Parkcrest Builders, LLC v. Housing Authority of New Orleans

Filing 207

ORDER AND REASONS. It is ORDERED that Liberty's 67 Motion for Judgment on the Pleadings and 170 Motion for Judgment on the Pleadings and Motion to Dismiss are GRANTED in part and DENIED in part. It is FURTHER ORDERED that Liberty' ;s motion to dismiss HANO's fraud claim is GRANTED. It is FURTHER ORDERED that Libert's motion to dismiss HANO's breach of contract claim is DENIED. It is FURTHER ORDERED that Liberty's liability is capped at the penal sum of the bond. Signed by Judge Carl Barbier. (Reference: 15-1533)(gec)

UNITED STATES DISTRICT COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PARKCREST BUILDERS, LLC

CIVIL ACTION

VERSUS

NO: 15-1533
c/w 16-14118
16-15849

THE HOUSING AUTHORITY OF NEW
ORLEANS

SECTION: "J"(4)

ORDER AND REASONS
Before the Court is a Motion for Judgment on the Pleadings
(Rec. Doc. 67) filed by Intervenor Liberty Mutual Insurance Company
(“Liberty”), an opposition thereto (Rec. Doc. 70) filed by the
Housing Authority of New Orleans (“HANO”), and a reply (Rec. Doc.
75) filed by Liberty.

Also before the Court is a Motion for

Judgment on the Pleadings and Motion to Dismiss (Rec. Doc. 170)
filed by Liberty, an opposition thereto (Rec. Doc. 189) filed by
HANO, and a reply (Rec. Doc. 194) filed by Liberty.

Having

considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be GRANTED
in part and DENIED in part.
FACTS AND PROCEDURAL BACKGROUND
This case arises out of disputes that occurred during the
construction of affordable housing units in New Orleans.
1

Liberty

alleges that on March 4, 2013, HANO entered into a contract with
Parkcrest

Builders,

LLC

(“Parkcrest”)

whereby

Parkcrest

would

serve as the contractor for the construction of the Florida Avenue:
New Affordable Housing Units (the “Project”).

(Rec. Doc. 32 at

3.) Liberty alleges that because the project fell within the ambit
of the Louisiana Public Works Act, Parkcrest was obligated to
obtain a statutory performance and payment bond, and that it sought
the bond from Liberty.

Id.

Liberty avers that it issued a

payment and performance bond naming Parkcrest as principal and
HANO as obligee in connection with the project and that the bond’s
penal sum was $11,288,000.00.
Liberty

alleges

that

(Rec. Doc. 67-1 at 4.)

the

relationship

between

HANO

and

Parkcrest deteriorated during the course of the project, and on
April 10, 2015, HANO terminated Parkcrest.

On May 8, 2015,

Parkcrest brought this suit against HANO, alleging that the delays
in the project were caused by HANO and that HANO breached the
contract by terminating Parkcrest “for convenience.”
1.)

(Rec. Doc.

HANO filed a counterclaim against Parkcrest, alleging that

delays in the project were attributable solely to Parkcrest. (Rec.
Doc. 22)

In its counterclaim, HANO seeks damages for the delays

and also asserts claims that allegedly arose after Parkcrest was
terminated from the project. Id. at 15.

2

After terminating Parkcrest, HANO called upon Liberty to
perform its obligations as surety for Parkcrest.

On or about June

9, 2015, HANO and Liberty entered into a Takeover Agreement to
complete the project. Liberty and HANO dispute the factual details
leading up to the Takeover Agreement, the interpretation of the
Takeover Agreement, and the details surrounding implementation of
the Takeover Agreement.

These disagreements create the basis for

the instant motion.
Once the Takeover Agreement was executed, Liberty retained
Parkcrest as its completion contractor.

(See Rec. Doc. 32 at 6.)

Liberty alleges that HANO began violating the Takeover Agreement’s
terms shortly thereafter by failing to make required payments,
reducing the amounts approved for payment, failing to timely
respond to change order proposals submitted by Parkcrest, and
failing

to

timely

issue

punch

performance of the project.

lists

Id. at 6-8.

and

grant

substantial

Liberty alleges that it

was working to complete items on a punch list that HANO had
purposefully withheld when HANO terminated it from the project on
June 29, 2016.

Id. at 8-9.

Liberty then intervened in this lawsuit to allege breach of
the Takeover Agreement, bad faith breach of contract, and wrongful
termination claims.

(Rec. Doc. 32.)

counterclaim against Liberty.

In response, HANO filed a

(Rec. Doc. 37 at 17.)

3

HANO alleges

that Liberty acted as a de-facto contractor and is therefore liable
in amounts in excess of the penal sum of the bond.

Id.

HANO

further alleges that Liberty breached the terms of the Takeover
Agreement in bad faith and that it induced HANO to sign the
Takeover

Agreement

through

fraudulent

misrepresentation.

Id.

HANO alleges that it is due stipulated damages and general damages
arising out of Liberty’s failure to perform.

Id.

On December 19, 2016, Liberty filed an initial motion for
judgment on the pleadings (Rec. Doc. 67) on HANO’s counterclaim.
Thereafter, HANO moved to file a first supplemental and amended
counterclaim (“first amended counterclaim”) which the Magistrate
Judge granted.
second

(See Rec. Doc. 79.)

supplemental

and

amended

HANO then moved to file a

counterclaim

(“second

amended

counterclaim”), which the Magistrate Judge also granted.
Rec. Doc. 124.)

(See

Liberty responded by filing a second motion for

judgment on the pleadings, this time also requesting dismissal of
HANO’s fraud claim for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6).
amended

counterclaim

amended counterclaims.

(Rec. Doc. 170).

incorporates

the

original

HANO’s second
and

the

first

Accordingly, the Court will analyze the

instant motion for judgment on the pleadings and motion to dismiss
by referring to the briefing for both motions filed by Liberty and
the original, first amended, and second amended counterclaim.

4

See

Johnson v. Moog, Inc., No. 10-67, 2011 WL 719600, at *1 n.1 (E.D.
Tex. Feb. 22, 2011).
PARTIES’ ARGUMENTS
Liberty argues that HANO’s fraud claim should be dismissed
because Liberty was under no obligation to disclose that its
representative for completing the construction was also providing
Liberty with litigation services.

Liberty also argues that HANO’s

breach of contract claim should be dismissed to the extent that
HANO alleges that Liberty breached the contract by using Parkcrest
as the completion contractor.

More specifically, Liberty argues

that the terms of the Takeover Agreement explicitly permitted
Liberty to use Parkcrest as the completion contractor.

Finally,

Liberty argues that its liability is capped at the penal sum of
its bond because the Takeover Agreement specifically states that
Liberty would not be liable in excess of that amount.
In opposition, HANO argues that its fraud claim should not be
dismissed

because

Liberty

withheld

the

true

nature

of

the

construction representative’s and Parkcrest’s role in the project,
and that HANO would not have entered into the Takeover Agreement
had it known the entire truth.

HANO also argues that its breach

of contract claim states a clear cause of action.

HANO further

contends that Liberty is liable in excess of the penal sum of the

5

bond because it acted as a de-facto contractor on the project and
therefore lost the benefit of its liability cap.
LEGAL STANDARD
Rule 12(c) provides that “[a]fter the pleadings are closed—
but early enough not to delay trial—a party may move for judgment
on the pleadings.” Fed. R. Civ. P. 12(c). A motion brought pursuant
to Rule 12(c) “is designed to dispose of cases where the material
facts are not in dispute and a judgment on the merits can be
rendered by looking to the substance of the pleadings and any
judicially

noticed

facts.”

Hebert

Abstract

Co.

v.

Touchstone

Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990).
Courts evaluate a motion under Rule 12(c) for judgment on the
pleadings using the same standard as a motion to dismiss under
Rule 12(b)(6) for failure to state a claim. Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008) (citing Johnson v. Johnson, 385
F.3d 503, 529 (5th Cir. 2004)). To survive a Rule 12(b)(6) motion
to dismiss, the plaintiff must plead enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is facially plausible when the plaintiff
pleads facts that allow the court to “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw all

6

reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal,
75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound
to accept as true legal conclusions couched as factual allegations.
Iqbal,

556

U.S.

at

678.

“[C]onclusory

allegations

or

legal

conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002).
DISCUSSION
I.

Fraud
HANO’s fraud claim revolves around three misrepresentations

allegedly made by Liberty during negotiations of the Takeover
Agreement.

Neither party disputes that the Takeover Agreement

contained the following provision: “[I]t is the Surety’s right, at
its sole discretion, to choose the completion contractor under
this agreement.”

(See Rec. Doc. 67-1 at 5; Rec. Doc. 80 at 3.)

Thus, HANO acknowledges that the plain terms of the Takeover
Agreement permitted Liberty to use Parkcrest as its completion
contractor.

However,

HANO

asserts

that

the

three

alleged

misrepresentations made by Liberty induced HANO to agree to parts
of the Takeover Agreement to which it would not have otherwise
consented.

7

The first alleged misrepresentation made by Liberty is how it
characterized its decision to use Parkcrest as its completion
contractor under the Takeover Agreement.

HANO alleges that a

Liberty representative told HANO’s project manager that Liberty
intended to use Parkcrest as the completion contractor in order to
use

Parkcrest’s

quickly.

subcontractors

and

finish

the

project

more

HANO also alleges that a Liberty representative told

HANO that Liberty had done a thorough search of Parkcrest’s work
throughout the country and found it to be satisfactory.
alleges

that

neither

statement

was

true

and

that

HANO
these

misrepresentations masked the depth of the relationship between
Liberty and Parkcrest.
The second alleged misrepresentation is very similar to the
first.

HANO alleges that the real reason Liberty wanted Parkcrest

to be the completion contractor is that Liberty and Parkcrest had
engaged in a “dual defense agreement.”

As stated above, Parkcrest

had already filed suit against HANO prior to the execution of the
Takeover Agreement.

HANO alleges that Liberty and Parkcrest had

entered into a mutual agreement to defend Parkcrest’s performance
on the project.

HANO further alleges that Liberty never mentioned

the existence of this agreement to HANO in the period leading up
to the execution of the Takeover Agreement.

8

HANO alleges that it

would not have agreed to allow Parkcrest to serve as completion
contractor if it had known.
Finally,

HANO

alleges

that

Liberty

intentionally

misrepresented to HANO the nature of Liberty’s relationship with
a company called Meridian Consulting Group, LLC (“Meridian”). HANO
states that it only consented to the use of Parkcrest as completion
contractor

because

Liberty

agreed

to

“continually

maintain

a

representative on the project” to provide full-time oversight and
management.

The representative was to serve as a liaison between

HANO and Parkcrest should any more disputes arise. Liberty told
HANO that it chose Meridian to play this supervisory role of
construction consultant.

But HANO alleges that Liberty did not

disclose to HANO the true nature of the relationship between
Liberty and Meridian.

HANO alleges that Meridian has provided,

and continues to provide, Liberty with litigation support and
management services.

HANO alleges that if it had known the full

extent of Meridian’s participation, it would not have agreed to
allow Meridian serve as the representative.
Liberty’s

failure

to

disclose

Meridian’s

HANO argues that
full

participation

amounts to fraud.
Under Louisiana law, “[f]raud is a misrepresentation or a
suppression of the truth made with the intention either to obtain
an

unjust

advantage

for

one

party

9

or

to

cause

a

loss

or

inconvenience to the other.”

La. Civ. Code art. 1953.

A fraud

claim against a party to a contract must contain three basic
elements: “(1) a misrepresentation, suppression, or omission of
true information; (2) the intent to obtain an unjust advantage or
to cause damage or inconvenience to another; and (3) the error
induced

by

a

fraudulent

act

must

relate

to

a

circumstance

substantially influencing the victim's consent to (a cause of) the
contract.”

Shelton v. Standard/700 Assocs., 2001-0587, p. 5 (La.

10/16/01), 798 So. 2d 60, 64.
9(b)

also

requires

that

Federal Rule of Civil Procedure
fraud

allegations

“state

with

particularity the circumstances constituting fraud or mistake.”
Fed. R. Civ. P. 9(b).
All

three

misrepresentations

alleged

failure to disclose the entire truth.
from silence or inaction.”

by

HANO

involve

a

“Fraud may also result

La. Civ. Code art. 1953.

However,

when fraud is alleged to have been perpetrated by silence or
suppression of the truth, “there must exist a duty to speak or to
disclose information.”

McCarthy v. Evolution Petroleum Corp.,

2014-2607, p. 10 (La. 10/14/15), 180 So. 3d 252, 258.

Generally,

no duty to speak or disclose exists but it “may arise where there
exists a fiduciary relationship between the parties.”

Becnel v.

Grodner, 2007-1041, p. 4 (La. App. 4 Cir. 4/2/08); 982 So. 2d 891,
894.

The

Louisiana

Supreme

Court

10

has

described

a

fiduciary

relationship as “one that exists when confidence is reposed on one
side and there is resulting superiority and influence on the
other.”

Plaquemines Par. Comm'n Council v. Delta Dev. Co., 502

So. 2d 1034, 1040 (La. 1987).
fiduciary

relationship

.

.

“The defining characteristic of a
.

is

the

special

relationship

of

confidence or trust imposed by one in another who undertakes to
act primarily for the benefit of the principal in a particular
endeavor.”

Scheffler v. Adams & Reese, LLP, 2006-1774, p. 7 (La.

2/22/07); 950 So. 2d 641, 648.
HANO does not allege that a fiduciary relationship existed
between

itself

and

Liberty,

nor

do

counterclaim lead to such a conclusion.

the

allegations

in

the

In fact, the allegations

suggest that the relationship between HANO and Liberty was that of
two parties to a business transaction.

Liberty’s role as surety

did not create a fiduciary relationship.

See Nat'l Union Fire

Ins. Co. of Pittsburgh, Pa. v. Turtur, 892 F.2d 199, 207 (2d Cir.
1989) (“[I]n general, a surety does not owe a fiduciary duty to
its principal.”)
HANO

the

Meridian.

depth

Thus, Liberty was not obligated to disclose to
of

its

relationship

with

either

Parkcrest

or

HANO acknowledges that Liberty disclosed Meridian’s

role as construction consultant.

It was not necessary for Liberty

to also disclose that Meridian would serve a dual role as its
consulting

expert

and

that

it

11

would

be

providing

litigation

support.

See Wilson v. Mobil Oil Corp., 940 F. Supp. 944, 955

(E.D. La. 1996) (“[A]bsent a duty to disclose, silence with respect
to the details of a business transaction does not constitute
fraud.”)
As to HANO’s allegations that Liberty made intentionally
false statements about Parkcrest in order to induce HANO to execute
the Takeover Agreement, this is inadequately pled.
conclusory

allegation

that

Liberty’s

statement

HANO makes a
that

it

had

investigated Parkcrest’s work throughout the nation was false, but
provides no detail to support this accusation.

Additionally,

HANO’s allegation that Liberty committed a misrepresentation by
telling HANO that it chose Parkcrest as the completion contractor
in order to use Parkcrest’s subcontractors falls well short of
fraud.

Even if Liberty had other reasons for choosing Parkcrest,

it is entirely plausible that Liberty was at least partially
enticed by the opportunity to use subcontractors who were familiar
with the work site.
conclusion.
use

of

HANO’s pleading does not require a contrary

Moreover, HANO has failed to explain how Liberty’s

Parkcrest

as

completion

contractor

and

Meridian

as

construction consultant was meant to obtain an unjust advantage
for Liberty or to cause damage or inconvenience to HANO.

See La.

Civ. Code art. 1953. Accordingly, HANO’s fraud claim is dismissed.

12

II.

Breach of the Takeover Agreement

Contracts in Louisiana must be performed in good faith.
Civ. Cod. art. 1983.

La.

“An obligor in bad faith is liable for all

the damages, foreseeable or not, that are a direct consequence of
his failure to perform.”

La. Civ. Code art. 1997.

Bad faith

implies “the conscious doing of a wrong for dishonest or morally
questionable motives.”

Sartisky v. Louisiana Endowment for the

Humanities, No. 14-1125, 2014 WL 5040817, at *2 (E.D. La. Sept.
26, 2014) (quoting MKR Servs., LLC v. Dean Hart Constr., LLC,
44,456, p. 6 (La. App. 2 Cir. 7/8/09), 16 So. 3d 562, 566).
HANO alleges that Liberty breached the Takeover Agreement in
multiple

ways.

The

original

counterclaim

makes

the

general

allegation that Liberty, in bad faith, failed to arrange for
completion of the project diligently and expeditiously.
Doc. 37 at 18.)

(Rec.

The first amended counterclaim fleshes out the

breach of contract claim by providing more specific allegations.
First, HANO argues that Liberty and Parkcrest worked in tandem to
increase the amount that would be payable to Parkcrest.
HANO

alleges

that

Liberty

failed

to

continually

Second,

maintain

a

representative on the project during the course of the work.
Finally, HANO alleges that Liberty failed to provide adequate
oversight and management as agreed in the Takeover Agreement,

13

failed to complete the project according to the contract, and
failed to achieve substantial completion.
Liberty does not argue that the entire breach of contract
claim should be dismissed; rather, it contends that any allegation
that Liberty violated the Completion Agreement when it retained
Parkcrest

as

the

completion

contractor

should

be

dismissed.

However, HANO’s breach of contract claims, as stated in both the
original, first amended, and second amended counterclaim, includes
no allegation that Liberty violated the Takeover Agreement in that
manner.
the

In fact, HANO expressly acknowledges that it entered into

Takeover

Agreement

knowing

that

Liberty

Parkcrest as the completion contractor.

intended

to

use

(See Rec. Doc. 70 at 1-

2.) Accordingly, further analysis of Liberty’s motion for judgment
on the breach of contract claim is unnecessary and Liberty’s motion
is denied.
III. Extent of Liberty’s liability
The final issue is whether Liberty is liable for damages in
excess of the penal sum of its bond resulting from the allegations
that it breached the Takeover Agreement.

As described above,

Liberty issued a payment and performance bond naming Parkcrest as
principal

and

$11,288,000.00.

HANO

as

obligee.

The

bond’s

penal

sum

is

Liberty argues that its liability is capped at

the sum of the penal bond.

HANO contends that Liberty functioned

14

as a de-facto contractor on the project and is therefore liable
for amounts exceeding the penal sum of the bond for its alleged
breach of the Takeover Agreement.
Louisiana’s Public Works Act requires that the successful
bidder to whom a public works contract has been awarded “shall
furnish good and solvent bond in an amount not less than one-half
of the amount of the contract, for the faithful performance of his
duties.”

La. Stat. Ann. § 38:2216(A)(1).

The issuance of the

bond results in the surety becoming bound “to pay up to the amount
of the bond in the event of nonfulfillment or nonperformance of
the contractor's obligations for the public works contract.” Scott
v. Red River Waterway Comm'n, 41,009, p. 6 (La. App. 2 Cir.
4/12/06), 926 So. 2d 830, 835.

Because Liberty issued a bond on

a public works project with the penal sum of $11,288,000.00, this
is the extent of its obligation as surety.
The

Takeover

Agreement

includes

the

following

provision:

“The liability of Surety under this Agreement is strictly limited
to the penal sum of the Bond.

In no event will Surety be required

to expend more than the penal sum of its Bond.” 1
at 3.)
facto

(Rec. Doc. 23-5

Nevertheless, HANO alleges that Liberty served as a decontractor

on

the

project

1

after

signing

the

Takeover

The Takeover Agreement was filed by HANO as an exhibit to the counterclaim it
filed against Parkcrest. HANO’s counterclaim against Liberty incorporates by
reference its counterclaim against Parkcrest.
15

Agreement.

In

support

of

this

position,

HANO

alleges

that

paperwork submitted by Liberty to HANO after execution of the
Takeover Agreement was sent and signed by “Contractor: Liberty
Mutual.”
In Louisiana, a surety who steps into the shoes of the
contractor and takes an active role in the completion of the
project loses the benefit of its liability being capped at the
penal sum.

Klein v. J.D. & J.M. Collins, 106 So. 120, 122 (1925).

In Klein v. J.D. & J.M. Collins, the Louisiana Supreme Court
addressed a scenario where a contractor agreed to build a duplex
apartment complex.

Id. at 121.

The plaintiff alleged that when

the contractor on the project could no longer afford to pay its
laborers, the surety on the bond agreed to undertake completion of
the building.

Id.

The court concluded that if the surety had

“left it to the owner to complete the work upon the default of the
contractors, unquestionably the company could not be held liable
for more than the amount for which it had bound itself as surety
. . . .”

Id. at 122.

But if the surety agreed to complete the

project upon the contractor’s failure to do so, then it “put itself
in the place of the contractors from the moment of the new
undertaking, and became liable for the costs of completing the
building, without reference [to] the amount for which it had signed
as surety.”

Id.

16

Liberty acknowledges that a surety can become bound in excess
of the penal sum of the bond when it assumes the role of contractor,
but argues that such a scenario could not exist here because the
Takeover Agreement expressly states that Liberty’s liability is
limited to the penal sum of the bond.

The Court agrees.

The

Louisiana Public Works Act “does not specifically detail how the
surety

may

situation.”

act

to

remedy

a

contractor's

Scott, 926 So. 2d at 836.

default

in

a

given

When HANO terminated

Parkcrest from the project, it called upon Liberty to perform its
duty as surety.

At that time, both parties entered into the

Takeover Agreement whereby Liberty agreed to oversee the Project’s
completion.

As described in Klein, Liberty’s decision to oversee

completion could have exposed it to liability in excess of the
penal sum of the bond.

It is for this reason that “takeover

agreements are often carefully negotiated by sureties to preserve
the

protection

of

the

Construction Law § 12:22.

bond

amount.”

4A

Bruner

&

O'Connor

The Takeover Agreement between HANO and

Liberty included a clause expressly limiting Liberty’s obligation
to the penal sum of the bond.

This is one mechanism a surety may

employ to prevent becoming liable in excess of the penal sum of
the bond.

See Int’l Fid. Ins. Co. v. County of Rockland, 98 F.

Supp. 2d 400, 429 (S.D.N.Y. 2000) (“To avoid liability in excess
of the bond amount, . . . the surety must include a clause in the

17

takeover agreement which limits the surety's liability in the
course of performance to the original bond penalty.”) (quoting
Bruce C. King, Takeover and Completion of Bonded Contracts by the
Survey,

FALL

1997,

at

22-23);

Allegheny

Cas.

Co.

v.

Archer-

W./Demaria Joint Venture III, No. 8:13-CV-128-SCB-TGW, 2014 WL
4162787, at *11 (M.D. Fla. Aug. 21, 2014) (holding that “even if
a

performing

surety's

liability

can

exceed

the

penal

sum,

a

performing surety can limit its liability by expressly so providing
in a contract with the benefitted obligee”).

Moreover, “the

meaning and intent of the parties to a written instrument should
be determined within the four corners of the document, and its
terms cannot be explained or contradicted by extrinsic evidence.”
Scott, 926 So. 2d at 834.

The terms of the Takeover Agreement are

clear, and the Court need not look beyond them to determine that
HANO and Liberty agreed that Liberty would not be liable for
damages in excess of the penal bond.
CONCLUSION
Accordingly,
IT IS ORDERED that Liberty’s Motion for Judgment on the
Pleadings (Rec. Doc. 67) and Motion for Judgment on the Pleadings
and Motion to Dismiss (Rec. Doc. 170) are GRANTED in part and
DENIED in part.

18

IT IS FURTHER ORDERED that Liberty’s motion to dismiss HANO’s
fraud claim is GRANTED.
IT IS FURTHER ORDERED that Liberty’s motion to dismiss HANO’s
breach of contract claim is DENIED.
IT IS FURTHER ORDERED that Liberty’s liability is capped at
the penal sum of the bond.
New Orleans, Louisiana this 5th day of June, 2017.

__________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

19