KELLY v. BEAUTY SYSTEMS GROUP, LLC, No. 1:2017cv07480 - Document 61 (D.N.J. 2019)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/9/2019. (rss, )
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KELLY v. BEAUTY SYSTEMS GROUP, LLC Doc. 61 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY D’YANI C. KELLY, Plaintiff, v. BEAUTY SYSTEMS GROUP, LLC ET AL, : Hon. J oseph H. Rodriguez : Civil Action No. 17-7480 : OPINION : Defendants. : This m atter is before the Court on a Motion for Sum m ary J udgm ent filed by Defendant, Beauty System s Group, LLC, d/ b/ a Cosm o Prof (“Defendant” or “Cosm o Prof”) [Dkt. No. 47] and a Motion for Sum m ary J udgm ent filed by Third Party Defendants, J ay Birnbaum -Cherry Hill, LLC and ILF-Cherry Hill, LLC (“Third Party Defendants”) [Dkt. No. 40 ]. The Court has considered the written subm issions of the parties, as well as the argum ents advanced at the hearing on Novem ber 20 , 20 19. For the reasons stated on the record that day, as well as those that follow, Defendant Cosm o Prof’s m otion will be granted, and Third Party Defendants’ m otion will be granted. I. Background This is a negligence action involving a floor m at, a trip, and a subsequent fall. On August 13, 20 15, D’yani Kelly (“Plaintiff”), her m other (“Ms. Greene”) and her daughter (“Ms. Warren”) were shopping in Cosm o Prof store. Pl. Dep. 31:6-10 . Defendant keeps a floor m at in front of the exit and entrance door. Id. The m at was black “with rubber edges and like a scruffy raised top to it. I suppose you could call it an all weather m at.” Id. at 41:3-10 . This “non-slip” m at took up the full length of the doors, where custom ers could wipe off their feet. Roscoe Dep. at 41:1-2. According to Plaintiff, while “casually” 1 Dockets.Justia.com walking to exit Defendants store “her left foot caught the edge of the [m at] at the exit door, causing her ankle to turn over. Plaintiff continued to walk out to her car in the parking lot when her ankle gave out and she fell to the ground, both hands extended. She landed on her hands and right knee, injuring her knee, hands, and shoulder.” Pl. Interrog. ¶ 2.; Pl. Dep. 43. There is no dispute in this case that Plaintiff did not fall while in the Cosm o Prof store. She alleges that she tripped, caught herself, and then fell in the parking lot m aking her way to her car. A. Plain tiff’s Trip On the day of Plaintiff’s accident, Plaintiff was wearing a sundress with wedge sandals. Pl. Dep. 38:1-5. Two em ployees were working at the Cosm o Prof store, Linda Pennestri (“Ms. Pennestri”) and Billie Roscoe (“Roscoe”). Neither em ployee witnessed Plaintiff trip on the floor m at. Ms. Warren, Plaintiff’s daughter, was standing next to Plaintiff when she tripped; she was the only person to witness the accident. Warren Dep. 36:7-12. She testified that Plaintiff “was walking, and then the rug like caught the front end of her foot.” Warren Dep. 36:19-22. She recalled that the black m at had one corner “a little flipped up, but [she] didn’t realize it until after [Plaintiff] tripped.” Id. at 31:20 24. Following Plaintiff trip, Plaintiff also noticed that the floor m at was not laying totally flat. Pl. Dep. 41:13-14. Ms. Greene testified that when she looked at the m at “it was just ruffled. . . . it was just a worn rug. . . . It wasn’t flat.” Greene Dep. 33:6-13. Plaintiff, her m other, and her daughter had not observed the conditions of the m at prior to when Plaintiff tripped. Likewise, Cosm o Prof em ployees only inspected the m at after Plaintiff tripped. Ms. Pennestri noticed at the “very corner of the m at there was a little pull.” She testified that she thought “the nylon just caught the end of her heel. But it wasn’t a big 2 hole or anything that would have caused a fall, which she didn’t fall in the store.” Pennestri Dep at 29. According to Ms. Pennestri, the “pull” was “not bad where you need to tape it down or replace it. . . . it’s like little bum ps on the carpet to tread. To get the dirt off stuff.” Id. at 34:17-35:2. According to Ms. Roscoe, the m at had been ripped up “just a tiny bit but no one had noticed it before then . . . At least [she] hadn’t until [Plaintiff’s m other] brought it to [her] attention;” it was “just m aybe a half an inch.” Roscoe Dep. 43:14-23; 44:1-6. At the tim e of Plaintiff’s accident, Ms. Pennestri had been working at Cosm o prof for about 8 years, since 20 0 7. During her em ploym ent, Ms. Pennestri never saw the m at in question becom e “bunched up . . . or curled over or wrinkled.” Pennestri Dep. 36:10 -15. At the tim e of her deposition, Cosm o Prof was using the sam e floor m at at the entrance that was used on August 13, 20 15. Id. at 37:13-24. It was not altered or rem oved. Id. Prior to Plaintiff’s incident, no one had ever tripped on the floor m at, or com plained about the floor m at while Ms. Pennestri was em ployed with Defendant. Id. at 27:1-2; 4142. Ms. Roscoe was em ployed with Cosm o Prof for a total of alm ost two years, from J une 20 15 through May 20 17. Roscoe Dep. 30 :2-5. During the m onths she was em ployed prior to Plaintiff’s trip in August 20 15, Ms. Roscoe never saw or heard of anyone else tripping on the floor m at. Id. at 41:2-16; 43:1-5. She also testified that no one com plained about the m at on the day Plaintiff allegedly tripped in the store. Id. at 41:20 -42:1. Plaintiff herself had been to Cosm o Prof m any tim es, but never witnessed anyone else catch their foot on the exit m at. Pl. Dep. 33:19-25. This was the first tim e her foot caught the m at. Id. at 34:1-2. 3 Cosm o Prof does not m aintain procedures to inspect the floor m at, however, the em ployees vacuum the m at “every night.” Pennestri Dep. at 35. Ms. Roscoe explained the m aintenance procedures for closing the store as follows: “we would take a push m op and push the dust to a central location, which was usually the m iddle of the m at, so whoever did that, which was usually m e because I hate vacuum ing, would dust that off and then the other person would take the vacuum and vacuum the m ats inside and out.” When she would vacuum , she would only roll over where the dirt was, but she saw that when other em ployees vacuum ed, they would roll over the whole m at, “including edges.” Roscoe Dep. 63:15-21; 64:17-23. B. Plain tiff’s Fall After Plaintiff tripped on the floor m at inside the Cosm o Prof store, she continued to exit the store and walk to her car, which was located in the store’s shopping center parking lot, in the first lane of parking spots. Plaintiff testified that her ankle “went out” from under her “when [she] went to take that last step with the left foot” and she fell forward to the ground. Pl. Dep. 48:1-10 . At her deposition, Plaintiff recounted the following details: Q. Could you describe for m e the exact location of your fall in that parking lot an in term s of how far from your car, any other landm arks or anything like that that you could reference where your fall occurred? A. Yes. I walked through the parking lot. There was a big long, oblong pothole. My m om and m y daughter went across the pothole. I was on the opposite side of it. When I got beyond the pothole is where m y ankle gave out and I hit the ground. Q. So you had to walk all the way around the pothole, is that what you are telling m e? A. They walked across the pothole. I was on the opposite side. I didn’t have to cross it. 4 Q. Were there debris or stoned or anything like that in the parking lot? A. No. Id. at 47: 9-48:2. Plaintiff’s m other and daughter witnessed her fall. Both testified that the Plaintiff did not fall as a result of tripping, slipping, or encountering a pothole in the parking lot. Greene Dep 59; Warren Dep. 40 :17-41:3. Plaintiff’s daughter specifically stated, “she walked around the pothole,” and explained that she did not know if Plaintiff tripped per se, but that “she couldn’t walk anym ore, and her ankle gave out.” Warren Dep. 40 :17-41:3. The two em ployees did not personally witness the incident. Ms. Roscoe filled out an incident report that stated: “Next tim e I saw [the Plaintiff], she was on the ground near the huge hole in the parking lot where her car was parked. Mother cam e in [and[ wanted accident report.” See Ex. C attached to Def. Op (Cosm o Prof Accident Report). In her second written statem ent, Ms. Roscoe stated that she was “working on [the] nail racks” when she saw Plaintiff “on the ground outside near a deep pothole. My first thought seeing this was she fell because of the hole.” See Ex. D attached to Def. Op (Roscoe Written Statem ent). At her deposition, Ms. Roscoe explained that she did not actually “she her fall in the pothole,” let alone fall at all, she “only saw her sitting behind what [she] assum ed was her car.” Roscoe Dep. 58; 61:1-10 . Ms. Roscoe has not seen photos, video, or encountered other evidence that showed Plaintiff’s “foot go into the pothole or that [Plaintiff] was caused to trip by contacting the pothole.” Id. at 61:11-17. C. Pro ce d u ral H is to ry Plaintiff initiated this action against Defendant Cosm o Prof alleging one Count for negligence in J uly 20 17. On Septem ber 26, 20 17, Defendant rem oved the case to this Court. [Dkt. No. 1]. On J anuary 8, 20 18 Defendant filed a Third Party Com plaint against 5 the Third Party Defendants, J ay Birnbaum -Cherry Hill, LLC and ILF-Cherry Hill, LLC, claim ing contribution and indemnification. [Dkt. No. 11]. Third Party Defendants own the shopping center and parking lot where Cosm o Prof is located. They “leased one of the retail stores within the shopping center” to Cosm os Prof. Accordingly, Third Party Defendants are responsible for m aintaining the parking lot where Plaintiff ultim ately fell. See [Dkt. No. 40 , Third Party Def. Brf.]. Third Party Defendants filed a Motion for Sum m ary J udgm ent pursuant to Fed. R. Civ. Pro. 56 seeking dism issal of Cosm o Prof’s Com plaint. [Dkt. No. 40 ]. Shortly after, Defendant Cosm o Prof (also Third Party Plaintiff) filed a Motion for Sum m ary J udgm ent pursuant to Fed. R. Civ. Pro. 56 seeking dism issal of Plaintiff’s action for negligence. The Court heard Oral Argum ent on both m otions at a hearing held on Novem ber 20 , 20 19. II. Sum m ary J udgm ent Standard A court will grant a m otion for sum m ary judgm ent if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a 6 dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256– 57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent 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. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). 7 III. Analysis A. D e fe n d an t Co s m o Pro f’s Mo tio n fo r Su m m ary Ju d gm e n t Defendant m oves for sum m ary judgm ent arguing that Plaintiff’s negligence claim fails as a m atter of law for two reasons: (1) the floor m at, upon which Plaintiff tripped, is not a dangerous condition, and (2) even if the floor m at is a dangerous condition, Defendant had no actual or constructive notice of any such dangerous condition. (Def. Brf. at 5-8). To establish a claim for negligence, plaintiff m ust prove “(1) [a] duty of care, (2) [a] breach of [that] duty, (3) proxim ate cause, and (4) actual dam ages [.]” Weinberg v. Dinger, 524 A.2d 366, 373 (N.J . 1987). Accordingly, “in any case founded upon negligence, the proofs ultim ately m ust establish that defendant breached a duty of reasonable care, which constituted a proxim ate cause of the plaintiff's injuries.” Brown v. Racquet Club of Bricktown, 471 A.2d 25, 29 (N.J . 1984) (citing Hansen v. Eagle-Picher Lead Co., 84 A.2d 281, 288 (N.J . 1951). In a case such as this, based on prem ises liability, the duty of care owed will depend on both defendant’s and plaintiff’s status. Here, there is no dispute that Defendant is the proprietor of com m ercial premises, and plaintiff its invitee. Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110 , 1114 (N.J . 1993) (an invitee is an individual “invited on the prem ises for purposes of the owner that often are com m ercial or business related”). “Business owners owe to invitees a duty of reasonable or due care to provide a safe environm ent for doing that which is within the scope of the invitation.” Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 316 (N.J . 20 0 3). That duty of care “requires a business owner to discover and elim inate dangerous conditions, to m aintain the prem ises in safe condition, and to avoid creating conditions 8 that would render the prem ises unsafe.” Id. (citing O'Shea v. K. Mart Corp., 70 1 A.2d 475 (N.J . App. Div. 1997)). The pertinent issue here, is whether the Cosm o Prof floor m at was a dangerous condition. Defendants argue, and the Court agrees, that Plaintiff has failed to “identify the existence of a dangerous or hazardous condition that caused her fall.” Def. Brf. at 7. According to the testim ony in the record, the floor m at was “not flat” it was “ruffled” or “ripped up just a tiny bit” in the corner, “[i]t was just like a buckle” approxim ately a “half-inch.” Plaintiff, however, provides no evidence that such a condition is dangerous or hazardous. The record is devoid of any other evidence as to the condition of the m at. There is no video or photograph of the m at in question, nor is there expert testim ony as to its condition.1 The Court, therefore, is not convinced that there is sufficient evidence that the floor m at constituted a dangerous condition. Alexandrow v. Yardville Nat. Bank, No. A-4595-0 8T3, 20 0 9 WL 4254530 , at *4 (N.J . Super. Ct. App. Div. Dec. 1, 20 0 9) (“[A]fter the [plaintiff’s] fall, the carpeted floor m at was curled up a little on the right side. For com pleteness, plaintiff is entitled to the inference that her right foot ‘m ust have caught it or som ething.’ We cannot discern how this am algam translates into a breach of duty, m uch less anything m ore than an exam ple of an inexorable law of physics: gravity is stronger than bipedalism ”). To be sure, Defendant continued to use the sam e floor m at, in the sam e condition, after Plaintiff’s incident for at least four years. Regardless, 1 At oral argum ent, the Court inquired as to whether anyone has observed the m at with a degree of credibility to say it was in a defective condition. Plaintiff explained there was no direct observation of the m at, the only evidence as to its condition is testim ony of the store em ployees at the tim e of the accident, Plaintiff did not have an expert look at the m at, and does not have photos of the m at depicting the alleged defect in the corner. 9 even if the rippled floor m at presented a dangerous condition Plaintiff has failed to show that Defendant either created the condition or had notice of it. A business “proprietor generally is not liable for injuries caused by defects of which he had no actual or im plied knowledge or notice, and no reasonable opportunity to discover.” Brown v. Racquet Club of Bricktown, 471 A.2d 25, 30 (N.J . 1984). Thus, prem ises liability is established when a plaintiff shows “a defendant knew or had the reasonable opportunity to discover and correct the defect.” Prioleau v. Kentucky Fried Chicken, Inc., 85 A.3d 10 15, 10 22 (N.J . Super. App. Div. 20 14), aff'd as m odified and rem anded, 122 A.3d 328 (N.J . 20 15). Here, there is no dispute that the only evidence pertaining to the condition of the floor m at consists of testim ony concerning what was observed after Plaintiff allegedly tripped. There is nothing in the record establishing actual notice, and Plaintiff does not argue that actual notice exists. Plaintiff contends, however, that a jury could infer that Cosm o Prof created the dangerous condition (the buckled m at corner) through its cleaning procedures. In that regard, Plaintiff argues that Defendant’s em ployees vacuum the m at every night, and “the vacuum cleaner could have easily turned up the corner on this [m at].” Plaintiff further relies on this sole fact—that em ployees vacuum the floor m at—to suggest Defendant had the opportunity to inspect the m at and therefore, breached its duty in failing to find the “defect.” Nothing in the record, however, suggests the duration of the alleged defect in the floor m at. Plaintiff fails to provide any evidence of when the condition m anifested. See Wierzbowski v. Sam 's E., Inc., No. A-340 1-13T4, 20 15 WL 455780 2, at *4 (N.J . Super. Ct. App. Div. J uly 30 , 20 15) (affirm ing sum m ary judgm ent where “Plaintiffs’ theories about how the m at becam e dog-eared, how long that condition existed, and whether the [em ployee] had sufficient tim e to observe it, 10 consisted of nothing m ore than conjecture”).2 Additionally, there are no facts in the record demonstrating that vacuum ing the floor m at could have caused a dangerous condition, any m ore so, than the possibility that Plaintiff herself created the condition when she tripped. Rivera v. Colum bus Cadet Corps of Am ., 59 N.J . Super. 445, 450 , 158 A.2d 62, 65 (App. Div. 1960 ) (“Negligence is never presum ed, and the m ere occurrence of an accident causing injuries is not alone sufficient to justify an inference of negligence.” (citations om itted)). Plaintiff is sim ply guessing when and how the condition of the floor m at arose. Furtherm ore, the record establishes that Plaintiff visited Cosm o Prof store “m any tim es” prior to her accident in August 20 15. On those prior visits, Plaintiff had no issue with Defendant’s floor m at and did not observe its condition. Pl. Dep. 33:19-25. In the im m ediate m onths leading up to Plaintiff’s accident, there were no reported incidents or com plaints about the exit door floor m at. In fact, throughout the five years preceding Plaintiff’s accident, Defendants had no accident reports related to the m at. During the eight years Ms. Pennestri was working, she never heard of a com plaint concerning the floor m at or of an accident. Furtherm ore, on the day Plaintiff tripped, there were no com plaints about the floor m at. Finally, Ms. Pennestri further testified that she never saw the m at in question, becom e “bunched up . . . or curled over or wrinkled.” Pennestri Dep. 36:10 -15. See Larkin v. Super Fresh Food Markets, Inc., 291 F. App'x 483, 485 (3d Cir. 20 0 8) (“Without evidence about when the m at becam e buckled, a fact-finder could 2 In Wierzbowski v. Sam 's E., Inc, the plaintiff claim ed to trip and fall because of an alleged dangerous condition in a floor m at—the m at being “dog-eared.” Sim ilar to the case here, plaintiff suggested defendant created the condition in how it was storing the m ats. But plaintiff failed to produce evidence “concerning the pliability or characteristics of the m aterials from which the m ats were m ade, nor . . . evidence that storing m ats in a rolled-up m anner could create a defect.” Additionally, there was no evidence as to how long the condition existed. The court found the evidence insufficient to establish negligence. 11 only speculate about whether [defendant] should have discovered and corrected the problem . Therefore, as a m atter of law, [defendant] did not have constructive notice.”). Accordingly, there is no genuine factual dispute for the jury, as there are no facts from which a jury can reasonably infer that Defendant created or should have known about a defect in its m at. Prioleau v. Kentucky Fried Chicken, Inc., 85 A.3d 10 15, 10 22 (N.J . App. Div. 20 14), aff'd as m odified and rem anded, 122 A.3d 328 (N.J . 20 15) (“An inference [of negligence] can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surm ise or guess.” (citing Long v. Landy, 171 A.2d 1, 7 (1961)). Therefore, the Court will grant Defendant’s Motion for Sum m ary J udgm ent and dism iss Plaintiff’s Com plaint. B. Th ird Party D e fe n d an ts ’ Mo tio n fo r Su m m ary Ju d gm e n t Third Party Defendants’ m ove for sum m ary judgm ent on the basis that Cosm o Prof (Third Party Plaintiff) has failed to show any evidence that Third Party Defendants’ are liable for negligence. Specifically, Third Party Defendants’ contend that Cosm o Prof, and Plaintiff, cannot provide any evidence that their alleged negligence caused Plaintiff to fall and further sustain any injuries. The Court agrees. There is no dispute in this case that Plaintiff tripped in Cosm o Prof, but did not fall. After Plaintiff tripped, she subsequently fell in the parking lot of the shopping center where Cosm o Prof is located. There is also no dispute that on the day of the incident, there was a pothole in that parking lot. Third Party Defendants own the parking lot and are responsible for its m aintenance. Accordingly, Cosm o Prof filed a Third Party com plaint against Third Party Defendants on a theory that the pothole in the parking lot 12 caused or contributed to Plaintiff’s fall. However, the record clearly establishes that the pothole played no role in Plaintiff’s accident. The witnesses to Plaintiff’s fall, her m other and daughter, both testified Plaintiff did not fall as a result of tripping, slipping, or encountering a pothole in the parking lot. Greene Dep 59; Warren Dep. 40 :17-41:3. Plaintiff’s daughter specifically stated, “we walked out of the store. She walked around the pothole, and she fell right before she got to the car,” Plaintiff’s “ankle gave out.” Warren Dep. 40 :17-41:3. Cosm o Prof alleges that despite the witness testim ony, there is a genuine dispute as to whether the pothole caused Plaintiff’s fall because em ployee, Ms. Roscoe, stated that Plaintiff was on the ground “near” the pothole. Def. Ex. C; Ex. D. Though Ms. Roscoe noted that fact in her report, she did not see Plaintiff fall. She further clarified her original statem ent at her deposition: Ms. Roscoe has not seen photos, video, or encountered other evidence that showed Plaintiff’s “foot go into the pothole or that [Plaintiff] was caused to trip by contacting the pothole.” Roscoe Dep. at 61:11-17. Sim ply put, Ms. Roscoe cannot, and adm ittedly, does not know whether the pothole played any role in Plaintiff’s fall. Therefore, not only is Ms. Roscoe’s assum ption that Plaintiff m ay have fallen due to the large pothole insufficient to preclude sum m ary judgm ent, but Plaintiff herself does not incrim inate the pothole. In fact, Plaintiff acknowledged its existence and explicitly stated: “I walked through the parking lot. There was a big long, oblong pothole. My m om and m y daughter went across the pothole. I was on the opposite side of it. When I got beyond the pothole is where m y ankle gave out and I hit the ground.” Pl. Dep. 47: 9-48:2. In addition, at oral argum ent Plaintiff’s counsel m ade clear that Plaintiff never alleged that the parking lot was the cause of her fall or that a pothole was 13 the cause of the fall, nor does she now allege any defect in the parking lot caused her fall. Therefore, the Court will grant Third Party Defendants’ m otion. IV. Conclusion For the forgoing reasons, Defendant Cosm o Prof’s Motion for Sum m ary J udgm ent will be granted, and Third Party Defendants’ Motion for Sum m ary J udgm ent will be granted; Plaintiff’s claim and Cosm o Prof’s Third Party Com plaint will be dism issed. An appropriate Order shall issue. Dated: Decem ber 9, 20 19 _ _ _ _ _ / s/ J oseph H. Rodriguez_ _ _ _ _ HON. J OSEPH H. RODRIGUEZ United States District J udge 14
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