Sanfratello v. Howell Tractor and Equipment LLC
Filing
37
OPINION AND ORDER: Court GRANTS 27 Motion for Summary Judgment. Plaintiff's 35 motion to strike is DENIED and request for leave to file surreply is GRANTED. The Clerk is ORDERED to dismiss this case. Signed by Judge Rudy Lozano on 7/20/2011. (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LORI SANFRATELLO,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
HOWELL TRACTOR AND
EQUIPMENT, LLC,
Defendant.
NO. 2:09-CV-162
OPINION AND ORDER
This matter is before the Court on: (1) Defendant’s Motion for
Summary Judgment, filed on January 28, 2011; and (2) Motion to
Strike Newly Raised Argument, or, in the Alternative, for Leave to
File Surreply, filed by Plaintiff, Lori Sanfratello, on March 25,
2011.
For the reasons set forth below, Defendant’s motion for
summary judgment is GRANTED.
DENIED
and
request
for
Plaintiff’s motion to strike is
leave
to
file
surreply
is
GRANTED.
Accordingly, the clerk is ORDERED to dismiss this case.
BACKGROUND
Plaintiff, Lori Sanfratello (“Sanfratello), filed suit in
state court against her former employer, Defendant, Howell Tractor
and Equipment, LLC (“Howell”), alleging she was not paid for the
hours of overtime she worked, in violation of the Fair Labor
-1-
Standards Act, 29 U.S.C. section 201, et seq.
Subsequently, this
case was removed here.
Howell filed a motion for summary judgment, arguing that there
is no genuine issue of material fact and it is entitled to judgment
as a matter of law.
Howell argues that Sanfratello occupied an
expempt administrative position that was not entitled to overtime
pay.
After the summary judgment briefing concluded, Plaintiff
filed a motion to strike arguments that Howell raised in its reply
brief or, alternatively, to be permitted to file a surreply to
address those newly raised issues.
DISCUSSION
Motion for Summary Judgment
Summary Judgment Standard
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
See
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
In other words, the record
must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
-2-
250 (1986).
In deciding a motion for summary judgment, a court
must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; Nucor Corp. v. Aceros Y Maquilas De
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of
"the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits," if any, that the
movant believes demonstrate an absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323.
Once the movant has met
this burden, the nonmovant may not rest upon mere allegations but
"must set forth specific facts showing that there is a genuine
issue for trial."
Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill
Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
"Whether
a
fact
is
material
depends
on
the
substantive
law
underlying a particular claim and 'only disputes over facts that
might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.'"
Walter v.
Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (citing Anderson, 477
U.S. at 248).
"[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial." Beard v. Whitley County REMC,
-3-
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.
Facts
Howell is in the business of selling, leasing, repairing and
maintaining heavy operating equipment.
(Ellis Aff, ¶¶ 2-3).
Thomas Ellis (“Ellis”) is Howell’s General Manager and Gary Hammond
(“Hammond”) is Howell’s General Service Manager.
Hammond Aff. ¶ 1).
(Ellis Aff. ¶ 1;
Hammond has oversight responsibility for the
branch Service Managers and the day -to-day operations of the
service departments at each of Howell’s locations.
¶ 2).
Hammond reports directly to Ellis.
(Hammond Aff.
(Hammond Aff. ¶ 2).
Sanfratello was employed with Howell at its Gary, Indiana, facility
from approximately February 13, 2006, until February 20, 2009, when
she
was
laid
off
from
Howell
due
to
economic
conditions.
(Sanfratello Dep. pp. 49, 131).
While employed with Howell, Sanfratello worked at the Gary,
Indiana, facility.
(Hammond. Aff. ¶ 5).
Tim Lucas (“Lucas”) was
the branch Service Manager in the Gary facility and reported to
Hammond. (Hammond. Aff. ¶ 5). Lucas ran the day-to-day operations
of the Gary service department and was responsible for processing
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warranty claims.
(Hammond. Aff. ¶ 5).
T.J. Mihal (“Mihal”) was
the Assistant Service Manager and he reported directly to Lucas.
(Hammond. Aff. ¶ 5).
Barbara Smith (“Smith”) was also employed as
a Service Administrator.
Smith’s job responsibilities were mostly
clerical in the Service Department.
(Hammond. Aff. ¶ 5).
Ellis, Hammond, Mihal, Rogers and Sanfratello were all paid on
a salary basis.
(Ellis Aff. ¶ 12).
Their salaries did not
fluctuate and were not subject to deductions for partial day
absences.
(Ellis Aff. ¶ 12).
Smith and the Service Technicians,
who performed repairs and maintenance work, were paid on an hourly
basis.
(Ellis Aff. ¶ 12).
In late 2005, Ellis felt that Howell’s warranty claims were
not being handled efficiently.
(Ellis Aff. ¶ 7).
In addition,
Howell’s service department was very busy handling numerous daily
service calls.
(Ellis Aff. ¶ 7).
To address these two issues,
Ellis and Hammond decided to transfer Lucas to a sales position and
promote Mihal to branch Service Manager.
(Ellis Aff. ¶ 8).
Ellis
and Hammond decided to fill the Assistant Service Manager position
with a new hire, who would also be responsible for processing
warranty claims.
(Ellis Aff. ¶ 8).
Mihal suggested Sanfratello
for the new “Assistant Service Manager/Warranty Administrator”
position because he knew that she had been around heavy machinery
her whole life and also because she had experience working with
computers and spreadsheets, which would be useful in processing
-5-
warranty claims.
(Mihal Aff. ¶ 4).
Following an interview,
Sanfratello was hired by Howell on or about February 13, 2006.
(Sanfratello Dep. Tr. p. 49; Hammond Aff. ¶ 5).
Sanfratello was hired to fill the role of Assistant Service
Manager/Warranty Administrator after Lucas was transferred and
Mihal assumed the role of branch Service Manager.
6).
(Hammond Aff. ¶
Sanfratello was to assist Mihal by taking service calls,
helping with putting quotes together and also taking care of the
warranty claims.
(Hammond Dep. pp. 30-31).
When Sanfratello was
hired, she was hired to assist Mihal and take care of the warranty
claims; not to do his clerical work.
(Hammond Dep. p. 5).
The service aspect of the Assistant Service Manager/Warranty
Administrator position involves processing and coordinating service
calls.
Typically, a service call is initiated by a telephone call
to Howell from a customer that has concerns about its machine.
(Hammond Aff. ¶ 9; Mihal Aff. ¶¶ 9-10; Rodgers Aff. ¶¶ 9-10).
According
to
Howell,
it
is
the
Assistant
Service
Manager’s
responsibility to answer the service call and the branch Service
Manager and General Service Manager will take the calls if the
Assistant Service Manager is unavailable. (Hammond Aff. ¶ 9; Mihal
Aff. ¶ 6; Rodgers Aff. ¶¶ 9-10).
However, Sanfratello testified
that most customers she spoke with wanted to speak with Mihal, and
she would take a message for Mihal to return the customers’ call.
(Sanfratello Dep. pp. 100-101).
-6-
Aside from giving messages to Mihal, Sanfratello took down
customer information from work orders.
103).
Regarding
these
work
orders,
(Sanfratello Dep. pp. 101Howell
claims
that
the
Assistant Service Manager is to determine the scope of the work
required and then prepare an estimate or quote detailing the amount
of time that it will take to complete the project and the cost of
labor and parts.
(Hammond Aff. ¶ 10; Mihal Aff. ¶ 7; Rodgers Aff.
¶ 10). When Sanfratello would answer a call for service, she would
write down what type of machine was in need of repair, write down
the customer’s phone number, and then look at a list of mechanics
to see who as trained on that type of machine and who was available
to make a preliminary dispatch assignment.
(Sanfratello Dep. p.
102-03, 107, 110, 112).
The estimate or quote for work to be performed is contained in
a document entitled “Service Estimate.”
In the Service Estimate,
the Assistant Service Manager is to break down the project by
specific task and assign an estimated time that it will take to
complete each task.
The information is logged into a spreadsheet
format by which the Assistant Manager can monitor and measure the
progress of the project against the previously provided estimate.
(Hammond Aff. ¶ 11; Mihal Aff. ¶ 9; Rodgers Aff. ¶ 12).
However,
it was not Sanfratello’s responsibility to determine whether the
measuring
the
progress
of
the
project
against
demonstrated that “it was a good job or a bad job.”
-7-
the
estimate
(Hammond Dep.
p. 60).
The Assistant Service Manager does not need a supervisor’s
approval to provide any specific estimates; however, the branch
Service Manager and General Service Manager are often consulted
when the project exceeds $20,000 in labor costs.
12; Mihal Aff. ¶ 10; Rodgers Aff. ¶ 13).
(Hammond Aff. ¶
Sanfratello could get
involved in the discussion regarding putting a quote together, but
Hammond does not remember her ever doing so. (Hammond Dep. pp. 6162).
After an estimate is prepared, the next step in the process
is to assign the right Service Technician to the project so that
the necessary work can be performed.
(Hammond Aff. ¶ 13; Mihal
Aff. ¶ 11; Rodgers Aff. ¶ 14).
Selecting the right Service Technician requires taking a
number of factors into consideration because not all technicians
are capable of working on all types of equipment.
The Assistant
Service Manager must confirm the Service Technician is trained and
certified to perform the repairs or maintenance sought by the
customer.
(Hammond Aff. ¶ 14; Mihal Aff. ¶ 12; Rodgers Aff. ¶ 15).
Sanfratello could do this by looking at a list she was given, which
provided which mechanics were trained or certified on particular
equipment.
(Sanfratello Dep. p. 110).
The Assistant Service
Manager had the discretion to select the Service Technician best
suited for the particular service call.
Aff. ¶ 14; Rodgers Aff. ¶ 17).
(Hammond Aff. ¶ 18; Mihal
However, often times, Mihal would
-8-
change Sanfratello’s initial assignments.
(Sanfratello Dep. p.
115-119).
After the Service Technician is assigned and the project
commences, it is the Assistant Service Manager’s job responsibility
to keep track of the project on a form known as the “Tracking
Sheet.”
This form is used to log the progress made on the on the
project and to compare the actual labor costs with the projected
costs.
(Hammond Aff. 19; Mihal Aff. ¶ 15; Rodgers Aff. ¶ 18).
The
Assistant Service Manager works closely with Service Technicians to
keep the project on track and on budget.
Aff. ¶ 16; Rodgers Aff. ¶ 19).
(Hammond Aff. 20; Mihal
If there is a significant disparity
between the actual labor costs and the estimated labor costs, it is
up to the Assistant Service Manager to attempt to bring the project
in line with the estimate or to communicate the problem with the
customer.
The Assistant Service Manager has discretion on how to
proceed.
(Hammond Aff. 21; Mihal Aff. ¶ 17; Rodgers Aff. ¶ 20).
In addition, the Assistant Service Manager serves as the continuing
point of contact with the customer throughout the repair or
maintenance project and, sometimes, is the sole point of contact
between Howell and the customer.
18; Rodgers Aff. ¶ 21).
(Hammond Aff. 22; Mihal Aff. ¶
However, Sanfratello did not have the
authority to unilaterally settle warranty disputes, reduce a part’s
price with a customer, or unilaterally negotiate any quoted amount
or billing issues or disputes with customers.
-9-
(Hammond Dep. pp.
77-80, 95-97).
The
Assistant
Service
Manager
is
also
responsible
for
dispatching Service Technicians for emergency calls that arise on
the weekend and, if required, preparing an estimate of the cost of
the project.
22).
(Hammond Aff. 23; Mihal Aff. ¶ 19; Rodgers Aff. ¶
Sanfratello asserts that she applied the same instructions
that she followed in weekday dispatching.
(Sanfratello Dep. pp.
137-38, 142).
The Assistant Service Manager/Warranty Administrator is also
responsible determining if a warranty applies to a particular work
order.
This is done by going on a manufacturer’s web site and
inputting information from the warranty. (Sanfratello Dep. p. 61).
If work was covered by a warranty, Sanfratello would fill out a
form, which included giving the manufacturer all of the necessary
information so that Howell will be reimbursed for doing the
warranty work. (Ellis Dep. p. 33; Sanfratello Dep. pp. 61-62). The
necessary information was either given to Sanfratello by the
mechanics or was on the invoices.
(Sanfratello Dep. p. 62).
If
there is warranty coverage, the necessary warranty forms have to be
filled out and submitted upon completion of the project.
Aff. ¶ 24; Rodgers Aff. ¶ 5).
methodology
for
submitting
(Hammond
Each manufacturer has its own
claims
and
the
Assistant
Service
Manager/ Warranty Administrator is responsible for knowing and
complying with each manufacturer’s process.
-10-
(Hammond Aff. ¶ 26;
Rodgers Aff. ¶ 6).
In the event that Howell believes that its warranty claims
have been wrongly denied, the Warranty Administrator is required to
engage in
28).
negotiations with the manufacturer.
(Hammond Aff. ¶
However, Sanfratello did not have the authority to settle
warranty disputes with the manufacturer.
(Hammond. Dep. p. 97).
When Sanfratello was hired by Howell, her regular hours of
employment were from 6 a.m. to 4 p.m.
salary of $40,000 per year.
She was initially paid a
Her pay did not fluctuate and was not
subject to deductions for either partial day absences or for
disciplinary reasons.
(Sanfratello Dep. pp. 143-44).
When Howell
hired Sanfratello, it was anticipated that she would assume Lucas’
former job responsibilities of processing warranty claims and also
assist Mihal in running and coordinating the day-to-day operations
of
the
Gary
Service
Department,
coordinating weekend service work.
including
assisting
with
(Hammond Aff. ¶ 30; Mihal Aff.
¶ 5; Rodgers Aff. ¶ 8; Sanfratello Dep. p. 138).
Sanfratello’s
handwritten list.
predecessor
kept
track
of
warranties
in
a
Sanfratello used that handwritten list as a
template to create a warranty spreadsheet.
relevant data into a spreadsheet.
She plugged the
(Sanfratello Dep. pp. 82-83).
At the suggestion of Eliis and fellow employee Bill Caruso,
Sanfratello added column headings and a Miscellaneous Warranty Log
page.
(Sanfratello Dep. pp. 86, 95-96).
-11-
Sanfratello also had a
column for “comments,” where she would input the manufacturer’s
response
information
onto
the
warranty
“everybody saw what was going on.”
spreadsheet
so
that
(Sanfratello Dep. p. 85).
Sanfratello updated this log whenever there was a development with
the warranty claim.
Sanfratello performed job responsibilities related to the
warranty work until approximately September 2, 2008.
Sanfratello
complained that she was overwhelmed with service department work
and
could
not
handle
the
responsibilities
of
both
Warranty
Administrator and Assistant Service Manager. (Ellis Aff. ¶ 11;
Hammond Aff. ¶ 32).
As a result, Howell hired Terri Rodgers to
assume the position of Warranty Administrator and Sanfratello was
directed to focus on the service department work; Rodgers and
Sanfratello continued to function in dual roles until February
2009.
(Hammond Aff. ¶ 33; Rodgers Aff. ¶ 8).
Due to a reduction in business, it no longer made sense for
Howell to have a separate Warranty Administrator and a separate
Assistant Service Manager.
(Ellis Aff. ¶ 14).
Ellis and Hammond
felt that Rodgers was a more valuable employee to Howell because
Rodgers was capable of doing both the warranty work and the service
department work.
As a result, the decision was made to retain
Rodgers and to lay-off Sanfratello. (Ellis Aff. ¶ 14; Hammond Aff.
¶ 34).
Sanfratello’s last day of employment was on or about
February 20, 2009.
(Hammond Aff. ¶ 35).
-12-
Sanfratello has filed the instant suit, seeking overtime pay
pursuant to the Fair Labor Standards Act.
Howell asserts that
Sanfratello is not entitled to overtime pay because her position
was an exempt administrative position.
Fair Labor Standards Act
The Fair Labor Standards Act (“FLSA”) requires employers to
pay overtime wages to employees.
29 U.S.C. § 207(a)(1).
However,
employees that work in “a bona fide executive, administrative or
professional capacity” are exempt from the overtime requirements.
29 U.S.C. § 213(a)(1).
Howell argues that Sanfratello was exempt from the overtime
requirements of the FLSA because she was an exempt administrative
employee.
In order to fit within the administrative exemption, an
employee must: (1) be compensated on a salary or fee basis at a
rate of not less than $455 per week; (2) have as a primary duty of
performance of office or non-manual work directly related to the
management
or
general
business
operations
of
the
employer’s
customers; and (3) have a primary duty that requires the exercise
of discretion and independent judgment with respect to matters of
significance.
29 C.F.R. 541.200.
Satisfying the first prong, the parties agree that Sanfratello
was paid on a salary basis and earned more than $455 per week.
(Def. Mem. p. 5; Pl. Resp. p. 13-14).
-13-
Next, Howell must show that Sanfratello’s “primary duty must
be the performance of work directly related to the management or
general business operations of” Howell.
29 C.F.R. § 541.201.
To
meet this requirement, Sanfratello “must perform work directly
related to assisting with the running or servicing of the business,
as distinguished, for example, from working on a manufacturing
production line or selling a product in a retail or service
establishment.” 29 C.F.R. 541.201(a). “Exempt administrative work
includes
duties
such
as
‘advising
the
management,
planning,
negotiating, representing the company, purchasing, promoting sales,
and business research and control. Much of this work, but not all,
will relate directly to management policies.” Schaefer-LaRose v.
Eli
Lilly
and
Co.,
663
F.Supp.2d
674,
689
(S.D.
Ind.
2009)(quotation omitted).
Sanfratello argues that she was not involved in the general
business operations of Howell because, at best, she transferred
some information from the work orders to the invoices.
However,
despite Sanfratello’s arguments, this Court finds that the record
establishes
Administrator
that
the
position’s
Assistant
primary
Service
duty
Manager/
included
work
Warranty
directly
related to the general business operations of Howell. Howell deals
with heavy operating equipment and provides repair and maintenance
services
on
that
type
of
equipment.
Sanfratello
was
not
responsible for actually performing any repair or maintenance
-14-
service.
Instead, in her role as Assistant Service Manager,
Sanfratello was responsible for assisting with the management and
administration of the repair and maintenance services. Sanfratello
developed quotes for customers, tracked the progress of projects,
and
assigned
service
technicians.
In
her
role
as
Warranty
Administrator, Sanfratello was to determine if a particular repair
or piece of equipment was under warranty and assist in resolving
warranty
disputes.
Clearly,
Warranty
Administrator
the
position
Assistant
directly
Service
dealt
with
Manager/
Howell’s
general business regarding its service and warranty operations.
The third prong requires Howell to show that Sanfratello is
performing work that requires “the exercise of discretion and
independent judgment with respect to matters of significance.”
C.F.R. § 541.202(a).
29
The phrase “exercise of discretion and
independent judgment” involves “the comparison and evaluation of
possible courses of conduct and acting or making a decision after
the various possible courses of conduct, and acting or making a
decision after the various possibilities have been considered.” 29
C.F.R. § 541.202.
Determining whether an employee has the authority to exercise
discretion and independent judgment is to be based “in light of all
the facts involved in the particular employment situation.”
C.F.R. § 541.202(b).
29
Factors to be considered in making this
determination include:
-15-
whether the employee has authority to formulate, affect,
interpret, or implement management policies or operating
practices; whether the employee carries out major
assignments in conducting the operations of the business;
whether the employee performs work that affects business
operations to a substantial degree, even if the
employee's assignments are related to operation of a
particular segment of the business; whether the employee
has authority to commit the employer in matters that have
significant financial impact; whether the employee has
authority to waive or deviate from established policies
and procedures without prior approval; whether the
employee has authority to negotiate and bind the company
on significant matters; whether the employee provides
consultation or expert advice to management; whether the
employee is involved in planning long- or short-term
business objectives; whether the employee investigates
and resolves matters of significance on behalf of
management; and whether the employee represents the
company in handling complaints, arbitrating disputes or
resolving grievances.
29 C.F.R. § 541.202(b).
Sanfratello argues that she did not exercise discretion or
independent judgment. In fact, she claims that she did little more
than transfer data and follow rote instructions.
However, despite
the fact that Sanfratello claims to have merely performed rote,
ministerial tasks, the undisputed facts establish that the primary
duties for the position in which she was hired gave her authority
to exercise discretion and independent judgment.
The Assistant Service Manager/Warranty Administrator was to
perform work that affected Howell’s business operations to a
substantial degree.
The service of heavy equipment and warranty
repairs was a considerable part of Howell’s business. The Assistant
Service Manager/Warranty Administrator had the responsibility of
-16-
handling
service
calls,
assisting
with
putting
repair
quotes
together, tracking the progress of service orders, and taking care
of warranty claims. These duties involved much more than just fact
gathering or applying well-established procedures.
The Assistant
Service Manager/Warranty Administrator had to communicate with
clients, evaluate each service call, prepare quotes and estimates
and process any warranty claims.
These duties involved decision
making.
Sanfratello also had the authority to commit Howell in matters
that
had
significant
financial
impact.
Sanfratello
was
to
determine the nature of the customer’s problem, decide upon a
course of action to correct that problem, had to prepare a quote to
estimate how much it would cost to fix the problem and had to
assign service technicians who could fix the problem.
These
decisions were important as Howell was - for the most part - bound
to follow the quotes given by Sanfratello.
In addition, the fact that Sanfratello was in a position to
recommend disciplinary action against service technicians further
shows
her
judgment.
authority
29
C.F.R.
to
§
exercise
discretion
541.202(c).
Just
and
independent
because
some
of
Sanfratello’s decisions were subject to her supervisor’s approval,
does not change the fact that her position gave her discretion and
independent judgment.
29 C.F.R. § 541.202(c).
-17-
Motion to Strike/Leave to File Surreply
Sanfratello believes that Howell inappropriately raised a new
issue in its reply brief; namely, the argument that the position of
Assistant
Service
Manager/Warranty
Administrator
included
the
exercise of discretion and independent judgment of an exempt
administrative employee, but that Sanfratello did not perform her
job adequately.
that argument.
a
reply
brief.
As such, Sanfratello asks this Court to strike
It is true that new arguments cannot be raised in
See
Mitello,
Central
States,
Southeast
and
Southwest Areas Pension, 360 F.3d 681, 690 n.10 (7th Cir. 2004).
However, Howell’s reply brief does not inappropriately raise new
arguments.
Howell’s
Instead, the complained of argument contained in
reply
brief
is
nothing
more
than
a
counter
to
the
arguments raised in Sanfratello’s response brief.
In the alternative, Sanfratello seeks leave to file a surreply
brief, which she attached to her motion.
This Court will permit
the filing of the surreply and has considered it in ruling on the
instant motion for summary judgment.
-18-
CONCLUSION
For the reasons set forth above, Defendant’s motion for
summary judgment is GRANTED.
DENIED
and
request
for
Plaintiff’s motion to strike is
leave
to
file
surreply
is
GRANTED.
Accordingly, the clerk is ORDERED to dismiss this case.
DATED:
July 20, 2011
/s/RUDY LOZANO, Judge
United States District Court
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