Hilliard v. Murphy Land Company, LLC

Filing 32

MEMORANDUM DECISION AND ORDER re 21 Motion for Summary Judgment. It is HEREBY ORDERED: Defendant's Motion for Summary Judgment (Dkt. 21 ) is GRANTED. This case is dismissed in its entirety and closed. A separate judgment will be issued. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMES C. HILLIARD, an individual,
Case No. 1:18-cv-00232-DCN
Plaintiff,
vs.
MURPHY LAND COMPANY, LLC, an
Idaho Limited Liability Company;

MEMORANDUM DECISION AND
ORDER

Defendant.
I.

INTRODUCTION

Pending before the Court is a Motion for Summary Judgment filed by Defendant
Murphy Land Company, LLC (“Murphy Land”). Dkt. 21. On November 15, 2019, the
Court held oral argument and took the motion under advisement. Upon review, and for the
reasons set forth below, the Court finds good cause to GRANT Defendant’s Motion for
Summary Judgment.
II.

BACKGROUND1

On December 30, 2010, Plaintiff James Hilliard and Defendant Murphy Land
entered into a Real Estate Option to Purchase Agreement (the “Agreement”).2 Murphy

1

All facts are construed in the light most favorable to Hilliard, the nonmoving party. Scott v. Harris, 550
U.S. 372, 380 (2007).

2

A copy of the Agreement is docketed as Dkt. 21-3, hereafter referred to as “Agreement” in this Order’s
citations.

MEMORANDUM DECISION AND ORDER - 1

Land granted Hilliard the option to purchase back the Crystal Springs Farm property (the
“Property”) “for, and only for, the location of a nuclear power plant facility” (the
“Option”). Agreement, § 4. Under the Agreement, and the accompanying Memorandum of
Real Estate Option to Purchase Agreement, if Hilliard failed to exercise his option to
purchase the Property by December 30, 2016, the Agreement would expire and Hilliard
would no longer have any claim or interest in the Property.
From 2014 to 2016, the purchase price of the Property was $13,680,000 unless (in
the intervening time since the Agreement was signed) Murphy Land had erected capital
improvements on the Property. In that case, Murphy Land was required to provide a review
of its capital improvement payments and receipt documentation to Hilliard, and the
purchase price of the Property would be increased by the amount Murphy Land had
expended.
On May 6, 2016, Hilliard emailed Murphy Land a request for documentation of any
funds expended to erect capital improvements. In response, Murphy Land requested
documentation of Hilliard’s nuclear power plant development plans. On July 27, 2016,
Hilliard gave notice that he was exercising the Option pursuant to Section 4 of the
Agreement.
From May 6, 2016, to September 12, 2016, both parties continued to make their
requests for the desired documentation. After September 12, 2016, all communication
between the parties stopped. Murphy Land never sent Hilliard the requested backup
documentation and tax returns. Hilliard never sent Murphy Land the requested
documentation related to nuclear power plant development. Additionally, Hilliard never
MEMORANDUM DECISION AND ORDER - 2

tendered payment to Murphy Land nor put any purchase amount in escrow. Furthermore,
he did not complete the purchase of the Property under the Agreement and no instrument
of conveyance of the Property was recorded prior to December 30, 2016.
On or about April 17, 2017, Murphy Land sold the Property to Global AG Properties
II USA, LLC. The transfer of the Property’s title was duly recorded in the Owyhee County
Recorder’s Office in Idaho. Dkt. 23-4.
On May 29, 2018, Hilliard filed his “Complaint for Declaratory Relief” against
Murphy Land in federal court based on diversity of citizenship jurisdiction. Dkt. 1. Hilliard
is a citizen of California and Murphy Land is a citizen of Idaho. Hilliard alleges in his
Complaint that he had exercised the Option to purchase the Property on July 27, 2016, and
that Murphy Land subsequently failed to provide the capital improvements documentation
relating to the purchase price as required.
On October 5, 2018, Murphy Land filed the pending motion for summary judgment.
Dkt. 21. Murphy Land asserts it is entitled to summary judgment because Hilliard is only
seeking declaratory judgments as his remedy and such judgments would be moot because
the time for performance of the contract has come and passed without Hilliard performing
his obligations under the Agreement. Additionally, it should be entitled to summary
judgment since Hilliard failed to properly exercise the Option before the Agreement
terminated as of December 30, 2016.
III.

STANDARD OF REVIEW

Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the non-moving party, demonstrates “there is no genuine issue of any material
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fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. County of Los Angeles, 477
F.3d 652, 658 (9th Cir. 2007). Evidence includes “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . .” Celotex, 477 U.S.
at 322 (quoting Fed. R. Civ. P. 56(c)).
The moving party initially bears the burden to show no material fact is in dispute
and a favorable judgment is due as a matter of law. Id. at 323. If the moving party meets
this initial burden, the non-moving party must identify facts showing a genuine issue for
trial to defeat the motion for summary judgment. Cline v. Indus. Maint. Eng’g &
Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000). The Court must grant summary
judgment if the nonmoving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322.
IV.

DISCUSSION

Before analyzing the Agreement, the Court first reviews whether there is a
justiciable controversy before it or if Hilliard is essentially seeking an advisory opinion
from the Court.
In his Complaint, Hilliard “prays for judgment as follows”:
1) For a declaration that plaintiff has properly exercised the Option;
2) For a declaration that the purchase price of the property pursuant
to Section 5 of the Option is $13,680,000 and that defendant is not
entitled to an increase in the purchase price of the property.
3) For a declaration that plaintiff is entitled to the value of all growing
crops on the property as of September 26, 2016. To present.

MEMORANDUM DECISION AND ORDER - 4

4) For costs of suit incurred herein, including attorneys’ fees pursuant
to Section 25 of the Option; and
5) For such other and further relief as the Court deems just and proper
[sic]
Dkt 1, at 4. Here, Hilliard is not seeking specific performance or to quiet title. See Dkt. 22,
at 19 (Hilliard acknowledging he would need to amend his Complaint to seek that remedy:
“were Hilliard to amend, seeking specific performance . . . .”). Additionally, he does not
specifically allege any breach of contract claims, so he cannot recover monetary relief on
those grounds. Finally, he does not ask for damages at all in his prayer for relief.
Declaratory relief actions are different than actions seeking damages. “A particular
declaratory judgment draws its equitable or legal substance from the nature of the
underlying controversy.” Transamerica Occidental Life Ins. Co. v. DiGregorio, 811 F.2d
1249, 1251 (9th Cir. 1987) (internal citations omitted). Even if the declaratory relief
plaintiffs seek are truly equitable in nature, their claim for declaratory relief may be moot.
Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 867 (9th Cir. 2017).
As a result, only some claims seeking a declaratory judgment satisfy Article III’s
case or controversy requirement. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007). “A case or controversy exists justifying declaratory relief only when ‘the
challenged . . . activity . . . is not contingent, has not evaporated or disappeared, and, by its
continuing and brooding presence, casts what may well be a substantial adverse effect on
the interests of the . . . parties.’” Seven Words LLC v. Network Sols., 260 F.3d 1089, 1098–
99 (9th Cir. 2001) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012,
1015 (9th Cir. 1989)). Thus, the test for mootness applied to a claim for declaratory relief

MEMORANDUM DECISION AND ORDER - 5

“is whether the facts alleged, under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc., 549 U.S. at
127 (quoting Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 273 (1941)).
A declaratory judgment that “vindicate[s] [plaintiffs’] rights and make [them] the
prevailing party in [the] action . . . . is not an appropriate exercise of federal jurisdiction.”
Bayer, 861 F.3d at 868. The “value of the judicial pronouncement—what makes it a proper
judicial resolution of a ‘case or controversy’ rather than an advisory opinion—is in the
settling of some dispute which affects the behavior of the defendant towards the plaintiff.”
Hewitt v. Helms, 482 U.S. 755, 761 (1987) (emphasis in original).
1. Hilliard’s Requests for Judicial Declarations that He Properly Exercised the
Option and the Purchase Price was $13,680,000
Here, even if (1) the Court declares Hilliard properly exercised the Option and the
purchase price was $13,680,000; and (2) Hilliard had pled a claim for specific
performance, the Court could not change the ownership of the property. As of April 17,
2017, Murphy Land “no longer holds any title or interest in the Property.”3 Dkt. 23, at 9;
Dkts. 23-3, 23-4.
In Paloukos v. Intermountain Chevrolet Co., a sale of goods case governed by the
Idaho version of the Uniform Commercial Code (“UCC”), the Supreme Court of Idaho
held “[i]t is well established that the courts will not order the impossible, such as ordering
the seller under a sales contract to sell to the buyer that which the seller does not have,”

3

The Complaint was filed on May 29, 2018, over a year after Murphy Land sold the Property. Dkt. 1.

MEMORANDUM DECISION AND ORDER - 6

and dismissed the claim for specific performance. 588 P.2d 939, 944–45 (Idaho 1978). In
Fazzio v. Mason, a real estate case, the Supreme Court noted in dicta that while its ruling
in Paloukos related to a case governed by the UCC, rather than the sale of property, “the
case sets forth the general equitable doctrine that a court should not order specific
performance where it is impossible—not merely impractical—for the defendant to
comply.” 249 P.3d 390, 394–95 (Idaho 2011). Thus, “[t]he defense of impossibility is a
complete defense that excuses the defendant from performing.” Id. at 393–94. Because
Murphy Land no longer holds an interest in, or title to, the Property, the defense of
impossibility is a complete defense that excuses Murphy Land from specific performance.
Id. at 393–94.
Thus, judicially declaring that Hilliard properly exercised the Option and the
purchase price was $13,680,000 would merely vindicate Hilliard’s legal rights and make
him the prevailing party in the action—it would not settle a dispute that affects the behavior
of the defendant towards the plaintiff. The Property would remain in possession of the new
owner, Global AG Properties II USA, LLC. Accordingly, Hilliard’s first two causes of
action (i.e., requests for relief) appear to be moot; there is no live controversy for this court
to resolve.
However, in Hilliard’s response to Murphy Land’s motion for summary judgment,
he raises for the first time that he seeks “ancillary” or monetary damages related to his
claims. See Dkt. 22, at 3 (“The complaint seeks declaratory relief and ancillary relief in the
form of damages for Murphy [Land]’s breach of the option contract.”). Murphy Land
argues Hilliard cannot recover the later type of damages because his Complaint does not
MEMORANDUM DECISION AND ORDER - 7

request “ancillary relief,” and the Court should ignore such claims because “summary
judgment is not a procedural second chance to flesh out inadequate pleadings,” such as
“Hilliard’s unpled breach of contract and specific performance claims.” Dkt 23, at 7–8.
(quoting Pro-Formance Lube Ctr., Inc. v. BP Lubricants USA, Inc., 2009 WL 10678745,
at *7 (D. Idaho July 31, 2009) (quoting Navajo Nation v. United States Forest Service, 535
F.3d 1058, 1080 (9th Cir. 2008)).
Here, not only did Hilliard fail to request any damages in his Complaint or
specifically allege a breach of contract claim, he also titled it “Complaint for Declaratory
Relief.” Dkt. 1, at 1. Hilliard’s “declaratory relief claim essentially seeks to establish its
rights to damages pursuant to a fully-matured claim for breach of contract, which the Court
finds inappropriately suited for an action for declaratory relief.” Enodis Corp. v. Cont’l
Cas. Co., No. CV 04-4357 CAS PJWX, 2009 WL 863586, at *9 (C.D. Cal. Mar. 26, 2009),
aff’d in part, rev’d on other grounds in part and remanded, 417 F. App’x 668 (9th Cir.
2011).
District courts have discretion to decide that plaintiffs are not entitled to damages
related to their declaratory relief claims. See Cont’l Cas. Co. v. Enodis Corp., 417 F. App’x
668, 670 (9th Cir. 2011) (“The district court did not err in concluding that granting the
[monetary] relief sought by [the plaintiff] would be inconsistent with both the purpose of
declaratory relief in general and with the Court’s November 19, 2007 order denying [the
plaintiff] leave to add a breach of contract claim.” (internal quotation marks and citation
omitted)). This is because parties must have notice of the claims asserted against them. As
the Ninth Circuit detailed at length in Seven Words LLC v. Network Sols:
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Rule 8(a)(3) requires a claim to contain “a demand for judgment for the relief
the pleader seeks.” Although our decisions go to great lengths to underscore
the breadth of notice pleadings, see, e.g., Lee v. City of Los Angeles, 250 F.3d
668, 679–80, 682–88 (9th Cir. 2001), the principle is not without limits.
Surely a simple request “for damages” would satisfy the notice requirement
without imposing any undue burden on the drafter. Otherwise, notice
pleading might allow a plaintiff to file, in any case, a complaint consisting of
no more than the useless statement, “I was wronged and am entitled to
judgment for everything to which I am entitled.” Such a result would
undermine the intent of the civil rules and prejudice the opposing party.
260 F.3d 1089, 1098 (9th Cir. 2001). The Seven Words court ultimately declined to read a
damage claim into the plaintiff’s complaint because it was “made after two years of
litigation, after various representations that it was seeking only declaratory and injunctive
relief, after a motion to dismiss, and at the eleventh hour, only days before oral argument
on appeal.” Id. See generally Navajo Nation, 535 F.3d at 1080 (holding that although the
claim was briefed at summary judgment by all parties and presented at oral argument to
the district court, “our precedents make clear that where, as here, the complaint does not
include the necessary factual allegations to state a claim, raising such claim in a summary
judgment motion is insufficient to present the claim to the district court”).
The Court agrees with the Ninth Circuit that pleadings should, both literally and in
theory, consist of more “than the useless statement, ‘I was wronged and am entitled to
judgment for everything to which I am entitled.’” Seven Words, 260 F.3d 1089.
Accordingly, it declines to read a breach of contract damage claim into Hilliard’s
“Complaint for Declaratory Relief.” Furthermore, as previously stated, even if Hilliard had
included a claim for specific performance, it is impossible for the Agreement to be
performed given the sale of the Property. Thus, the Court dismisses his first two requests

MEMORANDUM DECISION AND ORDER - 9

for judicial declarations regarding the interpretation of the Agreement as moot.
2. Hilliard’s Request for a Judicial Declaration that He Is Entitled to the Value
of the Growing Crops on the Property
With regards to Hilliard’s third cause of action, that for a declaration that he is
entitled to the value of all growing crops on the property from September 26, 2016 to the
present, the Court also dismisses it with prejudice.
The Court first notes that Hilliard did not ask for breach of contract damages but
rather asked only for a declaration that he is entitled to certain rights. Again, such a
declaratory relief claim essentially seeks to establish Hilliard’s rights to damages pursuant
to a fully-matured claim for breach of contract, rather than an action for declaratory relief.
Here, though, the Court could more plausibly construe Hilliard’s claim to be for breach of
contract damages and find that Murphy Land had sufficient notice of the claim such that
amendment would not be unduly prejudicial.4 However, even if the Court allowed Hilliard
to amend his claim to be a claim for damages, such amendment would be futile due to the
clear language of the Agreement.
In breach of contract cases, courts first look to the document’s language. “In the
absence of ambiguity, the document must be construed in its plain, ordinary and proper
sense, according to the meaning derived from the plain wording of the instrument.” C &
G, Inc. v. Rule, 25 P.3d 76, 78 (Idaho 2001). “A contract term is ambiguous when there are
two different reasonable interpretations or the language is nonsensical.” Potlatch Educ.
4

The Court declines to actually construe Hilliard’s third cause of action to be one for breach of contract
damages, for the reasons cited in Section 1 of this opinion as well as because Hilliard himself has titled his
Complaint in full as one for “Declaratory Relief” and never mentions “breach of contract” in the four
corners of his Complaint. See Dkt. 1.

MEMORANDUM DECISION AND ORDER - 10

Ass’n v. Potlatch Sch. Dist. No. 285, 226 P.3d 1277, 1280 (Idaho 2010) (internal citations
omitted). “Whether a contract is ambiguous is a question of law, but interpreting an
ambiguous term is an issue of fact.” Id.
Here, the contact is unambiguous. Section 9 of the Agreement details the terms of
how the parties shall conduct the closing of the purchase. Under the Agreement it lays out:
Seller’s Right to Remove Growing Crops. Seller shall have the right to
remove any and all growing crops on that portion of the subject property to
be purchased hereunder or, in the alternative, Buyer may elect to reimburse
Seller for any documented costs incurred in the growing of the crops.
Agreement, § 9(c). The Agreement explicitly states that Murphy Land, not Hilliard, shall
retain profits from crops grown on the Property prior to the transfer. In addition, the
Agreement expressly lays out in Section 4, the Option to Purchase clause, that “Seller
hereby grants to Buyer the exclusive right and Option to Purchase all right, title and interest
in and to the Property for, and only for, the location of a nuclear power plant facility.”
Agreement, § 4.
The parties never contemplated Hilliard would use the Property to grow crops or
that Hilliard would be entitled the value of the crops grown by other people on the Property.
Even if the third cause of action was for breach of contract damages, Hilliard would still
not be entitled to the crop value. “The measure of damages for breach of contract are those
which will ‘fairly compensate the injured party for his loss.’” Broersma v. Sinor, 676 P.2d
730, 733 (Idaho Ct. App. 1984) (quoting Anderson v. Gailey, 606 P.2d 90, 94 (Idaho 1980).
Here, the loss the parties contemplated Hilliard might suffer when signing the Agreement
for breach of contract was the loss of using the property solely as the location of a nuclear

MEMORANDUM DECISION AND ORDER - 11

power plant facility. Thus, even if the Court granted Hilliard leave to amend, such
amendment would be futile.
V.

LEAVE TO AMEND

Once the deadline for completing discovery “set in the scheduling order has passed,
the party’s request to amend is judged under Federal Rules of Civil Procedure (“FRCP”)
16’s ‘good cause’ standard rather than the ‘liberal amendment policy’ of FRCP 15(a).”
DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017),
cert. denied, 138 S. Ct. 1559 (2018) (citing In re W. States Wholesale Nat. Gas Antitrust
Litig., 715 F.3d 716, 737 (9th Cir. 2013)). “Rule 16 was designed to facilitate more efficient
disposition of cases by settlement or by trial. If disregarded it would ‘undermine the court’s
ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the
indolent and the cavalier.’” Walker v. City of Pocatello, No. 4:15-CV-00498-BLW, 2017
WL 1650014 at *1 (D. Idaho May 1, 2017) (quoting Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 610 (9th Cir. 1992).
The “central inquiry” of whether good cause exists “is whether the requesting party
was diligent in seeking the amendment.” DRK Photo, 870 F.3d at 989; Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “[T]he existence or degree
of prejudice to the party opposing the modification might supply additional reasons to deny
a motion,” but a court should focus its inquiry “upon the moving party’s reasons for seeking
modification.” Johnson, Inc., 975 F.2d at 609. If the moving party was not diligent, “the
inquiry should end.” Id. at 609. On the other hand, if the party seeking amendment

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establishes “good cause” under Rule 16, the party then must demonstrate that amendment
is proper under Rule 15. Id.
On or around April 17, 2017, Murphy Land sold and transferred title to the Property
to Global AG Properties II USA, LLC, and those records were duly recorded as Instrument
#292512 in the Idaho Owyhee County Recorder’s Office. Dkt. 23-4. “Under Idaho’s
recording statutes, every conveyance of real property acknowledged or proved, and
certified and recorded as prescribed by law, is constructive notice of its contents to
subsequent purchasers and mortgagees from the time it is filed.” Kalange v. Rencher, 30
P.3d 970, 973 (Idaho 2001) (citing I.C. § 55–811). “Constructive notice imparted from the
record, therefore, is a matter of statute.” Id.
Over a year later, Hilliard filed his “Complaint for Declaratory Relief” against
Murphy Land on May 29, 2018. Dkt. 1. Murphy Land moved for summary judgment on
October 5, 2018. It explicitly stated in its reply, filed on November 9, 2018, that “Murphy
Land [C]ompany sold and transferred title to the Property on or about April 17, 2017, and
those records were duly recorded with the Owyhee County Recorder’s Office . . . .” Dkt.
23, at 9. Pursuant to the Case Management Order, the completion deadline for all fact
discovery was November 15, 2018. Dkt 20, para. 6. Hilliard had both constructive and
actual notice before discovery closed that the relief he was seeking was moot.
Due to matters outside of the parties’ control, the Court heard oral argument on
Murphy Land’s motion for summary judgment on November 15, 2019, more than a year
after Murphy Land filed its motion for summary judgment and after the deadline for
discovery had passed. During that time, Hilliard never sought leave to amend and still has
MEMORANDUM DECISION AND ORDER - 13

not formally requested leave to amend his Complaint.
During the motion hearing, the Court asked Hillard whether he even intended to
seek leave to amend. His counsel responded yes, that Hilliard would amend the complaint
to take into account what he had recently learned,5 but only if Hilliard’s Complaint survived
the motion for summary judgment. Hilliard’s counsel also stated that it was his
understanding that in federal court, parties do not typically amend pleadings while
summary judgment is pending, so Hilliard was not going to seek leave to amend until the
Court ruled on the pending motion. That understanding and calculation had not been
previously conveyed to the Court via any formal or informal means.
The Court cannot find that such internal legal strategies by a party show the
diligence required to satisfy Rule 16’s “good cause” standard. Additionally, even if Hilliard
had only learned about the sale of the Property when Murphy Land gave him actual notice
on November 9, 2018, and Hilliard’s rationale for not moving to amend his Complaint was
correct (the Court is not convinced), he would still have not shown the requisite diligence.
Hilliard had constructive notice before his Complaint was even filed that his requested
declaratory relief would merely amount to an advisory opinion, as the Court could not order
Murphy Land to do the impossible and complete the sale of real estate pursuant to the
Agreement. If Hilliard had been sufficiently diligent, he would have never had to amend
his Complaint, as he would have already taken the relevant and knowable facts into account

5

It was unclear whether counsel for Hilliard was using the term “recently learned” to reference the fact that
Hilliard had only learned that the Property was sold from Murphy Land’s November 9, 2018 reply (after
the motion for summary judgment was filed), or that he had only learned the fact at the hearing itself, as
counsel also said during the hearing that it was the first time he had heard Murphy Land sold the Property.

MEMORANDUM DECISION AND ORDER - 14

prior to filing his Complaint on May 29, 2018.
A party who “‘has been aware of the facts and theories supporting amendment since
the inception of the action’ and has failed to amend despite opportunity to do so has not
been diligent.” Ohio Sec. Ins. Co. v. Axis Ins. Co., No. C15-5698 BHS, 2018 WL 5013774,
at *2 (W.D. Wash. Oct. 16, 2018) (quoting Neidermeyer v. Caldwell, 718 F. App’x 485,
489 (9th Cir. 2017), cert. denied, 139 S. Ct. 73 (2018). As such, the Court finds Hilliard
was not diligent in asserting any claims other than his declaratory relief ones. Thus—
assuming he ever formally requests leave to amend—he has failed to show good cause to
add or amend any claims after the time for amending pleadings has expired. Because
Hilliard has not shown good cause under Rule 16, the Court need not address whether
amendment would be just under Rule 15; the Court dismisses Hilliard’s complaint without
leave to amend.
VI.

CONCLUSION

Murphy Land’s motion for summary judgment is granted because there is not a
justiciable controversy before the Court. Hilliard is preemptively denied leave to amend
his Complaint. The case is dismissed with prejudice.
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VII.

ORDER

Therefore, it is HEREBY ORDERED:
1. Defendant’s Motion for Summary Judgment (Dkt. 21) is GRANTED;
2. This case is dismissed in its entirety and closed;
3. A separate judgment will be issued.

DATED: December 9, 2019

_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 16