Jennings v. Wolf

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RUSSEL “JOEY” JENNINGS, : Civil No. 3:20-CV-148

by and through his parents/guardians, :

Richard and Susan Jennings, et al., :

:

Plaintiffs, :

:

v. : (Magistrate Judge Carlson)

:

TOM WOLF, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

As we have previously noted,1 for the plaintiffs this has been an emotionally

fraught and protracted journey as they have endeavored to stave off the transfer of

their loved ones from one state facility to another as part of a consolidation of state

mental health facilities providing services to the profoundly disabled. The journey

for the plaintiffs has been long and laden with significant legal obstacles as they have

sought unprecedented and sweeping relief, the ability to dictate the location where

the state provides their family members with intensive care services. Moreover, the

1 Jennings by & through Jennings v. Wolf, No. 3:20-CV-148, 2022 WL 16635644,

at *1 (M.D. Pa. Nov. 2, 2022)

terrain of this lawsuit has shifted substantially over time, as the state has completed

the transfer of many of the putative plaintiffs, who previously resided at two state-

operated ICFs, White Haven Center and Polk Center, to other state facilities.

Throughout the travails of this litigation, the plaintiffs have been represented

by counsel who has pursued their interests with zeal, skill, and tenacity. That

commitment to these plaintiffs is illustrated in the motion currently pending before

the court, a second motion filed by plaintiffs’ counsel seeking to preliminarily enjoin

the on-going transfers of these individuals from Polk and White Haven to other

facilities. While we commend counsel for his commitment to his clients, we are

constrained to conclude that this motion, like the plaintiffs’ earlier motion for

preliminary injunction, does not met the exacting standards necessary for injunctive

relief.

This case, a class action lawsuit brought against the former Governor of

Pennsylvania and a number of state health officials, involves claims under the

Americans with Disabilities Act (“ADA”) regarding the continued placement of

profoundly intellectually disabled persons in state-operated Intermediate Care

Facilities (“ICFs”). The named plaintiffs and class members are intellectually

disabled individuals who currently reside in two state-operated ICFs, White Haven

Center and Polk Center. In 2019, the state made a decision to close these two ICFs

and transfer the remaining residents to either a community placement, a privately-

operated ICF, or one of the two remaining state-operated ICFs—Selinsgrove and

Ebensburg.

Thus, the plaintiffs filed this lawsuit, alleging that the closure of these

facilities and transfer of the remaining residents to other placements violates their

rights under the ADA to be housed in the least restrictive placement that meets their

medical needs. (Doc. 1). The class of plaintiffs consists of those who oppose the

closures and transfer to either a community placement, private ICF, or another state-

operated ICF. They also filed motions to certify the class and for preliminary

injunctive relief, requesting that this Court stay the closures of these facilities and

transfer of the residents while this litigation is pending. (Docs. 19, 81, 125). We

granted the plaintiffs’ motion to certify the class but denied the motions for

injunctive relief. (Docs. 160, 161). See Jennings by & through Jennings v. Wolf, No.

3:20-CV-148, 2022 WL 16635644, at *1 (M.D. Pa. Nov. 2, 2022.The plaintiffs filed

an interlocutory appeal of our order denying injunctive relief to the Court of Appeals,

which remains pending. (Doc. 167).

Thereafter, the plaintiffs filed a second motion for temporary restraining order

and preliminary injunction, which is now pending before the Court. (Doc. 171). In

this motion, the plaintiffs assert that since our order denying the first motion for

injunctive relief, many of the class members have been transferred out of White

Haven Center and Polk Center. They assert that there have been poor results

following these transfers, such as hospitalizations and deaths, due to the defendants’

deficient transition plans that have been rushed to meet what the plaintiffs

characterize as arbitrary and unrealistic deadlines. Moreover, among the other

concerns voiced by the plaintiffs is a concern that this controversy will become moot

if the defendants are successful in their efforts to transfer all of the residents out of

White Haven Center and Polk Center before this litigation comes to a close.

We understand and are sympathetic to the plaintiffs’ concerns voiced in the

instant motion. However, we are constrained to note the following: First, nothing in

the latest submissions, in our view, compels reconsideration of our finding that the

plaintiffs have not met the threshold requirement they must satisfy to obtain a

preliminary injunction by showing a substantial likelihood of success on the merits.

Since a likelihood of success on the merits is an essential prerequisite to a

preliminary injunction this shortcoming, by itself, defeats the instant motion.

Additionally we note that many of the concerns raised by the plaintiffs

regarding the health of the residents after transfers have actually occurred prior to

our November 2, 2022 order, and further, involve placements in community or group

home settings rather than the state ICFs in question. Moreover, the plaintiffs’

contention that the state’s projected savings of $21,000,000 is inaccurate or

somehow irrelevant is not supported by any evidence other than the declaration of a

previously undisclosed individual, William Harriger, who is the Chief Executive

Officer of Verland Foundation, which operates several privately-owned ICFs. Most

significantly, we note that the plaintiffs have provided us with no new evidence since

the preliminary injunction hearing and our November 2, 2022 order denying the

previous motion for preliminary injunction. Rather, this renewed motion appears to

assert the same facts and reasoning underlying the initial motion.

After consideration, and for the reasons set forth below, we will deny the

plaintiffs’ motion for injunctive relief.

II. Discussion

A. Preliminary Injunctions – The Legal Standard

Motions for preliminary injunctions are governed by Federal Rule of Civil

Procedure 65 and are judged by exacting legal standards. In order to obtain a

preliminary injunction, the moving party must show (1) a substantial likelihood of

success on the merits; (2) irreparable injury to the moving party if relief is not

granted; (3) that a balance of equities favors the movant’s request for injunctive

relief; and (4) that a preliminary injunction is in the public interest. Benisek v.

Lamone, 138 S. Ct. 1932, 1943-44 (2018) (quoting Winter v. Natural Resources

Defense Council, Inc., 555 U.S. 7, 24 (2008)). The first two elements are critical,

and are set forth in the conjunctive, as the Court of Appeals for the Third Circuit has

held that “[a] failure to show a likelihood of success or a failure to demonstrate

irreparable injury must necessarily result in the denial of a preliminary injunction.”

Instant Air Freight, Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)

(quoting In Re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137, 1143 (3d

Cir. 1982) (internal quotations omitted)). In this regard, it is well settled that:

The movant must, as a threshold matter, establish the two “most

critical” factors: likelihood of success on the merits and irreparable

harm. Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017).

Under the first factor, the movant must show that “it can win on the

merits.” Id. This showing must be “significantly better than negligible

but not necessarily more likely than not.” Id. The second factor carries

a slightly enhanced burden: the movant must establish that it is “more

likely than not” to suffer irreparable harm absent the requested

relief. Id. Only if these “gateway factors” are satisfied may the court

consider the third and fourth factors, which aim to balance the equities

by examining the potential for harm to others if relief is granted and

whether the public interest favors injunctive relief. Id. at 176, 179. The

court must then balance all four factors to determine, in its discretion,

whether the circumstances warrant injunctive relief. Id. at 179.

Camacho Lopez v. Lowe, 452 F. Supp. 3d 150, 157 (M.D. Pa. 2020).

In weighing these factors, we are cautioned that: “How strong a claim on the

merits is . . . depends on the balance of the harms: the more net harm an injunction

can prevent, the weaker the plaintiff's claim on the merits can be while still

supporting some preliminary relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 179

(3d Cir. 2017) (citations omitted). Ultimately, with respect to this threshold

preliminary injunction showing of a likelihood of success on the merits what is

called for is “a reasonable probability of eventual success.” Id., n. 3.

Further, a preliminary injunction is “never awarded as of right.” Benisek, 138

S. Ct. at 1943. Rather, when considering a motion for a preliminary injunction, we

are reminded that “a preliminary injunction is an extraordinary and drastic remedy,

one that should not be granted unless the movant, by a clear showing, carries the

burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting

11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp.

129–130 (2d ed. 1995)). As such, the Third Circuit has long observed that “upon an

application for a preliminary injunction to doubt is to deny.” Madison Square Garden

Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937).

Our assessment of a motion for preliminary injunction entails a threefold

analysis. First, we must draw legal conclusions regarding the viability of the

plaintiffs’ claims. We must then make factual determinations regarding the harms

that may result from the grant or denial of the injunction. Finally, we engage in an

exercise of sound discretion in deciding whether to issue some extraordinary form

of injunctive relief under the applicable law and facts. Each of these determinations,

in turn, is subject to a different standard of review on appeal. Thus, “[w]hen

reviewing a district court's [resolution] of a preliminary injunction, [the court of

appeals] review[s] the court's findings of fact for clear error, its conclusions of law

de novo, and the ultimate decision ... for an abuse of discretion.” Reilly, 858 F.3d at

176 (quoting Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir.

2010)).

B. To the Extent this Motion Requests Reconsideration of Our Prior

Ruling, the Motion will be Denied.

At the outset, we are constrained to note that the instant motion is cast more

as a motion for reconsideration than a motion for preliminary injunctive relief.

Indeed, the motion presents the same legal arguments and supporting facts as the

previous motion for injunctive relief, which we denied. Thus, to the extent the

plaintiffs are requesting that we reconsider our prior order denying injunctive relief,

this request will be denied.

The legal standards that govern motions to reconsider are both clear, and

clearly compelling. “The purpose of a motion for reconsideration is to correct

manifest errors of law or fact or to present newly discovered evidence." Harsco Corp.

v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Typically, such a motion should only

be granted in three, narrowly defined circumstances: where there is either “(1) [an]

intervening change in controlling law, (2) availability of new evidence not

previously available, or (3) need to correct a clear error of law or prevent manifest

injustice.” Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D. Pa. 1992). As

the United States Court of Appeals for the Third Circuit has aptly observed:

“The purpose of a motion for reconsideration ... is to correct manifest

errors of law or fact or to present newly discovered evidence.” Max's

Seafood Café, 176 F.3d at 677 (quoting Harsco Corp. v. Zlotnicki, 779

F.2d 906, 909 (3d Cir.1985)). “Accordingly, a judgment may be altered

or amended if the party seeking reconsideration shows at least one of

the following grounds: (1) an intervening change in the controlling law;

(2) the availability of new evidence that was not available when the

court granted the motion for summary judgment; or (3) the need to

correct a clear error of law or fact or to prevent manifest injustice.” Id.

(citation omitted).

Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251

(3d Cir. 2010).

Thus, it is well settled that a mere disagreement with the court does not

translate into the type of clear error of law which justifies reconsideration of a ruling.

Dodge, 796 F.Supp. at 830. Furthermore, “[b]ecause federal courts have a strong

interest in the finality of judgments, motions for reconsideration should be granted

sparingly.” Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937,

943 (E.D. Pa. 1995). Moreover, it is evident that a motion for reconsideration is not

a tool to re-litigate and reargue issues which have already been considered and

disposed of by the court. Dodge, 796 F.Supp. at 830. Rather, such a motion is

appropriate only where the court has misunderstood a party or where there has been

a significant change in law or facts since the court originally ruled on that issue. See

Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.

1983).

Here, the plaintiffs first assert that the Court’s reliance on several factual

findings was in error. On this score, the plaintiffs challenge our findings regarding

the state’s projected savings from the closure of these two facilities. However, the

plaintiffs do not present any new evidence that was not previously available with

respect to these findings. With respect to the state’s projected cost savings, the

plaintiffs present a declaration of a previously undisclosed individual, Mr. Harriger,

who opines that he is skeptical of the state’s projected $21,000,000 savings. (Doc.

171-1). As the defendants point out, there is no indication that Mr. Harriger is

qualified to conduct an independent review and opine on the state’s budgetary

projections. Moreover, the skepticism voiced by Mr. Harriger does not negate our

findings that the closure of Polk Center and White Haven Center, as described by

Ms. Ahrens at the preliminary injunction hearing, would yield significant savings

that would by statute be used for the benefit of the entire the intellectually disabled

community through the state. At this juncture, the plaintiffs have presented no new

evidence with respect to the state’s projected savings, which we relied upon, in part,

in denying injunctive relief.

Nor have they presented an intervening change in the controlling law since

our November 2, 2022 order. Rather, the plaintiffs merely recast their obverse-

Olmstead2 claim as a straightforward Olmstead claim, arguing that Olmstead

2 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).

protects their right to be housed in the least restrictive setting, which they claim are

the ICFs at Polk Center and White Haven Center. We do not dispute this general

proposition but continue to agree with the rising tide of caselaw which holds that

this broad principle does not confer upon the plaintiffs the ability to dictate the

precise manner in which the state must provide these services. As we found in our

previous decision denying injunctive relief,

Nor can Olmstead and its progeny be read to confer a right upon the

plaintiffs to command this course of action by the state. Quite the

contrary, while Olmstead allowed disabled persons a limited degree of

autonomy in determining the level of their care, subject to the exercise

of medical judgment and reasonable practical constraints, Olmstead

simply does not give any individual the right to dictate where they

would receive this care or require the state to maintain the facility of

their choice in the face of other comparable, available care options.

Moreover, a rising tide of case law has rejected the arguments advanced

here and refused to enjoin states from closing institutions and

transferring persons to other comparable facilities. See e.g., Ricci, 544

F.3d 8 (denying request to reopen consent decree to enjoin state

transfers of residents from one state facility to another as part of a

closure plan); Lane, 2014 WL 2807701, at *3 (“[N]either the ADA nor

the Rehabilitation Act creates a right to remain in the program or

facility of one’s choosing”); D.T, 2017 WL 2590137, at *7-8 (denying

a preliminary injunction and holding that the plaintiffs were not likely

to succeed on their claim that the closure of an ICF and placement of a

resident into a community setting “would violate the integration

mandate of the ADA and Rehabilitation Act and result in unlawful

discrimination”).

(Doc. 160, at 61-62). This finding constitutes the law of the case,3 and the plaintiffs

have not provided intervening caselaw or new evidence showing that there are

unusual circumstances present which would allow this issue to be relitigated.

Finally, while we remain sympathetic to the plaintiffs’ concerns we discern

no clear error of law in our November 2, 2022 decision denying preliminary

injunctive relief which would constitute grounds for reconsideration of our decision.

Rather, as we will discuss below, the plaintiffs failed to meet and remain unable to

meet the stringent standard for injunctive relief in this setting, and as such, the instant

motion will be denied.

C. The Motion for Preliminary Injunction will be Denied.

As we have noted, the plaintiffs have filed this renewed motion for

preliminary injunctive relief, requesting that we halt any remaining transfers of the

plaintiffs and class members who oppose the transfer until a full merits trial can be

conducted in this case. However, as we will discuss, the plaintiffs have not met the

exacting showing for preliminary injunctive relief at this time.

As with the plaintiffs’ first motion for injunctive relief, we find that the

plaintiffs have failed to meet Rule 65’s threshold requirement that the movants show

3 The law of the case doctrine dictates that “once an issue is decided, it will not be

relitigated in the same case, except in unusual circumstances.” Hayman Cash

Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1981) (internal citations and

quotations omitted).

a substantial likelihood of success on the merits. To clear this hurdle the plaintiffs

must show “a reasonable probability of eventual success.” Reilly, 858 F.3d at 179 n.

3. As we recognized in our prior decision, the relief that the plaintiffs request is

unprecedented. The plaintiffs are asking the Court to stay the transfers of the

remaining individuals who oppose the closures of White Haven Center and Polk

Center, thereby effectively staying the closure of these facilities. This we cannot do.

As we have noted, the plaintiffs contend that Olmstead confers a right upon

the plaintiffs to choose the specific facility that they believe is the least restrictive

environment that meets their needs. However, the plaintiffs continue to

misunderstand the rights protected by Olmstead. On this score, the Supreme Court

in Olmstead held that continued placement in an institutional setting, when such

placement is medically unjustified, constitutes disability discrimination in violation

of the ADA. Olmstead, 527 U.S. at 597. The plaintiffs, then, urge us to read

Olmstead as conferring a right to the plaintiffs to remain in the institution of their

choosing. As we previously found, and as is the law of the case, Olmstead confers

no such right, and this contention has been rejected by several federal circuit and

district courts. See e.g., Ricci v. Patrick, 544 F.3d 8 (1st Cir. 2008) (denying request

to reopen consent decree to enjoin state transfers of residents from one state facility

to another as part of a closure plan); Lane v. Kitzhaber, 2014 WL 2807701, at *3 (D.

Or. June 20, 2014) (“[N]either the ADA nor the Rehabilitation Act creates a right to

remain in the program or facility of one’s choosing”); Sciarrillo ex rel. St. Amand v.

Christie, 2013 WL 6586569 (D.N.J. Dec. 13, 2013) (finding that a transfer from an

institutional setting to a community placement did not constitute discrimination

under the ADA); see also D.T. v. Armstrong, 2017 WL 2590137, at *7-8 (D. Idaho

June 14, 2017) (denying a preliminary injunction and holding that the plaintiffs were

not likely to succeed on their claim that the closure of an ICF and placement of a

resident into a community setting “would violate the integration mandate of the

ADA and Rehabilitation Act and result in unlawful discrimination”). Thus,

Olmstead simply does not give an individual the right to dictate where they would

receive care or require the state to maintain the facility of their choice in the face of

other comparable, available care options.

Further, while we find that the various state ICFs are not identical, we

conclude that in their material respects they are comparable, and state officials have

pledged to ensure that individual needs are accommodated to the greatest extent

possible. The plaintiffs, in an effort to provide an update to the court regarding

transfers and highlight the inefficacy of the remaining state ICFs, list a number of

individuals who have been transferred from Polk Center or White Haven Center and

contend that such transfers have yielded poor results, such as hospitalization or

death. (Doc. 171, at 4-5). However, we are constrained to note that a number of these

examples given by the plaintiffs simply do not compel the result that they desire.

For example, one individual who was transferred to Ebensburg Center in

September 2022 passed away in November of 2022, apparently not due to transfer

trauma or transfer-related issues, but from pancreatic cancer. Moreover, many of

these examples provided by the plaintiffs are alleged to have occurred prior to our

November 2, 2022 order and do not constitute new evidence that was previously

unavailable to the plaintiffs. On this score, the plaintiffs provide an example of a

woman who was transferred from Polk Center in April of 2021 and died five months

later; a man who was transferred from Polk Center in November of 2021 and died

in March of 2022; a woman who was transferred to a group home in October of 2022

who eloped from the facility a week after her transfer; and an individual who was

transferred from White Haven Center to Selinsgrove in September of 2021 and died

in June of 2022. While we are sympathetic to the outcomes of these individuals who

have been transferred out of Polk Center and White Haven Center, nothing provided

by the plaintiffs, other than mere speculation, shows that Selinsgrove or Ebensburg

Centers are materially different than White Haven Center and Polk Center such that

transfers between these facilities would violate the plaintiffs’ rights to be housed in

the least restrictive, medically appropriate setting. In addition, a number of the

examples provided by the plaintiffs involved transfers to community or group home

placements rather than Ebensburg or Selinsgrove Centers.

On these facts, the plaintiffs cannot show a substantial likelihood that they are

entitled to enjoin these transfers and compel the state to keep Polk Center and White

Haven Center open indefinitely. Finding that this threshold requirement for Rule 65

relief is not satisfied, we will deny this motion for injunctive relief.

While our determination that the plaintiffs have not shown a likelihood of

success on the merits forecloses preliminary injunctive relief at this time, since “[a]

failure to show a likelihood of success or a failure to demonstrate irreparable injury

must necessarily result in the denial of a preliminary injunction,” Instant Air Freight,

Co., 882 F.2d at 800, we will again address the remaining Rule 65 factors.

At the outset, we again note the potential harm to this class of plaintiffs

stemming from transfers to other facilities. The transfer trauma phenomenon was

discussed at great length in the prior preliminary injunction hearing, and we concede

that there is some degree of risk to this intellectually disabled population. However,

as we found in our prior decision, the countervailing concerns, including the risks to

these individuals should they remain at Polk Center and White Haven Center, as well

as the state’s projected savings and reallocation of funds into the intellectually

disabled community, weigh against granting preliminary injunctive relief in this

case. As we discussed at length, there remains a risk to these individuals if they were

to stay at Polk Center and White Haven Center, including but not limited to the

quality of care that these centers could provide as the population at these centers

naturally declines. Moreover, while the plaintiffs remain skeptical of the state’s

projected savings, they have presented no evidence to dispute the Commonwealth’s

budget projections. Rather, the evidence presented to us shows that the state’s

roughly $21,000,000 in savings will be reallocated to a population of about 57,000

intellectually disabled persons, rather than be used to maintain these two facilities

that house a population of 158 persons or fewer.

While we remain sympathetic to the individuals who wish to remain at these

two centers and who oppose transfer to another state-operated ICF, we are reminded

that “upon an application for a preliminary injunction to doubt is to deny.” Madison

Square Garden Corp., 90 F.2d at 927. Here, the plaintiffs simply have not presented

us with new evidence to show that they are entitled to such sweeping and

unprecedented relief. Accordingly, the motion for preliminary injunctive relief will

be denied.

In closing we note that the legal and factual terrain in this lawsuit has changed

significantly since this matter was assigned to us in 2022. Our decision to decline to

preliminarily enjoin patient transfers means that the transfer process has continued

to move forward. Therefore, many potential class members have been relocated.

Moreover, it was clear from the testimony of a number of plaintiffs at the preliminary

injunction hearing that if the process was allowed to proceed, many putative class

members and named plaintiffs would opt to cooperate with state officials and make

the placement decision which was best for their loved ones rather than pursue further

litigation.

Given this rapidly shifting legal and factual background, we believe that as

the case moves forward it is necessary and appropriate to determine the remaining

scope of this lawsuit. Towards this end we will instruct plaintiffs’ counsel to notify

us on or before February 3, 2023 regarding whether any of the named plaintiffs

now wish to withdraw from this litigation. In addition, we will instruct plaintiffs’

counsel to prepare and distribute to putative class members notices which comply

with the requirements of Rule 23(c)(2), along with forms requiring putative class

members to affirmatively notify the court that they wish to opt-in to this lawsuit.

Those putative class members who wish to join the litigation should return the opt-

in forms to plaintiffs’ counsel for filing with the court no later than February 17,

2023. Armed with this information, we can make a more fully informed decision

concerning whether this case is still a viable class action and how best to address the

remaining claims in this lawsuit.

III. Conclusion

Accordingly, for the foregoing reasons, we conclude that the plaintiffs have

not made the requisite showing that they are entitled to preliminary injunctive relief.

Thus, the motion for preliminary injunction (Doc. 171) will be denied.

An appropriate order follows.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: January 26, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RUSSEL “JOEY” JENNINGS, : Civil No. 3:20-CV-148

by and through his parents/guardians, :

Richard and Susan Jennings, et al., :

:

Plaintiffs, :

:

v. : (Magistrate Judge Carlson)

:

TOM WOLF, et al., :

:

Defendants. :

ORDER

In accordance with the accompanying memorandum IT IS ORDERED that

plaintiffs’ second motion for preliminary injunction (Doc. 171) is DENIED. IT IS

FURTHER ORDERED that in order to make a more fully informed decision

concerning whether this case is still a viable class action and how best to address the

remaining claims in this lawsuit in light of the rapidly changing circumstances in

this case, on or before February 3, 2023, plaintiffs’ counsel shall notify the court

regarding whether any of the named plaintiffs now wish to withdraw from this

litigation. In addition, we instruct plaintiffs’ counsel to prepare and distribute to

putative class members notices which comply with the requirements of Rule

23(c)(2), along with forms requiring putative class members to affirmatively notify

the court that they wish to opt-in to this lawsuit. Those putative class members who

wish to join the litigation should return the opt-in forms to plaintiffs’ counsel for

filing with the court no later than February 17, 2023. Only plaintiffs who complete

the opt-in forms will be considered members of this class action.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: January 26, 2023