Turner v. Life Insurance Company of North America

Filing 44

ORDER denying defendant's 33 Motion for Summary Judgment; granting in part and denying in part plaintiff's 30 Motion for Summary Judgment; striking as moot parties' 43 Stipulated Motion for Relief from Deadlines; directing counsel to submit a Joint Status Report within seven (7) days of the date of this Order. Signed by Judge Thomas S. Zilly. (SWT)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8

ADASHA TURNER,

9

Plaintiff,

10

C17-1 TSZ

v.

11

LIFE INSURANCE COMPANY OF
NORTH AMERICA,

12
13

ORDER

Defendant.

14
THIS MATTER comes before the Court on cross-motions for judgment,1 docket

15

16 nos. 30 and 33. Having reviewed all papers filed in support of, and in opposition to, each
17 motion, as well as the relevant portions of the Administrative Record (“AR”), the Court
18 enters the following order.
19
20
1

Although the parties each cited to Federal Rule of Civil Procedure 52 as the basis for their

21 respective motions, the Court treats the motions as brought pursuant to Federal Rule of Civil
Procedure 56 because matters outside the Administrative Record have been presented. See

22 Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999). The Court may not grant
either party’s motion unless no genuine dispute exists as to the material facts and the moving
23 party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).
ORDER - 1

1 Background
2

Plaintiff Adasha Turner brings this action against defendant Life Insurance

3 Company of North America (“LINA”), pursuant to the Employee Retirement Income
4 Security Act of 1974 (“ERISA”), seeking a declaratory judgment that, because of her
5 disability, LINA is required to provide to her, with respect to a group life insurance
6 policy, a waiver of premium (“WOP”) benefit until she is no longer disabled or she
7 reaches the age of 65, whichever occurs earlier. The policy at issue states:
If the Employee2 submits satisfactory proof that he or she has been
continuously Disabled for the Waiver Waiting Period shown in the
Schedule of Benefits, coverage will be extended up to the Maximum
Benefit Period shown in the Schedule of Benefits.3

8
9
10

AR 4351. The Waiver Waiting Period shown in the Schedule of Benefits is nine (9)
11

months after the Employee’s active service ends. AR 4338, 4345. Plaintiff stopped

12
working on March 13, 2014, at the age of 36, because of a high-risk pregnancy. See
13
AR 1064 & 1071. Thus, to qualify for WOP benefits, plaintiff was required to provide
14
15

“satisfactory proof” that she was “continuously Disabled” from March 14, 2014, to
December 14, 2014. See Def.’s Mot. at 3 n.2 (docket no. 33).

16
17

The term “Disabled” means that, as a result of injury or sickness, the Employee is
“unable to perform all the material duties of any occupation [for] which he or she may

18
19
20

2

The parties agree that plaintiff was an “Employee” within the meaning of the policy, having
previously worked for the University of Arizona Health Network, the subscriber of the policy.
See AR 4330; Pla.’s Mot. at 1 (docket no. 30); Def.’s Mot. at 2 (docket no. 33).
3

The Maximum Benefit Period shown in the Schedule of Benefits is up to the age of 65.

21 AR 4338, 4345. Eligibility for WOP benefits is evaluated on an annual basis. See AR 4351
(“After premiums have been waived for 12 months, they will be waived for future periods of 12

22 months, if the Employee remains Disabled and submits satisfactory proof that Disability
continues. Satisfactory proof must be submitted to the Insurance Company 3 months before the
23 end of the 12-month period.”).
ORDER - 2

1 reasonably become qualified based on education, training or experience.” AR 4351. In
2 this case, no dispute exists with regard to the disorders from which plaintiff suffers. The
3 disagreement that brings this matter before the Court is whether plaintiff’s disorders
4 render her “Disabled” as defined in the policy.4 In deciding that plaintiff is not
5 “Disabled” for purposes of WOP benefits, LINA elected not to conduct an independent
6 medical examination or functional capacity evaluation of plaintiff, and instead relied on
7 the reviews of plaintiff’s records that were conducted by S. Rebecca Gliksman, M.D.
8 and Joseph Rea, M.D., both of whom specialize in occupational medicine, and by
9
10

4

Notably, because of her disorders, plaintiff is receiving from LINA long-term disability
(“LTD”) benefits pursuant to a different policy, which indicates:

11
12

The Employee is considered Disabled if, solely because of Injury or Sickness,
he or she is:
1.

unable to perform the material duties of his or her Regular Occupation;
and

2.

unable to earn 80% or more of his or her Indexed Earnings from working
in his or her Regular Occupation.

13
14
15

After Disability Benefits have been payable for 24 months, the Employee is
considered Disabled if, solely due to Injury or Sickness, he or she is:

16

1.

unable to perform the material duties of any occupation for which he or
she is, or may reasonably become, qualified based on education, training
or experience; and

2.

unable to earn 60% or more of his or her Indexed Earnings.

17
18
19
20
21
22
23

AR 11. According to LINA, it has provided LTD benefits, but denied WOP benefits because
plaintiff can work as an Information Clerk or Gate Guard, AR 2513-14, or as a Medical
Technologist, Teaching Supervisor, AR 3295-96, but those occupations would not allow plaintiff
to earn at least 60% of what she made as a Neurophysiologic Inter-Operative Monitoring
Specialist, AR 1986, see AR 3295 (plaintiff’s indexed earnings were $108,917.04 per year). See
Def.’s Mot. at 20-21 (docket no. 33). LINA’s explanation for why it has granted LTD benefits,
but not WOP benefits, seems disingenuous. The record contains no estimate regarding the wages
plaintiff might earn as an Information Clerk or Gate Guard, see AR 2513-14, and the amount
plaintiff might receive as a Medical Technologist exceeds the 60% threshold, see AR 3295,
which would disqualify her from receiving LTD benefits. Nevertheless, LINA has extended
LTD benefits to plaintiff.
ORDER - 3

1 ophthalmologists Jacqueline Wong, M.D. and Sami Kamjoo, M.D., as well as on the
2 transferable skills analysis (“TSA”) performed by certified rehabilitation counselor
3 (“CRC”) Paul Wilson, M.A.
4

On November 3, 2015, CRC Wilson completed a TSA that relied entirely on

5 Dr. Gliksman’s assessments.5 See AR 2513. CRC Wilson summarized Dr. Gliksman’s
6 opinion as follows:
7

Limit lifting to <10 pounds, carrying <5 pounds, pushing/pulling <15
pounds, rare overhead reaching, walking 15 minute intervals 2-3 hours per
day, standing 15 minute intervals 2-3 hours per day, sitting 45 minute to 1
hour intervals 6 hours per day, avoid stairs, bending occasionally, squatting
occasionally, no crawling, rare stooping, occasional to frequent fine and
simple grasp, occasional firm grasp and claimant has deteriorating vision
but it does not preclude work with recommended glare protection,
magnified font of at least 16 point and work at the computer in 20 minute
intervals with 2-3 minute break between intervals. Claimant may benefit
from computer glasses to avoid strain and extra lubrication as computer
work tends to dry eyes.

8
9
10
11
12

13 Id. CRC Wilson did not include Dr. Gliksman’s noted restriction that plaintiff be on a
14 4-hour-per-day work schedule for six weeks before increasing to a 6-hour shift. See
15 Gliksman’s Report at 46 (AR 2646) (“Since claimant has been out of the workforce for
16 an extended period would start at 4 hours/day x 6 weeks and then advance to 6 hours/day
17 x 4 weeks and the[n] advance as tolerated.”). Based on his understanding of plaintiff’s
18
5

19
20
21
22
23

In a 46-page peer-review report dated September 11, 2015, see AR 2601-2646, Dr. Gliksman
indicated that plaintiff has a “significant medical history with multiple conditions,” including
Arnold Chiari malformation (a structural defect in the base of the skull and cerebellum), Erhlos
Danlos syndrome (a disorder that affects the connective tissues supporting the skin, bones, blood
vessels, and organs, the symptoms of which can include loose joints and hypermobility, often
accompanied by weak muscle tone and a tendency to experience dislocations), post-partum
thyroiditis, scoliosis, retinal detachment and lattice degeneration, dysfunctional patella tracking,
and urinary incontinence. AR 2644. Dr. Gliksman issued an addendum on October 5, 2015, see
AR 2523-24, and a clarification on October 28, 2015, see AR 2519, but she never expressed an
opinion that plaintiff could work an eight-hour, full-time shift.
ORDER - 4

1 residual functional capacity,6 CRC Wilson concluded that plaintiff could perform
2 sedentary work as an Information Clerk or Gate Guard. AR 2514. He did not, however,
3 indicate whether such positions are available to individuals who can work only up to four
4 or six hours per day. See AR 2513-14.
In connection with plaintiff’s appeal of LINA’s denial of WOP benefits, additional

5

6 records were provided, a second round of peer reviews was conducted, and CRC Wilson
7 performed another TSA. On June 17, 2016, Dr. Rea submitted a report recounting a
8 conversation with plaintiff’s treating physician, Kimo Hirayama, M.D., who indicated
9 that “from a practical standpoint, Ms. Turner was functionally disabled, since she could
10 not stand or walk and had considerably reduced strength, besides joint pain, particularly
11 involving the hands and wrists, so that made it hard to hold onto objects.” AR 3275.
12 Nevertheless, Dr. Rea opined that plaintiff:
13

 could “lift, push, pull or carry up to 10 pounds on an occasional basis”

14

 could “stand for up to 15 minutes at a time for up to a total of three
hours over an eight-hour period of time”

15

 could “walk for up to 15 minutes at a time for up to a total of two hours
over an eight-hour interval of time”

16

 should “avoid squatting, crouching, crawling, kneeling, or climbing”

17

 should “avoid positioning at heights or on uneven surfaces”
 had no “limitation involving sitting, reaching, or hand usage.”

18

AR 3276. Using this summary of plaintiff’s residual functional capacity, along with an
19
assessment by Dr. Kamjoo that plaintiff has no medically-necessary restrictions with
20
regard to her eyes, and without any reference to the limitations outlined by Dr. Gliksman
21
6

CRC Wilson used the phrase “reasonable functional capacity,” but he presumably meant
“residual functional capacity,” which is a term of art in the social security context. See 20
23 C.F.R. §§ 404.1520 & 416.920.

22

ORDER - 5

1 or any explanation for ignoring them, CRC Wilson concluded that plaintiff could perform
2 the work of a Medical Technologist, Teaching Supervisor.7 AR 3295-96.
3 Discussion
Plaintiff contends that the reviewers are biased,8 and that their opinions are

4

5 unreliable and contrary to the materials in the Administrative Record. To resolve these
6 issues pursuant to a de novo standard of review, see Minute Order (docket no. 17), the
7 Court would have to weigh the evidence and make credibility determinations, which are
8 roles reserved for a trier-of-fact and not appropriate considerations in deciding a motion
9 for summary judgment. Plaintiff, however, makes a different argument that the Court can
10 address in motion practice. Plaintiff challenges LINA’s conclusion that she can perform
11 “all the material duties” of the occupations identified by CRC Wilson (i.e., Information
12 Clerk, Gate Guard, and Medical Technologist) because CRC Wilson did not indicate
13 whether an ability to work an eight-hour shift, five days a week, was a “material duty” of
14 such occupations.
In response, LINA cites numerous cases for the proposition that the “any

15

16 occupation” standard is “not demanding” and encompasses part-time, as well as full-time,
17
18
19

7

21

8

Plaintiff’s counsel characterizes Medical Technologist, Teaching Supervisor as the same
position as plaintiff previously occupied, in other words, her “Regular Occupation,” but the
20
disparity in salaries between the two roles belies such conclusion.
For support, plaintiff relies on information outside the Administrative Record that was provided
by LINA, pursuant to the Minute Order entered September 13, 2017, docket no. 29, concerning
22 the amounts paid in 2014 and 2015 to Exam Coordinators Network, Inc. and Medical
Consultants Network, LLC for reviews conducted by Drs. Gliksman, Rea, Wong, and Kamjoo.
23 See Discovery Correspondence (docket no. 38).
ORDER - 6

1 work. See McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1317 (9th Cir. 1994),9
2 overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th
3 Cir. 2006), as recognized in Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522
4 F.3d 863, 872 n.2 (9th Cir. 2008); Arnold v. Life Ins. Co. of N. Am., 650 F. Supp. 2d 500
5 (W.D. Va. 2009).10 Contrary to LINA’s suggestion, however, the clause “any
6
9

Neither McKenzie nor Pannebecker v. Liberty Life Assurance Co. of Boston, 542 F.3d 1213
(9th Cir. 2008), on which LINA also relies, address whether a person is disabled under an “any
8 occupation” definition if he or she can work only part-time, and the question remains undecided
in the Ninth Circuit.

7

9
10
11
12
13
14
15
16
17
18
19
20
21
22

10

Although Arnold involved the same WOP provision that is at issue in this proceeding, its
analysis is unpersuasive. In asserting that the “plain meaning of the phrase ‘any occupation’ . . .
unambiguously encompasses all occupations for which a claimant may reasonably become
qualified, regardless of whether they are performed on a full-time or part-time basis,” 650 F.
Supp. 2d at 505, the Arnold Court did not cite to any dictionary or mention contrary decisions
(see infra note 11), and relied on cases in which the policy language was substantially different.
For example, in Donnell v. Metro. Life Ins. Co., 165 Fed. App’x 288 (4th Cir. 2006), which was
referenced in Arnold, the LTD plan at issue did not even use the word “occupation,” and instead
defined disability as an inability “to perform each of the material duties” of “any gainful work or
service” for which the claimant was “reasonably qualified.” Id. at 292-93 (emphasis added). In
Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir. 1998), the term “totally disabled”
required that the employee be “completely prevented from engaging in any occupation for which
he is or may become suited.” Id. at 184 (emphasis in original). In Graeber v. Hewlett Packard
Co. Emp. Benefits Org. Income Prot. Plan, 421 F. Supp. 2d 1246 (N.D. Cal. 2006), the insured
was “Totally Disabled” if “continuously unable to perform any occupation for which he or she is
or may become qualified.” Id. at 1249 (emphasis added). In Shane v. Albertson’s Inc. Emps.’
Disability Plan, 381 F. Supp. 2d 1196 (C.D. Cal. 2005), the policy indicated that “Total
Disability shall mean the complete inability of the Employee to perform any and every duty of
any gainful occupation for which he or she is reasonably fitted.” Id. at 1200 (original emphasis
modified). In Billinger v. Bell Atl., 240 F. Supp. 2d 274 (S.D.N.Y. 2003), disability involved
sickness or injury “which prevents the employee from engaging in any occupation or
employment” for which he or she is or might reasonably become qualified. Id. at 282 (original
emphasis modified). Finally, the portion of Mullaly v. First Reliance Standard Life Ins. Co., 253
F. Supp. 2d 279 (D. Conn. 2003), that was cited in Arnold was merely dictum. In Mullaly, the
court ruled that the provision of the LTD policy pursuant to which the plaintiff sought payment
of partial monthly benefits applied only if the plaintiff was working part-time for the employer
through which he had LTD coverage, and because the plaintiff was employed elsewhere, the
LTD insurer properly terminated his benefits. Id. at 285. As recognized by the Mullaly Court, it
could have reached its decision without addressing the part-time/full-time conundrum. See id. at
284.

23
ORDER - 7

1 occupation” does not itself indicate how much or how often an employee must be able to
2 work to be deemed not disabled.11 Rather, as plaintiff contends, in the policy at issue, the
3 phrase “material duties” serves such function. In other words, to the extent that a
4 material duty of an occupation is to perform for eight hours a day, five days a week, if a
5 claimant cannot do so, then the claimant is “unable to perform all the material duties” of
6 such occupation. See Halley v. Aetna Life Ins. Co., 141 F. Supp. 3d 855, 870-73
7 (N.D. Ill. 2015) (ruling that a person who was medically restricted to 40 hours of work
8 per week could not perform any of the occupations identified in the TSA, which all
9 required more than 40 hours per week (citing McFarland v. Gen. Am. Life Ins. Co., 149
10 F.3d 583, 588 (7th Cir. 1998) (observing that an individual can experience a qualitative
11 and/or quantitative reduction in his or her abilities as a result of an injury or illness, using
12 as an example of a qualitative reduction a baseball shortstop’s inability to throw, one of
13
14
15
16
17
18
19
20
21
22
23

11

The policy at issue does not define the term “occupation,” and it must be interpreted in “an
ordinary and popular sense as would a person of average intelligence and experience.” See, e.g.,
Babikian v. Paul Revere Life Ins. Co., 63 F.3d 837, 840 (9th Cir. 1995). An “occupation” is “the
principal business of one’s life : a craft, trade, profession or other means of earning a living :
employment, vocation.” See Webster’s 3d New Int’l Dictionary 1560 (1981) [“Webster’s”]; see
also id. at 2561 (a “vocation” is “the work in which a person is regularly employed usu. for pay :
line of work : occupation”). At least two courts have understood “another occupation” or “any
occupation” to contemplate full-time work. Bruce v. N.Y. Life Ins. Co., 2003 WL 21005313 at
*6 (N.D. Cal. Apr. 28, 2003) (“Ordinarily, the term ‘occupation,’ unless modified by ‘part-time,’
contemplates full-time work.”); see Sloan v. Hartford Life & Accident Ins. Co., 433 F. Supp. 2d
1037, 1050 (D.N.D. 2006). In contrast, a case cited by LINA, Kelly v. Prudential Ins. Co. of
Am., 2006 WL 2037454 (D. Ore. July 18, 2006), concluded that the plaintiff was not disabled
because she could work part-time, but the LTD plan in Kelly used the word “job,” which means
“a piece of work” (as in “odd jobs” or today’s job) or “regular remunerative employment,”
Webster’s at 1217, rather than “occupation,” and LINA has not established that the terms are
interchangeable. Even if the Court were, however, to follow LINA’s approach, and infuse into
the phrase “any occupation” the concepts of time and work schedules, LINA could not prevail.
Under federal common law, which governs ERISA actions, if two reasonable and fair
interpretations of the policy are possible, as is the situation here, then an ambiguity exists, which
must be resolved in favor of the insured. Babikian, 63 F.3d at 840.
ORDER - 8

1 the essential skills for such position, but explaining that a quantitative reduction occurs
2 when a person can still perform the required task, but not as often or as long as necessary
3 to continue working))).12
Plaintiff’s reading of the definition of “Disabled,” set forth in the WOP provision

4

5 of the policy, is both fair and reasonable. The language is not ambiguous, but even if it
6 were, it would be construed against LINA, as the drafter. The Court concludes that
7 LINA was required to, but did not, make a showing that the occupations identified in
8 CRC Wilson’s TSAs did not involve, as a material duty, working full-time. Thus, the
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

12

Another case on which LINA relies, Ladd v. ITT Corp., 148 F.3d 753 (7th Cir. 1998), actually
undermines, rather than supports, LINA’s arguments. In Ladd, the plaintiff sought totaldisability benefits under a plan that required her to be “unable to engage in any and every duty
pertaining to any occupation or employment for wage or profit” for which she was or became
qualified. Id. at 754. As observed by the Seventh Circuit, this language differs from the
definition of disability under the Social Security Act, which considers whether an individual is
incapable of engaging in “any substantial gainful activity.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
During oral argument before the Seventh Circuit, the insurer’s attorney attempted to distinguish
between the plan and the Social Security Act by suggesting that, under the plan, an employee
would not be disabled unless he or she could not do even part-time work, but under the Social
Security Act, a worker who could not perform full-time would be deemed disabled. Id. As
observed by the Ladd Court, the lawyer’s understanding was incorrect; under the Social Security
Act, a person will not be considered disabled if he or she can engage in substantial gainful
activity, even if merely on a part-time basis. See id. (citing 20 C.F.R. § 404.1572(a)). When
asked by the Seventh Circuit whether the plan would preclude an individual who could work
only ten minutes per day from receiving benefits, counsel for the insurer said “no” and “quickly
retreated” from his efforts to differentiate between the plan and the Social Security Act. Id. The
Seventh Circuit proceeded on the assumption that the plan defined “total disability” in the same
manner as the Social Security Act, which requires, for a finding that a claimant is not disabled,
that the work of which the claimant is capable “not be so meager as to not be substantial and
gainful.” Id. In Ladd, the Seventh Circuit ultimately held that the insurer’s denial of the
plaintiff’s claim was “arbitrary, and even irrational.” Id. at 755. Consistent with Ladd, the
phrase “any occupation” cannot be read in isolation and interpreted to mean any quantum of
work, even if only ten minutes per day. Rather, the term must be understood in context with the
preceding clause “unable to perform all the material duties,” which refers to both the qualitative
and quantitative requirements of the occupation.
ORDER - 9

1 Court cannot affirm LINA’s denial of WOP benefits, and LINA’s motion for summary
2 judgment is DENIED.
With respect to plaintiff’s motion, the Court must accept LINA’s evidence as true

3

4 and draw all “justifiable inferences” in LINA’s favor. See Anderson v. Liberty Lobby,
5 Inc., 477 U.S. 242, 255 (1986). To the extent that, as LINA’s reviewers have indicated,
6 plaintiff was able to perform some work tasks for a meaningful portion of the work day,
7 the Court cannot say, as a matter of law, that plaintiff was, during the timeframe at issue,
8 “unable to perform all the material duties of any occupation” for which she is or might
9 reasonably become qualified.13 The Court can, however, and does conclude that the
10 TSAs authored by CRC Wilson, and thus the current Administrative Record, do not
11 support LINA’s denial of WOP benefits. LINA’s decision is therefore VACATED.14
12
13
13

14
15
16
17
18
19
20
21

The Court also cannot determine, as a matter of law, that the Death Benefit under the policy at
issue is $525,000, as suggested by plaintiff. See Turner Decl. at ¶ 2 (docket no. 41). Plaintiff
asserts that LINA “judicially admitted” this figure by not “effectively” denying the allegation set
forth in the Complaint. See Pla.’s Mot. at 4-5 (docket no. 30); compare Compl. at ¶ 5 (docket
no. 1) with Answer at ¶ 5 (docket no. 9). Plaintiff’s argument lacks merit. LINA adequately
pleaded a lack of knowledge or information sufficient to form a belief about the amount of the
Death Benefit, which operated as a denial. See Fed. R. Civ. P. 8(b)(5). According to the policy,
the Basic Benefit was equal to the Annual Compensation, rounded to the next higher $1,000.
AR 4337. For plaintiff, the Basic Benefit was therefore $109,000. See AR 3295. A Voluntary
Benefit was available in incremental units of $25,000, at a monthly rate depending on age. See
AR 4332, 4361. The Maximum Voluntary Benefit was five times the Annual Compensation,
and the Guaranteed Issue Amount, if premiums were not required, was $350,000. AR 4337; see
AR 4348. Plaintiff has provided no citation to the Administrative Record and no specific
evidence concerning what, if any, premiums she paid prior to March 13, 2014, for the Voluntary
Benefit. Thus, plaintiff has not made the requisite showing to obtain summary judgment on her
theory that, by accepting premium payments, LINA waived its defenses regarding the amount of
the Death Benefit. See Salyers v. Metro. Life Ins. Co., 871 F.3d 934, 938 (9th Cir. 2017).
14

22
23

In light of its ruling, the Court DECLINES to address whether LINA is bound by a statement
allegedly made to Jill A. Fulkes, a paralegal working for plaintiff’s counsel, indicating that WOP
benefits would be “reinstated.” See Fulkes Decl. at ¶ 4 (docket no. 34).
ORDER - 10

1 Conclusion
2

For the foregoing reasons, the Court ORDERS:

3

(1)

Defendant’s motion for summary judgment, docket no. 33, is DENIED;

4

(2)

Plaintiff’s motion for summary judgment, docket no. 30, is GRANTED in

5 part and DENIED in part;
6

(3)

Defendant’s denial of waiver of life insurance premium benefits is hereby

7 VACATED;
8

(4)

Counsel are DIRECTED to submit a Joint Status Report within seven (7)

9 days of the date of this Order indicating whether they wish to proceed to trial as
10 scheduled on January 16, 2018, on the sole issue of the amount of the Death Benefit
11 under the policy at issue;
12

(5)

The parties’ stipulated motion for relief from deadlines, docket no. 43, is

13 STRICKEN as moot; and
14

(6)

The Clerk is DIRECTED to send a copy of this Order to all counsel of

15 record.
16

IT IS SO ORDERED.

17

Dated this 1st day of December, 2017.

18

A

19
20

Thomas S. Zilly
United States District Judge

21
22
23
ORDER - 11