Williston Hunter ND, LLC et al v. Eagle Operating, Inc.

Filing 24

ORDER by Judge Daniel L. Hovland granting 6 Motion to Stay pending completion of arbitration. (QF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Williston Hunter ND, LLC and
Magnum Hunter Resources
Corporation,

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ORDER GRANTING DEFENDANT’S
Plaintiffs,
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MOTION TO STAY PENDING
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COMPLETION OF ARBITRATION
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Case No. 4:11-cv-066
vs.
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Eagle Operating, Inc.,
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Defendants.
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Eagle Operating, Inc.,
Plaintiff and
Counter-Defendant

vs.

Williston Hunter ND, LLC and
Magnum Hunter Resources
Corporation,
Defendants and
Counter-Claimants,

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ORDER GRANTING PLAINTIFF’S
MOTION TO STAY COUNTERCLAIMS
PENDING COMPLETION OF
ARBITRATION
Case No. 4:11-cv-067

______________________________________________________________________________

Before the Court are two motions filed by Eagle Operating, Inc. (“Eagle Operating”) in the
above-captioned cases. On September 12, 2011, Eagle Operating filed a “Motion to Dismiss, or in
the Alternative Stay Pending Completion of Arbitration” in Williston Hunter ND, LLC v. Eagle
Operating, Inc., Case No. 4:11-cv-066. See Docket No. 6. On October 4, 2011, Eagle Operating

filed a “Motion to Dismiss, or in the Alternative Stay Counterclaims Pending Completion of
Arbitration” in Eagle Operating, Inc. v. Williston Hunter ND, LLC, Case No. 4:11-cv-067. See
Docket No. 4. Williston Hunter ND, LLC and Magnum Hunter Resources Corporation filed a
response in opposition to the motions on October 4, 2011, and October 27, 2011, respectively. See
Case No. 4:11-cv-066, Docket No. 13; Case No. 4:11-cv-067, Docket No. 9. Eagle Operating filed
reply briefs on October 17, 2011, and November 7, 2011. See Case No. 4:11-cv-066, Docket No.
16; Case No. 4:11-cv-067, Docket No. 10. A hearing was held on January 6, 2012. For the reasons
set forth below, the Court grants Eagle Operating’s separate motions to stay all claims pending the
completion of arbitration.

I.

BACKGROUND
Eagle Operating is a corporation formed under the laws of the State of North Dakota, with

its principal office in Kenmare, North Dakota. Williston Hunter ND (“Williston Hunter”) is a
limited liability company formed under the laws of the State of Delaware, with its principal place
of business in Denver, Colorado. Magnum Hunter Resources Corporation (“Magnum Hunter”) is
a corporation formed under the laws of the State of Delaware, with its principal place of business
in Houston, Texas. Magnum Hunter is the parent company of Williston Hunter. The Court will
refer to these two entities collectively as “Magnum Hunter.”
In December 2006, Magnum Hunter purchased an undivided 50% of Eagle Operating’s right,
title, and interest in certain oil and gas properties in the Williston Basin of western North Dakota
for the sum of $10 million cash and $10 million of Magnum Hunter’s common stock. In January

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2007, Magnum Hunter and Eagle Operating also entered into a joint venture for the development
and recovery of oil and gas.
A dispute arose between the parties and on April 21, 2010, Magnum Hunter filed a complaint
against Eagle Operating. See Magnum Hunter Resources Corporation v. Eagle Operating, Inc., Case
No. 4:10-cv-0030, Docket No. 1. Magnum Hunter alleged that the joint venture contract required
both parties’ consent to drill wells, and that Eagle Operating breached the contract when it
completed one oil well and began drilling another in the East Flaxton Madison Unit (“EFMU”) of
the Williston Basin without Magnum Hunter’s consent. On April 21, 2010, Magnum Hunter moved
for a temporary restraining order to stop Eagle Operating’s further development of wells in the
EFMU. See Docket No. 3. On April 28, 2010, the Court granted the temporary restraining order.
See Docket No. 5. On May 5, 2010, Magnum Hunter and Eagle Operating stipulated to amending
the temporary restraining order to a preliminary injunction. See Docket No. 14. The Court then
issued an order for a preliminary injunction. See Docket No. 15.
Thereafter, the parties participated in an informal dispute resolution process. On August 4,
2011, the parties reached a settlement of the lawsuit and, as part of the settlement, the parties entered
into a Purchase and Sale Agreement. See Case No. 4:11-cv-066, Docket No. 8-1. Under the
Purchase and Sale Agreement, Magnum Hunter, through Williston Hunter, agreed to purchase Eagle
Operating’s interest in certain properties for $55 million in cash (“cash consideration”) and $2
million in Magnum Hunter’s common stock. In addition, Eagle Operating agreed to release
Magnum Hunter from all claims and liability related to the EFMU wells, which included “any cost
or expense related thereto.” See Docket No. 15, p. 61.

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The Purchase and Sale Agreement contained a provision that allowed the purchase price to
be adjusted before the closing of the settlement. The sale of the properties was effective on April
1, 2011, but the closing of the transaction was to occur on April 18, 2011. See Case No. 4:11-cv066, Docket No. 8-1, pp. 10, 27. Due to the delay between the effective date of the sale and closing,
the agreement provides for an adjustment of the cash consideration to account for certain expenses
and income derived from oil production activity. See Docket No. 8-1, pp. 22-23. Eagle Operating
was required to prepare and deliver, three days prior to the closing, a description of proposed
adjustments to the cash consideration, referred to as the “Preliminary Settlement Statement”. See
Docket No. 8-1, p. 24. The record reveals that on August 15, 2011, Eagle Operating delivered the
Preliminary Settlement Statement to Magnum Hunter which proposed an upward adjustment of
approximately $6 million. See Docket Nos. 8 and 8-2. In the adjustment, Eagle Operating included
unpaid expenses related to the drilling of oil wells in the EFMU in the amount of $5.9 million. See
Docket No. 8-2.
On August 17, 2011, Magnum Hunter sent an objection to Eagle Operating. See Case No.
4:11-cv-066, Docket No. 8-3. Magnum Hunter claimed that Eagle Operating had agreed to release
it from paying expenses related to the EFMU wells and, therefore, breached the Purchase and Sale
Agreement when it included the EFMU expenses in the Preliminary Settlement Statement. See
Docket Nos. 8-3; 8-4; and 15, p. 61. The parties failed to close the sale.
The parties then initiated the above-entitled lawsuits against each other. On August 19,
2011, Magnum Hunter filed a complaint in federal court alleging that (1) Eagle Operating agreed
to release Magnum Hunter from all claims, including expenses and costs, related to the EFMU wells
and (2) Eagle Operating breached the Purchase and Sale Agreement when it included expenses of

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$5.9 million related to the EFMU wells in the Preliminary Settlement Statement. See Case No. 4:11cv-066, Docket No. 1. Magnum Hunter also asserted that Eagle Operating acted in bad faith and
intentionally breached the contract when it included the EFMU well expenses in the settlement
documents.
On August 19, 2011, Eagle Operating filed a complaint and alleged that Magnum Hunter
breached the Purchase and Sale Agreement because they did not transfer the cash consideration
necessary to close the transaction. See Case No. 4:11-cv-067, Docket No. 1. Eagle Operating
contends that the Purchase and Sale Agreement required the parties to close the sale even if there
was a dispute concerning any proposed adjustments to the cash consideration. On September 13,
2011, Magnum Hunter filed an “Original Answer, Affirmative Defenses and Counterclaims” in
which it re-alleged that Eagle Operating breached the settlement agreement when Eagle Operating
included expenses related to the EFMU wells in the Preliminary Settlement Statement. See Docket
No. 3.
On September 12, 2011, Eagle Operating filed a motion to dismiss, or in the alternative, stay
the claims alleged pending arbitration. See Case No. 4:11-cv-066, Docket No. 6. On October 3,
2011, Eagle Operating also filed a motion to dismiss, or in the alternative, stay the counterclaims
filed by Magnum Hunter pending the completion of arbitration. See Case No. 4:11-cv-067, Docket
No. 4. Eagle Operating contends that Magnum Hunter’s claims as to the EFMU wells expenses are
subject to an arbitration clause in the Purchase and Sale Agreement.

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II.

LEGAL DISCUSSION
The Federal Arbitration Act requires district courts to grant motions to compel arbitration

and stay any suit or proceeding if a valid arbitration clause exists which encompasses the dispute
between the parties. 9 U.S.C. §§ 1-16. “Arbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not agreed so to submit.” Newspaper
Guild of St. Louis, Local 36047, TNG-CWA v. St. Louis Post Dispatch, LLC, 641 F.3d 263, 266
(8th Cir. 2011) (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582
(1960)). The Eighth Circuit Court of Appeals has explained that “when deciding whether to compel
arbitration, a court asks whether a valid agreement to arbitrate exists, and if so, whether the dispute
falls within the scope of that agreement.” Id. (citing United Steelworkers of Am. v. Duluth Clinic,
Ltd., 413 F.3d 786, 788 (8th Cir. 2005)).
The parties do not dispute the existence of a valid arbitration clause contained within the
terms of the Purchase and Sale Agreement. Instead, the parties dispute whether Magnum Hunter’s
claims fall within the scope of the arbitration clause. As described above, Magnum Hunter alleges
that Eagle Operating improperly attempted to increase the purchase price by approximately $5.9
million when it included expenses related to the drilling of the EFMU wells in the Preliminary
Settlement Statement. Under the Purchase and Sale Agreement, if a dispute arose regarding a
proposed adjustment to the cash consideration, a process to remedy the disagreement is set forth in
Sections 2.5(d), 2.5(f), and 2.5(g) of the Purchase and Sale Agreement.
Section 2.5(d) of the Purchase and Sale Agreement provides, in pertinent part:
Buyer and Seller shall use commercially reasonable efforts to resolve any such
dispute prior to Closing; provided that any and all amounts so disputed or other
adjustments claimed by any Party and not resolved by mutual agreement of Buyer
and Seller prior to Closing shall be resolved in accordance with Section 2.5(f) and
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the Closing shall occur with payment of the Cash Consideration as set forth in the
Preliminary Settlement Statement, provided, however, Title Defects shall be
addressed as set forth in Section 2.4(b)(iv).
See Case No. 4:11-cv-066, Docket No. 8-1, p. 24 (emphasis in original). Section 2.5(d) requires the
parties to use commercially reasonable efforts to resolve any disputes regarding any proposed
adjustments in the Preliminary Settlement Statement. Section 2.5(d) provides that Magnum Hunter
must pay the cash consideration as set forth in the Preliminary Settlement Statement even if the
parties do not resolve a dispute prior to the closing date. Disputes over the adjustments that are not
resolved prior to closing, must be resolved after closing in accordance with Section 2.5(f).
Section 2.5(f) of the Purchase and Sale Agreement provides:
On or before the ninetieth (90th) day after the Closing, Seller shall prepare and
deliver to Buyer in accordance with this Agreement, a statement (the “Final
Settlement Statement”) setting forth Seller’s calculation of the final adjustments and
showing the calculation of such adjustments, together with all reasonable supporting
documentation. Within thirty (30) days after receipt of the Final Settlement
Statement, Buyer shall deliver to Seller a written report containing any changes that
Buyer proposes be made to the Final Settlement Statement and the reasons for those
changes (“Objection Report”). The Parties shall attempt to agree to the amounts due
pursuant to such adjustments, including any amounts disputed under Section 2.5(d),
no later than ninety (90) days after Buyer’s receipt of the Final Settlement Statement.
The date upon which such agreement is reached shall be herein call the “Final
Settlement Date”. Within five (5) Business Days from the Final Settlement Date, the
Party owning any amount for additional adjustments shall pay such amount, in
immediately available funds by wire transfer to an account designated in writing by
the other Party.
See Case No. 4:11-cv-066, Docket No. 8-1, pp. 24-25 (emphasis in original). Therefore, within
ninety (90) days of the closing date, Eagle Operating is required to deliver to Magnum Hunter the
Final Settlement Statement which sets forth the final proposed adjustments to the cash consideration.
Magnum Hunter then has an opportunity to object to Eagle Operating’s calculations and adjustments

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and may propose any changes. If the parties cannot agree on the final adjustment amount, Section
2.5(g) provides for binding alternative dispute resolution.
Section 2.5(g) of the Purchase and Sale Agreement states as follows:
If the Seller and Buyer are unable to agree upon any amounts (the “Disputed
Amounts”) in the Final Settlement Statement by the ninetieth (90th) day after Buyer’s
receipt of the same, Eide Bailly LLP (or if such firm within the previous 5 years has
had a business relationship with one of the Parties or is unable or unwilling to act,
PricewaterhouseCoopers LLP shall be selected and used) (the “Referral Firm”) shall
review such Disputed Amounts in Seller’s Final Settlement Statement and Buyer’s
Objection Report and the Records relating to the Disputed Amounts and determine
the final adjustments with respect thereto, other than adjustment determined under
the mechanism regarding Title Defect set forth in Exhibit A; provided further that
each Party agrees that in no event shall the Referral Firm be a firm that has had a
business relationship with one of the Parties within 5 years. With respect to any
Disputed Amounts under this Agreement to be resolved by the Referral Firm, neither
the Referral Firm nor any person employed by the Referral Firm will interpret the
provisions of this Agreement unless otherwise agreed by Seller and Buyer. With
respect to any Disputed Amounts for which interpretation of this Agreement is
required, and for which Buyer and Seller cannot agree on such interpretation,
such matter shall be submitted to arbitration in a similar manner as set forth
in Exhibit A Section 8 regarding Title Defect dispute and the Referral Firm
shall decide all other matters specified in this Section 2.5(f). The decision of the
Referral Firm shall be binding on Buyer and Seller, and the fees and expenses of the
Referral Firm shall be borne one-half (½) each by Buyer and Seller. The Referral
Firm shall deliver its final calculation of the Disputed Amounts in writing to Buyer
and Seller as soon as is practicable, and the Party owing any amount for additional
adjustments as a result thereof shall pay such amount (plus interest accrued on such
amount from the Closing Date until the date such amount is paid calculated at the
Prime Rate) no later than the fifth (5th) Business Day following the paying Party’s
receipt from the Referral Firm of the final adjustments.
See Case No. 4:11-cv-066, Docket No. 8-1, p. 25 (bold emphasis without italics added). Thus, under
Section 2.5(g), if the parties are unable to agree to any disputed amounts, or if they are unable to
agree to any final adjustments to the cash consideration, the parties must either (a) submit the matter

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to a neutral accounting firm, or (b) submit the matter to binding arbitration if the dispute requires
an interpretation of the Purchase and Sale Agreement.1
The claims presented by Magnum Hunter concern an adjustment to the purchase price
proposed by Eagle Operating. Magnum Hunter alleges that Eagle Operating included an improper
adjustment in the Preliminary Settlement Statement prior to the closing date. The parties were
unable resolve this dispute prior to closing. Section 2.5(g) of the Purchase and Sale Agreement
specifically provides that, if the parties fail to resolve their differences by mutual agreement, the
dispute must be resolved by either (a) an accounting firm, or (b) an arbitrator if the dispute requires
the interpretation of the Purchase and Sale Agreement. See Case No. 4:11-cv-066, Docket No. 8,
p 25 (emphasis in original). Under the terms of the agreement, the dispute between the parties must
be submitted to an arbitrator because Magnum Hunter contends that the Purchase and Sale
Agreement does not authorize Eagle Operating to include the EFMU expenses in the adjustments
to the cash consideration, and the dispute requires interpretation of the agreement. In other words,
the parties have differing interpretations of the agreement as to whether the costs associated with
the EFMU wells ($5.9 million) is a proper adjustment to the cash consideration. If the parties cannot
agree on the final adjustment amounts, Section 2.5(g) provides that the matter be submitted to
arbitration.
Magnum Hunter argues that the arbitration clause in Section 2.5(g) of the Purchase and Sale
Agreement is “narrow” and only includes disputes as to amounts and not the types of adjustments

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The provisions of Section 2.5 of the Purchase and Sale Agreement are an open invitation to litigation.
Given the history of this litigation, there was a strong likelihood that the parties would be unable to agree to the
disputed amounts, the final adjustments to the purchase price, and/or would have differing interpretations of the
agreement. Although the $5.9 million cost associated with the EFMU wells was at the heart of this dispute and the
cause of the original lawsuit in 2010, this elephant in the room was never clearly and explicitly addressed in the
agreement.

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to the cash consideration, citing Twin City Monorail, Inc. v. Robbins & Meyers, Inc., 728 F.2d 1069
(8th Cir. 1984). In that case, Robbins & Myers agreed to sell a division of its company to Twin City
Monorail. The purchase agreement estimated the final sale price would be $1.25 million, but the
actual price would be determined by the “book value” of the inventory on hand at the time of
closing. A provision within the agreement stated that the “buyer shall have the right to . . . object
in writing to any item contained in the Statement of Inventory . . . and any such objection which is
. . . unresolved . . . shall be promptly submitted for resolution to an independent certified public
accountant.” Id. at 1073 (emphasis and ellipses in original). The parties did not dispute the physical
count of the inventory but rather disagreed over the accounting method of valuing the inventory.
The Eighth Circuit found the dispute over the accounting method was outside of scope of the
“narrow” arbitration clause regarding items in the inventory. Id. at 1073-74.
The provisions in the Purchase and Sale Agreement at issue in this protracted dispute are
distinct from those discussed in Twin City Monorail, 728 F.2d 1069. In Twin City Monorail, the
Eighth Circuit found that the location of the arbitration clause - found within the same paragraph that
concerned the physical count of the inventory and not the paragraph that discussed the book value was persuasive support for the conclusion that the dispute over the accounting method of valuing
the inventory fell outside the arbitration clause. Id. at 1074. Unlike the scenario presented in Twin
City Monorail, Section 2.5 of the Purchase and Sale Agreement in this case, which contains the
arbitration clause, contains broad language to describe how disputes over proposed adjustments to
the purchase price will be handled. Section 2.5(d) provides, in pertinent part:
Buyer and Seller shall use commercially reasonable efforts to resolve any such
dispute prior to Closing; provided that any and all amounts so disputed or other
adjustments claimed by any Party and not resolved by mutual agreement of

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Buyer and Seller prior to Closing shall be resolved in accordance with Section
2.5(f) . . . .
See Case No. 4:11-cv-066, Docket No. 8-1, p. 24 (bold emphasis added). Section 2.5(d) is a very
broad provision in the agreement which discusses disputes over not just “any and all amounts” but
also disputes concerning “other adjustments claimed by any Party.” The agreement is clear in that
such disputes must be resolved pursuant to Section 2.5(f) if the parties fail to resolve them before
closing. Section 2.5(f) requires that Eagle Operating submit a Final Settlement Statement and then
permit Magnum Hunter to deliver “a written report containing any changes that Buyer proposes
be made to the Final Settlement Statement and the reasons for those changes” (an Objection
Report). See Docket No. 8-1, pp. 24-25 (emphasis added). In other words, the agreement permits
Magnum Hunter to propose “any changes” to the Final Settlement Statement, not merely changes
to the amounts of the adjustment. The location of the arbitration clause within these provisions
supports the conclusion that Magnum Hunter’s claims regarding the types and amounts of cost
adjustments to the purchase price are subject to the broad arbitration clause.2
The Eighth Circuit explained in Twin City Monorail that “a significant factor supporting our
conclusion is the use of the word ‘item’ in the arbitration clause, which connotes materiality in the
physical sense and militates against the inclusion of the accounting method as an arbitrable issue.”
Id. at 1073-74. Magnum Hunter contends that the phrase “Disputed Amounts” found in Section
2.5(g) should be similarly construed to preclude disputes over the types of adjustments to be
allowed. However, neither the language in the Purchase and Sale Agreement, nor the common

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As previously noted, there was a strong likelihood that the parties would disagree on the disputed
amounts, the final adjustments to the purchase price, and/or would have differing interpretations of the Purchase and
Sale Agreement. It also appears that Eagle Operating chose to take advantage of that strong likelihood and used the
broad arbitration clause as leverage in an attempt to recover the costs associated with the drilling of the EFMU wells.

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meaning of the term “amount,” supports Magnum Hunter’s argument. Section 2.5 of the Purchase
and Sale Agreement (where the arbitration clause is located) contains broad language referring to
disputes regarding “any and all amounts so disputed” along with “other adjustments claimed by any
Party” and permits Magnum Hunter to propose “any changes” to the final adjustment in the purchase
price. See Case No. 4:11-cv-066, Docket No. 8-1, pp. 24-25. Section 2.5(g) further provides that
“[i]f the Seller and Buyer are unable to agree upon any amounts (the “Disputed Amounts”) in the
Final Settlement Statement” either an accounting firm or an arbitrator must resolve the dispute. See
Docket No. 8-1, p. 25 (emphasis in original). In the context of the Purchase and Sale Agreement,
the phrase “Disputed Amounts” appears to be a reference to the unresolved disputes discussed in
the previous subsections of Section 2.5. Magnum Hunter’s contention that “Disputed Amounts”
should be construed to preclude any disputes regarding the types of adjustments allowed is not
supported by the terms and conditions of the Purchase and Sale Agreement.
In addition, the common definition of “amount” does not support Magnum Hunter’s
argument. The American Heritage Dictionary defines “amount” as “[t]he total of two or more
quantities; aggregate. . . . A number; sum.” The American Heritage Dictionary 103 (2nd College
ed. 1985). The Oxford English Dictionary provides that “amount” means “1. The sum total to
which anything mounts up or reaches: a. in quantity. b. in number. . . . 3. A quantity or sum viewed
as a total. . . .” Oxford English Dictionary (2nd. ed. 1989) (online version December 2011,
http://www.oed.com/view/Entry/6575; last visited January 2, 2011). Considering these common
definitions, the phrase “Disputed Amounts” does not preclude a dispute over the types of
adjustments allowed because including or excluding a type of adjustment, such as the EFMU
expenses, would affect the sum total or full value of the cash consideration adjustment. A dispute

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regarding the EFMU expenses logically leads to a “Disputed Amount.” In contrast to the reasonable
distinction drawn by the Eighth Circuit in Twin City Monorail between the term “item” and a
method of accounting, Magnum Hunter proposes an interpretation of the phrase “Disputed
Amounts” that is neither supported by the Purchase and Sale Agreement nor the plain meaning of
the term “amount.”
It is well-established in the Eighth Circuit Court Appeals that arbitration clauses should be
liberally construed by resolving any doubts in favor of arbitration. 3M Co. v. Amtex Sec., Inc., 542
F.3d 1193, 1198-99 (8th Cir. 2008) (citing Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,
460 U.S. 1, 24 (1983)) (explaining Congress created liberal federal policy favoring arbitration). A
motion to compel arbitration should be granted “unless it may be said with positive assurance that
the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”
Simmons Foods, Inc. v. H. Mahmood J. Al-Bunia & Sons Co., 634 F.3d 466, 468-69 (8th Cir. 2011)
(quoting Lyster v. Ryan’s Family Steak Houses, Inc., 239 F.3d 943, 945 (8th Cir. 2001)). The broad
language of Section 2.5 of the Purchase and Sale Agreement demonstrates that the arbitration clause
in Section 2.5(g) covers disputes concerning the types and amounts of adjustments to be made to
close the transaction. The Court concludes that pursuant to Section 2.5(g), Magnum Hunter’s claim
that Eagle Operating improperly included certain expenses related to the EFMU wells in the
Preliminary Settlement Statement must be submitted to arbitration. The Court grants Eagle
Operating’s motions to stay all claims pending the conclusion of arbitration.

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III.

CONCLUSION
The Court has carefully reviewed the entire record, including the Purchase and Sale

Agreement and relevant case law from the Eighth Circuit Court of Appeals. The Court finds that
Magnum Hunter Resources and Williston Hunter’s claims and counterclaims as they relate to
disputed amounts, cost adjustments to the purchase price, and disputes as to the interpretation the
agreement concerning such matters, are subject to the broad arbitration clause contained within
Section 2.5 of the Purchase and Sale Agreement. The Court GRANTS Eagle Operating’s motions
(Case No. 4:11-cv-066, Docket No. 6; Case No. 4:11-cv-067, Docket No. 4), ORDERS the parties
into arbitration to resolve all disputes related to any disputed amounts, cost adjustments to the cash
consideration, or any other disputes as to the interpretation of the agreement, and STAYS Magnum
Hunter and Williston Hunter’s claims and counterclaims (Case No. 4:11-cv-066, Docket No. 1; Case
No. 4:11-cv-067, Docket No. 3) pending the completion of arbitration.
IT IS SO ORDERED.
Dated this 24th day of January , 2012.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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