Hoggard I v. Dept. of Rev.

406 June 7, 2019 No. 19

IN THE OREGON TAX COURT

REGULAR DIVISION

John T. HOGGARD

and Mary T. Burry,

Plaintiffs,

v.

DEPARTMENT OF REVENUE,

State of Oregon,

Defendant.

(TC 5336)

Plaintiffs appealed to the Regular Division after Plaintiffs’ case was dis-

missed in the Magistrate Division for failure to timely appeal without good and

sufficient cause. Plaintiffs were not represented by lawyers at the Magistrate

Division and the defendant, the Clackamas County Assessor, moved to dismiss

the case on the grounds that Plaintiffs failed to appeal to the Magistrate Division

within 90 days of receiving an “Omitted Property Notice.” Plaintiffs conceded

that they had untimely filed, and the magistrate did not find the Plaintiffs had

good and sufficient cause. At the Regular Division, Plaintiffs (then represented by

counsel) requested that the court determine that their appeal to the Magistrate

Division was timely because the assessor had sent the “Omitted Property Notice”

before correcting the roll although, under ORS 311.223(2), the 90 day period to

appeal commences when the assessor sends a notice “after” the assessor corrects

the roll. Defendant conceded that Plaintiffs’ appeal to the Magistrate Division

was timely but filed a motion to dismiss on the grounds that the case was moot

as a result of its concession and because the assessor had withdrawn the assess-

ment. The court held that (1) Plaintiffs’ appeal to the Magistrate Division was

timely, and (2) Plaintiffs’ case was not moot because, under ORS 14.175, the

county assessor’s actions were capable of repetition yet evading review. The court

dismissed without prejudice Plaintiffs’ claim for abatement of the omitted prop-

erty assessment and did not rule on attorney fees in this order. For the court’s

ruling on attorney fees, costs, and disbursements in this case, see Hoggard II v.

Dept. of Rev., 23 OTR 543 (2019).

Submitted on Plaintiffs’ Motion for Entry of Judgment

and Attorney Fees and Defendant’s Motion to Dismiss.

Jason A. Wright and Melina Martinez, Richardson

Wright LLP, Portland, filed the motion and response for

Plaintiff.

Daniel Paul, Senior Assistant Attorney General, Depart-

ment of Justice, Salem, filed the motion and response for

Defendant.

Decision rendered in part for Plaintiff and in part for

Defendant June 7, 2019.

Cite as 23 OTR 406 (2019) 407

ROBERT T. MANICKE, Judge.

This matter comes before the court on Plaintiffs’

letter to the court dated February 25, 2019, which the court

views as either a motion for entry of judgment on the plead-

ings or a motion for summary judgment, and a motion for

leave to file an attorney fee claim; on Defendant’s Motion to

Dismiss; and on the parties’ various responses.

Plaintiffs appeal from a magistrate’s Final Decision

of Dismissal, in which the magistrate (1) found that Plaintiffs

had conceded that their appeal to the Magistrate Division

was untimely; and (2) considered, but rejected, Plaintiffs’

arguments that their failure was for “good and sufficient

cause” under ORS 305.288(5).1 In this division, Plaintiffs

seek a determination that their appeal to the Magistrate

Division was timely, that they are not subject to the tax at

issue, and that they are allowed to seek attorney fees under

ORS 305.490(4).

The record, as developed to date in this division of

the court,2 shows the following uncontested facts: The sub-

ject property is Plaintiffs’ personal residence. On June 29,

2017, the Clackamas County Assessor mailed an “Omitted

Property Notice” to Plaintiffs (the “2017 Notice”). The 2017

Notice asserted that a kitchen and bath remodel had been

omitted from the assessment roll for the tax years 2015-16

and 2016-17. The 2017 Notice stated in part:

“In compliance with ORS 311.219, this notice is to

inform you of the Assessor’s intention to add the property

value listed below to the Assessment Roll for the years indi-

cated. The omitted property is: a kitchen and bath remodel.

“* * * * *

“You can show cause why this additional value should

not be added to the Assessment Rolls prior to 5:00 p.m. on

July 19, 2017. If we have not heard from you by this time,

this value will be added to your assessment. If you agree

1

The court’s references to the Oregon Revised Statutes (ORS) are to 2017.

2

The court considers only the record before it, which includes documents from

Magistrate Division proceedings or other prior proceedings only to the extent

that a party places those documents into the record in the Regular Division. See

ORS 305.425(1); Patton II v. Dept. of Rev., 18 OTR 256, 261 & n 7 (2005).

408 Hoggard I v. Dept. of Rev.

with this correction, please sign and return the enclosed

waiver.

“This tax became a matter of public record on March 1,

2017. The additional tax amount will be extended to the

2017-2018 tax year.

“Should you decide to appeal this decision of the asses-

sor, you must file a complaint with the Oregon Tax Court

in the Magistrate Division. The appeal must be filed with

that court as provided in ORS 305.280 and ORS 305.560

by October 17, 2017, which is within 90 days after our ‘show

cause’ date of July 19, 2017.”

(Emphases added.)

Plaintiffs did not appeal by October 17, 2017; they

allege that they experienced family and personal health dif-

ficulties during the fall of 2017. The assessor sent Plaintiffs

their annual property tax statement on October 10, 2017,

and on December 19, 2017, Plaintiffs filed a complaint in the

Magistrate Division, where they represented themselves.

On January 17, 2018, the assessor filed an answer defending

on the grounds that Plaintiffs had missed the deadline of

October 17, 2017, as stated in the 2017 Notice. On February 1,

2018, in the initial case management conference, the magis-

trate asked the assessor’s representative how many notices

the assessor had sent and, according to a later email from

the representative, “The Magistrate seemed fairly certain

that 2 separate notices are required.” From February 1 to

May 17, 2018, persons in the assessor’s office corresponded

with counsel for Clackamas County and with Defendant’s

personnel regarding whether two notices are required.

Meanwhile, on March 5, 2018, the assessor, now represented

by counsel, filed a motion to dismiss on the grounds that the

assessor’s single 2017 Notice was sufficient and Plaintiffs’

complaint was untimely, and on April 24, 2018, the mag-

istrate issued an order that prompted Plaintiffs to file a

letter “alleging circumstances related to their untimely fil-

ing.” On June 22, 2018, the magistrate entered a Decision of

Dismissal, followed by a materially identical Final Decision

of Dismissal on July 12, 2018, which stated that Plaintiffs

had conceded that their complaint in the Magistrate Division

was untimely. Based on that concession, and on a finding of

Cite as 23 OTR 406 (2019) 409

lack of “good and sufficient cause” for the untimely filing

under ORS 305.288(5), the magistrate granted the asses-

sor’s motion to dismiss.

Plaintiffs engaged counsel, who timely filed a com-

plaint in this division on September 7, 2018. That com-

plaint seeks a determination that “Plaintiffs filed a timely

appeal [to the Magistrate Division] on December 19, 2017”

and a determination that Plaintiffs are not subject to the

taxes attributable to the omitted property assessment. It

alleges, among other things, that Plaintiffs’ complaint in

the Magistrate Division was timely because Plaintiffs filed

it within 90 days after the assessor had mailed the annual

tax statement on October 10, 2017. The Department of

Revenue, having been substituted for the assessor as defen-

dant by operation of law, admitted that allegation. See ORS

305.501(1) (Department of Revenue substituted for county

as party upon appeal to Regular Division).

The parties then engaged in settlement discussions

which, although unsuccessful in resolving the case, resulted

in the assessor issuing a new notice, on February 13,

2019 (the “2019 Notice”), entitled “Notification of Tax Roll

Correction.” The 2019 Notice states in part:

“This letter is to inform you that due to the lack of ade-

quate notice regarding the Assessor’s intent to add omitted

property for the 2015/16 and 2016/17 tax years, we are cor-

recting the tax roll to remove the omitted property.

“* * * * *

“This action leaves the property and additional value

omitted from the tax roll. As required by statute, the Assessor

will add the omitted property with proper notification.”

(Emphasis added.)

Thus, at this stage, Defendant has admitted that

Plaintiffs’ complaint was timely and, in its briefing, has

nearly (but not quite)3 acknowledged that it agrees with

Plaintiffs’ reasoning as to why the complaint was timely:

the 90-day period for filing an appeal to the Magistrate

Division did not commence on the date of the 2017 Notice

(July 19, 2017) because the assessor sent the 2017 Notice

3

Defendant states at one point that the 2017 Notice was “possibly defective.”

410 Hoggard I v. Dept. of Rev.

before correcting the roll and failed to send another notice

after correcting the roll.4

The relevant statute provides, in part:

“(2) Immediately after the assessor corrects the assess-

ment or tax roll, the assessor shall file in the office of the

assessor a statement of the facts or evidence on which the

assessor based the correction and notify the taxpayer by

written notice, sent by first class mail to the taxpayer’s last-

known address, of:

“(a) The date and amount of the correction;

“(b) If a penalty for failing to timely file a real, com-

bined or personal property return as required by ORS

308.290 is being imposed under ORS 308.295 or 308.296,

the amount of the penalty;

“(c) An explanation of the collection procedures appli-

cable to the corrected amount, or applicable to the penalty;

and

“(d) An explanation of the taxpayer’s right to appeal

under subsection (4) of this section and the procedures for

making the appeal.

“* * * * *

“(4) Any person aggrieved by an assessment made

under ORS 311.216 to 311.232 may appeal to the tax court

within 90 days after the correction of the roll as provided in

ORS 305.280 and 305.560.”

ORS 311.223(2) (emphases added). The assessor failed to

send any notice after correcting the roll.5 Defendant does

4

The 2017 Notice itself makes clear that the assessor did not believe the roll

correction had already occurred by the date of that notice: “In compliance with

ORS 311.219, this notice is to inform you of the Assessor’s intention to add the

property value listed below to the Assessment Roll for the years indicated.”

5

A longstanding rule of Defendant, which this court applied in Nicolynn

Properties LLC v. Dept. of Rev., 21 OTR 320, 323 (2013), provides: “For purposes

of ORS 311.223(4) and 311.229 the ‘roll is corrected’ on the date the assessor sends

the notice to the taxpayer’s last known address by first class mail as required

in 311.223(2).” OAR 150-311-0220 (emphasis added). Under the rule, unchanged

since its adoption in 2001, the roll correction in this case never occurred, and the

90-day appeal period did not begin to run. Regardless of whether the rule cor-

rectly states that the correction does not happen until the notice is sent, it is clear

that the assessor here failed to comply with the statutory requirement to send a

notice after the roll had been corrected.

Cite as 23 OTR 406 (2019) 411

not contest Plaintiffs’ position that the 90-day period com-

menced nearly two months after the date of the Notice of

Omitted Property, on October 10, 2017, when the assessor

sent the annual property tax statement that showed the

assessment. See ORS 305.280(1) (commencing a 90-day

appeal period “after the act, omission, order or determi-

nation becomes actually known to the person”). The 2019

Notice, however, states that the assessor still intends to

properly send notice and thus to begin the process of assess-

ing the property she believes has been omitted. Although

Plaintiffs strongly disagree that there is any omitted prop-

erty to assess, they do not seriously contest the assessor’s

right to commence a new process (within the statutory dead-

line), and in fact the court interprets the governing stat-

utes to require the assessor to continue to seek to assess any

omitted property that the assessor “has reason to believe”

has been omitted. ORS 311.216(1). If the assessor does issue

a new notice, Plaintiffs once again will be required to appeal

to the Magistrate Division within the statutory period if

they disagree with the value the assessor determines must

be added to the roll. Therefore, for now, the dispute reduces

down to Plaintiffs’ desire to pursue a claim for attorney

fees, in aid of which they ask the court to find in favor of

Plaintiffs regarding whether their appeal, as commenced in

the Magistrate Division, was timely.

Plaintiffs’ motion asserts that Defendant’s admis-

sion that the Magistrate Division complaint was timely enti-

tles Plaintiffs to judgment in Plaintiffs’ favor.6 Defendant

argues, both in response and in its motion to dismiss, that

Plaintiffs’ case is now moot, i.e., that the court can no longer

adjudicate any part of Plaintiffs’ complaint, or award any

attorney fees, because the 2019 Notice and refund eliminate

any active controversy and deprive the court of jurisdiction

to enter the judgment Plaintiffs have requested.

6

In their letter dated February 25, 2019, Plaintiffs do not clearly state

whether they seek judgment on the pleadings pursuant to TCR 21 B or sum-

mary judgment pursuant to TCR 47 (“we ask the court to enter a judgment under

TCR 67 granting Plaintiffs relief on their claim—with prejudice—and declar-

ing Plaintiffs the prevailing party”). Defendant does not address this procedural

question, relying instead on its mootness defense. The court applies the standard

for summary judgment and finds that there is no genuine issue of material fact.

See TCR 47 C.

412 Hoggard I v. Dept. of Rev.

The Oregon Court of Appeals recently summarized

current Oregon law on mootness as follows:

“As a general matter, we will dismiss as moot cases

‘ “in which a court’s decision no longer will have a practical

effect on or concerning the rights of the parties.” ’ Eastern

Oregon Mining Assoc. v. DEQ, 360 Or 10, 15, 376 P3d 288

(2016) (quoting Brumnett v. PSRB, 315 Or 402, 406, 848

P2d 1194 (1993)). The Supreme Court has explained that,

although dismissal of nonjusticiable cases was not neces-

sarily required, at least in cases involving matters of pub-

lic interest, existing case law offers guidance concerning

dismissal as a prudential matter. Eastern Oregon Mining

Assoc., 360 Or at 15. Under ORS 14.175, however, we may

decide an otherwise justiciable case that has become moot

if the challenged action is capable of repetition yet evad-

ing review. See Couey v. Atkins, 357 Or 460, 520, 355 P3d

866 (2015) (holding that a court may hear ‘public actions

or cases that involve matters of public interest that might

otherwise have been considered nonjusticiable under prior

case law’).”

Wood v. Wasco County, 294 Or App 155, 158-59, 430 P3d

575 (2018) (footnote omitted) (claim that county’s resolu-

tion to terminate participation in an intergovernmental

agreement violated public meetings law became moot when

county rescinded the resolution and resumed participation).

When a case becomes moot, the consequence is that “the

entire case, including attorney fees, is moot.” Krisor v. Henry,

256 Or App 56, 60, 300 P3d 199 (2013) (emphasis added)

(dismissing dispute over meaning of “public record” for pur-

poses of commencement of limitations period because plain-

tiff’s employment law claim became moot when successful

job applicant ceased employment with defendant county fair

board).

In this case, the court is persuaded to use its discre-

tionary authority pursuant to the standards that the legis-

lature adopted in 2007 specifically to address cases involv-

ing public bodies,7 ORS 14.175. That statute provides:

“In any action in which a party alleges that an act, policy

or practice of a public body, as defined in ORS 174.109, or of

7

Both Defendant and Clackamas County acting through its assessor are

“public bodies” for purposes of ORS 14.175. See ORS 174.109.

Cite as 23 OTR 406 (2019) 413

any officer, employee or agent of a public body, as defined in

ORS 174.109, is unconstitutional or is otherwise contrary

to law, the party may continue to prosecute the action and

the court may issue a judgment on the validity of the chal-

lenged act, policy or practice even though the specific act,

policy or practice giving rise to the action no longer has a

practical effect on the party if the court determines that:

“(1) The party had standing to commence the action;

“(2) The act challenged by the party is capable of rep-

etition, or the policy or practice challenged by the party

continues in effect; and

“(3) The challenged policy or practice, or similar acts,

are likely to evade judicial review in the future.”

There is no question that Plaintiffs, as taxpayers

who received an omitted property notice with respect to

their personal residence, had standing to challenge the

assessment. See ORS 305.275 (prescribing general crite-

ria for appeal of an act or omission of a county assessor);

ORS 311.223(4) (allowing appeal from an omitted property

assessment under ORS 311.216 to 311.232). The court thus

reviews whether the criteria of ORS 14.175(2) and (3) are

satisfied.

Plaintiffs assert that the assessor’s act that led to

their first claim—issuing a single omitted property notice in

lieu of following the requirements in ORS 311.219 and ORS

311.223(2)—is capable of repetition because the Clackamas

County Assessor has not renounced its practice. Defendant

counters essentially that the assessor has done just that,

pointing to advice from county counsel that “I believe we

should change our process to send two notices.” However,

the court is struck by the many events inconsistent with

that advice that occurred thereafter, both in the Magistrate

Division and in this division. Specifically, counsel rendered

her advice to change the notice process on February 6, 2018,

adding, “Otherwise, we are vulnerable to a challenge to the

sufficiency of our process in a timely-filed complaint.” Counsel

stated that Plaintiffs’ complaint “may not be timely” but did

not explain her reasoning for that statement. One month

after that advice, on March 5, 2018, the assessor proceeded

to file a motion to dismiss, devoting four paragraphs of

414 Hoggard I v. Dept. of Rev.

analysis in support of his8 position that the single notice was

adequate. Approximately one month after that, on April 9,

2018, the assessor asked Defendant about the notice pro-

cedures by email. Defendant responded on May 17, 2018,

unambiguously stating as follows:

“For omitted property the taxpayer is given a notice

prior to the correction (20 day show cause letter) and an

opportunity to provide evidence that the property should

not be added. After the expiration of the show cause letter

the assessor’s office instructs the collector’s office to correct

the roll. Immediately after this they are required to send a

2nd notice of the correction to the taxpayer (311.223). The

correction is not considered complete until the taxpayer is

given the 2nd notice (OAR 150-311-0220).”

(Emphases added.) At some point taxpayers, presumably

unaware of any of this dialogue, apparently conceded that

their appeal was untimely and turned their attention to

seeking relief on the alternative grounds that their failure to

appeal on time was due to “good and sufficient cause” under

the special appeal provisions pertaining to alleged over-

valuation of dwellings. See ORS 305.288(5). In an attempt to

establish good cause, Plaintiffs publicly divulged personal

details about themselves and family members, including

Plaintiff Burry’s cancer diagnosis, severe and progressive

shortness of breath, chest pain, near fainting and serious

cardiac arrhythmia, as well as both Plaintiffs’ activities

advocating for their dying sister-in-law and two other close

family members who were undergoing procedures. These

efforts proved unsuccessful, as the magistrate, comparing

facts of other cases, could not determine that Plaintiffs’ dif-

ficulties caused the untimeliness that Plaintiffs had con-

ceded. Hoggard et al. v. Clackamas County Assessor, TC-MD

170389G, 2018 WL 3409632 at *2 (Or Tax M Div July 12,

2018).9

Based on this sequence of events, the court can

only conclude that the assessor chose to persist in asserting

8

The court takes judicial notice that the assessor was Bob Vroman through

April 30, 2018, and that Tami Little was sworn in as his replacement on May 3,

2018.

9

Plaintiffs also claimed, unsuccessfully, that they had been misled by the

language of the 2017 Notice. Id. at *3.

Cite as 23 OTR 406 (2019) 415

a position that counsel had advised was “vulnerable to

a challenge” and that was contrary to the clear direction

of Defendant as the assessor’s supervising body. See ORS

306.115 (“The Department of Revenue shall exercise general

supervision and control over the system of property taxation

throughout the state. The department may * * * give any

order to any public officer or employee that the department

deems necessary * * *.”). Nor can the court understand how

this persistence might be justified as an attempt to have

the validity of the single-notice procedure adjudicated. The

magistrate’s decision states repeatedly, and Defendant

acknowledges, that Plaintiffs—who are not lawyers and

were not then represented by lawyers—had “conceded” that

their appeal was untimely. See Hoggard, 2018 WL 3409632

at *1, 2. As a practical matter, this concession made it highly

foreseeable that the magistrate would not render a reasoned

decision on the timeliness issue, and in fact the magistrate

did accept Plaintiffs’ concession.10 Finally, the court finds it

significant that, when Defendant admitted timeliness in its

Answer in this division, the assessor did not seek to inter-

vene for the purpose of having the timeliness issue adju-

dicated. Although Defendant has admitted that Plaintiffs’

complaint was timely, the only evidence of the assessor’s posi-

tion is a phrase in the 2019 Notice, stating that the asses-

sor is correcting the tax roll to remove the omitted property

assessment “due to the lack of adequate notice regarding

the Assessor’s intent to add omitted property for the 2015/16

and 2016/17 tax years.” Given the assessor’s actions to date,

the court finds this wholly inadequate to instill any confi-

dence that the assessor will conform to correct notice pro-

cedures in the future, either as to Plaintiffs or as to future

taxpayers.

Plaintiffs also assert that the act of issuing a single

notice is capable of evading review. Defendants argue that

the notice itself will promote judicial review, as it includes a

statement of appeal rights. However, Defendant’s argument

10

The record does not specify when or how Plaintiffs conceded untimeliness

in the Magistrate Division. Accordingly, the court does not now attempt to thread

its way among the rules governing (1) a party’s right to shape its case by declin-

ing to litigate certain issues and (2) a party’s stipulating to how the law works

(which does not bind the court). See, e.g., State v. Lyon, 304 Or 221, 231, 744 P2d

231 (1987) (parties “may not by stipulation change the law”).

416 Hoggard I v. Dept. of Rev.

relies on the very notice that is the source of the problem

here. It is true that the 2017 Notice includes a statement of

appeal rights, which the court has reprinted above, but that

same statement also contains a specific deadline to appeal

that is erroneously early. Because the 2017 Notice merely

anticipates the correction of the roll and does not identify

a correct date on which the 90-day period commenced,11

a taxpayer receiving that form of notice would likely give

up, as taxpayers nearly did, once the incorrect deadline

has passed, not realizing that he or she may have weeks

or months left in which to file an appeal after the assessor

issues the annual property tax statement. The risk is par-

ticularly high for residential property, where the annual tax

attributable to an omitted property assessment often will be

too low12 to justify hiring counsel.13 The court concludes that

the short window for appeal (90 days) is comparable to elec-

tion periods and other situations that courts have held can

cause an act to evade review. E.g., Eastern Oregon Mining

Association v. DEQ, 360 Or 10, 16-19, 376 P3d 288 (2016)

(timelines for administrative and judicial review); Couey v.

Atkins, 357 Or 460, 482-83, 355 P3d 866 (2015) (elections);

State ex rel Smith v. Hitt, 291 Or App 750, 754, 424 P3d 749

(2018) (same).

Accordingly, without deciding whether the case

satisfies all of the traditional requirements for mootness

under Oregon case law, pursuant to ORS 14.175, the court

hereby finds in favor of Plaintiffs that, as Defendant admits,

Plaintiffs’ initial appeal was timely. The court rejects the

assessor’s affirmative defense that was grounds for dis-

missal in the Magistrate Division. See Ellison v. Dept. of

Rev., 362 Or 148 at 162-63, 404 P3d 933 (2017), adh’d to as

11

The appeal deadline is only 90 days, whether pursuant to ORS 311.223(4)

or ORS 305.280.

12

For example, a remodel that increases a home’s real market value by a

hypothetical $100,000 might cause an increase in the assessed (taxable) value

of only $70,000 due to Oregon’s Measure 50 and implementing statutes. See Or

Const, Art XI, § 11; see generally AKS LLC v. Dept. of Rev., 23 OTR 300, 316-18

(2019) (computational examples). Assuming a combined tax rate of two percent,

the annual increased tax would be $1,400.

13

The Magistrate Division is an expressly informal forum, in which the

great majority of parties are not represented by counsel. See ORS 305.501(4);

ORS 305.230.

Cite as 23 OTR 406 (2019) 417

modified on recons, 362 Or 527, 412 P3d 201 (2018) (adopt-

ing broad view of “in favor of” as used in ORS 305.490(4));

Comcast Corp. v. Dept. of Rev., TC 4909, 2018 WL 1791945

(Or Tax, Mar 29, 2018) (court can decide attorney fee claims

relating to substantive claim or claims but not “small proce-

dural disputes within a case”). The court will dismiss with-

out prejudice Plaintiffs’ claim for abatement of the omit-

ted property assessment on the grounds that the assessor

already has corrected the roll to remove the assessment and

has refunded the tax at issue. As in any case, the court will

entertain any statement of attorney fees pursuant to Tax

Court Rule 68 C.

Pursuant to law, the assessor is free to assess omit-

ted property for any or all of the tax years at issue, within

the statutory time deadline to do so. Should Plaintiffs initi-

ate a new appeal in the Magistrate Division from any such

assessment for any or all of the tax years here at issue, any

party may petition to have the appeal specially designated

for hearing in this division without the need for a hearing

in the Magistrate Division. If the court grants that petition,

to the extent appropriate the court will consider relevant

facts in the instant matter, including in the Magistrate

Division proceeding in the instant matter, in adjudicating

any claim in such new appeal for attorney fees, costs and

disbursements. Counsel for Plaintiffs are directed to submit

an appropriate form of judgment. Now, therefore,

IT IS ORDERED that Plaintiffs’ Motion for Entry

of Judgment is granted to the extent that the court’s judg-

ment will state that the complaint filed in the Magistrate

Division was timely. Plaintiffs’ motion is denied in all other

respects.

IT IS FURTHER ORDERED that Defendant’s

Motion to Dismiss is granted to the extent that the court’s

judgment will state that Plaintiffs’ complaint filed with this

division of the court is dismissed.