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finding no bad faith in defendants' delay in raising statute of limitations defense because defendants did not learn of facts forming the basis of such a defense until the plaintiffs deposition
Summary of this case from ZOLL v. JORDACHE ENTERPRISES INC.Opinion
99-CV-0594E(F)
September 7, 2001
MEMORANDUM and ORDER
Plaintiff commenced this action August 24, 1999 alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York Human Rights Law ("HRL"), N Y Exec. Law §§ 290 et seq., in that she had been harassed and retaliated against because of her sex. Presently before this Court is a motion by defendants brought pursuant to Rule 15(a) of the Federal Rules of Civil Procedure ("FRCvP") requesting permission to amend their Answer so as to add certain affirmative defenses and a motion for summary judgment brought pursuant to FRCvP 56. For the reasons that follow, such motions will be granted.
Except as otherwise noted, the following facts are undisputed and, when appropriate, construed in a light favorable to plaintiff. Plaintiff was hired by defendant Perry's Ice Cream Company, Inc. ("Perry's") in August 1983 and was employed by Perry's until her termination in September 1997. Defs.' Statement of Undisputed Material Facts ("Statement") ¶ 1; Pl.'s Mem. of Law at 2. Although she was initially employed as a production worker, sometime in the early 1990's plaintiff became employed as a maintenance administrative technician performing various administrative tasks such as managing Perry's maintenance software system, completing reports, filing, telephone work, preventative maintenance work orders on equipment and dispatching work to other maintenance workers. Statement ¶ 2; Dollard Dep. at 43-45, 55.
Plaintiff contends that there is a genuine issue to be tried with regard to paragraph 2 of the Statement. See Pl.'s Response ~2. Inasmuch as the exact nature of this genuine issue is never explained by plaintiff in any of the materials proffered to this Court, the Statement remains uncontroverted. Moreover and to the extent that plaintiff seeks to defeat defendants' summary judgment motion by creating material issues of fact by contradicting her prior deposition testimony, such will not succeed. See Trans-Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991).
In or about September 1995 Perry's hired George Sterling as Vice-President of Operations and in March 1996 hired Timothy Gominiak as a Maintenance Manager. Statement ¶¶ 3-4. Gominiak was plaintiff's supervisor and reported directly to Sterling. Ibid.
Almost immediately after being hired, Sterling began to make jokes of a sexual nature to plaintiff. Pl.'s Mem. of Law at 2. He stated to plaintiff that he wanted to have a relationship with her like she had had with some of the maintenance men. Ibid. If plaintiff was smiling, Sterling would state "Oh you must have got laid last night" and, if plaintiff was not smiling, he would ask "What's the matter, didn't you get any?" Ibid. In October of 1995 plaintiff went on a trip to Las Vegas and, when she returned, Sterling stated to her that she "had to be careful about that AIDS thing going around." Ibid. When plaintiff questioned Sterling as to what he was implying and he responded "Oh that's right, you went with your mother." Ibid. Plaintiff complained about both of these comments to Gominiak, and to Cheri Sugg at the Human Resource Department, and was told by Sugg that there is not much that can be done because "George is here to stay". Pl.'s Mem. Of Law at 3. In December of 1995, despite the fact that two of plaintiff's immediate supervisors felt that she should have been moved to the inventory office in the basement, Sterling instead moved plaintiff to the production office which made her job more inconvenient. Ibid. Sterling's reason as given to plaintiff, was that he felt that she was a distraction to the maintenance men. Ibid.
In January 1996 plaintiff was excluded from a maintenance department meeting because Sterling did not want her there. Ibid. In March 1996 Sterling stated to Gominiak "I heard that you and [plaintiff] have a thing on the side." Ibid. Once while Gominiak and plaintiff were going over monthly accruals, Sterling asked Gominiak "How long has this been going on you two?" Pl.'s Mem. of Law at 4.
In the Spring 1996 plaintiff was coming out of the palletizing freezer wearing a lab coat when Sterling stared at her breasts and stated "They look cold, would you like me to warm them up for you?" Ibid. Sterling later informed plaintiff that only men should hold her position and that in his previous place of employment a man would be in her position. Ibid.
Plaintiff's office was again moved, this time from the production office to the purchasing office. Ibid. She again complained to Gominiak because this second move made her job more difficult than had the first. Id. at 5. Gominiak responded that, when he tried to convince Sterling to let plaintiff move into the parts crib room because she would be training the maintenance men, Sterling responded "Yeah, what's she training them for?" Pl.'s Mem. of Law at 5.
Plaintiff met with George Denning in the Human Resource Department and was told that "that was just George's way" and that she should "joke back with him." Plaintiff then contacted an attorney who contacted Perry's. This resulted in a letter of apology being placed in plaintiff's personnel file and a payment of $250 to cover attorney's fees. Ibid. Three days later another meeting was held, this time with Gominiak, Sterling, Denning and plaintiff. Statement ~19. During the meeting plaintiff confronted Sterling and he apologized for any inappropriate comments he had made. Id. at ~20. Sterling received corrective discipline in the form of a warning from Perry's president, Jeff Yancey. Id. at ¶ 23. After this meeting Yancey would periodically follow up with Sterling to ensure that he was not making any comments to plaintiff which she could consider offensive. Ibid.
Following this incident, Sterling began to micro-manage plaintiff's work. Her work hours were changed over Gominiak's objection and she was denied compensatory time while others continued to receive it. Pl.'s Mem. of Law at 5. Sterling began telling other employees not to talk to her because she was trouble, and other employees began to joke that her next move would be on the roof of the doghouse. Ibid. Sterling then forced Gominiak to redo plaintiff's evaluations and started telling him that a man should hold her position. Ibid. Despite all of these acts taken by Sterling, plaintiff still received a $750/year raise, which was equal to or exceeded raises given to each of the other employees. Dollard Dep. at 307. Two additional men were hired, both of whom plaintiff trained. She was then notified on September 15, 1997 that her position had been eliminated and the two men whom she had recently trained were assigned her duties. Pl.'s Mem. Of Law at 6. Plaintiff was given two months' severance pay, which defendant had not been obligated to pay. Dollard Dep. at 334. Plaintiff filed her charge with the New York State Division of Human Rights on April 20, 1998.
In the months leading up to plaintiff's termination, Perry's had been experiencing an economic downturn due to an increase in inventory and expenses and a decrease in sales. Statement ¶ 9. In an effort to cut operating costs and expenses, defendant adopted a plan of reorganization which resulted in the elimination of various positions and the termination of eight employees, including plaintiff. Ibid. Sterling had been consulted with respect to the reorganization of the Operations Department, but the terminations were part of a joint decision made by the department heads and approved by Yancey. Id. at ¶ 41. At all relevant times Perry's had a policy prohibiting sexual harassment which was contained in its policy manual, of which plaintiff acknowledges receipt. Statement ¶ 6. Perry's also offered sexual harassment training to its supervisors and managers, including Sterling. Id. at ¶ 10.
In Perry's and Sterling's (hereinafter "defendants'") Answer, filed October 7, 1999, they denied many of the allegations in the complaint and raised two affirmative defenses — viz., (1) that they at all times had exercised and employed diligent efforts and reasonable care to prevent and promptly correct the purported harassing or discriminatory behavior about which plaintiff had complained and (2) that plaintiff unreasonably had failed to take advantage of any preventative or corrective opportunities provided by defendants and otherwise had failed to avoid the harm about which she complained. Defendants then moved on January 31, 2001 for an order seeking relief on two grounds — viz., (1) permitting them to amend their Answer pursuant to FRCvP 15(a) to assert as additional affirmative defenses that the action is barred by the applicable statute of limitations and that plaintiff's claim is barred on the ground that there is an enforceable settlement agreement between plaintiff and defendants which plaintiff accepted as full accord and satisfaction of the claim and (2) granting summary judgment in favor of defendants pursuant to FRCvP 56(b) because there are no material issues of fact and defendants are entitled to judgment as a matter of law.
Under FRCvP 15(a) leave to amend "shall be freely given when justice so requires." Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993). Parties shall be allowed to amend their pleadings in the absence of a showing by the nonmovant of prejudice or bad faith. Ibid; State Teachers Retirement Board v. Fluor Corporation, 654 F.2d 843, 856 (2d Cir 1981). In deciding whether there is in fact "prejudice", the court is to "consider whether the assertion of a new claim would (1) require the opponent to spend significant additional resources to conduct discovery and prepare for trial, (2) significantly delay the resolution of the dispute or (3) prevent the plaintiff from bringing a timely action in another jurisdiction." Block, at 350.
Plaintiff opposes defendants' motion to amend their Answer to add the affirmative defense of the statute of limitations solely on the ground that this defense is without merit. Pl.'s Mem. of Law at 6. This Court summarily rejects this argument and will allow defendants to amend their Answer to add such defense.
Plaintiff's argument is unsound both in law and in fact. Merit of a proposed affirmative defense is not one of the factors that the Second Circuit Court of Appeals has instructed this Court to weigh when deciding whether to allow a party to amend its pleading. Block, at 350. Therefore, in the absence of bad faith or undue prejudice this Court will allow defendants to amend their Answer to add the affirmative defense of statute of limitations.
Notwithstanding this fact, even if merit of the claim was a factor to which this Court is to look, the defense of statute of limitations does have merit because the continuing violation exception to the statute of limitations is not applicable to these facts. See infra.
Plaintiff has not produced any evidence of bad faith regarding defendants' not having raised this defense in their original Answer and there is not any such in the parties' papers. It was not until plaintiff's deposition — after the Answer had been filed — that defendants were able to determine that plaintiff's claims of sexual harassment were based almost entirely on incidents which had not occurred during the statutory period of limitations. Therefore, plaintiff has failed to meet her burden of showing that defendant had been motivated by bad faith in failing to raise the statute of limitations defense until this late stage.
Plaintiff also has not produced any evidence of undue prejudice. If this Court were to allow the defendants to amend their Answer, such would not require the plaintiff to expend significant additional resources or conduct discovery and prepare for trial because all the instances of alleged sexual harassment have already been discovered. Also, the resolution of the dispute would not be significantly delayed because, if defendants amend their Answer and this Court finds in their favor, such will end the dispute. There also is no possibility that plaintiff could bring the action in another jurisdiction. Because plaintiff has not met any of the factors set forth in Block, she cannot meet her burden of showing undue prejudice and this Court will therefore allow defendants to amend their Answer to assert the statute of limitations as an affirmative defense. Block, at 350.
This Court also rejects plaintiff's argument that defendants should not be allowed to amend their pleadings to add the affirmative defense of "accord and satisfaction." Plaintiff argues only that defendants should not be allowed to amend their Answer because the defense is without merit in that defendants have produced no evidence of a waiver of any sort. Pl.'s Mem. of Law at 7. While not getting to the issue of whether the $250 given to plaintiff constitutes an accord and satisfaction, this Court rejects plaintiff's argument because, as mentioned above, the merit vel non of a defense is not a factor. This Court also notes that, for the same reasons listed above, the record reflects no evidence of bad faith by defendants in failing to raise such affirmative defense until now and there is not any evidence that plaintiff will be unduly prejudiced by allowing defendants to so amend their Answer.
Under Title VII plaintiff must have filed her claim with the Equal Employment Opportunity Commission within 180 days of the violation or where, as is the case here, plaintiff first files with the state or local employment agency, the claim must be filed within 300 days. 42 U.S.C. § 200e-5(e)(1). Plaintiff filed her charges on April 20, 1998. Curran Aff. Ex. L ¶ 20. Therefore, plaintiff's claim is timely only with respect to conduct that occurred on or after June 24, 1997. Much of that upon which plaintiff relies happened, however, well before such date.
In response to this, plaintiff argues that the alleged incidents of sexual harassment fall under the continuing violation exception under which the commencement of the statutory period of limitations is delayed until the last discriminatory act in furtherance of a continuous practice and policy of discrimination. Gomes v. Ayco, 964 F.2d 1330, 1333 (2d Cir. 1992). Such exception applies "when there is evidence of an ongoing discriminatory policy or practice such as use of discriminatory seniority lists or employment tests." Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Short of this, the continuing violation exception may also be applied if "specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
Evidence that an employer took prompt action in response to a sexual harassment claim will prevent a plaintiff from showing that "specific related instances of discrimination" amount to a discriminatory policy. Van Zant, at 713. By plaintiff's own admission, Perry's acted swiftly once it had become aware of the actions of Sterling. Dollard Dep. at 157. Therefore, the continuing violation exception will not apply and this Court will not look to any of defendants' actions which occurred prior to June 24, 1997.
Plaintiff's reliance on Cornwell for the proposition that she has been the victim of specific related instances of discrimination is misplaced. While plaintiff was the victim of a number of acts of sexual harassment, these instances do not even approximate the degree and frequency of harassment suffered by the plaintiff in Cornwell. In addition and unlike the present case where Perry's took prompt action to try and remedy the situation, the defendant in Cornwell and its supervisory personnel allowed the harassment to continue. Id. at 704.
Accordingly, defendants' motion for leave to amend their Answer to assert the affirmative defenses of "statute of limitations" and "accord and satisfaction" will be granted.
Defendants next move for summary judgment on both the sexual harassment claim and the retaliation claim. FRCvP 56(c) states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party." Adkins v. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in her pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e).
Title VII states that "[i]t shall be an unlawful employment practice for an employer *** to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII "not only covers `terms' and `conditions' in the narrow contractual sense, but `evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.'" Oncale v. Sandowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). A "plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive working environment;" however, for such "sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Meritor, at 66, 67. "A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Karibian v. Columbia University, 14 F.3d 773, 779 (2d Cir. 1994), cert. denied, 512 U.S. 1213 (1994). Although whether the alleged sexual harassment constitutes a Title VII violation is determined from the totality of the circumstances, "the incidents [of sexual harassment] must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Carrero v. New York City Housing Authority, 890 F.2d 569, 577-578 (2d Cir. 1989). "[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex;" it is sufficient that the "harasser is motivated by general hostility to the presence of women in the workplace." Oncale, at 80.
Plaintiff also brings her claim under the HRL, N.Y. Exec. Law § 296. However, because the standards thereunder are the same as for Title VII, this claim will not be discussed separately. Ferrante v. American Lung Association, 90 N.Y.2d 623, 629 (1997); Van Zant, at 714-715.
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Defendants have moved for summary judgment dismissing plaintiff's sexual harassment claims on three grounds — viz., (1) the alleged harassment was neither severe nor persuasive and does not constitute unlawful harassment, (2) Perry's exercised reasonable care to prevent and correct sexual harassment and (3) plaintiff's claim for sexual harassment is time barred. Defs.' Mem. at 8-13.
It may very well be possible that defendants have moved for summary judgment on more than three grounds; however, defendants' counsel has neglected to include pages 14-17 of their Memorandum of Law in support of their motion for summary judgment and said pages fall right in the middle of defendants' artfully drafted grounds on which they were seeking summary judgment.
This Court has previously noted that defendants will be allowed to amend their Answer to assert the defense of statute of limitations. Therefore, in determining whether or not defendants' conduct constitutes sexual harassment, this Court will only look to alleged incidents of sexual harassment occurring after the June 24, 1997 cutoff date.
"Isolated, minor acts or occasional episodes do not warrant relief" under Title VII. Brennan v. Metropolitan Opera Assen, Inc. 192 F.3d 310 (2d Cir. 1999). According to plaintiff's own Memorandum of Law, the only even arguably harassing conduct by defendants after June 24, 1997 consisted of statements by Gominiak that Sterling wanted to get rid of plaintiff because of her gender. Pl.'s Mem. of Law at 6. This Court finds that these are the type of sporadic incidents that, as a matter of law, do not fall within Title VII and defendants' motion for summary judgment shall therefore be granted as to plaintiff's sexual harassment claims.
Because this Court finds as a matter of law that the conduct of defendants does not rise to the level of sexual harassment, it is unnecessary to address whether a valid accord and satisfaction was actually entered into between plaintiff and defendants.
42 U.S.C. § 2000e-(3)a prohibits an employer from retaliating against an employee who opposes an unlawful employment practice. Under the test set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), plaintiff must show by a preponderance of the evidence (1) participation in a protected activity known to the defendant, (2) an employment action that disadvantages the plaintiff and (3) a causal connection between the protected activity and the adverse employment action.
Even if a plaintiff presents a prima facie case of discrimination, a defendant may rebut such by showing a legitimate non-discriminatory reason for the termination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1991). The articulation of a non-discriminatory reason for the termination rebuts the presumption of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-511 (1993). The burden then shifts to plaintiff to show that this proffered non-discriminatory reason is mere pretext for discrimination. Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000). The Second Circuit Court of Appeals has described plaintiff's burden as having to "produce not simply some evidence but sufficient evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the [defendant] were false and that more likely than not [discrimination] was the real reason for the employment action." Ibid.
Defendants have moved for summary judgment dismissing plaintiff's retaliation claim on three grounds — viz., (1) plaintiff cannot establish a prima facie case of retaliation, (2) defendants have articulated a legitimate, nondiscriminatory reason for plaintiff's discharge and (3) there is no evidence from which a reasonable jury could conclude that defendants' articulated reason for discharging plaintiff was both false and a pretext for retaliation. Defs.' Mem. of Law at 13-18.
Plaintiff states that, after she had filed her complaint with Perry's and met with its Human Resource Department, Sterling began to micro-manage her work. He changed her work hours (over the objection of Gominiak), denied her compensatory time and instructed another employee not to talk to her. Gominiak told her that Sterling forced Gominiak to redo her evaluation. Also, work formerly performed by plaintiff began to be performed by male employees whom plaintiff had trained and it was these same employees who performed many of her responsibilities after plaintiff had been terminated. Pl.'s Mem. of Law at 5-6.
Plaintiff has met the first two prongs of the McDonnell Douglas test; her filing of a claim with Perry's Human Resource Department was her protected activity and her termination was a disadvantageous employment action. However, plaintiff has not put any evidence forward to show any causal connection between the filing of a claim and her eventual firing. The record reflects only that plaintiff complained to Perry's about Sterling's conduct on June 14, 1996 and that she was fired on September 15, 1997. The only other things that plaintiff has shown are that, during this fifteen-month interval, there were a number of incidents of plaintiff being told by Gominiak of allegedly discriminatory comments by Sterling toward plaintiff, of Sterling's changing plaintiff's work hours, of Sterling's denial of her compensatory time and of Sterling's beginning to micro-manage plaintiff's work. Pl.'s Mem. of Law at 5-6.
"Proof of a causal connection can be established directly through evidence of retaliatory animus directed against the plaintiff or indirectly by showing that the protected activity was followed closely by the discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct." Richardson v. New York State Dept. of Corr. Ser., 180 F.3d 426, 447 (2d Cir. 1999). Here the protected activity occurred during the plaintiff's initial informal complaints about Sterling's activities in June 14, 1996 yet plaintiff was not fired until September 1997, fifteen months later. This period of time is simply too lengthy for plaintiff to assert that the proximity of the termination to the protected activity can be indirect evidence of causal connection. Richardson, at 447. Recognizing this, plaintiff tries to salvage her claim that there was a causal connection by claiming that there is in fact direct proof of causation based on a retaliatory animus directed at plaintiff — namely, the micro-managing of her work and the reduction in her evaluations. Pl.'s Mem. of Law at 14. While these activities might well be classified as unfortunate, this Court finds that they in no way rise to the level of a retaliatory animus. Therefore, plaintiff has failed to put forth the necessary showing of a causal connection between her filing of a complaint with Perry's and her firing.
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Notwithstanding the above, even if plaintiff could successfully show a causal connection between her filing a complaint with Perry's and her eventual discharge, defendants could rebut the claim of retaliatory discharge by offering a legitimate non-retaliatory reason for the discharge. Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001). This Court is convinced that the general reduction in force in Perry's is a legitimate non-retaliatory reason for her firing. This shifts the burden "back to plaintiff to establish, through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation." Ibid. In an attempt to meet this burden, plaintiff points to four facts — viz., (1) Sterling was the decision maker in determining who was to be terminated, (2) there is no evidence that it was necessary to eliminate plaintiff's position, (3) there is no evidence that options other than terminating plaintiff were investigated and (4) any justification defendants may have had for terminating plaintiff based on legitimate, non-retaliatory reasons was undermined by their transfer of plaintiff's duties to Messrs. Jurewicz, Dunker and Bruno, whom plaintiff had herself trained. Pl.'s Mem. of Law at 14. This Court is unconvinced. What plaintiff has offered is not proof but is her own explanation of what factors she felt went into the determination to fire her and is not enough to satisfy her burden.
Plaintiff does not know that it was Sterling who in fact was the decision maker in determining who was to be terminated, and Perry's denies such. Statement ~41. Plaintiff's arguments that there was no evidence that it was necessary to eliminate her position or that other options were not investigated is an impermissible attempt to shift the burden of proof to defendant. There are many inferences, other than discrimination, which can be drawn from the fact that plaintiff's former responsibilities were transferred to men. The fact that there was a fifteen-month interval between the filing of a complaint and plaintiff's firing is further proof that the reasons given for her firing were not pretextual. The burden of proof to show pretext shifted to plaintiff and this Court is unconvinced that she has met this burden. Therefore, plaintiff has failed to make out a prima facie claim of retaliatory discharge.
Accordingly, it is hereby ORDERED that defendants' motion to amend their pleadings to add the affirmative defenses of statute of limitations and accord and satisfaction is granted, that defendants shall serve and file their intended amended answer within ten days of this Order, that defendants' motion for summary judgment on plaintiff's claim for sexual harassment and retaliation will be granted upon the filing of defendants' amended answer without further order of this Court and that this case shall thereupon be closed.