M. v. Town Of Palm Beach Shores et al

Filing 66

ORDER denying 40 Defendant's Motion to Dismiss Count II. Signed by Judge Robin L. Rosenberg on 10/6/2017. (nkl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:17-CV-80358-ROSENBERG/HOPKINS
J.V.M.,
Plaintiff,
v.
TOWN OF PALM BEACH SHORES
and CHARLES HOEFFER,
Defendants.
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS COUNT II
THIS CAUSE is before the Court on Defendant, Town of Palm Beach Shores’, Motion
to Dismiss Count II of Plaintiff’s First Amended Complaint and Memorandum of Law in
Support [DE 40]. The Court has carefully considered Defendant’s Motion, Plaintiff’s
Memorandum of Law in Opposition thereto [DE 48], and Defendant’s Reply [DE 51], and is
otherwise fully advised in the premises. For the reasons set forth below, Defendant’s Motion is
DENIED.
I.

INTRODUCTION

This action arises out of two alleged incidents of sexual assault committed against
Plaintiff by Defendant Charles Hoeffer while he was employed as a police officer with the Town
of Palm Beach Shores Police Department. In her First Amended Complaint [DE 32], Plaintiff
asserts claims against Defendant Hoeffer for violation of her civil rights, battery, assault, and
intentional infliction of emotional distress, and against Defendant Town of Palm Beach Shores
for violation of her civil rights and negligent hiring, supervision, retention, and training. Only
one of these claims is at issue for purposes of the Motion presently before the Court: Plaintiff’s

claim against Defendant Town of Palm Beach Shores for violation of her civil rights pursuant to
42 U.S.C. § 1983, asserted in Count II of Plaintiff’s First Amended Complaint.
Defendant Town of Palm Beach Shores argues that this claim must be dismissed because
Plaintiff has not sufficiently alleged (1) that Defendant Hoeffer was acting under color of state
law at the time of the alleged incidents and (2) that Defendant Town of Palm Beach Shores
exhibited deliberate indifference in failing to train its police officers not to commit sexual
assaults. The Court disagrees on both points and concludes that Plaintiff’s allegations are
sufficient. Accordingly, Defendant’s Motion must be denied.
II.

BACKGROUND 1

Defendant Charles Hoeffer was employed as a police officer with the Town of Palm
Beach Shores Police Department from 2008 to 2016. DE 32, First Amended Complaint ¶ 6. The
Town of Palm Beach Shores Police Department follows a “community policing philosophy”
with a focus on “excellent community involvement and support.” Id. ¶ 39. Officers are
encouraged to interact with residents, get to know them, and provide a friendly face. Id. ¶ 40. It
is common for officers to engage in friendly conversation with residents while they walk their
dogs, exercise, or ride bicycles around the Town. Id. ¶ 41.
Plaintiff first met Defendant Hoeffer when she was walking her dogs around the Town of
Palm Beach Shores. Id. ¶ 50. Subsequently, while wearing his police uniform and driving his
police vehicle, Defendant Hoeffer—who asked Plaintiff to call him “Charlie”—approached
Plaintiff and engaged her in conversation on multiple occasions while Plaintiff walked around
the Town. Id. ¶ 51.
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The background facts set forth herein are drawn from Plaintiff’s First Amended Complaint. For purposes of the
Motion presently before it, the Court views the First Amended Complaint in the light most favorable to Plaintiff and
accepts all of Plaintiff’s well-pleaded facts as true. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066
(11th Cir. 2007) (citing St. Joseph’s Hosp. v. Hospital Corp. of America, 795 F.2d at 954 (11th Cir. 1986)).

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Plaintiff was comfortable engaging in conversation with Defendant Hoeffer because he
was a police officer and, for that reason, she believed there was no reason to fear him. Id. ¶ 52.
Plaintiff was also comfortable confiding in Defendant Hoeffer about certain domestic relations
problems she was experiencing “[d]ue to the inherent authority and trustworthiness of police
authority.” Id. ¶ 53. Defendant Hoeffer told Plaintiff that he had special experience and police
training in addressing domestic violence and that he could introduce Plaintiff to domestic
violence advocates he knew through his police experience. Id. ¶ 56. In addition, Defendant
Hoeffer confided in Plaintiff about his own life, including his daughter’s struggle with cancer. Id.
¶ 54. While on duty, in uniform, and driving his police vehicle, Defendant Hoeffer frequently
stopped at Plaintiff’s home and visited with her dogs. Id. ¶ 55.
One morning, Defendant Hoeffer waved Plaintiff down for a conversation while she was
riding her bicycle around the Town. Id. ¶ 57. Plaintiff was upset about something that had
happened with her husband, and Defendant Hoeffer suggested that he and Plaintiff meet for
coffee so that he could provide Plaintiff with information about domestic violence and about
calls to which the Town of Palm Beach Shores Police Department had responded at her
husband’s home before their marriage. Id. ¶ 57. It was clear to Plaintiff that Defendant Hoeffer
was using his power and authority as a police officer to obtain information and provide it to
Plaintiff. Id. Defendant Hoeffer gave Plaintiff two different cell phone numbers where she could
reach him if she needed anything. Id. ¶ 58.
One evening in August 2013, Defendant Hoeffer called Plaintiff and invited her to meet
him for coffee so that he could provide her with information about domestic violence and with
Town of Palm Beach Shores Police Department reports about her husband. Id. ¶ 59. Defendant
Hoeffer told Plaintiff to meet him in a neighboring city and gave her specific directions. Id. ¶ 60.

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Plaintiff followed those directions and parked her vehicle where Defendant Hoeffer told her to
meet him. Id. ¶ 61. Plaintiff then got into Defendant Hoeffer’s vehicle, believing that they were
going to get coffee as arranged. Id. As they drove, Plaintiff began discussing her domestic
violence problems, but Defendant Hoeffer did not want to discuss her problems. Id. ¶ 62. Instead
of getting coffee, Defendant Hoeffer drove her to a deserted location. Id.
At the deserted location, Defendant Hoeffer lunged at Plaintiff in an attempt to kiss her,
but Plaintiff “immediately and forcefully” resisted. Id. ¶ 63. Defendant Hoeffer then grabbed
Plaintiff’s breasts, but Plaintiff removed his hands. Id. ¶ 64. Defendant Hoeffer grabbed
Plaintiff’s legs, moved on top of her, and began lifting her dress, and Plaintiff tried
unsuccessfully to push him off. Id. ¶ 65. Defendant Hoeffer let Plaintiff sit back up, then lunged
at her again in another attempt to kiss her. Id. ¶ 66. During this incident, Defendant Hoeffer
ripped a necklace from Plaintiff’s neck. Id. ¶ 67. Finally, Defendant Hoeffer drove Plaintiff back
to her vehicle without speaking, and Plaintiff drove herself home. Id. ¶ 68.
While on her way home, Plaintiff received a call from Defendant Hoeffer. Id. ¶ 69.
Defendant Hoeffer told Plaintiff that her necklace was in his vehicle and that he wanted to bring
it to her, but Plaintiff told him to leave it in her mailbox. Id. During that call, Defendant also
made a sexual comment about the incident in his vehicle. Id. ¶ 70.
At some point after this incident, Plaintiff went to the Town of Palm Beach Shores Police
Department to make a report about her husband. Id. ¶ 71. Defendant Hoeffer was the only police
officer there at the time. Id. About 20 minutes after Plaintiff left, Defendant Hoeffer arrived at
Plaintiff’s house in uniform and parked his police vehicle in her driveway. Id. ¶ 72. Defendant
Hoeffer “knocked on [Plaintiff’s] door, stepped into the home and grabbed [Plaintiff] on her
breasts,” then left her home. Id. ¶ 72.

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Since 1983, at least eleven women have reported that Defendant Hoeffer raped, assaulted,
sexually harassed, or hit them. Id. ¶ 11. In 1983, Defendant Hoeffer’s first wife called 911 to
report her husband for domestic violence on two separate occasions. Id. ¶ 12. In 1987, Defendant
Hoeffer began working as a police officer with the Delray Beach Police Department. Id. ¶ 13.
During his employment with the Delray Beach Police Department, Defendant Hoeffer committed
domestic violence against his second wife, shattering her nose with a boot and ripping a pin off
her blouse. Id. ¶ 14. Defendant Hoeffer also verbally harassed his second wife with repeated
phone calls while at work; Defendant Hoeffer was ordered to refrain from contact with his wife
while Internal Affairs investigated, but he continued to harass and repeatedly contact his wife. Id.
¶¶ 15–18. The Delray Beach Police Department ultimately found that Defendant Hoeffer
committed acts of domestic violence and harassment, sustaining the Internal Affairs complaint
for unbecoming conduct, disobedience to orders, harassment, and untruthfulness. Id. ¶ 19. While
the Delray Beach Police Department Internal Affairs investigation was pending, Defendant
Hoeffer resigned from his position as a police officer. Id. ¶ 20.
In October 1991, Defendant Hoeffer began working with the Riviera Beach Police
Department. Id. ¶ 22. The following July, Defendant Hoeffer was accused of domestic violence
by his third wife. Id. ¶ 23. In 1996, while on duty with the Riviera Beach Police Department,
Defendant Hoeffer was accused of taking a female to a hotel and raping her. Id. ¶ 24. While
prosecutors declined to file criminal charges, they noted Defendant Hoeffer’s history of violence
against women. Id. As a result of the 1996 rape allegation, the Riviera Beach Police Department
conducted an Internal Affairs investigation. Id. ¶ 25. Following that investigation, the allegations
were sustained and Defendant Hoeffer’s employment with the Riviera Beach Police Department
was terminated. Id. Defendant Hoeffer was subsequently reinstated by an arbitration panel and

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remained employed by the Riviera Beach Police Department until he was hired by the Town of
Palm Beach Shores Police Department in 2008. Id. ¶¶ 25–26.
In October 2010, Defendant Hoeffer was accused of making inappropriate sexual
comments to a Town of Palm Beach Shores resident after responding to a reported domestic
disturbance at her home. Id. ¶¶ 28–29. Although the victim provided a recorded statement, the
Town of Palm Beach Shores Police Department closed the Internal Affairs investigation as
unfounded in December 2010, without having obtained a statement from Defendant Hoeffer. Id.
¶ 30. Another woman complained to the Town of Palm Beach Shores Police Department that
Defendant Hoeffer made inappropriate sexual comments to her on more than one occasion while
in uniform and driving his marked police vehicle. Id. ¶ 31. In December 2009, Defendant
Hoeffer was assigned as Communications Supervisor and began supervising and training the 911
dispatchers with the Town of Palm Beach Shores Police Department, many of whom are female.
Id. ¶ 32. While Defendant Hoeffer was Communications Supervisor, multiple female dispatchers
accused him of making inappropriate sexual comments and gestures. Id. ¶¶ 25–26. Defendant
Town of Palm Beach Shores failed to investigate any of these accusations thoroughly, take any
disciplinary action, or provide training to Defendant Hoeffer. Id. ¶¶ 44, 47–48. As a result,
Defendant Hoeffer has continued his abusive conduct toward women. Id. ¶¶ 45–46.
III.

LEGAL STANDARD

To adequately plead a claim for relief, Rule 8(a)(2) requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule
12(b)(6), a motion to dismiss should be granted only if the plaintiff is unable to articulate
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). When
determining whether a claim has facial plausibility, “a court must view a complaint in the light
most favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as true.” Am.
United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir. 2007).
However, the court need not take allegations as true if they are merely “threadbare
recitals of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556
U.S. at 663. “Mere labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do, and a plaintiff cannot rely on naked assertions devoid of further factual
enhancement.” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). “[I]f allegations are
indeed more conclusory than factual, then the court does not have to assume their truth.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). In sum, “[t]he plausibility
standard ‘calls for enough fact to raise a reasonable expectation that discovery will reveal
evidence’ of the defendant’s liability.” Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th
Cir. 2013) (quoting Twombly, 550 U.S. at 556).
IV.

DISCUSSION

The Court begins by addressing whether Plaintiff has sufficiently alleged that Defendant
Hoeffer was acting under color of state law during the alleged incidents of sexual assault against
Plaintiff. The Court then turns to whether Plaintiff has sufficiently alleged that Defendant Town
of Palm Beach Shores exhibited deliberate indifference in failing to train its police officers not to
commit sexual assaults. As set forth below, the Court answers both questions in the affirmative.

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A. Color of State Law
“A successful section 1983 action requires that the plaintiff show she was deprived of a
federal right by a person acting under color of state law.” Almand v. DeKalb Cty., Ga., 103 F.3d
1510, 1513 (11th Cir. 1997) (citing Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). “A
person acts under color of state law when he acts with authority possessed by virtue of his
employment with the state.” Id. (citing Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522
(11th Cir. 1995)). However, “not all acts by state employees are acts under color of law. The
dispositive issue is whether the official was acting pursuant to the power he/she possessed by
state authority or acting only as a private individual.” Id. (internal quotation marks and citations
omitted).
“[U]under certain circumstances, a rape of a person by a police officer or other state actor
could violate the constitution.” Id. (citing Parker v Williams, 862 F.2d 1471 (11th Cir. 1989)). In
such cases, a state employee acts under color of law when he uses his authority to create the
opportunity for or to facilitate a sexual assault. See Griffin v. City of Opa-Locka, 261 F.3d 1295,
1305 (11th Cir. 2001). On the other hand,
where the performance of a state actor’s official duties merely facilitated the
meeting of or development of a relationship between the state actor and another
person; and the state actor later, on his own time and wholly independent of his
official duties, commits an assault or other constitutional tort against that
person . . . the law is clear that the state actor is not acting under color of law.
Id. at 1306 (citing Almand, 103 F.3d at 1514); see also id. at n.12 (“Although subtle, we again
reiterate the critical distinction in the color of law analysis between those cases where a state
actor directly uses his official authority to create the opportunity to sexually assault a victim and
those cases where a state actor merely uses his authority to develop or facilitate a relationship of
trust with a victim, even though that relationship in some attenuated sense serves as a but for
cause of a later sexual assault).
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For example, in Almand, the Eleventh Circuit Court of Appeals concluded that the
defendant police officer was not acting under color of law when he raped the plaintiff, with
whom he had become acquainted through his official duties, at her home. See 103 F.3d at 1514.
On the day of the rape, the defendant initially gained access to the plaintiff’s home on the
pretense of discussing police business—the progress of an investigation into the rape of the
plaintiff’s daughter. See id. When the defendant made sexual advances toward the plaintiff, she
demanded that he leave her apartment. Id. The defendant complied and the plaintiff closed the
front door behind him. Id. The defendant then forced open the front door and raped the plaintiff
inside her apartment. Id.
The court noted that, while the defendant was not in uniform and was off-duty at the
time, his initial entry into the plaintiff’s apartment probably occurred under color of law because
he gained access by virtue of his role as a police officer and his professed intention to discuss
police business. Id. at 1514–15 & n.10. However, when the defendant forcibly reentered the
plaintiff’s apartment after having been directed to leave, “he was no different from any other
ruffian.” Id. at 1515. As the court explained,
[the defendant’s] act of breaking into the apartment and, by force, raping [the
plaintiff] was a private act not accomplished because of power possessed by
virtue of state law and made possible only because the wrongdoer [was] clothed
with the authority of state law. Considering that [the defendant] gained entry to
the apartment by forcibly breaking in, any thug or burglar could have committed
the same violent acts. Once [the defendant] resorted to sheer force to break, to
enter, and to rape, his status as a police officer had no bearing on his wicked
behavior.
Id. (internal quotation marks and citations omitted). The court therefore concluded that the
defendant was not acting under color of state law when he raped the plaintiff; his conduct was
instead the act of a private citizen and, as such, did not violate the Constitution. Id.

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By contrast, in Griffin, the Eleventh Circuit Court of Appeals concluded that the
defendant, a city manager, was acting under color of law when he raped the plaintiff, a city
employee. See 261 F.3d at 1304–05. In reaching that conclusion, the court relied on the
following facts: The rape occurred following a Rotary Club meeting, which was not an official
function, but which city employees were expected to attend. Id. at 1304. After learning that the
plaintiff was having car trouble and had arranged for the police chief to drive her home, the
defendant invoked his authority as city manager to create an opportunity to be alone with the
plaintiff, to drive her home, and to rape her. Id. The defendant told the plaintiff that he would
drive her home and that she should inform the police chief of that fact; the defendant himself
also instructed the police chief that he would drive the plaintiff home and that the situation had
been care of. Id. The defendant used his authority to permit the plaintiff to park her car inside the
police department and told her that he would arrange for the city to fix it. Id. While driving to
the plaintiff’s home, the plaintiff and the defendant discussed her work for the city, and the
defendant attempted to dissuade her from leaving her job. Id. When they arrived at the plaintiff’s
home, the defendant insisted on helping the plaintiff with equipment she had used for a musical
performance during the Rotary Club meeting. Id. Inside her apartment, the defendant began
making sexual advances; when the plaintiff resisted, the defendant reminded her of his authority.
Id. The defendant then raped the plaintiff. Id.
While the court explained that these facts were sufficient on their own to conclude that
the defendant was acting under color of state law at the time of the rape, the court also noted that
it was viewing these facts in light of a persistent pattern of the defendant’s abuse of authority and
harassment of the plaintiff from the day the defendant began his employment as city manager in
June 1995 until the plaintiff left her job with the city toward the end of that year. Id. at 1305. The

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court concluded that the defendant’s official interactions with the plaintiff as her boss during and
after work hours, his continual sexual harassment of her during those interactions, and the
ultimate rape constituted an indivisible, ongoing series of events. Id. “[W]ithin this context of
[the defendant’s] continual exploitation of and leverage of his authority over [the plaintiff],”
the court found “a sufficient nexus between his duties and obligations as City Manager and [the
plaintiff’s] boss and the abuse of that authority to facilitate his harassment and ultimate sexual
assault of her.” Id.
In the instant case, the Court concludes that Plaintiff’s allegations are sufficient, when
accepted as true and viewed in the light most favorable to Plaintiff, to establish that Defendant
Hoeffer was acting under color of state law during the two alleged incidents of sexual assault. In
other words, Plaintiff has sufficiently alleged that Defendant Hoeffer used his authority as a
police officer to create the opportunity for sexual assault.
With respect to the first incident, which occurred in Defendant Hoeffer’s vehicle one
evening in August 2013, Plaintiff alleges that she agreed to meet Defendant Hoeffer and get into
his vehicle because he offered to provide her with information about domestic violence and with
reports against her husband previously received by the Town of Palm Beach Shores Police
Department. While there is no allegation that Defendant Hoeffer was assisting in the formal
investigation of a domestic violence complaint made by Plaintiff at that time, Plaintiff alleges
that—because Defendant Hoeffer was a police officer—she had discussed her husband’s
domestic violence with Defendant Hoeffer on several occasions prior to this meeting. Plaintiff
further alleges that Defendant Hoeffer had professed to have special experience and police
training in addressing domestic violence and said he could introduce Plaintiff to domestic
violence advocates he knew through his police experience. Viewed in the light most favorable to

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Plaintiff, these allegations are sufficient—even without any additional facts regarding such issues
as whether Defendant Hoeffer was on duty or wearing his police uniform—to establish that
Defendant Hoeffer used his role and authority as a police officer to create the opportunity for
sexual assault. Accordingly, Plaintiff’s First Amended Complaint sufficiently alleges that
Defendant Hoeffer was acting under color of state law at the time of the first incident.
With respect to the second incident, which occurred shortly after Plaintiff formally
reported her husband to the Town of Palm Beach Shores Police Department, Plaintiff alleges that
Defendant Hoeffer arrived at her home in uniform and in his police vehicle. Plaintiff also alleges
that Defendant Hoeffer arrived a mere 20 minutes after her report, and that—at the time of her
report—Defendant Hoeffer was the only police officer at the Town of Palm Beach Shores Police
Department. In light of these allegations, it is plausible that Defendant Hoeffer gained entry to
Plaintiff’s home on the pretense of investigating or responding to her report. Viewed in the light
most favorable to Plaintiff, these allegations are sufficient to establish that Defendant Hoeffer
used his role and authority as a police officer to create the opportunity for sexual assault.
Accordingly, Plaintiff’s First Amended Complaint sufficiently alleges that Defendant Hoeffer
was acting under color of state law at the time of the second incident.
B. Deliberate Indifference and Failure to Train
In order to impose § 1983 liability on a municipality such as the Town of Palm Beach
Shores, Plaintiff must identify a municipal policy or custom that caused her injuries. Gomez v.
Lozano, 759 F. Supp. 2d 1335, 1338 (S.D. Fla. 2011) (citing Bd. of Cnty. Comm’rs v. Brown,
520 U.S. 397, 403 (1997)). The municipality may be held liable “only if its custom or policy
caused the municipal employees to violate a citizen’s constitutional rights.” Id. (internal
quotation marks and citation omitted). “A municipality’s failure to correct the constitutionally

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offensive actions of its employees can rise to the level of a custom or policy if the municipality
tacitly authorizes these actions or displays deliberate indifference towards the misconduct.”
Spadaro v. City of Miramar, 855 F. Supp. 2d 1317, 1343 (S.D. Fla. 2012) (internal quotation
marks and citation omitted). Thus, “[i]nadequate police training may create liability for a
municipality if the inadequate training arises from deliberate indifference to those with whom the
police interact.” Id. (citing Gomez, 759 F. Supp. 2d at 1338). To establish deliberate indifference,
“a plaintiff must show a pattern of improper training and must show that the city was aware of its
training program’s deficiencies.” Gomez, 759 F. Supp. 2d at 1338.
In the instant case, Plaintiff alleges that Defendant Hoeffer has been accused of rape,
assault, sexual harassment, or other violence by at least eleven women since 1983. Several of
those accusations were allegedly made directly to the Town of Palm Beach Shores Police
Department during Defendant Hoeffer’s employment. Viewing these allegations in the light most
favorable to Plaintiff, Defendant Town of Palm Beach Shores was at a minimum aware of the
accusations made to the Town of Palm Beach Shores Police Department. In response, Plaintiff
alleges, Defendant Town of Palm Beach Shores took no action, creating an environment in
which such conduct was condoned. This is sufficient at this stage of the proceedings to establish
that Defendant Town of Palm Beach Shores was deliberately indifferent toward Defendant
Hoeffer’s misconduct and that this deliberate indifference led to inadequate police training.
While a municipality is entitled to rely on an employee’s common sense not to commit sexual
assault in the absence of any knowledge of such conduct, and an alleged failure to train that
employee does not show deliberate indifference to the rights of the municipality’s inhabitants,
that is not the case where, as here, the municipality is actually aware of a pattern of such conduct
and is deliberately indifferent to it by failing to train officers not to engage in such conduct. See

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Doe ex rel. Doe v. City of Demopolis, 461 F. App’x 915, 917 (11th Cir. 2012) (citing Floyd v.
Waiters, 133 F.3d 786, 796 (11th Cir. 1998)).
V.

CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1.

Defendant, Town of Palm Beach Shores’, Motion to Dismiss Count II of
Plaintiff’s First Amended Complaint and Memorandum of Law in Support [DE
40] is DENIED.

2.

Defendant Town of Palm Beach Shores shall answer Count II of Plaintiff’s First
Amended Complaint and Jury Trial Demand [DE 32] by no later than October
13, 2017.

DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 6th day of October,
2017.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

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