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WO

 IN THE UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF ARIZONA

Willie F Williams, Jr.,

Plaintiff,

v. 

Atlantic Specialty Insurance Company,

Defendant.

No. CV-18-00061-TUC-DCB

ORDER 

Defendant’s Motion for Order to Compel Arbitration and Stay Proceedings is 

before the Court. Plaintiff filed an opposition and Defendant filed a reply. The Court 

determined that oral argument was not required to resolve this motion based on the 

quality of the briefs.

Defendant Atlantic Specialty Insurance Company (Atlantic) moves for an Order, 

pursuant to Arizona Revised Statutes (A.R.S.) § 12-1501, compelling Plaintiff to submit 

to arbitration pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § § 1, et seq., 

and/or the Arizona Uniform Arbitration Act, A.R.S. § § 12-1501, et seq., on the grounds 
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that all of Plaintiff’s claims are subject to an enforceable agreement to arbitrate. In 

addition, Defendant moves this Court for an Order staying this action, if arbitration is 

ordered, until the completion of the arbitration. A.R.S. § 12-1502(D).

BACKGROUND

Defendant Atlantic, the Underwriter, issued an Occupational Accident Insurance 

Policy (Policy) to the Trucking Industry Group Insurance Trust (TIGIT), the 

Policyholder, of which Andrews Van Lines (Andrews) was the Participating 

Organization. (Doc. 11-2 at 32.) Plaintiff Willie F. Williams, aka Williams Trucking, 

works as an Independent Contractor for Andrews, a Carrier, based on the contractual 

relationship between them. (Doc. 14-1 at 1.) Plaintiff is in the business of transporting 

household goods and freight by motor vehicle. The Policy was effective beginning May 

1, 2014. Plaintiff alleges and Defendant agrees, for purposes of this motion, that he is the 

Insured Person under the Policy as he worked for Andrews, with his premium payment 

deducted from his paycheck. (Doc. 14-3 at 1.) Obtaining this Policy was a condition of 

his employment. “The reasonable expectation of the parties was that the policy would 

insure Plaintiff for the loss of his ability to perform his then occupation as a commercial 

truck driver of household goods which included duties of loading and unloading 

household goods involving heavy lifting greater than 20 lbs.” (Complaint, Doc. 1-3 at 8 

¶¶22-25.) 

On December 16, 2014, Plaintiff fell from a ladder while moving household goods 

during a job for Andrews. (Doc. 1-3 at 9.) He was severely injured and lost consciousness 

for up to 30 minutes. Id. He reported the claim to Atlantic on December 16, 2014, but 
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had difficulty obtaining financial assistance with getting medical attention. (Doc. 1-3 at 

10.) The injuries interfered with his ability to work. Id. Plaintiff was unsuccessful 

obtaining payments on this medical bills by Atlantic so he was forced to seek treatment 

from the Veteran’s Administration (VA). Id. Plaintiff did not get his first MRI on the left 

shoulder until September 23, 2016. Id. The result showed a severe rotator cuff tear. 

(Doc. 1-3 at 11.) Plaintiff was unable to return to his former job and medical doctors 

advised him that he could not return to his job as a commercial truck driver. He had 

ongoing extreme pain and decreased range of motion in his left shoulder as a result of the 

fall. Over six months after the claim was reported, Plaintiff received a check dated June 

22, 2015 for $3,500.00. (Doc. 1-3 at 11.) Plaintiff finally made a demand for payment of 

all benefits owed under the policy on November 6, 2017. Defendant responded that no 

other benefits were warranted. Shortly thereafter, Plaintiff filed the action in state court 

for breach of contract, bad faith and declaratory judgment directed to the arbitration 

clause of the policy. (Doc. 1-3 at 18.)

One of the terms and conditions of the Policy is the Arbitration Provision found in 

Section VII of the Policy. That Arbitration Provision provides, as follows: 

Arbitration. Any contest to a claim denial and/or any dispute 

in connection with a claim under this Policy will be settled by 

arbitration administered by the American Arbitration 

Association in accordance with its Commercial Arbitration 

Rules, and judgment on the award rendered by the 

arbitrator(s) may be entered in any court having jurisdiction. 

The arbitration will occur at the offices of the American 

Arbitration Association nearest to the Insured Person or the 

person claiming to be the beneficiary. This provision does not 

apply if the Insured Person or the person claiming to be the 

beneficiary is a resident of a state where the law does not 
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allow binding arbitration in an insurance policy, but only if 

this Policy is subject to its laws. In such a case. binding 

arbitration does not apply. 

This Arbitration provision permanently bars the institution of 

any individual or class action lawsuit brought by the Insured 

Person or beneficiary. With this binding Arbitration 

provision, the Insured Person for himself, herself or any 

beneficiary is waiving the right to a trial by jury. 

(Doc. 11-2 at 27.)

On December 14, 2017, Williams filed the current lawsuit against Atlantic in the 

Superior Court for the State of Arizona. Defendant removed the action to federal court 

based on diversity of citizenship. The parties agree that Arizona substantive law is 

applicable. Prior to filing an Answer, Defendant filed the motion to enforce arbitration 

and stay proceedings. Plaintiff made a written demand for a jury trial in the Complaint 

(Doc. 1-3 at 6) and filed with this Court. (Doc. 12).

STANDARD OF REVIEW

Under the Federal Arbitration Act (FAA), “[a] written provision in ... a contract 

evidencing a transaction involving commerce to settle by arbitration a controversy 

thereafter arising out of such contract or transaction, or the refusal to perform the whole 

or any part thereof, ... shall be valid, irrevocable, and enforceable....” 9 U.S.C. § 2; see, 

e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113–19 (2001)(holding that FAA 

applies to employment contracts except those of transportation workers) (citing 9 U.S.C. 

§§ 1–2); Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 

2000); Tracer Research Corp. v. Nat'l Envtl. Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 

1994). “Although [a] contract provides that [state] law will govern the contract's 
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construction, the scope of the arbitration clause is governed by federal law.” Tracer 

Research Corp, 42 F.3d at 1294 (citing Mediterranean Enters., Inc. v. Ssangyong Corp., 

708 F.2d 1458, 1463 (9th Cir. 1983)); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 719 

(9th Cir. 1999) (“Federal substantive law governs the question of arbitrability.”); Chiron 

Corp., 207 F.3d at 1130–31 (holding that “district court correctly found that the federal 

law of arbitrability under the FAA governs the allocation of authority between courts and 

arbitrators” despite arbitration agreement's choice-of-law provision). 

“Notwithstanding the federal policy favoring it, ‘arbitration is a matter of contract 

and a party cannot be required to submit to arbitration any dispute which he has not 

agreed so to submit.’ ” Tracer Research Corp., 42 F.3d at 1294 (quoting United 

Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 

(1960)); see French v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 784 F.2d 902, 908 

(9th Cir. 1986). Where the arbitrability of a dispute is in question, a court must look to 

the terms of the contract. See Chiron Corp., 207 F.3d at 1130. “ ‘Any doubts concerning 

the scope of arbitrable issues should be resolved in favor of arbitration.’ ” Simula, 175 

F.3d at 719(quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 

20 (1983)); see French, 784 F.2d at 908.

However, a court “cannot expand the parties' agreement to arbitrate in order to 

achieve greater efficiency [and] the [FAA] ‘requires piecemeal resolution when necessary 

to give effect to an arbitration agreement.’ ” Tracer Research Corp., 42 F.3d at 

1294 (quoting Moses H. Cone Mem'l Hosp., 460 U.S. at 24–25) (emphasis in original). 

“[T]he judicial inquiry ... must be strictly confined to the question whether the reluctant 
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party did agree to arbitrate[.]” United Steelworkers, 363 U.S. at 582. “The court's role 

under the [FAA] is therefore limited to determining (1) whether a valid agreement to 

arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at 

issue.” Chiron Corp., 207 F.3d at 1130 (citing Simula, 175 F.3d at 719–20; Republic of 

Nicaragua v. Standard Fruit Co., 937 F.2d 469, 477–78 (9th Cir. 1991)); see Simula, 175 

F.3d at 720 (stating that “the district court can determine only whether a written 

arbitration agreement exists, and if it does, enforce it in accordance with its terms”) 

(citing Howard Elec. & Mech. v. Briscoe Co., 754 F.2d 847, 849 (9th Cir. 1985)).

In determining whether a valid agreement to arbitrate exists, the Court applies the 

same standard used when resolving summary judgment motions pursuant to Rule 56 of 

the Federal Rules of Civil Procedure. Coup v. Scottsdale Plaza Resort, LLC, 823 F. Supp. 

2d 931, 939 (D. Ariz. 2011); see also Perry v. NorthCentral University, Inc., No. CV-10-

8229-PCT-PGR, 2011 WL 4356499, *3 (D. Ariz. Sep. 19, 2011) (citing multiple cases 

that a motion to compel arbitration is resolved under the summary judgment standard). 

Therefore, the Court views all evidence in favor of the non-moving party to determine 

whether a valid arbitration agreement exists. See Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 255 (1986) (explaining the summary judgment standard); Celotex Corp. v. 

Catrett, 477 U.S. 317, 322-23 (1986) (same).

ANALYSIS

First, the parties agree that the validity of the Arbitration Provision is governed by 

Arizona law. Arizona contract law applies to this dispute. Federal courts sitting in 

diversity apply the forum state's choice of law rules to determine controlling substantive 
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law. Klaxon Co. v. Stentor Elec. Mfg. Co. Inc., 313 U.S. 487, 496 (1941). 

Second, the parties also agree that the question of whether the Plaintiff is bound by 

the Arbitration Provision is a matter of law for resolution by this Court. Plaintiff has 

included in his lawsuit a claim for declaratory judgment (Count Three) seeking a ruling 

on the conscionability and enforceability of the, among others, Policy’s Arbitration 

Provision. A.R.S. § 12-1831 provides as follows: 

Courts of record within their respective jurisdictions shall 

have power to declare rights, status, and other legal relations 

whether or not further relief is or could be claimed. No action 

or proceeding shall be open to objection on the ground that a 

declaratory judgment or decree is prayed for. The declaration 

may be either affirmative or negative in form and effect; and 

such declarations shall have the force and effect of a final 

judgment or decree. 

A court deciding a motion to compel arbitration must first decide whether and to 

what extent the parties agreed to arbitrate. See Mitsubishi-Motors Corp. v. Soler 

Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). The Arizona Supreme Court has held 

that the question of whether a non-party is bound by an arbitration agreement is properly 

resolved by the court as a matter of law. Smith v. Pinnamaneni, 227 Ariz. 170, 177–78, 

¶¶ 23–25 (Ariz. App.2011); see also Chandler Med. Bldg. Partners v. Chandler Dental 

Group, 175 Ariz. 273 (Ariz. App. 1993). ) “[O]ur threshold inquiry is whether the parties 

agreed to arbitrate; before a party to a lawsuit can be ordered to arbitrate and thus be 

deprived of a day in court, there should be an express, unequivocable agreement to that 

effect.” Samson v. NAMA Holdings, LLC, 637 F.3d 915, 923 (9th Cir. 2011); see also 
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John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964)(whether a party is bound by 

an arbitration clause is for the court to decide).

Here, the Defendant, as a signatory party to the Policy, argues that the Arbitration 

Provision must be enforced. The Plaintiff, as the nonsignatory party but arguably a thirdparty beneficiary, asks the Court not to enforce the Arbitration Provision. Plaintiff’s 

position is that there is no written agreement to arbitrate. Plaintiff was not a party to the 

contract, consequently he did not negotiate and/or agree to the Policy terms. Plaintiff 

also invokes his right to a Seventh Amendment jury trial, contracted away by the 

inclusion of the Arbitration Provision. Plaintiff claims that the Arbitration Provision is 

void because of a breach of fiduciary duty owed to the Plaintiff, impossibility of 

performance, vis-ἀ-vis TIGIT, and a failure of consideration. Even if the Court finds that 

the Arbitration Provision is binding, Plaintiff argues it is unenforceable against Plaintiff 

because it contravenes the expectations of Plaintiff, is unreasonably oppressive, and is 

unconscionable. Plaintiff was required to obtain and pay for this Policy as a condition of 

his employment.

Courts may not enforce arbitration agreements that are unenforceable “upon such 

grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The 

Ninth Circuit recently held that the National Labor Relations Act (NLRA) precludes 

enforcement of an arbitration provision that included a concerted action 

waiver. See Morris v. Ernst & Young, LLP, 834 F.3d 975, 983–84 (9th Cir. 2016). 

However, this holding does not apply when the employee had a right to opt out of the 

concerted action waiver. Id. at 982 n.4; see also Johnmohammadi v. Bloomingdale's, Inc.,
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755 F.3d 1072, 1076 (9th Cir. 2014). Here, Plaintiff is not an employee but an 

independent contractor and there was no opt-out provision available to him.

Courts interpret agreements to arbitrate “by applying general state-law principles 

of contract interpretation, while giving due regard to the federal policy in favor of 

arbitration by resolving ambiguities as to the scope of arbitration in favor of 

arbitration.” Wagner v. Stratton Oakmont, Inc., 83 F.3d 1046, 1049 (9th Cir. 1996). 

Agreements to arbitrate may be “invalidated by ‘generally applicable contract defenses, 

such as fraud, duress, or unconscionability,’ but not by defenses that apply only to 

arbitration or that derive their meaning from the fact that an agreement to arbitrate is at 

issue.” AT & T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (quoting Doctor's 

Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). “[A]s a matter of federal law, any 

doubts concerning the scope of arbitrable issues should be resolved in favor of 

arbitration, whether the problem at hand is the construction of the contract language itself 

or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem'l 

Hosp. v. Mercury Constr. Corp., 460 U.S. at 24–25. Courts “ordinarily will not except a 

controversy from coverage of a valid arbitration clause unless it may be said with positive 

assurance that the arbitration clause is not susceptible of an interpretation that covers the 

asserted dispute.” Marchese v. Shearson Hayden Stone, Inc.,734 F.2d 414, 419 (9th Cir. 

1984) (internal quotation and citation omitted). However, the federal policy favoring 

arbitration cannot “override[ ] the principle that a court may submit to arbitration only 

those disputes ... that the parties have agreed to submit.” Granite Rock Co. v. Int'l Bhd. of 

Teamsters, 561 U.S. 287 (2010) (internal quotation and citation omitted).
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There are certain exceptions to the general rule that an arbitration agreement is 

binding only on parties to the agreement. Dueñas v. Life Care Ctrs. of Am., Inc., 236 

Ariz. 130 (Ariz. App. 2014). One of those exceptions is for those who are third-party 

beneficiaries to a contract. In particular, under the third-party beneficiary exception, a 

non-signatory party may be barred from avoiding arbitration if he has received a direct 

benefit from the arbitration agreement. Jeanes v. Arrow Ins. Co., 16 Ariz. App. 589, 592 

(1972) (third-party beneficiary to a policy bound by the arbitration agreement included in 

the policy because insured and carrier agreed to it); Smith v. Clouse Const. Co., LLC, 

2012 WL 5333576, at *5 (Ariz. App. Oct. 30, 2012) (plaintiff may not avoid the ADR 

requirement in the contract to which he claims third-party beneficiary status); Estate of 

Decamacho ex rel. Guthrie v. La Solana Care & Rehab, Inc., 234 Ariz. 18, 22 (Ariz. 

App. 2014) (same). The status as a third-party beneficiary is sufficient to enforce all 

contract terms, including an arbitration agreement. 

Contrary to Plaintiff’s argument, there is no need for an evidentiary hearing on 

whether he is bound by the Policy’s Arbitration Provision because he is admittedly a nonsignatory to the Policy. 1 Rather, the terms of the Policy itself, as well as his own 

allegations and admissions, constitutes evidence that Plaintiff is an intended third-party 

 1 Here, however, the Court may not require an evidentiary hearing to determine whether 

Plaintiff actually signed the Policy with the Arbitration Provision. There must be a 

genuine factual question whether or not the Plaintiff executed the Policy, which is not the 

same issue as whether or not he read the agreement or understood the agreement or 

thought the agreement was like all the other prior agreements. Plaintiff signed the independent contractor agreement on January 1, 2014. (Doc. 14-1 at 11.) (“Read This 

Policy Carefully”- (Doc. 11-2 at 4.)) He did not sign the Workers Compensation and Employers Liability Insurance Policy. (Doc. 14-2.) He did sign the Driver Enrollment 

and Beneficiary Form. (Doc. 14-2.) Plaintiff did not sign the contract to enter into the Policy. 
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beneficiary under the Policy. And in this role, he seeks benefits under that contract. As a 

third-party beneficiary seeking contract benefits, Arizona law requires that he is bound by 

all contract terms – including the Arbitration Provision. 

In Letizia v. Prudential Bache Securities, Inc., 802 F.2d 1185 (9th Cir.1986), the 

court explained that “nonsignatories of arbitration agreements may be bound by the 

agreement under ordinary contract and agency principles.” Id. at 1187-88. Among these 

principles are “1) incorporation by reference; 2) assumption; 3) agency; 4) veilpiercing/alter ego; and 5) estoppel.” Thomson-CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 

773, 776 (2d Cir.1995). In addition, nonsignatories can enforce arbitration agreements 

as third party beneficiaries. See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber 

& Resin Intermediates, 269 F.3d 187, 195 (3d Cir.2001). Equitable estoppel “precludes a 

party from claiming the benefits of a contract while simultaneously attempting to avoid 

the burdens that contract imposes.” Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 

267 (5th Cir.2004). Nonsignatories have been held to arbitration clauses where the 

nonsignatory “knowingly exploits the agreement containing the arbitration clause despite 

having never signed the agreement.” DuPont, 269 F.3d at 199 (citing Thomson-CSF,64 

F.3d at 778). The hurdle is whether there is evidence that Plaintiff knowingly exploited 

the Policy containing the Arbitration Provision despite having never signed the Policy. 

The Court interprets this as meaning that Plaintiff sought benefits under the Policy that he 

is disputing, which is necessarily the case because Plaintiff is seeking to obtain worker 

compensation benefits as an injured party under the terms of the Policy.
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Defendant argues that Plaintiff is bound by the Arbitration Provision as 

a third party beneficiary. “To sue as a third-party beneficiary of a contract, 

the third party must show that the contract reflects the express or implied intention of the 

parties to the contract to benefit the third party.” Klamath Water Users Protective Ass'n v. 

Patterson, 204 F.3d 1206, 1211 (9th Cir.2000). A third party beneficiary might in certain 

circumstances have the power to sue under a contract; it certainly cannot be bound to a 

contract it did not sign or otherwise assent to. See Motorsport Eng'g, Inc. v. Maserati 

SPA, 316 F.3d 26, 29 (1st Cir.2002); Abraham Zion Corp. v. Lebow, 761 F.2d 93, 103 

(2d Cir.1985). In the Third Circuit, “whether seeking to avoid or compel arbitration, 

a third party beneficiary has been bound by contract terms where its claim arises out 

of the underlying contract to which it was an intended third party

beneficiary.” DuPont, 269 F.3d at 195 (emphasis added). Applying the general rule to 

this particular factual scenario, a nonsignatory is not bound by an Arbitration Provision, 

Plaintiff is not required to arbitrate his individual private cause of action. Comer v. 

Micor, Inc., 436 F.3d 1098, 1103-04 n. 10-11 (9th Cir. 2006) (ERISA).

Ultimately, this Court may also resolve this motion based on the Arbitration 

Provision being unconscionable alone. Under Arizona law “[a]n unconscionable contract 

is unenforceable.” Clark v. Renaissance W., LLC, 307 P.3d 77, 79 (Ariz. Ct. App. 2013). 

“A contract may be substantively unconscionable when the terms of the contract are so 

one-sided as to be overly oppressive or unduly harsh to one of the parties.” Id. “[A] claim 

of unconscionability can be established with a showing of substantive unconscionability 

alone, especially in cases involving either price-cost disparity or limitation of 
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remedies.” Maxwell v. Fid. Fin. Servs., Inc., 907 P.2d 51, 59 (Ariz. 1995) (in banc). 

Arbitration agreements are unenforceable if they fail “to provide for all of the types of 

relief that would otherwise be available in court.” Circuit City Stores, Inc., 279 F.3d at

895.. Under Arizona law, “[a]n arbitration agreement may be substantively 

unconscionable if the fees and costs to arbitrate are so excessive as to ‘deny a potential 

litigant the opportunity to vindicate his or her rights.’ ” Clark, 307 P.3d at 

79 (quoting Harrington v. Pulte Home Corp., 119 P.3d 1044, 1055 (Ariz. App. 2005)). 

“The party seeking to invalidate an arbitration agreement on such grounds has the burden 

of proving that arbitration would be prohibitively expensive.” Id. at 80. In determining 

whether arbitration would be prohibitively expensive, courts consider the cost to 

arbitrate, evidence showing whether the party can pay the costs to arbitrate, and whether 

the arbitration agreement or rules of arbitration permit a party to waive or reduce the 

costs of arbitration based on financial hardship. Id.

Plaintiff has convincingly shown that arbitration is prohibitively expensive and 

that he lacks the financial resources to pay the arbitration costs. Finally, the Arbitration 

Provision itself does not provide for a reduction in costs for financial hardship and 

contains no reference to the rules that will govern the arbitration; the flexible fee option is 

still quite expensive and offers no overall reduction in the arbitration fees. Plaintiff has 

been unable to work based on the injury that is the subject of this action. Therefore, the

Court concludes that Plaintiff has met his burden to show that arbitrating his claims 

would be prohibitively expensive and would prevent him from vindicating his rights. As 

such, the arbitration provision is unconscionable. In Arizona, “[t]he equitable principles 
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underlying codification of unconscionability are part and parcel of the statute.” Maxwell, 

907 P.2d at 60.

[C]ourts will not lend their hand to the enforcement of 

oppressive contracts, and the statute mandates that Arizona 

courts must either (1) refuse to enforce an unconscionable 

contract, (2) refuse to enforce any unconscionable portion of 

a contract, or (3) limit the application of any unconscionable 

clause of a contract to avoid any unconscionable result.

Id. (citing A.R.S. § 47-2303(A)). 

The Arbitration Provision at issue is substantively unconscionable and will not be 

enforced by this Court. See Zaborowski v. MHN Gov't Servs., Inc., 601 Fed.Appx. 461, 

464 (9th Cir. 2014) (district court did not abuse its discretion by refusing to enforce 

arbitration agreement with five unconscionable provisions); Newton v. Am. Debt Servs., 

Inc., 601 Fed.Appx. 461, 464 (9th Cir. 2013) (district court did not abuse its discretion by 

refusing to enforce arbitration agreement with four unconscionable provisions). 

Defendant asks the Court to write in provisions concerning financial hardship and 

reduction and/or waiver of fees that are not currently part of the Arbitration Provision. 

(Doc. 20 at 6 ¶¶13-27; Doc. 14-4 at 1-3.) The extent of unconscionability here would 

force the Court to rewrite, rather than interpret, the Arbitration Provision. See Capili v. 

Finish Line, Inc., No. 15-16657, 2017 WL 2839504, at *2 (9th Cir. July 3, 2017). The 

Court is taking Plaintiff’s allegations of financial hardship and inability to afford the 

arbitration costs as true, as the allegations of the nonmoving party, because he has been 

out of work since the injury, has been unable to pay his medical bills and so far only 

received $3,500.00 from the Defendant.
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Accordingly,

IT IS ORDERED that the Defendant’s motion to stay and compel arbitration

(Doc. 11) is DENIED. Defendant must file an Answer within twenty (20) days of the 

date on this Order and the Court will then set a scheduling conference and date to file a 

joint proposed scheduling order.

Dated this 2nd day of May, 2018.