Zhang v. Dragon Capital Group, LLC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

DOCKET NO. 3:21-CV-00154-FDW-DSC

XUEJUN ZHANG, )

)

Plaintiff, )

)

vs. ) ORDER

)

DRAGON CAPITAL GROUP, LLC et al., )

)

Defendants. )

)

THIS MATTER is before the Court on Defendant Stephen L. Kirkland’s (“Kirkland”)

Motion to Dismiss, wherein Kirkland, proceeding pro se, moves this Court to dismiss Plaintiff’s

Complaint for lack of personal jurisdiction and improper venue pursuant to Rules 12(b)(2) and

12(b)(3) of the Federal Rules of Civil Procedure (Doc. No. 12). Plaintiff filed his Memorandum in

Opposition to Kirkland’s Motion (Doc. No. 13) on May 18, 2021, and, after the completion of

jurisdictional discovery, filed his Supplemental Memorandum in Opposition to Kirkland’s Motion

(Doc. No. 44) on October 21, 2021. Kirkland’s Motion is now ripe for review. For the reasons set

forth below, Kirkland’s Motion to Dismiss (Doc. No. 12) is DENIED.

I. BACKGROUND

Plaintiff, a resident of Mecklenburg County, North Carolina, filed this suit on April 9, 2021,

alleging claims of fraud, negligent misrepresentation, civil conspiracy, breach of fiduciary duty, and

piercing the corporate veil against several Defendants, including Kirkland. (Doc. No. 1). The

following background provides a summary of allegations and causes of actions as set forth in

Plaintiff’s Complaint, Kirkland’s Motion to Dismiss, and Plaintiff’s response briefs.

Although Kirkland is a citizen and resident of Georgia and has never resided in North Carolina

(Doc. No. 12, p. 2), Kirkland solicited and conducted the alleged foreign currency exchange

transactions (“Forex”) trading scheme with Defendant Alexander C. Cheng (“Cheng”), a resident of

Mecklenburg County, North Carolina (Doc. No. 1, p. 2), and Defendant FXTrade XH LP

(“FXTrade”), the limited partnership established between Plaintiff and Defendant Dragon Capital

Group, LLC (“Dragon”), of which Cheng is the principal, for almost two years. (Doc. No. 1, p. 7;

Doc. No. 13, p. 5). During such time, Kirkland extensively communicated with Cheng and was aware

of Plaintiff’s potential investment in Defendant Premier Investments & Financial Services Group,

LLC’s (“Premier”) Forex trade program. (Doc. No. 44, p. 3). Indeed, although Kirkland denies he

had access, custody, or control of or to Premier’s bank accounts, Kirkland appears to be Premier’s

sole manager, exercising complete domination and control of Premier. (Doc. No. 13, pp. 4-5).

On September 22, 2019, Kirkland provided Cheng a draft limited partnership agreement to be

used in the formation of FXTrade. Id. Kirkland was sent FXTrade’s information and registered

address in Charlotte, North Carolina on September 25, 2019. Id. Moreover, Kirkland met with

Plaintiff and Cheng at the 678 Korean BBQ Restaurant in Georgia on September 28, 2019, for the

purpose of soliciting Plaintiff’s investment. Id. at 4. Kirkland also held himself out as having “full

power of Attorney to act on behalf of Premier”, in order to induce Plaintiff’s investment, and actively

participated in the wire transfers of Plaintiff’s investment into and out of North Carolina banks. Id.

at 3-4. On October 3, 2019, Kirkland entered into a Trade Agreement on behalf of Premier, between

Premier and FXTrade. (Doc. No. 13, p. 5). From the time of Plaintiff’s initial investment with

FXTrade in September 2019 through June 2020, Plaintiff received regular communications from

Cheng, which Plaintiff believes were invented by Defendants, including Kirkland, purporting to show

steady profits on the funds Plaintiff invested. (Doc. No. 1, p. 10). Specifically, on December 15,

2019, Kirkland sent a notice misrepresenting the status of Premier’s investment fund directly to

FXTrade’s Charlotte mailing address. (Doc. No. 13, p. 5). Thereafter, on March 25, 2020, Kirkland

entered into a Collateralized Trade Funding Placement Agreement on behalf of Premier, between

Premier and Dragon, wherein Kirkland submitted Premier to the exclusive jurisdiction of

Mecklenburg County, North Carolina. Id. On June 17, 2020, after Plaintiff requested to withdraw a

portion of his investment, Kirkland emailed Cheng stating that if Plaintiff deposited more money with

Kirkland, Kirkland would “be able to provide a 2% hurdle rate… effect[ively] guarantee[ing] a 2%

minimum performance per month on all new deposits”. (Doc. No. 1, pp. 10-11). Finally, on August

17, 2020, Kirkland informed Plaintiff and Cheng that their investment with Premier had been

completely lost in March 2020 and has since failed to return any of Plaintiff’s investment. Id. at 11-

12.

II. STANDARD OF REVIEW

“When considering a motion to dismiss involving pro se parties, the court construes the

pleadings liberally to ensure that valid claims do not fail merely for lack of legal specificity.”

Brown v. Charlotte Rentals LLC, No. 3:15-cv-0043-FDW-DCK, 2015 WL 4557368, at *2

(W.D.N.C. July 28, 2015) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). At the

same time, however, the Court should not “assume the role of advocate for the pro se plaintiff.”

Gordon, 574 F.2d at 1151 (quotation omitted).

A. Personal Jurisdiction

When a challenge to personal jurisdiction is addressed only on the basis of motion papers,

supporting legal memoranda, and the relevant allegations of a complaint, “the burden on the

plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the

jurisdictional challenge.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Under those

circumstances, the court “must construe all relevant pleading allegations in the light most favorable

to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of

jurisdiction”. Id.

In cases where the defendant provides evidence which denies the facts essential for

jurisdiction, the plaintiff must present sufficient evidence to create a factual dispute on each

jurisdictional element which has been denied by the defendant and on which the defendant

presented evidence. Pinpoint IT Servs., L.L.C. v. Atlas IT Export Corp., 812 F. Supp. 2d 710,

716–17 (E.D.Va. July 13, 2011); Indus. Carbon Corp. v. Equity Auto & Equip. Leasing Corp., 737

F. Supp. 925, 926 (W.D.Va. 1990). If the existence of jurisdiction turns on disputed factual

questions, a court may resolve the challenge on the basis of an evidentiary hearing, or, when a

prima facie demonstration of personal jurisdiction has been made, it can proceed “as if it has

personal jurisdiction over this matter, although factual determinations to the contrary may be made

at trial”. Pinpoint IT, 812 F. Supp. 2d at 717 (citing 2 James Wm. Moore et al., Moore's Federal

Practice ¶ 12.31 (3d ed. 2011)). Regardless, the plaintiff must eventually prove the existence of

personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary

hearing. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n. 5 (4th

Cir. 2005).

The determination of whether jurisdiction is appropriate depends on the facts and

circumstances of each case. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478–79, 485–86

(1985). The court engages in a two-part inquiry when determining whether its exercise of personal

jurisdiction over a given defendant is proper. The first, or statutory, part requires the assertion of

personal jurisdiction under North Carolina's long-arm statute. The second, or constitutional, part

requires the exercise of personal jurisdiction comply with due process. Christian Sci. Bd. of Dirs.

of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). Courts have

historically construed North Carolina's long-arm statute to be coextensive with the Due Process

Clause. This construction collapses the statutory and constitutional requirements into a single

inquiry whether the non-resident defendant has such “minimum contacts” with the forum state that

exercising jurisdiction over it does not offend “traditional notions of fair play and substantial

justice.” See Nolan, 259 F.3d at 215 (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945)).

There are two types of long-arm jurisdiction over a defendant: general or specific.

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8 & 9 (1984). A court

may exercise general personal jurisdiction over defendants who have “continuous and systematic”

contacts with the forum state regardless of where the relevant conduct occurs. CFA Inst. v. Inst.

of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n. 15 (4th Cir. 2009). A court may exercise

specific personal jurisdiction, on the other hand, when the cause of action arises from or is related

to the defendant’s contacts with the forum. Cambridge Homes of N. Carolina, LP v. Hyundai

Const., Inc., 670 S.E.2d 290, 295 (N.C. App. 2008). The court considers several factors in deciding

whether specific jurisdiction exists, including: ““(1) the extent to which the defendant purposely

availed itself of the privilege of conducting activities in the State; (2) whether the plaintiff's claims

arise out of those activities directed at the State; and (3) whether the exercise of personal

jurisdiction would be constitutionally reasonable””. Id. (quoting Woods Intern., Inc. v. McRoy,

436 F. Supp. 2d 744, 748–49 (M.D.N.C. 2006)).

B. Venue

Venue is appropriate in “a judicial district in which any defendant resides, . . . in which a

substantial part of the events or omission giving rise to the claim occurred, or a substantial part of

property that is the subject of the action is situated”. 28 U.S.C. § 1391 (2016). Under Federal

Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss a complaint for improper

venue. When a 12(b)(3) motion to dismiss is filed, the plaintiff then bears the burden to “establish

that venue is proper in the judicial district in which the plaintiff has brought the action”. Plant

Genetic Systems, N.V. v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D.N.C.1996). If the court finds

venue to be improper, the court shall dismiss or, in the interest of justice, transfer the case to the

district or division in which the case could have been brought. 28 U.S.C. § 1406(a). “Whether

dismissal or transfer is appropriate lies within the sound discretion of the district court”. White v.

Wal-Mart Distribution Center, No. 3:08-cv-543-FDW, 2009 WL 275835, at *1 (W.D.N.C. Feb. 4,

2009) (citation omitted).

III. ANALYSIS

A. Personal Jurisdiction

In his Motion to Dismiss, Kirkland argues that this Court lacks both general and specific

personal jurisdiction over him. (Doc. No. 12, pp. 3-11). Kirkland asserts there is no general

jurisdiction because Kirkland is a citizen and resident of Georgia and has never resided in North

Carolina. Id. Kirkland also asserts there is no specific personal jurisdiction because he does not have

minimum contacts with North Carolina and the exercise of personal jurisdiction over Kirkland would

be unreasonable. Id. Because Plaintiff does not allege or argue this Court’s exercise of general

personal jurisdiction over Kirkland is appropriate, this analysis is limited to the issue of specific

personal jurisdiction.

i. Specific Personal Jurisdiction

First, the Court considers whether Kirkland has purposefully availed himself of the privilege

of conducting business in North Carolina. The Fourth Circuit Court of Appeals has identified eight

(8) non-exclusive factors to consider in determining whether a defendant has purposely availed

himself of the privilege of conducting business in a state: (1) whether the defendant maintained

offices or agents in the state; (2) whether the defendant maintained property in the state; (3)

whether the defendant reached into the state to solicit or initiate business; (4) whether the defendant

deliberately engaged in significant or long-term business activities in the state; (5) whether a

choice of law clause selects the law of the state; (6) whether the defendant made in-person contact

with a resident of the state regarding the business relationship; (7) whether the relevant contracts

required performance of duties in the state; and (8) the nature, quality, and extent of the parties’

communications about the business being transacted. Consulting Eng’rs Corp. v. Geometric Ltd.,

561 F.3d 273, 278 (4th Cir. 2009); Sneha Media & Entm’t, LLC v. Associated Broad Co., 911

F.3d 192, 198-99 (4th Cir. 2018).

In his Motion to Dismiss, Kirkland asserts he has not sought to provide any goods or services

to North Carolina, he operates his office from Georgia, he does not generate any revenues from North

Carolina, and his “limited involvement, in the alleged actions and/or omissions listed in the complaint

[were] strictly as a Georgia based individual operating under a Power of Attorney from Premier

Investments and Financial Services Group, LLC (Premier); which is a company organized and exiting

in the Commonwealth of Puerto Rico”. (Doc. No. 12, p. 3). Contradictory to Kirkland’s assertions,

however, Plaintiff’s Complaint, Kirkland’s responses to Jurisdictional Discovery, and Plaintiff’s

response briefs evidence that Kirkland purposefully availed himself of the privilege of conducting

business in North Carolina.

In this case, only two of the factors, the first and second, weigh against a finding of purposeful

availment because Kirkland does not, and did not, maintain offices or agents or maintain property in

the state of North Carolina. The remaining factors all support a finding that Kirkland purposefully

availed himself of the privilege of conducting business in the state.

For almost two years, Kirkland communicated with Plaintiff and Cheng, via text message, e-

mail, phone conversations, and in-person meetings for the purpose of soliciting and conducting an

alleged Forex trading scheme with FXTrade. (Doc. No. 13, p. 5; Doc. No. 44, p. 3). Kirkland

provided to Cheng the draft limited partnership agreement to be used in the formation of FXTrade,

met with Plaintiff and Cheng at 678 Korean BBQ Restaurant in Georgia on September 28, 2019, for

the purpose of soliciting Plaintiff’s investment, held himself out as having “full power [sic] of

Attorney to act on behalf of Premier” in order to induce Plaintiff’s investment, and actively

participated in the wire transfers of Plaintiff’s investment into and out of North Carolina banks. (Doc.

No. 13, pp. 4-5; Doc. No. 44, pp. 3-4). Moreover, from the time of Plaintiff’s initial investment with

FXTrade in September 2019 through June 2020, Plaintiff received regular communications from

Cheng, which Plaintiff believes were invented by Defendants, including Kirkland, purporting to show

steady profits on the funds Plaintiff Invested. (Doc. No. 1, p. 10). Notably, on December 15, 2019,

Kirkland sent a notice misrepresenting the status of Premier’s investment fund directly to FXTrade’s

Charlotte mailing address. (Doc. No. 13, p. 5). Further, on June 17, 2020, after Plaintiff requested to

withdraw a portion of his investment, Kirkland emailed Cheng stating that if Plaintiff deposited more

money with Kirkland, Kirkland would “be able to provide a 2% hurdle rate… effect[ively]

guarantee[ing] a 2% minimum performance per month on all new deposits”, again for the purposes

of soliciting Plaintiff’s investment. (Doc. No. 1, pp. 10-11).

Based on the foregoing, Kirkland undoubtedly reached into the state to solicit and initiate

business, deliberately engaged in significant and long-term business activities in the state, and made

in-person contact with residents of the state regarding the business relationship. Thus, the third,

fourth, and sixth factors support a finding of purposeful availment. Similarly, the eighth factor, the

nature, quality, and extent of the parties’ communications about the business being transacted, also

favors a finding that Kirkland purposefully availed himself of the privilege of conducting business in

North Carolina.

Moreover, on October 3, 2019, Kirkland entered into a Trade Agreement, on behalf of

Premier, between Premier and FXTrade (Doc. No. 13, p. 5), and thereafter, on March 25, 2020,

entered into a Collateralized Trade Funding Placement Agreement, on behalf of Premier, between

Premier and Dragon. Id. Both agreements contemplate the transfer and investment of North Carolina

funds with Premier and include notice provisions identifying FXTrade’s and Dragon’s notice

addresses in Charlotte, North Carolina. Although the Trade Agreement selects the laws of Nevada,

which the Court notes neither party discusses, the Collateralized Trade Funding Placement

Agreement’s choice of law provision selects the laws of North Carolina. (Doc. No. 1-11, pp. 4-5).

Further, Kirkland, as the authorized signer of Premier, irrevocably submitted Premier to the exclusive

jurisdiction of Mecklenburg County, North Carolina in the Collateralized Trade Funding Placement

Agreement. Id. Accordingly, the relevant contracts required performance of duties in North Carolina

and the Collateralized Trade Funding Placement Agreement’s choice of law selects the laws of the

state of North Carolina. Therefore, the fifth and seventh factors also support this Court’s exercise of

personal jurisdiction over Kirkland.

In his Motion to Dismiss, Kirkland cites Bell Helicopter Textron, Inc. v. Heliqwest Intern.

Ltd., 385 F.3d 1291, 1296 (10th Cir. 2004) (quoting Burger King, 471 U.S. at 475) as finding,

“th[e] requirement of ‘purposeful availment’ for purposes of specific jurisdiction precludes

personal jurisdiction as the result of ‘random, fortuitous, or attenuated contacts’”. The Court

agrees with the Tenth Circuit, and, based on the record, accordingly finds that Kirkland has

purposefully availed himself of the privileges of conducting business in the state of North Carolina,

as his significant contacts with North Carolina have been anything but random, fortuitous, or

attenuated.

Next, the Court examines whether Plaintiff’s claims arise from Kirkland’s activities within

North Carolina. The Court finds Plaintiff’s claims, which are based on Kirkland’s alleged fraud,

clearly arise from Kirkland’s extensive communications with Plaintiff and Cheng for the purpose of

soliciting Plaintiff’s investment and Kirkland’s participation in several transactions made in and out

of the State of North Carolina, including Kirkland’s failure to return such funds.

Finally, the Court considers whether the exercise of personal jurisdiction over Kirkland is

constitutionally reasonable. Based on Kirkland’s continuous communication with Plaintiff and

Cheng and Kirkland’s active participation in soliciting investment funds from Plaintiff, Kirkland

cannot reasonably argue that this Court’s exercise of personal jurisdiction over him was not

anticipated. See World-Wide Volkswagen Corp. v. Wooden, 444 U.S. 286, 297 (1980) (“the

foreseeability that is critical to due process analysis… is that the defendant’s conduct and connection

with the forum State are such that he should reasonably anticipate being haled into court there”).

Additionally, as principal of Premier, Kirkland has already agreed to the exclusive jurisdiction of

North Carolina’s courts in the Collateralized Trade Funding Agreement. See Doc. No. 1-11, pp. 4-5.

Accordingly, the Court finds its exercise of personal jurisdiction over Kirkland does not offend the

traditional notions of fair play and substantial justice and is constitutionally reasonable.

ii. Specific Jurisdiction Under the Conspiracy Theory

Plaintiff also asserts specific jurisdiction is appropriate here under the conspiracy theory.

(Doc. No. 13, pp. 9-10). Because the Court has already determined it has specific personal jurisdiction

over Kirkland, it is not necessary to determine whether the Court also has jurisdiction under the

conspiracy theory.

B. Venue

Kirkland also moves this Court to dismiss Plaintiff’s Complaint for improper venue pursuant

to Rule 12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1391. 28 U.S.C. § 1391(b)

permits a civil action to be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State

in which the district is located; (2) a judicial district in which a substantial part of the events

or omissions giving rise to the claim occurred, or a substantial part of property that is the

subject of the action is situated; or (3) if there is no district in which an action may otherwise

be brought as provided in this section, any judicial district in which any defendant is subject

to the court’s personal jurisdiction with respect to such action.

Where a plaintiff files an action in the wrong district, 28 U.S.C. § 1406(a) requires the court

to “dismiss, or if it be in the interest of justice, transfer such case to any district or division in which

it could have been brought”. The Court notes that Plaintiff has failed in both its initial Opposition

Memorandum (Doc. No. 13) and its Supplemental Opposition Memorandum (Doc. No. 44) to discuss

whether venue is proper under 28 U.S.C. § 1391; Plaintiff does, however, assert venue properly lies

in this Court, because “a substantial part of the events or omissions giving rise to the claims alleged

in [Plaintiff’s] Complain [sic] occurred and have a direct effect in this District” in his Complaint.

(Doc. No. 1, p. 2).

In support of his Motion, Kirkland asserts:

Venue is also improper under subsection (2), because a ‘substantial part of the events or

omissions giving rise to the claim’ did not occur in the District of North Carolina. Plaintiff is

arguing that venue is proper in North Carolina because it felt economic harm there. Case

action in North Carolina would impose a significant burden on Mr. Kirkland[.] Accordingly,

venue is not proper…

(Doc. No. 12, p. 12). For the reasons this Court determined it has personal jurisdiction over

Kirkland in this matter, the Court similarly agrees with Plaintiff regarding venue and finds that a

substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this district.

Accordingly, this Court finds that venue is proper under 28 U.S.C. § 1391(b)(2) and dismissal

based on improper venue is not appropriate.

Moreover, although Kirkland did not move the Court to transfer this case to another

district pursuant to 28 U.S.C. § 1406 or 28 U.S.C. § 1404, the Court nonetheless finds that the

interest of justice does not warrant transfer of this matter to a different venue. 28 U.S.C. § 1404

provides, in relevant part, that “[f]or the convenience of parties and witnesses, in the interest of

justice, a district court may transfer any civil action to any other district or division where it might

have been brought”. 28 U.S.C. § 1404(a).

To determine whether a case should be transferred for the convenience of parties,

witnesses, and in the interest of justice, this Court must exercise its own discretion and apply a

balancing test in deciding whether transfer is appropriate. Liesman v. Weisberg, 2018 WL

342691, *3 (W.D.N.C. 2018) (citing Jim Crockett Promotions, Inc. v. Action Media Grp., Inc.,

751 F. Supp. 93 (W.D.N.C. 1990)). The factors to be considered include:

1. The plaintiff’s initial choice of forum;

2. The residence of the parties;

3. The relative ease of access of proof;

4. The availability of compulsory process for attendance of witnesses and the

costs of obtaining attendance of willing witnesses;

5. The possibility of a view by the jury;

6. The enforceability of a judgment, if obtained;

7. The relative advantages and obstacles to a fair trial;

8. Other practical problems that make a trial easy, expeditious, and inexpensive;

9. The administrative difficulties of court congestion;

10. The interest in having localized controversies settled at home and the

appropriateness in having the trial of a diversity case in a forum that is at home

with state law that must govern the action; and

11. The avoidance of unnecessary problems with conflict of laws.

Id. The court must analyze the eleven factors based on quality, not just quantity, and, in most cases,

the plaintiff’s choice of forum should be given significant weight and should not be disturbed unless

the balance is strongly in favor of transfer. Id. (citing Collins v. Straight, Inc., 748 F.2d 916, 921 (4th

Cir. 1984)).

Here, four factors weigh heavily against transfer. The first factor, Plaintiff’s initial choice of

forum, clearly weighs against transfer because Plaintiff filed this action in the Western District of

North Carolina. (Doc. No. 1). The catch-all eighth factor, other practical problems that make a trial

easy, expeditious, and inexpensive, also weighs against transfer because this case involves several

parties, including Plaintiff, Cheng, FXTrade, and Dragon, who are all residents of, or have a principal

place of business in, Mecklenburg County, North Carolina. (Doc. No. 1, pp. 1-2). Thus, four of the

six named parties in this action reside or are doing business in Mecklenburg County, North Carolina.

Similarly, the third and fourth factors also weigh against transfer, as the availability of evidence and

witnesses will likely be more accessible and/or available where a majority of the parties reside.

Of the remaining seven factors, six factors favor neither party. The second factor, the

residence of the parties, favors neither party as Plaintiff resides in Mecklenburg County, North

Carolina (Doc. No. 1, p. 1), and Kirkland resides in the state of Georgia (Doc. No. 12, p. 2). Further,

Plaintiff and Kirkland have failed to argue why the fifth, seventh, ninth, tenth, and eleventh factors

would favor either party, and the Court sees no apparent reason why these factors would not be

neutral.

Finally, the sixth factor, the enforceability of a judgment, if obtained, appears to support

transfer because Kirkland resides in the state of Georgia. Id. Although this factor weighs in favor of

transfer, the Court cannot ignore the significant factors weighing against transfer of this case,

including Plaintiff’s initial choice of forum. Accordingly, the Court finds that transfer of this case is

not in the interest of justice and DENIES Defendant’s Motion to Dismiss (Doc. No. 12).

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendant Stephen L. Kirkland’s Motion to Dismiss

(Doc. No. 12) is DENIED.

IT IS SO ORDERED.

Signed: November 3, 2021

Frank D. Whitney ay

United States District Judge eye

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