United States of America v. Miller
Filing
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ORDER Granting 14 Motion for Summary Judgment. Signed by Judge Gloria M. Navarro on 8/4/11. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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ANDREW H. MILLER,
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Defendant.
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Case No.: 2:10-cv-01004-GMN-PAL
ORDER
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Pending before the Court is the Government’s Motion for Summary Judgment (ECF No.
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14); Defendant’s Response (ECF No. 18); and the Government’s Reply (ECF No. 19). For the
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reasons that follow, the Government’s Motion for Summary Judgment (ECF No. 14) will be
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GRANTED.
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I.
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BACKGROUND
This case arises from Defendant’s nonpayment of his federally-reinsured student loans.
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In July of 1984, Defendant executed a promissory note to secure a loan of $5,000.00 from
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Great Western Savings at an 8.00 percent annual interest rate. (See Ex. A, Mot. for Summ. J.,
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ECF No. 14.) In July of 1985, Defendant executed another promissory note to secure an
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additional loan of $5,000.00 from Great Western Savings at an 8.00 percent annual interest
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rate. (See id.) These loan obligations were guaranteed by the California Student Aid
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Commission (“the Commission”) and were then reinsured by the United States Department of
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Education (“the Department”). (See Ex. B, Mot. for Summ. J., ECF No. 14.) Defendant
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defaulted on the loans in 1992, and the Commission was forced to pay a claim in the amount of
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$11,824.46 to the holder of the notes. (Id.) The Department, in turn, reimbursed the
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Commission for that amount. (Id.) Pursuant to 34 C.F.R. § 682.410, the Commission attempted
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to collect Defendant’s debt from him directly. (Id.) However, the Commission was unable to
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collect the amount due, so it assigned its right to collect under the loan to the Department. (Id.)
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In August of 1984, Defendant executed another promissory note to secure a loan of
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$3,000.00 from City National Bank at a 12.00 percent annual interest rate. (See Ex. C, Mot. for
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Summ. J., ECF No. 14.) That loan was also guaranteed by the Commission and reinsured by
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the Department. (See Ex. D, Mot. for Summ. J., ECF No. 14.) When Defendant defaulted on
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the loan in 1986, the Commission paid $3,361.97 to the holder of the note and was reimbursed
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by the Department. (Id.) Following the Commission’s failure to collect the amount owed, it
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assigned its rights and interests in the loan to the Department. (Id.)
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In July of 1985, Defendant executed a promissory note to secure a loan of $3,000.00
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from First Independent Trust Company at a 12.00 percent annual interest rate. (See Ex. E, Mot.
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for Summ. J., ECF No. 14.) That loan was also guaranteed by the Commission and reinsured
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by the Department. (See Ex. F, Mot. for Summ. J., ECF No. 14.) When Defendant defaulted on
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the loan in 1991, the Commission paid $4,905.88 to the holder of the note and was reimbursed
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by the Department. (Id.) Following the Commission’s failure to collect the amount owed, it
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assigned its rights and interest in the loan to the Department. (Id.)
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The Government now seeks to recover the money the Department paid the Commission
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as a result of Defendants’ defaults, as well as all interest that has accrued since the Department
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made those payments.
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II.
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SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication if “the movant
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shows there is no genuine dispute as to any material fact and the movant is entitled to a
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that may affect the
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outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a
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verdict for the nonmoving party. See id. “Summary judgment is inappropriate if reasonable
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jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the
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nonmoving party=s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.
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2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal
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purpose of summary judgment is “to isolate and dispose of factually unsupported claims.”
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Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
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In determining whether summary judgment is appropriate, a court applies a burden-
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shifting analysis. “When the party moving for summary judgment would bear the burden of
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proof at trial, it must come forward with evidence which would entitle it to a directed verdict if
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the evidence went uncontroverted at trial. In such a case, the moving party has the initial
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burden of establishing the absence of a genuine issue of fact on each issue material to its case.”
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C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)
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(citations omitted). In contrast, when the nonmoving party bears the burden of proving the
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claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence
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to negate an essential element of the nonmoving party=s case; or (2) by demonstrating that the
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nonmoving party failed to make a showing sufficient to establish an element essential to that
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party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477
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U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be
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denied and the court need not consider the nonmoving party’s evidence. See Adickes v. S.H.
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Kress & Co., 398 U.S. 144, 159–60 (1970).
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If the moving party satisfies its initial burden, the burden then shifts to the opposing
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party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,
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the opposing party need not establish a material issue of fact conclusively in its favor. It is
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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the
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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid
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summary judgment by relying solely on conclusory allegations that are unsupported by factual
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data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go
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beyond the assertions and allegations of the pleadings and set forth specific facts by producing
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competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.
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At summary judgment, a court’s function is not to weigh the evidence and determine the
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truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
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The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn
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in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is
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not significantly probative, summary judgment may be granted. See id. at 249–50.
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III.
DISCUSSION
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To recover on a promissory note, the Government must first make a prima facie showing
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that: (1) the defendant signed the note; (2) the Government is the present owner or holder of the
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note; and (3) the note is in default. United States v. Petroff-Kline, 557 F.3d 285, 290 (6th Cir.
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2009). “For that purpose the government may introduce evidence of the note and a sworn
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transcript of the account or certificate of indebtedness.” Id. (internal citation omitted). “Once
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such a prima facie case is established, defendant has the burden of proving the nonexistence,
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extinguishment or variance in payment of the obligation.” Id. (internal citation omitted).
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A.
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Defendant admits to signing (see Answer 1:28, ECF No. 4), and executing (see Resp.
The Government’s Prima Facie Case
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1:25-28, ECF No. 18), the relevant promissory notes. Therefore, the first element of the
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Government’s prima facie case is fulfilled.1
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In order to fulfill the second element, the Government attached three Certificates of
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The Certificates of Indebtedness described in the next paragraph also support this element.
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Indebtedness to its Motion for Summary Judgment. (See Exs. B, D, & F, Mot. for Summ J.,
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ECF No. 14.) Defendant does not oppose any of these Certificates or the facts they contain, and
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each Certificate is certified as true and correct under penalty of perjury by a loan analyst for the
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United States Department of Education. The first Certificate (Ex. B) establishes that the “right
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and title” to the two loans initially owned by Great Western Savings were assigned to the
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United States Department of Education. The second and third Certificates (Exs. D & F)
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establish the same thing with regard to the loans initially owned by City National Bank and
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First Independent Trust Company.
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element of its prima facie case.
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Accordingly, the Government has also satisfied the second
The Certificates likewise fulfill the third element of the Government’s claim, as they
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indicate that Defendant defaulted on all four of the relevant notes. Even more telling, however,
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is Plaintiff’s admission that “all four loans were placed in default by their respective lending
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institutions . . . .” (Resp. 2:2-3, ECF No. 18.) Thus, the Government has met its burden of
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establishing that the “note is in default,” and its prima facie case is satisfied.
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B.
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Defendant’s first argument against the imposition of summary judgment is that
Defendant’s Arguments against Summary Judgment
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“Defendant did not cause the loans to be placed in default but was due to failure of Golden
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Gate University’s to do its duty to notify its lenders of student changes of address.” (Resp.
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2:10-13, ECF No. 18.) However, Defendant has provided no evidence in support of this
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argument; he only provides bare allegations that the default was somehow Golden Gate
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University’s fault for failing to notify its lenders of his change of address. He simply claims he
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sued Golden Gate in 1986 and the settlement resulted in the forgiveness of tuition he owed, his
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reinstatement as a student and a monetary credit towards future tuition. Because conclusory
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allegations without evidentiary support are insufficient to defeat summary judgment, see
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Taylor, 880 F.2d at 1045, this argument necessarily fails.
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Defendant’s second argument is that “there are genuine issues concerning amounts of
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damages, specifically the penalties and interest.” (Resp. 6:11-12, ECF No. 18.) However,
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Defendant does not explain what these genuine issues are, nor does he provide any evidence to
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show that a genuine issue of material fact actually exists. Defendant merely claims that a
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dispute exists as the amount of damages without articulating what that dispute is. Such a
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conclusory argument cannot defeat summary judgment, particularly when, as here, the
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Government has provided documentary evidence demonstrating the exact amounts owed by
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Defendant with respect to the promissory notes (see Exs. B, D, & F, Mot. for Summ J., ECF
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No. 14), and has produced copies of the promissory notes themselves, which list the relevant
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interest rates and the initial principal owed, (see Exs. A, C, & E, Mot. for Summ J., ECF No.
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14).
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Finally, Defendant claims he should be entitled to additional discovery, though he does
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not articulate what he hopes to uncover during the course of that discovery. (See Resp. 5:1-16,
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ECF No. 18.) However, if there has been insufficient discovery conducted in this case, the
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fault lies with Defendant himself. Although Magistrate Judge Peggy A. Leen scheduled a
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hearing with regard to Defendant’s Motion to Extend Time to Submit a Discovery Plan and
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Scheduling Order (ECF No. 6), Defendant failed to appear. (See Minutes ECF No.8). Three
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days later, Defendant filed a Motion for Reconsideration and Magistrate Judge Leen again
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scheduled a hearing; however, Defendant failed to appear at this hearing as well. (See Minutes
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ECF No. 20). Defendant cannot make generalized statements about needing more discovery
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while at the same time needlessly delaying the discovery proceedings.
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Because the Government has established its prima facie case and Defendant has failed to
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make a persuasive argument in opposition to the Government’s Motion, the Motion for
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Summary Judgment (ECF No. 14) will be granted.
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CONCLUSION
IT IS HEREBY ORDERED that the Government’s Motion for Summary Judgment
(ECF No. 14) is GRANTED.
DATED this 4th day of August, 2011.
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Gloria M. Navarro
United States District Judge
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