The D.S. Brown Company v. White-Schiavone, JV

United States District Court

District of Massachusetts

)

The D.S. Brown Company, )

)

Plaintiff, )

)

v. )

) Civil Action Nos.

White-Schiavone, JV, et al. ) 19-30095-NMG

) 20-30043-NMG

Defendants. )

)

)

)

MEMORANDUM & ORDER

GORTON, J.

This case arises from a public works project whereby the

materials supplier, plaintiff The D.S. Brown Company, provided

the builder, defendant White-Schiavone, J.V. (“White-

Schiavone”), with a certain kind of concrete that purportedly

was defective. Plaintiff brings an assortment of state law

claims and a petition for declaratory judgment against White-

Schiavone, the general contractor, Huntsman International LLC,

the purported concrete manufacturer, and others (collectively

“defendants”) in this Court based upon diversity jurisdiction

under 28 U.S.C. § 1332.

Months after plaintiff brought this suit in federal court

(“the First Action”), White-Schiavone filed reciprocal claims

against The D.S. Brown Company in Massachusetts Superior Court

relating to the same subject matter (“the Second Action”).

Plaintiff subsequently removed the Second Action to the Western

Division of this Court, again invoking diversity jurisdiction.

That case has since been transferred to this Session. White-

Schiavone v. D.S. Brown Co., C.A. No. 20-30043-NMG (D. Mass.,

Mar. 9, 2020).

Pending in the First Action are a joint motion to dismiss

for failure to state a claim filed by White Schiavone, J.F.

White Contracting Co. (“J.F. White”) and Schiavone Construction

Co., LLC (“Schiavone”) (Docket No. 22), a motion to dismiss for

lack of subject matter jurisdiction, lack of personal

jurisdiction and failure to state a claim filed by Huntsman

International LLC (Docket No. 36), in which all other defendants

join (Docket No. 43) and a motion to consolidate the two pending

cases filed by plaintiff (Docket No. 62). Pending in the Second

Action is White-Schiavone’s motion to remand (Docket No. 30).

On October 7, 2020, this Court held a hearing in the First

Action on defendants’ motion to dismiss for lack of subject

matter jurisdiction.

For the reasons that follow, the Court will 1) deny

defendants’ motion to dismiss for lack of subject matter

jurisdiction, 2) deny White-Schiavone’s motion to remand and

3) allow plaintiff’s motion to consolidate. Having determined

that the Court has subject matter jurisdiction over this case,

the Court will address the remaining pending motions in a

separate Memorandum and Order.

I. Background

A. The Parties and the Facts

Plaintiff is a company that designs, manufactures and

supplies engineered products for the bridge and highway

industries. It purports to be incorporated in Ohio and to

maintain its principal place of business in North Baltimore,

Ohio. It has submitted multiple affidavits and documents to

support those contentions. Defendants rejoin, however, that

plaintiff is actually a Delaware corporation with its principal

place of business is in Buffalo, New York. Defendants have

submitted their own collection of affidavits and documents to

support their contentions.

Defendant White-Schiavone is a Massachusetts joint venture

that was awarded a construction contract by the Massachusetts

Department of Transportation (“MassDOT”) to replace the bridge

decking on the I-91 viaduct in Springfield, Massachusetts (“the

Project”). White-Schiavone is comprised of two joint venture

partners: 1) J.F. White Contracting Co., a Massachusetts

corporation with its principal place of business in

Massachusetts and 2) and Schiavone Construction Co., LLC, a

limited liability company with its principal place of business

in New York. Defendant Huntsman International LLC is a limited

liability company that manufacturers chemical products and has

its principal place of business in Houston, Texas. None of the

defendants purports to be a citizen of Ohio. They do, however,

contend that the sole member of Schiavone is a citizen of New

York and the sole member of Huntsman International LLC is a

citizen of Delaware. Plaintiff has not contested the

domiciliary of the defendants.

As part of the Project, White-Schiavone executed a

materials contract with the plaintiff corporation in or about

June, 2015, under which plaintiff agreed to supply White-

Schiavone with a certain kind of concrete called “delcrete,”

among other materials. The delcrete was used in the

installation of expansion joints under the I-91 viaduct bridge

deck. Plaintiff asserts that it did not itself manufacture the

delcrete but, instead, purchased it from Huntsman International

LLC which shipped it to plaintiff in Ohio in May, July and

August, 2017, after which plaintiff forwarded the product to

White-Schiavone in Massachusetts.

By mid-2017, White-Schiavone had received shipments of

delcrete from plaintiff and began using it to install the

expansion joints. Soon thereafter, however, White-Schiavone

reported to MassDOT that the delcrete was causing the expansion

joints to fail because it was crumbling, de-bonding and

separating from the bridge deck. It is unclear what caused the

failures. Plaintiff submits that the failures were caused by

White-Schiavone’s storage, handling or installation procedures

or by Huntsman’s manufacturing process.

In or about December, 2017, plaintiff began to supply

White-Schiavone with a different batch of delcrete (“delcrete

2”) which functioned properly. MassDOT, in response, directed

White-Schiavone to replace all previously installed expansion

joints with new joints using delcrete 2. Plaintiff asserts that

White-Schiavone subsequently threatened to file suit against it

for supplying defective delcrete, causing plaintiff to initiate

this action for declaratory judgment.

B. Jurisdiction

Plaintiff’s principal place of business and state of

incorporation are both disputed in this case. Plaintiff

maintains that it is both incorporated and has its principal

place of business in Ohio. Huntsman retorts that plaintiff is

also incorporated in Delaware and all defendants assert that its

principal place of business is in New York. Both sides have

proffered extrinsic evidence and made oral arguments with

respect to plaintiff’s domicile.

1. State of Incorporation

To support its contention that it is an Ohio corporation,

plaintiff has provided, inter alia, a declaration from its

accountant, Cynthia Casillo, in which she declares that

D.S. Brown is an Ohio corporation . . . [that] has

always filed its taxes in Ohio as an Ohio corporation.

Attached to Ms. Casillo’s declaration are various documents

including the company’s Articles of Incorporation filed in Ohio

in 2008.

Huntsman bases its disagreement upon, inter alia, an

“Application for Registration of a Foreign For Profit

Corporation” filed by “D.S.B. Operating Corp.,” plaintiff’s

former name, in Texas in 2008. The form denotes the company as

a Delaware corporation and uses the Employer Identification

Number (“EIN”) that was assigned to, and allegedly is still used

by, the plaintiff with respect to its Texas filings.1 Huntsman

asserts that The D.S. Brown Company was never dissolved in

Delaware and, therefore, continues to exist as a Delaware

corporation. Alternatively, Huntsman contends that the

plaintiff filed this lawsuit within the three-year period during

which a dissolved entity may still sue or be sued.

Plaintiff directly rebuts Huntsman’s contention by

providing a document that shows that “The D.S. Brown Company”

was incorporated in Delaware in 2008 but was “Forfeited” on

October 8, 2016. Furthermore, plaintiff asserts that, although

the two entities have the same name, they are completely

1 The Application also indicates that the entity’s principal

office is in North Baltimore, Ohio.

separate corporate entities. It explains that the corporate

plaintiff, formerly known as D.S.B. Operating Corp., purchased

the assets of The D.S. Brown Company, Delaware, in a distressed

asset sale in 2008. Plaintiff proffers affidavits to the effect

that it did not, in that sale or subsequently, purchase the

stock or affiliate with the Delaware entity in any way.

In reply, Huntsman submits, inter alia, the federal docket

sheet of a case in which “The D.S. Brown Company,” an Ohio

corporation, and “The D.S. Brown Company,” a Delaware

corporation, were both named as defendants and were both

represented by the same counsel.

2. Principal Place of Business

Plaintiff also submits affidavits and accompanying

documentation in support of its position that its principal

place of business is in North Baltimore, Ohio. It provides

several affidavits in both actions from its Vice President and

General Manager, Scott Jenkins, whose office is located in North

Baltimore, Ohio. In his first affidavit submitted in both the

First and Second Actions, Mr. Jenkins attests,

D.S. Brown’s headquarters has been located in North

Baltimore, Ohio for the entire time the facts and

circumstances described in Plaintiff’s complaint took

place. The actual direction, control, and

coordination of D.S. Brown is done from North

Baltimore, Ohio.

In another affidavit, Mr. Jenkins proclaims that nearly all of

his direct reports at The D.S. Brown Company are located in Ohio

and work out of Ohio offices. In a third affidavit, Mr. Jenkins

confirms that, from North Baltimore, Ohio, he is

responsible for the direction, control, and coordination of

D.S. Brown’s activities, including its profit and loss,

sales, operations, finance, legal matters, human resources,

and engineering.

In a separate affidavit, Jeffrey Watorek, the Vice

President, Treasurer and Secretary of Gibraltar Industries, Inc.

(“Gibraltar”) and the Treasurer of the plaintiff corporation,

confirms as true the statements made by Mr. Jenkins in his

affidavits. Gibraltar is the parent of the plaintiff

corporation.

Defendants have provided contradictory public filings in

which “The D.S. Brown Company” lists Buffalo, NY as its

principal office. Some of those filings show the names of

corporate officers most of whose office locations are listed as

Buffalo, New York. Defendants also note that the affidavits of

Mr. Jenkins are written in the present tense and, therefore,

disclose nothing about the status of The D.S. Brown Company when

it filed the First Action.

In response to defendants’ submissions, Mr. Watorek, whose

office is in Buffalo, New York, explains first that, as the

Treasurer of the parent, Gibraltar, he serves as the Treasurer

of many of the company’s North American subsidiaries, one of

which is The D.S. Brown Company, but he is not responsible “for

the operations, activities or business and strategic plans of

D.S. Brown OH.” Second, Mr. Watorek attests that, although The

D.S. Brown Company is required to report certain compliance and

finance information to the Gibraltar officers who are located in

Buffalo, New York, the New York office is merely a mailing

address for The D.S. Brown Company. He adds that the plaintiff

corporation is a wholly-owned subsidiary of Gibraltar.

C. Procedural History

The procedural history in this case is convoluted. It

begins on July 2, 2019, when plaintiff commenced this action in

the Western Division of this Court against White-Schiavone and

Huntsman Corporation (not Huntsman International LLC). Soon

thereafter, plaintiff filed its First Amended Complaint as of

right, adding J.F. White and Schiavone as defendants. In

November, 2019, plaintiff was granted leave to file a Second

Amended Complaint (“SAC”) to replace Huntsman Corporation with

Huntsman International LLC (”Huntsman”), the proper defendant.

In all three complaints, plaintiff has insisted that federal

diversity jurisdiction is available because the amount in

controversy exceeds $75,000 and complete diversity exists.

Relying on this Court’s diversity jurisdiction, plaintiff

alleges eight counts. Count I seeks a declaratory judgment to

determine the contractual responsibilities of each party in

connection with the purportedly defective delcrete. Counts II

through VIII are brought against Huntsman, asserting that it

supplied plaintiff with defective delcrete and, as a result,

breached its implied warranty of merchantability (II); was

grossly negligent (III); breached its contract (IV); was

negligent (V); must, under common law indemnification

principles, indemnify plaintiff (VI); breached its implied

warranty of fitness (VII); and violated M.G.L. c. 93A, §§ 2 and

11 (VIII).

Defendants have filed motions to dismiss the SAC in its

entirety. White-Schiavone and its joint venture partners move

to dismiss the SAC for failure to state a claim, whereas

Huntsman moves to dismiss the SAC for lack of subject matter

jurisdiction, lack of personal jurisdiction and failure to state

a claim. White-Schiavone and its partners have joined

Huntsman’s motion to dismiss.

On the same day Huntsman filed its motion to dismiss, it

also filed a complaint in Texas state court against plaintiff,

seeking a declaratory judgment in connection with the defective

delcrete. See Huntsman International LLC v. D.S. Brown Co., No

19-11-14861 (Co. Ct., Montgomery County, Tex. Nov. 1, 2019).

Soon thereafter, White-Schiavone filed a complaint against

The D.S. Brown Company in the Massachusetts Superior Court, see

White-Schiavone, JV v. The D.S. Brown Co., No. 19-3663 (Mass.

Super. Ct., Nov. 21, 2019), alleging breach of contract (Count

I); breach of warranties and guarantees (Count II); contractual

indemnification (Count III); breach of the covenant of good

faith and fair dealing (Count IV) and violation of M.G.L. c. 93A

(Count V). In response, The D.S. Brown Company removed the case

to the Western Division of this Court and filed a counterclaim

and third-party complaint against White-Schiavone, J.F. White,

Schiavone and Huntsman, asserting the same claims as those in

its complaint in the First Action.

A few weeks after that removal, plaintiff moved to

consolidate the two cases pending in federal court.

Simultaneously, White-Schiavone filed a motion to transfer both

cases to the Eastern Division of the District of Massachusetts.

The motion to transfer was allowed on April 17, 2020, bringing

both cases to this Session of this Court. A week later, White-

Schiavone filed a motion to remand its case to the Massachusetts

Superior Court, arguing a lack of diversity jurisdiction.

On October 7, 2020, this Court held a hearing on

defendants’ motion to dismiss for lack of subject matter

jurisdiction to explore the parties’ contentions as to the

domicile of the plaintiff corporation. Unpersuaded by the

arguments at the hearing, the Court directed the parties to

submit supplemental memoranda in support of their jurisdictional

allegations which have now been received and considered by the

Court.

II. Motions to Dismiss for Lack of Subject Matter Jurisdiction

and to Remand

A. Legal Standard

Federal courts have limited subject matter jurisdiction and

must be specifically authorized to decide a case. Gonzalex-

Cancel v. Progresista, 696 F.3d 115, 119 (1st Cir. 2012). A

federal court that lacks jurisdiction, therefore, must dismiss

the case. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

A party faced with a motion to dismiss for lack of subject

matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or a

motion to remand pursuant to 28 U.S.C. § 1447(c) bears the

burden of establishing the court’s jurisdiction over the case.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);

see also 28 U.S.C. § 1446. If the motion mounts a “sufficiency

challenge”, the court will assess the sufficiency of the

jurisdictional allegations by construing the complaint

liberally, treating all well-pled facts as true and drawing all

reasonable inferences in the nonmoving party’s favor. Valentin

v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). If,

however, the motion advances a “factual challenge” by

controverting the accuracy, rather than sufficiency, of the

alleged jurisdictional facts, the nonmoving party’s

“jurisdictional averments are entitled to no presumptive weight”

and the court will consider the allegations of both parties to

resolve the factual disputes. Id. The court has “broad

authority” in conducting the inquiry and can, in its discretion,

order discovery, consider extrinsic evidence or hold evidentiary

hearings in determining its own jurisdiction. Id. at 363–64.

A party can establish subject matter jurisdiction by

establishing federal diversity jurisdiction. See 28 U.S.C. §

1332(a)(1); Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010).

Diversity jurisdiction is available in cases arising between

citizens of different states in which the amount in controversy

exceeds $75,000. § 1332(a)(1). It “requires complete diversity

between the plaintiffs and the defendants in the action” at the

time the complaint is filed. Picciotto v. Cont’l Cas. Co., 512

F.3d 9, 17 (1st Cir. 2008) (emphasis in original); Valentin, 254

F.3d at 361. For purposes of diversity jurisdiction, a

corporation is a citizen of every state and foreign state in

which it is incorporated and the one state or foreign state in

which it maintains its principal place of business. §

1332(c)(1); Hertz Corp., 559 U.S. at 93.

Here, plaintiff submits, and defendants do not contest,

that the amount in controversy exceeds $75,000. The parties do

contest, however, whether there is complete diversity.

1. State of Incorporation

As it relates to an entity’s state of incorporation, the

diversity statute provides that a corporation is “a citizen of

every State . . . by which it has been incorporated.” 28 U.S.C.

§ 1332(c)(1) (emphasis added). The statute’s use of the word

“every” can be read to treat a corporation that is incorporated

in more than one state as a citizen of each of those states. See

H.R. Rep. No. 112-10 § 102, at 10 (2011) (revising “the wording

of paragraph 1332(c)(1) so that a corporation shall be deemed a

citizen of ‘every state and foreign state by which it has been

incorporated,’ instead of ‘any State . . .’” (emphasis added));

Coal City Cob Co. v. Palm Enterprises, Inc., No. 3:18-cv-0123,

2018 WL 3475594, at *2-3 (N.D. Tex. July 18, 2018) (“a

corporation is indeed a citizen of every state in which it is

incorporated for purposes of diversity jurisdiction”); see also

Seavey v. Boston & Maine R.R., 197 F.2d 485 (1st Cir. 1952).

The statute’s use of the present perfect tense “has been”

can be read to treat a corporation as a citizen of every state

in which it has ever been incorporated. See Colon v. Ashby, 314

F. Supp. 3d 116, 121 (D.D.C. 2018). That could include states

in which a company’s corporate status has since been dissolved,

especially when the applicable state law extends the life of a

corporation past dissolution for the purpose of prosecuting and

defending suits. See id.; Ripalda v. American Operations Corp,

977 F.2d 1464 (D.D.C. 1992) (finding that a Delaware corporation

remained a domiciliary there for three years after dissolution

because the applicable state law extends the life of Delaware

corporations “for the purpose of prosecuting and defending

suits” for three years (citing 8 Del. C. § 278)). Section 278

of the Delaware General Corporation Law does just that.

The current record presents a factual challenge as to

plaintiff’s state of incorporation, requiring this Court to

determine whether plaintiff is a citizen of both Ohio and

Delaware for diversity purposes. Because Huntsman is also a

citizen of Delaware, diversity would be destroyed if plaintiff

is deemed to have been incorporated there.

Having reviewed all written submissions and the oral

record, the Court is convinced, however, that plaintiff is an

Ohio corporation and not a Delaware corporation. First, the

Court is satisfied with the proof establishing that plaintiff

was incorporated in Ohio by virtue of its Articles of

Incorporation. Second, the Court is persuaded that the entity

by the identical name “The D.S. Brown Company” that was

incorporated in Delaware has no affiliation with the plaintiff

in this case. Plaintiff bought the assets of the Delaware

corporation at a distressed asset sale more than a decade ago

and then, confusingly, changed its name to that of the seller.

The documentary evidence submitted by Huntsman does not

prove an affiliation between the Delaware and Ohio corporations

which was effectively controverted by plaintiff.

Accordingly, the Court will not invoke the legal fiction

that would otherwise find the plaintiff incorporated in two

states for diversity purposes because it finds that plaintiff is

a separate and distinct entity from The D.S. Brown Company,

Delaware. Plaintiff does not, therefore, share a Delaware

domicile with Huntsman and diversity is not defeated on that

ground.

2. Principal place of business

A corporation maintains its principal place of business at

its “nerve center,” which is the location from which the

corporation’s “officers direct, control, and coordinate the

corporation’s activities.” Hertz Corp., 559 U.S. at 92–93. That

location will often

be the place where the corporation maintains its

headquarters—provided that the headquarters is the

actual center of direction, control, and coordination

. . . and not simply an office where the corporation

holds its board meetings.

Id. at 93. The nerve center will not necessarily be where “the

bulk of the business activities visible to the public” occurs,

but rather where the “top officers [who] direct those

activities” sit. Id. at 96; see also Harrison v. Granite Bay

Care, Inc., 811 F.3d 36, 41 (1st Cir. 2016) (defining “nerve

center” as “the place where the buck stops”).

Allegations related to a corporation’s nerve center must be

supported by “competent proof.” Hertz Corp., 559 U.S. at 96–97

Harrison, 811 F.3d at 40-41. Such proof must go beyond mere

“run-of-the-mill corporate filings,” Harrison, 811 F.3d at 41

(citing Hertz Corp., 559 U.S. at 97) or representations made in

“documents filed with a secretary of state that indicate the

location of corporate headquarters” because neither are binding

on the court. See Transp. & Storage Sol. Inc. v. KLT Indus.,

Inc., No. 13-cv-40137, 2014 WL 5320174, at *3 (D. Mass. Oct. 17,

2014).

The record in this case raises questions concerning who

directs, controls and coordinates plaintiff’s corporate

activities and where the corporate officers are actually

located. See Hertz Corp., 559 U.S. at 92–93. Defendants assert

that several officers do so from Buffalo, New York, causing

plaintiff to have the same domicile as Schiavone and White-

Schiavone and thus defeating diversity jurisdiction. Plaintiff

contends, to the contrary, that Scott Jenkins controls the

corporation from Ohio, a state in which no other party proclaims

to have as its domicile.

The Court finds that plaintiff has its principal place of

business in North Baltimore, Ohio because Scott Jenkins, as the

company’s Vice President, directs, controls and coordinates the

company’s activities from that location. Specifically, from

Ohio, he directs, controls and coordinates, the company’s

profit and loss, sales, operations, finance, legal matters,

human resources, and engineering.

Although defendants have submitted several public filings

that list Buffalo, New York as the principal office of The D.S.

Brown Company and the location in which many corporate officers

operate, the Court is not dissuaded. See Transp. & Storage Sol.,

2014 WL 5320174, at *3 (“[R]epresentations made in annual

reports or other documents filed with a secretary of state that

indicate the location of a corporate headquarters do not bind a

court for purposes of diversity jurisdiction.”). Mr. Watorek,

who serves as the Treasurer of both Gibraltar and the plaintiff

corporation, has credibly explained in an affidavit that

plaintiff reports certain financial and compliance information

to Gibraltar officers who are located in Buffalo, New York but

that those officers are not responsible “for the operations,

activities or business and strategic plans of D.S. Brown OH,” a

wholly-owned subsidiary. As far as plaintiff is concerned, the

Buffalo, New York office is just a mailing address. See Hertz

Corp., 599 U.S. at 97 (noting that the “nerve center” is “more

than a mail drop box”); see also Taber Partners, I v. Merit

Builders, Inc., 987 F.2d 57, 61 (1st Cir. 1993) (“[W]here there

is no evidence that the integrity of the corporate form has been

violated, the separate corporate identities of a parent and

subsidiary should be honored when determining either one’s

principal place of business.”).

Plaintiff has established that it has only an Ohio

domicile, rendering it diverse from all of the defendants.

Accordingly, the Court has diversity jurisdiction over this case

and will deny the motion to dismiss for lack of subject matter

jurisdiction filed by defendants in the First Action and the

motion to remand filed by White-Schiavone in the Second Action.

III. Motion to Consolidate

A. Legal Standard

Fed. R. Civ. P. 42(a) provides that that a federal court

can consolidate actions if they 1) are before the court,

2) involve a common party and 3) involve a common question of

law or fact. Seguro de Servicio de Salud de P.R. v. McAuto Sys.

Grp., Inc., 878 F.2d 5, 8 (1st Cir. 1989). When those

circumstances exist,

the trial court has broad discretion in weighing the costs

and benefits of consolidation to decide whether that

procedure is appropriate

and should allow it unless the party opposing it can establish

“demonstrable prejudice.” Id. (internal citations omitted).

Here, consolidation is appropriate because both the First

and Second Actions are before this Court (see C.A. Nos. 19-

30095-NMG & 20-30043-NMG), they involve the same parties and

involve common questions concerning the contractual

responsibilities of each party in connection with the

purportedly defective delcrete.

ORDER

In view of the foregoing, the Court rules as follows:

1) Defendants’ motion to dismiss for lack of subject matter

jurisdiction (part, but not all, of Docket No. 36 in Civil

Action No. 19-30095) is DENIED.

2) White-Schaivone’s motion to remand (Docket No. 30 in Civil

Action No. 20-30043) is DENIED.

3) The request of White-Schiavone for an Order from this Court

requiring The D.S. Brown Company to pay its fees and costs

associated with the preparation and filing of its motion

(Docket No. 30 in Civil Action No. 20-30043) is treated as

a motion and is DENIED.

4) The motion of The D.S. Brown Company to consolidate cases

(Docket No. 62 in Civil Action No. 19-30095) is ALLOWED.

White-Schiavone, JV v. The D.S. Brown Co., C.A. No. 20-

30043-NMG, is consolidated for all purposes under the lead

caption of The D.S. Brown Company v. White-Schiavone et al.,

C.A. No. 19-30095-NMG. All future pleadings and submissions in

both cases shall be filed in the first-filed case.

Pursuant to the Order of this Court entered on May 6, 2020

(Docket No. 37 in Civil Action No. 20-30043) and this Order, the

date for filing responsive pleadings to the Answer, Counterclaim

and Third-Party Complaint of The D.S. Brown Company (Docket No.

22) is extended until 21 days after the forthcoming ruling of

this Court on the remaining pending motions (Docket Nos. 22 and

36 in Civil Action No. 19-30095).

So ordered.

\s\ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated October 29, 2020.