Jablonski v. Special Counsel, Inc.
Filing
96
OPINION AND ORDER: re: 88 MOTION to Strike Document No. 77 Defendant's Amended Answer (correction of docket # 86)filed by Terri Jablonski. For the reasons set forth above, Plaintiff's motion to strike is GRANTED in part and DENIED in part. Additionally, Plaintiff's motion for sanctions is DENIED and Defendant is GRANTED leave to amend its Amended Answer. Defendant shall file a Second Amended Answer on or before May 8, 2020. SO ORDERED., Special Counsel, Inc. answer due 5/8/2020. (Signed by Judge Andrew L. Carter, Jr on 3/25/2020) (ama)
3/25/2020
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TERRI JABLONSKI,
Plaintiff,
-against-
1:16-cv-05243 (ALC)
OPINION & ORDER
SPECIAL COUNSEL, INC.,
Defendant.
ANDREW L. CARTER, JR., District Judge:
Plaintiff Terri Jablonski brings suit against Special Counsel, Inc. alleging claims of
discrimination, retaliation, libel and breach of recordkeeping duties. See Third Am. Compl., ECF
No. 59. Before the Court is Plaintiff’s motion to strike all of Defendant’s affirmative defenses
and Defendant’s use of the term unintelligible throughout its Amended Answer. See Mot. Strike,
ECF No. 88. For the reasons set forth below, Plaintiff’s motion is GRANTED in part and
DENIED in part. Additionally, Plaintiff’s motion for sanctions is DENIED and Defendant is
GRANTED leave to amend its Amended Answer.
BACKGROUND
Beginning on August 2, 2013, Plaintiff, who at the time was 46 years old, applied via
various hiring websites to paralegal jobs available at the Defendant’s New York City, White
Plains and New Jersey locations. Third Am. Compl. ⁋ 49-59. Plaintiff alleges that individuals in
charge of paralegal recruiting at the Defendant failed to register her application or refer her to
clients. Id. ⁋ 70. On November 26, 2014, Plaintiff sent Defendant a letter requesting the names of
the individuals who were hired for the jobs she applied to and their respective ages. Id. ⁋ 71.
Plaintiff then alleges the Defendants entered the designation “NMQ” (not minimally qualified)
on her profile in attempt to punish her for sending the letter and prevent recruiters from hiring
her. Id. ⁋ 75.
On April 6, 2015, Plaintiff filed a citizenship discrimination charge before the U.S.
Office of the Chief Administrative Hearing Officer (“OCAHO”). Id. ⁋ 100. Plaintiff alleges
Defendant responded to the OCAHO charge on June 8, 2015, explaining Plaintiff did not want
an interview. Id. ⁋ 77. Following this response, Plaintiff alleges the Defendant for the first time
mentioned Plaintiff lacked minimum qualifications. Id. Then, on June 22, 2015, Plaintiff sent
Defendant a letter, indicating her intent to file a Complaint under Title VII and the ADEA with
the EEOC. Id. During this time, Plaintiff continued to apply to paralegal positions, applying for
three positions from April to July of 2015. Id. ⁋ 77, 80. The Defendant rejected Plaintiff from
said positions, which remained opened thereafter. Id. 81. Ultimately the positions were filled by
individuals who Plaintiff alleges were less qualified and 20 years younger. Id. ⁋ 82‒99.
Defendant includes the following eighteen defenses in its Amended Answer.
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FIRST DEFENSE: The Complaint fails to state a claim upon which relief may be
granted.
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SECOND DEFENSE: Plaintiff has failed to exhaust her administrative remedies for
some or all of her claims.
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THIRD DEFENSE: Plaintiff’s claims are barred by the doctrine of collateral estoppel.
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FOURTH DEFENSE: Plaintiff’s claims are barred by the doctrine of waiver.
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FIFTH DEFENSE: Some or all of Plaintiff’s claims are barred because any treatment of
Plaintiff was at all times based on factors other than any protected characteristic or
protected activity engaged in by Plaintiff.
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SIXTH DEFENSE: Some or all of Plaintiff’s claims are barred because any treatment of
Plaintiff was at all times based on reasonable, legitimate and non-discriminatory reasons
and these reasons cannot be shown to be pretext for discriminatory animus.
•
SEVENTH DEFENSE: At all relevant times, Special Counsel engaged in good faith
efforts to comply with the law.
•
EIGHTH DEFENSE: Some or all of the relief sought by Plaintiff is barred because
Special Counsel took no action with malice, bad faith or with willful or reckless
indifference or disregard for any protected rights of Plaintiff.
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NINTH DEFENSE: Plaintiff suffered no damages attributable to any actions by Special
Counsel.
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TENTH DEFENSE: Some or all of Plaintiff’s claims for damages are barred to the
extent Plaintiff has failed to mitigate her alleged damages, her entitlement to which is
expressly denied.
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ELEVENTH DEFENSE: Some or all of Plaintiff’s claims for damages should be denied
to the extent she received wages and other income during the relevant time period.
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TWELFTH DEFENSE: Plaintiff is not entitled to attorneys’ fees, costs or expenses.
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THIRTEENTH DEFENSE: Plaintiff’s claims are barred to the extent they were not set
forth in her administrative charge.
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FOURTEEN[TH] DEFENSE: Plaintiff’s claims are barred to the extent she failed to
file an EEOC charge within 300 days of the alleged discriminatory or retaliatory actions.
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FIFTEENTH DEFENSE: Plaintiff’s claims for damages or relief are barred as they are
speculative in nature.
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SIXTEENTH DEFENSE: All standards and criterion used by Special Counsel are job
related and consistent with business necessity.
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SEVENTEENTH DEFENSE: Plaintiff’s claims are barred to the extent that there is no
private right of action under the applicable statutes.
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EIGHTEENTH DEFENSE: Upon information and belief, in or about February 1999,
Plaintiff was difficult during the interview process for potential assignment and in
completing the paperwork required by a predecessor company to Defendant. Upon
information and belief, in or about February 1999, the predecessor company also received
a terrible reference as to Plaintiff’s work. Upon information and belief, on or about
February 23, 1999, as a result these issues, the recruiter at Defendant’s predecessor
company entered “NMQ (Not Minimally Qualified)” or an equivalent code as to
Plaintiff’s Availability Status section in her candidate profile. Plaintiff’s candidate profile
with the February 23, 1999 information was eventually incorporated into Defendant’s
system for tracking candidates. Accordingly, some or all of Plaintiff’s claims are time
barred by virtue of the applicable statutes of limitations.
Am. Answer at 11‒14.
STANDARD OF REVIEW
Rule 12(f) provides that a “court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
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In order to prevail on a motion to strike [an affirmative defense], a plaintiff must show
that: (1) there is no question of fact which might allow the defense to succeed; (2) there is
no question of law which might allow the defense to succeed; and (3) the plaintiff would
be prejudiced by inclusion of the defense.
GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 96 (2d Cir. 2019) (quoting S.E.C. v.
McCaskey, 56 F.Supp.2d 323, 326 (S.D.N.Y. 1999)). The Second Circuit has recently clarified
the first factor, holding “the plausibility standard of Twombly applies to determining the
sufficiency of all pleadings, including the pleading of an affirmative defense,” such that a party
must “support [its] defenses with some factual allegations to make them plausible.” Id. at 98‒99.
However, the Second Circuit recognized that “applying the plausibility standard to any pleading
is a ‘context-specific’ task.” Id. at 98 (citations omitted); see also State St. Glob. Advisors Tr. Co.
v. Visbal, No. 1:19-CV-01719-GHW, 2020 WL 71162, at *15–25 (S.D.N.Y. Jan. 3, 2020).
Accordingly, in determining whether to apply plausibility standard or a relaxed version courts
should consider both (1) the limited period of time a pleader of an affirmative defense has
relevant to the pleader of the complaint; and (2) the “nature of the affirmative defense,” i.e.
whether factual support is readily available. Id. at 98.
DISCUSSION
I.
Motion to Strike
As a preliminary matter, Plaintiff’s motion to strike is DENIED as to Defendant’s use of
the term “unintelligible.” Pursuant Rule 8(b)(5) “[a] party that lacks knowledge or information
sufficient to form a belief about the truth of an allegation must so state, and the statement has the
effect of a denial.” Fed. R. Civ. P. 8(b)(5).
a. Eighth and Seventeenth Affirmative Defenses
Although Plaintiff moves to strike all of Defendant’s affirmative defenses, Plaintiff’s
opening brief makes no arguments to support striking the eighth (bad faith) and seventeenth
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defenses (no private right of action); so, the Court need not consider Plaintiff’s motion as to
those claims. 1 See Haley v. Teachers Ins. & Annuity Assoc. of Am., 377 F. Supp. 3d 250, n. 12
(S.D.N.Y. 2019) (citing See Bertuglia v. City of New York, 839 F.Supp.2d 703, 737 (S.D.N.Y.
2012)) (“Because the application of this exemption to the § 406(a)(1)(B) claim was raised for the
first time in the reply brief, the Court does not consider it.”). Because the moving party bears the
burden on a motion to strike, see GEOMC, 918 F.3d at 96, and Plaintiff fails to raise any
arguments in support of striking the eight and seventeenth affirmative defenses in her opening
brief, Plaintiff’s motion to strike is DENIED as to the eighth and seventeenth affirmative
defenses.
b. The Second, Third, Fourth, Thirteenth, Fourteenth and Sixteenth
Affirmative Defenses
Defendant’s second (administrative exhaustion), third (collateral estoppel), fourth
(waiver), thirteenth (failure to include in administrative charge), fourteenth (failure to timely file
administrative complaint) and sixteenth (business necessity) affirmative defenses are subject to
the plausibility standard because they involve facts that should be known to the defendant. See
GEOMC Co., 918 F.3d at 98. However, Defendant fails to provide any factual support for the
aforementioned defenses; hence, Plaintiff satisfies the first factor. See Car-Freshner Corp. v.
Just Funky LLC, No. 519CV0289, 2019 WL 6270991, at *4‒*6 (N.D.N.Y. Nov. 25, 2019)
(finding Defendant had not plausibly pled equitable estoppel, waiver and good faith defenses
where the defendant did not provide any factual basis to support such defenses); see also Knight
MPIC Ventures, LLC v. Higginson, No. 18 CIV. 8126, 2020 WL 550654, at *7–8 (S.D.N.Y. Feb.
4, 2020) (granting a motion to strike affirmative defenses of waiver and estoppel where the
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Although the Eighth defense is listed in Plaintiff’s table of contents, Plaintiff does not make any arguments in the
body of her memorandum to support striking this defense.
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defendant did not provide any evidence to support such a defense). By extension, because these
defenses are factually insufficient, Plaintiff has demonstrated prejudice, satisfying the third
factor. See GEOMC Co., 918 F.3d at 98–99; see also Car-Freshner Corp., 2019 WL 6270991, at
*3‒*10 (finding prejudice resulted where Defendant’s defenses were not plausibly alleged).
Plaintiff additionally satisfies the second factor. The Second Circuit in GEOMC
confirmed, “the second factor identified in McCaskey needs no revision.” 918 F.3d at 98. As
such, “a motion to strike should not be used as an opportunity for the determination of disputed,
substantial questions of law.” E.E.O.C. v. Kelley Drye & Warren, LLP, No. 10 CIV. 655 LTS
MHD, 2011 WL 3163443, at *2 (S.D.N.Y. July 25, 2011) (quoting Salcer v. Envicon Equities
Corp., 744 F.2d 935, 939 (2d Cir.1984), vacated on other grounds, 471 U.S. 1098 (1986).
Here, Defendant’s affirmative defenses do not raise disputed, substantial questions of
law. See e.g., Washington v. New York City Dep't of Educ., 740 F. App’x 730, 732 (2d Cir. 2018)
(citations and internal quotation marks omitted) (“The doctrine of collateral estoppel bars relitigation of a legal or factual issue that was previously decided where: (1) the issues in both
proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually
decided, (3) there was [a] full and fair opportunity to litigate in the prior proceeding, and (4) the
issue previously litigated was necessary to support a valid and final judgment on the merits.”);
Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (citations and internal
quotation marks omitted) (“Exhaustion of administrative remedies through the EEOC is an
essential element of the Title VII ... statutory scheme[ ]; accordingly, it is a precondition to
bringing such claims in federal court.”); Lamberti v. Motorola Sols., Inc., 604 F. App’x 64, 65
(2d Cir. 2015) (citations and internal quotation marks omitted) (“Both Title VII and the ADEA
will permit enforcement of an employee’s waiver of statutory claims against his employer only if
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the waiver is knowing and voluntary.”); Farren v. Shaw Envtl., Inc., 510 F. App’x 44, 46 (2d Cir.
2013) (plaintiff’s “failure to raise the disparate-treatment claim in his administrative complaint
precludes our consideration of that claim here.”); Gulino v. New York State Educ. Dep’t, 460
F.3d 361, 382 (2d Cir. 2006) (citation and internal quotations omitted) (“the defendant may rebut
a plaintiff's prima facie showing by demonstrat[ing] that the challenged practice is job related for
the position in question and consistent with business necessity.”); McPherson v. New York City
Dep’t of Educ., 457 F.3d 211, 213 (2d Cir. 2006) (citations omitted) (“Under Title VII and the
ADEA, a plaintiff can sue in federal court only after filing timely charges with the EEOC.”).
Further, because Defendant fails to plausibly allege any factual support for these defenses, the
Court cannot determine if any of the elements needed to prove such defenses have been satisfied.
See GEOMC Co., 918 F.3d at 98 (“[A]n affirmative defense is improper and should be stricken if
it is a legally insufficient basis for precluding a plaintiff from prevailing on its claims.”).
Plaintiff’s motion is therefore GRANTED as to these defenses.
c. First, Fifth and Sixth Affirmative Defenses
Defendant’s first (failure to state a claim), fifth (treatment based on other factors) and
sixth (treatment based on reasonable, legitimate and non-discriminatory reasons) affirmative
defenses are subject to the plausibility standard. Similar to the section above, these defenses
involve factual information likely readily available to the Defendant. Although the language of
these defenses are, as Plaintiff points out, boilerplate, there is sufficient factual support elsewhere
in Defendant’s Amended Answer, such that these defenses are plausibly pled. For example,
Defendant indicates Plaintiff received a negative job reference and that Plaintiff’s profile
included the NMQ designation. Such factual allegations are sufficient to put Plaintiff on notice
of Defendant’s rationale for not hiring her. Additionally, should Defendant succeed in
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demonstrating that its failure to hire Plaintiff was based on reasonable, legitimate and nondiscriminatory reasons, Plaintiff’s discrimination and retaliation claims would fail. See
McDonnell Douglas Corp v. Green, 411 U.S. 792, 802‒04 (1973); see also Downey v. Adloox,
Inc., 789 F. App’x 903, 905 (2d Cir. 2019). Lastly, because the Court finds that the first, fifth and
sixth affirmative defenses are plausibly pled and would present legally valid defenses, Plaintiff
cannot demonstrate prejudice. As the Second Circuit explained in GEOMC Co. “[a] factually
sufficient and legally valid defense should always be allowed if timely filed even if it will
prejudice the plaintiff by expanding the scope of the litigation. A defendant with such a defense
is entitled to a full opportunity to assert it and have it adjudicated before a plaintiff may impose
liability.” 918 F.3d at 98 (citations omitted). Plaintiff’s motion to strike as to the first, fifth and
sixth defenses therefore is DENIED.
d. Tenth and Eleventh Affirmative Defenses
Defendant’s tenth (failure to mitigate) and eleventh (wages) affirmative defenses are
subject to a relaxed plausibility standard since the factual allegations necessary to support such
defenses are likely not readily available to Defendant. Accordingly, the fact that these defenses
appear to be conclusory is not fatal. Additionally, these defenses could succeed. Contrary to
Plaintiff’s position, failure to mitigate and reduction in damages due to wages defenses apply in
the context of failure to hire claims. See e.g., Halpert v. Manhattan Apartments, Inc., No. 04
CIV. 1850, 2011 WL 5928782, at *4 (S.D.N.Y. Nov. 29, 2011); see also United States v. City of
New York, 847 F. Supp. 2d 395, 426–27 (E.D.N.Y. 2012). Because these defenses are legally
valid, the Court finds Plaintiff fails to establish prejudice. Accordingly, Plaintiff’s motion to
strike the tenth and eleventh defense is DENIED.
e. Eighteenth Affirmative Defense
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Defendant’ eighteenth (statute of limitations) affirmative defense is subject to the
plausibility standard. As articulated in GEOMC, factual allegations necessary to support such
defenses are generally readily available to a defendant. 918 F.3d at 96. Additionally, there are no
substantial, disputed questions of law concerning the ADEA and Title VII’s statutes of
limitations such that Plaintiff satisfies the second element. “Plaintiffs asserting claims under Title
VII . . . [or] the ADEA . . . must first file a complaint with the Equal Employment Opportunity
Commission (EEOC) or an equivalent state agency within 300 days of the allegedly
discriminatory action.” Gindi v. New York City Dep’t of Educ., 786 F. App’x 280, 282 (2d Cir.
2019) (citations omitted). Further, within this Circuit, the statute of limitations accrues when a
plaintiff learns about the discriminatory conduct. See Zoulas v. New York City Dep’t of Educ.,
400 F. Supp. 3d 25, 49 (S.D.N.Y. 2019) (citations omitted) (“A claim of employment
discrimination under the ADEA accrues for statute of limitations purposes on the date the
employee learns of the employer’s discriminatory conduct”); Fitchett v. City of New York, No.
18 CIV. 8144, 2019 WL 3430726, at *6 (S.D.N.Y. July 30, 2019) (quoting Cornwell v.
Robinson, 23 F.3d 694, 703 (2d Cir. 1994)) (“Under Title VII, ‘a claim generally accrues once
the plaintiff knows or has reason to know of the injury which is the basis of his action,’ but the
continuing violation doctrine supplies an exception.”).
Here, Defendant supports its statute of limitations defense with numerous factual
allegations, indicating that the NMQ designation was entered in Plaintiff’s profile by its
predecessor on February 23, 1999. However, Defendant fails to allege whether Plaintiff had
access to such information and more importantly, when Plaintiff learned about this designation.
As such, Defendant’s state of limitations defense is not plausibly plead and Plaintiff satisfies the
first element. Because these defenses are not plausibly pled, and by extension legally
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insufficient, Plaintiff demonstrates sufficient prejudice, satisfying the third element. Plaintiff’s
motion to strike the eighteenth defense is therefore GRANTED.
f. Seventh, Ninth, Twelfth and Fifteenth Affirmative Defenses
Defendants seventh (good faith), ninth (damages causation), twelfth (attorneys’ fees) and
fifteenth (speculative damages) affirmative defenses appear to negate elements of Plaintiff’s
claims. The Court will thus treat these affirmative defenses as specific denials. See Sesto v.
Slaine, 171 F. Supp. 3d 194, 206 (S.D.N.Y. 2016) (“The affirmative defenses numbered 2, 20,
30, and 31 are converted to specific denials.”); Hudson Bay Master Fund Ltd. v. Patriot Nat’l,
Inc., No. 16 CIV. 2767, 2016 WL 6906583, at *8 (S.D.N.Y. Nov. 21, 2016) (citations omitted)
(“This Court, however, will not strike Defendants’ breach of contract defenses, but instead, treat
them as specific denials.”); see also Cent. New York Laborers’ Health v. JWJ Indus., Inc., No.
512CV1319, 2015 WL 12564221, at *15 (N.D.N.Y. Mar. 5, 2015) (citations omitted) (“These
defenses appear aimed at negating an element of plaintiffs’ claim of liability and their inclusion
is not prejudicial. . . . Thus, the Court cannot say there are no questions of fact or law that might
allow defendants to succeed. Accordingly, plaintiffs’ motion to strike the fifth, sixth and twelfth
affirmative defenses is denied.”). Plaintiff’s motion to strike is therefore DENIED as to
Defendant’s Seventh, Ninth, Twelfth and Fifteenth defenses.
II.
Sanctions
A party may be subject to sanctions under Rule 11 for making frivolous claims in a
pleading. Fed. R. Civ. P. 11(b) and (c). Rule 11(c) includes a safe harbor provision, which
provides a “motion for sanctions must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2); see
also Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170,
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175 (2d Cir. 2012) (citing Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 142 n. 4 (2d Cir.2002))
(“The safe-harbor provision is a strict procedural requirement.”). Here, because Plaintiff makes
her motion for sanctions as a part of her motion to strike, Plaintiff’s motion must be DENIED.
III.
Leave to Amend
Pursuant to Federal Rules of Civil Procedure 15(a)(1) a party may amend a pleading,
including an answer without leave of court up to 21 days after service. See Fed. R. Civ. P.
15(a)(1). After that time has expired, any amendment requires the consent of the opposing parties
or leave of court. See Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) states “the court should freely give
leave when justice so requires.” Id. “The Court may deny leave to amend for “good reason,”
which normally involves an analysis of the factors articulated in Foman v. Davis, 371 U.S. 178,
182 (1962): undue delay, bad faith, futility of amendment, or undue prejudice to the opposing
party.” Khodeir v. Sayyed, 323 F.R.D. 193, 197 (S.D.N.Y. 2017). Here, Plaintiff has not
sufficiently demonstrated undue delay, bad faith, futility or undue prejudice. Accordingly,
Defendant is GRANTED leave to amend its Amended Answer. Defendant shall file a Second
Amended Answer on or before May 8, 2020.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion to strike is GRANTED in part and
DENIED in part. Additionally, Plaintiff’s motion for sanctions is DENIED and Defendant is
GRANTED leave to amend its Amended Answer. Defendant shall file a Second Amended
Answer on or before May 8, 2020.
SO ORDERED
Dated:
March 25, 2020
New York, New York
____________________________________
ANDREW L. CARTER, JR.
United States District Judge
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