Lauter v. Citgo Petroleum Corporation

Filing 45

MEMORANDUM OPINION AND ORDER granting 14 MOTION to Dismiss Counts I and II and for Summary Judgment as to Count III; denying 37 MOTION for Request for Oral Argument Hearing; granting 38 MOTION to Supplement Motion for Leave to Fi le Supplemental Authority as to 27 Response in Opposition to Motion; and granting 41 MOTION for Leave to File SUPPLEMENTAL AUTHORITY IN SUPPORT OF PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

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United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION February 08, 2018 David J. Bradley, Clerk RICHARD S . LAUTER, not individually but solely as Creditor Trustee of the GasMart USA , Inc . Creditor Trust, Plaintiffr CIVIL ACTION NO . H-17-2028 CITGO PETROLEUM CORPORATION , Defendant . MRMOQAHDUM OPINION AHn ORDER On June 30, 2017, plaintiff, Richard S . Lauter , as Creditor Trustee of the Gas-Mart USA , Inc . Creditor Trust, filed a Complaint ( Docket Entry against defendant, Citgo Corporation ( ncitgo'), asserting claims for breach ' ( Count Petroleum contract violation of the automatic stay pursuant 5 362 ( Count 11), and avoidance preferential transfer pursuant 11 U. S.C. 5 547 ( Count 111). Pending before the court are Citgo Summary Judgment as to Counts I and 11 and for Summ ary Judgment as Count III ( Docket Entry No. plaintiff's Request Argument ( Docket Entry plaintiff's Motion Support Defendant's Motion plaintiff's Motion Dismiss L eav e Support of Plaintiff's Response Leave Plaintiff's Response to ( Docket Entry No. and Supplemental Authority Defendant's M otion Dism iss ( Docket Entry motion reasons stated below, Citgo's dism iss Counts summary judgment motion and 11 will be granted, Citgo's motion Count will be granted, plaintiff's oral argument will be denied , plaintiff's two motions leave supplemental authority will be granted , and action will be dismissed . Relevant Facts and Procedural Backcroundl about September 2013, Gas-Mart USA (' 'Gas-Mart' ' uDebtor') and Citgo entered into ' (' (reement').2 Paragraph 'A y ' Marketer Franchise Agreement the Agreement governing nTerms . Payment' provided that in order to maintain a credit lim it Gas-Mart ' could be required furnish Citgo security agreements other collateral.3 Subsequently, Gas-Mart obtained a Surety Bond in the amount of $1,500,000.00 from l The relevant facts are No . 1, the Statem ent of Corporation's Memorandum in the Alternative for Summary Fidelity and Deposit Company of taken from the Complaint, Docket Entry Material Facts in Citgo Petroleum Support of Its Motion to Dism iss or in Judgment as to Counts I and 11 and for Summary Judgment as to Count III ( ucitgo's Memorandum'), Docket ' Entry No . 15, pp . 7-14, %% 1-41, and the Response to Statement of Material Facts and Statement of Additional Material Facts in Plaintiff's Response to Defendant's Motion to Dism iss and Memorandum of Authorities (' 'plaintiff's Response/ /), Docket Entry No . 27, pp . 10-14, %% 1-50. zcomplaint, Docket Entry No . 1, p . 4 :% 15-19; A greement, Exhibit 1 to Citgo's Memorandum, Docket Entry No . 15-3 . 3 d. 1 % 5 ( ). b Maryland ( uSurety' ).4 ' payment about June 9, 2015, Gas-Mart made $68,185.69 to Citgo on certain outstanding invoicesx On July 2, 2015 ( the npetition Date/), ' Gas-Mart debtor corporations each filed separate voluntary petitions with Bankruptcy Court seeking relief under Chapter of the Bankruptcy Western District Missouri ( Case No. 15-41915-abf11). On October 2016, Fuel Service Mart, Inc . filed a separate voluntary petition for relief under Chapter July By orders of the Bankruptcy Court entered on 2015, and on November 25, 2015, the Ban kruptcy cases were jointly administered. 6 On the Petition Date Citgo held $221,190.12 in Gas-Mart credit card receipts pursuant to the terms of the Agreement, and Gas-Mart moved authorization July 28, 2015, Citgo as critical vendorx Bankruptcy Court entered an order granting motion .8 4see Surety Bond included in Exhibit Docket Entry No . 15-5, pp . 14-22 . Citgo's Memorandum , s complaint , Docket Entry No . 1, p . 13 % 66 . See also Citgo's Memorandum , Docket Entry No . 15, p . 14 % 39; Plaintiff's Response , Docket Entry No. 27, p . 12 % 39. 6 complaint , Docket Entry No . 1, p . 3 %% 9-10, and 10 % 20 . See also Citgo's Memorandum , Docket Entry No . 15, p . 7 % 47 Plaintiff's Response, Docket Entry No . 27, p . 10 % 4. X citgo 's Memorandum , Docket Entry No . 15, p . Plaintiff's Response, Docket Entry No . 27, p . 10 % 5 . 7 % 5; See also Complaint, Docket Entry No. 1, p. 5 % 23 ( alleging that Citgo held approximately $228,000.00 in credit card receipts). 8 critical Vendor Motion and Order, Exhib it 2 to Citgo's ( continued.- ) or about August 6, 2015, Gas-Mart, the Surety, and Citgo entered Vendor Agreement commercial relationshipx Pursuant Surety agreed make Citgo contends payment governing their continued Vendor Agreement Citgo under the Surety Bond. the Surety agreed to the Surety Bond, and in fact did make a paym ent pursuant to the bond .l o Plaintiff acknowledges that the Surety agreed paym ent to citgo pursuant to the surety Bond, but says make does not know the specific amounts that the Surety agreed to pay fact, did pay pursuant to the Surety Bondx l on June 2016, the Surety filed a Proof bankruptcy proceeding for $558,097.49.1 2 January and February of 2016, Gas-Mart sold substantially a sset s . 1 3 8t.- continued) Memorandum , Docket Entry No . 15-4. See also Citgo 's Memorandum , Docket Entry No . l5, p . 7 % 6; Plaintiff's Response, Docket Entry No . 27, p . 10 % 6 . 9 Citgo ,s Memorandum , Docket ' Entry No . 15, p . 8 % 7, and Plaintiff's Response, Docket Entry No . 27, p . 10 % 7. Vendor Agreement , Exhibit 3 to Citgo's Memorandum , Docket Entry No . 15-5 . l ocitgo's Memorandum , Docket Entry No . %% 8, H plaintiff's Response, Docket Entry No . 27, p . 10 %% 8 and 1O . l zExhibit 4 Citgo's Memorandum , Docket Entry No . 15-6. Ocitgo's Memorandum, Docket Entry No. 15, p . 8 % 11 ( citing Disclosure Statement, 5 V .A .S, Exhibit 7 to Citgo's Memorandum , Docket Entry No. 15-9, p. 21 of 117)7 Plaintiff's Response, Docket Entry No . 27, p . 10 % 11. On March Motion 2016, Gas-Mart filed Debtors' First Omnibus Reject Executory Contracts ( uRejection Motion/ which /lr included a request reject the Agreement Citgox 4 April 2016, the Bankruptcy Court entered its Order Granting Debtors' First Omnibus Motion Reject Executory Contracts ( nRejection Order/ /), which provided that Gas-Mart's executory contracts were rejected as On July March 2016.X b 2016, the Creditors' Comm ittee filed its Initial Plan and Disclosure Statementx 6 september 2016, the Bankruptcy Court confirmed the First Am ended Plan of Liquidation 'P1an'), which called A ' appointment of creation creditor trustee, and execution trust agreement .l Pursuant to Article 7 a creditor the Gas-Mart USA , Mcitgo's Memorandum r Docket Entry No . 15, p . 8 % 12; Plaintiffrs Response , Docket Entry No . 27 , p . 10 % 12 . See also Rejection Motion, Exhibit 5 to Citgo's Memorandum, Docket Entry No . 15-7 . l citgo's Memorandum , Docket Entry No . 15, p . 9 % 14; s Plaintiff's Response, Docket Entry No . 27, p . 11 % 14 . See also Rejection Order, Exhibit 6 to Citgo's Memorandum, Docket Entry No. 15-8, p. 2 % 13 (' 'The Rejected Contracts are hereby rejected as of March 1O, 2016.'). / l citgo's Meporandum , Docket Entry No . 15, p . 9 % 17; f Plaintiff's Response, Docket Entry No . 27, p . 11 % 17 . See also Disclosure Statement with Respect to First Amended Plan of Liquidation Dated July 21, 2016, Exhibit 7 to Citgo's Memorandum , Docket Entry No. 15-9. l citgo 's Memorandum , Docket Entry No . 15, p . 9 % 18, and 7 Plaintiff's Response, Docket Entry No. 27 , p . 11 % 18 . See also Exhibit 8 to Citgo 's Memorandum , Docket Entry No . 15-10r pp . 1-25 ( continued- .) Creditor Trust A greement, plaintiff was appointed as Trustee of the creditor Trustx ' or about March 11, 2016, Citgo brought suit in the Judicial District Court of Harris County, Texas, against Surety recover certain amounts due from Gas-Mart, and on April 2016, the Surety removed the lawsuit to the United States District Court for the Southern District of Texas, Case No. 4:16-cv-00952 ( usurety Litigation/ g In the Surety Litigation, Citgo alleged that after /lx entering into the Vendor Agreement , Gas-Mart agreements with Citgo by inter alia failing Purchases, store remodeling, and branding costs .20 2016, court granted breached pay its fuel November Surety's motion for summary judgment and denied Citgo's cross-motion for summary judgment, upon finding that store remodeling and branding costs were included in the U t.- continued) of 97 ( Order: ( A) Confirming First Amended Plan of Liquidation Dated July 21, 2016 and ( Approving Disclosure Statement with B) Respect to First Amended Plan of Liquidation Dated July 21, 2016 Pursuant to 11 U.S.C. 5 1125)7 pp . 26-59 of 97 ( Exhibit A, Modified First Amended Plan of Liquidation Dated July 21, 2016), and pp . 6097 of 97 ( Exhibit B, Gas-Mart USA, Inc. Creditor Trust Agreement) OCitgo's Memorandum, Docket Entry No . 15, p . 9 % 19; Plaintiff's Response, Docket Entry No . 27, p . 11 % 19 . See also Gas-Mart USA , Inc . Creditor Trust Agreement , Exhibit B to Exhibit 8 to Citgo's Memorandum , Docket Entry No. 15-10, 66 of 97. lg citgo's Memorandum , Docket Entry No . 15r p . Plaintiff's Response, Docket Entry No . 27, 12 % 29. M citgo's Memorandum , Docket Entry No . 15, p . Plaintiff's Response, Docket Entry No . 27, p . 12 % 30. obligations covered by the Surety Bond, and that on April ( after the filing of the Surety Litigation), the Surety paid Citgo $35,367.31 for Gas-Mart's post-vendor Agreement failure to pay for fue1.2 l disposing On April 6, 2017, the court entered of claims Final Judgment counterclaim s the Surety Litigation .z z On June 30, 2017, plaintiff initiated this action by filing Complaint ( Docket Entry No. Count breach alleging three causes of action: contract, Count for violation and Count automatic stay pursuant avoidance of preferential transfer pursuant 5 Each of plaintiff's claim s are premised on allegations that after the Petition Date Citgo engaged in actions that caused Gas-Mart's reorganization to fail .2 3 z citgo 's Mem orandum, Docket Entry No . 15, p . l % 31; Plaintiff's Response, Docket Entry No. 27, p . 12 % 31. See also Memorandum Opinion and Order, Exhibit 25 to Citgo's Memorandum , Docket Entry No. 15-27 ( Docket Entry No. 26 in Civil Action No. H16-0952). 2 citgo's Memorandum , Docket Entry No . 15, p . 13 % 332; 2 Plaintiff's Response, Docket Entry No. 27, p . 12 % 32 . See also Final Judgment, Exhibit 10 to Citgo's Mem orandum , Docket Entry No. 15-12 ( Docket Entry No. 31 in Civil Action No. H-16-0952). Ocomplaint, Docket Entry No . %% 48-49. II . Motion to Dismiss Counts I and 11 Citgo argues that Count I for breach of contract and Count 11 for violation of the automatic stay subject dismissal because plaintiff lacks standing to pursue these claims that were not adequately preserved in Gas-Mart's confirmed plan as required 11 U .S .C . by well-established 1 12 3 .2 4 Alternatively, Citgo argues that p laintiff's stay violation claim barred by laches, and that plaintiff lacks standing the breach contract claim because Agreement pursuant to 11 pursue Gas-Mart rejected 5 365( and is thus deemed to have g) breached the Agreement as the Petition Date thereby relieving Citgo of its duty to perform, ( the Surety paid the Surety Bond 2) securing Gas-Mart's performance thereby subrogating the Surety any breach of contract claim that Gas-Mart may have had against Citgo, and res judicata resulting from the Surety Litigation between Citgo and the Surety bars the plaintiff's breach of contract c1aim .2 5 24 citgo's Memorandum , Docket Entry No . 15, pp . 15-21 %% 44-57. Citgo does not dispute that the avoidance of preferential transfer c1aim asserted in Count III was adequately preserved . See id . at 20 n. 8 ( UCITGO notes that claims for preferences ( Count 111) are identified and CITGO appears by name on a list of potential targets for such claim s. CITGO does not assert that those claim s, to the extent the Debtor held them , were not preserved . CITGO does not admit any liability on such claims. This argument applies only to Counts I and 11 for claims not preserved./). / 25Id 22-29 %% 58-73 . A. Standard of Review Citgo 's argum ent that plaintiff lacks standing to pursue the claims asserted in Counts and 11 raises issues that the Fifth Circuit has characterized as jurisdictional. See Dvnastv Oil and Gas, LLC v . Citizens Bank (In re United Operatina , LLC), 540 F .3d 2008) requirement, and regardless whether ( nstanding obliged jurisdictional satisfied ensure parties address the matter.'); Sricer v. ' Lacuna Madre Oil & Gas II, L .L .C . (In re Texas Wvom in? Drillinl, Inc.), F.3d question of standing adequacy 2011) ( characterizing the assert post-confirmation claims based on preservation jurisdictional question) language plan as Although Citgo has moved for dismissal under Rule l2 ( 6) for failure b)( may be granted , motions therefore, confirmed state a claim for which relief dismiss for lack of standing and, lack jurisdiction are governed by Rule 12 ( b) See Rossco Holdinas, Inc . v . Mcconnell, Civil Action No . 4:14-cv- 374-0, 2014 WL 11460917, question of standing Tex. July 23, 2014) ( nBecause the implicates jurisdiction, the court applies court's subject-matter standards for a motion dismiss pursuant to Rule 12 ( ( b) 1)./), aff'd 613 Fed . App'x 302 / Cir. June 2015) ( per curiam ), cert. denied, 136 339 ( 2015); Adler v. Walker ( re Gulf States Lona Term Acute Care of In Covinqton, L .L .C .I, Civil Action No . 11-1659, 2012 WL 710924, ( E.D. March 2012) ( analyzing motion standing based on confirmed plan 's failure post-confirmation aff'd, 614 prosecution dismiss lack of preserve claims for jurisdictional challenge), App'x 714 2015) ( per curiam ). nLack of subject matter jurisdiction may be found in any one of three instances: the comp laint alone; supplemented by undisputed the comp laint facts evidenced record; the complaint supplemented by undisputed facts plus the court's resolution of disputed facts .' Ramminq v . United States, 281 F .3d ' 158, ( 5th Cir. 2001) ( per curiam), cert. denied sub nom . Cloud v. United States, 122 S. 2665 ( 2002). Rule l2 ( (1) challenges b) ' facia l' att ac ks ' ' and nfactual' attacks. ' See Paterson v . Weinberaer, 644 F .2d 52 1r 1981). A facial attack consists motion unaccompanied a Rule 12 ( b)(1) supporting evidence that challenges the court's Id . A factual attack challenges the existence of subject matter jurisdiction irrespective pleadings, and matters outside the pleadings such as testimony and affidavits may be considered . Citgo's motion motion burden accompanied dism iss lack proof regarding rests with the plaintiff. jurisdictional grounds Id . Because supporting evidence, Citgo's standing factual attack . existence of jurisdiction always Ramminq , 281 F.3d at 161 . not on the merits. Id. Dismissal on B. Analysis Plan Documents Preserved the Breach of Contract Claim But Not the Stav Violation Claim parties do not dispute that the plan documents provided estab lishment creditor trust, appointment plaintiff as trustee of the creditor trust authorized causes of action, and transfer of causes action pursue the estate assets - including the creditor trust upon confirmation of the Plan . In dispute is whether the plan documents adequately reserved the plaintiff's breach contract and stay violation claim s. Asserting that nFifth Circuit cases m ake clear, non-avoidance claim s are properly preserved pursuant to plan materials, at a minimum , identify reserved ; categories 1123 only when the the nature of the claim s potential defendants, and the value of those claims E / f Citgo argues that the plan ,q/z documents do satisfy these requirementsx ? A sserting that 'the proper ' circuit determ ined which determine the Statement is Circuit, the apply of the Eighth confirmed the and initially was adequater' ' plaintiff argues that Harstad 'z v. First American Bank, 39 F.3d 898 ( 8th 2 Id . at 18 6 Plan 1994), the 50 . 2 Id 7 at 18-20 %% 51-53 ( stay violation); 20-21 %% 54-57 ( breach of contract). z 8plaintiff's Response, Docket Entry No . % 56 . controlling authority .zg Alternatively, plaintiff argues that 'even ' under Fifth E he) prevails./' /o Circuit citing Lovett v. Cardinal Health , Inc . (In re Diabetes America , Inc .), 343 ( Bankr. uimproperly Tex. 2012), inflates' ' Fifth plaintiff argues Circuit 's that Citgo requirements preserving claim s because the Fifth Circuit does not require identification of prospective defendants or the value of preserved claim s.'l Attached plaintiff's two motions for leave to submit supplemental authority ( Docket Entry Nos. 38 and are opinions that plaintiff argues show that Citgo has misstated the Fifth Circuit's requirements : A SARCO , LLC v . Montana Resources, Inc .r ( S.D. Tex. 2013)7 Tepoer v. Keefe Bruvette & Woods, Incw No. 3:11-CV-2087-L-BK, 2012 WL 4119490 ( .D.TeX. Sept. 19, N 2012)7 THINK3 Litiqation Trust v. Zuccarello (In re THINK3I, - B. 147 ( R. Bankr. W . Tex . 2015)7 and Nestlé Waters North America, D. Inc . v. Mountain Glacier LLC (In re Mountain Glacier LLC), 246 ( 6th Cir. these opinions, Because the plaintiff's supplemental authority two has read and considered m otions ( Docket Entry granted . 2 . at % 9Id 3 . at % OId 3 . at 18-19 1% 58-60 . lId leave 38 and be Applicable Law Filing case under the Bankruptcy Code creates a bankruptcy generally comprised estate that 'all legal ' equitable interests of the debtor in property as of the commencement of the caser' ' U . C. S. 541( a) including causes action. Compton v . Anderson (In re MPF Holdings US, LLC), 2012), vacatina and remanding, S.D. TeX . 2011). In Chapter See F .3d 449, B. . R ( Bankr. cases where the debtor assumes debtor-in-possession status, the debtor typically has nmost of the powers of a bankruptcy trustee, including the power claims belonging Oreratinq, the estate.' ' Id. pursue ( citing In re United F.3d at 355 ( citing 1107)). Upon confirmation of the Chapter 11 plan , however, the bankruptcy estate ceases belonging exist, and ability pursue action the estate ends unless the plan documents preserve another party - cause s such as a liquidating or litigation trustee U.S. 5 1123 ( 3).3 C. b)( 2 F.3d at causes Id. accordance with 11 See also In re United Operating, ('lf a debtor has not made an effective reservation, ' debtor has no standing to pursue a claim that the estate owned before it was dissolved .' '). 3 2This statute states : u . . . a plan may- . . . provide for . . the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any . . . claim or interest E belonging to the debtor or to the estateq.' 11 U.S.C. 5 1123 ( ( ' b) 3). ( 1) Fifth Circuit Law Applies Because Gas-Mart's bankruptcy case was filed and confirmed in the Eighth Circuit, plaintiff argues that the applicable 1aw that Harstad, the F .3d at 898.3 3 Harstad, 39 F.3d at 898, reorganized debtors filed confirmation action against preferential transfers . defendant 's motion lacked standing The post- ban k seeking recover allegedly bankruptcy granted dism iss upon concluding that the debtors pursue preference claims because the confirmed plan did not preserve the ability The district affirm ed and the reorganized debtors appealed . In support of their argument that they had standing because their plan preserved the right to sue preferential transfers, the reorganized debtors cited the following excerpt from Article of the confirm ed plan : The Court will retain jurisdiction until this Plan has been fully consummated for the following purposes: . (Dqetermination of a11 causes of actions E sic) between Debtors and any other party, including but not limited to any right of Debtors to recover assets pursuant to the provisions of the Bankruptcy Code . = Id 902. Rejecting debtors' argument that cited language preserved their claim s, the Eighth Circuit explained that A rticle X , captioned uContinuing Jurisdiction,' concerns ' the ongoing jurisdiction of the Bankruptcy Court for matters that arise after plan confirmation . Noting the retention of the court's statutory jurisdiction to hear post-confirmation matters is a far cry from reserving to the debtors a right to bring post-confirmation claims to H plaintiff's Response, Docket Entry No . 27 , p . %% recover preferences paid by the debtors but never disclosed by them during the pre-confirmation proceedings. We hold that the above-quoted language is not a retention of the claim at issue here-much less the uspecific and unequivocal' retention that some courts ' require . = Id added). The court observed that if the Harstads wished to retain the power to enforce this claim pursuant to 5 1123 ( 3), it would have been b)( a simple matter to do so with straight-forward language ( although not so easy to do without alerting their creditors and the Bankruptcy Court to the possibility of viable preference claims). Id . The court explained : We view 5 1123( 3) as, at least in part, a notice b)( provision . Creditors have the right to know of any potential causes of action that m ight enlarge the estate-and that could be used to increase payment to the creditors. Even if, as the Harstads claim , they gave notice of such claim s by indicating in their disclosure statement that the availab ility of such claim s was being investigated, the creditors are entitled to know if the debtors intend to pursue the preferences in post- confirmation actions. Compliance with 5 1123( 3) gives b)( notice of that intent . Only then are creditors in a position to seek a share of any such recoveries, contingent though they may be, and to have the mechanics of the preference-sharing spelled out in the plan . Creditors are in no position to do so if they are not on notice that the debtor retains the power to pursue recovery . = Id at 903 . Because the Eighth Circuit held that the language issue in Harstad did not preserve the debtors' ability to pursue claims following confirmation but, instead , provided for continuing jurisdiction of the bankruptcy court, that holding is inapposite as address requirements for preserving claims under 5 1123( b) dicta the extent requirements, Harstad suggests such shows that the Eighth Circuit views 5 1123 ( b)( 3) notice provision requiring language that will alert creditors possibility of future recovery, and believes preservation language that Id . at Plaintiff has not cited authority showing that the requirements suggested by Harstad differ from the requirements applied by the Fifth Circuit . issue Because the sem inal Fifth Circuit case Harstad support of its conclusions this that reservation of rights must be nspecific and unequivocalr' and that ' a udebtor must put its creditors on notice of any claim it wishes to pursue after confirmationr' In re United Oreratina , ' F.3d at 355, the court concludes that resolution of the standing issue now before the court would be the same regardless of whether the 1aw of the Eighth the Fifth Circuit is applied . plaintiff failed to offer choice-of-law analysis, concludes that the applicable 1aw See Rossco Holdings, Circuit 1aw which a question Moreover, since that of the Fifth Circuit . Fed . App'x ( applying Fifth action filed in the Western District of Texas standing assert post-confirmation claims arose with respect to a bankruptcy case filed and confirmed in the Ninth Circuit where plaintiff asserted that Ninth Circuit law applied, but failed to brief the choice-of-law issue). ( 2) Fifth Circuit Law The Fifth Circuit's requirements for preserving claims under 11 U. C. 5 1123 ( ( are explained S. b) 3) 540 F .3d at 351, In re United Oreratinc, In re Texas Wvomin? Drillinc, 647 F .3d at and ( In re MPF Holdings, 701 F.3d at 449. 3) In re United Oreratina involved committee efforts creditors' pursue pre-confirmation bankruptcy and common-law claim s for fraud , breach of fiduciary duty, and negligence against a court-appointed operator the debtor's oi1 and gas properties and the lender that sought the operator 's appointment . 351 . The plan contained blanket reservation claim s arising under the Bankruptcy Code , and reservation F.3d at and al1 more specific claim s arising under identified sections Bankruptcy Code . The plan did not , however, say anything about the common law claim s that the creditors' committee filed against the operator and the lender . The Fifth Circuit held that E nqeither the Plan's blanket reservation of uany and a1l claims' arising under the Code , nor its specific ' reservation of other types of claim s under various Code provisions are sufficient to preserve the common-law claims E plaintiffq now brings for, ânter alia, fraud, breach of fiduciary duty, and negligence . Id. at 356. The court explained that ulfqor a debtor to preserve a claim, the plan must expressly retain the right to pursue such actions,' id. at 355 ( ' citation omitted), that ' tlhe reservation 'E must be ' specific and unequivocal,'' id. ( ' quoting Harstad, 39 F.3d 902), and that ' iqf 'E debtor has made effective debtor has no standing to pursue a claim that reservation , estate owned before was dissolved .' ' Id . The court exp lained this rule as na logical consequence of the nature of a bankruptcy, which designed administration primarily and liabilities w ithin Asecure settlement of prompt, debtor's limited time,'' id w ' that effective assets and needed because ' pqroper notice allows creditors to determine whether a proposed U plan resolves m atters satisfactorily before they approve = Id In re Texas Wvomin? Drilling involved a reorganized debtor who filed post-confirmation avoidance actions against the debtor's former shareholders seeking debtor was insolvent . recover dividends paid while F .3d at The plan provided the debtor to retain nEstate Actions,' defined to include nclaims under ' Chapter the Bankruptcy Code .' ' Id . The disclosure statement provided more specifically that nEstate Actions' included nvarious ' potential avoidable transfersr' id . , and also included ' - chart -- outlining 'various claim s and causes of action the Debtor Reorganized Debtor may pursue on behalf Id. the Debtor's Estate .r' ' The chart identified as a potential defendant, uAg vqarious pre-petition shareholders of 'fraudulent transfer shareholders,' valuing Id. the and Debtor' who might be sued recovery claim s dividends approxim ately paid million .' ' The defendants argued that the preservation language plan documents failed the In re United Operatinq uspecific and unequivocal' ' test because failed identify potential defendants individually . A fter first considering and deciding disclosure statements determining whether 551, the could be considered for purposes of claim had been adequately preserved, id . Fifth Circuit held that reorganized debtor had standing to pursue the avoidance actions because the plan documents adequately preserved those claims. Id . at 552 . The Fifth Circuit explained that the plan documents were unequivocal' to preserve the avoidance actions because ' ( nlike the plan in In re United O ul perating, which contained only a blanket reservation of uany and a11 claim s,' TWD'S plan and disclosure statem ent revealed the ' existence of the Avoidance A ctions, the possible amount of recovery to which they would lead , the basis for the actions ( namely, pre-petition dividends and transfers to equity interest holders), and that the reorganized debtor intended to pursue the claim s . The terms of TWD'S plan and disclosure statement are far more specific than those in Tn re United Op erating . Jd at -= In re MFP Holdincs involved litigation trustee seeking pursue avoidance actions against vendors with whom the debtor had contracts . 701 F.3d When several the vendors sought dismissal either because the claims against them had been released because recovery was barred by the debtor's assumption their contracts during bankruptcy, the bankruptcy court sua soonte raised issue whether plan satisfied Fifth Circuit's nspecific and unequivocal' standard for preserving claims . ' ( citing 748-55). The bankruptcy court ultimately dism issed the litigation trustee 's claim s for lack Id . The bankruptcy based standing . decision conclusion that an effective preservation of claim s must satisfy three requirements : individually identify the parties sued post-confirmation, set forth state that each party will be sued, and legal basis for the suit. B. at 744-45) R. Id. at 452 ( citing 443 The bankruptcy court held that the plan was sufficiently unequivocal because it only reserved avoidance actions actions that um ag udo exist and will be prosecuted,' id. ( ' citing 443 B.R. at 749-50), and because the plan contained ambiguous language that could be read have released som e ( citing the defendants being sued . Id . B.R. at 750-55). On appeal the Fifth Circuit vacated the bankruptcy court's opinion explaining that the requirements preserving claim s identified by court were not mandated first bankruptcy In re United Oreratina . Id . at 455 . Observing that traditional rules of contract interpretation could be used guide court's review Circuit remanded the case plan documents, the Fifth determination of whether individual defendants were ureleased in connection with or under the Plan or by prior order of the Court .' Id . at 457 . ' Citgo cites In re United Operatinq, In re Texas Wvoming Drillinc, and Jn re MRF Holdings and other Fifth Circuit opinions applying assertion pursuant identify holdings that those three cases 'non-avoidance ' claims are support properly 1123 only when the plan materials, the nature of the claims reserved, of potential defendants, ( iii) the value preserved a minimum, the categories those claims.'3 'l But none of the opinions that Citgo cites has held either that the standard for effectively preserving non-avoidance claim s differs from the standard for preserving avoidance claims, or that 3 . at 18 % 50. See also Citgo Petroleum Corporation's Reply 4Id in Support of Motion to Dism iss or, in the A lternative, for Summary Judgment as to Counts I and II, and for Summary Judgment as to Count III ( ucitgo's Reply' '), Docket Entry No. 34, p . 13 % 18 (' 'ln its Motion , CITGO describes- from seven different Fifth Circuit opinions issued between 2008 and 2015-how the nspecific and unequivocal' standard is more demanding for non-avoâdance claims ' than avoidance claims. See, e.g.r Motion %% 45-50./ /). The other opinions that Citgo cites are : In re Gulf States, 614 F. App 'x at 719 ( holding that ul tqhe Plan's reservation of 'E alny and a11 other claims and causes of action which may have been asserted by the Debtor prior to the Effective Date' is exactly the sort of blanket reservation that is insufficient to preserve the debtor's standing' '); Woolev v. Havnes & Boone, L. . L P. ( In re SI Restructurinc Inc.), 714 F.3d 860, 865 ( 5th Cir. 2013) ( holding that claims for breaches of fiduciary duties were not effectively preserved because nE njeither the Plan nor the disclosure statement references specific state law claim s for fraud, breach of fiduciary duty, or any other particular cause of action . Instead , the Plan simply refers to a11 causes of action, known or unknown. . . g squch a blanket reservation is not sufficient to put creditors on notice./); Rossco Holdinls, 613 F. App'x at 3O8 ( / holding that plaintiffs lacked standing to pursue m alpractice and negligent misrepresentation claim s because they were not identified in the confirmed plans); and The National Benevolent Association of the Christian Church (Discirles of Christ) v . Weil, Gotshal & Manaes, LLP, 333 F. App'x 822, 827-29 ( 5th Cir. 2009) ( per curiam) ( holding that ambiguity in plan language precluded finding that p lan specifically and unequivocally preserved claim s for pre-petition legal malpractice). nspecific and unequivocal' standard requires something more than ' the retention of claim s. See In re Texas Wvominc Drillinc , 647 United Op erating focused ( uWe observe that exclusively on the retention claim s. never held that intended defendants must be named in the p lan . with approval F .3d 355-56, the Fifth Circuit cited In re Ice Cream Liquidation , with approval for the B .R . holdings reservation of Mpreference claims' was ' claim s did cite Cream Litigation ro In re United Orerating, 2011), But that categorical sufficient to preserve preferential transfers even though neither the plan nor disclosure statement identified specific transfers, transferees, or categories of transfers or transferees involved in actions was 333-34. be brought post-confirmation, 319 B .R . at 337-38, sufficient to preserve claims for turnover . The Id . explained that the plan identified specific sections of the Ban kruptcy Code under which preference claims would be brought , but that neither the plan nor the disclosure statement mentioned turnovers or 5 542 ( b), governs turnovers . section of the Bankruptcy Code 337-38. See also Crescent Resources Litication Trust v . Burr (In re Crescent Resources, LLC ), 463 B. R. 423, 433 ( Bankr. W.D. Tex . 2011) ( concluding that In re Ice Cream Liguidation stands nthe proposition that listing causes of action by code section is A specific and unequivocal./'). ' While the Fifth circuit has held that plan documents that identify the nature defendants, the claims reserved , value categories claim s satisfy of potential 'specific and ' unequivocal' standard , see In re Texas Wvomin? Drillinq, 647 F .3d ' at 552, the Fifth Circuit has not held, as Citgo contends, information always required to satisfy that standard . Instead, the Fifth Circuit has emphasized that ' tqhough the degree 'l of specificity involved plan 's reservation of claim s often vary, the reservation must , put Acreditors on notice of m inimum , be specific enough claim E the debtorq wishes pursue after confirmation .r' In re SI Restructurinq Inc ., 714 F .3d ' at 864 ( quoting In re United Oreratina, 540 F.3d at 355). See also In re Crescent Resources, ( recognizing that because nthere has been no binding case define definitively what court meant by E uspecific and unequivocal' ') courts have attempted to determ ine if a reorganized debtor retained standing on a case-by-case basisv). Circuit's analyses of A fter carefully reviewing the Fifth nspecific and unequivocal' standard, one ' bankruptcy observed that E qquestions remain. Especially important for this case is whether categorical identification of prospective defendants is required . Another unanswered question is how specifically the retention language must describe the basis of recovery . In re Diabetes, 485 B .R . at 346 . issue 80th of these questions are the action now before the court . 23 Application the Law the Facts Plaintiff's breach of contract claim alleges that The Agreement entered into by and between Gas-Mart and Citgo was a valid and enforceable contract . Citgo materially breached the Agreem ent in several respects, including, but not lim ited a. by failing to m eet its obligation to supply fuel to Gas-Mart for nearly two weeks from the time that Gas-Mart filed for bankruptcy , desp ite the fact that it was fully secured against any potential default by Gas-Mart ; by creating unreasonable and arb itrary restrictions on fuel allocation that caused Gas-Mart to run out of fuel on multiple occasions throughout its bankruptcy; by failing and refusing to honor its ten-day credit terms set forth in the Agreement throughout Gas-Mart 's bankruptcy; by failing and refusing to provide the contractual 1% rebate to Gas-Mart for cash in advance purchases of fuel; by failing to properly credit and/or setoff Gas-Mart's account for purchases made with credit cards; and by continuing to keep Gas-Mart 's credit card receipts in breach of its agreement to resume supp lying fuel in exchange for being permitted to keep said receipts .3s Plaintiff's stay violation claim alleges that by engaging in these and other actions Citgo violated the automatic stay .3 6 Ocomplaint , Docket Entry No . 1, pp . 10-11 %% 51-52. See also id. at p. 4 % 17 ( defining uAgreement' as the September 10, 2013, ' Marketer Franchise Agreement). 3 . at 6ld % 60. 24 (1) The Plan Documents Gas-Mart 's confirmed Plan contains a paragraph titled uVesting of Assets' that states : ' On the Effective Date , the Creditor Trust A ssets ( including, without limitation , all Causes of Action) will be transferred to and vest in the Creditor Trust and be deemed contributed thereto, subject to the terms of the Plan and Confirmation Order . M l Causes of Action shall survive confim ation and the co= encement of prosecution of Cau ses of A ction shall not be barred or limited by any res judicata or estoppel , whether judicial, equitable or otherwise, based upon, ïnter alia, confirmation of the Plan or the extent to which the Plan, Disclosure Statem ent, Schedules of Assets and Liabilities, or Statements of Financial Af fairs identify any Causes of Action . The Creditor Tru stee 's right to co= ence and prosecute Causes of Action ( including , without limitation , Avoidance Actions) shall not be e ridged or materially altered in any manner by reasons of confim ation of the Plan . Al1 property held in the Creditor Trust for distribution pursuant to the Plan will be held solely in trust for the holders of Allowed Professional Fee Claims, Allowed Other Adm inistrative Expense Claims, A llowed Priority Tax Claims, Allowed Class IA-IE Claims , Allowed Class 2 .1A -2 .IL Claims and A llowed Class 3A-3E Claip s and will not be deemed P roperty of the Debtors . .37 Section nCauses of Action' to mean : ' ' Aqll claims and causes of action of the 'g as of the Effective Date , whether arising under any contract , tort , the Bankruptcy Code, other federal state law MModified First Amended Plan of Liquidation Dated July 21, 2016, Article VII, 5 7 .1.1, Exhibit A to Exhibit 8 to Citgo's Memorandum, Docket Entry No. 15-10, pp . 48-49 of 97 ( emphasis added) 3 8Id . at Article 1, 5 1 .1.15, p . The Disclosure Statement lists 'Causes of Action' am ong assets ' ' that will either Plan on the Trust accordance A greem ent : be used to fund payments to be made under the Effective Date or transferred to the Creditor . to fund distributions to Creditors in with the Plan and the Creditor Trust 2. Causes of Action . The Committee believes the Creditor Trustee m ay be able to pursue Causes of Action against several entities, including, without limitation, those set forth on Exhibit B hereto and the list of transfers disclosed in the Debtors' Statements of Financial A ffairs. The categories of potential Causes of Action include Avoidance Actions, other Claims against Insiders, and E oqther Claims. Each of these categories is discussed in more detail below . a . Avoidance Actions . b. Other Ciaims Against Insiders . c. Other Claims . The Committee believes the Creditor Trustee may be able to assert other Causes of Action belonging to the Debtors and their Estates . Such Causes of g Alction would include, without limitation, claim s for breach of contract, tort , the Bankrup tcy Code, or other federal or state law .3 9 The list potential defendants included in Exhib it B the Disclosure Statement includes the defendant in this action , Citgo .t o MDisclosure Statement, Ariicle VI. .2, Exhibit A Citgo's Memorandum , Docket Entry No . 15-9, pp . 23-24 of 117 . 4 Exhibit B o 115 of 117 . Disclosure Statement, Docket Entry No . ( 2) The Plan Documents Preserve the Contract Claim The court concludes that the plan documents are sufficiently uspecific and unequivocal' ' preserve to the plaintiff as trustee the Gas-Mart Creditor Trust the right pursue breach of contract claims against Citgo because the p lan provides that ' oqn the Effective Date, the Creditor Trust Assets ( 'E including, without limitation, al1 Causes of Action) and vest in the Creditor Trustz ' be transferred ' aqll Causes of Action shall 'g survive confirmation and the commencement of prosecution of Causes of Action shall estoppel,' ' prosecute be barred or limited by any res judâcata nE tqhe Creditor Trustee's right Causes of Action (including, commence without limitation, Avoidance Actions) shall not be abridged or materially altered in any m anner by reasons confirmation Plan ,' because ' Plan defines uCauses of Action' to mean: ' A qII claims and causes ' 'E of action the Debtors and their Estates Date, whether arising under any contract , of the Effective *;' and because ' Disclosure Statement not only lists ' 'Causes of Action' among assets ' be transferred to the Creditor Trust creditors, but also identifies three action, one of which of Action fund distributions categories of causes uOther Claim s' defined to include nCauses ' b reaeh of contract r' ' includes exhibit ( Exhibit B) identifying potential defendants, including Citgo . short, plan documents are uspecific and unequivocal' because ' they state basis recovery, i.e ., breach of contract , and identify the defendant by name . See In re M PF Holdinas, 701 F.3d at 457 ( uln addition to referenced in the Reorganization Plan identified each defendant name . Accordingly, we hold that the reservation language the Reorganization Plan was sufficiently specific and unequivocal under United O perating.'j. ' sufficient Citgo argues that the plan documents are preserve plaintiff's breach of contract claim because ' pllaintiff 'E has claim was preserved without identifying the categories Ci4 im .X1 ' : R 1 Citgo has not, however, cited any case in which a court has even considered language purporting reserve claim s for breach contract much less a case holding that preservation a contract claim requires identification of categories of potential defendants the value the claims.l z Moreover, in response to Citgo's argument plaintiff has submitted supplemental authority including two cases from courts this circuit that have considered rejected analogous arguments with respect contract claims, i .e ., Tepoer, 2012 the preservation 4119490 and In re THINK3, 529 B .R . at Ocitgo's Reply, Doeket Entry No . 34, 1 see 2 % 18 . above ( describing the cases Citgo cites). In Terrerr 4119490, at *4r court held that uthe Plan's categorical reference to and reservation of contract claims sufficiently specific claim . reserve Plaintiff's contract plan documents identify any potential categorically, not identify the value of any preserved claims . Id . at Citing defendant either individually In re Texas Wvom in? Drilling, 647 F.3d its observation nTn re United Op erating focused exclusively on the retention of claims . *#' .( * a ' ' (j t . court reasoned that 'neither Tn re ' Texas Wyoming Drilling nor Tn re United Op erating requires that specific prospective defendant, potential amount the claim basis be included satisfy the specific recovery, plan or disclosure statement unequivocal standard reserving In In re TH INK3 the court held the nspecific claims .' Id . at ' and unequivocal' standard satisfied because the plan uspecifically ' identified type claim issue ( contract and debt) and specifically named the defendant .' ' Because plan documents at issue specifically identify contract claim s as a type of claim being reserved, and specifically identify Citgo potential defendant they are specific enough to creditors on notice the tru stee's intent confirmation claims for breach of contract. therefore pursue post- The court concludes plan documents satisfy the Fifth Circuit 's uspecific and unequivocal' standard for preserving contract claim s. ' ( 3) The Plan Documents Do Not Preserve the Stay Violation Claim The court sufficiently concludes that uspecific and plan documents unequivocal' ' preserve are the stay Plan nor the Disclosure Statement contain any reference section stay violations Bankruptcy Code that governs the automatic stay . In In re United OperatinG, 540 F .3d at Fifth Circuit cited with Liauidation, 319 B .R . at approval 337-38, In re Ice Cream its holdings plan documents that identified specific sections of the Bankruptcy Code pursuant which preference claim s would be brought were sufficient to preserve preference claim s, but that because the plan documents failed to reference turnover claims or the section of Bankruptcy Code that governed such claims, turnover claim s had not been preserved . Because the plan documents reference stay violations satisfy the 5 case of the Bankruptcy Code, they ' 'specific and unequivocal' standard ' preserving stay violation claims . Asserting that ' tlhe 'E consideration of Section 1123 Citgo 's motion overarching purpose policy notice r/o p laintiff argues that ' dism iss stay violation l 3plaintiff's Response, Docket Entry No . 27, p . 30 claim should nevertheless be denied because ' dlefendant had actual notice and 'E knowledge of the claim E) E dqefendant received Plaintiff argues that actual notice via email correspondence of the precise claims that are the subject of Counts I and II. On July 14, 2015, approximately two weeks after Plaintiff's Petition Date, Plaintiff's counsel informed Defendant's counsel that nGas-Mart has instructed my firm to start preparing papers to sue CITGO for violating the automatic stay and its executory contract/ '. A copy of this email is attached as Exhibit 4 . Furthermore, Defendant is not prejudiced in any way, as Defendant explicitly preserved its defenses against Gas-Mart in anticipation of this litigation in a postpetition Vendor Agreement . Had Defendant so desired, with its knowledge of the potential claims against it, it could have inserted a release in the post-petition Vendor Agreement to obviate any liability . Thus, because Defendant notice of the claim s it argues pursuant to Section 1123, its ground should be denied . The had actual knowledge and were improperly preserved Motion to Dism iss on this prim ary considerations of Section 1123, such as prejudice, surprise, and lack of notice are completely lacking in the present situation .o Citgo replies that plaintiff's argument uinvites the E cqourt ignore the Fifth Circuit case 1aw interpreting 5 1123 favor apply g ingq a new test .' 6 Citgo also argues that the email '4 plaintiff subm its as nExhibit A . is 50th inadmissible and irrelevant .'4 Citgo argues that Exhibit A is inadmissible parole '? evidence because interpretation the plan and < . 4zd 4 . at %% 62-63. 5Id 46 citgo 's Reply , Docket Entry No . 4 Id . at 10 % l2. 7 pp . 17-18 % disclosure st atem en t because gover ned by contract principlesz8 and 'irrelevant ' evidences only that the Debtor believed that potential claim against CITGO one year prior not whether that claim was preserved had a confirmation-but the Plan and Disclosure Statement such that Plaintiff has standing to bring it .'49 ' Citgo's actual knowledge of as a matter of law, not relevant plaintiff has standing the issue whether pursue that claim because standing governed the sufficiency of the retention language in the p lan documents. Although the Fifth Circuit recognized notice creditors as an important policy concern behind the ' 'specific and unequivocal' standard articulated ' In re United Oreratina , F.3d at 355, plaintiff has not cited any case in which the Fifth Circuit has considered actual notice specific creditor as relevant to whether claim s have been sufficiently preserved post-confirmation prosecution . Instead , 'the notice to creditors ' that the E Fifthq Circuit and other courts have considered critical this regard is the general notice a;; creditors, not merely the actual notice of the defendant in the post-confirmation suit .' ' ASARCO , at Texas Wyom inq Drillina, ( emphasis F .3d original). See also In re (' 'The purpose of the rule put 'creditors on notice of any claim E the debtor) wishes 4 Id 8 49 d I pursue after confirmation' and enable Acreditors to determine whether a proposed plan resolves matters satisfactorily before they vote to approve it.'') ( ' quoting In re United Operatina, 355). F.3d at Asarco the bankruptcy court rejected substantially sim ilar plaintiff's explaining argument that nunited Operatin? and its progeny, which hold that blanket reservations of claims do not provide standing pursue such post-confirmation , apply even when actual notice claim s alleged and creditors have been paid in fu1l .' 514 B .R . at 192 . ' Plaintiff Lacks Standin? to Pursue the Claim for PostPetition Breaches of a Renected Contract ' Citgo argues that plaintiff is barred from pursuing the breach of contract claim because Gas-Mart elected reject the Citgo 5 365( g).5 0 Agreement pursuant Asserting that rejection constitutes a material breach deemed to have occurred the s oplaintiff's Complaint alleges breach of the September 1O, 2013, Agreement. See Docket Entry No. 1, p. 10 % 51 ( alleging that nE tqhe Agreement entered into by and between Gas-Mart and Citgo was a valid and enforceable contract.' '), % 52 ( alleging that 'Citgo ' m aterially breached the Agreement in several respects, including, but not limited to . . .r' and p. 4 % 17 ( ' defining the term uAgreement' as ' the September 10, Agreement.'). / Any contention to Plaintiff's Response is 2013, the contradicted by nMarketer contrary Franchise suggested the Complaint . by See Plaintiff's Response, Docket Entry No . 27, p . 13 % 46 ( asserting that uthe Vendor Agreement was signed post-petition by Citgo , which independently creates the litigation claims against Citgo'). See ' also Citgo's Reply, Docket Entry No. 34, pp. 20-21 % 30 ( arguing against any contention either that the Vendor Agreement is a standalone agreement or that the Complaint alleges breach of the Vendor Agreement). day before the Petition Date ,s and that l of contract 1aw fundam ental principle that when one party contract commits material breach of that contract, the other party is discharged excused from further perform ance ,/b Citgo argues that Gas-Mart's /z prior material breach bars plaintiff's contract claim because alleged breaches a11 occurred after the Petition Date .5 3 W ithout disputing that the breaches alleged in the Complaint occurred after the Petition Date , plaintiff responds that : 365 ( ) g relieve Citgo contractual obligations pending Gas-Mart's decision to reject the contractx 4 Citing United States of America on Behalf of the United States Postal Service v . Dewev Freiaht Svstem , Inc w F .3d ( 8th 1994), plaintiff argues that nthe non-debtor counter party to an executory contract is obligated to continue perform ing its obligations under the contract pending the ultimate assumption, assignment , rejection of that contract by the debtor.'o Plaintiff argues that ' ( dquring this time , Defendant was required to continue performing its contractual obligations. Defendant's argument would effectively eliminate this requirement, s citgo's Memorandum , Docket Entry No. l p . 26 % 5 (d . a t 2j g No . 5 . at 26-27 :% 3ld p . 10 %% 51-52 . See also Complaint, Docket Entry pp . 21-23, %% 66. 5 . at 22 % 65 5Id relieve non-debtors of their contractual obligations before the contract was ultimately rejected, and alter the substantive rights of the parties, a1l of which would be contrary to the 1awX 6 Without disputing that non-debtor counter parties to executory contracts are obligated to continue performing pending a debtor's ultimate assumption or rejection of the contractr Citgo replies: Plaintiff cites no case allowing a plaintiff to sue on a rejected contract for alleged breaches after the petition date . Plaintiff provides no authority Einq support of the proposition that the nfirst to breach rule' has no ' application in the context on 5 365( g), or, more succinctly, that nbreach' does not m ean nbreach .rs7 ' ' After carefully reviewing 5 365 and Fifth Circuit 1aw applying 5 365, the court concludes that while b0th parties have correctly cited cases applying 5 neither party has fully demonstrated how that 1aw applies to the facts of this case . For the reasons stated below , the court concludes that Gas-Mart's Rejection of the Citgo Agreement means that plaintiff lacks standing pursue the post-petition breaches. Applicable Law Section of Ban kruptcy Code provides that trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor .' ' ' , $ 365 ( ). a term Mexecutory contract' ' defined 5 Id . at 22-23 % 66. 6 s citgo's Reply, Docket Entry No . 7 % 28 . Code, the Fifth Circuit has recognized that Man agreement is executory if at the time of the bankruptcy filing, the failure of comp lete performance would constitute a material either party breach of the contract, thereby excusing the performance of the other party .' Phoenix Exploration, Inc . v . Yaquinto (In re Murexco ' Petroleum, Inc.), 15 F.3d 60, 62-63 ( 5th Cir. 1994) ( per curiam ). See also id . at article by (' AThe a two-part Professor Vern San#ru tcy; Part p Countryman , Sxecutory 57 Minn . Sxecutory Contracts Contracts Rev. 439, 458-62 ( 1973), and Sankrup tcy ; Part 57 Minn . Rev . ( 1974).')) National Labor Relations Board v. Bildisco and Bildisco, ' 104 S. 1188, 1194 & 6 ( 1984) ('g ' Tlhe legislative history 5 365( a) indicates that Congress intended the term to mean a contract sides .' 'on which performance is due to some extent on b0th H .R .ReP . 95-595, (1977), see Rep. 95-989, p . 58 ( 77).'). 19 ' The decision whether to assume or reject an executory contract under generally left business judgment bankruptcy estate . See Mirant Corp . v . Potom ac Electric Power Co . ( re Mirant Corp.), 378 F.3d 511, 524 In estate elects (5th 2004) assume the executory contract , estate takes on the burdens associated with the contract , agreeing to cure any outstanding defaults, and comm itting to perform on forward basis. U.S. f 365 ( C. 5) going- See Texas Health snterrrises, Inc. v . Lytle Nursing Home (In re Texas Hea1th Enterorises , Inc .), App'x 122, 126 ( 5th Cir. 2003). Once an executory contract assumed, 365 ( f) authorizes assignment. See U.S.C 5 365( 5 If the estate elects to reject the contract, the act of f). 8 rejection is deemed to constitute a breach occurring the day before the filing of the bankruptcy petition, the non-debtor receives U.S. 5 365 ( ( C. g) 1),5 and 9 pre-petition claim for damages arising 58 pertinent part the statute provides: 1n . . . the trustee m ay assign such contract or lease under paragraph ( of this subsection. 2) The trustee may assign an executory contract unexpired lease of the debtor only if-- ( A) the trustee assumes such contract or lease in accordance kith section ; and the provisions of this adequate assurance of future performance by the assignee of such contract or lease is provided, whether or not there has been a default in such contract or lease . 11 U.S.C. 5 365( f). 591n relevant part the statute provides : ( g) . . . the rejection of an executory contract unexpired lease of the debtor constitutes a breach such contract or lease if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title, immediately before the date of the filing of the petition; 11 U. C. 5 365 ( S. g) therefrom measured ( the usual case) by the terms of the contract in and applicable 5O2 ( 1). 0 g)( 6 affirmative declaration that estate will obligations of a pre-petition contract Rejection is an take made the Rejection does not terminate the contract, obligation perform the debtor. places the contract outside of the bankruptcy administration . Eastover Bank for Savinqs v . Sowashee Venture (In re Austin Development Co.), 19 F.3d 1077, 1082-83 ( 5th Cir.), cert. denied sub nom . Sowashee Venture v . EB , Inc ., ( 1994). In re Austin Development involved a lease on non-residential real property; issue was whether the debtor's failure to timely assume or reject the lease which resulted in terminated lease thereby extinguishing deemed rejection, rights third- parties, e .a ., parties who had taken a sublease from the debtor or a security interest in the debtor's lease interest . After analyzing 365, its Id . at 1080 . statutory antecedents, and policy 6 0In relevant part the statute provides : A claim arising from the rejection, under section 365 of this title or under a plan under chapter 9, 11, 12, or 13 of this title, of an executory contract or unexpired lease of the debtor that has not been assumed shall be determined, and shall be allowed under subsection ( a), ( b), or ( of this section or disallowed under section c) ( or ( of this section, the same as if such claim had d) e) arisen before the date of the filing of the petition . 11 U.S.C. f 502 ( 1). g)( considerations, the Fifth Circuit concluded that 'rejection, does ' not effect termination of that lease, or, consequently , an implied forfeiture of the rights = Id 1083 . reaching this conclusion the Fifth Circuit reasoned that E 365 derives from 5 70( of the former Bankruptcy $) b) Act, a provision that broadly codified the common law doctrine that allowed the trustee either to assume and perform the debtor's leases or executory contracts or to nreject' them if they were economically burdensome to the ' estate . See generally Michael T . Andrew , Sxecutory Contracts ïn Bankru tcy; Understanding 'Rejectionr' 59 U p b ' of Colo. L . Rev. 845, 874-81 and n. 136 ( 1988). This court has held that the deemed rejection of a lease under 5 70( did not terminate the lease but merely placed the b) trustee's obligation to perform under the leasehold outside of the bankruptcy administration without destroying the leasehold estate . In re Garfinkle, 577 F.2d 901, 904 ( 5th Cir. 1978). F .3d at 1081. Fifth Circuit also reasoned that the terms rejection, breach and termination are used differently, but not inconsistently or interchangeably . . . Throughout 5 365, rejection refers to the debtor's decision not to assume a burdensome lease or executory contract. lease Section 365( states that rejection of a g) nconstitutes a breach' except ' as provided in subsections ( 2) and ( 2). Three circuits, including h)( i)( this one, have held that this language does not mean that the executory contract or lease has been term inated, but only that a breach has been deemed to occur . In re Continental Airlines, 981 F. 2d 1450, 1459 ( 5th Cir. 1993)( uto assert that a contract effectively does not exist as of the date of rejection is inconsistent with deeming the same contract breached/ '). = Id 1082 . The Fifth Circuit exp lained that E tlhe decision to reject is thus correctly viewed only as a 'power to breach ' the executory contract or lease . A s ' ' one commentator put it, E wqhat the estate's representative is rejecting is the contract or lease asset, which conceivably could carry continuing obligations with it into the estate on an administrative basis. Rejection simply prevents the estate from unadvisedly stepping into such liabilities . The liabilities are not repudiated; to the contrary, as the rejection-as-breach doctrine is designed to insure, the contract or lease liabilities remain in-tact after rejection and give the non-debtor party a claim in the distribution of the estate . Id. ( quoting Andrew, Bildisco, l04 contract Colo. at 1197 Rev. 883). See also ( nthe authority to reject an executory vital basic purpose a Chapter reorganization, because rejection can release the debtor's estate from burdensome ob ligations that can impede successful reorganization.'). ' Between the date ban kruptcy petition executory contract is assumed contract continues against the debtor. filed rejected under exist, enforceable by Dewey Freight , and an 365( a), the debtor, F .3d at 624 . See also In re Gunter Hotel Associates, 96 B.R. 696, 7O0 ( Bankr. W.D. TeX. 1988) (' executory contract under Chapter 11 is not enforceable against 'an the debtor party, but prior to debtor's assumption or In re Mirant Coro w (' ven 'e assumption, enforceable against the nondebtor party a 3O3 B.R. 319, 328 ( Bankr. N .D. Tex. 2003) contract property the estate until debtor has rights under the contract which are 40 property the estate and so are protected by the automatic stay from actions of other parties'); ' Chick Smith Ford, Inc. v. Ford 515, Motor Credit Co . (In re Chick Sm ith Ford , Inc.), 46 question is ( Bankr. M . D. Fla. 1985) ('g ' uqntil the contract rejected validly terminated the Debtor entitled compel specific performance and require the E creditorq to abide the provisions of the contractEq.'). ' ( b) Application of the Law to the Facts Neither party disputes that the Agreement plaintiff alleges Citgo breached was an executory contract, that Citgo's alleged breaches occurred Bankruptcy Court after the Petition Date, or entered a Rejection Order pursuant that the which Gas- Mart's Executory Contracts, including the Agreement w ith Citgo, were rejected as of March 10, 2016. Pursuant to 5 365 and the Fifth Circuit's reasoning in In re Austin Develorment, F.3d at 1077, the court concludes that Gas-Mart's rejection of the Citgo Agreement constituted a material breach that triggered dischargeable, unsecured , pre-petition claim by Citgo against the estate effective immediately before Gas-Mart's bankruptcy, and relieved b0th estate perform ance obligations . and Citgo See id . at 1081-84 . General Contractors, Incw 267 B.R. 773, 2001) ( recognizing that In re Austin from post-petition See also In re CVA ( Bankr. W.D. Tex. Development held that nrejection has an important appropriately narrow function: relieves the estate and nondebtor parties from future performance obligations and, accomplishing breach , triggers dischargeable, unsecured, pre-petition claim against the estate' ') Rejection did not cut off the right of Gas-Mart's estate its successor-in-interest to pursue claims based on pre-petition breaches of the Agreement. Tavlor (In re Tavlor ), See e .a., Delichtful Music Ltd . v . F.2d 102, ( Cir. 1990) 3d extent that money is due the debtor for pre-petition services under a personal services contract , the debtor's claim for those sums is undoubtedly an asset estate which passes trustee/debtor-in-possession . And this is so regardless of whether the trustee later affirms otherwise, the issue rejects the contract. affirmance Stated rejection relates only those aspects of the contract which remained unfulfilled as of the date the petition was fi1ed.'); Williams v. Tomer (In re Tomer), ' 128 B. 746, 756 ( R. Bankr. S.D. 111. 1991) ( nthe executed portions of the contracts remain intact , and property rights acquired under the contracts prior to filing became property of the estate despite the trustee's rejection of unperformed obligations of the contracts), aff'd, 147 B.R. 461 ( S.D. 111. 1992). claim asserted in this action But the breach of contract not for pre-petition breaches . While plaintiff correctly cites Dewev Freiqht for holding that uE alfter debtor commences Chapter 42 proceeding, but before executory contracts are assumed or rejected under 365( a), those existence, enforceabie by tAe deb tor contracts remain against the debtorr' 31 F.3d at 624, relief for post-petition, pre' rejection breaches available from the bankruptcy court by an order requiring specific performance or an injunction enforcing the automatic stay . See In re Mirant Corp w at 328; In re Chick Sm ith Ford, 46 B .R . at 519. See also In re Mirant Corr w 44O 238, 254-55 2006) ( affirming bankruptcy court's orders directing non-debtor parties to comply with the automatic stay after holding that non-debtor's unilateral termination of an executory contract before debtor had elected under violated assume automatic stay). reject Before the Citgo Agreement was rejected, remedies for the breaches about which the plaintiff complains were thus available Gas-Mart from the bankruptcy court in the form of orders for specific performance or violation the automatic stay . alleged breaches the extent that Citgo 's automatic stay, the reasons : stated in 5 II. B.1.( 3), above, the court has already concluded b)( that plaintiff lacks standing pursue this claim because ability to do so was not preserved in the plan documents . Plaintiff has not cited and authority allowing such as debtor's estate this action rejected contract. an affirmative declaration by 43 found any successor-in-interest creditor tru stee p laintiff claims for post-petition breaches rejection court has pursue Bec au se debtor that the obligations a pre-petition contract made by the debtor, Gas-Mart's rejection of the Citgo Agreement not only relieved the post-petition estate obligations, but also relieved the estate of claims for post-petition breaches thereof. performance ability to assert Moreover, pursuant 5 365 ( executory contracts must be assumed by the debtor before f) they can be assigned. Gas-Mart's rejection of the Citgo Agreement therefore precluded the post-petition breaches from becom ing assets of Gas-Mart's estate that could be assigned and transferred to the creditor trust . Accordingly , the court concludes that plaintiff lacks standing to pursue the breach of contract claim asserted this action . C. Plaintiff 's Request for a Oral A rgument Plaintiff has requested oral argum ent on Citgo's motion dismiss ( Docket Entry No. 37). The Court has discretion to grant or deny a request for oral argument . See Rule 7.5A, Local Rules of the United States District Court for the Southern District of Texas (' 'lf party views oral argument as helpful motion or response may include a request for the parties will be notified by the clerk.'). ' the Court, the If it is granted , Because the court has been able to resolve Citgo's motion to dismiss on the pleadings and briefs without the need for oral argument, plaintiff's request for oral argument will be denied . 44 D. Conclusions : Plaintiff Lacks Standing for Counts I and 11 For the reas6ns stated in concludes that plaintiff II. B.1 ( 3), above, the court b)( lacks standing pursue the stay Count 11 because the plan documents not preserve the ability pursue such claims post-confirmation . the reasons stated II.B.1( 2), above, b)( court concludes that the plan documents did preserve the ability pursue breach contract claims post-confirmation , reasons stated in 5 II.B . 2, above, the court concludes that plaintiff lacks standing asserted Count breaches pursue the breach of contract claim because that claim alleges post-petition Agreement that Gas-Mart rejected pursuant 365. Accordingly , Citgo's motion to dismiss Counts I and for lack of standing will be granted and the plaintiff's claims for breach dismissed contract and violation of the automatic stay without prejudice for lack of subject matter jurisdiction . Although Citgo also argues, in the alternative, that plaintiff's breach of contract claim is subject dismissal based on res judicata and principles of subrogation, and that plaintiff's stay violation claim is subject dismissal based laches, because the court concludes that these claims should be dismissed : lack of subject matter standing , court lack need not arguments. 45 address these alternative 111 . Motion for Summarv Judqment on Count III Count plaintiff seeks avoid as preferential transfer, a payment of $68,185.69 that Gas-Mart made to Citgo on or about June 9, 2015 .61 Citgo denies that this payment qualifies as a preferential transfer, but for purposes Citgo assumes that the pending motion prima facie elements transfer claim have been established . preferential Citing 11 547( b) and asserting that after Gas-Mart made the payment issue, Citgo provided almost $900,000.00 in new fuel deliveries Gas-Mart that rem ained unpaid as of the Petition Date, Citgo argues that entitled to summary judgment on this claim based on the SUYSOCUPDV DeW Vxiue Yefense .6 ? A. Standard of Review Summary judgment is authorized if the movant establishes that there entitles no genuine dispute about any material fact and the judgment. Fed. R. Civ . material facts are ugenuine' ' reasonable jury could return 56 ( a) the evidence verdict Anderson v . Libertv Lobbv , Inc w Disputes about such that the nonmoving party . 2505, 2511 ( 1986). party moving for summary judgment umust A demonstrate the absence of a genuine issue of material fact,' but need not negate the elements Gcomp laint, Docket Entry No . pp . 13-14 %% 64-73 . 6 citgo's Memorandum , Docket Entry No . z 29 %% 74-75 . the nonmovant's case .' ' 1069, Little v . Liauid Air Corr w F.3d 1994) ( banc), ( en quoting Celotex Corp . v . ( 5th moving party 2548, 2553-54 (1986)). Catrett, meets this burden, Rule 56( requires the nonmovant c) beyond the pleadings and show by affidavits, depositions, answers interrogatories, adm issions on file, or other admissible evidence that specific facts exist over which there trial. Id. ( citing Celotex, 106 S. reviewing the inferences evidence nthe court must genuine issue at 2553-2554). draw favor of the nonmoving party, and credibility determinations reasonable may weigh the evidence .' ' Sanderson Plumbinc Products Inc., make Reeves v . 2097, 2110 ( 2000) Factual controversies are to be resolved in favor of the nonmovant, 50th parties have submitted evidence only when contradictory facts .' Little , 37 F .3d at 1075. ' B. Applicab le Law Section 547( ( provides in pertinent part that c) 4) ( c) The Trustee m ay avoid under this section transfer- ( 4) to ob for the benefit of a creditor, to the extent that , after such transfer, such creditor gave new value to or for the benefit of the debtor( A) not secured by an otherwise unavoidable security interest ; and on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor . 11 U.S. 5 547( 4). In pertinent part 5 547 ( 2) defines nnew C. c)( a)( value' to mean nm oney or money 's worth in goods, services, or new ' credit. .' 11 U.S. 5 547 ( 2). ' C. a)( Citing Leidenheimer Bakinc Co ., LLC v . Sharr (In re SGSM Acauisition Co ., LLC ), 439 F .3d 233, 241 ( 5th 2006), Citgo argues that this statutory language creates three elem ents that must be proven in order to assert the Msubsequent' new value defense: ' (1) the creditor must have extended new value to the debtor or on debtor's behalf after receiving the preference; ( the 2) new value must be unsecured; and ( the new value must 3) remain unpaid after its transfer.6 3 Citgo argues that a11 three elements are met . The alleged preferential transfer was m ade on June 9, 2015 . CITGO provided additional fuel to Debtor valued at $891,613.99 from June 10, 2015 through July 1, 2015, a11 of which deliveries were after the alleged transfer . See Statem ent of Facts ( nSOF'), % 40. The first temporal element is satisfied. ' The fuel sales were not secured by any collateral . A s of the Petition Date, CITGO held Credit Card Receipts valued at $221,190.12, assuming the Credit Card Receipts were subject to setoff, the net unsecured claim of CITGO was $670,423.87 as substantially in of the Petition excess of the Date, an amount alleged preferential payment of $68,185.69. See SOF, % 5. Thus, the second element is met. A lthough CITGO had a bond in place with the Surety, such financial arrangement is not a security interest . . Lastly, CITGO 'S net unsecured claim remained due and payable as of the Petition Date, satisfying the third element . See SOF, % 41 .64 Ocitgo's Memorandum , Docket Entry No . 15, p . 30 % 6 Id . at % 4 ' ( citation omitted). As evidence that provided fuel Gas-Mart valued $891,613.99 from June 10, 2015, through July 2015, CITGO cites the affidavit of Citgo Senior Credit Manager, Karina Estrada-laimer as well as invoices, Exhibit 11, and a summ ary thereof, Exhibit 12, attached Citgo's memorandum .6 s evidence that Citgo held Credit Card Receipts valued at $221,190.12 as of the Petition Date, and that its net unpaid and unsecured claim as of that date was $670,423.87 or more, Citgo cites included in its Memorandum,6 f 5 of the Statement of Facts which plaintiff has responded , 'Admitted/uncontroverted.'f ' 'V Citing uobjects Federal Rule of Procedure 56( d), plaintiff Defendant's motion summary judgment, as prem ature , raises issues of fact that require discovery , and early in the proceeding for Plaintiff to properly respond .'f' ' Then , without disputing that Citgo provided fuel to Gas-Mart valued 2015, through July 2015, or that as OAffidavit of Citgo Petroleum Corporation in Support of Its Motion to Dism iss or in the A lternative for Summary Judgment, Docket Entry NQ . 15-1, % 7 ( nBetween June 9, 2015, and July 2, 2015, CITGO provided additional fuel in the amount of $891,613.99. Group Exhibit 11 and Exhibit 12, 50th reflecting the value of the fuel provided, are attached to the Memorandum . . .'); Exhibit 11, ' Docket Entry No . 15-13, and Exhibit 12, Docket Entry No . 15-14 . 6 citgo's Memorandum , Docket Entry No . 6 id . at % 5. E Xplaintiff's Response , Docket Entry No . 6 . at 16 % 8Id 49 30 % 10 % ( citing of the Petition Date, Citgo held an unpaid and unsecured claim $670,423.87 or more, plaintiff argues that ' dqefendant has failed 'E to satisfy burden of proof subsequent new value defense .' g A sserting that a creditor relying /6 on the subsequent new value defense bears the burden of proof and production , plaintiff argues that E dqefendant has not produce sufficient support this affirm ative defense . evidence to Pursuant to Fed . R . Civ. P. 56( 2), E c)( dlefendant has not produced any facts or evidence in a form that would be admissib le at trial . Accordingly, g dqefendant's motion to dismiss Count 111, or in the alternative for summary judgment, should be deniedx o Citgo replies that Rule 56 requires that ' E )n affidavit or declaration used 'a to support or oppose a motion must be m ade on personal knowledge, set out facts that would be adm issible in evidence, and show that the affiant or declarant is competent to testify on the matters stated .' Fed . R . ' Civ. P . 56 ( ( ). The Affidavit E c) 4 of Karina EstradaJaimeq is made on personal knowledge and identifies that the Invoices are true and correct copies of business records for which the Affiant is the records custodian . The Invoices are business records admissible under Fed . R . Evid . 803 ( ) ( for the truth of the matter . 6 B) Those invoices identify the amount of fuel, the price of the fue1 and their delivery date ( date after the alleged a Preferential transfer). l 7 6 Id . at 9 % 81 . 7 Id 0 7l citgo's Reply , Docket 34, p . 23 % 34. Application of the Law to the Undisputed Facts A lthough this action is in an early stage yet file an answer and controversy between reflected the discovery parties has a has begin , the long history the factual background set forth Plaintiff's objection Citgo's motion which Citgo has that 5 is above . summary judgment as premature because it raises issues of fact that require discovery, merit . and reference to 56( is titled, 'When Facts Are Unavailable to the Nonmovant,' and d) A ' pertinent part requires party seeking relief thereunder ushow gj by affidavit or declaration that, for specified reasons, cannot present facts essential 56( d). declaration , Plaintiff has neither submitted an affidavit presented any reasons why facts essential justify its opposition discovery . Fed . R . Citgo's motion are unavailable absent Accordingly, plaintiff has failed satisfy the requirements for relief under Rule 56( d) Plaintiff also argues that Citgo's motion for summary judgment should be denied because ug dlefendant has not produced any facts or evidence Rule 56( c) '2 form that would be admissib le at tria1 .'7 Federal provides that A aq party may object that the material 'g cited to support or dispute fact cannot be presented in that would be admissible H plaintiff's Response, Docket Entry form shown 27 % that Citgo's evidence would not be admissible at trial. For that reason and because Citgo's evidence is admissible under Rule 803 ( 6) as business records, plaintiff's objection evidence lacks any basis in 1aw or fact . district court may not grant summary judgment by default simply because there no substantive opposition the motion . The court may, however , accept as undisputed the movant's version of the facts and grant motion summary judgment when the movant has made a prima facie showing of entitlem ent summary judgment. John v. State of Louisiana ( Board of Trustees for State Colleqes and Universities), 757 F.2d 698, 707-08 ( 5th Cir. 1985). See Everslev v. Mbank Dallas, F.2d 172, 174 ( 5th Cir. 1988) ( holding that the court did not granting a motion for summary judgment when the movant's submittals make showing of entitlement Citgo 's version judgment as prima facie matter of law). Because facts as contained affidavit of Karina Estrada-laime and the business records attached thereto establish that after Gas-Mart made the $68,185.69 payment alleged to be preferential, Citgo provided Gas-Mart $891,613.19 of new fuel for which Citgo had not received payment as the Petition Date, and because plaintiff has not submitted any evidence capable of disputing Citgo's version of the facts, the Citgo entitled judgment as matter preferential transfer claim alleged in Count Complaint ( Docket Entry No. 52 concludes that law of plaintiff's IV . Conclusions and Order reasons stated above, the court concludes that Counts I and 11 are subject to dismissal without prejudice for lack subject matter jurisdiction because plaintiff lacks standing pursue the claims for breach of contract asserted Count I and stay asserted in Count For the reasons stated in 5 111, above , the court concludes that Citgo entitled summary judgment preferential transfer asserted in Count Petroleum Corporation's Motion plaintiff's claim Accordingly, Citgo Dismiss Counts and 11 and for Summary Judgment as to Count III (Docket Entry No. is GRANTED .7 3 For the reasons stated 5 II . C, above, plaintiff's Request Oral Argument ( Docket Entry No. For the reasons stated in Leave DENIED . II .B .1, plaintiff's Motion for File Supplemental Authority Support of Plaintiff's Response to Defendant's Motion to Dismiss ( Docket Entry No. 38) is R3 The court has allowed the parties extraordinary leeway in subm itting lengthy briefs and other written materials in connection with the pending motions . A s the length of this Mem orandum Opinion and Order indicatesr the court has expended considerable time reading these papers and performing a significant amount of independent research to be as fully informed as possible when addressing the parties' arguments. While, because of the sheer volume of information presented, it is not impossib le that some arguments were overlooked, the parties should assume that failure to expressly address a particular argument in this Memorandum Opinion and Order reflects the court's judgment that the argument lacked sufficient merit to warrant discussion . Accordingly , the court strongly discourages the parties from seeking reconsideration based on arguments they have previously raised or that they could have raised . GRANTED , and plaintiff's Motion Leave File Supplemental Authority in Support of Plaintiff's Response to Defendant's Motion Dismiss ( Docket Entry No. 41) is GRANTED . SIGNED at Houston , Texas, this 8th day of F r ary, 2018 . < SIM LAKE UNITED STATES DISTRICT JUDGE

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