Locals 302 and 612 of the International Union of Operating Engineers Construction Industry Health & Security Fund et al v. Don Morin Inc, No. 2:2010cv00282 - Document 16 (W.D. Wash. 2010)
Court Description: ORDER Granting in part and Denying in part pltfs' 9 Motion for Summary Judgment by Hon. Mary Alice Theiler; Pltfs shall submit revised accounting information within 10 days of this Order. (TF)
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Locals 302 and 612 of the International Union of Operating Enginee...ity Fund et al v. Don Morin Inc Doc. 16 01 02 03 04 05 06 07 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 08 LOCALS 302 AND 612 OF THE INTERNATIONAL UNION OF 09 OPERATING ENGINEERS CONSTRUCTION INDUSTRY HEATH 10 AND SECURITY FUND, et al., CASE NO. C10-0282-MAT 11 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 12 13 14 ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) DON MORIN, INC., ) ) Defendant. ) ____________________________________ ) 15 16 17 INTRODUCTION Plaintiffs – Locals 302 and 612 of the International Union of Operating 18 Engineers-Construction Industry Health & Security Fund, Locals 302 and 612 of the 19 International Union of Operating Engineers-Employers Construction Industry Retirement 20 Fund, Western Washington Operating Engineers-Employers Training Trust Fund (hereinafter 21 collectively “Trust Funds”), and Local 302 of the International Union of Operating Engineers– 22 move the Court for summary judgment against defendant Don Morin, Inc. (Dkt. 9.) This ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -1 Dockets.Justia.com 01 matter was brought pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 02 1001, et seq. (ERISA), to recover delinquent trust fund contributions, liquidated damages, 03 interest, attorney’s fees, and costs. 04 Plaintiffs filed this lawsuit in relation to delinquent contributions for the months of 05 December 2009 and January 2010. Defendant paid the December 2009 contributions just 06 prior to the filing of this lawsuit and the January 2010 contributions after the lawsuit was filed. 07 Plaintiffs, therefore, now pursue the payment of liquidated damages, interest, attorney’s fees, 08 and costs. Plaintiffs seek liquidated damages in the amount of $10,708.93, interest in the 09 amount of $655.80, attorney’s fees in the amount of $3,565.50, and costs in the amount of 10 $485.74. (See Dkts. 11 & 15.) 11 Defendant contends the pleadings on file do not support granting summary judgment 12 and that, even if adequate evidence was offered, the liquidated damages clause at issue in this 13 case is unenforceable as a penalty under Washington law. (Dkt. 13.) For the reasons 14 described below, the Court finds plaintiffs entitled to liquidated damages for the delinquent 15 January 2010 contributions, but not for the delinquent December 2009 contributions. The 16 Court further finds plaintiffs entitled to the interest, attorney’s fees, and costs requested. 17 18 BACKGROUND On April 4, 1996, defendant entered into a compliance agreement wherein it agreed to 19 be bound by the terms and conditions of the Trust Agreements of the three Trust Funds included 20 in this lawsuit. (Dkt. 12, Exs. A, C-E.) The compliance agreement also bound defendant to 21 the collective bargaining agreement between Associated General Contractors of Washington 22 and Locals 302 and 612 of the International Union of Operating Engineers, and any successor ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -2 01 agreements. (Id., Ex. B.) 02 The collective bargaining agreement currently in effect requires defendant to report and 03 pay monthly contributions to the Trust Funds for all employees covered by the agreement on or 04 before the fifteenth day of the month following the month in which the relevant hours were 05 worked. (Id., Ex. B at 20 (Schedule “B” Fringe Benefits, Section 1).) The Trust Agreements 06 require the payment of liquidated damages in an amount equal to twelve percent of the 07 delinquent contributions owed and twelve percent interest accruing upon each monthly 08 contribution delinquency. (See id., Exs. C-E (Art. II, Section 9).) They also require the 09 payment of attorney’s fees, court costs, and reasonable expenses in relation to the collection of 10 delinquent contributions. (Id.) 11 Records submitted by plaintiffs reveal that defendant delinquently submitted its 12 contributions for the months of December 2009 and January 2010. (Id., Ex. F.) The records 13 show a payment on February 17, 2010 for December 2009 contributions due on January 15, 14 2010, and a payment on February 26, 2010 for January 2010 contributions due on February 15, 15 2010. (Id.) Plaintiffs note that payments are typically received on the day prior to the deposit 16 and concede that it most likely received the December 2009 contributions on February 16, 17 2010. (Dkt. 14 at 3, n.1 and 7.) Plaintiffs filed the lawsuit under consideration on February 18 17, 2010. (Dkt. 1.) 19 20 DISCUSSION Summary judgment is appropriate when “the pleadings, depositions, answers to 21 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 22 genuine issue as to any material fact and that the moving party is entitled to a judgment as a ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -3 01 matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 02 The moving party is entitled to judgment as a matter of law when the nonmoving party fails to 03 make a sufficient showing on an essential element of his case with respect to which he has the 04 burden of proof. See Celotex, 477 U.S. at 322-23. 05 Genuine issues of material fact that preclude summary judgment are “disputes over 06 facts that might affect the outcome of the suit under the governing law[.]” Anderson v. Liberty 07 Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a summary judgment motion, the Court 08 must view all facts and inferences therefrom in the light most favorable to the nonmoving party. 09 See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). “[A] party opposing a 10 properly supported motion for summary judgment may not rest upon mere allegation or denials 11 of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” 12 Anderson, 477 U.S. at 256 (citing Fed. R. Civ. P. 56(e)). 13 A. Support for Summary Judgment 14 Defendant first contends that the pleadings on file do not support granting summary 15 judgment. Defendant states that it denied in its Answer the claims alleging breach of contract 16 and asserting damages. It avers that no evidence has been offered, either in the Complaint or in 17 Plaintiffs’ Motion for Summary Judgment, supporting an action on contract for liquidated 18 damages or other remedies. Defendant maintains, therefore, that plaintiffs have failed to 19 demonstrate their entitlement to a judgment as a matter of law under any circumstances. 20 However, the Court, in large part, rejects these contentions. 21 Plaintiffs aver and provide documentation showing that defendant is bound by a 22 collective bargaining agreement, as well as to the terms and conditions of Trust Agreements ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -4 01 which require the payment of liquidated damages, interest, attorney’s fees, and costs in the 02 event of delinquent contributions. Plaintiffs establish that defendant submitted delinquent 03 contributions for the months of December 2009 and January 2010, the amount of liquidated 04 damages and interest owing as a result of those delinquent contributions under the operative 05 documents, and the attorney’s fees and costs incurred as a result of their efforts to recover 06 delinquent contributions and associated damages. 07 Defendant does not dispute that it is bound by the enforceable terms of the operative 08 documents (see Dkt. 13 at 5, n.2), that it failed to timely submit its contributions for the months 09 in question, or that the operative documents require the payment of interest, attorney’s fees, and 10 costs. Nor does defendant dispute the amounts of liquidated damages, interest, attorney’s fees, 11 and costs allegedly incurred under the operative documents. Defendant, instead, argues only 12 that the liquidated damages clause contained within each Trust Agreement is unenforceable as a 13 penalty. 14 For the reasons discussed below, the Court finds plaintiffs entitled to an award of 15 liquidated damages owing for the delinquent January 2010 contributions, interest for both of the 16 months in question, and an award of attorney’s fees and costs. The evidence submitted 17 demonstrates that there are no genuine issues as to any material facts and that plaintiffs are 18 entitled to a judgment as a matter of law with respect to these damages. Defendant’s 19 contention as to insufficient pleading and a lack of evidence supporting summary judgment on 20 these issues is no more than conclusory and, therefore, insufficient to defeat summary 21 judgment. 22 As also discussed below, however, the Court does not find plaintiffs entitled to ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -5 01 summary judgment in relation to all of the damages associated with the delinquent December 02 2009 contributions. That is, plaintiffs fail to submit in their summary judgment motion 03 sufficient argument and evidentiary support for their contention that they are entitled to 04 liquidated damages in relation to those contributions. 05 B. Damages for Delinquent Contributions 06 Defendant contends that the liquidated damages clause at issue in this case is 07 unenforceable as a penalty under Washington law. It points specifically to RCW 62A.2-718, 08 which states: 09 10 11 Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. 12 RCW 62A.2-718(1). 13 Defendant asserts that that the liquidated damages provision at issue, which applies 14 regardless of the length or impact of the delinquency, is clearly a penalty. See Lind Bldg. 15 Corp. v. Pac. Bellevue Dev., 55 Wn. App. 70, 79, 776 P.2d 977 (1989) (“[T]he purpose of 16 awarding damages for breach of contract is to place the damaged party, as nearly as possible, in 17 the position he would be in had the contract been performed. He is not entitled to more than he 18 would have received had the contract been performed.”) (citing Platts v. Arney, 50 Wn.2d 42, 19 46, 309 P.2d 372 (1957)). It asserts that “‘[i]nterest is adequate compensation for any loss 20 occasioned by the debtor’s delay[,]’” Aubrey v. Angel Enters., 43 Wn. App. 429, 434, 717 21 P.2d 313 (1986) (quoting Shepherd v. Continental Bank, 28 Wn. App. 346, 349, 622 P.2d 1310 22 (1981)), and that the imposition of liquidated damages on top of interest accrued constitutes a ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -6 01 windfall for plaintiffs. Defendant stresses that plaintiffs have failed to identify any damages 02 sustained in this case as a result of the delinquent contributions. It notes, as an additional 03 consideration, that it had no opportunity to bargain for the terms contained in the Trust 04 Agreements. 05 Plaintiffs counter defendant’s contentions by asserting that damages associated with the 06 January 2010 contributions are preempted under ERISA and that they are entitled to the 07 damages associated with the December 2009 contributions under federal common law. As 08 discussed below, the Court agrees with plaintiffs’ contention as to liquidated damages for the 09 January 2010 contributions and as to the total amount of interest, attorney’s fees, and costs 10 sought, but finds a lack of support as to liquidated damages for the December 2009 11 contributions. 12 1. 13 ERISA obligates participating employers to make contributions to a multi-employer January 2010 Contributions: 14 trust fund in accordance with the contract and trust agreement. See ERISA Section 515, 29 15 U.S.C. § 1145. It provides, at § 1132(g)(2), specific remedies for delinquent contributions, 16 including, in addition to the unpaid contributions, liquidated damages, interest, attorney’s fees, 17 and costs. As noted, defendant is also bound by Trust Agreements containing terms as to 18 damages owed as a result of delinquent contributions. (Dkt. 9, Exs. C-E.) 19 “Section 1132(g)(2) is ‘mandatory and not discretionary.’” Northwest Adm’rs Inc. v. 20 Albertson’s, Inc., 104 F.3d 253, 257 (9th Cir. 1996) (quoting Operating Eng’rs Pension Trust v. 21 Beck Eng’g & Surveying, Co., 746 F.2d 557, 569 (9th Cir. 1984)). Entitlement to a mandatory 22 § 1132(g)(2) award requires that: “(1) the employer must be delinquent at the time the action is ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -7 01 filed; (2) the district court must enter a judgment against the employer; and (3) the plan must 02 provide for such an award.” Id. (citing Idaho Plumbers & Pipefitters Health & Welfare 03 Fund, 875 F.2d 212, 215 (9th Cir. 1989)). “[M]andatory fees are available under § 1132(g)(2) 04 ‘notwithstanding the defendant’s post-suit, pre-judgment payment of the delinquent 05 contributions themselves.’” Id. at 258 (quoting Carpenters Amended & Restated Health 06 Benefit Fund v. John W. Ryan Constr. Co., 767 F.2d 1170, 1175 (5th Cir. 1985)). 07 Here, it is undisputed that defendant was delinquent in making its January 2010 08 contributions at the time plaintiffs filed this suit and that the Trust Agreements provide for 09 liquidated damages, interest, attorney’s fees, and costs. Plaintiffs are, accordingly, entitled to 10 liquidated damages, interest, attorney’s fees, and costs under § 1132(g)(2) in relation to the 11 January 2010 delinquent contributions. 12 Defendant’s reliance on state law is unavailing. ERISA contains an expansive 13 preemption provision. See generally 29 U.S.C. § 1144 (a) (ERISA “shall supersede any and 14 all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered 15 by ERISA) and (c)(1) (“‘State law’ includes all laws, decisions, rules, regulations, or other State 16 action having the effect of law[.]”); Egelhoff v. Egelhoff, 532 U.S. 141, 146 (2001) (observing 17 that ERISA’s preemption provision is “‘clearly expansive.’”) (sources omitted); General Am. 18 Life Ins. Co. v. Castonguay, 984 F.2d 1518, 1521 (9th Cir. 1993) (“ERISA’s preemption clause 19 is one of the broadest ever enacted by Congress, and it preempts even generally applicable laws, 20 not just laws aimed exclusively at employee benefit plans[.]”) (internal citations omitted). 21 Section 1132(g)(2)(C)(ii) specifically allows for a grant of “liquidated damages 22 provided for under the plan in an amount not in excess of 20 percent[.]” Defendant fails to ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -8 01 support the contention that the liquidated damages provision at issue here, allowing for only 02 twelve percent of delinquent contributions owing, may escape preemption. Indeed, defendant 03 entirely ignores the issue of preemption, focusing instead on distinguishable and inapplicable 04 state law. Because this argument fails and because plaintiffs are entitled to the damages 05 sought in relation to the January 2010 contributions, the Court finds plaintiffs entitled to 06 summary judgment on this issue. 07 2. 08 Plaintiffs concede receipt of defendant’s December 2009 contributions prior to the December 2009 Contributions: 09 filing of this lawsuit and, therefore, the inapplicability of § 1132(g)(2) to damages associated 10 with these delinquent contributions. Section 1132(g)(2) does not preempt alternative 11 contractual remedies when its provisions fail to reach the particular situation in question. 12 Idaho Plumbers, 875 F.2d at 217. Plaintiffs, accordingly, seek damages for the December 13 2009 contributions based on the terms of the collective bargaining agreement and the Trust 14 Agreements. 15 Under federal common law, in order to be deemed enforceable, and not void as a 16 penalty, a liquidated damages provision must meet two conditions: “First, the harm caused by 17 a breach must be very difficult or impossible to estimate. Second, the amount fixed must be a 18 reasonable forecast of just compensation for the harm caused.” Id. (citations omitted).1 “The 19 1 While the parties dispute whether federal or state law controls this issue, neither identifies a 20 relevant distinction between federal and state law. Compare Idaho Plumbers, 875 F.2d at 217 (looking to whether the harm caused by a breach is “very difficult or impossible to estimate[]” and 21 whether the amount fixed is “a reasonable forecast of just compensation for the harm caused.”), with RCW 62A.2-718(1) (looking to whether liquidated damages are “reasonable in the light of the 22 anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.”) Given the similarity in the criteria ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -9 01 parties’ intentions determine whether this second requirement is satisfied. They must make a 02 good faith attempt to set an amount equivalent to the damages they anticipate.” Id. (citations 03 omitted). Where unreasonable, a court will refuse to enforce stipulated damages on public 04 policy grounds. Id. (cited sources omitted). 05 Here, plaintiffs state that the December 2009 liquidated damages are enforceable “based 06 on the language of the liquidated damages provision of the Trust Agreements, and the reasons 07 they give for awarding liquidated damages – in part because it’s too difficult to determine the 08 exact amount of damages.” (Dkt. 14 at 7.) The Trust Agreements state in relevant part: 09 10 11 12 13 14 15 16 17 The parties recognize and acknowledge that the regular and prompt payment of employer contributions to the Fund is essential to the efficient and fair administration of the Fund and the Plan and that the Fund will incur extra administrative expenses in addition to and apart from actual legal fees and costs as a result of any failure of any Individual Employer to pay required monthly contributions in full within the time provided; that the amount of such extra expense has a direct relationship to the number of Employees involved, which in turn has a direct relationship to the total contributions due; and that the actual amount of such extra administrative expense is extremely difficult, if not impractical, to establish. The parties wish to establish in advance of any default, the measure for such extra administrative expense as liquidated damages. Accordingly, the parties agree that if any Individual Employer is delinquent in remitting any required contributions, then unless the Trustees, by affirmative action, waive the same for good cause shown, such delinquent Individual Employer shall be liable for a liquidated damage charge in the sum of twelve percent (12%) of the amount of his delinquency; provided that such liquidated damages shall in no event be less than twenty-five dollars ($25.00) for each month of contributions which is delinquent. 18 19 (Dkt. 12, Exs. C-E (Art. II, Section 9).) Plaintiffs also note that the agreements require 20 damages of only twelve percent of the delinquency, rather than the twenty percent rejected by 21 applied, see id., and the fact that courts in the Ninth Circuit appear to apply federal law, see, e.g., Idaho 22 Plumbers, 875 F.2d at 217, the Court herein applies federal common law in addressing the enforceability of the liquidated damages provision at issue. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -10 01 the Ninth Circuit in Idaho Plumbers. 02 The Court encounters no difficulty in concluding that plaintiffs satisfy the first prong of 03 the above-described two-part test. See Idaho Plumbers, 875 F.2d at 217. Courts have 04 recognized the difficulty in estimating damages caused by delinquent trust fund contributions. 05 See, e.g., Bd. of Trustees v. Udovch, 771 F. Supp. 1044, 1049 (N.D. Cal. 1991) (“When an 06 employer is delinquent in paying contributions into a fringe benefit trust fund, the fund suffers 07 some kinds of harms that are very difficult to gauge. In order to pursue payment, the trust must 08 engage in a number of activities, such as sending additional collection letters, billing 09 statements, and correspondence, and placing follow-up telephone calls, that are made necessary 10 only by the breach but that are so intertwined with on-going operations that their separate value 11 is most difficult to measure. A trust fund pursuing delinquent contributions suffers additional 12 harm through the diversion of employee and executive time and attention from other business 13 matters. Moreover, the plans are subjected to uncertainty about whether the delinquent 14 contributions will ever be collected and the effect the delinquencies will have on the fund’s 15 ability to pay out benefits.”) In this case, the difficulty in accurately forecasting damages, as 16 averred by plaintiffs and stated explicitly in the Trust Agreements, is apparent. 17 Plaintiffs do not, however, succeed in relation to the second part of the applicable test. 18 See Idaho Plumbers, 875 F.2d at 217. In fact, plaintiffs do not make any showing with respect 19 to efforts made to forecast just compensation for the harm caused by delinquent contributions. 20 They proffer no argument or evidence as to the parties’ intentions or the process entailed in the 21 formulation of the liquidated damages provision. Instead, they simply assert that defendant is 22 bound by the plain language of the Trust Agreements and rely on the fact that they seek a lesser ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -11 01 amount than that deemed a penalty in a different case. The relevant language within the Trust 02 Agreements does not provide any further explanation, stating only that the Trust Funds “will 03 incur extra administrative expenses” and “that the amount of such extra expense has a direct 04 relationship to the number of Employees involved, which in turn has a direct relationship to the 05 total contributions due[.]” (Dkt. 12, Exs. C-E.) 06 “Without some indication that the liquidated damages provision is a good faith attempt 07 to set an amount reflective of anticipated damages, [the court] will find the provision void as a 08 penalty.” Parkhurst v. Armstrong Steel Erectors, Inc., 901 F.2d 796, 798 (9th Cir. 1990). See 09 also Idaho Plumbers, 875 F.2d at 218 (rejecting twenty percent liquidated damages provision, 10 leading to damages totaling $9,245.23 for contributions paid four days late, explaining: “Even 11 taking account of lost investment interest and increased administrative costs, these damages are 12 not a reasonable forecast of just compensation. The trust funds provide no explanation for the 13 increase from 10% to 20%. They do not suggest that it corresponded to an increase in 14 administrative or other costs. The trustees had the opportunity and authority to establish a 15 schedule of damages, but failed to do so. The provision was not a good faith attempt to estimate 16 the amount of damages flowing from the breach.”) This remains true whether the provision 17 calls for twenty percent of the delinquent contributions or some lesser amount. See, e.g., 18 Parkhurst, 875 F.2d at 798 (noting appellees’ concession “that the Idaho Plumbers penalty 19 analysis would recognize no difference between a 10% or 20% rate[]” and finding nothing in 20 the record to indicate that liquidated damages provisions at either ten or twenty percent were the 21 result of good faith attempts to forecast damages); Udovch, 771 F. Supp. at 1050 (finding ten 22 percent liquidated damages provision unenforceable as a penalty where it was clear it could not ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -12 01 “be considered a reasonable forecast of only the otherwise uncompensated harm that breaches 02 were likely to cause.”; also rejecting enforceability of twenty percent figure applied in the event 03 of multiple delinquencies). 04 Because plaintiffs fail to make any showing that the twelve percent liquidated damages 05 provision resulted from a good faith attempt to estimate damages flowing from a breach, the 06 Court has no basis for concluding that the provision is enforceable. See Parkhurst, 901 F.2d at 07 798. Plaintiffs, therefore, fail to establish their entitlement to liquidated damages for the 08 delinquent December 2009 contributions. 09 The Court notes, however, that defendant raises no argument as to interest accrued in 10 relation to the December 2009 contributions. Indeed, defendant appears to suggest that the 11 interest constitutes adequate compensation for the harm caused by its failure to timely render its 12 contributions. (See Dkt. 13 at 4 and 6.) Defendant likewise appears to recognize its 13 contractual obligation to pay “costs and fees associated with recovery.” (Id. at 6.) The Court, 14 therefore, finds defendant liable for the interest accrued in relation to the delinquent December 15 2009 contributions, and attorney’s fees and costs associated with recovering those damages. 16 17 CONCLUSION In sum, the Court finds plaintiffs entitled to some of the liquidated damages sought, as 18 well as to interest, attorney’s fees, and costs. Accordingly, Plaintiffs’ Motion for Summary 19 Judgment is hereby GRANTED in part and DENIED in part. Plaintiffs are awarded liquidated 20 damages in the amount of $5,183.12 for the delinquent January 2010 contributions. (See Dkt. 21 12, Ex. F.) Plaintiffs are also entitled to the interest, attorneys’ fees, and costs requested, as 22 outlined above. However, because plaintiffs calculated the amount of interest as of March 4, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -13 01 2010 (id.) and the amount of attorney’s fees and costs as of September 2010 (see Dkt. 15), a 02 revised accounting may now be in order. Accordingly, plaintiffs shall submit such 03 information within ten (10) days of the date of this Order. 04 DATED this 25th day of October, 2010. 05 06 A 07 Mary Alice Theiler United States Magistrate Judge 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAGE -14
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