Aicher v. Ali et al

Filing 92

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Steven C. Yarbrough on 75 Plaintiff's Motion to Quash, 88 Defendant's Motion to Strike, 78 Plaintiff's Motion to Amend/Correct Complaint, 68 Defendant's Mot ion for Summary Judgment, 77 Plaintiff's Motion to Amend/Correct Complaint, 58 Plaintiff's Motion for Summary Judgment. Objections to R&R due by 3/23/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (hm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC AICHER,
Plaintiff,
v.

Civ. No. 2:15-00552 JB/SCY

ACCESS CORRECTIONS,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on (1) Plaintiff’s Motions for Leave to File
Amended Complaint (Docs. 77 and 78), filed November 9, 2017; (2) Plaintiff’s Motion to Quash
Defendant’s Motion for Summary Judgment (Doc. 75), filed November 9, 2017; (3) Defendant’s
Motion to Strike Plaintiff’s Unauthorized Surreply (Doc. 88), filed December 15, 2017; (4)
Plaintiff’s Motion for Summary Judgment (Doc. 58), filed August 23, 2017; and (5) Defendant’s
Martinez Report (Doc. 69) and accompanying Motion for Summary Judgment (Doc. 68), filed
October 30, 2017.
These motions all concern Plaintiff’s sole remaining claim in this lawsuit, which is a
claim under the New Mexico Unfair Practices Act (“NMUPA”), NMSA 1978, § 57-12-3 (1971).
United States District Judge James O. Browning referred this matter to me for entry of proposed
findings and a recommended disposition. Doc. 4. Having reviewed the submissions of the
parties, the record, and the relevant law, I recommend that the Court: (1) deny both of Plaintiff’s
Motions for Leave to File Amended Complaint (Docs. 77, 78); (2) deny Plaintiff’s Motion to
Quash (Doc. 75); and (3) grant Defendant’s Motion to Strike (Doc. 88). With regard to the
summary judgment motions, I recommend that the Court deny Plaintiff’s motion (Doc. 58) and
grant Defendant’s motion for summary judgment (Doc. 68). Specifically, I find that there are no
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genuine issues of material fact, and that Defendant is entitled to judgment as a matter of law on
the NMUPA claim. Accordingly, I recommend that Plaintiff’s complaint be dismissed with
prejudice.
I.

Plaintiff’s Motions for Leave to File Amended Complaint (Docs. 77, 78)
After the Martinez Report was submitted and the summary judgment motions were

briefed, Plaintiff filed two motions seeking leave to file an amended complaint. Docs. 77, 78.
Plaintiff did not submit a proposed amended complaint with his motions, as required by this
Court’s local rules of civil procedure. See D.N.M.LR-Civ. 15.1 (“A proposed amendment to a
pleading must accompany the motion to amend.”). Plaintiff’s pro se status does not excuse his
obligation to comply with the requirements of the federal and local rules of civil procedure. See
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (noting that although pro se pleadings are
construed liberally, pro se litigants “nevertheless must follow the same rules of procedure that
govern other litigants”). Although Defendant’s response (Doc. 81) alerted Plaintiff to the
requirements of Local Rule 15.1, Plaintiff has not remedied this error by filing a proposed
amended complaint. Plaintiff’s non-compliance with Local Rule 15.1 is a sufficient basis alone
to deny both motions to amend. See Lopez v. Roark, 637 F. App’x 520, 521 (10th Cir. 2016)
(unpublished) (affirming district court’s denial of motion to amend where plaintiff’s motion
failed to include a proposed amended complaint as required by Local Rule 15.1); see also
Segovia v. Rodriguez, 2017 WL 4480131, at *4 (D.N.M. Oct. 6, 2017) (Baldock, J.) (denying
plaintiff’s request to amend complaint due to her failure to comply with Local Rule 15.1).
Furthermore, even if I overlooked Plaintiff’s non-compliance with Local Rule 15.1, I still
recommend denying both motions to amend. Plaintiff’s first motion to amend seeks to add
statements that are already part of the record and which I have considered in deciding the

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summary judgment motions. See Doc. 77 at 2. Therefore, Plaintiff’s proposed amendments
would be futile. See Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997) (stating that
the trial court may deny leave to amend where the amendment would be futile). As for the
second motion to amend, Plaintiff failed to identify the particular amendments he seeks to make,
instead merely indicating that he was not aware “he had to list every point in his claim . . . as the
violations were obvious and [] the ‘NMUPA’ [] covers a wide range of areas that could be
violated.” See Doc. 78 at 1. This explanation is inadequate to apprise the Court of the particular
grounds for the proposed amendments. See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181
F.3d 1180, 1186-87 (10th Cir. 1999) (stating that “a request for leave to amend must give
adequate notice to the district court and to the opposing party of the basis of the proposed
amendment”). As the Tenth Circuit has emphasized, district courts are not obligated to “engage
in independent research or read the minds of litigants to determine if information justifying an
amendment exists.” Id. at 1187 (internal citation omitted).
Based on the foregoing, I recommend denying both of Plaintiff’s motions to amend
(Docs. 77 and 78).
II.

Plaintiff’s Motion to Quash Defendant’s Motion for Summary Judgment (Doc. 75)
In full compliance with the deadlines set forth in the Court’s Order for a Martinez Report,

Defendant filed the Report and its summary judgment motion electronically on October 30,
2017. See Docs. 68 and 69. Defendant indicated therein that it mailed these documents to
Plaintiff that same day. Doc. 68 at 10; Doc. 69 at 5. Plaintiff has moved to quash Defendant’s
summary judgment motion on the basis that he did not receive the motion until four days later,
November 3, 2017. Doc. 75. Plaintiff claims that this is a violation of the “three day rule.” Id.

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I find that Defendant complied with the deadline to serve its motion because Defendant
served the motion on Plaintiff on October 30, 2017, and the date a document is sent, rather than
the date a document is received, determines the date of service. See Fed. R. Civ. P. 5(b)(2)(C)
(“A paper is served under this rule by: . . . mailing it to the person’s last known address—in
which event service is complete upon mailing.”) (emphasis added). The “three day rule” Plaintiff
refers to applies after service by mail occurs and compensates for time lapses caused by mail
delivery delays. Specifically, under Fed. R. Civ. P. 6(d), Plaintiff’s response time to the motion
was extended by three days because Defendant served its motion by mail. See id. (“When a party
may or must act within a specified time after being served and service is made under Rule
5(b)(2)(C) (mail), . . . 3 days are added after the period would otherwise expire. . . ”).
Because I find that Defendant properly served its summary judgment motion, I
recommend denying Plaintiff’s motion to quash (Doc. 75).
III.

Defendant’s Motion to Strike (Doc. 88)
Defendant’s motion for summary judgment was fully briefed on November 28, 2017. See

Doc. 68 (Defendant’s summary judgment motion); Doc. 74 (Plaintiff’s response); Doc. 79
(Defendant’s reply brief); Doc. 82 (notice of completion of briefing). On December 11, 2017,
Plaintiff filed a “Response to Defendant’s Reply in support of its Motion for Summary
Judgment.” Doc. 84. Defendant seeks to strike this filing as an unauthorized surreply. Doc. 88.
I agree with Defendant that Plaintiff’s “Response” is actually a surreply, as Plaintiff filed
it after briefing was completed on Defendant’s summary judgment motion. This Court’s local
rules provide that the “filing of a surreply requires leave of the Court.” D.N.M.LR-Civ. 7.4(b).
Plaintiff did not seek leave to file a surreply in violation of this local rule. Further, Plaintiff failed
to identify any new arguments or evidence in Defendant’s reply brief that would have

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necessitated the filing of a surreply. I therefore recommend granting Defendant’s motion and
striking Plaintiff’s response (Doc. 84). See Ysais v. N.M. Judicial Standard Comm’n, 616 F.
Supp. 2d 1176, 1184 (D.N.M. Mar. 31, 2009) (Browning, J.) (indicating that the court may
“choose to strike a filing that is not allowed by local rule, such as a surreply filed without leave
of court” (citation omitted)).
IV.

Plaintiff’s Motion for Summary Judgment (Doc. 58) and Defendant’s Motion for
Summary Judgment (Doc. 68)
I now turn to address the merits of Plaintiff’s NMUPA claim. In addition to the Martinez

Report (Doc. 69) Defendant submitted, the parties have filed cross-motions for summary
judgment on the NMUPA claim. See Doc. 58 (Plaintiff’s motion), Doc. 68 (Defendant’s motion).
Both motions are now fully briefed and ready for ruling.
A. Applicable Legal Standards
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). There is no genuine dispute as to any material fact unless the evidence is such that
a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if there is sufficient evidence on each side
so that a rational trier of fact could resolve the issue either way,” and it is material “if under the
substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709
F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing a motion for
summary judgment, the Court views the evidence and all reasonable inferences therefrom in the
light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d 1151, 1156-57 (10th
Cir. 2013) (quotation omitted). Initially, the party seeking summary judgment has the burden of
showing that there is no genuine dispute as to any material fact. See Shapolia v. Los Alamos
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Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the
non-moving party must show that genuine issues remain for trial. Id.
I liberally construe Plaintiff’s filings because he is appearing pro se. Still, a pro se nonmovant must “identify specific facts that show the existence of a genuine issue of material fact.”
Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (internal quotation
marks omitted). Conclusory allegations are insufficient to establish an issue of fact that would
defeat the motion. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1180 (10th Cir. 2013).
For purposes of summary judgment, a prisoner’s pleading is treated as an affidavit if it alleges
specific facts based on the prisoner’s personal knowledge and has been sworn under penalty of
perjury. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991).
“When the pro se plaintiff is a prisoner, a court-authorized investigation and report by
prison officials (referred to as a Martinez report) is not only proper, but may be necessary to
develop a record sufficient to ascertain whether there are any factual or legal bases for the
prisoner’s claims.” Hall, 935 F.2d at 1109 (citing Martinez v. Aaron, 570 F.2d 317, 318-19 (10th
Cir. 1978) (per curiam); Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987) (per curiam)). The
Tenth Circuit has explained that when considering whether summary judgment is appropriate,
“[a] Martinez report is treated like an affidavit, and the court is not authorized to accept the
factual findings of the prison investigation when the plaintiff has presented conflicting
evidence.” Hall, 935 F.2d at 1111.

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B. Factual Background1
Plaintiff’s NMUPA claim stems from his purchase of an mp3 player, accessories, and
prepaid music in 2014 from Keefe Commissary Network, LLC d/b/a Access Corrections
(hereinafter Keefe or Access Corrections).2 Clark Aff. ¶¶ 4, 8, Sept. 6, 2017 (Doc. 61, Ex. A).
According to the affidavit of John Clark, Keefe’s manager of media services since 2011, Keefe
has a contract with the New Mexico Corrections Department (NMCD) to provide commissary
services at various prison facilities throughout New Mexico. Id. ¶¶ 2, 5.
When inmates special order items from Access Corrections’ sales catalogue, including
mp3 players, Mr. Clark states that the items are delivered to the prison facility to be “cleared”
and only after being cleared are they delivered to the inmate by prison officials. Id. ¶ 14(a-b).
According to Mr. Clark, Access Corrections “does not control the acceptance and distribution of
special order items received by the New Mexico Department of Corrections institutional
shipping and receiving department.” Id. ¶ 14(d). Thus, Mr. Clark states that once an item is
delivered, Access Corrections no longer has any “control over or access to the item.” Id. ¶ 14(c).
Plaintiff’s description of the processing of commissary purchases is aligned with the description

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In his summary judgment motion, Plaintiff generally asks the Court to “see Court records” for
evidence supporting his asserted facts, presumably in reference to the various documents he has
filed over the course of this lawsuit. However, it is not the court’s function to “scour the record
in search of evidence to defeat a motion for summary judgment.” See Hauff v. Petterson, 755 F.
Supp. 2d 1138, 1150 (D.N.M. July 22, 2010) (Kelly, J.) (citing Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996)). Thus, I have considered only those
documents that Plaintiff has specifically identified or that were included with his summary
judgment briefing. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to particular parts of materials in
the record. . . .” (emphasis added)).
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As the Court has noted in previous orders, Defendant indicates that it has been mistakenly
identified in Plaintiff’s complaint as Access Corrections. See Doc. 59. Its correct name is Keefe
Commissary Network, LLC d/b/a Access Corrections, a Missouri limited liability company. Id.
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Mr. Clark provided in his affidavit. In an interrogatory response filed in a state lawsuit
concerning the order at issue here, Plaintiff stated that:
All inmate mail/purchased property from an approved outside vendor is received
in the facility mail room signed for and logged in by mail room staff and then sent
onto the property officer to be logged under inmate’s name and prison I.D.
number, then after processed is distributed to the correct inmate showing proper
I.D. and signing for it as received.
Doc. 61, Ex. C.
At the time he placed his order, Plaintiff was an inmate housed at the Central New
Mexico Correctional Facility (CNMCF) in Los Lunas. Clark Aff. ¶ 6; see also Doc. 8 (purchase
order receipts). Mr. Clark represents that Access Corrections processed and shipped Plaintiff’s
order, including the mp3 player, to CNMCF on September 2, 2014 via FedEx. Clark Aff. ¶ 9. On
September 5, 2014, FedEx delivered Plaintiff’s order to CNMCF. Id. ¶ 10. Once there, a
CNMCF official named “A. Ali” signed for the package. Id. Mr. Clark claims that Access
Corrections has no record of the mp3 player being returned to Access Corrections after Access
Corrections delivered it to CNMCF. Id. ¶ 11. Further, he states that the mp3 player was
connected to the music warden kiosk at CNMCF on September 10, 2014, and several other dates
before it was deactivated on or about October 29, 2014. Id. ¶ 12. In its summary judgment
motion, Defendant also points to Plaintiff’s interrogatory response in the state lawsuit, wherein
Plaintiff acknowledged delivery of his order. See Doc. 61, Ex. C (Plaintiff stating that “[r]ecords
show property in question was signed for and received by mail room staff at the CNMCF, but no
records show that Plaintiff signed for nor received property in question.”).
In his summary judgment motion, Plaintiff asserts that he did not receive his order and he
provides the following timeline of events. Plaintiff states that he purchased the mp3 player,
accessories, and prepaid music on July 9, 2014. Doc. 58 at 1. He later purchased additional

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prepaid music on September 4, 2014. Id. at 2. Plaintiff made these purchases using his inmate
account at CNMCF. Id.; see also Doc. 8 (purchase order receipts). On September 11, 2014,
Plaintiff was transferred from CNMCF to Lea County Correctional Facility (LCCF). Doc. 58 at
2. Plaintiff states that prior to this transfer, a property officer at CNMCF informed him that
ordered items are forwarded to the inmate’s new facility if the items are delivered after the
inmate’s transfer. Id. After his transfer to LCCF, Plaintiff continued to purchase prepaid music.
Id. at 2-3. When months passed by without him receiving the mp3 player, Plaintiff contacted the
property officer at LCCF to locate his order. Id. at 3. Plaintiff represents that Defendant informed
the property officer that the mp3 player had been shipped. Id. When he still did not receive the
mp3 player, Plaintiff claims that a friend assisted him in trying to locate his ordered items and
that he later filed a grievance with the New Mexico Attorney General’s Office on February 4,
2015. Id. at 3-4. In response to the grievance, Defendant sent Plaintiff a letter on February 12,
2015 letter that stated, in relevant part:
We show that this order was processed on September 2nd, and shipped to Central
NM Correctional Facility with FedEx Tracking number 441374501550. The
player arrived at NM Correctional on September 5, 2014, and was signed for by
A. Ali at 1525 Morris Road, Los Lunas, NM 87031.
Access Corrections has no record of your player coming back from Central NM
Correctional after it was received. We show that the player was connected to the
music warden kiosk at Central NM on September 10th, and many, many times
after that, until the player was deactivated (remotely) on October 29th, 2014.
Access Corrections provides our customers (facilities) pre-addressed FedEx Call
Tags for use in sending product back to Access Corrections at our cost. We have
no record of your player being sent back to us, nor do we have any
correspondence from Central NM stating that they are sending the player back.
Id. at 9.
Plaintiff then sought the assistance of the commissary manager at LCCF and his case
manager to locate the mp3 player. Id. at 4. While Plaintiff refers generally to “court records” for
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evidence describing these efforts, he points in particular to an August 17, 2015 letter from Scott
Henderson, his classification officer at LCCF. Id. at 3, 4. Mr. Henderson stated therein that as of
the date of the letter, Plaintiff did not “have the mp3 player nor any songs that he purchased.”
Doc. 10. Mr. Henderson further indicated that he called Defendant five times regarding the mp3
player and was told they “will look into it and call him back”, but never did. Id. Mr. Henderson
also indicated that a phone operator for Defendant told him that Plaintiff “does not have any
claim [sic] his mp3 player was with him.” Id. Plaintiff also specifically references a June 27,
2016 letter that counsel for Defendant sent him after Plaintiff filed this lawsuit. Doc. 58 at 4; see
Doc. 29 at 4 (letter from defense counsel stating “we want you to know we are investigating
what happened to your MP3 player and music downloads.”).
A little over a year after this lawsuit was filed, the New Mexico Corrections Department
(NMCD) deposited $494.91 in Plaintiff’s inmate account; this amount corresponded to the cost
of the mp3 player, accessories, and prepaid music that Plaintiff ordered. Doc. 61, Ex. B. Plaintiff
subsequently dismissed his claims against NMCD officials as a result of a settlement he reached
with NMCD. See Docs. 44, 46.
C. Law Regarding NMUPA claims
The New Mexico Unfair Practices Act (“NMUPA”) makes unlawful “[u]nfair or
deceptive trade practices and unconscionable trade practices in the conduct of any trade or
commerce.” NMSA 1978, § 57-12-3 (1971). The NMUPA defines an “unfair or deceptive trade
practice” as
an act specifically declared unlawful pursuant to the Unfair Practices Act, a false
or misleading oral or written statement, visual description or other representation
of any kind knowingly made in connection with the sale, lease, rental or loan of
goods or services . . . by a person in the regular course of the person’s trade or
commerce, that may, tends to or does deceive or mislead any person.

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Section 57-12-2(D). In relevant part, the statute provides that an unfair or deceptive practice
includes “failing to deliver the quality or quantity of goods or services contracted for.” Section
57-12-2(D)(17).
New Mexico courts have found that there are three essential elements to a NMUPA
claim. See Hicks v. Eller, 2012-NMCA-061, ¶ 17, 280 P.3d 304. To prevail on a NMUPA claim,
a plaintiff must prove:
(1) the defendant made an oral or written statement, a visual description or a
representation of any kind that was either false or misleading; (2) the false or
misleading representation was knowingly made in connection with the sale, lease,
rental, or loan of goods or services in the regular course of the defendant’s
business; and (3) the representation was of the type that may, tends to, or does
deceive or mislead any person.
Id. (internal citation omitted); see Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶
17, 965 P.2d 332 (“The gravamen of an unfair trade practice is a misleading, false, or deceptive
statement made knowingly in connection with the sale of goods or services.”). “The ‘knowingly
made’ requirement is met if a party was actually aware that the statement was false or misleading
when made, or in the exercise of reasonable diligence should have been aware that the statement
was false or misleading.” Stevenson v. Louis Dreyfus Corp., 1991-NMSC-051, ¶ 17, 811 P.2d
1308.
D. Analysis
Plaintiff moves for summary judgment on his NMUPA claim based on the theory that
Defendant violated the NMUPA’s requirement to “deliver the quality or quantity of goods or
services contracted for” when Plaintiff did not receive his ordered items. See § 57-12-2(D)(17).
Plaintiff specifically argues that Defendant “made several false and misleading oral statements”
to himself and others “promising to deliver the property in question to [him] on several occasions
from approx[imately] December 2014 to June 27, 2016.” Doc. 58 at 4. Plaintiff further argues
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that Defendant misrepresented to Plaintiff that his property would be forthcoming even though it
knew as early as October 29, 2014 – the date that the mp3 player was remotely deactivated – that
someone “had apparently intercepted” Plaintiff’s order before it reached him. Id at 5. Defendant,
on the other hand, argues that it is entitled to summary judgment on the NMUPA claim because
the undisputed facts show that Plaintiff’s order was shipped and delivered to CNMCF. Doc. 68 at
1. Defendant contends that it fulfilled its obligations and that it made no misleading statements or
misrepresentations in connection with the sale and delivery of Plaintiff’s order. Id. Defendant
argues that Plaintiff has failed to proffer admissible evidence of any false or misleading
statements concerning the sale, shipment, or delivery of Plaintiff’s order to CNMCF. Id. at 7-8.
Upon review of the evidence proffered by the parties, I find that Plaintiff has failed to
provide any evidence that Defendant failed to deliver Plaintiff’s order. The undisputed evidence
shows that Plaintiff’s order was shipped on September 2, 2014 and delivered to CNMCF on
September 5, 2014, where prison staff signed for and accepted the delivery, and that the mp3
player was subsequently used at a CNMCF music kiosk multiple times until October 29, 2014.
Plaintiff acknowledges as much, but he nevertheless seeks to hold Defendant accountable under
the NMUPA for the fact that the order ultimately did not reach him after Defendant completed its
duty of delivering it to CNMCF. Whatever the reason may have been for Plaintiff not receiving
the order, Plaintiff has not presented any evidence indicating that Defendant is obligated to
ensure that an inmate actually receives the order once it is delivered to the facility and signed for
by prison staff. In other words, I find no evidence establishing that Defendant had a duty to
ensure that Plaintiff received the mp3 player beyond ensuring that his order was delivered to
CNMCF. Nor is there any evidence showing that Defendant had the ability to track or control
delivery of the mp3 player once it reached CNMCF.

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Because the undisputed evidence shows that the order was delivered to CNMCF, I
conclude that Plaintiff is not entitled to relief under the NMUPA on the grounds that Defendant
failed to deliver the items Plaintiff purchased. As for Plaintiff’s argument that Defendant violated
the NMUPA by making false or misleading statements to him, his friends, and prison staff in
connection with the order after it was delivered to CNMCF, I find that Plaintiff has failed to
present evidence showing that Defendant knowingly made any statements that were false or
misleading in nature. See Stevenson, 1991-NMSC-051, ¶¶ 11, 18 (trial court erred in instructing
jury to find party liable under the UPA for “fail[ing] to deliver the quantity of goods contracted
for” alone, without also requiring jury to find that the party had knowingly made any false or
misleading statement of any kind in connection with the transaction).
Based on the undisputed facts, I find that Defendant is entitled to judgment as a matter of
law on the NMUPA claim. Accordingly, I recommend denying Plaintiff’s motion for summary
judgment and granting Defendant’s motion for summary judgment on this claim.
V.

Conclusion
Based on the foregoing, I recommend that the Court:
(1) deny Plaintiff’s Motion to Amend Complaint (Doc. 77);
(2) deny Plaintiff’s Motion for Leave to File Amended Complaint (Doc. 78);
(3) deny Plaintiff’s Motion to Quash Defendant’s Motion for Summary Judgment (Doc.
75);
(4) grant Defendant’s Motion to Strike (Doc. 88);
(5) deny Plaintiff’s motion for summary judgment (Doc. 58);

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(6) grant Defendant’s motion for summary judgment (Doc. 68); and
(7) dismiss Plaintiff’s complaint with prejudice.

____________________________________
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day period
if that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.

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