Logar et al v. West Virginia University Board of Governors et al

Filing 150

MEMORANDUM OPINION AND ORDER CONVERTING THE DEFENDANTS MOTIONS TODISMISS INTO MOTIONS FOR SUMMARY JUDGMENT GRANTING DEFENDANT MARJORIE A. McDIARMIDS MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT JAMES P. CLEMENT,C. PETER McGRATH AND WEST VIRGINIA U NIVERSITY BOARD OF GOVERNORS MOTION FOR SUMMARY JUDGMENT;GRANTING DEFENDANT MICHAEL S. GARRISONSMOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT MARY ROBERTA BRANDT ANDBEVERLY D. KERRS MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT E. JANE MARTINS MO TION FOR SUMMARY JUDGMENT; DENYING AS MOOT WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS, C. PETER McGRATH, JAMES P. CLEMENTS,AND E. JANE MARTINS MOTION TO STAY DISCOVERY PENDING RESOLUTION OF DISPOSITIVE MOTIONS; DENYING AS MOOT JAMES P. CLEMENTS, E. JANE MARTIN,C. PETER McGRATH AND WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS EMERGENCY MOTION TO SEAL AFFIDAVITS OF R. STEPHEN SEARS AND CYRIL M. LOGAR; DENYING AS MOOT PLAINTIFFS MOTION FOR PROTECTIVE ORDER; DENYING AS MOOT WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS, C. PETER McGRATH,JAMES P. CLEMENTS, AND E. JANE MARTINS SEALED MOTION FOR PROTECTIVE ORDER; AND DENYING AS MOOT GERALD E. LANG, PH.D.S MOTION TO QUASH. Motion to Dismiss as to DE 25 , 26 , 31 , 33 AND 55 are CONVERTED to mot ions for summary judgment and are GRANTED. DENIED AS MOOT as to DE 110 Motion to Stay, 125 Motion, 140 Motion for Leave to File; ***SEALED***, 141 Motion for Protective Order AND 147 Motion to Quash. Accordingly, it is ORDERED that th is case be DISMISSED and STRICKEN from the active docket of this Court. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 9/15/2011.(Copy counsel of record via CM/ECF) (jmm) Modified on 9/15/2011 unsealed document and regenerated NEF.(jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CYRIL M. LOGAR and R. STEPHEN SEARS,
Plaintiffs,
v.

Civil Action No. 1:10CV201
(STAMP)
WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS,
including members from 2008 through the
present, a West Virginia State Board;
MARY ROBERTA BRANDT, individually and as
former Vice President for Legal Affairs and
General Counsel at West Virginia University
and adjunct professor of law;
BEVERLY D. KERR, individually and as Deputy
General Counsel for West Virginia University;
MARJORIE A. McDIARMID, individually and as the
Steptoe and Johnson Professor of Law and Technology and
Academic Integrity Officer for West Virginia University;
MICHAEL S. GARRISON, individually and as former
President of West Virginia University;
C. PETER McGRATH, individually and as former interim
President of West Virginia University;
JAMES P. CLEMENTS, individually and as current
President of West Virginia University; and
E. JANE MARTIN, individually and as former
Provost of West Virginia University,
Defendants.
MEMORANDUM OPINION AND ORDER
CONVERTING THE DEFENDANTS’ MOTIONS TO
DISMISS INTO MOTIONS FOR SUMMARY JUDGMENT
GRANTING DEFENDANT MARJORIE A. McDIARMID’S
MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT JAMES P. CLEMENT,
C. PETER McGRATH AND WEST VIRGINIA UNIVERSITY
BOARD OF GOVERNORS’ MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT MICHAEL S. GARRISON’S
MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT MARY ROBERTA BRANDT AND
BEVERLY D. KERR’S MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT E. JANE MARTIN’S
MOTION FOR SUMMARY JUDGMENT;
DENYING AS MOOT WEST VIRGINIA UNIVERSITY BOARD
OF GOVERNORS, C. PETER McGRATH, JAMES P. CLEMENTS,
AND E. JANE MARTIN’S MOTION TO STAY DISCOVERY
PENDING RESOLUTION OF DISPOSITIVE MOTIONS;

DENYING AS MOOT JAMES P. CLEMENTS, E. JANE MARTIN,
C. PETER McGRATH AND WEST VIRGINIA UNIVERSITY
BOARD OF GOVERNOR’S EMERGENCY MOTION TO
SEAL AFFIDAVITS OF R. STEPHEN SEARS
AND CYRIL M. LOGAR;
DENYING AS MOOT PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER;
DENYING AS MOOT WEST VIRGINIA UNIVERSITY
BOARD OF GOVERNORS, C. PETER McGRATH,
JAMES P. CLEMENTS, AND E. JANE MARTIN’S
SEALED MOTION FOR PROTECTIVE ORDER;
AND DENYING AS MOOT
GERALD E. LANG, PH.D.’S MOTION TO QUASH
I.

Procedural History

The plaintiffs, Cyril M. Logar and R. Stephen Sears, filed a
complaint against the defendants in this Court pursuant to 42
U.S.C. § 1983.

The plaintiffs state that the defendants deprived

them of their liberty and property rights without due process,
knowingly and intentionally sabotaged the plaintiffs’ reputations,
deprived them of certain benefits and privileges commensurate with
their positions as administrators and tenured faculty members at
West Virginia University (“WVU”), and failed to adhere to WVU’s
established

procedures

investigations.

for

conducting

academic

misconduct

Thereafter, Marjorie A. McDiarmid filed a motion

to dismiss, James P. Clements, C. Peter McGrath, and West Virginia
University Board of Governors (“WVU BOG”) filed a motion to
dismiss, Mary Roberta Brandt and Beverly D. Kerr filed a motion to
dismiss, and E. Jane Martin filed a motion to dismiss.

On July 28,

2010, this Court entered an order notifying the parties of its
intent of possible conversion of the motions to dismiss into
motions for summary judgment as to the issue of the statute of

2

limitations and directed the parties to submit affidavits to this
Court in which the parties should provide this Court with certain
dates.
For the reasons set forth below, this Court converts the
defendants’ motions to dismiss into motions for summary judgment
and grants Marjorie A. McDiarmid’s motion for summary judgment,
James P. Clements, C. Peter McGrath, and WVU BOG’s motion for
summary

judgment,

Michael

S.

Garrison’s

motion

for

summary

judgment, Mary Roberta Brandt and Beverly D. Kerr’s motion for
summary

judgment,

and

E.

Jane

Martin’s

motion

for

summary

judgment.1
II.

Facts2

In October 2007, a local media outlet contacted WVU inquiring
whether a particular student (“Student A”) completed and earned an

1

Because this Court grants the defendants’ dispositive
motions, West Virginia University Board of Governors, C. Peter
McGrath, James P. Clements, and E. Jane Martin’s motion to stay
discovery pending resolution of dispositive motions, and Emergency
Motion to Seal Affidavits of R. Stephen Sears and Cyril M. Logar
are denied as moot. In addition and for the same reasons, James P.
Clements, E. Jane Martin, C. Peter McGrath and West Virginia
University Board of Governors’ Sealed Motion for Protective Order
and R. Stephen Sears’ Motion for Protective Order are denied as
moot. However, the documents that were the subject of James P.
Clements, E. Jane Martin, C. Peter McGrath and West Virginia Board
of Governors’ Emergency Motion to Seal Affidavits of R. Stephen
Sears and Cyril M. Logar shall remain sealed until further order of
any court of competent jurisdiction.
2

With the exception of the date the plaintiffs received the
Screening Subcommittee report, the facts contained in this
memorandum opinion and order are obtained from the plaintiffs’
complaint.
The date the plaintiffs received the Screening
Subcommittee report comes from the parties’ affidavits.
3

“eMBA” degree at WVU.

The plaintiffs, former Dean and former

Associate Dean of the College of Business and Economics at WVU,
conducted an investigation at the request of then Provost Gerald
Lang and concluded that Student A had not completed the degree. On
October 15, 2007, the plaintiffs attended a meeting called by
former

WVU

President

Michael

Garrison,

which

Garrison’s chief of staff, Craig Walker.

was

chaired

by

Former WVU General

Counsel Alex Macia, Lang, and former director of the MBA program
Paul Speaker were also at the meeting.

The plaintiffs allege that

Macia advised that Student A had earned the degree.

Sears stated

that he was told to send a letter to the media outlet, stating that
Student A had earned her degree.
The media outlet then made three Freedom of Information Act
(“FOIA”) requests.
issued a report.
McDiarmid,

In April 2008, a special investigative panel

On May 30, 2008, Garrison submitted a letter to

Academic

Integrity

Officer

for

WVU,

in

which

he

requested an investigation of the potential academic misconduct
committed by Sears or any other person.

Garrison then submitted

his resignation on June 6, 2008, effective August 31, 2008.

The

Office of General Counsel sent a memorandum to the plaintiffs on
June 16, 2008, informing them that the Academic Integrity Committee
had requested the cooperation of the General Counsel’s office in
the

Student

A

investigation.

The

memorandum

instructed

the

plaintiffs to make available any and all documents relevant to the

4

investigation.

The

plaintiffs

contend

that

this

constituted

specific legal advice and direction to the plaintiffs.
McDiarmid named several individuals to serve on the Screening
Subcommittee, including defendant Kerr, then deputy general counsel
at WVU.
2008.

The Screening Subcommittee issued a report on July 17,

McDiarmid mailed the plaintiffs this report via university

mail on July 21, 2008.

On August 1, 2008, counsel for Sears sent

McDiarmid a letter seeking an extension of time to respond to the
Screening Subcommittee Report.

On August 5, 2008, Logar sent

McDiarmid a letter responding to the Screening Subcommittee report.
The plaintiffs state that Macia and other persons acting in the
General Counsel’s office submitted documents for review by the
Screening Subcommittee, which included Kerr, who was also employed
in the General Counsel’s office at the same time.
Subcommittee

report

stated

that

no

testimony

The Screening
or

documentary

evidence indicated that Macia or Garrison knew of or were involved
with the generation of the records sent to admissions and records.
The plaintiffs state that no reference was made by the Screening
Subcommittee

that

Macia

had

given

legal

advice

and

actively

participated in the October 15, 2007 meeting and had participated
in communications regarding the Student A matter before and after
the meeting.
McDiarmid then named a discovery subcommittee hearing panel.
In December 2008, defendant McDiarmid, Academic Integrity Officer
for WVU, sent letters to the plaintiffs informing them that they

5

were being charged with academic misconduct. The plaintiffs allege
that Kerr attended the hearings of the Discovery Subcommittee and
served as its legal counsel.

The Discovery Subcommittee brought

charges of academic misconduct against the plaintiffs on December
3,

2008.

affirmative

The

Discovery

statements

that

Subcommittee
records

report

were

contained

fabricated,

the

grades

falsified, and that the plaintiffs had failed to comply with
institutional requirements related to teaching and learning.
On December 3, 2010, the plaintiffs filed this civil action.
Count I of the complaint alleges denial of procedural due process
by the investigating and bringing charges of academic misconduct
while a conflict of interest existed with WVU’s Office of General
Counsel.

The plaintiffs also allege that in conducting the

investigation and bringing charges, the defendants violated and
continue to violate their own Policy and Procedures related to
academic misconduct proceedings by failing to ensure that the
process was free of conflicts of interest and was conducted in a
fair and impartial manner.

Count II of the complaint alleges

denial of substantive due process by the investigating and bringing
charges of academic misconduct while a conflict of interest existed
with the General Counsel’s office.

In addition, the plaintiffs

contend that the defendants deprived them of their rights to
fundamental fairness in the proceedings.

6

III.

Applicable Law

In examining a motion to dismiss, “the Court should consider
only the allegations contained in the complaint, the exhibits to
the

complaint,

matters

of

public

record,

and

materials that are subject to judicial notice.”

other

similar

Pennington v.

Teufel, 396 F. Supp. 2d 715, 719 (N.D. W. Va. 2005).

A motion to

dismiss must be treated as a motion for summary judgment under
Federal Rule of Civil Procedure 56 “where materials outside the
pleadings are presented to and not excluded by the court.” Fed. R.
Civ. P. 12(d). The parties “must be given a reasonable opportunity
to present all the material that is pertinent to the motion.

Id.

The conversion is “governed by principles of substance rather than
form. The essential inquiry is whether the [opposing party] should
reasonably have recognized the possibility that the motion might be
converted into one for summary judgment or was taken by surprise
and deprived of a reasonable opportunity to meet facts outside the
pleadings.”

In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.

1985).
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.

7

Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears

the initial burden of showing the absence of any genuine issues of
material fact.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

“The burden then shifts to the nonmoving party to come

forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”

Id. at 256.

“The

inquiry performed is the threshold inquiry of determining whether
there is the need for a trial -- whether, in other words, there are
any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.”

Id. at 250; see also Charbonnages de France v.

Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment “should
be granted only in those cases where it is perfectly clear that no
issue of fact is involved and inquiry into the facts is not
desirable to clarify the application of the law.” (citing Stevens
v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time

8

for discovery and upon motion, against a party who fails to make a
showing

sufficient

to

establish

the

existence

of

an

element

essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex, 477 U.S. at 322.

Summary

judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.

See Oksanen v. Page

Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074 (1992). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the party
opposing the motion.

See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).
IV.
The

defendants

contend

Discussion
that

this

civil

action

must

be

dismissed because the statute of limitations has run on the
plaintiffs’ claims.

While 42 U.S.C. § 1983 does not contain an

explicit statute of limitations, the United States Code provides
that state law shall apply where federal law does not provide a
statute of limitations.

42 U.S.C. § 1988.

All 42 U.S.C. § 1983

claims are treated as tort claims for the recovery of personal
Wallace v. Kato, 549 U.S. 384, 387 (2007).

injuries.

Therefore,

the statute of limitations is two years pursuant to the West
Virginia

“catch-all”

statute

of

limitations.

W.

Va.

§ 55-2-12.3

3

West Virginia Code Section 55-2-12 provides:

Every

personal

action

for
9

which

no

limitation

is

Code

While

this

Court

looks

to

state

law

to

determine

the

applicable statute of limitations, it must look to federal law to
determine the appropriate accrual of the cause of action. Reinbold
v. Evans, 187 F.3d 348, 359 n.10 (4th Cir. 1999); see also A
Society Without A Name, For People Without A Home, Millennium
Future-Present v. Virginia, No. 10-1437, --- F.3d ---- (4th Cir.
Aug. 24, 2011) (“The applicable statute of limitations begins to
run

once

a

claim

determination.”).

accrues,

and

federal

law

controls

that

The United States Supreme Court has concluded

that when examining the accrual of causes of action under 42 U.S.C.
§ 1983, “the proper focus is on the time of the discriminatory act,
not the point at which the consequences of the act become painful.”
Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (citing Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980)). Thus, a “civil rights
claim accrues when the plaintiff ‘knows or has reason to know of
the injury which is the basis of the action.’”

A Society Without

A Name, 10-1437 at 9 (citing Cox v. Stanton, 529 F.2d 47, 50 (4th
Cir. 1975)).

In the plaintiffs’ complaint, they allege that the

due process violations occurred by the defendants investigating,
otherwise prescribed shall be brought: (a) within two
years next after the right to bring the same shall have
accrued, if it be for damage to property; (b) within two
years next after the right to bring the same shall have
accrued if it be for damages for personal injuries; and
(c) within one year next after the right to bring the
same shall have accrued if it be for any other matter of
such nature that, in case a party die, it could not have
been brought at common law by or against his personal
representative.
W. Va. Code § 55-2-12.
10

conducting the investigation, and bringing charges against the
plaintiffs.
Subcommittee

The plaintiffs’ complaint states that the Screening
was

investigating

the

plaintiffs

for

potential

academic misconduct and that a member of the General Counsel’s
office,

Beverly

Kerr,

was

a

member

of

that

committee.

The

plaintiffs state in their complaint that the Screening Subcommittee
concluded

sufficient

evidence

existed

to

establish

that

the

plaintiffs had committed academic misconduct and, at the same time,
concluded that there was insufficient evidence to conclude that
Alex Macia committed academic misconduct.

The plaintiffs further

allege in their complaint that the Screening Subcommittee made no
reference to Macia’s alleged legal advice concerning the decision
to retroactively award Student A an eMBA degree.

The plaintiffs

also state in their complaint that the Discovery Subcommittee
investigated the plaintiffs based on the Screening Subcommittee’s
findings

and

that

Kerr

attended

all

Discovery

Subcommittee

hearings.
In their responses to the motions to dismiss, the plaintiffs
state that the conflicts of interest perpetrated by WVU were not,
in themselves, the constitutional violation.

Instead, the charges

are what actually caused the deprivations of the plaintiffs’
liberty and property interests.

This Court does not agree.

The

plaintiffs’ allegations of violations of due process hinge on “a
clear

conflict

investigative

of

interest

process

[that]

regarding

11

existed
the

during

charges

the

of

entire

academic

misconduct.”

Compl. ¶ 54.

The basis of the plaintiffs’ due

process claims are the alleged conflict of interest during the
investigation. The bringing of academic misconduct charges against
the plaintiffs is not the violation of due process as alleged in
the facts produced in the plaintiffs’ complaint.
United States Supreme Court found in Ricks

Rather, as the

and Chardon, the

academic misconduct charges are the consequences of the alleged
discriminatory act at issue, here, the alleged conflict of interest
and alleged tainted investigation that led to the bringing of
academic misconduct charges.
The plaintiffs argue that Ricks is inapplicable to this case
for two reasons. First, they contend that Ricks involved 42 U.S.C.
§ 1981 and Title VII claims. As mentioned above, the Supreme Court
extended the holding of Ricks to 42 U.S.C. § 1983 cases in Chardon.
Additionally, the Fourth Circuit has recognized that Ricks concerns
the accrual of causes of action under 42 U.S.C. § 1983.

Simmons v.

S.C. State Ports Auth., 694 F.2d 63, 65 (4th Cir. 1982). Secondly,
the plaintiffs argue that even if Ricks is relevant, the plaintiffs
have alleged that the acts of which they are complaining are the
filing of the academic misconduct proceedings against them and the
subsequent and continuing deprivation of their property interests.
As explained above, the relevant time period is not the consequence
of an action, but when the plaintiffs first knew or had reason to
know of the conflict of interest and the subcommittee’s findings
that would lead to the academic misconduct charges.

12

The parties briefed the statute of limitations issue in their
motions to dismiss, but the plaintiffs do not provide a date in the
complaint in which they learned of the July 17, 2008 Screening
Subcommittee Report.

A motion to dismiss is not proper when the

date the statute of limitations runs cannot be determined from the
face of the complaint.

AVCO Corp. v. Precision Air Parts, Inc.,

676 F.2d 494, 495 (11th Cir. 1982).

Accordingly, this Court finds

it appropriate to convert the defendants’ motions to dismiss into
motions for summary judgment. As mentioned above, this Court asked
the parties for affidavits as to the date the plaintiffs received
the report and notified them of the possible conversion.

Sears

states that he received the Screening Subcommittee Report on July
31, 2008.
[he]

Logar states that he “do[es] not recall when, if ever,

received

the

Screening

Subcommittee

Report.”

However,

McDiarmid, in her affidavit, states that Logar sent her a letter
responding to the Screening Subcommittee Report on August 5, 2008.
In addition, in the response to defendant Martin’s motion to
dismiss,

the

plaintiffs

jointly

state

that

the

Screening

Subcommittee released the Screening Subcommittee’s report to the
plaintiffs on July 21, 2008.
This Court concludes that the plaintiffs not only had reason
to know, but also had knowledge of every alleged discriminatory act
alleged in the complaint at the time they received the Screening
Subcommittee Report, which is prior to December 3, 2008.

The

actual bringing of academic misconduct charges is merely an effect

13

or consequence of the alleged conflict of interest and alleged
tainted investigation.

Because the plaintiffs did not file their

complaint until December 3, 2010, more than two years after August
5, 2008, the plaintiffs’ claims against all the defendants must be
dismissed as time-barred and the defendants’ motions for summary
judgment must be granted.4
V.

Conclusion

For the reasons stated above, Marjorie A. McDiarmid’s Motion
to Dismiss (Document No. 25), James P. Clements, C. Peter McGrath,
and West Virginia University Board of Governors’ Motion to Dismiss
(Document

No.

26),

Michael

S.

Garrison’s

Motion

to

Dismiss

(Document No. 31), Mary Roberta Brandt and Beverly D. Kerr’s Motion
to Dismiss (Document No. 33) and E. Jane Martin’s Motion to Dismiss
(Document No. 55) are CONVERTED to motions for summary judgment and
are GRANTED.

In addition, West Virginia University Board of

Governors, C. Peter McGrath, James P. Clements, and E. Jane
Martin’s motion to stay discovery pending resolution of dispositive
motions (Document No. 110) is DENIED AS MOOT; West Virginia
University Board of Governors, C. Peter McGrath, James P. Clements,
and E. Jane Martin’s emergency motion to seal affidavits of R.
Stephen Sears and Cyril M. Logar (Document No. 125) is DENIED AS
MOOT; James P. Clements, E. Jane Martin, C. Peter McGrath and West
Virginia University Board of Governors sealed motion for protective

4

Because this Court finds the plaintiffs’ complaint to be
time-barred, it will not address the plaintiffs’ claims on the
merits.
14

order (Document No. 140) is DENIED AS MOOT; R. Stephen Sears’
motion for protective order (Document No. 141) is DENIED AS MOOT;
and Gerald E. Lang’s motion to quash (Document No. 147) is DENIED
AS MOOT.

Accordingly, it is ORDERED that this case be DISMISSED

and STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

September 15, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

15