Stevenson v. Potter
Filing
120
OPINION AND ORDER denying 109 Motion for Default Judgment. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES STEVENSON,
Case No. 06-15182
Plaintiff,
Paul D. Borman
United States District Judge
v.
MEGAN J. BRENNAN, Postmaster
General of the United States,
David R. Grand
United States Magistrate Judge
Defendant.
______________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT (ECF No. 109)
This matter comes before the Court on Plaintiff’s Motion for Default
Judgment as to Liability as to Retaliation Claims Involving Scheme Training and
Termination Due to Spoliation of Evidence. (ECF No. 109.) In that Motion, Plaintiff
argues that Defendant destroyed evidence with sufficient deliberateness and
culpability as to warrant default judgment against Defendant on certain claims as a
sanction. For the reasons that follow, Plaintiff’s arguments lack merit; the Court
denies Plaintiff’s Motion.
BACKGROUND
Plaintiff filed the instant Motion for Default Judgment as to Liability as to
Retaliation Claims Involving Scheme Training and Termination Due to Spoliation
of Evidence on March 6, 2018. (ECF No. 109, Pl.’s Mot.) Defendant filed a
Response two days later (ECF No. 110, Def.’s Resp.), and Plaintiff filed a Reply on
March 15, 2018 (ECF No. 115, Pl.’s Reply).
Plaintiff’s Title VII retaliation claim is premised partly on the allegation that
his 2009 removal from his position at the U.S. Postal Service’s Jefferson Station in
Detroit, Michigan was an act of retaliation by Defendant, contrary to Defendant’s
explanation that he was removed from the job because he failed scheme training.1
(See ECF No. 55, 4th Am. Compl. ¶¶ 60-71, 103C-103E.) In support of this aspect
of his retaliation claim, Plaintiff has asserted that other employees that were
otherwise similarly situated to him failed training programs in a similar fashion, but
were not subjected to removal in the way that he was. (See id. ¶ 103C; see also ECF
No. 77, Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. at 19, Pg ID 2284.)
On March 2, 2015, in the course of discovery, Defendant responded to a series
of interrogatories and document requests propounded by Plaintiff. (ECF No. 103 Ex.
105.) Defendant’s responses included the following:
Interrogatory No. 12: Please list the names of any and all career
employees who failed either scheme or window training in the Detroit
Installation from 01/01/08 to present.
Response to Interrogatory No. 12: Defendant objects to Interrogatory
No. 12 because it is overly broad, unduly burdensome and not
1
As noted in a previous Opinion and Order issued by this Court in this matter, each
USPS station during the relevant time period had “a ‘scheme’—a listing of addresses
within a particular zip code—that clerks working in that station would have to learn
in order to distribute mail to the correct letter carrier routes.” (ECF No. 113 at 9 n.3,
Pg ID 4693.)
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reasonably calculated to lead to the discovery of admissible evidence.
Defendant does not have the ability to search for employees who failed
scheme or window training generally without being provided an
employee name. Subject to and without waiving objections, pursuant to
Fed. R. Civ. P. 33(d), Defendant directs Plaintiff to those individuals
identified in Defendant's response to Interrogatory No. 1 and Document
Request No. 26 and documents Bates No. USPS 012126-012210.
Document Request No. 27: Please produce copies of any and all
separation notice(s) for each and every employee who failed either
scheme or window training in the Detroit Installation from 01/01/08 to
present.
Response to Document Request No. 27: See Response to Interrogatory
No. 12.
(Id. at Pg ID 4236-37.) Defendant notes in its Response that Plaintiff has not
identified any USPS system that would in fact permit USPS to search for employees
who failed scheme or window training without being provided with specific names.
Defendant further notes that Plaintiff did not challenge Defendant’s objections to
Interrogatory No. 12 and Document Request No. 27, nor did he file a motion to
compel discovery. (See Def.’s Resp. at 2-3, Pg ID 4638-39.)
Plaintiff represents that Defendant produced scheme training records for eight
specific USPS employees, and (presumably sometime later) produced scheme
training records and a notice of separation for USPS employee Melissa Sanders,
whom Plaintiff states he never identified in any of his EEO claims. (See Pl.’s Mot.
at 3, Pg ID 4363.) Plaintiff also points out that Defendant has filed three declarations
at different points in this proceeding by USPS employees who claimed to have
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reviewed USPS records (ECF No. 81 Ex. 34, Declaration of Nicole Collins-Earley;
Ex. 36, Declaration of Michael Greene; ECF No. 88 Ex. 1, Declaration of Stacey O.
Parker), and notes that none of these declarants “made any mention of missing
records.” (Pl.’s Mot. at 4-5, Pg ID 4364-65.)
On July 6, 2017, Plaintiff and the American Postal Workers’ Union
(“APWU”) submitted a records request to Defendant seeking scheme training
records for five specified USPS employees, while pursuing a compensation claim
unrelated to this matter. (Pl.’s Mot. Ex. I, July 6, 2017 Information Request and
USPS Response.) Plaintiff asserts that while Defendant eventually produced records
for four of the five named individuals, Defendant never produced records for one of
them: Jacqueline Green. (See Pl.’s Mot. at 7-9, Pg ID 4367-69.) Plaintiff further
asserts that he independently learned from Green “that she was a clerk assigned to
the Jefferson Station in January 2011 and that she failed scheme training for the
position,” as well as other facts about Green that Plaintiff argues demonstrate that
she was similarly situated to him. (Id. at 9, Pg ID 4369.)
On November 9, 2017, Plaintiff filed an EEO complaint against Defendant for
spoliation of scheme training records. (Pl.’s Mot. Ex. R, EEO Formal Complaint No.
4J-481-0190-17.) The EEO complaint was dismissed on November 22, 2017 by
EEO Services Analyst Gil Grim, whose decision stated in pertinent part:
The Commission has long held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another forum's
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proceeding. The proper forum for Complainant to have raised his
challenges . . . was within the civil court process itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred through the court process.
In the instant complaint, you allege that you became aware that
management withheld or destroyed records pertinent to your prior EEO
cases. However, the record contains documents concerning the filing of
a civil action concerning training issues in 2009. Number 06-CV15182, in the United States District Court, Eastern District of Michigan.
The proper forum for you to raise challenges to actions which occurred
in the civil court is through that forum itself. It is inappropriate to
attempt to use the EEO process to collaterally attack actions which
occurred during the above process.
(Pl.’s Mot. Ex. A, Dismissal of EEO Formal Complaint No. 4J-481-0190-17 at 3, Pg
ID 4390.)
Along with the dismissal of the EEO complaint, Plaintiff has submitted a
document apparently generated in the pre-complaint counseling phase, entitled
“EEO Alternative Dispute Resolution Specialist’s (ADRS) Inquiry Report,” and
dated November 15, 2017. (Id. at Pg ID 4392-94.) The section of that document
entitled “Dispute Resolution Specialist’s Inquiry” states as follows:
Counselee is alleging discrimination on the basis of retaliation when on
August 29, 2017, he became aware that records of others who failed
scheme training were withheld and/or destroyed which he considers
spoliation of evidence relative to his existing EEO complaints.
An inquiry was requested and Gail Lewis, Manager of PEDC stated that
Counselee was requesting records dating back to 2011. She was not the
Manager and the records could not be located.
(Id. at Pg ID 4394.)
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Plaintiff contends that he filed the instant Motion because “the USPS’s
spoliation of Jacqueline Green’s scheme training records warrants entry of a default
as to liability as to [Plaintiff]’s claims regarding scheme training and termination.”2
(Pl.’s Mot. at 10, Pg ID 4370.)
LEGAL STANDARDS
“When a party destroys evidence in anticipation of litigation, the trial court
may impose sanctions for spoliation.” Applebaum v. Target Corp., 831 F.3d 740,
744 (6th Cir. 2016) (citing Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir. 2009) (en
banc)). “It is within a district court's inherent power to exercise broad discretion in
imposing sanctions based on spoliated evidence.” Carlson v. Fewins, 801 F.3d 668,
678 (6th Cir. 2015) (quotation marks omitted) (quoting Adkins, 554 F.3d at 653).
A litigant seeking spoliation sanctions must make three showings:
(1) that the party having control over the evidence had an obligation to
preserve it at the time it was destroyed; (2) that the records were
destroyed with a culpable state of mind; and (3) that the destroyed
evidence was relevant to the party's claim or defense such that a
2
Plaintiff’s Motion also discusses the other four individuals for whom Plaintiff and
APWU sought records in 2017 at considerable length, detailing Plaintiff’s argument
that Defendant deliberately concealed records concerning USPS employee Shirley
Johnson before eventually turning them over, as well as Plaintiff’s arguments that
each of the other four individuals were comparators similarly situated to Plaintiff.
But because the only records that Plaintiff claims he did not receive in the present
motion for spoliation sanctions were records concerning Jacqueline Green, and since
Plaintiff makes clear that Green’s scheme training records are the subject of the
Motion, the Court disregards Plaintiff’s arguments concerning the other four
individuals outside the scope of the Motion.
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reasonable trier of fact could find that it would support that claim or
defense.
Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065, 1070 (6th
Cir. 2014) (quotation marks omitted) (quoting Beaven v. U.S. Dep't of Justice, 622
F.3d 540, 553 (6th Cir. 2010)).
A district court has the discretion to “impose many different kinds of sanctions
for spoliated evidence, including dismissing a case, granting summary judgment, or
instructing a jury that it may infer a fact based on lost or destroyed evidence.”
Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 513 (6th Cir. 2014)
(quotation marks omitted) (quoting Adkins, 554 F.3d at 653). “The severity of
sanction issued is determined on a case-by-case basis, depending in part on the
spoliating party's level of culpability.” Yoder, 774 F.3d at 1070 (citing Flagg v. City
of Detroit, 715 F.3d 165, 178 (6th Cir. 2013)).
DISCUSSION
The Sixth Circuit has made clear that the three-prong test for spoliation
sanctions quoted above is “conjunctive,” and that “as long as the district court
correctly conclude[s] that the moving party did not satisfy at least one of the test's
prongs, its determination that a spoliation sanction should not issue cannot be upset.”
Yoder, 774 F.3d at 1070 n.2 (citing Adkins v. Wolever, 692 F.3d 499, 504 (6th Cir.
2012)). Here, it is readily apparent that Plaintiff has failed to satisfy both the first
7
and the second prong of the test, and this Court therefore has no need to reach the
third prong. Apart from that, Plaintiff has not shown that he is entitled to sanctions
under Federal Rule of Civil Procedure 37.
Sanctions are not warranted under the Court’s inherent power.
In the instant Motion, Plaintiff argues that he has satisfied all three prongs of
the standard governing spoliation sanctions under the Court’s inherent power: an
obligation by the party in control of the evidence to preserve it, a culpable state of
mind, and materiality of the destroyed evidence to a claim or defense in the action.
See Yoder, 774 F.3d at 1070. The Court rejects Plaintiff’s argument for the reasons
that follow.
1.
Obligation to preserve the records
The “obligation” prong of the standard may be met “where a [litigant] knows
evidence might be relevant to future potential litigation.” Ross v. Am. Red Cross,
567 F. App'x 296, 303 (6th Cir. 2014) (quotation marks omitted) (quoting Johnson
v. Metro. Gov't of Nashville & Davidson Cnty., 502 F. App’x 523, 532 (6th Cir.
2012)). The question is not whether the litigant had a generalized obligation to
preserve the document at issue, but whether the litigant “knew or should have known
that the document was relevant to future litigation.” Id. at 302-03 (citing Beaven,
622 F.3d at 553); see also id. (concluding that the obligation prong was not met
where there was no evidence of the party’s awareness of potential litigation,
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regardless of whether it was obligated to preserve the document by a consent decree).
As noted supra, Defendant stated in its March 2015 discovery response that it
was unable to conduct a general search for records of employees who failed scheme
or window training without specific names. Plaintiff argues that this statement was
demonstrably false because Defendant later produced the scheme training records of
Melissa Sanders (an employee whom Plaintiff had never identified), but this fact
does not establish that Defendant misrepresented its inability to compile records of
all employees who had failed scheme or window training without the names of
specific employees. As Defendant points out, Plaintiff has offered no evidence
tending to show that Defendant did in fact have this capability, and Plaintiff did not
move to compel discovery or otherwise challenge Defendant’s objection at the time
that the request was unduly burdensome. Plaintiff counters in his Reply that the
discovery responses were not made under oath, and therefore do not constitute
competent evidence of Defendant’s inability to compile the requested records (or at
least its ability to compile the requested records without undue burden), but this
argument misunderstands the way that the burdens are allocated at this time: as
Plaintiff has moved for spoliation sanctions, he must make a showing that
Defendant’s discovery response was false or inaccurate. He has failed to do this.
The discovery requests at issue here called for two things: (1) “the names of
any and all career employees who failed either scheme or window training in the
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Detroit Installation from 01/01/08 to present,” and (2) “any and all separation
notice(s) for each and every employee who failed either scheme or window training
in the Detroit Installation from 01/01/08 to present.” (ECF No. 103 Ex. 105 at Pg ID
4236-37.)
Plaintiff has acknowledged that Jacqueline Green “was not issued a removal
notice” (Pl.’s Mot. at 9, Pg ID 4369), and Green herself attested to this point in a
declaration that Plaintiff has attached to his Reply (Pl.’s Reply Ex. A, Declaration
of Jacqueline Green ¶ 7). The issue then becomes whether, lacking the ability to
compile records of all employees who failed scheme or window training, Defendant
knew or should have known that Jacqueline Green’s records were relevant to future
litigation. Plaintiff argues that “[a]ll records pertaining to this case, both in this Court
and in the underlying EEO proceedings, were subject to litigation holds” (id.), and
has submitted the litigation holds as an exhibit to his Motion. (Pl.’s Mot. Ex. D,
Litigation Holds.) But the litigation holds merely identify the EEO complaints which
Plaintiff had filed and broadly summarize their allegations, and while this evidence
demonstrates that Defendant was on notice to preserve records generally relevant to
those proceedings, Plaintiff has offered no reason to conclude that Defendant knew
or should have known that Jacqueline Green’s records were relevant to those
proceedings. This is all the more apparent in light of Defendant’s contentions that:
(1) Plaintiff never identified Green as a potential comparator; and (2) Defendant had
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no reason to believe that Green, who failed scheme training two years after Plaintiff
did, when Defendant’s staffing needs (and thus the factors influencing its decision
whether to retain an individual who had failed scheme training) were entirely
different. (Def.’s Resp. 7, Pg ID 4643.)
For these reasons, Plaintiff has failed to demonstrate that Defendant had an
obligation to preserve Green’s scheme training records.
2.
Culpable state of mind
Plaintiff must also show “that the records were destroyed with a culpable state
of mind.” Yoder, 774 F.3d at 1070. “The requisite ‘culpable state of mind’ may be
established through a ‘showing that the evidence was destroyed knowingly, even if
without intent to breach a duty to preserve it,’ but even negligent conduct may suffice
to warrant spoliation sanctions under the appropriate circumstances.” Stocker v.
United States, 705 F.3d 225, 235 (6th Cir. 2013) (quoting Beaven, 622 F.3d at 554).
It is not clear to begin with that Jacqueline Green’s scheme training records
were in fact destroyed.3 Even on the assumption that they were, however, Plaintiff
3
Plaintiff asserts only that Defendant never turned over Green’s scheme training
records to him, and submits a report from an EEO Dispute Resolution Specialist
stating: “Gail Lewis, Manager of PEDC stated that Counselee was requesting
records dating back to 2011. She was not the Manager and the records could not be
located.” (Pl.’s Mot. Ex. A, Dismissal of EEO Formal Complaint No. 4J-481-019017 at Pg ID 4394.) Defendant “USPS does not deny . . . that it had control of Green’s
training records” (Def.’s Resp. at 7, Pg ID 4643), but does not offer any indication
of what happened to them.
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has made no showing of a culpable state of mind on Defendant’s part. Plaintiff
maintains that Defendant’s “repeatedly false statements evince[] a culpable state of
mind in the loss or destruction (or intentional concealment) of Jacqueline Green’s
scheme training records.” (Pl.’s Mot. at 13, Pg ID 4373.) Both varieties of “false
statements” that Plaintiff has shown, however, are irrelevant to the question of
culpability in connection with Green’s scheme training records.
Plaintiff first argues that none of the three USPS employees who attested to
having reviewed “regularly kept business records” in sworn declarations filed earlier
in this matter made any mention of missing records. (ECF No. 81 Ex. 34, Declaration
of Nicole Collins-Earley; Ex. 36, Declaration of Michael Greene; ECF No. 88 Ex.
1, Declaration of Stacey O. Parker) Each of these declarations concerned one or more
specific USPS employees—none of whom were Jacqueline Green—and in context
it is clear that each declarant’s reference to having reviewed regularly kept business
records is intended to establish the declarant’s competency to make the statements
in his or her declaration. None of these declarants would have had any reason to
mention Jacqueline Green’s records. This argument is patently without merit.
Plaintiff also argues that Defendant falsely stated that it did not possess
scheme training records for USPS employee Shirley Johnson, and then (one day
later) furnished him with those records. (Pl.’s Mot. Ex. J, Emails of July 5-6, 2017.)
Plaintiff argues that he only received Johnson’s records after Defendant was
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threatened with sanctions under a Sixth Circuit Consent Order, which provides for
“fines of $17,500 for each failure or delay in providing information to the APWU
and its representatives, with further fines of $300 per day for continuing violations.”
(Pl.’s Mot. at 7, Pg ID 4367; Pl.’s Mot. Ex. M, Consent Order.) The notion that this
could somehow satisfy the culpability prong of the spoliation-sanction inquiry is
unconvincing for several reasons. First, Plaintiff’s evidence fails to establish or even
suggest that Defendant capitulated to his records request because of a threat of
sanctions. Second, even if it did, Plaintiff has not explained why these
circumstances, which concern Johnson’s records, would pertain to Defendant’s state
of mind as to Green’s records. Third, even if the evidence showed a
misrepresentation by Defendant as to Johnson’s records, and even if Plaintiff had
made some colorable argument that this was relevant to Green’s records, Plaintiff’s
theory is illogical on its face: if indeed Defendant withheld records in order to
undermine Plaintiff’s claims but then immediately turned them over on pain of
sanctions, it beggars belief that Defendant would turn over some of the requested
records but retain others in order to undermine Plaintiff’s ongoing litigation—and
not, for example, because the records had been inadvertently misplaced.
Plaintiff has failed to demonstrate that Defendant had an obligation to
preserve Jacqueline Green’s scheme training records, and that those records were
destroyed with a culpable state of mind. These failures are fatal to Plaintiff’s request
13
for spoliation sanctions under this Court’s inherent authority. Further, the Court
concludes that Green’s records are not relevant to Plaintiff’s claim because it is clear
that he and Green were clearly not similarly situated. Green failed scheme training
in 2011—two years after he did.
Further, the instant Motion is not timely. Plaintiff asserts that he learned from
Green that she failed scheme training in August 2017, yet Plaintiff waited 7 months
to file this Motion, all the while aware that a motion for summary judgment (ECF
No. 68) was pending. Thus, Plaintiff failed to bring his spoliation motion as soon as
reasonably possible.
In Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009), Judge
Paul Grimm noted that “there is a particular need for these [spoliation] motions to
be filed as soon as reasonably possible after discovery of the facts that underlie the
motion.” Id. at 508. See also Crown Battery Mfg. Co. v. Club Car, Inc., 185 F. Supp.
3d 987, 995-97 (N.D. Ohio 2016).
Sanctions are not warranted under Rule 37(c)(1).
Plaintiff also argues that he is entitled to sanctions under Federal Rule of
Procedure 37(c)(1), which provides in relevant part:
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e),
the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure
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was substantially justified or is harmless. In addition to or instead of
this sanction, the court, on motion and after giving an opportunity to
be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1).
As the text of the Rule makes clear, Rule 37(c)(1) governs sanctions for
violations of Federal Rule of Civil Procedure 26(a) or (e). Rule 26(a) governs initial
disclosures, expert testimony disclosures, and pretrial disclosures, none of which are
clearly implicated here. Plaintiff’s argument appears to be that Defendant violated
Rule 26(e)(1) (“Supplementing Disclosures and Responses”), which provides:
(1) In General. A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or
request for admission--must supplement or correct its disclosure or
response:
(A) in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in
writing; or
(B) as ordered by the court.
Fed. R. Civ. P. 26(e)(1).
There is no court order at issue here, and so Defendant can only be said to
have violated Rule 26(e)(1) if it failed to “supplement or correct” its discovery
15
responses in a timely manner upon “learn[ing] that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other parties during the
discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). Plaintiff alleges that
Defendant has continued to withhold (or that it destroyed) only Jacqueline Green’s
records, and not the records of any other individual he has specified, and so only
Green’s records could implicate Rule 26(e)(1)(A).
They do not, however, because Plaintiff has not identified any discovery
response that Defendant had a duty to supplement with Green’s records. The
discovery requests identified above required disclosure of the names of Detroit
Installation employees who failed scheme or window training from January 2008 to
2015, and the separation notices for such employees. (ECF No. 103 Ex. 105 at Pg
ID 4236-37.) Plaintiff and Green herself both admit that Green did not receive a
removal notice (Pl.’s Mot. at 9, Pg ID 4369; Green Decl. ¶ 7), which leaves only
Green’s name as a potential basis for a finding that Defendant failed to supplement
its discovery responses. There is no evidence that Defendant knew about Green any
earlier than Plaintiff did. The Court rejects Plaintiff’s argument that he is entitled to
sanctions under Rule 37(c).
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CONCLUSION
For all of the reasons stated above, the Court hereby DENIES Plaintiff’s
Motion for Default Judgment as to Liability as to Retaliation Claims Involving
Scheme Training and Termination Due to Spoliation of Evidence. (ECF No. 109.)
IT IS SO ORDERED.
Dated: April 20, 2018
s/Paul D. Borman
Paul D. Borman
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on April 20, 2018.
s/D. Tofil
Deborah Tofil, Case Manager
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