IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JESSICA GESSELE, ASHLEY 

ORTIZ, NICOLE GESSELE, TRICIA 

TETRAULT, CHRISTINA MAULDIN, 

and JASON DIAZ on behalf of 

themselves and all others 

similarly situated, 

Plaintiffs, 

v. 

JACK IN THE BOX, INC., a 

Corporation of Delaware, 

Defendant. 

JON M. EGAN 

240 Sixth Street 

Lake Oswego, OR 97034-2931 

(503) 697-3427 

Attorney for Plaintiffs 

DOUGLAS S. PARKER 

JENNIFER NETH WARBERG 

DON STAIT 

Littler Mendelson, P.C. 

121 S.W. Morrison Street 

Suite 900 

Portland, OR 97204 

(503) 221-0309 

Attorneys for Defendant 

1 - OPINION AND ORDER 

3:14-CV-1092-BR 

OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 1 of 17
BROWN, Judge. 

This matter comes before the Court on Plaintiffs' Amended 

Motion (#8) to Remand Case to State Court. For the reasons that 

follow, the Court GRANTS in part and DENIES in part Plaintiffs' 

Motion. 

BACKGROUND 

On August 13, 2010, Jessica Gessele, Ashley Ortiz, 1 Nicole 

Gessele, and Tricia Tetrault on behalf of all those similarly 

situated filed a putative class-action Complaint (Gessele I) in 

this Court against Jack in the Box, Inc., for violation of the 

minimum-wage and overtime provisions of the Fair Labor Standards 

Act (FLSA), 29 U.S.C. §§ 201, et seq., and various Oregon wageand-hour laws. Gessele I was assigned to Magistrate Judge Janice 

M. Stewart. 

On May 16, 2011, Plaintiffs filed a First Amended Complaint 

in Gessele I in which they asserted the same claims as in their 

initial Complaint and added Christina Mauldin' as a named 

Plaintiff. 

On March 20, 2012, Plaintiffs filed a Second Amended 

Complaint in Gessele I in which they alleged Defendant (1) failed 

1 In Gessele I Ashley Ortiz proceeded as Ashley Gessele. 

2 In Gessele I Christina Maudlin proceeded as Christina 

Luchau. 

2 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 2 of 17
to pay minimum wages in violation of the FLSA, (2) failed to pay 

overtime wages in violation of the FLSA, (3) failed to pay 

minimum wages in violation of Oregon Revised Statute § 653.025, 

(4) failed to pay overtime wages in violation of Oregon Revised 

Statute§ 653.261, (5) failed to pay all wages due after 

termination of Plaintiffs' employment in violation of Oregon 

Revised Statute § 652.140, (6) deducted unauthorized amounts from 

Plaintiffs' paychecks in violation of Oregon Revised Statute 

§ 652.610, and (7) failed to pay all wages when due as required 

by Oregon Revised Statute § 652.120. 

On December 13, 2012, Plaintiffs filed a Motion for Leave to 

File Third Amended Complaint in Gessele I. On January 7, 2013, 

Magistrate Judge Stewart denied Plaintiffs' Motion for Leave to 

File Third Amended Complaint on the grounds of undue delay and 

prejudice. 

On June 26, 2013, Gessele I was reassigned to this Court. 

On November 5, 2013, Jason Diaz filed a Consent to Join Law 

Suit in Gessele I. Diaz, however, did not become a named 

Plaintiff in Gessele I. 

On May 15, 2014, this Court issued an Opinion and Order in 

Gessele I in which it granted Defendant's Motion for Summary 

Judgment on the ground that the named Plaintiffs failed to timely 

file written consent forms as required by the FLSA. The Court, 

therefore, never acquired jurisdiction over the named Plaintiffs' 

3 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 3 of 17
FLSA claims (the named Plaintiffs' only federal claims), and, as 

a result, the Court could not exercise supplemental jurisdiction 

over the named Plaintiffs' state-law claims. Accordingly, on 

May 15, 2014, the Court entered a Judgment dismissing the matter 

without prejudice. 

On June 10, 2014, Jessica Gessele, Ashley Ortiz, Nicole 

Gessele, Tricia Tetrault, Christina Mauldin, and Jason Diaz filed 

a putative class-action against Jack in the Box, Inc., in 

Multnomah County Circuit Court (Gessele II) . Plaintiffs brought 

claims for violation of Oregon's wage-and-hour laws, violation of 

the FLSA, breach of fiduciary duty, and equitable and quasicontractual claims for return of money. 

On July 9, 2014, Defendant removed Gessele II to this Court 

on the grounds of federal-question jurisdiction based on 

Plaintiffs' FLSA claims and/or jurisdiction under the Class 

Action Fairness Act (CAFA), 28 U.S.C. § 1332 (d) (2). 

On August 8, 2014, Plaintiffs filed a Motion to Remand Case 

to State Court on the grounds that (1) issue preclusion/ 

collateral estoppel 3 bars litigation of Gessele II in this Court; 

(2) if issue preclusion does not bar litigation, the ~1aw of the 

case" bars litigation in this Court; and (3) judicial estoppel 

bars litigation of Gessele II in this Court even if neither issue 

preclusion nor law of the case bar litigation. 

3 Courts use these terms interchangeably. 

4 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 4 of 17
The Court took Plaintiffs' Motion under advisement on 

September 2, 2014. 

DISCUSSION 

I. Issue Preclusion/Collateral Estoppel 

Plaintiffs assert Gessele II must be remanded because the 

Court decided in Gessele I that it lacked jurisdiction over the 

named Plaintiffs' FLSA claims, and, therefore, Defendant is 

collaterally estopped from relitigating the issue of this Court's 

jurisdiction over Plaintiffs' FLSA claims. 

"Issue preclusion 'bars successive litigation of an issue of 

fact or law actually litigated and resolved in a valid court 

determination essential to the prior judgment, even if the issue 

recurs in the context of a different claim.'" ReadyLink 

Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 760 (9th 

Cir. 2014) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)) 

"A judgment dismissing an action for lack of jurisdiction 

ordinarily has no preclusive effect on the cause of action 

originally raised .. However, the dismissal will 'have 

preclusive effect as to matters actually adjudicated, including 

the precise issue of jurisdiction that led to the initial 

dismissal.'" Bautista v. Park West Gallery, No. CV 08-6262 PSG 

(RZx), 2008 WL 5210662, at *2 (C.D. Cal. Dec. 11, 2008) (quoting 

Fed. R. Civ. P. 41). 

5 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 5 of 17
"The preclusive effect of a federal-court judgment is 

determined by federal common law when, as here, subject-matter 

jurisdiction in the prior case was based on federal question." 

Banga v. Experian Info. Solutions, Inc., No: C 09-04867 SBA, 2013 

WL 5539690, at *14 (N.D. Cal. Sept. 30, 2013) (citing Taylor v. 

Sturgell, 553 U.S. 880, 891 (2008)). Federal common law requires 

the following elements to exist for issue preclusion to apply: 

"(1) a full and fair opportunity to litigate the issue in the 

prior action; (2) the issue was actually litigated; (3) a final 

judgment resulted; and (4) the person against who preclusion is 

asserted was a party to the prior action." Id. (citing In re 

Palmer, 207 F.3d 566, 568 (9th Cir. 2000)). 

"[I)f a plaintiff can show new and different facts 

supporting jurisdiction, then the prior [jurisdictional] 

determination may be revisited." Facebook, Inc. v. ConnectU LLC, 

No. C 07-01389 RS, 2007 WL 4249926, at *2 (N.D. Cal. Nov. 30, 

2007). See also Kendall v. Overseas Dev. Corp., 700 F.2d 536, 

539 (9th Cir. 1983) (" [T)he dispositive question is whether 

[plaintiff) pleaded any new facts in the federal litigation that 

would support a different result on the issue of jurisdiction."). 

"If, however, the facts are those that the prior court found 

insufficient to support jurisdiction, then 'even if wrong, an 

earlier decision involving the same issue and the same parties, 

is as conclusive as a correct one."' Facebook, 2007 WL 4249926, 

6 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 6 of 17
at *2 (quoting Gupta v. Thai Airways Internat'l Ltd., 487 F.3d 

759, 767 (9th Cir. 2007)). 

Defendant asserts this Court may revisit its decision in 

Gessele I that the Court lacks subject-matter jurisdiction over 

the named Plaintiffs' FLSA claims because the facts alleged by 

Plaintiffs in Gessele II to support their FLSA claims are new and 

different from those alleged by Plaintiffs in Gessele I to 

support their FLSA claims. In addition, Defendant points out 

that Plaintiffs in Gessele II have added a new FLSA claim against 

Defendant as a joint employer for the period after Defendant's 

restaurants were transferred to independent companies that 

operated under franchise agreements. Defendant's argument, 

however, is unpersuasive. As the Bautista court explained: 

It is clear that dismissal for want of 

jurisdiction does not preclude a second action 

where subsequent events cure the jurisdictional 

deficiency in the first suit." Bui v. IBP, Inc., 

205 F. Supp. 2d 1181, 1188 (D. Kan. 2002) 

(collecting cases) . The majority of courts have 

held that a defect in jurisdiction can only be 

cured where facts change subsequent to a dismissal 

of the initial case. Defects may not be cured by 

alleging, for the first time, facts which existed 

prior to dismissal of the previous action. See 

id.; Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 

(D.C. Cir. 1983); Park Lake Res. LLC v. U.S. Dep't 

of Agric., 378 F.3d 1132, 1135-38 (10th Cir. 

2004) . 

2008 WL 5210662, at *2 (emphasis added). Defendant states in its 

Opposition to Plaintiffs' Amended Motion to Remand that Defendant 

"ceased operating stores in Oregon over a period of several years 

7 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 7 of 17
ending in 2011. During this time stores formerly operated by 

[Defendant] began operations under separate ownership - separate 

companies that entered into franchise agreements with 

[Defendant] . " Def.' s Opp' n at 2 n. 2. Plaintiffs' FLSA claims in 

Gessele II based on Defendant's alleged status as a joint 

employer, therefore, do not involve events or facts that occurred 

subsequent to this Court's dismissal of Gessele I. Accordingly, 

the Court concludes the "curable defects" exception is not 

applicable, and, therefore, the Court does not have the authority 

to review its jurisdictional decision in Gessele I. 

The issue of remand still must be addressed, however, 

because Plaintiffs have added Jason Diaz as a named Plaintiff in 

Gessele II. As noted, Jason Diaz was never a named Plaintiff in 

Gessele I. Thus, the Court's decision in Gessele I that the 

named Plaintiffs' failure to file timely written consent forms as 

required by the FLSA resulted in the Court's lack of jurisdiction 

over the named Plaintiffs' FLSA claims did not include any 

analysis or adjudication of Diaz's ability to bring an FLSA claim 

against Defendant. The issues of the timeliness of Diaz's 

written consent and the Court's jurisdiction over Diaz's FLSA 

claim, therefore, were not "actually litigated" or decided by the 

Court in Gessele I. Accordingly, although issue preclusion bars 

relitigation of the Court's jurisdiction to hear the FLSA claims 

of Jessica Gessele, Ashlet Ortiz, Nicole Gessele, Tricia 

8 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 8 of 17
Tetrault, and Christina Mauldin, it does not bar litigation of 

Diaz's FLSA claims against Defendant brought for the first time 

in Gessele II. 4 

II. Law-of-the-Case Doctrine 

Plaintiffs assert if issue preclusion does not bar 

relitigation of this Court's jurisdiction, reexamination of that 

issue is barred by the law of the case. 

"Under the law of the case doctrine, a court is 

generally precluded from reconsidering an issue 

that has already been decided by the same court, 

or a higher court in the identical case." United 

States v. Alexander, 106 F.3d 874, 876 (9th Cir. 

1997). "The doctrine is not a limitation on a 

tribunal's power, but rather a guide to 

discretion." Id. "A court may have discretion to 

depart from the law of the case where: 1) the 

first decision was clearly erroneous; 2) an 

intervening change in the law has occurred; 3) the 

evidence on remand is substantially different; 

4) other changed circumstances exist; or 5) a 

manifest injustice would otherwise result." Id. 

"Failure to apply the doctrine of the law of the 

case absent one of the requisite conditions 

constitutes an abuse of discretion." Id. 

Guadiana v. State Farm Fire and Cas. Co., No. CIV 07-326 TUC FRZ 

(GEE), 2009 WL 3763693, at *5 (D. Ariz. Nov. 10, 2009). 

4 Defendant does not challenge the Court's decision with 

respect to the FLSA claims of Jessica Gessele, Ashlet Ortiz, 

Nicole Gessele, Tricia Tetrault, and Christina Mauldin, and the 

Court notes it is questionable whether collateral estoppel would 

bar a challenge by Defendant to the Court's jurisdiction over 

those claims in this action. See Tuttelman v. City of Los 

Angeles, 420 F. App'x 758, 760 (9th Cir. 2011) ("We are not aware 

of any authority supporting the proposition that, even assuming 

the existence of privity, the doctrine of collateral estoppel 

bars the successful party in a prior action from relitigating the 

issue on which he was successful."). 

9 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 9 of 17
The Court concludes the law-of-the-case doctrine does not 

apply. The claims and named Plaintiffs in Gessele II are not 

identical to the claims and named Plaintiffs in Gessele I. The 

Court dismissed Gessele I and entered a Judgment. Plaintiffs 

(including Diaz, who was not a named Plaintiff in Gessele I) then 

filed Gessele II in state court and included additional and 

different claims from those asserted in Gessele I. Cases in 

which courts have analyzed the law-of-the-case doctrine all 

involve courts deciding whether to revisit or to revise decisions 

made by those courts in the same case rather than in a second, 

subsequent case. See, e.g., Brown v. Deputy No. 1, No. 

12-cv-1938-GPC (BGS), 2014 WL 4961189, at *1 (S.D. Cal. Oct. 3, 

2014) ("Motions for reconsideration are not to be used to simply 

rehash arguments and facts previously considered by the court in 

making its ruling. Therefore, without 'new or different facts,' 

the 'law of the case' doctrine will preclude reconsideration of a 

court's decision.u); Kukui Gardens Cor. v. Holco Capital Group, 

Inc., No. 08-00049 ACK-KSC, 2010 WL 145284, at *6 (D. Haw. 

Jan. 12, 2010) (The court declined to reconsider or to revisit its 

earlier order granting summary judgment against the defendant 

because none of the exceptions to the rule-of-law doctrine 

applied.); Guadiana, 2009 WL 3763693, at *6 ("The court 

recognizes that the law of the case ordinarily does not apply to 

issues raised on summary judgment after they were rejected on a 

10 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 10 of 17
motion to dismiss because motions for summary judgment are 

subject to a different standard. Here, however, State 

Farms asks the court, on summary judgment, to make a ruling on 

the construction of the homeowner's policy as a matter of law 

without resorting to any additional evidence. This is 

essentially a second motion to dismiss raising the same issues 

the court has already considered and rejected. The law of the 

case doctrine applies in this instance."). 

In addition, as noted, the Court did not address or consider 

the ability of Diaz to bring an FLSA claim in its decision in 

Gessele I. 

Accordingly, the Court concludes the law-of-the-case 

doctrine does not require remand of this matter. 

III. Judicial Estoppel 

Plaintiffs also assert the doctrine of judicial estoppel 

requires the Court to remand this matter to state court. 

"'Federal law governs the application of judicial estoppel 

in federal courts.'" Tuttelman v. City Of San Jose, 420 F. 

App'x 758, 760 (9th Cir. 2011) (quoting Johnson v. Oregon, 141 

F.3d 1361, 1364 (9th Cir. 1998)). The Ninth Circuit has 

explained: 

"[J]udicial estoppel is an equitable doctrine 

invoked by a court at its discretion." New 

Hampshire v. Maine, 532 U.S. 742, 750 

(2001) (internal quotation marks omitted) . "[I] ts 

purpose is to protect the integrity of the 

judicial process by prohibiting parties from 

11 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 11 of 17
deliberately changing positions according to the 

exigencies of the moment." Id. at 749-50 

(citation and internal quotation marks omitted) . 

Although judicial estoppel is "probably not 

reducible to any general formulation of principle, 

. several factors typically inform the 

decision whether to apply the doctrine in a 

particular case." Id. at 750 (citations and 

internal quotation marks omitted). "First, a 

party's later position must be 'clearly 

inconsistent' with its earlier position." Id. 

"Second, courts regularly inquire whether the 

party has succeeded in persuading a court to 

accept that party's earlier position, so that 

judicial acceptance of an inconsistent position in 

a later proceeding would create the perception 

that either the first or the second court was 

misled." Id. (internal quotation marks omitted). 

"A third consideration is whether the party 

seeking to assert an inconsistent position would 

derive an unfair advantage or impose an unfair 

detriment on the opposing party if not estopped." 

Id. at 751. "In enumerating these factors, we do 

not establish inflexible prerequisites or an 

exhaustive formula for determining the 

applicability of judicial estoppel. Additional 

considerations may inform the doctrine's 

application in specific factual contexts." Id. 

Ah Quin v. County of Kauai Dep't of Transp., 733 F.3d 267, 270-71 

(9th Cir. 2013). 

Defendant did not take any position in Gessele I as to 

whether Diaz had timely filed an FLSA consent or as to the 

Court's jurisdiction over any FLSA claim that Diaz might bring. 

Instead Defendant limited its argument in Gessele I to the named 

Plaintiffs' failure to timely file FLSA consents, which resulted 

in this Court's lack of jurisdiction over the named Plaintiffs' 

FLSA claims. Because Diaz was never a named Plaintiff in Gessele 

12 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 12 of 17
I, Defendant's position in Gessele I and the Court's decision 

regarding its jurisdiction over that matter did not apply to 

Diaz. The Court, therefore, concludes in the exercise of its 

discretion that judicial estoppel does not apply or warrant 

remand of Diaz's FLSA claims. 

As noted, it does not appear that Defendant seeks to 

relitigate the issue of this Court's lack of jurisdiction over 

the FLSA claims of Jessica Gessele, Ashlet Ortiz, Nicole Gessele, 

Tricia Tetrault, and Christina Mauldin. In any event, the Court 

concludes in the exercise of its discretion that judicial 

estoppel applies and estops Defendant from relitigating the issue 

of this Court's lack of jurisdiction over the FLSA claims of 

Jessica Gessele, Ashley Ortiz, Nicole Gessele, Tricia Tetrault, 

and Christina Mauldin. 

IV. Waiver 

Finally, Plaintiffs assert Defendant may not remove this 

matter because ~by pursu[ing] dismissal [in Gessele I] on 

jurisdictional grounds[,] [Defendant] effectively chose 

state court over federal court as the venue for determining this 

case's merits. As such, [Defendant] has waived its right to 

remove the resulting state case to federal court." Pls.'s Am. 

Mot. to Remand at 7. 5 

5 Plaintiffs do not respond in their Reply to the arguments 

made by Defendant in its Opposition with respect to waiver. It 

is unclear, therefore, whether Plaintiffs concede the issue or 

13 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 13 of 17
"A defendant 'may waive the right to remove to federal court 

[when), after it is apparent that the case is removable, the 

defendant takes actions in state court that manifest his or her 

intent to have the matter adjudicated there, and to abandon his 

or her right to a federal forum.'" Chapman v. Deutsche Bank Nat. 

Trust Co., 651 F.3d 1039, 1045 n.2 (9th Cir. 2011) (quoting EIE 

Guam Corp. v. Long Term Cred. Bank of Japan, Ltd., 322 F.3d 635, 

649 (9th Cir. 2003)). A defendant's waiver of the right to 

remove, " [h) owever, . 'must be clear and unequivocal.'" Id. 

(quoting EIE Guam Corp., 322 F.3d at 649). In Chapman the Ninth 

Circuit held the defendants did not clearly and unequivocally 

waive their right to remove the plaintiff's quiet-title action 

because they "did not file any pleadings in the Quiet Title 

Action prior to removing it to federal court, and did not engage 

in any actions ... that manifest[ed) [their) intent to have the 

matter adjudicated there, and to abandon [their] right to a 

federal forum." Id. (quotation omitted) . The Ninth Circuit 

specifically noted "[a) defendant's conduct in a prior lawsuit 

has no bearing on the removability of a later suit." Id. 

Defendant here did not file any pleadings in state court or 

engage in any actions in state court that manifested its intent 

to have this matter adjudicated there before it removed this 

matter. Accordingly, the Court concludes Defendant did not waive 

simply rest on the arguments set out in their Amended Motion. 

14 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 14 of 17
,its right to remove the matter to this Court. 

V. Summary 

In summary, based on its decision in Gessele I that it lacks 

jurisdiction to hear the FLSA claims of Jessica Gessele, Ashlet 

Ortiz, Nicole Gessele, Tricia Tetrault, and Christina Mauldin, 

the Court declines to reevaluate or to reexamine the issue of its 

jurisdiction over those FLSA claims in this matter. The Court, 

therefore, grants Plaintiffs' Amended Motion to Remand as to the 

FLSA claims of Jessica Gessele, Ashlet Ortiz, Nicole Gessele, 

Tricia Tetrault, and Christina Mauldin; severs those claims; and 

remands those claims to state court. 

The Court, however, concludes its decision in Gessele I does 

not necessarily establish that the Court lacks jurisdiction over 

Diaz's FLSA claims in Gessele II. Accordingly, the Court denies 

Plaintiffs' Amended Motion to Remand as to Diaz's FLSA claims. 

The Court notes, however, that the parties likely did not 

anticipate the Court would grant in part and deny in part 

Plaintiffs' Amended Motion to Remand, and, therefore, did not 

address in their briefing the possibility that the Court's ruling 

on this Motion would result in the parties litigating two related 

actions simultaneously in state and federal court. Accordingly, 

the Court DIRECTS the parties to provide supplemental information 

to the Court as follows: after meaningful conferral and no later 

than October 31, 2014, the parties shall file a joint status 

15 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 15 of 17
report indicating (1) whether Defendant, nevertheless, wishes to 

continue its removal of only Diaz's FLSA claim; and (2) if this 

Court must litigate Diaz's FLSA claim, whether the Court should 

accept supplemental jurisdiction over Diaz's state law claims 

when the remaining Plaintiffs and Defendant will be litigating 

those same claims in state court. 

CONCLUSION 

For these reasons, the Court GRANTS in part and DENIES in 

part Plaintiffs' Amended Motion (#8) to Remand Case to State 

Court. The Court: 

(1) GRANTS Plaintiffs' Amended Motion as to the FLSA claims 

of Jessica Gessele, Ashley Ortiz, Nicole Gessele, 

Tricia Tetrault, and Christina Mauldin, and 

(2) DENIES Plaintiffs' Amended Motion as to Diaz's FLSA 

claims. 

As noted, the Court has not decided Plaintiffs' Motion as it 

relates to Plaintiff Diaz's state-law claims and will make a 

ruling on that issue after considering the parties' October 31, 

16 - OPINION AND ORDER 

Case 3:14-cv-01092-BR Document 11 Filed 10/17/14 Page 16 of 17
2014, joint submission. Once that question is resolved, the 

Court will issue a remand order. 

IT IS SO ORDERED. 

DATED this 17th day of October, 2014. 

ANNA J. BRO 

United States District Judge 

17 - OPINION AND ORDER 

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