Arnold v. State Farm Fire and Casualty Company

Filing 55

ORDER denying 32 Motion for Section 1292(b) findings, certification of question, and reconsideration; granting 38 Motion for Leave to File Reply Brief. Signed by District Judge William H. Steele on 11/14/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ANNIE ARNOLD, etc.,
Plaintiff,
v.
STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant.

)
)
)
)
) CIVIL ACTION 17-0148-WS-C
)
)
)
)
)
ORDER

This matter is before the Court on the defendant’s motion for Section
1292(b) findings, certification of question, and reconsideration. (Doc. 32). The
parties have filed briefs in support of their respective positions, (Docs. 33, 37, 381, 47, 52),1 and the motion is ripe for resolution. After careful consideration, the
Court concludes the motion is due to be denied in its entirety.
BACKGROUND
This action was filed in state court and timely removed by the defendant.
According to the class action complaint, (Doc. 1-2 at 1-14), the plaintiff’s house
was insured by the defendant under a policy (“the Policy”) providing replacement
cost value (“RCV”) coverage. Payment on covered losses under such policies
proceeds in two stages. Initially, the defendant pays actual cash value (“ACV”),
which it calculates as the estimated cost of materials and labor required to
complete the removal of damaged materials and subsequent repairs, less
depreciation. The defendant pays the difference between ACV and RCV only if
the insured accomplishes the repairs, rebuilding or replacement of the damaged
property within a specific time frame and submits proof of same to the defendant.
1

The defendant’s motion for leave to file a reply brief, (Doc. 38), is granted.

The insured therefore must front repair/replacement costs exceeding the ACV
payment. In the plaintiff’s case, and as a rule, in calculating ACV the defendant
depreciates both materials and labor. The single claim presented is that the
defendant breached its contractual duty to pay ACV by unlawfully depreciating
labor costs.
The defendant moved to dismiss for lack of standing and for failure to state
a claim on which relief can be granted. (Doc. 10). As to standing, the defendant
argued generally that, because it had paid the plaintiff RCV, including her
undepreciated labor costs, before she filed suit, she had been made whole and thus
had no injury that this action could redress. Although the plaintiff seeks
prejudgment contractual interest on the amount of the withheld labor depreciation,
as provided by statute, the defendant argued the plaintiff could not satisfy the
elements for recovery of such interest. The Court ruled that the defendant’s
argument went not to standing but to the merits of the dispute and accordingly
held the plaintiff possesses standing. (Doc. 31 at 2-8).
As to failure to state a claim, the defendant argued on several grounds that
the undefined policy term “actual cash value” unambiguously encompasses
depreciation of labor. The Court addressed each of these grounds and determined
that, viewing the issue through the lens required by Alabama law, the defendant
had failed to demonstrate the correctness of its position. (Doc. 31 at 8-23).
I. Interlocutory Appeal.
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing
in such order.
28 U.S.C. § 1292(b). “[Section] 1292(b) certification is wholly discretionary with
both the district court and this Court.” OFS Fitel, LLC v. Epstein, Becker and
2

Green, P.C., 549 F.3d 1344, 1358 (11th Cir. 2008). “Furthermore, §1292(b) sets a
high threshold for certification to prevent piecemeal appeals,” and “[m]ost
interlocutory orders do not meet this test.” Id. at 1359.
A. Standing.
All agree that the first element of constitutional standing is “injury in fact,”
which requires the “invasion of a legally protected interest.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). Such an interest may be legally protected
by statute2 or by contract.3 Alabama law provides that [a]ll contracts … for the
payment of money … bear interest from the day such money … should have been
paid.” Ala. Code § 8-8-8. This term “is read into and becomes a part of the
insurance contract” and is thus “a contractual right.” Thomas v. Liberty National
Life Insurance Co., 368 So. 2d 254, 258 (Ala. 1979). The Court ruled that the
plaintiff thus had a legally protected interest, by statute and by contract, in
prejudgment interest. (Doc. 31 at 4-5).
The defendant argued (and argues) the plaintiff has no legally protected
interest in prejudgment interest because she cannot show that the day she “should
have been paid” undepreciated labor ever arrived. This argument proceeds along
the following lines. First, that the Policy provides that payment is due 60 days
after presentation of proof of loss and that the plaintiff never presented proof of
loss. Second, that even though the defendant’s actual payment of ACV (with
labor depreciated) would usually work a waiver of the proof-of-loss requirement,
no waiver occurred because (a) the Policy contains a no-waiver provision and (b)
the defendant did not realize its payment would work a waiver. (Doc. 31 at 5).
The defendant insisted (and insists) that its argument goes to standing and
not the merits, but the Court remains unpersuaded. As noted, the plaintiff’s right
2

Primera Iglesia Bautista Hispana, Inc. v. Broward County, 450 F.3d 1295, 1304
(11 Cir. 2006).
th

3

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005).
3

to prejudgment interest is by law embedded in the parties’ contract; what the
defendant argues is that, though the contract by law provides for prejudgment
interest, the plaintiff cannot recover such interest in this case because she did not
satisfy the contractual requirements for its recovery. The situation is thus no
different than that of any other insurer arguing that it owes its insured nothing
because she did not comply with conditions (such as presenting proof of loss)
expressed in the Policy. The insurer may be correct, but its assertion goes to the
merits of the parties’ dispute, not to whether the insured has any legally protected
interest.
As the Court noted in its order, (Doc. 31 at 6), “[s]tanding is a threshold
jurisdictional question which must be addressed prior to and independent of the
merits of a party’s claims.” Interface Kanner, LLC v. JP Morgan Chase Bank,
704 F.3d 927, 932 (11th Cir. 2013) (internal quotes omitted). The defendant
responds that, when “an element of standing overlap[s] with at least one essential
element of a plaintiff’s substantive claim,” a court can look at the factual
underpinnings of standing without running afoul of this rule. (Doc. 33 at 15). This
is correct but inapposite. The defendant’s insurmountable problem is that its
challenge goes exclusively to the merits and does not impact the predicate issue of
standing.
The defendant disagrees and cites Interface Kanner and Avenue CLO Fund
Ltd. v. Bank of America, 709 F.3d 1072 (11th Cir. 2013), as demonstrating, by
some unidentified “analog[y],” that its argument goes to standing. (Doc. 33 at 16).
In both these cases, the question was whether the plaintiff was a third party
beneficiary of the contract under which it sued. As noted, a legally protected
interest must flow from some source such as contract. A plaintiff that is neither a
party to the contract, a successor in interest to a party to the contract, nor a third
party beneficiary of the contract is in law a stranger to the contract and so can have

4

no legally protected interest in the contract.4 These cases are thus not analogous to
the instant case but rather highlight the chasm lying between them. The plaintiff
here is a party to the contract and thus has standing to pursue a claim for its
breach; whether she succeeds or fails depends on the merits of the dispute.
The defendant concludes that it “has demonstrated substantial ground for
disagreement with this Court’s conclusion that it should not reach [the
defendant’s] evidence and argument for its Rule 12(b)(1) motion.” (Doc. 33 at
16). The defendant’s argument and authorities, however, actually confirm the
Court’s previous ruling. Because the Court perceives no “substantial ground for
difference of opinion” as to its ruling on standing, the defendant’s motion for
interlocutory appeal of the standing issue is denied.
B. Failure to State a Claim.
Without apparent conviction, the defendant suggests in passing that the
Court should certify for interlocutory appeal the question whether the undefined
Policy term “actual cash value” unambiguously encompasses depreciation for
labor. (Doc. 33 at 17).
The plaintiff questions whether this represents a “controlling question of
law.” (Doc. 37 at 8). She notes that the Eleventh Circuit in McFarlin v. Conseco
Services, LLC, 381 F.3d 1251 (11th Cir. 2004), quoted with approval a Seventh
Circuit case concluding that a “question of law” under Section 1292(b) “‘has
reference to a question of the meaning of a statutory or constitutional provision,
regulation, or common law doctrine.’” Id. at 1258 (quoting Ahrenholz v. Board of
Trustees, 219 F.3d 674, 676 (7th Cir. 2000)). Ahrenholz, she notes, stated further
that “[w]e also think … that the question of the meaning of a contract, though
technically a question of law when there is no other evidence but the written
4

Bochese, 405 F.3d at 981 (“As a non-party, to sue to enforce the contract, [the
plaintiff] can only establish standing if he was an intended third-party beneficiary of the
rescinded agreement.”).

5

contract itself, is not what the framers of section 1292(b) had in mind, either.” 291
F.3d at 676. The McFarlin Court, however, did not acknowledge or embrace this
statement, and it is not clear the Eleventh Circuit would do so. See Technical
Coating Applicators, Inc. v. U.S. Fidelity and Guaranty Co., 157 F.3d 843, 844
(11th Cir. 1998) (appellate court accepted an interlocutory appeal under Section
1292(b) “to review the district judge’s determination that the absolute pollution
exclusion is ambiguous under Florida law”).
Assuming without deciding that the defendant presents a controlling
question of law, the Court finds no “substantial ground for difference of opinion.”
To satisfy this element, the defendant relies exclusively on Ware v. Metropolitan
Property and Casualty Insurance Co., 220 F. Supp. 3d 1288 (M.D. Ala. 2016).
(Doc. 33 at 17, 22-25). In Ware, unlike in this case, the policy defined “actual
cash value,” and the Ware Court ruled that this “policy language unambiguously”
contemplated depreciation of labor costs. Id. at 1289; accord id. at 1291. Because
“actual cash value” is not defined in the Policy, and because the Ware Court did
not address the matters this Court discussed in construing the undefined term, the
Court does not believe that Ware furnishes substantial ground for difference of
opinion as to the issue the Court decided. Accordingly, the defendant’s motion for
interlocutory appeal of the ACV issue is denied.
II. Certification to the Alabama Supreme Court.
Alabama procedure permits a federal court to certify to the Alabama
Supreme Court questions of state law “which are determinative of said cause and
[as to which] there are no clear and controlling precedents” from the state
Supreme Court. Ala. R. App. P. 18(a). The defendant, having lost its motion to
dismiss, now proposes that the Court certify the question whether a state insurance
regulation that was not incorporated into the Policy or referenced by the Policy
nevertheless supplies the governing definition of “actual cash value” so as to
render the undefined Policy term unambiguous and, if so, whether that regulatory
6

definition (which is silent on the matter) requires depreciation of labor as well as
materials. (Doc. 33 at 19).
“The decision whether to certify a question of state law to a state supreme
court is committed to this court’s discretion ….” Smigiel v. Aetna Casualty &
Surety Co., 785 F.2d 922, 924 (11th Cir. 1986). “In determining whether to
exercise our discretion in favor of certification, we consider many factors.” State
of Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274 (5th Cir. 1976). “The
most important are the closeness of the question and the existence of sufficient
sources of state law – statutes, judicial decisions, attorney general’s opinions – to
allow a principled rather than conjectural conclusion.” Id. at 275. “But also to be
considered is the degree to which considerations of comity are relevant in light of
the particular issue and case to be decided,” which includes “the likelihood of the
recurrence of the particular legal issue.” Id. & n.29. “And we must also take into
account practical limitations of the certification process: significant delay and
possible inability to frame the issue so as to produce a helpful response on the part
of the state court.” Id. at 275.
Other factors merit consideration as well. Because Rule 18(a) limits
certification to questions that are “determinative of said cause,” certification is
inappropriate if the question “would not be dispositive.” Harrison v. Jones, 880
F.2d 1279, 1283 n.4 (11th Cir. 1989). It must also be remembered that “state
courts, like their federal counterparts, are busy institutions, with their own
caseloads to manage,” Escareno v. Noltina Crucible and Refractory Corp., 139
F.3d 1456, 1461 (11th Cir. 1998), and unnecessary certified questions – whether
accepted or declined by the state court – can burden an already heavily loaded
state system. Finally, “[i]n addition to the usual considerations,” a federal court
should consider “an amazing irony[:] [the defendant], which now prays for an
opinion from a[n] [Alabama] court, … remove[d] the case from the jurisdiction of
the state courts.” Smigiel, 785 F.2d at 924.

7

The bottom line is that “federal litigants have no right to insist upon
certification,” even as to “difficult or uncertain questions of state law,” and the
federal courts “will continue to exercise discretion and restraint in deciding to
certify questions to state courts.” Escareno, 139 F.3d at 1461.
The defendant, ignoring these authorities, suggests that certification should
be employed whenever there is “any doubt as to the application of state law.”
(Doc. 33 at 18). The Eleventh Circuit did employ such language in Mosher v.
Speedstar Division of AMCA International, Inc., 52 F.3d 913, 916-17 (11th Cir.
1995), and a number of appellate decisions have repeated that language since,
citing only Mosher. E.g., CSX Transportation, Inc. v. City of Garden City, 325
F.3d 1236, 1239 (11th Cir. 2003).
The Court does not believe the “any doubt” standard can be taken at face
value. First, several subsequent opinions, describing Mosher, have emended the
qualifier “any” to the more restrictive “significant” or “substantial.” E.g., Flo &
Eddie, Inc. v. Sirius XM Radio, Inc., 827 F.3d 1016, 1025 (11th Cir. 2016);
Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996); see also
Ruderman ex rel. Schwartz v. Washington National Insurance Corp., 671 F.3d
1208, 1212 (11th Cir. 2012) (reading “any doubt” as “truly debatable”).
Second, other appellate opinions have been more direct in their questioning
of Mosher. The Escareno Court, for example, quoted Mosher but continued to:
(1) “underscore … the rule that certification of state law questions is a matter of
discretion,” even when doubt as to state law exists, as per Supreme Court
precedent; (2) note that “[w]e sometimes will decide a question of state law, even
when there is doubt as to how a state court would resolve the issue”; (3) point out
that “[o]n many occasions this court has resolved difficult or uncertain questions
of state law without recourse to certification”; and (4) upheld “our practice to
[certify questions] with restraint and only after the consideration of a number of
factors,” specifically, those identified in Shevin. 139 F.3d at 1460-61.

8

Third, the only authority cited by the Mosher panel in support of an “any
doubt” standard was Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th Cir.
1986) (en banc). The Court is unable to locate in Jackson either that language or
any language suggesting such a standard for certification.
Fourth, under the “prior panel precedent” rule, “a prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or undermined to
the point of abrogation by the Supreme Court or by this court sitting en banc.”
United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010). The Shevin standard
predates the Mosher formulation by almost 20 years and, to the extent it
constitutes holding, it could not be undone by Mosher. Even if Shevin issued no
holding as to how to resolve a certification issue, the Court will not lightly infer
that the Eleventh Circuit has abandoned it, especially since post-Mosher decisions
continue to rely on the same considerations. E.g., Hammonds v. Commissioner,
Department of Corrections, 822 F.3d 1201, 1208 (11th Cir. 2016); Royal Capital
Development, LC v. Maryland Casualty Co., 659 F.3d 1050, 1055 (11th Cir. 2011);
Jennings v. BIC Corp., 181 F.3d 1250, 1254 n.2 (11th Cir. 1999).
The defendant raised its regulatory argument in its motion to dismiss. The
argument is no stronger now than it was then. An unbroken line of Alabama cases
requires that undefined terms in an insurance policy be given their common,
everyday meaning and be interpreted as a reasonable insured would have
understood them. Expressly forbidden is defining undefined policy terms based
on technical or legal definitions. (Doc. 31 at 9). In the face of this clear and direct
precedent, the defendant offers three cases that, for reasons thoroughly explored in
the Court’s order, (id. at 11-12), provide no truly colorable support for its position.
The defendant insists “there is no Alabama authority holding that an
insured reasonably may interpret an insurance policy term in a manner that
contradicts the definition supplied by Alabama’s insurance statutes and/or
regulations.” (Doc. 33 at 21). This appears to be correct, but it misses the point.
What the Court considers are “the closeness of the question” and “the existence of
9

sufficient sources of state law … to allow a principled rather than conjectural
conclusion.” Shevin, 526 F.2d at 275. Alabama law is clear as to what may and
may not be considered in pouring content into an undefined policy term, and legal
definitions not mentioned by the policy fall outside the permissible range. While
it is presumably possible the Alabama Supreme Court could create an exception
for legal definitions that are contained in insurance statutes or regulations and
unknown to insureds – thereby thwarting their reasonable understanding based on
the undefined and ambiguous policy language voluntarily employed by the insurer
– nothing presented by the defendant suggests the possibility is more than merely
theoretical.5 The question is not close, and Alabama precedent is sufficient to
allow a principled conclusion that no such exception would be created.
The defendant attempts to bolster its position by arguing that considerations
of efficiency in this action, recurrence of the issue in other actions, and the
decision by sister courts in other Circuits to certify similar issues, justify
certification here. (Doc. 33 at 25-28). By the defendant’s admission, efficiency
could be served only if the defendant were to prevail in state court. (Id. at 25).
Otherwise, the progress of this action would be delayed by months for a
certification decision and perhaps much longer were certification granted. Given
5

A brief survey of Alabama cases indicates that the primary purpose of regulating
the insurance industry is to protect insureds. See, e.g., Ex parte Connecticut Mutual Life
Insurance Co., 703 So. 2d 929, 931 (Ala. 1997) (replacement life insurance); Custard
Insurance Adjusters, Inc. v. Youngblood, 686 So. 2d 211, 215 (Ala. 1996) (regulation of
insurance business); Aetna Casualty & Surety Co. v. Turner, 662 So. 2d 237, 239 (Ala.
1995) (uninsured motorist coverage); Hyde v. Humana Insurance Co., 598 So. 2d 876,
879 (Ala. 1992) (exclusion from policy of any insurer constituent document not fully set
forth in the policy); United Bonding Insurance Co. v. W.S. Newell, Inc., 232 So. 2d 616,
621 (Ala. 1969) (countersigning by resident agents). What the defendant proposes is the
exact opposite – using an insurance regulation to deny an insured the benefit of the
ambiguous policy language its insurer elected to use. The defendant has yet to articulate
any plausible justification for this contortion.
The defendant asserts that Ware supports certification. (Doc. 33 at 24-25). The
Ware Court, however, neither mentioned nor relied on any regulatory definition and so
fails to suggest the Alabama Supreme Court might buy the defendant’s theory.

10

the apparent unlikelihood of the defendant’s success in state court, such a delay
actually weighs against certification. Shevin, 526 F.2d at 275.
The defendant says the issue could recur because “at least some” Alabama
insurers calculate ACV as it does, without defining “actual cash value” in the
policy. (Id. at 26). The defendant provides neither evidence nor quantification of
this assertion, but the Court assumes for argument that the issue could arise in a
lawsuit involving another insurer. While “the likelihood of the recurrence of the
particular legal issue” is “also to be considered,” Shevin, 426 F.2d at 275 & n.29,
the “most important” considerations are the closeness of the question and the
existence of adequate legal sources to render a principled decision. Id. at 275.
Thus, the possibility of recurrence does not outweigh the weakness of the
underlying legal argument. Moreover, the “amazing irony” that the defendant
now insists on the Alabama forum it spurned by removing this action counsels
further against certification. Smigiel, 785 F.2d at 924. Finally, that sister courts
are split on whether to certify (different) questions regarding ACV and labor
depreciation, (Doc. 33 at 27),6 says nothing about the propriety of certification in
this Circuit or in this case.
For the reasons set forth above, the defendant’s motion for certification is
denied.
III. Reconsideration.
The defendant challenges the Court’s treatment of Ballard v. Lee, 671 So.
2d 1368 (Ala. 1995). In opposition to the defendant’s motion to dismiss, the
plaintiff described Ballard as holding that an insurer’s usage of the undefined term
“actual cash value” as meaning replacement cost minus depreciation could support
a fraud claim because this definition of the term deviated from its accepted
6

None of those cases involved an argument that an insurance regulation imposed
on the undefined policy term “actual cash value” a meaning contrary to a reasonable
meaning of the term, favorable to the insured, that would otherwise apply.
11

everyday meaning. (Doc. 15 at 31). The defendant acknowledged that, per
Ballard, the ordinary meaning of ACV is “market value,” but it dismissed Ballard
as superseded by the regulation discussed in Part II. (Doc. 27 at 12).
The Court discussed Ballard in more detail than had the parties and
concluded that the Alabama Supreme Court “ruled that th[e] evidence shows that
the term ‘actual cash value’ has an accepted everyday meaning … that does not
envision any reduction for depreciation.” (Doc. 31 at 10 (internal quotes
omitted)). The defendant objects to this ruling as constituting a manifest error of
law. (Doc. 33 at 29).
The grant or denial of a motion to reconsider is left to the discretion of the
trial court. Chapman v. AI Transport, 229 F.3d 1012, 1023024 (11th Cir. 2000) (en
banc). Such a motion may not be used as a vehicle to inject new arguments into
the underlying motion, or to submit evidence previously available but not properly
presented on the underlying motion. Mays v. United States Postal Service, 122
F.3d 43, 46 (11th Cir. 1997). Nor may it be used to “relitigate old matters.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (internal
quotes omitted). Instead, “[a] motion to reconsider is only available when a party
presents the court with evidence of an intervening change in controlling law, the
availability of new evidence, or the need to correct clear error or manifest
injustice.” Gibson v. Mattox, 511 F. Supp. 2d 1182, 1185 (S.D. 2007) (internal
quotes omitted).7
The defendant claims manifest error of law, but the Court is unpersuaded.
The defendant argues that the everyday meaning of “actual cash value” recognized
by the Ballard Court is “market value,” and the Court assumes for present

7

These rules apply to pre-judgment motions to reconsider as fully as they do to
post-judgment motions under Rule 59. E.g., Georgia-Pacific Consumer Products LP v.
Zurich American Insurance Co., 2016 WL 5853728 at *1 n.1 (S.D. Ala. 2016).

12

purposes that this is a fair approximation.8 The defendant continues that the
“market value” of a thing necessarily incorporates all factors relevant to its value,
including its age and condition (which it considers to correspond to depreciation),
and the Court for now indulges that assumption as well. Nothing in Ballard,
however, suggests that the everyday meaning of “market value” is what a willing
buyer would pay a willing seller considering the age and condition of the property,
minus some depreciation factor.
It was this application of depreciation to which the plaintiff in Ballard
objected. In deciding whether it was willing to insure the property, the defendant
calculated its fair market value, which took depreciation into consideration. That
figure exceeded policy limits. Since the market value of the property exceeded
policy limits, the plaintiff understandably expected he would be paid policy limits
when the building burned. Instead, the defendant subtracted further depreciation,
which resulted in payment below market value and below policy limits. 671 So.
2d at 1374.
What the Court said in discussing Ballard is that a person without
specialized knowledge could reasonably understand “actual cash value” to mean
something like “fair market value” and could reasonably understand that
depreciation is not deducted from fair market value. The defendant has not shown
that proposition to be manifestly incorrect.
The defendant appears to believe the Court ruled that the ordinary meaning
of fair market value does not contemplate consideration of age and
condition/depreciation in establishing fair market value. The Court did not so
8

The plaintiff understood “actual cash value” to mean “the amount of money that
the property could reasonably be sold for in the marketplace.” Other witnesses described
the everyday meaning of the term as “the amount of money that [the insured’s] property
was worth when it burned,” “fair market value,” and “the value of something … for
cash.” 671 So. 2d at 1374. The Ballard Court concluded the evidence showed the term
“has an accepted everyday meaning,” but it did not express that meaning. Id. at 1375.
The Court concluded that the everyday meaning acknowledged by the Ballard Court was
“roughly fair market value.” (Doc. 31 at 10).
13

rule; instead, it ruled that the ordinary meaning of fair market value does not
contemplate subtracting depreciation from an established fair market value.
Nor could reconsideration alter the result of the defendant’s motion to
dismiss. That motion failed because the defendant failed to sustain its burden of
showing that the undefined term “actual cash value” unambiguously contemplates
depreciation of labor costs. (Doc. 31 at 23). That failure would remain intact even
were the Court to reconsider its discussion of Ballard; the defendant does not
argue otherwise. (Doc. 33 at 31-32).
For the reasons set forth above, the defendant’s motion for reconsideration
is denied.
DONE and ORDERED this 14th day of November, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

14