Munich Reinsurance America,Inc. v. Munich Reinsurance America. Inc.

Filing 21

MEMORANDUM Opinion Signed by the Honorable John F. Grady on 2/17/2010. (tc, )

09-4027.101-RSK

February 17, 2010

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MICHAEL T. McRAITH, Plaintiff, v. AMERICAN RE-INSURANCE CO. et al., Defendants. ) ) ) ) ) ) ) ) )

No. 09 C 4027

MEMORANDUM OPINION Before the court is the plaintiff's objection to removal and motion to remand. For the reasons explained below we deny

plaintiff's motion. BACKGROUND Plaintiff Michael T. McRaith, the director of the Illinois Department of Insurance, is the court-appointed "Rehabilitator" of Centaur Insurance Company ("Centaur"). See generally In the Matter of the Rehabilitation of Centaur Ins. Co., No. 87 CH 8615 (Ill. Cir.) (hereinafter, the "Rehabilitation Proceeding."). The current plan of rehabilitation, entered by the Circuit Court of Cook County (the "Supervisory Court") on December 8, 2000, directs McRaith to marshal Centaur's assets "to provide maximum distribution or

distributions to the policyholders and creditors of Centaur." (See Centaur Ins. Co. Second Rev. Plan of Rehab., attached as Ex. 1 to Obj. to Removal, § 2.02.) McRaith is authorized, in turn, to

-2-

"bring any action" against "any other person with respect to that person's dealings with" Centaur. 5/192. See Ill. Ins. Code, 215 ILCS

Pursuant to that authority McRaith filed this lawsuit in

the Circuit Court against defendants American Re-Insurance Company (n/k/a Company Munich (f/k/a Reinsurance Ace America, Inc.) and INA Reinsurance n/k/a R&Q

American claiming

Insurance that

Company, are

Reinsurance

Company),

they

contractually

obligated to pay a portion of a settlement entered into between McRaith and one of Centaur's insureds. The parties' dispute arises from two insurance policies issued by Centaur to J.T. Thorpe Company ("Thorpe"), which was in the business of selling, installing, and removing asbestos insulation. (Compl. ¶¶ 9, 13.) Thorpe, which has been named in over 80,000

claims arising from that business, has since filed for bankruptcy. (Id. at ¶¶ 13-14.) Thorpe filed a proof of claim in the

Rehabilitation Proceeding seeking $45 million, the limits of its policies with Centaur. (Id. at ¶ 16; see also Decision re Thorpe Aff. of Arthur F. Brandt (hereinafter,

Claim, attached as Ex. D to

"Brandt Aff."), at 1.) McRaith moved to disallow Thorpe's claim in its entirety, arguing (among other things) that Thorpe had not adequately documented its claim. 2.) (See Decision re Thorpe Claim at

The Supervisory Court denied McRaith's motion in an opinion (Id. at 13.) Thereafter Thorpe and (Compl. ¶

dated November 18, 2004.

McRaith negotiated to settle their coverage dispute.

-3-

18.)

On

July

7,

2006 the

McRaith's had

representative settled

notified claim

the for (See

defendants

that

parties

Thorpe's

$31,950,000, subject to the Supervisory's Court's approval.

Letters dated July 7, 2006, attached as Exs. F & G to Brandt Aff.).) billable" The notices stated that the settlement was "immediately to the defendants pursuant to the reinsurance (Id.) The

certificates issued by the defendants to Centaur.

defendants filed objections to the proposed settlement in the Circuit Court while "reserv[ing]" their rights and defenses under the reinsurance certificates. I & J to Brandt Aff.) (See Defs.' Objs., attached as Exs. Supervisory Court approved the

The

settlement, concluding that it was "fair, reasonable and adequate based on the complexity, expense and likely duration of the

litigation."

(See Opinion dated June 12, 2007, attached as Ex. K At the same time it rejected McRaith's attempts to (Id. at 4

to Brandt Aff.)

bind the reinsurers to pay a portion of the settlement.

("The objecting reinsurers, whose policies are not the subject of the Petition, are not parties to this cause, though they were given notice of the proceeding and allowed to file objections.").) The

court's order approving the settlement is even more explicit: "nothing in this ORDER shall impact, limit, or prejudice any rights, remedies and/or defenses the Reinsurers may have under the law or pursuant to their reinsurance contracts, all of which are fully preserved for any future arbitration or litigation relating

-4-

to reinsurance issues."

(See Order Regarding Claim of JT Thorpe, That

dated June 12, 2007, attached as Ex. B. to Brandt Aff.) "future litigation" is now upon us. DISCUSSION

In his complaint in this case McRaith requests a declaration under the Illinois Declaratory Judgment Act that the defendants are obligated to pay a portion of the Thorpe settlement pursuant to the parties' reinsurance treaties. (Compl. at Counts I (as to American Re-Insurance) & III (as to R&Q Reinsurance).) He also requests

damages for breach of contract against each of the defendants based upon the same allegations. (Compl. at Counts II (as to American The defendants

Re-Insurance) & IV (as to R&Q Reinsurance).)

removed this action pursuant 28 U.S.C. §§ 1332 and 1441, and McRaith now moves to remand the case back to state court on two grounds: (1) McCarran-Ferguson "reverse-preemption," and (2)

abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943). A. McCarran-Ferguson Act McRaith argues that under the McCarran-Ferguson Act Illinois's Insurance Code preempts the federal diversity-jurisdiction statute and requires us to remand this case to the Circuit Court. relevant provision of the McCarran-Ferguson Act provides that, No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance . . . . The

-5-

15 U.S.C. § 1012(b). whether, under

We apply a three-part test to determine federal law is "reverse

McCarran-Ferguson,

preempted" by state insurance law: (1) "does the federal statute at issue `specifically relate to the business of insurance;'" (2) "was the state statute `enacted . . . for the purpose of regulating the business of insurance;'" and (3) "would application of the federal statute `invalidate, impair or supersede' the state law." Autry v. Northwest Premium Serv., Inc., 144 F.3d 1037, 1040-41 (7th Cir. 1998) (quoting United States Dept. of the Treasury v. Fabe, 508 U.S. 491, 501 (1993)) (internal quotation marks omitted). answer to the first inquiry is clearly "no." The

Turning the second

inquiry, "a statute is `enacted . . . for the purpose of regulating insurance' if it possesses the end, intention, or aim of adjusting, managing, or controlling the relationship between the insurance company and the policyholder, directly or indirectly." 1044. Id. at

In Autry our Court of Appeals held that a state law premium finance agreements did not satisfy this

regulating

definition: "[t]he statute may serve to protect someone who happens to be an `insured,' but it does not protect that person in his capacity as a party to a contract of insurance. The fact that the

money borrowed ultimately pays insurance premiums is incidental." Id. McRaith relies on Boozell v. United States, 979 F.Supp. 670,

678 (N.D. Ill. 1997), a pre-Autry decision which held that the Illinois statute governing the priority of claims to an insolvent

-6-

insurer's estate was enacted for the purpose of regulating the business of insurance. By contrast, the court in Shapo v. Engle,

No. 98 C 7909, 1999 WL 1045086, *11-12 (N.D. Ill. Nov. 2, 1999) reached the opposite conclusion in a case involving an Illinois statute regulating the liquidator's right to recover distributions from the insolvent insurer's affiliates. Although the statute

might benefit an insured by recovering assets for the insurer's estate, "it does not protect that person in his capacity as a party to a contract of insurance." Id. at *11 (quoting Autry, 144 F.3d

at 1044)(internal quotation marks omitted). Shapo is closer to our facts than Boozell and we find its interpretation of Autry

persuasive.

We conclude that § 5/192 was not enacted for the

purpose of regulating the business of insurance.1 Even if we were to conclude otherwise, we are not persuaded that the federal diversity and removal statutes invalidate, impair, or supercede Illinois state law. Code does not purport to Article XIII of the Insurance on state courts exclusive

confer

jurisdiction to hear claims filed by the rehabilitator against third parties, even assuming that such a provision would defeat

McRaith generally cites the "sections of Article XIII regarding the r e h a b i l i t a t i o n of Centaur" as the relevant state law for McCarran-Ferguson's p u r p o s e s . (Obj. to Removal at 6-7.) Our Court of Appeals specifically rejected t h i s approach in Autry. See Autry, 144 F.3d at 1043 n.4 (focusing on the s p e c i f i c provision of the Illinois Code dealing with premium finance agreements, a n d rejecting the defendants' attempts to rely on other, related provisions). S e c t i o n 5/192 gives McRaith standing to pursue this lawsuit, which is otherwise g o v e r n e d by state contract law. It is that provision, then, which must have been " e n a c t e d for the purpose of regulating the business of insurance" according to t h e standard announced by the Court in Autry.

1/

-7-

federal diversity jurisdiction.

Cf. Gross v. Weingarten, 217 F.3d

208, 221 (4th Cir. 2000) ("The Supreme Court has repeatedly and unequivocally rejected the deputy receiver's contention that a state may oust the federal courts of jurisdiction by creating an exclusive forum for claims against an estate.") (citing cases).2 Accordingly, our concurrent jurisdiction does not "supercede" or "invalidate" state law. See Humana, Inc. v. Forsyth, 525 U.S. 299, 307-08 (1999)(defining "supercede" and "invalidate" to mean "render ineffective," with or without a substitute rule). Nor are we

persuaded that it would "impair" Illinois's rehabilitation scheme. "[W]hen federal law does not directly conflict with state

regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarran-Ferguson Act does not preclude its application." provides a Id. at 310. McRaith argues that Illinois law scheme of rehabilitation and

"comprehensive"

liquidation, which is an accurate generalization.

But he has not

persuaded us that federal jurisdiction in this case interferes with that scheme. The proceeds of any judgment that McRaith obtains in

federal court will be distributed to policyholders and other

2/ McRaith muddies the waters by insisting that as rehabilitator he owns t i t l e to the reinsurance certificates and that the Circuit Court was the first c o u r t to assume jurisdiction over that property. (Obj. to Removal at 13); see, e . g . , Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 466 (1939) ( " [ T ] h e court first assuming jurisdiction over property may maintain and exercise t h a t jurisdiction to the exclusion of the other."). That rule does not apply to i n personam proceedings, id. at 465-66, and a lawsuit for breach of contract is " a quintessential in personam proceeding." Burr & Forman v. Blair, 470 F.3d 1 0 1 9 , 1032 (11th Cir. 2006).

-8-

creditors in the rehabilitation proceeding according to their relative priority as determined by state law. See Gross, 217 F.3d

at 222 (McCarran-Ferguson did not preempt federal litigation where the state court retained ultimate control over the disposition of the insolvent insurer's estate); see also Grimes v. Crown Life Ins. Co., 857 F.2d 699, 702 (10th Cir. 1988) ("[T]he policy of the McCarran-Ferguson Act was to leave the regulation of insurers to the states, it did not intend to divest federal courts of the right to apply state law regarding the regulation of insurers in

appropriate diversity proceedings."); cf. AmSouth Bank v. Dale, 386 F.3d 763, 783 (6th Cir. 2004) (citing Gross and Grimes and

concluding that state law governing the liquidation of insolvent insurers did not reverse-preempt the Declaratory Judgment Act).3 In sum, we conclude that state law does not reverse preempt the federal diversity and removal statutes in this case. B. Burford Abstention

3/ Some of the district court cases that McRaith relies on take a broader v i e w of McCarran-Ferguson preemption than we think is consistent with Autry and H u m a n a . See Kessner v. One Beacon Ins. Co., No. 4:09CV3003, 2009 WL 1408973, *34 (D. Neb. May 18, 2009); Corcoran v. Universal Ins. Corp., 713 F.Supp. 77, 81 ( S . D . N . Y . 1989). In other cases the liquidator's cause of action was created by t h e liquidation statute itself. See In re Amwest Surety Ins. Co., 245 F.Supp.2d 1 0 3 8 (D. Neb. 2002) (removal statute reverse preempted in action by liquidator t o invalidate preferential transfers). Here, McRaith is stepping into Centaur's s h o e s and asserting a contract claim that Centaur could have asserted on its own b e h a l f but for the rehabilitation. See Florida Dept. of Financial Services v. M i d w e s t Merger Management, LLC, No. 4:07cv207-SPM/WCS, 2008 WL 3259045, *4 n.3 ( N . D . Fla. Aug. 6, 2008)(distinguishing Amwest, among other authorities: "this c a s e does not involve recovery from a preferential transfer, which claim arises u n d e r insurance liquidation laws and for which the receivership court has e x c l u s i v e jurisdiction.").

-9-

In the alternative, McRaith argues that we should abstain from exercising jurisdiction pursuant to the policy articulated by the Supreme Court in Burford. Burford abstention is appropriate in two circumstances: First, we should abstain from deciding difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the present case. Second, we should abstain from the exercise of federal review that would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Hartford Casualty Ins. Co. v. Borg-Warner Corp., 913 F.2d 419, 425 (7th Cir. 1990). This case does not involve a difficult and far-

reaching question of state law, so only the second circumstance is relevant. Our Court of Appeals noted in Hartford, a case which

also arose out of Centaur's rehabilitation, that "there are a large number of cases where federal courts have abstained lest they upset ongoing state insurance insolvency proceedings." Id. at 426.4 At

the same time, we must bear in mind that "abstention is the exception and not the norm." recognized in Burford Id. at 425. an "[T]he power to dismiss and narrow

represents

extraordinary

exception to the duty of the District Court to adjudicate a controversy properly before it." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996) (citation and internal quotation marks omitted). In addition, claims for damages and discretionary relief

4/ For example, the court in Grimes -- cited earlier in this opinion -- a b s t a i n e d under Burford after concluding that the McCarran-Ferguson Act did not p r e e m p t federal jurisdiction. See Grimes, 857 F.2d at 706.

- 10 -

are treated differently: only the latter may be dismissed or remanded under Burford. Id. at 730-31. McRaith's breach-ofId. McRaith acknowledges

contract claims may only be stayed.

Quackenbush, (Reply at 13), but incorrectly assumes that we can circumvent its holding and remand the entire action to the state court in the interests of judicial economy. Cf. Superior Beverage

Co., Inc. v. Schieffelin & Co., 448 F.3d 910, 914 (6th Cir. 2006) ("[T]he claim was for both equitable and money damages and,

therefore, the district court's order dismissing and remanding the instant action constituted an `abnegation of judicial duty.'") (quoting Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 29 (1959)). Given our obligation to retain the breach-of-contract Indeed,

claims, judicial economy supports the opposite result.5

remanding even a portion of the case is an option only because McRaith elected to add what appear to be redundant declaratoryjudgment counts to a straightforward breach-of-contract complaint. The court in Koken v. Cologne Reinsurance (Barbados), Ltd., 34 F.Supp.2d 240, 249 (M.D. Pa. 1999), faced with a similar situation, refused to abstain: "[s]ince the case is really a damages action, we refuse to exercise our discretion to abstain when the requests

5/ In a recent case involving a different abstention doctrine our Court o f Appeals concluded that the judiciary's interest in avoiding piecemeal l i t i g a t i o n supported retaining jurisdiction over an entire action if the court w a s required to adjudicate a portion of the lawsuit. See R.R. Street & Co., Inc. v . Vulcan Materials Co., 569 F.3d 711, 714-717 (7th Cir. 2009) (applying W i l t o n / B r i l l h a r t abstention, pursuant to which district courts have "considerable l e e w a y in deciding whether to entertain declaratory judgment actions even though s u b j e c t matter jurisdiction is established."). R.R. Street is not controlling, a s McRaith points out, but it is instructive.

- 11 -

for declaratory relief were probably included simply to set the table for an abstention motion under Burford." Even setting aside these concerns, we are not persuaded that Burford abstention is appropriate. Appeals articulated a non-exclusive In Hartford our Court of list of factors to help

determine "whether a federal court should exercise its jurisdiction within the context of the insurance industry:" First, is the suit based on a cause of action that is exclusively federal? Second, does the suit require the court to determine issues that are directly relevant to state policy in the regulation of the insurance industry? Third, do state procedures indicate a desire to create special state forums to regulate and adjudicate these issues? Fourth, are difficult or unusual state laws at issue? Hartford, 913 F.2d at 425. of This case does not tends involve to an

exclusively abstention.

federal

cause

action,

which

favor

Id. at 426 ("It is the states that have the paramount

interest in an uniform insurance rehabilitation process."); see also Izzo v. Borough of River Edge, 843 F.2d 765, 769 (3d Cir. 1988) ("If only state law applies, Burford abstention carries more weight than when federal interests require evaluation as well."). On the other hand, the issues in this case are not "directly relevant to industry." state policy in the regulation of the insurance

This is an ordinary breach of contract action that See Grode v.

happens to involve an insurer in rehabilitation.

Mutual Fire, Marine and Inland Ins. Co., 8 F.3d 953, 960 (3d Cir. 1993) ("Simple contract and tort actions that happen to involve an

- 12 -

insolvent insurance company are not matters of important state regulatory concern or complex state interests."). We also note in

this connection that the issues raised in this lawsuit are not "difficult or unusual." to apply state law to Federal courts are routinely called upon interpret insurance policies e.g., and to

adjudicate

insurance

coverage

disputes.

See,

Medical

Protective Co. v. Kim, 507 F.3d 1076 (7th Cir. 2007). Illinois has created a special state forum for insurer

rehabilitation and liquidation, but abstention is not required simply because such a forum exists. See New Orleans Public

Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 362 (1989) ("While Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a `potential for conflict' with state regulatory law or policy.") (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816 (1976)).6 In cases like Hartford where the insolvent insurer or its

representative is the defendant the potential to disrupt the

Neither side makes much of the fact that the case was not assigned to t h e judge presiding over the Rehabilitation Proceeding -- McRaith's motion to c o n s o l i d a t e the two cases was pending when the defendants removed the case to t h i s court. (Obj. to Removal at 5.) McRaith seems to assume that the motion w o u l d have been granted, and at various points in his briefs he argues as though i t already had been. (See, e.g., Reply at 8 (arguing that the defendants removed t h i s case "from" the Rehabilitation Proceeding).)) It is debatable, at least, w h e t h e r the cases would have been consolidated over the defendants' objections. Cf. Stamp v. Insurance Co. of North America, 908 F.2d 1375, 1379 (7th Cir. 1990) ( " A l l parties agree, moreover, that the liquidation court in Illinois lacks the a n c i l l a r y jurisdiction that a federal bankruptcy court possesses, so that the l i q u i d a t i o n court does not offer a forum in which all questions concerning R e s e r v e may be settled."). However, defendants have not pursued this argument.

6/

- 13 -

rehabilitation proceeding is clear.

See Hartford, 913 F.2d at 426

(Observing that the plaintiff was "attempting to jump ahead of Centaur's other creditors by filing a lawsuit outside the state rehabilitation proceedings.").7 It is less clear in cases where,

as here, the insurer (or its representative) is suing a third party. The defendants in this case are not seeking a leg up on See, e.g.,

other creditors in the rehabilitation proceeding.

Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1507 (8th Cir. 1992) (distinguishing Hartford on that ground). Some federal courts have abstained in similar circumstances, others have not. Compare Grode, 8 F.3d at 959 (declining to

abstain in an action by Pennsylvania's insurance commissioner against foreign reinsurers) with Corcoran v. Andra Ins. Co., Ltd., 842 F.2d 31, 37 (2d Cir. 1988) (abstaining in similar

circumstances). appropriate

The Corcoran court reasoned that abstention was lawsuits by the liquidator against third

because

parties affected "the degree to which the insolvent insurer's estate will have assets sufficient to satisfy the claims of its creditors." Corcoran, 842 F.2d at 37.8 The court in Grode, by

7/ See also Grode, 8 F.3d at 960 ("[C]ourts abstain in suits against i n s o l v e n t insurance companies for the same reasons that district courts refer b a n k r u p t c y cases to the bankruptcy courts: Insurance companies tend to issue i d e n t i c a l policies to a large number of people, rendering a single forum n e c e s s a r y to dispose equitably of the company's limited assets so as to avoid a r a c e to the courthouse."); Lac D'Amiante du Quebec, Ltee v. American Home A s s u r a n c e , Co., 986 F.2d 1033, 1045 (3d Cir. 1988) ("[A]ssumption of jurisdiction b y the federal court in a suit against an insolvent insurer in liquidation p r o c e e d i n g s would be highly disruptive of the state's regulatory scheme."). 8/ The Corcoran court also relied on the fact that the liquidator's a u t h o r i t y -- whether it merely stood in the insolvent insurer's shoes or had g r e a t e r rights -- was unsettled under New York law. Corcoran, 842 F.2d at 33, 37.

- 14 -

contrast, focused more narrowly on the relationship between the state's liquidation scheme and the particular dispute in that case. It concluded that Pennsylvania's "complex regulations relating to insolvent insurance companies" were not implicated by a "simple contract action" against foreign reinsurers. Grode, 8 F.3d at 955, 959.9 We could say much the same in this case. Accepting the

premise that the rehabilitator has the right to bring this lawsuit -- a fact that no one disputes -- Illinois's scheme to rehabilitate insolvent insurers does not affect the rights of the parties now before this court, which derive instead from the reinsurance treaties. The outcome of the lawsuit will affect Centaur's

creditors, but one could say that about any lawsuit involving an insolvent insurer. See, e.g., Sevigny v. Employers Ins. of Wausau, 411 F.3d 24, 29 (1st Cir. 2005) (financial impact on policyholders does not warrant abstention absent some "actual disruptive effect on the liquidation"). consistent with the We think that Grode's reasoning is more Supreme Court's emphasis that Burford

abstention is an "extraordinary and narrow" exception to our jurisdictional duty.10

M c R a i t h has not cited any comparable issue with respect Illinois's rehabilitation statute. The court also took into consideration the presence of a federal claim, a l t h o u g h it was not a dispositive factor in its decision. Grode, 8 F.3d at 960; c f . Mehan, 965 F.2d at 1504 (declining to abstain even though the lawsuit did not i m p l i c a t e federal law). See Mehan, 965 F.2d at 1507 (distinguishing Grimes and the Second C i r c u i t authority that it relied on (including Corcoran) on the ground that those c a s e s took a broad of view of abstention inconsistent with the Supreme Court's l a t e r pronouncements).
10/ 9/

- 15 -

McRaith points out that the Circuit Court has already decided issues that may be relevant to this litigation. But "our concern

in this case is the disruption of ongoing proceedings in another jurisdiction," Hartford, 913 F.2d at 427, not with the prospect of inconsistent rulings per se. Cf. id. at 426 (noting that the

probability of inconsistent rulings might allow the plaintiff to receive more than it was entitled to in the rehabilitation

proceeding).

Unlike Hartford, the outcome of this case is not See the

integrally related to the outcome of the state proceedings. Hartford, 913 F.2d at 426 (noting that the amount of

plaintiff's recovery in the federal litigation was inextricably tied to the amount of its claim in the rehabilitation proceeding). In approving the Thorpe settlement the Supervisory Court made it abundantly clear that its ruling did not affect any defenses the reinsurers might raise in subsequent litigation. Cf. id. (noting

that both the federal and state courts would be required to interpret the plaintiff's reinsurance treaties).11 other rulings, including those with respect The court's to Centaur's

obligations under its policies with Thorpe, will receive whatever preclusive effect they might be entitled to under the law. If

those rulings are not entitled to preclusive effect, as appears likely since the defendants are not parties to the Rehabilitation Proceeding, then the defendants are entitled to their day in court.

11/ McRaith points out that he would need the Supervisory Court's approval t o settle this case as well, but does not explain why his settlement authority ( o r lack thereof) supports abstention.

- 16 -

We do not believe that the "potential for conflict" warrants abstention in this case.

CONCLUSION Plaintiff's motion to remand (11) is denied. The parties

should immediately commence preliminary discovery if they have not already done so. 11:00 a.m. A status hearing is set for March 24, 2010 at

DATE:

February 17, 2010

ENTER:

___________________________________________ John F. Grady, United States District Judge