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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAWN LOESCH, :

:

Plaintiff, : CIVIL ACTION

:

vs. : No. 05-cv-0578

:

CITY OF PHILADELPHIA, :

:

Defendant. :

MEMORANDUM AND ORDER

Joyner, J. May 29, 2008

Presently before the Court are Defendant’s Renewed Motion

for Judgment as a Matter of Law or, in the Alternative, for a New

Trial or Remittitur (“D. Mot.”) (Doc. Nos. 74, 82), Plaintiff’s

Response (“P. Resp.”) (Doc. No. 84), and Defendant’s Reply (“D.

Rep.”) (Doc. No. 86). For the reasons set forth below, the Court 

DENIES Defendants’ Motion.

BACKGROUND

On February 4, 2005, Plaintiff commenced this action by

filing her Complaint claiming that Defendant City of Philadelphia

violated Title VII of the Civil Right Act of 1964, 42 U.S.C. §

2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa.

Cons. Stat. § 951 et seq.. Specifically, Plaintiff, previously a

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paramedic in the City of Philadelphia Fire Department, claimed

that the Department discriminated on the basis of gender when it

terminated her medical command after violations of Department

protocol, but gave similarly situated male paramedics lesser

punishments. After a five-day jury trial, the jury returned a

verdict in Plaintiff’s favor and awarded her $464,037 in back pay

and front pay damages. During trial, at the close of Plaintiff’s

case-in-chief, Defendant had moved for judgment as a matter of

law pursuant to Fed. R. Civ. P. 50(a), which we denied. 

Defendant now files a renewed Motion for Judgment as a Matter of

Law pursuant to Rule 50(b), or in the alternative for a new trial

under Fed. R. Civ. P. 59, or for remittitur.

STANDARD OF REVIEW

A. Rule 50 Motion for Judgment as a Matter of Law

Upon the renewed motion of a party, Fed. R. Civ. P. 50(b)

allows the trial court to enter judgment as a matter of law at

the conclusion of a jury trial notwithstanding a jury verdict for

the opposing party. Such judgment may be entered under Rule

50(b) “only if, as a matter of law, the record is critically

deficient of that minimum quantity of evidence from which a jury

might reasonably afford relief.” Trabal v. Wells Fargo Armored

Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001). In deciding

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whether to grant this “sparingly invoked remedy,” we must

“refrain from weighing the evidence, determining the credibility

of witnesses, or substituting our own version of the facts for

that of the jury.” Marra v. Phila. Housing Auth., 497 F.3d 286,

300 (3d Cir. 2007). Rather, we view the evidence in the light

most favorable to the nonmoving party and, “giving it the

advantage of every favorable inference,” determine if “there is

insufficient evidence from which a jury reasonably could find

liability.” Id. 

B. Rule 59 Motion for New Trial

The ordering of a new trial pursuant to Federal Rule of

Civil Procedure 59 is within the sound discretion of the district

court. Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1017

(3d Cir. 1995). Under Rule 59(a), a court may grant a new trial

“for any of the reasons which new trials have heretofore been

granted.” Fed. R. Civ. P. 59(a). A court may grant a new trial

if doing so is required to prevent injustice or to correct a

verdict that was against the weight of the evidence. Corrigan v.

Methodist Hosp., 234 F. Supp. 2d 494, 498 (E.D. Pa. 2002). A

court may also grant a new trial if the verdict was the result of

erroneous jury instructions, was excessive or clearly unsupported

by the evidence, or was influenced by extraneous matters such as

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passion, prejudice, sympathy or speculation. Id. We are wary,

however, that the grant of a new trial requires meeting a “high

threshold,” Grazier v. City of Philadelphia, 328 F.3d 120, 128

(3d Cir. 2003), and “[a]bsent a showing of substantial injustice

or prejudicial error, a new trial is not warranted and it is the

court’s duty to respect a plausible jury verdict.” Montgomery

Cty. v. MicroVote Corp., 152 F. Supp. 2d 784, 795 (E.D. Pa.

2001). 

DISCUSSION

I. Sufficiency of the Evidence

Reviewing the record in a light most favorable to Plaintiff,

we cannot find that it is “critically deficient of that minimum

quantity of evidence from which a jury might reasonably afford

relief.” Trabal, 269 F.3d at 249. Plaintiff adduced sufficient

evidence at trial to support the jury’s finding that she had made

out the Title VII prima facie case, which requires that the

Plaintiff show: (1) she is a member of a protected class; (2) she

was qualified for the position held; (3) she was discharged from

that position; and (4) non-members of the protected class were

treated more favorably. McDonnell Douglas Corp. v. Green, 411

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U.S. 792, 802 (1973); Abramson v. William Paterson College of

N.J., 260 F.3d 265, 282 (3d Cir. 2001). Of course, there is no

dispute that Plaintiff, a woman, was not a member of a protected

class. Plaintiff was also a certified paramedic and so the jury

could have easily found she was qualified for the position from

which she was discharged. There was also sufficient evidence on

which the jury could have found that Plaintiff was constructively

discharged. Although she did not appeal the termination of her

medical command - which effectively terminated her position as a

paramedic - there was evidence that Plaintiff was informed by her

union representative that an appeal was futile and that she was

advised not to pursue it. See Goss v. Exxon Office Sys. Co., 747

F.2d 885, 887-88 (3d Cir. 1984) (explaining that constructive

discharge exists if “the conduct complained of would have the

foreseeable result that working conditions would be so unpleasant

or difficult that a reasonable person in the employee’s shoes

would resign”). Finally, there was also evidence of other male

paramedics who violated department protocols and had complaints

made about them but received lesser punishments. Thus, in sum,

there was sufficient evidence in the record on which the jury

could have reasonably concluded that Plaintiff succeeded on her

initial burden of making out a Title VII prima facie case.

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Defendant argues that those other paramedics did not engage in 1

sufficiently similar violations as Plaintiff, and thus they are not

comparable. To the extent that this is an argument that that comparator

evidence should have been excluded, that argument is addressed below. If, on

the other hand, Defendant is arguing that the evidence was not sufficient as a

basis for the jury’s finding of discrimination, we reject that argument. The

violations and complaints related to other paramedics were not so vastly

different from Plaintiff’s that they could not have allowed the jury to make

any reasonable inferences or conclusions from them. 

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Under the McDonnell Douglas burden shifting standard, if a

Title VII plaintiff succeeds in making out a prima facie case of

discrimination, the burden shifts to the defendant to provide a

legitimate, non-discriminatory reason for the employment action. 

McDonnell Douglas, 411 U.S. at 802; Abramson v. William Paterson

College of N.J., 260 F.3d 265, 282 (3d Cir. 2001). Once the

employer has done so, the burden shifts back to the plaintiff to

demonstrate that the proffered reasons are mere pretext for

discrimination. Id. Although Defendant put forth the

justification that Plaintiff’s medical command was terminated for

violating department protocols in combination with other

complaints, we find there was sufficient evidence to support a

finding that that justification was pretextual. We note in

particular that there was a plethora of evidence in the record

showing that other male paramedics had previously committed

similar protocol violations and did not have their medical

commands terminated, as Plaintiff did. Furthermore, testimony 1

from Ron Augustyn, the former HR Chief for the Fire Department,

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regarding a gender-discriminatory environment in the department

also provided a basis on which the jury could have found the

City’s proffered reasons to be pretextual.

Accordingly, we must find that the record was not so

deficient of evidence on which the jury could have afforded

relief to warrant the extraordinary remedy of overturning the

jury’s verdict in favor of Plaintiff.

II. Defendant’s Arguments for Judgment or New Trial

Defendant’s post-trial Motion focuses primarily on arguing

not that the evidence in the record was sufficient, but that

there were various errors in the trial that, if corrected, would

lead inexorably to a direct verdict in Defendant’s favor. In the

alternative, Defendant argues that these errors prejudiced the

jury to such an extent that a new trial should be ordered. We

address Defendant’s voluminous arguments in turn and, for the

reasons stated below, reject those arguments and deny the Motion.

A. Evidentiary Issues

Defendant’s first main argument is essentially that the

Court erred in admitting various evidence and testimony, and that

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had they been excluded, there would not have been sufficient

evidence to support the jury’s conclusions. First, Defendant

challenges the admission of certain testimony and exhibits to

which it did not object during trial. Specifically, Defendant

argues that the court erred in failing to exclude: questioning

and testimony on the City’s settlement of two prior gender

discrimination claims by other paramedics; Plaintiff’s

performance evaluations; and testimony from Fire Chief Butts. 

Defendant failed to object to these pieces of evidence at any

time during the trial, and thus those objections are waived for

purposes of post-trial review. See Grace v. Mauser-Werke Gmbh,

700 F. Supp. 1383, 1388 (E.D. Pa. 1988) (holding that because

plaintiff’s counsel did not object to specific questions asked of

expert at trial, objections to those questions are waived); see

also Gov’t of the Virgin Islands v. Archibald, 987 F.2d 180, 184

(3d Cir. 1993) (“If a party fails to object in a timely fashion,

the objection is waived and we will review the admission of

evidence only for plain error.”). 

Defendant also argues that the Court erred in refusing to

exclude certain of Plaintiff’s exhibits concerning complaints and

investigatory files regarding other paramedics which were used by

Plaintiff as “comparators” between Plaintiff and other paramedics

in similar situations. Plaintiff’s main purpose in entering

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these exhibits was to show that other paramedics who were the

subject of complaints and investigations similar to those against

Plaintiff were not disciplined as harshly. At trial, Defendant

filed a Motion in Limine to exclude these exhibits, and we denied

the Motion. Because we made a definitive ruling on that motion,

which covers the same exhibits to which Defendant objects here,

we may consider that Motion in Limine to be an objection

sufficient to preserve the question for this post-trial motion as

to all of the challenged exhibits. See Am. Home Ins. Co. v.

Sunshine Supermarket, 753 F.2d 321, 324 (3d Cir. 1985)(“[I]f an

issue is fully briefed and the trial court is able to make a

definitive ruling, then the motion in limine provides a useful

tool for eliminating unnecessary trial interruptions.”). 

Furthermore, we note that Defendant actually did make an

objection to a particular use of the exhibits in question and

expressed that he was making a continuing objection to further

uses. Day 2 Tr. 255. This objection also preserved the issue

for Defendant’s post-trial motion.

Defendant’s first objection to the admission of the

comparator files is that they constitute inadmissible hearsay. 

The Federal Rules of Evidence define hearsay as any out-of-court

statement “offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). Hearsay is generally not

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admissible under Rule 802, and Defendant argues that because

Plaintiff did not present any witnesses with first hand knowledge

of what actually occurred in the cases giving rise to the

complaints in the comparator files, those files should not have

been admitted into evidence. The purpose of entering those files

into evidence, however, was not simply to show bad conduct on the

part of other paramedics; rather, it was to demonstrate the

Defendant’s response to situations similar to that of Plaintiff

as potential evidence of discriminatory intent in Plaintiff’s

case. Thus, because the contents of the comparator files were

not being admitted to “prove the truth of the matter asserted” -

that is, to prove whether or not the bad acts by other paramedics

actually occurred - but for the other reason of providing

evidence of Defendant’s mental state and/or intent, they did not

constitute inadmissible hearsay under the Rules of Evidence.

Defendant also asserts that the comparator files should not

have been admitted because in those other cases the paramedics

involved were not “similarly situated” in all material respects

and those cases involved lower levels of mistreatment. 

Furthermore, Defendant argues that comparator files dated before

April 4, 2002 should not have been admitted because they involved

a different supervisor than the one that withdrew Plaintiff’s

medical command. In essence, all of these arguments are that the

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files should not have been admitted because they were irrelevant. 

It is indeed true that only relevant evidence is generally

admissible under Rule 402, and “relevant evidence” is defined as

evidence “having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” 

Fed. R. Evid. 401. This is a very low threshold that is easily

met by the comparator files, which bear on the important question

of whether other similarly situated individuals were treated more

favorably.

Finally, Defendant argues that the probative value of the

comparator files is substantially outweighed by the prejudice

caused by the jury’s hearing about bad acts by other paramedics

in the department, and thus the files should have been excluded

under Fed. R. Evid. 403. Pursuant to Rule 403, a court may

exclude otherwise relevant evidence if the probative value of the

evidence is “substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Fed. R. Evid. 403. We

therefore employ a cost/benefit analysis to determine whether to

exclude relevant evidence under 403; however, “there is a strong

presumption that relevant evidence should be admitted, and thus

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for exclusion under Rule 403 to be justified, the probative value

of evidence must be ‘substantially outweighed’ by the problems in

admitting it.” Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343-

44 (3d Cir. 2002). The probative value of the comparator files

here was extremely high, as they were crucial to the question of

whether similarly situated individuals were treated differently -

an essential component of the prima facie case under Title VII. 

We cannot find that the problems in admitting the files were

sufficiently severe to “substantially outweigh” the very high

probative value of the evidence. Accordingly, we find that the

comparator files were properly admitted into evidence and the

jury could have appropriately taken them into account in reaching

its conclusions.

B. The City’s Demonstration that Other Similarly Situated

Women Were Treated More Favorably than Plaintiff

Defendant next contends that it should be awarded judgment

as a matter of law because it demonstrated that other female

paramedics who committed protocol violations did not have their

medical commands terminated - that is, they were treated more

favorably than Plaintiff. Examining the case law cited by

Defendant, we take this argument to mean one of two things. 

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Either Defendant is asking us to rule: (a) that, as a matter of

law, if other members of Plaintiff’s protected class have been

treated more favorably, then under Title VII’s legal standard

Plaintiff either cannot make out a prima face case or cannot

successfully make the case that Defendant’s proffered

justifications were merely pretext for discrimination; or (b)

that, in light of these female comparators, there was

insufficient evidence to support a finding that Defendant’s

proffered non-discriminatory reasons for Plaintiff’s terminated

medical command were mere pretext for discrimination.

Defendant relies on the Third Circuit’s decision in Simpson

v. Kay Jewelers, 142 F.3d 639, 646-47 (3d Cir. 1998), citing Bush

v. Commonwealth Edison Co., 990 F.2d 928, 932 (7th Cir. 1993), to

support this argument. In Simpson, the Third Circuit held that

the Title VII Plaintiff in that case could not show that

Defendant’s non-discriminatory reasons for the adverse employment

action were pretext by picking out “one comparator [from the nonprotected class] who was not demoted amid a sea of persons [from

the protected class] treated the same as her.” This case,

however, presents a starkly different scenario than the one

considered in Simpson. Unlike the plaintiff in Simpson - who

chose one comparator who was treated more favorably and ignored

thirty-five others who were similarly demoted based on work

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To the extent that Defendant is arguing that Plaintiff could not make 2

out a prima facie case, that argument would also be undermined by this

possibility.

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performance - Plaintiff in this case introduced evidence, as we

have already noted, of several male comparators who were not

terminated after similar protocol violations. Furthermore, the

jury in this case could easily have distinguished the cases of

the two female paramedics cited by Defendant as being not

sufficiently similar to Plaintiff’s, because the protocol

violations were on the whole too different from Plaintiff’s, to

be useful comparators. More substantially, however, while in 2

Simpson the plaintiff relied solely on the one selectively-chosen

comparator, Plaintiff here could point to other evidence

supporting an inference of discrimination, notably the testimony

of former HR Chief Augustyn, regarding the discriminatory

environment of the department. Accordingly, we find the Third

Circuit’s ruling in Simpson to be inapplicable here, and deny

Defendant’s request for judgment as a matter of law based on the

evidence of female comparators it introduced at trial.

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C. Jury Instructions

Defendant also contends that we should enter judgment in its

favor, or in the alternative grant a new trial, because there

were various problems with the jury instructions. Rule 51 of the

Federal Rules of Civil Procedure provides that in order to assign

error either to jury instructions actually given or instructions

that were requested but given, a party must properly object. 

Fed. R. Civ. P. 51(d). A party properly objects by stating the

matter objected to and the grounds for objection, and may do so

(a) when given the opportunity by the court before the

instructions are delivered to the jury, or (b) if not previously

informed of the objected-to instruction, upon learning that the

instruction or requested instruction will be, or has been, given

or refused. Fed. R. Civ. P. 51(b), (c). The Third Circuit has

further explained that a “failure to object at the time the jury

received the proposed verdict sheet or when the jury returned”

constitutes a waiver of the objection being made in a post-trial

motion. Inter Med. Supplies, Ltd. v. EBI Med. Sys., Inc., 181

F.3d 446, 463 (3d Cir. 1999). If such a waiver has occurred,

Rule 51 allows the court to consider “a plain error in the

instructions . . . if the error affects substantial rights.” 

Fed. R. Civ. P. 51(d)(2).

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In this case, Defendant failed to properly object to the

jury instructions and the verdict slip both before the jury was

charged and after the jury returned with a verdict. In

accordance with Rule 51(b), this Court assembled the parties,

“out of the jury’s hearing,” before the instructions were given

and informed them as to how the jury would be charged. 

Defendant’s counsel were asked if they had any objections to

Plaintiff’s Points for Charge and they responded “Not at this

time, your Honor.” (Day 5 Tr. 88). At no point after making

this statement - during the rest of the charging conference,

during the reading of the charge to the jury, and after the

verdict was returned and the jury discharged - did Defendant

raise any objections about the jury instructions. Accordingly,

we review the jury instructions only for plain error.

The Third Circuit has advised that the plain error standard

is met only if the purported error “is fundamental and highly

prejudicial or if the instructions are such that the jury is

without adequate guidance on a fundamental question and our

failure to consider the error would result in a miscarriage of

justice.” Fashauer v. New Jersey Transit Rail Operations, Inc.,

57 F.3d 1269, 1289 (3d Cir. 1995). The ability to reverse for

plain error “should only be invoked with extreme caution in the

civil context,” and is only appropriate “where the error is so

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serious and flagrant that it goes to the very integrity of the

trial.” Id. (citing United States v. Carson, 52 F.3d 1173, 1188

(2d Cir. 1995)). With this high standard in mind, we cannot find

that the jury instructions were plainly erroneous. The

instructions given provided “adequate guidance” to the jury on

the fundamental questions under Title VII, and as we have already

noted there was sufficient evidence to support the jury’s

conclusions. Accordingly, we cannot grant judgment or a new

trial to Defendant on the grounds that the jury instructions were

flawed.

D. Statements Made by Plaintiff’s Counsel to the Jury

Defendant next argues that it is entitled to a new trial

because Plaintiff’s counsel made a number of misstatements during

his closing statement to the jury. However, once again Defendant

made no objection to counsel’s remarks either at the time they

were made or at any time afterwards, and thus has waived the

right to object to them now. Waldorf v. Shuta, 142 F.3d 601, 629

(3d Cir. 1998), quoting Murray v. Fairbanks Morse, 610 F.2d 149,

152 (3d Cir. 1979)(“Counsel’s failure to object precludes [a

party] from seeking a new trial on the grounds of impropriety of

opposing counsel’s remarks.”). Furthermore, the jury was

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instructed at the beginning of trial and during the charge at the

end of the trial that comments made by counsel were not to be

considered as evidence and the jury should apply the law given by

the Court. (Day One Tr. 27; Day Five Tr. 136, 138-39, 162-63). 

This Court presumes that the jury followed the Court’s

instructions, and thus “it may be presumed here that the jury

applied the law as instructed by the Court and disregarded any

contrary statements made by counsel.” Drozdowski v. Northland

Lincoln Mercury, 2007 WL 4563520, at *4 (W.D. Pa. Dec. 21, 2007),

citing Citizens Fin. Group, Inc. v. Citizens Nat’l Bank of Evans

City, 383 F.3d 110, 133 (3d Cir. 2004). Accordingly, we must

also deny Defendant’s request for a new trial on this basis.

E. Back Pay Award

Finally, Defendant argues that the jury erred in its

calculation of the back pay award for Plaintiff, and that the

amount of back pay should be reduced. As part of its verdict,

after finding in Plaintiff’s favor, the jury awarded Plaintiff

$249,037.00 in back pay. Defendant contends that this amount

“clearly” resulted from multiplying Plaintiff’s salary with the

City by the period commencing on the date of her termination from

employment and ending on the date of the verdict. As such,

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Defendant’s assertion that we did not instruct the jury on mitigation 3

of damages is, at best, disingenuous. In fact, we very clearly instructed the

jury that the plaintiff “has a duty to mitigate her damages,” and explained

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according to Defendant, the award must be reduced by the amount

Plaintiff actually earned during the back pay period. Defendant

also argues that the award should be reduced by some amount

reflecting Plaintiff’s duty to mitigate damages during the time

in the back pay period in which she was between jobs.

Successful Title VII plaintiffs are entitled to back pay,

and “[t]he appropriate standard for the measurement of a back pay

award is to take the difference between the actual wages earned

and the wages the individual would have earned in the position

that, but for discrimination, the individual would have

attained.” Gunby v. Pa. Elec. Co., 840 F.2d 1108, 1119 (3d Cir.

1988). The Third Circuit has instructed that remittitur is

appropriate when a jury verdict “is clearly unsupported by the

evidence and exceeds the amount needed to make the plaintiff

whole, i.e., to remedy the effect of the employer’s

discrimination.” Starceski v. Westinghouse Elec. Corp., 54 F.3d

1089, 1100 (3d Cir. 1995). 

Here, the jury was given detailed instructions as to how to

calculate back pay under the law of Title VII, including

instructions regarding mitigation of damages and reducing the

award by amounts earned during the back pay period. The jury 3

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that this “means that Plaintiff must take advantage of any reasonable

opportunities that may have existed under the circumstances to minimize or

reduce the loss or damage caused by the City.” (Day 5 Tr. 154-55). 

Furthermore, we note once again that Defendant did not object to our

instructions as to the calculation of back pay, including mitigation of

damages.

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then returned with the back pay award of $249,037.00. However,

the verdict slip given to, and returned by, the jury did not call

for a breakdown in how the back pay was calculated, and so any

attempt to deconstruct the amount of the award would have some

amount of speculation. Nevertheless, we cannot conclude that the

back pay amount returned by the jury was “clearly unsupported” by

the evidence. In calculating the amount that it eventually

awarded, the jury could have considered Plaintiff’s testimony

that she frequently worked overtime - which paid time-and-a-half

- in her position with the City and that in her later jobs she

did not receive insurance and leave benefits that she had enjoyed

when employed by the City. The jury could have concluded that

these factors offset the amount of salary Plaintiff made in the

positions she maintained during the back pay period. While, to

be sure, it would have been difficult for the jury to “forecast

what would have happened had there been no unlawful acts,” Id. at

1101, the jury rightfully could have concluded that this “risk of

lack of certainty with respect to projections of lost income must

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be borne by the wrongdoer, not the victim.” Goss, 747 F.2d at

889. 

Accordingly, because the back pay damages awarded to

Plaintiff were “neither excessive as a matter of law nor clearly

unsupported by the record,” Starceski, 54 F.3d at 1101, we must

deny Defendant’s request that the back pay award of be reduced.

III. Conclusion

Under the burden-shifting standard for Title VII claims,

there was sufficient evidence to support conclusions by the jury

that Plaintiff made out a prima facie case of gender

discrimination and that the reasons for Plaintiff’s termination

proffered by Defendant were pretextual. We reject Defendant’s

assertions of error in the admission of much of that evidence,

and accordingly the City’s Motion for Judgment as a Matter of Law

must be DENIED. Furthermore, we cannot find that there was

substantial injustice or prejudicial error in how the trial was

conducted and thus, for the reasons set forth above, Defendant’s

alternative Motion for New Trial must also be DENIED. Finally,

the back pay award was not excessive as a matter of law, and

therefore Defendant’s alternative Motion for Remittitur is also

DENIED.

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An order follows.

Case 2:05-cv-00578-JCJ Document 88 Filed 06/04/08 Page 22 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAWN LOESCH, :

:

Plaintiff, : CIVIL ACTION

:

vs. : No. 05-cv-0578

:

CITY OF PHILADELPHIA, :

:

Defendant. :

ORDER

AND NOW, this day of May, 2008, upon consideration of

Defendant’s Renewed Motion for Judgment as a Matter of Law or, in

the Alternative, for a New Trial or Remittitur (Doc. Nos. 74,

82), and responses thereto, for the reasons set forth in the

accompanying memorandum, it is hereby ORDERED that the Motion is

DENIED.

BY THE COURT:

S/J. CUTIS JOYNER 

J. CURTIS JOYNER, J. 

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