Ferguson v. Texas Farm Bureau et al

BRIEF regarding 45 MOTION to Dismiss Rule 12

W.D. Tex.June 15, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION CHRISTOPHER FERGUSON, Individually and on Behalf of All Others Similarly Situated, Plaintiff, V. TEXAS FARM BUREAU BUSINESS CORPORATION, TEXAS FARM BUREAU CASUALTY INSURANCE COMPANY, TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, TEXAS FARM BUREAU UNDERWRITERS, FARM BUREAU COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, SOUTHERN FARM BUREAU LIFE, INSURANCE COMPANY, and TEXAS FARM BUREAU, Defendants. § § § § § § § § § § § § § § § § § § § § § § § CIVIL ACTION NO. 6:17-CV-00111 COLLECTIVE ACTION JURY TRIAL DEMANDED REPLY BRIEF IN SUPPORT OF THE TEXAS FARM BUREAU DEFENDANTS’ RULE 12 (B)(6) MOTION TO DISMISS Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 1 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 1 Defendants Texas Farm Bureau Business Corporation, Texas Farm Bureau Casualty Insurance Company, Texas Farm Bureau Mutual Insurance Company, Texas Farm Bureau Underwriters, Farm Bureau County Mutual Insurance Company and Texas Farm Bureau (collectively, the “Texas Farm Bureau Defendants”) submit their Reply Brief in support of their Rule 12(b)(6) Motion to Dismiss Plaintiff’s Original Complaint, and would respectfully show the Court as follows: I. SUMMARY OF ARGUMENT As discussed in Defendants’ Brief in Support of Their Motion to Dismiss Under Rule 12(b)(6), Congress enacted the Fair Labor Standards Act (“FLSA”) in 1938 with the goal of “protect[ing] all covered workers from substandard wages and oppressive working hours.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 132 S. Ct. 2156, 2162, 183 L. Ed. 2d 153 (2012) (citing Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981)); see also 29 U.S.C. § 202(a). It is well understood, however, that the FLSA does not apply to independent contractors. See Carrell v. Sunland Const., Inc., 998 F.2d 330, 334 (5th Cir. 1993) (affirming dismissal of plaintiffs’ FLSA claims because they were independent contractors). On April 20, 2017, Plaintiff Christopher Ferguson filed the instant action on behalf of himself and others allegedly “similarly situated,” claiming agency managers were “misclassified” as independent contractors. (Doc. 1 at ¶ 3). On May 30, 2017, the Texas Farm Bureau Defendants filed a Rule 12(b)(6) Motion to Dismiss and Brief in Support (Docs. 45 and 46, respectively) stating (i) Plaintiff is not a proper representative because he did not personally contract with the Texas Farm Bureau Defendants; (ii) agency managers are independent Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 2 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 2 contractors, as a matter of law; and (iii) Plaintiffs failed to plead any basis that would support extending a three-year statute of limitations for willfulness. Id. In response, Plaintiffs cite a withdrawn administrative interpretation,1 DOL “fact sheets,” and cases which are not binding on this Court, in an attempt to ignore the deficiencies in Plaintiff’s Complaint and, instead, argue the alleged merits of their motion for conditional certification. See, Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1208, 191 L. Ed. 2d 186 (2015) (discussing situations in which the Court has refused to give deference to an agency’s interpretation where it would allow the agency “to create de facto a new regulation.”); see also Smith v. City of Jackson, Miss., 351 F.3d 183, 189 n. 5 (5th Cir. 2003), aff'd on other grounds, 544 U.S. 228, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005) (declining to extend Chevron deference to EEOC administrative guidance); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986) (noting administrative interpretation was not controlling). Accordingly, these off-topic arguments and materials should not be considered by the Court. Plaintiffs would also ask the Court to consider evidence outside of their Complaint in reviewing the Texas Farm Bureau Defendants’ motion. The new attachments are improper and should be ignored. See Routh v. Bank of Am., N.A., No. SA-12-CV-244-XR, 2013 WL 427393, at *3 (W.D. Tex. Feb. 4, 2013) (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 388 (5th Cir. 2010) (holding, “The court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.”); see also Sullivan v. Leor Energy, 1 On June 7, 2017, Labor Secretary Alexander Acosta released a short press release announcing the withdrawal of Administrator’s Interpretation (“AI”) No. 2015-1, which was previously issued by Administrator Dr. David Weil on July 15, 2015. AI No. 2015-1 address the classification of independent contractors as employees under the FLSA and was widely criticized for creating informal standards outside of the normal notice and comment process. Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 3 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 3 LLC, 600 F.3d 542, 547 (5th Cir. 2010) (quoting Scanlan v. Texas A & M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (“While the court generally must not go outside the pleadings, “the court may consider documents attached to a motion to dismiss that ‘are referred to in the plaintiff's complaint and are central to the plaintiff's claim.’”). When he filed the instant lawsuit, Plaintiff Ferguson attached Christopher Ferguson Insurance Services, Inc.’s Agency Manager Contract with Defendants Texas Farm Bureau Casualty Insurance Company and Farm Bureau County Mutual Insurance Company of Texas (Doc. 1-2), Christopher Ferguson Insurance Services, Inc.’s Agency Manager Contract with Defendants Texas Farm Bureau Mutual Insurance Company and Texas Farm Bureau Underwriters (Doc. 1-3), and Christopher Ferguson Insurance Services, Inc.’s appointment with Defendant Southern Farm Bureau Life Insurance Company (Doc. 1-10) to his Complaint. However, Documents 51-1 and 51-2, attached to Plaintiffs’ Response in Opposition (Doc. 51), were not included with Plaintiff Ferguson’s Complaint and cannot be considered. II. ARGUMENTS & AUTHORITIES A. PLAINTIFF FERGUSON’S AGENT CONTRACTS, ATTACHED TO HIS COMPLAINT, UNAMBIGUOUSLY ESTABLISH THAT THE TEXAS FARM BUREAU DEFENDANTS CONTRACTED WITH A BUSINESS ENTITY - CHRISTOPHER FERGUSON INSURANCE SERVICES, INC.: The law is clear; the FLSA’s protections only extend to “employees.” See Rivero v. Midtown Towing of Miami, Inc., No. 13-CIV-22211, 2014 WL 12531510, at *6 (S.D. Fla. Dec. 8, 2014) (citing 29 U.S.C. § 203(e)(1)). That term is defined by the Act as “any individual employed by an employer.” Id. (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 (1947)(“noting that the FLSA’s broad definitions of ‘employer’ and ‘employee’ do not bring ‘independent contractors’ within the FLSA’s ambit.”). Here, it is undisputed that the party that contracted with the Texas Farm Bureau Defendants was Christopher Ferguson Insurance Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 4 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 4 Services, Inc. (the “Ferguson Agency”). The Ferguson Agency is not an “individual” who is “employed by an employer.” Rather, it is a corporation based on the plain reading of the Contract attached to the Complaint and by the plain meaning of the term, “Inc.” To try and avoid this fact, Plaintiffs seek to assert new facts that appear for the first time in the Response, which are not contained in their Complaint. Plaintiffs now try to argue in their Response that the contracting between the Texas Farm Bureau Defendants and the Ferguson Agency is a “fiction.” However, the facts and allegations to support this alleged “fiction” are nowhere to be found in the Complaint. Plaintiffs’ Complaint contains no references to any alleged fallacy of the nature of the contracting parties or relationship. Accordingly, any facts or allegations that are contained in Plaintiffs’ Response which do not also appear in the Complaint, cannot be considered by this Court when determining the merits of the Rule 12 Motion. Further, while Plaintiffs claim the Rivero decision supports their position, a simple reading of the case shows that the court did consider whether Rivero was indeed in business for himself, but ultimately determined that he was an employee on facts drastically different from those alleged by Plaintiffs. However, Plaintiffs’ arguments concerning the plaintiff’s claim in Rivero are inappropriate at this stage. In addressing the Texas Farm Bureau Defendants’ Motion to Dismiss, the only operative question is whether Plaintiff Ferguson properly pleaded his case. Plaintiffs also rely on Adami v. Cardo Windows, Inc., 299 F.R.D. 68, 81 (D.N.J. 2014), in an attempt to argue that Plaintiff Ferguson’s decision to contract with the Texas Farm Bureau Defendants as an entity, rather than as an individual, is irrelevant. (Doc. 51 at pp. 5-6). Again, Plaintiffs attempt to argue the alleged merits of their case and ignore the deficiencies in their pleading. This argument does not change the fact that Plaintiffs’ Complaint clearly shows that Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 5 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 5 Christopher Ferguson Insurance Services, Inc., and not Plaintiff Ferguson, contracted with the Texas Farm Bureau Defendants. Interestingly, however, the U.S. District Court for the District of New Jersey ultimately decided to decertify the collective action in Adami, stating, “[T]he FLSA does not transform every working relationship into an employer-employee relationship. A person who works ‘for [his] own advantage on the premises of another’ is not an employee within the meaning of the FLSA.” Adami v. Cardo Windows, Inc. 2016 WL 1241798, at * 6 (D.N.J. March 30, 2016) (citing Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947)). Similarly, Plaintiffs’ reliance on Parilla v. Allcom Const. & Installation Servs. LLC, Civ. 08-1967, 2009 WL 2868432, at *5 (M.D. Fla. Aug. 31, 2009) is in error. In Parilla, the court noted that the defendant company required its technicians to form their own companies in an effort to create an independent contractor relationship. Id. Nowhere in his Complaint does Plaintiff Ferguson contend that he was required to create his own entity in order to contract with the Texas Farm Bureau Defendants. (See generally, Doc. 1). Furthermore, Plaintiffs’ contention that “Defendants’ policy of allowing some Agency Managers to contract as individuals and others as entities evidences that Defendants ‘deliberately created a façade to mask the true nature of the parties’ relationship” is inadmissible attorney argument2 that is not supported by Plaintiffs’ Complaint. (Doc. 51 at 7). Again, there is absolutely nothing in Plaintiffs’ Complaint that would suggest the Texas Farm Bureau Defendants attempted to mask the nature of their relationship with Plaintiffs. Plaintiffs reliance on new argument, rather than their Complaint is improper. 2 See Vargas v. McHugh, 630 F. App'x 213, 217 (5th Cir. 2015), cert. denied sub nom. Vargas v. Murphy, 136 S. Ct. 2038, 195 L. Ed. 2d 219 (2016) (citing Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (noting that “unsworn attorney argument to the contrary ... is not evidence and cannot rebut” other evidence)). Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 6 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 6 Nevertheless, the only thing that matters at this stage is that Plaintiff Ferguson failed to plead facts sufficient to demonstrate that he personally contracted with the Texas Farm Bureau Defendants. By failing to address this important fact in his Complaint, Plaintiff Ferguson has failed to allege that he is a proper representative and/or that he could even sustain a cause of action against the Texas Farm Bureau Defendants. The Texas Farm Bureau Defendants do not ask the Court to weigh Plaintiffs’ evidence at this time, but they are asking the Court to assess whether Plaintiff Ferguson has properly pleaded a case against the Texas Farm Bureau Defendants since he did not have a direct relationship with the Texas Farm Bureau Defendants and any work he performed was on behalf of a separate entity, Christopher Ferguson Insurances Services, Inc. This issue is important, because if Plaintiff Ferguson has failed to plead any allegations that would suggest that he individually has claim against the Texas Farm Bureau Defendants, he is not a proper representative and his claims should be dismissed. B. PLAINTIFF FERGUSON FAILS TO STATE A CLAIM UNDER THE FLSA: Even if the Court declines to decide whether a business entity could sustain a claim under the FLSA, Plaintiff Ferguson has failed to state a claim under the FLSA because he has failed to plead facts sufficient to first demonstrate an employer/employee relationship with the Texas Farm Bureau Defendants. See Eberline v. Media Net, L.L.C., 636 F. App'x 225, 227 (5th Cir. 2016) (citing Johnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014). When assessing whether a worker qualifies as an employee, the Court must focus on whether, “as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself.” Eberline, 636 F. App'x at 227 (additional citations omitted). Notably, five non-exhaustive factors guide this assessment: “(1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker's opportunity for profit or Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 7 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 7 loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship.” Id. “[E]ach factor is a tool used to gauge the economic dependence of the alleged employee,” and “no single factor is determinative.” Id. Plaintiff Ferguson cannot even proceed to the five-step analysis because, according to the documents attached to his Complaint, (see Docs. 1-2 and 1-3), he never had an individual relationship with the Texas Farm Bureau Defendants. Instead, his business, Christopher Ferguson Insurance Services, Inc., entered into agency manager contracts with Defendants. It is also worth noting, that while not yet specifically addressed in this Circuit, other courts have held agency managers (or those with similar responsibilities) were independent contractors. For example, in Alfred v. Tennessee Farmers Mut. Ins. Co., 8 F. Supp. 2d 1024, 1028, 1030 (E.D. Tenn. 1997), aff'd sub nom. Alfred v. Tennessee Farmers Mut. Ins. Co., 145 F.3d 1329 (6th Cir. 1998), the court found agency managers and agents were independent contractors and noted, “An insurance agent's status as a captive agent . . . is no more determinative of the issue presented than, for example, a manufacturer's representative's agreement to market the manufacturer's products exclusively.” More recently, the Eighth Circuit, in Jenkins v. S. Farm Bureau Cas., 125 F. App'x 749 (8th Cir. 2005) (ADEA), affirmed judgment for Southern Farm Bureau Casualty after the court - and later a jury - found plaintiff, an agency manager, was an independent contractor. Plaintiffs ask this Court to ignore these cases - and others - cited by the Texas Farm Bureau Defendants; however, Plaintiffs have failed to cite any valid basis for doing so. (See, e.g., Doc. 51 at p. 11). Indeed, when individuals classified as independent contractors seek protection under various employment statutes, including the ADEA, the courts can use factors similar to those in FLSA cases to reach a determination regarding employment status. For example, in Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 8 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 8 Jenkins v. S. Farm Bureau Cas., 307 F.3d 741, 742 (8th Cir. 2002), the Eighth Circuit applied the U.S. Supreme Court’s test in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)3, including: “the hiring party's right to control the manner and means by which the product is accomplished, the skill required, the source of the instrumentalities and tools, the location of the work, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants, whether the work is part of the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits, and the tax treatment of the hired party.” This Court has also applied Nationwide in FLSA cases. See Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 515 (W.D. Tex. 2015); see also Doc. 51 at p. 9 (citing Nationwide, 503 U.S. at 326) (discussing the Supreme Court’s definition of “employee”). Again, the Texas Farm Bureau Defendants do not ask the Court to weigh any evidence at this time, but note that Plaintiffs’ claims must be dismissed where they have failed to plead factual allegations sufficient to show their claims are facially plausible as a matter of law - and thus, failed to state a claim upon which relief could be granted. Id. at 555-56; Twombly, 550 U.S. at 555-56; see also FED. R. CIV. P. 12(b)(6). Plaintiffs’ claims must fail as a matter of law because the FLSA does not afford protection to the Ferguson Agency and Plaintiffs have wholly failed to present any facts to suggest that the Texas Farm Bureau Defendants contracted with anyone or anything else other than the Ferguson Agency. 3 The U.S. District Court for the Eastern District of Tennessee also applied Nationwide in Alfred, 8 F. Supp. 2d at 1026. Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 9 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 9 C. THE TWO-YEAR STATUTE OF LIMITATIONS APPLIES: Furthermore, the FLSA imposes a two-year statute of limitations for violations of the FLSA. See 29 U.S.C. § 255(a). The statute of limitations is only extended to three years for willful violations of the FLSA. See id. The plaintiff bears the burden of proving willfulness. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). To prove a willful violation, the plaintiff must establish that “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute.” Ramos v. Al-Bataineh, 599 F. App'x 548, 551 (5th Cir. 2015) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) and Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). As previously discussed in the Texas Farm Bureau Defendants’ Brief in Support of Their Rule 12(b)(6)Motion to Dismiss, Courts in this Circuit, and others, have required more than mere speculation and conclusory allegations to support a finding of willfulness. (Doc. 46 at p. 12): Singer v. City of Waco, 324 F.3d 813, 821-22 (5th Cir. 2003): fire chief admitted he was aware firefighters were being paid incorrectly); Reich v. Bay, Inc., 23 F.3d 110, 117 (5th Cir. 1994): local Wage and Hour office director informed employer its overtime practices violated the FLSA; Sealey v. EmCare, Inc., No. 2:11-CV-00120, 2013 WL 164040, at *4 (S.D. Tex. Jan. 14, 2013): evidence employer previously litigated “a closely related overtime issue” sufficient to find willfulness); and Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1280-81 (11th Cir. 2008) (employer never studied whether employees were exempt yet knew the employees in question spent most of their time performing manual labor). Again, none of the allegations in Plaintiff Ferguson’s Complaint, or recited in his Response, are sufficient to support a finding of willfulness. (See, e.g. Doc. 1 at ¶¶ 31-46; see also Doc. 51 at pp. 2-3.) Furthermore, the fact that Plaintiff Ferguson repeatedly alleged throughout his Complaint that the Texas Farm Bureau Defendants acted willfully is insufficient because Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 10 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 10 Plaintiff’s allegations amount to nothing more than conclusory allegations and inadmissible attorney argument. (Doc. 1 at ¶¶ 58-60). It has long been held that such statements cannot be considered by the Court, as a matter of law. See Aschroft v. Iqbal, 556 U.S. 662, 679 (2009) (reiterating the Court’s decision in Twombly and noting that the court is not bound to accept as true legal conclusions couched as factual allegations). As a result, Plaintiff has failed to plead any basis for applying a three-year statute of limitations and a two-year statute of limitations must be applied to Plaintiffs’ claims, in the event the court declines to grant the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss. IV. CONCLUSION AND PRAYER Plaintiff Ferguson has failed to allege any facts to support his claims against the Texas Farm Bureau Defendants. Thus, the Texas Farm Bureau Defendants respectfully request the Court dismiss Plaintiff’s Complaint as to these causes of action against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Respectfully submitted, By: /s/ Barry A. Moscowitz BARRY A. MOSCOWITZ State Bar No. 24004830 CHANTEL L. LEE State Bar No. 24081001 THOMPSON, COE, COUSINS & IRONS, L.L.P. Plaza of the Americas, 700 N. Pearl Street Twenty-Fifth Floor Dallas, TX 75201-2832 Telephone: (214) 871-8200 Telecopy: (214) 871-8209 E-mail: bmoscowitz@thompsoncoe.com E-mail: clee@thompsoncoe.com Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 11 of 12 Reply Brief in Support of the Texas Farm Bureau Defendants’ Rule 12(b)(6) Motion to Dismiss - Page 11 ~ and ~ LAURA ALANIZ Texas State Bar No. 00796110 Email: lalaniz@thompsoncoe.com THOMPSON, COE, COUSINS & IRONS, L.L.P. One Riverway, Suite 1400 Houston, Texas 77056-1988 (713) 403-8210 Telephone (713) 403-8299 Facsimile ATTORNEYS FOR DEFENDANTS TEXAS FARM BUREAU BUSINESS CORPORATION, TEXAS FARM BUREAU CASUALTY INSURANCE COMPANY, TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, TEXAS FARM BUREAU UNDERWRITERS, FARM BUREAU COUNTY MUTUAL INSURANCE COMPANY AND TEXAS FARM BUREAU CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b)(2)(E) and 5(b)(3), I hereby certify a true and correct copy of the foregoing was filed electronically on this 15th day of June, 2017. The parties may access this filing through the court’s electronic filing system. /s/ Barry A. Moscowitz Barry A. Moscowitz Case 6:17-cv-00111-RP-JCM Document 55 Filed 06/15/17 Page 12 of 12