Velez v. SCL Health-Front Range, Inc
ORDER granting in part 25 defendant St. Joseph Hospital's Motion for Summary Judgment. Plaintiff's state law claims, her first and third causes of action, are dismissed without prejudice. Judgment shall enter in favor of defendant and a gainst plaintiff. Within 14 days of the entry of this Order, defendant may have its costs by filing a Bill of Costs with the Clerk of the Court. The January 8, 2016 trial preparation conference and the January 19, 2016 trial are vacated. This case is dismissed in its entirety. By Judge Philip A. Brimmer on 12/23/15.(pabsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02179-PAB-CBS
SCL HEALTH-FRONT RANGE, INC., d/b/a Exempla St. Joseph Hospital,
The matter is before the Court on the Motion for Summary Judgment [Docket
No. 25] of defendant SCL Health Front Range, Inc. (“St. Joseph Hospital”). This Court
has jurisdiction pursuant to 28 U.S.C. § 1331.
This case arises out of defendant’s allegedly wrongful termination of plaintiff’s
employment. Plaintiff Susie Velez worked as a registered nurse (“RN”) in the operating
room (“OR”) at defendant St. Joseph Hospital until her discharge on April 15, 2014.
Docket No. 25 at 3, Statement of Undisputed Material Fact (“SUMF”) 1. St. Joseph
Hospital addressed safety and performance issues with plaintiff on several occasions
between 2008 and 2014 through annual performance reviews, Personnel Management
Interviews (“PMI”), and corrective action forms. Id., SUMF 2-3. On December 20,
2012, RN Denise Huckfeldt, Ms. Velez’s manager, and RN Sara Nelson, the OR
The following facts are undisputed unless otherwise indicated.
Clinical Educator, met with Ms. Velez to review basic concepts of prepping a patient for
surgery. Id., SUMF 4; Docket No. 25-2 at 12, 14. Ms. Nelson found that plaintiff
“struggled to retain certain information” and was “not methodical about prepping
motions.” Docket No. 25 at 4, SUMF 5. After that meeting, Ms. Nelson assigned
plaintiff to a different campus and required her to “strictly practice prepping” surgical
sites under the supervision of RN Tom Baker. Id., SUMF 6.
Sometime in early 2014, RN Priscilla Olmstead became the manager of the OR.
Id, SUMF 7. Sometime in February 2014, RN Jason Wojciechowski became the shift
specialty coordinator in the OR. Id., SUMF 8.
On January 26, 2014, plaintiff began an approved Family Medical Leave Act
(“FMLA”) leave after requiring emergency surgery. Id., SUMF 9. On March 10, 2014,
plaintiff’s physician cleared her to work without any restrictions. Id., SUMF 10. On
March 10, 2014, St. Joseph’s occupational health phy sician cleared plaintiff to return to
work without any restrictions. Id., SUMF 11. Plaintiff returned to work on March 10,
2014. Id. at 5, SUMF 16. Plaintiff testified that St. Joseph Hospital approved her FMLA
leave and complied with its FMLA policy, and that no one at St. Joseph gave her any
trouble about taking FMLA leave. Id. at 4, SUMF 12-13. Plaintiff testified that St.
Joseph Hospital treated her fairly in regard to her FMLA leave. Id., SUMF 14; Docket
No. 25-1 at 5. Plaintiff admitted that she returned to work in the same position as RN in
the OR and that she received the same hours and pay upon returning to work as she
held before her FMLA leave. Id. at 5, SUMF 15-16. Plaintiff testified that, upon her
return, she needed some assistance to “relearn” some skills for her position, which St.
Joseph Hospital provided. Id., SUMF 17.
On March 31, 2014, about two weeks before her termination, plaintiff received
her performance review for the year 2013, which rated her as a “solid performer” and
stated that she was “a welcome asset to the CP/PV team.” Docket No. 26 at 6, ¶¶ 6-8.
Ms. Velez was rated as “Superior” or “Solid” in all categories except for attendance.
See Docket No. 26-3 at 1. In particular, on a scale of 1 (worst) to 10 (best), she
received an 8 in the areas of “Critical thinking & Clinical Decision Making,” “Clinical
Competency,” and “Act Safely.” Id.
On April 4, 2014, St. Joseph Hospital notified plaintiff that she would receive a
raise in her hourly rate. Docket No. 25 at 7, SUMF 36. St. Joseph Hospital inf ormed
plaintiff that, because she was at the top of her pay grade, she would receive a lump
sum payment in lieu of the full raise, to make her raise approximately 2.5% going
forward. Id. at 8, SUMF 37. St. Joseph Hospital’s policy regarding lump sum payments
in lieu of an hourly rate increase states that employees “must be on the payroll,
employed and in good standing at the time of the lump sum payment in order to
receive” the lump sum payment. Id., SUMF 38.
On April 5, 2014, Dr. Edwin Lee, an anesthesiologist, sent an email to Mr.
Wojciechowski, in which he raised several physicians’ concerns about plaintiff’s
performance as an RN in the OR. Id. at 5, SUMF 20.2 The email reported that on
Plaintiff argues that Dr. Lee’s email is inadmissible hearsay. Docket No. 26 at 4,
¶¶ 20-23; see Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th
Cir. 1998) (noting that hearsay testimony may not be considered to oppose a motion for
summary judgment). Defendant, however, does not offer the email to prove the truth of
March 18, March 20, March 31, and April 1, 2014 plaintif f failed to follow instructions,
failed to respond to physicians’ requests, and failed to correctly perform certain aspects
of her job. Id., SUMF 21. Dr. Lee’s email further reported that Ms. Velez lacks focus,
makes errors in prioritizing what is important, and that “the reason nothing bad has
happened so far is that other people in the room (anesthesiologists, OR staff, surgeons)
have been able to compensate for the issues before anything happens . . . .” Id. at 5-6,
SUMFs 22, 23. When Mr. Wojciechowski received Dr. Lee’s email on April 8, 2014, he
forwarded the email to the OR Manager, Ms. Olmstead. Id. at 6, SUMF 24.3 On April 8,
2014, Mr. Wojciechowski spoke in person with Dr. Lee to investigate Dr. Lee’s
concerns. Id., SUMF 25.
On April 8 or April 9, 2014, Mr. Wojciechowski spoke with Drs. Thomas Rehring,
Leo Alfaro, and Christopher Johnnides to investigate Dr. Lee’s reports. Id., SUMF 26;
Dr. Lee’s criticism of plaintiff, but rather offers it to show the effect on the listener, St.
Joseph Hospital. Docket No. 27 at 5; see Fed. R. Evid. 801(c)(2). Hearsay is an outof-court statement “offer[ed] in evidence to prove the truth of the matter asserted.” Fed.
R. Evid. 801(c)(2). “Statements offered for the effect on the listener . . . are generally
not hearsay.” Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1434 (10th Cir. 1993);
see also Whitington v. Sokol, No. 06-cv-01245-PAB-CBS, 2009 WL 2588762 at *5 (D.
Colo. Aug. 18, 2009); Zamora v. Board of Education for Las Cruces Public Schools, 553
F. App’x. 786, 790 (10th Cir. 2014) (unpublished). Because Dr. Lee’s email is offered
to show the effect on the listener, the Court finds that it is not hearsay and is properly
before the Court.
Plaintiff denies Mr. Wojciechowski’s receipt of Dr. Lee’s email and that Mr.
Wojciechowski forwarded the email to Ms. Olmstead. See Docket No. 26 at 4, ¶ 24.
Plaintiff bases her objection on hearsay, but defendant cites an email from Mr.
Wojciechowski to Ms. Olmstead forwarding Dr. Lee’s email. Docket No. 25 at 6; see
Docket No. 25-6 at 2. Plaintiff does not explain why this email would be inadmissible at
trial to prove Mr. Wojciechowski’s receipt of Dr. Lee’s email and as proof he forwarded
the email to Ms. Olmstead. By failing to support her denial with citations to admissible
evidence, plaintiff fails to deny these facts and they are deemed admitted. See Practice
Standards (Civil cases), Judge Philip A. Brimmer § III.F.3.b.iv.
Docket No. 25-4 at 4. Drs. Lee, Rehring, Alfaro, and Johnnides all found Ms. Velez to
be unsafe and stated that they were uncomfortable with Ms. Velez in their operating
rooms. Docket No. 25 at 6, SUMFs 27, 28; Docket No. 25-4 at 4. 4 St. Joseph Hospital
had not previously received any complaints from Drs. Jason Shofnos, Daniel Maher,
Rehring, or Alfaro related to performance issues on March 18, March 20, March 31, or
April 1, 2014 concerning plaintiff. Docket No. 26 at 6, ¶ 4. St. Joseph Hospital had not
received any concerns from other anesthesiologists, OR staff, or surgeons that they
had to compensate for Ms. Velez’ performance issues. Id., ¶ 5.
On April 10, 2014, plaintiff failed to properly manage the pulse volume recording
machine (“PVR”) and created a dangerous situation in the OR. Docket No. 25 at 6,
SUMF 29; Docket No. 25-4 at 6-7. 5
Plaintiff denies the allegations made by Drs. Rehring, Alfaro, and Johnnides as
hearsay. Docket No. 26 at 4. These doctors’ comments about plaintiff were recounted
by defendant’s Rule 30(b)(6) deponent. However, as with Dr. Lee’s email, defendant
does not offer them for the truth of the matters asserted, but rather for the effect on the
hospital. Docket No. 27 at 5. For the same reasons that Dr. Lee’s email is not hearsay,
neither are the interviews of the three other doctors. Plaintiff further claims, in support
of her hearsay argument, that defendant has not listed the three other doctors as
witnesses and thus defendant obviously intends to introduce hearsay statements at
trial. Docket No. 26 at 11. However, defendant lists these three doctors as trial
witnesses in the Final Pretrial Order. See Docket No. 34 at 6.
Plaintiff denies this allegation as hearsay, but the allegation is supported by the
Rule 30(b)(6) deposition of defendant, based on investigations of the matter by Michelle
Maitland and Mr. Wojciechowski. Docket No. 25-4 at 7. This evidence is not
inadmissible hearsay. See Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 433
(5th Cir. 2006) (“When a corporation produces an employee pursuant to a rule 30(b)(6)
notice, it represents that the employee has the authority to speak on behalf of the
corporation with respect to the areas within the notice of deposition. This extends not
only to facts, but also to subjective beliefs and opinions.”). The testimony defendant
cites shows that plaintiff had a PVR readout that indicated no blood f low immediately
following a procedure. Docket No. 25-4 at 7. As a result of this PVR readout, the
physician was ready to reopen the patient and begin another surgery to correct what he
The next day, on April 11, 2014, St. Joseph Hospital suspended plaintif f pending
investigation. Docket No. 25 at 7, SUMF 30. On or about April 12, 2014, Ms. Olmstead
explained St. Joseph’s safety concerns to plaintiff. Id.; Docket No. 25-1 at 6. Plaintiff
did not dispute or respond to the concerns in writing or otherwise. Docket No. 25 at 7,
SUMF 31. On April 15, 2014, St Joseph Hospital discharged plaintiff because she: (1)
made errors in prioritizing what is important in heart/vascular cases; (2) lacked
necessary focus; (3) was unable to operate necessary equipment; (4) lacked urgency
and was slow to respond in urgent situations; (5) failed to listen to physician
instructions; (6) made errors in preparing patients for surgery; and (7) generally
demonstrated poor work quality. Id., SUMF 33. Plaintiff admitted that no one at St.
Joseph Hospital stated plaintiff was being discharged for taking FMLA leave and that no
one at St. Joseph Hospital said anything negative about her FMLA leave. Id., SUMF
Plaintiff asserts a Colorado common law wrongful termination claim, an FMLA
retaliation claim pursuant to 29 U.S.C. § 2615(a)(2), and a Colorado W age Claim Act
(“CWA”) claim pursuant to Colo. Rev. Stat. § 8-4-101 et seq. Docket No. 7 at 5-6. On
April 24, 2015, defendant moved for summary judgment on all claims. Docket No. 25.
believed to be no blood flow. Id. Before reopening the patient, the physician asked for
a double-check. Id. Ms. Maitland came in and ran the machine properly and found that
there was proper blood flow. Id. Plaintiff had been retrained on use of the PVR on or
about March 10, 2014 following a PVR readout which was not done correctly. Docket
No. 25-4 at 7.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, summary judgment is warranted when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997). Where “the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal quotation
marks omitted)). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party
may not rest solely on the allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324;
see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must
establish, at a minimum, an inference of the presence of each element essential to the
case.” Bausman, 252 F.3d at 1115 (citation omitted). When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010). The
Court must “accept as true all material facts asserted and properly supported in
[defendants’] summary judgment motion” and grant summary judgment if, based on
those facts, the moving party is entitled to judgment as a matter of law. Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2008).
A. FMLA Retaliation Claim
The FMLA requires employers to allow their employees up to twelve weeks of
leave in a year if the leave is requested for, among other things, an employee’s “serious
health condition that makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C. § 2612(a)(1)(D). “At the end of the leave, the
employee must be reinstated to his or her position or to a position eq uivalent in pay,
benefits, and other terms and conditions of employment.” Gunnell v. Utah Valley State
Coll., 152 F.3d 1253, 1261 (10th Cir. 1998) (citing § 2614(a)(1)). Employers are
prohibited from interfering with an employee who exercises his or her rights under the
FMLA and from discriminating against “any individual for opposing any practice made
unlawful by this subchapter.” § 2615(a). Courts have recognized two theories of
recovery on FMLA claims under § 2615: an entitlement or interference theory and a
retaliation or discrimination theory. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d
955, 960 (10th Cir. 2002). Plaintiff asserts an FMLA retaliation claim. Docket No. 7 at
Retaliation claims under the FMLA are considered under the burden-shif ting
analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See
Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir. 2003). “Under this
analysis, the plaintiff bears the initial burden of establishing a prima facie case of
retaliation.” Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th
Cir. 2006). If the plaintiff successfully establishes her prima facie case, the defendant
must offer a legitimate, non-retaliatory reason for the employment action. Id. “The
plaintiff then bears the ultimate burden of demonstrating that the defendant’s proffered
reason is pretextual.” Id. (citation omitted).
1. Prima Facie Case of Retaliation
To state a prima facie case of retaliation, a plaintiff must show that: (1) she
engaged in a protected activity; (2) the employer took an action that a reasonable
employee would have found materially adverse; and (3) there exists a causal
connection between the protected activity and the adverse action. Metzler, 464 F.3d at
1171. St. Joseph Hospital does not dispute that plaintif f has established the first two
elements of a retaliation claim, namely that Ms. Velez engaged in a protected activity
when she exercised her rights to FMLA leave and that termination of her employment is
a materially adverse action. Docket No. 25 at 11. Thus, to establish her prima facie
case of retaliation, Ms. Velez must show a causal connection between her protected
activity of taking FMLA leave and St. Joseph’s decision to terminate her employment.
In support of her prima facie case, plaintiff argues that her protected
conduct–FMLA leave–was closely followed by her termination. Docket No. 26 at 14.
The Tenth Circuit has recognized temporal proximity between protected conduct and
termination as relevant evidence of a causal connection. Metzler, 464 F.3d at 1171
(citing Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006);
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999). Moreover,
where “the termination is very closely connected in time to the protected activity”
temporal proximity may, by itself, be sufficient to “justify an inference of retaliatory
motive.” Metzler, 464 F.3d at 1171 (citing Haynes v. Level 3 Commc’ns, LLC, 456 F.3d
1215, 1228 (10th Cir. 2006) (emphasis in original)). Here, Ms. Velez returned from
FMLA leave on March 10, 2014. Docket No. 25 at 5, ¶¶ 15-16. About f ive weeks later,
on April 15, 2014, St. Joseph Hospital terminated Ms. Velez’s employment. Id. at 7,
¶ 32. Viewing the facts in the light most favorable to the non-moving party, because
Ms. Velez’s termination was “very closely connected in time” to her protected FMLA
activity, she has established the third and final element of her prima facie case.
Compare Metzler, 464 F.3d at 1172 (holding that a four-week period between
employee’s FMLA request and her termination may, by itself, establish causation) and
Ramirez v. Okla. Dep’t. of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994), overruled
on other grounds by Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186 (10th Cir. 1998)
(holding that a one and one-half month period between the protected activity and the
adverse action may, by itself, establish causation), with Richmond v. ONEOK, Inc., 120
F.3d 205, 209 (10th Cir. 1997) (determining that a period of three months between the
protected activity and the adverse action, standing alone, is not sufficient to establish
2. Legitimate, Nonretaliatory Reason for Termination
Because plaintiff has established a prima facie case of FMLA retaliation, the
burden under McDonnell Douglas shifts to St. Joseph Hospital to demonstrate a
legitimate, nonretaliatory reason for its decision to terminate Ms. Velez. See Doebele,
342 F.3d at 1135. It is undisputed that St. Joseph Hospital f ired Ms. Velez on April 15,
2014 based on the following grounds: (1) she made errors in prioritizing what is
important in heart/vascular cases; (2) she lacked necessary focus; (3) she was unable
to operate necessary equipment; (4) she lacked urgency and was slow to respond in
urgent situations; (5) she failed to listen to physician instructions; (6) she made errors in
preparing patients for surgery; and (7) she generally demonstrated poor work quality.
Docket No. 25 at 7, ¶ 33; 25-8 at 2-3. None of these reasons for terminating Ms. Velez
are facially prohibited. St. Joseph Hospital has thus articulated leg itimate, nonretaliatory reasons for terminating Ms. Velez’s employment.
To defeat summary judgment, Ms. Velez must show that there is a genuine
dispute of material fact as to whether defendant’s explanations for terminating her
employment are pretextual. See Mickelson v. New York Life Ins. Co., 460 F.3d 1304,
1318 (10th Cir. 2006); Metzler, 464 F.3d at 1172.
To show that St. Joseph Hospital’s explanations for terminating her are
pretextual, Ms. Velez offers one excerpt from Dr. Lee’s email. That excerpt reads: “I
knew [Ms. Velez] was having health issues, but now that she has returned after an
extended absence, I have not noticed much improvement.” Docket No. 26-4 at 1.
Contrary to plaintiff’s argument, Dr. Lee’s email supports defendant’s position that its
justifications for terminating Ms. Velez’s employment were not pretextual. The email
shows that Dr. Lee believed Ms. Velez’s performance was inadequate, recounting four
separate occasions in the operating room in which Dr. Lee or other physicians
considered Ms. Velez’s activities to be dangerous to patients or in violation of hospital
protocols. Id. at 1-3. No reasonable factfinder could read the email to imply that Dr.
Lee’s concern was plaintiff’s use of FMLA leave as opposed to deficiencies in plaintiff’s
Plaintiff offers no additional argument to support her retaliation claim other than
conclusory legal arguments. Conclusory argumentation accompanied by case citations
is not enough to show that St Joseph Hospital’s justifications for terminating Ms. Velez
were pretextual or to satisfy Ms. Velez’s burden under the McDonnell Douglas
framework. Ms. Velez fails to demonstrate a genuine issue of material fact concerning
St. Joseph Hospital’s motivation for terminating her employment. Summary judgment
against plaintiff is therefore proper as to this claim.
B. Remaining Claims
Having dismissed plaintiff’s claim arising under federal law, the Court next
addresses the issue of whether it should exercise supplemental jurisdiction over
plaintiff’s remaining claims, which are based upon state law. While courts may exercise
supplemental jurisdiction over state law claims if there is otherwise a jurisdictional basis
for doing so, 28 U.S.C. § 1367(c)(3) states that a court may decline to exercise
jurisdiction over such claims if “the district court has dismissed all claims over which it
has original jurisdiction.” When § 1367(c)(3) is implicated in the Tenth Circuit, courts
are advised to dismiss pendent state law claims “absent compelling reasons to the
contrary.” Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (quoting Ball v.
Renner, 54 F.3d 664, 669 (10th Cir. 1995) (reversing the district court’s grant of
summary judgment on state law claims); Endris v. Sheridan Cty. Police Dep’t, 415 F.
App’x 34, 36 (10th Cir. 2011) (“any state-law claims for assault and battery or mental
and emotional injury were inappropriate subjects for the exercise of pendent jurisdiction
where all federal claims had been dismissed”). But see Henderson v. Nat’l R.R.
Passenger Corp., 412 F. App’x 74, 79 (10th Cir. 2011) (finding no abuse of discretion in
trial court’s decision to retain jurisdiction over state law claims after plaintiff voluntarily
dismissed claims arising under federal law). Finding no compelling reason here to
retain jurisdiction, the Court will dismiss plaintiff’s remaining claims without prejudice.
See Colo. Rev. Stat. § 13-80-111 (permitting claims properly commenced within the
statute of limitations to be re-filed if involuntarily dismissed because of lack of
jurisdiction); Dalal v. Alliant Techsystems, Inc., 934 P.2d 830, 834 (Colo. App. 1996)
(interpreting 28 U.S.C. § 1367(d) as tolling the statute of limitations while claim is
pending in federal court); see also City of Los Angeles v. Cty. of Kern, 328 P.3d 56,
2014 WL 3030368, at *3 (Cal. July 7, 2014) (noting that interpretations of § 1367(d)
vary between jurisdictions).
For the foregoing reasons it is
ORDERED that defendant St. Joseph Hospital’s Motion for Summary Judgment
[Docket No. 25] is GRANTED in part. It is further
ORDERED that plaintiff’s state law claims, her first and third causes of action,
are DISMISSED without prejudice. It is further
ORDERED that judgment shall enter in favor of defendant and against plaintiff.
It is further
ORDERED that, within 14 days of the entry of this Order, defendant may have its
costs by filing a Bill of Costs with the Clerk of the Court. It is further
ORDERED that the January 8, 2016 Trial Preparation Conference and the
January 19, 2016 Trial are VACATED. It is further
ORDERED that this case is dismissed in its entirety.
DATED December 23, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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