Robert Cardenas v. United States of America et al

Filing 116

MEMORANDUM AND OPINION by Magistrate Judge Andrew J. Wistrich: Based on the foregoing findings of fact and conclusions of law, the court concludes that plaintiff was negligent, Ms. Slaughter was not negligent, plaintiff's negligence was the sole cause of the collision, and plaintiff is entirely responsible for any injuries and other losses resulting from the collision. Therefore, defendant is entitled to judgment on the merits. (See document for further details.) (jsan)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ROBERT CARDENAS,

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Plaintiff,
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v.
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UNITED STATES OF AMERICA,
et al.,

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Defendants.

Case No. CV 14-4904 (AJW)
MEMORANDUM OF DECISION

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The court has considered the testimony and exhibits admitted into

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evidence during the non-jury trial, the parties’ proposed findings of

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fact and conclusions of law, and the closing arguments of counsel.

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With that as its basis, the court makes the following ruling.

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Findings of Fact
1.

Plaintiff

Robert

Cardenas

was

born

on

April

26,

1951

[Reporter’s Transcript of Proceedings (“RT”) 579:16-20].
2.

From 1972-1982, plaintiff worked for his sister at her Burnt

Tortilla restaurant. [RT 376:8-377:8]
3.

In 1992, plaintiff started working as a letter carrier for

the United States Postal Service (“USPS”) at the Redondo Beach Post
Office.

[RT 580:23-581:13]

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4.

from work after injuring his shoulder and wrist while delivering mail.
[RT 580:23-581:13; Pl. Depo. 47:4, 7-91]

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5.

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6.

7.

8.

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9.

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Plaintiff was traveling westbound on West Redondo Beach

90247 (the “Gardena Post

Plaintiff was driving a 1993 Honda Accord. [AF 5(b); RT

Ms. Slaughter has been a USPS employee since 1990.

At the time of the collision, Ms. Slaughter was a letter

10.

Ms. Slaughter was acting within the course and scope of her

employment at the time of the collision. [AF 5(f)]
Ms. Slaughter was familiar with the Gardena Post Office

location and its vicinity. She had worked as a letter carrier at the
Gardena Post Office and had resided in a nearby neighborhood for about
twenty years.
12.

[RT 468:1-16]

On July 2, 2012, Ms. Slaughter was driving a Grumman Long

Life Vehicle (LLV) (the “postal truck”), a standard postal truck used
by letter carriers to deliver USPS mail.

[AF 5(c); RT 466:5-14]

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[RT

carrier working at the Gardena Post Office. [RT 465:5-7, 465:11-16]

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Susan

464:23-465:4]

11.

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and

97:4-16]

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vehicle

Office”). [AF 5(a), 5(d); RT 584:6-16, 467:4-6]

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plaintiff’s

Redondo Beach Boulevard, Gardena, CA

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between

Boulevard near the United States Post Office located at 1455 West

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collision

p.m. [Dkt. No. 54, Admitted Facts (“AF”) 5(a)]

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The

Slaughter’s vehicle occurred on July 2, 2012, at approximately 5:00

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Since 2011, Plaintiff has been on extended medical leave

“P1. Depo.” refers to designated portions of plaintiff’s
deposition. [Dkt. No. 81]
2

The

1

driver of an LLV sits on the right side.

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Normandie Avenue (to the east). [Trial Exhibit (“Ex.”) 106-2; RT
467:7-18]
14.

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parking lot for the Gardena Post Office, not the employee’s parking
lot for the post office. [RT 585:8-20]
16.

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between

plaintiff’s

vehicle

and

Ms.

[RT 466:18-467:3, 478:22-

479:2; Ex. 104-1, 104-3]
17.

The section of West Redondo Beach Boulevard near the Gardena

Post Office is lined with strip malls and businesses.

[RT 39:10-24,

467:22-25]
18.

The strip mall immediately east of the Gardena Post Office

(“the strip mall”) includes the Burnt Tortilla restaurant.

[Ex. 104-

1, 104-4]

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collision

parking lot of the Gardena Post Office.

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The

Slaughter’s vehicle occurred in the driveway leading to the employees’

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[Ex. 104-1]

15. Plaintiff intended to make a right turn into the public

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The employees’ driveway is east of the driveway leading to

the public parking lot of the Gardena Post Office.

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The Gardena Post Office is on the north side of West Redondo

Beach Boulevard, between cross-streets Nuano Drive (to the west) and

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[RT 577:15-17]

19.

The driveway allowing traffic to enter and exit the strip

mall from West Redondo Beach Boulevard is located approximately 90
feet

east

of

the

Gardena

Post

Office

employees’

approximately 140 feet east of the public driveway.

driveway

and

[Ex. 104-4; RT

23:15-17, 95:12-17]
20.

The portion of West Redondo Beach Boulevard in front of the

Gardena Post Office is heavily traveled and the traffic is often slow

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moving.

639:23-640:7; Pl. Depo. 168:10-12]

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21.

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lanes.

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Avenue that the third lane ends.
23.

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Redondo

Beach

Boulevard

contains

three

[Exs. 104-8, 106-2, 109-39]

In front of the Gardena Post Office, a designated left-turn

pocket lane on eastbound West Redondo Beach Boulevard enables traffic
to turn left into the public and employee driveways.
25.

[Ex. 104-2]

In front of the Gardena Post Office, there are two marked

lanes of westbound traffic on West Redondo Beach Boulevard.

[RT

39:25-40:11] Those lanes are paved in dark asphalt and are divided by
a single lane of raised ceramic lane dividers. [Ex. 104-1; RT 39:2540:11]
26.

Between the strip mall and the entrance to the public

parking lot of the Gardena Post Office, there are only two marked
lanes of westbound traffic on West Redondo Beach Boulevard. [RT 40:341:5; Declaration of Eric Deyerl (“Deyerl Decl.”) ¶¶ 89-94]

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West

indicating that the third lane ends.

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Westbound

[Ex. 106-2]

painted pavement arrows just west of the Normandie Avenue intersection

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Two graphical lane-ending signs indicate to drivers on

westbound West Redondo Beach Boulevard both east and west of Normandie

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[Ex. 106]

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As westbound traffic on West Redondo Beach Boulevard crosses

Normandie Avenue, the three marked westbound lanes narrow to only two

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[Ex. 104-9; RT 33:5-9, 34:7-18, 268:12-18, 318:23-319:9,

27. For the entire path of travel taken by plaintiff’s vehicle
(approximately 70-80 feet) along West Redondo Beach Boulevard, there
are only two marked lanes of westbound traffic. [Deyerl Decl. ¶¶ 76,
93]

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28.

94; Ex. 106-2]

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lane.”

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to pass stopped traffic on the right.
31.

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Prior

to

the

collision,

Ms.

Slaughter

was

traveling

eastbound on West Redondo Beach Boulevard in order to return to the
Gardena Post Office after completing her work shift.

[RT 452:25-

453:2]
32.

Ms. Slaughter turned on her left-turn signal and entered the

designated left-turn pocket lane on eastbound West Redondo Beach
Boulevard in front of the Gardena Post Office.

[Ex. 104-2; RT 34:7-

18, 41:25-42:6, 454:8-10, 469:2-9]

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In any event, plaintiff did not use the paved shoulder as a

merge lane to enter the two marked lanes; instead, plaintiff used it

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There are no marked lane dividers for the purported “merger

[RT 92:15-23]

30.

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No third lane or “merger lane” existed. [Deyerl Decl. ¶¶ 89-

33.

Ms. Slaughter came to a complete stop and waited for an

opportunity to make a left turn. [RT 454:6-10] She yielded to oncoming
westbound traffic in the two marked lanes. [RT 460:1-16, 454:1-7] Her
left-turn signal remained on after she entered the left-turn pocket
lane.

[RT 470:2-7]
34.

After about five minutes, during which Ms. Slaughter’s

vehicle was waiting in the left-turn pocket lane, the vehicles in the
two marked lanes of westbound West Redondo Beach Boulevard stopped
because of a red light at Nuano Drive. [RT 454:11-17, 469:20-470:1]
The vehicles yielded, providing a gap for Ms. Slaughter to make her
left turn into the employees’ driveway.
35.

[RT 470:13-15]

When making a left turn, Ms. Slaughter would check oncoming

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traffic to make sure it was safe to do so. [RT 457:22-458:4]

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along the paved shoulder plaintiff was using at the time of the
collision. [RT 456:11-25, 457:22-458:4]

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lot,

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traffic,

including

any

[RT 457:16-459:12]

During her turn, Ms. Slaughter continued to look to her
[RT 470:16-21]

Due to her high-seated position on the right side of the

770:12]
40. Ms. Slaughter did not see plaintiff’s vehicle or any other
vehicle traveling in the paved shoulder before the collision.

[RT

471:15-20]
41.

During her left turn, Ms. Slaughter was traveling between

five to ten miles per hour. [RT 460:9-10] She slowed to approximately
five miles per hour while entering the employee’s driveway. [RT 34:718, 459:13-460:8]
42.

As Ms. Slaughter was completing her left turn, plaintiff

passed the yielding two lanes of traffic on the right.

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oncoming

shoulder as she turned left. [RT 470:22-471:14, 764:10-765:21, 769:13-

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for

postal truck, Ms. Slaughter had an unobstructed view of the paved

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looked

right at the yielding traffic.

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Slaughter

and the two marked lanes of traffic.

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Ms.

Prior to making her left turn into the employee’s parking

potential vehicles driving along the paved shoulder between the curb

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Before the incident, Ms. Slaughter had seen vehicles driving

43.
truck

Plaintiff’s vehicle struck the right side of the postal

behind the door, in front of the rear wheel well, close to the

rear tire.
44.

[RT 34:7-35:14, 43:12-25, 471:22-472:10, 473:9-11]
Plaintiff reported to his psychotherapist that his vehicle

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collided with the postal truck near its back wheel.
45.

[RT 920:5-13]

The front wheels of the postal truck had already entered the

ramp of the employees’ driveway when plaintiff’s car collided with it.
[RT 471:21-25, 473:12-14, 480:7-14, 587:22-25; Ex. 104-3]
46.

The postal truck’s rear wheels were in the paved shoulder,

outside the two marked lanes of traffic, when the collision occurred.
[RT 587:22-25]
47.

At the time of the collision, plaintiff’s vehicle was in the

paved shoulder – the lighter-colored concrete gutter area close to the
north curb, outside of and to the right of the two marked lanes of
traffic, which were paved in darker asphalt.

[RT 473:4-11, 480:1-6;

Ex. 104-3]
48.

Ms. Slaughter heard a single impact or thud. [RT 472:23-24]

The impact was not sufficiently forceful to cause either the postal
truck or the empty mail trays within the postal truck to move.

[RT

472:11-22].
49.

Plaintiff traveled at speeds of up to 25 miles per hour

while driving on the paved shoulder. [RT 552:1-9, 654:3-15, 654:12-15]
50.

Immediately before the collision, plaintiff saw a large

truck to his left in lane two.
51.

[RT 653:14-24]

Plaintiff understood that there were only two lanes of

westbound travel on West Redondo Beach Boulevard after Normandie
Avenue. [RT 159:1-16, 160:6-8]
52.

Plaintiff did not look for traffic coming from the left-turn

pocket lane on eastbound West Redondo Beach Boulevard in front of the
Gardena Post Office.
53.

[Pl. Depo. 171:2-10]

The stopped traffic in the two westbound lanes should have

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alerted plaintiff to check for cross traffic but he neglected to do
so. [Deyerl Decl. ¶ 86]
54.

Plaintiff had traveled 70-80 feet in the paved shoulder

before colliding with Ms. Slaughter’s Postal truck.
55.

[RT 95:12-17]

Plaintiff was wearing a post-surgery “clamshell” brace on

his wrist at the time of the collision.

[RT 474:19-22, 589:7-23; Pl.

Depo. 182:21-23] The brace restricted his movement to the extent that
he “couldn’t wiggle” his thumb and his “whole wrist was immobilized.”
[Pl. Depo. 133:21-134:20]
56.

Dr. Ronald Goldstein, the orthopedic hand surgeon who had

performed a wrist surgery on plaintiff a few months before the
collision, told plaintiff not to drive while wearing the brace.

[RT

173:12-21]
57.

Prior to the collision, plaintiff was taking prescription

medications including Norco, Wellbutrin, Trazadone, and Ativan, among
others.

[Ex. 120-5, 120-6; RT 549:19-24, 550:10-18, 550:24-511:12,

167:25-168:20]
58.

After surgery, Dr. Goldstein prescribed Norco, an opioid, to

relieve plaintiff’s wrist pain.
59.

[RT 167:1-168:20]

Dr. Goldstein instructs all his patients that they should

not drive while under the influence of narcotics.
60.

Norco

is

a

prescription

drug

that

[RT 171:15-20]
is

accompanied

by

manufacturer’s warnings against operating heavy machinery, including
motor vehicles, while taking the drug. [RT 816:10-25]
61.

Plaintiff admitted to his primary care physician that he had

been taking five pills of Norco a day for his chronic pain just prior
to the collision.

[RT 554:4-17]

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62.

According to plaintiff’s physician, five pills of Norco a

day is a “high dosage.”
63.

Plaintiff had taken Norco on the day of the collision.

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[RT

589:24-590:11]
64.

Plaintiff could have avoided the collision if he had checked

for cross-traffic and refrained from passing the two lanes of stopped
traffic on the right.
65.

[Deyerl Decl. ¶¶ 83-88]

Ms. Slaughter is credible. Plaintiff is not credible. In

general, plaintiff is an “unreliable historian.”

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[RT 558:6-11]

Conclusions of Law
1.

The Federal Tort Claims Act (“FTCA”) allows recovery for

negligent or wrongful act of a government employee acting within the
scope of his or her employment “under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1); see Dalehite v. United States, 346
U.S. 15 (1953).
2.

California law governs this action. Molzof v. United States,

502 U.S. 301, 305 (1992); 28 U.S.C. §§ 1346(b), 2674.
3.

To

prove

a

negligence

claim

under

California

law,

a

plaintiff must show: “(a) a legal duty to use due care; (b) a breach
of such legal duty; [and] (c) the breach [w]as the proximate or legal
cause of the resulting injury.” Ladd v. County of San Mateo, 12 Cal.
4th 913, 917 (1996)(quoting Evan F. v. Hughson United Methodist
Church, 8 Cal. Ap. 4th 828, 834 (1992)); Peter W. v. San Francisco
Unified School District, 60 Cal.App.3d 814, 820 (1976) (“According to
the familiar California formula, the allegations requisite to a cause

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of action for negligence are (1) facts showing a duty of care in the
defendant, (2) negligence constituting a breach of the duty, and (3)
injury to the plaintiff as a proximate result”); see Judicial Council
of California, Civil Jury Instructions (2016) (“CACI”) 400.
4.

“Every one is responsible, not only for the result of his

willful acts, but also for an injury occasioned to another by his want
of ordinary care or skill in the management of his property or
person.”
5.

Cal. Civ. C. § 1714; see CACI 401.
“A driver must exercise the degree of care and caution that

an ordinarily careful and prudent person, acting in same or similar
circumstances, would exercise.” Sedie v. United States, 2010 WL
1644252, at *11 (N.D. Cal. Apr. 21, 2010)(citing Sills v. Forbes, 33
Cal.App.2d 219, 227 (1939)). “[A driver is] under a duty, both by
statute and common law, to operate his vehicle without negligence so
as to abstain from injuring any other person or his property.” Bewley
v. Riggs, 262 Cal.App.2d 188, 194 (1968); see CACI 700.
6.

Section

21801(a) of the California Vehicle Code explains a

driver’s duty in executing a left-hand turn:
The driver of a vehicle intending to turn to the left or to
complete a U-turn upon a highway, or to turn left into
public or private property, or an alley, shall yield the
right-of-way to all vehicles approaching from the opposite
direction which are close enough to constitute a hazard at
any time during the turning movement, and shall continue to
yield the right-of-way to the approaching vehicles until the
left turn or U-turn can be made with reasonable safety.
See CACI 705.

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7.

left-turning driver in front of them has properly executed a left-hand
turn:

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A driver having yielded as prescribed in subdivision (a),

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and having given a signal when and as required by this code,

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may turn left or complete a U-turn, and the drivers of

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vehicles approaching the intersection or the entrance to the

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property or alley from the opposite direction shall yield

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Section 21801 (b) requires oncoming drivers to yield when a

the right-of-way to the turning vehicle.
See Ball v. United States, 191 F. Supp. 467, 468 (N.D. Cal. 1961)
(“[T]he driver turning left, having so yielded, may then make his
turn and all other vehicles approaching from the opposite direction
shall yield the right of way to him. Clearly, the driver turning
left need not yield the right of way to all through motorists; under
certain conditions they must yield to him.”).
8.

Plaintiff relies on subsection (a) of the California Vehicle

Code § 21801, which is fair, because subsection (a) is applicable.
But plaintiff ignores subsection (b).

Subsection (b) indicates that

once a turning driver has complied with subsection (a), as Ms.
Slaughter did, then plaintiff was obliged to yield.

By failing to do

so, plaintiff violated § 21801(b).
9.

That Ms. Slaughter checked the paved shoulder for vehicles

– but did not see plaintiff’s vehicle – is evidence of caution, not
carelessness. The most likely explanation as to why Ms. Slaughter did
not see plaintiff’s vehicle was that it was still in the strip mall
driveway or otherwise far from her planned path of travel until she
had completed her turn and slowed to begin to enter the driveway of

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the employee parking lot.
10.

A driver is not required to anticipate danger which occurs

as a result of another driver violating the law: “every person has a
right to presume that every other person will perform his duty and
obey the law, and in the absence of reasonable ground to think
otherwise it is not negligence to assume that he is not exposed to
danger which comes to him only from violation of law or duty by such
other person.” Dickinson v. Pac. Greyhound Lines, 131 P.2d 401, 402
(Cal. App. 1942); see also Leblanc v. Cloverdale, 3 P.2d 312, 313
(1931)(a driver has the right to assume that the driver of the other
car will obey the law, slow down, and yield the right of way).
11.

That others sometimes drive on the paved shoulder where

plaintiff chose to pass the stopped traffic on the right neither
justifies nor excuses plaintiff’s behavior.

People often exceed the

speed limit, run red lights, drive under the influence of alcohol,
etc., but that does not justify others in doing so.

Nor does it

require law abiding drivers to anticipate that other drivers will
drive in an unsafe, unlawful, or reckless manner.
12.

See CACI 411.

A left-turning driver is not liable “[i]f another driver, by

reason of his violation of a statutory provision, or by reason of
other negligent conduct, collides with him.” Washam v. Peerless
Automatic Staple Mach. Co., 45 Cal. App. 2d 174, 178 (1941).
13.

Ms. Slaughter was not negligent and did not breach the duty

of care in executing her left-hand turn.
14.

By contrast, plaintiff was negligent and breached the duty

of care in several respects.
15.

First, plaintiff breached the duty of care when he failed to

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yield the right of way.

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16.

“Where a car has actually entered an intersection [or the

entrance to the property] before the other approaches it, the driver
of the first car has the right to assume that he will be given the
right of way and be permitted to pass through the intersection without
danger of collision.

He has a right to assume that the driver of the

other car will obey the law, slow down, and yield the right of way, if
slowing down be necessary to prevent a collision.” Leblanc, 3 P.2d at
13.
17.

Ms. Slaughter was in the intersection and in the process of

completing her left turn, before plaintiff’s vehicle approached. Two
lanes

of

vehicles

had

yielded

to

her,

but

plaintiff’s

vehicle

inexplicably did not.
18.

Second, plaintiff breached the duty of care when he failed

to keep a lookout for cross-traffic.
19. “All drivers of vehicles on a public highway are required by
law to keep a vigilant lookout ahead so as to avoid, if reasonably
possible, a collision with any other vehicle or person lawfully upon
such highway. Failure to keep such lookout, or failure to see that
which may be readily seen, if the driver is looking would constitute
negligence as a matter of law.” Huetter v. Andrews, 91 Cal. App. 2d
142, 146 (1949); see CACI 700.
20.

The

California

Driver’s

Handbook

advises

against

what

plaintiff did in this case: “Before you pass, look ahead for road
conditions and traffic that may cause other vehicles to move into your
lane.” [Ex. 109-45]
21.

Plaintiff breached the duty of care when, in heavy traffic,

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including a large truck partly blocking his view to his left, he
failed to keep a proper look out, and failed to put himself in a
position to determine if an oncoming vehicle turning left had the
right of way.
22.

Third, plaintiff breached the duty of care by passing

slower-moving traffic “upon the right” when the road conditions made
it unsafe to do so.
23. “The driver of a vehicle may overtake and pass another
vehicle upon the right only under conditions permitting that movement
in safety. In no event shall that movement be made by driving off the
paved or main-traveled portion of the roadway.” Cal. Veh. C. § 21755.
24. Passing on the right is prohibited regardless of whether the
passing vehicle began the maneuver from a marked lane or from the
shoulder. Opinion No. 59-230, 35 Ops. Cal. Atty. Gen. 39, 41, 1960
Cal. AG Lexis 14 (February 8, 1960)(“[T]his section prohibits the
passing of a vehicle on the right by traveling on the shoulder or off
the main-traveled portion of the roadway, regardless of whether the
passing vehicle left the main-traveled portion of the roadway to reach
the shoulder in passing, or was already present there.”)(interpreting
Cal. Veh. C. § 21755).
25.

When a driver passes traffic and thereafter strikes a

vehicle making a legal left-hand turn in front of him, he is negligent
per se and liable for all injuries sustained by the driver and
passengers in the vehicle making the left-turn. See Hickson v. Beitel,
103 Cal. App. 2d 391, 392, (1951) (holding that where a driver passed
a stopped car on the right, and a collision immediately ensued with a
driver making a left-hand turn, the violation against passing traffic

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upon

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21

vehicles

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27.

27

v.

Wattier,

51

at

crossroads,

railroad

crossings,

and

shopping

center

Fourth, plaintiff breached the duty of care when he drove in

the paved shoulder or concrete gutter alongside West Redondo Beach
Boulevard, outside the marked lanes of traffic.
28.

The Vehicle Code expressly prohibits plaintiff’s chosen path

of travel: “In no event shall that movement [passing traffic upon the
right] be made by driving off the paved or main-traveled portion of
the roadway.” Cal. Veh. C. § 21755.
29.

The California Driver’s Handbook advises: “Never drive off

the paved or main-traveled portion of the road or on the shoulder to
pass.” [Ex. 109-45]
30.

At the time of the collision, plaintiff was traveling in the

paved shoulder, which was not within the main-traveled portion of the
roadway.
31.

Fifth, plaintiff breached the duty of care by wearing a

clamshell brace while driving and by driving while under the influence
of prescription medication.

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People

entrances is dangerous.” [Ex. 109-45]

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se);

26. The California Driver’s Handbook advises: “Passing other

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per

vehicle on the right).

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negligence

onto the right shoulder, accelerated, and tried to pass the front

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was

driver followed a car into the right lane and then proceeded further

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right

Cal.App.4th 948, 951 (1996) (finding a criminal violation where a

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the

32.

A person must exercise reasonable care in driving a vehicle,

and must “control the speed and movement of their vehicles.”
700.

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CACI

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33.
prohibit

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driving

prescribed.

under

the

influence

of

drugs,

whether

or

not

A driver is “under the influence” when she has consumed

drugs that impair her ability to drive in a reasonably careful manner.
CACI 709.

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Sections 21352 and 21353 of the California Vehicle Code

34.

Sixth, plaintiff breached the duty of care by driving too

35.

The California “basic speed law,” prohibits driving at a

fast.

rate of speed that is unsafe under the circumstances.

Cal. Veh. C. §

22350; see CACI 706; see also Hardin v. San Jose City Lines, Inc., 41
Cal.2d 432, 438 (1953)(“a violation of the statute is negligence”).
36.

Plaintiff violated the “basic speed law” by driving 20-25

miles per hour in the paved shoulder.

The court believes plaintiff’s

relatively contemporaneous accounts of his speed of travel, rather
than the lower estimates he provided at trial.
37.

Due to his use of prescribed medication and the restrictive

brace on his wrist, plaintiff should have been driving even more
slowly and cautiously than an unimpaired driver.
38.

See CACI 403.

Plaintiff’s breaches of his duty to operate his vehicle with

due care were the cause of the collision and his injuries, not
anything that Ms. Slaughter did or failed to do.
39.

There is no need to address the issue of comparative fault

because Ms. Slaughter was not negligent and nothing that she did or
failed to do was a substantial factor in causing the collision or any
injuries resulting therefrom.

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Conclusion
Based on the foregoing findings of fact and conclusions of law,
the court concludes that plaintiff was negligent, Ms. Slaughter was
not negligent, plaintiff’s negligence was the sole cause of the
collision, and plaintiff is entirely responsible for any injuries and
other losses resulting from the collision.

Therefore, defendant is

entitled to judgment on the merits.
IT IS SO ORDERED.
Dated: March 8, 2017

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__________________________
Andrew J. Wistrich
United States Magistrate Judge

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