Local No. 1, IBEW Pension Benefit Trust Fund et al v. Wright et al

Filing 41

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant/Cross-Claimant Pamela Wright a/k/a Pamela Dallas' Motion for Summary Judgment on the Complaint and Cross Claim against Defendant/Cross-Respondent Eloise Walker (Doc. No. 21 ) is GRANTED, and the decision of the Administrative Manager and Appeals Committees to deny and foreclose all claims of Eloise Walker for the full amount of the proceeds of the Pension Plan and 401(k) Plan of Decedent is AFFIRMED. IT IS FURTHER ORDERED that the C ourt will enter a Judgment in favor of Defendant/Cross-Claimant Pamela Dallas, and order the Clerk of the Court to turn over the funds deposited by Plaintiffs on or about January 4, 2011, to Defendant/Cross-Claimant Pamela Dallas. Signed by Honorable Jean C. Hamilton on 4/25/11. (copy forwarded to Finance)(TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

Trustees of the LOCAL NO. 1, IBEW
PENSION BENEFIT TRUST FUND and
Trustees of the ELECTRICIANS’ SALARY
DEFERRAL PLAN,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
PAMELA WRIGHT a/k/a PAMELA DALLAS, )
)
Defendant/Cross-Claimant,
)
)
and
)
)
ELOISE WALKER,
)
)
Defendant/Cross-Respondent.
)

Case No. 4:10CV2114 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendant/Cross-Claimant Pamela Wright a/k/a Pamela
Dallas’ (“Pamela Dallas”) Motion for Summary Judgment on the Complaint and Cross Claim against
Defendant/Cross-Respondent Eloise Walker (“Motion for Summary Judgment”), filed February 11,
2011. (Doc. No. 21). The motion is fully briefed and ready for disposition.
BACKGROUND
Both the Local No. 1, IBEW Pension Benefit Trust Fund (“Pension Plan”) and the
Electricians Salary Deferral Plan (“401(k) Plan”) are covered “employee pension benefit plans”, as
defined in Section 3(2) of ERISA, 29 U.S.C. § 1002(2). (Complaint for Interpleader, Doc. No. 1
(“Complaint” or “Compl.”), ¶¶ 1, 3). The Pension Plan is governed by the Pension Fund Summary
Plan Description (“SPD”) and Pension Fund Trust Agreement, the latter of which at all times relevant
to this suit contained the following provision:

Section 6.03(b) Beneficiary.
(i)
The Participant may name his Beneficiary on a form available from the
Fund Office; if more than one Beneficiary is named, each Beneficiary who survives
Participant will receive an equal share, unless otherwise specified by Participant on
the form. A Participant may change his beneficiary form by filing a new one;...No
beneficiary designation will be recognized unless it has been filed with the Fund Office
prior to the time of Participant’s death in a form which the Trustees find acceptable.
(ii)
If no named Beneficiary survives the Participant, or if the Participant
files no beneficiary form, then upon his death the Participant’s Account balance shall
be payable as follows: (1) to the Participant’s spouse; (2) if no spouse survives
Participant, then in equal parts to the Participant’s children who survive him and to
the descendants of any deceased child who survive the Participant, per stirpes; (3) if
none of those mentioned in (1) or (2) survive the Participant, then to the Participant’s
father and mother, in equal parts, or to the survivor of them; (4) if none of those
mentioned in (1), (2), or (3) survive the Participant, then to the Participant’s brothers
and sisters who survive him, in equal parts; (5) if none of those mentioned in (1), (2),
(3), or (4) survive the Participant, then to the estate of the Participant; provided,
however, that if no named Beneficiary survives the Participant, the Trustees, in their
discretion and in lieu of paying any of those named above, may pay all or part of the
balance remaining in the Participant’s Account, up to a maximum of $2,000 for
reimbursement of funeral expenses and up to a maximum of $10,000 for
reimbursement of expenses of the Participant’s last illness.
(Compl., ¶ 12; Statement of Uncontroverted Material Facts in Support of Motion for Summary
Judgment (“Facts”), ¶¶ 2, 7). The 401(k) Plan is governed by the 401(k) Plan SPD and Plan
Document, the latter of which at all times relevant to this suit contained the following provision:
Section 5.5- Designation of Beneficiary. a. A Residual Death Benefit will be payable
to a Participant’s Beneficiary, pursuant to this Section, in the amount of the
Participant’s Individual Account balance--to the extent that the Individual Account
balance is not used to provide a Pre-Retirement Spouse Benefit. And, with the
written consent of his Surviving Spouse, a Participant may designate a Beneficiary (or
change such designation) for the part of his Individual Account balance that would
otherwise be payable to his Surviving Spouse; such designation of a Beneficiary shall
not be valid if the consenting Spouse is a person other than a Surviving Spouse. The
last Beneficiary form on file with the Trust Office at the time of the Participant’s death
shall govern. The naming of a Beneficiary and changes in Beneficiary are subject to
rules and regulations of the Trustees as to the form, the number and types of
Beneficiaries that may be named and as to other matters.
b.
If a Participant is also a Participant in the Local 1, IBEW, Pension Benefit
Trust Fund (called “Pension Fund”) at the time of his death, the death benefit from
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this Fund payable to a Beneficiary will be paid to the same person or persons entitled
to the part of the Participant’s Pension Fund account balance that is not subject to
payment of the Pensions Fund’s surviving Spouse benefit. Such portion of the
Participant’s Pension Fund account balance is referred to as the “Residual Account
Balance.”...
c.
If a Participant desires to file a separate Beneficiary card designation solely for
the Death Benefit payable from this Fund (the Electricians Salary Deferral Plan), he
is to secure such a card from this Fund. The Participant may name (and periodically
change) the Beneficiary or Beneficiaries by completing and filing the Electricians
Salary Deferral Plan Beneficiary card at the Fund Office. The last such form filed at
the Fund Office before the date of the Participant’s death will control payment of this
Fund’s Residual Death Benefit. If a separate Electricians Salary Deferral Plan
Beneficiary card has been filed with the Fund Office, the procedure for paying the
residual death benefit from the Pension Fund will not apply to the Residual Death
Benefit payable from this Fund.
(Compl., ¶ 13; Facts, ¶¶ 3, 8).
At all material times and until his death, Decedent Bernard Walker (“Decedent”) was an
unmarried participant without children in both the Pension Plan and the 401(k) Plan. (Compl., ¶ 5).
On March 24, 2000, Decedent signed and filed a Local 1, IBEW, Pension Benefit Trust Beneficiary
Card (“Beneficiary Card”) with the Pension Plan, naming Defendant Pamela Dallas1 as his Primary
Beneficiary, and Mike Davis as his Contingent Beneficiary. 2 (Compl., ¶ 14 and Beneficiary Card,
Exh. A). Decedent died on October 26, 2009. (Compl., ¶ 15 and Death Certificate, Exh. B).
On or about January 6, 2010, Defendant Eloise Walker 3 filed claims for death benefits with
the Plans, alleging she was the surviving beneficiary of Decedent. (Compl., ¶ 16; Facts, ¶ 11). On
or about January 21, 2010, Pamela Dallas filed claims for death benefits with the Plans, claiming she

1

Pamela Dallas, a resident of Chicago, Illinois, was the Decedent’s cousin. (Compl., ¶ 6;
Facts, ¶ 5).
2

Decedent apparently never filed a separate Beneficiary card designation solely for the 401(k)

Plan.
3

Eloise Walker, a resident of St. Louis, Missouri, was the Decedent’s mother. (Compl., ¶
7; Facts, ¶ 6).
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was the surviving and designated beneficiary of Decedent. (Compl., ¶ 19; Facts, ¶ 12). On or about
February 25, 2010, and March 13, 2010, Eloise Walker (through her attorney) submitted evidence
to the Plans in support of her contention that the Decedent’s execution of the Beneficiary Card was
due to acts of undue influence and fraud. (Compl., ¶ 20).
On March 22, 2010, the Administrative Manager of the Plans notified Defendants by letter
of his decision to grant the claims of Pamela Dallas and deny those of Eloise Walker. (Compl., ¶ 21,
and Decision Letter, Exh. C). In the portion of his decision entitled “Claim submission on behalf of
Eloise,” the Administrative Manager stated as follows:
By email dated February 25, 2010, attorney Durphy stated that: (a)
Bernard had been diagnosed as psychotic and had been committed to the
Metropolitan Psychiatric Center; (b) Bernard was unable to manage his
personal affairs and that his sister Sheila Cunningham had been appointed to
manage his disability benefits which he received from Social Security; (c)
Bernard had been diagnosed with schizophrenia and bi-polar disorder
sometime in the 1990's and that he lived with his mother off and on from 1992
to 2009 when he died; (d) Eloise believed she was Bernard’s beneficiary; and
(e) that any designated beneficiary exploited Bernard’s mental illness.
(Exh. C, P. 2). The Administrative Manager continued to itemize the documentation submitted by
attorney Durphy and reviewed in connection with Eloise Walker’s claims. (Id., PP. 2-4). He then
described other evidence in the possession of the Plans regarding Decedent’s state of mind in March,
2000, when he submitted the beneficiary designation, as follows:
Bernard’s work records show that he worked regular hours in 1998,
that in 1999 he worked 142 hours in January and 100 hours in February and
was unemployed for the remainder of 1999; and that Bernard was unemployed
from January through June 2000 while starting in July 2000 he worked regular
hours for the remainder of the year. Bernard continued to work regular hours
in 2001 and 2002 until August 2002. In 2003 Bernard resumed working
regular hours from July through December 2003. Bernard last worked in
January 2004.
The Pension Plan and 401(k) Plan records show that Bernard actively
managed the investments in his account on December 7, 1998, on December
12, 2005, and on April 12, 2007.
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(Id., P. 4). The Administrative Manager then issued his decision on the death benefit claims, as
follows:
Pension Plan SPD Section 7.2 and Pension Plan Trust Agreement
Section 6.03(b) provide that an unmarried participant has the right to name
his beneficiary on forms provided by the Fund Office. Pension Plan SPD
Section 7.3 and Pension Plan Trust Agreement Section 6.03(b) provide that
“if [a participant] has not filed a Beneficiary designation card,” then the
account balance is payable to surviving members of the first of the following
classes: Class 1-Participant’s spouse; Class 2-Participant’s children or
descendants per stirpes; Class 3-parents in equal shares; Class 4-brothers and
sisters; and Class 5-Participant’s estate. Similarly, Section 5.2 of the 401(k)
Plan SPD and Section 5.5 of the 401(k) Plan provide that in the case of an
unmarried participant, a death benefit under the 401(k) Plan is paid to the
designated beneficiary on the Pension Plan form if the employee participated
in both Plans. Section 5.3 of the 401(k) Plan SPD and Section 5.2 of the
401(k) Plan have the same rule as the Pension Plan if a beneficiary is not
designated.
In her claim, Eloise requests that the Plans set aside the March 24,
2000 beneficiary designation claiming that Bernard acted under undue
influence or as a result of fraud committed by Pamela. Eloise has submitted
evidence regarding Bernard’s mental health during the 1980's and until his
death. There has been no specific evidence about his mental capacity in
March 2000 when he signed the election form. Eloise has submitted some
evidence that in 2004 after Bernard ceased employment as an electrician,
Bernard was committed to a public institution for a limited period of time.
However, the records of the Plans show that Bernard worked as a fulltime
electrician before and after he completed the beneficiary election, and that he
handled the investments in his accounts after March 2000 on three separate
occasions. In addition, no evidence has been submitted that Pamela who
currently lives in the Chicago area had a confidential relationship with Bernard
(who resided in St. Louis) in March 2000 or was otherwise involved in his
decision to name her as his beneficiary.
I have concluded that the plain language of Pension Plan SPD Section
7.2/Pension Plan Trust Agreement Section 6.03(b) and 401(k) Plan SPD
Section 5.2/401(k) Plan Section 5.5 provide that the two death benefits are
payable to Pamela who is the primary beneficiary designated by Bernard on
the March 24, 2000 election form. Eloise has not submitted specific evidence
of Bernard’s lack of mental capacity, undue influence or fraud in March 2000.
Therefore, pursuant to the claims procedures of the Pension Plan and the
401(k) Plan, I have decided to grant the claims of Pamela who was Bernard’s
designated beneficiary, and deny the claims of Eloise.

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(Id., P. 5).
On June 18, 2010, Eloise Walker filed an appeal of the Administrative Manager’s March 22,
2010, decision with the Plans’ Appeals Committees. (Compl., ¶ 22). Pamela Dallas filed a response
to the appeal, and on September 20, 2010, the Appeals Committees issued a written decision
affirming the ruling of the Administrative Manager. (Id., ¶¶ 23, 24, and Appeals Committees
Decision Letter, Exh. D).
Trustees of the Plans filed the instant Complaint for Interpleader on November 9, 2010.
(Doc. No. 1). In their Complaint, Plaintiffs claimed that because Pamela Dallas and Eloise Walker
have each represented themselves to be the surviving beneficiary of Decedent, the Plans may be
exposed to multiple liability should Eloise Walker file a lawsuit seeking judicial review of the Appeals
Committees’ decision. (Compl., ¶¶ 8, 25). The Plans therefore requested that the Court permit them
to pay the total amount of the death benefits into the Court’s registry, and then dismiss the Plans with
prejudice, releasing and discharging them from any and all claims of any person to the benefits
payable by the Plans. (Id., P. 8). The Plans further requested that the Court determine which person
or persons is entitled to receive payment of said sum of money. (Id., P. 9).
On December 15, 2010, the Court granted the parties’ Joint Motion for Order to Deposit
Funds into the Court’s registry, and ordered Plaintiffs to deposit the Pension Plan and 401(k) Plan
death benefits payable as a result of Decedent’s death with the Court’s registry, to be held in an
interest bearing account and disbursed by the Court upon judgment in this case. (Doc. No. 14).
Plaintiffs deposited the commuted values of the Pension Plan and 401(k) Plan death benefits with the
Court on January 4, 2011. (Doc. No. 17). On February 15, 2011, the Court granted the parties’
Joint Motion for Discharge of Plaintiffs, and dismissed Plaintiffs from this action with prejudice.
(Doc. No. 24).

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On January 4, 2011, Pamela Dallas filed her Answer to Plaintiffs’ Complaint, together with
her cross-claim against Eloise Walker. (Doc. No. 18). In her cross-claim, Pamela Dallas asserts that
given the Trustees’ ruling and the Appeals Committees’ decision, Eloise Walker has no justification
or good faith argument for a claim to the funds contained in either the Pension Plan or the 401(k)
Plan. (Id., ¶ 25). Pamela Dallas therefore requests that the Court enter a judgment in favor of
Pamela Dallas for the full amount of the proceeds of the Pension Plan and 401(k) Plan of Decedent.
(Id., P. 13). As stated above, Pamela Dallas filed the instant Motion for Summary Judgment on both
Plaintiffs’ Complaint and Pamela Dallas’ cross-claim on February 11, 2011. (Doc. No. 21).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if, “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive
law determines which facts are critical and which are irrelevant. Only disputes over facts that might
affect the outcome will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must
set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not
the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at
247. The nonmoving party may not rest upon mere allegations or denials of its pleadings. Anderson,
477 U.S. at 256.

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In passing on a motion for summary judgment, the Court must view the facts in the light most
favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor. Anderson,
477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine whether there
is a genuine issue for trial. Id. at 249.
DISCUSSION
The Supreme Court recently held that, “ERISA requires ‘[e]very employee benefit plan [to]
be established and maintained pursuant to a written instrument,’ 29 U.S.C. § 1102(a)(1), ‘specify[ing]
the basis on which payments are made to and from the plan,’ § 1102(b)(4).” Kennedy v. Plan Adm’r
for DuPont Sav. and Inv. Plan, 555 U.S. 285, 129 S.Ct. 865, 875, 172 L.Ed.2d 662 (2009). “The
point is that by giving a plan participant a clear set of instructions for making his own instructions
clear, ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the
virtues of adhering to an uncomplicated rule: ‘simple administration, avoid[ing] double liability, and
ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under lesscertain rules.’” Id. at 875-876 (quoting Fox Valley & Vicinity Const. Workers Pension Fund v.
Brown, 897 F.2d 275, 283 (C.A.7 1990) (Easterbrook, J., dissenting)).
Under ERISA, a plan beneficiary may bring a civil action to “recover benefits due to him
under the terms of [the] plan, to enforce his rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). The Eighth Circuit has
held that, “[t]he district court reviews de novo a denial of benefits in an ERISA case, unless a plan
administrator has discretionary power to construe uncertain terms or to make eligibility

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determinations, when review is for abuse of discretion.”4 Rittenhouse v. UnitedHealth Group Long
Term Disability Ins. Plan, 476 F.3d 626, 628 (8th Cir. 2007) (emphasis in original) (citation omitted).
In the instant case, because it is undisputed that both the Pension Plan and the 401(k) Plan
granted the Plan Administrator discretionary authority to construe terms and determine eligibility for
benefits, the standard of review for this Court is abuse of discretion. (See 401(k) Plan SPD, §§ 9.4
and 10.9, attached to Facts as Exh. B; Pension Plan SPD, §§ 10.4 and 11.8, attached to Facts as Exh.
A).
Under the abuse of discretion standard, the proper inquiry is whether the plan
administrator’s decision was reasonable; i.e., supported by substantial
evidence. In considering the reasonableness of a plan administrator’s factbased [] determination, courts should consider whether the decision is
supported by substantial evidence. Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1179 (8th Cir. 2001) (internal quotations
and citations omitted). In making this determination, “a reviewing court must focus on the evidence
available to the plan administrators at the time of their decision and may not admit new evidence or
consider post hoc rationales.” King v. Hartford Life and Acc. Ins. Co., 414 F.3d 994, 999 (8th Cir.
2005) (internal quotations and citation omitted).5 Finally, “[a] decision supported by a reasonable
explanation will not be disturbed even if another reasonable interpretation could be made or if the
court might have reached a different result had it decided the matter de novo.” Phillips-Foster v.
UNUM Life Ins. Co. of America, 302 F.3d 785, 794 (8th Cir. 2002) (citation omitted).

4

“This deferential standard reflects our general hesitancy to interfere with the administration
of a benefits plan.” Norris v. Citibank, N.A. Disability Plan (501), 308 F.3d 880, 883 (8th Cir. 2002)
(internal quotations and citations omitted).
5

In light of this standard, the Court must deny Eloise Walker’s repeated requests to subpoena
and present witnesses, affidavits, and Decedent’s medical, school and work records, in an effort to
prove her claim.
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Upon consideration of the record before it, the Court cannot say the Plan Administrator
abused his discretion in deciding to pay benefits to Pamela Dallas rather than Eloise Walker, for
several reasons. First, the Pension Plan contained clear provisions allowing a participant to name his
beneficiary on a form available from the Fund Office, and to change his beneficiary form by filing a
new one. (See Pension Fund Trust Agreement, § 6.03(b)(i)). The 401(k) Plan provided that a
residual death benefit in the amount of the participant’s individual account balance would be payable
to the participant’s beneficiary, and that the last beneficiary form on file with the Trust Office at the
time of the participant’s death would govern. (See 401(k) Plan Document, § 5.5(a)). Finally, the
401(k) Plan provided that if the participant was also a participant in the Pension Plan at the time of
his death, then in the absence of other instructions the death benefit from the 401(k) Plan would be
payable to same beneficiary as that listed with the Pension Plan. (Id., § 5.5(b)).
It is undisputed that the last Beneficiary Card on file with the Trust Office at the time of
Decedent’s death listed Pamela Dallas as his beneficiary. (Compl., Exh. A). In submitting her claims
for death benefits with the Plans, Eloise Walker argued that Decedent suffered from severe mental
illness from a time prior to his execution of the Beneficiary Card until his death, and that any change
in his designated beneficiary therefore was executed as a result of undue influence and fraud on the
part of Pamela Dallas. (Compl., ¶ 20; Exh. C, P. 2). As stated above, however, after noting that the
Plans permitted Decedent to name his own beneficiary, the Plan Administrator rejected Eloise
Walker’s claims, as follows:
In her claim, Eloise requests that the Plans set aside the March 24,
2000 beneficiary designation claiming that Bernard acted under undue
influence or as a result of fraud committed by Pamela. Eloise has submitted
evidence regarding Bernard’s mental health during the 1980's and until his
death. There has been no specific evidence about his mental capacity in
March 2000 when he signed the election form. Eloise has submitted some
evidence that in 2004 after Bernard ceased employment as an electrician,
Bernard was committed to a public institution for a limited period of time.
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However, the records of the Plans show that Bernard worked as a fulltime
electrician before and after he completed the beneficiary election, and that he
handled the investments in his accounts after March 2000 on three separate
occasions. In addition, no evidence has been submitted that Pamela who
currently lives in the Chicago area had a confidential relationship with Bernard
(who resided in St. Louis) in March 2000 or was otherwise involved in his
decision to name her as his beneficiary.
I have concluded that the plain language of Pension Plan SPD Section
7.2/Pension Plan Trust Agreement Section 6.03(b) and 401(k) Plan SPD
Section 5.2/401(k) Plan Section 5.5 provide that the two death benefits are
payable to Pamela who is the primary beneficiary designated by Bernard on
the March 24, 2000 election form. Eloise has not submitted specific evidence
of Bernard’s lack of mental capacity, undue influence or fraud in March 2000.
Therefore, pursuant to the claims procedures of the Pension Plan and the
401(k) Plan, I have decided to grant the claims of Pamela who was Bernard’s
designated beneficiary, and deny the claims of Eloise.
(Exh. C, P. 5).
In light of the foregoing, the Court finds the Plan Administrator offered a “reasonable
explanation for its decision.” Fletcher-Merrit, 250 F.3d at 1180. In other words, the Plan
Administrator’s decision to deny Eloise Walker benefits was supported by substantial evidence, and
thus, even if another reasonable interpretation exists, this Court, “may not simply substitute its
opinion for that of the plan administrator.” Id. See also Matschiner v. Hartford Life and Acc. Ins.
Co., 622 F.3d 885, 888 (8th Cir. 2010) (citation omitted) (“[W]e conclude that [the plan
administrator] acted in accordance with the plan documents and therefore did not abuse its
discretion.”). Pamela Dallas’s Motion for Summary Judgment must therefore be granted.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant/Cross-Claimant Pamela Wright a/k/a Pamela
Dallas’ Motion for Summary Judgment on the Complaint and Cross Claim against Defendant/CrossRespondent Eloise Walker (Doc. No. 21) is GRANTED, and the decision of the Administrative

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Manager and Appeals Committees to deny and foreclose all claims of Eloise Walker for the full
amount of the proceeds of the Pension Plan and 401(k) Plan of Decedent is AFFIRMED.
IT IS FURTHER ORDERED that the Court will enter a Judgment in favor of
Defendant/Cross-Claimant Pamela Dallas, and order the Clerk of the Court to turn over the funds
deposited by Plaintiffs on or about January 4, 2011, to Defendant/Cross-Claimant Pamela Dallas.

Dated this 25th day of April, 2011.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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