UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

_________________________________________ 

 ) 

3534 EAST CAP VENTURE, LLC, et al., ) 

 ) 

Plaintiffs, ) 

 ) 

 v. ) Case No. 19-cv-02946 (APM)

 ) 

WESTCHESTER FIRE INSURANCE ) 

COMPANY, et al., ) 

 ) 

Defendants. ) 

_________________________________________ ) 

MEMORANDUM OPINION

I.

This is an insurance coverage action. On one side of the dispute are the insureds, Plaintiffs 

3534 East Cap Venture, LLC (“East Cap”), a real estate developer, and McCullough Construction, 

LLC (“McCullough”), the construction company hired by East Cap. The insurers are Defendants 

Westchester Fire Insurance Company and Endurance American Insurance Company. 

In late January 2019, McCullough discovered significant amounts of condensation under 

the roof deck of the residential development project it was building, as well as water on the floor. 

Further investigation led to the discovery of moisture and mold growth in the ceiling and walls, 

requiring McCullough to tear out insulation, drywall, and other materials to remediate the damage. 

The remediation efforts cost nearly $1.5 million. Plaintiffs turned to Defendants for coverage. 

Defendants refused to insure the loss. 

The parties agree on the chain of events that led to the damage. An architect failed to 

include a vapor barrier in the project design. The absence of that barrier allowed condensation to 

form due to a combination of humidity-increasing conditions inside the building and a change in 
2 

temperature outside the building. As the condensation accumulated, it seeped into and soaked the 

drywall, insulation, and other building materials. See Pls.’ Opp’n to Defs.’ Mot. for Summ. J & 

Cross Mot. for Summ. J., ECF No. 39 [hereinafter Pls.’ Cross Mot.], Pls.’ Mem. in Supp. of Pls.’ 

Cross Mot., ECF No. 39-1 [hereinafter Pls.’ Mem.], at 21 (“There is no factual dispute that the 

damage to the property was caused by water condensing on the interior side of the roof system 

because [the] building was initially built without a vapor barrier.”). 

The parties dispute whether there is coverage for the costs of the remediation. The relevant

policies cover a loss that is caused by “water damage.” Plaintiffs assert that, because the building 

materials were drenched with water, there is coverage. Defendants, on the other hand, say there is 

no coverage because policy exclusions apply. Specifically, the policies do not insure a loss caused 

by “dampness of atmosphere” and “changes in temperature,” which Plaintiffs say are the 

conditions that led to the soaking of the building materials. 

After Defendants denied coverage, Plaintiffs filed suit, asserting a single claim for breach 

of contract. Am. Compl., ECF No. 19, at 9–10. Both parties have moved for summary judgment. 

Defs.’ Mot. for Summ. J., ECF No. 38 [hereinafter Defs.’ Mot.]; Pls.’ Cross Mot. For the reasons 

that follow, Defendants’ motion is granted and Plaintiffs’ motion is denied. 

II.

The relevant agreements are two identical Builder’s Risk insurance policies issued 

separately by Defendants. Pls.’ Cross Mot., Pls.’ Resp. to Defs.’ Statement of Material Facts & 

Pls.’ Additional Allegations of Undisputed Material Facts, ECF No. 39-2, ¶¶ 2–3; Defs.’ Mot., Ex. 

1, ECF No. 38-3 [hereinafter Policies]. The terms at issue are seemingly straightforward. The 

policies provide coverage for loss “caused by or resulting from WATER DAMAGE,” with a 
3 

$50,000 deductible. Policies at 13.1 The policies define “WATER DAMAGE” to mean “[a]ll 

water damage, except LOSS caused by or resulting from the peril of FLOOD.” Id. at 38. There is 

no dispute that the damage to the building materials constitutes a “LOSS.” 

The policies also set forth a host of exclusions. See id. at 23–25. As relevant here, the 

policies provide: 

This Policy does not insure LOSS caused by any of the following, 

unless direct physical LOSS by an insured peril ensues and then 

this Policy insures only such ensuing direct physical LOSS:

. . . 

3. Dryness or dampness of atmosphere. 

4. Extremes or changes in temperature. 

Id. at 25. 

III.

Under District of Columbia law, when insurance policies “are clear and unambiguous, they 

will be enforced by the courts as written, so long as they do not violate a statute or public policy.” 

Smalls v. State Farm. Mut. Auto. Ins. Co., 678 A.2d 32, 35 (D.C. 1996) (internal quotation marks 

omitted). “Where insurance contract language is not ambiguous, summary judgment is appropriate 

because a written contract duly signed and executed speaks for itself.” Travelers Indem. Co. of 

Ill. v. United Food & Com. Workers Int’l Union, 770 A.2d 978, 985 (D.C. 2001) (cleaned up). 

“Whether an insurance contract is ambiguous is a question of law.” Id. at 986 (citing Sacks v. 

Rothberg, 569 A.2d 150, 154 (D.C. 1990)). 

Insurers have a duty to state in plain language, understandable to the “man in the street,” 

any exclusions or limitations in the policy that would exclude a loss from coverage. Holt v. George 

1 The court uses ECF pagination for all Exhibits. 
4 

Washington Life Ins. Co., 123 A.2d 619, 621 (D.C. 1956) (internal quotation marks omitted). 

“Failing such unambiguous language, doubt should be resolved in favor of the insured.” Id. at 622

(internal quotation marks omitted). Thus, “[w]here an insurer attempts to avoid liability under an 

insurance policy on the ground that the loss for which recovery is sought is covered by some 

exclusionary clause, the burden is on the insurer to prove the facts which bring the case within the

specified exception.” Cameron v. USAA Prop. & Cas. Ins. Co., 733 A.2d 965, 969 (D.C. 1999). 

These principles do not mean that a court should strain to identify ambiguity in the 

agreement. “The canon of construction known as contra proferentum [sic]—that ambiguities in 

an insurance contract should be construed against the insurer who drafted the contract . . . is 

traditionally used only in cases of doubt where other factors are not decisive.’” U.S. ex rel. Dep’t 

of Lab. v. Ins. Co. of N. Am., 131 F.3d 1037, 1043 n.11 (D.C. Cir. 1997) (cleaned up) (quoting 

RESTATEMENT (SECOND) OF CONTRACTS § 206 cmt. a (Am. L. Inst. 1979)). Thus, when insurance 

contracts are “clear and unambiguous, they will be enforced by the courts as written, so long as 

they do not violate a statute or public policy.” Smalls, 678 A.2d at 35 (internal quotation marks 

omitted). 

IV.

The parties’ coverage dispute condenses to two points. First, Defendants argue the 

undisputed facts establish that the combination of increased moisture within the building and a 

drop in outside temperature, in the absence of a protective vapor barrier, caused condensation to 

form under the roof and soak the building structure. Defs.’ Mot., Defs.’ Mem. in Supp. of Defs.’ 

Mot., ECF No. 38-1 [hereinafter Defs.’ Mem.], at 5–7. On these facts, Defendants say, the policy 

exclusions for “dampness of atmosphere” and “changes in temperature” apply. See id. at 6 (citing 

Aetna Cas. & Sur. Co. v. Yates, 344 F.2d 939, 940–41 (5th Cir. 1965) (using a “dampness of 
5 

atmosphere” exclusion to bar coverage for rot damage caused by indoor condensation)); id. at 10–

12 (citing Blaine Constr. Corp. v. Ins. Co. of N. Am., 171 F.3d 343, 354–56 (6th Cir. 1999) (Boggs, 

J., dissenting) (reasoning that the term “dampness of atmosphere” likely includes “indoor 

humidity” and is not ambiguous)). On the other hand, Plaintiffs urge the court to follow the Sixth 

Circuit’s decision in Blaine Construction, which involved the same exclusionary language at issue 

here. Pls.’ Mem. at 13–14. The majority in Blaine Construction, over a vigorous dissent, held 

that it was a reasonable reading of the terms “[d]ampness or dryness of atmosphere; extremes or 

changes in temperature” to refer “to weather conditions, and not as a reference to artificially 

enhanced humidity inside a building.” 171 F.3d at 351 (alteration in original). And, because that 

construction was a reasonable one, the court found the “dampness of atmosphere” exclusion to be 

ambiguous, entitling the insured to coverage. See id. at 354. 

The parties’ second argument distills a bit more simply. Plaintiffs argue that even if the 

exemptions apply, the policies’ “ensuing loss exception” restores coverage. Pls.’ Mem. at 35; 

Policies at 25. That exception provides that an excluded loss will not be covered “unless direct 

physical LOSS by an insured peril ensues and then this Policy insures only such ensuing direct 

physical LOSS.” Policies at 25. Plaintiffs posit that even if the original cause of the damage was

an otherwise excluded cause, an “insured peril” ensued (water damage), thereby making theirs a 

covered loss. Pls.’ Mem. at 37–40. Defendants respond that the ensuing loss exception does not 

apply because it is “generally accepted that an ensuing loss exception applies only to distinct, 

separable losses and does not provide coverage for the normal and necessary results of the 

excluded conduct.” Defs.’ Mem. at 8. In this case, they contend, “the ensuing loss exception does 

not provide coverage . . . because the so-called water damage is the direct result of excluded causes 

of loss—dampness of atmosphere and changes in temperature.” Id. at 9. 
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The court agrees with Defendants on both issues: (1) the “dampness of atmosphere” 

exclusion is not ambiguous and thus excludes Plaintiffs’ loss, and (2) the ensuing loss exception 

does not restore coverage. 

A.

The parties agree that the facts of Blaine Construction are nearly identical to those of this 

case. See Defs.’ Mem. at 10–12; Pls.’ Mem. at 12–15. The court therefore discusses Blaine 

Construction in detail. 

The plaintiff in Blaine Construction, a construction contractor, “sought to hold the 

insurance company liable for the cost of replacing ceiling insulation ruined by water that had 

condensed within the insulation cavity after a subcontractor failed to install a vapor barrier 

properly.” 171 F.3d at 345. Because of an improper vapor barrier installation, “[m]oisture

could . . . migrate above the vapor barrier, and any condensation would be trapped in the cavities 

between the purlins.” Id. at 346. The result was that “copious amounts of water had been trapped 

in the ceiling cavities across the entire structure.” Id. Remediation required “remov[al] and 

replace[ment] [of] all of the water-soaked insulation.” Id. at 347. The insurer denied coverage. 

The policy in question provided that “[t]his policy does not insure loss or damage caused directly 

or indirectly by any Peril excluded.” Id. at 346. Among the excluded perils were “[d]ampness or 

dryness of atmosphere; extremes or changes in temperature.” Id. The insurer relied on these 

exclusions to deny coverage. Id. at 345. Applying Tennessee law, a split panel found in favor of 

the insured. 

The majority’s reasoning rested on its understanding of the term “atmosphere” in the 

“dampness of atmosphere” exclusion. The majority recognized that “although the word 

‘atmosphere’ often refers to the external atmosphere surrounding the earth, the term is also used, 
7 

not infrequently, to include the air inside a building or other confined space.” Id. at 351. Yet, the 

majority held, the term “atmosphere” as used in the policy was ambiguous. “If [the insurer] had 

wanted to exclude dampness or dryness generally, the layman might think, there would have been 

no need to use the word ‘atmosphere’ at all. The insurance company could simply have described 

the excluded peril as ‘dampness or dryness.’” Id. The majority continued, “[b]y adding a word 

that would not have been necessary if the company had not intended to refer to the ‘atmosphere’ 

in the most commonly used sense, and by speaking in the next breath of ‘extremes or changes in 

temperature,’ [the insurer] ran the risk, it seems to us, of being taken to mean that it was simply 

talking about weather conditions.” Id. Ultimately, calling the case a “close one,” the majority 

said, “[w]e cannot say that [the insured’s reading] is unreasonable . . . and because ‘the insurer 

must establish that the exclusion applies in the particular case and that it is subject to no other 

reasonable interpretation,’” the court found the insured entitled to coverage. Id. at 354 (internal 

quotation marks omitted). 

In dissent, Judge Boggs declared, “I do not believe that the policy is ambiguous.” Id. 

(Boggs, J., dissenting). “A policy is ambiguous only when it supports more than one reasonable 

interpretation, and I do not believe that [the insured’s] interpretation is reasonable.” Id. (internal 

citation omitted). Judge Boggs believed that, for the insured to prevail, it had to “do more than 

show us that ‘dampness of atmosphere’ can mean outdoor humidity. It must show us that 

‘dampness of atmosphere’ cannot mean indoor humidity.” Id. at 355. Looking to dictionary 

definitions and case law, Judge Boggs reasoned that “it is unreasonable to define ‘dampness of 

atmosphere’ in a way that excludes,” as a definition of “atmosphere,” “[t]he air in any particular 

place.” Id. at 356, 358 (citing 1 OXFORD ENGLISH DICTIONARY 750 (2d ed. 1989)). Indeed, in his 

view, “indoor humidity” is the “most common” meaning of “dampness of atmosphere.” Id. at 356. 
8 

The court agrees with Judge Boggs that the term “dampness of atmosphere” is not 

ambiguous and plainly contemplates the increase in indoor humidity that led to the loss in this 

case. Under District of Columbia law, the “otherwise clear language in an insurance agreement is 

not to be deemed ambiguous ‘merely because the parties do not agree’ on its meaning.” Chase v. 

State Farm Fire & Cas. Co., 780 A.2d 1123, 1127 (D.C. 2001) (quoting Byrd v. Allstate Ins. Co., 

622 A.2d 691, 694 (D.C. 1993)). “Policy language is not genuinely ambiguous unless ‘it is 

susceptible of more than one reasonable interpretation.’” Id. at 1127–28 (quoting Am. Bldg. 

Maint. Co. v. L’Enfant Plaza Props., Inc., 655 A.2d 858, 861 (D.C. 1995)). In these policies, 

“dampness of atmosphere” is not ambiguous because there is no reasonable interpretation of the 

exclusion that would not reach increased indoor humidity. Put differently, for Plaintiffs to prevail, 

one reasonable construction of “dampness of atmosphere” would have to be that “atmosphere” 

only means outdoor weather conditions. Only then could “dampness of atmosphere” be 

ambiguous. But such a reading is contrary to the commonsense meaning of “atmosphere.” Even 

the majority in Blaine Construction acknowledged that the term “is also used, not infrequently, to 

include the air inside a building or other confined space.” 171 F.3d at 351 (emphasis added). 

Adopting Plaintiffs’ preferred meaning would require the court to “indulge in [a] forced 

construction[] to create an obligation against the insurer,” which it cannot do. Cameron, 733 A.2d 

at 968 (internal quotation marks omitted). 

Plaintiffs advance a second argument to suggest ambiguity, but the court rejects it, too. 

Plaintiffs contend that the group of four exclusions that include “dampness of atmosphere” and 

“extremes or changes in temperature,” when read in context, “suggest . . . a loss proximately 

caused by deterioration of property.” Pls.’ Mem. at 26. Citing the doctrine of noscitur a sociis—

that is, the interpretative principle that words are known by the company they keep, see Yates v. 
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United States, 574 U.S. 528, 543 (2015)—Plaintiffs argue “dampness of atmosphere, extremes or 

changes in temperature, normal settling, shrinking[,] cracking, expansion or contraction, and 

corrosion, decay[,] deterioration, etc., are all means by which property degrades or destroys itself 

over time.” Pls.’ Mem. at 27. The loss that occurred here was caused by a short-term accumulation 

of moisture and therefore is different than the excluded losses. So, Plaintiffs contend, the exclusion 

does not apply. 

But this too is a strained reading of the policies. Nothing within the exclusion section in 

question limits losses to those that occur “over time.” In fact, the exclusions for “dryness or 

dampness of atmosphere” and “extremes or changes in temperature” by their very nature suggest 

the opposite, as those events are typically associated with short-term changes in conditions. 

Noscitur a sociis “is not a guideline to be followed if the language of the policy exclusion manifests 

a clear contrary intent. That is the case here.” Chase, 780 A.2d at 1129 (rejecting similar attempt 

to create ambiguity in a policy based on the related ejusdem generis principle of interpretation). 

Finally, Plaintiffs contend that because the policies do not explicitly exclude loss caused 

by “condensation,” the court should not read the policies to exclude such a loss. To support their 

position, Plaintiffs point to other insurance policies that do expressly exclude loss caused by 

condensation. Pls.’ Mem. at 33–34; Pls.’ Mem., Ex. 9, ECF No. 39-12, at 4 (policy containing 

exclusion for “[c]ontinuous or repeated seepage or leakage of water, or the presence or 

condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more”). 

Plaintiffs assert that “if the insurers wanted to exclude all condensation losses, then it goes to 

reason that the word ‘condensation’ should have been mentioned in the policy, but it was not.” 

Pls.’ Mem. at 34. 
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Plaintiffs, however, cite no case for the proposition that the court can look to the language 

of other insurance policies to override the unambiguous meaning of the policies that govern here. 

Cf. Dist.-Realty Title Ins. Corp. v. Ensmann, 767 F.2d 1018, 1022 (D.C. Cir. 1985) (“[T]he parol 

evidence rule bars the introduction of extrinsic evidence to vary the terms of an unambiguous 

contract.”). And as Defendants point out, the express condensation exclusion that Plaintiffs say is 

“industry standard,” Pls.’ Mem. at 35, comes from a standard commercial policy, not a builder’s 

risk policy of the kind at issue here. Defs.’ Mem. of Law in Further Supp. of Defs.’ Mot. and in 

Opp’n to Pls.’ Cross Mot., ECF No. 41, at 8 n.1. That a different type of policy contains a different

exclusion cannot alter the governing policies’ plain meaning or create ambiguity where there is 

none. 

Accordingly, the court concludes that Plaintiffs’ loss is not covered because it was caused 

by the excluded perils of “dampness of atmosphere” and “changes in temperature.” 

B.

The court turns now to Plaintiffs’ alternative contention that the “ensuing loss” clause 

revives coverage. Recall, the policies state that “[t]his Policy does not insure LOSS caused by any 

of the following, unless direct physical LOSS by an insured peril ensues and then this Policy 

insures only such ensuing direct physical LOSS.” Policies at 25. According to Plaintiffs, because 

“water damage is a covered peril under the policy,” the ensuing loss clause restores coverage even 

if the exclusions apply. Pls.’ Mem. at 37–38. 

The parties put forward competing views on how to interpret the ensuing loss clause. 

According to Defendants, “it is generally accepted that an ensuing loss exception applies only to 

distinct, separable losses and does not provide coverage for the normal and necessary results of 

the excluded conduct.” Defs.’ Mem. at 8 (citing cases). Here, they contend, “the ensuing loss 
11 

exception does not provide coverage . . . because the so-called water damage is the direct result of 

excluded causes of loss—dampness of atmosphere and changes in temperature.” Id. at 9. 

For their part, Plaintiffs encourage the court to look to Maryland law, because District of 

Columbia law has not interpreted ensuing loss clauses. Pls.’ Mem. at 37–40. According to 

Plaintiffs, Maryland law does not subscribe to the view that an ensuing loss clause covers only 

“distinct, separable losses,” but reads the clause more expansively to extend “coverage to a covered 

event traceable to an excluded peril.” Bethany Boardwalk Grp. LLC v. Everest Sec. Ins. Co., No. 

ELH-18-3918, 2020 WL 1063060, at *13 (D. Md. Mar. 5, 2020) (rejecting reading a “separate and 

independent” limitation into an ensuing loss clause, under Maryland law, as contrary to 

“customary, ordinary, and accepted meaning” (internal quotation marks omitted)); Pls.’ Mem. at 

37. Plaintiffs thus argue that, because water damage is a covered peril that ensued from the 

excluded conditions, the ensuing loss clause restores coverage. Pls.’ Mem. at 40.

But even granting Plaintiffs’ broader construction of the ensuing loss clause, the clause

does not apply in this case. Under Maryland law, if the original, excluded peril is “inextricably 

intertwined” with the ensuing, covered peril, the ensuing loss exception is not applicable. See 

Bethany Boardwalk, 2020 WL 1063060, at *15. Critically, damages and peril must not be 

“conflate[d]” in an attempt to shoehorn in coverage for losses caused by peril that is explicitly not 

covered under an insurance policy. See, e.g., Jowite Ltd. P’ship v. Fed. Ins. Co., No. DLB-18-

2413, 2020 WL 4748544, at *8 (D. Md. Aug. 17, 2020), aff’d, No. 20-1937, 2021 WL 5122173 

(4th Cir. Nov. 4, 2021) (finding no coverage for loss where the plaintiff “conflate[d] damages and 

peril, suggesting they are one and the same”). To hold otherwise “would transform the ensuing 

loss clause into a ‘grant back’ provision and eviscerate the [exclusion].” Bethany Boardwalk, 2020 

WL 1063060 at *16. 
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In this case, the excluded causes—“dampness of atmosphere” and “changes in 

temperature”—are “inextricably intertwined” with the ensuing peril of water damage. Indeed, the 

excluded causes of loss and the allegedly covered peril are more than inextricably intertwined—

they are “one and the same,” for the reasons already articulated in Section IV A above. See, e.g., 

Jowite, 2020 WL 4748544, at *8. The increase in humidity and change in temperature led directly 

to “the formation of liquid water in the insulation cavity,” “which saturated the insulation and 

wetted the building materials.” Pls.’ Mem. at 17, 37–38. Because the original, excluded peril and 

the ensuing, covered peril are at least inextricably intertwined, the ensuing loss clause does not 

revive coverage for Plaintiffs. 

C.

In their moving papers, Plaintiffs alluded to a different argument for coverage that they 

later developed more fully in their reply brief. In their opening brief, Plaintiffs asserted in a single 

sentence the theory that the architect’s failure to include a vapor barrier in the design caused the 

loss and was a covered peril giving rise to coverage: “[W]hen that alleged defective design or 

faulty workmanship resulted in water damage, the ensuing loss, coverage is provided under the 

policy.” Pls.’ Mem. at 18. In their reply, Plaintiffs expressly advanced this theory of coverage. 

They wrote, “[b]ecause the proximate cause of the loss, the ‘failure to install a vapor barrier’ was 

itself not excluded, all the resulting damages are covered irrespective of whether dampness of 

atmosphere or changes of temperature contributed to the loss.” See Pls.’ Reply in Supp. of Pls.’ 

Cross Mot., ECF No. 43, at 3; see also id. at 7 (“The water damage was caused by defective 

workmanship. Both water damage and defective workmanship are covered causes of loss.”). 

Because Plaintiffs largely raised this argument for the first time in their reply brief, the court asked 

Defendants to file a sur-reply to address the issue. Order, ECF No. 45. They did so. Surreply in 
13 

Supp. of Defs.’ Mot. and in Opp’n to Pls.’ Cross Mot., ECF No. 46. Because the faulty-design 

argument is now fully briefed, the court exercises its discretion to consider it. See Lu v. Lezell, 

45 F. Supp. 3d 86, 91 (D.D.C. 2014) (“If the movant raises arguments for the first time in his reply 

to the non-movant’s opposition, the Court may either ignore those arguments in resolving the 

motion or provide the non-movant an opportunity to respond to those arguments by granting leave 

to file a sur-reply.”).

Plaintiffs’ new argument rests on a misreading of the policies. The policies do not cover 

any loss that follows from a design defect. To the contrary, the policies contain an exclusion titled, 

“Cost of Making Good.” Policies at 25. That provision excludes “costs that would have been 

incurred to rectify any of the following had such rectification been effected immediately prior to 

the LOSS,” including “[f]ault, defect, error, deficiency or omission in design, plans, [and] 

specifications.” Id. The exclusion contains its own ensuing loss clause: “However, if direct 

physical LOSS by an insured peril ensues, then this Policy will provide cover for such ensuing 

LOSS only.” Id. Taken together, these provisions mean that the policies do not provide coverage

for the costs to remedy a design defect, but they do cover any resulting loss from a covered peril. 

Thus, the “cost of making good” exclusion simply requires the court to answer the original 

question: Was the loss here caused by an “insured peril”? It was not. The loss was caused by 

expressly excluded perils—“dampness of atmosphere” and “changes in temperature.” So, because 

no ensuing covered loss followed from the design error of not including a vapor barrier, Defendants 

properly denied Plaintiffs coverage. 

V.

Defendants also move for summary judgment to the extent Plaintiffs advance a claim of 

bad faith. Defs.’ Mem. at 12. Plaintiffs admit they have not raised such a claim but instead contend 
14 

that the insurers violated the implied covenant of good faith and fair dealing, which entitles them 

to attorney’s fees under District of Columbia law. Pls.’ Mem. at 40–41. But because Defendants 

did not erroneously deny coverage, Plaintiffs’ claim for attorney’s fees falls away. 

VI.

For the foregoing reasons, the court grants Defendants’ Motion for Summary Judgment, 

ECF No. 38, and denies Plaintiffs’ Cross Motion for Summary Judgment, ECF No. 40. A final, 

appealable order accompanies this Memorandum Opinion. 

 

Dated: September 29, 2022 Amit P. Mehta

 United States District Judge