Pennsylvania National Mutual Casualty Insurance Company v. 3 D Air Services LLC et al
MEMORANDUM OPINION. Signed by Magistrate Judge Gray M Borden on 11/17/2020. (KAM)
2020 Nov-17 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
3D AIR SERVICES, INC., and
Case No. 2:20-cv-43-GMB
Before the court is the complaint filed by Plaintiff Pennsylvania National
Mutual Casualty Insurance Company (“Penn National”) seeking a declaratory
judgment regarding its obligations to Defendants 3D Air Services, Inc. (“3D Air”)
and Choate Construction Company (“Choate”) under a Commercial General
Liability Policy and a Commercial Umbrella Policy. Doc. 1. In response to the
complaint, both Choate and 3D Air filed motions to dismiss for lack of jurisdiction.
Docs. 15 & 22. Choate’s motion contends that the court lacks personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2), and that the lawsuit is premature
and the issues of law and fact are not ripe for the court’s consideration under Federal
Rule of Civil Procedure 12(b)(1). Doc. 15. 3D Air’s motion similarly contends that
the court lacks subject matter jurisdiction under Rule 12(b)(1), that Penn National
does not have standing to assert this action against it, and that the lawsuit is
premature. Doc. 22. Pursuant to 28 U.S.C. § 636(c), the parties have consented to
the jurisdiction of a United States Magistrate Judge. Doc. 31.
I. STANDARD OF REVIEW
The motions to dismiss implicate Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(2). Docs. 15 & 22. The primary focus of Choate’s motion is Rule 12(b)(2).
Rule 12(b)(2) motions test the court’s personal jurisdiction over a
defendant. “A plaintiff seeking the exercise of personal jurisdiction over a
nonresident defendant bears the initial burden of alleging in the complaint sufficient
facts to make out a prima facie case of jurisdiction.” United Tech. Corp. v. Mazer,
556 F.3d 1260, 1274 (11th Cir. 2009) (citing Posner v. Essex Ins. Co., Ltd., 178 F.3d
1209, 1214 (11th Cir. 1999)). Where, as here, the defendant challenges jurisdiction
by submitting affidavit evidence in support of its position, “the burden traditionally
shifts back to the plaintiff to produce evidence supporting jurisdiction.” Meier ex rel.
Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). When the
issue of personal jurisdiction is decided on the evidence, but without a discretionary
hearing, a plaintiff demonstrates a prima facie case of personal jurisdiction by
submitting evidence sufficient to defeat a motion made pursuant to Federal Rule of
Civil Procedure 50(a). Snow v. DirecTV, Inc., 450 F.3d 1314, 1317 (11th Cir. 2006).
At this evidentiary juncture, the court construes the allegations in the complaint as
true if they are uncontroverted by affidavits or deposition testimony, id. at 1317, and
where there are conflicts, the court “construe[s] all reasonable inferences in favor of
the plaintiff.” Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, 199 F. App’x
738, 741 (11th Cir. 2006) (quoting Meier, 288 F.3d at 1269).
The motions also invoke the court’s subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). Docs. 15 & 22. Subject matter jurisdiction
is the statutorily conferred power of the court to hear a class of cases. Arbaugh v.
Y&H Corp., 546 U.S. 500, 503 (2006). Motions to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) take two forms: “facial attacks” and “factual
attacks.” Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). “Facial
attacks challenge subject matter jurisdiction based on the allegations in the
complaint, and the district court takes the allegations as true in deciding whether to
grant the motion. Factual attacks challenge subject matter jurisdiction in fact,
irrespective of the pleadings. In resolving a factual attack, the district court may
consider extrinsic evidence such as testimony and affidavits.” Morrison v. Amway
Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003).
III. FACTUAL BACKGROUND
This lawsuit concerns insurance coverage for claims alleging defects in the
construction of a student apartment complex in Charlotte, North Carolina. Doc. 1-5
at 4. Choate, a Georgia corporation with its principal place of business in Georgia,
served as the general contractor for the complex. Docs. 1 at 1 & 1-5 at 5. According
to Choate’s Director of Operations, Choate does not have any offices, employees, or
assets in Alabama and does not regularly engage in business in Alabama or solicit
work in Alabama. Doc. 17-1 at 5. Even so, Choate is registered and authorized to
do business in Alabama (Doc. 35-1) and has worked on six construction projects in
Alabama during its 31-year history as a business, with its most recent projects in
2010 and 2012. Doc. 17-1 at 5. Choate maintains that its other “contacts with
Alabama have been limited to hiring subcontractors from time to time that happen
to be located in Alabama,” but who are contracted for work to be performed outside
of Alabama. Doc. 17-1 at 5.
The Subcontract Between Choate and 3D Air
The apartment complex developer was familiar with 3D Air, an Alabama
company with its principal place of business in Alabama, and encouraged Choate to
obtain a bid from 3D Air for work on the project. Docs. 17-1 at 3–4 & 48-1 at 2.
Choate obtained a bid from and selected 3D Air as the subcontractor for the heating,
ventilation, and air conditioning (“HVAC”) work on the project. Doc. 17-1 at 3–4.
There were numerous phone calls, emails, and fax communications between Choate
and 3D Air relating to the negotiation of the subcontract. Docs. 48-1 at 2–3, 48-3,
48-4, 48-7 & 48-8. On Choate’s end, the negotiations with 3D Air were all in
Georgia—there were no in-person meetings and no Choate employee set foot in
Alabama in connection with the subcontract negotiations. Doc. 53-1 at 7. The
subcontract states that Georgia law governs any disputes arising from the contract
and requires arbitration of those disputes in Atlanta, Georgia. Doc. 17-1 at 4; Doc.
1-15 at 2 & 26.
The subcontract required 3D Air to procure insurance from a carrier
authorized to do business in North Carolina and to name Choate as an additional
insured. Doc 17-1 at 4. And the subcontract dictated a number of specific terms with
respect to the insurance coverage, including but not limited to:
the Best’s rating of the insurer;
that the coverage forms must be acceptable to Choate;
to whom coverage must be afforded under the policy;
the duration of the coverage;
the limits of the coverage both primary and excess;
the inclusion of completed operations coverage;
how the aggregate limits must be applied to the project;
the precise Commercial General Liability Coverage Form required;
a limitation of exclusions permitted;
that Choate and its officers, directors,7 and employees and the
project owner must be included as additional insureds under both
the primary and excess policies for both ongoing and completed
the particular ISO Additional Insured Endorsements to be attached
to the Alabama policy;
that the coverage afforded to Choate by its required ISO Additional
Insured Endorsement be primary, non-contributing coverage for
the amount of the deductible or self-insured retention allowed;
waiver of the insurer’s subrogation rights; and
the substance of the cancellation provisions.
Doc. 17-1 at 20–22. Choate was not involved in selecting the insurance carrier and
did not negotiate the terms of the policy or pay any of the premiums. Doc. 17-1 at 4.
However, Choate received the certificates of insurance from an Alabama insurance
broker and had multiple communications with the Alabama insurance broker and 3D
Air concerning the coverage and the issuance of the certificates of insurance. Docs.
17-1 at 73–75, 48-1 at 4–7, 48-8, 48-9, 48-10, 48-11, 48-12 & 48-13.
The Underlying Lawsuit
On March 16, 2018, the apartment developer’s assignee filed a complaint in
North Carolina state court against Choate and others alleging defects in construction,
design, and workmanship, including problems with the HVAC system installed by
3D Air (“the underlying lawsuit”). Doc. 1 at 3; Doc. 1-5 at 8 & 19–23; Doc. 1-15.
The plaintiffs asserted claims against Choate for breach of warranty and for
conspiring to conceal defects in the HVAC system. Doc. 1-5 at 5, 28–29 & 36. 3D
Air is not a party in the underlying lawsuit. The state court ordered the plaintiffs’
claims against Choate to arbitration, and the parties have been conducting discovery.
Doc. 17-1 at 6. Penn National is defending Choate in the underlying lawsuit under
a reservation of rights. Doc. 1 at 5. In its complaint in this court, Penn National
seeks a determination of whether it has a duty to defend or indemnify Choate in the
underlying lawsuit. Doc. 1 at 10 & 23–28. The complaint does not state a cause of
action against 3D Air.
As discussed above, before the court are two motions to dismiss. Docs. 15 &
22. Although some of the arguments overlap, the court begins with Choate’s motion
to dismiss and then addresses 3D Air’s motion. For the following reasons, the court
finds that both motions are due to be granted.
Choate’s Motion to Dismiss
Choate advances two alternative arguments in favor of dismissal. Doc. 15. It
first contends that this court lacks personal jurisdiction over it. Doc. 15 at 2–4.
Second, Choate asserts that—even if jurisdiction exists—the declaratory judgment
complaint is due to be dismissed because the claims are not ripe. Doc. 15 at 5–6.
Because the court agrees that it lacks personal jurisdiction over Choate, it does not
address the ripeness of this dispute.
In a diversity action, the court “undertakes a two-step inquiry in determining
whether personal jurisdiction exists: the exercise of jurisdiction must (1) be
appropriate under the state long-arm statute, and (2) not violate the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.” United
Techs. Corp., 556 F.3d at 1274. Because Alabama’s long-arm statute “permits its
courts to exercise jurisdiction over nonresidents to the fullest extent allowed under
the Due Process Clause of the Fourteenth Amendment to the Constitution,” Ruiz de
Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1355–56 (11th Cir.
2000), the court need only consider whether the exercise of jurisdiction satisfies the
requirements of due process. Olivier v. Merritt Dredging Co., 979 F.2d 827, 830
(11th Cir. 1992). The due process requirements in this context are (1) that the
defendant have “certain minimum contacts” with the forum state, and (2) if such
minimum contacts exist, that the exercise of jurisdiction over the defendant “‘does
not offend traditional notions of fair play and substantial justice.’” Burnham v. Sup.
Ct. of Cal., 495 U.S. 604, 618 (1990) (quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)). “This two-part test embodies the controlling due process
principle that a defendant must have ‘fair warning’ that a particular activity may
subject it to the jurisdiction of a foreign sovereign.” Vermeulen v. Renault, U.S.A.,
Inc., 985 F.2d 1534, 1545 (11th Cir. 1993).
The Due Process Clause allows for two types of personal jurisdiction: general
and specific jurisdiction. Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., San Francisco
City, 137 S. Ct. 1773, 1780 (2017) (citing Goodyear Dunlop Tire Ops., S.A. v.
Brown, 564 U.S. 915, 919 (2011)). For either general or specific jurisdiction to
comport with due process, the defendant must have certain minimum contacts with
the state, and the “minimum contacts inquiry focuses on ‘the relationship among the
defendant, the forum, and the litigation.’” Waite v. All Acquisition Corp., 901 F.3d
1307, 1312 (11th Cir. 2018) (quoting Walden v. Fiore, 571 U.S. 277, 284 (2014)).
“This inquiry ensures that a defendant is haled into court in a forum state based on
the defendant’s own affiliation with the state, rather than the random, fortuitous, or
attenuated contacts it makes by interacting with other persons affiliated with the
state.” Id. (citations and quotation marks omitted).
Penn National predicates its argument upon the theory of specific
jurisdiction.1 Doc. 45 at 5–18. “Specific jurisdiction arises out of a party’s activities
in the forum that are related to the cause of action alleged in the complaint.” Consol.
Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000) (citation omitted).
In the Eleventh Circuit, courts apply a three-part test to determine whether exercising
jurisdiction over a nonresident defendant comports with due process. Waite, 901
F.3d at 1313 (citing Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355
(11th Cir. 2013)). First, the court must determine whether the plaintiffs “claims
‘arise out of or relate to’ at least one of the defendant’s contacts with the forum.” Id.
Second, the court must decide whether the defendant has “‘purposefully availed’
itself of the privilege of conducting activities within the forum State.” Id. Third,
“[i]f the plaintiffs carry their burden of establishing the first two prongs,” the court
Penn National originally asserted that general jurisdiction exists (see Doc. 27 at 7), but did not
address that argument in its later briefing. The court therefore deems this argument abandoned.
And even if it had not been abandoned, the complaint does not establish that Choate’s contacts
with Alabama amount to the kind of “continuous and systematic” contacts that support general
personal jurisdiction. Bulter v. Beer Across Am., 83 F. Supp. 2d 1261, 1264 (N.D. Ala. 2000)
(“General jurisdiction may be exercised when a defendant’s contacts with the forum are
sufficiently numerous, purposeful, and continuous, as to render fair an assertion of power over the
defendant by the state’s courts no matter the nature or extent of the relationship to the forum
entailed in the particular litigation . . . .”); see also Helicopteros Nacionales de Colombia, N.A. v.
Hall, 466 U.S. 408, 414 n.9 (1984).
must decide “whether the defendant has ‘ma[de] a compelling case that the exercise
of jurisdiction would violate traditional notions of fair play and substantial justice.’”
Id. (second alteration in original). Moreover, “it is important to remember that the
conduct at issue is that of the defendants. No plaintiff can establish jurisdiction over
a defendant through his own actions.” Ruiz de Molina v. Merritt & Furman Ins.
Agency, Inc., 207 F.3d 1351, 1356 (11th Cir. 2000).
Penn National maintains that Choate has sufficient specific contacts with
Alabama to confer personal jurisdiction. Doc. 45 at 3. The parties focus their
arguments on the second factor—the requirement that the contacts involve “some
act by which the defendant purposefully avails himself of the privilege of conducting
activities with the forum.” Vermeulen, 985 F.2d at 1546. Penn National points to
three categories of contacts to support its position: (1) the communications between
Choate and 3D Air during the negotiation of the subcontract; (2) the communications
between Choate, 3D Air, and the Alabama insurance broker regarding insurance
coverage; and (3) other various contacts related to the construction project itself.
Doc. 45 at 7–18. Choate maintains that these contacts are insufficient as a matter of
law. Doc. 51 at 5–17. The court agrees.
The seminal Supreme Court decision on specific personal jurisdiction in a
contracts case is Burger King Corporation v. Rudzewicz, 471 U.S. 462 (1985). In
that case, the Florida-based Burger King Corporation brought a breach-of-contract
suit in federal district court in Florida against a Michigan-based Burger King
franchisee. Id. at 464 & 468. The issue before the Supreme Court was whether the
Florida federal district court’s assertion of specific personal jurisdiction over one of
the Michigan franchisees “for the alleged breach of his franchise agreement . . .
offend[ed] due process.” Id. at 478.
The Supreme Court began its analysis of the “purposeful availment”
component of the minimum contacts test by emphasizing “the quality and nature of
the defendant’s activity.” Id. at 475 (citing Hansen v. Denckla, 357 U.S. 235, 253
(1958)). The Court explained:
This “purposeful availment” requirement ensures that a defendant will
not be haled into a jurisdiction solely as a result of “random,”
“fortuitous,” or “attenuated” contacts, or of the “unilateral activity of
another party or a third person. . . . Jurisdiction is proper, however,
where the contacts proximately result from actions by the defendant
himself that create a “substantial connection” with the forum State.
Thus where the defendant “deliberately” has engaged in significant
activities within a State, or has created “continuing obligations”
between himself and residents of the forum, he manifestly has availed
himself of the privilege of conducting business there, and because his
activities are shielded by “the benefits and protections” of the forum’s
laws it is presumptively not unreasonable to require him to submit to
the burdens of litigation in that forum as well.
Id. at 475–76 (internal citations and footnotes omitted). Applying these principles,
the Court noted that “an individual’s contract with an out-of-state party alone
can[not] automatically establish sufficient minimum contacts in the other party’s
home forum.” Id. at 478. The Court recognized, however, that a contract is generally
preceded by past negotiations and future relationships, and that “[i]t is these
factors—prior negotiations and contemplated future consequences, along with the
terms of the contract and the parties’ actual course of dealing—that must be
evaluated in determining whether the defendant purposefully established minimum
contacts within the forum.” Id. at 479.
Notwithstanding that the Burger King franchisee had “no physical ties to
Florida,” the Court concluded that the “dispute grew directly out of a contract which
had a substantial connection with that State.” Id. (internal quotation marks omitted).
The Court highlighted that the franchisee “deliberately ‘reach[ed] out beyond’
Michigan and negotiated with a Florida corporation for the purchase of a long-term
franchise and the manifold benefits that would derive from affiliation with a
nationwide organization.” Id. at 479–80. The franchise agreement covered a 20-year
period and contemplated “continuing and wide-reaching contacts with Burger King
in Florida.” Id. at 480. Additionally, the Court considered the contractual provisions
that “Burger King’s operations are conducted and supervised from the Miami
headquarters, that all relevant notices and payments must be sent there, and that the
agreements were made in and enforced from Miami.” Id. Also relevant, but not
dispositive, was the franchise agreement’s choice-of-law provision “providing that
all disputes would be governed by Florida law.” Id. at 481 & 482. The Court,
therefore, concluded that “[i]n light of [the franchisee’s] voluntary acceptance of the
long-term and exacting regulation of his business from Burger King’s Miami
headquarters, the ‘quality and nature’ of his relationship to the company in Florida
can in no sense be viewed as ‘random,’ ‘fortuitous,’ or ‘attenuated.’” Id.
Viewing the facts presented here through the Burger King lens, the
subcontract between Choate and 3D Air is not sufficient, standing alone, to subject
Choate to personal jurisdiction in an Alabama federal court. Although Choate
reached out to 3D Air to submit a bid, Choate had no physical connection to Alabama
in relation to the subcontract. Choate does not have an office, agent, employee, or
property in Alabama and no employee of Choate ever came to Alabama during the
subcontract negotiations.2 There also is no evidence that the subcontract was formed
as the result of a long-standing business relationship or that any future business
relationship was contemplated by Choate or 3D Air. Instead, the subcontract
governed a one-time HVAC job in North Carolina. And, unlike in Burger King, the
choice-of-law provision in the contract dictates that Georgia law applies and that all
disputes would be decided through arbitration in Georgia.
The court also is not persuaded that the pre-contract communications between
the parties and the communications between Choate, 3D Air, and the Alabama
insurance broker establish personal jurisdiction over Choate. Numerous courts have
That Choate is licensed to do business in Alabama and had occasionally worked in Alabama in
the past does not change the court’s analysis. These contacts bear more relevance to the general
jurisdiction analysis and do not relate to the subcontract at issue.
found similar evidence to be insufficient. See, e.g., PVC Windoors, Inc. v. Babbitbay
Beach Constr., N.V., 598 F.3d 802, 806–07 & 812 (11th Cir. 2010) (finding no
jurisdiction over Kentucky company that solicited bid in Florida through “telephonic
and other electronic means” to perform work at beach resort in St. Maarten and did
not set foot in Florida); Sea Lift, Inc. v. Refinadora Costarricense de Petroleo, S.A.,
792 F.2d 989, 993–94 (11th Cir. 1986) (finding no purposeful availment where
defendant’s representatives personally visited plaintiff in Florida to solicit bid for
salvage operation in Costa Rica and sent contract from Costa Rica for plaintiff’s
signature in Florida); Johansson Corp. v. Bowness Constr. Co., 304 F. Supp. 2d 701,
702-03, 705-07 (D. Md. 2004) (finding no personal jurisdiction over North Carolina
contractor who negotiated with Maryland subcontractor at homeowner’s direction
for project in North Carolina, notwithstanding phone calls and emails, in-person
meeting in North Carolina, and plaintiff’s signing of the subcontract in Maryland).
And the addition of Choate to the insurance policy is not an adequate minimum
contact to establish personal jurisdiction. The requirement for the insurance contract
was that the carrier had to be authorized to do business in North Carolina, not
Alabama. Moreover, 3D Air chose the broker, not Choate. Unilateral acts within a
forum state are insufficient to establish personal jurisdiction over a non-resident
defendant. Burger King, 471 U.S. at 475 (“[U]nilateral activity of those who claim
some relationship with a nonresident defendant cannot satisfy the requirement of
contact with the forum State.”).
The other actions on which Penn National relies do not tip the scale in favor
of personal jurisdiction. See Doc. 45 at 16–17. Many of these alleged contacts were
unilateral acts taken by 3D Air to meet its obligations under the subcontract. For
example, Penn National points to the purchases of supplies and equipment from two
Alabama vendors, but there is no evidence that Choate played any role in the
procurement of those items other than through payment requests and the mailing of
payments. And the making and sending of payments in a forum state “is a secondary
or ancillary factor” in the personal jurisdiction equation. Borg-Warner Acceptance
Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055, 1059 (11th Cir. 1986) (internal
quotation marks and citation omitted). Additionally, the phone calls and emails
between the parties during the execution of the subcontract are insufficient to confer
jurisdiction. The vast majority of the emails were sent for the purpose of transmitting
information required for the performance of the subcontract, and there is no evidence
that any face-to-face meetings ever occurred in Alabama. Moreover, even with
respect to the emails and phone calls, there is no evidence that the employees of 3D
Air were located in Alabama when they occurred.
In sum, balancing the factors for and against a finding of purposeful
availment, this court is not persuaded that Choate is subject to personal jurisdiction
Considering the quality, nature, and extent of its contacts with
Alabama, Choate’s purposeful contacts with Alabama create only an attenuated
affiliation with the forum. See Burger King, 471 U.S. at 476 n.18. The court,
therefore, finds that Choate’s contacts are not such that it would reasonably
anticipate being haled into court in Alabama for this dispute. Because Choate does
not have the requisite minimum contacts to support personal jurisdiction, the court
does not need to reach the fairness tier of the due process inquiry. Choate’s motion
to dismiss for lack of personal jurisdiction is due to be granted.
3D Air’s Motion to Dismiss
3D Air contends that the declaratory judgment complaint against it should be
dismissed because the court lacks subject matter jurisdiction and Penn National does
not have standing to assert claims against it. Doc. 22 at 1. There are multiple issues
with the complaint as stated against 3D Air. First, Penn National did not respond to
the specific contentions made by 3D Air in its motion to dismiss. Instead, the brief
in opposition to the motions focused solely on Choate’s motion to dismiss. Doc. 35.
While 3D Air did incorporate the arguments made by Choate in its motion (Doc. 22
at 2), 3D Air’s motion sets out a separate and independent basis for dismissal. “[A]
legal claim or argument that has not been briefed before the court is deemed
abandoned and its merits will not be addressed.” Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1330 (11th Cir. 2004). For this reason, the court deems any
claim against 3D Air abandoned.
Even if Penn National had not abandoned its complaint as stated against 3D
Air, there is a more fundamental reason to dismiss the complaint—it does not
articulate any requested declaratory relief with respect to the relationship between
Penn National and 3D Air. This deficiency is understandable since 3D Air is not a
party to the underlying lawsuit in North Carolina. Penn National is not defending
3D Air in that suit and there is nothing to indemnify as it relates to 3D Air. Because
no duty has been triggered under the contract between Penn National and 3D Air,
there is no “case or controversy” for the court to decide. A declaratory judgment
requires “the settling of some dispute which affects the behavior of the defendant
towards the plaintiff.” Rhodes v. Stewart, 488 U.S. 1, 3–4 (1988); see also Hewitt v.
Helms, 482 U.S. 755, 761 (1987). If not for the settling of a dispute, a declaratory
judgment would be an improper advisory opinion. Rhodes, 488 U.S. at 3–4. The
court finds that any pronouncement on the contract between Penn National and 3D
Air would be just that. Therefore, 3D Air is due to be dismissed from this lawsuit.
For these reasons, it is ORDERED that:
Choate’s Motion to Dismiss (Doc. 15) is GRANTED for lack of
personal jurisdiction; and
3D Air’s Motion to Dismiss (Doc. 22) is GRANTED for lack of subject
A final order of dismissal will be entered separately.
DONE and ORDERED on November 17, 2020.
GRAY M. BORDEN
UNITED STATES MAGISTRATE JUDGE
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