Vallejo v Garda CL Southwest Inc

Filing 45

MEMORANDUM AND ORDER entered DENYING 39 MOTION to Dismiss or, In the Alternative, Stay Proceedings and Compel Arbitration, and Brief in Support. Status Conference set for 6/21/2013 at 09:00 AM in Courtroom 11B before Judge Lee H Rosenthal.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTIAN VALLEJO, Individually and on §
behalf of all similarly situated current and
§
former employees,
§
§
Plaintiff,
§
§
VS.
§
§
GARDA CL SOUTHWEST, INC.,
§
§
Defendant.
§

CIVIL ACTION NO. H-12-0555

MEMORANDUM AND ORDER
This is a suit alleging a failure to pay the overtime required under the Fair Labor Standards
Act of 1938 (FLSA), 29 U.S.C. § 201 et seq. Christian Vallejo sued his former employer, Garda CL
Southwest, Inc. (Garda), asserting a right to relief for himself and on behalf of other similarly
situated employees. Garda moved to dismiss or stay and compel arbitration under an arbitration
clause contained in a collective-bargaining agreement that Vallejo signed. (Docket Entry No. 15).
On October 18, 2012, three other Garda employees — Artemio Caballero, Karlnetta Coleman, and
Jason Winn — filed opt-in notices and then moved to intervene in the FLSA case against Garda.
(Docket Entries No. 19–21, 32).
On January 30, 2013, this court granted the motion to dismiss in part and denied it in part.
The motion was granted to the extent that Vallejo was compelled to arbitrate his own claims, which
were dismissed. (Docket Entry No. 36). The motion to intervene was granted. On March 8, 2013,
Garda moved to dismiss or stay the proceedings and compel arbitration as to the three intervenors,
who filed a response, to which Garda replied. (Docket Entry No. 39, 43, 44). Based on the

pleadings, the motion and response, and the relevant law, this court denies the motion to dismiss or
to stay and compel arbitration as to the intervenors’ claims. The reasons for this ruling are explained
below.
I.

Background
A.

The Plaintiffs
1.

Christian Vallejo

Although this court has ruled that Christian Vallejo must arbitrate his claims against Garda,
his claims are helpful to understanding the present motion seeking to require the intervenors to
arbitrate. Christian Vallejo worked as an armored-car driver and guard for Garda in Houston, Texas
from July 2008 until Garda terminated his employment on January 26, 2012. Vallejo was a member
of the Houston /North Houston Drivers Association, which Garda alleges is the employees’ union
for Garda armored-car personnel. Vallejo was subject to a collective-bargaining agreement between
the union and Garda. The agreement, which Vallejo signed on October 21, 2011, stated that the
union is the exclusive representative for collective-bargaining purposes. The agreement contained
an arbitration clause covering “grievances,” which were defined as follows:
a legitimate controversy, claim or dispute by any employee, shop steward or the
Union concerning rates of pay, entitlement to compensation, benefits, hours, or
working conditions set forth herein . . . . any claim under any federal, state or local
law, statute or regulation or under any common law theory whether residing in
contract, tort or equity or any other claim related to the employment relationship.
(Docket Entry No. 15, Ex. A, Collective-Bargaining Agreement, Art. 5(a)). The agreement required
employees to submit grievances first to Garda and then to an arbitrator, whose decision would be
final and binding. The agreement also required any dispute about the “interpretation or application
of this Agreement” to be arbitrated. (Id.) The agreement had an effective date of November 1,

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2011.
The agreement stated that it was between Garda and the drivers’ association, identified as
the union for, and the exclusive bargaining representative of, the armored car guards and drivers.
It is undisputed that Vallejo signed the agreement. The signature line was below language stating
that by signing, the employee had (1) read and understood the agreement, (2) signed it “freely and
voluntarily,” and (3) expressly “agree[d] to its terms and conditions.” (Id., at 16–17). Vallejo
continued to work for Garda after receiving notice of the agreement with the arbitration provision
and signing it.
2.

The Intervenors

Jason Winn was employed by Garda as a driver, messenger, and guard at Garda’s Houston
facility until his employment was terminated on September 14, 2010. Karlnetta Coleman was
employed by Garda from January 17, 2011 to January 31, 2012, when Garda terminated her
employment. She was employed as a driver, messenger, and guard at Garda’s Houston, Texas
facility. Artemio Caballero began working for Garda on June 7, 2010 as a driver and messenger at
its Houston facility. (Docket Entry No. 33).
According to Garda, the intervenors were all members of the drivers’ association during the
time they worked for Garda. (Docket Entry No. 39, at 5). But Garda has not produced collectivebargaining agreements signed by the intervenors. Instead, Garda explains that all drivers who
worked during the same period were automatically members of the union and subject to the terms
of the collective-bargaining agreement. According to Garda, “[a]n Agreement setting forth terms
and conditions of employment for the drivers/messengers/guards and Garda (as well as its
predecessors) has been negotiated and in effect since at least 2006. (Id. (citing Docket Entry No.

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40, App. at 5, Decl. of Winton Blackmon, ¶ 5)). “These Agreements are negotiated and bargained
for by an exclusive bargaining representative (the Houston/North Houston Drivers Association) on
all drivers/messengers/guards’ behalf.” (Id.)
The intervenors asserted that they never agreed to be part of the drivers’ association or any
union while at Garda. They deny signing a collective-bargaining agreement that contained an
arbitration provision. Each intervenor submitted an affidavit supporting these assertions. (Docket
Entry No. 43, Exs. A–D). The intervenors also point out that while Vallejo’s signature is among the
signatures on the Labor Agreement Garda produced, their signatures are not. In addition, Winn’s
employment terminated before the 2011 Labor Agreement’s effective date. Finally, the intervenors
argue that there is no evidence that they knew about the Labor Agreement during the time they
worked for Garda. (Docket Entry No. 43, ¶ 6).
B.

This Lawsuit

Vallejo claimed that he and other employees were entitled to overtime pay for their work at
Garda. Vallejo proposed a class defined as “[a]ll individuals who were employed or are currently
employed by one or more of the following: Defendant, its subsidiaries or affiliated companies as
armored transport employees or in any other similarly titled position at any time during the relevant
statute of limitations period.” (Docket Entry No. 16, ¶ 32). In his amended complaint, Vallejo
alleged, among other things, that the drivers’ association was a fraudulent or fictitious union, making
the Labor Agreement containing the arbitration clause fraudulent as well. Vallejo asserted state-law
claims, including for fraud, fraudulent inducement, negligence, and negligent misrepresentation,
based on those factual allegations.
Garda moved to dismiss or in the alternative to stay the litigation and compel arbitration.

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(Docket Entry No. 15). Garda argued that Vallejo’s claims were expressly covered by the grievance
and arbitration provisions of the collective-bargaining agreement.

Vallejo’s claim that the

collective-bargaining agreement was fraudulent was, according to Garda, a challenge to the validity
of the contract as a whole rather than to the arbitration clause, and therefore was an issue for the
arbitrator to decide. (Id. at 12–13).
On October 18, 2012, Winn, Coleman, and Caballero filed notices of consent to join this
collective action. (Docket Entries No. 19, 20, 21). Vallejo responded to Garda’s motion to dismiss
or to compel arbitration and moved for class certification. (Docket Entries No. 22, 23). Vallejo
sought to divide the putative class into two subclasses. One would include employees like Vallejo
who did sign the agreement. For this subclass, Vallejo argued, the arbitration clause would not be
enforceable because the collective-bargaining agreement containing it was the product of fraud and
fraudulent coercion. Vallejo also argued that even if the arbitration clause was enforceable, it would
cover only those claims that arose after the collective-bargaining agreement’s effective date. The
second subclass would include employees like Winn, Coleman, and Caballero, whom Vallejo
claimed had not signed the collective-bargaining agreement and were not otherwise bound by its
grievance and arbitration provisions.
On November 14, 2012, this court held a hearing on the parties’ motions. (Docket Entry No.
30). On December 10, 2012, Winn, Coleman, and Caballero moved to intervene with a proposed
complaint. (Docket Entries No. 32, 33). On January 30, 2013, this court dismissed Vallejo’s claims
on the basis of the arbitration clause and granted Winn, Coleman, and Caballero leave to intervene.
(Docket Entry No. 36). Garda moved to dismiss or to stay and compel arbitration as to the claims
of Winn, Coleman, and Caballero. (Docket Entry No. 39). As with Vallejo, Garda argued that the

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Labor Agreement’s arbitration clause mandated arbitration of the intervenors’ claims. Garda also
argued that arguments about the union’s validity did not affect the validity of the arbitration clause
and were for an arbitrator to decide. In response, the intervenors argued that Garda had not
presented evidence that they assented to the arbitration clause in the Labor Agreement and repeated
Vallejo’s argument that the union itself was fictitious and fraudulent. (Docket Entry No. 43). Garda
replied that the legal status of the union was irrelevant to whether the Labor Agreement’s arbitration
clause applied to employees such as Winn, Coleman, and Caballero. (Docket Entry No. 44).
These arguments and their responses are discussed below.
II.

The Legal Standard
The Federal Arbitration Act (“FAA”) requires district courts to direct parties to arbitrate

issues covered by a valid arbitration agreement. 9 U.S.C. §§ 3, 4; see also Dean Witter Reynolds,
Inc. v. Byrd, 470 U.S. 213, 218 (1985). Federal policy strongly favors enforcing arbitration
agreements. Dean Witter Reynolds, 470 U.S. at 217; Moses H. Cone Mem. Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983). When a party moves to compel arbitration, the FAA requires
district courts to order arbitration of arbitrable claims. Sedco, Inc. v. Petroleos Mexicanos Mexican
Nat’l Oil Co. (In re Sedco, Inc.), 767 F.2d 1140, 1147 (5th Cir. 1985). The first task of a court asked
to compel arbitration is to determine whether the parties entered into a binding agreement to
arbitrate the dispute. Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614,
625–26 (1985); JP Morgan Chase & Co. v. Conegie ex rel. Lee, 492 F.3d 596, 598 (5th Cir. 2007).
Making this determination requires the court to consider two issues: (1) validity — i.e., “whether
there is a valid agreement to arbitrate between the parties” — and (2) scope — i.e., “whether the
dispute in question falls within the scope of that arbitration agreement.” Conegie, 492 F.3d at 598.

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Because arbitration agreements are matters of contract, the validity and scope of such an agreement
are governed by state contract law. Morrison v. Amway Corp., 517 F.3d 248, 254 (5th Cir. 2008).
If the parties have entered into a binding agreement to arbitrate the dispute, the court must determine
whether any federal statute or policy renders the claims nonarbitrable. Conegie, 492 F.3d at 598.
Arbitration agreements, like other contracts, may be invalidated by contract defenses like fraud,
duress, unconscionability, or waiver. See Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687
(1996); see also Miller Brewing Co. v. Fort Worth Distrib. Co., Inc., 781 F.2d 494, 497 (5th Cir.
1986) (“‘The right to arbitration, like any other contractual right, can be waived.’” (quoting Cornell
& Co. v. Barber & Ross Co., 360 F.2d 512, 513 (D.C. Cir. 1966) (per curiam))); Keytrade USA, Inc.
v. Ain Temouchent M/V, 404 F.3d 891, 897 (5th Cir. 2005) (same). Because of the strong
presumption in favor of arbitration, “a party seeking to invalidate an arbitration agreement bears the
burden of establishing its invalidity.” Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297
(5th Cir. 2004); see also Grant v. Houser, 469 F. App’x 310, 315 (5th Cir. 2012) (per curiam)
(noting the strong presumption in favor of arbitration).
III.

Analysis
Arbitration is a matter of contract. Generally, a party cannot be required to arbitrate absent

an agreement to do so. First Options of Chi. v. Kaplan, 514 U.S. 938, 943 (1995). A threshold issue
is what challenges to arbitrability are for the court to determine, and what challenges are for the
arbitrator. As with Vallejo, the intervenors’ arguments against arbitration rest largely on arguments
that the drivers’ association was a fraudulent union and that any arbitration agreement that
association purported to make could not bind the intervenors. As this court’s previous order made
clear, the intervenors’ arguments about the union’s overall validity are separate from the arguments

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about whether the parties agreed to arbitrate.
Under the FAA, a written agreement to arbitrate “shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C § 2.
Section 3 allows a party to request a stay of a federal action pending arbitration if a valid arbitration
clause exists; § 4 allows a party to seek an order compelling arbitration under the parties’ contract.
The Supreme Court has issued a series of decisions addressing which so-called gateway challenges
to an arbitration clause are for arbitrators to decide and which a court must first decide. A challenge
to the validity of the parties’ contract as a whole, as opposed to the arbitration clause contained in
the contract, is for the arbitrator to decide. In Prima Paint Corp. v. Flood & Conklin Manufacturing
Co., 388 U.S. 395 (1967), the Supreme Court held that a challenge to the validity of the entire
agreement as having been fraudulently induced was for the arbitrator to resolve, not the court.
Regardless of whether a contract as a whole is valid, agreements to arbitrate are severable from a
larger contract and may be separately enforced and their validity separately determined. Id. at 406.
This result was recently affirmed in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006).
The Court held that a challenge to an agreement containing the arbitration clause, as opposed to a
challenge to the arbitration provision specifically, is for the arbitrator to decide. Id. at 445–46.
In Rent–A–Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), the plaintiff challenged an
arbitration agreement as unconscionable because he had been required to sign it as a condition of
his employment. The contract contained a delegation clause, in which the contracting parties
themselves decided whether the court or arbitrator will decide challenges to arbitrability. The
delegation clause stated that “[t]he Arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve any dispute relating to the interpretation, applicability,

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enforceability or formation of this Agreement, including, but not limited to any claim that all or any
part of this Agreement is void or voidable.” Id. at 2775. Prior case law made clear that “‘[t]he
question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed
about that matter. Did the parties agree to submit the arbitrability question itself to arbitration?”
First Options, 514 U.S. at 943 (emphasis in original) (quoting AT&T Techs., Inc. v. Commc’ns
Workers, 475 U.S. 643, 649 (1986)). “Courts should not assume that the parties agreed to arbitrate
arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” Id. at 944
(alterations in original) (quoting AT&T Techs., 475 U.S. at 649). The Rent–A–Center Court
distinguished between the overall arbitration agreement (the “contract”), and the agreement to
arbitrate arbitrability (the “delegation clause”). 130 S. Ct. at 2778–79. The plaintiff “challenged
only the validity of the contract as a whole” rather than the validity of the delegation clause. Id. at
2779. The plaintiff’s challenge to the arbitration agreement as unconscionable — that the plaintiff
had been required to sign as a condition of his employment — had to be arbitrated because the
delegation clause “clearly and unmistakably” gave the arbitrator exclusive authority over the
enforceability of the agreement to arbitrate. Id. at 2775, 2779. In accordance with a valid delegation
clause, questions of arbitrability (including the arbitrability of the overall agreement to arbitrate)
must go to an arbitrator. Id. at 2778–79; see also Wootten v. Fisher Invs., Inc., 688 F.3d 487,
493–94 (8th Cir. 2012); In re Checking Account Overdraft Litig. MDL No. 2036, 674 F.3d 1252,
1256–57 (11th Cir. 2012).
Challenges to contract formation — including whether the plaintiff signed the contract or,
if not, can nonetheless be bound under principles of contract or agency law, or whether the signor
lacked authority to commit the alleged principal — are different from the challenges to contract

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validity addressed in Buckeye and Rent–A–Center. Federal substantive law governs questions of
arbitrability, including in diversity cases. Moses H. Cone, 460 U.S. at 24. State-law contract
principles govern questions of contract formation. First Options, 514 U.S. at 944; see also 9 U.S.C.
§ 2 (providing that written agreements to arbitrate “shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation of any contract”). Challenges to
the existence — as opposed to the enforceability or validity or scope — of an agreement to arbitrate,
are for a court to decide. E.g., DK Joint Venture 1 v. Weyand, 649 F.3d 310, 317 (5th Cir. 2011)
(“[It] is for the courts and not the arbitrator to decide in the first instance[ ] a dispute over whether
the parties entered into any arbitration agreement in the first place.”); Will-Drill Res., Inc. v. Samson
Res. Co., 352 F.3d 211, 212 (5th Cir. 2003) (“We vacate the order compelling arbitration and
remand the case to the district court, concluding that where the very existence of any agreement to
arbitrate is at issue, it is for the courts to decide based on state-law contract formation principles.”).
The Supreme Court did not address that aspect of the which-tribunal-decides-arbitrability issue in
Buckeye or Rent-A Center.
The Court did address that issue in Granite Rock Co. v. International Brotherhood of
Teamsters, 130 S. Ct. 2847 (2010). The central dispute was whether a collective-bargaining
agreement had been ratified on a specific date. If the ratification occurred on one date, a no-strike
provision applied. The gateway issue was whether the dispute over the ratification date would be
decided in arbitration or litigation. The collective-bargaining agreement had a broad arbitration
clause, but no specific delegation clause. The Court held that the contract-formation issue was for
the courts, emphasizing that when a dispute concerns contract formation, it “is generally for courts
to decide.” Id. at 2855–56. Because the court, rather than the arbitrator, had to decide whether an

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agreement to arbitrate existed, the date of contract formation was for the court to decide, at least in
the absence of a delegation clause to the contrary. Id. at 2859–60. The Court did not analyze in
detail whether the result would have been different had the agreement delegated contract-formation
issues to the arbitrator. “[A]bsent a valid provision specifically committing such disputes to an
arbitrator,” the contract-formation issue was for the court to decide. Id. at 2858.
Several lower court decisions applying Rent–A–Center and Granite Rock are instructive.
In Allen v. Regions Bank, 389 F. App’x 441 (5th Cir. 2010) (per curiam), the court addressed an
arbitration provision in a home equity loan contract. The arbitration agreement contained a
delegation provision stating, “[A] dispute regarding whether a particular controversy is subject to
arbitration, including any claim of unconscionability and any dispute over the scope or validity of
this agreement to arbitrate disputes or of this entire Agreement, shall be decided by the
arbitrator(s).” Id. at 443. The court of appeals found that the provision “clearly and unmistakably”
called for the arbitrator to decide arbitrability issues. Id. at 446; see also Petrofac, Inc. v.
DynMcDermott Petrol. Operations Co., 687 F.3d 671, 675 (5th Cir. 2012) (“[The] arbitration
agreement . . . . state[s] that ‘[t]he arbitrator shall have the power to rule on his or her own
jurisdiction, including any objections with respect to the existence, scope or validity of the
arbitration agreement.’ We agree with most of our sister circuits that [this] presents clear and
unmistakable evidence that the parties agreed to arbitrate arbitrability.”); Schneider v. Kingdom of
Thailand, 688 F.3d 68, 72 (2d Cir. 2012) (“[W]hether the district court properly declined to
determine independently whether the [lawsuit] involved ‘approved investments’ [under the
arbitration agreement] does not turn on whether that question was one of scope or formation. It
turns on whether there was clear and unmistakable evidence of the parties’ intent to commit that

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question to arbitration. For in the absence of such clear and unmistakable evidence, questions of
arbitrability are presumptively resolved by the court, regardless of whether they are related to scope
or formation. . . . The district court should not have refused to determine independently whether the
[lawsuit] involved ‘approved investments’ without first finding clear and unmistakable evidence of
the parties’ intent to submit that question to arbitration.” (citing Granite Rock, 130 S. Ct. at
2858–59)).
In Kramer v. Toyota Motor Corp., 705 F.3d 1122 (9th Cir. 2013), the court found that the
arbitration agreement did not contain “clear and unmistakable evidence that Plaintiffs and Toyota
agreed to arbitrate arbitrability.” Id. at 1127. The plaintiffs agreed to arbitrate arbitrability in
disputes with Toyota dealerships, but the dealerships were not parties to the suit and Toyota was not
a signatory to the arbitration agreements. Id. “Given the absence of clear and unmistakable
evidence that Plaintiffs agreed to arbitrate arbitrability with nonsignatories, the district court had the
authority to decide whether the instant dispute is arbitrable.” Id.
In Janiga v. Questar Capital Corp., 615 F.3d 735 (7th Cir. 2012), the court addressed a
dispute arising under an agreement between a recent immigrant and a financial services company.
The agreement had a broad arbitration clause. The plaintiff sued, alleging breach of fiduciary duty
and fraud, and the defendant sought to enforce the arbitration provision. The district court
concluded that contract formation was an issue because of the plaintiff’s limited English, and that
the district court had to decide this issue before it could decide whether to compel arbitration. Id.
at 737. The appellate court “agree[d] with the district court that the existence of a contract is an
issue that the courts must decide prior to staying an action and ordering arbitration, unless the parties
have committed even that gateway issue to the arbitrators.” Id. at 738. The appellate court,

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however, found a written agreement to arbitrate sufficiently evidenced by the plaintiff’s signature.
“[T]he parties formed a contract and their agreement included an arbitration clause.” Id. The
appellate court reversed the district court because the record contained enough evidence to resolve
the threshold question on arbitrability. Id.
In the present suit, the intervenors challenge not only the validity of the collective-bargaining
agreement, but also whether they assented to the arbitration provision. If there is an enforceable
arbitration provision, the invalidity challenge is for an arbitrator to decide under Prima Paint and
similar cases. But under Granite Rock and similar cases, the intervenors’ arguments that they never
signed the agreement containing the arbitration provision or otherwise assented to it at all raise
threshold issues of arbitrability that this court must first decide.
In contrast to the evidence as to Vallejo, the present record does not show that the
intervenors signed the Labor Agreement. Texas law — which applies to the contract-formation
issues — recognizes that an employee who has received notice of an arbitration policy accepts it by
continuing to work with knowledge of the provisions. In re Halliburton Co., 80 S.W.3d 566, 568
(Tex. 2002) (citing Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (1986)). “‘To prove notice,
an employer asserting modification must prove that he unequivocally notified the employee of
definite changes in employment terms.’” Id. (quotation omitted). “[W]hen an employer notifies
an employee of changes to the at-will employment contract and the employee ‘continues working
with knowledge of the changes, he has accepted the changes as a matter of law.’” Id. (quotation
omitted); see also In re Dillard Dep’t Stores, Inc., 198 S.W.3d 778, 780 (Tex. 2006) (per curiam)
(holding that the absence of a signed agreement is not an obstacle to enforcement of the arbitration
agreement); Munoz v. Luby’s Inc., 2011 WL 6291966, at *4–6 (S.D. Tex. Dec. 14, 2011). Garda

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relies on evidence that a Labor Agreement that covered the intervenors was in place during their
employment. But Garda has not pointed to evidence that the intervenors had notice of the Labor
Agreement and the arbitration clause it contained and continued to work after receiving that notice.
To the contrary, the intervenors have stated that they did not know about the Labor Agreement and
did not assent to membership in the drivers’ association.
Based on the present record, this court cannot conclude that the intervenors consented to
arbitration or are otherwise bound by the arbitration clause. See, e.g., Moran v. Ceiling Fans Direct,
Inc., 2006 WL 2478837, at *5 (S.D. Tex. Aug. 25, 2006) (“CFD [Ceiling Fans Direct] failed to give
its employees unequivocal notice that it was implementing an arbitration policy and that an
employee agreed to be bound by the arbitration policy if he continued to work for CFD. The
employees, on the other hand, . . . . stated verbally that they did not agree to the terms of the
arbitration policy and did not sign and return the acknowledgment page of the arbitration policy in
the Handbook. Absent proof of adequate notice and acceptance, Defendant and Plaintiffs did not
have an enforceable arbitration agreement.”). Garda’s motion to dismiss or to stay and compel
arbitration as to the intervenors must be denied.
IV.

Conclusion
The motion to dismiss or to stay proceedings and compel arbitration as to the intervenors is

denied. A status conference is set for June 21, 2013, at 9:00 a.m. in Courtroom 11-B.
SIGNED on June 4, 2013, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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