Herndon v. Green Tree Servicing, LLC

Filing 17

MEMORANDUM (Order to follow as separate docket entry) re 8 MOTION to Compel Arbitration of Plaintiff's Individual Claims and Stay Proceedings filed by Green Tree Servicing, LLC. Because the arbitration clause in the orginal purchase agreement is valid and enforceable by Defendant and because it applies to the instant dispute, Defendant's Motion to Compel Arbitration and Stay Proceedings will be granted.Signed by Honorable Matthew W. Brann on 3/31/2016. (ch1)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRENDA HERNDON, individually
and on behalf of all others similarly
situated,
Plaintiff(s),
v.
GREEN TREE SERVICING LLC,
Defendant.

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No. 4:15-cv-01202
(Judge Brann)
CLASS ACTION

MEMORANDUM
March 31, 2016
I.

BACKGROUND
On August 18, 2000, Plaintiff Brenda Herndon entered into a Retail

Installment Contract and Security Agreement with Chesapeake Mobile Homes,
Inc. to finance the purchase of a manufactured home in the amount of $28,007.00.1
Plaintiff’s loan was secured by, among other assets, her new home itself.2
The purchase agreement contained a broad arbitration clause. That clause
read as follows:

1
2

ECF No. 10 at 7.
Id.

1

ARBITRATION OF DISPUTES AND WAIVER OF JURY
TRIAL:
a. Dispute Resolution. Any controversy or claim between or among
you [Seller] and me [Herndon] or our assignees arising out of or
relating to this Contract or any agreements or instruments relating to
or delivered in connection with this Contract, including any claim
based on or arising from an alleged tort, shall, if required by either
you or me, be determined by arbitration, reference, or trial by a judge
as provided below. A controversy involving only a single claimant, or
claimants who are related or asserting claims arising from a single
transaction shall be determined by arbitration as described below. Any
other controversy shall be determined by judicial reference of the
controversy to a referee appointed by the court or, if the court where
the controversy is venued lacks the power to appoint a referee, by a
judge without a jury, as described below. YOU AND I AGREE AND
UNDERSTAND THAT WE ARE GIVING UP THE RIGHT TO
TRIAL BY JURY, AND THERE SHALL BE NO JURY
WHETHER THE CONTROVERSY OR CLAIM IS DECIDED
BY ARBITRATION, BY JUDICIAL REFERENCE, OR BY
TRIAL BY A JUDGE.
b. Arbitration. Since this Contract touches and concerns interstate
commerce, an arbitration under this Contract shall be in accordance
with the United States Arbitration Act (Title 9, United States Code),
notwithstanding any choice of law provision in this Contract. The
Commercial Rules of the [AAA] also shall apply. The arbitrator(s)
shall follow the law and shall give effect to the statutes of limitation in
determining any claim. Any controversy concerning whether an issue
is arbitrable shall be determined by the arbitrator(s). The award of the
arbitrator(s) shall be in writing and include a statement of reasons for
the award. The award shall be final. Judgment upon the award may be
entered in any court having jurisdiction, and no challenge to entry of
judgment upon the award shall be entertained except as provided by
Section 10 of the United States Arbitration Act or upon a finding of
manifest injustice.3
In addition to these broad arbitration provisions, the agreement between
3

ECF No. 12 Ex. 1 at 7.

2

Plaintiff and Chesapeake also contained a form “Holder Notice” provision, which
read:
NOTICE
ANY HOLDER OF THIS CONSUMER CONTRACT IS SUBJECT
TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR
COULD ASSERT AGAINST THE SELLER OF GOODS OR
SERVICES OBTAINED PURSUANT HERETO OR WITH THE
PROCEEDS HEREOF, RECOVERY HEREUNDER BY THE
DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE
DEBTOR HEREUNDER.4
Upon execution of the purchase agreement, Chesapeake assigned the
agreement and all of its associated rights under the agreement to GreenPoint
Credit, LLC.5 Specifically, the agreement included the following passage: “For
value received, [Chesapeake] hereby assigns to [GreenPoint] all its rights, title and
interest in this Contract and the property which is the subject matter hereof and
authorizes [GreenPoint] to do everything necessary to collect and discharge
same.”6 Later, on October 8, 2004, Defendant Green Tree Servicing, LLC,
purchased certain GreenPoint’s servicing portfolio of manufactured housing loans,
which included the loan at issue here.7
Thereafter, Plaintiff admits that she “fell behind in her payments.”8

4
5
6
7
8

ECF No. 12 Ex. 1 at 8.
Id.
Id.
Id. at 9.
ECF No. 11 at 7.

3

Defendant attempted to collect on Plaintiff’s past-due debt pursuant to the terms of
the original purchase agreement. Plaintiff thereafter filed a putative class action
against Defendant in this Court, alleging violations of the Telephone Consumer
Protection Act.
Pursuant to the broad arbitration provisions in Plaintiff’s purchase
agreement, Defendant sought to compel arbitration and to stay proceedings.9
Because the arbitration clause in the original purchase agreement is valid and
enforceable by Defendant and because it applies to the instant dispute, Defendant’s
Motion to Compel Arbitration and Stay Proceedings is granted.
II.

LAW
Defendant seeks to compel arbitration and stay proceedings pursuant to the

Federal Arbitration Act (“FAA”).10 Section 2 of the FAA, which governs the
validity of arbitration agreements, mandates that:
A written provision in any . . . contract evidencing a transaction
involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform
the whole or any part thereof . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for
the revocation of any contract.
The primary purpose behind the FAA was to dismiss with “ancient judicial
hostility to arbitration,” and to “ensure that ‘private agreements to arbitrate are
9
10

ECF No. 8.
9 U.S.C. § 1 et seq.

4

enforced according to their terms.’”11 In enacting the FAA, “Congress declared a
national policy favoring arbitration and withdrew the power of the states to require
a judicial forum for the resolution of claims which the contracting parties agreed to
resolve by arbitration.”12 Accordingly, “in applying general state-law principles of
contract interpretation to the interpretation of an arbitration agreement within the
scope of the Act, due regard must be given to the federal policy favoring
arbitration, and ambiguities as to the scope of the arbitration clause itself resolved
in favor of arbitration.”13 The FAA “thereby places arbitration agreements on an
equal footing with other contracts and requires courts to enforce them according to
their terms.”14
Given this sweeping policy in favor of arbitration, “[a] motion to compel
arbitration calls for a two-step inquiry into (1) whether a valid agreement to
arbitrate exists and (2) whether the particular dispute falls within the scope of that
agreement.”15 If “the court determines that an agreement exists and that the dispute
falls within the scope of the agreement, it then must refer the matter to arbitration

11

12
13
14
15

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 56 (1995) (internal quotations
omitted). Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010) (quoting
Volt Info. Sciences, Inc. v. Board of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479
(1989)).
Southland Corp. v. Keating, 465 U.S. 1, 10 (1984).
Volt, 489 U.S. at 475–76.
Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010).
Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005) (Alito, J.).

5

without considering the merits of the dispute.”16 “In making this determination, the
court must operate under a ‘presumption of arbitrability in the sense that an order
to arbitrate the particular grievance should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation
that covers the asserted dispute.’”17
Once the court has found that the arbitration agreement sought to be
enforced is valid and that the disputed issues falls within that agreement’s scope,
the court must enter a mandatory stay of the proceedings according to Section 3 of
the FAA. That provision states:
If any suit or proceeding be brought in any of the courts of the United
States upon any issue referable to arbitration under an agreement in
writing for such arbitration, the court in which such suit is pending,
upon being satisfied that the issue involved in such suit or proceeding
is referable to arbitration under such an agreement, shall on
application of one of the parties stay the trial of the action until such
arbitration has been had in accordance with the terms of the
agreement, providing the applicant for the stay is not in default in
proceeding with such arbitration.
“The purpose of Section 3, in particular, is to guarantee that a party who has
secured the agreement of another to arbitrate rather than litigate a dispute will reap
the full benefits of its bargain.”18 “Section 3 is drafted to fit the paradigm situation
in which a motion for a stay pending arbitration occurs—a plaintiff brings suit on a
16
17

18

PaineWebber Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir. 1990) (Becker, J.).
Id. (quoting AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S.
643, 650 (1986)) (second internal quotation omitted).
Mendez v. Puerto Rican Int’l Companies, Inc., 553 F.3d 709, 711 (3d Cir. 2009).

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claim involving an issue it is obligated to arbitrate under an agreement in writing
with a defendant and that defendant seeks to stay the litigation pending
arbitration.”19“The defendant is entitled to a mandatory stay of the ‘suit or
proceeding’ in such circumstances providing it ‘is not in default in proceeding with
such arbitration.’”20
III.

ANALYSIS
For the foregoing reasons, Defendant’s Motion to Compel Arbitration and

Stay Proceedings is granted.
A.

Plaintiff’s Primary Argument—That The Court May Not Rely On
The Text Of The Arbitration Agreement Because Defendant
Failed To Attach It To Its Opening Brief—Is Tertiary To The
Main Issue, Was Made In Bad Faith, And Is Ultimately
Unavailing.

Plaintiff first contends that this Court should discount the existence of the
arbitration agreement because Defendant failed to attach an original copy to its
opening brief. That is an exceptionally picayune manner in which to begin one’s
argument. Basing one’s case primarily on a technicality evidences to the trier of
fact a dire lack of confidence in the true merits of the underlying issue.
Equally as troubling was the revelation that defense counsel had made aware
and provided copies of the pertinent agreement to Plaintiff’s counsel as a
consequence of Defendant’s efforts to satisfy Local Rule 7.1, which mandates that
19
20

Id. at 712.
Id.

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parties supply to the Court a certificate of concurrence or nonconcurrence, as
appropriate upon the filing of their motion. I therefore cannot consider Plaintiff’s
primary argument as having been made in good faith.
In any event, Plaintiff proceeded to acknowledge the existence and the
contents of the agreement despite her preliminary objections. In that manner, her
evidentiary objection amounted to nothing more than a distraction from the Court’s
point of view. To that end, Defendant was rightly able to cure any purported
evidentiary deficiencies in its papers simply by attaching copies of the agreements
to its reply brief. Plaintiff’s evidentiary objection effectively made a lot of fuss
about nothing. For future reference, this Court would advise the parties to compare
their relationship with the judges before whom they appear to that of a “credibility”
bank account. By the time I reached the merits here, Plaintiff’s counsel was already
perilously close to bankruptcy.
B.

Defendant Has Demonstrated The Existence Of A Valid
Arbitration Agreement That Applies To The Instant Dispute,
Thereby Requiring This Court To Compel Arbitration And Stay
Any Further Proceedings.

“A motion to compel arbitration calls for a two-step inquiry into (1) whether
a valid agreement to arbitrate exists and (2) whether the particular dispute falls
within the scope of that agreement.”21 A valid agreement to arbitrate exists here.
The parties do not dispute that. What is disputed, however, is the extent to which
21

Trippe, 401 F.3d at 532.

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this dispute falls within the scope of that agreement given Defendant’s position as
a nonsignatory to that document. As the law would have it, Defendant may step
into the shoes of its predecessor-in-interest and enforce the agreement to arbitrate
as against Plaintiff.
The Arbitration Clause at issue provides as follows:
ARBITRATION OF DISPUTES AND WAIVER OF JURY
TRIAL:
a. Dispute Resolution. Any controversy or claim between or among
you [Seller] and me [Herndon] or our assignees arising out of or
relating to this Contract or any agreements or instruments relating to
or delivered in connection with this Contract, including any claim
based on or arising from an alleged tort, shall, if required by either
you or me, be determined by arbitration, reference, or trial by a judge
as provided below. A controversy involving only a single claimant, or
claimants who are related or asserting claims arising from a single
transaction shall be determined by arbitration as described below. Any
other controversy shall be determined by judicial reference of the
controversy to a referee appointed by the court or, if the court where
the controversy is venued lacks the power to appoint a referee, by a
judge without a jury, as described below. YOU AND I AGREE AND
UNDERSTAND THAT WE ARE GIVING UP THE RIGHT TO
TRIAL BY JURY, AND THERE SHALL BE NO JURY
WHETHER THE CONTROVERSY OR CLAIM IS DECIDED
BY ARBITRATION, BY JUDICIAL REFERENCE, OR BY
TRIAL BY A JUDGE.
b. Arbitration. Since this Contract touches and concerns interstate
commerce, an arbitration under this Contract shall be in accordance
with the United States Arbitration Act (Title 9, United States Code),
notwithstanding any choice of law provision in this Contract. The
Commercial Rules of the [AAA] also shall apply. The arbitrator(s)
shall follow the law and shall give effect to the statutes of limitation in
determining any claim. Any controversy concerning whether an issue
is arbitrable shall be determined by the arbitrator(s). The award of the
9

arbitrator(s) shall be in writing and include a statement of reasons for
the award. The award shall be final. Judgment upon the award may be
entered in any court having jurisdiction, and no challenge to entry of
judgment upon the award shall be entertained except as provided by
Section 10 of the United States Arbitration Act or upon a finding of
manifest injustice.22
In addition to these broad arbitration provisions, the original agreement
between Plaintiff and the original seller of the manufactured home also contains a
form “Holder Notice” provision, which reads:
NOTICE
ANY HOLDER OF THIS CONSUMER CONTRACT IS SUBJECT
TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR
COULD ASSERT AGAINST THE SELLER OF GOODS OR
SERVICES OBTAINED PURSUANT HERETO OR WITH THE
PROCEEDS HEREOF, RECOVERY HEREUNDER BY THE
DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE
DEBTOR HEREUNDER.23
In contrast to these clear textual provisions, Plaintiff’s primary contention as
to the applicability of the agreement is that Defendant may not seek to enforce the
arbitration provision because it was not an original signatory to the document.
Predictably, this case is not the first time that the nonsignatory issue has arisen in
the contractual context. In fact, it is not even the first time the issue has arisen
involving similar arbitration clauses sought to be enforced by Defendant here.
Instead, a clear path of legal precedent permits Defendant to exercise those rights

22
23

ECF No. 12 Ex. 1 at 7.
ECF No. 12 Ex. 1 at 8.

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and remedies that its predecessor-in-interest bargained for during the agreement’s
formation.
“Ordinary principles of contract and agency law may be called upon to bind
a nonsignatory to an agreement whose terms have not clearly done so.”24 Applying
ordinary principals of contract law to a very similar arbitration agreement, the
United States Court of Appeals for the Fifth Circuit in Sherer v. Green Tree
Servicing LLC held that Green Tree was able to compel arbitration even though it
had not been a signatory in the first instance.25 “Indeed, without the Loan
Agreement, there would be no loan for Green Tree to service, and no party argues
to the contrary,” the Fifth Circuit noted.26 Importantly, in Sherer, the Plaintiff’s
claims arose “from Green Tree’s conduct as Sherer’s loan servicer” and therefore
fell “within the terms of the Loan Agreement’s arbitration clause.”27 The court
therefore concluded that the plaintiff “ha[d] validly agreed to arbitrate with a
nonsignatory, such as the loan servicer Green Tree.”28
The plain text of the arbitration clause here mimics that found in the Sherer
case. “Any controversy or claim between or among you [Seller] and me [Herndon]
or our assignees” is subject to arbitration here, so long as the dispute “aris[es] out

24
25
26
27
28

Sherer v. Green Tree Servicing LLC, 548 F.3d 379, 382 (5th Cir. 2008)
Id.
Id.
Id.
Id.

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of or relat[es] to” the initial purchase agreement. The instant dispute is covered by
that broad language. It is a claim between Herndon and an assignee of the
originating institution, and it clearly has arisen from the purchase agreement. Thus,
were the dispute only between Plaintiff and Chesapeake, this would be a rather
straightforward case, but as it turns out, that the dispute is now between Plaintiff
and Chesapeake’s successor-in-interest makes little difference.
In discerning whether Defendant may step into the original seller’s shoes as
its assignee or successor-in-interest, the parties seem to dispute the state contract
law applicable to this dispute. The Court is unconvinced that application of the law
of Maryland rather than that of Pennsylvania makes much difference here;
nevertheless, as Defendant correctly points out, the purchase agreement contains a
Maryland choice-of-law provisions, and so that is the law to which the Court must
turn.29
“Under Maryland law, an agreement to arbitrate disputes is enforceable if it
is a valid contract.”30 Accordingly, federal courts interpreting Maryland law have
held that where one party “is the assignee” as to “[another party’s] debt,” an
arbitration clause that covers “subsidiaries, affiliates, agents, employees,

29

30

See, e.g., Gay v. CreditInform, 511 F.3d 369, 389 (3d Cir. 2007) (“Pennsylvania courts
generally honor the intent of the contracting parties and enforce choice of law provisions in
contracts executed by them.”).
Grant-Fletcher v. Collecto, Inc., No. CIV.A. RDB-13-3505, 2014 WL 1877410, at *5 (D. Md.
May 9, 2014).

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predecessors in interests, successors, and assigns” is sufficient to permit an
assignee, such as a collection agency, to compel arbitration of an action arising out
of debt collection.31 This result is unavoidable because “an assignment transfers all
of the assignor's rights and interests to the assignee.”32 For instance, an “assignee
of a mortgage loan agreement [can] invoke [the loan agreement’s] arbitration
clause.”33 Thus, Maryland law permits a seller’s assignee to invoke the original
sales agreement’s arbitration clause.34
Plaintiff contends that she could have never surmised that a debt servicer
such as Defendant here would ever be party to the arbitration agreement when she
signed it. Instead, Plaintiff argues that the agreement could only ever be operable
between herself and other mobile home companies—the closed universe of parties
from which she could ever subjectively foresee drawing an assignee to
Chesapeake. That is a strained argument. When Plaintiff agreed to arbitrate “any
controversy or claim . . . arising out of or relating to” the purchase of her
manufactured home, any reasonable purchaser would have understood the scope of
such an agreement to extend to debt collection upon default of the purchase

31
32

33

34

Id. at *5.
Rota-McLarty v. Santander Consumer USA, Inc., No. CIV. WDQ-10-0908, 2011 WL
2133698, at *4 n.15 (D. Md. May 26, 2011) (citing James v. Goldberg, 256 Md. 520, 527,
261 A.2d 753, 757 (1970)).
Rota-McLarty, 2011 WL 2133698, at *4 n.15 (citing Walther v. Sovereign Bank, 386 Md.
412, 418, 450, 872 A.2d 735, 739, 758 (2005)).
Rota-McLarty, 2011 WL 2133698, at *4.

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agreement’s terms. As one other court has observed in a similar action, “Indeed, it
is difficult to understand how Green Tree could be a servicer if there were no Note,
and more importantly, how Green Tree could face statutory servicer liability if
there were no Note to service. In light of this conclusion and strong federal policy
favoring arbitration, it is appropriate to compel arbitration of the [Plaintiff’s]
claims.”35
In addition, Plaintiff cites to law suggesting that an assignee should be
unable to enforce a given contractual provision if enforcement of that provision
post-assignment would work a “material change” on the existing party’s duties.
The Court perceives no “material change” having taken place when a purchase
agreement is assigned to a servicing agency. Quite the opposite, as Plaintiff herself
characterizes the legal transaction here, “substitution of a new party as holder of
the right” precisely suggests that if the original party had the right to enforce the
agreement to arbitrate in an effort to collect past due payments, then the existence
of such a right now belongs to the Defendant.36
Plaintiff suggests to the contrary that her “risk with respect to the agreement
significantly and materially increased” post-assignment.37 She essentially claims
that she was purchasing a home—legally, financing the purchase of a home via a

35
36
37

Blinco v. Green Tree Servicing LLC, 400 F.3d 1308, 1311 (11th Cir. 2005).
ECF No. 11 at 17.
Id. at 18.

14

security agreement—but did not foresee the prospect of debt collection following
past due payments. That argument strains credulity. To illustrate, Plaintiff suggests
that such momentous changes in her contractual obligations stem from her having
to deal with “a new company” that operates under “new policies and procedures.”
If those changes were sufficient to engender a material hardship, then nearly every
commercial assignment would work a material change, rendering the terms of just
about any commercial agreement unenforceable. That rule would result in an
inefficiently low number of assignments occurring naturally in the marketplace.
Further, one might argue that Plaintiff’s duty has not changed at all, let alone
in a material fashion. Under that contention, a contention to which Defendant hints,
Plaintiff’s sole duty under the agreement was to make her payments on time,
regardless of the identity of the loan’s ultimate servicer. Under that
characterization of the relationship, whatever changes the assignment might have
on the collection process should be immaterial to Plaintiff’s continued obligation to
repay her debt. At no time, for instance, does Plaintiff contend that the assignment
ever accelerated her payments, altered her interest rate, or effected any other
change on her payment schedule or amount due. Suggesting that a mere
substitution of mortgage servicers causes a material change in a purchase
agreement leads this Court toward murky water into which it would rather not
tread.
15

Moreover, in the Court’s view, a lurking issue unaddressed by Plaintiff’s
brief but nevertheless relevant to the determination of arbitrability here is
Plaintiff’s styling of her claim as a “putative class action.” Despite Plaintiff having
effectively waived the class arbitrability argument in this forum, I think it
important to address that her filing this matter as a putative class action should
have no bearing upon my decision to enforce the arbitration agreement at issue for
several reasons.
First, as United States Supreme Court precedent prescribes, “[w]here
contractual silence is implicated, ‘the arbitrator and not a court should decide
whether a contract [was] indeed silent on the issue of class arbitration,’ and
‘whether a contract with an arbitration clause forbids class arbitration.’”38 Thus,
recognizing this Court’s limited jurisdiction and giving full effect to the parties’
contractual bargain, I would construe any contentions as to the validity of class
arbitration to fall within the domain of the arbitrator.
Second, as a textual matter, the very breadth of the arbitration clause ensures
that this matter is rightly one to be disposed of by resort to arbitration. As
emphasized earlier, the arbitration clause at issue provides for arbitration of “[a]ny

38

Vilches v. The Travelers Companies, Inc., 413 F. App’x 487, 492 (3d Cir. 2011) (quoting
Stolt-Nielsen, 559 U.S. at 679). See also Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 451
(2003) (Breyer, J.) (plurality) (holding, upon analyzing an arbitration clause very similar to
the one at issue here, that “[u]nder the terms of the parties’ contracts, the question–whether
the agreement forbids class arbitration–is for the arbitrator to decide”).

16

controversy or claim between or among you and me or our assignees arising out of
or relating to” the retail installment contract and security agreement. The breadth
of that provision is sufficient to compel arbitration of this dispute, even given its
characterization by Plaintiff as a putative class action. Namely, I would find that
arbitration of the instant action is warranted by the text of the contested clause.
This dispute, even when styled as a putative class action, qualifies as “any
controversy or claim,” because it has occurred “between or among” the parties-ininterest and because it in fact both “arise[s] out of” and “relat[es] to” the
underlying purchase agreement.
Last, as a matter of practice, the status of Plaintiff’s “putative” class is
wholly incipient, and Plaintiff has failed to allege any facts in her Complaint or
briefing plausibly suggesting the presence of similarly situated complainants. It
would be entirely premature for the Court to allow Plaintiff’s pro forma classbased characterization of her claims to forestall the parties’ sweeping agreement to
arbitrate. In essence and as a practical consideration, it would obviate the entire
purpose and judicial preference for arbitration to permit a litigant to avoid
arbitration proceedings simply by disguising through artful pleading an individual
action as a class-based one where an otherwise broad arbitration agreement
controls.

17

IV.

CONCLUSION
Because the arbitration clause in the original purchase agreement is valid

and enforceable by Defendant and because it applies to the instant dispute,
Defendant’s Motion to Compel Arbitration and Stay Proceedings is granted.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

18