National Credit Union Administration Board v. Cumis Insurance Society, Inc.

Filing 277

MEMORANDUM OPINION AND ORDER - Plaintiff National Credit Union Administration Board's Motion for Summary Judgment (Doc. No. 221 ) is DENIED. Defendant CUMIS Insurance Society, Inc.'s Motion for Summary Judgment (Doc. No. 215 ) is DENIED.(Written Opinion) Signed by Judge Donovan W. Frank on 3/15/2019. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

National Credit Union Administration
Board, as Receiver/Liquidating Agent of
St. Francis Campus Credit Union, 808
Third Street Southeast, Suite 100, Little
Falls, Minnesota 56345-2143,

Civil No. 16-139 (DWF/LIB)

Plaintiff,
MEMORANDUM
OPINION AND ORDER

v.
CUMIS Insurance Society, Inc.,
Defendant.

Ariel O. Howe, Esq., and Steven M. Philips, Esq., Anthony Ostlund Baer & Louwagie
PA; Givonna S. Long, Esq., and Randall D. Lehner, Esq., Kelley Drye & Warren LLP,
counsel for Plaintiff.
Daniel N. Moak, Esq., Briggs & Morgan, PA; F. Joseph Nealon, Esq., Nicholas T.
Moraites, Esq., and Rosa Schware Trembour, Esq., Eckert Seamans Cherin & Mellott,
LLC, counsel for Defendant.

INTRODUCTION
This matter is before the Court on cross motions for summary judgment brought
by Plaintiff National Credit Union Administration Board (“NCUAB”) (Doc. No. 221)
and Defendant CUMIS Insurance Society, Inc. (“CUMIS”) (Doc. No. 215). For the
reasons set forth below, the Court denies both motions.

BACKGROUND
The Court has previously described, in detail, the background facts of this case in
its March 17, 2017 Memorandum Opinion and Order. (Doc. No. 43 (“Order”).) The
Court will only summarize the relevant facts here. St. Francis Campus Credit Union
(“St. Francis”) was a credit union insured under a fidelity bond (“Bond”) issued by
CUMIS. The Bond insured against, among other things, theft by employees. (Doc. No. 1
(“Compl.”) ¶¶ 4, 8 & Ex. C.) On January 23, 2014, St. Francis discovered that one of its
managers, Margurite Cofell (“Cofell”), had embezzled in excess of $3 million from
St. Francis. (Id. ¶¶ 10-11.)
NCUAB was appointed the receiver of St. Francis on February 14, 2014. (Id. ¶ 5.)
The receiver was put into place “in whole or in large part” as a result of the theft. (Id.
¶ 10.) On December 8, 2014, Plaintiff filed a proof of loss totaling $3,086,755.94. (Id.
¶ 14.)
On June 10, 2015, CUMIS called NCUAB’s in house counsel, Robert Roach
(“Roach”), to inform the NCUAB that it was rescinding the Bond. (Doc. No. 218
(“Moraites Decl.”) ¶ 5, Ex. 1 at 16.) CUMIS also sent an e-mail to NCUAB’s outside
counsel, Ray Leake (“Leake”), to inform him that CUMIS was rescinding the Bond and
that a rescission letter and premium refund check were on the way. (Moraites Decl. ¶ 6,
Ex. 2.) CUMIS attached a copy of the rescission letter and the premium refund check to
the e-mail. (Id.) In the letter, CUMIS explained that its basis for seeking rescission was
that Cofell lied on the application for the Bond’s renewal. (Compl. ¶ 15 & Ex. G
(“CUMIS Denial Letter”).
2

Leake and Roach forwarded copies of the CUMIS Denial Letter and premium
check to several individuals at the National Credit Union Association—the federal
agency who oversees NCUAB. (Moraites Decl. ¶¶ 6-8, Exs. 2-4.) The recipients
included: (1) two attorneys, including Associate General Counsel, John Ianno (“Ianno”);
(2) NCUA Liquidation Analyst, Elizabeth Martin (“Martin”); (3) the President of the
NCUA Asset and Management and Assistant Center (“AMAC”), Mike Barton
(“Barton”), and his Deputy, Donald Klein (“Klein”); and (4) the Director of AMAC’s
Division of Liquidation and Member Services, Jennifer Murphy (“Murphy”), and Acting
Director, Angela Veghts (“Veghts”). (Id.)
On June 11, 2015, several attorneys, including NCUA General Counsel, Michael
McKenna, corresponded over the strengths and weaknesses of the rescission. (Id. ¶¶ 8-9,
Exs. 4-5 (“E-mail String”).) On June 12, 2015, Roach forwarded the E-mail String to
Murphy, who subsequently forwarded it to Martin. (Id.) On June 16, 2015, Leake sent
Roach a letter with legal advice concerning rescission via overnight delivery. (Id. ¶ 9,
Ex. 6.) Leake’s office e-mailed a copy to Ianno and one of his colleagues. (Id. ¶ 10,
Ex. 7.)
NCUAB received the original CUMIS Denial Letter and check on June 17, 2015.
(Id. ¶ 6, Ex. 6.) The check was for $18,790 in premiums that St. Francis had paid from
April 2012 to April 2014. (CUMIS Denial Letter.) During the mail-sorting process, a
clerk separated the check from the letter. (Doc. No. 32 (“Peeples Decl.”) ¶ 10.) The
check was then forwarded to St. Louis and cashed pursuant to the procedures in place
because of the receivership. (See id.) According to NCUAB, the clerk did not
3

understand that the letter was a purported offer for rescission. (Id. ¶ 11.) On
June 22, 2015, CUMIS’s computer system mistakenly generated a second rescission
check. (See Moraites Decl. ¶¶ 13(1)-13(2), Exs. 9-10.) NCUAB deposited the second
check on June 29, 2015. (Id. ¶ 14, Ex. 11.)
On October 29, 2015, Murphy e-mailed Martin to inquire whether the NCUAB
“cashed the premium refund when [CUMIS] rescinded the bond,” because cashing the
check “constitutes acceptance.” (Id. ¶ 18, Ex. 15.) Martin responded that “[NCUAB] did
cash the check,” but that she was unsure of how it could have been avoided because “the
standard policy is to cash all checks [received].” 1 (Id. ¶ 19, Ex. 16.) Murphy advised
Martin to “leave [the money]” in NCUAB’s account. 2 (Id.)
On November 16, 2015, Ianno e-mailed Roach to inquire whether NCUAB had
decided to file a complaint against CUMIS. (See id. ¶ 20, Ex. 17.) Roach responded that
he was discussing the matter with Murphy, Klein, and Barton, but that a decision whether
to pursue litigation had not yet been made. 3 (See id.) Roach explained that the
discussion included the contents of two memos from outside counsel regarding the
prospect of litigation for “attempted rescission.” (Id.) Murphy forwarded the e-mail to
Martin and Max Peeples, another NCUA Liquidation Analyst. (Id.)

1

Martin advised that the NCUAB cashed both the first and second rescission
checks. (Moraites ¶ 19, Ex. 16.)
2

NCUAB attempted to return the money on November 9, 2017, but CUMIS did not
accept it. (Order at 3.)
3

Roach copied Martin on his response to Ianno. (Id. ¶ 20, Ex. 17.)
4

On January 21, 2016, NCUAB filed its Complaint against CUMIS seeking a
declaration that CUMIS must provide coverage under the Bond. (Compl. ¶ 33.) Prior to
the commencement of discovery, on June 13, 2016, CUMIS filed a motion for summary
judgment arguing that it rightfully rescinded the Bond because either: (1) Cofell’s
misrepresentation increased CUMIS’s risk of loss, which is grounds for rescission under
Minn. Stat. § 60A.08, subd. 9; or (2) NCUAB agreed to rescind the bond after receiving
the CUMIS Denial Letter and cashing and retaining the premium refund check. (Doc.
No. 25.) At that time, NCUAB argued that it did not know the premium reimbursement
check was coming, and that it did not have the benefit of counsel prior to cashing it.
(Doc. Nos. 29, 56.) The Court denied CUMIS’s motion but observed that the
completion of discovery may render a different outcome with respect to rescission.
(Order at 13.)
CUMIS now moves for summary judgment arguing that discovery cleary shows
that NCUAB mutually rescinded the Bond when it did not to respond to the CUMIS
Denial Letter and cashed and retained the premium refund(s). (Doc. No. 215.) NCUAB
also moves for summary judgment arguing that Cofell’s fraudulent acts against
St. Francis fall within the Bond’s coverage for “employee dishonesty,” and that NCUAB
has satisfied all other conditions for coverage under the Bond. NCUAB argues further
that the Bond cannot be rescinded because Cofell’s misrepresentations in the Bond
application cannot be imputed to NCUAB and because there is no genuine issue of
material fact that NCUAB neither acquiesced or otherwise agreed to mutual rescission.
(Doc. No. 221.)
5

Alternatively, NCUAB argues that its post-liquidation actions cannot form the
basis for any argument of mutual rescission because it is protected by the Federal Credit
Union ACT (“FCUA”). (Doc. No. 222 (“NCUAB Memo.”) at 16-20.)
DISCUSSION
I.

Legal Standard
Summary judgment is proper if there are no disputed issues of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 323–24, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at
747. The nonmoving party must demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995). A party opposing a properly supported motion for summary judgment “may not
rest upon the mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
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II.

Analysis
The Court need only address the issue of mutual rescission, as each party’s motion

hinges on its outcome. 4 “Rescission of an insurance contract may be accomplished by
mutual agreement.” McQuarrie v. Waseca Mut. Ins. Co., 337 N.W.2d 685, 687 (Minn.
1983). “Whether such a rescission has been accomplished depends on the intent of the
parties as evidenced by their acts.” Id. The parties’ intent to rescind “must be clearly
expressed, and acts and conduct of the parties to be sufficient must be positive,
unequivocal, and inconsistent with the existence of the contract.” Levin v. C.O.M.B. Co.,
441 N.W.2d 801, 804 (Minn. 1989). Generally, whether a party intended to rescind the
contract is a question of fact for the jury. Id.
CUMIS argues that NCUAB agreed to rescind the Bond when it failed to respond
to CUMIS’s Denial Letter and cashed and retained the premium refund check(s).
CUMIS contends that all relevant managers and at least five attorneys were aware of the
CUMIS Denial Letter and check, and that NCUAB received advice on the strengths and
weaknesses of the rescission. CUMIS argues further that NCUAB clearly understood the
consequence of failing to respond to the CUMIS Denial Letter and keeping the money. It
contends that NCUAB’s written objection and return of an uncashed premium check in a
similar matter with a different insurance company clearly demonstrates that NCUAB
knew how to oppose rescission. (Moraites Decl. ¶ 22, Ex. 19.) CUMIS contends that it

4

On February 26, 2019, NCUAB moved to supplement the record (Doc. No. 270)
with respect to additional facts regarding Cofell’s alleged fraud. CUMIS opposed the
motion. (Doc. No. 272). While the Court granted NCUAB’s motion (Doc. No. 273), the
additional information had no effect on the Court’s analysis of mutual rescission.
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is entitled to judgment as a matter of law because there is no genuine issue of material
fact that NCUAB’s knowledge and intent to rescind the Bond may be inferred through its
conduct.
In support if its argument, CUMIS relies heavily on Mutual of Omaha Ins. Co. v.
Korengold, 241 N.W.2d 651 (Minn. 1976) (per curium). Korengold also involved an
insurer attempting to rescind an insurance contract. Id. There, the insurer sent the
defendant (an attorney) a letter explaining the insurer’s right to rescind the contract and
included a check for the premiums paid. Id. at 652. When the defendant cashed the
check, the insurer moved for summary judgment. Id. To determine whether the parties
agreed to rescind the contract, the Minnesota Supreme Court observed that rescission
cannot be established merely when an insured cashes a premium check. Id. The court
observed that rescission requires requisite knowledge and intent to rescind. Id. “Any
contrary rule could lead to gross unfairness to an insured who, for various reasons,
including sheer financial necessity, may feel compelled to cash a refund check even
though he vigorously disagrees that there was any misrepresentation in obtaining the
insurance.” Id. The court concluded that under the facts and circumstances, the
defendant had “the requisite knowledge to intend a rescission,” and granted judgment in
favor of the insurer. Id.
CUMIS also relies on Peterson v. New York Life Ins. Co., 185 Minn. 208 (1932).
Peterson also involved an explanatory letter rescinding an insurance contract with an
accompanying premium refund check. See generally, id. The insured consulted his
banker and admitted that he cashed the check because “he needed the money bad.” Id. at
8

210. One month after cashing the check, the insured attempted to return the money. Id.
at 209. The Minnesota Supreme Court observed that “the construction of the letter and
[the insured’s] admitted acceptance and cashing of the check for the reasons stated by
him made the rescission by consent a question of law for the court.” Id. at 211. It further
observed that an insured cannot “possibly believe that [it] was entitled to both the
returned premiums and the insurance which the premiums had been paid to obtain,” and
that “an effort a month later to retract was ineffectual.” Id. at 210-211.
Like the cases it cites, 5 CUMIS also sent a letter explaining the basis for
rescinding the insurance contract and included a check for premiums paid. The record
now reflects that the CUMIS Denial Letter was read and discussed by several attorneys
who advised senior level management on the strengths and weaknesses of the rescission.
CUMIS contends that NCUAB had the requisite knowledge to intend a rescission when it
cashed the premium refund check.
NCUAB does not dispute that its attorneys and senior level management discussed
the CUMIS Denial Letter. NCUAB argues that the correspondence does not contain any

5

CUMIS also relies on a holding from Colorado Supreme Court to argue that
“mutual rescission is effected . . . on the basis of the parties’ objective manifestations of
assent.” Avemco Ins. Co. v. N. Colo. Air Charter, Inc., 38 P.3d 555, 559 (Colo. 2002)
(en banc). There, the court observed that “although an insured may offer evidence to
rebut the inference of rescission, that evidence must be more than an assertion of a
subjective intent not to rescind.” Id. at 564. Unlike Avemco, which is not binding on this
Court; there is a question of fact with respect to NCUAB’s actions and intent when the
check was cashed. As discussed below, the Court finds that NCUAB has provided
evidence to support an inference beyond subjective intent that it did not intend to rescind
the Bond.
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advice or even discussion of whether or not to cash the check. It contends that when the
CUMIS Denial Letter arrived, the accompanying premium refund check was separated
during the mail-sorting process and forwarded to St. Louis for cashing pursuant to the
standard procedures in place because of the receivership. (Peeples. Decl. ¶¶ 1, 8-9.)
NCUAB argues that the persons involved in cashing the check lacked the requisite
knowledge to intend rescission. NCUAB argues further that it attempted to return the
premium refund check to CUMIS, but that CUMIS refused to accept it. 6 NCUAB also
contends that when it filed its Complaint challenging CUMIS’ attempt to rescind the
Bond six months after receiving the CUMIS Denial Letter, it unequivocally demonstrated
that it never agreed to rescission. Further, NCUAB cites testimony that it never agreed
with CUMIS’ decision to rescind the Bond. (Doc. No. 223 (“Long Decl.”) ¶ 8, Ex. F
at 91.) Finally, NCUAB argues that regardless of its conduct, its actions are shielded
from judicial action by the Federal Credit Union Act (“FCUA”) pursuant to 12 U.S.C.
§ 1787(g). 7
The record reflects that several NCUAB attorneys and high level management
knew in advance that a premium refund check was in the mail. CUMIS argues that
because these individuals knew the check was coming, the only possible conclusion is

6

CUMIS acknowledges that NCUAB attempted to return $37,580 (the combined
total of each refund) in 2017, but argues that two years was too long to wait . (Doc.
No. 241 (“CUMIS Opp.”) at 2.) (Doc. No. 98 at 3.)
7

The FCUA provides that with very limited exception, “no court may take any
action . . . to restrain or affect the exercise of powers or functions of the Board as a
conservator or liquidating agent.” 12 U.S.C. § 1787(g).
10

that when the check was cashed, it was cashed purposefully and with the requisite intent
to rescind the Bond. The record also reflects that NCUAB failed to respond to the
CUMIS Denial Letter, despite having done so on another attempted rescission with a
different insurance company. The Court cannot discern from the record whether these
actions arise from blunder or from actual agreement to rescind the Bond.
The Court first observes the peculiarity of any attorney advising the deposit of a
premium refund check for approximately $19,000 in lieu of pursuing a three million
dollar claim, and then filing a lawsuit. It agrees with CUMIS that the prudent action
would have been for some individual privy to the CUMIS Denial Letter to alert the mail
room that a premium refund check was expected and should not be subject to normal
processing procedures. The Court does not speculate why this did not occur, but cannot
conclude as a matter of law that NCUAB unequivocally intended to rescind the Bond
when it cashed the check. The Court next observes that aside from inaction, nothing in
the record unequivocally demonstrates NCUAB’s intent to rescind the Bond.
Unlike in Korengold, or Peterson, the person who actually cashed the premium
check(s) lacked the requisite knowledge and intent to rescind the Bond. The record
reflects that the check(s) were deposited in accord with standard operating procedures.
While CUMIS cites an October 29, 2015 correspondence to argue that NCUAB
understood that cashing the check constituted an agreement to rescind, the same
correspondence includes a statement by Martin that she was unsure of how cashing the
check could have been avoided because “the standard policy is to cash all checks.”
(Moraites ¶ 19, Ex. 16.)
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Similarly, the Court does not speculate on why NCUAB waited so long to return
the premium refund(s) after the money was deposited. While Peterson included an
undeniable assertion that the insured cashed the premium refund check because he
needed the money even though he knew it would rescind the policy, there is nothing in
the record for the Court to conclude as a matter of law that NCUAB cashed the check
with the intent to rescind the Bond. In the November 16, 2015 correspondence that
CUMIS cites as indicative of NCUAB’s intent to rescind the Bond, the Court observes
that there are several references to “attempted rescission.” (See Moraites ¶ 20, Ex. 17.)
Further, Martin testified that she “absolutely [did] not” agree with CUMIS’ decision to
rescind the Bond. (Long Decl. ¶ 8, Ex. F at 91.) Unlike Peterson, the Court cannot
conclude as a matter of law that NCUAB’s actions unequivocally demonstrate the
necessary intent to rescind the Bond.
“In order to grant summary judgment . . . the pleadings, depositions, and
admissions on file, together with the affidavits, must show that there is no genuine issue
of material fact.” Abdallah, Inc. v. Martin, 65 N.W.2d 641, 646 (Minn. 1954). Here, fact
issues remain with respect to NCUAB’s intent to rescind the Bond. Whether NCUAB’s
actions “clearly expressed” unequivocal intent or opposition to rescind the Bond is a
question of fact for the jury. Levin v. C.O.M.B. Co., 441 N.W.2d 801, 804 (Minn. 1989).
Alternatively, NCUAB argues that its post-liquidation conduct is shielded by the
FCUA from forming the basis of any argument of mutual rescission. (NCUAB Memo. at
16-20.) The FCUA grants the NCUAB broad authority and discretion with respect to the
assets of a liquidated credit union. See 12 U.S.C. § 1787(b)(2)(B). This includes the
12

right to “collect all obligations money due [to] the credit union” and to “preserve and
conserve the assets and property of such credit union.” Id. The FCUA also limits
judicial action “to restrain or affect the exercise of powers or function of the [NCUAB] as
a conservator or liquidating agent.” 12 U.S.C. § 1787(g).
The Eighth Circuit has identified a two-part test to determine when the limitation
on judicial action applies. 8 See Dittmer Props., L.P. v. F.D.I.C., 708 F.3d 1011, 1017
(8th Cir. 2013). First, “the court must determine whether the challenged action is within
the receiver’s power or function; if so [the court] then determines whether the action
requested would restrain or affect those powers.” Id. (internal quotation marks omitted.)
Here, the first prong is met; it is within the NCUAB’s power to enforce coverage
under the Bond. 12 U.S.C. § 1787(b)(2)(B). NCUAB argues that the second prong is
also satisfied because any effort to rescind the Bond based on its post-liquidation
conduct, including cashing the premium check, amounts to “an effort to restrain or
affect” its collection efforts. (NCUAB Memo. at 20.) It relies on several cases for the
proposition that rescission impermissibly restrains or affects banking regulator’s exercise
of powers as receiver or liquidating agent. See, e.g. Tri-State Hotels, Inc. v. F.D.I.C.,
79 F.3d 707,715 (8th Cir. 1996) (holding that rescinding agreements would act as an
impermissible restraint on the ability of the FDIC to exercise its power as receiver);
Freeman v. F.D.I.C., 56 F.3d 1394, 1399 (D.C. Cir. 1995) (holding that granting

8

For the purpose of analysis, the Court observes that the protections under the
FDIC are nearly identical to those held by NCUAB. Therefore, caselaw involving the
FDIC is appropriate for analysis. See National Credit Union Admin. Bd. v. Zovko,
No. 1:13-CV-1430, 2014 WL 12845411, at n.1 (N.D. Ohio, June 19, 2014).
13

injunction to prevent foreclosure on home would impermissibly restrain FDIC’s
authority); F.D.I.C v. OneBeacon Midwest Ins. Co., 883 F. Supp. 2d 754 at 764-65 (N.D.
Ill 2012) (holding that the limitation on court action deprived it from rescinding a bond
on the basis of alleged fraud).
The Court is unpersuaded. While NCUAB makes a strong argument that
12 U.S.C. § 1787(g) deprives the Court from declaring unilateral rescission, the Court
finds NCUAB’s argument inapposite to mutual rescission. Mutual rescission, by its
definition, “requires an intent to rescind on the part of both parties,” and that such intent
“may be inferred from the attendant circumstances.” Green Tree Serv’g, LLC, v. DBSI
Landmark Towers, LLC, 652 F.3d 910, 913 (citing Minn. Ltd., Inc. v. Pub. Utils. Comm’n
of Hibbing, 208 N.W.2d 284, 285-86 (Minn. 1973). The federal regulations governing
the NCUAB’s authority as a liquidating agent grant it the authority to agree to release
assets, claims, and contracts for cash:
The liquidating agent shall have the power to: sell for cash or on terms,
exchange, assign, or otherwise dispose of, in whole or in part, any or all of
the assets and property of the credit union, real, personal and mixed,
tangible and intangible, of any nature, including any mortgage, deed of
trust, chose in action, bond, note, contract, judgment, or decree, share or
certificate of share of stock or debt, owing to the credit union or the
liquidating agent.
12 C.F.R. § 709.4(e). Therefore, it was within the NCUAB’s discretion to cash the
premium refund check and agree to rescind the Bond as opposed to pursuing coverage. If
the NCUAB intended to rescind the Bond, it would be a restraint on NCUAB’s authority
to prevent it from doing so.

14

As discussed above, the Court does not speculate on why NCUAB would have
rescinded the Bond, nor can the Court conclude as a matter of law that it did rescind the
Bond. The Court observes only that it was within NCUAB’s authority to do so.
Therefore, the Court concludes that a claim for mutual rescission based on NCUAB’s
conduct related to cashing the premium refund check is not barred by U.S.C. 12 U.S.C.
§ 1787(g). Permitting a claim of mutual rescission does not “restrain or affect” the
NCUAB’s collection efforts; instead, it allows the NCUAB to operate within the full
breadth of its authority.
CONCLUSION
The Court finds that issues of fact remain with respect to rescission. It also finds
that the FCUA does not shield NCUAB from a claim for mutual rescission. Therefore,
the Court denies each party’s motion for summary judgment.
ORDER
Based on the files, record, and proceedings herein, IT IS HEREBY ORDERED
that:
1.

Plaintiff National Credit Union Administration Board’s Motion for

Summary Judgment (Doc. No. [221]) is DENIED.
2.

Defendant CUMIS Insurance Society, Inc.’s Motion for Summary

Judgment (Doc. No. [215]) is DENIED.
Dated: March 15, 2019

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

15