USA v. Giaimo

Filing 112

MEMORANDUM AND ORDER re: 83 MOTION for Summary Judgment filed by Plaintiff United States of America, 97 Cross MOTION for Partial Summary Judgment On Tax Years 1992, 1993 and 1994 filed by Defendant Laura Giaimo. IT IS HEREBY ORDERED that plaintiff's Motion for Summary Judgment (#83) is GRANTED. IT IS FURTHER ORDERED that defendant's Motion for Partial Summary Judgment (#97) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 3/18/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
LAURA GIAIMO,
Defendant.

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Case No. 4:11CV589 SNLJ

MEMORANDUM and ORDER
This matter is before the Court upon the parties’ cross-motions for summary
judgment. (#83, #97.) Defendant has been appointed counsel by this Court. The matter
has been fully briefed and is now ripe for disposition.
As of May 2015, defendant Laura Giaimo owed $349,916.89 in federal income tax
liabilities for tax years 1992-1994, 2000-2003, and 2005-2006. The United States
brought this case to facilitate collection of that debt.
I.

Background
The following facts are undisputed. Defendant filed a bankruptcy petition in 1995

and asked the court to, among other things, determine her 1992-1994 tax liabilities. The
Internal Revenue Service (“IRS”) assessed taxes and penalties due in accordance with the
Bankruptcy Judge’s decision, along with interest and additional penalties for Giaimo’s
continued failure to pay the tax owed, which totaled $285,309.46. The debt was not
dischargeable in bankruptcy and to date has not been paid.
Plaintiff ran a day care center/school until it closed in 1996. She then worked for
various companies earning an hourly wage. She did not file tax returns for tax years

2000-2003 and 2005. The IRS used information provided by third parties like Giaimo’s
employers, the Social Security Administration, and the mortgage holder on Giaimo’s
home to determine that Giaimo had taxable income and owed tax. The IRS determined
that Giaimo owed $58,982.01 in taxes, interest, and penalties for 2000-2003 and 2005.
On October 17, 2007, Giaimo filed her 2006 income tax return with the IRS. The
IRS accepted the information she reported with two changes. First, the IRS reduced the
capital loss Giaimo reported to $3,000 from $5,000 due to a statutory limitation. 26
U.S.C. § 1211(b)(1) (limiting capital losses to $3,000). Second, the IRS denied the
education credit Giaimo claimed. Giaimo cannot substantiate the education costs or the
grants or scholarships that her daughter received. Records submitted to the IRS by Saint
Louis University reflect that Giaimo’s daughter was billed $18,930 and received $17,200
in scholarship and grant money. But the amounts reported by the University do not
match what Giaimo reported on her 2006 income tax return and do not describe what
Giaimo or her daughter actually paid to (as opposed to what was billed by) Saint Louis
University. On February 4, 2008, the IRS made assessments against Giaimo totaling
$3,673.12 for income tax and interest for tax year 2006. As of Spring 2015, defendant
owed $5,625.42 in tax liability, fees, and interest.
The United States seeks to satisfy these debts by taking Giaimo’s home on
Freedom Way in St. Charles, Missouri (the “Freedom Way Property”). The house is held
by a trust, the A. Martin Giaimo Family Trust, but because defendant does not appear to
contest that the Freedom Way Property is her asset, the Court need not recite the details
of the Trust’s creation and funding.
However, because Giaimo asserts that the statute of limitations has run on the
United States’ attempt to enforce its lien on her home, the Court must set forth the
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pertinent facts surrounding this matter’s extensive administrative history.
Congress has provided the IRS with ways to collect on unpaid, assessed tax
liabilities such as that owed by defendant: the IRS can (1) levy on a taxpayer’s property,
and/or (2) file a notice of tax lien with a county office. 26 U.S.C. §§ 6323(a), (f),
6331(a). The IRS sends the taxpayer a “Notice of Intent to Levy and Notice Of Your
Right To A Hearing” or a “Notice of Federal Tax Lien Filing and Your Right to A
Hearing Under IRC 6320” when it intends to levy on a taxpayer’s property or has filed a
notice of federal tax lien, respectively. See id. §§ 6320(a), 6330(a). Each notice refers to
either the levy or the filing of a notice of federal tax lien. The taxpayer then has the right
to request a “Collection Due Process” (“CDP”) hearing from the IRS within 30 days of
either notice. Id. §§ 6320(a)(3)(B) and (b), 6330(a)(3)(B) and (b).
The IRS sent Giaimo three notices informing her of its intent to begin a collection
action and her right to request a CDP hearing:
 On February 7, 2005, for tax years 1992 through 1994, the IRS sent Giaimo
a notice about an impending IRS levy and Giaimo’s right to a CDP hearing
in conjunction with that levy (the “1992-1994 Levy Notice”).
 On April 12, 2005, the IRS sent Giaimo a “Notice of Federal Tax Lien
Filing and Your Right to A Hearing Under IRC 6320” (the “1992-1994
Lien Notice”).
 On April 30, 2005, for tax year 1990, the IRS sent Giaimo a “Final Notice
of Intent to Levy and Notice Of Your Right to A Hearing,” for tax year
1990 (the “1990 Levy Notice”). The letter informed Giaimo that the IRS
intended to levy on her property to collect her unpaid 1990 tax liabilities
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and that she could request a collection due process hearing.
In response, in April and May 2005, Giaimo sent several Forms 12153, “Request
for a Collection Due Process Hearing” (the “CDP Requests”), to the IRS relating to tax
years 1990, 1992, 1993, and 1994. On each of the Forms 12153, just above Giaimo’s
signature, is the following statement: “I/we understand that the statutory period of
limitations for collection is suspended during the Collection Due Process Hearing and
any subsequent judicial review.”
In her May 2005 CDP Request, Giaimo objected to the “Filed Notice of Federal
Tax Lien” and the “Notice of Levy/Seizure” for tax year 1990. The IRS concluded that
the May 2005 CDP Request was timely (i.e., within 30 days of the operative notice) with
respect the 1990 Levy Notice, but not timely with respect to any notice of federal tax lien
filing for tax year 1990.
Giaimo signed her CDP Requests for tax years 1992-1994 on April 19, 2005 and
sent them to the IRS on April 21, 2005. The IRS received them on or about April 26,
2005. In her CDP Requests relating to the 1992 through 1994 tax years, Giaimo objected
to the “Filed Notice of Federal Tax Lien” and the “Notice of Levy/Seizure.” Giaimo
filed her April 2005 CDP Requests within 30 days of the April 12, 2005 1992-1994 Lien
Notice, but more than 30 days after the February 7, 2005 1992-1994 Levy Notice. The
IRS concluded that Giaimo’s CDP Requests were timely (i.e., within 30 days of the April
12, 2005 Lien Notice) with respect to the 1992-1994 Lien Notice, but not timely with
respect to the 1992-1994 Levy Notice.
On September 22, 2005, the IRS sent Giaimo a letter titled “Appeals Received
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Your Request for Collection Due Process Hearing” notifying her of, among other things,
the IRS’s conclusions regarding the timeliness of her CDP Requests, the implications of
her CDP Requests on the collection statute, and the hearing process. In pertinent part, the
letter stated:
Your CDP hearing request regarding the filing of the Notice of Federal Tax Lien
on the following tax periods was timely: Form 1040, for tax periods December
31, 1992, December 31, 1993, and December 31, 1994. During your hearing and
until any appeals become final, the legal collection period is suspended on these
tax and periods. . . .
Your levy hearing request was not filed timely, as it was not received or
postmarked within 30 days of the Final Notice- Notice of Intent to Levy, and
Notice of Your Right to a Hearing on Form 1040, for tax periods December 31,
1992, December 31, 1993 and December 31, 1994. We will offer you a hearing
that is equal to a CDP hearing, which we call an equivalent hearing. However,
the legal collection period is not suspended nor is levy action prohibited for these
tax and periods. . . .
After the hearing, we will issue a determination letter as required by law for the
tax and periods for which your CDP hearing request was received timely. If
you do not agree with our determination you may appeal the case to the
appropriate court. . . .
We will issue a decision letter for the tax and periods for which your CDP
hearing request was determined not to be timely. There is no right to
challenge Appeals’ decision in court. . . .
The IRS Appeals Office conducted a hearing on Giaimo’s CDP Requests.
Because the IRS concluded that Giaimo’s CDP request was timely with respect to the
1990 Levy Notice and the 1992-1994 Lien Notice, the IRS provided Giaimo with a CDP
hearing and, on February 13, 2006, sent Giaimo a “Notice of Determination” with respect
to those tax years and collection actions, concluding in both instances that the IRS’s
actions were proper. The Notice of Determination informed Giaimo of her right to
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appeal the findings to Tax Court.
Also on February 13, 2006, the IRS issued Giaimo a “Decision Letter” regarding
the 1992-1994 Levy Notice because the IRS determined that Giaimo’s CDP requests
were not timely with respect to the 1992-1994 Levy Notice. The decision letter did not
mention “Tax Court” or any appeal rights and, in fact, stated: “there is no right to dispute
a decision by the Appeals Office in court under IRC section 6330.”
Attached to both the Decision Letter and the Notice of Determination was a more
detailed explanation of the IRS’s findings, including, in relevant part, the IRS’s
conclusions regarding the timeliness of her various CDP Requests.
On March 11, 2006, Giaimo signed a Tax Court Petition, contesting the IRS’s
February 13, 2006 determination regarding tax years 1990, 1992, 1993, and 1994. The
Tax Court docket shows Giaimo’s Tax Court Petition was filed on March 20, 2006.
The IRS filed a motion for summary judgment. The Tax Court granted the IRS’s
motion and entered judgment in favor of the IRS on April 11, 2007. The Tax Court’s
decision specifically referenced the 1992-1994 Lien Notice, as well as the February 13,
2006 Notice of Determination. The Tax Court held that the IRS “may proceed with the
collection action as determined in the notice of determination….” Giaimo did not appeal
the Tax Court’s decision.
The United States filed this lawsuit on March 31, 2011 seeking (1) to reduce to
judgment its tax assessments made against Giaimo and enforce its federal tax liens
against Giaimo’s home located on Freedom Way in St. Charles, Missouri (“Freedom
Way Property”), (2) obtain a declaration that Giaimo and not the A. Martin Giaimo
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Family Trust, is the true, equitable, and de facto owner of Giaimo’s home on Freedom
Way, and (3) order the sale of the Freedom Way Property in partial satisfaction of
Giaimo’s debts. The United States also named The A. Martin Giaimo Family Trust, the
Heritage Residents Association, and Anthony Martin Giaimo (Laura Giaimo’s husband)
as party defendants because those defendants may have claimed an interest in the
Freedom Way Property. See 26 U.S.C. § 7403.
Although Laura Giaimo answered the United States’ complaint, the remaining
defendants did not. Therefore, on September 13, 2011, this Court granted judgment
against them and in favor of the United States. Specifically, this Court held:
[T]he United States is granted judgment against defendants A. Martin
Giaimo, the A.Martin Giaimo Family Trust, and the Heritage Residents
Association, and as a consequence of that judgment these defendants have
no rights, claims, or interest that is senior to the federal tax liens in the real
property located at 14 Freedom Way, St. Charles, Missouri.
The United States has filed for summary judgment against Laura Giaimo.
Defendant Giaimo argues that the statute of limitations precludes the United States from
bringing this action, and she seeks summary judgment on that basis.
II.

Summary Judgment Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a

motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to material fact and the moving party is entitled to judgment
as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467
(1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec.
Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this
burden, the nonmoving party must do more than show that there is some doubt as to the
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facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in
favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541
F.2d 207, 210 (8th Cir. 1976).
III.

Discussion
The parties’ arguments involve the statute of limitations and, to a lesser degree,

the appropriateness of levying Giaimo’s home and questions regarding Giaimo’s tax
liability.
A.

Statute of limitations

The United States has 10 years to initiate a collection action after making a tax
assessment. 26 U.S.C. § 6502. The parties agree that the tax assessment for the 19921994 tax years was made on February 12, 1999. This collection action was brought on
March 31, 2011, which was more than twelve years after the assessment was made. The
United States contends that the statute of limitations was tolled by Giaimo’s request for
administrative review by the IRS.
As indicated above in the facts, when the IRS files a notice of federal tax lien or
intends to levy on a taypayer’s assets, it sends the taxpayer a notice of federal tax lien
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filing or a notice of intent to levy, respectively. See 26 U.S.C. §§ 6320(a), 6330(a). The
taxpayer may then request a Collection Due Process Hearing (“CDP Hearing”) from the
IRS within 30 days of the notice. Id. §§ 6320(a)(3) and (b), 6330(a)(3) and (b). If the
request is made within that 30 day window, the IRS conducts a hearing and issues a
“Notice of Determination.” Id. §§ 6320(c), 6330(d); 26 C.F.R. §§ 301.6320-1 (Q-E8, AE8), 301.6330-1(Q-E8, A-E8).
The 10-year-collection statute is suspended during the time the CDP proceeding is
pending, including any time associated with a Tax Court appeal, plus 90 days. 26 U.S.C.
§§ 6320(c), 6330(e)(1), 6502(a). The parties agree that Giaimo timely requested a CDP
hearing in conjunction with the 1992-1994 Lien Notice on April 26, 2005. Giaimo
received a CDP hearing, received her Notice of Determination letter, petitioned the Tax
Court, and then did not appeal the Tax Court’s decision. The Tax Court’s decision
became final on July 9, 2007, when Giaimo’s appeal period ended. Thus, the United
States argues that Giaimo’s actions suspended the 10-year-collection statute for two years
and 165 days, which consists of the time from April 26, 2005 through July 9, 2007, plus
an additional 90 days. The United States calculates that it had from the date of the
assessment, February 12, 1999, plus 10 years, plus two years and 165 days, in which to
file this lawsuit, which was filed on March 31, 2011.
Giaimo focuses not on her timely request for CDP hearing regarding the 19921994 Lien Notice, but instead on her untimely request for hearing on the 1992-1994 Levy
Notice. The untimeliness of that request is significant because, when a taxpayer requests
a hearing after the 30-day period, the IRS provides the taxpayer with an “equivalency
hearing” which culminates in a “decision letter” that is not appealable to the Tax Court.
Moreover, the late-filed request and ensuing “equivalency hearing” do not toll the
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collection statute of limitations. Giaimo thus argues that her late-filed request related to
the 1992-1994 Levy Notice means that the statute of limitations was not tolled and that
the United States filed this lawsuit over a year late.
Giaimo argues that the IRS’s lien and levy procedures are fundamentally different
and that they should not be treated as interchangeable --- that is, she argues that the
timely-filed CDP request for the Lien Notice could not have tolled the statute of
limitations for acting upon the lien or levy because she filed an untimely CDP request for
the Levy Notice. Giaimo observes that a lien can be subsumed into a levy if the IRS
elects to foreclose on its lien and that federal tax liens are in fact enforced by levy. (#90
at 4 (citing United States v. Bell Credit Union, 860 F.2d 356, 367 (10th Cir. 1988).
Although the levy and lien are certainly distinct legal concepts, the plain language of the
statute, see 26 U.S.C. §§ 6320(c), 6330(e)(1), tolls the statute of limitations for collection
activities if a CDP request is timely filed for either. Thus, the IRS was unable to continue
with the collection of the subject of its 1992-1994 lien upon receipt of Giaimo’s timely
CDP request for the Lien Notice. The fact that Giaimo’s CDP request for the 1992-1994
Levy Notice was untimely is therefore not relevant because the Levy Notice involved the
same subject matter as the Lien Notice. Collection activities were suspended.
Giaimo’s next argument concerns her appeal of the Letter of Determination to the
Tax Court. The IRS issued its “Letter of Determination” regarding the Lien Notice and a
“Decision Letter” regarding the Levy Notice on February 13, 2006. The Letter of
Determination was appealable to the Tax Court because plaintiff had received a full CDP
hearing after timely filing her CDP request. However, the Decision Letter regarding the
Levy Notice was not appealable because that CDP request had been untimely, and the
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Decision Letter thus stated “there is no right to dispute a decision by the Appeals Office
in court under IRC section 6330.” On March 11, 2006, Giaimo signed a Tax Court
Petition, contesting the IRS’s February 13, 2006 determination regarding tax years 1990,
1992, 1993, and 1994. The Tax Court docket shows Giaimo’s Tax Court Petition was
filed on March 20, 2006. Giaimo contends that the Tax Court had no jurisdiction to hear
her appeal because, she says, it was “Levy Related” and it was late-filed.
In support of her argument that Giaimo appealed the “Levy-Related” decision, for
which there was no right to appeal, and not the lien-related Letter of Determination,
Giaimo cites her Petition before the Tax Court. The Petition form allowed Giaimo to
check a box indicating she wished to file a “Petition for Lien or Levy Action (Collection
Action),” which she checked. In the form’s small space in which to set forth the relief
requested, Giaimo did not specifically mention the Lien Notice. Regardless, the only
appealable determination was the Letter of Determination issued regarding the Lien
Notice. The Tax Court’s opinion does reference § 6330(c), but § 6330(c) pertains to both
lien and levy notices. See 26 U.S.C. §6320(c) (incorporating § 6330(c)). The Letter of
Determination regarding the Lien instructed Giaimo that she could appeal that decision,
and she did. Finally, the Tax Court’s order explicitly refers to the Lien Notice by
reference to the Letter of Determination: “It is further ORDERED AND DECIDED that
respondent may proceed with the collection action as determined in the notice of
determination relating to the years in issue upon which this case is based.”1 The

1

The Tax Court refers to the Letter of Determination as a “Notice,” likely because that is
how the document itself is titled. The terms are used interchangeably, but they are
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limitations statute’s tolling continued as a result pursuant to § 6320(c).
Next, Giaimo contends that her Tax Court petition was filed after the 30-day
appeals period expired and that the Tax Court lacked jurisdiction as a result. Therefore,
Giaimo argues, the statute was not tolled while the Tax Court reviewed the appeal. The
Letter of Determination was issued on February 13, 2006. Giaimo’s appeal to the Tax
Court was filed on March 20, 2006, which is 35 days after the Letter of Determination’s
issuance. However, as the United States points out, Giaimo had 30 days from the date of
the Letter of Determination to mail her petition to the Tax Court. See 26 U.S.C. § 7502
(“Timely mailing treated as timely filing and paying”). Giaimo clearly signed the
Petition on March 11, which was well before her mailing deadline of March 15, 2006.
Giaimo has set forth no evidence that she in fact mailed the Petition after March 15.
Furthermore, the Tax Court received and docketed the petition, would have had the
opportunity to inspect the postmark, see 26 U.S.C. § 7502, and clearly believed it had
jurisdiction when it considered the merits of Giaimo’s petition.
Because the statute of limitations was tolled by Giaimo’s administrative review
process, the United States’ collection action before this Court was timely filed. Giaimo’s
summary judgment motion will be denied.
B.

Alternative Methods of Payment

Giaimo argues next that alternative methods of payment should be considered
before the IRS seizes Giaimo’s home. Her primary basis for that argument appears to be
her expectation that this Court would grant her summary judgment on the 1992-1994
clearly different from the “Decision Letter” issued in the case of an “Equivalency
Hearing” for untimely-filed CDP requests.
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assessments and thus reduce her liability by more than 81%. However, this Court
rejected Giaimo’s statute of limitations argument, and the 1992-1994 assessments stand
such that her total liability is well over $300,000.
Giaimo also argues that she is 73 years old, in poor health, and has no way to
support herself. Her husband is serving an indefinite prison sentence and is unable to
assist with her bills. She says she needs her mortgage-free primary residence to make
ends meet and cannot afford to pay rent or a mortgage. Giaimo’s reliance on economic
hardship as justification for releasing a levy, however, relates to the IRS’s administrative
levy process. See 26 U.S.C. §§ 6343(a)(1)(D), 6331. This, however, is not an
administrative levy, but a § 7403 proceeding which is “wholly different from an
administrative levy under 26 U.S.C. § 6331.” Hatchett v. United States, 330 F.3d 875,
884 (6th Cir. 2003) (quoting United States v. Rodgers, 461 U.S. 677, 682 (1983)). “The
United States may enforce its interest in an IRS administrative levy under 26 U.S.C. §
6331 or as in this case, seek judicial enforcement of the federal tax lien pursuant to 26
U.S.C. § 7403.” United States v. Dudley, No. 1:12CV127 SNLJ, 2014 WL 7507242, at
*7 (E.D. Mo. Nov. 18, 2014) (quoting United States v. Peters, 4:12CV1395 AGF, 2014
WL 2611813, at *8 (E.D. Mo. June 11, 2014)).
Pursuant to 26 U.S.C. § 7403, courts have only limited discretion to deny
foreclosure of a federal tax lien on a taxpayer's property. See United States
v. Rodgers, 461 U.S. 677, 709 (explaining that Congress's use of the word
“may” in § 7403 affords a district court a limited degree of equitable
discretion in ordering the enforcement of federal tax liens). However, the
relevant equitable considerations are the interests of non-liable third parties,
rather than the interests of the taxpayer. See id. at 709–711.
Peters, 2014 WL 2611813, at *9. As this Court noted in Peters, the Supreme Court has
stated that “[w]e can think of virtually no circumstances [under § 7403], for example, in
which it would be permissible to refuse to authorize a sale simply to protect the interests
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of the delinquent taxpayer himself or herself.” Id. (quoting Rodgers, 461 U.S. at 709-11).
It is a universal truth that no one wants to lose his or her home; the law compels the
United States to collect on Giaimo’s debt, and the house is Giaimo’s asset. No one has
come forward to claim a competing ownership interest in the property, and the Court is
without discretion to do what Giaimo requests.
C.

The 2000-2003, 2005-2006 Tax Assessments

Giaimo’s arguments regarding the validity of her more recent tax liabilities center
mainly on the assumption that this Court would find in her favor regarding the statute of
limitations for the 1990s assessments. Giaimo also contends she is entitled to $95,964.69
in capital loss “carryovers,” up to $3,000 each year from August 1998. The United States
agrees she was entitled to a capital loss deduction of $3,000 in 2006 (in fact, Giaimo
requested a $5,000 capital loss deduction which was reduced to $3,000 by the IRS).
However, with respect to tax years 2000-2003 and 2005, Giaimo did not file tax returns
for those years and therefore cannot meet her burden of proof to show how much of
carryover deduction was taken or what if any of the carryover remains. See INDOPCO,
Inc. v. C.I.R., 503 U.S. 79, 84 (1992) (“an income tax deduction is a matter of legislative
grace and that the burden of clearly showing the right to the claimed deduction is on the
taxpayer.”).
Giaimo also wonders whether the IRS has properly applied certain payments made
on the tax years at issue. The United States responds that it has provided Giaimo with
Forms 4340 for the tax years at issue and that Giaimo has not come forward with
admissible evidence to show the plaintiff has wrongly calculated what she owes. The
Court agrees there is no reason for this Court to find that plaintiff has improperly
calculated defendant’s tax liability.
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IV.

Conclusion
Defendant owes taxes that were due nearly 25 years ago, and she continued to

incur tax liability in the 2000s, when she failed to file tax returns. The IRS indicated that
it would seek collection of the debt by levying her property over ten years ago, and this
matter --- the final step in the collection process --- has been pending for nearly five
years. Defendant has had ample time to contemplate her options as this matter has
proceeded. Moreover, defendant was appointed counsel to represent her in this matter,
and her attorneys have represented her admirably. The Court must grant summary
judgment to the plaintiff and deny summary judgment to defendant.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s Motion for Summary Judgment (#83)
is GRANTED.
IT IS FURTHER ORDERED that defendant’s Motion for Partial Summary
Judgment (#97) is DENIED.

Dated this 18th day of March, 2016.

___________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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