Vaughan v. Vermont Law School, Inc. et al

Filing 90

MEMORANDUM AND ORDER denying 85 Motion to Reconsider or Clarify re 82 Memorandum and Order, or in alternative, Motion to Certify Issues for the Vermont Supreme Court and/or to the U.S. Court of Appeals for the Second Circuit. Signed by Judge William K. Sessions III on 9/12/2011. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JOSHUA VAUGHAN,

:
:
Plaintiff,
:
:
:
v.
:
:
VERMONT LAW SCHOOL, INC., and :
SHIRLEY JEFFERSON,
:
:
Defendants.
:

Case No. 2:10-cv-276

MEMORANDUM AND ORDER
Plaintiff Joshua Vaughan has moved for reconsideration of
portions of the Court’s Memorandum and Order of August 1, 2011,
denying in part his motion for leave to amend his complaint and
join Church Engle & Associates, Inc. as a party, denying his
motion for partial summary judgment, and granting Defendants’
cross-motion for partial summary judgment.
ECF No. 85.

Mot. to Reconsider,

In the alternative, he asks the Court to certify

four issues to the Vermont Supreme Court or to the United States
Court of Appeals for the Second Circuit.

Familiarity with the

factual and procedural background outlined in the Memorandum and
Order is assumed.

For the reasons that follow, the motion to

reconsider and the motion to certify are denied.
I. Legal Standards
It is well settled that “[t]he standard for granting a
motion to reconsider is strict, and reconsideration will

generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked -matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.”

Shrader v. CSX

Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

“A motion to

reconsider should not be granted to relitigate an issue already
decided.”

Id.

“‘Motions for reconsideration must be narrowly

construed and the standard strictly applied to discourage
litigants from making repetitive arguments on issues that have
been thoroughly considered by the court, to ensure finality, and
to prevent the practice of a losing party examining a decision
and then plugging the gaps of the lost motion with additional
matters.’” Lewis v. Rosenfeld, 145 F. Supp. 2d 341, 343 (S.D.N.Y.
2001) (quoting Ackoff-Ortega v. Windswept Pac. Entm’t Co., 130 F.
Supp. 2d 440, 443 (S.D.N.Y. 2000)).

However, a motion for

reconsideration should be granted where “it becomes necessary to
remedy a clear error of law or to prevent obvious injustice.”
Walker v. Teachers Ins. & Annuity Ass’n of American Coll., No.
1:09-CV-190, 2010 U.S. Dist. LEXIS 78604, at *5 (D. Vt. Aug. 4,
2010) (quoting Hester Indus., Inc. v. Tyson Foods, Inc., 160
F.R.D. 15, 16 (N.D.N.Y. 1995)).
Pursuant to Local Rule 74, this Court may certify “an
unsettled and significant question of state law that will control
the outcome of a pending case” to the Vermont Supreme Court.

2

The

Court may submit an otherwise unappealable order to the Second
Circuit when the Court is “of the opinion that such order
involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation[.]”

28 U.S.C. § 1292(b).

The Court of Appeals “may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to it
within ten days after the entry of the order[.]”

Id.

II. IIED Claims Against VLS and Jefferson
In the August 1 Memorandum and Order, the Court denied
Vaughan’s motion to amend his complaint by reviving his
previously dismissed intentional infliction of emotional distress
(“IIED”) claims against VLS and Jefferson.

The Court found that

such an amendment would be futile because the IIED claims “could
not withstand a motion to dismiss pursuant to Rule 12(b)(6).”
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d
83, 88 (2d Cir. 2002) (citing Ricciuti v. N.Y.C. Transit Auth.,
941 F.2d 119, 123 (2d Cir. 1991)).
Vaughan argues that he is entitled to reconsideration of
this ruling.

He believes the Court erroneously held that he

failed to allege adequately the damages element of an IIED claim
because he was not expelled from school.
Court’s ruling.

3

Vaughan misreads the

Rather than addressing the damages element of the IIED claim
in its ruling, the Court found that Vaughan had failed to allege
facts sufficient to make out the element of extreme and
outrageous conduct.

Under Vermont law, to prevail on an IIED

claim, a plaintiff must show that the defendants’ conduct was “so
outrageous as to surpass all possible bounds of decency, and . .
. be regarded as atrocious, and utterly intolerable in a
civilized community.”

Gallipo v. City of Rutland, 656 A.2d 635,

643 (Vt. 1994) (internal quotation omitted).

“It is for the

court to determine as a threshold question whether a jury could
reasonably find that the conduct at issue meets this test.”
Jobin v. McQuillen, 609 A.2d 990, 990 (Vt. 1992) (citing
Restatement (Second) of Torts § 46, comment h).
In finding that addition of the IIED claim would be futile,
the Court gave careful consideration to all of the conduct
alleged in Vaughan’s proposed amended complaint and found that it
did not come close to meeting the threshold of extreme and
outrageous conduct.1

In particular, the Court noted that the two

1

In its discussion, the Court specifically identified nine
of the twenty-five allegations from Vaughan’s proposed amended
complaint which he asserted established the element of extreme
and outrageous conduct. In his motion to reconsider, Vaughan
faults the Court for not explicitly discussing all twenty-five
allegations. The Court reiterates that it carefully considered
all twenty-five allegations and, only by way of example, listed
nine of the allegations that seemed most serious in determining
that the totality of conduct alleged could not plausibly be
described as “so outrageous as to surpass all possible bounds of
decency, and . . . be regarded as atrocious, and utterly
4

cases relied upon by Vaughan for examples of extreme and
outrageous conduct were distinguishable because the plaintiffs in
both those cases had alleged that they had been fired or forced
to withdraw from school.

See Crump v. P & C Food Mkts., 576 A.2d

441 (Vt. 1990) (upholding denial of defendant’s motion for
judgment notwithstanding the verdict on IIED claim where 18-year
employee was terminated without prior notice, in three- to fourhour meeting during which he did not feel free to leave and was
badgered to sign a statement); McCormick v. Dresdale, No. 09-474
S, 2010 U.S. Dist. LEXIS 41848, at *2 (D.R.I. 2010) (denying
motion to dismiss IIED claim against university where student
accused of rape was forced to withdraw from school after
administrators failed to adequately investigate the complaint)).
Because Vaughan’s motion to reconsider this ruling is based
upon a flawed reading of the Court’s decision, and because he
fails to “point to controlling decisions or data that . . . might
reasonably be expected to alter the conclusion reached by the
court,” the Court denies the motion.

Shrader, 70 F.3d at 257.

In the alternative to reconsideration, Vaughan asks the
Court to certify to the Vermont Supreme Court and/or the Second
Circuit the “key legal finding[]” that “a plaintiff alleging a
claim for IIED must plead and prove, in addition to other
requirements, that he was discharged or expelled from employment

intolerable in a civilized community.”
5

Gallipo, 656 A.2d at 643.

or school.”

The Court made no such general legal finding in

holding that the specific allegations made by Vaughan do not rise
to the level of extreme and outrageous conduct.

Rather, it

merely explained that two cases upon which Vaughan relied for
examples of sufficiently pled extreme and outrageous conduct were
distinguishable because the plaintiffs in both those cases had
alleged that they had been fired or forced to withdraw from
school.

See Crump, 576 A.2d 441; McCormick, 2010 U.S. Dist.

LEXIS 41848, at *2.
Distinguishing the cases upon which a party attempts to rely
is not the same as holding that these cases establish
requirements which all future litigants who bring IIED claims
must meet.

It is very well possible that a litigant may

establish the element of extreme and outrageous conduct without
alleging that he was fired from a job or expelled from school.
The Court merely held that the particular conduct alleged by
Vaughan did not rise to the level of extreme and outrageous
conduct.

The motion to certify this issue to the Vermont Supreme

Court and/or the Second Circuit is denied.2

2

Even if this Court were of the opinion this issue
“involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an
immediate appeal from the order [would] materially advance the
ultimate termination of the litigation,” certification of the
issue to the Second Circuit would not be permitted under 28
U.S.C. § 1292(b)since it has been well over ten days since the
entry of the August 1 order.
6

III. Negligence and IIED Claims Against CEA
The Court denied Vaughan’s motion to amend his complaint by
adding negligence and IIED claims against Church Engle &
Associates, Inc. (CEA), which is not currently a defendant in
this case.

The Court ruled this way both because it found that

allowing the joinder of this additional defendant at this stage
of the litigation would cause undue prejudice by significantly
delaying the readiness of this case for trial and because the
proposed claims are futile.
With regard to undue prejudice, Vaughan points out that he
filed the motion to amend shortly before the deadline for filing
such motions set forth in the Court’s scheduling order.

He

therefore asserts that denial of the motion makes the scheduling
order “meaningless.”

Mot. to Reconsider 4.

While the Court

appreciates Vaughan’s compliance with the scheduling order,
filing a motion before a designated deadline does not guarantee
that the motion will be granted.

Based on its evaluation of the

particular claims described in the motion to amend, the Court
determined that allowing Vaughan to join CEA as a defendant at
this stage would require extension of the discovery schedule,
increasing the costs of the litigation and significantly delaying
resolution of the case.

Vaughan’s own opinion that this delay

“would not be substantial” or “out of line compared with other
cases” notwithstanding, the Court has determined that allowing

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the claims to go forward against CEA would be unduly prejudicial.
See Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009) (“A
district court has discretion to deny leave for good reason,
including futility, bad faith, undue delay, or undue prejudice to
the opposing party.”).
Furthermore, Vaughan has not identified any “controlling
decisions or data that the Court overlooked . . . that might
reasonably be expected to alter” the Court’s conclusion that his
proposed claims against CEA would be futile.
257.

Shrader, 70 F.3d at

The Court concluded that the negligence claim against CEA

could not survive a motion to dismiss because, although he
included in his proposed amended complaint a boilerplate
assertion that he “suffered damages proximately caused by Church
Engle’s negligence and wrongful actions,” Am. Compl. ¶ 101, he
failed to suggest any plausible causal link between CEA’s actions
in composing its investigative report, which ultimately did not
conclude that Vaughan had sexually assaulted RH, and any damages
he has suffered.

Although Vaughan asserts in his motion to

reconsider that “it is unusual to require more detailed
allegations of causation at the initial pleadings stage,” the
Supreme Court has said otherwise.

“[A] plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”

Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (internal quotations omitted)(citing Papasan
v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss,
courts “are not bound to accept as true a legal conclusion
couched as a factual allegation”)).

Vaughan’s “formulaic

recitation” of the causation element does not meet the pleading
standards described in Twombly.

Id.

Vaughan’s attempt to flesh out a theory of causation in the
briefing on his motion to reconsider by arguing that “the entire
ensuing [disciplinary] process was based on the CEA report [and]
would not have occurred but for the altered statements and biased
CEA investigation,” Mot. to Reconsider 3-4, is too little too
late.

“Motions for reconsideration must be narrowly construed

and the standard strictly applied . . . to prevent the practice
of a losing party examining a decision and then plugging the gaps
of the lost motion with additional matters.”

Lewis 145 F. Supp.

2d at 343 (internal quotation omitted).
With regard to the IIED claim against CEA, in his motion to
reconsider Vaughan simply “incorporates his argument as to the
proposed IIED claim against VLS and Jefferson[.]” See supra.

He

points to no “controlling decisions or data that the Court
overlooked” in concluding that he failed to allege extreme and
outrageous conduct on the part of CEA.

Shrader, 70 F.3d at 257.

Accordingly, the Court is not convinced that it committed clear
legal error in holding that Vaughan’s allegations of questionable

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editorial decisions by CEA -- in a report that ultimately
declined to conclude that Vaughan was guilty of sexual assault -did not rise to the level of conduct “so outrageous as to surpass
all possible bounds of decency, and . . . be regarded as
atrocious, and utterly intolerable in a civilized community.”
Gallipo, 656 A.2d at 643.
Since Vaughan has failed to show that the Court committed a
clear error of law in denying his motion to join CEA as a
defendant on two independent grounds -- undue prejudice and
futility -- the motion to reconsider is denied.
IV. Denial of Motion to Preclude “Retrial” of RH’s Complaint
In the August 1 order, the Court denied Vaughan’s motion to
“preclude ‘retrial’ of the issue of whether RH consented to sex,
and rule that new evidence on that issue is irrelevant and may
not be explored on discovery.”

Mot. to Preclude 1, ECF No. 62.

In doing so, the Court found that, although whether or not RH was
sexually assaulted is not an ultimate issue in this case,
evidence pertaining to the truthfulness or falsity of her
complaint against Vaughan is clearly relevant to the case because
it has at least some “tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
Fed. R. Evid. 401.

In particular, the Court found that, if RH’s

sexual assault allegation is true, that fact has some tendency to

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make it more likely that the Defendants acted reasonably in
commencing and pursuing their investigation of Vaughan.
Conversely, if RH’s complaint was false and the Defendants either
failed to discover or ignored this, that fact has some tendency
to make it more likely that the Defendants acted improperly.
That the truth or falsity of RH’s complaint is relevant to the
this litigation is only emphasized by Vaughan’s repeated
assertions, in his pleadings in this case, that the complaint was
false and that RH changed her account of the incident during the
course of the investigation.

See Compl. ¶¶ 2, 3, 13, 18, ECF No.

1.
In his motion to reconsider, Vaughan rehashes the same
arguments he made in the underlying motion.

In particular he

reiterates his reliance on Gomes v. Univ. of Maine Sys., 365 F.
Supp. 2d 6, 14 (D. Me. 2005) and Doe v. Univ. of the South, No.
4:09-cv-62, 2011 U.S. Dist. LEXIS 35166 (E.D. Tenn. Mar. 31,
2011).

These arguments remain unpersuasive.

Both Gomes and Doe,

two cases that also involved claims against educational
institutions for their investigation of sexual assault complaints
against students, held that the truthfulness of the underlying
sexual assault complaints were not ultimate issues in the cases
and therefore not appropriate subjects for summary judgment.
Neither case held that factual disputes regarding the
truthfulness of the sexual assault allegations were entirely

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irrelevant to the litigation.

Vaughan has not presented any

“controlling decisions or data that the court overlooked” in
declining to hold that the truthfulness of RH’s complaint is
irrelevant.

Shrader, 70 F.3d at 257.

The motion to reconsider

is denied.
Vaughan also asks the Court to clarify whether its ruling
regarding evidence relating to the truthfulness of RH’s complaint
governs trial as well as discovery.

He suggests that his motion

may have caused “confusion” because it was entitled a “motion to
preclude retrial,” when in fact he was asking the court the Court
for a ruling that new evidence on the truthfulness of RH’s sexual
assault allegation is irrelevant and therefore may not be
explored on discovery.

To the extent that this is not clear from

the August 1 order, the Court denied the entire motion.

This

means that the Court declined to rule either that this category
of evidence would be irrelevant at trial or that it may not be
explored on discovery.
Finally, Vaughan asks the Court to certify its ruling on
this issue to the Vermont Supreme Court or to the Second Circuit.
Vaughan has not made any compelling argument, or any argument at
all, that the issue presented here -- the relevance of the
truthfulness of one student’s complaint against another student
to a lawsuit challenging a school’s investigation of that
complaint -- merits certification.

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The Court, on its own, is

unable to imagine any plausible grounds for suggesting that its
relatively straightforward ruling on the potential relevance of
this evidence presents a “significant question of state law”
under Local Rule 74 or “involves a controlling question of law as
to which there is substantial ground for difference of opinion”
under 28 U.S.C. § 1292(b).

Moreover, certification of this

question would likely delay, rather than “materially advance[,]
the ultimate termination of the litigation[.]”
1292(b).

28 U.S.C. §

The motion to certify is denied.

V. Partial Summary Judgment
In the August 1 order, the Court denied Vaughan’s motion for
partial summary judgment on several issues and granted
Defendants’ cross-motion for partial summary judgment on the same
issues.

The Court ruled (1) that VLS has the authority to pursue

disciplinary charges against a student accused of committing a
sexual assault prior to orientation; (2) that VLS has the
authority to pursue disciplinary charges against a student for
allegations of off campus sexual harassment, where those
allegations include unwelcome sexual advances that could have a
significant impact on the educational environment and could pose
a threat to the safety or other interests of VLS or members of
the VLS community; and (3) that VLS had a contractual obligation
to investigate RH’s sexual assault complaint against Vaughan.
None of these rulings disposed of any of Vaughan’s claims in

13

their entirety.
As an initial matter, Vaughan complains that the Court
granted Defendants’ cross-motion prior to the expiration of the
30-day response time for opposing dispositive motions.
7(a)(3)(A).

L.R.

The Court ruled before expiration of the 30-day

response time because Vaughan replied to Defendants’ opposition
to his motion for partial summary judgment, which contained their
cross-motion for partial summary judgment, on July 22, 2011.
Since he had not indicated otherwise, the Court assumed that
Vaughan’s reply brief, which addressed the same issues on which
Defendant’s cross-moved for partial summary judgment, was to
serve as his opposition to the cross-motion.
to Mot. for Partial Summ. J., ECF No. 79.

See Reply to Resp.

Vaughan now represents

that he had intended to file “a separate objection to the
VLS/Jefferson request for summary judgment, which would have
included the expert report of Donald Gehring.”
Reconsider 7 n.4.

Mot. to

He has included the Gehring report as an

exhibit to the motion to reconsider.

As explained infra, even if

the Gehring report had been before the Court at the time it
considered the motion and cross-motion for partial summary
judgment, the result would have been the same.
Vaughan argues that the Court erred in ruling that VLS has
the authority to pursue disciplinary charges against a student
accused of committing a sexual assault prior to orientation.

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Reasserting the same arguments made in his briefing on the
underlying motions, he argues that VLS had no authority to
discipline him for the alleged sexual assault because, at the
time the assault allegedly occurred, he had not yet accepted the
terms of the contract embodied in the VLS Code of Conduct.
Vaughan’s objection is based on his misunderstanding of the basis
for the Court’s ruling.
The Court did not explicitly rule that Vaughan had entered
into the contract embodied in the VLS Code of Conduct at the time
that the alleged sexual assault occurred.3

Instead, the Court

relied on the undisputed fact that Vaughan eventually did enter
into that contract when he became a student at VLS.

The Court

then found that, regardless of when contract formation actually
occurred, the terms of the contract gave VLS the authority to
discipline Vaughan for conduct that “could have a significant
impact on the educational or employment environment or the
reputation or integrity of VLS or could pose a threat to the
safety or other interests of VLS or members of the VLS
community,” even if that conduct occurred before the official
start of school.

Code of Conduct 2, Ex. 1 to Mot. for Partial

3

Vaughan’s misunderstanding seems to be based on the
Court’s summary of Defendants’ argument that Vaughan was on
notice of the contents of the Code of Conduct prior to enrolling
at VLS because the code was available on a website and because he
testified during a deposition that he arrived at VLS with the
assumption that sexual assault would be a violation of any
school’s policies.
15

Summ. J., ECF No. 69-2.

In other words, when Vaughan became a

student at VLS, he gave VLS the authority to discipline him for
previous conduct.

By way of example, the Court pointed out that

an educational institution can discipline a student under its
code of conduct for misrepresentations made on his or her
application for admission even though that conduct occurred
before the student entered into the contract embodied in the code
of conduct.

See North v. West Virginia Bd. of Regents, 332

S.E.2d 141, 144-45 (W. Va. 1985) (holding that disciplinary rules
applied to conduct of individual in applying for admission even
though he was not yet a student when actions took place).
Vaughan’s motion to reconsider therefore does not call the
Court’s ruling into question.
Similarly, although Donald Ghering opines, in an expert
report appended to the motion to reconsider, that Vaughan was not
a student at the time of the alleged sexual assault, this opinion
does not affect the basis of the Court’s ruling.
ECF No. 85-1.

Ghering Report,

Moreover, although Ghering expresses his opinion

that a code of conduct that allows a school to discipline a
student for conduct that occurred before he or she became a
student “is an absolute travesty and exists nowhere in higher
education that [he is] aware of[,]” id. at 6, the fact that an
expert witness finds the terms of a contract distasteful, or
disagrees with the Court’s interpretation of a contract, is not a

16

legitimate reason to nullify that contract.

See Marx & Co. v.

Diners' Club, Inc., 550 F.2d 505, 509 (2d Cir. 1977) (“legal
opinions as to the meaning of the contract terms at issue” are
not admissible as expert testimony because “the question of legal
effect [of a contract] is for the judge”); Luizzi v. Pro Transp.,
Inc., No. 02 CV 5388, 2011 U.S. Dist. LEXIS 46862, at *10
(E.D.N.Y. May 2, 2011) (“opinion as to the scope of the
obligations created by [a] contract [] is not a proper subject
matter for an expert opinion”).

The motion to reconsider the

ruling that VLS has the authority to pursue disciplinary charges
against a student accused of committing a sexual assault prior to
orientation is denied.
Based upon his misunderstanding of the Court’s ruling on
this issue, Vaughan asks the Court to certify to the Vermont
Supreme Court or to the Second Circuit the issue of “whether a
party can be held to have consented to a contract by virtue of it
being placed on a website to which he was not directed and of
which he was not aware.”

As explained supra, the Court did not

draw such a conclusion in ruling that VLS has the authority to
discipline students, once school has started, for pre-enrollment
misconduct that affects the school.

Accordingly certification of

the issue, as framed by Vaughan, will not advance resolution of
the litigation.

The motion to certify this issue is denied.

Vaughan also asks the Court to reconsider its ruling that,
17

under the Code of Conduct, VLS has the authority to pursue
disciplinary charges against a student for allegations of off
campus sexual harassment, where those allegations include
unwelcome sexual advances that could have a significant impact on
the educational environment and could pose a threat to the safety
or other interests of VLS or members of the VLS community.
Vaughan complains that “there is no way that [his off campus
behaviors] could reasonably constitute a danger to student safety
or impairment to the educational environment.”
Reconsider 9.

Mot. to

Once again, Vaughan’s objection is based on his

misunderstanding of the Court’s ruling.

In granting Defendants

partial summary judgment on this issue, the Court explicitly
stated that it was making “no judgment as to the disputed factual
question of whether the sexual harassment allegations leveled
against Vaughan are true.”

Aug. 1 Mem. and Order 36, ECF No. 82.

Accordingly, Vaughan’s attempt to inject a factual dispute into
what is a relatively straightforward interpretation of language
contained in the VLS Code of Conduct is unavailing.

The motion

to reconsider this ruling is denied.
Finally, Vaughan asks the Court to reconsider its ruling
that VLS had a contractual obligation to investigate RH’s sexual
assault complaint against Vaughan.

He states that his argument

for reconsideration of this ruling “flows from [what he perceives
as] the Court’s ruling that Vaughan contractually agreed to be

18

bound by the Code of Conduct pre-matriculation by virtue of its
posting on the VLS website.”

As explained supra, the Court never

ruled that Vaughan accepted the Code of Conduct prior to
beginning school at VLS.

Instead the Court held that, once he

enrolled, he entered into a contract that gave VLS the authority
to investigate conduct that “could have a significant impact on
the educational or employment environment or the reputation or
integrity of VLS or could pose a threat to to the safety or other
interests of VLS or members of the VLS community,” even if that
conduct occurred before the official start of school.
Conduct 2.

Code of

As explained in the August 1 order, this contract

also created an obligation on the part of VLS to investigate such
conduct.

The motion to reconsider this ruling is denied.

In the alternative, Vaughan asks the Court to certify to the
Vermont Supreme Court or to the Second Circuit the issue of
“[w]hether VLS can be contractually obligated to investigate prematriculation conduct of a soon-to-be student based solely on
VLS’ unilateral actions in placing the Code of Conduct on its
website.”

Mot. to Reconsider 11-12.

The Court did not draw any

such conclusion in its August 1 order, so certifying it to an
appellate court would do nothing to advance the termination of
this litigation.

The motion to certify is denied.

19

Dated at Burlington, in the District of Vermont, this 12th
day of September, 2011.

/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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