Jenkins v. Duffy Crane and Hauling, Inc. et al

Filing 378

ORDER.The Court ORDERS that Magistrate Judge Mix's Recommendation (Doc. # 368 ) is AFFIRMED and ADOPTED as an Order of this Court. It is FURTHER ORDERED that Defendant Immedia, Inc.'s Motion for Partial Dismissal of Plaintiff's Third Amended Complaint (Doc. # 371 ) is DENIED, by Judge Christine M. Arguello on 5/31/2019.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00327-CMA-KLM
FRANKLYN A. JENKINS,
Plaintiff,
v.
IMMEDIA, INC., a Minnesota corporation,
Defendant.
_____________________________________________________________________
ORDER AFFIRMING AND ADOPTING THE APRIL 25, 2019 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE AND DENYING MOTION FOR PARTIAL
DISMISSAL OF PLAINTIFF’S THIRD AMENDED COMPLAINT
_____________________________________________________________________
This matter is before the Court upon the April 25, 2019, Recommendation by
United States Magistrate Judge Kristen L. Mix that this Court grant Plaintiff’s Renewed
Motion for Leave to Amend Complaint to Add a Claim for Punitive Damages and to
Conform to the Court’s Orders (Doc. # 359). (Doc. # 368.) Defendant Immedia, Inc.
objected to Magistrate Judge Mix’s Recommendation. (Doc. # 370.) Plaintiff Franklyn A.
Jenkins responded to Defendant’s Objection. (Doc. # 377.) For the reasons described
herein, Defendant’s objections are overruled. The Court affirms and adopts the
Recommendation.
Related to Defendant’s Objection (Doc. # 370) is Defendant’s Motion for Partial
Dismissal of Plaintiff’s Third Amended Complaint. (Doc. # 371.) Because the Court
affirms and adopts the Recommendation, the Court also addresses Defendant’s Motion

for Partial Dismissal. For the following reasons, the Court denies Defendant’s Motion for
Partial Dismissal.
I.

BACKGROUND

This Court recited the factual and procedural background of this dispute in its
October 27, 2017 Order Granting Plaintiff’s Motion for Reconsideration (Doc. # 268),
which is incorporated herein. The Magistrate Judge’s Recommendation also provides a
thorough recital of the factual and procedural background of this dispute and it is also
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Accordingly, this Order will reiterate only what is necessary to address Defendant’s
Objection (Doc. # 370) and Defendant’s Motion for Partial Dismissal (Doc. # 371).1
On October 5, 2018, Plaintiff filed a Motion for Leave to Amend Complaint to Add
a Claim for Punitive Damages (“Initial Motion for Leave”). (Doc. # 307.) Due to
procedural and formatting defects, the Court denied the Initial Motion for Leave and
directed Plaintiff to file a Renewed Motion for Leave on or before February 13, 2019.
(Doc. # 347.) Plaintiff timely filed his Renewed Motion for Leave on February 6, 2019.
(Doc. # 353.) Plaintiff argued that the Court should permit him with leave to file a Third
Amended Complaint to add a claim for punitive damages because recently obtained fact
and expert evidence sufficiently supported Plaintiff’s claim for punitive damages. (Id. at
1–3, 12–13.)

Five other motions are ripe for the Court’s review: (1) Defendant’s Motion to Exclude the
Expert Opinions of Dr. Richard Ziernicki (Doc. # 321); (2) Defendant’s Rule 702 Motion to
Exclude Rebuttal Expert Witness Walter Guntharp (Doc. # 322); (3) Defendant’s Motion to Limit
the Opinion Testimony of Jeffrey Opp (Doc. # 323); Defendant’s Motion in Limine (Doc. # 374);
and Plaintiff’s Motion in Limine (Doc. # 375). The Court will address these motions in due time.
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Defendant filed its response in opposition to Plaintiff’s Renewed Motion for Leave
on February 27, 2019. (Doc. # 358.) Defendant asserted that Plaintiff’s proffered
evidence was not sufficient to constitute “clear and convincing evidence” that Defendant
“intentionally or deliberately disregarded the safety of others.” (Id. at 4.) Moreover,
Defendant argued that Plaintiff’s Renewed Motion for Leave was untimely and
unsupported by good cause, and that granting the motion would prejudice Defendant.
(Id. at 12–15.)
On February 28, 2019, Plaintiff replied to Defendant’s Response and argued that
Defendant’s improper attempts to raise factual issues to oppose the Renewed Motion
for Leave did not diminish Plaintiff’s ability to establish the prima facie case necessary
to amend his complaint and add a claim for punitive damages. (Doc. # 359 at 2, 4–5.)
Additionally, Plaintiff averred that good cause supported his Renewed Motion for Leave
because Defendant’s failure to timely disclose relevant evidence delayed Plaintiff’s
ability to file the Initial Motion for Leave, and as a result, Defendant is not prejudiced by
Plaintiff’s sought amendments. (Id. at 2–4.)
Magistrate Judge Mix issued her Recommendation that the Court grant Plaintiff’s
Renewed Motion for Leave on April 25, 2019. (Doc. # 368.) The Magistrate Judge first
determined that Plaintiff established good cause for moving to amend his complaint out
of time because he “heavily relie[d] upon evidence that was obtained after the March 1,
2018 deadline to amend pleadings” as a result of Defendant’s belated disclosures,
which triggered Plaintiff’s need for additional fact and expert depositions. (Id. at 5–8.)

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Next, Magistrate Judge Mix followed “a new consensus within the District of
Minnesota” and applied Rule 15, and not Minn. Stat. § 540.20, when analyzing whether
to grant a motion to amend a complaint to add a claim for punitive damages in a federal
diversity case. (Id. at 10.) The Magistrate Judge explained that, procedurally, the Court
is required to (1) view the proposed amended complaint “through the permissive Rule
15 lens[,]” and (2) apply substantive Minnesota state law when determining whether a
moving party states a plausible claim for punitive damages. (Id. at 11.)
Applying Rule 15, Magistrate Judge Mix determined that Plaintiff’s claim for
punitive damages was not futile because he adequately pleaded a claim “that the acts
of the defendant show[ed] deliberate disregard for the rights or safety of others.” (Id. at
18 (citing Minn. Stat. § 549.20).) Moreover, Magistrate Judge Mix concluded that neither
unfair prejudice nor undue delay constituted grounds to deny Plaintiff’s Renewed Motion
for Leave. (Id. at 19–20.)
Defendant filed its Objection to Magistrate Judge Mix’s Recommendation on May
10, 2019. (Doc. # 370.) As is explained in further detail below, Defendant asserts that
Magistrate Judge Mix applied “the wrong legal standard” and misunderstood “the
relevant facts.” (Id. at 1.) Plaintiff responded to Defendant’s Objection on May 24, 2019
(Doc. # 377), and argued that pursuant to Rule 72(a), Magistrate Judge Mix’s decision
was not clearly erroneous or contrary to law. (Doc. # 377 at 2–8.) For the following
reasons, the Court agrees with Plaintiff that Magistrate Judge Mix’s Recommendation is
not clearly erroneous or contrary to law, and therefore, it will affirm and adopt the
Recommendation.
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II.
A.

LEGAL STANDARDS

REVIEWING AN OBJECTION TO A MAGISTRATE JUDGE’S
RECOMMENDATION
When a magistrate judge issues an order on a nondispositive pretrial matter,

“[t]he district judge in the case must consider timely objections and modify or set aside
any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P.
72(a) (emphasis added). Under the clearly erroneous standard, “the reviewing court
[must] affirm unless it ‘on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d
1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)); Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006). The “‘clearly
erroneous’ standard is ‘significantly deferential.’” Chung v. Lamb et. al., No. 14-cv03244-WYD-KLM, 2018 WL 7141423, at * 1 (D. Colo. Jan. 3, 2018) (quoting United
States v. Gallegos, 314 F.3d 456, 462 n.3 (10th Cir. 2002)). “[M]ere disagreement with
[a] Magistrate Judge[‘s] recommendation does not make the recommendation incorrect
or outside the bounds of [her] authority.” Rader v. United States, No. 08-cv-00568WDM-MEH, 2008 WL 4949168, at *3 (D. Colo. Nov. 17, 2008).
B.

RULE 12(B)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to

dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
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granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and
quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at 1198. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusion,
bare assertions, or merely conclusory. Id. at 679–81. Second, the Court considers the
factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at
681. If the allegations state a plausible claim for relief, such claim survives the motion to
dismiss. Id. at 679.
However, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th
Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. “Nor does the complaint suffice if it tenders naked assertion[s] devoid
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of further factual enhancement.” Id. (citation omitted). “Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted). This pleading
standard ensures “that a defendant is placed on notice of his or her alleged misconduct
sufficient to prepare an adequate defense” and avoids “ginning up the costly machinery
associated with our civil discovery regime on the basis of a largely groundless claim.”
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011).
III.
A.

ANALYSIS

PLAINTIFF’S RENEWED MOTION FOR LEAVE TO AMEND HIS COMPLAINT
1.

Good Cause Exists for Plaintiff to Amend His Complaint.

Magistrate Judge Mix determined that good cause existed for Plaintiff to amend
his complaint because Plaintiff supported his Renewed Motion for Leave and punitive
damages claim with evidence obtained after the deadline to amend pleadings. (Doc. #
368 at 7.) Magistrate Judge Mix cited the “newly-acquired” information that Plaintiff
referenced in his Renewed Motion for Leave and proposed Third Amended Complaint,
which included deposition testimony from depositions that were only necessitated by
Defendant’s disclosure of merits-related discovery after the deadline to amend
pleadings. (Id.) In Defendant’s Objection, it argues that Plaintiff “heavily relies” upon
evidence that was previously available to Plaintiff before the deadline to amend
pleadings. (Doc. # 370 at 3.)
The Court is not convinced that Magistrate Judge Mix’s finding that good cause
justified Plaintiff’s untimely request to amend his complaint is clearly erroneous or

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contrary to law. The Magistrate Judge relied upon District of Colorado case law that
supports the proposition that newly discovered information “may lead to amendment of
deadlines set forth in the Scheduling Order” and “constitutes good cause for such
amendment pursuant to Rule 16(b)(4).” (Doc. # 368 at 5 (quoting Riggs v. Johnson, No.
09-cv-01226-WYD-KLM, 2010 WL 1957110, at *3 (D. Colo. Apr. 27, 2010)).) Defendant
fails to provide case law to the contrary.
Instead, Defendant merely disagrees with the amount of weight Magistrate Judge
Mix placed upon Plaintiff’s reliance on evidence disclosed after the amendment
deadline as opposed to evidence that was previously available before the amendment
deadline. (Doc. # 370 at 3–4.) Mere disagreement with Magistrate Judge Mix’s
recommendation does not make the recommendation incorrect. Rader, 2008 WL
4949168 at *3. Defendant’s objection that Plaintiff did not establish good cause is
overruled.
2.

Applying Rule 15 Rather Than Minnesota State Law on Issue of Whether
to Permit Amended Complaint Is Not Clearly Erroneous or Contrary to
Law.

Magistrate Judge Mix followed the “new consensus within the District of
Minnesota that Rule 15,” and not Minn. Stat. § 549.20, “is the proper standard to apply
when determining whether a motion to amend to add a claim for punitive damages
should be granted or denied in federal diversity cases.” (Doc. # 368 at 10.) This “new
consensus” of District of Minnesota cases “freshly analyzed” that question in light of the
United States Supreme Court’s decision in Shady Grove Orthopedic Assocs., P.A. v.

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Allstate Ins. Co., 559 U.S. 393 (2010). (Id. at 10 (quoting Ramirez v. AMPS Staffing,
Inc., No. 17-5107 (DWF/BRT), 2018 WL 1990031, at *1 (D. Minn. Apr. 27, 2018)).)
These new cases stand for the proposition that the question to be answered in a
motion for leave to amend a complaint before a federal court sitting in a diversity case is
“whether the pleading []contain[s] sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face.[]” Shank v. Carleton College, No. 16-cv-1154
(PJS/HB), 2018 WL 4961472, at *4 (D. Minn. Oct. 15, 2018) (internal quotations
omitted); see (Doc. # 368 at 10–11.) Indeed, Rule 15 answers that question and stands
in “stark contrast” to Minnesota’s punitive damages statute, which requires the court to
“consider evidence in determining the proprietary of the motion to amend.” Shank, 2018
WL 4961472 at *4.
Another court among this new consensus determined that it was consistent with
the Supreme Court’s Shady Grove decision to apply Rule 15 instead of Minn. Stat. §
549.20 when analyzing whether to grant a motion for leave to amend a complaint to add
a claim for punitive damages. Selective Ins. Co. of S.C. v. Sela, 353 F. Supp. 3d 847,
859–62 (D. Minn. 2018). In Shady Grove, the Supreme Court observed that, under the
Erie doctrine, the test of whether to apply a federal rule over a state rule is not whether
the federal rule “affects a litigant’s substantive rights” because “most procedural rules

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do.” Shady Grove, 559 U.S. at 407 (quoting Mississippi Publishing Corp. v. Murphree,
326 U.S. 438, 445–46 (1946)). The Court wrote:
What matters is what the rule itself regulates: If it governs only “the manner and
the means” by which the litigant’s rights are “enforced,” it is valid; if it alters “the
rules of decision by which [the] court will adjudicate [those] rights.” It is not.
Id. (quoting Murphree, 326 U.S. at 445–46).
The Sela court determined that under the Shady Grove approach, Rule 15 “really
regulate[s]” procedure and the “process for amending a complaint” whereas Minn. Stat.
§ 549.20 would govern “the contents of the complaint.” Id. (quoting Shady Grove, 559
U.S. at 407, 410). The Magistrate Judge agreed. The Court finds that Magistrate Judge
Mix’s decision to follow this new consensus of cases in the District of Minnesota is not
“clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 72(a). Accordingly, Defendant’s
objection to the Magistrate Judge’s application of Rule 15 in analyzing whether to grant
Plaintiff’s Renewed Motion for Leave is overruled.
3.

Plaintiff’s Claim for Punitive Damages Is Permitted Under Rule 15(a).

Pursuant to Rule 15(a), Magistrate Judge Mix considered Defendant’s arguments
of futility, unfair prejudice, and undue delay when deciding whether justice would be
served by Plaintiff’s amendment. (Doc. # 368 at 12.) The Court reviews Magistrate
Judge Mix’s findings as to each argument in turn.
First, Magistrate Judge Mix determined that Plaintiff’s proposed amendment
would not be futile because his claim for punitive damages would withstand a motion to
dismiss. (Id. at 12 (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)).)
Complying with caselaw construing Rule 15(a), Magistrate Judge Mix did not consider
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evidence outside of the pleadings. (Id. at 12–13.) Rather, the Magistrate Judge based
her determination as to whether Plaintiff’s claim for punitive damages would survive a
motion to dismiss on the four corners of the proposed Third Amended Complaint—
accepting the factual allegations as true and drawing all reasonable inferences in favor
of Plaintiff. (Id. at 13.) Within those parameters, the Magistrate Judge thus determined
that Plaintiff’s claim for punitive damages needed to be adequately pleaded pursuant to
Minnesota’s punitive damages statute. (Id. at 13–14.)
Magistrate Judge Mix analyzed eight factual allegations set forth by Plaintiff in
support of his claim for punitive damages. (Id. at 14–17.) Accepting those eight factual
allegations as true and drawing all reasonable inferences therefrom in a light most
favorable to Plaintiff, Magistrate Judge Mix concluded that Plaintiff’s proposed amended
complaint would not be futile because he alleged a plausible claim for punitive damages
and “that the acts of the defendant show[ed] deliberate disregard for the rights or safety
of others.” (Id. at 17–18 (quoting Minn. Stat. § 549.20).)
Defendant contends that Magistrate Judge Mix erred by failing to consider
Defendant’s competing evidence and its argument as to why Plaintiff’s proffered
evidence should be construed in a different manner that does not support Plaintiff’s
claim for punitive damages. (Doc. # 370 at 10–15.) Indeed, Defendant used a significant
portion of its brief seeking to persuade this Court to not accept Plaintiff’s factual

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allegations (and the eight specifically considered by Magistrate Judge Mix) as true. See
(id.) The Court is not persuaded.
The Court finds that Magistrate Judge Mix’s determination that Plaintiff’s
amended complaint would not be futile is neither clearly erroneous nor contrary to law.
Because the Court applies Rule 15(a) to determine whether Plaintiff’s Renewed Motion
for Leave should be granted, the Court must accept Plaintiff’s factual allegations as true
and draw all reasonable inferences therefrom in a light most favorable to Plaintiff. In
doing so, the Court is persuaded that the eight factual allegations support a plausible
claim for punitive damages by “clear and convincing evidence” pursuant to Minn. Stat. §
549.20. These factual allegations, if accepted as true, plausibly establish that Defendant
acted with deliberate disregard for the rights or safety of Plaintiff because Defendant
“had knowledge of facts or intentionally disregarded facts that created a high probability
of injury to the rights or safety of” Plaintiff, and Defendant “deliberately proceed[ed] to
act with indifference to the high probability of injury to the rights or safety of” Plaintiff.
Minn. Stat. § 549.20(a)(b)(2); see (Doc. # 368 at 18.) Whether the jury agrees with that
finding is a different matter and one that is reserved for trial.
Moreover, with respect to Magistrate Judge Mix’s conclusion that Plaintiff’s
proposed amended complaint would not cause unfair prejudice to Defendant and that
Plaintiff’s Renewed Motion for Leave was not a product of undue delay, the Court is
satisfied that the Magistrate Judge’s decision is not clearly erroneous or contrary to law.
(Doc. # 368 at 19–20.) Specifically, the Court agrees with Magistrate Judge Mix that
Defendant will not suffer any unfair prejudice because Defendant wrote a significant
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number of pages arguing why Defendant’s own evidence rebutted Plaintiff’s punitive
damages claim.2 (Doc. # 358 at 4–11; Doc. # 370 at 11–14.)
Accordingly, the Court affirms and adopts Magistrate Judge Mix’s
Recommendation.
B.

DEFENDANT’S MOTION FOR PARTIAL DISMISSAL OF PLAINTIFF’S THIRD
AMENDED COMPLAINT.
On May 10, 2019, Defendant filed a Motion for Partial Dismissal of Plaintiff’s

Third Amended Complaint, and in particular, moved to dismiss Plaintiff’s Fourth
(negligent misrepresentation) and Seventh (punitive damages) Claims for Relief for
failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6). (Doc. #
371.) Defendant asserted, for the first time, that Plaintiff failed to state a claim for
negligent misrepresentation because Minnesota law does not recognize “the tort of
negligent misrepresentation in the context of a personal injury claim.” (Id. at 10.) Finally,
Defendant renewed its previous motion to dismiss and argued that Plaintiff’s Third
Amended Complaint should be dismissed based on a lack of personal jurisdiction. (Id.)
Plaintiff responded to Defendant’s Motion for Partial Dismissal on May 24, 2019. (Doc. #
376.) The Court has reviewed all the relevant pleadings concerning Defendant’s Motion

It is noteworthy that Defendant asserted that Plaintiff could not show good cause for seeking to
amend his complaint out of time because, in pleading his claim for punitive damages, Plaintiff
“heavily relie[d]” on previously disclosed evidence. (Doc. # 370 at 2–5.) Defendant then argued
that if the Court were to permit Plaintiff with leave to amend his complaint, Defendant would
suffer prejudice because it “will not have the opportunity to challenge ‘the factual basis’ of the
claim for punitive damages under Minn. Stat. § 549.191[.]” Yet Defendant devoted substantial
portions of its briefing to challenging the factual basis of Plaintiff’s claim for punitive damages.
(Doc. # 358 at 3–12; Doc. # 370 at 10–15.) Defendant cannot have its cake and eat it too. The
Court is not moved by Defendant’s objection that it would suffer unfair prejudice.
2

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for Partial Dismissal, the pertinent record, and relevant legal authority. For the following
reasons, the Court denies Defendant’s Motion for Partial Dismissal.
First, as a result of the Court’s order affirming and adopting Magistrate Judge
Mix’s Recommendation (Doc. # 368), the Court finds that Plaintiff’s proposed
amendment to add a claim for punitive damages would not be futile. The Court agreed
with Magistrate Judge Mix’s conclusion that Plaintiff’s punitive damages claim would
withstand a motion to dismiss; and in the instant motion, it does. For the reasons set
forth above in Section III.A.3. of this Court’s Order and Section II.B.2.a. of Magistrate
Judge Mix’s Recommendation, which are incorporated herein, the Court denies
Defendant’s motion to dismiss Plaintiff’s punitive damages claim. (Doc. # 368 at 12–19.)
Furthermore, the Court agrees with Plaintiff that, as a matter of law, Minnesota
law does not “foreclose the possibility of recognizing in Minnesota the tort of negligent
misrepresentation involving the risk of physical harm[.]” Smith v. Brutger Cos., 569
N.W.2d 408, 413–14 (Minn. 1997); (Doc. # 376 at 8.) Accordingly, Defendant’s motion
to dismiss Plaintiff’s negligent misrepresentation claim is denied.
Finally, for the reasons set forth in the Court’s April 28, 2016 Order denying
Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 150), which is
incorporated herein, Defendant’s motion to dismiss Plaintiff’s Third Amended Complaint
for lack of personal jurisdiction is also denied.
Therefore, Defendant’s Motion for Partial Dismissal of Plaintiff’s Third Amended
Complaint is denied.

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IV.

CONCLUSION

For the foregoing reasons, the Court ORDERS that Magistrate Judge Mix’s
Recommendation (Doc. # 368) is AFFIRMED and ADOPTED as an Order of this Court.
It is
FURTHER ORDERED that Defendant Immedia, Inc.’s Motion for Partial
Dismissal of Plaintiff’s Third Amended Complaint (Doc. # 371) is DENIED.
DATED: May 31, 2019

BY THE COURT:
______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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