Castellon-Vogel v. International Paper Company, A New York Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Martha A. Castellon-Vogel,

Plaintiff, Case No. 1:18-cv-00688

v. Judge Michael R. Barrett

International Paper Company,

Defendant.

ORDER

This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s

Complaint for Discrimination, Equal Pay, Wrongful Termination, and Declaratory

Judgment. (Doc. 7). Plaintiff filed a memorandum in opposition (Doc. 10), to which

Defendant replied (Doc. 11). For the reasons that follow, Defendant’s Motion to Dismiss

will be GRANTED.

I. BACKGROUND

On June 30, 2017, Defendant International Paper Company (“IP”) eliminated

Plaintiff Martha A. Castellon-Vogel’s job. (Complaint, Doc. 1 ¶ 5 at PageID 2). Plaintiff

had worked for Defendant as a full-time, salaried employee for almost twenty-eight

years. (Id. ¶ 4 at PageID 2). Plaintiff alleges that—based on her sex, national origin,

and age—Defendant discriminated against her by treating others more favorably,

specifically in regard to wages, opportunities, promotions, and disciplinary matters. (Id.

¶ 7 at PageID 2). Further, Plaintiff alleges that she was physically assaulted by a male

supervisor and pervasively harassed during her employment. (Id. ¶¶ 8, 9 at PageID 3).

Plaintiff claims that Defendant retaliated against her after she reported the assault to

Defendant. (Id. ¶ 9 at PageID 3).

During Plaintiff’s employment, Defendant established the International Paper

Company Salaried Employee Severance Plan (“Plan”), which is a welfare benefit plan

governed by ERISA. (Id. ¶¶ 12, 13 at PageID 3). Under the Plan, Plaintiff was eligible

for a termination allowance due to the termination of her job. (Id. ¶ 14 at PageID 3). To

receive this termination allowance, the Plan required Plaintiff to sign an agreement that

was “acceptable to the Company.” (Id. ¶ 15 at PageID 3–4). This agreement was a

Termination Agreement and Release (“Release”), which included a “General Release of

Claims” provision. (Id. ¶ 16 at PageID 4). This “General Release of Claims” provision

released Defendant from any legal claim, including claims brought under the Age

Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Equal

Pay Act, and ERISA. (Id. ¶ 16 at PageID 4, Release ¶ 7 at PageID 11–12). Plaintiff

was given twenty-one (21) days to sign the agreement. (Id. ¶ 18 at PageID 4).

Plaintiff’s counsel informed Defendant that Plaintiff’s eligibility for her termination

allowance under the Plan could not be conditioned on the signing of the Release,

because Plaintiff was already entitled to the Plan’s termination benefits pursuant to

ERISA. (Id. ¶ 17 at PageID 4). Nonetheless, Plaintiff signed the Release. (Id. ¶ 19 at

PageID 4). Plaintiff received—and apparently kept—the termination allowance. (Id. ¶¶

21, 26 at PageID 5).

In 2017, Plaintiff sued Defendant in this Court, seeking a declaration that the

Release was null, void, and unenforceable under ERISA and does not otherwise bar her

from bringing claims against Defendant for wrongful termination and discrimination.

See Castellon-Vogel v. Int’l Paper Co., No. 1:17-cv-00645, 2018 U.S. Dist. LEXIS

120040 at *6–7, 2018 WL 3462505 (S.D. Ohio July 18, 2018) (“Castellon-Vogel I”),

report and recommendation adopted, 2018 U.S. Dist. LEXIS 150581, 2018 WL 4216812

(S.D. Ohio Sept. 5, 2018). That civil action, however, was dismissed for lack of subject-

matter jurisdiction. 2018 U.S. Dist. LEXIS 120040, at *19–22. Specifically, the Court

found that Plaintiff lacked both constitutional and statutory standing under ERISA to

challenge the validity of the Release. Id. at *21–22. Plaintiff subsequently filed the

present action, which seeks the same declaration. (Doc. 1 ¶ 43 at PageID 8). Plaintiff

also has added claims for discrimination, retaliation, and “unequal payment” under

federal and state law.

II. LEGAL ANALYSIS

Defendant has moved to dismiss Plaintiff’s Complaint under Fed. R. Civ. P.

12(b)(1) and 12(b)(6). "A motion to dismiss based on Rule 12(b)(1) for lack of subject

matter jurisdiction must be considered before a motion brought under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted." Pritchard v. Dent Wizard Int'l

Corp., 210 F.R.D. 591, 592 (S.D. Ohio 2002) (citing Moir v. Greater Cleveland Reg’l

Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (if court lacks subject-matter

jurisdiction, Rule 12(b)(6) motion becomes moot)). Accordingly, the Court will begin

with Defendant’s Rule 12(b)(1) challenge to Plaintiff’s request for a declaratory

judgment concerning the validity of the Release.

A. This Court lacks subject-matter jurisdiction to hear Plaintiff’s request

for a declaratory judgment concerning the validity of the Release under

ERISA.

1. Plaintiff bears the burden to establish subject-matter

jurisdiction.

Fed. R. Civ. P. 12(b)(1) provides that an action may be dismissed for “lack of

subject-matter jurisdiction.” The plaintiff bears the burden of proving jurisdiction when

challenged by a Rule 12(b)(1) motion. Moir, 895 F.2d at 269 (citing Rogers v. Stratton

Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)). "[T]he plaintiff must show that the

complaint alleges a claim under federal law, and that the claim is substantial." Mich. S.

R.R. Co. v. Branch & St. Joseph Cntys. Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th

Cir. 2002) (internal quotations omitted) (quoting Musson Theatrical, Inc. v. Fed. Express

Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)). "The plaintiff will survive the motion to

dismiss by showing 'any arguable basis in law' for the claims set forth in the

complaint." Id. (quoting Musson Theatrical, 89 F.3d at 1248).

Here, Plaintiff seeks a declaratory judgment (see Complaint, Doc. 1 ¶¶ 39–43

(Count Two) at PageID 7–8), which is governed by the Declaratory Judgment Act, 28

U.S.C. § 2201. The Act authorizes a court to declare the rights and legal relations of

interested parties for cases over which there is an independent basis of jurisdiction.

NGS Am. Inc. v. Jefferson, 218 F.3d 519, 523–24 (6th Cir. 2000) (citing 28 U.S.C. §

2201(a)). That is to say, the Act itself is not an independent basis for subject-matter

jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671–72 (1950).

Accordingly, Plaintiff must establish some independent basis for subject-matter

jurisdiction before this Court may issue a declaratory judgment about the rights and

legal relations between Plaintiff and Defendant.

2. Plaintiff is precluded from relitigating this Court’s prior

determination that she lacks statutory standing to

challenge the validity of the Release under ERISA.

Standing is necessary to the exercise of jurisdiction and is the “threshold

question . . . [that] determin[es] the power of the court to entertain the suit.” Warth v.

Seldin, 422 U.S. 490, 498 (1975). A plaintiff must demonstrate standing for each claim

that is brought. Hagy v. Demers & Adams, 882 F.3d 616, 620 (6th Cir. 2018) (citing

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). If the plaintiff fails to

establish standing, a court must dismiss the complaint for lack of subject-matter

jurisdiction. Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017).

To demonstrate standing, a plaintiff must satisfy both a constitutional and a

statutory component. Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 581 (6th Cir.

2016). Statutory standing is satisfied when the plaintiff “has a cause of action under the

statute.” Id. (quoting Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352,

359 (2d Cir. 2016) (citing Lexmark Int’l Inc. v. Static Control Components, Inc., 572 U.S.

118, 125–26)). Constitutional standing requires the plaintiff to have suffered an injury-

in-fact that is fairly traceable to the defendant’s action and is able to be redressed by a

favorable decision. Soehnlen, 844 F.3d at 581.

As previously noted, in Castellon-Vogel I this Court dismissed Plaintiff’s

complaint for lack of subject-matter jurisdiction because she lacked both constitutional

and statutory standing. 2018 U.S. Dist. LEXIS 120040, at *19–22. First, Plaintiff lacked

statutory standing to challenge the validity of the Release under ERISA’s civil

enforcement provision, 29 U.S.C. § 1132(a)(1)(B), because she did not have a cause of

action under the ERISA statute. Id. at *19. Under ERISA, a plan “participant” is “any

employee or former employee . . . who is or may become eligible to receive a benefit of

any type from an employee benefit plan . . . or whose beneficiaries may be eligible to

receive any such benefit.” 29 U.S.C. § 1002(7). A “beneficiary” is “a person designated

by a participant, or by the terms of an employee benefit plan, who is or may become

entitled to a benefit thereunder.” Id. § 1002(8). The statute provides that a “participant”

or “beneficiary” can bring an action to “recover benefits due to [her] under the terms of

[the] plan, to enforce [her] rights under the terms of the plan, or to clarify [her] rights to

future benefits under the terms of the plan[.]” Id. § 1132 (a)(1)(B).

A “former employee” qualifies as a “participant” only if the former employee has

“a reasonable expectation of returning to covered employment” or a “colorable claim to

vested benefits.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989). A

“colorable claim to vested benefits” has been further defined as a “colorable claim that

(1) the person will ‘prevail in a suit for benefits, or that (2) eligibility requirements will be

fulfilled in the future.’” Swinney v. Gen. Motors Corp., 46 F.3d 512, 518 (6th Cir. 1995)

(quoting Firestone, 489 U.S. at 117–18). Employees cease to be “participants” under a

plan when they effectively terminate all their rights under the plan. Swinney, 46 F.3d at

518. Former employees are no longer “participants” if they have accepted all the

payment that is due to them in a lump sum. Id. (quoting Teagardener v. Republic-

Franklin Inc. Pension Plan, 909 F.2d 947, 952 (6th Cir. 1990)). An exception to the

general rule applies if an employee gives up her right to benefits or fails to participate in

the plan “because of the employer’s breach of fiduciary duty.” Swinney, 46 F.3d at 518.

“Otherwise, a fiduciary could defeat an employee’s standing to bring an ERISA action

by duping [her] into giving up [her] right to participate in a plan.” Id.

The Court in Castellon-Vogel I held that Plaintiff—a former employee—did not

meet the definition of either a “participant” or a “beneficiary” because she had already

received everything due to her under the plan. Id. at *16–17. Also, Plaintiff had no

reasonable expectation of returning to employment with Defendant based on the

agreement she signed. Id. at *16 (“Plaintiff agreed when she signed the Termination

Agreement that her employment relationship with IP was ‘permanently terminated’ as of

that date, and she agreed ‘not to apply for or otherwise seek employment with [IP] in

any capacity’ in the future”). And, because the exception regarding breach of fiduciary

duty did not apply, this Court held that Plaintiff had no cause of action under the ERISA

statute and thus no statutory standing. Id. at *18-19 (“The statutory component of the

‘actual controversy’ requirement1 is not satisfied here”).

The Court in Castellon-Vogel I also found that Plaintiff lacked constitutional

standing because she claimed only a conjectural—and not an actual—injury. 2018 U.S.

Dist. LEXIS 120040, at *21. For her injury to “materialize,” Plaintiff would need to file a

1 The Declaratory Judgment Act states in part:

“In a case of actual controversy within its jurisdiction, . . . any court of the United

States, upon the filing of an appropriate pleading, may declare the rights and

other legal relations of any interested party seeking such declaration, whether or

not further relief is or could be sought.”

28 U.S.C. § 2201(a) (emphasis added).

claim encompassed by the Release and, in turn, Defendant would have to raise the

Release as a defense to Plaintiff’s claim. Id.

“Issue preclusion, or collateral estoppel, bars subsequent relitigation of a fact or

issue where that fact or issue was necessarily adjudicated in a prior cause of action and

the same fact or issue is presented in a subsequent suit.” Cobbins v. Tenn. Dep’t of

Transp., 566 F.3d 582, 589 (6th Cir. 2009). In other words, “[w]hen an issue of fact or

law is actually litigated and determined by a valid and final judgment, and the

determination is essential to the judgment, the determination is conclusive in a

subsequent action between the parties, whether on the same or a different claim.” Id.

(quoting Restatement (Second) of Judgments § 27 (1982)).

Before issue preclusion, or collateral estoppel, can be applied to bar litigation of

an issue, four specific requirements must be met: (1) the precise issue must have been

raised and actually litigated in a prior proceeding; (2) the determination of the issue

must have been necessary to the outcome of the prior proceeding; (3) the prior

proceeding must have resulted in a final judgment on the merits; and (4) the party

against whom estoppel is sought must have had a full and fair opportunity to litigate the

issue in the prior proceeding. Cobbins, 566 F.3d at 589–90. Furthermore, in

determining whether defensive use of issue preclusion, or collateral estoppel, is

appropriate, the court must consider whether it would be “otherwise unfair under the

circumstances[.]” Id. at 590. All four requirements are met here.

First, the issue raised and litigated in Castellon-Vogel I is precisely the same as

the issue in the current proceeding. In Castellon-Vogel I, Plaintiff sought a declaration

that “the General Release of Claims in the Agreement is null and void, unenforceable

against [her], and does not otherwise bar her from pursuing her rights against

Defendant IP, including claims against it for wrongful termination and discrimination.”

2018 U.S. Dist. LEXIS, at *6–7. In the current case, Plaintiff seeks an identical

declaration. (Complaint, Doc. 1 ¶¶ 41, 43 at PageID 7, 8). It is true that Plaintiff has

since cured her constitutional standing defect. As forecasted by the Court, she has

added claims encompassed by the Release—discrimination, retaliation, unequal pay,

and wrongful termination—to her Complaint in the present action and Defendant has

raised the Release as a defense. Yet, critically, Plaintiff still lacks statutory standing,

because she is not a “participant” or “beneficiary” under ERISA. Plaintiff is reasserting

“the same claim with unchanged facts” to support her standing. See Hooker v. FEC, 21

F. App’x 402, 405 (6th Cir. 2001) (affirming dismissal of subsequent suit on the basis of

issue preclusion).

Second, the determination of Plaintiff’s standing was necessary to the outcome

of the prior case. A plaintiff’s standing must be established in every case. See

Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1419 (6th Cir. 1996)

(“Constitutional standing is always a threshold inquiry for us to make before asserting

jurisdiction over an appeal.”) (concurring opinion).

Third, the prior proceeding resulted in a final judgment on the merits. Plaintiff

contends that preclusion cannot apply because Castellon-Vogel I was dismissed for

lack of subject-matter jurisdiction; therefore, the dismissal was not based on the merits

and was without prejudice. (Doc. 10 at PageID 111). To support this contention,

Plaintiff cites Rogers v. Stratton Indus., Inc., 798 F.2d 913 (6th Cir. 1986). The court in

Rogers affirmed that Rule 12(b)(1) judgments normally are not dismissals on the merits

because a court that lacks jurisdiction cannot address the merits of a case. Id. at 917.

However, the court noted that when a plaintiff pursues a statutory right, and the court

finds that the plaintiff does not come “within the purview of the statute,” that finding is

the “death knell of the litigation and has the same effect as a dismissal on the merits.”

Id.

That is precisely the case here. In challenging the Release, Plaintiff is pursuing a

statutory right under ERISA. This Court in Castellon-Vogel I found that Plaintiff does not

come within the purview of ERISA—namely, she was not a “participant” or “beneficiary”

for purposes of the ERISA statute and therefore had no cause of action under ERISA.

Therefore, Castellon-Vogel I was the “death knell” for this and any subsequent litigation

and has the same effect as a dismissal on the merits.

Hooker likewise is instructive. There plaintiff claimed standing—both as a voter

and potential candidate—to challenge the constitutionality of out-of-state campaign

contributions, as he had in two previous lawsuits. 21 F. App’x at 404. In the first case,

pursuant to Rule 12(b)(1), the district court dismissed his suit with prejudice for lack of

standing. Id. In the second case, the district court found, based on the dismissal in the

first case, that plaintiff “was barred by issue preclusion on the issue of standing by the

prior judgment” and consequently dismissed the case. Id. Based on these two prior

dismissals, the district court held, in the third case, that plaintiff was precluded from

relitigating his challenge to out-of-state campaign contributions. Id. at 405. Relevant to

the third factor restated in Cobbins, the Hooker court observed that “[i]t is irrelevant that

the district court did not reach the underlying merits of Hooker’s suits in either Hooker I

or Hooker II, because the court reached the merits of the issue in question—namely,

whether the plaintiff had standing to sue in the case. Id. at 405 n.2.

Fourth, and finally, Plaintiff does not contend that she did not have a full and fair

opportunity in Castellon-Vogel I to litigate her standing issue. Nor could she, in light of

the Magistrate Judge’s well-reasoned and thorough Report and Recommendation that

subsequently was adopted by the presiding district judge.

The Court is satisfied that all requirements of issue preclusion, or collateral

estoppel, have been met, and further concludes that defensive use of it in this

circumstance is not unfair. Accordingly, Plaintiff may not relitigate the issue of whether

this Court has subject-matter jurisdiction over her request for a declaratory judgment. It

does not, meaning that Plaintiff cannot challenge the validity of the Release she signed

under ERISA.

B. Plaintiff’s discrimination, retaliation, unequal pay, and wrongful

termination claims are barred by the Release.2

1. Plaintiff’s federal law claims are waived, because the

language of the Release is clear and unmistakable.

“Federal law controls the validity of a release of a federal cause of action.”

Dotson v. Arkema, Inc., 397 F. App’x 191, 194 (6th Cir. 2010) (quoting Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1481 (6th Cir. 1989)); see also Staggs v. Ausdenmoore,

No. 92-3172, 1993 WL 131942, 1993 U.S. App. LEXIS 41533, at *4 (6th Cir. Apr. 27,

1993) (finding that a release that waives a right to sue under a federal statute is “a

question of federal law[]”) (citing Town of Newton v. Rumery, 480 U.S. 386 (1987)). To

be valid, a waiver of statutorily protected rights must be “clear and unmistakable.”

Dotson, 397 F. App’x at 194 (quoting Metro. Edison Co. v. NLRB, 460 U.S. 693, 708

(1983)).

In Dotson, the employees’ union signed a release that waived any claims relating

to violations of ERISA. Id. at 193–94. Because the waiver clearly and unmistakably

released the employer from such claims, on behalf of both the union and its members,

the Sixth Circuit confirmed the validity of the waiver vis-à-vis the employees. Id. at 194

2 The Court understands this portion of Defendant’s Motion to be brought pursuant to Fed. R. Civ. P.

12(b)(6), which allows a party to move to dismiss a complaint for “failure to state a claim upon which relief

can be granted.” On a Rule 12(b)(6) motion, a district court “may consider exhibits attached [to the

complaint], public records, items appearing in the record of the case and exhibits attached to defendant's

motion to dismiss so long as they are referred to in the complaint and are central to the claims contained

therein, without converting the motion to one for summary judgment.” Rondigo, L.L.C. v. Twp. of

Richmond, 641 F.3d 673, 681 (6th Cir. 2011) (internal quotation and citation omitted). The ability of the

court to consider supplementary documentation has limits, however, in that it must be “clear that there

exist no material disputed issues of fact concerning the relevance of the document.” Mediacom Se. LLC

v. BellSouth Telecomms., Inc., 672 F.3d 396, 400 (6th Cir. 2012) (internal quotation and citation omitted).

In this matter, the Release was attached to Plaintiff’s Complaint and there is obviously no dispute as to its

relevance.

(“Contrary to Plaintiffs’ argument, the Release clearly and unambiguously binds

individual bargaining unit employees, as well as the Union.”).

Here, Plaintiff does not allege that the language of the Release was unclear or

ambiguous. Indeed, it is not:

By signing this Agreement, you release IP from any claim of any

kind arising out of or related to your employment with IP, the

termination of your employment, or any matter or event occurring

up to the date you signed this Termination Agreement. You also

agree that, except as provided in Paragraph 8 below, you will not

file or be a party to any legal action, or claim against IP regarding

these claims.

This is a General Release and covers all claims under federal, state

or local law, whether based on statute or common law, that relate to

employment, including but not limited to, all federal, state, and local

discrimination laws, claims, charges, and legal actions under the

following:

• Age Discrimination in Employment Act (which prohibits age

discrimination in employment);

• Title VII of the Civil Rights Act of 1964, as amended (which

prohibits harassment or discrimination in employment

based on race, color, national origin, religion or sex);

• Equal Pay Act (which prohibits paying men and women

unequal pay for equal work;

. . . .

• Employee Retirement Income Security Act of 1974

(“ERISA”), including any claims for breach of fiduciary duty

under ERISA; and

• Any other federal, state or local laws, ordinances, or

regulations prohibiting employment discrimination or

regulating the terms and conditions of employment, . . .

This General Release also includes a release and waiver of any

claims for breach of express or implied contract, any claims, qui

tam or anti-retaliation provisions under any federal, state or local

statute or common law relating in any way to the employment

relationship, and any right to any recovery of money or any other

personal remedy. It applies both to claims that you know about and

to claims you do not know about.

This General Release does not release or waive any claims you

may have that arise after the date you sign this Agreement. It does

not apply to worker’s compensation or unemployment claims or any

other claim to the extent that those claims cannot be released or

waived according to applicable law.

(Complaint, Doc. 1, Release ¶ 7 at PageID 11–12 (emphasis in original)). The

language of the Release is clear and unmistakable. Thus, the Release is valid regarding

the waiver of any federal law claims.

2. Plaintiff’s state law claims are waived, because waiver

does not violate public policy and the Release includes

waivable claims.

Ohio law controls the efficacy of a release for purposes of Plaintiff’s state law

claims. AM Int’l, Inc. v. Int’l Forging Equip., 743 F. Supp. 525, 530 (N.D. Ohio 1990).

Under Ohio law, personal rights—both contractual and statutory—can be waived. Hank

v. Great Lakes Constr. Co., 790 F. App’x 690, 695 (6th Cir. 2019). Generally, waivers

will be upheld so long as they do not violate public policy or attempt to waive

nonwaivable claims. Id. “Accordingly, a release waiving the right to bring legal claims

‘is ordinarily an absolute bar to a later action on any claim encompassed within that

release.’” Id. (quoting Haller v. Borror Corp., 552 N.E.2d 207, 210 (Ohio 1990)).

In Hank, an employee signed a release, agreeing to not “pursue or file any sort of

claim” against his former employer. 709 F. App’x at 693. Later, the employee sued,

alleging, among other things, that he was terminated in violation of Ohio statutes

protecting against disability and age discrimination and worker’s compensation

retaliation. Id. But because he could not identify any public policy “declaring these

claims nonwaivable,” and because the court knew of none, the court found that the

waiver barred the employee’s claims. Id. at 693, 696.

Here, Plaintiff has not alleged that the Release violates any state public policy or

that the state law claims within the Release are not waivable. To the contrary, “[i]t is

well-established that a party can waive claims of discrimination under [Ohio Rev. Code]

4112.02 in a release.” Turner v. Salvagnini, No. CA2007-09-233, 2008 Ohio App.

LEXIS 3036, 2008 WL 2789290, 2008-Ohio-3596, ¶ 29 (Ohio App. July 21, 2008).

Therefore, the Release is valid regarding her state law claims.

C. Because Plaintiff’s federal unequal pay claims are barred by the

Release, the Court need not address whether her allegations in the

Complaint state a claim upon which relief can be granted.

As an alternative ground for dismissal, and specifically citing Rule 12(b)(6),

Defendant argues that Plaintiff has failed to allege sufficient facts in the Complaint to

state a federal claim for unequal pay based on her sex. (Doc. 7-1 at PageID 61–63;

Doc. 11 at PageID 123–25). Having already determined that the Release Plaintiff

signed is valid, the Court need not address this argument.

III. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. 7) is hereby

GRANTED. Plaintiff’s Complaint (Doc. 1) is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court