Song v. Regents of the University of Minnesota
Filing
101
MEMORANDUM OPINION AND ORDER granting 66 Defendants' Motion to Dismiss; denying 83 Plaintiff's Motion to Remove Defendants' Memoranda; denying 91 Plaintiff's Motion for Permission to File Third Amended Complaint; denying 95 Plaintiff's Motion for Extension of Time to Complete Discovery (Written Opinion). Signed by Judge Ann D. Montgomery on 04/26/2012. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Yahui Song, Ph.D.,
Plaintiff,
MEMORANDUM OPINION AND
ORDER
Civil No. 11-427 ADM/TNL
v.
Regents of the University of Minnesota;
L. James Nixon, M.D.; Barbara K. Patrick, M.D.;
Sheila M. Specker, M.D.; Theodore R.
Thompson, M.D.; Kathleen V. Watson, M.D.;
and John Does 1-15,
Defendants.
______________________________________________________________________________
Larry A. Frost, Esq., Paladin Law, PLLC, Bloomington, MN, and Bruce Fein, Esq., Bruce Fein
& Associates, Inc., Washington, D.C., on behalf of Plaintiff.
Jennifer L. Frisch, Esq., Associate General Counsel, University of Minnesota, Minneapolis, MN,
on behalf of Defendants
______________________________________________________________________________
I. INTRODUCTION
On April 5, 2012, the undersigned United States District Judge heard oral argument on
Defendants’ Motion to Dismiss and Other Rule 37 Sanctions [Docket No. 66]. Plaintiff Yahui
Song (“Song”) also filed a Motion to Remove Defendants’ Memorand[a] [Docket No. 83], a
Motion for Permission [to] File Third Amended Complaint [Docket No. 91], and a Motion to
Extend the Time for Discovery [Docket No. 95]. For the reasons set forth below, Defendants’
Motion to Dismiss is granted and Plaintiff’s motions are denied.
II. BACKGROUND
Song, a United States citizen and California resident, attended the University of
Minnesota Medical School (“Medical School”) between August 2005 and the fall semester of
2009. 2d Am. Compl. [Docket No. 25] ¶¶ 1(c), 4, 7. The Regents of the University of
Minnesota operated the Medical School, and the individually named defendants were faculty and
administrators there. Id. ¶¶ 5–6. After an August 14, 2008 meeting with the Medical School’s
Committee on Student Scholastic Standing (“COSSS”), Song’s class registration was cancelled,
she was required to “shadow a hospitalist” for six weeks, and she was prohibited from
registering for third-year courses. Id. ¶¶ 31–32. Song resumed classes in November 2008. Id. ¶
44. In April 2009, Song was notified she had failed a course, and on May 27, 2009, she was
placed on mandatory “immediate medical leave” for her to undergo “thorough physical and
psychiatric evaluations.” Id. ¶¶ 52, 76. Song’s medical leave ended in July 2009. Song Decl.
[Docket No. 20] (“First Song Decl.”) ¶ 3.
Song was placed on indefinite suspension on August 13, 2009. 2d Am. Compl. ¶¶ 98,
100. Song, represented by Attorney Greg Corwin, requested permission to re-take the medical
course she had failed at an August 20, 2009 COSSS Meeting. Shiels Aff. [Docket No. 77] ¶ 2.
Song later failed another course and was required to again appear before COSSS to discuss her
dismissal from medical school on October 26, 2009. Id. ¶ 3. Three days before the hearing,
Song retained new counsel, Douglas Elsass, and requested more time to prepare. Id. ¶ 4. The
morning of the rescheduled hearing — November 17, 2009 — Song offered to draft a
negotiation agreement with the University of Minnesota allowing her to withdraw rather than be
dismissed from medical school, and the hearing was therefore continued. Id. ¶ 5. When no such
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agreement was produced, the dismissal hearing was rescheduled for January 21, 2010. Id. ¶ 6.
Days before this hearing, Song retained new counsel, Mark Frost, and requested another
continuance. Id. ¶ 7. The third-rescheduled hearing was held on February 18, 2010, and the
Medical School notified Song in March 2010 that she was dismissed due to failing grades. Id. ¶
8; see 2d Am. Compl. ¶¶ 114–15, 118.
On February 18, 2011, Song commenced this action. Compl. [Docket No. 1]. The Court
issued a Pretrial Scheduling Order on August 10, 2011, requiring pre-discovery disclosures by
October 1, 2011, and discovery to be completed by May 1, 2012. Pretrial Scheduling Order
[Docket No. 16] at 1. On September 16, 2011, Defendants served interrogatories and document
requests on Song, who supplied written responses but no requested documents on October 24,
2011. 2d Frisch Aff. [Docket No 46] ¶¶ 2, 4. Song filed her Second Amended Complaint on
September 20, 2011. On October 28, 2011, Defendants requested supplementation of discovery
responses, more disclosure, and document production. 2d Frisch Aff. ¶ 5. On November 8,
2011, Song responded that she was “unable to respond” to the discovery request but that she
planned to do so in three to four weeks. Id. ¶ 6. Defendants repeatedly telephoned and then
wrote a letter to Song’s then-counsel Richard Wylie to set a firm deadline for the discovery
responses. Id. ¶¶ 7–8. Song failed to respond to these requests. Id. ¶ 9. On November 16,
2011, Defendants’ counsel met with Song’s counsel, who stated that he had “no authority” to
respond to Defendants’ discovery requests. Defendants then filed a Motion to Compel
Discovery [Docket No. 42]. 2d Frisch Aff. ¶ 13. The motion hearing was held before Magistrate
Judge Tony N. Leung on December 8, 2011.
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On January 30, 2012, Judge Leung’s Order granted in part and denied in part Defendants’
Motion to Compel Discovery. Specifically, the Order required Song to provide complete
responses to six interrogatory responses and seven document requests by February 15, 2012.
Jan. 30, 2012 Order [Docket No. 56] at 10. The Order stated that “While the interests of justice
forestall awarding attorney fees, costs, and disbursements on the present motion, Plaintiff is
hereby specifically placed on notice that any future failure to comply with an applicable
rule, law, or order of the Court, may not be greeted with further leniency.” Id. at 9–10
(emphasis in original). The Order also stated that:
Failure to comply with any provision of this Order or any other prior consistent
Order shall subject the non-complying party . . . to any and all appropriate
remedies, sanctions and the like, including without limitation: assessment of
costs, fines and attorneys’ fees and disbursements; waiver of rights to object;
exclusion or limitation of witnesses, testimony, exhibits, and other evidence;
striking of pleadings; complete or partial dismissal with prejudice; entry of whole
or partial default judgment; and/or any other relief that this Court may from time
to time deem appropriate.
Id. at 10–11.
On February 15, 2012, Song’s then-counsel Richard Wylie filed a Motion to Withdraw
[Docket No. 59], stating that Song had emailed him that she “would like to have someone else to
represent [her] . . . . would you please resign?” Mem. in Support of Mot. to Withdraw [Docket
No. 63] 2. Song’s present counsel then filed scant supplemental interrogatory responses,
including responses that stated more students’ names and more documents “will be provided
after reviewing thousands of documents provided by the defendants.” See 3d Frisch Aff.
[Docket No. 69] Ex. 3 at 1, 2, 8. Additionally, Song failed to supplement some responses at all,
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stating that she “reiterates her response to this request dated on 11/23/11” and referring
Defendants to other previously filed responses. Id. at 4, 7.
On February 17, 2012, Song’s present counsel notified Defendants that they intended to
“seek a protective order” or provide “a genuine, detailed objection to the specific question” or
request. 4th Frisch Aff. [Docket No. 76] ¶¶ 5–6; see also 4th Frisch Aff. Ex. 4. This intent was
repeated on February 22, 2012. 4th Frisch Aff. ¶ 7. On February 29, 2012, Song’s counsel
stated that supplemental discovery would be forthcoming. Id. ¶ 12; 4th Frisch Aff. Ex. 10. On
March 6, 2012, Song’s counsel appeared at Defendants’ office to deliver a privilege log and ten
compact discs with discovery responses, stating that these constituted “Plaintiff’s entire file.”
4th Frisch Aff. ¶ 13. Song’s counsel stated that about 7,000 pages of hard-copy files were still
being reviewed and, although largely redundant of the electronic documents delivered, would be
forthcoming. 4th Frisch Aff. Ex. 12. The discs delivered to Defendants included the following:
(1) sound recordings of dismissal hearings and the December 8, 2011 motion to compel hearing;
(2) blank discs; (3) Defendant-produced discovery documents; (4) pleadings from this case; (5)
law firm template letterhead and a due process guide; and (6) several new audio recordings,
unreadable files, empty folders, and multiple duplicates of documents. See 4th Frisch Aff. Ex.
13. Defendants notified Song’s counsel of the discovery deficiencies by letter on March 12,
2012. Id. On March 17, 2012, Song responded to Defendants’ Notice of Taking Deposition, see
4th Frisch Aff. Ex. 14, stating that she could not appear at her deposition on March 27 or 28,
2012, see 4th Frisch Aff. Ex. 15.
On March 20, 2012, five days after the deadline for filing responsive memoranda and
without previously requesting leave for an untimely filing, Song filed a Memorandum in
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Opposition to the Motion to Dismiss [Docket No. 78], which this Court struck as untimely. See
Mar. 23, 2012 Order [Docket No. 82]. On April 1, 2012, Song filed a Motion to Remove
Defendants’ Memorandum of Law in Support of Dismissal [Docket No. 83]. On April 2, 2012,
Song filed a Motion for Permission [to] File Third Amended Complaint [Docket No. 91] and a
Motion to Extend the Time for Discovery [Docket No. 95].
III. DISCUSSION
A.
Standard of Review
Federal Rule of Civil Procedure 37 presents a panoply of authorized sanctions a district
court may impose when a party disobeys a court discovery order. Under Rule 37, the district
court may “dismiss[] the action or proceeding in whole or in part.” Fed. R. Civ. P.
37(b)(2)(A)(v). For Rule 37 sanctions to be imposed, there must be: (1) an order compelling
discovery; (2) a willful violation of that order; and (3) prejudice to the other party. Chrysler
Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999). Prejudice is found when the discovery
failures impair the opposing party’s ability to determine the factual merits of a party’s claim.
Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 559 (8th Cir. 1992). While a dismissal
with prejudice is a “drastic and extremely harsh sanction,” Clayton v. White Hall School Dist.,
778 F.2d 457, 460 (8th Cir. 1985), dismissal is warranted when a party’s conduct was “in bad
faith or deliberately intentional or willful,” Boogaerts v. Bank of Bradley, 961 F.2d 765, 768 (8th
Cir. 1992) (per curiam), or when there is “a clear record of delay or contumacious conduct by the
plaintiff,” Garland v. Peebles, 1 F.3d 683, 686 (8th Cir. 2003) (citation omitted). Sanctions are
“not merely to penalize those whose conduct may be deemed to warrant such a sanction, but
[also] to deter those who might be tempted to such conduct in the absence of such a deterrent.”
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Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). “[A] party is
responsible for the actions and conduct of [her] counsel and . . ., under appropriate
circumstances, dismissal or default may be entered against a party as a result of counsel’s
actions.” Denton v. Mr. Swiss of Mo., Inc., 564 F.2d 236, 241 (8th Cir. 1977).
B.
Analysis
Defendants argue that Song willfully violated this Court’s January 30, 2012 Order and
that this violation prejudiced them in their defense. Plaintiff Song contends that while a valid
discovery order exists, she did not willfully violate that order and that her violation did not
prejudice Defendants. These will be analyzed in turn below.
1. Willful Violation of Court Order
Song has willfully violated Judge Leung’s January 30, 2012 Order by failing to meet
deadlines and by providing insufficient discovery. Moreover, Song is responsible for her
counsel’s actions and conduct, and she is in control of the information and documents
Defendants seek in discovery.
The January 30, 2012 Order clearly alerted Song that continued discovery failures would
be sanctioned, including dismissal of her Complaint. Jan. 30, 2012 Order at 9–10 (“Plaintiff is
hereby specifically placed on notice that any future failure to comply with an applicable
rule, law, or order of the Court, may not be greeted with further leniency.”) (emphasis in
original). That Order specifically required Song to answer Interrogatory Nos. 8, 10, 12, 13, 14,
and 19 by February 15, 2012. Id. at 10. The Order stated that these interrogatories sought
relevant information and were “reasonably calculated to lead to the discovery of admissible
7
evidence.” Id. (quoting Fed. R. Civ. P. 26(b)(1)). Furthermore, the Order explicitly noted that
Song’s responses to all but Interrogatory No. 10 were incomplete. Id. at 6. For example, the
Order highlighted that Song failed to provide any identifying characteristics of similarly situated
students, as required for Interrogatory No. 13, and she failed to supplement her response that she
used the disbursed student loan money for non-tuition personal living expenses and a flight to
Beijing. Id. Regarding the documents requested, Judge Leung found that Request Nos. 1, 4, 6,
8, 10, 20, and 25 all requested relevant information. Id. at 7–9.1 Although Song contended that
Defendants already had some of the information and documents requested, Judge Leung found
that her refusal to meet and confer with Defendants was the reason those documents had not
been identified to Defendants and therefore required their disclosure. Id. at 9.
Faced with this Order compelling discovery, Song missed the February 15, 2012
deadline. Inexplicably, Song failed to provide a reason for missing the deadline or to ask for an
extension.2 Moreover, the untimely documents and supplemental responses she eventually
submitted were woefully deficient and unresponsive. In response to Request Nos. 1 and 10,
Song wrote that Defendants already had access to relevant documents but that “More documents
1
Even though the conclusion section of the January 30, 2012 Order does not list Request
No. 10 as being required disclosure, the body of the Order specifically states that it is required.
Moreover, Plaintiff’s counsel recognized this scrivener’s error and assumed Plaintiff needed to
comply with Request No. 10 as well. See 4th Frisch Aff. Ex. 8 (“We are assuming that it is a
scrivener’s error and will assume we are to comply with respect to RFP #10.”).
2
Similarly, Song untimely filed her Memorandum in Opposition to the Motion to
Dismiss, without notifying or seeking an extension from the Court prior to the deadline. See
Mar. 23, 2012 Order [Docket No. 82] 2 (“However, Plaintiff failed to request leave of this Court
to untimely file her reply memorandum until after the passing of that deadline. Rather, five days
after the deadline passed Plaintiff requested leave to untimely file a memorandum, and she did it
simultaneously with the submission of her Reply Memorandum.”).
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will be provided” after she reviewed thousands of pages of Defendants’ documents. 3d Frisch
Aff. Ex. 3 at 1–2. To Request No. 25, Song “reiterates her response to this request dated on
11/23/11,” even though Judge Leung’s January 30, 2012 Order expressly found this response
inadequate. Id. at 4. Song failed to respond at all to Request Nos. 4, 6, and 8.
As for her supplemental interrogatory responses, Song’s response was also disingenuous.
Regarding Interrogatory Nos. 10, 12, and 13, Song directed Defendants to a response filed on
December 5, 2011, almost two months before Judge Leung found that answer insufficient. Id. at
7. To Interrogatory No. 19, Song’s supplement to her response was that she had searched her
personal laptop computer, that this device was either located in China or the United States, and
that she had used search terms such as “University of Minnesota, medical student handbook
LCME, DOE, individual’s (sic) name of defendants such as Thompson, Watson, Specker, etc.,
neurology, and so on.” Id. at 9. Song did not supplement her Interrogatory Response to No. 14.
Moreover, Song’s delivery of ten discs of information on March 6, 2012 — twenty days
after the deadline set by this Court’s January 30, 2012 Order — included largely redundant
material unresponsive to Defendants’ discovery requests. Song has notably failed to produce a
privilege log, a complete set of her clinical rotation evaluations, copies of all her secretly
recorded audio files, complete and un-redacted versions of requested documents,3 or copies of
3
For example, in the emails she has produced in discovery, Song has redacted the names
and email addresses of students with whom she has communicated regarding her claims. 4th
Frisch Aff. Ex. 25. In another instance, Song redacted her financial records to remove
identifying account information. Id. Ex. 26. Further, Song has produced only portions of several
documents without providing any explanation for the exclusion. For instance, Song provided
Defendants with pages 65-81 of a document she prepared, but neglected to include pages 1-64.
See id. Ex. 27.
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her relevant emails,4 as well as relevant documents from the 7,000 pages of material she admits
is in her possession. See Defs.’ Supplemental Mem. [Docket No. 75] 13.
Song’s counsel argued at the hearing that while Song’s conduct may deserve some Rule
37 sanction, the dismissal of her claim is overly harsh. On the contrary, flagrant discovery
abuses like Song’s have regularly resulted in dismissal of a plaintiff’s claims. In Fox v.
Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975), a dismissal sanction was upheld
where plaintiffs’ failure to timely answer various interrogatories was willful or in bad faith. Id.
at 993. The Eighth Circuit has often found willful refusal to respond to interrogatories to be
grounds for dismissal. General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1211 (8th Cir.
1973) (upholding dismissal where a plaintiff’s “refusal to answer could do no more than work an
extreme injustice on [Defendant] by requiring [them] to defend against a [claim] . . . without
benefit of this discovery procedure”); Denton, 564 F.2d at 240 (finding dismissal proper where a
party has willfully failed to answer interrogatories, making it impossible to determine the factual
merits of the plaintiff’s claim). Additionally, repeated refusals to comply with discovery rules
and court orders has been found to constitute conduct worthy of the sanction of dismissal. See
Nat’l Hockey League, 427 U.S. at 640–41 (finding dismissal appropriate where plaintiffs’
“flagrant bad faith” and “callous disregard” of their responsibilities were exemplified by
eleventh-hour interrogatory responses, refusal to comply with discovery orders, and failure to
timely file motions for extensions until after the deadline). Song’s refusal to provide sufficient
interrogatory responses and requested documents, as well as her disregard for court-imposed
4
At the April 5, 2012 motion hearing, Song’s counsel was unable to explain why her
emails had not been searched and produced.
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deadlines and her failure to timely request discovery extensions, fall well within the bounds of
behavior warranting dismissal.
In seeking to justify her continued discovery deficiencies, Song’s counsel argues that
they have been working diligently to comply with the January 30, 2012 Order since their recent
retention. Be that as it may, Song’s counsel failed to engage in meaningful negotiations with
Defendants, failed to substantially comply with the discovery order, and failed to timely
communicate these issues to the Court. Moreover, Song’s argument that a change in counsel
excuses her discovery failures is unconvincing, as here the plaintiff has engaged in a systematic
strategy of substituting counsel on the eve of impending deadlines and important hearings. Since
the beginning of Song’s conflict with the University, she has engaged five different legal
counsel, three of whom she terminated on the eve of a hearing or deadline. The law does not
allow a party to end-run the rules of civil procedure or a court’s orders by selectively timing
decisions to coincide with and frustrate the court’s calendar and an opposing party’s defense.
See, e.g., Fisher v. Henderson, 105 F.R.D. 515, 518 (N.D. Tex. 1985) (citations omitted) (“While
a change in counsel may temporarily disrupt or delay litigation, it cannot be used as a shield or
excuse for overlooking legitimate discovery requests.”).5 Any hardship and claimed inability by
5
Not only can Song not blame her discovery failures on her substitution of counsel, but
she is also presumed responsible for the actions and inactions of her counsel. See Boogaerts,
961 F.2d at 768; see also Ford v. City of Cape Girardeau, 26 F.3d 126, 1994 WL 263204, at *1
(8th Cir. June 16, 1994) (“Although [plaintiff’s] counsel appears to bear much of the
responsibility for the failure to respond to interrogatories, orders, and motions, [plaintiff] is
bound by the actions of his counsel.”). Importantly, the information requested by Defendants —
emails, conversations Song recorded, search terms Song used, health and financial records,
documents she has collected, individuals she has contacted — are all peculiarly within her
possession. See, e.g., Everyday Learning Corp. v. Larson, 242 F.3d 815, 817 n.2 (8th Cir. 2001)
(“Many of the abuses involved discovery in which [the plaintiff] was required to participate
personally . . . [t]hus her averral that she knew nothing about the lengthy sanctions dispute was
11
Song to respond to the discovery request “is not credible given the level of detail and length of
Song’s complaints, which suggest that Song has previously located and compiled much of the
information requested by Defendants.” Jan. 30, 2012 Order at 5. Song cannot complain of a
situation she has herself created. Song, a medical student, is an intelligent person who clearly
has the ability to understand the requirements of the civil discovery process. For the
aforementioned reasons, inclusive but not exhaustive of Song’s discovery failures and
contumacious behavior, the Court finds that Song willfully violated its January 30, 2012 Order.
2. Prejudice to Defendants
Song’s willful violation of this Court’s January 30, 2012 Order directly prejudices
Defendants and warrants dismissal of her claims. Here, Song’s willful discovery failures impair
Defendants’ ability to determine the factual merits of her serious claims. See Avionic Co., 957
F.2d at 559. Although Song filed her Complaint more than a year ago on February 18, 2011,
Defendants still have not been able to depose her, have received insufficient interrogatory
responses, and are lacking the most basic production of key documents. In that time, Defendants
have repeatedly requested these discovery items, have sought to meet and confer multiple times,
and have delayed filing discovery motions to give Song the opportunity to correct discovery
deficiencies. Since the entry of the January 30, 2012 Order, more than two months have passed
in which Song has utterly failed to rectify her delinquent discovery responses. During this time,
however, she has sought new counsel, has filed three motions, and has been engaged in
hardly credible.”). Additionally, the record reflects that the discovery failures prior to Song’s
retention of present counsel are also her responsibility. See, e.g., 2d Frisch Aff. ¶ 13 (“Mr.
Wylie informed [Defendants] that he had ‘no authority’ to respond to any of the University’s
[discovery] requests.”).
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voluminous correspondence with Defendants assuring them that she is working to fulfill her
discovery obligations. This behavior exhibits that Song has persisted in her dilatory tactics
rather than seeking to obey this Court’s Order or to engage in good faith negotiations with
Defendants. As such, Defendants are understandably largely at a loss as to Plaintiff’s theory of
the case, Plaintiff’s proof, Plaintiff’s intended witnesses, Plaintiff’s documentary exhibits, and
Plaintiff’s answers to key substantive questions. With the May 1, 2012 discovery deadline
rapidly approaching, Song has continued to obfuscate the facts and evade Defendants’ legitimate
attempts to acquire the evidence necessary for them to effectively mount a defense. Plaintiff has
intentionally and systematically avoided her discovery obligations for the nearly eight months
since the Pretrial Scheduling Order was issued. Song’s sprawling twelve state and federal claims
alleged in her Second Amended Complaint require meaningful discovery. Were there any
indication that Plaintiff was willing to engage in good faith reciprocal discovery, the sanction of
dismissal would not be imposed by this Court. The pattern here is to the contrary. Song has
manipulated discovery in a blatant attempt to muster the facts to support her claim without
disclosing why she brought this Complaint. Because Song’s willful flouting of this Court’s
discovery order has prejudiced Defendants, the severe sanction of dismissal of her claims is
warranted.
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C.
Plaintiff’s Remaining Motions
Song’s remaining motions — Motion to Remove Defendants’ Memorand[a], Motion for
Permission [to] File Third Amended Complaint, and Motion to Extend the Time for Discovery
— are all denied as moot.
IV. CONCLUSION
Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED
that:
1. Defendants’ Motion to Dismiss and Other Rule 37 Sanctions [Docket No. 66] is
GRANTED;
2. Plaintiff’s Motion to Remove Defendants’ Memorand[a] [Docket No. 83], Motion for
Permission [to] File Third Amended Complaint [Docket No. 91], and Motion to Extend
the Time for Discovery [Docket No. 95] are all DENIED as moot; and
3. Plaintiff’s Second Amended Complaint [Docket No. 25] is DISMISSED with
prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: April 26, 2012.
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