ASD Specialty Healthcare Inc. v. New Life Home Care Inc. et al
MEMORANDUM (Order to follow as separate docket entry) re 79 MOTION for Reconsideration with exhibit filed by New Life Home Care Inc., Gregory Malia Signed by Honorable Malachy E Mannion on 10/22/13. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ASD SPECIALTY HEALTHCARE,
INC. d/b/a ASD HEALTHCARE
CIVIL ACTION NO. 3:11-0068
NEW LIFE HOME CARE, INC. and
Presently before the court is the defendants’ Motion for Reconsideration
of the court’s entry of judgment in favor of the plaintiff’s, pursuant to Fed. R.
Civ. Pro. Rule 60(b)(1) and (b)(6). (Doc. No. 78, 79).
The plaintiff, ASD Specialty Healthcare, Inc. (“ASD”), filed its initial
complaint on January 10, 2011. (Doc. No. 1). The complaint alleged that
defendant New Life Home Care, Inc. (“New Life”) failed to pay for
$2,558,586.83 in pharmaceuticals ordered from the plaintiff. Specifically, ASD
brought claims for breach of the business applications, breach of the note,
For the convenience of the reader of this document in electronic
format, hyperlinks to the court’s record and to authority cited have been
inserted. No endorsement of any provider of electronic resources is intended
by the court’s practice of using hyperlinks.
unjust enrichment, replevin, breach of fiduciary duty, and conversion.
Moreover, the plaintiff alleges that New Life’s controlling shareholder,
Defendant Gregory Malia, has misappropriated corporate funds that would be
used to pay the debt. The plaintiff contends the court should pierce the
corporate veil and hold Mr. Malia personally liable for each count. The Hon.
A. Richard Caputo, then assigned to the case, found that the complaint failed
to properly alleged diversity between the parties and dismissed the complaint,
but offered the plaintiff leave to amend. (Doc. No. 5). ASD filed a amended
complaint on January 19, 2011. (Doc. No. 6).
ASD returned proof of service indicating that New Life and Mr. Malia
were each properly served on January 24, 2011 and January 21, 2011,
respectively.2 (Docs. No. 7, 8). On February 17, 2011, with no responsive
pleading filed by either defendant, the plaintiff requested entry of default
against each defendant, (Docs. No. 10, 11), and default was entered on
February 18, 2011. (Docs. No. 12, 13). On February 22, 2011, the defendants
filed a motion to vacate the entry of default, (Doc. No. 14), and a brief in
support. (Doc. No. 15). The defendants’ brief attacked the sufficiency of
ASD’s complaint as well as alleging defenses that the defendants would raise
if the court were to set aside the default and allow them to file a responsive
As discussed below however, Judge Caputo would later find service
on Mr. Malia was not effective. (Doc. No. 40).
pleading. The plaintiff filed a brief in opposition. (Doc. No. 16). The
defendants subsequently filed a supplemental brief in support, (Doc. No. 18),
and a brief in reply. (Doc. No. 19). On July 5, 2011, Judge Caputo granted the
defendants’ motion to vacate the default and ordered the defendant to file a
responsive pleading within 10 days. (Doc. No. 28).
On July 15, 2011, Mr. Malia filed a motion to dismiss for lack of
jurisdiction and for failure to state a cause of action, (Doc. No. 29), as well as
a brief in support. (Doc. No. 30).3 In his motion to dismiss, Defendant Malia
argued that service by mail was ineffective because the delivery was not
signed for by himself or his agent. (Doc. No. 29). In addition, he alleged that
ASD’s claims for breach of contract, replevin, breach of fiduciary duty and
conversion were insufficient with respect to Defendant Malia and that ASD
had failed to properly plead a cause of action to pierce the corporate veil and
hold him personally liable. On July 29, 2011, ASD filed a brief in opposition.
(Doc. No. 32).
Also on July 15, 2011, New Life filed an answer to the amended
complaint which contained counterclaims and thirteen affirmative defenses.
(Doc. No. 31). New Life brought counterclaims alleging fraudulent
concealment, unjust enrichment, demanding an accounting, and fraud,
On August 12, 2011, Mr. Malia filed a subsequent brief in support of
his motion to dismiss. (Doc. No. 35). The brief was virtually identical to the
prior brief in support filed with the motion.
misrepresentation, and deceit by ASD, who New Life alleged had been over
billing New Life since 2000. On July 29, 2011, ASD filed a motion to dismiss
the counterclaims, (Doc. No. 33), and a brief in support. (Doc. No. 34). On
August 12, 2011, New Life filed a brief in opposition. (Doc. No. 36).
While awaiting the court’s ruling on the motions to dismiss, counsel for
the defendants moved to withdraw from the case citing “irrevocable
differences with regard to how to proceed in this matter.” (Doc. No. 37 at 1).
Over ASD’s opposition, (Doc. No. 38), the court granted the motion to
withdraw on October 21, 2011, provided that the defendants secured
replacement counsel within 45 days. (Doc. No. 39).
On November 29, 2011, Judge Caputo issued a memorandum and
order regarding the pending motions to dismiss. (Doc. No. 40). Mr. Malia’s
motion to dismiss for failure to state a claim was denied, however, the court
found that service had been improper and directed ASD to perfect service
within 21 days of the order. ASD’s motion to dismiss New Life’s counterclaims
was granted in part and denied in part. Judge Caputo dismissed the claims
of fraudulent concealment and fraud, misrepresentation and deceit without
prejudice, affording New Life an opportunity to file a more specific pleading.
New Life’s counterclaims of unjust enrichment and for accounting were
allowed to proceed.
On December 6, 2011, ASD moved for a default judgment after no
replacement counsel had entered an appearance on behalf of the defendants
as required by Judge Caputo’s October 21, 2011 order. (Doc. No. 41). On
December 7, 2011, ASD filed a brief in support. (Doc. No. 42). On December
15, 2011, Attorney Scott Matthew Amori entered his appearance on behalf of
the defendants. After being granted an extension of time to file amended
counterclaims, the defendants filed their amended answer on January 20,
2012. (Doc. No. 49). On February 1, 2012, Judge Caputo denied the motion
for default citing the renewed active defense by the defendants. (Docs. No.
51, 52). On February 3, 2012, ASD filed an answer to the amended
counterclaims. (Doc. No. 53).
On May 18, 2012, ASD filed a motion to compel discovery, (Doc. No.
54), and a brief in support. (Doc. No. 55).4 The motion sought responses to
discovery requests as well as the deposition of Mr. Malia. As the result of a
telephone conference regarding the dispute held on September 25, 2012, the
court entered an order directing the defendants to supply the outstanding
discovery and for Mr. Malia to submit to a deposition before the end of
October, 2012. (Doc. No. 62).
On November 2, 2012, ASD contacted the court alleging that the
defendants had still not provided the outstanding discovery or arranged for
The parties subsequently consented to the jurisdiction of a Magistrate
Judge and the case was assigned to the undersigned while the undersigned
was sitting as a Magistrate Judge. (Doc. No. 60).
Mr. Malia to be deposed. Pursuant to a telephone conference held on
November 8, 2012, the court entered another order directing the defendants
to provide discovery. (Doc. No. 67). The court specifically instructed the
defendants to provide responses to the outstanding discovery requests by
November 16, 2012 and that Mr. Malia should be present for a deposition on
the agreed upon date of December 14, 2012.
On November 26, 2012, ASD sent a letter to the court, (Doc. No. 68),
reporting that the defendants had failed to provide the requested discovery by
the court’s November 16, 2012, deadline. The same day, the court entered
an order directing the defendants’ counsel to respond to that letter in writing
and instructing plaintiff’s counsel to submit to the court a petition for attorney’s
fees and costs related to his attempts to compel discovery along with other
sanctions he wished the court to consider. (Doc. No. 69). The defendants did
not reply to this letter or order.
On December 7, 2012, ASD filed a motion for attorney’s fees, costs and
for sanctions, (Doc. No. 70), together with a brief in support. (Doc. No. 71).
ASD sought $8,085 in attorney’s fees related to the discovery dispute. In
addition, ASD asked that the court enter a default judgment in the amount of
$2,558,586.83, dismiss all of the defendants’ counterclaims with prejudice,
and schedule a hearing to determine all other attorney’s fees, costs and
interest related to this litigation which may be due to ASD under Counts I and
II of its amended complaint. Again, the defendants did not respond to that
On December 10, 2012, defendants’ counsel contacted plaintiff’s
counsel regarding the deposition of Defendant Malia, set by court order to
occur on December 14, 2012. (Doc. No. 67). Defendant Malia now claims he
wanted to limit his deposition testimony through a motion for a protective
order pursuant to Fed. R. Civ. Pro. 26(c). (Doc. No. 79). He alleges that the
plaintiff did not concur in this motion and it was not brought to the courts
attention, until this present motion to vacate judgment. (Doc. No. 79).
Defendant Malia did not appear for the court ordered deposition on December
On April 10, 2013, the court granted in part and denied in part plaintiff’s
motion for sanctions, entering judgment in favor of plaintiff’s in the amount of
$2,558,586.83, dismissing the defendants’ counterclaims with prejudice, and
awarding $8,085.00 in attorney’s fees and costs related to the discovery
dispute. (Doc. No. 77). The instant motion to vacate judgment was filed on
April 19, 2013, (Doc. No. 79), and a brief was filed in support thereof on April
24, 2013. (Doc. No. 80). The plaintiff filed a response and brief in opposition
on May 1, 2013. (Doc. No. 81, 82).
Federal Rule of Civil Procedure 60 allows the court to “relieve a party
or its legal representative from final judgment, order, or proceedings” for
several different reasons. The defendants rely upon Rule 60(b)(1), allowing
relief for “mistake, inadvertence, surprise, or excusable neglect” and Rule
60(b)(6), allowing relief for “any other reason that justifies relief.” The thrust
of the defendant’s argument is that he was pursuing a “middle ground
acceptable to all parties and the court to move this matter forward” in regard
to the discovery disputes when he was essentially blind sided by the court’s
entry of judgment. (Doc. No. 80). Moreover, he contends that holding
Defendant Malia personally responsible under the judgment is “contrary to
equity and justice,” “where it has not been demonstrated beyond only the
barest accusations that he is even an appropriate party.” (Id.).
A. Rule 60(b)(1)
We turn first to whether relief should be granted under Rule 60(b)(1).
District Courts have great discretion over Rule 60 motions and in determining
whether counsel has shown excusable neglect. Martinez v. City of Chicago,
499 F.3d 721, 727 (7th Cir. 2007). The court must review an entry of default
judgment under Rule 60(b)(1) to determine: “(1) whether the plaintiff will be
prejudiced; (2) whether the defendant has a meritorious defense; (3) whether
the default was the result of the defendant’s culpable conduct.” Budget Blinds,
Inc. v. White, 536 F.3d 244, 256 (3d Cir. 2008). Even when evaluating these
factors, “the entry of a default judgment for a marginal failure to comply with
the time requirements imposed by the Rules . . . must be distinguished from
dismissals or other sanctions imposed by the district courts for willful
violations of the court rules and orders, contumacious conduct or intentional
delay.” Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 124 (3d Cir.
1983). The court must also evaluate the circumstances to determine whether
there was “excusable neglect.” In re Cendant Corp. PRIDES Litigation, 235
F.3d 176, 182 (3d Cir. 2000). The factors emphasized by the Third Circuit and
the Supreme Court in determining excusable neglect include: (1) the danger
of prejudice, (2) the length of delay and its potential impact on judicial
proceedings, (3) the reasons for the dely and whether it was within the
reasonable control of the movant, and (4) whether the movant acted in good
faith. Id. (citing Pioneer Inv. Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 395 (1993)).
The court must first determine the threshold issue of whether the
defendants have established a meritorious defense. U.S. v. $55,518,05 in
U.S. Currency, 728 F.2d 192, 195 (3d. Cir. 1984). In the answer to the
amended complaint, defendants lay out thirteen affirmative defenses. (Doc.
No. 49). Although some of the defenses are mere recitation of legal standards
and only partial defenses, several would be a total defense. As such, this
threshold issue must be decided in favor of the defendants.
Turning to the remaining two factors, neither the plaintiffs, nor the
defendants, touch on how the court should measure these factors. The court
looks to the “loss of available evidence, increased potential for fraud or
collusion, or substantial reliance upon the judgment to support a finding of
prejudice.” Feliciano v. Reliant Tooling Co., Ltd., 691 F.2d 653, 657 (3d Cir.
1982). The defendants’ failure to respond is viewed “in the context of its
failure over an extended period of time to answer any [request for discovery,]
correspondence from the plaintiffs,” or court orders. Hritz v. Woma Corp., 732
F.2d 1178, 1182 (3d Cir. 1984). Here, the central prejudice is the lack of
discovery, essentially rendering the plaintiff blind in pursuit of this action. The
length and nature of the defendants’ delays raise significant concerns. The
defendants argue that because they contemplated filing a protective order,
which was never in fact filed with the court until the instant motion for
reconsideration was submitted, they should be excused for continuously
violating the Federal Rules and the court’s specific orders. (Doc. No. 80, Att.
1). As the plaintiff correctly points out, the defendants fail to address why no
discovery has been completed to this point in a case that is two years and
eight months old. The defendants were ordered to respond to outstanding
discovery requests before October 9, 2012. (Doc. No. 62). After that deadline
passed, the court ordered outstanding discovery to be complete by November
16, 2012. (Doc. No. 67). When that deadline too fell by the wayside, the court
ordered the defendant to respond, in writing, to address “the defendants’
repeated failures to supply discovery responses, despite multiple court orders
directing them to do so.” (Doc. No. 69). The defendants ignored that order as
Forcing the plaintiffs to continue forward with this case, despite the
refusal of the defendant to supply legitimate discovery, would constitute a
severe prejudice given the defendants’ continual disregard for the court’s
numerous explicit orders and communications, without proper explanation.
Doing so would place the plaintiffs in an untenable position given that the
specific accusations about the defendants’ conduct have been known since
January, 2011. The plaintiff still has no discovery to direct an investigation into
the merits of the claimed defenses. The defendants also concede that New
Life is now out of business and Defendant Malia has difficultly finding work
and maintaining an income. (Doc. No. 82). As company documents were
absolutely vital and required discovery, the status of which are presently
unknown because of defendants’ lack of compliance, the plaintiff finds itself
in an unusually prejudicial position. Moreover, the overall delay in this case
has severely prejudiced plaintiff’s ability to recover damages. The assets of
the defunct company are unknown and the personal assets of Defendant
Malia are likely shrinking given his now apparent unemployment. (Doc. No.
80). Further delay could only hinder the plaintiff’s ability to redress damages.
For those reasons, the plaintiff would be severely prejudiced if the judgment
The third factor deals with who has control of the discovery at issue and
who is to blame for the delay. This factor focuses on “whether the defendant
was culpable, this is, whether it acted willfully or in bad faith.” Feliciano, 691
F.2d at 657. “Reckless disregard for the repeated communications from
plaintiffs and the court, combined with the failure to investigate the source of
a serious injury, can satisfy the culpable conduct standard.” Hritz, 732 F.2d
at 1183. There is no dispute the defendants are in control of the requested
discovery, so the court need only evaluate the defendants’ actions. It is clear
that the defendants, independently and through counsel, have continued to
ignore court orders over an extended period of time: failing to have a new
attorney appear within 45 days of a court order, (Doc. No. 39, 51, 52), not
completing all discovery by October, 2012, (Doc. No. 62), failing to provide
ordered discovery by November 16, 2012, (Doc. No. 68), failing to have
Defendant Malia appear for an ordered deposition by December 14, 2012,
(Id.), not responding to the court’s explicit order to address their failure to
provide any discovery in this case, (Doc. No. 69), and not responding to
plaintiff’s properly served motion for sanctions and attorney’s fees. (Doc. No.
In response, the defendants point to a “draft” of a motion for a protective
order, dated December 10, 2012, as evidence that they were not ignoring the
court’s orders and were acting in good faith. This motion, allegedly
contemplated a mere four days before the previously court ordered, and
apparently mutually agreed upon, deposition of Defendant Malia on
December 14, 2012, is far from persuasive evidence of a good faith attempt
to comply with discovery obligations. In fact, given the timing of the motion,
it would tend to show a continued delay tactic meant to avoid complying with
the court’s specific directives just days before another discovery deadline
Defendants further argue that because Defendant Malia “believes that
he does not properly belong in this matter as an individual party because of
the protections given him as a corporate officer,” they had a good faith basis
to ignore the court-ordered deposition. (Doc. No. 80). Judge Caputo
previously denied this same argument in addressing the motion to dismiss,
sustaining the cause of action for piercing the corporate veil. (Doc. No. 30).
Judge Caputo specifically noted that the plaintiff’s “amended complaint
asserts that Mr. Malia siphons funds from New Life for his own personal use,
that he has total control over the decisions of New Life, and that New Life is
insolvent.” (Doc. No. 40). A party cannot get a second bite at a motion to
dismiss by filing a protective order seeking to restrict discovery or because
that party believes he should not be in the case.
Even had the defendants filed such a late motion for a protective order
it would have been denied. Whether the court should have potentially exercise
its discretion under Fed. R. Civ. Pro. Rule 26(c) required the application of a
balancing test. Arnold v. Pennsylvania, 477 F.3d 105, 108 (3d Cir. 2007). The
factors to be considered include:
(1) the interest in privacy of the party seeking protection; (2)
whether the information is being sought for a legitimate purpose
or an improper purpose; (3) the prevention of embarrassment,
and whether that embarrassment would be particularly serious;
(4) whether the information sought is important to public health
and safety; (5) whether sharing of the information among litigants
would promote fairness and efficiency; (6) whether the party
benefitting from the order of confidentiality is a public entity or
official; and (7) whether the case involves issues important to the
Id. These factors clearly support the position that the court would have
permitted discovery in regard to Defendant Malia’s actions as a corporate
officer. The information sought was not of an overly private or personal
nature; it relates to how Defendant Malia used corporate funds and was able
to pay for his own private expenses. The information clearly was sought to
legitimately determine whether Defendant Malia was merely using the
corporation as an alter-ego for his personal gain. The nature of the
information was not particularly embarrassing given it related to his use of
corporate finances for private purposes. The information would benefit the
parties and the court in determining whether the corporate veil would need to
be pierced. In fact, such information would be necessary for the court to make
a determination if the allegations, combined with the available evidence,
support piercing the corporate veil. Defendant Malia was not a public official,
but acted as CEO and sole shareholder of a state-registered corporation.
Lastly, the abuse of corporate entities is an important public issue because
misuse of such business organizations puts all involved parties at risk. In
sum, the allegations in the complaint raise serious and specific issues about
the misuse of corporate assets. As a result, the court finds the defendants’
“drafted” line of argument unpersuasive. The timing of the allegedly
considered motion, coupled with defendants’ history of dilatoriness, reinforces
that this drafted, but never filed, motion was just another reason to avoid and
A reckless disregard for court orders is not enough, however, to find
culpable conduct. Hritz, 732 F.2d at 1183. There must be something more,
such as when “one party has acted in willful and deliberate disregard of
reasonable and necessary court orders and the efficient administration of
justice.” DiGregorio v. First Rediscount Corp., 506 F.2d 781, 788 (3d Cir.
1974). When this type of culpable conduct occurs, “willfulness is ‘mirrored in
the record’” when the party attempting to vacate the judgment was the source
of the continuous delay and disobedience. Id. (citing Norman v. Young, 422
F.2d 470, 474 (10th Cir. 1970)). Defendant Malia and his former company,
New Life, have been jointly represented throughout these proceedings, first
by Attorney Bruce Rosenburg and now by Amori & Associates. (Doc. No. 43).
Although Defendant Malia was initially improperly served, the company that
he ran as CEO and sole shareholder was properly served on January 24,
2011. Still the defendants allowed a default judgment to be entered against
them both on February 18, 2011. (Doc. No. 12, 13). After previous counsel
withdrew on October 11, 2011, defendants failed to have new counsel file a
timely notice of appearance within the court ordered 45-day time limit. (Doc.
No. 43). The defendants ignored three separate discovery orders, (Doc. No.
63, 67, 69), and failed to respond to the motion for sanctions and attorney’s
fees. (Doc. No. 71). Only after the entry of default judgment have the
defendants responded to the plaintiff’s communications or the court’s orders.
Courts should not be required to enter default in order to have parties comply
with the Federal Rules and court orders.
Defendant Malia claims that he “did not put his head in the sand doing
nothing. Counsel was in the process of preparing a motion for his dismissal
from the case to be presented after the discovery issues were resolved.”
(Doc. No. 80). Defendants do not dispute that they have not responded to any
discovery requests and orders. (Doc. No. 68, 80). Defendants have known
about the issues in this case since the amended complaint was filed on
January 19, 2011, (Doc. No. 6), and knew specifically of the issues surviving
through to the discovery phase on November 19, 2011, when their motion to
dismiss was denied. (Doc. No. 40). Rather than mitigate the defendants’
culpability, these facts only compound it. The record demonstrates a two-year
pattern of willful ignorance and dilatoriness. The record is replete with the
defendants’ disregard for the court’s responsibility to move this case forward.
This factor clearly favors the plaintiff.
Turning now to the four factors outlined in PRIDES, the court notes that
three of those factors, prejudice, reason for delay, and length of delay, have
been discussed above. 235 F.3d at 182. The plaintiff will be severely
prejudiced by the continuation of this long-delayed litigation. There are no
valid reasons cited by the defendants to withhold the discoverable materials
and the length of delay is significant. Turning to the final factor, whether the
party acted in good faith, defendants argue that their allegedly contemplated,
but never filed, motion for a protective order is evidence of a good faith effort
to comply with court ordered discovery. Significantly, the defendants knew
about the deposition on September 25, 2012, (Doc. No. 62), yet failed to raise
any issue in any other manner with the court prior to the ultimate entry of
default judgment. (Doc. No. 79). As of September 25, 2012, the issues for
discovery were well settled in Judge Caputo’s prior ruling on the motion to
dismiss. Therefore, the court does not find that the never-filed draft motion for
a protective order was a good faith attempt to resolve an actual discovery
dispute. The defendants’ argument does not explain why they have failed to
provide any discovery as of the October 9, November 16, and December 14,
2012, deadlines. Rather this motion fits into the defendants’ well-documented
pattern of non-compliance with court directives. Relief under Rule 60(b)(1) is
B. Rule 60(b)(6)
Rule 60(b)(6), upon which the defendants rely in the alternative, “is
available only in cases evidencing extraordinary circumstances.” Stradley v.
Cortez, 518 F.2d 488, 493 (3d Cir. 1975). Although this relief may be available
when an extreme or unexpected hardship will result, “extraordinary
circumstances rarely exist when a party seeks relief from a judgment that
resulted from the party’s deliberate choices.” Budget Blinds, 536 F.3d at 255
(citing Boughner v. Sec’y of Health, Educ. & Welfare, 572 F.2d 976, 978 (3d
Cir. 1978)). The defendants must make “‘a more compelling showing of
inequity or hardship’ than normally would be required to reopen a case under
subsections (1) through (5),” Landano v. Rafferty, 897 F.2d 661, 683 (3d Cir.
1990), and such showing must amount to “more than mere neglect,
inadvertence, indifference, or careless disregard of circumstances.” Ethan
Michael Inc. v. Union Tp., 392 F. Appx. 906, 910 (3d Cir. 2010).
Here, the defendants cannot claim that this judgment is an unexpected
hardship. Both parties have been part of the litigation since its inception and
the damages sought have been known for the same time period. The
defendants contend that because “of his very strong argument that he does
not belong in this litigation in the first place,” the entry of default judgment is
“contrary to equity and justice.” (Doc. No. 80). Contrary to his belief, it
appears that Defendant Malia is a proper party. In fact, there is nothing in the
defendants’ brief that indicates why the discovery, aside from Defendant
Malia’s deposition, has not yet been provided in a case that, as of December
14, 2012, was over 22 months old. As such, the default judgment “resulted
from the party’s deliberate choices” to ignore the court’s numerous orders and
the Federal Rules of Civil Procedure over an extended period of time. Budget
Blinds, 536 F.3d at 255. Extraordinary circumstances are not present and
vacating the judgment pursuant to Rule 60(b)(6) is inappropriate.
Lastly, the court has also expended significant resources dealing with
defendants’ delinquency. Any conditions imposed, if judged by history, would
be insufficient to ensure defendants’ compliance. The court is very aware of
the severity of this action. It was not entered into this decision lightly.
However, the defendants’ action, or better stated inactions, have left the court
in a corner from which there appears no other escape. Therefore, justice does
not require the reopening of the prior judgment.
For the foregoing reasons, the defendants’ Motion for Reconsideration
of default judgment is DENIED. An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: October 22, 2013
O:\Mannion\shared\MEMORANDA - DJ\2011 MEMORANDA\11-0068-02.wpd
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