Mangeac v. Armstrong et al

Filing 136

MEMORANDUM DECISION AND ORDER granting #95 Motion for Reconsideration; granting #97 Sealed Motion; granting in part and denying in part #114 Motion to Strike. THe Court reconsiders it's earlier Order granting in part and denying in part Mangeac's #83 MOTION for Summary Judgment and it is denied in full. Mangeac shall have 21 days from the date of this Memorandum Decision and Order to file her response to Defendant's pending motion for summary judgment. The relief granted is conditioned upon Defendants agreeing to pay Mangeac the attorney fees and costs incurred in resisting Defendants' Motion for Reconsideration. Within 5 days after entry of this Order, counsel for Defendants shall advise counsel and the Court of whether it agrees to pay such fees and costs. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Mangeac v. Armstrong et al

Doc. 136

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO M A R G A R E T A MANGEAC, C a s e No. 1:08-CV-239-BLW Plaintiff, v. R IC H A R D ARMSTRONG, in his in d iv id u a l and official capacities; D A V ID TAYLOR in his individual and o f f ic ia l capacities; RICHARD H U M IS T O N in his individual and o f f ic ia l capacities; STEVE BELLOMY in his individual and official capacities; S U S A N ALTMAN in her individual and o f f ic ia l capacities, Defendants. M E M O R A N D U M DECISION AND ORDER

IN T R O D U C T IO N T h e Court has before it several pending motions. After oral argument and an e v id e n tia ry hearing, the Court enters the following Memorandum Decision and Order. P R O C E D U R A L BACKGROUND P la in tif f brought this Section 1983 action, alleging that Defendants violated her procedural due process rights under the Fourteenth Amendment when they added her n a m e to the Idaho Adult Protection Registry ("Registry"), a state registry of vulnerable

MEMORANDUM DECISION AND ORDER - 1

Dockets.Justia.com

adult abusers, and maintained her name on the Registry despite her request to have it re m o v e d .1 On March 1, 2010, Defendants filed a motion for summary judgment, and M a n g e a c filed a motion for partial summary judgment on her claims seeking injunctive a n d declaratory relief. Notably, Defendants' counsel failed to submit a brief in support of D e f e n d a n ts ' motion for summary judgment. He also failed to file an opposition to P la in tif f 's motion for partial summary judgment. Ninth Circuit Judge Wallace Tashima, s ittin g by designation, conducted oral argument and issued an opinion on the motions. Judge Tashima denied Defendants' motion, granted in part Plaintiff's motion, and ordered th e parties to meet in good faith to reach agreement on a proposed form of declaratory ju d g m e n t and permanent injunction. Defendants hired new counsel after receiving Judge Tashima's decision. After a m e e tin g between Defendants' new counsel, Plaintiff's counsel, and the Court's staff, the C o u rt agreed to stay the requirement that the parties submit a proposed form of d e c la ra to ry judgment and permanent injunction until after the Court addressed D e f e n d a n ts ' then forthcoming motion for reconsideration. On June 8, 2010, Defendants filed their motion for reconsideration, along with a m o tio n to enlarge the time by which they could file another motion for summary

Plaintiff also raises state claims in her complaint which were not raised in her motion for partial summary judgment ­ that Defendants' creation, maintenance, and use of the AP Registry are in violation of the Idaho Administrative Procedures Act, that Defendants were negligent in adding Plaintiff's name to the AP Registry and maintaining it on the registry, and that Defendants are liable for negligent infliction of emotional distress. MEMORANDUM DECISION AND ORDER - 2

1

judgment and a motion for summary judgment. On June 25, 2010, the Court conducted a h e a rin g on the motion for reconsideration. In the motion, Defendants argued, in part, that M a n g e a c lacked standing to bring her claims. After oral argument, the record was still s o m e w h a t unclear on whether Mangeac had standing to assert her claims. Therefore, the C o u rt determined that the best way forward was to conduct an evidentiary hearing to m a k e sure the record was fully developed before making a standing determination and d e c id in g the motion for reconsideration. The Court conducted the evidentiary hearing on A u g u s t 30, 2010 and September 3, 2010, and the parties subsequently filed post-hearing b rie f s . A N A L Y S IS 1. M o tio n for Reconsideration Legal Standard A s explained in the Court's earlier Order, a motion to reconsider an interlocutory ru lin g requires an analysis of two important principles: (1) Error must be corrected; and (2 ) Judicial efficiency demands forward progress. The former principal has led courts to h o ld that a denial of a motion to dismiss or for summary judgment may be reconsidered at a n y time before final judgment. Preaseau v. Prudential Insurance Co., 591 F.2d 74, 7 9 -8 0 (9th Cir. 1979). While even an interlocutory decision becomes the "law of the c a s e ," it is not necessarily carved in stone. Justice Oliver Wendell Holmes concluded that th e "law of the case" doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messinger v. Anderson, 225

MEMORANDUM DECISION AND ORDER - 3

U.S. 436, 444 (1912). "The only sensible thing for a trial court to do is to set itself right a s soon as possible when convinced that the law of the case is erroneous. There is no n e e d to await reversal." In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 5 7 2 (N.D.Cal. 1981) (Schwartzer, J.). T h e need to be right, however, must co-exist with the need for forward progress. A court's opinions "are not intended as mere first drafts, subject to revision and re c o n s id e ra tio n at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 1 2 3 F.R.D. 282, 288 (N.D.Ill.1988). "Courts have distilled various grounds for re c o n s id e ra tio n of prior rulings into three major grounds for justifying reconsideration: (1 ) an intervening change in controlling law; (2) the availability of new evidence or an e x p a n d e d factual record; and (3) need to correct a clear error or to prevent manifest in ju s tic e ." Louen v Twedt, 2007 WL 915226 (E.D.Cal. March 26, 2007). If the motion to re c o n s id e r does not fall within one of these three categories, it must be denied. 2. D e fe n d a n ts ' Motion for Reconsideration D e f e n d a n ts contend that the Court should reconsider its earlier decision in order to c o rre c t the factual record and prevent manifest injustice. Specifically, Defendants ask the C o u rt to reconsider its finding that the Registry violated Mangeac's procedural due p ro c e s s rights and that Defendants be enjoined from automatically adding individuals to th e Registry upon receipt of a report of substantiated adult abuse. A. S ta n d in g

MEMORANDUM DECISION AND ORDER - 4

Defendants first argue that Mangeac lacks standing to bring her claims for in ju n c tiv e and declaratory relief. Suits for declaratory or injunctive relief must present a liv e controversy justiciable under Article III of the Constitution. MedImmune, Inc. v. G e n e n te c h , Inc., 549 U.S. 118, 126-27 (2007) (declaratory judgment); City of Los Angeles v . Lyons, 461 U.S. 95, 102 (1983) (injunctive relief). An actual, justiciable controversy m u s t exist not only at the moment the suit is initiated, but also at the time that the party's e n title m e n t to the requested relief is decided. Golden v. Zwickler, 394 U.S. 103, 108 (1 9 6 9 ). Past injury, without more, cannot form the basis for either injunctive or d e c la ra to ry relief. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) ("Past exposure to ille g a l conduct does not in itself show a present case or controversy regarding injunctive re lie f . . . if unaccompanied by any continuing, present adverse effects."); Haase v. S e s s io n s , 835 F.2d 902, 911 (D.C.Cir. 1987) (equating case-or-controversy requirement f o r declaratory judgment with one applicable to request for injunctive relief). Standing m a y even be addressed for the first time on appeal. Laub v. U.S. Dept. of Interior, 342 F .3 d 1080, 1085 (9th Cir. 2003). In fact, federal courts are required sua sponte to e x a m in e jurisdictional issues such as standing. Bernhardt v. County of Los Angeles, 279 F .3 d 862, 868 (9th Cir. 2002). Defendants suggest that under present circumstances, Mangeac would not suffer a n injury based on her two (2005 and 2007) Adult Protection incidents. Defendants re f e re n c e Susan Altman's testimony in support of their argument. Altman is the current

MEMORANDUM DECISION AND ORDER - 5

Program Supervisor for the Idaho Department of Health and Welfare Criminal History U n it. Tr. at 15:2-17. Altman testified that Mangeac would not be issued a conditional d e n ia l based on either the 2005 or 2007 Adult Protection issues. Tr. at 123:10-13. However, the evidence presented at the evidentiary hearing does not support D e f e n d a n ts ' argument. For example, the evidence does not support Altman's blanket a s s u ra n c e that Mangeac would not receive a denial or conditional denial if she selfd is c lo s e d the 2007 incident. Altman testified that Carrie Connell is the Criminal History U n it field person in Canyon County, the county in which Mangeac resides. Tr. at 1 1 9 :2 1 -2 5 , Dkt. 131. Altman then testified that if Mangeac applied for a background c h e c k now, or in the future, "Carrie [Connell] would know, based upon how this is p ro g re s s in g and all the information that I [Altman] have since learned about Ms. Magee, M s . Mangeac, and the Adult Protections issues, Carrie [Connell] would not issue her a c o n d itio n a l denial." Tr. at 120:3-8. The problem with Defendants' argument is that it reveals the subjective and s o m e w h a t arbitrary nature by which Idaho Department of Health and Welfare ("DHW") is su e s denials and/or conditional denials. Altman admits that Mangeac would not receive a conditional denial today only because she has discussed the case with Connell. Tr. at 1 3 1 : 17-25, Dkt 131. But what happens if Altman and/or Connell are terminated, retire, o r otherwise leave their respective positions tomorrow or sometime in the future? What h a p p e n s if Connell moves to another county? What happens if Mangeac moves out of

MEMORANDUM DECISION AND ORDER - 6

Canyon County and Connell no longer has jurisdiction over Mangeac? Under any of th e s e scenarios, there is no evidence that Mangeac would not receive at least a conditional d e n ia l if she applied for a background check. Defendants next argue that Mangeac lacks standing to bring her claims for past in ju ry. In order to establish Article III standing for these claims, Mangeac must establish th re e elements: (1) an injury in fact; (2) a causal connection between the injury and the c o n d u c t complained of; and (3) it must be likely, as opposed to merely speculative, that th e injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U .S . 555, 560-61 (1992). Mere allegations are not enough. Id. At this point, Mangeac has not put forth any evidence that she was injured in fact. Mangeac's deposition testimony shows that, because of health problems, she has not e n g a g e d the Criminal History Unit background check process. Therefore, Mangeac has n e v e r actually been denied or conditionally denied in the Criminal History Unit's b a c k g ro u n d check process. Mangeac Depo. at 65:1-12, Dkt. 135-1. Mangeac last applied f o r a background check in 2005 and was cleared. Tr. at 112:20-113:2, Dkt. 131. Moreover, Defendants are correct that any alleged injury at this point is s p e c u la tiv e . For example, Mangeac's alleged injury based on St. Luke's decision not to h ire her is not the result of DHW's background check policy. Tr. at 113:13-114:5. There is no evidence that St. Luke's is affiliated with DHW, and therefore, an application with S t. Luke's would not trigger a background check or a review of the Registry. Tr. at

MEMORANDUM DECISION AND ORDER - 7

234:2-17, Dkt. 131. Thus, Mangeac has provided no evidence that St. Luke's decision n o t to hire her had anything to do with the Registry. She likewise offered no evidence th a t it had anything to do with self-disclosure. A c c o rd in g ly, under the circumstances of this case, Mangeac presents a live c o n tro v e rsy justiciable under Article III of the Constitution for her claims for injunctive a n d declaratory relief. However, she has not presented facts to support a claim for past in ju rie s . Therefore, the Court finds that Mangeac has standing to bring her claims for in ju n c tiv e and declaratory relief, but not for her claims for past injuries. B. R e a l or Immediate Threat of Substantial or Irreparable Injury

To obtain injunctive relief, Mangeac must establish that she "faces a real or im m e d ia te threat of substantial or irreparable injury. . . ." Midgett v. Tri-County Metro. T r a n s p . Dist., 254 F.3d 846, 850 (9th Cir. 2001). Defendants contend that Mangeac c a n n o t demonstrate a real or immediate threat of substantial or irreparable injury because M a n g e a c is not listed on the Registry and would not suffer a denial or conditional denial if she applied for a background check or self-disclosed the 2005 or 2007 reports. As explained above, the evidence does not support Altman's blanket assertion that M a n g e a c would not receive at least a conditional denial if she applied for a background c h e c k or self-disclosed one of the reports. Any number of scenarios ­ including a change in Altman's or Connell's employment status or Mangeac moving out of Canyon County ­ c o u ld thwart Atlman's arbitrary means of assuring Mangeac will not receive a conditional

MEMORANDUM DECISION AND ORDER - 8

denial. However, as also eluded to above, there remains a question about whether M a n g e a c intends to ever apply for a background check. When asked if she had decided n o t to apply for positions requiring the background check, Mangeac responded: I don't decide. Right now, I'm not able. I'm very sick, first o f all, may liver problem. I can't sleep. My liver is very ­ yo u see my ­ Like I have nonalcoholic sclerosis since that tim e . And I have depression. I can't sleep. I can't take any p ills for sleeping, because like I talk with her, I told her b e c a u s e I'm allergic. I can't take any sleep pills. M a n g e a c Depo. at 65:1-12, Dkt. 135-1. Because it is unclear whether Mangeac ever in te n d s to apply for a position requiring a background check, there remains a question of f a c t as to whether Mangeac can demonstrate a real or immediate threat of substantial or irre p a ra b le injury. Under these circumstances, the Court finds that Defendants have met their burden o f showing that in order to correct the factual record and prevent manifest injustice, the C o u rt must reconsider its earlier decision. Louen v Twedt, 2007 WL 915226 (E.D.Cal. M a rc h 26, 2007). Questions of fact remain as to whether Mangeac can demonstrate a real o r immediate threat of substantial or irreparable injury, which prevents the Court from o rd e rin g injunctive or declaratory relief at this point. Accordingly, the Court cannot grant M a n g e a c 's motion for partial summary judgment asking for such relief. 3. D e fe n d a n ts ' Motion for Enlargement of Time to File Summary Judgment D e f e n d a n ts ask the Court to extend the time for them to file a motion for summary
MEMORANDUM DECISION AND ORDER - 9

judgment. Under Rule 6(b)(1)(B), "[w]hen an act may or must be done within a specified tim e , the court may, for good cause, extend the time . . . on motion made after the time h a s expired if the party failed to act because of excusable neglect." Fed. R. Civ. P. 6 (b )(1 )(B ). "A schedule may be modified only for good cause and with the judge's c o n s e n t." Fed. R. Civ. P. 16(b)(4). W h e th e r neglect is excusable requires consideration of four factors: "(1) the d a n g e r of prejudice to the opposing party; (2) the length of delay and its potential impact o n the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good f a ith ." Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2001) (c itin g Pioneer Inv. Services Co. v. Brunswick Associates Partnership, 507 U.S. 380, 395 ( 1 9 9 3 ) .2 T h e Court agrees with Defendants that the first two factors weigh in favor of g ra n tin g the motion for extension of time. The only real prejudice to Mangeac is the p re ju d ic e of being deprived of an early victory in the litigation. However, that is not s u f f ic ie n t basis to deny the motion. "Prejudice requires greater harm than simply that re lie f would delay resolution of the case." Lemoge v. United States, 587 F.3d 1188, 1196 (9 th Cir. 2009) see also Bateman, 231 F.3d at 1225.

Defendants correctly point out that Bateman arose in the context of Rule 60(b), but that Bateman is persuasive authority because of the "excusable neglect" standard found in Rule 6(b) as well as Rule 60(b). Additionally, the discussion of the Pioneer factors in Bateman is relevant because it arose in a similar factual context. In Bateman, the plaintiff's attorney failed to file a response to the defendant's motion for summary judgment. On appeal, the Ninth Circuit concluded that the attorney's failure to file was the result of excusable neglect. MEMORANDUM DECISION AND ORDER - 10

2

With respect to delay, Defendants learned of the adverse ruling on their summary ju d g m e n t motion on the afternoon of May 17, 2010. Coffman Decl. ¶ 10. When they le a rn e d that former counsel failed to file appropriate summary judgment papers, they im m e d ia te ly retained new counsel. Coffman Decl. ¶ 12, Dkt. 103. Defendants' new c o u n s e l promptly contacted Mangeac's counsel and the Court and, on June 8, 2010, filed th e motion for enlargement of time along with a motion for summary judgment. In total, ju s t over three weeks passed between the first day that Defendants became aware of f o rm e r counsel's failure to represent their interests and the date when Defendants filed th e ir motion for reconsideration, motion for enlargement of time, and motion for s u m m a ry judgment. This three-week period is one week less than the month the Ninth C irc u it held was reasonable in Bateman. The Court is more concerned with the other two factors ­ the reason for the delay a n d whether the Defendants acted in good faith. The Court will address these two factors to g e th e r because they are somewhat intertwined. As explained above, and in the Court's earlier order, Defendants' former counsel f a ile d to file briefs in support of Defendants' motion for summary judgment or in o p p o sitio n to Mangeac's motion for partial summary judgment. Defendants explain that th e Department of Administration retains the services of special deputy attorneys general lik e former counsel to protect the state's interests and relies upon them notify it of any a n tic ip a te d problems with the litigation. Coffman Decl. ¶4, Dkt. 103. Defendants assert

MEMORANDUM DECISION AND ORDER - 11

that, as a special deputy attorney general, former counsel was responsible for all s u b s ta n tiv e legal work on the case, and was obligated to communicate all pertinent in f o rm a tio n to Risk Management. Coffman Decl. ¶4, Dkt. 103. In this case, Defendants state that former counsel last communicated with the d e s ig n a te d claims adjudicator in January 10, 2010, almost two months before the d is p o s itiv e motion deadline. As a result, Defendants argue that the claims adjudicator re a s o n a b ly believed that former counsel would file appropriate summary judgment papers w ith in the deadline allowed by the scheduling order and the local rules. Defendants argue th a t there would have been no reason for the claims adjudicator to double check former c o u n s e l's work. Defendants therefore suggest that the record is clear that the failure is attributable to Defendants' former counsel who failed to meet his professional obligations because of e x te n s iv e and significant personal challenges. Former Counsel Decl. ¶¶ 2-14, Dkt. 102. Given this record, Defendants suggest that there is no factual basis for Mangeac to claim th a t Defendants acted with anything other than good faith throughout the proceedings or th a t they should be punished for the personal problems of their former counsel. Mangeac counters that DHW's own neglect largely contributed to the failure to f u lly support their motion for summary judgment prior to that motion being denied. Mangeac suggests that the circumstances surrounding that neglect ­ including notice that th e re were issues with former counsel, the minimal amount of time it would have taken to

MEMORANDUM DECISION AND ORDER - 12

determine the status of the litigation, and the sophisticated nature of these defendants ­ d e m o n s tra te that DHW's neglect is not excusable. Mangeac points out that unlike a la ym a n defendant entirely dependent on the advice of counsel, DHW is represented by the H u m a n Services Division of the Idaho Attorney General's office, which includes sixteen d e p u ty attorneys general, paralegals and support staff. Goodenough Decl. ¶¶ 2-3, Dkt. 9 9 . She notes that Deputy Attorney General Robert Luce was assigned as DHW's point o f contact for purposes of defending this case. Luce Decl. ¶2, Dkt. 104. Additionally, the Id a h o Department of Administration monitors the litigation through claims adjudicator K ris Coffman. Coffman Decl. ¶1, Dkt. 103. Mangeac notes that Ms. Koffman admits to b e in g aware of the March 1, 2010 pre-trial motion deadline and that she attempted to c o m m u n ic a te with former counsel regarding whether he met that deadline on March 2, 2 0 1 0 . Coffman Decl. ¶7, Dkt. 103. However, Koffman failed to follow up, presumably b e c a u s e she "was heavily involved with the implementation of the claims side of a new R is k Management computer system." Coffman Decl. ¶ 8, Dkt. 103. Finally, Mangeac's c o u n s e l takes issue with her inability to refute DHW's claims regarding the reasons u n d e rlyin g former counsel's neglect, and her inability to refute DHW's claims that they a d e q u a te ly monitored the litigation. Counsel explains that unlike DHW's counsel, she h a s not had an opportunity to discuss the matter with, or depose, these individuals. The Court understands Mangeac's and Mageac's counsel's concerns. The Court a ls o believes that Mangeac has a point when she suggests that some of the blame may be

MEMORANDUM DECISION AND ORDER - 13

placed on the claims adjudicator and Deputy Attorney General point of contact. However, even if the Court allowed Mangeac's attorney to do discovery on the issue by w a y of depositions and written discovery, the Court believes that most of the blame w o u ld still fall on Defendants' former counsel. In his deposition, former counsel " c a n d id ly" admits that he did not do his job. Former Counsel Decl. ¶ 3., Dkt. 102. Thus, at most, factors three and four ­ the reason for the delay and whether the m o v a n t acted in good faith ­ weigh equally for and against finding excusable neglect. When coupled with the other factors ­ the danger of prejudice to the opposing party and th e length of delay and its potential impact on the proceedings ­ which weigh heavily in f a v o r of finding excusable neglect, the Court finds that Defendants have shown excusable n e g le c t. Accordingly, the Court will grant the motion for enlargement of time and c o n s id e r Defendants' Motion for Summary Judgment. 4. M a n g e a c 's Motion to Strike Defendants' Motion for Summary Judgment or S ta y Obligation to Respond M a n g e a c filed a motion to strike Defendants' motion for summary judgment or s ta y her obligation to respond to it. As explained above, the Court will allow the motion f o r summary judgment. However, when the Court scheduled the evidentiary hearing on th e standing issue, the Court effectively stayed all other issues until the standing issue was re s o lv e d . Accordingly, the Court grants Mangeac's request to stay her obligation to re s p o n d . The Court will give Mangeac 21 days from the date of this order to respond to th e motion.
MEMORANDUM DECISION AND ORDER - 14

ORDER N O W THEREFORE IT IS HEREBY ORDERED that Defendants' Motion for R e c o n s id e ra tio n (Dkt. 95) is GRANTED.3 The Court reconsiders it's earlier Order g ra n tin g in part and denying in party Mangeac's motion for partial summary judgment on h e r claims for declaratory and injunctive relief. The motion is denied in full. IT IS FURTHER ORDERED that Defendants' Motion for Enlargement of Time (D k t. 97) is GRANTED. Mangeac shall have 21 days from the date of this Memorandum D e c is io n and Order to file her response to Defendants' pending motion for summary ju d g m e n t. IT IS FURTHER ORDERED that Mangeac's Motion to Strike Defendants' M o tio n for Summary Judgment or Stay Obligation to Respond (Dkt. 114) is GRANTED in part and DENIED in part. The Court will not strike the motion, but Mangeac shall h a v e 21 days from the date of this Memorandum Decision and Order to respond to it. IT IS FURTHER ORDERED that given the change in counsel for Defendants and th e current posture of this case, the Court believes this case should be mediated. Accordingly, the Court strongly encourages the parties to meet and confer regarding w h e th e r mediation would be beneficial at this point. One of the Court's four Magistrate

The Court is concerned, however, that in granting the Defendants relief a manifest injustice may occur. Plaintiff, who has pursued the case vigorously is now being rewarded for her efforts by being forced to incur additional fees because of the shortcomings of Defendants' first attorney. To prevent this, the Court will condition its grant of the Motion to Reconsider upon Defendants agreement to pay the fees and expenses incurred by Plaintiff in resisting the Motion for Reconsideration.
MEMORANDUM DECISION AND ORDER - 15

3

Judges could be made available for this purpose. The parties should contact the Court's A D R director, Susie Headlee at [phone] if they seek the Court's assistance in m e d ia tin g the case. The Court would also be willing to extend the deadlines for briefing th e pending motion for summary judgment in order to facilitate mediation. IT IS FURTHER ORDERED that the relief granted is conditioned upon D e f e n d a n ts agreeing to pay Mangeac the attorney fees and costs incurred in resisting D e f e n d a n ts ' Motion for Reconsideration. Within five (5) days after entry of this Order, c o u n s e l for the Defendants shall advise counsel and the Court of whether it agrees to pay s u c h fees and costs. If it declines, the Court will issue an order reinstating its earlier d e c is io n . If it agrees, the parties shall meet and confer to determine whether they can a g re e on the amount to be paid. If they cannot, Plaintiff will file, within three (3) weeks a f te r receiving Defendants' notification, an affidavit of counsel concerning the amount re q u e s te d and the basis for that request. Counsel for the Defendants will then have ten (1 0 ) days to file their objections thereto. Counsel for Plaintiff will then reply within s e v e n (7) days thereafter. The Court will then issue a decision determining what amounts s h o u ld be awarded to Plaintiff.

DATED: October 19, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER - 16