Daley v. Scott et al

Filing 34

OPINION AND ORDER granting in part and denying in part 30 Plaintiff's Motion to Strike Affirmative Defenses. The Motion is DENIED as to affirmative defenses Two and Six and GRANTED as to all other affirmative defenses. See Opinion and Order for details. Signed by Judge John E. Steele on 6/28/2016. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DENNIS DALEY, individually,
Plaintiff,
v.

Case No: 2:15-cv-269-FtM-29DNF

MIKE SCOTT, in his official
capacity as Sheriff of Lee
County,
Florida, MIKE
DZIUBA, in his official
capacity and individually,
and KENNETH SHERMAN, in his
official capacity and
individually,
Defendants.

OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion to
Strike Defendants’ Answer and Affirmative Defenses (Doc. #30) filed
on October 7, 2015.
October 21, 2015.

Defendants filed a Response (Doc. #31) on

For the reasons set forth below, the motion is

granted in part and denied in part.
I.
Dennis Daley (Plaintiff) filed a thirteen-count Second Amended
Complaint (Doc. #28) against Mike Scott, in his official capacity as
the Sheriff of Lee County (the Sheriff), and deputies Mike Dziuba
(Deputy Dziuba) and Kenneth Sherman (Deputy Sherman), in their
individual

and

official

capacities

(collectively,

Defendants).

Counts I-III are Section 1983 claims against Deputy Sherman alleging
excessive force, illegal search and seizure, and false arrest; Counts
IV-VI assert the same claims against Deputy Dziuba;
general Section 1983 claim against the Sheriff;
are

battery

claims

against

Deputies

Count VII is a

Counts VIII and IX

Sherman

and

Dziuba,

respectively; Counts X and XI are false imprisonment claims against
Deputies Sherman and Dziuba, respectively; Count XII is a negligent
supervision claim against the Sheriff; and Count XIII is a civil
conspiracy claim against Deputies Sherman and Dziuba and the Sheriff.
Defendants

collectively

filed

their

Answer

and

Affirmative

Defenses (Doc. #29) on September 16, 2015 in which they raise
seventeen affirmative defenses, including comparative negligence,
failure to mitigate damages, collateral source payments, preexisting
condition, qualified immunity, and privilege.
Plaintiff’s Motion to Strike Defendants’ Answer and Affirmative
Defenses (Motion to Strike or Motion) characterizes Defendants’
affirmative

defenses

unsupported by facts.

as

“bare

bones

conclusory

(Doc. #30, ¶¶ 2-3.)

allegations”

Defendants’ Memorandum

of Law in Opposition to the Motion to Strike (Response in Opposition
or Response) argues that Plaintiff has not established that the
affirmative defenses fail to satisfy Rule 8’s pleading requirements. 1

1

Defendants’ Response also raises Plaintiff’s failure to comply with
Local Rule 3.01(g). Although this failure can serve as grounds to
deny a motion, the Court finds good cause to address the merits of
Plaintiff’s Motion to Strike.
- 2 -

II.
Defenses are subject to the general pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure.

Rule 8(b)(1)(A)

requires a party to “state in short and plain terms its defenses to
each claim asserted against it,” and Rule 8(c) requires a party to
“affirmatively state any avoidance or affirmative defense.”

“An

affirmative defense is generally a defense that, if established,
requires judgment for the defendant even if the plaintiff can prove
his case by a preponderance of the evidence.”

Wright v. Southland

Corp., 187 F.3d 1287, 1303 (11th Cir. 1999).

Pursuant to Federal

Rule of Civil Procedure 12(f), courts may strike “insufficient
defense[s]” from a pleading, either upon a motion or sua sponte.
Plaintiff

asserts

that

Defendants’

seventeen

affirmative

defenses should be dismissed because they are “one-sentence defenses
with no facts set forth therein and comprised of no more than ‘bare
bones conclusory allegations.’” 2

(Doc. #30, ¶2.)

Plaintiff cites

this Court’s Opinion and Order in Groves v. Patricia J. Dury, M.D.,
P.A., No. 2:06-CV-338-FTM-99SPC, 2006 WL 2556944 (M.D. Fla. Sept. 1,
2006), which adopted the pleading standard for affirmative defenses
set forth in Microsoft Corp. v. Jesse’s Computer & Repair, Inc., 211
F.R.D. 681 (M.D. Fla. 2002).

Under that standard, “[w]hile an answer

‘need not include a detailed statement of the applicable defenses,

2

Plaintiff’s Motion is, paradoxically, as “bare bones” as the
affirmative defenses it seeks to strike.
- 3 -

a defendant must do more than make conclusory allegations.’ If the
affirmative defense comprises no more than ‘bare bones conclusory
allegations, it must be stricken.’”

Id. at 684 (citations omitted)

(striking copyright misuse affirmative defense because defendant
“failed

to

allege

any

facts

whatsoever

in

support

of

[that]

defense”).
Defendants contend, however, that “Rule 8 does not require the
Defendant to set forth detailed factual allegations supporting each
defense.”

(Doc.

#31,

p.

3.)

Quoting

Reyher

v.

Trans

World

Airlines, Inc., Defendants argue that an affirmative defense should
be stricken only if “(1) on the face of the pleadings, it is patently
frivolous, or (2) it is clearly invalid as a matter of law,” that
is, “only if it appears that the defendant will not be able to
succeed on the defense under any set of facts which it could prove.” 3
881 F. Supp. 574, 576 (M.D. Fla. 1995).

In other words, Defendants

essentially argue that “boilerplate pleading” of an affirmative
defense

–

pleading

the

defense

by

its

name

only

without

any

supporting facts – is enough to satisfy Rule 8(c).

3

The Reyher
Plaintiff’s
laches, and
relationship

court refused to strike the boilerplate defense “that
claims are barred by collateral estoppel, waiver,
unclean hands,” since the defense “ha[d] a possible
to th[e] controversy.” 881 F. Supp. at 577.
- 4 -

Groves, Microsoft Corp., and Reyher were all decided in the
Conley “fair notice” pleading era 4

that pre-dated the “plausibility”

regime set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

But neither Twombly nor

Iqbal addressed whether Rule 8(c) requires an affirmative defense,
like a claim for relief, to be pled with “enough facts” to show “that
[it] is plausible on its face.”

Twombly, 550 U.S. at 570.

While

Rule 8(c) may not impose a plausibility standard for affirmative
defenses,

this

required

to

Court
plead

reaffirms
sufficient

its

stance

relevant

that

a

factual

defendant

is

“allegations

connecting the defense to [the plaintiff’s] claims in th[e] case.”
Schmidt v. Synergentic Commc'ns, Inc., No. 2:14-CV-539-FTM-29CM,
2015 WL 997828, at *2 (M.D. Fla. Mar. 5, 2015); see also LSREF2
Baron,

L.L.C.

v.

Tauch,

751

F.3d

394,

398

(5th

Cir.

2014)

(reiterating that a defendant must plead an affirmative defense “with
enough specificity or factual particularity to give the plaintiff
‘fair notice’ of the defense that is being advanced” (citation
omitted)); Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286,
1295 (7th Cir. 1989) (“The remaining defenses are equally meritless.
They are nothing but bare bones conclusory allegations. . . .
omit[ting] any short and plain statement of facts and fail[ing]

4

Under this standard, it was appropriate to dismiss a complaint for
failure to state a claim only if “it appear[ed] beyond doubt that
the plaintiff [could] prove no set of facts in support of his claim
which would entitled him to relief.” Conley v. Gibson, 355 U.S. 41,
46-47 (1957), abrogated by, Twombly, 550 U.S. 544 (2007).
- 5 -

totally to allege the necessary elements of the alleged claims.”).
Boilerplate pleading is not permitted, because it simply cannot
provide notice sufficient to give the plaintiff “a chance to rebut
[the defense],” Grant v. Preferred Research, Inc., 885 F.2d 795, 797
(11th Cir. 1989) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill.
Found., 402 U.S. 313, 350 (1971)), or to “prepare[ the defendant] to
properly litigate it.”

Hassan v. U.S. Postal Serv., 842 F.2d 260,

263 (11th Cir. 1988) (emphasis added) (citing Blonder-Tongue, 402
U.S. at 350).

The insufficiency of boilerplate pleading is well-

illustrated by an opinion from another court in this District:
[Such]
affirmative
defenses
share
one
shortcoming: They are entirely devoid of
specifics. They contain nothing from which the
reader could conclude that the City actually
believes that they apply in this case. Rather,
the affirmative defenses appear to be simply a
generic list of defendant-friendly conclusions
that could conceivably be reached in an
employment
discrimination
case.
Even
when
challenged, the City provides no support for its
pleading, nothing to suggest that it has
reviewed this matter and has a good faith belief
that these issues will need to be resolved.
Smith v. City of New Smyrna Beach, No. 6:11-CV-1110-ORL-31, 2011 WL
6099547, at *1 (M.D. Fla. Dec. 7, 2011); see also Heath v. Deans
Food T.G. Lee, No. 6:14-CV-2023-ORL-28, 2015 WL 1524083, at *2 (M.D.
Fla. Apr. 2, 2015) (“[A] a defendant is still required to . . . give
the plaintiff fair notice of issues that may be raised at trial. .
. .

These defenses are stated so generally that they constitute no

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notice of [what] Defendant will raise at trial. . . . [T]hese
defenses will be stricken.”). 5
Moreover, requiring defendants to plead some facts establishing
a nexus between the elements of an affirmative defense and the
allegations in the complaint streamlines the pleading stage, helps
the parties craft more targeted discovery requests, and reduces
litigation costs. 6
motions
defenses

See Heller, 883 F.2d at 1294-95 (noting that

seeking

to

strike

“bare

“serve

to

expedite,

not

bones

conclusory”

delay”

because

affirmative

they

“remove

unnecessary clutter from the case”); cf. Anderson v. Dist. Bd. of
Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996)
(“[U]nless cases are pled clearly and precisely, issues are not
joined, discovery is not controlled, the trial court's docket becomes

5

The Court acknowledges that other courts in this District deem
boilerplate pleading sufficient under Rule 8(c).
E.g., Ability
Hous. of Ne. Fla., Inc. v. City of Jacksonville, No. 3:15-CV-1380J-32PDB, 2016 WL 816586, at *2 (M.D. Fla. Mar. 2, 2016); Fireman’s
Fund Ins. Co. v. Landstar Ranger, Inc., No. 3:11-CV-1241-J-37MCR,
2012 WL 5949110, at *2 (M.D. Fla. Nov. 28, 2012); Sembler Family
P’ship No. 41, Ltd. v. Brinker Fla., Inc., No. 808-CV-1212-T-24MAP,
2008 WL 5341175, at *4 (M.D. Fla. Dec. 19, 2008).
6

This pleading burden is not exacting.
For example, in a case
involving copyright infringement, this Court deemed an affirmative
defense adequately pled where the defendant alleged that the
plaintiff failed to mitigate damages “by purposefully avoiding
taking sufficient steps to protect the copyrighted material.”
Malibu Media, LLC v. Zumbo, No. 2:13-CV-729-JES-DNF, 2014 WL 2742830,
at *3 (M.D. Fla. June 17, 2014) (emphasis added). The defendant was
not required to plead what steps the plaintiff had purposefully
avoided taking; the fact that the defendant alleged purposeful
failure to protect copyright gave the plaintiff fair notice of the
ground upon which the defense rested. Id. at *4.
- 7 -

unmanageable, the litigants suffer, and society loses confidence in
the court's ability to administer justice.”).

It is also likely

required under Rule 11, as it is hard to see how a long list of
affirmative defenses that are not supported by the allegations or
claims in the complaint can comply with the requirement that the
defenses asserted “are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for
establishing new law.”

Fed. R. Civ. P. 11(b)(2); see Unicredit Bank

AG v. Bucheli, No. 10-2436-JWL, 2011 WL 4036466, at *5 n.3 (D. Kan.
Sept. 12, 2011); Facebook, Inc. v. ConnectU LLC, No. C 07-01389 RS,
2007 WL 2349324, at *1 (N.D. Cal. Aug. 14, 2007).
Requiring a defendant to do more than simply list the name of
the affirmative defense does not, as some courts have concluded,
unfairly subject defendants to a significant risk of waiving viable
defenses for which they do not yet have supporting facts.
routinely
complaint.

grant

motions

seeking

additional

time

to

Courts

answer

a

Courts also “freely give leave” to amend pleadings “when

justice so requires,” Fed. R. Civ. P. 15 (a)(2); Foman v. Davis, 371
U.S. 178, 182 (1962), such as when a defendant discovers evidence
supporting a new affirmative defense.

Dodson v. Munirs Co., No.

CIV. S-13-0399 LKK, 2013 WL 3146818, at *6 (E.D. Cal. June 18, 2013);
Shea v. Clinton, 288 F.R.D. 1, 6 (D.D.C. 2012).

It is precisely

because “Rule 15 allows for appropriate amendments [that] counsel
should therefore feel no need . . . to window-dress pleadings early

- 8 -

for fear of losing defenses later.”

Safeco Ins. Co. of Am. v. O'Hara

Corp., No. 08-CV-10545, 2008 WL 2558015, at *1 (E.D. Mich. June 25,
2008).

Moreover, even when the defendant does not move to amend his

answer to assert a new affirmative defense, he can often subsequently
provide fair notice of his intent to present the defense by including
it in a dispositive motion or in the pretrial statement or order. 7
Pulliam v. Tallapoosa Cty. Jail, 185 F.3d 1182, 1185 (11th Cir.
1999); Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 763 (11th Cir.
1995); Grant, 885 F.2d at 797.
In addition to pleading some facts tying the allegations in the
complaint to the affirmative defenses asserted, a defendant must
“identify the [specific] claim to which [each] defense applies.”
Lee v. Habashy, No. 6:09CV671ORL28GJK, 2009 WL 3490858, at *4 (M.D.
Fla. Oct. 27, 2009).

Indeed, the Eleventh Circuit Court of Appeals

has routinely criticized shotgun pleading of affirmative defenses,
that is, “affirmative defenses address[ing] the complaint as a whole,

7

It has been observed that if “it is not even required that a
defendant plead an affirmative defense (so long as the plaintiff has
notice of the defense), it cannot be necessary for a defendant to
include factual allegations supporting each affirmative defense.”
Adams v. JP Morgan Chase Bank, N.A., No. 3:11–cv–337, 2011 WL
2938467, at *3 (M.D. Fla. July 21, 2011).
The Court disagrees.
Defendants are required at all stages of litigation to diligently
pursue their affirmative defenses.
This includes adequately
pleading the affirmative defenses that are supported by the
allegations in the complaint. As for the defenses for which notice
is subsequently provided to the plaintiff, such notice will typically
occur after discovery is well underway or has already concluded and
facts supporting those defenses have been adduced. In contrast, no
facts are ever provided with boilerplate pleading.
- 9 -

as if each count was like every other count,” instead of each defense
being directed at specific counts in the complaint.

Byrne v. Nezhat,

261 F.3d 1075, 1129 (11th Cir. 2001), abrogated on other grounds as
recognized by, Nurse v. Sheraton Atlanta Hotel, 618 F. App'x 987,
990 (11th Cir. 2015); see also e.g., Paylor, 748 F.3d at 1127;
Ledford v. Peeples, 657 F.3d 1222, 1242 n.63 (11th Cir. 2011).
District courts have a sua sponte obligation to identify shotgun
pleading of affirmative defenses and strike those defenses with leave
to replead. 8

See Paylor, 748 F.3d at 1127 (criticizing failure to

order repleader of answer containing shotgun affirmative defenses);
Morrison v. Executive Aircraft Refinishing, Inc., 434 F. Supp. 2d
1314, 1318 (S.D. Fla. 2005) (“[A] court must not tolerate shotgun
pleading

of

affirmative

defenses,

and

should

strike

vague

and

ambiguous defenses which do not respond to any particular count,
allegation or legal basis of a complaint.” (citations omitted)).

8

If district courts in this Circuit are required to strike shotgun
affirmative defenses because they are too unspecific, it is
counterintuitive to permit boilerplate affirmative defenses to
survive. See Paylor, 748 F.3d at 1127 (“[W]hy should parties wait
until discovery to identify, with precision, the subject of the
litigation? That is exactly backward. Civil pleadings are supposed
to mark the boundaries for discovery; discovery is not supposed to
substitute for definite pleading.”); see also Paleteria La
Michoacana v. Productos Lacteos, 905 F. Supp. 2d 189, 192 (D.D.C.
2012) (“[D]efendants should not feel free to fire off ‘shotgun
pleadings’ or boilerplate defenses without deliberation.” (citing
Anderson, 77 F.3d at 367 (quotation omitted))).
- 10 -

III.
A.

Ninth, Fifteenth, Sixteenth, and Seventeenth Affirmative
Defenses
Affirmative

contend,

defenses

respectively,

nine,

that

fifteen,

“Plaintiff

sixteen,
has

failed

and
to

seventeen
allege

a

cognizable constitutional violation”; that the Complaint may fail to
state a viable cause of action; that Sheriff “has no custom, policy,
practice or procedure that provided the moving force or cause of any
alleged violation of Plaintiff’s Constitutional Rights”; 9 and that
Plaintiff “failed to set forth the required elements for injunctive
relief.”

Insofar as each either alleges that Plaintiff has failed

to state a claim or “points out a defect in Plaintiff’s prima facie
case,” all are “general” defenses, not affirmative defenses.

In re

Rawson Food Serv., Inc., 846 F.2d 1343, 1349 & n.9 (11th Cir. 1988).
The Court grants Plaintiff’s request to strike these defenses.
B.

First, Fourth, Fifth, Eighth, Tenth, Eleventh,
Thirteenth, and Fourteenth Affirmative Defenses

Twelfth,

These affirmative defenses allege comparative negligence, preexisting condition; various types of privilege and immunity; acting
within the course and scope of employment; and probable cause to

9

A plaintiff seeking to attribute liability to a Sheriff under §
1983 “must demonstrate that [the] Sheriff had in place an official
policy or custom that was ‘the moving force of the constitutional
violation.’”
Anderson v. City of Groveland, No. 5:15-CV-26-OC30PRL, 2015 WL 6704516, at *10 (M.D. Fla. Nov. 2, 2015) (quoting
Vineyard v. Cty. of Murray, Ga., 990 F.2d 1207, 1211 (11th Cir.
1993)).
- 11 -

arrest.

Even assuming these are proper affirmative defenses to the

claims raised in the Complaint, all are shotgun defenses, because
each is pled indiscriminately against Plaintiff’s thirteen claims.
This leaves Plaintiff (and the Court) to speculate as to which count
or counts each is directed.

Accordingly, the Court strikes these

shotgun affirmative defenses with leave to replead.
C.

Second, Third, Sixth, and Seventh Affirmative Defenses
Affirmative defenses two, three, six, and seven are essentially

all

claims

defenses.

for

set-off

and

thus

constitute

Hassan, 842 F.2d at 263.

proper

affirmative

Although each is asserted

indiscriminately, all seek to reduce the total amount of Plaintiff’s
damages (if any) Defendants are required to pay.

In other words,

these defenses are presumably applicable, no matter which claim or
claims (if any) Plaintiff prevails on.
absence

of

any

argument

from

Accordingly, and in the

Plaintiff

that

a

set-off

is

impermissible, the Court will not dismiss affirmative defenses two,
three, six, and seven on the basis that they are shotgun defenses,
but will proceed to determine whether the defenses, as pled, are
otherwise sufficient to withstand the Motion to Strike.
(1)

Affirmative Defense Two

Defendants’ second affirmative defense alleges that “Plaintiff
has received payment from collateral sources and any recovery for or
on behalf of the Plaintiff should be reduced by the amount of the

- 12 -

collateral source payments.” 10

While terse, this is sufficiently

pled, because it at least alleges the basis for seeking a reduction
of damages: that plaintiff has received payment from other sources.
(2)

Affirmative Defense Three

Defendants’

third

affirmative
that

defense

“Plaintiff

has

contains
failed

to

only

the

conclusory

assertion

mitigate

damages.”

Nothing in this boilerplate assertion indicates how

Plaintiff failed to “make reasonable efforts to alleviate the effects
of the injury”.

Century 21 Real Estate LLC v. Perfect Gulf Props.,

Inc., No. 608CV1890ORL28KR, 2010 WL 598696, at *5 (M.D. Fla. Feb.
17, 2010) (quoting Black’s Law Dictionary (9th ed. 2009)).

This

defense will therefore be stricken with leave to amend.
(3)

Affirmative Defense Six

Defendants’

sixth

affirmative

defense

alleges

that

“[t]he

Plaintiff’s recovery, if any, should be reduced by any free or low
cost services from governmental or charitable agencies available to
the Plaintiff.”

In support thereof, Defendants cite the Florida

Supreme Court’s opinion in Florida Physician’s Ins. Reciprocal v.
Stanley, 452 So. 2d 514 (Fla. 1984).
convinced

that

Stanley

provides

the

10

Although the Court is not
proper

authority

for

this

The Court presumes Defendants are referring to the “collateral
sources” discussed in Fla. Stat. § 768.76(2)(a).
- 13 -

defense,

11

constitute

certain
proper

768.76(2)(a).
(4)

governmental
collateral

and

charitable

sources

under

services
Fla.

may

Stat.

§

The Court thus finds this defense sufficiently pled.

Affirmative Defense Seven

Defendants’

seventh

affirmative

defense

asserts

that

“Plaintiff’s recovery for medical damages is limited to only those
medical expenses for which the Plaintiff has become liable.”

The

Response provides more information: “The concept that a plaintiff
should only be permitted to recover as damages that amount for which
he is actually liable to his medical providers after any such
provider reduces its bill by the amount received from the plaintiff's
PIP insurer, the amount of any contractual discounts, and any write
offs or write downs of the provider's bill is well established in
cases involving allegations of personal injury.”
That is not correct.

(Doc. #31, p. 7.)

Under Florida law, a plaintiff is entitled

to recover from a defendant the full amount that the plaintiff’s
medical providers have agreed to accept as payment for the treatment,
regardless of who pays them - not just the amount for which the
plaintiff

is

Frohman,

901

personally
So.

2d

833

liable
(Fla.

to

those

2005)

providers.

(Plaintiff

Goble

recovered

v.
all

$145,970.76 that his HMO paid his medical providers, even though his

11

Not only did Stanley predate Fla. Stat. § 768.76, which
“statutorily amended the damages aspect of the common law collateral
source rule,” Joerg v. State Farm Mut. Auto Ins. Co., 176 So. 3d
1247, 1252 (Fla. 2015), the Florida Supreme Court recently retreated
from Stanley’s holding. Id. at 1257.
- 14 -

HMO had “fully discharged [his personal] obligation to his medical
providers”); see also Coop. Leasing, Inc. v. Johnson, 872 So. 2d
956, 958 (Fla. 2d DCA 2004) (“In Florida an injured party is entitled
to recover the reasonable value of medical care resulting from the
defendant's negligence. . . . [T]he ‘reasonable value’ of medical
services is limited to the amount accepted as payment in full for
medical services.”).
setoff

of

“collateral

reimbursement
subrogation

In fact, Section 768.76(1) does not permit a

or

right

sources

exists,”

reimbursement

for

and

an

right

which

a

insurance

for

the

subrogation
company

amounts

paid

“has
on

or
a
[a

party’s] behalf, minus a pro rata share of [the party’s] costs and
attorney’s fees.”

Goble v. Frohman, 848 So. 2d 406, 408 n.1 (Fla.

2d DCA 2003) (citing Fla. Stat. §§ 641.31(8), 768.76(4)), approved,
901 So. 2d 830 (Fla. 2005).

The Court therefore strikes affirmative

defense seven with leave to amend.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Motion to Strike (Doc. #30) is GRANTED IN PART

AND DENIED IN PART.
2.

The Motion is DENIED as to affirmative defenses Two and

Six and GRANTED as to all other affirmative defenses.

- 15 -

3.

Defendants

are

granted

leave

to

amend

the

stricken

affirmative defenses on or before July 12, 2016.
DONE AND ORDERED at Fort Myers, Florida, this 28th day of June,
2016.

Copies:
Counsel of record

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