Ecoquij-Tzep v. Hawaiian Grill

Filing 24

MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendant's Second Motion to Dismiss for Failure to State a Claim and Alternatively, Motion to Strike Defendant's Class Action Allegations [Dkt. No. #13 ]. The motion to dismiss is granted and the allegations under the FLSA based on individual coverage are dismissed with prejudice. But Plaintiff may proceed on his FLSA claim based on enterprise coverage, and the Court denies the motion to strike the collective action allegations. (Ordered by Magistrate Judge David L Horan on 12/16/2016) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PASCUAL ECOQUIJ-TZEP, and all
others similarly situated under 29
USC 216(b),
Plaintiffs,
V.
HAWAIIAN GRILL also known as MW
Hawaiian Grill,
Defendant.

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No. 3:16-cv-625-BN

MEMORANDUM OPINION AND ORDER
Defendant Hawaiian Grill a/k/a MW Hawaiian Grill has filed a Second Motion
to Dismiss for Failure to State a Claim and Alternatively, Motion to Strike Defendant’s
Class Action Allegations. See Dkt. No. 13 (the “Second Motion to Dismiss”). Plaintiff
Pascual Ecoquij-Tzep has filed a response, see Dkt. No. 14, and Defendant has filed a
reply, see Dkt. No. 15. For the reasons explained below, the Court GRANTS in part and
DENIES in part the Second Motion to Dismiss.
Background
On March 4, 2016, Plaintiff sued Defendant, his former employer, alleging that
it failed to pay him the minimum wage or overtime, in violation of the Fair Labor
Standards Act, 28 U.S.C. § 206, et seq. (the “FLSA”).
Defendant filed a motion to dismiss, see Dkt. No. 6, which was granted in part
and denied in part, and Plaintiff was given leave to file an amended complaint with
respect to his individual coverage and collective action allegations, see Dkt. No. 10

In his First Amended Complaint, Plaintiff claims that he worked as a server and
cashier for Defendant from approximately December 3, 2014 to January 25, 2016; that
he was paid in lump sum payments resulting in an average hourly rate of $6.00 per
hour; and that, although he worked an average of seventy hours per week, he was not
paid the time-and-a-half rate for time that he worked in excess of 40 hours, as required
by the FLSA. Plaintiff sues both individually and on behalf of other similarly-situated
hourly employees of Defendant. See Dkt. No. 11.
In its Second Motion to Dismiss, Defendant argues that Plaintiff fails to plead
sufficient facts to state a claim for individual coverage, or, in the alternative, that
Plaintiff’s collective action allegations should be stricken.
Legal Standards and Analysis
I.

Plaintiff has not stated a FLSA claim based on individual coverage.
To establish a claim for either unpaid overtime or minimum wage compensation

under the FLSA, a plaintiff must prove that he was an “employee[] engaged ‘in the
production of goods for commerce’ (‘individual coverage’) or ‘employed in an enterprise
engaged in commerce or in the production of goods for commerce’ (‘enterprise
coverage’).” Martin v. Bedell, 955 F.2d 1029, 1032 (5th Cir. 1992) (citing 29 U.S.C. §
207(a)(1)) (emphasis in original). “Either individual or enterprise coverage is enough
to invoke FLSA protection.” Id. (emphasis in original).
For purposes of establishing enterprise coverage, the FLSA defines an
“enterprise engaged in commerce or in the production of goods for commerce” as one
that
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(A) (i) has employees engaged in commerce or in the production of goods
for commerce, or that has employees handling, selling, or otherwise
working on goods or materials that have been moved in or produced for
commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business
done is not less than $500,000 (exclusive of excise taxes at the retail level
that are separately stated)[.]
29 U.S.C. § 203(s)(1); see also Lopez-Santiago v. Coconut Thai Grill, No.
3:13-cv-4268-D, 2014 WL 840052, at *1-*2 (N.D. Tex. Mar. 4, 2014).
The first prong of the enterprise coverage definition can be met in one of two
ways: by satisfying the requirements of either (1) the “engaged in commerce” clause or
(2) the “handling” clause.
The Court can analyze coverage under the “engaged in commerce” clause
essentially in the same manner as it analyzes individual coverage, although the
question as to individual coverage is whether the plaintiff himself engaged in
interstate commerce, whereas the question in an enterprise coverage analysis is
whether any two or more of the business’s employees engaged in interstate commerce.
See Mendoza v. Detail Solutions, LLC, 911 F. Supp. 2d 433, 439 & n.4 (N.D. Tex. 2012).
The “handling clause” requires the court to find that an employer had more than
one employee “handling, selling, or otherwise working on” goods that have moved in
interstate commerce. See 29 U.S.C. § 203(s)(1)(A)(i); Mendoza, 911 F. Supp. 2d at 441.
Enterprise coverage is an element of a claim rather than a jurisdictional
prerequisite. See Lopez-Santiago, 2014 WL 840052, at *3; Rodriguez v. Myrmidones
LLC, No. 8:14-cv-618-T-24-TBM, 2014 WL 1779296, at *2 (M.D. Fla. May 5, 2014).
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For purposes of establishing individual coverage, courts apply a practical test,
which looks to whether an employee’s work “is so directly and vitally related to the
functioning of an instrumentality or facility of interstate commerce as to be, in
practical effect, a part of it, rather than isolated local activity.” Mendoza, 911 F. Supp.
2d at 439. There is no de minimus requirement. “‘[A]ny regular contact with commerce,
no matter how small, will result in coverage.’” Sobrinio v. Med. Ctr. Visitor’s Lodge,
Inc., 474 F.3d 828, 829 (5th Cir. 2007) (quoting Marshall v. Victoria Transp. Co., 603
F.2d 1122, 1124 (5th Cir. 1979)).
“[C]ourts routinely look to whether the employee’s work engages him in the
‘actual movement of persons or things.’” Mendoza, 911 F. Supp. 2d at 433. Employees’
work that merely affects commerce is not sufficient to establish individual coverage.
See Barr v. Custom Design & Installation, Inc., No. 3:13-cv-04925-M, 2015 WL
1255870, at *2 (N.D. Tex. Mar. 19, 2015). The work must be “entwined with the
continuous stream of interstate commerce,” and it is not sufficient that the employee
“used products that had traveled in interstate commerce.” Sontay v. Hin's Garden, No.
H:13-CV-3721, 2014 WL 6722507, at *4 (S.D. Tex. Nov. 26, 2014). Working on goods
that have previously moved through interstate commerce is not considered “part of the
functioning of an instrumentality or facility of interstate commerce,” and even
purchasing products that have been manufactured out of state is insufficient to satisfy
individual coverage. Stanley v. Sawh, No. CV H-13-3284, 2016 WL 561177, at *4 (S.D.
Tex. Feb. 12, 2016).

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Plaintiff alleged both individual and enterprise coverage in his Amended
Complaint. See Dkt. No. 11 at 2-3. Defendant’s Second Motion to Dismiss challenges
the sufficiency of Plaintiff’s individual coverage theory but not the enterprise coverage
theory. See Dkt. No. 13.
In its Reply, Defendant also argues that Plaintiff did not adequately plead
enterprise coverage. See Dkt. No. 15 at 6-7. But new arguments cannot be raised in a
Reply by a party seeking dismissal of a claim under Federal Rule of Civil Procedure 12.
See Johnson v. Wells Fargo Bank, N.A., 999 F. Supp. 2d 919, 934-36 (N.D. Tex. 2014).
Because Defendant did not move to dismiss Plaintiff’s enterprise coverage claim, the
validity of that claim is not before the Court on Defendant’s Second Motion to Dismiss.
See Dkt. No. 10 at 4 & n.3 (same sequence of arguments and holding concerning
original motion to dismiss).
Defendant moves to dismiss the individual coverage claims under Federal Rules
of Civil Procedure 9(b) and 12(b)(6). Rule 9(b) imposes heightened pleading
requirements for allegations of fraud or mistake but does not apply in this case because
Plaintiff asserts claims for FLSA violations, not fraud or mistake. See, e.g., Galloway
v. Chugach Gov’t Servs., Inc., ___ F. Supp. 3d ___, No. CV 15-979 (RDM), 2016 WL
4179847, at *3 (D.D.C. Aug. 5, 2016).
In deciding a Federal Rule of Civil Procedure 12(b)(6) motion, the Court must
“accept all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205–06 (5th Cir. 2007).
To state a claim upon which relief may be granted, Plaintiffs must plead “enough facts
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to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise
a right to relief above the speculative level.” Id. at 555. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. “A claim for relief is implausible on its face when ‘the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct.’”
Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting
Iqbal, 556 U.S. at 679).
While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not
contain detailed factual allegations, Plaintiffs must allege more than labels and
conclusions, and, while a court must accept all of the Plaintiffs’ allegations as true, it
is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic
recitation of the elements of a cause of action, supported by mere conclusory
statements, will not suffice. See id. But, “to survive a motion to dismiss” under
Twombly and Iqbal, a plaintiff need only “plead facts sufficient to show” that the
claims asserted have “substantive plausibility” by stating “simply, concisely, and
directly events” that Plaintiff contends entitle him or her to relief. Johnson v. City of
Shelby, Miss., 574 U.S. ____, 135 S. Ct. 346, 347 (2014) (per curiam) (citing FED. R. CIV.
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P. 8(a)(2)-(3), (d)(1), (e)); accord N. Cypress Med. Ctr. Operating Co. v. Cigna
Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) (“To survive a Rule 12(b)(6) motion to
dismiss, the complaint does not need detailed factual allegations, but it must provide
the plaintiff's grounds for entitlement to relief – including factual allegations that,
when assumed to be true, raise a right to relief above the speculative level.” (footnote
and internal quotation marks omitted)).
The United States “Supreme Court has made clear that a Rule 12(b)(6) motion
turns on the sufficiency of the ‘factual allegations’ in the complaint.” Smith v. Bank of
Am., N.A., 615 F. App’x 830, 833 (5th Cir. 2015) (quoting Johnson, 135 S. Ct. at 347),
and that the Federal Rules of Civil Procedure “do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted,”
Johnson, 135 S. Ct. at 346.
Plaintiff’s Amended Complaint states that he worked as a cashier and server
and that his work affected interstate commerce because
the materials and goods that Plaintiff handled and/or used on a constant
and/or continual basis and/or that were supplied to Plaintiff by the
Defendant to use on the job moved through interstate commerce prior to
and/or subsequent to Plaintiff’s use of the same. Plaintiff’s work for the
Defendant was actually in and/or so closely related to the movement of
commerce while he worked for the Defendant that the Fair Labor
Standards Act applies to Plaintiff’s work for the Defendant. For example,
Plaintiff’s work as a cashier regularly, at least on a monthly basis,
involved the processing of credit card payments from customers who were
traveling from outside the state of Texas from places such as Mexico and
Arkansas.
Dkt. No. 11 at ¶ 9. These allegations are identical to those made in the original
complaint except for the last sentence, which was added in the amended complaint to
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address the Court’s prior determination that “Plaintiff offers neither a description of
the nature of his work nor a clarification as to how such work engaged him in
interstate commerce, and the mere fact that he was a server and cashier is not
enough.” Dkt. No. 10 at 5.
These allegations in the amended complaint are likewise insufficient to state a
claim for individual coverage. Not only do “courts regularly find that employees in
equivalent positions are not individually engaged in interstate commerce,” see id. at
5-6 (citing and discussing cases), but also that mere “usage of credit cards is
insufficient for purposes of establishing FLSA individual coverage,” Thorne v. All
Restoration Servs., Inc., 448 F.3d 1264, 1266-67 (11th Cir. 2006) (rejecting argument
that regular usage of credit cards is sufficient to establish FLSA individual coverage);
see Mayo v. Jean Nicole Hair Salons, Inc., No. 2:15-cv-115-FtM-38MRM, 2015 WL
4751202, at *3 (M.D. Fla. Aug. 11, 2015) (holding that “merely using a customer’s
credit card to ring up the sale does not constitute interstate commerce,” particularly
where the subject of the transaction was performed locally); Joseph v. Nichell’s
Carribean Cuisine, Inc., 862 F. Supp. 2d 1309, 1313 (S.D. Fla. 2012) (holding, as a
matter of law, that Plaintiff who processed credit and debit card purchase transactions
as part of her job was not individually engaged in interstate commerce); Marckenson
v. Lal Peker, LLC, No. 1:11-cv-22617-KMM, 2011 WL 5023422, at *4 (S.D. Fla. Oct. 19,
2011) (granting motion to dismiss where plaintiff “failed to produce any evidence
indicating that by merely processing credit cards for goods purchased locally he was
engaging in interstate commerce”); Dent v. Giaimo, 606 F. Supp. 2d 1357, 1361 (S.D.
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Fla. 2009) (holding that plaintiff who processed credit cards for out-of-state patients
was not individually engaged in interstate commere); Kitchings v. Fla. United
Methodist Children’s Home, Inc., 393 F. Supp. 2d 1282, 1293 & n.26 (M.D. Fla. 2005)
(holding that plaintiff’s use of credit card to purchase local goods did not constitute
“engagement in commerce”); see also Sandles v. Wright, Civil Action No. 1:12-cv-309,
2013 WL 5497788, at *7 (E.D. Tex. Oct. 3, 2013) (holding that processing credit card
payments for out-of-state campers, in addition to receiving and making out-of-state
telephone calls related to booking reservations or contacting out-of-state campers for
other reasons and handling mail which either had been sent from or was to be sent to
locations outside of Texas, was sufficient to show that Defendant was engaged in
commerce).
Because Plaintiff’s individual coverage allegations are insufficient to state a
claim, and because Plaintiff has been allowed to replead and the Court assumes that
Plaintiff has now stated his best case, the Court dismisses the FLSA claim based on
individual coverage with prejudice.
II.

Plaintiff’s collective action allegations will not be stricken.
Defendant also argues that Plaintiff failed to make allegations showing that this

action can be maintained as a collection action under 29 U.S.C. § 216(b).
Section 216(b) permits an employee to pursue a collective action in a
representative capacity on behalf of persons who are “similarly situated” to the
plaintiff and who “opt in” to the collective action by filing a written consent with the
court. 29 U.S.C. § 216(b). To act in a representative capacity, a plaintiff can seek
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conditional class certification, which permits the plaintiff to send notice to potential
class members. See Genesis Healthcare Corp. v. Symczk, ___ U.S. ___, 133 S. Ct. 1523,
1527 (2013). To determine whether to conditionally certify a class, the majority of
courts within the Fifth Circuit have adopted the approach set forth in Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). See Huchingson v. Rao, CV No. 5:14-cv-1118, 2015
WL 1655113, at *2 (W.D. Tex. Apr. 14, 2015) (citing cases); see also Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995) (approving the Lusardi approach as one
acceptable approach for FLSA class certification). The Lusardi approach involves
notice and merits stages. See Mooney, 54 F.3d at 1213-14. At the notice stage, a court
determines whether the putative class members’ claims are sufficiently similar to
merit sending notice to potential class members. See Acevedo v. Allsup’s Convenience
Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010). If conditional certification is granted
notice is given to such individuals, who may opt in . See id. Once they have opted in
and discovery is largely complete, the defendant can file a decertification motion,
asking the court to re-assess whether the claimants are similarly situated, and the
court can decide whether to decertify the class. See Mooney, 54 F.3d at 1214; see
generally Portillo v. Permanent Workers, L.L.C., ___ F. App’x ___, No. 15-30789, 2016
WL 6436839, at *2-*3 (5th Cir. Oct. 31, 2016) (describing the Lusardi approach).
Courts disagree about whether a plaintiff purporting to represent similarly
situated individuals under Section 216(b) must plead facts to support the propriety of
a collective action to survive a motion to dismiss. Some have held that a “challenge on
the pleadings [is an] end-run [around] the certification process,” since the plaintiffs
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have not had the opportunity to develop the record. Lang v. DirecTV, Inc., 735 F. Supp.
2d 421, 435-36 (E.D. La. 2010) (“[D]efendant’s motion to dismiss is premature.”);
Hoffman v. Cemex, Inc., Civil Action No. H-09-3144, 2009 WL 4825224, at *4 (S.D. Tex.
Dec. 8, 2009) (“[P]laintiffs need not plead facts to support the propriety of a collective
action to survive a Rule 12(b)(6) motion. Whether proceeding collectively will be
addressed when the plaintiffs move for conditional certification.”); Perez v. T.A.S.T.E.
Food Products, Inc., Cv. No. 5:13-cv-655-DAE, 2014 WL 412327, at *6-7 (W.D. Tex. Feb.
3, 2014 (same); Craven v. Excel Staffing Serv., Inc., Civil Action No. H-12-2860, 2014
WL 345682, at *7 (S.D. Tex. Jan. 30, 2014) (same); Ambrose v. Northstar Mem’l Group,
No. 12-2278-STA-DKV, 2012 WL 3727156, at *1 (W.D. Tenn. Aug. 27, 2012 (same).
Other courts have held that Rule 12(b)(6) requires that the complaint at least
give the defendant fair notice of the putative class, finding that a fair notice inquiry is
a much different inquiry than that made at the conditional class certification stage. See
Flores v. Act Event Servs., Inc., 55 F. Supp. 3d 928, 940 (N.D. Tex. 2014) (Fish, J.)
(finding a class defined in inexact and broad terms did not give fair notice to the
defendant and could not survive a motion to dismiss); Huchingson, 2015 WL 1655113,
at *3 (same); Dyer v. Lara’s Trucks, Inc., Civil Action File No. 1:12-cv-1785-TWT, 2013
WL 609307, at *3 (N.D. Ga. Feb. 19, 2013) (same); Creech v. Holiday CVS, LLC, Civil
Action No. 11-46-BAJ-DLD, 2012 WL 4483384, at *3 (M.D. La. Sept. 28, 2012) (same).
The Court agrees that, at the pleading stage, plaintiffs asserting FLSA collective
actions must make plausible allegations that there are similarly situated employees

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with certain common alleged attributes that could support a collective action. See Dyer,
2013 WL 609307, at *3.
In the Complaint, Plaintiff alleged that
[i]t is believed that the Defendant has employed other similarly situated
employees like the Plaintiff who have not been paid minimum wages
and/or overtime for work performed in excess of 40 hours weekly from the
filing of this complaint back at least three years.
Dkt. No. 1 at 1-2. The Court found that “Plaintiff did not define the alleged class
anywhere in the Complaint, and thus has not provided Defendant with notice
regarding the scope of the putative class.” Dkt. No. 10 at 10. The Court dismissed the
class action allegations without prejudice and granted leave for Plaintiff to replead
them. See id. at 10-11.
In the Amended Complaint, Plaintiff stated the same allegations, but added
These similarly situated employees are other hourly employees of the
Defendant, including cashiers, servers, and cooks, who were paid lump
sum payments regardless of the actual number of hours worked per week.
These lump sum payments resulted in either or both minimum wage
violations and a failure to pay proper overtime premiums to these
employees similar to the violations suffered by Plaintiff as set out below.
Dkt. No. 11 at 2.
Defendant moves to strike the class allegations in the Amended Complaint
under Federal Rules of Civil Procedure 12(f), 23(c)(1)(A) and 23(d)(1)(D).
Rules 23(c)(1)(A) and 23(d)(1)(D) address issues concerning class actions but are
not applicable because FLSA collective actions are not Rule 23 class actions. See FED.
R. CIV. P. 23(c)(1)(A), 23(d)(1)(D); cf. Baldridge v. SBC Communications, Inc., 404 F.3d
930, 932 (5th Cir. 2005) (“But, as the district court observed, this case involves a
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‘garden-variety’ § 216(b) FLSA action and is not a rule 23 class action, so rule 23(f) is
inapplicable.”).
Under Federal Rule of Civil Procedure 12(f), the Court “may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” FED. R. CIV. P. 12(f). The power to strike a pleading is within the
Court’s discretion but should be sparingly used. See United States v. Coney, 689 F.3d
365, 379 (5th Cir. 2012). The motion to strike on grounds of immateriality or
impertinence “‘should be granted only when the pleading to be stricken has no possible
relation to the controversy.’” Id. (quoting Augustus v. Bd. of Pub. Instruction, 306 F.2d
862, 868 (5th Cir. 1962)). Further, matter is not “scandalous” for purposes of Rule 12(f)
if it is “directly relevant to the controversy at issue and are minimally supported in the
record.” Id. With regard to striking alleged defenses, “although motions to strike a
defense are generally disfavored, a Rule 12(f) motion to dismiss a defense is proper
when the defense is insufficient as a matter of law.” Kaiser Aluminum & Chemical
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982).
“Both because striking a portion of a pleading is a drastic remedy, and because
it often is sought by the movant simply as a dilatory tactic, motions under Rule 12(f)
are viewed with disfavor and are infrequently granted.” Jacobs v. Tapscott, No. 3:04-cv1968-D, 2004 WL 2921806, at *2 (N.D. Tex. Dec.16, 2004), aff'd on other grounds, 277
Fed. Appx. 483 (5th Cir. 2008).
Defendant argues that the class allegations, as amended, fail to define the class
“with reference to objective criteria” and that “there must be a reasonable and
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administratively feasible mechanism for determining whether putative class members
fall within the class definition.” Dkt. No. 13 at 5 & Dkt. No. 15 at 6 (quoting Hayes v.
Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013) (quoting Marcus v. BMW of N.
Am., LLC, 687 F.3d 583, 592 (3d Cir. 2012))). Defendant observes that the class of
hourly wage employees that Plaintiff seeks to represent contains individual employees
who have performed different lines of work for different managers and, most likely, in
quite different working conditions. Defendant argues that Plaintiff has not made a
showing that any hourly wage employee at Defendant’s restaurant was subjected to the
same employment practices that he alleges violated the FLSA. Plaintiff also argues
that Plaintiff has not presented any evidence to support his allegation that Defendant
is making lump sum payments corporate-wide for all of its employees or that it has a
uniform corporate practice disregarding overtime. Instead, Defendant argues, the class
definition is so broad and vague that it requires the Court to look into each and every
member’s job duties and individual circumstances to determine liability issues.
The Court concludes that Plaintiff’s description of the putative class is sufficient
and that the collective action allegations will not be stricken from Plaintiff’s Amended
Complaint. Defendant will have the opportunity to make these objections in response
to Plaintiff’s motion for conditional certification under 29 U.S.C. § 216(b). At this stage,
Plaintiff’s amended allegations in support of proceeding as a Section 216(b) collective
action are sufficient under Rule 8(a).

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Conclusion
The Court GRANTS in part and DENIES in part Defendant’s Second Motion to
Dismiss for Failure to State a Claim and Alternatively, Motion to Strike Defendant’s
Class Action Allegations [Dkt. No. 13]. The motion to dismiss is granted and the
allegations under the FLSA based on individual coverage are dismissed with prejudice.
But Plaintiff may proceed on his FLSA claim based on enterprise coverage, and the
Court denies the motion to strike the collective action allegations.
SO ORDERED.
DATE: December 16, 2016

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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