Franklin v. Bison Recovery Group, Inc.

Filing 36

DECISION and ORDER dismissing 16 Motion for Summary Judgment; dismissing 22 Motion ; denying 28 Motion to Stay. Signed by Hon. Leslie G. Foschio on 9/1/2020. (SDW) (Copy of D&O mailed to Pro Se Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
RICKY R. FRANKLIN,
Plaintiff,
v.

ORDER

BISON RECOVERY GROUP, INC.
Defendant.
___________________________________
APPEARANCES:

DECISION
and

18-CV-161V(F)

RICKY R. FRANKLIN, Pro Se
708 Brambling Way
Stockbridge, Georgia 30281
LIPPES MATHIAS WEXLER FRIEDMAN LLP
Attorneys for Defendant
BRENDAN H. LITTLE,
TESSA RAE SCOTT, of Counsel
50 Fountain Plaza, Suite 1700
Buffalo, New York 14202

JURISDICTION
On November 12, 2019, Hon. Lawrence J. Vilardo referred this matter to the
undersigned for all pretrial matters (Dkt. 7). The case is presently before the court on
Plaintiff’s motion for summary judgment filed January 10, 2020 (Dkt. 16), Defendant’s
motion for discovery pending summary judgment pursuant to Fed.R.Civ.P. 56(d) filed
February 12, 2020 (Dkt. 22); and Plaintiff’s motion to stay discovery filed February 18,
2020 (Dkt. 28).

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BACKGROUND and FACTS 1
Plaintiff commenced this action by Complaint filed January 31, 2018 (Dkt. 1),
alleging Defendant’s violations of the Telephone Consumer Protection Act, 47 U.S.C. §
227(a) et seq. (“the TCPA”) by calling, without Plaintiff’ consent, Plaintiff’s cellular phone
placing using an automated telephone dialing system, 11 artificial prerecorded voice
messages regarding collection of a debt previously incurred by a person with whom
Plaintiff asserts Plaintiff is not familiar. The TCPA prohibits any non-emergency calls to
a cellular phone without the subscriber’s consent using an automated telephone dialing
system (“an ATD”) defined as equipment with the “capacity . . . to (a) store or produce
telephone numbers to be called, using a random or sequential number generator; and
(b) to dial such numbers.” 42 U.S.C. § 227(a)(1). Specifically, Plaintiff alleges that
despite informing Defendant during one call he had no connection with the debtor
identified by Defendant in the calls, and requested Defendant cease calling Plaintiff’s
cell phone, Defendant nevertheless called Plaintiff’s cell phone at least five or more
times regarding the debt. 2 At the Rule 16(b) conference conducted by the court with the
parties on January 7, 2020 (Dkt. 15), in accordance with Fed.R.Civ.P. 16(b) (“the Rule
16(b) conference”) the case was referred, pursuant to the court’s ADR Plan, to the
court’s ADR process; discovery was to conclude May 9, 2020, and dispositive motions

1

Taken from the papers and pleadings filed in the instant action.
The Complaint also includes allegations against World Finance, Inc. and Sterling Finance, Dkt. 1 ¶¶ 3132, however, these entities are not included in the caption of the Complaint and the docket does not
include any proof of service for them.

2

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were to be filed not later than July 31, 2020. Dkt. 15 ¶ 10. According to the docket, the
parties failed to select a mediator as required under the court’s Scheduling Order by
February 4, 2020 (Dkt. 15 ¶ 4), or otherwise comply with the Scheduling Order’s
requirements regarding the ADR Plan including that the initial mediation session be
conducted not later than March 31, 2020 (Dkt. 15 ¶ 5); to date, other than Plaintiff’s
motion for summary judgment, no dispositive motions have been timely filed by either
party nor has either party moved to compel discovery.
On January 6, 2020, prior to the Rule 16(b) conference, Defendant served on
Plaintiff Defendant’s First Set of Interrogatories (“Defendant’s Interrogatories”)
requesting, inter alia, “the factual basis that [Defendant] used artificial or prerecorded
voice to contact [Plaintiff], Int. No. 5, Dkt. 22-3 at 6, and that Plaintiff “identify [the]
factual basis that [Defendant] used an automated dialer system to contact [Plaintiff] on
the dates [Plaintiff alleges]. (Int. No. 7, Dkt. 22-3 at 7). Defendant also served at the
same time Defendant’s First Set of Requests for Production (Dkt. 22-2 at 9-15)
(“Defendant’s Document Requests”) including a request to Plaintiff for all documents
that Plaintiff asserts “demonstrate [Defendant] used artificial or prerecorded voice to
contact Plaintiff,” Dkt. 22-3 at 12 ¶ 7) (Request No. 7), and “all documents that
demonstrate [Defendant] used an automated dialer system to contact Plaintiff.” Dkt. 223 ¶ 8 (Request No. 8) (together, “Defendant’s Discovery Requests”).
As noted, on January 10, 2020, Plaintiff filed Plaintiff’s Motion for Summary
Judgment (Dkt. 16) (“Plaintiff’s Summary Judgment motion”). On February 12, 2020,
Defendant filed its motion pursuant to Fed.R.Civ.P. 56(d) (“Rule 56(d)”) requesting

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Plaintiff’s motion for summary judgment be denied or to defer action on such motion
until Defendant had obtained sufficient discovery from Plaintiff to enable Defendant to
oppose Plaintiff’s motion. Dkt. 22 (“Defendant’s Rule 56(d) Motion”). On February 14,
2020. Defendant filed Defendant’s Opposition to Plaintiff’s Summary Judgment Motion
(Dkt. 23) (“Defendant’s Opposition to Summary Judgment”). In support of Defendant’s
Rule 56(d) Motion and Defendant’s Opposition to Summary Judgment, Defendant
contends that Plaintiff’s motion is premature, having been filed three days after the Rule
16(b) Scheduling Conference and prior to Plaintiff serving responses to Defendant’s
Discovery Requests, Dkt. 22-1 at 2 (citing caselaw); Dkt. 23 at 1 (citing caselaw), and
should be denied until Defendant has obtained Plaintiff’s responses to Defendant’s
Discovery Requests. Id. Defendant also objected that Plaintiff had failed to provide a
copy of Plaintiff’s recorded telephone calls from Defendant including a conversation with
Defendant’s representative which recording Plaintiff has filed with the court in support of
Plaintiff’s summary judgment motion. Dkt. 22-1 at 2.
In response, Plaintiff filed at the same time, as noted, Plaintiff also filed Plaintiff’s
Motion to Stay Discovery Pending Ruling on His [Plaintiff’s] Summary Judgement
Motion [sic] (Dkt. 28) (“Plaintiff’s Motion to Stay Discovery”), on February 18, 2020,
Plaintiff’s Opposition to Defendant’s Rule 56(d) Motion (Dkt. 26) (“Plaintiff’s Opposition
to Defendant’s Rule 56(d) Motion” or “Plaintiff’s Opposition”), along with Plaintiff’s Reply
Brief to Defendant’s Opposition to Plaintiff’s for Summary Judgment (Dkt. 27) (“Plaintiff’s
Reply”). In Plaintiff’s Opposition, Plaintiff contends Defendant’s Rule 56(d) Motion and
Opposition to Plaintiff’s Motion for Summary Judgment is based on misrepresentations

4

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regarding the procedural facts of the litigation. Specifically, Plaintiff asserts Plaintiff
served, on February 10, 2020, Plaintiff’s responses to Defendant’s Discovery Requests,
including a copy of Plaintiff’s recording of Defendant’s automated prerecorded phone
calls, and that, as such, Plaintiff’s Summary Judgment motion was, contrary to
Defendant’s contentions, ripe for decision, there was then no issue of material facts,
Plaintiff “should win as a matter of law,” and, accordingly, Plaintiff’s Summary Judgment
motion should now be granted. Dkt. 26 at 2 (referencing Exh. B, Dkt. 26, at 14-15). In
support of Plaintiff’s Opposition, Plaintiff relies on Defendant’s statement during the
Rule 16(b) conference that Defendant presently lacked records upon which to
determine whether and how the alleged calls, including any use of prerecorded
messages and automatic telephone dialers, were made to Plaintiff by Defendant. Dkt.
27 at 2 (referencing Plaintiff’s Exh. A, Dkt. 27 at 7 Line 20; 8-9 Lines 25-2) suggesting
Defendant is unable to contradict Plaintiff’s allegations of such actions by Defendant in
violation of the TCPA. At the Rule 16(b) conference, Defendant also stated that to
succeed Plaintiff would nevertheless have the burden that to establish Defendant’s
liability under the TCPA, Defendant had in fact used an ATD to send automated
prerecorded messages to Plaintiff’s cell phone number as defined by the TCPA. Dkt. 27
at 8. In support of Plaintiff’s Motion to Stay Discovery, Plaintiff contends that a stay is
warranted as Defendant has conceded it lacks “any evidence” to establish issues of
material fact necessary to avoid summary judgment making further discovery by
Defendant irrelevant and unnecessary. Dkt. 28 at 3-4.

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On April 3, 2020, Defendant filed Defendant’s Reply In Further Support of Its
Motion to Deny Plaintiff’s Summary Judgment Motion, or in the Alternative, Defer
Consideration of the Motion (Dkt. 32 (“Defendant’s Reply”). In Defendant’s Reply,
Defendant contends that while Plaintiff’s responses to Defendant’s Discovery Requests
were, as Plaintiff stated, served by Plaintiff on February 12, 2020, the same date as
Defendant’s Rule 56(d) Motion was filed, Dkt. 32 at 2, such that Defendant had then
received Plaintiff’s responses as Plaintiff represents, nevertheless Plaintiff’s service of
Plaintiff’s discovery responses, which Defendant upon review determined were deficient
in several material respects, id., merely underscores Defendant’s basic contention that
when Plaintiff’s Summary Judgment motion was filed on January 10, 2020, Defendant
had not obtained any discovery from Plaintiff, Dkt. 32 at 2. Defendant also contends
that Defendant had no opportunity to depose Plaintiff as of February 10, 2020 when
Plaintiff served Plaintiff’s discovery responses. Id. Defendant therefore argues that
although discovery has, since Plaintiff’s Summary Judgment motion was filed, in fact
commenced, such discovery is not complete requiring the court to deny Plaintiff’s
Summary Judgment motion and grant Defendant’s Rule 56(d) motion to enable
Defendant to complete discovery including taking Plaintiff’s deposition. 3 Dkt. 32 at 2-3
(citing caselaw and referencing Dkt. 22-2) in which Defendant points to several disputed
issues of material facts including, for example, Plaintiff’s failure to provide evidence to
support Plaintiff’s allegation that Defendant’s alleged calls to Plaintiff were made using

3

Plaintiff’s deposition was renoticed for May 13, 2020 from March 25, 2020. Dkt. 32 at 5.

6

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an automated telephone dialer system, Dkt. 22-2 ¶ 5, an essential element of Plaintiff’s
TCPA claim. See also Dkt. 32-2 at 3 (referencing Plaintiff’s continued failure to respond
to Defendant’s Interrogatory No. 5 requesting Plaintiff identify the factual basis for
Plaintiff’s allegation that Defendant sent “artificial or prerecorded voice messages” to
Plaintiff’s cell phone and Defendant’s Interrogatory No. 7 requesting information from
Plaintiff as to the factual basis for Plaintiff’s allegation that Defendant used an ATD, as
defined by the TCPA, to call Plaintiff’s cell number. Plaintiff’s response to Defendant’s
Interrogatory No. 5 directed Defendant to Plaintiff’s Exh. F (Dkt. 17 at 35), a purported
recording of three of the calls at issue (see Dkt. 32-4 at 3), Plaintiff’s response to
Defendant’s Interrogatory No. 7 did not provide a direct answer, and instead referred
Defendant to certain tape recordings of Defendant’s calls and Plaintiff’s “call logs,”
which Defendant pointed out to Plaintiff were deficient, id., in that these documents and
the copy of the three recorded calls from Defendant, and Plaintiff’s responses failed to
indicate any factual basis for Plaintiff’s assertion that the messages were automated
and prerecorded or Defendant utilized an automatic dialer to place the calls at issue.
See Dkt. 32-2 at 3. In Plaintiff’s response to Defendant’s Interrogatory No. 7, Plaintiff
also asserted Defendant’s request sought irrelevant evidence, was unduly burdensome
and intended to harass Plaintiff. See Dkt. 32-4 at 3. Plaintiff further asserted that
Plaintiff had shown by reference to the recorded messages Defendant’s calls also used
“artificial voice messages” constituting an additional violation of the TCPA. Id.
(referencing 47 U.S.C. § 227(b)(1)(A)(iii)). In Plaintiff’s further response to Defendant’s
assertion that Interrogatory No. 7 sought highly relevant information and that Plaintiff’s

7

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answer thus remained deficient, Dkt. 32-4 at 4, on March 4, 2020, Plaintiff reiterated his
objection, without explanation, that Defendant’s Interrogatory No. 7 sought irrelevant
information. See Dkt. 32-8 at 2 ¶ 2.
As noted, by papers filed February 18, 2020, Plaintiff requested a stay of
discovery pending determination of Plaintiff’s Summary Judgment motion. Dkt. 28
(“Plaintiff’s Motion for a Stay of Discovery”). Specifically, Plaintiff in support of this
motion contends that because Defendant admitted on the record of the Rule 16(b)
conference, Dkt. 28 at 3-4, Defendant lacks evidence with which to dispute Plaintiff’s
allegations, Plaintiff’s Summary Judgment motion should be granted without burdening
Plaintiff with unnecessary discovery requests and incurring further delay in awarding
Plaintiff the damages required by the TCPA. According to Plaintiff, in these
circumstances, Defendant’s further requests for discovery would constitute
“burdensome harassment on the Plaintiff by continuing to request irrelevant information
that has no bearing on the Plaintiff’s summary judgment motion.” Dkt. 28 at 4. On
February 28, 2020, Defendant filed Defendant’s Opposition to Plaintiff’s Motion to Stay
Discovery (Dkt. 30) (“Defendant’s Opposition to Plaintiff’s Motion to Stay Discovery” or
“Defendant’s Opposition”). In Defendant’s Opposition, Defendant contends Plaintiff’s
Motion for a Stay of Discovery should be denied, as a stay would effectively deprive
Defendant of any meaningful opportunity to challenge the merits of Plaintiff’s Summary
Judgment motion. Id. at 1-3 (citing caselaw). Specifically, Defendant argues whether to
stay discovery pending consideration of a summary judgment motion is dependent on
several factors, including whether the pending dispositive motion is meritorious, the

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extent of pending discovery requests and the related burden of responding, and the
degree of unfair prejudice to the opposing party, here Defendant. Dkt. 30 at 2 (citing
Bethpage Water Dist. v. Northrop Grumman Corp., 2014 WL 6883529, at *2 (E.D.N.Y.
Dec. 3, 2014)) that would result if the requested stay were to be granted.
In reply to Defendant’s Opposition to Plaintiff’s Motion to Stay Discovery, filed
March 4, 202 (Dkt. 31) (“Plaintiff’s Reply”), Plaintiff asserts that Plaintiff’s Summary
Judgment “clearly establishes the Defendant violated” the TCPA “by calling his
[Plaintiff’s] cellphone, without consent and leaving an automated message in direct
violation of the act.” Dkt. 31 at 2. Plaintiff also asserts that Defendant’s discovery
requests were served prior to Fed.R.Civ.P. 26(d) which provides discovery should not
proceed until both parties have served the disclosures required by Fed.R.Civ.P. 26(a).
However, Fed.R.Civ.P. 26(d) provides that except for initial disclosures, discovery shall
not proceed until after the parties have conferred as required under Rule 26(f). Plaintiff
also argues Defendant failed to provide “any reason why discovery is needed or
appropriate” before Plaintiff’s Summary Judgment motion is resolved. Dkt. 31 at 6. In
Defendant’s Response, Dkt. 32, Defendant reiterates Defendant’s position that
Defendant requires discovery to fairly oppose Plaintiff’s Summary Judgment motion and
that Plaintiff’s responses to Defendant’s discovery requests remain deficient, including
Plaintiff’s continued failure to respond fully to Defendant’s Interrogatory No. 5 regarding
the basis for Plaintiff’s claim related to prerecorded messages from Defendant,
Interrogatory No. 7 and Defendant’s Document Request No. 8 directed to Defendant’s

9

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alleged use of an ATD, and thus discovery in this case was, when Plaintiff filed
Plaintiff’s Summary Judgment Motion, incomplete. Dkt. 32 at 2.
DISCUSSION
It is basic that summary judgment is properly granted only if after a reasonable
opportunity for discovery the non-moving party has failed to demonstrate the existence
of a material issue of fact as to which the non-movant has the burden of proof by
pointing to admissible evidence demonstrating the existence of such issue of fact
requiring trial. Amaker v. Foley, 274 F.3d 677, 680–81 (2d Cir. 2001) (“the district court
may not grant the [summary judgment] motion without first examining the moving party's
submission to determine if it has met its burden of demonstrating that no material issue
of fact remains for trial. If it has not, summary judgment is inappropriate, for ‘[n]o
defense to an insufficient showing is required.’” (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 161 (1970) (internal quotation marks omitted))). It is also elemental that
allegations in a plaintiff’s complaint do not constitute evidence sufficient to support a
grant of summary judgment. See cf., Belpasso v. Port Auth. of N.Y. & N.J., 400
Fed.Appx. 600, 601 (2d Cir. 2010) (“A pro se plaintiff, however, cannot defeat a motion
for summary judgment simply by relying on the allegations of his complaint; he must
present evidence from which a reasonable jury could find in his favor.”). Further, in the
absence of admissible evidence supporting a required element of a plaintiff’s claim, a
defendant has no burden to disprove such element; rather, the burden of proof remains
with a plaintiff. See Cohen Lans LLP v. Naseman, 2017 WL 477775, at *3 (S.D.N.Y.
Feb. 3, 2017) (“On summary judgment, the party bearing the burden of proof at trial
10

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must provide evidence on each element of its claim or defense.” (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986))). Additionally, requests to stay discovery pending
determination of dispositive motions are discretionary with the court. See Anderson v.
Greene, 774 Fed.Appx. 694, 695 (2d Cir. 2019) (“We review a District Court’s denial of
motions for a stay of discovery . . . for abuse of discretion.”).
Here, when Plaintiff filed Plaintiff’s Summary Judgment motion, discovery had
only recently commenced and was incomplete as Plaintiff’s responses had not been
served and when served notably failed to provide information as to the factual basis for
Plaintiff’s allegations that Defendant had used an automated telephone dialer to contact
Plaintiff, or sent automated prerecorded messages, required elements for a successful
TCPA claim. 47 U.S.C. § 227(b)(1)(A) (prohibiting the use of an automated telephone
dialing system or an artificial or prerecorded voice to any cellular telephone service
unless such call is made solely to collect a debt owed to or guaranteed by the United
States). As of March 4, 2020, Plaintiff continued to argue erroneously that Defendant’s
Interrogatory No. 7 and Document Request No. 8 directed to these elements of
Plaintiff’s claim seek irrelevant information. Thus, Plaintiff’s Summary Judgment motion
must be dismissed for two reasons. First, Plaintiff’s motion was premature as, when
filed, Defendant had no reasonable opportunity to obtain discovery relevant to threshold
requirements of a claim brought under the TCPA. Second, Plaintiff’s motion is
predicated on the misconception that Plaintiff’s allegations that Defendant in fact used
such an ATD or automated artificial or prerecorded voice messages constituted
evidence conclusively establishing such fact, and that Defendant’s admitted lack of

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records concerning Defendant’s alleged contact with Plaintiff obviate the need for
Plaintiff to put forth more specific evidence in support of summary judgment that such
an ATD was in fact used by Defendant or that Defendant’s contacts included artificial or
prerecorded voice messages. A fair reading of Plaintiff’s papers, including the three
messages recorded on Plaintiff’s Exh. F (Dkt. 17 at 35), 4 reveals no such evidence has
been presented by Plaintiff in support of summary judgment; rather, Plaintiff continued
to insist, without authority, that such evidence is irrelevant. Specifically, Plaintiff’s copy
of three messages to Plaintiff’s cell number, purportedly by Defendant, provides
insufficient foundation to qualify it as admissible evidence to support summary
judgment. See United States v. Fuentes, 563 F.2d 527, 532 (2d Cir. 1977) (“[S]ince
recorded evidence is likely to have a strong impression upon a jury and is susceptible to
alteration, we have adopted a general standard, namely, that the government ‘produce
clear and convincing evidence of authenticity and accuracy’ as a foundation for the
admission of such recordings.” (quoting United States v. Knohl, 379 F.2d 427, 440 (2d
Cir.), cert. denied, 389 U.S. 973 (1967)). Moreover, Defendant’s witnesses may, after
reviewing Plaintiff’s responses, be able to rebut Plaintiff’s assertions regardless of a lack
of contemporaneous records relating to Plaintiff’s cell number. Further, even if
admissible, in the absence of Defendant’s admission, whether the recorded messages
in fact constitute prohibited communications under the TCPA is a question of

4

The contents of the CD provided by Plaintiff in Exh. F included three recorded messages on Plaintiff’s
cell phone.

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interpretation regarding the exact nature of the communications for the trier of fact, not
the court on summary judgment thereby diluting the viability of Plaintiff’s motion.
Contrast Glasser v. Hilton Grand Vacations Company, LLC, 948 F.3d 1301, 1313 (11th
Cir. 2020) (affirming district court’s grant of summary judgment to plaintiff on TCPA
violations following completion of discovery where the plaintiff’s evidence, undisputed by
the defendant, established each of the 13 calls came from the same telephone number
which was owned by the defendant, contained identical messages which is the
“hallmark” of prerecorded messages, concluded with the same phrase, and the
defendant’s call log matched the plaintiff’s call log). Since the Plaintiff’s motion was filed
in January, Plaintiff has not provided anything to indicate Defendant has agreed with
Plaintiff’s assertion the recorded communications are artificial or prerecorded as defined
by the TCPA. Defendant’s stated lack of records does not equate to such an
admission.
Although, Defendant may in fact lack relevant records regarding its contacts with
Plaintiff, Defendant’s answer has denied all of Plaintiff’s allegations concerning use of
an ATD or prerecorded automated messages actionable under the TCPA by Defendant
thereby placing the burden of proof as to this required element exclusively on Plaintiff.
Thus, the court finds that Plaintiff’s Summary Judgment motion lacks sufficient merit to
support a stay of discovery and when weighed against the severe prejudice to
Defendant of granting Plaintiff’s Summary Judgment motion when filed, without further
discovery by Defendant in these circumstances Plaintiff’s motion for summary judgment
should be DISMISSED as premature but without prejudice to a further summary

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judgment request after completion of discovery. See Sheraton, LLC v. Fortuna Fifth
Avenue, LLC, 2019 WL 1510514, at *1 (S.D.N.Y. Mar. 5, 2019) (denying as premature
and without prejudice motion for summary judgment filed prior to completion of
discovery). Moreover, Plaintiff’s Motion to Stay Discovery pending determination of
Plaintiff’s Summary Judgment motion should be also DENIED, as granting the
requested stay would, as discussed, supra, ignore Plaintiff’s failure to put forth
admissible evidence in support of summary judgment on required elements of Plaintiff’s
claim and would severely prejudice Defendant in its ability to defend Plaintiff’s action on
the merits should Plaintiff attempt to present such evidence at trial. Further, because
under the Rule 16(b) Scheduling Order, all fact discovery was to conclude July 31,
2020, the court finds Defendant’s Rule 56(d) motion, seeking deferral of consideration
of Plaintiff’s summary judgment motion until completion of fact discovery in this case is
now moot, and, as such, should also be DISMISSED.

CONCLUSION
Based on the foregoing, Plaintiff’s Summary Judgment motion (Dkt. 16) is
DISMISSED without prejudice; Defendant’s Rule 56(d) motion (Dkt. 22) is DISMISSED

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as moot; Plaintiff’s Motion to Stay Discovery Pending Determination of Plaintiff’s
Summary Judgment Motion (Dkt. 28) is DENIED. 5, 6
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dates: September 1, 2020
Buffalo, New York

Any appeal of this Decision and Order must be taken by filing written
objection with the Clerk of Court not later than 14 days after service of
this Decision and Order in accordance with Fed.R.Civ.P. 72(a).

5

The parties shall inform the court in writing not later than September 14, 2020 whether the case is
ready for trial or whether additional discovery and/or dispositive motion practice is required. If the latter,
the parties shall propose, jointly or individually, outside dates as necessary to accommodate such
additional litigation.
6

Despite the direction that the parties select a mediator by February 4, 2020, according to the Docket,
the parties failed to select a mediator pursuant to the ADR Plan as directed. Accordingly, the court will
select a mediator pursuant to Section 5.5C.2. of the ADR Plan and the case shall proceed to mediation in
accordance with the Plan.

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