Andazola v. Logan's Roadhouse, Inc.

Filing 94

MEMORANDUM OPINION and ORDER as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 05/24/13. (SPT )

FILED
2013 May-24 PM 03:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
BRANDY A. ANDAZOLA,
Plaintiff,
vs.
LOGAN’S ROADHOUSE, INC.,
Defendant.

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Civil Action No. CV-10-S-316-NW

MEMORANDUM OPINION AND ORDER
The complaint filed by plaintiff, Brandy A. Andazola, alleged, among other
things, that defendant, Logan’s Roadhouse, Inc., violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq., by failing to promote her to
General Manager positions at defendant’s two restaurants in Florence and Athens,
Alabama because of her sex.1 Plaintiff also accused defendant of violating Title VII
by terminating her employment, either because of her gender, or in retaliation for her
complaints about gender discrimination and sexual harassment in the workplace.2
Plaintiff further alleged that defendant violated the Equal Pay Act of 1963, 29 U.S.C.
§ 206(d) (and, arguably, Title VII), by paying her less than a similarly-situated male
employee.3 In addition to her claims based on federal law, plaintiff’s complaint
1

See doc. no. 1 (Complaint).

2

Id.

3

Id.

contained supplemental state-law claims for intentional infliction of emotional
distress, negligent hiring, training, supervision, and retention, defamation, and
invasion of privacy. Plaintiff also accused defendant of condoning acts of sexual
harassment, failing to properly respond to complaints of sexual harassment, and
making false statements about plaintiff.4
This court entered summary judgment in favor of defendant on all of plaintiff’s
claims, except for: her Title VII claim that she had been denied a promotion to the
General Manager position of defendant’s Athens, Alabama restaurant because of her
sex;5 and, the state-law negligent training, supervision, and retention claim predicated
upon defendant’s handling of plaintiff’s complaints of sexual harassment against
certain employees.6 As discussed in the memorandum opinion entered in response
to defendant’s motion for summary judgment, plaintiff’s state law claim
is based upon the assertion that defendant “negligently failed to
discipline or terminate those employees [of its Florence, Alabama
restaurant — i.e., Peter Austin, the Kitchen Manager, and Thomas
Moody, an hourly-wage employee who initially was hired as a server,
but later had bartender functions added to his duties —] who actively
harassed . . . [plaintiff],” failed to administer its policies against sexual
harassment, failed to properly train its employees concerning [sexual]
harassment, and failed to protect plaintiff from [sexual] harassment.7
4

Id.

5

See doc. no. 48 (Memorandum Opinion and Order on Summary Judgment), at 45-54.

6

Id. at 65-69.

7

Id. at 66-67 (citation omitted, alterations supplied).

2

The case has been pre-tried, and was docketed for trial on August 14, 2012,8
but was continued on the motion of plaintiff’s attorney, who complained of eye
maladies that required medical attention.9 In an effort to facilitate the resolution of
this litigation, the court recently ruled on both of plaintiff’s pretrial motions, and six
of defendant’s pretrial motions.10 One request from defendant’s final pending pretrial
motion remains unresolved.11
As is evident from its title, defendant’s “Motion In Limine to Exclude Evidence
of Alleged Harassment of Other Employees and Harassment Not Based on Sex,
Including Any Complaints of Such Harassment” challenges plaintiff’s attempt to
introduce two types of evidence: i.e., evidence of harassment of other employees;
and, evidence of harassment not based on sex.12 This court granted the request to
exclude the second type of evidence: i.e., evidence of harassment not based on sex.13
8

See doc. no. 56 (Pretrial Order).

9

See doc. no. 27 (Motion to Continue Trial).

10

See doc. no. 87 (Memorandum Opinion and Order addressing both of plaintiff’s pretrial
motions, and six of defendant’s pretrial motions); doc. no. 91 (Memorandum Opinion and Order
addressing the admissibility of the DVD entitled “Muffy the Vampire Slayer).
11

See doc. no. 67 (Motion In Limine to Exclude Evidence of Alleged Harassment of Other
Employees and Harassment Not Based on Sex, Including Any Complaints of Such Harassment); doc.
no. 87 (Memorandum Opinion and Order), at 19 (discussing the reasons for withholding a ruling on
the request contained in document number 67 to exclude evidence of the alleged harassment of other
employees and complaints of such harassment).
12

Doc. no. 70 (Motion in Limine to Exclude Witnesses and Exhibits Not Disclosed During
Discovery), at 2 n.1.
13

Doc. no. 87 (Memorandum Opinion and Order), at 15-16.

3

However, the court withheld a ruling on the admissibility of the first type of
evidence: i.e., “Evidence of Alleged Harassment of Other Employees.” Despite the
fact that plaintiff had not “specified the evidence of alleged harassment of other
employees and complaints about such harassment that she intends to offer at trial,
much less articulated the probative value of such evidence,”14 the court elected to
“afford plaintiff an opportunity to brief this issue more thoroughly.”15
I. DISCUSSION
The Alabama Supreme Court has held that, in order to hold a defendant liable
under a claim based upon a theory of negligent training, supervision, or retention
predicated upon the underlying tortious misconduct of one of the defendant’s
employees (e.g., as in the present case, sexual harassment), the plaintiff must first
prove that she was sexually harassed. In addition, she must show that her employer
“(1) had actual knowledge of the tortious conduct of the offending
employee and that the tortious conduct was directed at and visited upon
the complaining employee; (2) that based upon this knowledge, the
employer knew, or should have known, that such conduct constituted
sexual harassment and/or a continuing tort; and (3) that the employer
failed to take ‘adequate’ steps to remedy the situation.”
Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999) (emphasis
supplied) (quoting Potts v. BE & K Construction Co., 604 So. 2d 398, 400 (Ala.
14

Id. at 18.

15

Id. at 19.

4

1992)).
With regard to the initial requirement — i.e., that plaintiff prove she was
personally subjected to sexual harassment — the attorney for plaintiff is correct when
observing that some courts have permitted a plaintiff to present so-called “me too”
evidence that other female employees also suffered from sexual harassment based
upon a theory that, “if it happened to them, then it must have happened to me, too.”
See Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1285-87 (11th Cir. 2008)
(affirming a district court’s decision to admit “me too” evidence because of its
probative value in showing the defendant’s intent to discriminate). Cases such as the
one just cited serve to demonstrate that district courts do not apply a blanket, per se
rule excluding “me too” evidence, but, instead, determine the admissibility of such
evidence in light of its relevance under Rule 401, and after weighing its comparative
prejudice under Rule 403 “in the context of the facts and arguments in a particular
case.” Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008); see
also Goldsmith, 513 F.3d at 1285-87.
Even so, more often than not, “me too” evidence is not admitted at trial because
the probative value of such evidence is judged to be “substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
5

evidence.” Fed. R. Evid. 403. Indeed, “trial courts regularly prohibit ‘me too’
evidence from or about other employees who claim discriminatory treatment because
it is highly prejudicial and only slightly relevant.” Johnson v. Interstate Brands
Corp., 351 F. App’x 36, 41 (6th Cir. 2009) (citing Schrand v. Federal Pacific Electric
Co., 851 F.2d 152, 156 (6th Cir. 1988)); see also McLaughlin v. Essette Pendaflex
Corp., 50 F.3d 507, 512 (8th Cir. 1995) (noting that a plaintiff failed to prove
discrimination by presenting the testimony of witnesses who were not involved in the
contested employment decision); Sorenson v. City of Aurora, 984 F.2d 349, 354-55
(10th Cir. 1993) (upholding the decision to exclude evidence that other female
employees also complained of discrimination and retaliation because that evidence
was irrelevant and confusing); Haskell v. Kaman Corp., 743 F.2d 113, 121-22 (2d
Cir. 1984) (observing that the testimony of former corporate officers who were
terminated was substantially outweighed by the danger of unfair prejudice); Yellow
Bayou Plantation, Inc. v. Shell Chemical, Inc., 491 F.2d 1239, 1242-43 (5th Cir.
1974) (upholding the decision to exclude evidence of another employment
discrimination lawsuit against the defendant because of the high potential for unfair
prejudice).
Plaintiff would like to offer evidence of alleged harassment of other employees
by Thomas Moody, an hourly-wage employee of defendant’s Florence Roadhouse
6

who initially was hired as a server, but later had bartender functions added to his
duties.16 According to plaintiff, Moody told sexual jokes, uttered gender slurs, and
made offensive hand motions to plaintiff and other female employees.17 He also
touched female employees in an inappropriate manner, ran his hands through their
hair, and grabbed their buttocks.18
Plaintiff testified that she complained on unspecified dates to Regional
Manager David Rodriguez about Moody’s sexual harassment of her (plaintiff), as
well as other female employees.19 Rodriguez, however, testified that he “never
received a complaint” from plaintiff or anyone else accusing Moody of sexual
harassment, and that plaintiff did not testify truthfully when saying that she
complained to him about Moody’s sexual harassment during an August 25, 2008
conference just prior to the end of her employment.20
Plaintiff also alleges that she assisted another restaurant employee, Ginger
Thompson, to lodge a written complaint against Moody on some date that is not
16

See doc. no. 92 (Brief), at 4-9. The memorandum opinion addressing defendant’s motion
for summary judgment (document number 48) summarized plaintiff’s allegations of sexual
harassment by Moody at pages 8-9; and her allegations of complaints against Moody at page 9, note
34.
17

Doc. no. 23-2 (Deposition of Brandy A. Andazola), at 258; doc. no. 38-2 (Declaration of
Ginger Thompson), at 1.
18

Doc. no. 23-2 (Deposition of Brandy A. Andazola), at 366.

19

Id. at 258-59.

20

Doc. no. 23-5 (Deposition of David Rodriguez), at at 40-41, 87, 123-24.

7

clearly stated in the evidentiary materials presented to this court, but which would
have occurred sometime prior to Thompson’s last date of employment in September
of 2006.21 Plaintiff delivered Thompson’s complaint to Paul Tompkins, who then was
General Manager of the Florence Roadhouse, and Tompkins said that “he would let
Jim Edwards handle it since . . . Thomas Moody and Jim Edwards were . . . very close
friends.”22 Afterwards, Moody’s behavior improved “for a while.”23
Plaintiff urges this court to admit the following evidence: (a) evidence that
Thomas Moody sexually harassed Ginger Thompson;24 (b) evidence that defendant
received two other complaints from other employees alleging that Moody engaged
in sexual harassment; and (c) evidence that defendant failed to produce all three
harassment complaints as part of Moody’s personnel file.25 The court will address
each type of evidence in turn.
A.

Evidence that Thomas Moody Sexually Harassed Ginger Thompson,
21

See doc. no. 38-2 (Declaration of Ginger Thompson), at 1 (stating that “I worked at
Logan’s Roadhouse in Florence, Alabama from approximately December 2005 to approximately
September 2006”); id. at 2 (stating that plaintiff assisted Thompson in filing a formal written
complaint about Moody’s sexual harassment).
22

Doc. no. 23-2 (Deposition of Brandy A. Andazola), at 356-58.

23

Doc. no. 38-2 (Declaration of Ginger Thompson), at 2 (“Mr. Moody’s behavior improved
for a while after I filed my complaint and after he was talked to about his behavior.”). The
implication of the caveat “for a while” is that defendant did not succeed in stopping the alleged
harassment permanently.
24

Doc. no. 92 (Brief), at 4-7.

25

Id. at 7-9.

8

Including Complaints of Such Harassment
Plaintiff submitted the following declaration from Ginger Thompson in
response to defendant’s motion for summary judgment:
I formerly worked at Logan’s Roadhouse in Florence, Alabama.
I worked at Logan’s Roadhouse in Florence, Alabama from
approximately December 2005 to approximately September 2006.
Thomas D. Moody also worked at Logan’s Roadhouse, Inc. in
Florence, Alabama at the time I worked there.
Mr. Moody sexually harassed me unbearably by making sexually
explicit comments to me on the shifts on which we worked together
which made me very uncomfortable and which made my work at
Logan’s very uncomfortable.
I am married and was married at the time Mr. Moody sexually
harassed me which made me even more uncomfortable.
Brandy A. Andazola was an assistant manager at Logan’s during
the time I worked at Logan’s.
As Logan’s policy required, I reported Mr. Moody’s sexually
harassing me to Ms. Andazola.
Ms. Andazola assisted me in filing a formal written complaint
with Logan’s regarding Mr. Moody’s have [sic] sexually harassed me.
I requested that my formal written complaint be placed in Mr.
Moody’s personal file. I requested that Logan’s investigate my
complaints against Mr. Moody. I requested that Logan’s immediately
take any and all appropriate action to stop Mr. Moody’s sexually
harassing me.
My written formal complaint against Mr. Moody was supposed to
9

have been placed in Mr. Moody’s personnel file and should be in his
personnel file now.
Mr. Moody’s behavior improved for a while after I filed my
complaint and after he was talked to about his behavior.26
In addition, plaintiff argues in the brief submitted in connection with the defendant’s
motion in limine that:
Ginger Thompson will testify that Moody sexually harassed her
during the time she worked at Logan’s. (See Doc. 38-2, pp. 1-2.)
Moody made “sexually explicit comments” that made Thompson
“uncomfortable.” (See id.) Thompson will testify that she submitted a
formal sexual harassment complaint to [defendant] through [plaintiff].
(See id.) [Plaintiff’s] testimony will reflect that Thompson complained.
(See Doc. 38-1, pp. 2-4.) [Plaintiff] documented this complaint in
writing on behalf of [defendant]. (See Doc. 38-1, pp. 2-4; Doc. 38-2, pp.
1-2).27
Plaintiff also contends that:
This testimony is relevant to show that [Thomas] Moody had an
“intent to discriminate”and that [defendant] “permitted a severe and
pervasive atmosphere of . . . discrimination on its premises.” Goldsmith
v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir.2008). This
evidence has a tendency to make Moody’s sexual harassment of
[plaintiff] more probable than it would be without this evidence. See
Fed. R. Evid. 401. It also has a tendency to show that harassment “was
ongoing throughout her employment” and that “no action was taken to
remedy the harassing behavior . . .despite . . . repeated complaints.”
(Doc. 48, pp. 68-69.)28

26

Doc. no. 38-2 (Declaration of Ginger Thompson), at 1-2.

27

Doc. no. 92 (Brief), at 4-5 (alterations supplied).

28

Id. at 5 (footnotes omitted) (alterations supplied).

10

In that section of this court’s memorandum opinion explaining the reasons for
denying defendant’s motion for summary judgment on plaintiff’s state-law negligent
training, supervision, and retention claim, this court held that
plaintiff has presented evidence to show that she was sexually harassed
by [Peter] Austin and [Thomas] Moody. She also presents evidence to
show that she complained about the sexual harassment to [David]
Rodriguez and [Jim] Edwards on multiple occasions. She presents
evidence that the only actions defendant took to remedy the harassing
behavior by Moody was that Edwards spoke to Moody, and no action
was taken to remedy the harassing behavior by Austin despite her
repeated complaints. Finally, she presents evidence that the harassment
perpetrated by Moody and Austin was ongoing throughout her
employment despite her complaints and defendant’s actions.29
The Eleventh Circuit has “upheld the admission of coworker testimony in a
sexual harassment context under [Federal] Rule [of Evidence] 404(b) to prove the
defendant’s ‘motive, . . . intent, . . . [or] plan’ to discriminate against the plaintiff.”
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (alterations
supplied) (citing Fed. R. Evid. 404(b);30 Phillips v. Smalley Maintenance Services,
Inc., 711 F.2d 1524, 1532 (11th Cir. 1983)). The Goldsmith court affirmed a district
court’s decision to admit “me too” evidence because both the plaintiff and her

29

Doc. no. 48 (Memorandum Opinion and Order on Summary Judgment), at 68-69 (emphasis
and alterations supplied).
30

Federal Rule of Evidence 404(b) provides that evidence of a defendant’s crimes, wrongs,
or other acts may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).

11

coworkers “were discriminated against by the same supervisor, . . . so the experiences
of [the coworkers] are probative of [the supervisor’s] intent to discriminate.” Id.
(emphasis and alterations supplied).
As in Goldsmith, both plaintiff and Ginger Thompson were allegedly harassed
by the same employee, Thomas Moody. Thus, Thompson’s experiences are likewise
probative of Moody’s intent to harass. Accordingly, this court will permit Ginger
Thompson to testify: that Moody sexually harassed her during her employment with
defendant; that she submitted a formal sexual harassment complaint to defendant
through plaintiff; and that she requested that the complaint be placed in Moody’s
personnel file. Further, the court will permit plaintiff to testify: that Ginger
Thompson complained of sexual harassment; and that plaintiff assisted Ms.
Thompson to draft and file a formal complaint of harassment.
B.

Evidence That Defendant Received Two Other Complaints From Other
Employees Alleging Sexual Harassment by Thomas Moody
With regard to evidence that defendant received two other complaints of sexual

harassment against Thomas Moody, plaintiff argues that she “will testify at trial that
she was aware of two other sexual harassment complaints that had been filed against
Moody. (See Doc. 38-1, pp. 2-4.) She [alleges that at some point in time she]

12

personally [read the] complaints in Moody’s personnel file. (See id.)”31 Plaintiff
provides no further details regarding the alleged sexual harassment complaints,
including: the identity of the complainants; the nature of their respective allegations;
whether defendant investigated the allegations; whether defendant found the
allegations to be substantiated; and, if so, whether defendant took action to remedy
the harassment, and whether that response put an end to the harassment.
When allowing plaintiff an opportunity to brief the present issue more
thoroughly, this court specifically ordered that:
If plaintiff intends to offer any evidence of alleged harassment of other
employees and complaints about such harassment when this case is
rescheduled for trial, then . . . she must submit a brief describing in
detail (and providing specific citations to the record submitted at
summary judgment) each item of such evidence that she contends
should be admitted at trial, and, explaining why the probative value of
each such item of evidence is not substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury. See
Fed. R. Evid. 403.32
Plaintiff’s allegations regarding the existence of “two other sexual harassment
complaints that had been filed against Moody” without any elaboration about their
contents are not sufficient to permit the court to determine the relevance of those
complaints, or to compare their probative value to their potential for unfair prejudice.
31

Doc. no. 92 (Brief), at 7 (footnote omitted) (emphasis and alterations supplied).

32

Doc. no. 87 (Memorandum Opinion and Order), at 19 (italicized emphasis in original)
(boldface emphasis supplied).

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See Fed. R. Evid. 401, 403. Accordingly, this court will grant defendant’s request to
exclude that evidence.
C.

Evidence That Defendant Failed to Produce the Two Complaints of Sexual
Harassment Against Thomas Moody as Part of His Personnel File
That, however, is not the end of the discussion regarding the complaints of

sexual harassment allegedly lodged against Thomas Moody by two other employees.
Plaintiff also contends that she “will argue to the jury at trial that [the absence of the
complaints from Moody’s personnel file] represents intentional spoliation of evidence
and that [defendant] is intentionally covering up the unlawful conduct of its agents.”33
Plaintiff’s brief makes no mention of the fact that this court previously denied
plaintiff’s motion for discovery sanctions under Federal Rule of Civil Procedure 37(c)
based on the allegation that defendant failed to produce a “full and complete copy”
of the personnel files for Thomas Moody and Peter Austin, another employee of
defendant’s Florence Roadhouse, who allegedly engaged in sexual harassment.34 The
court reasoned that:

33

Id. at 7 n.5 (emphasis and alterations supplied). “Spoliation is the destruction or significant
alteration of evidence, or the failure to preserve property for another’s use as evidence in pending
or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779
(1999) (citing Black’s Law Dictionary 1401 (6th ed. 1990)); see also Black’s Law Dictionary 1401
(6th ed. 1991) (defining spoliation as “[t]he intentional destruction of evidence and when it is
established, fact finder may draw inference that evidence destroyed was unfavorable to party
responsible for its spoliation”).
34

See doc. no. 49 (Order Denying Motion for Sanctions).

14

Plaintiff has failed to present sufficient evidence to establish that
defendant has, or had, “possession, custody, or control” of any
documents from the personnel files of Moody or Austin, and failed to
produce those documents. While [former General Manager David]
Rodriguez did testify that a job application, testing materials, and
training materials appeared to be missing from Moody’s file, Rodriguez
did not testify that he had any knowledge of such items ever having been
located within Moody’s personnel file, or even existing. Similarly,
while Rodriguez testified that he believed he created a personnel
evaluation for Austin in 2009, he did not state that he had any
knowledge of that evaluation ever being placed in Austin’s personnel
file, or any knowledge of the current whereabouts of the evaluation.
Thus, based on the record before the court, the court must conclude that
defendant produced the entire personnel files for Moody and Austin.
Furthermore, while plaintiff has not alleged spoliation, defendant
would be subject to sanctions if it destroyed or significantly altered
evidence, i.e., engaged in spoliation. See Bashir v. Amtrak, 119 F.3d
929, 931 (11th Cir. 1997) (citing Vick v. Texas Employment
Commission, 514 F.2d 734, 737 (5th Cir. 1975)). However, plaintiff has
not presented any evidence to indicate that defendant destroyed any
responsive documents.35
Even so, the fact that a party does not introduce sufficient evidence to support
a finding of spoliation by a judge does not necessarily foreclose that party from
presenting evidence of the alleged spoliation to a jury. See United States v. Wise, 221
F.3d 140, 156-57 (5th Cir. 2000) (affirming a district court’s refusal to issue an
adverse jury instruction on the defendants’ spoliation argument, but allowing them
to present that argument to a jury); Bell Aerospace Services v. U.S. Aero Services, No.

35

Id. at 14 (footnote omitted) (emphasis and alteration supplied).

15

1:09-CV-141-MHT [WO], 2010 U.S. Dist. LEXIS 19879, *9 (M.D. Ala. Feb. 18,
2010) (“Nothing in this ruling [refusing the plaintiff’s request for spoliation
sanctions] prevents Plaintiff from presenting evidence and argument to a jury that the
reformatting of the laptop destroyed evidence and resulted in prejudice to the
Plaintiff. Plaintiff may let the jury make its own inference as to whether the evidence
on the laptop would have supported its claims.”) (alteration supplied).
As discussed in Section I(B), supra, however, plaintiff has provided no
meaningful information regarding the alleged sexual harassment complaints against
Thomas Moody, including, most importantly, the identity of the complainants and the
nature of their allegations. Accordingly, plaintiff has no basis for arguing to a jury
that defendant intentionally destroyed documents that she cannot identify by even
something so simple as the names of the alleged complainants.
Further, Federal Rule of Evidence 403 permits a court to “exclude relevant
evidence if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.”
Permitting plaintiff to present evidence that defendant failed to produce complaints
allegedly filed by unidentified complainants would unfairly prejudice defendant and
confuse the issues by inviting jurors to speculate regarding the complaints’ contents.
16

Accordingly, this court will grant defendant’s request to exclude that evidence.
II. CONCLUSION AND ORDER
For the reasons explained above, it is ORDERED that Ginger Thompson may
testify: that Moody sexually harassed her during her employment with defendant;
that, with the assistance of plaintiff, she submitted a formal sexual harassment
complaint to defendant; and that she requested that the complaint be placed in
Moody’s personnel file. Further, plaintiff may testify: that Thompson complained of
sexual harassment; and that plaintiff documented her complaint in writing on behalf
of defendant. Plaintiff may not testify that defendant received other complaints from
other, unnamed, unidentified employees alleging sexual harassment by Thomas
Moody, or that defendant failed to produce those harassment complaints as part of his
personnel file.
DONE and ORDERED this 24th day of May, 2013.

______________________________
United States District Judge

17