Lundy v. Shelby County Healthcare Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

D.B., A MINOR, BY AND THROUGH )

HIS NEXT FRIEND AND MOTHER )

ANTOINETTE LUNDY, )

)

Plaintiff, )

)

v. ) No. 17-cv-02806-SHM-cgc

)

SHELBY COUNTY HEALTH CARE )

CORPORATION AND UNITED STATES )

OF AMERICA, )

)

Defendants.

ORDER GRANTING UNITED STATES OF AMERICA’S MOTION FOR SUMMARY

JUDGMENT

Plaintiff brings this medical malpractice action against

the United States of America as substitute party (the

“Government”) and Shelby County Health Care Corporation

(“SCHCC”). (D.E. No. 38.) Plaintiff sues the Government under

the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et

seq., (the “FTCA”). Plaintiff sues SCHCC for medical

malpractice under Tennessee law. Before the Court is the

Government’s Motion for Summary Judgment (the “Motion”), filed

on May 28, 2020. (D.E. No. 76.) Plaintiff has responded, the

Government has replied, Plaintiff has filed a sur-reply, the

Government has filed a sur-sur-reply, and the Motion is ripe

for consideration. (D.E. Nos. 80, 87, 93, 97.) For the

following reasons, the Motion is GRANTED.

I. Background

D.B., Plaintiff Antoinette Lundy’s minor child, on whose

behalf she brings this action, sustained injuries because of

allegedly negligent conduct during his delivery on May 2, 2014.

(Amended Complaint, D.E. No. 38 at 447-48.)1

On April 28, 2017, pursuant to Tennessee law, Lundy

notified the health care providers responsible for her and

D.B.’s care that she intended to sue them. (D.E. No. 4-1 at

183-84.) Christ Community Health Services, Inc. (“CCHS”) and

its employees Dr. William G. Mullinax, Dr. Ellisa Rausch Krumm,

and Dr. David Jordan Paslay (the “doctors”) were among the

parties notified. (Id.) On or before May 19, 2017, the United

States Department of Health and Human Services (“HHS”) sent a

letter to Lundy. (D.E. No. 16-2 at 381.) HHS informed Lundy

that it had learned of her intent to sue CCHS employees, that

those employees might have been federal employees at the time

they provided care, and that, if so, the FTCA would be her

exclusive remedy against them. (Id.)

On August 22, 2017, Lundy sued CCHS, the doctors, and

SCHCC for medical malpractice in Tennessee state court. (D.E.

1 Unless otherwise noted, all pin cites for record citations are to

the “PageID” page number.

No. 4-1 at 176.) Lundy served CCHS through its registered agent

on September 1, 2017. (D.E. No. 4 at 173.) CCHS notified the

Government of Lundy’s suit on September 20, 2017. (Id. at 172.)

The Government filed a response on September 27, 2017. (D.E.

No. 4-1 at 327-28.) In its response, the Government said it had

not yet determined whether CCHS and the doctors were federal

employees when they cared for Lundy and D.B. and, as a result,

did not yet know whether federal law would require the

Government to enter a substitution of party. (Id.) On October

13, 2017, while her case was pending in state court, Lundy

filed an FTCA administrative claim against the Government.

(D.E. No. 20 at 393.)

CCHS removed to this Court on November 3, 2017, under 42

U.S.C. § 233(l)(2). (D.E. No. 4.) On December 6, 2017, after

determining that CCHS and the doctors were federal employees at

all relevant times, the Government moved to substitute itself

as defendant in place of CCHS and the doctors. (D.E. No. 12 at

361-62.) The Court granted the Government’s motion on December

11, 2017. (D.E. No. 15.) The next day the Government filed a

motion to dismiss for lack of jurisdiction, noting that Lundy

had failed to exhaust her administrative remedies as required

by the FTCA. (D.E. No. 16 at 370.) The Court granted the

Government’s motion on February 16, 2018, dismissing the case

against the Government without prejudice. (D.E. No. 29.)

On June 28, 2018, Lundy filed a motion for leave to amend

her Complaint to add the Government as a defendant. (D.E. No.

35.) She represented that she had completed the FTCA

administrative claims process and received a final

determination denying her claim. (Id. at 427.) The Court

granted Lundy’s motion. (D.E. No. 36.) Lundy filed her Amended

Complaint on July 19, 2018, naming the Government and SCHCC as

defendants. (D.E. No. 38.)

On October 30, 2018, the Government filed a Motion to

Dismiss. (D.E. No. 58.) The Government contended that

Tennessee’s health care liability statute of repose deprived

the Court of jurisdiction over the Government. (Id. at 696);

Tenn. Code Ann. §§ 29-26-116(a)(3) and 29-26-121(c).

The Court denied the Government’s motion because Lundy’s

initial complaint had been filed before the deadline imposed by

the statute of repose, the initial complaint had been dismissed

for reasons not extinguishing her right of action, and the

amended complaint had been filed within one year of the order

of dismissal, which satisfied Tennessee’s savings statute.

(D.E. No. 61 at 740-41.)

On May 28, 2020, the Government filed the instant Motion.

(D.E. No. 76.) The Government argues that Lundy failed to

satisfy the FTCA’s two-year statute of limitations for filing

an administrative claim with the federal agency, (Id. at 783),

which would “forever bar[]” her claim against the Government,

28 U.S.C. § 2401(b). D.B. was injured on May 2, 2014, and the

Government contends that the latest date the statute of

limitations could have begun to run was May 19, 2014, the date

D.B. was released from the hospital. (D.E. No. 76 at 793.) The

Government contends that the two-year statute of limitations

for filing an administrative claim had run by May 19, 2016, and

that Plaintiff did not file an administrative claim until

October 13, 2017. (Id. at 793-94.) Plaintiff agrees that the

statute of limitations had run before she filed her

administrative claim, but argues that the statute should be

equitably tolled. (See Pl.’s Resp., D.E. No. 80 at 858.)

II. Jurisdiction

The Court has federal-question jurisdiction over Lundy’s

claim against the Government. Under 28 U.S.C. § 1331, United

States district courts have original jurisdiction “of all civil

actions arising under the Constitution, laws, or treaties of

the United States.” This action was removed under 42 U.S.C. §

233(l)(2), and the Court has original and exclusive

jurisdiction under 42 U.S.C. § 233(g)(1)(A).

The Court has supplemental jurisdiction over Lundy’s claim

against SCHCC under 28 U.S.C. § 1367(a). That claim derives

from a “common nucleus of operative fact” with Lundy’s claim

against the Government. United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 725 (1966); Soehnlen v. Fleet Owners Ins. Fund,

844 F.3d 576, 588-89 (6th Cir. 2016).

III. Standard of Review

Under Federal Rule of Civil Procedure 56, on motion of a

party, the court “shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “[T]he moving party is entitled to

summary judgment when the nonmoving party ‘fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.’” George v. Youngstown State

University, 966 F.3d 446, 458 (6th Cir. 2020) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

The non-moving party has the duty to point out specific

evidence in the record sufficient to justify a jury decision in

her favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal Corp. v.

Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). When confronted

with a properly supported motion for summary judgment, the non-

moving party must set forth specific facts showing that there

is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). A

genuine dispute for trial exists if the evidence is “‘such that

a reasonable jury could return a verdict for the nonmoving

party.’” See Wasek v. Arrow Energy Servs., 682 F.3d 463, 467

(6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). “[I]n order to survive a summary

judgment motion, the non-moving party ‘must do more than simply

show that there is some metaphysical doubt as to the material

facts.’” Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428

(6th Cir. 2018) (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986)).

Although summary judgment must be used carefully, it “is

an integral part of the Federal Rules as a whole, which are

designed to secure the just, speedy, and inexpensive

determination of every action[,] rather than a disfavored

procedural shortcut.” FDIC v. Jeff Miller Stables, 573 F.3d

289, 294 (6th Cir. 2009) (internal quotation marks and

citations omitted).

IV. Analysis

The FTCA is the exclusive remedy for victims of the torts

of United States employees. 28 U.S.C. § 2679(a); Himes v.

United States, 645 F.3d 771, 776 (6th Cir. 2011). As a

condition of this waiver of sovereign immunity, Congress has

imposed a statute of limitations for FTCA claims. United States

v. Kubrick, 444 U.S. 111, 117-18 (1979); see 28 U.S.C. §

2401(b). That statute must be strictly enforced. Kubrick, 444

U.S. at 117-18; Chomic v. United States, 377 F.3d 607, 615 (6th

Cir. 2004) (“[T]he statute of limitations in § 2401(b) must be

strictly construed”); see Lehman v. Nakshian, 453 U.S. 156,

160-61 (1981) (“[T]his Court has long decided that limitations

and conditions upon which the Government consents to be sued

must be strictly observed and exceptions thereto are not to be

implied.”) (internal quotations omitted).

The Supreme Court, in United States v. Kwai Fun Wong, 575

U.S. 402 (2015), made clear that equitable tolling is available

as an exception to the statute of limitations for FTCA claims.

Id. at 420 (“[W]e hold that the FTCA’s time bars are

nonjurisdictional and subject to equitable tolling.”). The

Sixth Circuit has cautioned that courts should apply equitable

tolling to FTCA claims “sparingly.” Ayers v. United States, 277

F.3d 821, 828 (6th Cir. 2002). There is a presumption against

equitable tolling for claims against the United States. See

Irwin v. Dep’t of Veterans’ Affairs, 498 U.S. 89, 96 (1990)

(“Because the time limits imposed by Congress in a suit against

the Government involve a waiver of sovereign immunity, it is

evident that no more favorable tolling doctrine may be employed

against the Government than is employed in suits between

private litigants.”); see also Schappacher v. United States,

475 F. Supp. 2d 749, 755 (S.D. Ohio 2007) (“[T]here is a

rebuttable presumption that equitable tolling does not apply to

suits against the United States”). The burden to establish

equitable tolling is on the party seeking it. Robertson v.

Simpson, 624 F.3d 781, 784 (6th Cir. 2010).

When determining whether the statute of limitations for an

FTCA claim has been equitably tolled, the Sixth Circuit applies

a case-by-case analysis that focuses on five factors. See

Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).

They are: “(1) the plaintiff’s lack of notice of the filing

requirement; (2) the plaintiff’s lack of constructive knowledge

of the filing requirement; (3) the plaintiff’s diligence in

pursuing her rights; (4) an absence of prejudice to the

defendant; and (5) the plaintiff’s reasonableness in remaining

ignorant of the particular legal requirement.” Jackson v.

United States, 751 F.3d 712, 719 (6th Cir. 2014). Those factors

are neither comprehensive nor material in all cases, and “a

litigant’s failure to meet a legally-mandated deadline due to

unavoidab[le] ... circumstances beyond that litigant’s control

is often the most significant consideration in courts’

analyses, rather than any particular factor of the five-part

standard.” Zappone v. United States, 870 F.3d 551, 556 (6th

Cir. 2017) (internal quotations omitted).

A. Plaintiff was not reasonable in remaining ignorant of

the requirement to file a timely administrative

claim.

The reasonableness of a plaintiff’s ignorance of the legal

requirement to file a timely claim depends on whether plaintiff

had the opportunity to know about the requirement, meaning

actual notice or constructive knowledge, and plaintiff’s

diligence in pursuing the claim. See Warren v. Highlands Reg’l

Med. Ctr., No. 7:18-cv-00101-GFVT, 2019 WL 2250632, at *3 (E.D.

Ky. May 24, 2019) (reasoning that constructive knowledge and

lack of diligence cut against reasonableness of remaining

ignorant of statute of limitations); see also Kellom v. United

States, No. 19-11622, 2020 WL 95805, at *6 (E.D. Mich. Jan. 8,

2020) (considering the actual notice, constructive knowledge,

and reasonableness factors together); Dann v. United States,

No. 6:17-32-DCR, 2017 WL 3873702, at *3 (E.D. Ky. Sept. 5,

2017) (considering the diligence and reasonableness factors

together).

Before May 19, 2016, the last date for her to file an

administrative claim, Plaintiff had constructive knowledge that

the healthcare providers were deemed federal employees.

Plaintiff could have discovered their status with a reasonably

diligent investigation into the possible defendants, making it

unreasonable that Plaintiff remained ignorant of the

requirement to file a timely claim.

1. Plaintiff had constructive knowledge that CCHS

and Dr. Mullinax were deemed federal employees.

Plaintiff argues that she had no constructive knowledge

that CCHS and Dr. Mullinax were deemed federal employees

because CCHS is and appears to be a religious facility. (Pl.’s

Sur-Reply, D.E. No. 93 at 1445.) Plaintiff argues that she

could have reasonably concluded that CCHS would not receive

federal support because of the separation of church and state.

(Id.) Noting the lack of cases dealing specifically with

religious facilities, Plaintiff relies on Santos ex rel Beato

v. United States, 559 F.3d 189 (3d Cir. 2009), for the

proposition that the private appearance of the facility affects

whether there is constructive knowledge. (Pl.’s Sur-Reply, D.E.

No. 93 at 1449-50.)

The court in Santos applied equitable tolling to the

plaintiff’s claims. Santos, 559 F.3d at 203. The healthcare

provider appeared to be a “private clinic” staffed with

“private actors,” which did not “alert[]” the plaintiff “to the

need to explore their federal employment status.” Id. at 200-

01. Critical to the court’s holding, however, was the lack of

notice on the healthcare provider’s website. Id. at 201. The

website alerted the public only that the provider received

federal funding and not that the provider was deemed a federal

facility. Id.

The notice on CCHS’s website was different. It alerted the

public that CCHS was deemed a federal facility. (See Pl.’s Sur-

Reply, D.E. No. 93 at 1452.) The notice was clear that CCHS

“has federal Public Health Service deemed status with respect

to certain health or health-related claims, including medical

malpractice claims, for itself and its covered individuals.”

(Def.’s Reply, D.E. 87 at 1233.) More opaque notices on

healthcare provider websites have alerted plaintiffs that the

provider was deemed. See A.Q.C. ex rel. Castillo v. United

States, 656 F.3d 135, 145 (2d Cir. 2011) (“[C]ommon sense—let

alone years of experience in medical malpractice litigation—

would alert a reasonable advocate to the possibility that a

community health clinic with the professed mission of

‘improv[ing] the health status of underserved communities’”

would be covered by the FTCA).

Although Lundy notes that the notice was not on the

website’s homepage and was not prominently displayed on other

pages, (Pl.’s Sur-Reply, D.E. No. 93 at 1452), the notice was

accessible to the public continuously prior to, during, and

after the period available for Lundy to file her administrative

claim, (Def.’s Reply, D.E. 87 at 1233); see Santos, 559 F.3d at

203 (relying on the lack of “publicly available sources of

information” to equitably toll the statute of limitations); cf.

Warren, 2019 WL 2250632, at *3 (holding that, where notice was

on the healthcare provider’s homepage, “the fact that such

information is easily obtainable online suggests that

[plaintiff’s] lack of knowledge results from a lack of

diligence, and cuts against her ‘reasonableness in remaining

ignorant of [that] particular legal requirement.’”).

Plaintiff argues that she had no constructive knowledge

that Dr. Mullinax was deemed a federal employee. (Pl.’s Sur-

Reply, D.E. No. 93 at 1453.) Plaintiff points out that she had

never met Dr. Mullinax before he delivered D.B. and that,

because Dr. Mullinax used a swear word during the delivery, it

appeared he was not related to the religious provider CCHS.

(Id.)

Lundy had constructive knowledge of Dr. Mullinax’s

relationship with CCHS. Lundy had seen another doctor from CCHS

for her prenatal care. It would be reasonable to conclude that

the doctor who delivered D.B., Dr. Mullinax, would be from the

same organization as the doctor who provided Lundy’s prenatal

care. (Def.’s Sur-Sur-Reply, D.E. No. 97 at 3);2 see D.J.S.-W.

by Stewart v. United States, 962 F.3d 745, 753 (3d Cir. 2020)

(finding plaintiff’s counsel responsible for understanding

common arrangements between doctors and healthcare provider

facilities).

2. Plaintiff was not reasonably diligent.

Due diligence is critical to preserve an FTCA case through

equitable tolling. See Irwin, 498 U.S. at 96 (“We have

generally been much less forgiving in receiving late filings

2 PageID not available for this docket entry.

where the claimant failed to exercise due diligence in

preserving his legal rights.”); see also Donahue v. United

States, 634 F.3d 615, 629 (1st Cir. 2011) (“Due diligence is a

prerequisite for equitable tolling.”). Any lack of diligence by

her attorneys is imputed to Lundy. See Mason v. Dep’t of

Justice, 39 F. App’x 205, 207 (6th Cir. 2002) (“[F]or purposes

of determining whether equitable tolling applies, the actions

of plaintiffs’ attorneys are attributable to their clients”);

see also Arteaga v. United States, 711 F.3d 828, 835 (7th Cir.

2013).

Plaintiff argues that, because she sought and obtained

counsel before the two-year statute of limitations had run, she

was diligent. (Pl.’s Sur-Reply, D.E. No. 93 at 1458.)

Plaintiff’s then counsel closed her file, advising that it was

too early to determine what damages D.B. had suffered. (Id. at

1459.) Although it may have been too early to determine

damages, former counsel also had an obligation to research the

possible defendants in the case. Hawver v. Nestorak, No. 13-

11068, 2017 WL 2213571, at *6 (E.D. Mich. May 19, 2017)

(“[D]iligence requires reasonable efforts on the part of a

plaintiff to learn the legal identity and employment status of

potential defendants”); see also Bazzo v. United States, 494 F.

App’x 545, 548 (6th Cir. 2012) (“[Plaintiff] does not detail

what steps counsel took to determine [the doctor]’s employment

status and, thus, does not explain how her affiliation with

[the] federally funded [healthcare provider] would have eluded

a reasonably diligent party.”).

When Plaintiff’s attorneys did begin to research

defendants in the case, they located an address for Dr.

Mullinax, which was available on the Tennessee Department of

Health website. (Def.’s Reply, D.E. No. 87 at 1239.)

Plaintiff’s counsel used that address to send Dr. Mullinax

notice of the suit on April 28, 2017. (Id.) That address was a

CCHS address. (Id.) Had counsel exercised reasonable diligence

earlier, the address would have alerted them that Dr. Mullinax

was a CCHS employee. See D.J.S.-W. by Stewart, 962 F.3d at 753-

54 (“[H]ad [plaintiff’s] counsel visited or searched the

address to which his office sent the request to [the doctor],

he would have discovered that it was a street address for [the

deemed healthcare provider].”). Even after locating Dr.

Mullinax’s CCHS address and using that address to notify him,

Plaintiff waited six months before filing her administrative

claim. (See D.E. No. 20 at 393.)

Plaintiff also argues that, because counsel worked to

obtain complete copies of medical records, Plaintiff was

diligent. (Pl.’s Response, D.E. No. 80 at 867-68.) Although

seeking medical records was one aspect of the diligence that

supported equitable tolling in Santos, seeking medical records

alone is insufficient where counsel did not also correspond

with CCHS or visit CCHS’s facility. See Santos, 559 F.3d at 200

(“[Plaintiff]’s counsel corresponded with [the healthcare

provider], obtained [plaintiff]’s medical records, visited [the

healthcare provider’s] facility, and retained several expert

witnesses.”); see also White by White v. United States, No.

1:17-cv-882, 2018 WL 9944972, at *2 (W.D. Mich. Jan. 26, 2018)

(“Taking all measures necessary to bring a state malpractice

claim is insufficient to show diligence in FTCA cases.”).

Plaintiff waited more than a year and a half after the

statute had run before filing her administrative claim. She was

not reasonably diligent.

B. Defendant would be prejudiced by equitably tolling

the statute of limitations.

Defendant argues that it has been prejudiced by the late

filing because Lundy said that she had memory issues, which

were likely exacerbated by the delay in filing. (Def.’s Reply,

D.E. No. 87 at 1242.) Plaintiff argues that Defendant was not

prejudiced by the delayed filing because there are no material

issues Lundy failed to recall. (Pl.’s Sur-Reply, D.E. 93 at

1459-60.)

The possibility of litigating at all can be sufficient

prejudice to preclude equitable tolling. Warren, 2019 WL

2250632, at *3 (“[I]t is apparent that should the Court toll

the limitations period, the United States would be subject to

all the expenses associated with discovery and trial

preparation”); Jackson v. United States, No. 12-10124, 2013 WL

361010, at *6 (E.D. Mich. Jan. 30, 2013) (“Defendant would be

prejudiced were the Court to apply equitable tolling. Defendant

would be required to litigate a matter that unquestionably was

filed beyond the limitations period and over which Congress did

not intend to waive sovereign immunity.”), aff’d, 751 F.3d 712

(6th Cir. 2014).

Whether Defendant would be prejudiced is not determinative

because no other factors support equitable tolling. See Baldwin

Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Although

absence of prejudice is a factor to be considered in

determining whether the doctrine of equitable tolling should

apply once a factor that might justify such tolling is

identified, it is not an independent basis for invoking the

doctrine and sanctioning deviations from established

procedures.”).

C. The action against the remaining defendant is

remanded to state court.

The Court has discretion in deciding whether to exercise

supplemental jurisdiction over Plaintiff’s claim against SCHCC.

Plaintiff’s action is properly before this Court because the

Government is a defendant. SCHCC is not deemed a federal

healthcare provider and did not remove based on diversity. See

J.S.R. ex rel. Rojas Polanco v. Washington Hosp. Ctr. Corp.,

667 F. Supp. 2d 83, 85 (D.D.C. 2009) (“The fact that Non-

federal Defendants might have removed the case on the basis of

diversity is irrelevant—that factual scenario simply never

existed.”) (emphasis in original). Because the Court grants the

Government’s Motion, no claim remains over which the Court had

original jurisdiction. “[I]t is apparent that trial courts do

possess some discretion to decide a pendent state law claim

once the federal basis for jurisdiction is dismissed.” Province

v. Cleveland Press Pub. Co., 787 F.2d 1047, 1055 (6th Cir.

1986). That discretion is “minimal,” id., and “[t]his circuit

has moved away from the position that the court has discretion

to retain jurisdiction over a pendent state claim where the

federal claim has been dismissed before trial.” Serv., Hosp.,

Nursing Home and Pub. Emps. Union v Commercial Prop. Servs.,

755 F.2d 499, 506 n.9 (6th Cir. 1985).

The Court declines to exercise supplemental jurisdiction

over Plaintiff’s claim against SCHCC. That claim is governed by

Tennessee law, and Tennessee courts are better able to address

it. See 28 U.S.C. § 1367(c) (“The district courts may decline

to exercise supplemental jurisdiction . . . if . . . the

district court has dismissed all claims over which it has

original jurisdiction”); United Mine Workers, 383 U.S. at 726

(“[P]endent jurisdiction is a doctrine of discretion, not of

plaintiff's right. . . . Needless decisions of state law should

be avoided both as a matter of comity and to promote justice

between the parties. . . . Certainly, if the federal claims are

dismissed before trial, . . . the state claims should be

dismissed as well.”).

Plaintiff’s claim against SCHCC is REMANDED to the Circuit

Court of Shelby County, Tennessee. See Desir v. Steward Health

Care Sys., LLC, 109 F. Supp. 3d 401, 408 (D. Mass. 2015) (“The

remaining claims all arise under state law and are

appropriately litigated in state court. . . . Therefore, the

remaining [claims] are remanded to the state court.”).

V. Conclusion

For the foregoing reasons, the Government’s Motion for

Summary Judgment is GRANTED. Lundy’s claim against SCHCC is

REMANDED to the Circuit Court of Shelby County, Tennessee.

SO ORDERED this _17th_ day of November, 2020.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE