Kretsch v. Barton

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Karla Kretsch, et al., No. CV-23-00411-PHX-ROS 10 Plaintiffs, ORDER 11 v. 12 John Barton, et al., 13 Defendants. 14 15 Plaintiff filed a motion for default judgment against Defendants John Barton and 16 Susan Barton (sued as “Jane Doe Barton”), a married couple. (Doc. 22, “Mot.”). 17 Defendants have not filed a response. As set forth below, the Court will grant the motion 18 in part and deny the motion in part and direct entry of default judgment against Defendants 19 in the amount of $1,099,678.63. 20 BACKGROUND 21 Plaintiff filed this action alleging Defendant John Barton, among other offenses, 22 defrauded her into making several investments between 2010 and 2012 in conjunction with 23 Defendant’s agent/employee, Guy Newman. (See Doc. 11). On March 6, 2024, the Court 24 dismissed Plaintiff’s complaint primarily because Plaintiff failed to demonstrate the 25 discovery rule applies to render her claims within the statutes of limitation. (Doc. 15). 26 Plaintiff filed an Amended Complaint on March 20, 2024. (Doc. 16, “Compl.”). On April 27 23, 2024, the Court granted Defendants’ counsel’s motion to withdraw and ordered 28 Defendants to answer or otherwise respond to the amended complaint by May 3, 2024. 1 (Doc. 18). Defendants did not do so. On May 10, 2024, Plaintiff applied for entry of 2 default against Defendants. (Doc. 20). The Clerk entered default against Defendants on 3 May 14, 2024. (Doc. 21). Plaintiff then filed the present motion for default judgment 4 against Defendants. 5 JURISDICTION 6 When a party seeks default judgment “against a party who has failed to plead or 7 otherwise defend, a district court has an affirmative duty to look into its jurisdiction over 8 both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). The 9 Court has diversity jurisdiction over this action because it is between citizens of different 10 states and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. The Court 11 also has personal jurisdiction over Defendants. Plaintiff’s claims arise from Defendant’s 12 alleged conduct purposefully directed into Arizona. (Compl. at ¶¶ 1-8). 13 DEFAULT JUDGMENT 14 Once default is entered, the Court may enter default judgment under Rule 55(b). 15 Deciding to grant default judgment is discretionary and the Court must consider: (1) the 16 possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claim; (3) 17 the sufficiency of the complaint; (4) the amount in controversy; (5) the possibility of factual 18 dispute; (6) whether the default was due to excusable neglect; and (7) the strong preference 19 to decide cases on the merits. Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). 20 I. Factor (1): Prejudice to Plaintiff 21 Plaintiff argues if default judgment is not entered, she “would be without other 22 recourse for recovery” to which she is entitled. (Mot. at 5). It is true that without a 23 judgment, Plaintiff has no obvious alternative recourse. This factor weighs in favor of 24 default judgment. See Zekelman Indus. Inc. v. Marker, No. CV-19-02109-PHX-DWL, 25 2020 WL 1495210, *3 (D. Ariz. Mar. 27, 2020). 26 II. Factors (2) and (3): Merits of the Claim and Sufficiency of the Complaint 27 The second and third Eitel factors, taken together, require courts to consider whether 28 a plaintiff has stated a claim on which they may recover. See PepsiCo, Inc. v. Cal. Sec. 1 Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002); Danning v. Lavine, 572 F.2d 1386, 2 1388–89 (9th Cir. 1978). “Of all the Eitel factors, courts often consider the second and 3 third factors to be the most important.” Trident Invest. Partners Inc. v. Evans, No. CV-20- 4 01848-PHX-DWL, 2021 WL 75826, *3 (D. Ariz. Jan. 8, 2021) (quoting Vietnam Reform 5 Party v. Viet Tan-Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 2019)). In 6 considering these factors, the complaint’s factual allegations are taken as true, but the 7 plaintiff must establish all damages sought. Geddes v. United Fin. Group, 559 F.2d 557, 8 560 (9th Cir. 1977). For the reasons below, these factors weigh in favor of default 9 judgment on Plaintiff’s claims for Arizona securities fraud, negligent misrepresentation, 10 control person liability, fraud, and aiding and abetting fraud. 11 A. Arizona Securities Fraud (Count I) 12 Plaintiff asserts Defendant violated A.R.S. § 44-1991(A)(1) and (A)(2) in 13 connection with her investments in Creative Learning Corporation and Spectrum 14 Resources Corporation. A.R.S. § 44-1991(A)(1) prohibits anyone from employing “any 15 device, scheme, or artifice to defraud” in connection with a securities transaction, while 16 A.R.S. § 44-1991(A)(2) prohibits making “any untrue statement of material fact” or 17 omitting “any material fact necessary” to make a statement “not misleading.” 18 To successfully state a § 1991(A) claim, a plaintiff “must set forth facts indicating 19 that each defendant either made, participated in, or induced the security transaction at 20 issue.” Allstate Life Ins. Co. v. Robert W. Baird & Co., 756 F. Supp. 2d 1113, 1157 (D. 21 Ariz. 2010) (citing A.R.S. § 44-2001(A)). And a plaintiff bringing an action under 22 § 44-1991(A)(1) must “state with particularity facts giving rise to a strong inference that 23 the defendant acted with the required state of mind”—knowingly or recklessly—in each 24 alleged act or omission and “specify each alleged untrue statement or material omission 25 and the reason or reasons why the statement or omission is misleading or the omission is 26 material.” A.R.S. § 44-2082; see also Allstate, 756 F. Supp. 2d at 1159 (“For claims arising 27 under § 1991(A)(1), a claimant must allege the requisite state of mind with particularity.”); 28 Facciola v. Greenberg Traurig, LLP, 781 F. Supp. 2d 913, 921-22 (D. Ariz. 2011) (denying 1 motion to dismiss on scienter grounds where the plaintiffs sufficiently alleged the 2 defendants “acted knowingly or recklessly”). Further, “if an allegation regarding the 3 statement or omission is made on information and belief, the complaint shall state with 4 particularity all facts on which that belief is formed.” Id. 5 Plaintiff has sufficiently alleged a claim for violations of Arizona securities fraud. 6 She alleges Defendant “knowingly or recklessly” made material misrepresentations and 7 omissions. Defendant allegedly materially omitted (1) he, his family, and associates would 8 receive 2,450,000 shares for $0 in capital investment (Compl. ¶ 174), (2) he had been 9 removed from the Rockdale Board of Directors when soliciting Plaintiff’s investment in 10 Spectrum (Id. ¶ 175), (3) the investment in Spectrum was “extremely risky and illiquid” 11 (Id. ¶ 178), and (4) Defendant would be receiving 250,000 shares in exchange for $0 of 12 capital investment (Id. ¶ 179). And he did so knowingly or recklessly. (Id. ¶ 166-185). 13 Accepting Plaintiff’s allegations as true, her allegations are sufficient to support a claim 14 for Arizona securities fraud. 15 B. Negligent Misrepresentation (Count II) 16 Plaintiff asserts a claim for negligent misrepresentation against Defendant. The 17 elements of negligent misrepresentation under Arizona law are: 18 (1) the defendant provided false information in a business transaction; (2) the 19 defendant intended for the plaintiff to rely on the incorrect information or knew that it reasonably would rely; (3) the defendant failed to exercise 20 reasonable care in obtaining or communicating the information; (4) the 21 plaintiff justifiably relied on the incorrect information; and (5) resulting damage. 22 23 KB Home Tucson, Inc. v. Charter Oak Fire Ins. Co., 340 P.3d 405, 412 n.7 (Ariz. 2014). 24 “A claim for negligent misrepresentation must meet the particularity requirements of Rule 25 9(b).” Howard v. JPMorgan Chase Bank, N.A., No. CV12-0952-PHX-DGC, 2012 WL 26 6589330, at *2 (D. Ariz. Dec. 17, 2012)). 27 Plaintiff has sufficiently stated a claim for negligent misrepresentation. She alleges 28 Defendant provided her false information regarding the true nature of the advice and 1 services he offered her so that Plaintiff would invest in Defendant’s companies, which she 2 did. (Compl. ¶¶ 186-191). Accepting Plaintiff’s allegations as true, they are sufficient to 3 support liability for negligent misrepresentation. 4 C. Control Person Liability (Count III) 5 Plaintiff asserts a claim for control person liability against Defendant. A.R.S. § 44- 6 1999(B) imposes “presumptive control liability on those persons who have the power to 7 directly or indirectly control the activities of those persons or entities liable as primary 8 violators of §§ 44-1991 and 1992.” E. Vanguard Forex, Ltd. v. Arizona Corp. Comm’n, 9 79 P.3d 86, 98–99 (Ariz. Ct. App. 2003) (interpreting “control” as the “legal power, either 10 individually or as part of a control group, to control the activities of the primary violator”). 11 Plaintiff has sufficiently stated a claim for control person liability under A.R.S. § 12 44-1999(B). She alleges each of Newman’s acts were taken by Newman “on behalf of and 13 at the direction of Defendant Barton as his agent.” (Compl. ¶ 194). Additionally, she 14 alleges “Defendant encouraged, directed, and/or enabled Newman’s pattern of fraud and 15 deceit and thus is also liable for Newman’s actions under doctrines of respondeat superior 16 and actual or apparent agency.” (Id. ¶ 196). A FINRA arbitration panel found Newman 17 liable for securities fraud, among several other claims. (Id. ¶¶ 106, 108). Accepting 18 Plaintiff’s allegations as true, they are sufficient to support a claim for control person 19 liability. 20 D. Constructive Fraud (Count IV) 21 Plaintiff asserts a claim for constructive fraud against Defendant. In Arizona, the 22 elements of constructive fraud are (1) a fiduciary or confidential relationship, (2) a breach 23 of duty by the person in the confidential or fiduciary relationship, and (3) that the person 24 in breach induced justifiable reliance by the other to his detriment. Green v. Lisa Frank, 25 Inc., 211 P.3d 16, 34 (Ariz. Ct. App. 2009). 26 Plaintiff has failed to state a claim for constructive fraud because she did not 27 sufficiently plead facts showing Defendant owed her fiduciary duties. A plaintiff must 28 plead “factual content that allows the court to draw the reasonable inference that the 1 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 2 (2009). Conclusory allegations—such as “a fiduciary duty exists”—are “not entitled to be 3 assumed true.” Id. at 681. See Lytikainen v. Schaffer’s Bridal LLC, 409 F. Supp. 3d 767, 4 778 (D. Ariz. 2019) (“[Plaintiff’s] allegation that she had a ‘trusting long-term business 5 relationship’ and ‘friendship’ with Defendants isn’t enough to plausibly state that 6 Defendants owed her a fiduciary duty.”); Cruz v. United States, 219 F. Supp. 2d 1027, 1039 7 (N.D. Cal. 2002) (“[P]laintiffs have not pled facts that would give rise to a fiduciary 8 relationship, and the Court need not accept their conclusory allegation that such a 9 relationship existed.”). 10 Plaintiff alleges “a relationship of trust and confidence existed between Plaintiff and 11 Defendant as a result of the entrusting of power to Defendant, the superiority of position 12 of Defendant, and the fiduciary relationship between business owner/direct, advisor 13 (Defendant Barton’s agent, Newman), and client.” (Compl. ¶ 208). Further, “[a]s a result 14 of the confidential and trust relationship, Plaintiff placed reliance on the trustworthiness of 15 Defendant and the Defendant was under a duty to make full and truthful disclosure of all 16 material facts.” (Id. ¶ 209). These allegations are conclusory. Plaintiff fails to set forth 17 specific facts giving rise to the parties’ alleged “relationship of trust and confidence.” The 18 mere fact Defendant was the owner/board member of the companies Plaintiff invested in 19 does not give rise to a fiduciary obligation because Plaintiff was not yet a shareholder in 20 the companies at the time of Defendant’s alleged fraudulent acts. See Atkinson v. 21 Marquart, 541 P.2d 556, 558 (Ariz. 1975) (“[A] director of a corporation owes a fiduciary 22 duty to the corporation and its stockholders.”). Thus, Plaintiff’s allegations are insufficient 23 to support liability for constructive fraud. 24 E. Civil Conspiracy (Count V) 25 Plaintiff asserts a claim for civil conspiracy against Defendant. “For a civil 26 conspiracy to occur” under Arizona law, “two or more people must agree to accomplish an 27 unlawful purpose or to accomplish a lawful object by unlawful means, causing damages.” 28 Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Loc. No. 395 Pension 1 Tr. Fund, 38 P.3d 12, 36 (Ariz. 2002) (quoting Baker v. Stewart Title & Trust of Phoenix, 2 5 P.3d 249, 256 (Ariz. Ct. App. 2000)). “When pleading a claim for civil conspiracy, a 3 plaintiff must plead with particular specificity as to the manner in which a defendant joined 4 in the conspiracy and how he participated in it.” Armstrong v. Reynolds, 22 F.4th 1058, 5 1085 (9th Cir. 2022) (internal quotations omitted). 6 Plaintiff has failed to state a claim for civil conspiracy because, for the same reasons 7 in Section D, supra, she did not sufficiently plead facts showing a fiduciary relationship— 8 this time, with respect to Newman. Plaintiff alleges Newman owed her a fiduciary duty as 9 her financial and/or investment advisor. (Compl. ¶ 214). Further, she relied on Newman’s 10 “trustworthiness and acumen in making financial decisions as he recommended” because 11 “he was both a fellow franchisee and a registered representative of an investment banking 12 firm.” (Id. ¶ 215) (citing Stewart v. Phoenix Nat’l Bank, 64 P.2d 101, 106 (Ariz. 1937) 13 (“peculiar reliance in the trustworthiness of another” is required in finding a fiduciary 14 duty)). 15 Again, these allegations are conclusory. Plaintiff cites to caselaw describing the 16 requirements for finding a fiduciary relationship, but she fails to plead specific facts giving 17 rise to that relationship. (See id. ¶ 216) (“Had Newman not been a fellow franchisee and 18 registered representative of an investment banking firm, Ms. Kretsch would not have relied 19 on his investment advice. Rhoads v. Harvey Pubs., Inc., 145 Ariz. 142, 148–49, 700 P.2d 20 840, 846–47 (App. 1984) (fiduciary relationship is a confidential relationship whose 21 attributes include ‘great intimacy, disclosure of secrets, [or] intrusting of power’).”); see 22 also id. ¶ 219 (“As he was directing Ms. Kretsch toward Defendant Barton’s investments, 23 Newman held a ‘superiority of position’ over her due to her inexperience. Id. (in a fiduciary 24 relationship, fiduciary holds ‘superiority of position’ over beneficiary).”); see also id. ¶ 25 221 (“This course of conduct implicitly substituted Newman’s will for that of Ms. Kretsch, 26 creating a confidential relationship and imposing upon Newman a fiduciary duty to Ms. 27 Kretsch. Herz & Lewis, Inc. v. Union Bank, 22 Ariz. App. 437, 439, 528 P.2d 188, 190 28 (1974) (superiority of position may be demonstrated in material aspects of the transaction 1 at issue by a ‘substitution of [the fiduciary’s] will’).”). 2 Plaintiff does not proffer the necessary facts to show she placed “peculiar reliance 3 in [Newman’s] trustworthiness,” Stewart, 64 P.2d at 106 (Ariz. 1937), instead of placing 4 “mere trust in [Newman’s] competence or integrity.” Standard Chartered PLC v. Price 5 Waterhouse, 945 P.2d 317, 335 (Ariz. Ct. App. 1996). She fails to show exactly how 6 Newman’s will was substituted for her own. Herz & Lewis, Inc., 528 P.2d at 190 (Ariz. 7 Ct. App. 1974). And she does not elucidate how her relationship with Newman involved 8 “great intimacy, disclosure of secrets, [or] intrusting of power” Rhoads v. Harvey Pubs., 9 Inc., 700 P.2d at 846-47 (Ariz. Ct. App. 1984), as opposed to being a mere “arm’s length 10 relationship.” Standard Chartered PLC, 945 P.2d at 335 (Ariz. Ct. App. 1996). Because 11 Plaintiff failed to adequately plead the underlying tort of breach of fiduciary duty, her 12 allegations are insufficient to support liability for civil conspiracy. 13 F. Fraud (Count VI) 14 Plaintiff asserts a claim for fraud against Defendant. Under Arizona law, to prevail 15 on a common law fraud claim, a plaintiff must show: 16 (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s 17 knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that it should be acted upon by and in the manner reasonably contemplated; (6) 18 the hearer’s ignorance of its falsity; (7) the hearer’s reliance on the truth; (8) 19 the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury. 20 21 Duncan v. Pub. Storage, Inc., 253 Ariz. 15, 21, 507 P.3d 509, 515 (Ct. App. 2022). 22 Plaintiff has sufficiently stated a claim for common law fraud. She alleges 23 Defendant knowingly made false statements of material fact to Plaintiff—who had the right 24 to rely on them due to his position in the companies, in order to secure her investment in 25 the companies—causing her damages. (Compl. ¶¶ 235-53). Accepting Plaintiff’s 26 allegations as true, they are sufficient to support liability for fraud. 27 G. Aiding and Abetting Tortious Conduct (Count VII) 28 Plaintiff asserts a claim for aiding and abetting tortious conduct against Defendant. 1 This count includes two separate aiding and abetting claims: (1) aiding and abetting breach 2 of fiduciary duty and (2) aiding and abetting fraud. (Id. at ¶¶ 256-57). A claim for aiding 3 and abetting tortious conduct under Arizona law requires: (1) the primary tortfeasor 4 committed a tort causing injury to the plaintiff; (2) the defendant knew the primary 5 tortfeasor breached a duty; (3) the defendant substantially assisted or encouraged the 6 primary tortfeasor in breaching the duty; and (4) a causal relationship between the 7 defendant’s assistance or encouragement and the primary tortfeasor’s breach. Sec. Title 8 Agency, Inc. v. Pope, 200 P.3d 977, 988 (Ariz. Ct. App. 2008). 9 Plaintiff’s claim for aiding and abetting breach of fiduciary duty fails for the same 10 reasons discussed in Sections D and E, supra. However, Plaintiff has sufficiently stated a 11 claim for aiding and abetting fraud. She alleges specific facts of Newman’s fraudulent 12 acts, Defendant knew of these fraudulent acts, and Defendant substantially assisted, 13 encouraged, participated in, and/or directed Newman in causing the fraudulent acts to be 14 committed. Thus, Plaintiff’s allegations are sufficient to support liability for aiding and 15 abetting fraud, but not aiding and abetting breach of fiduciary duty. 16 III. Factor (4): Amount in Controversy 17 Returning to the Eitel factors, the next factor is the sum of money at stake. This 18 factor requires the court to consider this amount in relation to the seriousness of 19 Defendants’ conduct. PepsiCo, 238 F. Supp. 2d at 1176. Plaintiff seeks $1,099,678.63 in 20 damages, including pre-judgment interest. (Mot. at 1). The requested amount is reasonable 21 and proportional to the complaint’s allegations. This factor supports entering default 22 judgment. 23 IV. Factor (5): Dispute Concerning Material Facts 24 Defendants failed to respond to the factual allegations in Plaintiff’s Second 25 Amended Complaint. This factor supports default judgment. 26 V. Factor (6): Excusable Neglect 27 There is no evidence in the record to suggest that Defendants’ failure to answer was 28 the result of excusable neglect. Defendants successfully moved to dismiss Plaintiff’s First 1 Amended Complaint. However, after Plaintiff filed her Second Amended Complaint, 2 Defendants inexcusably failed to answer or otherwise defend upon the withdrawal of their 3 counsel. This factor supports default judgment. 4 VI. Factor (7): Policy Favoring Judgment on the Merits 5 Of course, this factor generally weighs against default judgment. See Zekelman 6 Indus. Inc., 2020 WL 1495210, at *4. 7 VII. Conclusion 8 The sum of the Eitel factors support entering default judgment in this case. The 9 Court will grant Plaintiff’s motion and enter default judgment accordingly. 10 DAMAGES 11 As noted above, a movant for default judgment must establish all damages sought. 12 Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). Plaintiff’s motion asserts 13 statutory damages in the amount of $1,099,678.63, consisting of $316,000.00 in the 14 principal amount of her investments, plus $783,678.63 in interest at a rate of 10%, pursuant 15 to A.R.S. §§ 44-2001(A) and 44-1201. Section 44-2001(A) provides “a sale of any 16 securities to any purchaser” in violation of Arizona securities fraud law is “voidable at the 17 election of the purchaser,” and the purchaser may recover “the consideration paid for the 18 securities, with interest, taxable court costs and reasonable attorney fees less the amount of 19 any income received by dividend or otherwise from ownership of the securities, on tender 20 of the securities purchased or the contract made.” Section 44-1201 provides for a pre- 21 judgment interest rate of 10%. 22 Plaintiff provides the table below detailing the consideration paid for each security, 23 including the date purchased, and the interest calculation at the statutory rate of 10%. 24 Plaintiff also provides sufficient evidence supporting those transactions in the form of 25 checks issued from her name to the various companies in the corresponding amounts set 26 forth below. (Mot. at Exs. A-E). 27 Investment Date Years Since Amount Principal Plus 28 Transaction 10% Interest 1 Creative Learning 6/4/2010 13 yrs., 11 mos., $50,000 $189,694.03 Center (1) 24 days (13.99 2 yrs.) 3 Creative Learning 6/25/2010 13 yrs., 11 mos., $50,000 $188,792.19 Center (2) 5 days (13.94 4 yrs.) 5 Vanguard 3/15/11 13 yrs., 2 mos., $75,000 $264,406.76 15 days (13.22 6 yrs.) Spectrum (1) 6/30/11 12 yrs., 11 mos., $30,000 $102,879.46 7 0 days (12.93 yrs.) 8 Rockdale (fka 2/2/12 12 yrs., 3 mos., $40,000 $129,548.32 9 SGL Capital 28 days (12.33 Partners) yrs.) 10 Spectrum (2) 3/21/12 12 yrs., 2 mos., $50,000 $159,941.35 11 9 days (12.2 yrs.) 12 Rockdale 8/28/12 11 yrs., 9 mos., $21,000 $64,416.52 2 days (11.76 13 yrs.) 14 TOTAL $316,000 $1,099,678.63 15 Defendants have failed to challenge the present value of the securities or otherwise 16 dispute Plaintiff’s present ownership of these securities. Thus, the Court will take 17 Plaintiff’s allegations of entitlement to the full purchase value of each security (plus 18 interest) as true and award Plaintiff damages in the amount of $1,099,678.63. 19 Plaintiff also seeks attorneys’ fees and costs in the amount of $211,413.05. 20 However, Plaintiff’s request does not comply with Local Rule of Civil Procedure 54.2. 21 The Court will consider granting a fee award upon Plaintiff’s filing of a fee motion strictly 22 adhering to Local Rule 54.2. If Plaintiff decides to file a separate motion for fees, she is 23 advised the fee ledgers submitted in Exhibits F and G of this Motion are insufficient to 24 comply with the requirements of Local Rule 54.2(e). Additionally, the Court expects a full 25 briefing on why Plaintiff believes she is entitled to recover the $142,853.72 incurred during 26 her litigation against Newman. 27 Accordingly, 28 IT IS ORDERED Plaintiff’s motion for default judgment (Doc. 22) is GRANTED 1 |) IN PART and DENIED IN PART. The Clerk of Court is directed to enter judgment in 2|| favor of Plaintiff and against Defendants in the amount of $1,099,678.63 in damages. This 3 || amount shall be subject to post-judgment interest at the applicable federal rate pursuant to U.S.C. § 1961 (a). 5 IT IS FURTHER ORDERED Plaintiff may file a separate motion for reasonable 6 || attorneys’ fees and costs in accordance with Local Rule of Civil Procedure 54.2 within 14 7\|| days of the entry of judgment. 8 IT IS FURTHER ORDERED the Clerk of Court shall close this case. 9 Dated this 8th day of October, 2024. 10 fo . 11 f — 3 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-