Opinion
Civil Action No. 19-cv-03153-RM-NYW
05-18-2020
WESLEY FELTS, Plaintiff, v. STALLION OILFIELD SERVICES LTD., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before this court for recommendation on the following two motions:
(1) Defendant Stallion Oilfield Services Ltd.'s ("Defendant" or "Stallion") Motion to Dismiss Plaintiff's First Amended Class and Collective Action Complaint for Failure to State a Claim (the "Motion to Dismiss"), filed January 17, 2020, [#16]; andThe presiding judge, the Honorable Raymond Moore, referred these Motions to the undersigned pursuant to 28 U.S.C. § 636(b) and the Memoranda dated January 23, 2020 and March 13, 2020. [#22; #32]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, upon review of the Motions and associated briefing, the applicable case law, and being fully advised in their premises, this court respectfully RECOMMENDS that the Motion to Dismiss be DENIED as moot and the Motion to Amend be GRANTED.
(2) Plaintiff Wesley Felts's ("Plaintiff" or "Mr. Felts") Motion for Leave to Amend (the "Motion to Amend"), filed March 13, 2020, [#30].
BACKGROUND
This court draws the following facts from the First Amended Complaint and presumes they are true for purposes of the instant Motions. Mr. Felts, a resident of Idaho, is a former employee of Stallion—an oilfield service company headquartered in Denver, Colorado. [#13 at ¶¶ 2-3, 5]. As part of his employment, Mr. Felts provided "solids control services at various locations in North Dakota and Wyoming." [Id. at ¶ 5]. Mr. Felts alleges Stallion failed to provide overtime compensation at the federally mandated time-and-a-half rate for the hours Mr. Felts worked in excess of 40-hours per week, which included his travel time to and from his home in Idaho to remote worksites. See [id. at ¶ 6]. According to Mr. Felts, Stallion failed to pay overtime compensation to all of its non-exempt employees. See [id. at ¶ 7].
Believing Stallion violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and analogous North Dakota state law and regulations, N.D.C.C. §§ 34-01 et seq. and N.D.A.C. § 46, Mr. Felts initiated this civil action on November 6, 2019. See [#1]. Following leave to file an amended pleading, Mr. Felts filed his operative First Amended Complaint on January 6, 2020. [#13]. Pursuant to the First Amended Complaint, Mr. Felts asserts two claims against Stallion: (1) violations of the FLSA's overtime compensation provisions ("Claim 1") and (2) violations of North Dakota's state law and regulations regarding overtime compensation ("Claim 2"). See generally [id.]. Further, Mr. Felts seeks class certification under Rule 23 of the Federal Rules of Civil Procedure and collective action certification under § 216(b) of the FLSA for "ALL CURRENT OR FORMER STALLION EMPLOYEES WHO WORKED IN NORTH DAKOTA AND WHO WERE NOT PAID PROPERLY FOR TRAVEL TIME WITHIN TWO YEARS OF THE FILING DATE OF THIS LAWSUIT." [Id. at ¶ 8 (emphasis in original)].
On January 17, 2020, Stallion filed its Motion to Dismiss, arguing the Portal-to-Portal Act, 29 U.S.C. § 254, and its implementing regulations, 29 C.F.R. §§ 758.33-41, eliminated travel time to and from work as compensable work, either at regular or overtime rates. See [#16]. Plaintiff has since responded to the Motion to Dismiss and Defendant replied. See [#23; #25]. On March 13, 2020, Mr. Felts filed the instant Motion to Amend, wherein he seeks to amend his First Amended Complaint to clarify that the travel time he (and others) seek compensation for was not ordinary to and from work travel time, and therefore is compensable under the FLSA. See [#30]. Stallion has since responded to the Motion to Amend and Plaintiff replied. See [#34; #35]. Following the filing of the instant Motions, the undersigned conducted a Scheduling Conference with the Parties on April 30, 2020. See [#36]. Relevant here, the undersigned set April 17, 2020 as the deadline for joinder of parties and amendment of pleadings. See [#37 at 8].
The Motions are now ripe for recommendation. The following analysis begins with a discussion of the Motion to Amend as an amended complaint supersedes and nullifies a previous pleading and generally moots any motion to dismiss aimed at an inoperative pleading. See Scott v. Buckner Co., 388 F. Supp. 3d 1320, 1323-24 (D. Colo. 2019). Further, because Stallion opposes the Motion to Amend on futility grounds (among others) for the same reasons asserted in its Motion to Dismiss, see [#34 at 2-3], I consider Stallion's Motion to Dismiss within the context of the Motion to Amend in the interest of judicial economy. See Hernandez v. Valley View Hosp. Ass'n, No. 10-cv-00455-REB-MJW, 2010 WL 5157310, at *1 n.3 (D. Colo. Dec. 14, 2010) (disavowing the notion that futility arguments "put the cart before the horse" because it delays evaluation of the inevitable motion to dismiss the amended pleading).
ANALYSIS
I. The Motion to Amend
A. Leave to Amend
When, as here, a plaintiff seeks leave to amend prior to the deadline for amendment of pleadings and joinder of parties set by the court, Rule 15(a)(2) governs the court's analysis. See Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Rule 15(a)(2) provides that courts are to grant leave to amend "freely . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). The Rule's purpose is "to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties." Warnick v. Cooley, 895 F.3d 746, 755 (10th Cir. 2018) (internal quotation marks omitted).
"A court may deny leave, however, on account of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment." Hasan v. AIG Prop. Cas. Co., 935 F.3d 1092, 1101-02 (10th Cir. 2019) (internal quotation marks omitted). Further, a court may deny leave to amend in the absence of a formal motion requesting leave to amend, because a "bare request to amend in response to a motion to dismiss" does not alert the court or opposing party of the request to amend or the basis for it. Johnson v. Spencer, 950 F.3d 680, 721 (10th Cir. 2020) (internal quotation marks omitted); see also D.C.COLO.LCivR 7.1(d) (prohibiting the inclusion of a motion within a response). Whether to permit amendment is within the court's discretion. See Llacua v. W. Range Ass'n, 930 F.3d 1161, 1189 (10th Cir. 2019).
Plaintiff requests leave to amend his First Amended Complaint as an alternative to outright dismissal should the court be inclined to grant Defendant's Motion to Dismiss. See [#30]. Specifically, Plaintiff seeks to amend paragraph six of his First Amended Complaint to now allege:
This court agrees with Stallion that Plaintiff's request for leave to amend buried in a footnote of his Response to the Motion to Dismiss is insufficient. See Johnson v. Spencer, 950 F.3d 680, 721 (10th Cir. 2020) (internal quotation marks omitted); see also D.C.COLO.LCivR 7.1(d).
Although Plaintiff was required to work more than forty (40) hours per workweek, Plaintiff was not compensated at the mandated time and one-half rate for all of his overtime hours. In particular, Stallion failed to pay Plaintiff for all of his travel time to and from remote worksites. No overtime exemption applies to Plaintiff. The particular travel time at issue is not normal daily commuting time but, instead is the travel time from the homes[#30-1 at ¶ 6 (alterations in original)]. Stallion opposes the Motion to Amend for two reasons (though not in this order): undue delay and futility. I consider each in turn./lodgingof Stallion's employees to the worksite at the beginning and end of multi-day "hitches" during which the employees lived away from home. This travel was performed during regular working hours and, therefore, is compensable undere.the FLSA, 29 C.F.R. §785.39, and North Dakota state law, N.D.A.C. §46-02-07-02(7). This time was compensable work but was not paid correctly in violation of the FLSA and North Dakota state law.
B. Undue Delay
Stallion argues Mr. Felts waited to file his Motion to Amend "ninety-two (92) days" from the Parties' "conferral regarding the deficiencies in Plaintiff's original Complaint," "sixty-seven (67) days" from filing the First Amended Complaint, "fifty-six (56) days" from Stallion filing its Motion to Dismiss, "thirty-five (35) days" from Plaintiff filing his Response to the Motion to Dismiss, and "twenty-one (21) days" from Stallion filing its Reply to the Motion to Dismiss. See [#34 at 3]. Further, Stallion argues Mr. Felts provides no legal or factual justification for the delay—"a delay that has caused Stallion significant time and resources to respond to Plaintiff's continued insufficient pleadings." [Id.]. I respectfully disagree.
To be sure, unexplained delays of a significant duration may justify denial of a motion to amend. See, e.g., Llacua, 930 F.3d at 1189-90 (finding an unexplained delay of more than a year to file an amended pleading constituted undue delay); Zisumbo v. Ogden Reg'l Med. Ctr., 801 F.3d 1185, 1195-96 (10th Cir. 2015) (finding undue delay where the plaintiff sought to amend his pleading nearly two years after litigation began and nearly four months after the deadline for amendment of pleadings). But Mr. Felts filed his Motion to Amend on March 13, 2020, well ahead of the Scheduling Conference on April 30, 2020 and the April 17, 2020 deadline for amendment of pleadings and joinder of parties. See Church Mut. Ins. Co. v. Coutu, No. 17-CV-00209-RM-NYW, 2018 WL 822552, at *4 (D. Colo. Feb. 12, 2018) (concluding that amendment was timely when filed by the deadline for amendment of pleadings); cf. Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010) (concluding that the district court erred in denying leave to amend where the plaintiff sought leave to amend only 10 days after the deadline for amendment of pleadings and explained that a medical condition caused the delay).
Nor does is this court convinced that any delay in filing the Motion to Amend is solely Mr. Felts's fault, see, e.g., [#11; #12; #14; #15; #26; #27; #29; #31; #33], or would result in any prejudice to Stallion. While this court is mindful of the resources expanded by the Parties in this matter, the "expenditure of time, money, and effort alone is not grounds for a finding of prejudice." Bylin v. Billings, 568 F.3d 1224, 1230 (10th Cir. 2009). Rather, a court may find prejudice where the amendment raises a different subject matter than that raised in the complaint and presents significant new factual issues. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006). Such is not the case here, as Plaintiff merely attempts to cure deficiencies asserted by Stallion in its Motion to Dismiss. Further, this case is still in its incipiency given the recent entry of a Scheduling Order on April 30, 2020. Accordingly, this court turns to whether permitting amendment is futile.
C. Futility
In some instances, courts may deny leave to amend when amendment would be futile. Moya v. Garcia, 895 F.3d 1229, 1239 (10th Cir. 2018). "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (internal quotation marks omitted). Whether an amendment is futile "is functionally equivalent" to whether a complaint, as amended, would survive a Rule 12(b)(6) motion to dismiss. See Bauer v. City & Cty. of Denver, 642 F. App'x 920, 925 (10th Cir. 2016) (quoting Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999)).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the "court accepts as true all well-pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff." Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
Stallion argues that amendment is futile because the Portal-to-Portal Act and its implementing regulations eliminated compensation for travel time to and from work, regardless of where or how far an employee must travel. See [#34 at 2]. Stallion further contends that precedent from the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") and North Dakota explicitly reject Mr. Felts's overtime claims. See [id. at 2-3; #16 at 2-5; #25 at 2-3]. According to Stallion, both Mr. Felts's First Amended Complaint and his proposed Second Amended Complaint concern travel time to and from work that neither the FLSA nor North Dakota state law deems compensable. I respectfully disagree.
"The FLSA generally requires covered employers to pay its employees overtime pay for work in excess of forty hours a week" to compensate for the "wear and tear of extra work," Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th Cir. 2011) (internal quotation marks omitted), and to do so "at a rate not less than one and one-half times the regular rate at which he is employed," 29 U.S.C. § 207(a)(1). The FLSA does not define the term "work" and so courts broadly construed the term in considering whether an employee's activities were required by the employer for the employer's benefit and therefore compensable, or whether such activities were for the employee's sole benefit and therefore not compensable. See United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1116 (10th Cir. 1999). Relevant here, the Supreme Court of the United States held that time spent by employees walking or riding to their workstation was compensable. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691-92 (1946) (holding, "the time necessarily spent by the employees in walking to work on the employer's premises, following the punching of the time clocks, was working time within the scope of [§ 207(a)]."); Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944) (holding that a mine worker's travel time from the mine opening to his workstation was compensable work).
Given the "flood of litigation" that followed the Court's pronunciations of compensable work, Congress "responded swiftly" and enacted the Portal-to-Portal Act, 29 U.S.C. §§ 251 et seq. Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 31-32 (2014). The Portal-to-Portal Act explicitly exempted from minimum wage and overtime compensation:
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities.
29 U.S.C. § 254(a)(1)-(2); accord 29 C.F.R. § 790.7(f) (providing the examples of walking or riding between a plant gate and workstation or riding on a bus between a town and outlying worksite as non-compensable travel time). But the Supreme Court clarified that the Portal-to-Portal Act, despite these exclusions, did not disrupt the Court's prior descriptions of the term "work," and thus did not exclude compensation for any walking or riding that occurred "after the beginning of the employee's first principal activity and before the end of the employee's last principal activity." IBP, Inc. v. Alvarez, 546 U.S. 21, 28, 37 (2005). And the Supreme Court has held that "principal activity" means all activities that are "integral and indispensable" to the activities "an employee is employed to perform," i.e., an activity that is "an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." Integrity Staffing Sols., Inc., 574 U.S. at 33, 37; see also id. at 36 ("The integral and indispensable test is tied to the productive work that the employee is employed to perform," not merely activities the employer "required" (emphasis in original)).
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
In implementing the Portal-to-Portal Act, and consistent with Supreme Court precedent, federal regulations include as compensable worktime any travel that is "part of [an employee's] principal activity, such as travel from job site to job site during the work day," 29 C.F.R. § 785.38, but exclude "ordinary home to work travel," regardless of "whether he works at a fixed location or at different job sites," id. § 785.35. Federal regulations also provide for compensation of any travel time if it "keeps an employee away from home overnight . . . when it cuts across the employee's workday," whether for "hours worked on regular working days during normal working hours [or] during the corresponding hours on nonworking days." Id. § 785.39. The Parties dispute whether the travel time at issue is "ordinary home to work travel" which is not compensable, id. § 785.35, or whether it is "travel away from home . . . [that] cuts across the employee's workday" which is compensable, id. § 785.39.
North Dakota's administrative regulations implementing North Dakota's wage and overtime compensation law parallel federal regulations. See N.D. Admin. Code § 46-02-07-02(7) ("Ordinary travel from home to work need not be counted as work time. . . . Travel away from home is work time when performed during the employee's regular working hours. Time spent traveling on nonworking days during regular working hours is work time.").
Defendant argues that as pleaded in the First Amended Complaint and in the proposed Second Amended Complaint Mr. Felts seeks recovery of overtime wages for non-compensable "ordinary home to work travel." See [#16 at 3-5; #25 at 2-4; #34 at 2-3]. Because of this, Stallion argues that not only is amendment futile, but Plaintiff's claims should be dismissed. To support its position, Stallion relies on Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006). In Smith, several former employees of Aztec Well Servicing Company ("Aztec") sought compensation for their travel time to and from Aztec's natural gas and oil wells under the FLSA. Id. at 1276. The former employees would meet at a convenience store before their shifts, carpool to the wellsite—some of which were in remote locations hours away, and then return to the convenience store at the end of their shift before heading home. Id. at 1280-82. Despite a favorable jury verdict in the former employee's favor, the district court granted Aztec's motion for judgment as a matter of law, concluding that the travel time to and from the wells was not compensable worktime. See id. at 1283. The Tenth Circuit affirmed on appeal. It held that travel time to and from the wells was not compensable, because it was not "integral and indispensable" to the former employee's principal activity; there was no evidence the former employees were required to meet and perform work, or receive necessary instructions, or load and haul necessary equipment prior to traveling; and there was no evidence the former employees performed "integral and indispensable" activities while traveling. See id. at 1288-92. Stallion believes Mr. Felts seeks compensation for the same travel time that the Tenth Circuit precluded in Smith.
Mr. Felts counters that the travel time he seeks compensation for is not ordinary home to work travel, but rather is "travel away from his home community before and after extended 'hitches' consisting of multiple workdays." [#35 at 2]; see also [#23 at 2-3 (arguing his travel required him to travel many hours to out-of-state worksites "where he lived for days or weeks at a time before returning home.")]. In his proposed Second Amended Complaint, Mr. Felts alleges that this travel time "is not normal daily commuting time but, instead is the travel time from the homes of Stallion's employees to the worksite at the beginning and end of multi-day 'hitches' during which the employees lived away from home" and which "occurred during regular working hours." [#30-1 at ¶ 6 (alterations omitted)]. According to Mr. Felts, such time is compensable under § 785.39.
While this court would prefer a more robust pleading, I conclude that taking this allegation as true and drawing all reasonable inferences in Plaintiff's favor, as this court must at this stage, Plaintiff's proposed amendment is not futile as a matter of law. Most notably, I find Stallion's reliance on Smith misplaced. In Smith, while some wells were several hours away, there was no evidence or allegation that this kept the former employees "away from home overnight" as contemplated by § 785.39. Rather, it appeared that the former employees returned home after each shift, regardless of whether the well was several hours away. See Smith, 462 F.3d at 1280 ("The 24-hour crews work in eight-hour shifts at the rig, and commute back and forth to the well site each day.") (emphasis added). But Mr. Felts alleges he is an Idaho resident who performed work in North Dakota and Wyoming for Stallion, see [#13 at ¶¶ 2, 5], and his proposed Second Amended Complaint clarifies that this required him to travel during regular working hours to remote worksites where he lived away from home for multi-day "hitches." See [#30-1 at ¶ 6]. Such an allegation falls within § 785.39's ambit, and this court does not read Smith to foreclose such claims. See [#25 at 3 (arguing that Smith precludes claims for out-of-state travel time during normal working hours)].
The same is true for the two additional cases Stallion cites in its Motion to Dismiss, MacDonald v. Covenant Testing Technologies, LLC, No. 18-CV-02290-NRN, 2019 WL 1755282, at **5-6 (D. Colo. Apr. 18, 2019), and Eagle v. Freeport-McMoRan, Inc., No. CV 15-577 MV/SMV, 2018 WL 4621737, at **5-6 (D.N.M. Sept. 26, 2018), because neither dealt with allegations regarding travel during normal hours to out-of-state worksites that required overnight stays.
In Lewis v. Sentry Electrical Group, Inc., No. 1:19-CV-00178, 2020 WL 33018 (S.D. Ohio Jan. 2, 2020), the United States District Court for the Southern District of Ohio reached a similar conclusion based on similar allegations. There the plaintiff alleged he was required to travel hundreds of miles from his home to worksites, necessitating an overnight stay, but the defendant had a policy of not compensating employees for this time. See id. at *1. The defendant characterized this travel as ordinary home to work travel under § 785.35 and moved to dismiss the plaintiff's overtime compensation claim. See id. at **2, 3. The court disagreed, and concluded that the plaintiff's allegations, if proven true, "plausibly state a claim for relief against Defendant based on the language of 29 C.F.R. § 785.39." Id. at *3. I find the same to be true here. Cf. Epps v. Scaffolding Solutions, LLC, No. 2:17cv562, 2019 WL 3363790, at **3, 12-13 (E.D. Va. April 2, 2019) (concluding that the defendant violated § 785.39 where the plaintiffs presented undisputed evidence that they travelled to out-of-state worksites during working hours, requiring overnight stays in hotels, but were not compensated for this travel time); Mendez v. Radec Corp., 232 F.R.D. 78, 85-88 (W.D.N.Y. 2005) (granting summary judgment to the plaintiffs because they established that the defendant did not compensate them for out-of-state travel during regular working hours that required an overnight stay).
D. Conclusion
Whether Mr. Felts can ultimately prove that he traveled during regular working hours to out-of-state worksites, which required an overnight stay away from home, is a question not before this court on the instant Motions. At this stage, I find that Mr. Felts's proposed Second Amended Complaint pleads a plausible violation of § 785.39, and thus amendment is not futile. Accordingly, I respectfully RECOMMEND that the Motion to Amend be GRANTED.
II. Motion to Dismiss
Given this court's conclusion above, I also respectfully RECOMMEND that the Motion to Dismiss, aimed at an inoperative pleading, be DENIED as moot. Scott, 388 F. Supp. 3d at 1323-24.
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) Defendant's Motion to Dismiss [#16] be DENIED as moot; and
(2) Plaintiff's Motion to Amend [#30] be GRANTED. DATED: May 18, 2020
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings of fact, conclusions of law, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge