SPEAR et al v. WESTFIELD INSURANCE COMPANY, No. 2:2015cv00582 - Document 20 (E.D. Pa. 2015)
Court Description: OPINION SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 6/11/15. 6/11/15 ENTERED AND COPIES E-MAILED.(va, )
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SPEAR et al v. WESTFIELD INSURANCE COMPANY Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BARBIE SPEAR, et al. Plaintiffs, : : : v. : : WESTFIELD INSURANCE COMPANY : Defendant. : CIVIL ACTION NO. 15-cv-0 0 582-RAL RICH ARD A. LLORET U .S. Magis trate Ju d ge Ju n e 11, 2 0 15 OPIN ION Defendant, the Westfield Insurance Com pany (“Westfield”), has filed a Motion for J udgm ent on the Pleadings, asking m e to dism iss a breach of contract claim filed by Barbie Spear an d Alliance Holdings, Inc. Em ployee Stock Ownership Program (“Plaintiffs”). See Motion for J udgm ent on the Pleadings, Doc. No. 9; Brief in Support of Motion for J udgm ent on the Pleadings [“Def. Br.”], Doc. No. 9-2. Westfield argues that Plaintiffs’ breach of contract claim is tim e-barred based on the term s of the issued policy. See Def. Br. at 1-2. Plaintiffs argue that granting a m otion for judgm ent on the pleadings would be prem ature at this stage of the litigation. See Plaintiffs’ Mem orandum of Law in Opposition to Motion for J udgm ent on the Pleadings [“Pl. Br.”], Doc. No. 13, at 5-6. After careful review, I will deny Westfield’s m otion. I. Factu a l Backgro u n d This dispute arises out of an em ployee theft and forgery policy that the Alliance Holdings, Inc. Em ployee Stock Ownership Program (“ESOP”) purchased from Westfield. Covering a period of three years from Decem ber 1, 20 10 to Decem ber 1, Dockets.Justia.com 20 13, 1 the policy insures for up to $ 1,0 0 0 ,0 0 0 .0 0 any theft, forgery, or alteration com m itted by an em ployee of the insured. See Doc. No. 1, 37-38. 2 The Plaintiffs initiated this action by filing a Writ of Sum m ons in the Pennsylvania Court of Com m on Pleas in Philadelphia County on October 30 , 20 14. Doc. No. 1, at 57 (docket sheet for Barbie Spear, et. al. v. W estfield Ins. Co., No. 3872, Oct. Term (C.C.P. Phila. 20 14)). The Plaintiffs filed a form al Com plaint on J anuary 30 , 20 15 and Westfield rem oved this action to federal court on February 6, 20 15. See Def. Br. at 2. As sum m arized by Westfield, this disputed claim arises out of m onetary losses stem m ing from an “alleged theft of ESOP plan assets by its form er trustee, form er CEO, president, and director of Alliance Holdings, Inc., David B. Fenkell (‘Fenkell’)”. Id. (citations om itted). Alliance alleges that it “discovered” his theft on October 31, 20 12. Def. Br. at 3. Westfield states that 18 m onths after the ESOP reported the loss, the ESOP provided a revised Proof of Loss claim to the insurance com pany, which included a Claim Narrative spelling out, in som e detail, the nature of the actions allegedly undertaken by Mr. Fenkell while he served as sole trustee of the ESOP. See id. This Claim Narrative, attached in the Defendant’s Answer, states that “[i]t was not until J uly and August of 20 12 that Alliance began to discover Fenkell’s theft.” See Doc. No. 2-1, at 35 (em phasis added); see also Def. Br. at 3 (noting the “Claim Narrative expressly adm its that Fenkell’s actions and in action were discovered in J uly and August 20 12 – not October 31, 20 12, the discovery date originally reported to 1 Addition al pleadings included in the Answer to the Com plaint state that the ESOP first purchased coverage on Decem ber 1, 20 0 4. See Doc. No. 2-1, at 37. 2 Because of the different pagination in the attached exhibits, these citations refer to the num bers found in the Eastern District of Pennsylvania’s ECF system . 2 Westfield”). Westfield argues that this does n ot m atch the October 31, 20 12 date originally reported to the insurance com pany. See Def. Br. at 3. Following the subm ission of the claim to Westfield, the com pany den ied coverage on J une 24, 20 14. See id. (citations om itted). In their brief, Westfield notes that the Alliance ESOP “m ade no attem pt to file a Writ of Sum m ons in J uly or August, 20 14 an d com ply with the contractual suit lim itation [of two years], even though it had counsel actively representing their interests during the claim s investigation process.” Def. Br. at 4 (citations om itted). As such, the Plaintiffs were aware that their breach of contract claim was tim e-barred pursuant to the term s of the policy, 3 and judgm ent on the pleadings should be granted. See id. Plaintiffs state that the proof of loss was “ongoing” as of October 15, 20 12 and that a detailed proof of loss was not provided to Westfield until J une 16, 20 14. See Pl. Br. at 3 (citation om itted). Their position seem s to indicate that the investigation of Fenkell’s alleged wrongdoing effectively “tolled” the tim e period for reporting the loss to Westfield. See id. at 6. II. Le gal Stan d ard s A m otion for judgm ent on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) m irrors the Rule 12(b)(6) standard. See SB Pharm co Puerto Rico, Inc. 3 That policy states that an insured m ay not bring any legal action “[u]nless brought within 2 years from the date you ‘discovered’ the loss.” See Doc. No. 2-1, at 19. In the “definitions” section of the insurance policy, it states ‘Discover’ or ‘discovered’ m eans the tim e when you first becom e aware of facts which would cause a reasonable person to assum e that a loss of a type covered by this in surance has been or will be incurred, regardless of when the act or acts causing or contributing to such loss occurred, even though the exact am ount or details of loss m ay not be known. ‘Discover’ or ‘discovered’ also m eans the tim e when you first receive notice of an actual or potential claim in which it is alleged that you are liable to a third party under circum stances which, if true, would constitute a loss under this policy. See id. at 25. 3 v. Mutual Pharm aceutical Co., Inc., 552 F. Supp. 2d 50 0 , 50 5 (E.D. Pa. 20 0 8); Constitution Bank v. DiMarco, 8 15 F. Supp. 154, 157 (E.D. Pa. 1993). Federal Rule of Civil Procedure 12(b)(6) allows dism issal of claim s for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order for a com plaint to survive a m otion to dism iss under 12(b)(6), the com plaint m ust allege facts that, if true, would state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (20 0 9). Courts m ust conduct a two-part analysis when reviewing a com plaint challenged under Rule 12(b)(6). See Fow ler v. UPMC Shady side, 578 F.3d 20 3, 210 (3d. Cir. 20 0 9). The first part of the analysis requires courts to separate factual and legal claim s, and then accept all well-pled facts as true while disregarding legal conclusions. Id. at 210 -11. Second, a court m ust determ ine if those facts in the com plaint show a plaintiff has a plausible claim for relief. See id. at 211 (citing Iqbal, 556 U.S. at 679). Mere allegations absent any factual support will not survive a m otion to dism iss. Id. The Federal Rules im pose lim itations on what a court m ay consider when deciding such a m otion, which includes “only the allegations contain ed in the com plaint, exhibits attached to the com plaint and m atters of public record.” Pension Ben. Guar. Corp. v. W hite Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A C. W RIGHT & A. M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 1357, at 299 (2d ed. 1990 )); W atterson v. Page, 987 F.2d 1, 3– 4 (1st Cir. 1993); Em rich v. Touche Ross & Co., 8 46 F.2d 1190 , 1198 (9th Cir. 1988)). Generally, when considering a m otion for judgm ent on the pleadings, a court “m ay not consider m atters extraneous to the pleadings.” See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 , 1425 (3d Cir. 1997). In som e cases however, a court m ay consider docum ents outside the pleadings if 4 that docum ent is “integral to or explicitly relied upon in the com plaint.” See Mele v. Federal Reserve Bank of N ew York, 359 F.3d 251, 256 n. 5 (3d Cir. 20 0 4) (quoting Shaw v. Digital Equip. Corp., 8 2 F.3d 1194, 1220 (1st Cir. 1996)). Mele also went on to state that docum ents that “form [] the heart of [a] com plaint. . .” would fall within this exception. See id. (citing In re Burlington Coat Factory , 114 F.3d at 1426). A) The W estfield Policy and other docum ents The insurance policy is the center of this dispute. Westfield argues that I should find the two-year contractual lim itations period valid and enforceable. See Def. Br. at 5. They also ask that I consider docum ents in addition to the pleadings when deciding this m otion. Id. at 5 n. 3. Plaintiffs do not argue that the contractual lim itations period is invalid. They do argue that I should not consider any docum ents attached to the Defendant’s Answer, including m aterial related to the policy. See Pl. Br. at 8 . I find that the two-year contractual lim itations period is valid and enforceable. Pennsylvania recognizes contractual m odification of statute of lim itation periods. See Toledo v. State Farm Fire & Cas. Co., 8 10 F. Supp. 156, 157 (E.D. Pa. 1992) (citing General State Authority v. Planet Ins. Co., 346 A.2d 265, 267 (Pa. 1975)); Lardas v. Underw riters Ins. Co., 231 A.2d 740 , 741-42 (Pa. 1967). Generally, Pennsylvania law allows four years to bring a breach of contract claim . See 42 Pa. Cons. Stat. § 5525. Parties m ay agree to a shorter lim itations period so long as it provides a “reasonable” tim e period within which to seek relief. See McElhiney v. Allstate Ins. Co., 33 F. Supp. 2d 40 5, 40 6 (E.D. Pa. 1999) (citations om itted). A one-year tim e period is reasonable. See id. (citations om itted). The parties here agreed to a two-year tim e period, which is reasonable and enforceable under Pennsylvania law. 5 I can consider docum ents outside the pleadings, in particular the insurance policy, which is attached to and form s the “heart of the com plaint,” paraphrasing the standard announced in Mele. See 359 F.3d 251, 257 n. 5. Plaintiffs argue that I should not consider any docum ents attached to the Defendant’s Answer. See Pl. Br. at 8 -9. I agree. See Pension Benefit, 998 F.2d at 1196 (a “court m ay consider an undisputedly authentic docum ent that a defendant attached as an exhibit to a m otion to dism iss if the plaintiff’s claim s are based on the docum ent.”) The court in Pension Benefit considered a purchase and sale agreem ent that was indisputably authentic, but declin ed to consider other docum ents attached to the m otion. Id., at 1197. I m ay consider “m atters of public record.” Id. at 1196. “[A] court m ay take judicial notice of a [court] filing in a prior case in ruling on a m otion to dism iss, but it can only do so to establish the existence of that filing, not for the truth of the facts asserted therein.” See Burton v. N ationstar Mortg., No. 14-50 59, 20 15 WL 1636956, at *2 (E.D. Pa. April 13, 20 15) (citing Lum v. Bank of Am ., 361 F.3d 217, 222 (3d Cir. 20 0 4), abrogated in part on other grounds by Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 557, (20 0 7)); cf. 5A W RIGHT & M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 1357, at 299 (2d ed. 1990 ) (“In determ ining whether to grant a Rule 12(b)(6) m otion, the court prim arily considers the allegations in the com plaint, although m atters of public record ... also m ay be taken into account.”). These public docum ents m ay also include “court files, records and letter of official actions or decision of governm ent agencies and adm inistrative bodies, docum ents referenced and incorporated in the com plaint and docum ents referenced in the com plaint or essential to a plaintiff’s claim which are attached to a defendant’s m otion.” See Arizm endi v. Law son, 914 F. Supp. 1157, 1160 61 (E.D. Pa. 1996). 6 The sum of all this is that I m ay exam ine (a) the com plaint; (b) the insurance policy, a copy of which is attached to the com plaint; (c) the October 31, 20 12 proof of loss, relied upon in the com plaint, a copy of which is attached to plaintiff’s response to the m otion for judgm ent (Doc. No. 13-1, at 12 (ECF pagination)); and (d) m atters of public record, though not for the truth of m atters contained in the record, but as proof that a party to the action had notice of claim s or allegations. I m ay not consult the two proofs of notice attached to the Answer as Exhibit B, neither of which are relied upon in the Com plaint. Attached to the Plaintiffs’ brief in opposition is an affidavit signed by Barbie Spear, the trustee of the Alliance ESOP. See Doc. No. 13-1. The affidavit establishes a cohesive tim eline of the events, upon which I m ay also rely, since it is not disputed by the plaintiff. B) The m eaning of “discovery ” To understand what “discovery” m eans, I turn first to the plain language of the insurance policy. The policy offers two definitions of discovery: ‘Discover’ or ‘discovered’ m eans the tim e when [the insured] first becom e aware of facts which would cause a reasonable person to assum e that a loss of a type covered by this in surance has been or will be incurred, regardless of when the act or acts causing or contributing to such loss occurred, even though the exact am ount or details of loss m ay not then be known. ‘Discover’ or ‘discovered’ also m eans the tim e when you first receive notice of an actual or potential claim in which it is alleged that you are liable to a third party under circum stances which, if true, would constitute a loss under this policy. See Doc. No. 1, at 48 (reflecting ECF filing). The Westfield policy is clear that an insured need not be in possession of a precise loss figure. The policy language requires only that the insured “becom e aware” of facts that a reasonable person would assum e constitutes a covered loss under the policy. 7 The policy’s language calls for an assessm ent of (1) the facts the insured was “aware” of (2) exactly when the insured was aware of these facts, an d (3) whether the facts “would cause a reasonable person to assum e” that a loss covered by the policy had been or would be incurred. Plaintiffs argue that “[a] reasonable inference to be drawn from the facts is that n othing was suspected prior to J uly or August of 20 12; from J uly or August through October, 20 12, the Alliance ESOP began to discover certain irregularities that caused the Alliance ESOP to begin an internal investigation and audit on October 2, 20 12, and to notify Westfield of a ‘potential loss’ on October 31, 20 12. . .” Pl. Br. at 10 . Turning to the Spear affidavit, I note that on J uly 2, 20 12, Mr. Fenkell expanded the Board of Directors to three individuals, including Ms. Spear. See Doc. No. 13-1 [“Spear Aff.”] ¶ 4. On August 31, 20 12, Mr. Kenneth Wanko was added as a joint check signor for Alliance’s checking account, “for the first tim e giving som eone other than Fenkell check signing authority on behalf of Alliance.” Id. ¶ 5. In early October of 20 12, Alliance retained the services of Ballard Spahr, a law firm that retain ed a forensic accounting team from Deloitte to conduct an internal investigation of Mr. Fenkell’s activities. Id. ¶ 6. Ms. Spear states that there were “suspicions sufficient to investigate Mr. Fenkell, but w e had not discovered the theft for w hich w e seek recovery from W estfield.”4 Id. (em phasis supplied). Additional inform ation includes further 4 It is difficult to untangle the dates in these docum ents. The affidavit states that Exhibit B is an em ail from Mr. Michael Maitland to Westfield dated October 31, 20 12. Exhibit B is in fact a “Fidelity Proof of Loss” form that states the date of loss was discovered on October 15, 20 12. See Doc. No. 13-1, at 9 (reflecting ECF filings). Exhibit A is the em ail from Mr. Maitland. See id. at 7. Exhibit C, which is supposedly a J an uary 14, 20 13 Proof of Loss, is in fact dated October 31, 20 12. See id. at 12. Exhibit C, in the docum ent, appears to be Exhibit A, as identified in the affidavit. 8 discussions with Westfield by Mr. Maitland on October 31, 20 12. Id. ¶ 7. Notable too is that Alliance “began to discover Fenkell’s theft” in J uly or August of 20 12. Id. ¶ 10 . The Third Circuit an d other courts have provided guidance about how to analyze the m eaning of “discovery:”5 [w]e understand this discovery standard as com prised of a subjective and objective com ponent: the trier of fact m ust identify what facts and inform ation the insured actually knew during the relevant tim e period, and it m ust determ ine, based on those facts, the conclusions that a reasonable person could draw from them . Our understanding in this connection com ports with prior case law addressing the concept of “discovery” in the fidelity bond context. See Resolution Trust Corp. v. Fidelity and Deposit Co. of Mary land, 20 5 F.3d 615, 630 3d Cir. 20 0 0 ) (citing United States Fidelity & Guar. Co. v. Em pire State Bank, 448 F.2d 360 , 365 (8th Cir. 1971)). This definition requires “m ore than m ere suspicions of em ployee dishonesty or fraud” See id. (citing Fidelity & Deposit Co. v. Hudson United Bank, 653 F.2d 766, 774 (3d Cir. 1981)). The Court of Appeals has also explained that the general prin ciple is that “the ‘discovery threshold is low.’” See id. at 631 (citing California Union Ins. Co. v. Am erican Diversified Savs. Bank, 948 F.2d 948 F.2d 556, 564 (9th Cir. 1991)). What rem ains unclear is exactly what facts Alliance knew, and when. Without precise inform ation about those facts, Defendants ask m e to m ake a decision based on a proof of loss form . The policy itself does not m ake a statem ent in a proof of loss form determ inative of when a loss was discovered. At m ost, a proof of loss consists of statem ents that are evidence about the crucial issue. Depending on circum stances, 5 I also note briefly that one of Alliance’s argum ents is that the in surance policy contained am biguities, and any lack of clarity “m ust be construed against the insuran ce com pany. . . .” See Pl. Br. at 12. The language provided in the definition section of the Westfield policy, cited above, is clear, concise, and not am biguous. Id. (citing Am erican Surety Co. of N ew York v. Pauly , 170 U.S. 133, 144 (18 98)). 9 those statem ents m ay be m ore or less conclusive on the issue of when the loss was “discovered.” The policy’s broad definition of “discovered,” and the “low threshold” applied by the Third Circuit, m ake this a close call. Nevertheless, when considering only the inform ation properly before m e, and acknowledging m y obligation to construe the well pleaded facts in Plaintiff’s favor, it is at least reasonably possible that Alliance had no “m ore than m ere suspicions of em ployee dishonesty or fraud” until October 31, 20 12. See Resolution Trust Corp., 20 5 F.3d at 630 ; Fidelity & Deposit Co. 653 F.2d at 774. It seem s that Alliance was engaged in a com plex investigation that was not directed sim ply at ascertaining the am ount or details of a loss, but at trying to find out whether there was a “loss” at all, i.e., whether Fenkell had breached a fiduciary duty to Alliance. The opinion in Chesem ore v. Alliance Holdings, Inc., 8 86 F. Supp. 2d 10 0 7 (W.D. Wis. 20 12) detailed Fenkell’s wrongdoing in regard to the 20 0 7 Trachte transaction at som e length. Participants in the Trachte ESOP, who had their accounts spun off into a new ESOP, brought various legal claim s against, am ong others, Mr. Fenkell and Alliance Holdings, Inc. 6 whose actions they alleged ren dered their accounts worthless, in direct violation of the Em ployee Retirem ent Incom e Security Act. 7 The Honorable William M. Conley found that Fenkell and Alliance com m itted fiduciary violations 8 on a num ber of grounds 6 The Alliance ESOP was a “nom inal defendant” in the Chesem ore case. Chesem ore, 8 8 6 F. Supp. 2d 10 0 7 (caption). 7 This is a very cursory sum m ation of the Chesem ore case. The full facts of the case are sum m arized elsewhere in the opin ion. See Chesem ore, 8 86 F. Supp. 2d at 10 14-40 . 8 I sum m arize this section only to explain the inform ation available in 20 12 that m ight bear on the interpretation and application of the word “discovered” in the policy. This is not to suggest that I have m ade a determ ination about what effect the liability findings in Chesem ore m ight have in this litigation, or any other, for that m atter. 10 - Fenkell and Alliance breached their fiduciary duties of loyalty and care under ERISA § 40 4(a) to the ESOP by using the plaintiffs’ accounts for their own purposes. - Fenkell violated ERISA § 40 6(b) by dealing with plan assets in his own interest and receiving com pensation from a party dealing directly with the plan. - Alliance was liable as a co-fiduciary for Fenkell’s breaches under ERISA § 40 5(a) and for failing to m onitor Fenkell under ERISA § 40 4(a). - Equitable relief was appropriate against two other defendants for the fiduciary breaches of Alliance an d Fenkell pursuant to ERISA § 50 2(a)(3). See id. at 10 14. Plaintiffs state that “nothing was suspected prior to J uly or August of 20 12. . . .” See Pl. Br. at 10 . These “suspicions” arising in J uly or August of 20 12 coincide in tim e with the decision in Chesem ore, dated J uly 24, 20 12. The events of the Chesem ore litigation, on their face, have nothing to do with the events described in the com plaint in this case. This case concerns a schem e to funnel m oney to DBF, a com pany Fenkell controlled, through transactions with Stonehenge, a firm that had a contract with Alliance. Doc. No. 1, at 14-17. There are also allegations that Fenkell im properly donated ESOP funds to his children’s schools. Doc. No. 1, at 17. The Chesem ore litigation is not related to the events described in this com plaint. At best it appears the judgm ent in that case served as a stim ulus to conduct a thorough investigation of Fenkell’s dealings. That is not the sam e as discovering a loss. The one proof of loss form properly before m e does not conclusively establish when Alliance knew enough about these breaches of duty that a reasonable person would have concluded there was a covered loss. Alliance an d other plaintiffs filed an action against Fenkell and other defendants on May 1, 20 13 that alleges m uch of the wrongdoing that form s the basis of the claim for coverage in this case. See Barbie Spear, et al v. David B. Fenkell, et al, No. 13-cv11 0 2391, Doc. No. 1. Obviously plaintiffs had “discovered” the wrongdoing by May 1, 20 13. 9 But the October 30 , 20 14 filing date is well within the two-year period counted forward from May 1, 20 13. Westfield argues that the Alliance had counsel “actively representing their interest with respect to the instant claim s investigation.” Def. Br. at 8 . This representation extended from at least the J une 20 14 denial of the claim by Westfield 10 until Alliance finally filed a Writ of Sum m ons in state court. See id. at 8-9. Alliance “declin ed to file a one (1) page Writ of Sum m ons over the course of the next two (2) m onths through August 20 12 prior to the expiration of the suit lim itation.” Id. at 9. Indeed, Alliance did not file a suit until the October 30 , 20 14 date that m ight have been suggested in the property loss notice of October 31, 20 12. See Doc. No. 13-1, at 12. Alliance provides no explanation for the delay, other than opaque references to “very com plex” claim s. See Doc. No. 13-1, Exhibit 1, ¶ 9. This delay occurred even as it had apparently identified the am ount of loss to be between $ 1 m illion and $ 3 m illion. See id, Exhibit B. And the claim lingered even as the Chesem ore litigation continued in the Western District of Wisconsin, and the Spear v. Fenkell litigation continued in this court. These facts concededly paint a disconcerting picture. Nevertheless, whether Alliance was represented during the investigation, and whether it m ight have been prudent to file suit in advance of the earliest conceivable lim itations deadline, are not facts that are properly before m e. In the end I am constrained by the dearth of facts in the sources properly before m e. What Plaintiff knew about Fenkell’s breaches of fiduciary duty toward Alliance, 9 What is not clear (yet) is why the coverage action was not filed until J anuary 30 , 20 15, 20 m onths later. Doc. No. 1, at 4. 10 This denial reiterated the tim e period for filing a com plaint again st Westfield. See Def. 12 and when Alliance knew it, are the facts that control the date of discovery, under the definition in the policy. At least as far as I can tell now, the covered event in this case was a sprawling, difficult to detect breach of ERISA fiduciary duty. This was not an em ployee who stole a diam ond necklace an d an insured waiting on an appraisal before filing a proof of loss. Here, the em ployer did n ot even know if wrongdoing had occurred until a com plicated investigation took place. I cannot find that m ere suspicion constituted “discovery,” and I am n ot certain, at this stage, whether Alliance’s knowledge before October 31, 20 12 am ounted to m ore than that. I conclude that a m otion to dism iss on the pleadings is not appropriate. I will deny the Rule 12(c) m otion and direct the parties to contact m y cham bers at once to arrange a Rule 16 conference. At that conference I will discuss with counsel a lim ited period of discovery on the issue of exactly when Plaintiffs discovered their loss. BY THE COURT: s/ Richard A. Lloret_ _ _ _ _ _ _ _ _ _ _ _ _ RICHARD A. LLORET U.S. Magistrate J udge Br. at 10 . 13
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