Wells Fargo Bank, National Association v. Lake of the Torches Economic Development Corporation

Filing 65

ORDER denying 49 Motion to Vacate by Plaintiff Wells Fargo Bank, National Association; denying 50 Motion to Amend Complaint by Plaintiff Wells Fargo Bank, National Association. Signed by District Judge Rudolph T. Randa on 4/22/2010. (arw)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF WISCONSIN

W E L L S FARGO BANK, N.A., a s Trustee, P l a in tif f , C a s e No. 09-CV-768 -vsL A K E OF THE TORCHES ECONOMIC D E V E L O P M E N T CORPORATION, Defendant.

D E C IS IO N AND ORDER

In December 2009, the plaintiff, Wells Fargo Bank, N.A. ("Wells Fargo"), brought th is action to enforce a Trust Indenture agreement against Lake of the Torches Economic D e v e lo p m e n t Corporation ("Lake of the Torches EDC" or the "Corporation"), a corporation c h a r te r e d by the Lac du Flambeau Band of Lake Superior Chippewa Indians. The Trust In d e n tu re was designed to secure repayment of the principal and interest on $50 million in b o n d s issued by the Corporation. On January 6, the Court found the Trust Indenture to be a management contract executed without prior approval from the National Indian Gaming C o m m is s io n ("NIGC"). See 25 U.S.C. § 2711(a)(1); 25 C.F.R. § 533.7. This rendered the c o n tra c t, and the waiver of sovereign immunity contained therein, void under the Indian G a m in g Regulation Act ("IGRA"). Therefore, the Court dismissed the case because it lacked ju risd ictio n over the defendant.

N o w before the Court are the plaintiff's motions to alter or amend the judgment and fo r leave to file an amended complaint. For the reasons that follow, these motions are d e n ie d . I. P r o c e d u r a l Background T h is action was filed on December 21 and assigned to the Honorable Barbara Crabb, C h ie f Judge of the Western District of Wisconsin. Wells Fargo alleged four claims under the T ru s t Indenture: (1) Breach of Contract ­ Failure to Deposit Daily All Gross Revenues ( S e c tio n 5.01 of the Trust Indenture); (2) Breach of Contract ­ Use of Funds for U n a u th o riz e d Purpose (Section 5.01); (3) Breach of Contract ­ Failure to Provide Records f o r Inspection (Section 6.06); (4) Breach of Contract ­ Failure to Provide Financial S ta te m e n ts (Section 6.07). On the same day, Wells Fargo separately moved for the

a p p o in tm e n t of a receiver pursuant to Sections 8.04 and 8.03 of the Trust Indenture. Wells F arg o requested "expedited disposition" on its motion for a receiver. O n December 28, Judge Crabb issued an order stating that from the "materials su b m itt ed by plaintiff in support of its motion, it appears that appointment of a temporary re c e iv e r is warranted." D. 8 at 1. Judge Crabb reserved a final decision on the motion until s h e could hold an expedited hearing by telephone. Wells Fargo noticed the hearing for D e c em b e r 29. A lso on December 28, the Corporation filed a notice of appearance and a brief in o p p o s itio n to Wells Fargo's motion to appoint a receiver. The Corporation argued that the " c o n tra c ts upon which the Trustee's request is based are void and unenforceable as

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u n a p p ro v e d management contracts, rendering the purported waiver of sovereign immunity c o n ta in e d in those contracts also void. Thus, the Court lacks jurisdiction over this case." D. 12. At the December 29 hearing, the parties agreed to maintain the status quo until a h e a rin g on Wednesday, January 6. D. 17, 20. However, on January 5, Judge Crabb recused h e r s e lf , and the case was transferred to the undersigned for further proceedings. A l s o on January 5, the parties filed supplemental briefs pursuant to Judge Crabb's o rd e r. D. 17. In this round of briefing, the Corporation continued to develop its argument th a t the Trust Indenture was a management contract. In support, the Corporation provided a n affidavit from Kevin Washburn, Dean of the University of New Mexico School of Law a n d former General Counsel of the NIGC. Dean Washburn opined that "if the NIGC had b e e n given an opportunity to review the Trust Indenture, it would very likely have found that th e indenture as written constitutes a management contract, and it would have asserted ju ris d ic tio n over the agreement." D. 32, ¶ 7. L a te r in the day on January 5, the Court issued an order canceling the January 6 h e a rin g in Madison and scheduling a telephonic status conference for January 6 at 2 p.m.. T h e Court advised that the "parties should be prepared to discuss whether the status quo a g re e m e n t can be extended for a period of time while the Court reviews the materials and c o n sid e rs the merits of the pending motion." D. 38. Before that hearing took place, the C o u rt canceled the hearing and issued an order of dismissal. The Court issued a written

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o p in io n on January 11. Wells Fargo Bank N.A. v. Lake of the Torches Economic Dev't C o r p ., -- F. Supp. 2d --, 2010 WL 62638 (E.D. Wis.) II. M o tio n to Alter or Amend 1 R u le 59(e) motions generally cannot be used to introduce new evidence or advance a rg u m e n ts that could or should have been presented to the district court prior to judgment. M o r o v. Shell Oil Co., 51 F.3d 746, 876 (7th Cir. 1996). The purpose of the rule is to "allow th e district court to correct its own errors, sparing the parties and appellate courts the burden o f unnecessary appellate proceedings." Charles v. Daley, 799 F.2d 343, 348 (7th Cir. 1986). Rule 59(e) is not a vehicle for a party to "complete presenting his case after the court has ru le d against him." Alloc, Inc. v. Pergo, Inc., 572 F. Supp. 2d 1024, 1027 (E.D. Wis. 2008). W h e n a movant uses Rule 59(e) to "reargue the merits of their case," the motion should be d e n ie d . LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). T o prevail on a Rule 59(e) motion, the movant must present either newly discovered e v id e n c e or establish a manifest error of law or fact. LB Credit at 1267. "Manifest error" d o e s not equate to the disappointment of the losing party. Oto v. Metro Life Ins. Co., 224 F .3 d 601, 606 (7th Cir. 2000). Instead, a manifest error is the "wholesale disregard, m is a p p lic a tio n , or failure to recognize controlling precedent on the part of the court." Id. " T h e re is no precise definition in the law for what constitutes `clear error,' though it's clear th a t any analysis of clear error should conform to a very exacting standard. . . . [T]he moving

Rule 59(e) motions are timely if filed no later than 28 days after the entry of judgment. The Clerk for the E a s te rn District entered judgment on January 11, but the Clerk for the W e ste rn District entered a corrected judgment on J a n u a r y 19. Therefore, W e l l s Fargo's February 8 motion to alter or amend is timely.

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p a rty must demonstrate that errors were made which were so egregious that an appellate c o u rt could not affirm the district court's judgment." Kelly v. City of Fort Thomas, Kentucky, 6 1 0 F. Supp. 2d 759, 781 (E.D. Ky. 2009). W e lls Fargo argues that the Court committed clear legal error when it found that the T ru s t Indenture was a management contract. The Court will not revisit its basic management c o n tra c t analysis. Suffice it to say that Wells Fargo points to no controlling precedent which d em o n s trates that the Court committed manifest legal error. W e lls Fargo also argues that the Court committed clear legal error when it found that th e management provisions could not be severed, even though the parties did not brief the i s s u e . The Court discussed severance in the context of the immunity waiver in the Trust In d e n tu re . The Court endorsed the Tenth Circuit's observation that it "may be questioned w h e th e r any part of a contract determined to be void ab initio, including the severability p ro v is io n s , may be enforced." First Am. Kickapoo Op. v. Multimedia Games, Inc., 412 F.3d 1 1 6 6 , 1178 n.5 (10th Cir. 2005). The Court then found that "even if the waiver [of im m u n ity] provision could be saved, the remainder of the Trust Indenture is void, so there w o u ld be no remaining obligations to enforce under the contract." Wells Fargo at *5 (e m p h a s is added). The same rationale applies to any attempt to sever the illegal management p ro v is io n s . The entire contract is void, so there is nothing left to enforce. In fact, even if traditional severance principles apply here, the management provisions c a n n o t be severed without defeating the primary purpose of the bargain. Dawson v.

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G o ld a m m e r, 722 N.W.2d 106, 110 (Ct. App. 2006).2

Wells Fargo argues that the

m an ag em en t provisions can be severed because the parties did not intend the Trust Indenture to be a management contract in the first instance. However, as Wells Fargo repeatedly e m p h a s iz e s , the primary purpose of the Trust Indenture is to secure repayment of the Bonds. In the case of certain specified "Events of Default" (some of which form the basis for Wells F a rg o 's causes of action), the Trustee is granted certain rights to secure repayment (including th e appointment of a receiver). The Court already held that these "Event of Default" p ro v is io n s are illegal management provisions. Wells Fargo at *4. If the Court excised these p ro v is io n s , the primary purpose of the Trust Indenture ­ securing repayment of the Bonds ­ would be destroyed. Id. at *5 n.3 ("Because many of the `Event of Default' provisions are illega l, the contract cannot be severed"). W e lls Fargo also argues that the Court ruled prematurely because the jurisdictional is s u e ­ whether the Corporation waived their sovereign immunity ­ is intertwined with a m e rits issue ­ whether the Trust Indenture is a management contract. Accordingly, Wells F arg o argues that when the Court dismissed this case, it essentially granted the Corporation's u n f ile d motion for summary judgment on the management contract issue without allowing W e lls Fargo the opportunity to present evidence in response to the motion. Wells Fargo p articu larly objects to the Court's use of, and reliance upon, the affidavit of Kevin Washburn i n making its management contract ruling. When "jurisdictional issues and substantive

All of the relevant transaction documents include W is c o n s i n choice of law provisions. Trust Indenture, S e c tio n 13.01.

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is s u e s are so intertwined that the issue of jurisdiction is dependent on resolution of factual is s u e s going to the merits, the determination of jurisdiction should await the determination o f relevant facts on either a motion on the merits or at trial." Weidner Comm'n, Inc. v. H .R .H . Prince Bandar Al Faisal, 859 F.2d 1302, 1310 n. 11 (7th Cir. 1988) (citing Augustine v . United States, 704 F.2d 1074 (9th Cir. 1983)). P r o c e d u r a lly, the Court's sua sponte dismissal was unconventional, but it does not f o llo w that the Court committed manifest legal error. The Court made a legal ruling based u p o n undisputed facts, and the Washburn Affidavit was merely persuasive legal authority th a t the Trust Indenture, as a matter of law, was a management contract.3 The management co n trac t issue, and by extension the sovereign immunity issue, was the primary issue before th e Court, and it was raised as a defense in the very first set of motion papers filed by the C o rp o ra tio n . Even though the Corporation did not move for dismissal, Wells Fargo had a f a ir opportunity to be heard on this issue. There is no legal authority to suggest that the C o u rt must hold further hearings and entertain more briefing ad infinitum when the Court has e n o u g h information to make a ruling as a matter of law. Moreover, even if the analogy to a summary judgment ruling is appropriate, summary judgment was warranted because the re le v a n t facts are not in dispute and the Corporation is entitled to judgment as a matter of la w . Augustine, 704 F.2d at 1079. W e lls Fargo also cites Health Cost Controls v. Skinner, 44 F.3d 535 (7th Cir. 1995), w h e re the court reversed a sua sponte dismissal for lack of subject matter jurisdiction when
W e l l s Fargo now submits two expert opinions in support of its position that the Trust Indenture is not a m a n a g e m e n t contract. D. 51, D. 53. Neither opinion persuades the Court to reconsider its initial ruling.
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th e plaintiff failed to state a claim under a federal statute. The Skinner court held that if a p l a in t if f "fails to properly allege a claim for relief brought under a federal statute, the case sh o u ld be dismissed under Federal Rule of Civil Procedure 12(b)(6), rather than Rule 1 2 (b )(1 )." Id. at 537. For many reasons, the comparison to Skinner is inapt. Wells Fargo w a s not bringing a claim under a federal statute, and the Court did not determine that Wells F a rg o failed to state a claim upon which relief could be granted. Moreover, a dismissal for f a ilu re to state a claim under federal law implicates subject matter jurisdiction under 28 U .S .C . § 1331. By contrast, sovereign immunity is a "jurisdictional bar with a `hybrid n a tu re ,' similar in some respects to personal jurisdiction and to subject matter jurisdiction in o th e rs , it is on all fours with neither." Maysonet-Robles v. Cabrero, 323 F.3d 43, 50 (1st Cir. 2 0 0 3 ); see also Blagojevich v. Gates, 519 F.3d 370, 371 (7th Cir. 2008). Whether sovereign im m u n ity is more akin to subject matter jurisdiction or personal jurisdiction is not entirely re le v a n t in this context. What matters is that the Corporation did not waive its sovereign im m u n ity, so summary dismissal was appropriate. See Enahoro v. Abubakar, 408 F.3d 877, 8 8 0 (7th Cir. 2005) ("sovereign immunity is an immunity from trial and the attendant b u rd e n s of litigation, and not just a defense to liability on the merits. . . .") T h e Court understands that its ruling was sudden and surprising, especially in light o f the prior proceedings before Judge Crabb, her unexpected recusal, and the confusion in v o lv e d with the case being transferred to Milwaukee. However, the management contract issue was brought squarely and immediately before the Court in the context of Wells Fargo's

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e m e r g e n c y request to appoint a receiver. Without a valid waiver of immunity, there was no ju ris d ic tio n over the Corporation, and the case could not proceed. III. L e a v e to file amended complaint U n d e r Rule 15(a), leave to amend should be freely granted, but can be denied when th e amendment would be futile. Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). In the p o s t-ju d g m e n t context, a party seeking leave to amend must have the judgment reopened p u rs u a n t to Rule 59(e) or Rule 60(b) and then request leave to amend. Amendola v. Bayer, 9 0 7 F.2d 760, 765 n.4 (7th Cir. 1990); Paganis v. Blonstein, 3 F.3d 1067, 1072 (7th Cir. 1 9 9 3 ) ; Dierson v. Chicago Car Exch., 110 F.3d 481, 488 (7th Cir. 1997). Wells Fargo a rg u e s that it was manifest legal error to dismiss this case without granting leave to amend, p a rtic u la rly when the dismissal was on jurisdictional grounds. See Frey v. E.P.A., 270 F.3d 1 1 2 9 , 1132 (7th Cir. 2001). In light of the unique procedural history of this case, the Court w ill presume that dismissal without leave to amend was in error and proceed to analyze the p ro p o se d amended complaint. T h e amended complaint expands the allegations of the original complaint and in c o rp o ra te s not just the Trust Indenture, but all of the related documents generated by the B o n d transaction: the Bonds (Exhibit B); a Limited Offering Memorandum ("Offering M e m o " ) (Exhibit C); the Closing Certificate and Bond Resolution (Exhibit D); and two O p i n io n Letters from tribe and Corporation counsel (Exhibits E and F). In addition to the

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f irs t four claims from the original complaint under the Trust Indenture, the amended c o m p l a in t includes a claim under the Bonds.4 W e l ls Fargo argues that the Bonds are not void because they are "collateral a g re e m e n ts " with respect to the Trust Indenture. IGRA regulations define collateral

a g re e m e n t as "any contract . . . that is related, either directly or indirectly, to a management c o n t r a c t, or to any rights, duties or obligations created between the tribe (or any of its m e m b e r s , entities, or organizations) and a management contractor or subcontractor (or any p e rs o n related to a management contractor or subcontractor)." 25 C.F.R. § 502.5. The re g u latio n s define management contract as "any contract, subcontract, or collateral a g re e m e n t between an Indian tribe and a contractor or between a contractor and a s u b c o n tra c to r if such contract or agreement provides for the management of all or part of a g a m in g operation." 25 C.F.R. § 502.15. The statute provides that a management contract f o r the operation and management of a class II gaming activity "shall be considered to in c lu d e all collateral agreements to such contract that relate to the gaming activity." 25 U .S .C . § 2711(a)(3). C o n tra ry to Wells Fargo's argument, there is authority for the proposition that the B o n d s are void merely because they are collateral to an unapproved management contract (th e Trust Indenture). Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Kean-

Just like the Trust Indenture, the Bonds include provisions purporting to waive the Corporation's sovereign im m u n ity . "The [Corporation] hereby expressly waives its sovereign immunity from suit . . . should an action be c o m m e n c e d on this Bond, the Indenture, the Security Agreement, or the Bond Resolution, or regarding the subject matter o f the Indenture. . . . The [Corporation] expressly submits to and consents to the jurisdiction of the United States District C o u r t for the W e ste rn District of W is c o n s in . . . for the adjudication of any dispute or controversy arising out of this Bond, t h e Indenture, or the Bond Resolution . . . or to any transaction in connection therewith . . ."

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A r g o v its Resorts, 249 F. Supp. 2d 901, 903-04, 907 (W.D. Mich. 2003) (vacated and re m a n d e d on other grounds). This approach was implicitly followed by the Eighth Circuit in United States v. Casino Magic Corp., 293 F.3d 419 (8th Cir. 2002), where the court held th a t a series of agreements were void as unapproved management contracts, even though one o f those agreements, standing alone, was not a management contract. "A management c o n t ra c t includes the principal contract and `all collateral agreements to such contract that r e la te to the gaming activity.' The three agreements discussed above served as a

m a n a g em e n t contract implicitly if not explicitly." Id. at 425 (internal citation omitted). O n the other hand, one district court held that an "agreement's being collateral to a m a n a g em e n t contract is not a sufficient condition for it to be void. . . . [O]nly collateral a g r e e m e n t s that also provide for the management of all or part of a gaming operation are v o id without NIGC approval." Machal, Inc. v. Jena Band of Choctaw Indians, 387 F. Supp. 2 d 659, 666, 667 (W.D. La. 2005) (emphasis added). This approach appears to be supported b y Kevin Washburn's article describing the management contract approval process: T h e NIGC does not approve each document that meets the d e f in itio n of collateral agreement. Indeed, it has no standards to u se for approval of such documents. The NIGC routinely a p p ro v e s management contracts while failing to approve d o c u m e n ts collateral to that management contract. It does not in te n d that such agreements are void; it simply means that the N IG C seeks to approve only that document that actually in v o lv e s management of a gaming operation. The NIGC has a u th o rity to approve a collateral agreement only if it also meets th e definition of `management contract,' that is, it provides for th e `management of all or part of a gaming operation.' In short, n o t all collateral agreements are management agreements. T h o se that do not meet the definition of `management contract' a re not subject to NIGC review. -11-

K e v in K. Washburn, The Mechanics of Indian Gaming Management Contract Approval, 8 G am ing L. Rev. 333, 345 (2004) ("Washburn Article"). In the Court's view, the differing approaches to "collateral agreements" resolve on the d is tin c tio n between those who want to enter into a management contract and those who do n o t. In the latter situation (presented by the case at bar), the Court's role is to determine w h e th e r a contract that was not approved by the NIGC actually crosses the line and becomes a management contract. To protect themselves, parties will often request a "declination le tte r" from the NIGC. Washburn Article at 345 ("Upon request, the NIGC will review a c o n tra c t and issue a letter indicating that the contract is not subject to the management c o n tra c t review and approval process"). When the parties do want to enter into a

m a n a g e m e n t contract, they actively seek compliance with the corresponding regulations to g a rn e r NIGC approval. In this context, even though the NIGC does not approve truly " c o lla te ra l agreements," for policy reasons it still examines all of the relevant transaction d o c u m e n ts to determine which agreements are management contracts (and which agreements a re not). This is why the NIGC adopted an expansive definition of "collateral agreement." W a sh b u rn Article at 346 (NIGC created a "broad definition of the term `collateral a g re e m e n t' to insure that it can review all the documents needed for meaningful management co n trac t review"). W h e n viewed in this light, it is apparent that Wells Fargo's attempt to save the Bonds m u s t fail. Ultimately, the Court's ruling that the Trust Indenture is a management contract m e a n s that the entire transaction was subject to the management contract approval process.

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A c c o rd i n g l y, the parties would have been expected to submit all of the related (i.e., " c o l la te r a l" ) agreements to the NIGC for approval. This does not mean that all of those a g re e m en ts are management contracts. But it does mean that the failure to procure NIGC a p p ro v a l in the first instance renders all of the collateral agreements void ab initio. Indeed, if the parties in this case did seek a declination letter, it is hard to imagine the NIGC a rtif ic ia lly dividing the transaction in the manner suggested by Wells Fargo.5 E v e n apart from the foregoing discussion, Wells Fargo's attempt to separate the B o n d s from the Trust Indenture is not persuasive. Indeed, as in most transactions of this n a tu re , it is hard to imagine the Bonds existing without the Trust Indenture. Like the re la tio n s h ip between a note and a mortgage, the Bonds represent the Corporation's obligation to repay its debt, while the Trust Indenture provides security for the transaction. The general ru le in Wisconsin (and most jurisdictions) is that "instruments executed at the same time b e tw e e n the same contracting parties in course of the same transaction will be construed to g e th e r. One application of this rule is the construction together of a mortgage and the note f o r which it was given as security." Wipfli v. Bever, 155 N.W.2d 71, 72-73 (Wis. 1967). C o n s tru e d together, the Bonds and the Trust Indenture reflect the parties' intention to allow th e Trustee to exert managerial control in the event the Corporation defaults on the Bonds. F o r this purpose, they cannot be separated.

For example, in Casino Magic, the Tribe submitted all of the related agreements to the NIGC. "After careful r e v i e w , we have determined that the Consulting Agreement and related documents, when considered as a whole, are m a n a g e m e n t contracts. As such, the submitted documents require the approval of the Chariman of the NIGC." 293 F.3d a t 423 (emphases added). Similarly, in Match-E-B-Nash-She-Wish Band of Pottawatomi Indians, the NIGC issued a d e c l i n a t i o n letter which concluded that the agreement "is collateral to a management contract and must be reviewed in c o n ju n c tio n with the Management Agreement." 249 F. Supp. 2d at 906 (emphasis added).

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M o re o v e r, the Bonds incorporate the terms of the Trust Indenture by reference.6 11 W illisto n on Contracts § 30:25 (4th Ed. 1999) ("Where a writing refers to another document, that other document, or the portion to which reference is made, becomes constructively a part o f the writing, and in that respect the two form a single instrument"). The Bonds explicitly re f ere n c e "the Indenture and the Bond Resolution . . . for a description and limitation of the p ro p e rty, revenues and funds pledged and appropriated to the payment of the Bonds, the n a tu re and extent of the security thereby created, the rights of the owners of the Bonds, the r ig h ts , duties and immunities of the Trustee, and the rights, immunities and obligations of the C o r p o r a tio n thereunder." D. 50, Exhibit B at 3 (emphasis added). The Bonds further p ro v id e that in case "an event of default as defined in the Indenture occurs, . . . no owner of a n y Bond shall have any right to enforce the provisions of the Indenture, except as provided th e re in ." Id. at 4 (emphasis added). The Bonds essentially provide for the "management of a ll or part of a gaming operation" in the event of default by explicitly referencing the Trust I n d e n tu r e . T h e remaining claims in the amended complaint (Counts VI-XIV) lie in tort and e q u ity, not contract. Outside of the Bonds and the Trust Indenture, Wells Fargo relies upon th e other transaction documents to establish that the Corporation waived its sovereign

It is true that collateral agreements in a mortgage securing a negotiable note will not be imported into the note s o as to render it non-negotiable. Wipfli at 73 n.2; Brest v. Maenet Realty Co., 15 N.W .2 d 798, 800 (Wis. 1944) (citing T h o r p v. Mindeman, 101 N.W . 417 (1904)). However, the negotiability of the Bonds is not at issue. Instead, the issue is th e intent of the parties expressed by the transaction documents.

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im m u n ity with respect to these additional claims.7 The waiver provisions in these documents w e re generated in connection with the bond transaction, and they presuppose the validity of th e same. To the extent that these waivers can be considered enforceable against the C o r p o ra tio n , they are collateral agreements to the bond transaction and are void for the r e a so n s previously articulated. Additionally, these documents represent the parties'

n e g o t ia tio n s and were a precursor to the issuance of the Bonds and the execution of the Trust In d e n tu re . Accordingly, the purported waivers are void because they are merged therein. "It is presumed that after the parties negotiate the terms of a contract the negotiations are m e rg e d therein when written and signed." St. Norbert Coll. Found., Inc. v. McCormick, 260 N .W .2 d 776, 780 (Wis. 1978). IV. C o n c lu s io n A sid e from dismissing this case without leave to amend, there was no error of law in th e initial proceedings. The proposed amendments are futile.

The Bond Resolution, the Limited Offering Memorandum, the Closing Certificate, and the opinion letters from C o r p o r a tio n counsel all indicate the Corporation's willingness to waive its sovereign immunity with respect to the u n d e r ly in g bond transaction.

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I T IS HEREBY ORDERED THAT: 1. 2. D E N IE D . D a te d at Milwaukee, Wisconsin, this 22nd day of April, 2010. S O ORDERED, W e lls Fargo's motion to vacate the judgment [D. 49] is DENIED; and W e lls Fargo's motion to for leave to file an amended complaint [D. 50] is

s / Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge

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