled to upon a motion to dismiss.
B. Claims under the CFAA
1. Law
The Computer Fraud and Abuse Act imposes a two year statute of limitations period that runs from “the date of the act complained of or the date of the discovery of the damage.”
2. Analysis
This Court previously analogized this case to the Eastern District of Texas’s decision in Quantlab. In the court’s analysis of this specific statute, it relied on the Fifth Circuit’s decision in Jones v. Alcoa, Inc,
allege[d] only that [the plaintiff] was aware of threats by [the defendant] to reveal proprietary information. Because that complaint d[id] not state the source or nature of the proprietary information at issue in that case, and because the alleged conduct was different from that alleged in this case, the Court concludes that that complaint does not establish [plaintiffj’s awareness of an unauthorized access into its computer system at any particular time.109
As a result, the Court “f[ound] no basis in the pleadings to conclude that the statute of limitations had run before suit was filed.”
The emphasized language highlights that under this statute, knowledge of unauthorized access is the information critical to begin the statute of limitation.
In March 2007, Roger Smith told us (Sean Anthony Becnel and Charles Jagneaux) that [an individual] was receiving email that was sent from his email account without his knowledge or permission and asked us to find out how this was happening. We examined the delivery information inside the email messages ... and determined that the email messages had been sent through a Cox Communications internet account located in New Orleans, Louisiana. We then searched through the email access records on our email server for all access to the email server from that specific Cox Communications account.... We were able to ftnd multiple instances of access from the Cox Communications [account] to Laurie Felton’s email account dating from when she was an employee of Thundervision (prior to October 2006). We also found multiple instances of access and attempted access from the Cox Communications to Laurie Felton’s email account after she was no longer employed by Thundervision and to Roger Smith’s email account between December 2006 and March 2007.... We checked the dates and times and the location of the accesses with Roger Smith and he confirmed that he was neither in New Orleans nor did he access or have other people access his email account when these accesses took place. We then isolated the time and location records and provided them to law enforcement personnel.111
Similarly, Jagneaux stated:
Roger Smith informed me that an unknown person had accessed his email account ... without permission and forwarded messages from his account to the inbox of [an individual]. I examined copies of the forwarded emails and determined that the unauthorized access had originated from an IP address belonging to a COX Communications customer in New Orleans, Louisiana.... One IP address, belonging to COX Communications in New Orleans, logged into our webmail using the username rwsmith on December 27, 2006. This same IP address had logged into our webmail using the username laurie on Oct 01, 2006.112
This evidence, which Plaintiffs have neither addressed nor refuted, further demonstrates Smith’s knowledge that Felton was the alleged perpetrator well before two years prior to filing this action.
Here, Smith knew of unauthorized access to the computer system, which prompted Smith to initiate an internal investigation and submit his Citizen’s Complaint on March 21, 2007. Thus, it is clear that Smith had an “awareness of an unauthorized access into [Thundervision’s] com
However, while Plaintiffs did not raise this argument when this issue was initially briefed, Plaintiffs now claim for the first time that even if Felton can establish that Smith had knowledge of facts giving rise to his federal claims as evidenced by the filing of his Citizen’s Complaint, such knowledge cannot be imputed to the other plaintiffs. In response, Felton claims:
Roger Smith both contacted the Department of Justice and filed the Citizen’s Complaint in his capacity as the managing editor of Thundervision, thus acting as a representative for Dale Higgins, Melanie Wallace and Wright Avenue, LLC.; but, in following suit with [Plaintiffs’] reasoning, because Thundervision is not a party to these proceedings, Roger Smith would be the only individual [plaintiff] with a legitimate cause of action against Felton, which has prescribed.113
The Court is not sure it follows Felton’s argument, but the Court believes she is arguing that only a representative of Thundervision, or Thundervision itself, could recover from unauthorized access to Thundervision’s servers. Felton cites no authority for this position. Moreover, the clear language of the act would undercut such a position: “Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.”
C. Claims under the Wire Tap Act
1. Law
Under the Wire Tap Act, a plaintiff may commence an action “no later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.”
2. Analysis
Plaintiffs argue that they filed their action within two years of the date upon which they first had a reasonable opportunity to discover the violation, because the violations at issue “are complex and are not ascertainable without special skill.”
The Court finds that the undisputed fact that Smith initiated an internal investigation (which implicated Felton) and filed a Citizen’s Complaint wherein he alleged Felton hacked Thundervision’s server, evidences at a minimum that Smith had a reasonable opportunity to discover, and in fact did discover, the violation more than two years before he filed this suit. Smith’s internal investigation and Citizen’s Complaint are even more compelling evidence of his “reasonable opportunity” to discover the violation than that in Pringle, because Smith stated that he believed there was a violation and even identified a suspect, Felton. Therefore, the Court finds that Smith’s cause of action under the Wire Tap Act was untimely filed on September 29, 2009. However the same factual issue regarding imputing Smith’s knowledge under the CFAA to the other plaintiffs applies to this cause of action as well. Therefore, the Court will likewise not dismiss Plaintiffs Higgins, Wright Avenue, and Wallace’s Wire Tap Act claims as expired either.
V. Conclusion
For the reasons stated above, all of Plaintiffs’ claims under Louisiana Civil Code article 2315 have prescribed, and therefore the Court will grant summary judgment in favor of all defendants dismissing these causes of action with prejudice. Further, as the undisputed facts demonstrate that Smith had knowledge adequate to trigger the statute of limitations under the CFAA and Wire Tap Act more than two years before this action was filed, the Court will further grant summary judgment dismissing with prejudice Smith’s claims under these acts as to all defendants. In contrast, as there remain disputed issues of material fact as to when Plaintiffs Higgins, Wright Avenue, and Wallace had knowledge sufficient to trigger these time limitations, the Court will not grant summary judgment dismissing their claims under these acts. However, the Court again notes that all claims against Defendants Mendelbaum and DROR have been dismissed on the grounds of res judicata with regard to Plaintiffs Higgins, Smith, and Wright Avenue, and all of Wallace’s claims against all
IT IS HEREBY ORDERED that summary judgment is GRANTED in favor of all defendants dismissing with prejudice all Plaintiffs’ claims under Louisiana Civil Code article 2315;
IT IS FURTHER ORDERED that summary judgment is GRANTED in favor of all defendants dismissing with prejudice Plaintiff Smith’s claims under the CFAA and Wire Tap Act;
IT IS FURTHER ORDERED that the parties may reurge all motions that were previously denied without prejudice pending resolution of this issue;
IT IS FURTHER ORDERED that this case be reopened and that the Court will issue a new scheduling order and trial date.
. Rec.Doc.110.
. Rec. Doc. 43-1 at pp. 1, 5 n. 1. The record reflects that DROR previously did business as NMI, who has been terminated as a party. In addition, Mendelbaum is later referred to as the "sole member and president” of DROR. See id.; see also Rec. Doc. 50 at p. 2 ("Mr. Mendelbaum (the president and sole member of DROR)”).
. Rec. Doc. 43-1 at p. 2.
. Id. at p. 3.
. Rec. Doc. 1 at pp. 1-2.
. Rec. Doc. 43-1 at p. 3.
. Id.
. id.
. 18 U.S.C. § 1030.
. 18 U.S.C. § 2510.
. Rec. Doc. 73 at p. 5 ("Felton has never been a party to any of the [pjrior [proceedings.”) (emphasis in original).
. Rec. Doc. 43-1 at pp. 3-4.
. Id. at p. 4.
. Id.
. Id. at p. 5.
. Id.
. Ex. D (opinion of bankruptcy court).
. Rec. Doc 43-1 atp. 5.
. Id. atp. 6.
. Id.; see also Rec. Doc. 46 at p. 5.
. Rec. Doc. 50 at p. 4.
. Rec. Doc. 1 at p. 2. NMI has subsequently been terminated as a party.
. Id. at p. 3.
. Id.
. Id.
. Rec. Doc. 1 atpp. 4-5.
. Rec. Doc. 9.
. Id. atpp. 1-2.
.Id. at p. 3.
. Rec. Doc. 45.
. Rec. Doc. 80.
. Rec. Doc. 85.
. Rec. Doc. 71.
. Rec. Doc. 86.
. Rec. Doc. Nos. 83, 84.
. Rec. Doc. 88.
. Rec. Doc. 100.
. Rec. Doc. 110 at p. 2 (citing Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990)).
. Id. at pp. 2-3.
. Id. at p. 4.
. Rec. Doc. 111.
.Rec. Doc. 112.
. Rec. Doc. Ill atp. 2.
. Id.
. Id. atp. 3.
. Id.
. Id. at p. 6.
. Id.
. Id. atp. 7.
. Id.
. Id. at 8 (citing 18 U.S.C. § 1030(g)).
. Id. at pp. 8-9 (emphasis in original).
. 719 F.Supp.2d 766 (S.D.Tex. 2010).
. Rec. Doc. 111 at p. 9.
. Id. at pp. 9-10.
. Id. at p. 10 (emphasis in original).
. Id.
. Id.
. Id.
. Id. atp. 11 (citing 18 U.S.C. § 2520(e)).
. Id. atpp. 11-12.
. Id. atp. 12.
. Rec. Doc. 112 atp. 2.
. Id. at p. 3 (quoting Rec. Doc. 104-1 at p. 1).
. Id.
. Id. at pp. 3-4 (citing Rec. Doc. 104-1 at p. 3).
. Id. at 4-5 (citing Affidavit of Becnel, Rec. Doc. 104-1 at pp. 4-5; Affidavit of Jagneaux, Rec. Doc. 104-1 atpp. 6-7).
. Id. atp. 5.
. Id. atp. 6.
. Id. (quoting Plaintiffs' Memorandum, Rec. Doc. Ill at p. 9).
. Id. atpp. 6-7.
. Id. at p. 7.
. Id. (internal footnote omitted).
. Id. at pp. 6-7.
. Id. atp, 8.
. 388 Fed.Appx. 449 (5th Cir. 2010) (per curiam).
. Rec. Doc. 112 at p. 8 (citing Pringle, 388 Fed.Appx. at 450).
. Id. at p. 9.
. See Rec. Doc. 86 atpp. 12-14.
. Fed.R.Civ.P. 56(f)(3).
. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
. Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993) (quoting Shaffer v. Williams, 794 F.2d 1030, 1033 (5th Cir. 1986)).
. Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 147-48 (5th Cir. 1992).
. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264 (5th Cir. 1991).
. Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (per curiam).
. Id.
. Rizzo v. Children’s World Learning Ctrs., 84 F.3d 758, 762 (5th Cir. 1996).
. Travelers, 7 F.3d at 1206-07.
. Hostetler v. Gray & Co., Inc., 523 So.2d 1359, 1368 (La.App. 2 Cir. 1988).
. See also Wimberly v. Gatch, 93-2361 (La.4/11/94); 635 So.2d 206, 211.
. See Rec. Doc. 1.
. Rec. Doc. 9 at ¶ 7 (emphasis added).
. Rec. Doc. 73 at pp. 16-17 (emphasis added).
. Rec. Doc. 86 at p. 17; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level.”). While not raised by the parties, the Court also re
. Rec. Doc. 73 atp. 16.
. See Rec. Doc. 86 at p. 18 (Court’s prior order referencing this language).
. See Rec. Doc. 100-1 at pp. 4-5 (Plaintiffs’ memorandum in support of reconsideration of order dismissing claims against Felton).
. Id. at p. 5; see also Rec. Doc. Ill at p. 7.
. Rec. Doc. 73 at p. 16.
. Plaintiffs state that their Article 2315 claims were filed in 2009. See Rec. Doc. Ill at p. 7. However, as previously noted, Plaintiffs’ Article 2315 claims were first raised in their amended complaint filed on December 15, 2010. Rec. Doc. 9. Either date would compel the same result, however.
. See Rec. Doc. Ill atp. 7.
. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (stating that to survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face”).
. Rec. Doc. Ill atpp. 9-10.
. 18U.S.C. § 1030(g).
. 18 U.S.C. § 1030(e)(8)
. 339 F.3d 359 (5th Cir. 2003).
. Id. at 366 (internal quotations omitted).
. 719 F.Supp.2d at 775 (emphasis added).
.Id.
. Affidavit of Becnel, Rec. Doc. 104-1 at p. 3 (emphasis added).
. Affidavit of Jagneaux, Rec. Doc. 104-1 at pp. 6-7 (emphasis added).
. Rec. Doc. 112 at p. 7 (internal footnote omitted).
. 18 U.S.C. § 1030(g) (emphasis added).
. See Rec. Doc. 80.
. 28 U.S.C. § 2520(e).
. 388 Fed.Appx. at 450 (citing Sparshott v. Feld Entm’t, Inc., 311 F.3d 425, 429 (D.C.Cir. 2003)).
. Id.
. Id.
. Id.
. Rec.Doc.lllatp.il.
. See Rec. Doc. 86 at p. 21.
. See Rec. Doc. 100-1.
. See Rec. Doc. 80.
Reference
- Full Case Name
- Dale HIGGINS v. NMI ENTERPRISES, INC.
- Status
- Published