City of Spearfish et al v. Duininck, Inc. (MN)

Filing 58

MEMORANDUM OPINION AND ORDER denying 36 Motion for Summary Judgment; granting 37 Motion for Summary Judgment; denying 47 Motion for Partial Summary Judgment; granting in part and denying in part 29 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 8/3/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CITY OF SPEARFISH, a South Dakota
Municipal Corporation, and
ELKHORN RIDGE MANAGEMENT, LLC,
a South Dakota Limited Liability
Company,
Plaintiffs,
v.
DUININCK, INC., f/k/a/
DUININCK BROS., INC., d/b/a DBI,
a Minnesota Corporation,

5:14-CV-05039-KES

MEMORANDUM OPINION
AND ORDER

Defendant and ThirdParty Plaintiff,
v.
AMERICAN TECHNICAL SERVICES,
INC., and
WYSS ASSOCIATES, INC.,
Third-Party
Defendants.
Defendant and third-party plaintiff, Duinink, Inc. (DBI), moves for
summary judgment on the breach of contract claim asserted by plaintiffs, City
of Spearfish and Elkhorn Ridge Management, LLC. Docket 29. Plaintiffs move
for partial summary judgment as to liability against DBI. Docket 47. Thirdparty defendants, American Technical Services, Inc. (ATS), and Wyss
Associates, Inc., move for summary judgment on the claims asserted by DBI.
Docket 36; Docket 37. For the following reasons, DBI’s motion is granted in

part. Plaintiffs’ motion is denied. Wyss’s motion is granted, and ATS’s motion is
denied.
BACKGROUND
On June 18, 2007, plaintiffs1 formed an agreement with DBI to construct
the Elkhorn Ridge Golf Course in Spearfish, South Dakota. The agreement
established that DBI was the general contractor and that Wyss Associates was
the landscape architect for the golf course. This dispute revolves around the
pond in front of the green on the 6th hole—it has leaked on at least four
occasions over the past five years.
During construction of the area dedicated for the pond, excavators
encountered gypsum. Gypsum is a type of soil known to deteriorate or dissolve
when it encounters water. Due to the discovery of gypsum, the parties hired
ATS to perform soil borings and to obtain an opinion regarding the impact
gypsum may have on the project. Based on ATS’s recommendation, the parties
amended the construction agreement to include installation of a synthetic liner
at the base of the pond to prevent leakage. DBI hired Colorado Lining
International, Inc., to install the synthetic liner. Before the synthetic liner was
installed, DBI constructed a drainage system of drain tile and a pipe that
extended from the green on the 6th hole to the area excavated for the pond.
Colorado Lining installed the synthetic liner at the base of the pond. But
the parties dispute the exact chain of events associated with the installation.
DBI asserts that Colorado Lining modified the drainage system extending from
The City of Spearfish owns the property, and Elkhorn manages the golf
course.
1

2

the green on the 6th hole by cutting the pipe and adding a non-water tight
coupling behind the synthetic liner. Plaintiffs dispute that Colorado Lining
modified the pipe. Colorado Lining completed its work on the synthetic liner in
the summer of 2008. DBI completed construction of the golf course in 2009.
In spring of 2011, plaintiffs notified DBI that the pond liner had failed
and the pond was leaking. The parties generally agree that, prior to spring of
2011, water leaked under the liner and encountered the gypsum beneath the
pond. Eventually water dissolved the gypsum and created voids under the liner
that caused the liner to fail.
The liner was repaired in May of 2011 and again in November of 2011
after a second leak. Also in November of 2011, the parties discovered that the
coupling in the pipe located behind the liner was non-water tight. The parties
determined that the coupling was a source of water leakage that contributed to
the deterioration of gypsum beneath the pond. DBI decided to raise the drain
tile and pipe above the water level of the pond, and the pond liner was repaired
in March 2012.
A third leak occurred in May of 2012. As a result, Colorado Lining
performed extensive repairs to the liner. On July 5, 2012, Elkhorn entered into
a release with Colorado Lining. Elkhorn released all claims against Colorado
Lining, known or unknown at that time, arising from the construction of the
pond. In 2013, the pond leaked yet again. The liner leaked near the intake area
of the pond due to deficient welds in the liner.

3

As a result of these issues with the pond, plaintiffs filed suit against DBI
on April 29, 2014, in Lawrence County, South Dakota. DBI removed the case to
this court under 28 U.S.C. § 1441 and relied upon diversity of jurisdiction
under 28 U.S.C. § 1332. Docket 1. DBI filed a third-party complaint against
ATS and Wyss on June 4, 2014. Docket 4.
STANDARD OF REVIEW
“One of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses[.]” Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
Corp., 477 U.S. at 323 (“[A] party seeking summary judgment always bears the
initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of
material fact.” (internal quotations omitted)). The moving party must inform the
court of the basis for its motion and also identify the portion of the record that
shows there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d
394, 395 (8th Cir. 1992) (citation omitted).
Once the moving party has met its initial burden, the nonmoving party
must establish “that a fact . . . is genuinely disputed” either by “citing to
particular parts of materials in the record,” or by “showing that the materials
cited do not establish the absence . . . of a genuine dispute.”
Fed. R. Civ. P. 56(c). “The nonmoving party may not ‘rest on mere allegations or
denials, but must demonstrate on the record the existence of specific facts
4

which create a genuine issue for trial.’” Mosley v. City of Northwoods, 415 F.3d
908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957
(8th Cir. 1995)). For purposes of summary judgment, the facts and inferences
drawn from those facts are “viewed in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)).
DISCUSSION
I.

DBI’s Motion for Summary Judgment.
DBI moves for summary judgment on plaintiffs’ breach of contract claim

by arguing that the release executed between Elkhorn and Colorado Lining also
precludes DBI’s liability. DBI relies upon Krause v. Reyelts, 646 N.W.2d 732
(S.D. 2002), to support its position. Plaintiffs argue that Krause is inapplicable
here and that the release between Elkhorn and Colorado Lining has no effect
on the breach of contract claim against DBI.
In Krause, the parties entered into a contract for construction of a home.
Id. at 733. The contractor utilized a subcontractor to perform excavation work.
Id. After completion of the home, the homeowners noticed multiple problems
associated with the subcontractor’s work. Id. The homeowners and general
contractor later signed a release in favor of the subcontractor in exchange for
payment from the subcontractor’s insurance company. Id. Further problems
came to light after executing the release, and the homeowners brought multiple
claims against the general contractor, including breach of contract. Id. at 734.
5

The state circuit court granted summary judgment in favor of the
defendant general contractor, and the Supreme Court of South Dakota affirmed
the decision by finding that release of the subcontractor also barred plaintiff’s
claims against the general contractor. Id. In reaching this conclusion, the
Krause court relied upon Estate of Williams ex rel. Williams v. Vandeberg, 620
N.W.2d 187 (S.D. 2000), which established that “a release of an agent is a
release of the principal even when the release contains an express reservation
[of applicability to the principal] and where the claim is premised on the [] act
of the agent.” Id. at 191. The following passage in Krause examines proper
application of the rule identified in Williams:
[W]e start by noting that [subcontractor] was hired by [general
contractor] to perform the [] work. Therefore, any liability of
[general contractor] arising from [subcontractor’s] work is premised
on [general contractor’s] vicarious liability. The release, however,
clearly stated that [plaintiff] released [subcontractor] from ‘any and
all claims’ arising from [subcontractor’s] work. Therefore, under
Williams, the trial court properly held that the release of
[subcontractor] bars [plaintiff] from bringing a vicarious liability
claim against [general contractor] for [subcontractor’s] defective
work.
Krause, 646 N.W.2d at 735.
The court finds that Krause is directly applicable in this case. Like in
Krause, construction of the golf course stemmed from a written construction
contract. Also like in Krause, plaintiffs executed a release of liability with the
subcontractor, Colorado Lining, after additional work was completed to fix the
subcontractor’s original work on the project. And as in Krause, plaintiffs seek
to recover on a breach of contract claim against the general contractor.

6

Despite these parallels, plaintiffs maintain that Krause is inapplicable
here. Plaintiffs attempt to distinguish Krause by arguing that their breach of
contract claim relies solely upon DBI’s conduct and not on a theory of vicarious
liability. Plaintiffs cite §§ 3.3.1 and 3.3.2 of the contract and two affidavits of
DBI employees as evidence of DBI’s direct liability under the contract.
In relevant part, section 3.3.1 provides the following: “The Contractor
shall supervise and direct the Work, using the Contractor’s best skill and
attention. The Contractor shall be solely responsible for and have control over
construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under the Contract[.]” Docket 48-1.
Section 3.3.2 states that “[t]he Contractor shall be responsible to the Owner for
acts and omissions of the Contractor’s employees, Subcontractors and their
agents and employees, and other persons or entities performing portions of the
Work for or on behalf of the Contractor or any of its Subcontractors.” Id. As to
the statements made by DBI employees, plaintiffs cite the affidavits of Charles
Lyford and Travis Quisberg. Lyford’s affidavit establishes that he was unaware
that Colorado Lining spliced the drain tile behind the liner and that he would
not have authorized such action. Docket 32. Quisberg’s affidavit mirrors
Lyford’s affidavit and also states that he was not present for the entire course
of Colorado Lining’s work on the liner. Docket 33. Plaintiffs believe these
contractual provisions and affidavits establish that their breach of contract
claim is grounded only in DBI’s failure to effectively supervise and ensure

7

proper construction of the pond and drainage system, and not vicarious
liability. The court disagrees.
First, the claims against the contractor in Krause alleged both direct and
vicarious liability. Krause, 646 N.W.2d at 733. As is the case here, the
allegations included a claim for breach of contract. Id. The Krause court
specifically found that its prior decision in Williams applied to a case
principally involving contractual liability and it was not limited to the law of
contribution among joint tortfeasors. Id. at 735. Thus, the Supreme Court
already rejected plaintiffs’ argument that the breach of contract claim against
the general contractor survives.
Second, §§ 3.3.1 and 3.3.2 of the contract provide that DBI was in charge
of the construction project, that it would supervise all subcontractors and
employees, and that it would be responsible for their acts or omissions. In
other words, the contract recognizes that DBI is vicariously liable for the acts
or omissions of its subcontractors and employees. See Kirlin v. Halverson, 758
N.W.2d 436, 444 (S.D. 2008) (stating that vicarious liability, or respondeat
superior, establishes that the principal is liable for the actions of its agents and
employees that are committed within the scope of employment). An
examination of plaintiffs’ complaint confirms that vicarious liability is
applicable here because the complaint seeks recovery for work at least partially
completed by Colorado Lining:
DBI breached its obligations under the Agreement by failing to
perform the labor and to provide the materials necessary for the
proper execution and completion of Work [sic] it contracted to
8

perform in connection with the drainage of the 6th green of the
Elkhorn golf course, the construction of the pond at that location,
the installation or welds of the pond liner at another location and by
failing to properly investigate and to timely correct said
nonconforming Work [sic].
Docket 1-1 at 3 (emphasis added). Thus, because the contract and cause of
action are grounded, at least in part, on DBI’s vicarious liability from Colorado
Lining’s work on the project, the only remaining issue is whether the release
executed between Elkhorn and Colorado Lining is sufficiently similar to Krause
in order to preclude DBI’s liability.
In Krause, the release provided in part: “Reyelts Construction and Wayne
Krause . . . hereby release and discharge Melvin Geidel Excavation . . . from
any and all claims, demands, damage, lawsuits, and causes of action arising
from Melvin Geidel Excavation’s work[.]” Krause, 646 N.W.2d at 733 (emphasis
in original). Here, the release provides in part that
Releasor hereby releases and discharges Releasee from any and all
claims, demands, and causes of action that Releasor ever had or
that Releasor has or may have on the date of this instrument,
known or unknown, arising from the construction of the retention
pond. It is understood that this Release shall inure to the benefit of
the Releasee, its successors, assigns and insurers, and it shall
bind Releasor and its assigns and successors in interest to the
above described real property.2
Docket 35-1 at 7 (emphasis added). Both releases articulate that the plaintiff
releases the subcontractor from any and all claims and causes of action
stemming from work completed by the subcontractor. Because both releases
contain similar operative language, the court finds that the holding in Krause
The release defines “Releasor” as Elkhorn Ridge Golf Management, LLC.
Docket 35-1 at 7. It defines “Releasee” as Colorado Lining International, Inc. Id.
2

9

applies here and the release of liability stemming from Colorado Lining’s acts or
omissions also applies to DBI.
Consistent with the Krause holding, however, the court also finds that
additional factual development is necessary to determine whether an entity
other than Colorado Lining performed any of the work that caused leaks in the
synthetic liner. See Krause, 646 N.W.2d at 735 (remanding case for a factual
determination as to whether general contractor performed deficient work that
was distinct from work completed by subcontractor). As an example, plaintiffs’
expert, Scott Kenner PhD, opines that the pipe itself was the incorrect
component for this drainage system and it contributed to water leakage. See
Docket 39-3. The record indicates the DBI installed the pipe and drainage
system. Based on this record, there are questions of fact as to whether any
deficient construction is attributable to DBI that does not arise from work
completed by Colorado Lining. Thus, the court grants DBI’s motion in part as
to work completed by Colorado Lining; the court denies DBI’s motion in part as
to all other alleged deficiencies.
II.

Plaintiffs’ Motion for Partial Summary Judgment.
Plaintiffs move for partial summary judgment as to liability on the

grounds that DBI breached its contractual duties under §§ 3.3.1 and 3.3.2 of
the contract. Plaintiffs rely upon the affidavits of two DBI employees, Charles
Lyford and Travis Quisberg. These affidavits merely confirm that it is unclear
how the non-water tight coupling was constructed behind the synthetic liner
and that Lyford and Quisberg were not physically present for the entire
10

construction of the liner. The court finds that these affidavits do not establish
as a matter of law that DBI breached the contract. Thus, the motion is denied.
III.

Wyss Associates and American Technical Services’ Motions for
Summary Judgment.
DBI alleges in its third-party complaint that Wyss and ATS were

negligent and that DBI is entitled to either indemnification or contribution from
both third-party defendants. Docket 4. DBI alleges that Wyss and ATS were
negligent in “failing to address the gypsum formations in the irrigation pond,
and [in] failing to take appropriate steps to disclose that knowledge and
information to [DBI] and the Plaintiffs[.]” Id. at 5-6. “In order to prevail in a suit
based on negligence, a plaintiff must prove duty, breach of that duty,
proximate and factual causation, and actual injury.” Johnson v. Hayman &
Assocs., Inc., 867 N.W.2d 698, 702 (S.D. 2015).
A. DBI failed to utilize expert testimony to establish Wyss’s standard of
care.
Wyss argues that summary judgment is appropriate because DBI failed
to offer expert testimony in support of its negligence claim. Specifically, Wyss
asserts that DBI is unable to provide any evidence that Wyss breached the
standard of care for a landscape architect because there is no expert testimony
in the record to establish how a landscape architect should respond when
encountering gypsum.
“There is no requirement that a party produce expert testimony when the
question is within a layperson’s knowledge.” Luther v. City of Winner, 674
N.W.2d 339, 344 (S.D. 2004) (citing Bland v. Davison Cty., 566 N.W.2d 452,
11

461 (S.D. 1997)). But “expert testimony is required to establish the standard of
care for a professional unless the issue is within the common knowledge of the
jury.” Id. (citing Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assocs. Co.,
500 N.W.2d 250, 255 (S.D. 1993)); see also Magbuhat v. Kovarik, 382 N.W.2d
43, 46 (S.D. 1986).
The Supreme Court of South Dakota’s opinion in Luther sheds sufficient
light on this analysis. In Luther, the Court reviewed whether improper sidewalk
design constituted a subject that fell within a layperson’s common knowledge.
Luther, 674 N.W.2d at 345. The Court compared sidewalk design with an issue
more common to an ordinary juror, sidewalk markings. Id. at 346. After noting
that a juror could review questions of fact pertaining to sidewalk markings, the
Court held that a “typical lay person would have no idea how to design and
construct a sidewalk[.]” Id. at 346. Because of the complexity of sidewalk
design, the Court affirmed the grant of summary judgment based on the
plaintiff’s failure to offer expert testimony to establish the defendant’s standard
of care. Id. at 345. Here, a lay person would have no insight regarding the
appropriate response to encountering gypsum during construction of a pond
on a golf course. Expert testimony is necessary to explain not only how
gypsum affects construction of a pond and green area but also how a
professional landscape architect should respond to such a finding.
Even though DBI chose not to designate its own expert pertaining to the
negligence claim against Wyss, DBI argues that the record contains sufficient
expert testimony to establish that Wyss breached the standard of care. DBI
12

first cites the deposition testimony from Dave Bressler, a civil engineer and
former employee of ATS. Bressler testified that he was unaware of design plans
to place a green by the pond. Docket 45-5 at 7. But had he known about the
plan, Bressler would have either recommended that designers increase the
distance between the green and pond, or he would have suggested alternative
methods to ensure that water drainage from the green did not interact with the
gypsum beneath the pond. Id. The court accepts that Bressler is highly
qualified in soil analysis and engineering; however, Bressler’s testimony only
provides evidence about how he would have responded under the
circumstances. The testimony does little to help a jury determine how a
landscape architect should respond to gypsum under these circumstances.
Second, DBI cites testimony from Mike Ollerich, a professional engineer
and owner of ATS. DBI cites the following portion of Ollerich’s expert report:
“Whomever changed the design and allowed the pipe designated as ASTMF405
to be used is at fault. This pipe is never used in a design where water is under
pressure.” Docket 39-4 at 3. In addition to this cited passage, Ollerich’s report
offers ample testimony pertaining to drainage pipes and various risks
associated with water leakage. See Docket 39-4. Similar to the proposed
testimony from Bressler, the court accepts that Ollerich’s testimony is relevant
to engineering and construction of a drainage system, but it fails to provide any
evidence relating to the standard of care for a landscape architect.
The court’s scheduling order provided that DBI should have designated
an expert by September 15, 2015. Docket 24 at 1. DBI elected not to do so.
13

DBI attempts to offer testimony from ATS’s experts pertaining to soil analysis
and drainage systems, but DBI fails to show how such testimony is relevant to
the standard of care for a landscape architect under these circumstances.
Because the subject matter here—the proper architectural response to
gypsum—is outside the common knowledge of a jury, Luther establishes that
DBI must offer expert testimony to establish the standard of care for Wyss. DBI
has failed to offer this testimony. Thus, the court finds that DBI has not met its
burden of establishing that Wyss breached the standard of care, and it grants
Wyss’s motion for summary judgment.
B. Disputes of material fact preclude a finding that ATS operated in
accordance with the standard of care.
In support of its motion for summary judgment, ATS argues that the
undisputed facts establish that it met the standard of care for a soil expert. To
prevent water leakage onto the gypsum, ATS recommended either the use of a
synthetic liner or a compacted layer of clay beneath the pond. ATS argues that
this response was appropriate under the circumstances.
DBI cites expert testimony to contradict ATS’s position. DBI relies upon
its designated expert, Ralph Lindner, President of GeoTek Engineering &
Testing Services, Inc. Lindner’s expert report articulates that the “synthetic
liner is designed to keep water only in the pond and not protect the soil
(Spearfish Formation) from moisture on the underside of the liner which can be
created from irrigation, French drains or a leakage joint in a pipe.” Docket 44-2
at 3. Additionally, Lindner asserts that “construction and operation of a
modern irrigated golf course, (with or without an irrigation pond) and grade
14

changes can change the surface and subsurface of water migration and
negatively affect karstic gypsum.” Id.
Construed in a light most favorable to DBI, Lindner’s report provides
evidence that a soil expert should have provided notice to contractors and
plaintiffs that gypsum soil underneath the pond could be exposed to water
through sources other than leakage from the pond itself. Because of that risk,
a reasonable jury could conclude that ATS’s failure to account for other
sources of water constituted a breach of the standard of care that contributed
to damage to the synthetic liner under the pond. Thus, the court denies ATS’s
motion for summary judgment on the negligence claim asserted in DBI’s thirdparty complaint.
C. Comparative fault applies in this case.
DBI argues that it is entitled to a jury determination regarding the
comparative degrees of fault among DBI, Wyss, and ATS. DBI also argues that
it is entitled to a reduction in damages for which it is potentially liable because
Wyss and ATS executed settlement agreements and releases with Elkhorn. DBI
relies upon Schick v. Rodenburg, 397 N.W.2d 464, 465 (S.D. 1986).
In Schick, the Supreme Court of South Dakota reviewed whether
settlements from alleged tortfeasors should be credited against the ultimate
judgment. Id. The dispute in Schick stemmed from a car accident where the
settling party was the estate of the defendant-driver and the defendant-driver’s
insurance company; the nonsettling parties were Chrysler and Ford, which

15

were potentially liable on breach of warranty and negligence claims. Id. at 465.
The Supreme Court provided the following analysis:
The Degen, Duncan, and Carr cases assume that once the
allegation is made that one or more parties are or may be joint
tort-feasors, and settlement is made with one of them, then any
ultimate verdict against the nonsettling parties must be reduced by
the amount of the settlement, regardless of whether the settler was
liable to the plaintiff or not. Therefore, in reliance on SDCL 15-8173 . . . we find that Chrysler and Ford as nonsettling parties are
entitled to credit for the greater of the settlement State Farm made
on behalf of Rodenburg, or Rodenburg’s percentage of liability as
ultimately determined.
Id.
The same rationale applies here. DBI alleged in its third-party complaint
that ATS and Wyss were negligent and that DBI is entitled to either indemnity
or contribution from both third-party defendants. Docket 4. In response to the
third-party complaint filed by DBI, ATS and Wyss entered into settlement
agreements and releases with Elkhorn. See Docket 45-1; Docket 45-2. The
settlement agreements recognize that both third-party defendants are alleged to
be joint tortfeasors or joint obligors and that the sum of money paid to Elkhorn
“shall be the full extent of the pro rata share of settling third-party defendant’s
[] obligation, liability, or fault for damages to Elkhorn.” Docket 45-1 at ¶6;
Docket 45-2 at ¶7. Thus, because Schick establishes that the “ultimate verdict
against the nonsettling parties must be reduced by the amount of settlement,”
SDCL 15-8-17 provides:
A release by the injured person of one joint tort-feasor, whether before or after
judgment, does not discharge the other tort-feasors unless the release so
provides; but reduces the claim against the other tort-feasors in the amount of
the consideration paid for the release, or in any amount or proportion by which
the release provides that the total claim shall be reduced, if greater than the
consideration paid.
3

16

DBI is entitled to a reduction of damages “regardless of whether the settler was
liable to the plaintiff or not.” Schick, 397 N.W.2d at 468.
Because the court grants summary judgment on the negligence claim in
favor of Wyss, the court finds that any recovery plaintiffs obtain against DBI
shall be reduced by $40,000, the amount Wyss paid Elkhorn in exchange for
the release. See Docket 45-2 at ¶1. As to ATS, because the court denies its
motion for summary judgment, the court finds that any recovery that plaintiffs
obtain against DBI shall be reduced in accordance with the jury’s
determination as to ATS’s comparative fault or the $10,000 it paid plaintiffs in
exchange for the release. See Docket 45-1 at ¶1.
CONCLUSION
Based on the foregoing, it is
ORDERED that Duininck Inc.’s motion for summary judgment
(Docket 29) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that plaintiffs’ motion for partial summary
judgment (Docket 47) is DENIED.
IT IS FURTHER ORDERED that Wyss Associates, Inc.’s motion for
summary judgment (Docket 37) is GRANTED.
IT IS FURTHER ORDERED that American Technical Services, Inc.’s
motion for summary judgment (Docket 36) is DENIED.
Dated August 3, 2016.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
17