TECNIMONT SPA V. HOLTEC CORPORATION

Filing 23

OPINION. Signed by Judge Jerome B. Simandle on 8/13/2018. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

TECNIMONT S.P.A.,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action No.
1:17-5167 (JBS/KMW)

v.
HOLTEC INTERNATIONAL,

OPINION
Defendant.

APPEARANCES:
Gabriel Hertzberg, Esq.
CURTIS MALLET-PREVOST COLT & MOSIE LLP
101 Park Avenue
New York, NY 10178
Attorney for Plaintiff
Adam Lurie, Esq.
LINKLATERS LLP
601 Thirteenth Street NW
Suite 400 South
Washington, DC 20005
Attorney for Defendant

SIMANDLE, District Judge:

I.

Introduction
This case involves a business dispute between Plaintiff, an

engineering, procurement, and commissioning contractor, and
Defendant, a manufacturer of (inter alia) steam condensers. The
parties entered into a contract for the purchase by Plaintiff of
steam condensers manufactured by Defendant. After certain
business disputes, described in more detail infra, Plaintiff

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filed the instant suit, alleging defamation by Defendant to
Plaintiff’s client and business partners.
Presently before the Court is Defendant’s Motion to Dismiss
[Docket Item 12]. The principal issue to be decided is whether
the arbitration clause contained in the contract between the
parties mandates the dismissal of this suit and a referral to
arbitration in its stead. For the reasons described herein, the
Court concludes that it does, and will grant Defendant’s Motion
to as it relates to the Arbitration Clause, and will stay the
case pending arbitration.

II.

Background1

Plaintiff Tecnimont S.p.A. is an engineering, procurement
and commissioning contractor, based in Milan, Italy, that
engaged in work on a project to build a large thermoelectric
power plant in Punta Catalina, Dominican Republic (the “Power
Plant”). [Docket Item 1 at 2.] Plaintiff’s client and the owner
of the Power Plant is Corporación Dominicana de Empresas
Eléctricas Estales [“CDEEE”). Id. at 5. On April 14, 2014,
CDEEE, Plaintiff, and Plaintiff’s business partners,
Constructora Norberto Odebrecht and Ingenieria Estrella, S.R.L.

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For purposes of the pending motion, the Court accepts as true
the version of events set forth in the complaint, documents
explicitly relied upon in the complaint, and matters of public
record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
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(collectively the “Consortium”), executed an Engineering,
Procurement and Construction Contract (the “EPC Contract”) that
governs the design and construction of the Power Plant. Id.
Plaintiff estimates that the value of the EPC Contract is worth
hundreds of millions of dollars. Id. Pursuant to the EPC
Contract, Plaintiff is responsible for the design, construction,
and commissioning of two Steam Condensers for the Power Plant.
Id.
On October 29, 2014, Plaintiff placed an order (“Purchase
Order”)[Docket Item 12-2] with Defendant, Holtec International,
a manufacturer of heat transfer equipment, to purchase a pair of
steam condensers (“Condensers”) for the Power Plant. [Docket
Item 1 at 2.]
Under the Purchase Order, Defendant was to deliver the
first fully tested Condenser in October 2015 and the second in
December 2015. Id. However, Defendant did not manufacture the
Condensers. Instead, Defendant subcontracted the manufacture of
the Condensers to Godrej, a firm located in Mumbai, India. Id.
Godrej had never manufactured the steam condenser of the type
required for the Power Plant, so Defendant was supposed to
provide qualified, skilled personnel from the United States to
supervise and assist Godrej during the manufacturing process.
Id. Plaintiff asserts that delivery of the Condensers was
significantly delayed due to problems with Defendant’s supply

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chain and gross incompetence in connection with its
subcontracting to Godrej. Id. at 6. Plaintiff alleges that as a
result of Defendant’s gross incompetence, the first Condenser
was not delivered until October 2016 – a year behind schedule.
Id. Defendant tendered the second Condenser on November 2016.
Id.
Defendant asserts that the delay in tendering of the
Condensers was due to a “Change Order.” The Purchase Order is
governed by the General Purchase Conditions (“GPC”). [Docket
Item 12-2 at 38.] Article 5.1 of the GPC confers the right on
the Respondent (Plaintiff Tecnimont S.p.A.) to request the
Claimant (Defendant Holtec International) implement changes with
respect to any goods and/or works supplied under the Purchase
Order. Article 5.2 of the GPC provides that in the event of such
a change, an equitable adjustment to the relevant price and/or
time of performance mutually satisfactory to both Parties shall
be discussed and negotiated by the Parties. Article 5.2 of the
GPC requires the Respondent Tecnimont S.p.A. to make any such
change request in the form of a “Change Order.” [Docket Item 122 at 8.]
Defendant asserts that on May 2015, Plaintiff requested an
alteration of the design provided for under the Purchase Order.
Id. Defendant states that Defendant notified Plaintiff that the
request changes would jeopardize the agreed performance schedule

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and that Plaintiff failed to submit a Change Order as required
by Article 5.3 of the GPC. Id. Defendant argues that Plaintiff
“attempted to shift responsibility for the delays” on to
Defendant by asserting that Defendant’s management of the
manufacturing process at Godrej was inadequate. Id. As a result
of the dispute, Defendant alleges, Plaintiff has failed to
comply with its obligations to settle four invoices issued by
Defendant pursuant to the Purchase Order. Id.
Article 33.1 of the GPC states that “Any dispute between
the PARTIES in connection with or arising out of the PURCHASE
ORDER which cannot be settled amicably shall be finally settled
by means of the proceeding specified in the SPECIAL PURCHASE
CONDITIONS[.]” [Docket Item 12-2 at 63.] Article 32 of the GPC
states that “The PURCHASE ORDER shall be governed by and
construed in accordance with the Laws of the Country specified
in the [Special Purchase Conditions (‘SPC’)].” Id. Article 32 of
the SPC states that the Purchase Order shall be governed by the
Law of England and Wales. [Docket Item 12-2 at 76.]
Article 33.1 (the “Arbitration Clause”) of the SPC provides
as follows:
Any question, dispute, or difference arising from or
connected with the PURCHASE ORDER which cannot be
settled in accordance amicable shall be finally
settled by means of Arbitration in London.
Id. (emphasis in original).

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On October 11, 2016, the parties made an Amendment
Agreement. Id. at 126. Within that agreement, Article 8 of
Amendment No. 3 (“Claim Waiver”) provides in pertinent part:
“With the exception of the remaining payment obligations of TCM
and the remaining performance obligations of Holtec under the
Purchase Order, the Parties hereby acknowledge and agree to
release the other party from any and all claims, counterclaims,
demands, rights or causes of action of any kind . . . ” Id. at
128.
On January 12, 2017, Defendant sent a letter to CDEEE,
Plaintiff’s client. The letter was circulated to the Consortium.
Id. The letter generally characterizes Plaintiff as difficult to
work with and specifically refers to a “myriad of non-payment,
contract amendment and change order issues” associated with
working with Plaintiff on the delivery of the Steam Condensers.
[Docket Item 1-1 at 2.]
Upon receipt of the letter, various members of the
Consortium have advised Plaintiff to resolve the situation with
Defendant. [Docket Item 1-2; 1-3; 1-4.]
In response to the letter, Plaintiff filed a Complaint and
Demand for Jury Trial on July 14, 2017. [Docket Item 1 at 1.]2 In

2

Defendant alleges that the Complaint in this matter was
actually filed as “part of a groundless scheme by [Plaintiff] to
avoid its contractual obligations to [Defendant], and to
retaliate against [Defendant’s] efforts to require [Plaintiff]
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connection with the letter Defendant sent to CDEEE, the
complaint alleges tortious interference with contract, existing
economic advantage, and prospective economic advantage; and
defamation. Id. at 10-15. Specifically, Plaintiff asserts that
it will have to expend time, money, and resources on an
investigation and additional testing of the Condensers required
by CDEEE in light of the letter. Id. at 8. Plaintiff also
asserts damage to its reputation and its business relations with
the Consortium. Id.
In response to the Complaint, Defendant submitted a Notice
of Motion to stay the case in favor of arbitration (and to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6)). [Docket Item 12.]
This Motion is presently before the Court.
In its Brief in support of the Motion, Defendant argues
that Plaintiff’s complaint should be stayed in favor of
arbitration; in the alternative, it argues that the complaint
should be dismissed for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6). Id. at 15. Defendant also argues that
Defendant’s communications with CDEEE are privileged and thus,

to honor such obligations. Indeed, [Plaintiff] files the
Complaint only two days after [Defendant] appropriately
initiated arbitration in London against [Plaintiff] for, among
other things, failure to pay [Defendant] as the parties’
contract requires.” [Docket Item 12-1 at 7.]
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not defamatory under New Jersey’s qualified interest privilege.
Id. at 24.
In response [Docket Item 14], Plaintiff asserts primarily
that the alleged defamatory statements fall outside the scope of
the arbitration agreement. Id. at 12. Plaintiff also argues that
the Claim Waiver and Arbitration Clause cited by Defendant are
invalid due to the agreements being signed under economic
duress. Plaintiff also argues that the Court should not consider
Defendant’s supplemental exhibit (the Declaration of English Law
(“Carroll Declaration” [Docket Item 12-3]) offered by
Defendant’s counsel, Ben Carroll). Id. at 23. Plaintiff also
argues that the application of the New Jersey Common Interest
Privilege to this matter is inappropriate. [Docket Item 14 at
25.]
Defendant’s Reply [Docket Item 15] argues that the claims
asserted in the complaint are properly subject to arbitration
per the Arbitration Clause’s broad scope, that the Court should
consider the Declaration, and that the common interest privilege
should apply. Id. at 8, 12, 16.

III. Standard of Review
In the Third Circuit, when a party moves to compel
arbitration based on the terms of an agreement, courts apply a
two-tier standard of review. See Guidotti v. Legal Helpers, 716

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F.3d 764 (3d Cir. 2013). Where it is apparent on the face of the
complaint, or in documents relied upon in the complaint, that
the claims at issue in the case are subject to arbitration, the
case is considered under a motion to dismiss standard, Fed. R.
Civ. P. 12(b)(6). Id. at 774-76. However, where the complaint
does not establish on its face that the parties have agreed to
arbitrate, or where the party opposing arbitration has come
forward with reliable evidence that it did not intend to be
bound by an arbitration agreement, then the parties are entitled
to limited discovery on the question of arbitrability before a
renewed motion to compel arbitration is decided on a summary
judgment standard. Id.
When considering a motion to dismiss a complaint for
failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the non-moving
party. A motion to dismiss may be granted only if the plaintiff
has failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require "detailed factual allegations,"
it requires "more than an unadorned, the-defendant-unlawfullyharmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).

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IV.

Analysis
A. Scope of Arbitration Clause

Defendant seeks to stay the case and compel arbitration.
Neither party disputes their entry into a valid and enforceable
arbitration agreement. However, Plaintiff asserts that its
claims herein of Defendant’s alleged defamation and tortious
interference with Plaintiff’s business relationships are not
covered under the scope of the arbitration agreement.
Under the Federal Arbitration Act (“FAA”) 9 U.S.C. §§ 1 et
seq., courts are required to stay any action subject to a valid
arbitration agreement and order arbitration. The Supreme Court
has held that the FAA reflects "the national policy favoring
arbitration agreements." Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 443 (2006).
This court applies a two-step test in determining whether
an arbitration clause is applicable: (1) whether a valid
arbitration clause exists; and (2) whether the particular
dispute falls within the scope of the arbitration
agreement. Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529,
532 (3d Cir. 2005). The Trippe court cited AT&T Technologies,
Inc. v. Communications Workers of America, 475 U.S. 643, 650,
(1986) in stating that “when determining both the existence and
the scope of an arbitration agreement, there is a presumption in

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favor of arbitrability.” “A court cannot force a litigant to
submit to arbitration any dispute which he has not agreed so to
submit.” Id. at 648. Furthermore, if the claims asserted fall
outside the arbitration agreement, they are not subject to
arbitration. Painewebber, Inc. v. Hofmann, 984 F.2d 1372, 1377
(3d Cir. 1993).
Here, there is no dispute as to the existence of an
arbitration agreement set forth in Article 33.1 of the parties’
SPC, as evidenced by both parties being signatories to it and
neither party raising any disputes over the existence of the
agreement. The most pressing question in consideration of
Defendant’s motion to dismiss is the second Trippe factor,
whether the particular disputes (defamation and tortious
interference with business relations) fall within the scope of
the arbitration agreement.
The parties’ arbitration clause is set forth in broad
language, as noted above, stating that “[a]ny question, dispute
or difference arising from or connected with the PURCHASE ORDER
which cannot be settled in accordance amicably shall be finally
settled by means of Arbitration in London.” [Docket Item 12-A,
at 2 (emphasis in original).]
The Third Circuit has repeatedly given broad construction
to phrases such as “arising under” and “arising out of.”
Battaglia v. McKendry, 233 F.3d 720, 727 (3d Cir. 2000).

11

This broad construction applies because “the federal policy in
favor of arbitration is ‘particularly applicable’ where
the arbitration clause at issue is broad.” Id. at
725. Considering the strong federal policy favoring arbitration,
provisions such as the present one must be "generously
construed" in favor of coverage. Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985); AT&T,
475 U.S. at 650 ("Doubts should be resolved in favor of
coverage").
Despite this, Plaintiff still argues that its claims for
defamation and tortious interference do not fall within the
scope of the parties’ agreement. [Docket Item 14 at 12.]
Plaintiff argues, in substance, that the arbitration agreement
was between Plaintiff and Defendant in connection with the
purchase order for steam condensers; because its claims are
based on Defendant’s “defamatory, and extra-contractual”
statements made by Defendant to Plaintiff’s clients after the
delivery of the condensers, the claims do not fall within the
scope of the arbitration agreement. Id. at 15. Plaintiff goes on
to argue that its claims “are not related to work [Defendant]
performed under the contract” and that Plaintiff “did not, and
would not have, agreed to arbitrate claims that arise after the
Condensers were delivered and that do not relate to the
contract.” Id.

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Plaintiff does not, however, engage directly with the broad
language of the arbitration clause, which by its explicit terms
applies to all disputes “arising from or connected with” the
purchase order.
The crux of Plaintiff’s argument is that its claims are
based on extra-contractual statements made by Defendant to a
third-party (Plaintiff’s client and business partners) that is
not party to the contract at issue. Plaintiff asserts that the
line of cases cited in support of arbitration such as Buckeye,
Trippe, Battaglia, and Mitsubishi, all concerned relatively
standard disputes concerning arbitration agreements. That is,
the disputes were between two signatories of an arbitration
agreement about the construction, scope, or performance of the
agreement. Those specific cases did not discuss the application
of arbitration agreements to extra and/or post-contractual
communications involving parties that are not party to the
arbitration agreement or the transaction that the agreement is
meant to cover. Nevertheless, this factual situation is not a
novel one.
This circuit has contemplated arbitration disputes similar
to the present one. In Wood v. Prudential Ins. Co. of Am., 207
F.3d 674 (3d Cir. 2000), the plaintiff sued his former employer
for discrimination. The plaintiff was party to a valid
arbitration agreement but sought to bring a claim of defamation

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in relation to the defendant’s forwarding of plaintiff’s
termination letter to the New Jersey Department of Insurance
after the termination of his employment. Id. at 681. In
affirming the District Court’s decision to compel arbitration
and in recognition of the broad construction given to the
arbitration agreement’s use of the phrase “arising under,” the
Wood court held that because “the alleged defamation was a
description of Wood's activities while employed at Prudential
and was contained in Wood's termination letter, we hold that the
claim of defamation arose out of his employment and its
termination. Thus, Wood's defamation claim is arbitrable.” Id.
(emphasis added). Similarly to Wood, the arbitration agreement
here is broad and the question of its scope before the court
concerns claims arising from communications with third parties.
The defamation alleged in Wood is comparably connected to the
relationship of the parties covered by the arbitration
agreement. In Wood, as in the present case, the defendant’s
communication to a third party concerned defendant’s version of
plaintiff’s performance under their contractual relationship.
Moreover, the scope of the arbitration clause in the present
case is broader, covering disputes not only “arising from” but
also “connected with” the underlying agreement. A claim
“connected with” the contract need not “arise from” the
contract. One cannot escape the conclusion that claims for

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defamation and tortious interference with contract, economic
advantage, and prospective economic advantage based upon
defendant’s assessment of plaintiff’s performance in their
Purchase Order relationship are connected with or arise from
that relationship, and are therefore arbitrable.
Leadertex v. Morganton Dyeing & Finishing Corp., 67 F.3d 20
(2d Cir. 1995), the only case Plaintiff cites in favor of its
proposed narrow construction of the Arbitration Clause [Docket
Item 14 at 14-18], may provide further guidance on the issue.
Similar to the present case, the parties in Leadertex entered
into a series of sales contracts which contained arbitration
clauses which provided “any controversy or claim arising under
or in relation to” the contract would be subject to arbitration.
67 F.3d at 23. After a dispute between the parties arose
concerning defective goods, Leadertex raised a defamation claim
based on slanderous statements Morganton allegedly made to a
Leadertex customer. Id. Specifically, Morganton stated that
Leadertex was: (1) generally dishonest in its business
practices, (2) incapable of supplying conforming goods to
manufacturers, (3) in the practice of selling defective goods to
manufacturers, and (4) guilty of attempting to defraud the
customer by shipping it defective goods. Id. at 28. In holding
that the defamation claim was beyond the scope of the
arbitration agreement, the court found the defamatory statements

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to be “subjects other than Morganton’s services for Leadertex.”
Id. at 29. Again, that contrasts to the present case in which
Holtec’s comments directly concerned Tecnimont’s performance of
the underlying contracts.
Sharma v. Oriol, No. 05 Civ. 2727(SAS), 2005 WL 1844710,
*1-5 (S.D.N.Y. Aug. 2, 2005) added further insight into the
reasoning of Leadertex. Sharma (the CEO of his company, TTA)
misrepresented TTA’s profits, thus making the sale of TTA to
Oriol fraudulent. Id. at *1. At a meeting Oriol made various
allegedly defamatory statements in connection with Sharma’s
fraudulent sale of TTA. Id. at *1-2. The purchase agreement that
Sharma and Oriol entered into was subject to an arbitration
agreement that Oriol sought to enforce with regards to Sharma’s
defamation claim. In distinguishing the case from Leadertex, the
Sharma court noted that “the alleged defamation addressed
Leadertex's general qualities rather than the specific
relationship between Leadertex and Morganton.” Id. at *4. In
contrast, the defamatory statements alleged in Sharma
refer[red] either explicitly or implicitly to the sale
of TTA LLC by Sharma and TTA Inc. to defendants
Patentes Talgo and Talgo America. To varying degrees
of specificity, each statement asserts that Sharma
behaved fraudulently in connection with the sale.
Nothing in the statements extends beyond the way in
which the sale was entered into. The statements thus
concern a core issue of the contractual relationship
between the parties -- specifically, the fairness of
the purchase price of TTA LLC. Accordingly,
plaintiffs' claim is arbitrable.

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Id. at *5 (emphasis added; citations omitted).
Here, the nature of the extra-contractual communications
between Defendant and Plaintiff’s client is very similar to the
notice of the alleged defamatory statements made in Sharma.
Defendant’s letter to CDEEE concerns a core issue of the
contractual relationship between Plaintiff and Defendant –
specifically the delay in the delivery of the steam condensers
contracted for in the Purchase Order. [Docket Item 1-1.] Unlike
Leadertex, which Plaintiff relies on, Defendant’s statements
were not related to Plaintiff’s character, but to the parties’
contractual obligations. In Defendant’s letter to CDEEE,
Defendant expressly referred to their “interaction with
Tecnimont on the supply of the plant’s Surface Condenser, and
associated myriad of non-payment, contract amendment and change
order issues.” [Docket Item 1-1 at 2.]
Here, it is abundantly clear that the present dispute
“arises under” the Purchase Order. In fact, Defendant Holtec’s
letter to CDEEE precisely addresses disagreements concerning the
Purchase Order, namely, “non-payment” and contractual
amendments. That Holtec addressed its comments to CDEEE (the
owner of the power plant) and not to the world at large further
demonstrates that this defamation dispute is one “connected

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with” the agreement to provide the generators to CDEEE’s power
plant.
In observance of the strong federal policy in favor of
arbitration and in consideration of the comparable disputes
concerning arbitration in Leadertex and Sharma, this court will
grant Defendant’s motion to stay this matter pending
arbitration, as the Court finds the parties agreed to
arbitration pursuant to a broad arbitration clause that covers
the claims at issue here.
B. Duress
As an alternative ground for its motion to dismiss,
Defendant cites the Claim Waiver signed by the parties in
October of 2016 and submits that, on the basis of such
waiver, the Court should dismiss this action. [Docket Item
12-1 at 23-24.] While the Court does not reach this
argument, finding that the Arbitration Clause applies to
this dispute, the Court briefly notes that Plaintiff argues
in a footnote that it would “demonstrate that Holtec
compelled Tecnimont under duress to agree to this amendment
[i.e., the Claim Waiver] by threatening to withhold
delivery of the Condensers, which would have exposed
Tecnimont to substantial damages under the CDEEE contract.”
[Docket Item 14 at 25.]

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A party asserting economic duress bears a high evidentiary
burden. Under New Jersey Law,
"[a] party alleging economic distress must show that
he has been the victim of a wrongful or illegal act or
threat" that "deprived the victim of his unfettered
will." Continental Bank of Pennsylvania v. Barclay
Riding Academy, Inc., 93 N.J. 153, 175-76, cert.
denied, 464 U.S. 994 (1983)(citations omitted).In
determining whether economic distress has been shown
in a particular case, "the 'decisive factor' is the
wrongfulness of the pressure exerted." Id. at
177. However, 'where there is adequacy of
consideration, there is generally no
duress.’" Id. (citations omitted).
Campbell Soup Co. v. Desatnick, 58 F. Supp. 2d 477, 492 (D.N.J.
1999).
While Plaintiff argues that it would be inappropriate
to dismiss based on the Claim Waiver as it would seek to
submit extrinsic evidence to show duress, the Court notes
that Plaintiff does not allege that its initial agreement
to the Arbitration Clause (as opposed to the Claim Waiver)
was precipitated by economic duress.
Accordingly, the Court declines to deny the motion to
stay pending arbitration on these alternative grounds since
the duress claimed by Plaintiffs does not relate to the
formation of the Arbitration Clause. Whether an amendment
to the underlying contract is enforceable is, of course, a
matter for the arbitrator.
C. Other Arguments

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Defendant asserts several other arguments in support
of its Motion, arguing that the Complaint: must be
dismissed pursuant to the Claim Waiver [Docket Item 12-1 at
23-24]; is precluded by New Jersey’s common interest
qualified privilege, id. at 24-31; fails to adequately
plead defamation, id. at 31-33; and fails to adequately
plead tortious interference, id. at 33-36.
Plaintiff disputes all of these arguments, arguing
that: the argument premised on the Claim Waiver is
premature and not appropriate for disposition before
discovery has occurred [Docket Item 14 at 23-24]; the
“common interest privilege does not apply in this case[,]”
id. at 25-28; the Complaint adequately pleads defamation,
id. at 18-21, and tortious interference, id. at 21-23.
Again, because the Court rules that the Arbitration
Clause covers the claims pled in the Complaint, the Court
will stay the case pending arbitration, per the parties’
agreement, and does not reach or decide the above issues
raised in the briefing.3

3

As the Court does not rely on the Carroll Declaration or its
discussion of the law of England and Wales in order to resolve
this Motion, it need not further discuss, nor resolve, the
dispute between the parties about the appropriateness of the
Court’s consideration of the Carroll Declaration.
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V.

Conclusion
For the reasons described above, the Court will grant

Defendant’s Motion in favor of arbitration. The accompanying
Order will be entered.

August 13, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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