Ibarrola v. Kind, LLC

Filing 83

OPINION AND ORDER. The motion to dismiss 65 is granted. The First Amended Complaint is dismissed in its entirety with prejudice. Civil case terminated. Mail AO 450. Signed by the Honorable Sara L. Ellis on 3/12/2015: Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROCHELLE IBARROLA, on behalf of
herself and all others similarly situated,
Plaintiff,
v.
KIND, LLC,
Defendant.

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No. 13 C 50377
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Rochelle Ibarrola 1 brings this putative class action against Kind, LLC, a maker
of food products. Ibarrola purchased one of Kind’s products—Vanilla Blueberry Clusters with
Flax Seeds (“Vanilla Blueberry Clusters”)—on two occasions in 2013. Ibarrola brings this suit
pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill.
Comp. Stat. 505/1 et seq., and Illinois common law alleging that the packaging of Vanilla
Blueberry Clusters was deceptive in that it claimed that the product contained “no refined
sugars.” The Court previously dismissed Kind’s initial complaint for failure to adequately allege
deception or an injury. The First Amended Complaint (“FAC”) alleges that evaporated cane
juice and molasses, the two sweeteners identified on the products’ ingredient lists, are refined
sugars, and thus, that the “no refined sugars” claim was false and misleading to reasonable
consumers. Ibarrola seeks to represent a statewide and nationwide class of individuals who
purchased any of Kind’s four identified Healthy Grains products.

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In the case caption to the First Amended Complaint, Plaintiff for the first and only time spells her last
name “Ibarolla.” This may, in fact, be the accurate spelling of her last name. See Ibarolla v. Nutrex
Research, Inc., No. 12 C 4848, 2012 WL 5381236, at *1 (N.D. Ill. Oct. 31, 2012) (brought by
“Plaintiff Rochelle Ibarolla”). But because Plaintiff has overwhelmingly spelled her name “Ibarrola”
in this case, the Court will also do so.

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Kind now moves to dismiss the FAC. Because the Court finds that Ibarrola has not
plausibly alleged that a reasonable consumer would be deceived by Kind’s statements, her fraud
claims fail. Ibarrola’s express warranty claim is dismissed because she did not notify Kind of the
alleged breach of warranty as required by Illinois law. Finally, the unjust enrichment claim fails
because the underlying allegations are dismissed. The motion to dismiss [65] is granted, and the
FAC is dismissed in its entirety with prejudice.
BACKGROUND 2
Kind produces at least four snack products under the label “Kind Healthy Grains,”
including Vanilla Blueberry Clusters. On May 5, 2013 and August 19, 2013, Ibarrola purchased
Vanilla Blueberry Clusters from a store after reading the entire product label. At the time of the
purchases, the packaging of Vanilla Blueberry Clusters stated that the product contained “no
refined sugars.” This was one of twelve bullet-pointed statements on the front of the package.
The other statements touted the product’s fiber and Omega-3 content, as well as stating that the
product was “Gluten Free,” “All Natural,” “Non GMO,” “Cholesterol Free,” and contained “No
Trans Fats,” among other qualities. Doc. 60 ¶ 29. The packaging of the other Healthy Grains
products also stated that the products contained “no refined sugars” and made similar positive
statements as those on the Vanilla Blueberry Clusters packaging. The reverse side of each
product included federally mandated nutrition and ingredient information. The nutrition label for
Vanilla Blueberry Clusters stated that there were 5 grams of sugars in each 29 gram serving.

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The facts in the background section are taken from the FAC and are presumed true for the purpose of
resolving Kind’s motion to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011);
Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 782 (7th Cir. 2007).
A court normally cannot consider extrinsic evidence without converting a motion to dismiss into one
for summary judgment. Hecker v. Deere & Co., 556 F.3d 575, 582–83 (7th Cir. 2009). Where a
document is referenced in the FAC and central to Ibarrola’s claims, however, the Court may consider
it in ruling on the motion to dismiss. Id. The Court will also take judicial notice of matters of public
record. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080–81 (7th Cir. 1997).

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Kind listed evaporated cane juice and molasses as ingredients in each of the Healthy Grains
products.
Evaporated cane juice is a sweetener derived from sugar cane. It “is a type of refined
sugar that is less refined than common table sugar,” in that it “does not go through the final
refining process that common table sugar undergoes.” Id. ¶¶ 33, 34. As a result, evaporated
cane juice contains “trace” amounts of the minerals that otherwise exist in “naturally occurring,
unrefined sugar, or natural sugar cane.” Id. ¶¶ 32, 34. But evaporated cane juice “is still a
refined sugar with very little nutritional value that lacks the fully intact nutritional profile of truly
unrefined sugar.” Id. ¶ 34. Molasses is “a thick syrup produced during the refining of sugar”
that, like evaporated cane juice, is “less refined than regular white table sugar.” Id. ¶¶ 36, 38.
Ibarrola claims that when she read “no refined sugars” on the package of Vanilla
Blueberry Clusters, she thought that the product “contain[ed] only naturally occurring, unrefined
sugars.” Id. ¶ 38. Ibarrola “was looking for a product which did not have refined sugars, so she
could enjoy a snack without adding additional calories to her diet that had no and/or a diminished
nutritional value. When Plaintiff read the claim ‘No Refined Sugars’ she understood that
unrefined sugars provided certain health benefits over refined sugars and chose [Kind’s]
Products based on this preference.” Id. ¶¶ 39–40. Ibarrola contends that she paid a premium for
the Vanilla Blueberry Clusters as a result of Kind’s statement that the product contained no
refined sugars.
Ibarrola’s initial complaint was premised primarily on the theory that Kind misled
customers by referring to the primary sweetener in Vanilla Blueberry Clusters as “evaporated
cane juice” rather than identifying it as a syrup. Doc. 1 ¶ 3. The initial complaint also alleged
that the statement “no refined sugars” was misleading. Id. ¶ 35. Kind moved to dismiss the

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complaint, asserting that Ibarrola had not plausibly alleged deception or injury. The Court
granted the motion on these bases and dismissed the complaint without prejudice. Doc. 59.
Ibarrola then filed the FAC, which Kind now moves to dismiss.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Rule 9(b) requires a party alleging fraud to “state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). This “ordinarily requires describing the ‘who, what,
when, where, and how’ of the fraud, although the exact level of particularity that is required will
necessarily differ based on the facts of the case.” AnchorBank, 649 F.3d at 615 (citation
omitted). Rule 9(b) applies to “all averments of fraud, not claims of fraud,” Borsellino v.
Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007), including ICFA deceptive
practices claims, Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). “A
claim that ‘sounds in fraud’—in other words, one that is premised upon a course of fraudulent

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conduct—can implicate Rule 9(b)’s heightened pleading requirements.” Borsellino, 477 F.3d at
507.
ANALYSIS
The FAC contains four counts: common law fraud, unjust enrichment, breach of express
warranty, and a violation of ICFA. Each of these counts is premised on Ibarrola’s allegation that
Kind falsely advertised that its products do not contain any refined sugars. Kind moves to
dismiss the entire complaint, contending primarily that Ibarrola failed to adequately alleged that
a reasonable consumer would be deceived by any of Kind’s statements, and thus that her fraud
claims fail. Kind also asserts that Ibarrola did not adequately allege an express warranty claim
and, alternately, that Ibarrola did not provide the required pre-litigation notice to bring an express
warranty claim. Kind contends that the unjust enrichment claim cannot stand on its own after the
other claims have been dismissed. The Court takes these arguments in turn. 3
I.

Fraud Claims
To prevail on her ICFA claim, Ibarrola must allege and ultimately prove: (1) a deceptive

act or practice by Kind, (2) that the deceptive act or practice occurred in the course of conduct
involving trade or commerce, (3) that Kind intended that Ibarrola rely on the deception, and (4)
that the deception caused Ibarrola actual damages. Oshana v. Coca-Cola Co., 472 F.3d 506, 513
(7th Cir. 2006). In addition to these elements, common law fraud requires plaintiffs to allege
that the plaintiff actually relied on the contested statement and that the defendant acted with
scienter. 4 Thacker v. Menard, Inc., 105 F.3d 382, 386 (7th Cir. 1997).

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Because the Court dismisses all of Ibarrola’s claims based on these grounds, the Court declines to rule
on Kind’s remaining arguments for dismissal and will not address them in this opinion.
“[T]he elements of common law fraud are: (1) a false statement of material fact; (2) by one who
knows or believes it to be false; (3) made with the intent to induce action by another in reliance on the
statement; (4) action by the other in reliance on the truthfulness of the statement; and (5) injury to the

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Although ICFA claims often involve disputed questions of fact not suitable to a motion to
dismiss, a court may dismiss the complaint if the challenged statement was not misleading as a
matter of law. Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001) (affirming
dismissal of a complaint involving Zantac 75); Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973,
978 (C.D. Cal. 2013) (dismissing a suit against the makers of Buitoni pastas and citing cases).
In moving to dismiss, Kind contends that Ibarrola fails to plausibly allege that the “no
refined sugars” claim was deceptive. Kind points out that Ibarrola never explains what exactly
she understood the statement “no refined sugars” to mean when she purchased the Vanilla
Blueberry Clusters. Ibarrola claims, somewhat obliquely, that she understood “no refined
sugars” to mean that the Vanilla Blueberry Clusters contained only “naturally occurring” sugars
that had not been refined at all. See Doc. 60 ¶ 38 (noting that the “no refined sugars” claim was
“false and misleading to reasonable consumers, who are likely to understand such claims to
mean—as Plaintiff did—that the Products contain only naturally occurring, unrefined sugars”).
But this is not plausible. Because Ibarrola read the entire product label and thus saw that the
product contained evaporated cane juice, she recognized that at least one of the sweeteners in the
Vanilla Blueberry Clusters was derived from sugar cane. Thus, taken at her word, Ibarrola
alleges that she thought that Vanilla Blueberry Clusters contained sugar cane in its natural state,
not having gone through any process to refine it.
But as depicted in the photographs below, sugar cane in its natural state is a grass that
contains jointed stalks resembling bamboo. The stalks are made up of fibrous flesh surrounded
by bark. Before sugar cane sweeteners can be used as an ingredient in food, sucrose must be
extracted from the flesh of the sugar cane stalk and processed over the course of several stages.

other resulting from that reliance.” Athey Prods. Corp. v. Harris Bank Roselle, 89 F.3d 430, 434 (7th
Cir. 1996).

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See United States Environmental Protection Agency, Food and Agricultural Industries, Sugar
Cane Processing, 9.10.1.1, figures 9.10.1.1-1 and 2, http://www.epa.gov/ttn/chief/ap42/ch09/
final/c9s10-1a.pdf. In the latter stages of the process, raw sugar is further refined into one or
more edible sweeteners. See id.; United States Department of Agriculture (“USDA”), Domestic
Sugar Program and Reporting Glossary Terms, https://www.fsa.usda.gov/Internet/FSA_File/
sugar_glossary.pdf (defining “raw sugar” as “not suitable for human consumption without
further refinement”); 7 C.F.R. § 1435.2 (“Raw sugar means any sugar that is to be further refined
or improved in quality other than in-process sugar.”). Given this reality, no reasonable consumer
would think—as Ibarrola alleges she did—that the sugar contained in Kind’s Healthy Grains
products was still in its natural, completely unrefined state.

Sugar cane stalks in their natural state.
http://www.fs.fed.us/wildflowers/
ethnobotany/wildrelatives.shtml.

A sugar cane stalk with some of its bark removed to
reveal the fibrous flesh. http://www.ars.usda.gov/
is//2009/090206.htm.

Even though a reasonable consumer may not understand everything that happens to sugar
cane before its derivative can be added as an ingredient in Vanilla Blueberry Clusters, a
reasonable consumer would know that all sugar cane-derived sweeteners suitable for human

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consumption must be at least partially refined. Pelayo, 989 F. Supp. 2d at 978 n.4 (“The
reasonable consumer is also aware that the ingredients in Buitoni Pastas, such as sugar, wheat,
and skim milk, do not come directly from plants, trees, or livestock.”). Reasonable consumers
do not believe that they are eating straight sugar cane in Vanilla Blueberry Clusters or any other
food product because sugar cane in its natural, unprocessed state is indigestible. That is, a
reasonable consumer would recognize that “impurities or unwanted material” must be removed
from sugar cane before it can be used as an ingredient in Vanilla Blueberry Clusters, and thus,
that all sugar cane-derived sweeteners require “refining,” as the dictionary defines the term. See
http://www.merriam-webster.com/dictionary/refine (defining the word “refine” as “to free (as
metal, sugar, or oil) from impurities or unwanted material”). Thus, the Court finds that the only
reasonable conclusion after reading the entire Vanilla Blueberry Clusters label is that Kind used
the word “refined” as a term of art to distinguish partially refined sugars like evaporated cane
juice and molasses from fully refined sugars like table sugar.
The Court’s conclusion finds support in analogous cases. In Pelayo, the district court
dismissed the plaintiff’s claim that Buitoni Pastas misled consumers by advertising the products
as “all natural.” Id. at 978. In doing so, the court found that “the reasonable consumer is aware
that Buitoni Pastas are not ‘springing fully-formed from Ravioli trees and Tortellini bushes.’”
Id. Another court dismissed a suit alleging that the name of Crunchberries cereal deceived
consumers into believing that the product contained actual berries. Sugawara v. Pepsico, Inc.,
No. 208CV01335-MCEJFM, 2009 WL 1439115, at *3 (E.D. Cal. May 21, 2009). The court
held that “a reasonable consumer would not be deceived into believing that the Product in the
instant case contained a fruit that does not exist.” Id. Thus, a reasonable consumer would not
conclude, as Ibarrola alleges she did, that Vanilla Blueberry Clusters contained “only naturally

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occurring, unrefined sugars.” Doc. 60 ¶ 38. Primarily, because “naturally occurring, unrefined
sugars” derived from sugar cane do not exist.
Ibarrola also fails to plausibly allege how her understanding of the term “no refined
sugars” corresponds with the contrary information in the ingredient list. The Court must view
the allegedly misleading statement in light of the information available to Ibarrola at the time of
her purchase. Bober, 246 F.3d at 940 (“[E]xamining the statements at issue, together and in the
context of the other information available to Zantac users, eliminates any possibility of
deception.”). Ibarrola states that she read the entire product label before purchasing the Vanilla
Blueberry Clusters. In doing so, she learned that the product contained evaporated cane juice
and molasses—sweeteners that she alleges are at least partially refined. But Ibarrola concluded
that the product contained no sugars that had been even partially refined. Ibarrola fails to explain
how she rectified this apparent contradiction when she made her purchases. Courts have
dismissed complaints premised on such logical inconsistencies. In Rooney v. Cumberland
Packaging Corp., the district court dismissed a complaint against the makers of Sugar in the Raw
that was premised on the allegation that the product was actually turbinado sugar, which is not
literally “raw” or “unrefined” sugar. No. 12-CV-0033-H DHB, 2012 WL 1512106, at *4 (S.D.
Cal. Apr. 16, 2012). The court held that despite the apparent inconsistency between the name of
the product and the disclosure that it contained turbinado sugar—which is not “raw sugar”—the
plaintiff “was not deceived.” Id. In Kane v. Chobani, Inc., the district court dismissed plaintiff’s
claim that Chobani misled consumers into believing that Chobani brand yogurt “contained only
natural sugars from milk and fruit and did not contain added sugars or syrups.” No. 12-CV02425-LHK, 2013 WL 5289253, at *6 (N.D. Cal. Sept. 19, 2013). The court held that
“[p]laintiffs’ allegations that they read the label, were aware that the Yogurts contained

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[evaporated cane juice], and nevertheless concluded that the Yogurts contained ‘only natural
sugars from milk and fruit and did not contain added sugars or syrups’ is simply not plausible.”
Id. at *7. Although that decision hinged on the issue of reliance, which is not a requirement of
an ICFA claim, the Court finds the holding relevant as to the question of deception as well. That
is not to say that food producers have carte blanche to make false assertions so long as the
nutritional and ingredient information is accurate; rather, the Court finds that to arrive at a
reasonable understanding of the claim “no refined sugars,” Ibarrola should have considered the
other information she encountered on the product’s packaging. Bober, 246 F.3d at 940
(“[E]xamining the statements at issue, together and in the context of the other information
available to Zantac users, eliminates any possibility of deception.”). Thus, the Court finds that
because Ibarrola has not plausibly alleged that Kind’s packages contained any deceptive
statements, her fraud claims are dismissed.
II.

Express Warranty
Ibarrola also brings an express warranty claim premised on the same allegation—that

Kind falsely affirmed that the Vanilla Blueberry Clusters contained no refined sugars. To obtain
monetary damages on an express warranty claim, Ibarrola must demonstrate “by a
preponderance of the evidence the terms of the warranty, [a breach or failure of the warranty], a
demand upon the defendant to perform under the terms of the warranty, a failure of the defendant
to do so, a compliance with the terms of the warranty by the plaintiff, and damages measured by
the terms of the warranty.” Hasek v. DaimlerChrysler Corp., 745 N.E.2d 627, 638, 319 Ill. App.
3d 780, 253 Ill. Dec. 504 (2001). The demand requirement is included in the Uniform
Commercial Code, as adopted in Illinois. It requires that a purchaser-plaintiff “within a

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reasonable time after he discovers or should have discovered any breach notify the seller of the
breach or be barred from any remedy.” 810 Ill. Comp. Stat. Ann. 5/2-607.
Kind contends that the express warranty claim must be dismissed because Ibarrola did
not notify Kind of a breach of the warranty within a reasonable time. Ibarrola responds to this
argument via a footnote, asserting that the initial complaint constituted sufficient and timely
notice. First, the Seventh Circuit “ha[s] often said that a party can waive an argument by
presenting it only in an undeveloped footnote.” Harmon v. Gordon, 712 F.3d 1044, 1053 (7th
Cir. 2013). Even if the Court were to find that Ibarrola has not waived her argument regarding
notice, the Court would still find that Ibarrola’s express warranty claim fails. The FAC alleges
that Ibarrola purchased Vanilla Blueberry Clusters on May 5, 2013 and August 19, 2013.
Although Ibarrola filed this suit in November of 2013, she did not raise an express warranty
claim until she filed the FAC on July 28, 2014. But even if she had raised an express warranty
claim in her original complaint, that would not have been sufficient to meet the notice
requirement under Illinois law.
The purpose of the notice requirement is to encourage parties to resolve the dispute short
of litigation. Reyes v. Mcdonald’s Corp., No. 06 C 1604, 2006 WL 3253579, at *3 (N.D. Ill.
Nov. 8, 2006) (dismissing a claim for failure to provide pre-litigation notice, stating that a
purpose of the notice requirement was to provide adverse parties “an incentive to attempt
settlement of breach of warranty claims prior to commencement of a suit”). Parties may be
excused from the pre-litigation notice requirement when they allege a physical injury or when
the defendant had actual knowledge of the product’s defect. Allstate Ins. Co. v. Daimler
Chrysler, No. 03 C 6107, 2004 WL 442679, at *2 (N.D. Ill. Mar. 9, 2004) (citing Connick v.
Suzuki Motor Co., 675 N.E.2d 584, 590–91, 174 Ill. 2d 482, 221 Ill. Dec. 389 (1996)). In

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Connick, the Illinois Supreme Court held that because the plaintiffs suffered only economic
damages stemming from their increased risk of physical injury, dismissal was appropriate in light
of plaintiffs’ failure to provide pre-litigation notice. Connick, 675 N.E.2d at 591. Ibarrola does
not allege physical injury as a result of Kind’s purported breach; rather, she contends that “she
would not have paid such a premium price and/or she would have purchased a less expensive
product” if Kind had not breached. Doc. 60 ¶ 5. Nor does Ibarrola allege that Kind had actual
knowledge of the breach of the warranty. Thus, because Ibarrola did not satisfy the notice
requirement, her express warranty claim is dismissed.
III.

Unjust Enrichment
The Court also dismisses Ibarrola’s claim for unjust enrichment. Absent a plausible

allegation of deception, the claim for unjust enrichment must fail. Oshana v. Coca-Cola Co.,
472 F.3d at 515; Bober, 246 F.3d at 943 (“[I]n the absence of any deception on the part of the
defendants, the requisite [elements of unjust enrichment are] not present.”). Moreover, a claim
for unjust enrichment cannot stand on its own in light of the Court’s dismissal of Ibarrola’s fraud
and express warranty claims. See Martis v. Grinnell Mut. Reins. Co., 905 N.E.2d 920, 928, 388
Ill. App. 3d 1017, 329 Ill. Dec. 82 (2009) (“Unjust enrichment is not a separate cause of action
that, standing alone, will justify an action for recovery.”).
IV.

Dismissal with Prejudice
Finally, the Court must determine whether to dismiss the FAC with prejudice or to grant

Ibarrola leave to file a second amended complaint. The Court previously dismissed Ibarrola’s
fraud and unjust enrichment claims without prejudice. Given the prior dismissal, as well as the
facts alleged, the Court finds that Ibarrola’s fraud and unjust enrichment claims should be
dismissed with prejudice. See Camasta, 761 F.3d at 734–35 (affirming dismissal with prejudice

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of first amended complaint premised on ICFA after initial complaint was dismissed without
prejudice); Pirelli Armstrong Tire Corp., Retiree Med. Benefits Trust v. Walgreen Co., No. 09 C
2046, 2010 WL 624709, at *1 (N.D. Ill. Feb. 18, 2010) (dismissing amended complaint with
prejudice after previous dismissal of ICFA and unjust enrichment claims without prejudice),
aff’d, 631 F.3d 436 (7th Cir. 2011).
Although the express warranty claim was not included in the original complaint and
therefore has not been previously dismissed, the Court finds that dismissal with prejudice is
appropriate for that claim as well. It is undisputed that Ibarrola failed to provide Kind with prelitigation notice of its breach. As noted above, the purpose of the notice requirement is to
provide an incentive for parties to resolve warranty disputes prior to filing suit. Reyes, 2006 WL
3253579, at *3. At this point, it would be impossible for Ibarrola to provide pre-litigation notice
of the breach of warranty. Miller v. Hypoguard USA, Inc., No. 05-CV-0186-DRH, 2005 WL
3481542, at *3 (S.D. Ill. Dec. 20, 2005) (dismissing an express warranty claim with prejudice for
failing to provide pre-litigation notice). And Ibarrola has not presented the Court with any
argument that an exception to the pre-litigation notice requirement applies here. Thus, because
the Court finds that it would be futile to allow Ibarrola to amend her express warranty claim, it is
dismissed with prejudice.
CONCLUSION
For the above stated reasons, the motion to dismiss [65] is granted. The First Amended
Complaint is dismissed in its entirety with prejudice.

Dated: March 12, 2015

______________________
SARA L. ELLIS
United States District Judge
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