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OPINION REGARDING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS GORDON J. QUIST, District Judge. Plaintiff, Charlie Beamon, proceeding pro se, filed a Complaint against Defendants on April 25, 2012, in the 57th District Court of Alegan County, Michigan. Defendants removed the case to this Court on May 8, 2012, alleging federal question jurisdiction, 28 U.S.C. § 1331, on the basis that Plaintiffs claim is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq. Plaintiffs claim arises under ERISA because he seeks review of a denial of benefits under a group long-term disability policy. See 29 U.S.C. § 1132(a)(1)(B). Defendants have filed a Motion for Judgment on the Pleadings on the grounds that Plaintiff failed to exhaust his administrative remedies prior to filing this action. Plaintiff has responded by filing a Motion for Dismissal of Defendants’ Motion for Judgment on the Pleadings. For the following reasons, the Court will grant Defendants’ motion, deny Plaintiffs motion, and dismiss Plaintiffs Complaint with prejudice. Background In September of 2000, Plaintiff was placed on medical leave by his employer, Murco Foods Inc., for injuries that he sustained at work. Plaintiff applied for and received long-term disability benefits under a group disability insurance policy (Policy) that Fortis Benefits Insurance Company (Fortis) issued to Murco Food Inc. In August of 2002, Plaintiff obtained a workers’ compensation award. At the time, Fortis had a lien on the workers’ compensation award in the amount of $41,867.00 for an overpayment of benefits under the Policy. Through his counsel, Plaintiff obtained an agreement from Fortis to compromise its lien claim for a payment of $20,993.50. In March 2007, Plaintiff received a retroactive Social Security Disability (SSD) award in the amount of $73,226.63. Fortis claimed that the SSD award created an overpayment that it was entitled to recover under the Policy’s Adjustment of Benefits provision. Fortis also determined that Plaintiff was receiving Social Security dependent benefits, which increased the overpayment amount to $88,438.13. Fortis initially attempted to collect the overpayment from Plaintiff through a collection agency, but when those efforts failed, Fortis exercised its option to recover the overpayment through an adjustment of Plaintiffs monthly benefit until the overpayment was fully reimbursed. Fortis subsequently reduced the overpayment after Plaintiff furnished documents to Fortis showing that Plaintiffs wife, who along with Plaintiffs children was then living apart from Plaintiff, was receiving the dependent benefit on behalf of the children. Plaintiff claims that Fortis’ prior agreement to accept $20,933.50 from the workers’ compensation award in satisfaction of its lien for $41,867 bars Fortis from reducfng Plaintiffs monthly benefit to recover the overpayment resulting from the SSD award. II. Motion Standard Defendants bring their instant motion as a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). A motion under Rule 12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). Defendants assert that a Rule 12(c) motion is an appropriate vehicle for dismissal because an ERISA plaintiff has the burden of pleading exhaustion of administrative remedies. As support for their assertion that the burden of pleading exhaustion in an ERISA case is on the plaintiff, Defendants cite Hagen v. VPA, Inc., 428 F.Supp.2d 708 (W.D.Mich.2006), in which the court observed that dismissal was proper because the plaintiff failed to allege exhaustion in his complaint. See id. at 713. Although the Sixth Circuit has not addressed the issue, a number of courts have held that exhaustion of administrative remedies under ERISA is an affirmative defense. For example, in Wilson v. Kimberly-Clark Corp., 254 Fed.Appx. 280 (5th Cir.2007), the Fifth Circuit concluded that exhaustion is an affirmative defense under ERISA. Id. at 287. For guidance, the court looked to the United States Supreme Court’s decision in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), which held that exhaustion under the Prison Litigation Reform Act (PLRA) is an affirmative defense rather than a pleading requirement. The court thus held, “[a]l-though Plaintiffs failed to plead that they exhausted administrative remedies, the^ need not have done so here.” Id. Similarly, the Second Circuit has held that exhaustion in ERISA cases is not jurisdictional, but instead is a judge-made concept in the nature of an affirmative defense. See Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 443-45 (2d Cir.2006). Although decided before Jones v. Bock, supra, the Second Circuit in Paese, like the Fifth Circuit in Wilson, considered exhaustion under the PLRA a proper guidepost for applying the exhaustion requirement under ERISA. Id. at 445-46; see also Metro. Life Ins. Co. v. Price, 501 F.3d 271, 280 (3d Cir.2007) (“The exhaustion requirement [in an ERISA case] is a nonjurisdictional affirmative defense.”); Trotter v. Kennedy Krieger Inst., Inc., No. 11-3422-JKB, 2012 WL 3638778, at *4 (D.Md. Aug. 22, 2012) (stating that “contrary to Hartford’s understanding, ERISA plaintiffs are not obligated to plead exhaustion or futility; failure to exhaust is an affirmative defense that must be pled and proved by the defendant”). This Court has also previously held that exhaustion in an ERISA case is an affirmative defense that the defendant must plead. See Zappley v. Stride Rite Corp., No. 2:09-CV-198, 2010 WL 234713, at *4 (W.D.Mich. Jan. 13, 2010). Because exhaustion is an affirmative defense, a Rule 56 “summary judgment motion is the proper vehicle for considering a defendant’s claim that a plaintiff has failed to exhaust administrative remedies before filing a civil action.” Gunn v. Bluecross Blueshield of Tenn., Inc., No. 1:11-CV-183, 2012 WL 1711555, at *4 (E.D.Tenn. May 15, 2012); see also Soren v. Equable Ascent Fin., LLC, No. 2:12-cv-00038, 2012 WL 2317362, at *4 (D.Utah June 18, 2012) (“Bona fide error is an affirmative defense and is not properly raised in a motion to dismiss under Rule 12(b)(6).”). One exception to this rule is that an affirmative defense may be raised in a Rule 12(b)(6) motion “without resort to summary judgment procedure, if the defense appears on the face of the complaint.” In re Lehman Bros. Sec. & Erisa Litig., 799 F.Supp.2d 258, 317 (S.D.N.Y.2011) (internal quotation marks omitted); see also Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir.2010) (noting that “a district court may dismiss a complaint if the existence of a valid affirmative defense, such as the failure to exhaust, is ... plain from the face of the complaint”). Whether lack of exhaustion can be said to appear on the face of Plaintiffs Complaint is a close question, but the Court concludes that it does. Plaintiffs unconventional Complaint consists of a one-page form Summons and Complaint, which discloses nothing about Plaintiffs claim, and two letters. One letter, (dkt. # 1-1 at Page ID# 7), dated April 18, 2012, and addressed to Defendant Marie Tuschy, references a letter that Plaintiff received from Defendant Tuschy partially denying Plaintiffs claim. Plaintiff notes in his letter that Defendant Tuschy’s letter advises him that he has 180 days to appeal, and Plaintiff states that he has no more documents to submit and he “do[es] not see how another 180 days will make any different [sic].” (Id.) Plaintiff filed his Complaint in state court on April 25, 2012-one week after his April 18, 2012, letter to Defendant Tuschy. Moreover, in support of their motion, Defendants submit a copy of Defendant Tuschy’s April 12, 2012, letter to Plaintiff, which the Court may consider. See Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir.1997) (a court may consider documents attached to a motion to dismiss if they are referred to in the complaint and are central to the plaintiffs claim). In her letter, in addition to explaining the basis for the partial denial of Plaintiffs claim, Defendant Tuschy advised Plaintiff of the appeal procedure to initiate a second-level appeal of his claim and cautioned Plaintiff that he had 180 days to submit an appeal. (Defs.’ Br. Supp. Ex. A.) Considering both Defendant Tuschy’s April 12, 2012, letter to Plaintiff and Plaintiffs April 18, 2012, letter to Defendant Tuschy, as well as the fact that Plaintiff filed his Complaint one week after his letter to Defendant Tuschy, the Court concludes that Defendants’ Rule 12(c) motion is a proper means of presenting Defendants’ exhaustion defense. III. Discussion Although ERISA does not specifically contain an exhaustion requirement, the Sixth Circuit has held that “[t]he administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies prior to commencing suit in federal court.” Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991) (citing 29 U.S.C. § 1133(2)). Exhaustion is excused “where resorting to the plan’s administrative procedure would simply be futile or the remedy inadequate.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 418 n. 4 (6th Cir.1998). “The standard for adjudging futility of resorting to the administrative remedies provided by a plan is whether a clear and positive indication of futility can be made.” Id. Exhaustion will be excused where the plaintiffs suit is directed to the legality of the plan, as opposed to an interpretation of the plan, Durand v. Hanover Ins. Group, Inc., 560 F.3d 436, 439 (6th Cir.2009), or when the defendant lacks the authority to take the action sought by the plaintiff. Dozier v. Sun Life Assurance Co. of Canada, 466 F.3d 532, 535 (6th Cir.2006). Plaintiff does not deny that he failed to appeal Defendant Tuschy’s initial denial of his claim to the second level. However, Plaintiff appears to argue futility in both his Response to Defendants’ motion and in his Motion for Dismissal of Defendants’ Motion and supporting brief, noting that he has tried to resolve his claim with Defendants for several years without success. Plaintiff suggests that seeking further administrative review of his claim would not produce a different result. Even strong doubts, however, are not enough invoke futility. “A plaintiff must show that it is certain that his claim will be denied on appeal, not merely that he doubts that an appeal will result in a different decision.” Coomer v. Bethesda Hosp., Inc. 370 F.3d 499, 505 (6th Cir.2004). “[T]he courts must allow the administrative process to take its course even when the outcome will almost certainly be adverse to the claimant.” Durand, 560 F.3d at 440. In this Court’s judgment, Plaintiff has not demonstrated a certainty that his appeal would be denied. Plaintiff does not argue that an appeal would be reviewed by the same person that denied his initial appeal or that he has any reason to believe that a second-level appeal would not receive an independent review. Accordingly, Plaintiff has not shown a sufficient basis for the Court to excuse exhaustion. Under appropriate circumstances, the Court would stay the case, rather than dismiss it, to allow Plaintiff an opportunity to exhaust his administrative remedies and return to this Court for review of the decision, if necessary. See Lindemann v. Mobil Oil Corp., 79 F.3d 647, 651 (7th Cir.1996) (noting that a district court has discretion to dismiss or stay a case pending completion of administrative review). However, Plaintiff can no longer exhaust his administrative remedies because the 180-day period for Plaintiff to file his appeal has now expired. A stay, therefore, is unnecessary. Rather, the appropriate result is dismissal with prejudice. See Bird v. GTX, Inc., No. 2:08-cv-02852, 2010 WL 883738, at *4 (W.D.Tenn. Mar. 5, 2010) (“Courts typically dismiss unexhausted ERISA claims with prejudice where the opportunity to pursue administrative remedies has expired.”). Accordingly, the Court will dismiss the Complaint with prejudice. III. Conclusion For the foregoing reasons, the Court will grant Defendants’ Motion for Judgment on the Pleadings, deny Plaintiffs Motion for Dismissal of Defendants’ Motion, and dismiss the Complaint with prejudice. An Order consistent with this Opinion will be entered. . Plaintiff named Assurant Employee Benefits and certain individuals as Defendants. The Policy attached as Exhibit C to Defendants' Notice of Removal indicates that the Policy was issued by Fortis Benefits Insurance Company, which apparently is now known as Union Security Insurance Company. For purposes of the instant motion, references to Fortis include Union Security Insurance Company. . The Fifth Circuit has also held that exhaustion in ERISA cases is an affirmative defense rather than a jurisdictional requirement. Crowell v. Shell Oil Co., 541 F.3d 295 (5th Cir.2008). . The Court notes that Defendants have sufficiently pled lack of exhaustion in their affirmative defenses. (Dkt. # 8, affirmative defense # 7.)

MEMORANDUM OPINION AND ORDER ROBERT M. DOW, JR., District Judge. Defendants investigated and prosecuted Plaintiffs for allegedly abusing their positions at the State’s Attorney’s Office in McHenry County, Illinois. Once Plaintiffs defeated the charges against them— through voluntary dismissal and acquittal at trial — they sued special prosecutors Thomas K. McQueen and Henry C. Tonigan and certain Quest employees hired to assist them with the investigation and prosecution. According to Plaintiffs’ fifteen-count amended complaint, Defendants’ investigation and prosecution violated Plaintiffs’ rights under federal and state law. Defendants have moved to dismiss based on absolute and qualified immunity. For the reasons stated below, Defendants’ motions to dismiss [73, 80] are granted. Plaintiffs’ federal claims (Counts I — VII) are dismissed with leave to re-plead within 28 days if Plaintiffs believe that an amended complaint could overcome the immunity obstacles set forth below. If Plaintiffs decide not to replead, Plaintiffs’ federal claims will be dismissed with prejudice and the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims (Counts VIII — XV) and dismiss those claims without prejudice. I. Background The facts are drawn from Plaintiffs’ amended complaint [70]. In deciding Defendants’ motion to dismiss, the Court accepts well-pleaded facts as true and draws all reasonable inferences in Plaintiffs’ favor. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005). Bianchi is the State’s Attorney in McHenry County, Illinois. He first was elected in 2004. He ran again in 2008, and he was reelected following what he describes as “highly contentious” Republican primary. According to the complaint, the campaign to unseat him continued after the election: After failing in their efforts to legally remove Bianchi from office during the 2008 election, Bianchi’s political opponents initiated a politically motivated conspiracy to override the election and force Bianchi from office. The objective of this conspiracy was to arrest, indict, and publically smear Bianchi, thereby causing him to resign his office, irreparably tarnish his public reputation, and allow his political opponents to install a State’s Attorney who would do their bidding. Compl. ¶ 16. As it bears on this case, the alleged conspiracy to unseat Bianchi took the form of an investigation and prosecution by special prosecutor Tonigan (no longer a Defendant) and his assistant special prosecutor, Defendant McQueen. As Plaintiffs tell it, the story of this case begins in 2004, when Amy Dalby was a secretary in the State’s Attorney’s Office (“SAO”). Prior to resigning in 2006, Dalby “stole approximately 5000 documents from an SAO computer, including confidential and sensitive documents concerning pending investigations and prosecutions.” Compl. ¶ 18. In 2007, Dalby gave the stolen documents to Kristen Foley, apparently an ally of Bianchi’s primary opponent, Daniel Regna, to use in his campaign. Foley gave the documents to Regna and the media. Compl. ¶ 19-20. Bianchi petitioned a court to appoint a special prosecutor independent of the SAO to investigate and if necessary prosecute responsible parties. Compl. ¶ 21. Ultimately, Dalby was arrested and charged with six felonies. In June 2009, she pled guilty to computer tampering. Compl. ¶ 22. In April 2009, Dalby filed a petition for the appointment of a special prosecutor “to investigate her allegation that she performed political work while working in the SAO from December of 2004 until July of 2006.” Compl. ¶ 24. In September 2009, McHenry County Circuit Court Judge Gordon Graham granted Dalby’s petition and appointed Tonigan and McQueen as special state’s attorneys to investigate and if necessary prosecute. See Compl. ¶¶ 5, 27, 86. In November 2009, after Tonigan’s and McQueen’s initial interviews with Dalby and others, Tonigan wrote to Judge Graham asking to “expand the order defining the role of our investigation.” Compl. ¶ 35. According to Plaintiffs, Tonigan’s letter “contained * * * blatantly false statements.” Compl. ¶ 36. The letter prompted Judge Graham to issue an order granting Tonigan and McQueen “the authority to investigate and prosecute Bianchi and ‘any and all persons’ relative to any misappropriation or theft from '2005 and thereafter.’ ” Compl. ¶ 37 (quoting Judge Graham’s order). “Around December or 2009,” Tonigan retained Defendant Quest to investigate Bianchi. Compl. ¶ 38. Quest employees Daniel Jerger, Robert Scigalski, James Reilly, Patrick Hanretty, and Richard Stilling (collectively, “Quest Defendants,” also referred to in Plaintiffs’ complaint as “Quest Investigators” or “Quest investigators”) were appointed as special investigators and participated in Tonigan’s and McQueen’s investigation of Bianchi and the SAO. After conducting interviews, the Quest Defendants “informed Tonigan and/or McQueen of information related during the interviews.” Compl. ¶ 44. After consulting with “Tonigan and/or McQueen” the Quest Defendants prepared reports summarizing their findings. According to the complaint, at Tonigan’s “and/or” McQueen’s behest, the reports “included false and manufactured information” about the statements of various current and former assistant state’s attorneys. Compl. ¶ 45 a-d (detailing alleged false statements in Defendants’ reports). Plaintiffs assert that “[a]ll of the former and current ASAs described in paragraph 45(a-d) have confirmed that they did not make any of the statements attributed to them.” Compl. ¶ 46. In April 2010, Judge Graham convened a grand jury and appointed the Quest Defendants as agents of the grand jury. Compl. ¶ 47. Plaintiffs allege that the Quest Defendants did not follow Illinois law in serving search warrants, subpoenas, and subpoenas duces tecum. Compl. ¶ 49. Based on those subpoenas, numerous witnesses produced documents to Tonigan and McQueen and testified before the grand jury. Compl. ¶ 50. Plaintiffs allege that Defendants McQueen, Scigalski, and Jerger made false statements to the grand jury. In September 2010, the grand jury returned indictments against Bianchi for conspiracy to commit official misconduct and obstruction of justice, nineteen counts of official misconduct, and unlawful communication with a witness and against Synek for conspiracy to commit official misconduct and obstruction of justice, four counts of perjury, and obstruction of justice. Compl. ¶¶ 57-58. An arrest warrant was issued and Bianchi and Synek were arrested. Compl. ¶ 64. Shortly after obtaining the first indictment, McQueen filed a petition to expand the investigation of Bianchi and SAO employees. Compl. ¶83. In October 2010, Judge Graham “signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute individuals for using their official position in the SAO to give benefits in criminal prosecutions to friends, relatives, and supporters.” Compl. ¶ 86. Defendants again served subpoenas and, again, witnesses appeared and testified before the grand jury. Compl. ¶ 96. In February 2011, the grand jury returned indictments against Bianchi for three counts of official misconduct for improperly intervening in criminal cases on behalf of friends and political supporters, against Salgado for official misconduct for intervening in a criminal case on behalf of his nephew, and against McCleary for official misconduct related to improper use of a county vehicle. Compl. ¶¶ 99, 100, 110. As a result of the indictments, warrants were issued, and Bianchi, Salgado, and McCleary were arrested. Compl. ¶¶ 102, 103, 111. Shortly after the return of the second indictment, Tonigan, McQueen, and Scigalski held a press conference where McQueen repeated the allegations contained in the indictments against Bianchi, Salgado, and McCleary. According to the complaint, McQueen also said things about Plaintiffs that went beyond the indictments, such as that “after the return of the first indictment Scigalski received calls from a number of lawyers regarding cases handled by Bianchi and that those cases suggested that the equal protection rights of all defendants were not being upheld because of favoritism.” Compl. ¶ 113. After the McHenry County Circuit Court judges recused themselves, the Illinois Supreme Court appointed Judge Joseph McGraw from the Seventeenth Judicial Circuit to preside over the cases against Plaintiffs. Compl. ¶ 77. In March 2011, after a two day bench trial, Judge McGraw granted Bianchi’s and Synek’s Motion for a Directed Finding and acquitted them of all charges in the first indictment. On June 3, 2011, Judge McGraw dismissed the charges of official misconduct against Salgado “based on the failure of the charge to state an offense” against him. Compl. ¶ 120. On June 29, 2011, the charge of official misconduct was dismissed against McCleary “based on the failure of the charge to state an offense” against him. Compl. ¶ 121. In August 2011, after a second bench trial, Judge McGraw granted Bianchi’s motion for a directed finding and acquitted Bianchi of the remaining charges. Compl. ¶ 123. Following the dismissals, Plaintiffs filed this suit against Tonigan, McQueen, the Quest Defendants, Quest Consultants International, Ltd., Tonigan’s law firm, and unknown coconspirators. Tonigan and his law firm are now out of the case. Against the remaining Defendants, Plaintiffs assert fifteen claims under federal and state law. Defendants have moved to dismiss. II. Motion to Dismiss Legal Standard The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi, 910 F.2d 1510, 1520 (7th Cir.1990). In reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiffs complaint and draws all reasonable inferences in his favor. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.2007). To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief’ (Fed.R.Civ.P. 8(a)(2)), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the “speculative level,” assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi, 631 F.3d 823, 832 (7th Cir.2011); cf. Scott v. City of Chi, 195 F.3d 950, 952 (7th Cir.1999) (“Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.”). III. Analysis A. Federal Claims Plaintiffs assert seven claims under 42 U.S.C. § 1983 for alleged violations of their federal constitutional rights by state officials acting under color of state law. Counts I — III are for false arrest. Counts IV-V allege that Defendants conspired to violate Plaintiffs’ due process rights by fabricating evidence and failing to disclose exculpatory evidence. Counts VI-VII assert that Defendants conspired to charge and prosecute Plaintiffs as retaliation for Bianchi’s decision to “seek and hold” public office. Defendants claim absolute and qualified immunity. Section 1983 creates a private right of action to vindicate violations of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. See Rehberg v. Paulk, - U.S. -, 132 S.Ct. 1497, 1502, 182 L.Ed.2d 593 (2012). By its terms, it applies to “[e]very person” who acts under color of state law to violate those rights. See Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “Despite the broad terms of § 1983, [the Supreme Court has] long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common-law immunities applicable in tort suits.” Rehberg, 132 S.Ct. at 1502 (citing cases). In deciding what immunities apply in § 1983 cases, the Supreme Court has “consulted the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed ‘with independence and without fear of consequences.’ ” Rehberg, 132 S.Ct. at 1502 (quoting Bradley v. Fisher, 13 Wall. 335, 350 n. 59, 20 L.Ed. 646 (1872)). Relevant to this case, the Supreme Court has held that witnesses before a grand jury, witnesses at trial, and prosecutors acting in furtherance of their prosecutorial duties are entitled to absolute immunity. Id. at 1503, 1506. Those acting under color of state law in an investigatory role, including prosecutors, may claim only qualified immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 270, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Whether a prosecutor is acting within the scope of his prosecutorial duties, and is therefore entitled to absolute immunity, “hinges on whether the prosecutor is, at the time, acting as an officer of the court, as well as on his action’s relatedness to the judicial phase of the criminal process.” Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir.2012). Prosecutorial immunity “extends beyond an individual prosecutor’s decision to indict or try a case.” Id. (citing Van de Kamp v. Goldstein, 555 U.S. 335, 344-48, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009)). It protects the “functioning of the public office” and so “encompasses any action directly relevant to a prosecutor’s ability to conduct a trial.” Id. But when a prosecutor is functioning like a detective, “searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested,” then the prosecutor is acting as a detective and is not entitled to greater immunity. See Buckley, 509 U.S. at 273, 276, 113 S.Ct. 2606. “In other words, ‘[w]hen the functions of prosecutors and detectives are the same * * * the immunity that protects them is also the same.’ ” Lewis v. Mills, 677 F.3d 324, 330 (7th Cir.2012) (quoting Buckley, 509 U.S. at 276, 113 S.Ct. 2606). Qualified immunity “protects government officials from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Viilo v. Eyre, 547 F.3d 707, 709 (7th Cir.2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity is immunity from suit rather than merely a defense to liability. Scott v. Harris, 550 U.S. 372, 376 n. 2, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The qualified immunity analysis comprises a two-part inquiry: (i) “whether the facts alleged show that the state actor violated a constitutional right,” and (ii) “whether the right was clearly established.” Hanes v. Zurich 578 F.3d 491, 493 (7th Cir.2009). 1. Thomas K. McQueen Plaintiffs first argue that McQueen is not entitled to absolute immunity because he was not actually a special prosecutor. This line of argument is something of a surprise because Plaintiffs’ complaint repeatedly describes McQueen as a special state’s attorney or as someone vested with the same legal authority as a state’s attorney. For instance, the complaint begins this way: This action is brought pursuant to the First, Fourth and Fourteenth Amendments to the United States Constitution and under Illinois state Law. Plaintiff Louis A. Bianchi, the State’s Attorney of McHenry County (hereinafter “Bianchi”), and three of his employees were the victims of politically and financially motivated criminal investigations and prosecutions orchestrated by Defendants Henry C. Tonigan, III and Thomas K. McQueen, in their roles as taxpayer funded special state’s attorneys in McHenry County, in concert with their co-Defendant private investigators, acting as special state’s attorney investigators. A few paragraphs later, the complaint explains that At all relevant times [Tonigan and McQueen] were attorneys, appointed as a taxpayer funded McHenry County special state’s attorney and an assistant to the special state’s attorney, respectively, and were acting under the color of law and with the same power and authority as a duly elected state’s attorney with respect to matters committed to their discretion. Compl. ¶ 5. See also Compl. ¶ 86 (“Judge Gordon Graham signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute individuals for using their official position in the SAO to give benefits in criminal prosecutions to friends, relatives, and supporters”). At this stage, the Court is focused on Plaintiffs’ complaint. As the quoted passages indicate, apart from their response to Defendants’ motion to dismiss, Plaintiffs consistently have alleged that McQueen misused his appointment and authority as a special prosecutor to violate their constitutional rights. In deciding Defendants’ motion to dismiss, the Court must hold Plaintiffs to those assertions. See, e.g., Odom v. Sheriff and Staff 2007 WL 1238723, at *2 (C.D.Ill. Apr. 26, 2007) (it is “well established that a plaintiff cannot amend his complaint by statements made in briefs filed in opposition to a motion to dismiss”) (citing Perkins v. Silverstein, 939 F.2d 463, 471 n. 6 (7th Cir.1991)); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996). Although in certain circumstances the Court may consider additional facts consistent with a complaint in deciding a motion to dismiss, it cannot consider facts that contradict the complaint — as any claim that McQueen was not a special prosecutor surely would. See, e.g., Flying J, Inc. v. City of New Haven, 549 F.3d 538, 542 n. 1 (7th Cir. 2008); Help At Home, Inc. v. Medical Capital, LLC, 260 F.3d 748, 752-53 (7th Cir.2001) (courts may consider facts in a brief opposing a motion to dismiss “if the facts are consistent with the allegations of the complaint”); UNA Worldwide, LLC v. Orsello, 2012 WL 6115661, at *3 (N.D.Ill. Dec. 10, 2012). That said, McQueen is not entitled to absolute immunity just because he was employed as a prosecutor at the times relevant to this case. What matters for absolute immunity is whether the conduct that Plaintiffs allege violated their rights was within the scope of McQueen’s prosecutorial duties. Plaintiffs believe that McQueen (individually and in concert with others) violated their federal rights in three ways: (1) by causing their false arrest (Counts I, II, and III), (2) violating their due process rights (Counts IV and V), and (3) prosecuting them in retaliation for Bianchi’s decision to run for and remain in office (Counts VI and VII). Since the conduct supporting each claim is somewhat different, the Court considers each theory separately. False Arrest. Plaintiffs were arrested after they were indicted by a grand jury and warrants were issued based on the indictments. McQueen cannot be liable for false arrest if Plaintiffs were arrested because of witness testimony or his presentation of witness testimony before the grand jury. A prosecutor’s conduct before a grand jury is absolutely immune. The Supreme Court explained this settled law in Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), a § 1983 case involving a prosecutor’s claim of absolute immunity for his conduct at a probable cause hearing: Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding), and also for eliciting false and defamatory testimony from witnesses. See, e.g., Yaselli v. Goff, 12 F.2d 396, 401-02 (2d Cir.1926), summarily aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927) [additional citations omitted]. See also King v. Skinner, Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B.1772), where Lord Mansfield observed that “neither party, witness, counsel, jury, or Judge can be put to answer civilly or criminally, for words spoken in office.” This immunity extended to “any hearing before a tribunal which performed] a judicial function.” W. Prosser, Law of Torts, § 94, pp. 826-27 (1941) [additional citations omitted]. In Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), for example, this Court affirmed a decision by the Circuit Court of Appeals for the Second Circuit in which the court had held that the common-law immunity extended to a prosecutor’s conduct before a grand jury. [Additional citations omitted.] As this and other cases indicate, pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor. Id. at 489-92, 111 S.Ct. 1934. Of course, if a prosecutor manufactured incriminating evidence while investigating a case, presented that manufactured evidence to the grand jury, and the grand jury returned an indictment, he could not claim absolute immunity for what he did during the investigation. A judicial proceeding does not automatically immunize misconduct that happened before it. See Buckley, 509 U.S. at 276, 113 S.Ct. 2606 (“A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as ‘preparation’ for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.”); Whitlock v. Brueggemann, 682 F.3d 567, 578 (7th Cir.2012); Fields, 672 F.3d at 514. But, by the same token, just because a prosecutor was involved in a case in an investigatory role does not mean that he is deprived of immunity for what he did as a prosecutor. “[T]he question of immunity turns on the capacity or function that the prosecutor was performing at the time of the alleged wrongful conduct.” Whitlock, 682 F.3d at 579 (emphasis added). In this case, at least for Plaintiffs’ false arrest claims, the only allegations against McQueen are that he interviewed witnesses and reviewed Quest Defendants’ reports of interviews with witnesses and that those witnesses and Quest Defendants testified and produced documents to the grand jury. McQueen, too, is alleged to have testified before the grand jury. The claim is therefore that (1) witnesses gave false or misleading testimony to the grand jury that included rumor, hearsay, and manufactured and/or fabricated evidence, (2) that testimony persuaded the grand jury to issue an indictment, and (3) that indictment caused an arrest. Plaintiffs’ false arrest claim against McQueen thus is an attack on grand jury testimony and a prosecutor’s conduct before a grand jury (as a witness and a lawyer). This is not a case where a prosecutor is claiming immunity for investigatory conduct just because it was part of a series of events that led to a judicial proceeding. Here, it is plainly conduct at a judicial proceeding — grand jury testimony — that Plaintiffs claim caused their injuries related to the allegedly false arrest. In order to find that the indictment, and so the arrest, was improper, the Court would have to scrutinize grand jury transcripts and decide whether witnesses (including McQueen) perjured themselves before the grand jury. That, however, is precisely what the Court cannot do in deciding a claim for money damages against a prosecutor. Especially following the Supreme Court’s recent decision in Rehberg, the Court is not persuaded by Plaintiffs’ argument that they are seeking damages for a conspiracy to present false testimony or a conspiracy to prepare witnesses to give false testimony. The rule that witnesses before a grand jury enjoy absolute immunity may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves” Buckley, 509 U.S. at 283, 113 S.Ct. 2606 (Kennedy, J. concurring in part and dissenting in part) [additional citations omitted]. In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity so easily frustrated. 132 S.Ct. at 1506-07. That does not immunize all preparation or turn all investigation into preparation. But that is not what is going on here. Here, the relevant allegations are that evidence was presented to a grand jury and that the evidence was reviewed before it was presented. Plaintiffs cannot “reframe” their challenge to (allegedly) false or repudiated grand jury testimony by pointing to alleged misconduct at the outset of the investigation. It was not the mere existence of an investigation that caused Plaintiffs’ arrest; testimony before the grand jury did that. Plaintiffs have not stated a plausible claim that improper actions by McQueen outside the scope of his duties as a prosecutor infected the grand jury proceedings and so somehow caused Plaintiffs’ arrests. One more time, recall the alleged causal chain. Amy Dalby, an SAO employee, shared confidential documents with Bianchi’s Republican primary opponent and the media. Bianchi got a special prosecutor appointed. Dalby was investigated and eventually pled guilty to computer tampering. Dalby then petitioned Judge Graham to appoint a special prosecutor to investigate Bianchi, alleging that he abused his position at the SAO. Judge Graham granted Dalby’s petition and appointed Tonigan and McQueen as special prosecutors. Tonigan and McQueen interviewed Dalby and others and asked for Judge Graham to expand the scope of their investigation. Judge Graham granted that request, and there were more interviews and documents produced. A grand jury convened and witnesses (including McQueen) appeared before it. The grand jury indicted Plaintiffs, and the indictments led to their arrests. Where is McQueen’s misconduct outside his role as a prosecutor (or before the grand jury)? Plaintiffs point to the Tonigan letter (referenced above) through which they allege that Tonigan and McQueen manipulated Judge Graham to have their mandate expanded. But that did not cause Plaintiffs’ arrests. At most, that led to interviews, and those interviews did not violate the Fourth Amendment. Plaintiffs (quite properly) are not claiming a right not to be investigated or talked about. Individuals were interviewed and then testified before the grand jury. In the context of this case at least, interviewing a witness before his or her testimony before a grand jury is conduct within the scope of McQueen’s role as a prosecutor and so is absolutely immune. See Rehberg, 132 S.Ct. at 1506-07. Testimony before the grand jury is absolutely immune. Id. And, as has long been the rule, a prosecutor’s conduct before a grand jury is absolutely immune. Burns, 500 U.S. at 489-92, 111 S.Ct. 1934. Finally, even if McQueen were not entitled to absolute immunity, he would be entitled to qualified immunity, because there was no violation of Plaintiffs’ rights against false arrest. False arrest is detention without legal process. See Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Abur-Shawish v. United States, 2011 WL 3687618, at *6 (E.D.Wis. Aug. 22, 2011) (“false arrest and false imprisonment occur only when a person is detained without legal process”). In this case, Plaintiffs’ arrests were supported by grand jury indictments and warrants. By definition, therefore, no false arrest could have occurred. See Abu-Shawish, 2011 WL 3687618, at *6. The unlawful procurement of process could be a different tort — malicious prosecution, perhaps — but it is not false arrest. See id. at *6 n. 2. Due Process. McQueen is alleged to have violated Plaintiffs’ due process rights by “causing [Plaintiffs’] wrongful charging and continued prosecution.” In opposing McQueen’s motion to dismiss, Plaintiffs explain their claim against McQueen as “based on the fact that McQueen deliberately fabricated false evidence and withheld exculpatory evidence which directly caused the wrongful charging and prosecution of Plaintiffs and denied their rights to a fair trial.” To the extent that this claim attacks the grand jury indictments and subsequent arrests, Plaintiffs’ due process claims fail for the same reasons as their Fourth Amendment claims. See also Imbler, 424 U.S. at 422, 96 S.Ct. 984. To the extent that these claims challenge the prosecution itself, McQueen is absolutely immune. Id. at 427, 96 S.Ct. 984; Fields, 672 F.3d at 512. Plaintiffs’ attempt to avoid the obvious immunity problems with their due process claims against McQueen by arguing that their case is just like Whitlock, where evi dence was fabricated prior to the prosecutor’s assumption of his prosecutorial role. 682 F.3d at 579-80. In this case, unlike Whitlock, Plaintiffs’ due process claims concern alleged misconduct before the grand jury and the events that followed. The complaint recites a variety of allegedly untrue statements that McQueen (and other witnesses) made to the grand jury. For instance: Defendant McQueen improperly testified as a witness to the following and unsworn false statements of fact: i) that County employees were given “comp time” for attending parades and evening public events which were political in nature; ii) that Thomas Carroll, a former ASA, was directly told that he was expected to participate in political activities when he was hired as chief of the civil division; iii) that political pressure was brought to bear on SAO employees during Bianchi’s tenure; iv) that all of the documents McQueen presented to the special grand jury, which came from the hard drive of a computer used by Joyce Synek, were political in nature; and v) that Joan Hoffman, an administrative assistant in the SAO, provided McQueen political documents from her SAO computer. Compl. ¶ 51. That is an attack on a prosecutor’s (or a witness’) conduct before the grand jury. Even if the complaint does accurately recount what McQueen said, and even if what he said was false, he is not answerable in damages for his conduct before the grand jury. The Supreme Court has admonished that prosecutorial immunity has a downside — namely, that it can “leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Imbler, 424 U.S. at 427-28, 96 S.Ct. 984. This Court offers no opinion on whether Plaintiffs were “genuinely wronged”; for the purposes of the immunity questions presented at this stage of the case, that inquiry is irrelevant. What matters is that Plaintiffs’ claims are against a prosecutor for prosecuting a case. If these claims were not barred by prosecutorial immunity, they still would be subject to dismissal because McQueen would be entitled to qualified immunity. If Plaintiffs’ due process claims are that McQueen’s fabrication of evidence caused their arrests, then Plaintiffs fail to state a claim, for it would be “nothing more than a recast of [their] Fourth Amendment false arrest claim.” McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.2003). “The Supreme Court has made it clear that a substantive due process claim may not be maintained when a specific constitutional provision (here the Fourth Amendment) protects the right allegedly violated.” Id. “Moreover, to the extent [Plaintiffs] maintain[] that [McQueen] denied [them] due process by causing [them] to suffer ‘[a] deprivation of liberty from a prosecution * * * deliberately obtained from the use of false evidence,’ [their] claim is essentially one for malicious prosecution.” Id. And “the existence of a tort claim under state law knocks out any constitutional theory of malicious prosecution.” Id. (quoting Newsome v. McCabe, 256 F.3d 747, 750 (7th Cir.2001)). To the extent that the claim is based on nondisclosure of exculpatory evidence — a Brady related claim — then, because the prosecutions ended in acquittals, Plaintiffs “would need to show that ‘the decision to go to trial would have been altered by the desired disclosure.’ ” Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir.2010) (quoting Bielanski v. County of Kane, 550 F.3d 632, 644 (7th Cir.2008)). In this case, however, the prosecutors were not “bilked” into bringing charges. See Buckley v. Fitzsimmons, 20 F.3d 789, 797 (7th Cir.1994); Fields, 672 F.3d at 518. McQueen was a prosecutor and he was not tricked by his own alleged deceptions and failures to disclose. And Plaintiffs’ complaint does not support a claim that McQueen “bilked” Tonigan. As already explained, Plaintiffs’ complaint alleges that McQueen and Tonigan were both vested with authority as prosecutors and that they both reviewed witness interviews and prosecuted the cases. Retaliatory Prosecution. Plaintiffs allege that McQueen, “individually, jointly and in conspiracy with [the other Defendants] caused the wrongful charging and continued prosecution” of Plaintiffs. But “[a] Bivens (or § 1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute.” Hartman v. Moore, 547 U.S. 250, 261-62, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). Moreover, it is worth noting that the complaint does not allege that McQueen had retaliatory animus against Bianchi. It certainly alleges that Bianchi’s Republican opponents wanted to unseat him, but it does not say why McQueen— appointed by Judge Graham — should be counted among those political opponents. In fact, the complaint is devoid of any allegation that either Tonigan or McQueen (or any other Defendant) even knew any of the Plaintiffs prior to their appointment by Judge Graham, much less had any political axe to grind or other animus toward them. According to the complaint, Bianchi’s “political enemies” were Dalby, Kristen Foley, an Assistant State’s Attorney whom Bianchi had demoted, and Daniel Regna, Bianchi’s 2008 opponent in the primary election for State’s Attorney (Cmplt. ¶¶ 1, 17-24)—none of whom is a Defendant in this case. Accepting Bianchi’s characterization that he had “political enemies,” it does not follow that the Court must assume that every action against him is improperly motivated. 2. Quest Defendants Judge Graham authorized Tonigan and McQueen to employ the Quest Defendants as “special state’s attorney investigators.” Compl. at page 2. According to Plaintiffs’ complaint, the Quest Defendants were directed by McQueen “and/or” Tonigan “to conduct certain interviews for the purpose of manufacturing and fabricating evidence.” Compl. ¶ 42. “After conducting interviews, the Defendant Quest Investigators informed Tonigan and/or McQueen of information related during the interviews.” Compl. ¶ 44; see also compl. ¶ 90 (“The interviews conducted by Defendants Scigalski and Hanretty occurred at the direction of Defendants Tonigan and/or McQueen. After they were completed, the Defendant Quest Investigators informed Defendants Tonigan and/or McQueen of the substance of several interviews.”). “After consulting with Defendants Tonigan and/or McQueen, the Defendant Quest In vestigators prepared reports regarding certain interviews.” Compl. ¶ 45. In furtherance of the alleged conspiracy with McQueen and Tonigan against Plaintiffs, the Quest Defendants are accused of knowingly including falsehoods in their reports. “After the special grand jury was convened, Defendants Tonigan and/or McQueen continued to lead the politically motivated investigation by interviewing witnesses personally and directing the Quest investigators who to interview, what questions to ask, and what information to document.” Compl. ¶ 48. “The Defendant Quest Investigators served search warrants, subpoenas, and subpoenas duces tecum at the direction of Defendants Tonigan and McQueen.” Compl. ¶ 49. Those subpoenas were allegedly “unilaterally issued” by Tonigan and McQueen, in violation of Illinois law. Witnesses then produced documents and appeared before the grand jury. Compl. ¶¶ 49-50. The Quest Defendants were among the witnesses who allegedly testified falsely against Plaintiffs. See, e.g., Compl. ¶¶ 53-56, 73; see also Compl. ¶¶ 95-97 (alleged misconduct before grand jury at the direction of Tonigan and McQueen). In this way, and as described in Section I, above, the Quest Defendants were instrumental in Plaintiffs’ investigation and prosecution. The Quest Defendants argue that they are entitled to qualified immunity for their conduct as private investigators temporarily employed by the state, see Filarsky v. Delia, - U.S. -, 132 S.Ct. 1657, 1665-68, 182 L.Ed.2d 662 (2012) (private party temporarily employed by government entitled to seek qualified immunity for conduct as investigator), and absolute immunity for their grand jury testimony, see, e.g., Rehberg, 132 S.Ct. at 1506. The Court agrees. With regard to investigatory conduct, the Quest Defendants could not have committed a constitutional tort by simply interviewing witnesses and preparing reports. See, e.g., Buckley, 509 U.S. at 281, 113 S.Ct. 2606 (Scalia, J., concurring) (Justice Scalia was “aware of no authority for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, violates the Constitution”). An investigator could commit a constitutional tort by fabricating evidence and tricking a prosecutor into bringing charges. Here, however, there was no trick. According to the complaint, McQueen and Tonigan guided the Quest Defendants’ actions and were told what the Quest Defendants learned in their interviews. The alleged constitutional tort, then, is not the investigators’ conduct, but the prosecutors’ one-sided presentation of the evidence, including false testimony before the grand jury. McQueen, the remaining prosecutor-Defendant, is entitled to absolute immunity for his presentation of evidence to the grand jury and at trial. The Quest Defendants did not commit a constitutional tort by giving the prosecutors information that they (allegedly) chose to distort. See Fields, 672 F.3d at 516-17. Insofar as Plaintiffs’ claims depend on the Quest Defendants’ allegedly false grand jury testimony, they are entitled to absolute immunity. See, e.g., Rehberg, 132 S.Ct. at 1506. Based on the foregoing discussion, all of Plaintiffs’ claims, at least as currently cast, are subject to dismissal. Although Plaintiffs’ operative first amended complaint [70] runs forty-nine pages in length and Defendants’ immunity defenses may be difficult to overcome, the Court will not enter a dismissal with prejudice at this time. Plaintiffs who meet resistance to their complaint through a successful Rule 12(b)(6) motion generally are allowed at least one opportunity to replead, and that is an especially prudent course to follow where, as here (see pp. 828-29, supra), there is some tension between the version of the facts alleged in the complaint itself and another version of the facts set out in the brief in opposition to the motion to dismiss. See, e.g., Smith v. Union Pac. R. Co., 474 Fed.Appx. 478, 481 (7th Cir.2012) (“Facts raised for the first time in plaintiffs opposition papers should be considered when determining whether to grant leave to amend or dismiss the complaint with or without prejudice”) (citing Broam v. Bogan, 320 F.3d 1023, 1026 n. 2 (9th Cir.2003)). Plaintiffs therefore are given 28 days to replead if they believe that an amended complaint could overcome the immunity obstacles set forth above or otherwise state a claim for relief. The discussion below addresses the disposition of Plaintiffs’ state law claims in the event that (1) Plaintiffs do not replead or (2) no federal claim in Plaintiffs’ second amended complaint survives a renewed motion to dismiss. B. State Law Claims Plaintiffs have not stated a federal claim, and the Court must now decide whether to retain jurisdiction over Plaintiffs state law claims. See 28 U.S.C. § 1367(c)(3). The Seventh Circuit, animated by the principle of comity, consistently has stated that “it is the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial.” Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir.1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir.1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993); see also Wright v. Associated Ins. Co., Inc., 29 F.3d 1244, 1251 (7th Cir.1994) (“When all federal claims have been dismissed prior to trial, the principle of comity encourages federal courts to relinquish supplemental jurisdiction * * * ”); see also Horton v. Schultz, 2010 WL 1541265, at *4 (N.D.Ill. Apr. 16, 2010). In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir.1994), the Seventh Circuit noted that there occasionally are “unusual cases in which the balance of factors to be considered under the pendent jurisdiction doctrine judicial economy, convenience, fairness, and comity-will point to a federal decision of the state-law claims on the merits.” The first example that the Court discussed occurs “when the statute of limitations has run on the pendent claim, precluding the filing of a separate suit in state court.” Id. at 1251. That concern is not present here, however, because Illinois law gives Plaintiff one year from the dismissal on jurisdictional grounds of state law claims in federal court in which to re-file those claims in state court. See 735 ILCS 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir.2008). Dismissal without prejudice of the state law claims also is appropriate here because the case is only at the motion to dismiss stage and substantial judicial resources have not been committed to the eight state law counts in Plaintiffs’ complaint. Wright, 29 F.3d at 1251. Finding no justification for departing from that “usual practice” in this case, the Court dismisses without prejudice Plaintiffs state law claims without discussing their merit under state law. IV. Conclusion For the reasons stated above, Defendants’ motions to dismiss [73, 80] are granted. Plaintiffs’ federal claims (Counts I — VII) are dismissed with leave to re-plead within 28 days. If Plaintiffs decide not to replead, Plaintiffs’ federal claims will be dismissed with prejudice and the Court will decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims (Counts VIII — XV) and dismiss those claims without prejudice. . Although Plaintiffs assert that "Defendants Tonigan and McQueen” sought to expand their investigative authority (Cmplt. ¶ 33), the factual support for that allegation is a letter to Judge Graham sent by Tonigan on the letterhead of his law firm (id. ¶¶ 34-36). . For example, according to the complaint, the Quest Defendants "informed Tonigan and/or McQueen of information related during [witness] interviews.” Compl. ¶ 44. And, after consulting with "Tonigan and/or McQueen” the Quest Defendants prepared reports summarizing their findings. Again, according to the complaint, at Tonigan’s "and/ or” McQueen’s behest, the reports "included false and manufactured information” about the statements of various current and former assistant state's attorneys. Compl. ¶ 45. . Defendants’ motions to dismiss [41, 47] the original complaint [1] are stricken as moot. Former Defendants Henry C. Tonigan, III, and Kelleher & Buckley, LLC’s motions to dismiss [43, 85] are also stricken as moot. Plaintiffs' Motion to Strike [a] Portion of Thomas' McQueen's Reply Brief or in the Alternative for Leave to File a Sur-Reply [125] is granted in part and denied in part. The motion to strike is denied, the motion to for leave to file a sur-reply is granted and the attached sur-reply [125-1] was considered in deciding Defendants’ motions.

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT GERALD E. ROSEN, Chief Judge. I. INTRODUCTION Plaintiff Tegra Hall commenced this suit in a Michigan court on January 14, 2009, filing what Defendants have aptly termed a “kitchen sink” complaint against her former employer, Defendant Sky Chefs, Inc., and ten of her former co-workers and supervisors at Sky Chefs. In this 143 paragraph, 17 count complaint, Plaintiff asserts claims of race, gender, and religious discrimination and harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101 et seq., as well as claims of retaliatory discharge under Title VII, the ELCRA, the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and Michigan’s Workers’ Disability Compensation Act (‘WDCA”), Mich. Comp. Laws § 418.101 et seq., and a common-law tort claim of intentional infliction of emotional distress. Defendant Sky Chefs removed the case to this Court on February 20, 2009, citing Plaintiffs assertion of claims arising under federal law. See 28 U.S.C. §§ 1441(a), 1331. By motion filed on March 1, 2010, Defendant Sky Chef and individual Defendants Eric Coleman, Justin Lathem, Jose Venegas, and Karen Damerow seek summary judgment in their favor on each of the claims asserted in Plaintiffs complaint. Among other contentions raised in this motion, Defendants argue (i) that Plaintiff has failed to establish a prima facie case of discrimination based on her race, gender, or religion, (ii) that Plaintiff likewise has failed to establish one or more of the elements of a prima facie case of hostile work environment harassment, (iii) that Plaintiffs claims of retaliatory discharge fail for lack of evidence of a causal connection between any protected activity and her discharge, and because Defendants have identified a legitimate, non-retaliatory reason for terminating Plaintiffs employment, and (iv) that Plaintiff has failed to identify any basis whatsoever for charging Defendant Karen Damerow, Sky Chefs human resources manager, with liability under any of the theories advanced in Plaintiffs complaint. Plaintiff filed a response in opposition to this motion on April 5, 2010, addressing several of the points raised in Defendants’ motion and evidently continuing to maintain that all 17 counts of the complaint remain viable following discovery, but leaving some of Defendants’ challenges unanswered. Defendants then filed an April 16, 2010 reply in further support of their motion. Having reviewed the parties’ briefs in support of and opposition to Defendants’ motion, as well as their accompanying exhibits and the record as a whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants’ motion “on the briefs.” See Local Rule 7. 1(f)(2), U.S. District Court, Eastern District of Michigan. For the reasons set forth below, the Court finds that this motion should be granted. II. FACTUAL BACKGROUND Defendant Sky Chefs, Inc. provides catering services to various airlines. Plaintiff Tegra Hall is an African-American female who was hired by Sky Chefs in May of 2005. Plaintiff was employed as a utility worker in Sky Chef s sanitation department at Detroit Metropolitan Airport, where she performed such tasks as loading, unloading, washing and sanitizing food service trolleys. During her employment with Sky Chefs, Plaintiff was a member of Local 24 of the H.E.R.E. union. A. Plaintiffs Complaints About and Difficulties with Her Co-Workers and Supervisors Between her hiring by Sky Chefs in May of 2005 and her discharge on November 30, 2007, Plaintiff was involved in a number of incidents with co-workers and supervisors, and she lodged a number of complaints about occurrences in the workplace. Sky Chefs human resources manager, Defendant Karen Damerow, testified at her deposition (with some degree of understatement) that Plaintiff “made multiple complaints on multiple issues” during her tenure at Sky Chefs, (see Defendants’ Motion, Damerow Dep. at 48), and Defendants state without contradiction in the brief in support of their motion that “over 2,600 pages of documentation [were] compiled” in investigating and addressing these complaints, (see Defendants’ Motion, Br. in Support at 3). For present purposes, it is not necessary to exhaustively recount these incidents, and a brief summary will suffice. In September of 2006, Plaintiff claimed that coworker (and Defendant) Jose Venegas deliberately rammed the trolleys into trash cans, causing the cans to strike Plaintiff on her legs. (See Plaintiffs Dep. at 195, 209-12.) Plaintiff testified that a supervisor and a lead worker, Defendants Eric Coleman and Derrick Taylor, observed this but took no action. Plaintiff regarded this as an assault and reported the incident to the police. (See Plaintiffs Dep. at 213-14; see also Defendant’s Motion, Ex. E.) Defendant Damerow investigated this incident, and Venegas was disciplined for using inappropriate language. (See Damerow Dep. at 50-54.) About a month later, in October of 2006, Plaintiff claimed that she was run over by a flatbed cart pushed by a co-worker identified only as “Nimur.” (See Plaintiffs Dep. at 62-63, 72-73.) She required medical attention, and once again reported the incident to the police, (see Defendant’s Motion, Ex. F), as well as to an employee hotline, (see Plaintiffs Dep. at 78-79.) Plaintiff also filed a claim for worker’s compensation benefits arising from this incident. Throughout this period in 2005-06, and perhaps into 2007, Plaintiff has testified that she was subjected to sexual harassment from her co-workers and supervisors. She testified, for example, that one of her supervisors, Defendant Tracy Steele, “would try to brush his body parts up against mine” and would “tell me what he would like to do to me sexually.” (Plaintiffs Dep. at 108.) Another supervisor, Defendant Darrin Simmons, reportedly “brushed his penis up against [Plaintiffs] bottom” and told her “what type of way he would like to have sex with” her. (Id. at 117.) A lead worker, Defendant Justin Lathem, sang a song, “Shake Your Laffy Taffy,” to Plaintiff, and Defendant Venegas stared, at Plaintiff and made sexually suggestive remarks to her. (Id. at 120-21.) Plaintiff has also testified as to race- and religion-based harassment. She testified, for example, that a number of co-workers frequently called her a “black b*tch,” that Defendants Lathem and Venegas used the “N” word in reference to her, and that several co-workers commented on the color of her skin. (See id. at 96,166, 174-77.) Plaintiff further testified that her co-workers called her a “fake-*ss Christian” and made other derogatory comments about her when they saw her reading her Bible on her lunch break. (See id. at 180-82.) Finally, Plaintiff has testified about mistreatment she suffered in retaliation against her protected activities. She testified that she made complaints of discrimination and harassment to her supervisors and to human resources, but that nothing was done or that, in some instances, the mistreatment intensified. Plaintiff further testified that after she filed a charge of discrimination with the EEOC on October 31, 2007, she was told by supervisor (and Defendant) Tony Hines that her complaint “wasn’t going to go anywhere and that [she] was going to be out of there soon.” (Id. at 89.) In addition, after Plaintiff took FMLA leave from May to September of' 2007 for an injury she sustained while pushing a trolley, she testified that the harassment and mistreatment worsened because her co-workers and supervisors thought she was “gone for good” and they “were not pleased” when she returned from this medical leave. (Id. at 219.) Similarly, she attributed some of the write-ups, discipline, and unfavorable treatment she received to the fact that she had filed claims for worker’s compensation benefits. (See id. at 89, 93.) B. Plaintiffs Disciplinary Record and Termination Over the course of her employment with Sky Chefs, Plaintiff was issued a number of verbal and written advisories and disciplinary notices regarding her conduct in the workplace, culminating in her discharge on November 30, 2007. Again, it is not necessary to comprehensively recount Plaintiffs disciplinary record, and a brief summary will suffice. First, Plaintiff was issued a verbal advisory for personal conduct arising from the September 2006 incident in which a coworker reportedly rammed her with a trolley. The documentation for this advisory states that Plaintiff “became loud and argumentative” when approached by management about the incident, and that her manner “was insolent at best, and bordered on insubordination,” and Plaintiff was cautioned that “[b]ehavior of this type ... cannot be tolerated.” (Defendants’ Motion, Ex. H.) In this documentation, it was further observed that Plaintiff had made “approximately 18 complaints, charges and grievances regarding roughly 22 different co-workers and management” in the past several months, and that while “[a]ll complaints have been investigated and will continue to be monitored,” many of the allegations Plaintiff had made in these complaints “could not be validated.” (Id.) On December 7, 2006, Plaintiff was issued a first written advisory for failure to comply with Sky Chefs’ attendance policy, based on several instances of tardiness and an early departure. (See Defendants’ Motion, Ex. I.) In this advisory, Plaintiff was cautioned that “[a]ny future infractions may lead to further disciplinary action u[p] to an[d] including termination.” (Id.) Written advisories also were issued (i) on December 22, 2006 for a security violation, (Defendants’ Motion, Ex. J); (ii) in March of 2007 for personal conduct and for lack of adherence to company standards, with Plaintiff being suspended pending an investigation based upon “witness statements that d[id] not support” allegations she had made against a supervisor, (Defendants’ Motion, Exs. K, M); (iii) again in March of 2007 for continued unsafe behavior in the workplace that had resulted in safety incidents and injuries, (Defendants’ Motion, Ex. L); (iv) on April 17, 2007 for tardiness, (Defendants’ Motion, Ex. N); and (v) in May of 2007 for personal conduct, based on a verbal confrontation with a female co-worker that “continued even after you were separated and sent back to work,” (Defendants’ Motion, Ex. O). In the last of these disciplinary notices, Plaintiff was expressly informed that she had been issued “a repeat final advisory,” and she was again warned that “[f]urther incidents will result in discipline up to and including termination.” (Id.) On November 11, 2007, Plaintiff was involved in an incident that resulted in a final disciplinary notice and her termination. According to Plaintiff, a co-worker, Defendant Dexter Thomas, was using profanity with a lead worker, Ahmed Babuka, and also directed some of this language toward Plaintiff, purportedly calling Plaintiff a “black b*tch” and threatening to “f*ck [her] up.” (Plaintiffs Dep. at 227.) When Plaintiff complained to Babuka, he told Plaintiff not to worry about it, and sent Thomas to work at a different location. (See id. at 227-28.) Plaintiff then complained to a supervisor, Dorothy Gonzales, who asked Babuka about this incident and was told that it was “no big deal.” (Id. at 228.) Director of Operations Toni-no Palladinelli subsequently looked into this incident, and was told by Babuka (i) that he had not heard Thomas use profanity, and (ii) that Plaintiff approached him after the incident and said, “What kind of man are you?” and “How are you supposed] to be the lead?” (Defendants’ Motion, Ex. Q.) Following this incident, Plaintiff was issued a final written advisory on November 30, 2007 for personal conduct and ability to work with others, and she was informed that her employment had been terminated. (See Defendants’ Motion, Ex. R.) This advisory stated in part: On more than one occasion you have been counseled on personal conduct. Despite multiple conversations in which expectations have been discussed you continue to: Leave your workstation, often to pursue issues that have been or are already being addressed through the internal complaint, and or hotline process. In doing so you are violating the confidentiality surrounding issues that are being investigated, as well as your signed confidentiality agreement. In August 2006 you were provided a Code of Conduct during a counseling session. Since that time you continue to violate the code of conduct repeatedly leaving your workstations for nonemergency situations and to complain about the work performed by other employees.... Additionally you have made unsubstantiated accusations against many of your peers. (For example on 11/12/2007 you complained that an employee used profanity toward a lead. When questioned neither the lead nor the employee sup ported your accusations. As a result you yelled at the lead and were disrespectful in front of your co-workers.) Additionally you do not get along with the employees and many have come forward with complaints of feeling singled out and harassed by you. You have been rude, and insolent toward members of management, lead employees and your peers. These ongoing behavior issues violate both the Code of Conduct and the [Master National Agreement], You are being terminated effective immediately. (Id.) Plaintiff filed a grievance through her union challenging her discharge, but the grievance was denied. She then commenced this suit in January of 2009, asserting a laundry list of claims of discrimination, harassment, and retaliation against her former employer, Sky Chefs, and ten of her former supervisors and co-workers. Sky Chef and four of these individual Defendants now seek summary judgment in their favor on each of these claims. III. ANALYSIS A. The Standards Governing Defendants’ Motion Through the present motion, Defendant Sky Chefs and four of the individual Defendants- — Erie Coleman, Justin Lathem, Jose Venegas, and Karen Damerow — seek summary judgment in their favor on each of Plaintiffs seventeen claims. Under the pertinent Federal Rule, summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). As the Supreme Court has explained, “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir.2006). Yet, the nonmoving party “may not rely merely on allegations or denials in its own pleading,” but “must — by affidavits or as otherwise provided in [Rule 56] — set out specific facts showing a genuine issue for trial.” Fed. R.Civ.P. 56(e)(2). Moreover, any supporting or opposing affidavits “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e)(1). Finally, “the mere existence of a scintilla of evidence that supports the non-moving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation omitted). B. Plaintiff Has Failed to Establish a Prima Facie Case of Discrimination Based on Her Race, Gender, or Religion. In six of the seventeen counts of her complaint, Plaintiff has asserted claims of race, gender, and religious discrimination under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101 et seq. Through the present motion, Defendants seek summary judgment in their favor on each of these claims, arguing that Plaintiff has failed to establish a prima facie case of any of these forms of discrimination. Moreover, even assuming Plaintiff had established a prima facie case, Defendants contend that Plaintiffs employer, Sky Chefs, has articulated a legitimate, non-discriminatory reason for Plaintiffs discharge, and that Plaintiff has failed to produce any evidence suggesting that this stated reason was a pretext for unlawful discrimination. The Court agrees. In this case, Plaintiff does not claim to have produced any direct evidence of discrimination in the decision to terminate her employment, but instead expressly acknowledges that her claims of disparate treatment are properly analyzed under the familiar burden-shifting approach adopted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). (See Plaintiff’s Response Br. at 11.) Under the first step of this tripartite approach, Plaintiff must establish a prima facie case consisting of four elements: (i) that she was a member of a protected class; (ii) that she was qualified for her position; (iii) that she suffered an adverse employment action; and (iv) that she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside the protected class. See Johnson v. University of Cincinnati, 215 F.3d 561, 572-73 (6th Cir.2000); Town v. Michigan Bell Telephone Co., 455 Mich. 688, 568 N.W.2d 64, 68 (1997). For present purposes, at least, Defendants concede that Plaintiff has established the first three elements of her prima facie case, and they challenge only her showing that she was treated differently from similarly situated individuals outside the protected classes of which she is a member. As the Sixth Circuit has explained, a plaintiff satisfies this element of a prima facie case by “demonstrating] that he or she is similarly-situated to the non-protected employee in all relevant respects,” yet was treated differently. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.1998); see also Town, 568 N.W.2d at 70 (applying the same standard under Michigan law). “[T]o be deemed ‘similarly-situated’ in the disciplinary context, the individuals with whom the plaintiff seeks to compare his/ her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Ercegovich, 154 F.3d at 352 (internal quotation marks and citation omitted). Plaintiffs effort to establish this prong of a prima facie case rests almost entirely on conelusory assertions that are unsupported by citation to the record. Regarding her claim of gender discrimina tion, she points exclusively to the different treatment purportedly given to her and coworker Dexter Thomas in the incident that led to her termination. This example of different treatment of similarly situated employees, however, is flawed on several grounds. First, Plaintiffs claim that no action was taken against Thomas evidently rests solely on her own deposition testimony that “nothing was done,” (see Plaintiffs Dep. at 229-30), but there is no indication in the record that Plaintiff has personal knowledge about any disciplinary measures that might have been imposed on Thomas as a result of this incident. In addition, while Plaintiff invites the Court to assume that she and Thomas were similarly situated in the relevant respects— e.g., that they reported to the same supervisor and were subject to the same standards of conduct — no effort has been made to identify evidentiary support for this proposition. Indeed, in one respect, it seems virtually certain that Plaintiff and Thomas were not similarly situated. As discussed at length in the Court’s recitation of the pertinent facts, Plaintiffs disciplinary record with Sky Chefs featured an extensive series of verbal and written advisories — with several of the latter designated as “final” written advisories — and she was expressly warned in writing on multiple occasions that further infractions could lead to her dismissal. (See, e.g., Defendants’ Motion, Exs. I, L, O.) Nothing in the record suggests that Thomas had a comparable disciplinary record. Even assuming, then, that Plaintiff and Thomas engaged in precisely the same conduct in the November 11, 2007 incident at issue, the disparities in the disciplinary records of these two individuals defeats any inference of gender discrimination that might otherwise arise from Sky Chefs’ decision to terminate Plaintiff but not Thomas. See Russell v. University of Toledo, 537 F.3d 596, 607-08 (6th Cir.2008) (finding that the plaintiff in that case was not similarly situated to coworkers who lacked prior disciplinary records). Because Thomas is the only coworker identified by Plaintiff as a similarly situated male employee who was treated differently, and because she has failed to show that she and Thomas were similarly situated as this term is defined in the case law, Plaintiff cannot establish the fourth and final element of a prima facie case of gender discrimination. Plaintiffs efforts to establish this element of a prima facie case of race or religious discrimination warrant little discussion. With regard to Plaintiffs claim of race discrimination, the sum total of her argument — again, without citation to the record — is that Sky Chefs’ human resources manager, Defendant Damerow, “admitted that she was aware of Defendant Lathem’s (who is Caucasian) use of the term ‘nigga’ and that he admitted he sang a lewd song about female anatomy, but he was not disciplined for any violation of policy.” (Plaintiffs Response Br. at 12.) First, Plaintiffs assertion about Damerow’s awareness of co-worker Lathem’s use of the “N” word is utterly unsupported by citation to the record, and the Court declines Plaintiffs invitation to search for evidentiary support for this assertion. Next, with regard to the lewd song, Defendants note the evidence in the record that Lathem was, in fact, verbally instructed to stop singing this song. (See Damerow Dep. at 59-60; Lathem Dep. at 19.) Finally, and most importantly, Plaintiff fails to suggest how any purportedly different treatment of a white co-worker for offensive speech at some unspecified point in the past might give rise to an inference that Plaintiffs November 2007 termination — which, after all, is the sole adverse action giving rise to Plaintiffs claims of discrimination — was motivated by racial animus. Accordingly, Plaintiff has not established a prima facie case of race discrimination. Turning next to Plaintiffs claim of discrimination on account of her religion, her effort to establish a privia facie case rests solely upon the terse — and, once again, unsupported — assertions that she was “treated differently than similarly situated non-religious or non-Christian employees” (who Plaintiff does not identify), and that unspecified “Muslim employees were allowed [unspecified] special treatment to observe their religion.” (Plaintiffs Response Br. at 12.) These contentions, in addition to being utterly bereft of factual support, are so woefully inadequate to raise an inference of discrimination in Plaintiffs discharge as to constitute an abandonment of Plaintiffs claim of discrimination on account of her religion. Finally, even assuming that Plaintiff had established a prima facie case of discriminatory discharge on account of her gender, race, or religion, Defendant Sky Chefs has articulated a legitimate, nondiscriminatory reason for terminating Plaintiffs employment — namely, that despite several prior final written advisories, she violated the Sky Chefs code of conduct in the November 12, 2007 incident by making unsubstantiated accusations against a eo-worker and yelling at and being disrespectful to a lead worker. (See Defendants’ Motion, Ex. R.) Thus, under the third step of the McDonnell Douglas burden-shifting approach, Plaintiff must produce evidence that the reason identified by Defendants is a pretext for unlawful discrimination. See Russell, 537 F.3d at 604; Towi, 568 N.W.2d at 68. Plaintiff has manifestly failed to satisfy this burden, as she does not address the question of pretext whatsoever in her response to Defendants’ motion. In any event, while Plaintiff might dispute the determination by Sky Chefs’ management, following an investigation, (see Defendants’ Motion, Ex. Q), that she engaged in insubordinate conduct toward lead worker Ahmed Babuka and that, contrary to her accusation, co-worker Dexter Thomas had not sworn at this lead worker, Sky Chefs was entitled to act upon the results of this investigation and discharge Plaintiff so long as it took steps to be “reasonably informed” before making this decision, and so long as this decision rested upon an “honest belief’ that Plaintiff had engaged in the misconduct cited in her final disciplinary notice. See Harrison, 612 F.Supp.2d at 864-65 (internal quotation marks and citations omitted). Plaintiff has not suggested any basis for challenging the decisionmaking or investigative process leading up to her termination, nor has she endeavored to explain why Sky Chefs’ management should not have credited the account given by lead worker Babuka that he did not hear co-worker Thomas use profanity and that Plaintiff had questioned his authority and leadership. (See Defendants’ Motion, Ex. Q.) In addition, and as discussed earlier, even if Plaintiff and co-worker Thomas had en gaged in precisely the same misconduct, Plaintiffs prior disciplinary record provided ample reason for Sky Chefs to determine that her discharge was warranted, and any purportedly disparate treatment of Plaintiff and Thomas would not support the inference that Sky Chefs’ stated basis for terminating Plaintiffs employment was a pretext for discrimination. Accordingly, for this and the other reasons stated earlier, Defendants are entitled to summary judgment in their favor on Plaintiffs federal and state-law claims of discrimination. C. Plaintiff Has Failed to Establish a Prima Facie Case of Harassment Based on Her Race, Gender, or Religion. Next, in six more counts of her complaint, Plaintiff has asserted claims under Title VII and Michigan’s ELCRA of hostile work environment harassment based on her sex, race, and religion. In the present motion, Defendants contend that Plaintiff has failed to establish a prima facie case of any of these forms of harassment. The Court agrees. As a threshold matter, before turning to the merits of Plaintiffs claims of harassment, the Court observes that most or all of her claims brought under Title VII appear to be time-barred. “[T]he courts have recognized that the filing of a timely charge with the EEOC is a prerequisite to a Title VII action.” Marquis v. Tecumseh Products Co., 206 F.R.D. 132, 169 (E.D.Mich.2002). Moreover, “[t]o be deemed timely under Title VII, an EEOC charge must be filed ‘within three hundred days after the alleged unlawful employment practice occurred.’ ” Marquis, 206 F.R.D. at 169 (quoting 42 U.S.C. § 2000e-5(e)(1)); see also Boykin v. Michigan Department of Corrections, No. 99-1345, 2000 WL 491512, at *1 (6th Cir. Apr. 18, 2000). In this case, Plaintiff evidently filed her first EEOC charge on October 31, 2007, (see Plaintiffs Response, Ex. F), so it follows that she presumptively cannot complain here of any employment practices that occurred prior to January 4, 2007. While Plaintiffs deposition testimony is not altogether clear as to when she was subjected to the various forms of harassment giving rise to her claims, every date that she specified in this testimony extended, at the latest, to the end of 2006. (See, e.g., Plaintiffs Dep. at 108, 121-23, 131, 144-45, 165, 180-81.) To be sure, a claim may encompass incidents outside of this 300-day limit, but only upon a “showing that the current violation, falling within the limitations period, is indicative of a pattern of similar discriminatory acts continuing from the period prior to the limitations period.” Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted); see also Boykin, 2000 WL 491512, at *2. This “continuing violation doctrine,” however, is “intended to reach the situation where, by virtue of the nature of the alleged discrimination, the worker did not — and could not — become aware of the need to take legal action to vindicate her rights until a period of time had elapsed.” Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted). In this case, Plaintiff has testified that she lodged both verbal and written complaints about the harassment she was experiencing. (See, e.g., Plaintiffs Dep. at 96-100,102-03,108- 10, 122-23, 131, 135-36, 139, 143-45, 165-66, 175-76, 178-79, 182, 190.) The courts have held that such contemporaneous complaints evidence an employee’s “awareness of and duty to assert his or her rights,” thereby defeating the employee’s appeal to the continuing violation doctrine. Boykin, 2000 WL 491512, at *2 (internal quotation marks and citations omitted); see also Marquis, 206 F.R.D. at 170. Accordingly, it appears that Plaintiffs Title VII claims of harassment are largely (if not entirely) time-barred. Nonetheless, to the extent that they are not, and to the extent that Plaintiff is pursuing her claims of harassment under Michigan’s ELCRA, Plaintiff must first establish the elements of a prima facie case. To establish a prima facie case of hostile work environment harassment under Title VII, Plaintiff must show (i) that she is a member of a protected class, (ii) that she was subjected to unwelcome harassment of a sexual, racial, or religious nature, (iii) that this harassment was based on her protected status, whether her gender, race, or religion, (iv) that the harassment had the effect of unreasonably interfering with her work performance by creating a hostile work environment, and (v) that there is a basis for charging Sky Chefs with liability' for this harassment. See Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 600 (6th Cir.2007); Harrison, 612 F.Supp.2d at 855. The standards under Michigan’s Elliott— Larsen Act are similar, except that an employer may be held liable for the creation of a hostile work environment only if it “failed to take prompt and adequate remedial action after having been reasonably put on notice of the harassment.” Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910, 915-16 (2000). In their present motion, Defendants challenge only the last two elements of this prima facie case. This Court recently described the showing necessary to establish the fourth element of this standard: As the Sixth Circuit has explained, a hostile work environment exists — and, thus, the fourth prong of a prima facie case is established — only where a plaintiff is subjected to conduct that is “sufficiently severe or pervasive to alter the conditions of [his] employment.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir.1998) (internal quotation marks and citations omitted). The conduct in question “must be judged by both an objective and a subjective standard” — that is, “[t]he conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive.” Abeita, 159 F.3d at 251 (internal quotation marks and citations omitted). Among the factors to be considered in determining the existence of a hostile work environment are “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Clark [v. United Parcel Service, 400 F.3d 341, 351 (6th Cir.2005) ] (internal quotation marks and citation omitted). “The harassment should be ongoing, rather than a set of isolated or sporadic incidents.” Clark, 400 F.3d at 351. Harrison, 612 F.Supp.2d at 855-56. Plaintiff and her counsel have made very little effort to address this element of a prima facie case or to identify supporting evidence in the record. Turning first to her claim of sexual harassment, Plaintiff states (without citation to the record or supporting details) that she “was subjected to near-constant harassment from multiple supervisors and co-workers, who would physically touch or rub up against Plaintiff and make obscene remarks about her body and various sexual acts they would like to engage in with her.” (Plaintiffs Response Br. at 14.) She further asserts that her showing of a hostile work environment is bolstered by her testimony as to her “awareness of other female employees being harassed in the same manner that she was.” (Id.) Assuming, for present purposes, that these vague and unsupported assertions in Plaintiffs response brief could satisfy the objective prong of the standard for establishing a hostile work environment, Plaintiff has not even attempted to identify any evidence in the record that she subjectively regarded the conduct of her co-workers and supervisors as abusive. To the contrary, she testified at her deposition that she regarded the name-calling in the workplace as “lesser offenses to me,” a “lighter thing,” and “like high school junk to me,” and she contrasted this with workplace incidents that rendered her “not ... able to do my production.” (Plaintiffs Dep. at 176-77.) More generally, Plaintiff has not pointed to any evidence in the record, whether in her deposition testimony or elsewhere, that she perceived the harassing conduct of her co-workers and supervisors as interfering with her work performance, altering the conditions of her employment, or giving rise to a hostile or abusive work environment. Under this record, while Plaintiff might well have viewed this conduct as unwelcome, it cannot be said that she “subjectively regarded it as so severe or pervasive as to create an abusive or hostile work environment.” Harrison, 612 F.Supp.2d at 856. This same analysis applies as well to (and defeats) Plaintiffs claims of harassment based on her race and religion, where Plaintiff again has made essentially no effort to establish the subjective prong of the “hostile work environment” standard with respect to these claims. Regarding her claim of race-based harassment, Plaintiff offers only the conclusory assertion that “the harassment was severe and pervasive as it occurred on a daily basis from many different employees,” and she points broadly — and, once again, without citation to the record — to her testimony that “instead of calling her by her name, most of the time she was called ‘black bitch.’ ” (Plaintiffs Response Br. at 15.) As for her claim of religion-based harassment, Plaintiff does not offer even so much as an unsupported assertion that the remarks and conduct about which she complains were sufficiently severe and pervasive to create a hostile work environment. (See id. at 16.) Yet, beyond her counsel’s generalized characterizations of the conduct engaged in by Plaintiffs coworkers and supervisors, and counsel’s ipse dixit labeling of this conduct as “severe and pervasive,” Plaintiff has made no attempt to identify any specific evidence in the record indicating that she subjectively regarded the conduct and remarks of her co-workers as so severe or pervasive as to give rise to an abusive or hostile work environment. It follows that she has failed to establish a prima facie case of hostile work environment harassment based on her gender, race, or religion, whether under Title VII or the ELCRA. Before turning to the remaining claims asserted in Plaintiffs complaint, one point bears emphasis. In determining whether Defendants are entitled to summary judgment in their favor on Plaintiffs claims of hostile work environment harassment, the Court must view the evidence in a light most favorable to Plaintiff, and must, in particular, credit Plaintiffs deposition testimony regarding the many inappropriate comments directed at her and the inappropriate conduct engaged in by her co-workers and supervisors. In resolving Defendants’ motion, the Court has not been called upon to decide whether the comments and conduct identified in this deposition testimony would satisfy the objective prong of the “hostile work environment” standard — that is, whether this behavior was “severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive.” Harrison, 612 F.Supp.2d at 856 (internal quotation marks and citation omitted). Rather, the Court has considered Plaintiffs showing only as to the subjective prong of this standard — that is, whether Plaintiff subjectively regarded her work environment as hostile or abusive. Harrison, 612 F.Supp.2d at 856. Once Defendants advanced this challenge, it was Plaintiffs obligation under Rule 56 to marshal the evidence in the record which, if credited and viewed in her favor, would establish this element of a prima facie case of hostile work environment harassment. As is repeatedly the case throughout Plaintiffs brief in response to Defendants’ motion, Plaintiff and her counsel have sought to satisfy this obligation through terse, conclusory, and question-begging assertions that the harassment in her former workplace was “severe and pervasive,” (see Plaintiffs Response Br. at 14, 15), and through broad and generalized characterizations of the conduct engaged in by her co-workers, with these latter passages in her brief utterly lacking in specific details or citation to the record. This approach is manifestly inadequate — particularly, as explained earlier, under Rule 56 as recently amended, but also under the Rule prior to these amendments — to meet the non-moving party’s burden to “set out specific facts showing a genuine issue for trial.” Fed. R.Civ.P. 56(e)(2). Whatever might be said about whether the record in this case could, if properly marshaled, establish each of the elements of a prima facie case of hostile work environment harassment, the Court readily concludes that the effort put forward by Plaintiff and her counsel does not suffice to satisfy the burden placed on the non-moving party under Rule 56. Having so determined, the Court’s inquiry is at an end. There is no place in this inquiry for fashioning arguments or gathering evidence on a party’s behalf. Neither should the Court’s ruling be viewed as any sort of determination on the merits that the workplace conduct identified in Plaintiffs deposition testimony is beyond the reach of federal or state anti-discrimination law. D. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliatory Discharge, Nor Has She Produced Evidence that Sky Chefs’ Stated, Non-Retaliatory Reason for Her Discharge Was Pretextual. Next, Plaintiff has asserted four claims of retaliatory discharge, alleging that she was terminated in response to her exercise of protected activity under Title VII, the ELCRA, the FMLA, and Michigan’s WDCA. In their present motion, Defendants argue that each of these claims fails for lack of evidence of a causal connection between Plaintiffs protected activities and her discharge, and because Plaintiff cannot show that Sky Chefs’ stated, non-retaliatory reason for this discharge was pretextual. The Court agrees. In the absence of direct evidence of retaliatory motive, Plaintiffs initial burden in proving a claim of retaliation under Title VII or the ELCRA is to establish the four elements of a prima facie case: (i) that she engaged in “protected activity” within the meaning of these statutes, (ii) that this exercise of protected activity was known to her employer, (iii) that she suffered an adverse employment action, and (iv) that there was a causal connection between the protected activity and the adverse action. See DiCarlo v. Potter, 358 F.3d 408, 420 (6th Cir.2004); Garg v. Macomb County Community Mental Health Services, 472 Mich. 263, 696 N.W.2d 646, 653 (2005). A prima facie case of retaliation under the FMLA features essentially the same elements, see Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir.2006), as does a claim of retaliation under Michigan’s WDCA, see Chiles v. Machine Shop, Inc., 238 Mich.App. 462, 606 N.W.2d 398, 404 (1999). In their motion, Defendants concede that Plaintiff engaged in protected activities within the meaning of each of these four statutes, and that her protected activities were known to her employer. Defendants further acknowledge that Plaintiffs discharge qualifies as an adverse employment action. The sole remaining question, then, is whether Plaintiff has established a causal connection between her protected activities and her discharge. With respect to her claims of retaliation under Title VII and the ELCRA, Plaintiffs effort to establish the requisite causal connection rests entirely upon the temporal proximity between her protected activity and her discharge. (See Plaintiffs Response Br. at 17-18.) Yet, while the Sixth Circuit has found that temporal proximity alone may be “significant enough to constitute evidence of a causal connection” where “an adverse employment action occurs very close in time after an employer learns of a protected activity,” the court was addressing a case in which the plaintiff employee was discharged “the very day” and “immediately after” the employer learned of his protected activity. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.2008) (em phasis added). Here, in contrast, Plaintiff acknowledges that her protected activity— namely, her filing of a charge of discrimination — occurred “approximately one month prior to her termination.” (Plaintiffs Response Br. at 17.) Plaintiff cites no authority for the proposition that this one-month gap between her protected activity and her discharge qualifies as “very close in time” under the case law, such that this temporal proximity alone suffices to establish a causal connection. Moreover, the Michigan courts, unlike the Sixth Circuit, have held that temporal proximity alone does not suffice to establish a causal connection, see Garg, 696 N.W.2d at 660; West v. General Motors Corp., 469 Mich. 177, 665 N.W.2d 468, 472-73 (2003), so it follows that Plaintiff has failed to establish this prong of a prima facie case of retaliation under the ELCRA. Plaintiff fares no better in her effort to establish the “causal connection” prong of her prima facie case of retaliation under the FMLA and the WDCA. First, while she alleges that her co-workers’ mistreatment of her escalated after she made claims for worker’s compensation benefits and after she returned from her FMLA leave, the Court noted above that Plaintiff has made no effort to show that any such mistreatment rose to the level of an adverse employment action. Thus, it is only evidence of a causal connection between protected activity and Plaintiffs discharge that is relevant to her prima facie case of retaliation. Next, to the extent that Plaintiff appeals to temporal proximity as evidencing the requisite causal connection, this effort fails in light of the nearly three-month gap between her return from FMLA leave and her discharge, and the gap of nine months or more between her most recent claim for worker’s compensation benefits (apparently in February of 2007) and her discharge. Even assuming Plaintiff could establish a prima facie case of retaliation, Defendant Sky Chefs has identified a legitimate, non-retaliatory reason for Plaintiffs discharge, and Plaintiff has not produced evidence that this reason is pretextual. As discussed earlier with respect to Plaintiffs claims of discrimination, Sky Chefs has produced evidence that the decision to terminate Plaintiffs employment was based upon the outcome of an investigation disclosing that Plaintiff had engaged in insubordinate conduct toward lead worker Ahmed Babuka and that, contrary to her accusation, co-worker Dexter Thomas had not sworn at this lead worker. In arguing that this reason is pretextual, Plaintiff miseharacterizes the infraction leading to her discharge as “leaving] her workstation,” (Plaintiffs Response Br. at 18), and she asserts that Thomas also left his workstation but was not disciplined. Yet, it is evident from the final disciplinary notice issued to Plaintiff that she was not terminated simply for leaving her workstation. (See Defendants’ Motion, Ex. R.) In addition, the Court observed earlier that the record is silent — apart, that is, from Plaintiffs testimony based upon no apparent personal knowledge — as to whether Thorn- as also was disciplined as a result of this incident. Finally, and as also discussed earlier, Plaintiffs extensive disciplinary record, featuring several prior final written warnings, belies the notion that she and Thomas were similarly situated, and also defeats any inference of a retaliatory motive that might otherwise arise from Sky Chefs’ different treatment of Plaintiff and Thomas, even assuming (contrary to Sky Chefs’ investigation) that the two had engaged in the same or similar conduct. Accordingly, Plaintiff has failed to provide evidentiary support for her contention that Sky Chefs’ stated reason for her termination was a pretext for retaliation. E. Plaintiff Has Failed to Produce Evidence of Extreme and Outrageous Conduct That Could Support a Claim of Intentional Infliction of Emotional Distress. Finally, in the seventeenth and final count of her complaint, Plaintiff asserts a state-law claim of intentional infliction of emotional distress. The Michigan Supreme Court “has not officially recognized” this tort, but “[assuming that the cause is valid,” a plaintiff must show “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.” Vanvorous v. Burmeister, 262 Mich.App. 467, 687 N.W.2d 132, 141-42 (2004) (internal quotation marks and citations omitted). “Liability for the intentional infliction of emotional distress has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Garretson v. City of Madison Heights, 407 F.3d 789, 799 (6th Cir.2005) (internal quotation marks and citation omitted). “Liability will not be found for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities; rather, the case must be one in which the facts would arouse the resentment of an average member of the community against the actor, leading him to exclaim, ‘Outrageous!’ ” Garretson, 407 F.3d at 799 (internal quotation marks and citations omitted). Characteristically, in her response to Defendants’ motion, Plaintiff makes little effort to explain how the record in this case could be viewed as establishing extreme and outrageous conduct by any particular Defendant that would support a claim of intentional infliction of emotional distress. The only Defendant identified by name in Plaintiffs terse, four-sentence discussion of this claim is co-worker Jose Venegas, and she makes reference to a September 2006 incident in which Venegas purportedly rammed her with trolleys. Yet, there is no evidence that Plaintiff sought or required medical attention for this purported “assault[],” (Plaintiffs Response Br. at 20), nor that she suffered severe emotional distress as a result of this incident. Moreover, it appears that this was a one-time incident. As for Plaintiffs vague assertions that unspecified Defendants belittled, degraded, and threatened her, (see id.), she makes no effort to link these accusations to any of the individual Defendants who have brought the present motion, and the above-cited case law holds that such insults, annoyances, and threats do not suffice to establish liability for intentional infliction of emotional distress. Accordingly, Defendants are entitled to summary judgment in their favor on this claim. F. Plaintiffs Claims Against Defendant Karen Damerow Lack Any Basis in Fact or Law, and Plaintiffs Counsel Is Subject to Sanctions for Continuing to Pursue These Claims. Apart from challenging each of the seventeen claims asserted in Plain tiffs complaint, Defendants argue in the present motion that Plaintiff has utterly-failed to identify any behavior by individual Defendant Karen Damerow, Sky Chefs’ human resources manager, “that was discriminatory, retaliatory, or which constituted intentional infliction of emotional distress.” (Defendants’ Motion, Br. in Support at 18.) Plaintiff has not addressed this contention in her response to Defendants’ motion. Consequently, the Court deems Plaintiffs claims against Defendant Damerow as having been abandoned. In addition, the Court agrees with Defendants that there is no basis in the record for imposing individual liability on Defendant Damerow under any of the myriad theories of recovery advanced in Plaintiffs complaint. Importantly, however, Defendants represent in their motion that Plaintiff declined to concur in this (or any other) relief sought in Defendants’ motion. (See Defendants’ Motion at ¶ 5.) As noted earlier, Plaintiff and her counsel were cautioned at the outset of this case that the Court would “closely and carefully monitor the status of Plaintiffs claims throughout this case to ensure that each claim against each named party is viable and comports with the standards of Fed.R.Civ.P. 11(b).” (6/3/2009 Order at 1 n. 1.) By the close of discovery, if not earlier, it should have been evident to Plaintiff and her counsel that the claims asserted against Defendant Damerow lacked a basis in fact or law. Nonetheless, Plaintiff failed to dismiss these claims, thereby necessitating Defendants’ challenge to these claims in the present motion. Under these circumstances, where Plaintiff and her counsel continued to pursue claims after they knew or should have known that they lacked merit, and where the Court expressly cautioned against such persistence in pursuing claims past the point of viability, the Court readily concludes that an award of sanctions against Plaintiffs counsel is warranted under Fed. R.Civ.P. 11(c). See Runfola & Associates, Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368, 373-74 (6th Cir.1996); B & II Medical, L.L.C. v. ABP Administration, Inc., 354 F.Supp.2d 746, 748-49 (E.D.Mich. 2005), aff'd, 526 F.3d 257 (6th Cir.2008). Within fourteen days of the date of this opinion and order, Defendants shall file a statement of the attorney fees they incurred in preparing and filing the present motion. Upon reviewing this statement, the Court will then determine an appropriate percentage of these fees to be paid by Plaintiffs counsel to Defendants as a sanction for counsel’s violation of Fed.R.Civ.P. 11(b)(2)-(3). G. Plaintiffs Federal Claims Against the Non-Moving Defendants Are Subject to Dismissal. Having addressed each of the challenges advanced by the moving Defendants, the Court turns finally to Plaintiffs claims against the remaining individual Defendants who were not parties to the present motion. As noted earlier, these Defendants include (i) Mike Darovitz, Derrick Taylor, Darrin Simmons, Tracy Steele, and Dexter Thomas, who have yet to appear or file any responsive pleadings in this case, and (ii) Tony Hines, who initially was represented by the attorneys who filed the present motion, but who is currently unrepresented. As to the former group of individual Defendants, the clerk has entered their defaults under Fed.R.Civ.P. 55(a), but Plaintiff has not pursued default judgments under Fed.R.Civ.P. 55(b). As to Defendant Hines, the claims against this individual have not been the subject of any dispositive motion. Under these circumstances, the Court elects to dismiss the federal claims asserted against these non-moving Defen dants, and to remand the remaining state-law claims to state court for further proceedings. The bulk of Plaintiffs federal claims have been brought under Title VII, but individual co-workers and supervisors are not subject to liability under this statute. See Wathen v. General Electric Co., 115 F.3d 400, 405-06 (6th Cir.1997); De-Biasi v. Charter County of Wayne, 537 F.Supp.2d 903, 909 (E.D.Mich.2008). This leaves only Plaintiffs claim of retaliatory discharge under the FMLA, and the law of this circuit appears to be unsettled as to whether the FMLA imposes individual liability on private-sector employers. See Mitchell v. Chapman, 343 F.3d 811, 827-28 (6th Cir.2003) (addressing this question only in dicta). Yet, even assuming individual liability is permitted under this statute, the record indicates that none of the non-moving Defendants was involved in the decision to terminate Plaintiffs employment, (see Defendants’ Motion, Ex. X., Interrogatory Responses at 11-12), and these individuals plainly could not have acted with a retaliatory motive with respect to a decision in which they played no part. Finally, the Court has now granted summary judgment to the moving Defendants on Plaintiffs claim of retaliatory discharge under the FMLA, and the grounds for this ruling did not turn upon the conduct or culpability of any individual Defendant. Accordingly, the Court finds no basis for permitting Plaintiff to proceed with her federal claims against the non-moving Defendants. Moreover, having resolved all of the claims over which it has original jurisdiction, the Court declines to retain and exercise supplemental jurisdiction over the state-law claims asserted against the non-moving Defendants. See 28 U.S.C. § 1367(c)(3). Rather, these claims will be remanded to state court. IV. CONCLUSION For the reasons set forth above, NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’ March 1, 2010 motion for summary judgment (docket # 61) is GRANTED. . Five other individual Defendants named in Plaintiff's complaint — Mike Darovitz, Derrick Taylor, Darrin Simmons, Tracy Steele, and Dexter Thomas — have yet to appear or file any responsive pleadings in this case, and the clerk has entered their defaults. After securing these defaults, however, Plaintiff has made no effort to prosecute her claims against these Defendants. Finally, one other individual Defendant, Tony Flines, initially was represented by the attorneys who have filed the present motion on behalf of Defendants Sky Chefs, Coleman, Lathem, Venegas, and Damerow, but these attorneys were permitted in a September 11, 2009 order to withdraw from representing Defendant Hines, and he has not secured substitute counsel. . Human resources manager Damerow testified that a lead worker was an hourly union employee who handed out job assignments and monitored the workplace, but lacked the authority to discipline employees. . Plaintiff later filed another claim for worker’s compensation benefits arising from an incident in February of 2007 when she slipped on soap and oil on the workplace floor. . In addition, the December 22, 2006, March 7, 2007, and April 17, 2007 disciplinary notices all were designated as "final" written advisories. (See Defendants' Motion, Exs. J, L, N.) . The Court notes that Plaintiff's assertion in her response brief that she was “terminated for leaving her workstation,” (Plaintiff's Response Br. at 8), is difficult to square with the language of this disciplinary notice. . As this Court observed in an order issued in June of 2009, while Plaintiff was still endeavoring to serve each of the individual Defendants named in her complaint: The Court notes that Plaintiffs complaint provides little or no guidance in ascertaining the precise grounds upon which each of these individual Defendants could be held liable in this case. So far as the Court can discern, some of these individuals are not mentioned anywhere in the 143 numbered paragraphs of the 24-page complaint, and the allegations as to those individual Defendants who are mentioned are minimal at best. Moreover, in sixteen of the seventeen (17) counts of the complaint, Plaintiff refers collectively to the alleged conduct of the "Defendants,” without any effort to link the actions of any specific Defendant to any particular theory of recovery or to specify which Defendants are or may be subject to liability under a given count. This sort of vague, broad-brush pleading falls short of even the lenient standards set forth in Fed. R.Civ.P. 8(a), and Plaintiff and her counsel are expressly cautioned that the Court will closely and carefully monitor the status of Plaintiffs claims throughout this case to ensure that each claim against each named party is viable and comports with the standards of Fed.R.Civ.P. 11(b). (6/3/2009 Order at In. 1.) The Court returns to this matter at the conclusion of this opinion. .Effective December 1, 2010, Rule 56 has been revised in various respects, but the language quoted here (and immediately below) reflects the Rule as it read when Defendants filed the present motion. . For what it is worth, while Plaintiff has testified as to a number of discriminatory remarks made by her co-workers and supervisors, she has not pointed to evidence of any such statements made by decision-makers in connection with the decision-making process that led to her termination. See Hopson v. DaimlerChysler Corp., 306 F.3d 427, 433 (6th Cir.2002) (holding that comments made by someone with “no involvement in the decision-making process” did not constitute direct evidence of discrimination). . Regarding the "adverse employment action” element of a prima facie case, Defendants acknowledge that Plaintiff's discharge would qualify, but they deny that any of the other forms of mistreatment identified by Plaintiff would rise to this level. Plaintiff has not addressed this issue in her response to Defendants’ motion, and thus she has abandoned any claim of disparate treatment based upon anything other than her discharge. . While this fourth and final element of a prima facie case may be established by showing that the plaintiff was replaced by someone outside the protected class, Plaintiff has made no effort to establish this element via this route. . Under the recent amendments to Fed. R.Civ.P. 56, such bare assertions of counsel unbacked by citation to the record clearly do not suffice to counter an opposing party's request for summary judgment. In its current version, Rule 56 mandates that “[a] party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record,” and it further provides that "[t]he court need consider only the cited materials” in determining the existence of factual disputes. Fed. R.Civ.P. 56(c)(1),(3) (emphasis added). Yet, while the amended Rule 56 expressly requires citation to the record, this Court has recognized that this obligation pre-dates these amendments. Specifically, in a case where the plaintiff was represented by the very same counsel who represents Plaintiff here, the Court observed: Nothing in either the Federal Rules or case law supports an argument that the trial court must conduct its own probing investigation of the record. To the contrary, it would be utterly inappropriate for the court to abandon its position of neutrality in favor of a role equivalent to champion for the non-moving party: seeking out facts, developing legal theories, and finding ways to defeat the motion. Accordingly, the Court declines to search the record on Plaintiff’s behalf for evidence .... to establish [an] element of his prima facie case. Harrison v. Oakland County, 612 F.Supp.2d 848, 859 (E.D.Mich.2009) (quotation marks, alterations, and citations omitted). Likewise, in this case, while the "Statement of Facts” section of Plaintiff's brief in response to Defendants' motion is supported by citations to the record — albeit a record that consists almost exclusively of Plaintiff's deposition testimony — the “Law and Argument” section of this brief is totally bereft of any such citations, leaving the Court to its own devices in confirming that Plaintiff's arguments have evidentiary support. In some instances, at least, such support appears to be lacking — e.g., Plaintiff supports one of her arguments with the proposition that "Muslim employees were allowed special treatment to observe their religion,” (Plaintiff's Response Br. at 12), but no such factual assertion (or supporting citation) appears anywhere in Plaintiff's statement of facts. This presumably is why the amended Rule 56 (and the case law before it) requires specific citations to the record in support of each argument — so that the courts need not engage in fact-checking on behalf of the parties, a role that is patently inconsistent with the courts’ position of neutrality in deciding motions and presiding over cases. . Indeed, Plaintiff evidently never returned to work following this incident, so it is not clear how she would know whether any action was taken against Thomas. Nor, so far as the record reveals, did Plaintiff and her counsel make any effort to pursue this question in discovery — or, if they did so, they have not directed the Court’s attention to anything they might have learned. . As discussed below, Sky Chefs’ management concluded otherwise following an investigation of this incident. . At her deposition, Plaintiff identified some of the race-based comments of her co-workers as having been made in early 2006, (see Plaintiff's Dep. at 165), but she did not specify when Lathem used the "N” word. . The Court notes that this EEOC charge raises only complaints of sexual and religious harassment and retaliation, so it is unclear whether Plaintiff exhausted her administrative remedies with respect to her claim of race-based harassment and her claims of disparate treatment on account of her race, gender, and religion. While Plaintiff perhaps might have filed an additional EEOC charge following her termination, no such charge appears in the record. . Again, this assertion is unsupported by citation to the record, nor does the "Statement of Facts” portion of Plaintiff's response brief mention (or cite) any such testimony. . For what it is worth, it is not clear that Plaintiff could establish that the mistreatment of her and the offensive remarks made to her by her co-workers were attributable to her gender (or her race or religion, for that matter). She testified at her deposition that she was "the bottom of the barrel be it male or female” at the workplace, and she expressed her view that she was treated worse than any of her co-workers, whether male or female, black or white, or Christian or non-Christian. (Plaintiff’s Dep. at 263-64, 269-72.) Such personal animus directed at Plaintiff individually is not indicative of discrimination based on membership in a protected class. See Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir.2000) (holding that the plaintiff had failed to establish a claim of sexual harassment because, "[w]hile he may have been subject to intimidation, ridicule, and mistreatment, he has not shown that he was treated in a discriminatory manner because of his gender”); Nizami v. Pfizer Inc., 107 F.Supp.2d 791, 805 n. 15 (E.D.Mich. 2000). . Moreover, and as discussed above, Plaintiff's deposition testimony appears to indicate that she did not regard the name-calling of her co-workers as sufficiently severe as to interfere with her work performance or give rise to a hostile work environment. . In light of this conclusion, the Court need not address Defendants' contention that Plaintiff also failed to establish the fifth and final prong of a prima facie case of harassment. . Plaintiff does not claim to have produced any such direct evidence here, but instead concedes that her retaliation claims are properly analyzed under the McDonnell Douglas burden-shifting approach. (See Plaintiff’s Response Br. at 16.) . As with her claims of disparate treatment, Plaintiff makes no effort in her response to Defendants’ motion to argue or show that she suffered any adverse employment action apart from her discharge that could support a claim of retaliation. Thus, the Court addresses only whether Plaintiff has established a prima facie case of retaliatory discharge. . The Court also notes that Plaintiffs FMLAbased claim of retaliatory discharge seemingly is defeated by Plaintiff’s own deposition testimony. When asked about this claim, Plaintiff testified that her co-workers' mistreatment of her intensified after her return from FMLA leave because "[a] lot of people thought I was gone, and gone for good,” and "when I came back, they were not pleased.” (Plaintiff's Dep. at 219.) Plainly, then, this testimony does not evidence retaliation based upon Plaintiff's exercise of her right to FMLA leave, but retaliation based on displeasure that Plaintiff had returned from this leave. In any event, nothing in the record forges any link between this displeasure and the subsequent decision by Sky Chefs management officials, over two months later, to terminate Plaintiff’s employment. . It is not clear whether, in order to dismiss the federal claims asserted against the non-moving Defendants, the Court must first set aside the defaults entered by the clerk against those Defendants who have yet to appear in this action. Assuming this is necessary, the Court finds “good cause’’ for doing so, see Fed.R.Civ.P. 55(c), where the federal claims asserted against these individuals are not viable, and where Plaintiff failed to vigorously pursue these claims by promptly moving for a default judgment after the clerk entered the defaults of these parties.

OPINION and ORDER JOHN A. GORMAN, United States Magistrate Judge. Now before the Court is the Defendant’s Motion for Summary Judgment (# 43). The motion is fully briefed and I have carefully considered the arguments and evidence presented by the parties. As explained herein, the motion is granted. I. SUMMARY JUDGMENT GENERALLY The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, sum mary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Internet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Services, 55 F.3d 1304, 1308 (7th Cir.1996). In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court’s role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). The court has one task and one task only: to decide based on the evidence of record, whether there is any material dispute of fact that requires a trial. The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the nonmovant, Erdman v. City of Fort Atkinson, 84 F.3d 960, 961 (7th Cir.1996); Vukadinovich v. Board of School Trustees, 978 F.2d 403, 408 (7th Cir.1992), cert. denied, 510 U.S. 844, 114 S.Ct. 133, 126 L.Ed.2d 97 (1993); Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990); DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987); Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 312 (7th Cir.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1304, 94 L.Ed.2d 160 (1987), and construing any doubts against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Trotter v. Anderson, 417 F.2d 1191 (7th Cir.1969); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir.1999). In considering a motion for summary judgment, however, there is one occasion when the court is not obligated to accept as true the non-movant’s version of facts: “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Neither the moving party nor the responding party may simply rest on allegations; those allegations must be supported by significant probative evidence. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). See also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (when the moving party has met its burden, nonmoving party must do more than show some “metaphysical doubt” as to material facts). Instead, the parties must identify the evidence that will facilitate the court’s assessment. Waldridge, 24 F.3d at 922. Thus, as FRCP 56(e) makes clear, a party opposing summary judgment may not rely on the allegations of the complaint. Rather: [T]he adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also, Local Rule CDIL 7.1(D). A scintilla of evidence in support of the non-moving party’s position is not sufficient to oppose successfully a summary judgment motion; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. If the undisputed facts indicate that no reasonable jury could find for the party opposing the motion, then summary judgment must be granted. Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 931 (7th Cir.1995), citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party and on which that party will bear the burden of proof at trial, then summary judgment is proper. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Waldridge, 24 F.3d at 920. As the Seventh Circuit has explained, “[District courts are not obliged in our adversary system to scour the record looking for factual disputes and may adopt local rules reasonably designed to streamline the resolution of summary judgment motions.” Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989). See also, Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103-04 (7th Cir.1990); L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561, 567 (7th Cir.1993). The Local Rules of this Court specify the form, content and timing for all motions for summary judgment and responses and replies thereto. See, Local Rule CDIL 7.1(D). II. LAW OF TITLE VII Under Title VII it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 USC § 2000e-2. Title VII prohibits only discrimination based on protected status; it does not prohibit discrimination based on personality conflicts or other non-protected bases. See, for example, Jajeh v. County of Cook, 678 F.3d 560, 569 (7th Cir.2012), citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In order to survive a motion for summary judgment in a disparate treatment claim, a plaintiff must produce some evidence that (1) intentional discrimination (2) was more likely than not (3) the motivation (4) behind the challenged employment decision. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A plaintiff may prove disparate treatment under Title VII by using either the direct method or the indirect method of proof. Rhodes v. Illinois Department of Transportation, 359 F.3d 498, 504 (7th Cir.2004). The direct method of proof permits a plaintiff to show—by either direct or circumstantial evidence—that his employer’s decision to take an adverse job action against him was motivated by a prohibited purpose, such as race or national origin. Id. If a plaintiff cannot prevail under the direct method of proof, he must proceed using the burden-shifting analytical framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, Adams v. Wal-Mart Stores Inc., 324 F.3d 935 (7th Cir.2003). Under that framework, the plaintiff must first establish a prima facie case of discrimination, which creates a rebuttable presumption of discrimination. The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action. Upon articulation of such a reason, the presumption of discrimination vanishes, and the plaintiff must prove that the stated reason was merely pretext for discrimination. See, for example, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Actually, at this third stage, the plaintiffs burden under this shifting burden analysis “merges with the ultimate burden of persuading the court that [ ]he has been the victim of intentional discrimination.” Id. at 256, 101 S.Ct. 1089. In other words, plaintiffs burden returns the plaintiff to his original position, namely the position of proving intentional discrimination. Hicks, 509 U.S. at 510, 113 S.Ct. 2742; Nawrot v. CPC International, 277 F.3d 896, 905 (7th Cir.2002). A prima facie case of discrimination requires evidence that (1) plaintiff was a member of the protected class; (2) plaintiff was qualified for the job in question or was meeting the employer’s legitimate performance expectations; (3) plaintiff suffered an adverse employment action; and (4) the employer treated similarly situated persons not in a protected class more favorably. Bragg v. Navistar International Transportation Corp., 164 F.3d 373, 376 (7th Cir.1998). There is no dispute that Plaintiff is a member of a protected class. He is Nigerian and raises issues of disparate treatment on the basis of both race and national origin. One element of the prima facie case is that the employee was satisfying the employer’s legitimate performance expectations up until the time of his termination. Jones v. Union Pacific Railroad Co., 302 F.3d 735, 741 (7th Cir.2002). This includes adherence to employer’s rules and regulations. Id.; cf. Lim v. Trustees of Indiana University, 297 F.3d 575, 581 (7th Cir.2002) (plaintiff failed to establish that she was meeting university’s legitimate requirements regarding research and publishing); Salvadori v. Franklin School District, 293 F.3d 989, 996 (7th Cir.2002) (fact that plaintiff had received satisfactory performance evaluations for several years did not satisfy this requirement in light of later, “less glowing” evaluations and failure to comply with performance improvement plan). Not everything that makes an employee unhappy is actionable under Title VII. Dass v. Chicago Board of Education, 675 F.3d 1060, 1069 (7th Cir.2012); O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir.2004); Drake v. Minnesota Mining and Mfg. Co., 134 F.3d 878, 885 (7th Cir.1998). To rise to the level of “adverse employment action,” the plaintiff must show more than an inconvenience or alteration of job responsibilities. Rhodes v. Illinois Department of Transportation, 359 F.3d 498, 504 (7th Cir.2004); Oest v. Illinois Department of Corrections, 240 F.3d 605, 613 (7th Cir.2001). “A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” Crady v. Liberty National Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993); See also, Cheek v. Peabody Coal Co., 97 F.3d 200, 204 (7th Cir.1996); Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 744-45 (7th Cir.2002); Lewis v. Chicago, 496 F.3d 645 (7th Cir.2007). To show the final element of the prima facie case, namely that similarly situated persons not in a protected class were treated more favorably, a plaintiff must address such factors as performance, qualifications and conduct, in addition to the identity of supervisors, the standards that govern job performance, and the similarity or differences in the conduct of these other employees. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.2000). The Seventh Circuit has also made clear that there must be a balance between the employee’s and the employer’s evaluations of these comparator employees. The similarities and differences must be “sufficiently comparable” in “all material respects.” Crawford v. Indiana Harbor Co., 461 F.3d 844, 846 (7th Cir.2006). “[PJlaintiff should have to show only that the members of the comparison group are sufficiently comparable to [him] to suggest that [ ] he was singled out for worse treatment.” Goodwin v. Board of Trustees of University of Illinois, 442 F.3d 611, 619 (7th Cir.2006); Ezell v. Potter, 400 F.3d 1041, 1049-50 (7th Cir.2005). Otherwise, said the Court of appeals, plaintiffs will be in a box: if they pick just members of the comparison group who are comparable in every respect, they will be accused of cherry-picking; but if they look for a representative sample, they will unavoidably include some who were not comparable in every respect, but merely broadly comparable. Crawford, 461 F.3d at 846. Once a prima facie case is made out, the burden of production shifts to the employer, who must articulate a lawful reason for the employment action. Lawful means “facially legitimate”, see McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817, quoted in Zaccagnini v. Chas. Levy Circulating Co., 338 F.3d 672, 676 (7th Cir.2003). Once such a reason has been articulated, the burden shifts back to the plaintiff, who must show evidence of pretext. Pretext is more than a mistake or a decision based on erroneous facts; the reason must be shown to be a lie or a phony reason, or it must completely unsupported by facts. Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir.1998). Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir.1995); Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.2000). To meet this burden, plaintiff must produce “significantly probative admissible evidence” from which it could be inferred that the employer’s reason was false and that the actual reason was discriminatory. Jones v. Union Pacific Railroad Co., 302 F.3d 735 (7th Cir.2002); King v. Preferred Technical Group, 166 F.3d 887, 892-93 (7th Cir.1999). If the employer believed certain facts and believed that its employment action was proper in light of those facts, it matters not whether that version of the facts was correct. Id. The Court is not to sit in review of the action as some sort of “super-personnel department” but rather only reviews the actions of the employer to ascertain whether the actions violated Title VII. Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir.2000); Nawrot v. CPC International, 277 F.3d 896 (7th Cir.2002); EEOC v. Armstrong World Industries, 185 F.Supp.2d 932, 937 (C.D.Ill.2002). At the summary judgment stage, it is important to remember that Plaintiff need not prove her case. She must, however, introduce evidence of facts that support her claims, and these facts need to be more concrete than her impressions or feelings. “Facts, not an employee’s perception and feelings, are required to support a discrimination claim.” Uhl v. Zalk Josephs Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir.1997). Title VII also prohibits retaliation for exercising rights under the statute. Title VII’s retaliation provision forbids any materially adverse action that would dissuade a reasonable employee from making a charge of discrimination even if the action does not affect the terms or conditions of employment. See, Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Whittaker v. Northern Illinois University, 424 F.3d 640, 648 (7th Cir.2005) (explaining that the range of actionable adverse actions for retaliation claims under § 2000e-3 is broader than for discrimination claims under § 2000e—2); Cain v. Locke, 483 Fed.Appx. 276, 280-81 (7th Cir.2012). As is true with disparate treatment claims, retaliation claims can be proven using either the direct or indirect methods of proof. Using the direct method to overcome summary judgment requires Plaintiff to show that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) the protected activity is causally related to the adverse employment action. Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 703 (7th Cir.2012). To establish the third element— i.e., a causal relation — she must show that the protected activity — such as filing an EEOC charge — was a “substantial motivating factor” in the employer’s decision to take an adverse employment action. Id. at 704. III. LAWOFADEA Under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” As is true in a Title VII case, in an age discrimination case, a plaintiff may show discrimination under either the direct or indirect methods of proof, Brown v. Illinois Department Natural Resources, 499 F.3d 675, 681 (7th Cir.2007); Luks v. Baxter Healthcare Corp., 467 F.3d 1049 (7th Cir.2006). To establish a prima facie case of age discrimination under the indirect method, a plaintiff must prove that (1) he is 40 or older; (2) his performance met the company’s legitimate expectations; (3) despite his performance he was subject to an adverse employment action; and (4) the company treated similarly situated employees under 40 more favorably. Martino v. MCI Communications Services, Inc., 574 F.3d 447 (7th Cir.2009), citing Faas v. Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir.2008). If plaintiff satisfies these criteria, the company may provide a legitimate, nondiscriminatory reason for the termination. Id. at 641-42. Assuming the company offers as much, plaintiff may challenge the stated reason as a pretext for discrimination. Id. at 642. Again, however, the ultimate burden to prove intentional discrimination always remains with plaintiff. Greene v. Potter, 557 F.3d 765, 769 (7th Cir.2009). Even when an employer has proffered what appears to be a legitimate, nondiscriminatory explanation for its conduct in an age discrimination claim, summary judgment will not be appropriate if the aggrieved employee produces evidence from which a jury reasonably could find that the stated explanation is false and that the real reason was discriminatory. Duncan v. Fleetwood, 518 F.3d 486 (7th Cir.2008). IV. UNDISPUTED FACTS Before beginning a recital of the facts in this case, several comments are necessary about Plaintiffs response to this motion. First, the Court is aware that he is proceeding pro se, and some latitude is given for that reason. But there are limits to that latitude, and in several significant ways, Plaintiff has stepped beyond those limits. First, the Federal Rules of Civil Procedure require that opposition to facts asserted in summary judgment motions be supported by citation to “particular parts of materials in the record.” FRCP 56(c)(1)(A). Rule 45(c)(3) states that the Court need only consider materials that are cited (although the Court is not prohibited from considering other materials). Similarly, the Rules of this Court require: “Each claim of disputed fact must be supported by evidentiary documentation referenced by specific page.” CDIL Local Rule 7.1(D)(2)(b)(2). Copies of both of these Rules were sent to Plaintiff when the summary judgment was filed (See Doc. # 44). Much of Plaintiff’s response contains no citation to the record; it simply contains his argument. To the extent that the Court would have been obligated to scour the record looking for support where none was tendered by the Plaintiff, the Court has not done so. Second, the Rules require that facts asserted by a party be capable of presentation in a form that would be admissible in evidence, and that affidavits and declarations be based on personal knowledge, based on admissible facts, from an affiant or declarant competent to testify about the matters contained therein. FRCP 56(c)(2), (4). Many of the documents Plaintiff has presented contain his own comments and handwriting on them, and he relies on these comments, despite the lack of personal knowledge or admissible evidence cited to support his comments. In fact, many of his comments are simply his characterizations of evidence, which is argument, not evidence. Many of the documents appear to be his own compilations of evidence that he has gleaned from various original sources, but his only identification of those original sources is “Defendant’s own documents” or something equally vague. These summaries are not admissible without evidentiary support. Many of the facts Plaintiff designates as “disputed” are not truly “disputed”, because Plaintiff simply states that he disagrees with them, without providing any evidentiary support for his disagreement. Similarly; Plaintiff asserts additional and purportedly “undisputed” facts which contain no citation whatsoever to any evidence. Specifically, his response to the following paragraphs of Defendant’s statement of fact indicates that he disputes them, but nothing in the record is cited to support that position (See 1, 6, 11, 13, 18, 20, 21, 22, 34, 37, 38, 39). Of the 62 additional material facts he asserts, 37 of them contain no citation to the record at all (See, 1, 2, 3, 5, 6, 7, 8, 9, 11, 15, 17-35, 43, 44, 50, 53, 54, 55, 56, 61). The failure to comply with the Federal and Local Rules carries with it ramifications. The Federal Rule explains that failure to properly support or address a fact allows the Court to, inter alia, consider the fact undisputed, or grant summary judgment if the motion satisfies the legal requirements of Rule 56. See, Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 992 (7th Cir.2002); Hedrich v. Bd. of Regents of Univ. of Wis. Sys., 274 F.3d 1174, 1178 (7th Cir.2001); Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994); Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir.2003). The Seventh Circuit has repeatedly approved strict enforcement of local rules, holding that obligations thereunder are not mere formalities See, Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994) (collecting cases); Delapaz v. Richardson, 634 F.3d 895 (7th Cir.2011). That said, the following statement of facts is taken largely from the Defendant’s Statement of Undisputed Material Facts, with additions where appropriate from Plaintiffs responsive Statement. In 1990, Olajide Giwa was hired by the City of Peoria as an Urban Planner in the City’s Planning and Growth Management Department (“the Department”). His prehire interviews were conducted by Wayne Anthony, the Director of the Department, and the Assistant Director, Patricia Landes. Both of them participated in the decision to hire Giwa. Landes was impressed by Giwa’s preparedness, and she recommended his hire. Giwa is an African-American born in Nigeria in 1956. Landes is Caucasian and about 14 years older than Giwa. On a very few occasions, Giwa and Landes socialized outside the workplace; their relationship was primarily professional. In 2000, ten years after his hire, Giwa was promoted from Urban Planner to Senior Urban Planner. There are technical requirements for holding the higher position — a master’s degree and four to five years’ experience as an urban planner is required — but the primary difference is that a Senior Urban Planner works with minimal supervision on larger and more complex projects and produces a higher quality of product. Between 2000 and 2003, Giwa was evaluated annually by Wayne Anthony. The evaluation forms used by the City require ratings in 7 general areas of job performance. Each one is rated as “Above Standards”, “Meets Standards”, or “Below Standards”. For each rating, there is also a Comment/Rationale section in which the evaluator justifies the rating that was given. At the end, the evaluator gives an “Overall” rating, using the same three standards. Wayne Anthony’s evaluations of Giwa for these years rated Giwa “Meets Standards” in all 7 areas as well as Overall. In his comments, Anthony noted that Giwa possessed “general knowledge” of departmental duties outside his area of expertise and a “high degree of initiative” within his area of expertise. No details or further explanation was given. Until 2003, Urban and Senior Urban Planners usually were assigned to a particular task or specialty area for years. Giwa’s exclusive responsibility until 2003 centered on computer-generated mapping (GIS) and other projects related to census data collection. During 2003, however, the City was forced by budget constraints to reduce its urban planning staff. Two urban planner positions as well as some support staff were lost. Thereafter, all Planners in the Department were required to cross train, and assignments among the Urban Planners and Senior Urban Planners were rotated more frequently. In 2004, Wayne Anthony retired and Patricia Landes was promoted to replace him. As Giwa’s supervisor, Landes evaluated his performance annually. In 2004, she met with Giwa to discuss her first draft of her evaluation of him. Following that meeting, she revised her evaluation form. The final version of that evaluation showed that he “Meets Standards” in all 7 areas and overall. That did not mean, however, that the evaluation lacked criticism. The evaluation read as follows: Knowledge: Knowledge of job duties, other than computer mapping, are [sic] appropriate for an Urban Planner, but not a Senior Planner. Needs to have more in-depth knowledge of the department operations related to planning and zoning and serve as a resource to more junior staff. Lack of knowledge does not foster confidence in others.” Quantity: Meets deadlines and completes fair share of assigned work. Quality: Solid record keeping for projects, excellent quality for mapping, continues to need improvement in quality and clarity of written communications. Is very careful in the performance of duties. Work Ethics: Very dedicated to work and takes great pride in work. Has good time management skills and makes noticeable effort to contribute to the objectives of the department. Conformance to Procedures/Regulations: Observance of Working Hours Conforms to standards for observance of working hours. Initiative/problem solving: Skilled in the operation of technology in the department, would like to see more initiative regarding identification of new opportunities to use technology to increase service. Also, as Senior Planner needs to [sic] more assertive in solving problems and being resourceful. Customer Service/Relationships Works well on team as participant, needs more experience as team leader. Has patience in dealing with customers. Giwa prepared an extensive written response to his evaluation, disputing Landes’ criticisms. Landes responded that, while she appreciated his comments, she would not be changing the evaluation. Giwa received a merit pay increase. Again in 2005, Landes prepared Giwa’s evaluation. Her rating in the category of “Knowledge” dropped to “Below Standards.” All other categories remained “Meets Standards,” as did his Overall rating. Many of Landes’ comments remained unchanged from 2004. Where there were changes, they were as follows: Knowledge: Jide has generally received acceptable levels of ranking on this factor due to knowledge and use of computer software related to GIS. However, that component of his work is minimal in nature. The majority of his work is with administration of the Zoning Ordinance through counter and commission work. Within the department, both with Urban and Senior Planners, he has the least amount of knowledge and understanding of the ordinance. He needs to have more in-depth knowledge of the ordinance and department operations related to planning and zoning, and serve as a resource to more junior staff. Lack of knowledge does not foster confidence in others. Customer Service/Relationships: Works well on team as participant, needs more experience as team leader. Has patience in dealing with customers but has difficulty in explaining zoning regulations to them. Again, he responded in writing to the evaluation, disputing the negative comments. The evaluation was not changed. Once again, he received a merit pay increase. In 2006, Giwa’s job performance was subjected to criticism and discipline. Landes had issued him a verbal reprimand on February 21, 2006 for deficient job performance, specifically for lack of quality, timeliness, and failure to follow directions regarding a particular assignment. Her criticism also went to his lack of timeliness on Historic Preservation cases and his failure to manage work contracted out by the City for graphic art services. Her meeting with Giwa was also attended by the Assistant Director of the Department, Ross Black, and union representatives Rosilie Walker and Rachel Cook. A written reprimand, issued on February 27, 2006, followed a meeting on February 24. The reprimand identified several problems that had arisen. First, he had failed to comply with Landes’ directive that he forward to her all emails sent to the Department that Giwa opened, reviewed and responded to. The purpose was so that she could evaluate the number and complexity of these emails so that she could determine the impact that this particular duty might be having on his ability to complete his other assignments. She found that he had been untruthful in reporting that he received and responded to 15-20 emails per day, when he actually received an average of one per day. He was also cited for failing to respond within 24 hours to a City Council member’s inquiry into a zoning complaint. She offered Giwa time off to “de-stress” and recommended that he use professional services to help with stress management. She also told him that the Human Resources Department was looking for a time management class for him to attend. Giwa did not mention any belief that his age, race or national origin factored into this decision. He instead acknowledged that he had exercised “wrong judgment.” Landes told him that a written reprimand was the second step in progressive discipline and that he needed to improve his job performance to avoid further discipline, including possible termination. On March 30, 2006, Giwa was given a one-day suspension for deficient job performance, specifically for his error in issuing a zoning permit for a garage that was larger than allowed by the zoning ordinance. His error was brought to a City Council member’s attention by a constituent, reflecting poorly on the Department and causing additional work for the Department. At the March 28 meeting when this error was discussed, Giwa did not mention any belief that discrimination was at the root of the discipline. He acknowledged making an error. Landes explained how serious the error was and noted that this was a third step in discipline and that further problems could result in further discipline, including termination. The October 2006 evaluation of Giwa reflects these multiple disciplinary actions: Landes rated him “Below Standards” in Knowledge, Quality of Work, Conformance to Proeedures/Regulations; his overall rating was also lowered to “Below Standards”. Her comments on the evaluation form were as follows: Knowledge: Continues to have a lesser level of knowledge related to job duties in the position of Senior Planner. Lack of knowledge or lack of application of knowledge resulted in a suspension during the rating period. Quantity: Contributes fair share of assigned work, but quality and knowledge issues preclude assignment of more complex work related to Senior status. Quality: Quality of work is not reflective of a Senior Urban Planner with 15 years’ experience. Received verbal reprimand for inadequate writing and lack of management of contract for services. Also received suspension for issuing a very simple zoning certificate in error. Has been provided extra training for writing skills, but does not produce the level of writing needed from the Senior Urban Planner position. Does however continue good record keeping and care with work. Work ethics: Continues with pride in work and dedication in achieving goals of department. Jide tries harder than anyone in the department to be successful. Conformance to Procedures/Regulations; Untimely processing of Historic Preservation cases contributed to a verbal reprimand. Initiative/Problem Solving Have seen improvement in leadership, needs to continue to focus on problem solving. Customer Service/Relationships Continues to work well on teams, have patience with customers, and needs improvement in verbal communication. The October 2006 evaluation resulted in an agreement between Landes and Giwa for a follow-up review on January 19, 2007. At that time, they agreed to review the “Below Standards” items to see if Giwa’s performance had improved and whether the “Below Standards” ratings could be amended upward. If so and if there were less than 3 “Below Standards” remaining, a pay increase would be considered. There were 4 items on the list for the January review. The first item involved accuracy in work product. Giwa was required to submit to Landes every Friday copies of his entire work product from the week. In addition to reviewing that work for accuracy, Landes would review it for compliance with standard business use of language, grammar and ease of understanding. His ability to meet deadlines would also be reviewed, and he was required to have no further disciplinary actions during the period. On November 15, 2006, Landes gave Giwa a 3 day suspension for conduct unbecoming a City employee and unprofessional behavior during an interaction with a citizen of the City. The citizen had complained to the City that Giwa had waved his arms, screamed and yelled accusations, and called the citizen a liar and a manipulator. After the complaint was made, Landes spoke with two people who had been present during the event as well as the citizen who complained (who signed an affidavit as to what had happened) and Giwa himself. She concluded that Giwa’s version of the events was not credible. At the November 6 meeting, she recommended that Giwa seek counseling for anger and stress management. He did not complain about discrimination. In the January 6, 2006 evaluation, Landes upgraded several of the “Below Standards” to “Meets Standards;” Knowledge, however, remained “Below Standards.” Her evaluation read: Knowledge: Continues to have a lesser level of knowledge related to job duties in the position of Senior Planner. Quantity: Continues to meet deadlines and complete fair share of work. Quality: Continues good record keeping and care with work. Continues toe need to improve on writing skills. Note; Improvement on multiple tickets outside of time period. Work Ethics: Continues with pride in work and dedication to achieving goals of department. Conformance to Procedures/Regulations; Continues to meet standards Initiative/Problem Solving Have seen improvement in leadership, needs to continue to focus on problem solving. Customer Service/Relationships Continues to work well on teams, have patience with customers, and need improvement in verbal communication. Her overall rating of Giwa improved to Meets Standards. At the top of the evaluation form, she added in all capital letters the following, “NOTE THAT ALL COMMENTS ARE FOR PERFORMANCE DURING THE EVALUATION PERIOD ONLY!”. On March 20, 2007, the garage at Giwa’s home was vandalized with racial graffiti. Landes allowed City employees to take time off work to clean off the graffiti. Giwa was again evaluated on August 29, 2007. He received “Below Standards” ratings for Knowledge, Quality, Initiative/Problem Solving and Customer Service/Relationships, as well as an overall rating of Below Standards. His evaluation read: Knowledge: Continues to have a lesser level of knowledge related to job duties in the position of Senior Planner, and an inability to accurately interpret and administer the zoning ordinance, both of which contribute to providing inaccurate answers to customers, either verbally, in written documents, or as part of a plan review. Does not seem to be able to identify the specific question/issue to be addressed, and then identify or formulate the steps necessary to successfully address the issue. Examples include inability to fill out Work Plan for HPC, lack of understanding on assignments regarding certificates of occupancy, and analysis of variance requests in HOP area. Quantity: Contributes fair share of assigned work, but quality and knowledge issues preclude assignment of more complex work related to Senior status and takes him more time to complete a task than others. An example would be the issue of being asked whether or not a methadone clinic was allowed at a particular site, an exercise that took nearly four hours to complete and should have taken approximately 20 minutes. Quality: Quality of work is not reflective of a Senior Urban Planner with 15 years’ experience. Writing skills are poor, files are improperly documented, and end product of work [verbal or written] is often incorrect in an environment where the public has reliance on our development approvals to expend significant resources. Inaccuracies include giving wrong information on timing of sign changes, issuing zoning certificate without checking for parking, providing wrong answer on the methadone issue noted above, not measuring accurately for a variance, incorrectly identifying the number of units in affidavit related to 114 NE Roanoke, approving a storage shed in a front yard, not fulling [sic] investigating whether a guest house was included in an application, not fully documenting or processing a complaint about the removal of a tree in a historic preservation district, and processing of certificate of occupancy for liquor/grocery store on Adams Street. Work Ethics: Jide ranks high in this area with the dictionary definition of work ethic; i.e., a belief in work as a moral good and if the factor would also include effort or commitment. However, he ranks lower with our guidelines, particularly for deficiencies in being able to work with little supervision, attention to detail, and contributing to the objectives of the department. Conformance to Procedures/Regulations Conforms to all attendance issues; needs increased knowledge and application of regulations and policies related to land development ordinances. Initiative/Problem Solving Is having difficulty in problem solving, primarily not understanding the problem to solve and the steps to implement to solve the problem. Has to be told in great detail how to go about project. Example would be the recent assignment for Certificates of Occupancy [C/O] in which he had to identify the eases that were back logged [lacking a sign off from PGM] for issuance of the C/0, note the reason for not having a sign off, inspect, and then take corrective action. Well into the process he had not looked at the stack of files in Inspections that were the backlog to find out very easily what the problems were. In another critical assignment for the office to analyze variances to determine if the new code would still require the requests to be processed as a variance, we met many times to go over the assignment, the purpose, and the process. Each time there was a clear lack of understanding of the purpose. During the 3rd or 4th time of receiving a report that was not addressing the purpose, Jide stated that he did not know that the purpose was to determine the impact of the new code on variances and whether or not additional code changes were needed ... even though he used that language in the beginning of his report. Landes stated in her Overall Comments: Coaching, changing job assignments, offering training, and strongly recommending counseling have not improved the performance to be of the caliber expected of a Senior Urban Planner with 15 years’ experience at the City of Peoria. I am not able to rely on the accuracy of work product generated. During the last evaluation there was agreement that if performance improved there would be a retroactive pay increase; that did not happen. This is the second annual revue with a below standard rating. A final performance improvement plan will be drafted within the next week to cover the next 60 days, and failure to raise ratings could result in termination. Giwa signed the evaluation, writing next to his signature, “I do not agree with this review.” About a month after this evaluation, on September 19, 2007, Giwa was given a five-day suspension for deficient job performance. Although the suspension was based in part on Giwa’s disciplinary history, the specific incident that triggered the suspension was Giwa’s involvement in a zoning inspection of a proposed site for a controversial liquor store. Giwa had originally stated that the site was in compliance with the City’s Zoning Code, when a follow up inspection showed that the site was not in compliance. Once the problem was identified, Giwa did nothing to communicate the existence of a problem to Landes; she learned of it from another Planner. After consultation with Giwa’s union representative, this discipline was imposed. On December 21, 2007, Giwa filed a charge of discrimination with the EEOC., alleging discrimination based on race, national origin and age, as well as retaliation. On February 22, 2008, Landes noticed a check on Giwa’s desk dated December 14, 2007. By City policy, checks payable to the City are to be deposited within 48 hours. Landes directed Giwa to deposit the check. He did not do so until March 4, 2008 because he was working on other things. The Peoria City Council’s agenda for its February 26, 2008, meeting included a request from the Central Illinois Landmarks Foundation that all demolitions in the City be pre-approved by the historic preservation commission. Giwa had authored a Department recommendation as to this request. Landes expected Giwa to be at the City Council meeting, based on a department policy requiring that anyone who writes a City Counsel communication attend the City Council meeting to make presentations, answer questions, or explain the communication. Landes expected Giwa to attend the meeting but he did not. The next day, he explained that he had forgotten to tell her that the matter would be deferred. According to Landes, normally when a matter is deferred the Department head confers with the city manager to determine if there is other appropriate action that can be taken instead of or in addition to deferral. Because Landes did not do so, it made her look bad with the city manager and caused her professional embarrassment. In February of 2008, Landes gave Giwa an assignment that involved obtaining information about fees that were charged for various types of projects and preparing a chart for the City Manager. It took Giwa 10 days to produce a completed project, and it contained numerous (according to Landes, 24) factual errors. Nearly all of the information Giwa needed for this chart was available within the Department. On March 6, 2008, Landes terminated Giwa’s employment, stating as her grounds unsatisfactory conduct/performance, failure to follow a department procedural directive, lack of timely communication to a supervisor concerning the status of an item pending before the City Council, failure to follow municipal policy about checks, and negligence in preparation of an official document for the City Manager. The two-year history of discipline was also cited. Giwa grieved that termination, and the union represented him in the arbitration proceedings. Nearly three years after his termination, the City and the Union entered into a settlement agreement that was approved by the arbitrator. Pursuant to this agreement, the City reinstated Giwa to his position on February 14, 2011, subject to a 6 month Performance Plan that laid out the responsibilities of the City and of Giwa. There was a relatively small financial amount paid to Giwa as well. Between 2004 and 2008, Landes issued a total of 25 disciplinary measures as to employees in her Department. Six of those were the disciplinary measures against Giwa that were discussed above. The other 19 were against other employees in the Department, with discipline ranging from verbal and written reprimands to suspensions ranging from one day to 30 days, not to mention (despite Giwa’s statement to the contrary) one other termination. Handwritten notes on the Chart indicate that the employees involved in 12 of the disciplinary actions were younger than Giwa and Caucasian; 4 were older and African American, 2 were younger and African American, and 1 was older and Caucasian. Giwa asserts that the ways Landes treated him and evaluated him “were clearly motived” (Response p. 26) by his race, national origin, and/or age and in retaliation for his disagreement with her evaluations of him. In support of that proposition, he cites to parts of the record that show his disagreement with her evaluations (Exh. A and Arb. Tr.), his accomplishments in the department (Exh. B), his version of the events leading up to his 3 day suspension (Exh. C); and unsworn “testimonies” of two persons about the problems between Landes and Giwa. (Exh. Z). There is nothing in any of these exhibits that references directly or obliquely his race, national origin or age. Giwa also asserts (without any citation to evidence in the record) that, after his termination, Landes reassigned to younger, Caucasian Urban Planners (Leah Allison and Josh Naven) his computer and census data analysis duties. It appears from other parts of the record, however, that this reassignment occurred while Giwa was still employed, and that this may have been part of the re-allocation of job duties that occurred as a result of the budget cuts in 2004. Giwa compares Landes’ negative evaluations of him not only with the positive evaluations he received from her predecessor but also with the positive evaluations Landes gave to other Planners in the Department. He summarizes his criticisms of Landes’ reviews by stating that his “laudable accomplishments” were never recognized in his reviews, while his faults were “always promptly noted in disproportionately damaging ways.” (Response p. 13). Plaintiff raises a number of other complaints about Landes. For example, he complains that she was “snobbish” and “hostile” towards him. He complains that despite his objections during the 1990’s, she hired Ross Black as her Assistant Director, even though he was not qualified for that position. One piece of evidence to which Giwa does cite is the testimony of Rosilee Walker during the arbitration hearing (Exh. LL). Walker was a union grievance steward who had been involved in a number of grievance proceedings with Giwa. She testified at the arbitration hearing in November of 2010 that Landes had been very condescending to Giwa and that she had called him a liar during one of those hearings. In addition, she related overhearing a particular statement made by Landes during 2005. Giwa had been on a trip to Nigeria. On his return, he was talking about his trip, and Walker testified that she overheard Landes say that Giwa “needed to go back and help his people.” (Plaintiffs Exh. LL, p. 179-80). V. DISCRIMINATION CLAIMS A. Introduction There is no question that, beginning when she became Director of the Department, Pat Landes was critical of Giwa’s performance. She gave him progressively negative evaluations — often worse than those she gave anyone else in the Department. She doled out discipline on numerous occasions. She reassigned his computer mapping duties, duties that he had worked very hard to learn and that he had performed well for years. She treated him with some level of impatience, perhaps even hostility. Ultimately she terminated his employment. This Court, however, does not sit in judgment of the wisdom or correctness of her decisions or of the interpersonal relationship between Giwa and Landes. Unless, that is, they were motivated by discriminatory intent. In his complaint, Giwa asserts that Landes was motivated by bias against him on the basis of age, race and national origin discrimination; he also alleges that she retaliated against him. The City’s motion for summary judgment asserts that there is insufficient evidence to support Giwa’s claim that Landes was motivated by improper intent or that she retaliated, regardless of whether Giwa is proceeding under the direct or the indirect method of proof. Giwa, who is proceeding pro se in this matter, has responded to the motion. B. Direct method Beginning with Giwa’s claim that he was subjected to materially adverse employment actions on the basis of his race, age or national origin, the City first asserts that his claim fails under the direct method, because he has no evidence — direct or circumstantial — that Giwa’s age, race or national origin was a motivating factor for anything that happened to him. That assertion is certainly correct as to Giwa’s claim of discrimination on the basis of age and race. There is absolutely nothing in the record that references either characteristic directly, and there is nothing in the record from which such discriminatory intent might be inferred. Landes disciplined employees regardless of race or age. There is no pattern evident from her disciplinary history. Job duties were reassigned within the Department due to budget cuts — a fact that Giwa has not rebutted in any way — and the fact that some of his duties went to younger or Caucasian employees is, without more, simply immaterial. The duties of everyone in the Department were shuffled, and cross training was expected, regardless of race or age. Giwa has, however, tendered one piece of direct evidence in support of his claim of discrimination on the basis of national origin, namely Landes’ June 2005 statement overheard by Rosilee Walker. However insensitive that remark was, it was made in a context wholly unrelated to any employment-related decision. It was also temporally unrelated to any adverse employment action. In other words, considering that the first actual discipline — a verbal reprimand' — of Giwa was not imposed until February of 2006, a statement such as the one reported by Rosilee Walker was too removed in time and in context to reveal anything of significance in this litigation. Landes’ statement need not simply be considered in isolation, however; it can and should also be considered along with the circumstantial evidence that has been presented. See, Nagle v. Village of Calumet Park, 554 F.3d 1106, 1114-15 (7th Cir.2009); Paz v. Wauconda Healthcare & Rehabilitation Centre, LLC, 464 F.3d 659, 666 (7th Cir.2006); Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir.2006). The direct and circumstantial evidence together must “suggest[ ] discrimination through a longer chain of inferences.” Atanus v. Perry, 520 F.3d 662, 671 (7th Cir.2008). The circumstantial evidence of discrimination that Giwa has put forward includes his evaluations, the reassignment of his computer-related duties, and the pattern of what he characterizes as disproportionate or unwarranted discipline. Beginning with his negative evaluations, Giwa asserts that they reveal Landes’ hostility towards him. With one possible exception, discussed below, these negative evaluations reveal absolutely nothing about discriminatory bias. What the evaluations reveal is a department head’s dressing down of an employee who is not performing his job at the level she expected. Giwa has pointed to nothing that might lead to a conclusion that discrimination played a part in Landes’ thought processes. It may be true that Landes’ predecessor perceived Giwa as doing a satisfactory job. That, however, simply means that, while his prior supervisor may have been satisfied, Landes was not. In fact, Landes’ evaluations were based on a different work environment. Giwa had, beginning in 2004, different job duties than he had had under Wayne Anthony. While he may well have been exceptionally talented at the GIS-related job duties, those duties were deemed “minimal” by Landes, and he was cautioned to broaden the depth and breadth of his knowledge. As the Seventh Circuit has held, prior evaluations do not create issues of fact when there have been “substantial alterations in the employee’s responsibilities” in the interim. Peele v. Country Mutual Insurance Co., 288 F.3d 319, 329 (7th Cir.2002). While he maintains that he had the requisite knowledge of the Zoning Ordinance, for example, his repeated errors belie that assertion, or at least demonstrate that he was unable to apply his knowledge, a comment made by Landes in one of the evaluations. Giwa also posits that his evaluations not only contained “disproportionate” criti cisms of his faults, but also failed to include any praise for his achievements. This, he claims, is different than the evaluations she gave to other Planners and Senior Planners. The comparisons lack any significance. Some Planners received “Below Standards” just as Giwa did. Others received “Meets Standards” as he did. Moreover, the evaluations of the other Planners often contained criticisms of shortcomings and directions in areas requiring improvement. That Landes saw more to praise in some of the other Planners and more to criticize in Giwa is not significant. Giwa’s reliance on his evaluations is based entirely on his belief that she misapprehended the underlying facts or that she failed to appreciate his contributions. If Landes, however, honestly believed certain facts, it matters not whether that version of the facts was correct or whether the employment action that resulted from those facts was wise, because this Court is not to sit in review of the action as some sort of “super-personnel department” but rather only reviews the actions of the employer to ascertain whether the actions violated Title VII. Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir.2000); Nawrot v. CPC International, 277 F.3d 896 (7th Cir.2002); EEOC v. Armstrong World Ind., 185 F.Supp.2d 932, 937 (C.D.Ill.2002). Here, Giwa has presented no evidence at all to counter Landes’ affidavit that sets forth her understanding of the facts on which she based her conclusion that Giwa was under-performing as a Senior Urban Planner or that he made mistakes that deserved a lower rating. The evaluations are not evidence of either race or age discrimination. The one possible exception to that conclusion, referred to above, is Landes’ criticism of Giwa’s written and oral language skills. At first blush, it might seem possible that this criticism arose from her attitude about his national origin, but that perception does not hold up on examination. Giwa’s job responsibilities prior to the budget cuts in 2004 were primarily computer related; it was only after budget cuts (which roughly coincided temporally with Anthony’s retirement and Landes’ promotion) that any shortcomings in Giwa’s language skills would have impacted his job performance. His ability to communicate orally only became crucial when he began having regular interactions at the Department’s public counter with citizens who came to the Department, or when he began having responsibilities related to Code enforcement that required communication with property owners during and after inspections. Similarly, prior to the budget cuts, he had not been required to serve on commissions and provide oral and written information to City Council members. While his language shortcomings may have been due to the fact that English was not his first language, which does not mean that requiring him to address those shortcomings was motivated by discriminatory intent. Giwa also argues that taking away his computer-related duties and reassigning those duties to “younger, Caucasian” Planners was evidence of age and race discrimination. There are two problems with this argument. First, this occurred at a time when all Planners were having their duties shuffled to cover the budget cuts. To infer discrimination in this case from that fact would be to speculate. Second, not everything that makes an employee unhappy is discriminatory. Nagle, 554 F.3d at 1115-16. Reassignment to what an employee subjectively perceives as “less desirable” duties does not constitute differential treatment or amount to an adverse employment action. Id. at 1117. I conclude that Giwa has failed to present any circumstantial evidence whatsoever of discriminatory intent to supplement that single piece of direct evidence— Landes’ statement from June of 2005. The Seventh Circuit has made it clear that a few insensitive remarks are not sufficient to raise an inference of discrimination. See, for example, Blasdel v. Northwestern University, 687 F.3d 813 (7th Cir.2012) (a “handful of stray remarks” insufficient); Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772, 781-82 (7th Cir.2007) (“stray remarks” unrelated to employment decision at issue insufficient); Merillat v. Metal Spinners Inc., 470 F.3d 685, 694 (7th Cir.2006) (“isolated comments” insufficient). In this case, there is only one remark; if multiple remarks are insufficient; a single l’emark is even less notable. No reasonable jury could infer that Landes made her decisions about Giwa based on any hostility towards his race, age or national origin. There is simply too much other documentation — largely undisputed — that reveals errors, lapses in judgment, failures to comply with rules and policies, and other faults in Giwa’s job performance. The “scintilla of evidence” put forward by Giwa is insufficient to defeat summary judgment on his discrimination claims. No fact finder could reasonably conclude that Landes was more likely than not motivated by a discriminatory purpose. C. Indirect Method The City also argues that Giwa cannot establish a prima facie case of discrimination using the McDonnell Douglas analysis. There are four elements to a prima facie case of discrimination, one of which is evidence that the plaintiff was meeting the employer’s legitimate performance expectations. The City asserts first that Plaintiff has no evidence that his performance rose to that level. In Peele, 288 F.3d 319, the record contained evidence of repeated warnings by the employer that the plaintiffs job performance was unacceptable. She received nine critical written evaluations informing her of the specific deficiencies in her performance, but she filed to correct them. The Court of Appeals commented that this evidence of “deteriorating job performance” was “overwhelming.” Id. at 328. In addition, the Court pointed out that the issue of performance is not past performance but rather performance at the time of termination. Id. at 329. Finally, the Court declined to find that coworker statements indicating that the plaintiffs job performance was satisfactory were insufficient to create a factual dispute as to this issue. Id. As in Peele, Giwa’s evidence that he was performing his job duties adequately is not enough to create a factual dispute as to this issue. His supervisor documented his inadequate and declining performance. His evaluations repeatedly cautioned him about his areas of weakness. Rather than taking positive steps to improve, he repeatedly disagreed with her conclusions. Her criticisms were perfectly legitimate areas for comment by a supervisor, having to do with matters such as timeliness, compliance with Department policies and rules, completion of assignments and the like. For the most part, Giwa does not deny his errors, untimeliness, failure to follow regulations or complete assignments, and the other facts underlying his negative evaluations and disciplines; he simply tries to explain them away. While some of his co-workers undoubtedly thought highly of him, their statements about his job performance carry no weight on this issue. Peele also makes clear that even legitimate expectations can be applied in a dis criminatory fashion. Id. For example, if there is evidence that the employer applied those expectations to Caucasian or younger employees in a more favorable manner, that is also a violation of Title VII. In that case, the McDonnell Douglas factors merge, and the analysis proceeds directly to pretext. Id. The Court explained that this requires identifying someone who is directly comparable to the plaintiff in all material respects, looking at factors pertinent to the individual case. Id. at 330. Here, those factors would be the disciplinary records and the evaluation standards. With respect to the disciplinary claim — the claim that plaintiff was disciplined more harshly than younger Caucasians — a plaintiff must show that he is similarly situated with respect to performance, qualifications, and conduct. This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them. Id., quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir2000). Giwa has not made such a showing. Although he provides the discipline chart, he not only fails to give any details about who these people are — are they Planners? Support staff? — Or what the discipline was for. In fact, he expressly denies (with no explanation) that they are comparable to him. A similar result is reached for the evaluations, although for different reasons. Giwa has submitted several other Planners’ evaluations. Some of them, it is true, are glowing. Others, however, are not. Those that are not contain similar criticisms about job performance as did Giwa’s own evaluations. He provides no information about which Planner is what race or what age. Moreover, Landes made it clear that she was holding him to the standards applicable to his position — Senior Urban Planner with 15-18 years of experience — so comparing his performance or his reviews with less senior Urban Planners would not be a meaningful comparison. Altogether, a comparison of Giwa’s evaluations to those of the other Planners in the Department does not reveal any discriminatory application of the ratings standards. Finally, because the bulk of Giwa’s evidence and argument consists of his own opinions about his performance, that issue should be confronted. His own opinion about how he did the job is “beside the point,” Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1055 (7th Cir.2006), and while he may have created factual disputes about some of the events leading up to the various criticisms of his performance, those disputes are not material, because the relevant question is whether Landes honestly believed the facts to be as they were stated in the documents she created. Nothing Giwa has tendered to the Court calls into question her honesty in the slightest. Whether it is because Giwa’s evidence falls far short on the issue of his job performance or because he has no evidence of pretext, he has failed to rebut the City’s motion for summary judgment as to discrimination. D. Retaliation The City’s motion does not address Giwa’s claim that he was subjected to retaliation in violation of Title VII. The Court sua sponte considers this claim in light of the apparent problems of proof discussed above. Under Stone v. Indianapolis, 281 F.3d 640 (7th Cir.2002), as clarified by Sylvester v. SOS Children’s Villages of Illinois, 453 F.3d 900, 902 (7th Cir.2006), there are two analytically distinct ways for a plaintiff to proceed in a retaliation claim. As was true for the discrimination claims, these two distinct methods are the direct method of proof and the indirect method of proof. The indirect method requires the plaintiff to show that after engaging in protected activity only he, and not any similarly situated employee who did not engage in protected activity, was subjected to an adverse employment action, even though he was performing his job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents un-rebutted evidence of a non-invidious reason for the adverse action, he is entitled to summary judgment. Otherwise there must be a trial. Stone, 281 F.3d at 644. It is apparent from the outset that Giwa’s evidence in support of the indirect McDonnell Douglas analysis fails for the same reason that it failed in his discrimination claims: he simply cannot show that he was performing his job in a satisfactory manner, and he cannot show pretext. See, for example, Nicholson v. Pulte Homes Corp., 690 F.3d 819, 828-29 (7th Cir.2012)(FMLA). A more detailed analysis is not necessary; the evidence and its shortcomings are identical to what was discussed above. Proceeding to the direct method of proving retaliation, such claims must be supported by evidence that the plaintiff engaged in protected activity and as a result suffered the adverse employment action of which he complains. Sylvester, 453 F.3d at 902. Here, there is no evidence that Giwa engaged in any actionable protected conduct by mentioning discrimination, age, race or national origin to Landes (or anyone above her) until he filed the EEO charge on December 21, 2007. (See Amended Complaint (Doc. # 13)). Hence, nothing Landes did before that date can be considered retaliatory. Giwa filed his EEO charge, which was clearly protected activity, about 2)6 months before his termination on March 6, 2008. The Seventh Circuit has repeatedly held that even relatively short gaps between protected activity and an adverse job action cannot, without more, support a claim of retaliation. See, Jones v. A.W. Holdings LLC, 484 Fed.Appx. 44, 49 (7th Cir.2012) (two months); Turner v. The Saloon, Ltd., 595 F.3d 679, 690 (7th Cir.2010) (two months); Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir.2008) (seven weeks); Tomanovich v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir.2006) (two months); EEOC v. Yellow Freight System, Inc., 253 F.3d 943, 952-53 (7th Cir.2001) (en banc) (six weeks). The timing of Landes’ action of terminating Giwa’s employment is not enough, without more, to establish the requisite causal connection between that act and the filing of his charge. Here, there is no more. The history of Giwa’s slipping job performance and the need for repeated discipline led inexorably to Landes’ action. Each time he was disciplined, he was cautioned that this was a step in progressive discipline that could lead to further discipline; eventually those cautions included the warning that his continued employment was at risk. Yet in February of 2008 he violated three different Department policies, and made numerous factual errors in a report that had been requested by the City Manager— Landes’ boss. Although he complained about these policies and the job assignment, he had no justification for his con duct. At the time, he was on a performance improvement plan. In light of this history, the questionable temporal proximity falls far short. Most of what Giwa has described in his complaint and in his response to the pending motion is not retaliation at all. The types of “retaliation” that he complains about is retaliation for complaining about his negative evaluations or his discipline or having his duties re-assigned. Such conduct is not actionable protected activity. See, Wojtanek v. Pactiv LLC, 492 Fed.Appx. 650, 653 (7th Cir.2012). Retaliation as a cause of action must be based on protected activity, such as complaining about discrimination or threatening to file a charge of discrimination. VI. CONCLUSION This discussion began with the comment that Landes had been critical of Giwa’s performance almost from the day she began in her position as Director of the Department. But Landes had been in that Department for some time before she was promoted to that position, predating Giwa’s hire into the Department. At the time Giwa was hired, Landes had had a good opinion of him and had in fact recommended that he be hired, surely reflecting no predisposition of bias. Her opinion of Giwa changed as they worked together, and it continued to worsen as he refused to make the improvements that she, as. his supervisor, required him to make. These improvements directly related to his job performance, and her criticisms of his deficiencies reflected standards to which she held other Senior Urban Planners as well. Her very first evaluation of him contained the germs of every subsequent evaluation, and those subsequent evaluations reflected the shortcomings in his job performance that had resulted in discipline. Giwa’s evidence shows little more than an employee disgruntled because his job duties were changing. It is only in hindsight that he has asserted any form of discrimination or retaliation, and his efforts to show that the discipline imposed on him was disproportionate or unfair or retaliatory are to no avail. The City’s motion for summary judgment is therefore granted as to the discrimination claims, and the Court sua sponte grants summary judgment as to the retaliation claim. Clerk is directed to enter judgment in favor of Defendants and against the Plaintiff. This case is terminated.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS KAREN E. SCHREIER, District Judge. Defendant, Delta Air Lines, Inc., moves the court to dismiss Mark Benedetto’s complaint in its entirety. Docket 11. Benedetto alleges claims for negligence, breach of contract, breach of a duty of good faith and fair dealing, and punitive damages. Docket 1-1. Delta argues that Benedetto’s claims for negligence and breach of a duty of good faith and fair dealing are preempted under the Airline Deregulation Act of 1978(ADA), or alternatively, fail to state actionable claims. Delta also argues that Benedetto’s claims for breach of contract and punitive damages fail to state claims upon which relief can be granted. Benedetto opposes the motion. For the following reasons, Delta’s motion is granted in part and denied in part. FACTUAL BACKGROUND The pertinent facts, according to the complaint (Docket 1-1), are as follows: Mark Benedetto is a resident of South Dakota. Delta Air Lines, Inc. is a Delaware corporation and has its principal office in Atlanta, Georgia. Delta is authorized to and does transact business in South Dakota. Benedetto and his wife, Gail Benedetto, purchased round trip tickets from Delta to travel from Sioux Falls Regional Airport in Sioux Falls, South Dakota to LaGuardia Airport in New York City, New York and then back to Sioux Falls. Benedetto’s initial flight to New York from Sioux Falls took off on September 28, 2011. As required by Delta and the Transportation Security Administration (TSA), Benedetto declared to a Delta ticket agent during his check-in process that he was transporting a pistol in his checked luggage. Following the ticket agent’s instructions, Benedetto placed a red tag into his luggage and was allowed to check in his pistol with his luggage. Delta offered no warning to Benedetto regarding New York’s gun laws. Similarly, Delta did not disclose to Benedetto its policy that required ticket agents at LaGuardia Airport to report anyone with a firearm to the Port Authority of New York-New Jersey. Benedetto then boarded his plane and flew to New York. On October 2, 2011, Benedetto arrived at LaGuardia Airport to catch his return flight to Sioux Falls. Benedetto again notified a Delta ticket agent that he was traveling with a pistol in his checked luggage. He was again given a red tag to place in his luggage, which he did. The Delta ticket agent then notified the Port Authority Police that there was a passenger who had declared a firearm. Benedetto was arrested by the Port Authority Police for illegal possession of a firearm. After this arrest, Benedetto was turned over to the New York City Police, transported to the Queens Boulevard Precinct, and jailed overnight. Benedetto was charged with a handgun violation and was required to return to New York for legal proceedings after his release. Benedetto alleges that he was subjected to physical, emotional, and verbal abuse, reasonably feared for his safety, and suffered severe emotional distress while in police custody. He also alleges that he suffered an injury to his shoulder when a police officer handcuffed him. Benedetto brought this action against Delta on May 24, 2012, in the Second Judicial Circuit of South Dakota. Subsequently, the suit was removed to this court. STANDARD OF REVIEW A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to review the complaint as a whole to determine whether the plaintiff has stated a claim upon which relief can be granted. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 595 (8th Cir.2009). The facts alleged in the complaint must be considered true, and all inferences must be viewed in favor of the nonmoving party. Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir.2004). “[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). “A complaint states a plausible claim for relief if its ‘factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). DISCUSSION 1. Negligence Benedetto alleges in his negligence claim that Delta owed him a duty to warn him of New York’s gun laws and to warn him of Delta’s policy at LaGuardia that requires its ticket agents to notify Port Authority Policy when a passenger declares a firearm. Delta argues that Benedetto’s negligence claim must be dismissed because it is preempted by the ADA. The ADA was passed to promote “maximum reliance on competitive market forces” in order to “further efficiency, innovation, and low prices as well as variety and quality of air transportation services.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (citation omitted). Included in the ADA is an express preemption clause that prohibits states from “enacting] or enforcpng] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier[.]” 49 U.S.C. § 41713(b)(1). Congress’s intent was to “ensure that the States would not undo federal deregulation with regulation of their own.” Morales, 504 U.S. at 378, 112 S.Ct. 2031. The preemption clause is read “to mean ‘States may not seek to impose their own public policies or theories of competition or regulation on the operations of an air carrier.’ ” Botz v. Omni Air Int’l, 286 F.3d 488, 494 (8th Cir.2002) (quoting Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 229 n. 5, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995)). The laws that are “forbidden” because of the preemption clause are those with a “significant impact” on carrier prices, routes, or services. Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 375, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) (citing Morales, 504 U.S. at 388, 390, 112 S.Ct. 2031). Laws that affect prices, routes, or services in “too tenuous, remote or peripheral a manner,” however, are not preempted by the ADA. Id. (citing Morales, 504 U.S. at 390, 112 S.Ct. 2031). The Eighth Circuit Court of Appeals has analyzed the language found in the preemption clause of the ADA on two separate occasions. In Botz v. Omni Air International, 286 F.3d 488 (8th Cir.2002), the court held that the ADA preempted application of a Minnesota whistleblower statute. Because the statute gave flight attendants the ability to refuse assignments, the court determined that the statute had a “forbidden connection with air-carrier services.” Id. at 494. Although the statute only related to air-carrier services “indirectly,” it was Minnesota’s attempt to impose its “own public policies or regulatory theories on an air carrier’s operations, an imposition that Congress intended the ADA to pre-empt.” Id. at 495. In Data Manufacturing, Inc. v. United Parcel Service, Inc., 557 F.3d 849 (8th Cir.2009), the Eighth Circuit Court of Appeals held that the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 14501(c)(1) (FAAAA), preempted a plaintiffs claims for fraudulent misrepresentation, negligent misrepresentation, and money had and received. Before delving into its preemption analysis, the court noted that the FAAAA preemption language “reads very much like” the preemption language found in the ADA. Id. at 853. The court noted that because of the nearly identical language, “the preemption clauses in the ADA and FAAAA are identical in scope.” Id. at 853 n. 2 (citing Rowe, 552 U.S. at 370, 128 S.Ct. 989). The Eighth Circuit applied a two-part test in determining that the FAAAA preempted the plaintiffs claims. The court specified that the claims were preempted if they (1) related to a price, route, or service of a carrier, and (2) derived from the enactment or enforcement of state law. Id. at 852. After noting that the Supreme Court has “broadly interpreted the phrase ‘relating to’ as encompassing all state laws having any connection with or reference to the carrier’s rates, routes, or services,” the court concluded that a carrier’s $10 billing charge was part of the carrier’s “operations” and thus related to the carrier’s prices and services. Id. (“While the work to re-bill may have been de minimus, it was still part of the UPS accounting department’s operations to do so.”). Turning to the second part of the test, the court concluded that all of the plaintiffs claims, with the exception of the contract claim, derived from the enforcement of state law. Id. at 853. The plaintiffs claims for fraudulent misrepresentation, negligent misrepresentation, and money had and received “all depended upon and are associated with the state of Missouri, through its common law, guiding and policing UPS’s economic policies.” Id. The court noted that the claims “arise outside of the four corners of the contract between UPS and DMI, and are claims that are enlarged or enhanced, and indeed, are dependent upon, Missouri state laws and polices. Accordingly, these claims are preempted.” Id. The Eighth Circuit next analyzed the plaintiffs contract claim to determine if it was preempted. The contract claim alleged that the plaintiff “did not agree to pay the fee, and it was a penalty, unlawful, and void as against public policy.” Id. at 854. The court asserted that the “determination of whether such a fee is a penalty, unlawful and against Missouri’s public policy, by definition, requires the court to apply Missouri law.” Id. Therefore, the part of the contract claim that alleged that the fee was a penalty, unlawful, and void as against public policy was preempted. Id. The only claim that was not preempted was the plaintiffs contract claim, which alleged that the plaintiff did not agree to pay the fee. Id. In accordance with United States Supreme Court and Eighth Circuit precedent, the court must determine whether Benedetto’s negligence claim is related to a price, route, or service of Delta. The negligence claim is “related to” if it has any connection with or reference to Delta’s rates, routes, or services. Id. at 852 (citing Morales, 504 U.S. at 383-84, 112 S.Ct. 2031). Benedetto alleges that “Delta owed its passengers a duty to warn him of dangerous conditions of which he would not otherwise reasonably be aware;” “Delta breached its duty ... to warn of the restrictive firearms laws in the State of New York;” and “Delta breached its duty ... to warn Benedetto of its own policy that required that he be reported to the Port Authority Police[.]” Docket 1-1 at ¶¶ 20, 22-23. Put simply, Benedetto complains about the services that Delta offers. First, as part of the services that Delta offers, Benedetto argues that Delta should warn its passengers of the gun laws of destination states. Second, as part of the services it offers, Benedetto argues that Delta should either not notify Port Authority Police that a passenger has declared a firearm or warn passengers that it is going to do so. Benedetto’s negligence claim is entirely centered on the services that Delta offers. Thus, the first element of the preemption test is satisfied. Next, the court must determine whether Benedetto’s negligence claim derives from the enactment or enforcement of state law. A claim derives from the enactment or enforcement of state law if it “serves as a means to guide and police the ... practices of the airlines rather than simply giving effect to bargains offered by the airlines and accepted by airline customers.” Data Mfg., Inc., 557 F.3d at 853 (citing Wolens, 513 U.S. at 228, 115 S.Ct. 817). Consistent with United States Supreme Court and Eighth Circuit precedent, the court concludes that Benedetto’s negligence claim depends upon and is associated with state common law. The ADA precludes “states from ‘imposing their own public policies or theories of competition or regulation on the operations’ of a carrier.” Id. (quoting Wolens, 513 U.S. at 229 n. 5, 115 S.Ct. 817). If Benedetto’s negligence claim is allowed to proceed, state negligence law would inevitably guide and police the services that Delta and all other airlines offer. Through its negligence law, states would regulate what airlines must warn of and how airlines handle passengers traveling with firearms. Such guiding and policing of the airline industry by states is precluded under the ADA, and thus, Benedetto’s negligence claim is preempted. II. Breach of Contract and Breach of Duty of Good Faith and Fair Dealing A. Breach of Contract Because the parties agree that the ADA does not preempt Benedetto’s breach of contract claim, the court must first address the inescapable choice of law question before examining the breach of contract claim. A federal district court sitting in diversity applies the choice of law rules of the state in which it sits. Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir.2007). The court, however, must first determine whether a conflict exists before applying a state’s choice of law rules. Id. The court concludes that the outcome here would be the same under both South Dakota and New York law, and therefore, no conflict exists. And neither party has argued differently. Delta argues that Benedetto’s contract claim fails to state a claim because it fails to adequately allege the terms of a contract. To establish breach of contract under South Dakota law, a plaintiff must show (1) an enforceable promise, (2) breach of the promise, and (3) resulting damages. Weitzel v. Sioux Valley Heart Partners, 714 N.W.2d 884, 894 (S.D.2006). To establish breach of contract under New York law, a plaintiff must show (1) the existence of a contract, (2) plaintiffs performance under the contract, (3) defendant’s breach of that contract, and (4) resulting damages. JP Morgan Chase v. J.H. Elec. of New York, Inc., 69 A.D.3d 802, 893 N.Y.S.2d 237, 239 (2010). Benedetto alleges in his complaint that “Delta agreed to transport Benedetto from LaGuardia Airport to Sioux Falls, South Dakota on October 2, 2012.” Docket 1-1 ¶ 30. The complaint also asserts that “Delta failed to transport Benedetto from LaGuardia Airport to Sioux Falls, South Dakota on October 2, 2012,” and Delta “breached its contractual obligation” because of this failure. Id. at ¶ 31, 33. Benedetto further alleges that he “purchased round trip tickets from Delta to travel from Sioux Falls Regional Airport in Sioux Falls, South Dakota to La Guardia Airport in New York City, New York and back.” Id. at ¶ 3. These factual assertions, taken as true, are enough to establish that there existed a contract (or enforceable promise), that Benedetto performed under the contract, and that Delta breached the contract. Furthermore, Benedetto has alleged various damages that he claims were a direct result of Delta’s breach. Under South Dakota law, a plaintiff in a breach of contract action is entitled to recover “all his detriment proximately caused by the breach, not exceeding the amount he would have gained by full performance.” Bad Wound v. Lakota Cmty. Homes, Inc., 603 N.W.2d 723, 725 (S.D.1999). Under New York law, a plaintiff is entitled to recover “consequential contract damages which are the natural and probable consequence of the breach.” Reads Co., LLC v. Katz, 72 A.D.3d 1054, 900 N.Y.S.2d 131, 133 (2010). Due to the nature of a Rule 12(b)(6) motion and the factual constraints that go with it, the court cannot determine at this time whether the alleged damages were “proximately caused by the breach” or “the natural and probable consequence” of the alleged breach. Benedetto need only allege damages resulted from the breach to overcome Delta’s Rule 12(b)(6) motion to dismiss; he need not legally prove them. Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir.1997). Although it may be difficult for Benedetto to prevail on some of his alleged damages, his complaint will not be dismissed “merely because the court doubts that [he] will be able to prove all of the necessary factual allegations.” Id. Thus, the court concludes that Benedetto adequately pleaded a claim for breach of contract. Delta also argues that Benedetto’s breach of contract claim is barred by the doctrine of impossibility. Under South Dakota law, the doctrine of impossibility, also referred to as commercial frustration, “requires proof of three elements: (1) the purpose that is frustrated must have been a principle purpose of that party in making the contract; (2) the frustration must be substantial; and (3) the non-occurrence of the frustrating event must have been a basic assumption on which the contract was made.” Mueller v. Cedar Shore Resort, Inc., 643 N.W.2d 56, 69 (S.D.2002). Under New York law, the “law of impossibility provides that performance of a contract will be excused if such performance is rendered impossible by intervening governmental activities, but only if those activities are unforeseeable.” A & S Transp. Co. v. County of Nassau, 154 A.D.2d 456, 546 N.Y.S.2d 109, 109 (1989). Because this is a Rule 12(b)(6) motion to dismiss, the court is again unable to make a legal determination at this time. The court cannot conclude, without additional facts, whether Benedetto’s arrest was either “a basic assumption on which the contract was made” or “foreseeable.” Thus, Delta may not use the doctrine of impossibility to defeat Benedetto’s breach of contract claim at this stage of the litigation with the facts as pleaded. B. Breach of Duty of Good Faith and Fair Dealing Delta argues that Benedetto’s claim for breach of duty of good faith and fair dealing is preempted by the ADA. Benedetto responds by claiming that his duty of good faith claim is not a separate tort action but part of his breach of contract claim. Because the duty of good faith claim is part of his contract claim, Benedetto argues that it is not preempted under the Wolens analysis. See Wolens, 513 U.S. at 228-33, 115 S.Ct. 817 (holding that some contract claims are not preempted because there is “no enlargement or enhancement based on state laws or policies external to the agreement”); but see Wolens, 513 U.S. at 233 n. 8, 115 S.Ct. 817 (supporting the proposition that some state law principles of contract law “might well be preempted to the extent they seek to effectuate the State’s public policies, rather than the intent of the parties”). In Data Manufacturing, the Eighth Circuit held that claims that “arise outside of the four corners of the contract” and that are enlarged, enhanced and dependent upon state laws and policies are preempted by the ADA. 557 F.3d at 853. The court found that the parts of the plaintiffs breach of contract cause of action that alleged the contract created a penalty, was unlawful, and was against public policy were all preempted because they required application of state law. Id. at 854 (“The determination of whether such a fee is a penalty, unlawful and against Missouri’s public policy, by definition, requires the court to apply Missouri law.”). Because these claims required application of state law, the court found they derived from the enactment or enforcement of state law in violation of the ADA’s preemption clause. See id. at 854 n. 3 (“[Plaintiff] cannot argue that the fee is too unconscionably high, a penalty, or void, but it can proceed with its claim that it did not agree to the fee at all.”). Similar reasoning applies here. As the basis for his duty of good faith claim, Benedetto alleges that “[n]o reasonable basis exists for Delta’s failure to fulfill its contractual obligations, ... and Delta knew or should have known that no reasonable] basis exists for its failure[J” Docket 1-1 at ¶ 41. Determining whether a “reasonable basis exists” or whether “Delta knew or should have known that no reasonable basis exists” will certainly require application of state law. The claim is enlarged and enhanced based on state laws and policies external to the parties’ agreement. See Wolens, 513 U.S. at 233, 115 S.Ct. 817 (“This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach-of-contract actions, to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.”). Accordingly, Benedetto’s claim for breach of duty of good faith and fair dealing is preempted under the ADA, regardless of whether it takes the form of a tort or contract claim. III. Punitive Damages Lastly, Delta argues that Benedetto’s claim for punitive damages lacks merit. As Benedetto correctly notes, however, punitive damages are a form of relief and not a “claim” that is subject to a Rule 12(b)(6) motion to dismiss. See Security Nat’l Bank of Sioux City, Iowa v. Abbott Laboratories, Civ. No. 11-4017, 2012 WL 327863, at *21 (N.D.Iowa Feb. 1, 2012) (“[P]unitive damages are not a cause of action, and as such, so long as there are surviving claims, they are not subject to a motion to dismiss.”). Thus, the court will not address the issue of punitive damages at this time. CONCLUSION Benedetto’s claims for negligence and breach of duty of good faith and fair dealing are preempted by the ADA. Separately, Benedetto properly pleaded the elements of his contract claim to put Delta on notice of his claim. Lastly, punitive damages are not a cause of action and thus are not considered under a motion to dismiss, Accordingly, it is ORDERED that defendant’s motion to dismiss plaintiffs claims for negligence and breach of duty of good faith and fair dealing (Docket 11) is granted. IT IS FURTHER ORDERED that defendant’s motion to dismiss plaintiffs claim for breach of contract (Docket 11) is denied. . Benedetto has a permit to carry a concealed weapon in South Dakota. . Treating the preemption clauses in an identical fashion is bolstered by the appellate court’s reliance on Morales and Wolens in its analysis of the FAAAA. . The court noted that the plaintiff "cannot argue that the fee is too unconscionably high, a penalty, or void, but it can proceed with its claim that it did not agree to the fee at all.” Data Mfg., Inc., 557 F.3d at 854 n. 3. . The court’s holding is limited to the specific negligence claim pleaded by Benedetto. The court is not proffering any opinion with respect to “negligence” claims in general. . Benedetto's brief implicitly recognizes that a good faith claim will require application of state law in such a manner to incorporate state public policies by noting that a "majority of American jurisdictions — including South Dakota — recognize a duty to perform a contract in good faith.” Docket 15 at 30. If a "majority” of jurisdictions recognize such a claim, then a minority of jurisdictions do not. Naturally, it is a state's public policy determination that determines whether the claim is recognized.

MEMORANDUM OPINION JAMES C. CACHERIS, District Judge. This matter is before the Court on the “Motion to Dismiss and Motion for Summary Judgment” (the “Motion to Dismiss and for Summary Judgment”) [Dkts. 8, 13] by Defendants Patrick R. Donahoe, Postmaster General, United States Postal Service; Dr. Francis Collins, Director, National Institute of Health; and Arne Duncan, Secretary of Education, United States Department of Education (collectively “Defendants”). Also before the Court is Defendants’ “Motion to Strike Plaintiffs Response in Opposition to Defendants’ Motion to Dismiss and Motion for Summary Judgment” (the “Motion to Strike”) [Dkt. 16] and Plaintiff Kenneth Smith’s “Motion for Settlement No Legal Response From Defendant” (the “Motion for Settlement”) [Dkt. 15]. For the following reasons, the Court will grant Defendants’ Motion to Dismiss and for Summary Judgment, as well as grant Defendants’ Motion to Strike and deny Plaintiffs Motion for Settlement. I. Background A. Factual Background Pro se Plaintiff Kenneth Smith is a federal employee who works for the United States Postal Service (“USPS”). (Am. Compl. [Dkt. 2] ¶ 1, 14, 15.) In addition to his employment at USPS, Plaintiff has conducted his own independent genetic research and published a book which details this research and his conclusions on “how DNA really works.” (Id. ¶ 15.) On April 2, 2012, Plaintiff placed an advertisement containing information about his book and his religious and genetic theory on the USPS’s bulletin board. (Id. ¶ 16) Plaintiff alleges it was soon removed by an unspecified person at an unspecified time, then replaced by him, and then removed again by an unknown person. (Id.) On April 19, 2012, Plaintiffs supervisors told him that he was not allowed to continue posting this advertisement on the bulletin board and informed Plaintiff of customers’ complaints about it being offensive. (Id. ¶ 17.) Plaintiff also alleges that the National Institute of Health (“NIH”) and the United States Department of Education (“USDE”) improperly support “a biased result towards atheist opinion,” a “scientific religion,” and evolution in their testing and public school instruction. (Id. ¶ 20-29.) Relatedly, Plaintiff asserts that these agencies have failed to consider and/or promote in testing and public school instruction his theory on “how DNA works” based on “factual genetic information supporting creationism” and “a Human Genetic Normal Species,” thus “blocking Plaintiff from possible untold revenue return.” (Id.) B. Procedural Background On May 12, 2012, Plaintiff filed an administrative complaint with the USPS alleging employment discrimination based on race, religion and genetic information which he alleged occurred on April 19, 2012 when postal officials informed him that he no longer could post his advertisements about his religious and genetic research, theory, and book. (Exhibit A to Defendants’ Memorandum in Support of Motion to Dismiss and for Summary Judgment (“Def. Ex. A”) [Dkt. 9-1] at 1.) On May 21, 2012, the USPS construed this claim as an amendment of another formal complaint which Plaintiff had filed on March 12, 2012 and dismissed his com plaint on this issue, concluding that he had failed to state a claim because he was not adversely affected with respect to a term, condition, or privilege of his employment when postal officials told him he could no longer post his advertisement on the bulletin board. (Id. at 2-3.) On June 19, 2012, after the investigation was completed on the remaining issues in his administrative complaint, Plaintiff requested a hearing with an Administrative Judge of the Equal Employment Opportunity Commission (“EEOC”) on all of his claims.” (Def. Ex. B [Dkt. 9-2] at 3.) As of the date of Plaintiffs filing his Complaint in this Court, and as of the present, a hearing with an Administrative Judge had not occurred and the USPS had not issued a final agency decision. On July 13, 2012, Plaintiff filed a Complaint in this Court against Patrick R. Donahoe, Postmaster General, USPS; Dr. Francis Collins, Director, NIH; and Arne Duncan, Secretary of Education, USDE, bringing suit against these federal agencies and the named officers in their official capacity. [Dkt. 1.] On August 3, 2012, Plaintiff filed an essentially identical Amended Complaint against the same parties, only adding a Certificate of Service. [Dkt. 2.] Plaintiff brings five causes of action against all defendants: (1) a First Amendment retaliation claim under 42 U.S.C. § 1983 (Count I); (2) a First Amendment viewpoint discrimination claim under 42 U.S.C. § 1983 (Count II); a Fourteenth Amendment equal protection claim under 42 U.S.C. § 1983 (Count III); a Title VII religious discrimination claim under 42 U.S.C. § 2000e (Count IV); and a Title II Genetic Information Non-discrimination Act claim purportedly under 42 U.S.C. § 2000e-16c(a). (Id. ¶ 30-54.) On November 20, 2012, Defendants filed their Motion to Dismiss and for Summary Judgment [Dkts. 8, 13], accompanying memorandum of law [Dkt. 9], and proper Roseboro notice [Dkt. 10]. Plaintiffs opposition brief was due on December 11, 2012. Plaintiff untimely filed his opposition on December 26, 2012. [Dkt. 14.] On December 31, 2012, Defendants filed their Motion to Strike Plaintiffs untimely opposition brief. [Dkt. 16.] Defendants replied to Plaintiffs opposition brief on January 2, 2013. [Dkt. 17.]. On December 26, 2012, Plaintiff filed a Motion for Settlement No Legal Response From Defendant (the “Motion for Settlement”). [Dkt. 15.] Defendants filed their opposition on January 2, 2013. [Dkt. 18.]. Defendants’ Motion to Dismiss and for Summary Judgment, Defendants’ Motion to Strike, and Plaintiffs Motion for Settlement are before the Court. II. Standard of Review A. Jurisdiction Pursuant to Rule 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Defendants may attack subject matter jurisdiction in one of two ways. First, defendants may contend that the complaint fails to allege facts upon which subject matter jurisdiction may be based. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); King v. Riverside Reg’l Med. Ctr., 211 F.Supp.2d 779, 780 (E.D.Va.2002). In such instances, all facts alleged in the complaint are presumed to be true. Adams, 697 F.2d at 1219; Virginia v. United States, 926 F.Supp. 537, 540 (E.D.Va.1995). Alternatively, defendants may argue that the jurisdictional facts alleged in the complaint are untrue. Adams, 697 F.2d at 1219; King, 211 F.Supp.2d at 780. In that situation, “the Court may ‘look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’ ” Virginia v. United States, 926 F.Supp. at 540 (citing Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993)); see also Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir.2004) (holding that “the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment”); Adams, 697 F.2d at 1219; Ocean Breeze Festival Park, Inc. v. Reich, 853 F.Supp. 906, 911 (E.D.Va.1994). In either circumstance, the burden of proving subject matter jurisdiction falls on the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Adams, 697 F.2d at 1219; Johnson v. Portfolio Recovery Assocs., 682 F.Supp.2d 560, 566 (E.D.Va.2009) (holding that “having filed this suit and thereby seeking to invoke the jurisdiction of the Court, Plaintiff bears the burden of proving that this Court has subject matter jurisdiction”). B. Failure to State a Claim Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss those allegations which fail “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008). A court reviewing a complaint on a Rule 12(b)(6) motion must accept well-pleaded allegations as true and must construe factual allegations in favor of the plaintiff. See Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). A court must also be mindful of the liberal pleading standards under Rule 8, which require only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8. While Rule 8 does not require “detailed factual allegations,” a plaintiff must still provide “more than labels and conclusions” because “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. However, “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to meet this standard, id., and a plaintiffs “[fjactual allegations must be enough to raise a right to relief above the speculative level.... ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Moreover, a court “is not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 129 S.Ct. at 1949-50. C. Summary Judgment Summary judgment is appropriate only if the record shows that “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996) (citations omitted). The party seeking summary judgment has the initial burden of showing the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Once a motion for summary judgment is properly made and supported, the opposing party must come forward and show that a genuine dispute exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing summary judgment may not rest upon mere allegations or denials. Rather, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (quotation omitted). Unsupported speculation is not enough to withstand a motion for summary judgment. See Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986). Summary judgment is appropriate when, after discovery, a party has failed to make a “showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In reviewing the record on summary judgment, the court “must draw any inferences in the light most favorable to the nonmovant” and “.determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant.” Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir.1991) (citations omitted). D. Pro Se Plaintiff Complaints filed by pro se plaintiffs are construed more liberally than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). “However inartfully pleaded by a pro se plaintiff, allegations are sufficient to call for an opportunity to offer supporting evidence unless it is beyond doubt that the plaintiff can prove no set of facts entitling him to relief.” Thompson v. Echols, No. 99-6304, 1999 WL 717280 (4th Cir.1999) (citing Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)). While a court is not expected to develop tangential claims from scant assertions in a complaint, if a pro se complaint contains potentially cognizable claims, the plaintiff should be allowed to particularize those claims. Id. (citing Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.1985); Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir.1965)). III. Analysis A. Defendants’Motion to Strike Defendants move to strike Plaintiffs opposition brief to their Motion to Dismiss and for Summary Judgment because the brief was filed without good cause two weeks late on the day after Christmas, resulting in prejudice to Defendants due to holiday leave and from the loss of several days to draft their reply brief. (Def. Mot. to Strike [Dkt. 16] at 2.) Defendants filed their Motion to Dismiss and for Summary Judgment on November 20, 2012. [Dkts. 8, 13.] Under Local Rule 7(J), and as indicated in Defendants’ proper Roseboro notice [Dkt. 10], Plaintiff had twenty-one days to file a response to the motion. See Local Rule 7(J); Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975). As a result, the deadline to file an opposition was December 11, 2012. Plaintiff, however, did not file his opposition until December 26, 2012 and did not provide any reasons justifying this delay. [Dkt. 14.] Even under the signature date on the opposition, December 20, 2012, Plaintiffs opposition is untimely. (Id. at 31.) Based on these calculations and Plaintiffs failure to provide good cause for his untimely filing, the Court will grant Defendants’ Motion to Strike. B. Defendants’ Motion to Dismiss and for Summary Judgment 1. Constitutional Claims Under First and Fourteenth Amendments a. Claims Against the NIH and the USDE Defendants argue that the Court should dismiss Plaintiffs constitutional claims under the First and Fourteenth Amendments against the NIH and the USDE in Counts I — III because the Court lacks subject matter jurisdiction over these claims as to these Defendants due to sovereign immunity. (Def. Mem. at 10.) Unless waived, sovereign immunity protects the federal government and its agencies from suit and deprives a court of subject matter jurisdiction. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United States v. Jones, 225 F.3d 468, 470 (4th Cir.2000). Unlike the USPS in its “sue or be sued” clause, 39 U.S.C. § 401(1), the NIH and USDE have not waived their sovereign immunity from suit for constitutional claims. As a result, the Court finds that it does not have subject matter jurisdiction over Plaintiffs claims in Count I — III against the NIH and the USDE. Accordingly, these claims must be dismissed, b. Claims Against the USPS As noted above, Defendants acknowledge the USPS’s waiver of sovereign immunity from suit for constitutional claims. See 39 U.S.C. § 401(1); Franchise Tax Bd. of California v. U.S. Postal Serv., 467 U.S. 512, 517-18, 104 S.Ct. 2549, 81 L.Ed.2d 446 (1984). Nonetheless, Defendants argue the Court also should dismiss Plaintiffs constitutional claims under the First and Fourteenth Amendment against the USPS in Counts I — III for both monetary and injunctive relief. First, Defendants argue that Plaintiffs claims for monetary relief under these counts should be dismissed because Plaintiff improperly attempts to use Section 1983 in Counts I-III. Section 1983 applies only to state actors acting under the color of state law, not to federal actors. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.1998). As a result, these claims for monetary relief should be dismissed. (Def. Mem. at 12.) Even construing these claims under Section 1983 as claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court still must dismiss these claims. A Bivens action cannot be maintained against federal agencies or federal agency officials sued in their official capacities, as is the case here. Meyer, 510 U.S. at 485-86, 114 S.Ct. 996; Doe v. Chao, 306 F.3d 170, 184 (4th Cir.2002), aff'd on other grounds, 540 U.S. 614, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004). Therefore, whether brought under Section 1983 or Bivens, Plaintiffs claims for monetary relief against the USPS under Count I — III must be dismissed. Second, Defendants argue that Plaintiffs claims for injunctive relief under these counts should be dismissed for a number of independent reasons. (Def. Mem. at 13-20). The Court finds that these claims should be dismissed based on the first reason proffered by Defendants: that the remedies available to federal employees under the Civil Service Reform Act (“CSRA”) preclude claims for injunctive relief against a federal agency which challenge the merits of the agency’s administrative personnel decisions. (Id. at 13-14.) Under Fourth Circuit precedent, the remedial regime established by the CSRA for federal employees precludes a court from hearing such claims and the claims must be dismissed for lack of subject matter jurisdiction. See Yokum v. U.S. Postal Service, 877 F.2d 276, 280-81 (4th Cir.l989)(holding CSRA precluded judicial review of merits of administrative personnel decision even where postal service employee was excluded from scope of protections provided for under the CSRA); Pinar v. Dole, 747 F.2d 899, 909 (4th Cir.1984). Plaintiff concedes that he was, at all times relevant, a postal service federal employee, but he does not allege that he is a preference eligible postal service employee who, accordingly, can access judicial review of the merits of an agency’s decision via Chapter 75 of the CSRA. Therefore, the Court lacks subject matter jurisdiction to hear Plaintiffs claims for injunctive relief in Counts I — III against the USPS as “any employee, including one in the Postal Service, who is not included in the provisions of Chapter 75 was intended by Congress not to have the right to judicial review” over such claims. Yokum, 877 F.2d at 280 (quoting Witzkoske v. United States Postal Service, 848 F.2d 70, 73 (5th Cir.1988)). Accordingly, the Court dismisses Plaintiffs claims for injunctive relief against the USPS under Count I-III. 2. Title VII Religious Discrimination Claim Defendants argue that the Court should grant summary judgment on Plaintiffs Title VII discrimination claims against all Defendants in Counts IV because Plaintiff failed to exhaust his administrative remedies by filing his suit in federal court prematurely, a error that is not jurisdictional, or in the alternative, that the Court should dismiss the claims in Count IV for failure to state a claim. (Def. Mem. at 21-26.) The Court will resolve this count under Defendants’ first argument. Under this argument, Defendants move for summary judgment, rather than dismissal, for two reasons. To begin, Plaintiff did not include in either of his complaints any information regarding his administrative complaint and the corresponding timeline for his filing in federal court. [See Dkt. 1, 2.] As a result, Defendants must rely on evidentiary materials outside of the pleadings. (Def. Mem. at 21 n. 15.) In addition, the Fourth Circuit has held that a court’s subject matter jurisdiction was not impacted by whether a federal-sector Title VII complaint was timely filed with respect to the exhaustion of administrative remedies. Laber v. Harvey, 438 F.3d 404, 429 n. 25 (4th Cir.2006). Given the non-jurisdietional nature of their argument, Defendants cannot rely on extraneous materials without converting the motion to dismiss to a motion for summary judgment. Foreseeing this, Defendants therefore presented the argument against Counts IV-V via a motion for summary judgment included in the same document as their motion to dismiss. Based on the undisputed facts here, including the administrative and judicial record, and drawing all inferences in favor of Plaintiff, the Courts concludes that there is no genuine dispute of material fact regarding whether Plaintiff failed to timely exhaust his administrative remedies. Summary judgment on Count IV thus must be granted. Under the relevant timeline for administrative exhaustion here, Title VII provides that a federal employee only can file his or her complaint in federal court after the completion of a 180 day period from the filing of his or her administrative complaint with the agency. See 42 U.S.C. § 2000e-16(c) (providing that “after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit ... an employee or applicant for employment, if aggrieved ... by the failure to take final action on his complaint, may file a civil action ... ”); 29 C.F.R. § 1614.407(b) (stating that a federal employee may file in district court “after 180 days from the date of filing an individual or class [administrative] complaint if an appeal has not been filed and final action has not been taken”). In this case, on May 12, 2012, Plaintiff filed his administrative complaint with the USPS regarding the alleged employment discrimination arising from the April 19, 2012 incident. [Dkt. 9-1.] When he filed his original complaint in this Court on July 13, 2012 [Dkt. 1], Plaintiff had not yet received a final agency decision given that a hearing on his claims had not occurred yet in front of an Administrative Judge. In addition, the 180 day waiting period had not yet finished, regardless of whether the commencement of this period began with Plaintiffs May 12, 2012 administrative complaint which directly addressed the discrimination at issue here or with Plaintiffs earlier (March 12, 2012) administrative complaint of which the USPS concluded the May administrative complaint was an amendment. Given Plaintiffs premature filing in federal court, the Court concludes that the undisputed facts indicate that Plaintiff failed to timely exhaust his administrative remedies and therefore, the Court grants Defendants summary judgment on the claim in Count IV. 3. Title II Genetic Information Discrimination Claim The Court construes Count V as a genetic information non-discrimination claim under the Genetic Information Nondiscrimination Act (GINA) instead of a discrimination claim under Title VII. Plaintiff identifies the claim as arising under GINA in the titling of that count, although he also improperly cites to Title VII as well and elsewhere in that count. Nonetheless, given the Court’s liberal construal of pro se plaintiffs’ claims, the Court finds it most appropriate to analyze Count V as arising under GINA because that statute actually provides for a cause of action arising from discrimination on the basis of genetic information. The Court concludes, however, that Plaintiff fails to state a claim under GINA. GINA provides that an employer may not “discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a)(1). The Act defines “genetic information” as (1) an individual’s genetic tests; (2) the genetic tests of the individual’s family members; (3) the manifestation of a disease or disorder of the individual’s family members; (4) an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or the individual’s family member; and (5) the genetic information of a fetus. See 42 U.S.C. § 2000ff(4)(A); see also 29 C.F.R. § 1635.3(c). In light of this definition of genetic information, the Court finds that Plaintiff has not pled any facts indicating that any of the Defendants requested or obtained Plaintiffs “genetic information” and discriminated against him on the basis of such “genetic information.” See Bullock v. Spherion, No. 3:10-CV-465, 2011 WL 1869933, at *6 (W.D.N.C. May 16, 2011). Instead, Plaintiff only alleges that that the USPS instructed him not to post his book advertisement which allegedly explains “how DNA works” and that the NIH and USDE refuses to incorporate his genetic and religious theory on DNA into their testing and public education curriculum. Plaintiffs book and accompanying genetic and religious theory on DNA do not constitute “genetic information” under GINA. As a result, Plaintiff has failed to state plausibly a claim for genetic information discrimination under GINA, and Count V therefore must be dismissed. C. Plaintiffs Motion for Settlement Given the Court’s decision to dismiss Counts I — III and V and grant summary judgment in favor of Defendants on Count IV, the Court finds that Plaintiffs Motion for Settlement should be denied. IV. Conclusion For the foregoing reasons, the Court will grant Defendants’ Motion to Strike. The Court also will grant Defendants’ Motion to Dismiss and for Summary Judgment, dismissing Plaintiffs claims in Counts I — III and V against all Defendants and granting summary judgment to all Defendants on Plaintiffs claims in Count IV. The Court will deny Plaintiffs Motion for Settlement. An appropriate Order will issue. MEMORANDUM OPINION This matter is before the Court on pro se Plaintiff Kenneth Smith’s Motion for Reconsideration (the “Motion”). [Dkt. 23.] For the following reasons, the Court will deny Plaintiffs Motion. I. Background The facts of this case are recounted in the Court’s Memorandum Opinion dated January 8, 2013, familiarity with which is presumed. On July 13, 2012, Plaintiff filed a Complaint in this Court against Patrick R. Donahoe, Postmaster General, USPS; Dr. Francis Collins, Director, NIH; and Arne Duncan, Secretary of Education, USDE, bringing suit against these federal agencies and the named officers in their official capacity. [Dkt. 1.] On August 3, 2012, Plaintiff filed an essentially identical Amended Complaint against the same parties, only adding a Certificate of Service. [Dkt. 2.] Plaintiff brought five causes of action against all defendants: (1) a First Amendment retaliation claim under 42 U.S.C. § 1983 (Count I); (2) a First Amendment viewpoint discrimination claim under 42 U.S.C. § 1983 (Count II); a Fourteenth Amendment equal protection claim under 42 U.S.C. § 1983 (Count III); a Title VII religious discrimination claim under 42 U.S.C. § 2000e (Count IV); and a Title II Genetic Information Non-discrimination Act claim purportedly under 42 U.S.C. § 2000e-16c(a). (Id. ¶ 30-54.) On November 30, 2012, Defendant filed a motion to dismiss and for summary judgment. [Dkts. 8, 13.] On January 8, 2013, this Court granted that motion, dismissing Counts I — III and V against all Defendants and granting summary judgment to all Defendants on Count IV. [Dkts. 20-21.] On January 17, 2013, Plaintiff filed a Motion for Reconsideration. [Dkt. 23.] Defendants filed their opposition on January 22,2013. [Dkt. 26.] Plaintiffs Motion is before the Court. II. Standard of Review The Federal Rules of Civil Procedure do not provide a vehicle for a motion for reconsideration. Rather, they provide for a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from judgment. Plaintiff does not specify whether he is bringing his Motion pursuant to Rule 59(e) or 60(b). Pursuant to Rule 59(e), “a motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). The Fourth Circuit has interpreted a motion for reconsideration as a motion to alter or amend a judgment pursuant to Rule 59(e) where that motion has been filed within the specified time period. See Lee-Thomas v. Prince George’s County Pub. Sch., 666 F.3d 244, 247 n. 4 (4th Cir.2012); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 n. 4 (4th Cir.2011). Here, Plaintiffs Motion was filed within 28 days of the Court’s January 8, 2013 Memorandum Opinion and Order dismissing his Complaint on Counts I—III and V and granting Defendants summary judgment on Count IV. Accordingly, Plaintiffs Motion will be construed as a Rule 59(e) motion to alter or amend a judgment. See Fed.R.Civ.P. 59(e). The Fourth Circuit has made it clear that “[a] district court has the discretion to grant a Rule 59(e) motion only in very narrow circumstances: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir.2002) (quoting Collison v. Int’l Chem. Workers Union, 34 F.3d 233, 236 (4th Cir.1994)) (internal quotations omitted). A party’s mere disagreement with the court’s ruling does not warrant a Rule 59(e) motion, and such motions should not be used “to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). Rather, the purpose of Rule 59(e) motion is to allow “a district court to correct its own errors, ‘sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.’ ” Id. (quoting Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995)). A Rule 59(e) motion is “an extraordinary remedy which should be used sparingly.” Pac. Ins. Co., 148 F.3d at 403. III. Analysis Here, relief from this Court’s dismissal of Plaintiffs Complaint on Counts I — III and V and grant of summary judgment in favor of Defendants on Count IV is unwarranted under Rule 59(e). Plaintiff has made no showing of (i) an intervening change in controlling law, (ii) new evidence that was not available to him previously, or (iii) a clear error of law or manifest injustice that would otherwise result. For the reasons set forth in this Court’s January 8, 2013 Memorandum Opinion, this Court dismissed Counts I—III against the NIH and USDE for lack of subject matter jurisdiction over those claims against those Defendants due to sovereign immunity; dismissed claims for monetary relief in Counts I — III against the USPS because these claims could not be maintained under Section 1983 or as a Bivens action against federal agencies or federal agency officials sued in their official capacities; dismissed claims for injunctive relief in Counts I — III against the USPS for lack of subject matter jurisdiction due to the exclusive remedies provided by the Civil Service Reform Act; dismissed Count V against all Defendants for failure to state a claim for genétic information discrimination; and granted summary judgment to Defendants on Count IV because Plaintiff failed to timely exhaust his administrative remedies. In his Motion, Plaintiff simply disagrees with this Court’s dismissal of Counts I — III and V and grant of summary judgment on Count IV, and accordingly, the proper avenue for contesting the dismissal on this ground is to appeal the decision to the United States Court of Appeals for the Fourth Circuit by filing a notice of appeal within 60 days of the entry of the Court’s January 8, 2013 Order, as stated in that Order. IV. Conclusion For the foregoing reasons, the Court will deny Plaintiffs Motion. An appropriate Order will issue. . The Court notes that though there are two docket entries to reflect the two motions, De fendants filed both motions in one document and support their motions with a single memorandum of law in support. . The Court notes that the document is dated "March 21, 2012” but concludes that this clearly was meant to read "May 21, 2012” given that the document refers to incidents occurring on dates after March (e.g. the alleged occurrence of discrimination in April 2012 and Plaintiff’s filing of his administrative complaint in May 2012). . In that earlier administrative complaint, Plaintiff alleged discrimination on the basis of race, religion, and genetic information, as well as retaliation, when he was passed over for overtime and was charged with absence without leave. (Id. at 12.) Plaintiff does not raise these allegations in the instant case. . The Court agrees with Defendants’ construal of Plaintiff's complaint as being brought only against the federal agencies and the named officers in their official capacity, as opposed to the officers' individual capacities. As Defendants note, Plaintiff never asserts that he is suing these officials in their individual capacities nor provides any allegations that these individual government officials personally undertook actions against Plaintiff with respect to the incidents giving rise to this suit. Instead, Plaintiff makes references which indicate that he intends to bring this action against the agencies and the officials in their official capacity. (See e.g. Am. Comp. ¶ 2-4, 11-12 (referring solely to the agencies), ¶ 7 (citing 28 U.S.C. § 1391(e) which discusses where civil actions may be brought when the suits are brought against federal government officials in their official capacities), and ¶ 17 (expressly seeking monetary damages from the agencies and “those in their official capacity”).). . The Court notes that Plaintiff had actual notice that the Court might consider Plaintiff's motion as a motion for summary judgment on Counts IV-V based on the titling of Defendants’ motion and on Defendants’ submission of evidence extrinsic to the pleadings. Therefore, " "by operation of the Federal Rules of Civil Procedure, [plaintiff] also should have been on notice that the ... motion could be considered by the court to be a summary judgment motion.” ” Talbot v. U.S. Foodservice, Inc., 191 F.Supp.2d 637, 639 n. 3 (D.Md.2002) (quoting Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260-61 (4th Cir.1998)).

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ [DKT. #31] MOTION TO DISMISS VANESSA L. BRYANT, District Judge. The Defendants, Lebanon Board of Education, (the “Board”) and the Superintended of the Board, Janet Tyler (“Tyler”), have moved to dismiss the Plaintiff Malcom Leichter, Jr. (“Leichter”)’s amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In the amended complaint, Plaintiff brings various causes of action in connection with his placement on administrative leave and then the elimination of his position as the Director of Business and Technology for the Lebanon Public School System, including violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, et seq., violation of his due process and equal protection rights under 42 U.S.C. § 1983, as well as state law claims for breach of contract, breach of implied covenant of good faith and fair dealing, failure to pay wages in violation of Conn. Gen.Stat. § 31-71a et seq., violation of the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a-51 et seq. and for punitive damages. For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss. Procedural Background On August 8, 2012, the Plaintiff amended his complaint. See [Dkt. #29]. On August 29, 2012, the Defendants moved to dismiss the Plaintiffs Monell claim, due process claims, equal protection claim, ADA and Section 504 claims against Defendant Tyler, breach of contract claim, breach of implied covenant of good faith and fair dealing claim and claim for punitive damages against the Board. Defendants argued that the ADA and Section 504 claims against Defendant Tyler should be dismissed on the basis there is no individual liability under either statute. See [Dkt. # 32, p. 15]. Recognizing their impropriety, the Plaintiff consented to the withdrawal of those claims against Tyler. [Dkt. #37, p. 21]. The Court therefore dismisses the ADA and Section 504 claims against Tyler. In addition, Defendants moved to dismiss the Plaintiffs equal protection claim on the basis that disability is not a protected class. See [Dkt. # 32, p. 15]. Plaintiff also consented to the withdrawal of that claim in his response as well. [Dkt. # 37, p. 21]. The Court therefore dismisses the Plaintiffs equal protection claim. After Plaintiff responded to the motion to dismiss, the Plaintiff moved to withdraw his claim for intentional infliction of emotional distress and all claims in any counts of the amended complaint for damages for emotional distress, which the Court granted. [Dkt. ## 40-41]. Consequently, arguments relating to the withdrawn intentional infliction of emotional distress claim are moot. Factual Allegations On October 25, 1996, the Plaintiff and the Board executed an employment agreement whereby the Plaintiff was hired as of November 4, 1996 as the Director of Business and Technology for the Lebanon Public Schools. [Dkt. # 29, Amended Compl., ¶ 13]. On June 26, 1997, the Plaintiff and the Board executed a second employment agreement which modified some terms which are not relevant to the issues in the present case. Id. at ¶ 14. The agreement provides in relevant part: Section I: Continuation of Contract and Salary Agreement This contract shall be renewed annually. For each year for which this contract is renewed, the annual salary of the Director of Business & Technology shall be established by mutual agreement between the Director of Business & Technology and the Board. Section II: Continuation of Contract and Salary Agreement The contract may be terminated at any time by mutual consent of the parties. It may also be terminated by the Board for cause. The Director of Business & Technology may resign or retire by submitting at least thirty (30) days written notice to the Board. [Dkt. # 29, Ex. E, Second Employment Agreement, p. 1]. Prior to working for the Board, the Plaintiff was employed as an information systems services manager at Internal Business Machines (“IBM”). [Dkt. #29, Amended Compl., ¶ 16]. Plaintiff continued to be employed under the agreement as the Director of Business and Technology until January 28, 2011 and was earning $102, 229 per year in his position at the time of his termination. Id. at ¶ 20. Superintendent Tyler began working for the Board on or about July 26, 2010. Id. at 1121. Plaintiff alleges that he “never had any issues with the prior three superintendents to whom he reported and all of Plaintiffs job performance evaluations were positive.” Id. Plaintiff further alleges that from the beginning of her tenure, Tyler “expressed displeasure with the Plaintiff due to his disabilities which required him to miss time at work for surgery and cardiac rehabilitation.” Id. at ¶ 22. Plaintiff suffered from heart attacks and had a cardiac catheterization on July 27, 2010 and a second catheterization on August 11, 2010. Id. at ¶23. Plaintiff returned to work full time on August 23, 2012 with a restriction that he could not work past six at night. Id. at ¶ 24. On September 23, 2010, Plaintiff began a cardiac rehabilitation program which ran three times a week for twelve weeks. Id. at ¶ 25. Plaintiff alleges that Tyler made “many derogatory and hurtful remarks about Plaintiff not being in the office due to his cardiologist ordered cardiac rehabilitation, and the restrictions placed upon him regarding the length of his work day by his cardiologist.” Id. He completed the rehabilitation program on December 22, 2010. Id. at ¶ 26. In December 2010, Tyler ordered Plaintiff to get a full release back to work because he was still limited to working no later than six at night. Id. at ¶ 27. His cardiologist insisted that he could work no later than six and “Tyler continued to express displeasure with Plaintiffs inability to work as late in the evening as she wanted him to.” Id. Plaintiff alleges that Tyler was “rude, sarcastic, demeaning, controlling and manipulative to the Plaintiff due to his disability and inability to work as many hours as she had demanded.” Id. at ¶ 28. On January 4, 2011, Plaintiff experienced chest pains and was instructed to not return to work on January 10, 2011. Id. at ¶ 29. Plaintiff returned to work on January 10, 2011 and “Tyler continued to harass and demean Plaintiff due to Plaintiffs disability and his need to leave work by six each night.” Id. at ¶ 30. On January 28, 2011, Plaintiff alleges he was called into Tyler’s office where he was “suspended without cause (purportedly placed on ‘administrative leave’) by Tyler.” Id. at ¶ 31. Plaintiff alleges he was told by Tyler that the suspension “was not disciplinary, nor was Plaintiff being fired or laid off, but was necessary so that Tyler could review the operations of the business office.” Id. Tyler allegedly stated that “she was looking for ‘efficiencies’ and that Plaintiff should look at the suspension ... as a ‘mini-vacation.’ ” Id. Plaintiff was required to “turn in his keys, and was escorted from the building by a burly (physically imposing) staff member ... in the presence of two state troopers.” Id. Plaintiff also alleges he was told to “stay away from the premises and to have no contact with any employees of the Lebanon Public School.” Id. On January 18, 2011, Tyler sent an email regarding Plaintiffs suspension to “all staff of the Lebanon Public Schools.” Id. at ¶ 32. Plaintiff alleges that the email led staff members “to believe that the Plaintiff had done something morally, and/or ethically, and /or criminally wrong.” Id. In the email, Tyler wrote This communication is to inform district staff that Mai Leichter, the Director of Business and Technology, has been placed on administrative leave while district operations are reviewed. Mr. Leichter will not be taking any action on behalf of the school district while he is on leave, nor is he to have any contact with district employees. Should you receive communications from Mr. Leichter, please forward that information to my office. Additional information will be forthcoming concerning responsibilities and reporting in Mr. Leichter’s absence for affected employees. In the meantime, please contact me directly should you have any question. [Dkt. #29, Ex.F]. On February 1, 2011, five days after Plaintiff was suspended, Tyler completed her review of the operations of the business office and her search for efficiencies without any input from the Plaintiff. [Dkt. # 29, Amended Compl., ¶ 34]. Tyler decided to divide the Plaintiff’s position into two positions; a business manager position and a technology manager position. Id. On February 16, 2011, the Board hired an outside contractor at an annualized cost of $124,800 per year to perform a part of the technology portion of Plaintiffs position. Id. at ¶ 35. On March 1, 2011, the Board hired a temporary part time business manager to perform the business management portion of Plaintiff’s position. Id. at ¶ 36. On March 15, 2011, the Board contracted an outside accounting firm, Kostin and Ruffkess & Company, LLC (“Kostin”) to conduct a review of the operations of the school business. Id. at ¶ 32. Plaintiff alleges that upon information and belief, Kostin was contracted to “find accounting irregularities, and/or illegal transactions, and/or fraud allegedly perpetrated by the Plaintiff.” Id. at ¶ 37. Plaintiff alleges that Kostin “was directed to audit transaction that by their nature tend to be higher risk such as credit card transactions, payments to individuals, payments to banks.” Id. Plaintiff further alleges that no evidence of accounting irregularities, illegal transaction or fraud was found. Id. On April 1, 2011, the Board hired an outside contractor for $25,000 to complete a project closeout and report that was formerly Plaintiff’s responsibility. Id. at ¶39. On April 5, 2011, Tyler formally proposed to the Board that they divide the Plaintiffs position into two positions to redistribute the responsibilities. Id. On April 8, 2011, Plaintiff alleges that Tyler was quoted in an article in the Willimantic Chronicle newspaper stating that the Plaintiffs job “is bigger than one person can handle.” Id. at ¶ 40. On April 26, 2011, the Board followed Tyler’s recommendation and voted to eliminate Plaintiffs position and split the duties into two positions. Id. at ¶ 41. Plaintiff alleges that he was not offered either position, “despite being highly qualified for both positions.” Id. On May 4, 2011, Plaintiff received a letter stating that his position no longer existed and informing him that the Board would honor his contract through June 30, 2011. Id. at ¶ 42.On June 29, 2011, the Board hired a new Director of Technology at an annual salary of $78,900. Id. at ¶ 43. On September 1, 2011, the Board hired a part time consultant to perform the business manager portion of the Plaintiffs position. Id. at ¶ 44. Plaintiff alleges that the “Board has a practice and/or policy of discriminating against individuals with disabilities. Tyler has a history of discrimination against persons with disabilities. The Board has dismissed five employees with physical impairments since June 1, 2010.” Id. at ¶ 47. Plaintiff further alleges that the Board and Tyler are the policy makers for the Town of Lebanon Public Schools and that Tyler as Superintendent acts as the Chief Executive Officer of the schools. He further alleges that Tyler has authority to hire, fire, discipline and set policy. Id. at ¶ 48. The Plaintiff alleges that he was denied due process in several different ways. He alleges that he had a protected property interest in his employment and was denied due process when he was suspended without a hearing. Id. at p. 22. He also alleges that he was denied due process when the Board terminated his employment without a hearing. Id. The Plaintiff also alleges that he had a protected liberty interest in his employment with the Board and that the Defendants “created and disseminated a false and defamatory impression about the Plaintiff in connection with his suspension and/or termination of his employment.” Id. at p. 23. Plaintiff further alleges that the Defendants sent a defamatory email to Board employees and engaged Kostin to perform an audit without providing Plaintiff a hearing to clear his good name. Id. Plaintiff claims that the Defendants breached his contract when they terminated his employment without cause. Id. at p. 25. He also asserts that the Defendants breached the covenant of good faith and fair dealing when he was terminated due to his disability “in violation of public policy.” Id. at p. 26. Legal Standard “ ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Sarmiento v. U.S., 678 F.3d 147 (2d Cir.2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotations omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal citations omitted). In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ ” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotations omitted). Analysis i. Breach of Contract Claim Defendants argues there is no breach of the employment agreement because the agreement was “renewable annually and was not renewed when it expired in June 2011.” [Dkt. #32, Mem., p. 20], The Defendants further argue that the “for cause” provision expressly relates to termination not to non-renewals. Plaintiff contends that the renewal provision was mandatory and argues that the Board had no discretion to decline to renew the agreement. [Dkt. # 37, Mem., p. 25-26]. In response to Plaintiffs argument, Defendants contend that if the agreement was for an indefinite duration, the employment relationship must necessarily be at-will in line with state law precedent which provides that “[a]s a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). [Dkt. # 32, Mem., p. 20]. Defendants also suggest that the contract cannot be interpreted to renew automatically because the Board had no power to execute a contract for indefinite duration pursuant to the reasoning of Solomon v. Hall-Brooke Found., Inc., 30 Conn.App. 129, 619 A.2d 863 (1993). [Dkt. #42, Mem., p. 8]. Lastly, Defendants argue that they had cause to terminate the employment relationship based on the elimination of Plaintiffs position. [Dkt. # 32, Mem., p. 20-21]. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact ... [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law.... subject to plenary review by this court.” Schwartz v. Family Dental Group, P.C., 106 Conn.App. 765, 771, 943 A.2d 1122 (2008) (internal quotation marks and citation omitted). “In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together .... The contract must be construed to give effect to the intent of the contracting parties.... This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained .... [I]ntent ... is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Phillips v. Phillips, 101 Conn.App. 65, 74, 922 A.2d 1100 (2007) (internal quotation marks and citation omitted). “[Where] ... there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. When the language is clear and unambiguous, however, the contract is to be given effect according to its terms.... In such a case, no room exists for construction” Schwartz, 106 Conn.App. at 771, 943 A.2d 1122 (internal quotation marks and citation omitted). “When there is ambiguity, [the court] must construe contractual terms against the drafter.” Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985) (Internal quotation marks and citation omitted.). In the present case, this Court finds that the renewal provision of the employment agreement unambiguously provides for automatic renewal of the agreement. The language of the renewal provision provides that the “contract shall be renewed annually.” [Dkt. # 29, Ex. E, Second Employment Agreement, p. 1] (emphasis added). The use of the term “shall” instead of “may” indicates that renewal was non-discretionary. The Connecticut Supreme Court has recognized that the “use of the word ‘shall’ denotes that [a] directive in the contract ... was mandatory.” A. Dubreuil and Sons, Inc. v. Town of Lisbon, 215 Conn. 604, 610-11, 577 A.2d 709 (1990). The Connecticut Supreme Court explained that the “word ‘may,’ unless the context in which it is employed requires otherwise, is not normally used as a word of command ... The term ‘may’ generally imports permissive conduct and the use of discretion.” Id.; see also Indymac Mortgage Holdings, Inc. v. Reyad, 167 F.Supp.2d 222, 245 (D.Conn.2001) (noting that the “word ‘shall’ is a mandatory term”); Black’s Law Dictionary (9th Ed.)(Defining shall as “has a duty; more broadly, is required to”). When reading the renewal provision in conjunction with the termination provision, a fair and reasonable construction of the written words indicates that the agreement renews automatically on an annual basis and that the only means available to the Board to unilaterally end the agreement is termination for cause. The Defendants’ arguments that there was no breach because the Board declined to renew the agreement are therefore without merit in light of the clear meaning of the terms of the agreement. Defendant next argues that if the agreement automatically renews it is a contract for an indefinite term and therefore creates an at-will employment relationship terminable for any reason. “In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary.” Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002). “As a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 1, 520 A.2d 217 (1987). “Parties must specifically contract for a right to be terminated only for cause.” Cruz v. Visual Perceptions, LLC, 136 Conn.App. 330, 338 (2012). Therefore, “pursuant to traditional contract principles, however, the de fault rule of employment at-will can be modified by the agreement of the parties.” Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995). Here, Defendants’ argument is premised on the default rule that contracts for indefinite employment are terminable at will. However, it is axiomatic that parties can contract out of the default rule and modify the agreement to provide a right to be terminated only for cause. Here, the clear terms of the agreement indicate that the parties have done so as they have expressly contracted for a right to termination only for cause. As the parties have clearly contracted out of the default rule, this Court’s interpretation that the agreement is for an indefinite period of time terminable only for cause is clearly not at odds with either the contractual language or legal precedent as Defendants contend. Defendants next suggest that the Board did not have any authority to execute a contract of indefinite duration relying on the rationale of Solomon v. Hall-Brooke Found., Inc., 30 Conn.App. 129, 619 A.2d 863 (1993). In Solomon, a donor who created a charitable foundation brought an action to rescind her gift and for breach of contract after the foundation terminated her employment as executive director. The Solomon court concluded that the employment contract which called for continued employment until age 65 or retirement and which permitted the defendant to fire her only if she were adjudicated in a criminal court of competent jurisdiction to be guilty of theft, fraud or embezzlement regarding the defendant’s assets was unenforceable as a matter of public policy. Id. at 135, 619 A.2d 863. The Solomon court based its reasoning on a Connecticut Supreme Court case that held “ ‘[tjhere is some authority for the proposition that directors have no power to hire an employee on a lifetime basis ... Such cases are generally based on the theory that a board of directors, in selecting the management personnel of the corporation, should not be allowed to hamstring future boards in the overall supervision of the enterprise and the implementation of changing corporate policy.’” Id. at 135 n. 5, 619 A.2d 863 (quoting Osborne v. Locke Steel Chain Co., 153 Conn. 527, 537, 218 A.2d 526 (1966)). The Defendants argue that the Board of Education has similar management rights as corporate boards in Solomon citing to Conn. Gen.Stat. § 10-220. [Dkt. #42, Mem., p. 9]. The Defendants suggest that the Solomon court’s rationale counsels against interpreting the renewal provision as automatic thereby resulting in lifetime employment. Id. As Plaintiff points out the facts of Solomon are distinguishable. In Solomon, termination was only permissible if the director was adjudicated in a criminal court of competent jurisdiction to be guilty of theft, fraud or embezzlement regarding the foundation’s assets. This restriction on termination was far more narrow and restrictive than a common place restriction on termination for cause. The ability to terminate for cause does not truly render an indefinite employment contract into a contract for guaranteed lifetime employment as was the case in Solomon in which termination was extremely limited. In addition, the Solomon court’s reasoning that the contract violated public policy was predicated on the law of corporations. Although Defendants attempt to draw a parallel between a Board of Education and a corporate board, the Court is not persuaded that such a parallel is appropriate. It is well established and common place for a board of education to employ individuals on a “lifetime basis” through teacher tenure. Further Connecticut courts have held that pursuant to Conn. Gen.Stat. §§ 10-151 and 10-220 “[w]ide discretion is customarily vested in school boards with regard to employment of teachers, and courts should not interfere as long as that discretion is exercised in good faith ... When that discretion is exercised in good faith, the courts should not interfere.” Harhay v. Board of Educ. of the Town of Ellington, 44 Conn.App. 179, 187, 687 A.2d 1313 (1997) (citing Conley v. Board of Educ., 143 Conn. 488, 495, 123 A.2d 747 (1956)). Although the Plaintiff was not a teacher, this Court sees no reason why these provisions don’t similarly vest the board of education with wide discretion with regard to employment of all school personnel. Clearly a board of education, in selecting tenured employees, has the ability to hamstring future boards in the overall supervision of the school system unlike the case of a corporate board in Solomon. Consequently, the rationale in Solomon does not counsel against inter preting the contract as automatically renewing terminable only for cause. This conclusion is buttressed by the fact that the “for cause” termination provision did not hamstring future boards, as it gave future boards the authority to exercise reasonable discretion to terminate the Plaintiff. Lastly, Defendants argue there was cause to terminate because the Plaintiffs position was admittedly eliminated. However, Plaintiff has alleged that the elimination of his position was a pretext for termination on the basis of disability and therefore without cause. The allegations in the complaint plausibly state that Tyler was animated by anti-disability animus and that the elimination of his position was merely a pretext to terminate him on the basis of his disability. The Plaintiff has therefore plausibly stated that he was terminated without cause at the motion to dismiss stage. See Gardner v. St. Paul Catholic High School, Inc., No. CV970143514, 2001 WL 1517042, at *3-4 (Conn.Super.Ct. Nov. 15, 2001) (holding that there was a question of fact as to whether the defendant school’s decision to terminate teacher’s employment did not constitute good or sufficient cause as it was contrived and not the true reason for eliminating the teacher’s position). The question of whether the elimination of Plaintiffs position was good cause for his termination or a pretext is a question of fact to be determined on either summary judgment or trial. The Court therefore denies Defendants’ motion to dismiss the Plaintiffs breach of contract claim. ii. Due Process Claim The Defendants argue that the Plaintiff has no protectable property interest in his job because he has not alleged that he has a right to be fired without just cause. As discussed above, this Court has found that the employment agreement did not establish an at-will employment relationship but provided only a right to terminate for cause. “In the employment context, a property interest arises only where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment relationship without cause.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (internal quotation marks and citations omitted) (emphasis in the original). A “property interest in employment may be the subject of a due process claim only if the plaintiff has a legitimate claim of entitlement to it.” Etere v. City of New York, 381 Fed.Appx. 24, 25 (2d Cir.2010) (internal quotation marks and citation omitted). Here, the Plaintiff clearly has a protected property interest because the Board is barred by contract from terminating the employment relationship without cause. The Defendants contend that even if the Plaintiff has a protectable property interest there would be no due process violation because the Defendant afforded the Plaintiff due process to which he did not avail himself. Defendants point out that Plaintiff failed to utilize the procedures established by the Board’s policy regarding resolution of problems or complaints for non-unionized personnel. See [Dkt. # 32, Mem., p. 12-13]. That due process policy provides that an employee who contests an employment action must first discuss the problem or complaint with his or her supervisor then if necessary the superintendent. [Dkt. # 32, Mem., p. 18]. Then, if the employee is not satisfied with the disposition of the problem or complaint, the employee may submit a written statement to his supervisor within five days. The supervisor shall render a written decision and reason therefore to the employee and superintendent within five days. If the employee is still not satisfied, the employ ee may submit an appeal to the superintendent within five days of receipt of prior disposition. The superintendent shall render a written decision and reason therefore to the employee within ten days. If the employee is still not satisfied, the employee may submit an appeal to the Board within five days of receipt of prior disposition. Id. As Defendants highlight, “[c]ourts have held that [ ] post-deprivation procedures [such as grievance and arbitration procedures pursuant to a collective bargaining agreement], providing for a hearing to contest a challenged employment decision, are sufficient to satisfy due process.” Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 213 (2d Cir.2003). Plaintiff argues that the policy was not applicable to his situation, that the policy did not provide for a pre-termination hearing which due process requires, and that once he was terminated he was no longer an employee with recourse to the procedures laid out in the policy. Plaintiff also argues that any appeal would be futile. Although it does appear that Plaintiff could have utilized the procedures under the policy to dispute Tyler’s decision to place him on administrative leave but not to dispute his termination once he was no longer an employee, the existence of the policy and the Plaintiffs failure to utilize the procedures are matters that go beyond the allegations in the amended complaint and may not be considered by this Court at the motion to dismiss stage. See Green v. McLaughlin, 480 Fed.Appx. 44, 49 (2d Cir.2012) (“[W]hen matters outside the pleadings are presented in response to a 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material.”) (internal quotation marks and citations omitted). On the basis of the allegations of the amended complaint, the Plaintiff has plausibly stated that he has a protectable property interest in his continued employment and that due process was violated when he was denied a hearing in connection with either his suspension or termination. The parties will have the opportunity to raise the issue of whether these procedures were sufficient to satisfy due process and whether due process was violated when Plaintiff failed to pursue these procedures on summary judgment or trial. The Court therefore denies Defendants’ motion to dismiss Plaintiffs due process claim. iii. Stigma-Plus Claim Plaintiff argues that he has plausibly pled a stigma-plus due process claim on the basis of Tyler’s allegedly defaming email, his removal from the Board’s property by a staff member in the presence of state troopers, the engagement by the Board of auditors, and Tyler’s recommendation to the Board to eliminate the Plaintiffs position to create two new positions. It is well established that a “person’s interest in his or her good reputation alone, apart from a more tangible interest, is not a liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause or create a cause of action under § 1983.” Patterson v. City of Utica, 370 F.3d 322, 329-30 (2d Cir.2004). However, “Loss of one’s reputation can, however, invoke the protections of the Due Process Clause if that loss is coupled with the deprivation of a more tangible interest.” Id. at 330. “ ‘In an action based on a termination from government employment, a plaintiff must satisfy three elements in order to demonstrate a deprivation of the stigma component of a stigma-plus claim.’ ” Holmes v. Town of East Lyme, 866 F.Supp.2d 108, 125 (D.Conn.2012) (quoting Segal v. City of New York, 459 F.3d 207, 212 (2d Cir.2006)). “First, the plaintiff must ... show that the government made stigmatizing statements about [him] — statements that call into question [the] plaintiffs good name, reputation, honor, or integrity. We have also said that statements that denigrate the employee’s competence as a professional and impugn the employee’s professional reputation in such a fashion as to effectively put a significant roadblock in that employee’s continued ability to practice his or her profession will satisfy the stigma requirement. Second, a plaintiff must prove these stigmatizing statements were made public. Third, the plaintiff must show that the stigmatizing statements were made concurrently with, or in close temporal relationship to, the plaintiffs dismissal from government employment.” Id. (internal quotation marks and citations omitted). “A plaintiff generally is required only to raise the falsity of these stigmatizing statements as an issue, not prove they are false.” Patterson, 370 F.3d at 330. As Defendants argue, the Plaintiff fails to plausibly allege that the Defendants made stigmatizing statements about him which called into question his good name, reputation, honor, or integrity as no accusations were leveled against him and he was not terminated until the district determined and announced that his job was too demanding to be performed well by a single person. The only statements to which the Plaintiff points are Tyler’s email informing staff that the Plaintiff was placed on administrative leave while district operations were reviewed and instructing staff to refrain from communicating with the Plaintiff while he was on leave. These statements are not the type of false reputation-tarnishing statements sufficient to support a stigma-plus due process claim. The fact that an innocuous statement may be lead to unwarranted speculation does not make the statement stigmatizing. That is particularly true where, as here, any potential stigma was dissolved by a later statement in close proximity to the statement in question. “Courts have consistently held that statements announcing personnel decisions, even when leaked to the press, and even when a reader might infer something unfavorable about the employee, are not actionable.” Wiese v. Kelley, No. 08-cv-6348, 2009 WL 2902513, at *4 (S.D.N.Y. Sept. 10, 2009) (collecting authority). In addition, courts have held that “true public statements that a party is under investigation” are not stigmatizing. Id. at *5 (collecting authority). Moreover, the Plaintiff has not plausibly raised the falsity of these statements as; indeed the Plaintiff was placed on administrative leave to facilitate an independent review and Plaintiff does not contend that a review was conducted. Therefore, Tyler’s statement did not contain any facts capable of being proven false in order to plausibly state an entitlement to relief. Likewise, the Board’s action in suspending then terminating the Plaintiff, escorting the Plaintiff off of Board property, and eliminating his position cannot support a stigma-plus claim for similar reasons. The Second Circuit has explained that where the alleged stigma arises from the employer’s actions and not its statements, a plaintiff has alleged only “the plus without the stigma” and that the plus alone is insufficient to create the stigma. O’Connor v. Pierson, 426 F.3d 187, 195 (2d Cir.2005). In O’Connor, the Second circuit concluded that a public teacher’s suspension by the board of education even if “townsfolk drew negative inferences from his suspension,” was not sufficient to make out a stigma-plus claim. Here, Board’s actions towards the Plaintiff are insufficient allegations of plus without stigma. Plaintiff argues in sum that the Board and Tyler’s conduct was tantamount to a subtle public campaign which imposed an actionable stigma in line with the Second Circuit’s decision in Quinn v. Syracuse Model Neigh. Corp., 613 F.2d 438, 447 (2d Cir.1980). In Quinn, the Second Circuit explained that a “subtle campaign designed by city officials to make plaintiff the scapegoat for an episode of municipal misfeasance may impose no less an indelible stigma than a public proclamation announced at high noon from the steps of City Hall.” Id. at 447. The defendant in Quinn “began a publicity campaign designed to coerce the SMNC Board to fire Quinn. A series of articles appeared in the local Syracuse press suggesting that Quinn was responsible for the missing funds.” Id. at 444. However, the facts of Quinn are inapposite to the facts of the present case. The Plaintiff has not alleged that the Board undertook anything resembling the type of publicity campaign accusing the plaintiff of criminal activity as was the case in Quinn. See Grunberg v. Board of Educ. For the City School Dist. Of the City of New York, No. cv-00-4124(DGT), 2006 WL 845389, at *8 (E.D.N.Y. Mar. 30, 2006) (noting that in Quinn, the “defendants, through the media, made explicit accusations that the plaintiff engaged in criminal activities.”). In the present case, the Defendants made no statements to anyone, much less the media that the Plaintiff engaged in criminal or unethical conduct. The Plaintiffs allegations do not amount to the type of widespread public smear campaign that was at issue in Quinn needed to make out a stigma-plus claim. The Court therefore grants the Defendants’ motion to dismiss the Plaintiffs stigma-plus due process claim. iv. Monell Claim In Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities cannot be held liable for constitutional torts under 42 U.S.C. § 1983 on a respondeat superior theory but could be liable where execution of a municipality’s policy or custom inflicts the injury. Because the Plaintiff has consented to withdrawing his equal protection claim and the Court has dismissed the Plaintiffs stigma-plus claim, the sole remaining Section 1983 claim is the Plain tiffs claim that he was denied due process when he was suspended and terminated without notice or hearing. The complaint is entirely devoid of any allegations that the Board had a custom, policy, or practice of terminating employees without providing pre-termination notice or a hearing. Plaintiff only alleges that the Board has a practice and policy of discriminating against individuals with disabilities. As Plaintiff fails to allege any policy or custom that resulted in his due process injury, he has failed to plausibly state a claim for municipal liability under Monell to maintain his Section 1983 claim against the Board and against Tyler in her official capacity. The Court therefore dismisses Plaintiffs due process claim against the Board and Tyler in her official capacity. The claim shall remain extant against Tyler in her individual capacity. v. Qualified Immunity Defendants argue that Tyler is entitled to the protections of qualified immunity on Plaintiffs Section 1983 claims. When reviewing a claim of qualified immunity, a court must consider “whether the facts that the plaintiff has alleged (See Fed. Rules Civ. Porc. 12(b)(b)(6), (c)) or shown (see Rule 50, 56) make out a violation of a constitutional [or statutory] right,” and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Although previously the Supreme Court prescribed a mandatory two-step analysis, considering first the constitutional violation prong and then the clearly established prong, the Court has since recognized that this rigid procedure “sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,” as “[t]here are cases in which it is plain that a constitutional right is not established but far from obvious whether in fact there is a constitutional right.” Pearson, 555 U.S. at 236-37, 129 S.Ct. 808. Thus, the Supreme Court has provided district courts with the discretion to decide the order in which the two prongs of the qualified immunity analysis are applied. Id. at 243, 129 S.Ct. 808. In providing the lower courts with the discretion to determine the order of qualified immunity analysis to be applied to a given case, the Supreme Court explicitly acknowledged that “there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question of whether the relevant facts make out a constitutional question at all.” Id. at 239, 129 S.Ct. 808. Qualified immunity “protects government officials from liability where the officials’ conduct was not in violation of a ‘clearly established’ constitutional right.” Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir.2012). “If the conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the [official] to believe that his conduct did not violate such a right, then the [official] is protected by qualified immunity.” Id. (quoting Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir.2011)). “Qualified immunity thus shields government officials from liability when they make ‘reasonable mistakes’ about the legality of their actions, and ‘applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal citations omitted) (quoting Pearson, 555 U.S. at 231, 129 S.Ct. 808). As the Court has dismissed Plaintiffs stigma-plus claim and the Plaintiff has withdrawn his equal protection claim, the Court will only consider whether qualified immunity applies with respect to Plaintiffs remaining Section 1983 due process claim. Defendants argue that Tyler is entitled to qualified immunity because the Plaintiffs alleged property interest in his employment was not clearly established and because Tyler’s interpretation of the employment agreement was objectively reasonable relying on the Second Circuit’s rationale in Taravella and Coollick v. Hughes. It is clearly established that a protectable property interest arises “ ‘where the state is barred, whether by statute or contract, from terminating (or not renewing) the employment relationship without cause.’” Taravella, 599 F.3d at 134 (quoting S & D Maintenance Co. v. Goldin, 844 F.2d 962, 967 (2d Cir.1988)). “It is also clear that the alleged property interest is constitutionally protected. [T]he state-law property interest of gov- eminent employees who may only be discharged for cause ... is a constitutionally protected property interest for purposes of the Fourteenth Amendment ... As such, [t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. (internal quotation marks and citations omitted). In Taravella, the Second Circuit concluded that an employer who terminated an employee without affording a pre-termination hearing was protected by qualified immunity because the employment agreement was ambiguous as a matter of law and the employer did not know about an alleged oral promise to provide union-like benefits including a pre-termination hearing. Id. at 135. Despite Defendants’ contrary contention, the employment agreement at issue in the present case is not ambiguous but clearly provides that Plaintiff could not be terminated without cause and therefore it created a property interest protected by due process. Because the agreement was clear and unambiguous, Tyler’s action could not be objectively reasonable as a matter of law as was the case in Taravella. In Coollick, the Second Circuit concluded that a superintendent was entitled to qualified immunity in connection with the elimination of a guidance counselor’s position. Coollick v. Hughes, 699 F.3d 211 (2d Cir.2012). The Second Circuit concluded that on summary judgment the superintendent’s actions were not objectively unreasonable because it was undisputed that the guidance counselor utilized grievance procedures provided for in a collective bargaining agreement, was provided with notice and a hearing, received a favorable decision restoring her status and awarding backpay and benefits. Id. at 220. The Second Circuit explained although the district court identified imperfections in the notice, the notice “conveyed to Coollick enough information to file a grievance. The Notice also gave Coollick an opportunity to respond by inviting her to submit any questions she may have to human resources.” Id. at 221. The Second Circuit explained that “viewed in the light most favorable to Coollick, Hughes’s actions lie somewhere in the gray area in the spectrum of what satisfies due process given the particular facts of this case. Hughes sent Coollick reasonably clear notice well in advance of any deprivation, which allowed Coollick to avail herself of the collective bargaining agreement’s grievance procedures.” Id. As discussed above, the facts of the Board’s complaint policy for non-unionized personnel and the Plaintiffs failure to utilize those procedures go beyond the allegations of the complaint and will not be considered at the motion to dismiss stage. At the motion to dismiss stage, the Court’s analysis of qualified immunity is limited to the allegations in the complaint which plausibly state that Plaintiff had a protected property interest in his employment and was suspended and then terminated without a hearing. On the basis of those allegations, qualified immunity cannot be established at the motion to dismiss stage. Instead, this is an issue which is best left to be raised in a motion for summary judgment. Whether Tyler’s actions were objectively reasonable in light of the Board’s complaint policy for non-unionized personnel is likewise a question best reserved for summary judgment. At this stage, the Court declines to find that qualified immunity protects Tyler. vi. Covenant of Good Faith and Fair Dealing Defendants argue that CFEPA is the exclusive remedy for Plaintiffs claim that Defendants breached the covenant of good faith and fair dealing when he was termi nated due to his disability in violation of public policy. “Superior court cases and district court cases have ... held that neither a wrongful discharge nor a breach of implied covenant claim is available where the plaintiff has adequate statutory remedies through which the alleged public policy violations can be enforced.” Hancock v. Stop & Shop Companies, Inc., No. CR9704061S, 1998 WL 951019, at *4 (Conn.Super.Ct. Dec. 29, 1998) (collecting cases). “To date, it does not appear that Connecticut’s appellate courts have fully addressed the issue of whether CFEPA provides [an] exclusive remedy” and “preempts common-law causes of action,” Hall-Duncan v. Bruce Museum, Inc., No. FSTCV106004998, 2011 WL 590652, at *3 (Conn.Super.Ct., Jan. 24, 2011) (collecting cases). It appears that superior court judges are split with respect to this issue. Id. (citing cases). As Plaintiff points out those cases that do find that claims for wrongful discharge or breach of implied covenant are precluded where the plaintiff has adequate statutory remedies evolved from cases where there was an at-will employment relationship. The Connecticut Supreme Court has explained that “[although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are enforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason presently, therefore, to enlarge the circumstances under which an at will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety ... derived from some important violation of public policy.” Magnan v. Anaconda Indus., Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984). Consequently, employees who are terminable at-will can only maintain a claim for breach of the covenant of good faith and fair dealing or wrongful discharge on the basis that their termination was in violation of public policy, unlike an employee who is terminable only for cause. Because the Plaintiffs employment was not terminable at-will, he is not limited to bringing a claim for breach of the covenant of good faith and fair dealing on the basis of a public policy violation. However, Plaintiff has chosen to expressly predicate his claim on the basis of such a public policy violation. The Connecticut Supreme Court has explained in the context of a claim for wrongful discharge that “[a] finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-60, 745 A.2d 178 (2000). The Connecticut Supreme Court concluded that where there existed a statutory remedy for that particular public policy violation, the claim for wrongful discharge was “precluded by virtue of the existence of [that] statutory remedy.” Id. at 161-62, 745 A.2d 178. Connecticut courts have extended the Supreme Court’s logic in Burnham to preclude claims for breach of the covenant of good faith and fair dealing where there are adequate statutory remedies through which the alleged public policy violations can be enforced. See e.g., Campbell v. Town of Plymouth, 74 Conn.App. 67, 73-76, 811 A.2d 243 (2002) (concluding that Conn. Gen.Stat. § 31-51m provides the exclusive remedy and precluded the plaintiff from pleading any alternative, common-law cause of action including breach of covenant of good faith and fair dealing); Powell v. Greenwald Indus., Inc., No. CV095013578, 2010 WL 2383784, at *5 (Conn.Super.Ct. April 29, 2010) (concluding on the basis of the analysis contained in Burnham that CFEPA provided the “exclusive remedy for the plaintiffs claim of a breach of the implied covenant of good faith and fair dealing” as the “plaintiff relies exclusively on the public policy embodied in the CFEPA as the basis for this claim, as such, the CFEPA provides the exclusive relief.”); see also Hall-Duncan, 2011 WL 590652, at *4-5 (striking plaintiffs wrongful discharge claim stemming from alleged age discrimination on the basis that “CFEPA provides the plaintiffs exclusive remedy.”). This Court agrees with the reasoning of these cases. Based on an application of the Connecticut Supreme Court’s analysis and logic in Burnham, the Plaintiffs claim for breach of the covenant of good faith and fair dealing based on violation of public policy embodied in CFEPA must be precluded as Plaintiff has failed to establish that CFEPA does not afford an adequate remedy to address the public policy violation. As the Powell court concluded, because the Plaintiffs implied covenant claim is expressly based on a violation of the public policy embodied in CFEPA, CFEPA provides the exclusive relief. Plaintiff argues that this line of precedent is not applicable to his case because he was not an at-will employee. However, Plaintiff fails to explain why this distinction makes a difference. As discussed above although the Plaintiff was not limited to asserting an implied covenant claim on the basis of a public policy violation as an at-will employee would be, he chose to assert this type of claim. This Court sees no reason why the rationale of these cases would not also apply to his claim where his claim is likewise predicated on the violation of public policy embodied by a statute upon which he asserts a claim and which statute he fails to establish provides an inadequate remedy. Accordingly, the Court grants Defendants’ motion to dismiss Plaintiffs breach of the covenant of good faith and fair dealing claim. vii. Punitive Damages Defendants argue that Plaintiffs claim for punitive damages against the Board should be dismissed. As the Court has dismissed the Plaintiffs Section 1983 claims against the Board and Tyler in her official capacity, the Court need not address Defendants’ arguments regarding punitive damages under federal law. Defendants argue that under Connecticut state law it is impermissible to award punitive damages against a municipality on public policy grounds. [Dkt. #32, Mem. p. 28]. The Connecticut Appellate court has noted that “[i]n the overwhelming majority of jurisdictions which have considered [whether a municipality is liable for punitive damages], it is now firmly established that exemplary or punitive damages are not recoverable unless expressly authorized by statute or through statutory construction.... In denying punitive or exemplary damages, most courts have reasoned that while the public is benefitted by the exaction of such damages against a malicious, willful or reckless wrongdoer, the benefit does not follow when the public itself is penalized for the acts of its agents over which it is able to exercise but little direct control.” City of Hartford v. Int’l Ass’n of Firefighters, Local 760, 49 Conn. App. 805, 717 A.2d 258, 266 (1998) (internal quotation marks and citations omitted). The parties have failed to substantively brief whether punitive damages have been authorized by statute or through statutory construction in connection with any of the state law claims at issue. For example, at least one court has found that an award of punitive damages against a municipal entity under CFEPA does not violate public policy. See Jackson v. Hartford Bd. of Educ., No. KNLCV095009854S, 2009 WL 7630238, at *2 (Conn.Super.Ct. July 27, 2009). It is really premature to determine whether punitive damages are available at this stage in the litigation in view of the inchoate nature of the briefing particularly given the fact that summary judgment could further narrow the claims at issue or result in judgment being entered for the Defendants. In view of this, the parties may raise the issue of the appropriateness of punitive damages after summary judgment. Conclusion Based upon the above reasoning, Defendants’ [Dkt. #31] motion to dismiss is DENIED IN PART and GRANTED IN PART. The Plaintiffs stigma-plus due process, equal protection, implied covenant of good faith and fair dealing claims have been dismissed. In addition, Plaintiffs due process claim against the Board and Defendant Tyler in her official capacity have also been dismissed and Plaintiffs ADA and Section 504 claims against Defendant Tyler are dismissed. IT IS SO ORDERED. . Further factual development as to how this policy worked in practice must be conducted for the Court to determine on summary judgment or at trial whether the procedures afforded under the policy satisfied the requirements of due process irrespective of whether the Plaintiff failed to utilize those procedures or not. . The Court also notes that Connecticut courts are split on the issue of whether punitive damages are even available for CFEPA violations in an appropriate case. See Kariuki v. Health Resources of Rockville, Inc., No. CV116003960S, 2011 WL 6934695, at *2 (Conn.Super.Ct. Dec. 7, 2011).

MEMORANDUM AND ORDER JULIE A. ROBINSON, District Judge. Plaintiff American Civil Liberties Union of Kansas and Western Missouri brought this action pursuant to 42 U.S.C. § 1983 for redress of alleged violations of its members’ constitutional rights by Defendant Sally Praeger’s enforcement of Kansas House Bill 2075, codified as Kan. Stat. Ann. § 40-2,190 (“the Act”). The Act prohibits insurance companies from offering comprehensive health insurance plans that cover abortions, unless the abortion is required to prevent the death of the mother. On June 15, 2012, Plaintiff sought summary judgment (Doc. 57), arguing that the challenged statute violates its members’ rights to privacy and liberty, as protected by the U.S. Constitution’s Due Process Clause. Specifically, Plaintiff argues that the Act’s purpose is improper, that is, that the legislature’s predominant purpose in passing the Act was simply to impede access to abortion care, not to serve legitimate state interests. Although Plaintiff initially argued that the challenged statute violates the Constitution’s equal protection clause as well, Plaintiff did not pursue this claim on summary judgment. Plaintiff also has not sought summary judgment on its claim that the statute has the unconstitutional effect of imposing a substantial obstacle to obtaining abortions. On July 6, 2012, Defendant filed a cross motion for summary judgment (Doc. 65), arguing that the Act does not have the predominant purpose of imposing a substantial obstacle to obtaining abortions and that the Act does not have an unconstitutional effect. Both motions are currently before the Court and are fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants in part and denies in part Defendant’s cross motion for summary judgment and denies Plaintiffs cross motion for summary judgment. 1. Legal Standards Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.” A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” An issue of fact is “genuine” if “ ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation. “Where, as here, the parties file cross motions for summary judgment, [the Court is] entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.” Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” II. Uncontroverted Facts Many of the relevant facts in this case are not controverted for purposes of summary judgment. In 2011, the Kansas Legislature passed a series of laws addressing abortion coverage, including section eight of the Act, which prohibits insurance companies from covering “elective” abortions in their comprehensive health insurance policies delivered, issued for delivery, amended, or renewed on or after July 1, 2011. The Act categorizes as elective any abortion for any reason other than to prevent the death of the mother upon whom the abortion is performed. Thus, the Act prohibits coverage for abortions that are necessary to prevent severe and permanent harm to the woman’s health, such as organ failure, disability, and loss of fertility, to the extent that such effects would not lead to the death of the mother. There are no exceptions for the health of the mother, for a nonviable fetus, or for pregnancies that result from rape or incest. Insurance companies may only provide coverage for these and other elective abortions in a separate rider, which must fully cover the cost of elective abortions per enrollee as determined on an average actuarial basis. Plaintiff ACLU of Kansas and Western Missouri has members who have lost insurance coverage because of the Act, including a member who has insurance through her employer but whose employer has not elected to purchase a rider, and whose insurance company does not offer riders to individual group members. The cost for an abortion in a clinic ranges from $450 to $1675. If the abortion is performed in a hospital — which is often the case in situations where the woman’s health is endangered or there are fetal problems — it can cost upwards of $10,000. Some women lack the finances to pay for an abortion out of pocket, and some are forced to delay an abortion while gathering the necessary funds to pay for an abortion. As the pregnancy advances, the cost of an abortion increases, and the procedure carries more risks. Prior to the Act’s passage, insurance companies comprising over 70% of the insurance market share in Kansas included abortion coverage in their comprehensive policies. But after the Act’s passage, not all of these insurance companies decided to offer riders to all of their customers. For example, several do not offer riders to individuals on individual plans or to small groups. Further, even if a rider is offered for a group plan, the employer alone elects whether to purchase a rider, not the individual employee, and if an individual employee wanted to purchase an abortion rider after her employer elected not to, she would essentially have to forego the policy offered by her employer and buy an individual policy from an insurance company that offered riders to their individual policy holders. Thus, purchasing the rider will prove difficult for many women. Even if a rider is available, a woman (or employ er) cannot wait until she knows she needs an abortion to buy it. Rather, she must buy the rider prior to becoming pregnant, because companies generally impose a long waiting period between the time the rider was purchased and when it can be used to cover an abortion. The insurance companies do not anticipate that many, if any, riders will be sold, perhaps due to the difficulty in obtaining the riders. The Conference Committee Report Brief for House Bill 2075 states that “proponents” of the bill intended it to ensure that private citizens and businesses do not end up financing other person’s abortions through premium payments and notes that seven states have passed similar legislation, although this is not a statement of legislative intent. At least some insurance companies pool the premiums for abortion riders together with other premiums and other sources of income to pay all claims, including abortion claims. Prior to the Act, if an employer wanted to exclude abortion coverage from its group policy, it could do so. In calendar year 2011, 7851 reported abortions were performed in Kansas. In a similar time span (July 2010 to July 2011), the three major health insurers in Kansas with a combined total of over 70% of the market share had a total of 137 paid claims for abortions (not including treatment for ectopic pregnancy and miscarriage management, and not including claims in self-insured plans). The Act has not resulted in significant changes in health insurance premiums at the individual level. Some insurance companies have not reduced premiums at all as a result of the Act or will not implement changes for several years, and insurance companies that have provided figures report per participant plan cost changes in the range of $.04 per month to $.20 to $.50 per month. These changes are expected to result in decreased aggregate costs in the range of tens of thousands up to the low hundreds of thousands of dollars across all insureds in Kansas. There is no indication that Kansas legislators contacted the major insurance companies that covered abortions in their comprehensive policies prior to the Act’s passage about the Act’s expected effects on premium prices. The Act has not caused abortion providers to change the amount they charge for performing an abortion, although the out-of-pocket costs for women seeking abortions no longer covered by insurance will be higher. Some women seeking treatment have been turned away because they are unable to pay for an abortion. III. Discussion Plaintiff argues that the Act is unconstitutional because its predominant purpose is to impede access to abortion, not to serve legitimate state interests. Defendant argues in response that the Act does not have the predominant purpose of imposing a substantial obstacle to obtaining abortions but rather that the Act serves several legitimate state interests. Defendant also seeks summary judgment on the question of whether the Act has the effect, not just the purpose, of imposing a substantial obstacle on women seeking an abortion. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court reaffirmed several core holdings from Roe v. Wade, including “a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State,” and “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Casey recognizes the right of a woman to have an abortion before viability, but this is not an absolute right. The state may interfere with that right, provided that the interference is not undue, that is, that it does not create a substantial obstacle to a woman’s decision to exercise her right. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” The Tenth Circuit also recognizes that, “under Casey, a law is invalid if either its purpose or effect is to place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus.” This creates a two part test, with the first part focused on the law’s purpose and the second part focused on the law’s actual effect. In determining whether a statute’s purpose is proper, the Tenth Circuit has stated that a “[l]egislative purpose to accomplish a constitutionally forbidden result may be found when that purpose was the predominant factor motivating the legislature’s decision. Such a forbidden purpose may be gleaned both from the structure of the legislation and from examination of the process that led to its enactment.” And the absence of a clearly constitutional intent does not allow the Court to intuit an unconstitutional purpose; even facing apparently unconstitutional effects from a law, the Court does “not assume unconstitutional legislative intent.” In the summary judgment context, to avoid a nonsuit on the purpose prong, Plaintiff must produce some evidence suggesting an unlawful motive. The Court address the purpose question first. A. The Purpose Prong Plaintiff has failed to provide any evidence that the Legislature’s predominant motivation in passing the Act was only to make abortions more difficult to secure, and this failure is fatal to its motion for summary judgment. In its first argument, Plaintiff notes that House Bill 2075 passed during the same session as several other bills restricting access to abortion, some of which have been en joined by the courts. But as the Court noted when addressing Plaintiffs motion for a preliminary injunction in this case, “the mere fact that the [Legislature passed other provisions of dubious constitutional validity does not speak to the legislative purpose in adopting this provision.” For its second argument, Plaintiff also argues that the Act does nothing to further any of the particular interests the Supreme Court has sanctioned as permissible bases for regulating abortion, but the Court similarly rejected this argument when addressing the preliminary injunction motion: The court rejects plaintiffs suggestion that any State interest other than protecting the potentiality of human life or maternal health necessarily renders a state law concerning abortion invalid. Casey observed that a statute which, “while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice” cannot be considered a permissible means of serving its legitimate ends. Casey does not limit the state interests that could underlie all state regulations touching on abortion. Thus, Plaintiffs first two arguments suggesting an improper purpose fail. In its final argument, Plaintiff argues that the Act, as written, simply cannot serve any proper state interests, and thus that the Act must be serving an improper purpose. In reply, Defendant suggests several state interests allegedly served by the Act: 1) promoting childbirth over abortion; 2) protecting the consciences of Kansas citizens who object to paying insurance premiums that are calculated to include the costs of elective abortions; 3) lowering insurance costs; and 4) making the public more aware of the actual cost of abortion. Plaintiff argues that the first interest is improper and that the other interests are merely pretextual, such that the Act serves no legitimate state interest. But in this argument, Plaintiff again misconceives the nature of its burden. The Court cannot assume unconstitutional legislative intent just because an Act lacks an obvious, constitutionally legitimate intent, and so Plaintiff must produce some evidence suggesting an unlawful motive. Plaintiff has failed to do so, and so the Court need not address the legitimacy of Defendant’s suggested interests. Even if the lack of a legitimate legislative intent served by the Act were evidence of an unconstitutional motive, Plaintiffs argument would still fail; three of the four interests propounded by Defendant are legitimate state interests served by the Act. Defendant’s first claimed state interest, promoting childbirth over abortion, is a recognized state interest, but the state cannot enact laws to serve it if those laws simply make abortions more difficult to secure, without serving any other purpose. As the Casey Court notes, a law that only seeks to strike at the right to an abortion itself, not a law that serves another valid purpose, is an invalid law. For example, the state may enact a measure designed to encourage births that does not further a health interest, if it is a persuasive, not merely a restrictive, measure. And a law that serves an educational role or that otherwise serves a legitimate state interest is not invalid merely because it impacts abortion. “The fact that a law serves a valid purpose, not one designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Here, then, Defendant’s first purported state interest cannot be the sole interest served by a valid statute; if this were the only interest served by the Act, the Act would be unconstitutional. Nevertheless, although the first purported interest is not legitimate, the Act may still serve any of the remaining three interests suggested by Defendant, and Plaintiff offers no evidence that the other three interests suggested by Defendant are merely pretextual or designed to cover up an unconstitutional purpose. Addressing the “conscience” interest, Plaintiff notes that premiums for abortion riders are pooled with all other premiums to pay abortion claims, so in one sense this legislation is an accounting sleight of hand, giving the illusion that the abortion funds are separate. Plaintiff also notes that pri- or to the Act’s passage, an employer could already choose to exclude abortion coverage from its group policy, making the Act unnecessary for employers who did not wish to provide insurance including abortion coverage. Addressing the insurance cost interest, Plaintiff finally notes insurance rates will likely change very little, if at all, as a result of the Act. But Plaintiffs objections do not undercut the three remaining purported state interests. First, The Act still allows Kansas citizens who object to paying insurance premiums that are calculated to include the costs of elective abortions to avoid paying those premiums, whether they are covered as individuals or as part of a group plan. Even though the premiums are pooled, the cost of abortion services is not factored into the premium paid by those in plans that do not cover abortions. Second, although, as Plaintiff indicates, the Act does not significantly lower insurance rates for individuals, the Act will likely lower insurance costs in the aggregate, particularly for businesses employing large numbers of people. And third, the Act could make individuals seeking abortions more aware of the actual cost of abortion, at least for those individuals who previously would have paid for an abortion with insurance. All three of these interests are legitimate state interests, and the Court finds no evidence they are merely pretextual. As the Court stated in the preliminary injunction order: Whether one agrees or disagrees with this asserted cost and/or “freedom of conscience” rationale, there is nothing in the record to show that this was not the legislature’s purpose in adopting the law. Moreover, the claimed interests are rational ones that do not necessarily manifest a legislative purpose to create a substantial obstacle to obtaining an abortion.... Whether the practical effect of the law is to actually create a substantial obstacle is another question, but plaintiff has not attempted in this motion to put on evidence to establish such an effect, and the court expresses no opinion here on that question. Insofar as the purpose of the law is concerned, the likely effect of it is not so self-evident that it must be said to manifest a legislative intent to obstruct the right to abortion. In sum, Plaintiffs argument that the Act must be predominantly motivated by an improper purpose because it does not serve any legitimate state interest fails. Finally, Plaintiff argues that these interests are legally insufficient to justify burdening abortion. But this argument misunderstands the purpose test in Casey. The purpose test measures only whether the statute’s purpose was to impose an undue burden on abortion rights. Casey holds that “an undue burden is an unconstitutional burden,” even if the statute imposing the burden serves an important state interest; there is no balancing test. For these reasons, Defendant’s cross motion for summary judgment on the question of whether the Act’s predominant purpose was to impose an undue burden on abortion rights is granted, and Plaintiffs cross motion for summary judgment on the same issue is denied. B. Effect of the Act Defendant also seeks summary judgment on the question of whether the Act has the effect of imposing a substantial obstacle on a woman’s right to an abortion. As a general matter, a law is deemed unconstitutional if it creates on undue burden on the right to an abortion, that is, if its “effect is to place a substantial obstacle in the path of a woman seeking to abort a nonviable fetus.” Defendant suggests she is entitled to summary judgment on this issue based on three arguments, but all three arguments fail. First, Defendant argues that “[i]n short, plaintiff utterly failed to demonstrate that the [Act] has had any actual impact on women seeking abortions in Kansas.” But the Act does impact at least some women seeking an abortion in Kansas. As the parties have agreed, prior to the Act’s passage, companies comprising over 70% of the market share in Kansas included abortion coverage in their comprehensive policies, coverage that is now only available in a separate rider. Purchasing the rider will prove difficult or impossible for many women. From July 2010 to July 2011, the three major health insurers in Kansas with a combined total of over 70% of the market share had a total of 137 paid claims for abortions, and there is no reason to believe that this number is significantly higher or lower than average. Many of these women will now have to pay the full cost of their abortion, without the benefit of insurance coverage. This increased cost to women seeking an abortion, construed in the light most favorable to the nonmoving party, creates a genuine issue of material fact concerning the existence of an impact on women seeking an abortion in Kansas. Second, Defendant argues that, even if the Act imposes a burden, the burden is not undue. Here, Defendant attempts to distinguish between a woman’s ability to make a decision to have an abortion and her ability to pay the financial cost of procuring an abortion, relying primarily on cases addressing government funding for births and abortions. Defendant relies on the Supreme Court’s statement in Harris v. McRae that “it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” Defendant also highlights Harris’s statement that the freedom protected by the Due Process Clause “does not confer an entitlement to such funds as may be necessary to realize all of the advantages of that freedom.” Defendant finally relies on Maher v. Roe’s holding that an indigent woman who desires an abortion suffers no disad vantage as a consequence of a state’s decision to fund childbirth because “the State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.” Based on these cases, Defendant argues that the Act only affects a woman’s ability to pay for an abortion, not her decision to have one. While there may be a difference between those two factors in cases involving state funding of abortion, owing to the state’s role in providing funds for healthcare in those cases, here it is a distinction without a difference. The state has imposed a restriction on a private funding mechanism for abortion by preventing many women from continuing to pool resources under insurance policies in order to pay for abortions. This restriction burdens women’s ability to pay using private funds, which is fundamentally different from refusing to provide state funds to women to pay for abortions. The first is an added burden, while the second is only a refusal to remove a burden. And the restriction in this case directly impacts how much a woman with insurance will pay out of pocket for an abortion. As the parties agreed, the cost for an abortion in a clinic ranges from $450 to $1,675, and hospital abortions can cost upwards of $10,000. Some women lack the finances to pay for an abortion out of pocket, and some are forced to delay an abortion while gathering the necessary funds to pay for an abortion; with insurance that covered the abortion, they would not face these significant challenges. The undisputed facts on this issue, construed in the light most favorable to the nonmoving party, create a genuine issue of material fact concerning whether the Act imposes an undue burden on women seeking an insurance-funded abortion in Kansas. Third, Defendant argues that, even if the Act does impose a substantial burden on some women, the Act does not impose a substantial burden in a large fraction of the cases in which the Act is relevant, as required to meet the undue burden standard under Casey. In Casey, the Supreme Court held that showing that a statute will operate as a substantial obstacle in a large fraction of the cases in which it is relevant is sufficient, albeit not necessary, to show that the statute creates an undue burden. Whether the large-fraction criteria is met is determined largely by the number of cases in which the statute is relevant — the denominator in the large-fraction equation. If the denominator casts a wide net, it becomes significantly more difficult to show that the statute substantially burdens a large fraction of those included in the denominator. Here, Defendant urges the Court to consider the number of cases in which the statute is relevant as the total number of people in Kansas, claiming that all people in Kansas are affected by the statute. In the alternative, Defendant argues that the Court should consider the group of women who had insurance covering abortion before the Act passed, and who have now lost that insurance, regardless of whether they sought or will seek an abortion. Defendant claims that the number of women actually affected by the change is only a tiny percentage of either group, because most of those women will not seek an abortion covered by insurance in a given year. Plaintiff argues that the appropriate denominator is women who had insurance coverage for abortion, who no longer do, but who may need an abortion at some point. The Supreme Court provides guidance on choosing a denominator in Casey. In assessing a spousal-notification requirement for abortions, the Casey court took as its denominator the less than one percent of women who were “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” The Court counted only married women, not their husbands. The Court counted only those seeking abortions, not all married women. The Court counted only those not willing to notify their husbands, excluding those who would have notified their husbands absent the law in question. The Court accepted this circumscribed group because, it reasoned, these women were the people who would be affected by the statute, that is, the women whose access to abortion would be limited by the statute. Here, then, the appropriate denominator is women seeking abortions who would pay for the abortion with insurance but cannot because of the Act. If husbands who might object to their wife having an abortion were not included in Casey, then the entire population of Kansas cannot be included here. Further, the pool of women who had insurance coverage for abortions but have now lost it is still too broad, given that the Casey Court only included those women seeking an abortion. And, following that reasoning, the denominator cannot include women who would have paid for their own abortion even if they had insurance that could have paid for it; the Act does not affect these women. The Court acknowledges that using this figure as the denominator makes the large-fraction requirement a low bar, but, as the Casey Court noted, whether the Act serves as an undue burden “must be judged by reference to those for whom it is an actual rather than an irrelevant restriction.” In Kansas, as noted, the three major health insurers had a total of 137 paid claims for abortions over the course of a single year, and taking this figure as a rough approximation of the annual average, it suggests that the denominator should be in the range of 140 women. These women now have to pay for their abortion, should they choose to have one, directly, and not with insurance funds. Absent more evidence, it is difficult to determine whether this burden is an undue one for a large fraction of these women, but the significant additional costs, considered in the light most favorable to Plaintiff, create a genuine issue of material fact concerning the number of these women whose right to an abortion is unduly burdened by the Act. Thus, Defendant’s cross motion for summary judgment on the question of whether the Act has the effect of imposing a substantial obstacle on a woman’s right to an abortion will be denied. This issue remains to be decided at trial. IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs Motion for Summary Judgment (Doc. 57) is DENIED. IT IS FURTHER ORDERED that Defendant’s Cross Motion for Summary Judgment (Doc. 65) is GRANTED in part and DENIED in part. IT IS SO ORDERED. . Fed.R.Civ.P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir.2008). . City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.2004). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671); see Kannady, 590 F.3d at 1169. . Adams, 233 F.3d at 1246. . Fed.R.Civ.P. 56(c)(4). . Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006) (citation omitted). . James Barlow Family Ltd. P'ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir.1997) (citation omitted). . Celotec, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Conf. Comm. Rep. Br., H. Bill 2075, at 8-9 (May 12, 2011). . Id. at 1. . 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). . Id. at 846, 112 S.Ct. 2791. . Id. . Id. . Id. at 874, 112 S.Ct. 2791 . Id. (emphasis added). . Jane L. v. Bangerter, 102 F.3d 1112, 1116 n. 5 (10th Cir.1996) (citing Casey, 505 U.S. at 877, 112 S.Ct. 2791). . Id. at 1118. . Id. at 1116. . Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). . Id. ("If the motion at issue here were a defendant's motion for summary judgment, and if the plaintiff's only basis for proceeding with the suit were a claim of improper legislative purpose, one would demand some evidence of that improper purpose in order to avoid a nonsuit.”). . 815 F.Supp.2d 1204, 1216 (D.Kan.2011). . Id. at n. 7 (citing Casey, 505 U.S. at 877, 112 S.Ct. 2791) (emphasis added). .Casey, 505 U.S. at 886, 112 S.Ct. 2791 (emphasis added). . 815 F.Supp.2d at 1216. . Casey, 505 U.S. at 877-878, 112 S.Ct. 2791. . Jane L., 102 F.3d at 1116 n. 5 (citing Casey, 505 U.S. at 877, 112 S.Ct. 2791). . Doc. 66, at 31. . 448 U.S. 297, 316, 100 S.Ct 2671 65 L.Ed.2d 784 (1980). . Id. at 317-18, 100 S.Ct. 2671. . 432 U.S. 464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). . Casey, 505 U.S. at 895, 112 S.Ct. 2791. But see Planned Parenthood of Rocky Mountains Serv., Corp. v. Owens, 287 F.3d 910, 919 (10th Cir.2002) (“Casey ... prescribes a showing that the state abortion regulation operates in a large fraction of the cases ... as a substantial obstacle to a woman's choice to undergo an abortion.”) (citations and quotation marks omitted). . Casey, 505 U.S. at 895, 112 S.Ct. 2791. . Id.

OPINION AND ORDER CARMAN, Judge: Before the Court is a motion to dismiss filed by Defendant Tenacious Holdings, Inc. (“Tenacious”), formerly known as Ergodyne Corporation (“Ergodyne”). Tenacious asks the Court to dismiss the case pursuant to USCIT Rule 12(b)(5) for failure to state a claim upon which relief can be granted. In brief, Tenacious argues that the claims underlying the suit of the United States were required to be brought, pursuant to USCIT Rule 13(a), as compulsory counterclaims in a separate case at the Court of International Trade (“CIT”)—the action Ergodyne, Inc. v. United States, Court No. 10-00200 (“the Ergodyne case”). Tenacious reasons that the government’s failure to assert the penalty claims underlying this case as counterclaims in Ergodyne requires that the Court dismiss the present case. The Court finds that USCIT Rule 13(a) does not prevent the government’s penalty suit from going forward, and the motion to dismiss will therefore be denied. Background To resolve Tenacious’s motion to dismiss, it is first necessary to set forth the proceedings that have occurred in this case and the interrelated case of Ergodyne. On July 14, 2010, Tenacious filed the Ergodyne case, naming the United States as defendant. See Summons, Court No. 10-00200, ECF No. 1. Tenacious initiated the Ergodyne case by the filing of a summons, but no complaint — an option permitted by USCIT Rule 3(a). Under USCIT Rule 83, cases initiated by the filing of a summons without a complaint may be placed on the Court of International Trade’s (CIT) reserve calendar for a period of 18 months, or longer if the Court grants an extension, before a complaint must be filed. The Ergodyne case was permitted to remain on the reserve calendar without the filing of a complaint until July 30, 2012 on consent of the United States. On June 22, 2012, while the time for filing a complaint in the Ergodyne case was under extension, the government filed this penalty case as Court No. 12-00173 (the “Tenacious case”). About one month after the government filed the Tenacious case, Tenacious sought an extension until the end of 2012 for the Ergodyne case to remain on the reserve calendar. The government opposed the motion. The Court nevertheless granted a partial extension in the Ergodyne case, delaying Tenacious’s deadline for the filing of its complaint until November 13, 2012 (later extended until December 13, 2012 on the consent of the government). During the second extension of time for the Ergodyne case to remain on the reserve calendar, Tenacious filed the motion to dismiss the Tenacious case that is currently before the Court. Tenacious argues by its motion that the penalty claims asserted by the government must be dismissed because they are actually counterclaims that may only be pleaded in the Ergodyne case. The government filed its opposition to Tenacious’s motion to dismiss the Tenacious case on November 7, 2012, and Tenacious filed a reply in support of the motion on December 3, 2012. The motion has been under submission to the Court for decision since December 17, 2012. On December 22, 2012, five days after Tenacious filed its motion to dismiss the Tenacious case, Tenacious moved for a stay of all proceedings in the Ergodyne case until such time as its motion to dismiss the Tenacious case was decided. The government opposed. The court denied Tenacious’s request for a stay and set February 22, 2013 as the deadline by which Tenacious was required to file its complaint in the Ergodyne case. Tenacious timely filed its Ergodyne complaint and the United States answered on May 9, 2013. Jurisdiction & Standard of Review The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1582 (2006). Tenacious’s motion to dismiss is brought pursuant to USCIT Rule 12(b)(5), which per mits a party to assert, in motion form, the defense of “failure to state a claim upon which relief can be granted.” In deciding such a motion, “the Court assumes that all well-pled factual allegations are true, construing all reasonable inferences in favor of the nonmovant.” Cisco Systems, Inc. v. United States, 804 F.Supp.2d 1326, 1330, 35 CIT -, - (2011) (internal quotations and citations omitted). The Supreme Court has indicated that, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Discussion I. Contentions of the Parties A. Tenacious 1. Penalty Claims Are Compulsory Counterclaims Tenacious starts from the premise that, as to the 35 entries whose classification is disputed in the Ergodyne case and upon which the United States also seeks to impose penalties in the current case, the government can only seek to recover civil penalties for negligent misclassifieation by filing its penalty claim as a counterclaim in the Ergodyne case. Def.’s Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def. Mem.”) at 3-4, ECF No. 10-2. Tenacious claims this despite the fact that (as of the time Tenacious filed this motion) it had not yet filed a complaint in the Ergodyne case; in Tenacious’s view, the absence of a complaint in the Ergodyne case was a difficulty that the government was obliged to overcome by forcing Tenacious to file its complaint. Def. Mem. at 4. As statutory support for this theory, Tenacious invokes 28 U.S.C. § 1583, which vests exclusive jurisdiction in the CIT to enter judgment on “any counterclaim” in a civil action filed at the CIT, if the counterclaim “involves the imported merchandise that is the subject matter of such civil action” or “is to recover upon a bond or customs duties relating to such merchandise.” Id. at 4. Tenacious also cites US-CIT Rule 13(a), which states: “A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim (1) involves the imported merchandise that is the subject matter of the civil action, or (2) is to recover on a bond or customs duties relating to such merchandise.” Tenacious suggests that § 1583, taken in conjunction with Rule 13(a), requires that “a claim must be pleaded as a counterclaim in the CIT if it involves the imported merchandise that is the subject matter of [the] civil action.” Def.’s Reply in Supp. of Def.’s Mot. to Dismiss (“Reply”) at 3, ECF No. 19 (emphasis added, internal quotations omitted). Tenacious reasons that the government’s penalty claims in the Tenacious case involve “the imported merchandise that is the subject” of the Ergodyne case because they stem in large part from the classifications Tenacious gave to entries that are the focus of the Ergodyne classification case. Def. Mem. at 6-7 (internal quotations omitted). It was therefore mandatory, according to Tenacious, for the government to bring those claims as counterclaims in the Ergo-dyne case, and to avoid initiating a separate penalty case as the government did in commencing the Tenacious case. Id. at 7. 2. Failure to Assert Penalty as Counterclaim Requires Dismissal Tenacious urges the Court to dismiss the government’s complaint as to the 35 entries that overlap with the Ergodyne case, claiming that such a consequence is required for violation of the compulsory counterclaim rule. Id. at 9-11. Tenacious gets to this conclusion by claiming that, “[b]ecause the Government’s claims are barred, the Court cannot grant relief thereupon” and that “[t]he principles of judicial economy, expediency, and fairness weigh heavily in favor of dismissing this action, rather than allowing two duplicative lawsuits ... to move forward on separate tracks.” Id. at 10. 3. Dismissal Required as to Entries Not Overlapping Ergodyne Case The penalty claims in the Tenacious case are based on allegedly negligent misclassification of the 35 entries underlying the Ergodyne case, as well as 16 other entries. Id. at 11. Tenacious suggests that the complaint in the Tenacious case should be dismissed in its entirety, and not just as to the 35 entries that overlap, “without prejudice to the filing of a new, properly-pleaded action,” apparently as a punishment “because there was no reasonably [sic] excuse for the government’s disregard of the applicable rules.” Id. Tenacious supports this aspect of its argument by citing USCIT Rules 3(a) and 13(h), along with case law. Since the Ergodyne case was formally “commenced,” within the meaning of USCIT Rule 3(a), by the filing of a summons, argues Tenacious, the government should have known that it had to file any penalty claims in that action. Id. at 12. And while Tenacious admits that it filed no complaint in the Ergo-dyne case, and therefore the government could not yet file a counterclaim, Tenacious insists that the government was nevertheless barred from filing a separate penalty action. Id. Instead, Tenacious suggests that the government should have subjected Tenacious to motion practice in order to force Tenacious to file its complaint in the Ergodyne case, allowing the government to bring its penalty action via counterclaims there. Id. at 12-13. Specifically, Tenacious argues that the government had to employ USCIT Rule 13(h), which provides a mechanism by which a defendant “may file a motion demanding that the plaintiff file a complaint” which, “[i]f the court grants” the motion, would result in the plaintiff being obliged to file the complaint within 30 days. Id. at 13-14. Tenacious claims that the government’s failure to force the filing of a complaint in the Ergodyne case as a means to file its penalty claims in that action was tantamount to “wastfing] judicial resources” and the Tenacious case should be dismissed because the government “wantonly disregarded the Court’s rules.” Id. at 14-15. B. United States 1. Penalty Claims Are Not Compulsory Counterclaims The government, in countering Tenacious’s position, starts by noting the following language in USCIT Rule 13(a): “a pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party.” Pl.’s Resp. to Def.’s Mot. to Dismiss, ECF No. 16, at 5 (emphasis in original). The government views this language as indicating only “that parties must include in their answers any claims that they have at that time,” rather than providing any “limitations whatsoever on a party’s conduct pri- or to the filing of its answer.” Id. (emphasis in original). The government states that “neither USCIT Rule 13(a), nor any other authority, considers our already-filed penalty claims to be compulsory counterclaims to Ergodyne’s as-yet unfiled complaint.” Id. at 6. 2. Litigating Penalty Claims in Ergodyne Would Be Inefficient The government admits that penalty claims and classification claims may have “some overlap when, as here, the basis for a penalty allegation is an incorrect classification asserted on entry documents,” but argues that “there is not always overlap between a classification challenge and a penalty claim based on misclassification.” Id. at 7. The two kinds of actions also differ in jurisdictional bases, elements, and jury trial rights, the government asserts. Id. at 8. All of this would lead to inefficiency if the two kinds of claims were forced to be litigated in one action. Id. at 6-7. The government points out that the entries underlying the two claims also may differ, as they do here, requiring an additional action to cover the non-shared entries. Id. at 8. 3.The Government Cannot Force Filing of Complaint The government also rejects Tenacious’s claim that the government could have forced the filing of a complaint in the Ergodyne case by filing a USCIT Rule 13(h) motion, so that the government could then have brought its penalty claims in that action. The government gives four reasons this claim should fail: Rule 13(h) does not indicate that a failure to file a Rule 13(h) motion waives claims; Rule 13(h) permits the filing of a motion for the lodging of a complaint, but does not require it; since the Court can deny a Rule 13(h) motion, using such a motion to force filing of a complaint cannot be a mandatory prerequisite for asserting a claim; and even the granting of a Rule 13(h) motion would not always result in the filing of a complaint, since the plaintiff could voluntarily dismiss its complaint instead and thereby prevent the filing of a counterclaim. Id. at 10-11. 4.Tenacious’s View of Rule IS Encourages Inefficiency The government also points out that adopting the view of Rule 13 espoused by Tenacious would encourage gamesmanship by litigants before the CIT. Id. at 11. An importer anticipating a penalty claim, for instance, could file a classification claim and subsequently delay filing its complaint as long as possible “in the hope that the statute of limitations would expire before the Government could file an answer.” Id. This and other potential gamesmanship permitted by Tenacious’s view of Rule 13 would reduce litigation fairness and efficiency. Id. 5.Authorities Counter Tenacious’s View of Rule 13 The government also notes that case law from this court has rejected prior attempts by importers to preclude later penalty actions based on prior classification decisions on the same entries, and to forestall or compel penalty actions. Id. at 12 (citing cases). Similarly, the government notes that 19 U.S.C. § 1621 allows five years for the filing of a penalty action, and that requiring such actions to be asserted as compulsory counterclaims to classification cases brought far earlier would nullify that statute of limitations. Id. at 13. Finally, the government notes that it already attempted to elicit a complaint in the Ergodyne case by opposing a request for an additional six month extension for the filing of a complaint, and suggests that taking such a step was effectively the same as filing a Rule 13(h) motion. Id. at 13-14. II. Analysis According to USCIT Rule 13(a), “[a] pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim (1) involves the imported merchandise that is the subject matter of the civil action, or (2) is to recover on a bond or customs duties relating to such merchandise” (emphasis added). The Court of International Trade rule parallels the compulsory counterclaim rule under the same number in the Federal Rules of Civil Procedure. As the Supreme Court has explained in the context of the Federal Rules, the compulsory counterclaim requirement “was designed to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters. The Rule was particularly directed against one who failed to assert a counterclaim in one action and then instituted a second action in which that counterclaim became the basis of the complaint.” Southern Construction Co., Inc. v. Pickard, 371 U.S. 57, 60, 83 S.Ct. 108, 9 L.Ed.2d 31 (1962). This would typically take the form of a defendant in hypothetical Lawsuit # 1 failing to plead an intimately connected claim as a counterclaim, then later initiating (as the plaintiff) hypothetic Lawsuit # 2 against the plaintiff in Lawsuit # 1 on the basis of the very claim never raised in Lawsuit #1. A litigant’s violation of Rule 13(a) in this manner, by failing to assert claims as compulsory counterclaims, “is usually applied in subsequent litigation on res judicata or estoppel principles.” Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 350 (D.C.Cir.2003) (citing cases). In other words, referring back to the hypothetical example above, rather than asking the court to prevent Lawsuit #2 from continuing via an injunction or order of dismissal, the defendant in Lawsuit # 2 may claim that the matter has already been resolved in Lawsuit # 1 and avoid entry of a further judgment on the underlying transaction or occurrence via res judicata. See id. at 350-51. The current case is complicated by the Court of International Trade’s unique procedures for initiation of a suit brought pursuant to 28 U.S.C. § 1581(a) or (b). Under the Federal Rules of Civil Procedure, “[a] civil action is commenced by filing a complaint with the court.” Fed.R.Civ.P. 3. In contrast, an action in the CIT to challenge Customs’ denial of a protest is initiated by filing of a summons only, which comprises the initial pleading in such actions. 28 U.S.C. § 2632(b); USCIT Rule 3(a)(1); DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1317-18 (Fed.Cir.2006) (concluding that “the initial pleading in actions to contest the denial of a protest is the summons”). The Ergodyne case, in which Tenacious is the plaintiff under its former name of Ergodyne, challenges Customs’ denial of a protest and was, accordingly, initiated by the filing of a summons as the initial pleading, even though no complaint was filed at that time. See Docket, Court No. 10-00200. This unique procedure for initiating suit made a difference here because, under US-CIT Rule 7(a)(2), an answer can only be filed in response to a complaint and thus cannot be filed until such time as a complaint is filed. Eastalco Aluminum Co. v. United States, 14 CIT 724, 734, 750 F.Supp. 1135, 1142-43 (1990). Indeed, suits are initiated by complaint in the district courts and defendants may file an answer in response as soon as they like, but a plaintiff in a CIT classification case may, by rule, delay filing its complaint for over 18 months after commencement of suit. USCIT Rule 83(a) (providing 18 months for filing complaint, calculated from end of month in which summons was filed). This lengthy period for filing of a complaint can also be extended, with no explicit time limitations imposed on such extensions. USCIT Rule 83(d). In the Ergodyne case, the time for filing of a complaint was extended repeatedly — on one occasion, over the government’s opposition; the complaint was not filed until February 22, 2013, after the present motion was under submission to the Court for decision. See Docket, Court No. 10-00200. In the case before the Court, these procedural features of CIT classification lawsuits conspired to create a dilemma for the government: while the Ergodyne case sat dormant for well over two years, the statute of limitations for the government to sue for recovery of civil penalties expired as to several of Tenacious’s entries that were allegedly misclassified by negligence. This meant that the government faced the need to take action to preserve its access to legal remedies. The government then initiated this penalty suit. The government presents a tempting but ultimately flawed argument: that the language of USCIT Rule 13(a) only imposes requirements at the moment a pleading is filed, and therefore could not apply to the government because its time to answer in the Ergodyne case did not arise under May 9, 2013 (its deadline to answer). This argument appears at first blush to be supported by this passage in USCIT Rule 13(a): “a pleading must state as a counterclaim any claims that — at the time of its service — the pleader has against an opposing party” (emphasis added). This language lends itself to a reading that the rule’s obligation is strictly pinned to the moment of service of the answer and does not exist at other times. Such is the reading offered by the government. But the reading cannot be correct, because such an interpretation would undercut the core reason that the rule was implemented in the first place. As the Supreme Court stated in Southern Construction, Rule 13(a) of the Federal Rules of Civil Procedure “was designed to prevent multiplicity of actions,” and in particular to prevent a party that failed to assert a counterclaim from later initiating separate litigation on the basis of that claim. 371 U.S. at 60, 83 S.Ct. 108. But if the time of the Rule 13(a) obligation were read narrowly, the rule could no longer serve its purpose; every defendant could commence a collateral lawsuit based on the same imported merchandise, so long as it filed the collateral suit between the commencement of the primary suit and the deadline for answering. A too-narrow reading of the timing of Rule 13(a) would thus render the rule void, and must be rejected as counter to the underlying purpose of the rule. It is likely for this reason that courts have indicated that the counterclaim obligation arises upon commencement of suit, so that all claims must be asserted in the first-commenced action. Yet this reading, espoused by Tenacious, also leads to absurd results: when combined with the procedure for commencement of suit by summons, defendants are left unable to answer for over 18 months and are thus unable to assert any counterclaims as the statute of limitations period winds down. Tenacious offers a solution: the defendant with a counterclaim that cannot be brought should be required to file a US-CIT Rule 13(h) motion for a court order forcing the plaintiff to file its complaint, after which the defendant will be able to answer and assert its counterclaim. The Court rejects this reading of USCIT Rule 13 as manifestly unfair, since it would perversely allow plaintiffs to force defendants into motion practice just for the opportunity to file an answer. The Court agrees with the government that such an interpretation would open the door to procedural abuses in which plaintiffs could attempt to quell their defendants’ claims by delaying the defendants’ ability to answer and forcing them to incur the costs of motion practice simply to be able to answer the suit against them. The Court also agrees with the government that there is further cause for rejecting this argument because USCIT Rule 13(h) provides no guarantee that a motion brought to force the filing of a complaint will be granted. The Court has not located any authority directly on point to resolving this issue, and the parties have not alerted the Court to any such authority. However, other courts have resolved disputes requiring application of USCIT Rule 13(a) (or its analog in the Federal Rules of Civil Procedure) in circumstances that make those opinions instructive. Perhaps most relevant is Southern Construction. In Southern Construction, the Supreme Court addresses a situation created by a specific statutory arrangement under which the plaintiff “was required ... to split [his] claims and to bring two separate actions in two different districts.” 371 U.S. at 60, 83 S.Ct. 108. The court decided that Rule 13(a) of the Federal Rules of Civil Procedure “did not compel this counterclaim to be made in whichever of the two suits the first responsive pleading was filed.” Id. at 61, 83 S.Ct. 108. To reach this conclusion, the court noted that Rule 13(a) “was designed to prevent multiplicity of actions,” and in particular to prevent a party that failed to assert a counterclaim from later initiating separate litigation on the basis of that claim. Id. at 60, 83 S.Ct. 108. Considering the policy and purpose behind Rule 13(a), the court permitted the claim to go forward because it found no sign of the “circuity of action that Rule 13(a) was aimed at preventing,” since the plaintiffs bringing of multiple actions was required by statute. Id. at 61, 83 S.Ct. 108. Southern Construction shows that it is the purpose of the compulsory counterclaim rule that must be the ultimate touchstone in resolving a case in which procedural idiosyncrasies cloud proper application of the rule. Here, as in Southern Construction, statutory quirks make straight-forward application of Rule 13(a) impossible. In Southern Construction, those quirks required filing of actions in separate districts. In this case, a perfect storm was created by the requirement that a complaint be filed before a counterclaim may be lodged, the compulsory counterclaim rule, and the extensive delay provided in the rules between commencement of the action and filing of the complaint in the Ergodyne case. And here, as in Southern Construction, there are two lawsuits related to the same underlying substance, but there is no circuity of action by the party who has failed to lodge its claims as counterclaims. Given the lack of activity in the Ergodyne case, the Court rejects any notion that the government filed the Tenacious case as a means of opening multiple parallel litigation to engage in the gamesmanship that Rule 13(a) was designed to eliminate. The Court will therefore deny Tenacious’s motion to dismiss. This result also accords with the generally agreed upon principal that Rule 13(a) operates by res judicata to bar future suits pursued after judgment, but does not serve as a basis for preventing the government from pursuing its claims prior to either case reaching judgment. See Handy, supra, 325 F.3d at 350-51 (citing cases to support conclusion that compulsory counterclaim rule is applied in “subsequent litigation on res judicata or estoppel principles”). The Court also points out that, to the extent either party still wishes to litigate the issues in the Ergodyne and Tenacious cases together, that party may file a motion requesting that the Court consolidate the actions under USCIT Rule 42(a)(2). Given that Rule 42 provides an avenue for merging the two cases and treating them together, it appears that Tenacious will not be prejudiced by any error, however unlikely, that may exist the Court’s denial of the present motion to dismiss. Conclusion The Court has carefully considered the remainder of the contentions of the parties and does not believe they require further discussion. As a result of the considerations detailed above, the Court holds that USCIT Rule 13(a) does not bar the government from pursuing its penalty claims via the Tenacious case. In consequence of that finding, it is hereby ORDERED that Defendant’s motion to dismiss is denied. . Because Tenacious is the successor in interest to Ergodyne, the parties will both be referred to in this opinion as “Tenacious” for ease of reference. . The Ergodyne case is currently pending on the CIT reserve calendar and has not yet been assigned to a judge. . For the description of the history of the Ergodyne case, see generally Docket, Court No. 10-00200. . At the time Tenacious asserted this argument in its motion to dismiss the Tenacious action, the Ergodyne action lay dormant on the reserve calendar, no complaint having been filed. This was a direct result of the Court’s grant of Tenacious’s motion for an extension in the Ergodyne case over the government’s objection. .Unless otherwise specified, all statutes are cited to the 2006 edition of the United States Code. . In the United States district courts, "[a] pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.” Fed.R.Civ.P. 13(a).

MEMORANDUM OPINION AND ORDER JEFFREY COLE, United States Magistrate Judge. The plaintiff, Hach Company (“Hach”), seeks to hold the defendants, John Ichiro Takayama and Hakuto Co., Ltd. (“Hakuto Japan”), liable for their claimed breach of an indemnification agreement that Hakuto Japan’s purported alter ego, Hakuto America, had with Hach. Hach had purchased a company, Anatel, from Hakuto America (and others) and was promptly sued for patent infringement on the basis of Anatel products. Six months after the infringement suit was filed, Hakuto America was dissolved. Hach eventually settled with the patent holder and wants Hakuto Japan to follow through on its former subsidiary’s obligations. It also charges Mr. Takayama, a former Hakuto America director, with violating Illinois law by failing to notify creditors that Hakuto America was being dissolved. On October 14, 2010, defendants both filed motions to dismiss for lack of personal jurisdiction. (Dkt.# 29, # 32). The hearing on the motion was set for October 19, 2010, at which time Hach would have pointed out that the motions were based on the affidavits of defendants Mr. Takayama and Hakuto Japan’s vice president, Shinkichi Suzuki and, therefore, it needed discovery to respond. Judge Manning canceled the hearing on the motion, however, and ordered Hach to respond to defendants’ dismissal motions by November 9, 2010. (Dkt. # 35). It is important at the outset to emphasize that this is a matter about discovery into the question of personal jurisdiction; it is not about determining whether personal jurisdiction exists, whether Hach has failed to state a claim against either of the defendants, or whether the defendants have a valid motion to dismiss under Fed. R.Civ.P. 12(b)(2). The defendants’ 12(b)(2) motion was already denied, although without prejudice, and was never even fully briefed. In other words, the parties’ positions have never even had the benefit of a full development. The motion to dismiss and the question of personal jurisdiction are not a part of the referral, nor could they have been. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72. I am without authority to decide those questions and, as it turns out, need not do so to resolve a discovery dispute. It is necessary to take note of the limited nature of my jurisdiction and of Judge Manning’s referral because the defendants have focused a good deal of their arguments on these types of extraneous matters, rather than focusing exclusively on the narrower matter at hand. 1. For the most part, the background facts of this dispute are drawn from Hach’s second amended complaint. Hakuto Japan was Hakuto America’s parent corporation. Hakuto America was an Illinois corporation with its principle place of business in Illinois. Mr. Takayama was on its board of directors during the period pertinent to the allegations of Hach’s second amended complaint. Hach claims that Hakuto Japan fraudulently refused to fulfill contractual indemnification obligations incurred by its wholly owned subsidiary, Hakuto America, after having appropriated to itself the millions of dollars that the subsidiary received in consideration for that obligation. Because Hakuto Japan dissolved Hakuto America over 5 years ago, it could not be served or sued. But as Hach would have it, Hakuto Japan is Hakuto America’s alter ego for purposes of the indemnity obligations. As a director of Hakuto America, Defendant Takayama was obligated by Illinois law to notify creditors of Hakuto America’s dissolution. He failed to give that notice, perpetuating by omission, so the plaintiffs theory goes, the misleading impression that Hakuto America would meet its obligations. All this began with a stock purchase transaction between Hach and Hakuto America about ten years ago. On May 20, 2001, Hach acquired Anatel Corporation (“Anatel”), a Colorado high-tech manufacturer, in a stock purchase agreement with the four largest Anatel shareholders. The largest was Hakuto America, which acquired its Anatel stock from its parent corporation, Hakuto Japan. Hakuto America paid no consideration for the stock. The decision to sell to Hach came directly from Hakuto Japan — Hakuto America played no part in it. (Second Amended Complaint, ¶ 39). As part of the transaction, the four largest Anatel shareholders agreed to indemnify Hach for a variety of claims and liabilities, including patent infringement suits. Hach paid Hakuto America in excess of $6 million for its Anatel stock and its indemnification. Besides Hakuto America, there were three other indemnifying shareholders: Howard Selby, Michael Stranahan, and Jack Yama mori. Hakuto America also entered into a contribution and administration agreement with those three individual shareholders, promising that in the event of an indemnification claim by Hach, Hakuto America would pay its proportionate share of defense costs and any judgment. (Second Amended Complaint, ¶¶ 11-19, 42; Dkt. # 42, Exs. 6-8). In 2002, Hach was sued in Colorado federal court for patent infringement, along with Anatel. Sievers Instruments, Inc. v. Hach Company et al., Civil Action No. 02-K-0775. The parties eventually settled. (Second Amended Complaint, ¶¶ 28-36). When Hach wrote to the indemnifying shareholders designated representative, James Leidich, requesting they make good on their promises, it was rebuffed. Moreover, although Hakuto America had already been dissolved at the time, Mr. Leidich indicated he was acting on behalf of Hakuto America and the three individual shareholders. He closed his communication by referring Hach to “Thomas McMenamin, special counsel to Hakuto America, for further correspondence.” (Dkt. #42, Exs. 10-11). Hach filed suit against all four of the shareholders in Colorado state court for breach of contract and only then discovered that Hakuto America had been dissolved shortly after the Sievers lawsuit began. Hach had to dismiss Hakuto America as a defendant in the Colorado suit and was left to pursue its remedy against the remaining three shareholders. That suit has since been resolved, but Hach does not indicate the outcome. (Second Amended Complaint, ¶ 33-35). Hakuto America was dissolved on September 26, 2002, seventeen months after the sale of its Anatel stock. The articles of dissolution were signed by Tokiashi Hirai as president of the corporation. (Dkt.# 42, Ex. 9). Hach alleges that Hakuto Japan’s president and founder, Shigeo Takayama, was the ultimate decision-maker as to Hakuto America’s activities. CSecond Amended Complaint, ¶ 38). According to the testimony of the man who preceded Mr. Hirai as President of Hakuto America, Thomas Kastner — Hakuto America’s president — Mr. Hirai was, at the same time, the president of Hakuto Japan as well. (Dkt. # 42, Ex. 5, at 35-36). Mr. Takayama, the son of Hakuto Japan’s founder and then-chairman, was also a director of Hakuto America at this time. (Dkt. # 42, Ex. 5, at 41). Other Hakuto America board members also served on the board of Hakuto Japan, although they were “figureheads.” (Dkt. #42, Ex. 5, at 42-43). In fact, Hach believes that, at the time of Hakuto America’s dissolution, all of its directors were directors or officers of Hakuto Japan — but this is one of the items about which Hach hopes to gain discovery. Mr. Kastner also testified that the proceeds from the Anatel sale went to Hakuto America and then were “dividended” to Hakuto Japan. (Dkt. # 42, Ex. 5, at 37). Hach hopes to gain discovery regarding this. The individual shareholders were left in the dark as well. Colorado counsel for the individual indemnifying shareholders had informed Hach’s counsel that as late as 2008, Hakuto Japan continued to make payments to a legal defense fund, consistent with Hakuto America’s obligations under the Contribution Agreement. (Dkt.# 42, Ex. 14). After Hakuto America’s dissolution, some Hakuto entity — presumably Hakuto Japan — had to have been communicating with Masuda Funai in Illinois and directing that these payments be made. Hach predicts that discovery from the Colorado law firm — Ireland Staple-ton — will confirm that years after Hakuto America’s dissolution, Hakuto Japan continued to fulfill Hakuto America’s obligations to the other indemnifying shareholders. Hakuto Japan argues that Hach cannot establish personal jurisdiction over it because: Hakuto Japan does not conduct business in Illinois; it has no place of business in Illinois; it has no employees in Illinois; it owns no property or assets in Illinois; it does not sell goods or services in Illinois; it pays no taxes in Illinois; and it was not a party to or involved in the negotiation of the stock purchase agreement or indemnification provisions that underlie this litigation. (S. Suzuki Declaration). Similarly, they assert that Mr. Takayama: has never lived or worked in Illinois; has resided and been employed exclusively in California; has never owned a business in Illinois; has never owned property in Illinois; conducts no business in Illinois. His claims his last visit to Illinois was in March of 2003 to attend a conference held by the American Academy of Pediatrics; and that his only visit to Illinois concerning the business of Hakuto America occurred in 2001 and was entirely unrelated to the subject Stock Purchase Agreement, the sale of Anatel shares, or the other allegations of Hach’s Complaint. (Takayama Declaration). As has been noted, much of this is belied by the allegations of the seconded amended complaint and what little evidence Hach has scraped together without discovery. In order to obtain discovery regarding the issue of personal jurisdiction, “ ‘[a]t a minimum, the plaintiff must establish a colorable or prima facie showing of personal jurisdiction ....’” GCIU-Employer Retirement Fund v. Goldfarb Corp., 565 F.3d 1018, 1026 (7th Cir.2009). It is left to the court’s discretion just what constitutes a “colorable” claim. Id., at 1026. In making that determination, the court must read the plaintiffs allegations liberally, drawing all reasonable inferences in the plaintiffs favor. Central States, Southeast and Southwest Areas Pension Fund v. Phencorp Reinsurance Co., Inc., 440 F.3d 870, 878 (7th Cir.2006). In a situation like this one, where the discovery is being sought from a foreign corporation based on its relationship to its American subsidiary, the Seventh Circuit has held that the plaintiff must at least “show[ ] that the [parent corporations] exercised an unusually high degree of control over [the subsidiary] or that corporate formalities were not substantially observed, or that [the parent] provided [more than] standard administrative services to [the subsidiary].” Reimer, 230 F.3d at 947. Absent that showing, there is not “a colorable basis for jurisdiction.” Id. The court has stressed that “[fjoreign nationals usually should not be subjected to extensive discovery in order to determine whether personal jurisdiction over them exists.” Reimer, 230 F.3d at 946. In Reimer, almost all of the plaintiffs evidence showed only that the foreign defendants were affiliated with ITCL, a Canadian corporation doing extensive business in the United States, without any showing that the defendants exercised an unusually high degree of control over ITCL or that corporate formalities were not substantially observed or that anything other than standard administrative services were pro vided to ITCL. That was not enough, the Seventh Circuit held. We begin with the case against Hakuto Japan. Distilling all of plaintiffs charges, it would seem that Hakuto Japan placed at least some of its directors on the board of Hakuto America. Having common directors or officers is generally a prerequisite to piercing the corporate veil, but it is not sufficient in and of itself. Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 381 (7th Cir.2008). Beyond that, however, Hakuto Japan, through Shigeo Takayama, controlled Hakuto America’s activities, Anatel stock passed between Hakuto Japan and Hakuto America without payment, and Hakuto Japan controlled Hakuto America’s Anatel deal with Hach. These are factors to be considered in piercing the corporate veil. See Laborers’ Pension Fund v. Lay-Com, Inc., 580 F.3d 602, 611 (7th Cir.2009). Once it was consummated, Hakuto Japan siphoned off the proceeds of the deal with Hakuto America. Hystro Products, Inc. v. MNP Corp., 18 F.3d 1384, 1389 (7th Cir.1994) holds that a parent’s use of its subsidiary’s assets as its own supports alter ego theory. Shortly after the deal closed, Hakuto Japan dissolved Hakuto America. That certainly seems suspicious, as if Hakuto America were little more than a conduit for cash flow to Hakuto Japan. Then, while hiding the fact that Hakuto America was no more, Hakuto Japan undertook the dissolved corporation’s obligations to pay into a defense fund under the Anatel stock purchase agreement. This, too, is significant. See Freeland v. Enodis Corp., 540 F.3d 721, 739 (7th Cir.2008) (commingling of affairs a factor in piercing the corporate veil). The cases Hakuto Japan points to do not direct a different result. (Defendants’ Opposition, at 6). None of them is about the showing — the “colorable claim” — that must be made to obtain discovery; all are about what the plaintiff must prove before the court will actually exercise personal jurisdiction. Even so, in McDougal v. Edwards, 1996 WL 385344 (N.D.Ill.1996), the court found that the plaintiff had not even asked for a piercing of the corporate veil in the complaint and refused to find an implied alter ego cause of action. 1996 WL 385344, *7. That is not the case here. And in Continental Insurance Co. v. Loewen Group, Inc., 1998 WL 142380 (N.D.Ill. 1998), the court refused to exercise personal jurisdiction on due process grounds because the plaintiff had alleged only that the parent corporation oversaw certain aspects of its subsidiary’s activities and derived no economic benefit from Illinois. 1998 WL 142380, *12. By contrast, Hakuto Japan extracted a sizeable economic benefit from Illinois when it siphoned off the proceeds of the Anatel sale from Hakuto America. And, as already noted, there are further factors at play. Finally, Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371 (7th Cir.2008), which the defendants cite for the proposition that “[t]he exercise of personal jurisdiction based on alter ego grounds is not favored,” has nothing to do with personal jurisdiction. It is a summary judgment case where, “after extensive discovery,” id. at 377, the court determined that the plaintiff was unable to establish its alter ego theory. Of course, all this is not to say that Hach has established personal jurisdiction over Hakuto Japan, but merely that it has made out a colorable claim. Not much more can be asked of it at this time because it has yet to engage in discovery. See Phencorp, 440 F.3d at 878 (“Since [plaintiff] was denied the opportunity to engage in discovery, it is not surprising that it can do little more than suggest that [defendant] currently has minimum contacts .... ”). All that its showing merits is limited discovery, narrowly targeted at this jurisdictional question. That means discovery will be limited to contacts with Illinois, where Hach has chosen to bring suit. Hakuto Japan’s activities throughout the United States — something that Hach says it will be targeting in its discovery— are not a part of this equation. Nor, based on what Hach has related in its motion, are events from as long ago as 1998. The discovery should be limited to Hakuto Japan’s direction of the activities discussed herein: the Anatel deal, the distribution of the proceeds, the dissolution of Hakuto America, Hakuto Japan’s activities with respect to the defense fund, etc. Hach should redraft its inquiries with this in mind. If there are still disputes, the parties are advised that strict compliance with Fed.R.Civ.P. 37(a)(1) and Local Rule 37.2 will be required before any discovery motions will be entertained. The parties should also agree to deadlines and time limits for this exercise which should not be difficult since Hach represents that its discovery won’t take terribly long. (Memorandum of Law, at 3). As for Hakuto Japan, unamplified boilerplate objections, like “unduly burdensome” or “overly broad”, will be unacceptable, United Auto. Insurance v. Veluchamy, 2010 WL 749980, *5 (N.D.Ill.2010) (collecting cases), as will unsupported accusations of “fishing expedition.” Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 931 (7th Cir.2004) (“... of course, pretrial discovery is a fishing expedition and one can’t know what one has caught until one fishes.”) (Posner, J.). Cf Hickman v. Taylor, 329 U.S. 495, 507-508, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (“No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case.”); U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 754 (7th Cir.2008) (“In Japan, the trial itself blends the American trial equivalent with the American discovery equivalent. Granted, even between court hearings Japanese lawyers cannot conduct the indiscriminate and largely unsupervised fishing expeditions that characterize some American discovery.”). 2. That leaves Mr. Takayama. For the most part, Hach bases its personal jurisdiction argument regarding him on the fact that he was on Hakuto America’s board of directors and was, therefore, responsible for the corporation’s violation of Illinois law when it failed to notify creditors of its dissolution. 805 ILCS 5/8.65(2). Defendants argue that Illinois’ fiduciary shield doctrine prevents the court from granting discovery into the issue of personal jurisdiction over him based on his position as a director of Hakuto America because the doctrine prevents Illinois courts from taking personal jurisdiction over individuals who enter the state solely as the fiduciary of another, ISI Intern., Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 550 (7th Cir.2001) (citing Rollins v. Ellwood, 141 Ill.2d 244, 278, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1314 (1990)). The Illinois Supreme Court adopted the fiduciary shield doctrine in 1990 in Rollins v. Ellwood, which involved the question of jurisdiction over a Baltimore police officer, Ellwood, sent to Illinois to apprehend a suspect. The Illinois Supreme Court’s conclusion emphasized that it was not articulating some global pronouncement applicable to any corporate employee who came into contact with Illinois. Rather, the court focused on the unique situation that involved the officer’s coming into Illinois.: We find that it is not fair, just, and reasonable for the Illinois courts to assert personal jurisdiction over one in Ellwood’s situation. Ellwood entered into Illinois, and while in Illinois engaged in conduct giving rise to the present cause of action, solely in his capacity as a police officer acting for the Baltimore police department and the State of Maryland. The nature and quality of his actions in Illinois were characterized by his status as a police officer employed by these entities. Because Ellwood’s conduct in Illinois was a product of, and was motivated by, his employment situation and not his personal interests, we conclude that it would be unfair to use this conduct to assert personal jurisdiction over him as an individual. Rollins, 152 Ill.Dec. 384, 565 N.E.2d at 1318 (emphasis supplied). The police officer, of course, was not in a position remotely comparable to that of a director or corporate officer, with some measure of control over his duties and with some measure of authority over the affairs of his employer. Moreover, the Baltimore police department obviously was not headquartered in Chicago, as was Hakuto America, when Mr. Takayama voluntarily served on its board. Finally, unlike the situation presented in Rollins, there was ongoing sustained activity by Hakuto America (and its corporate officers and directors) in Illinois rather than an isolated contact between an employee with effectively no control over his duties. In sum, it simply cannot be said that Mr. Takayama is “one in Ellwood’s situation.” Rollins, 152 Ill. Dec. 384, 565 N.E.2d at 1318. 3. Moreover, the fiduciary shield doctrine, as it has often been applied, becomes a curious thing when one takes even a quick at Illinois’s long-arm statute: Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts: The performance of duties as a director or officer of a corporation organized under the laws of this State or having its principal place of business within this State; 735 ILCS 5/2-209(a)(12). As alleged, the dissolution claim arises out of Mr. Takayama’s performance of his duties as a director of Hakuto America, which was an Illinois corporation with its principle place of business in Chicago. Hence, on the current record, the statute’s requirements for personal jurisdiction over Mr. Takayama are met. See Hollinger Intern., Inc. v. Hollinger Inc., 2005 WL 589000, *12-14 (N.D.Ill.2005). There certainly seems to be some tension between the fiduciary shield doctrine and the long-arm statute — or at least a conflict with the manner in which Mr. Takayama is trying to use it. But the apparent conflict vanishes upon proper analysis. Unfortunately, the defendants’ brief ignores the very existence of Illinois’ long-arm statute, with its uncompromisingly plain language that subjects corporate directors and officers of Illinois corporations to personal jurisdiction. (Defendants’ Opposition, at 4-5). The issue, squarely presented by the facts of this case, has been considered in other cases and in each the court has found the fiduciary shield doctrine inapplicable. See e.g., International Business Machines Corp. v. Martin Property & Cas. Insurance Agency, Inc., 281 Ill. App.3d 854, 862, 217 Ill.Dec. 197, 666 N.E.2d 866, 871 (1st Dist.1996) (finding that “a director and officer of an Illinois corporation ... tacitly accepted both the duties and the benefits conferred upon him by Illinois law. His position with [the corporation] and the existence of the Illinois long-arm statute gave fair warning to [him] that he may one day be hailed into court here for his conduct as an officer or director. Indeed, any other conclusion would render meaningless the provisions of section 2-209(a)(12) of the long arm statute which provide explicitly for the exercise of jurisdiction over nonresident directors and officers ....”); Banwell v. Illinois College of Optometry, 981 F.Supp. 1137, 1142-43 (N.D.Ill.1997) (following IBM to find fiduciary shield doctrine inapplicable to directors of an Illinois corporation); People ex rel. Morse v. E & B Coal Co., Inc., 261 Ill.App.3d 738, 747, 199 Ill. Dec. 597, 634 N.E.2d 436, 442-43 (5th Dist. 1994) (fiduciary shield inapplicable where defendant “freely chose to accept a directorship ... with full knowledge that [company] was an Illinois corporation conducting a mining operation in Illinois.”); Household Commercial Financial Services, Inc. v. Trump, 1993 WL 389386, *8 (N.D.Ill.1993) (“... it is doubtful the fiduciary shield doctrine even applies, given that § 2-209(a)(12) specifically provides that personal jurisdiction exists over a director of a corporation organized under the laws of Illinois or having its principle place of business in Illinois .... the fundamental fairness policies of the fiduciary shield doctrine are not implicated in the case of an individual who accepts a directorship of an Illinois company.”). These cases recognize the inherent limitations in the fiduciary shield doctrine— limitations adverted to by the Illinois Supreme Court in Rollins, where it said that neither fairness, justice, nor reasonableness allows for the assertion of personal jurisdiction by the Illinois courts “over one in [Police Officer] Ellwood’s situation.” As discussed above, corporate officers and directors could not be more dissimilarly situated from him. They freely assume their fiduciary duties; they have a range of choices and a freedom of action that, as a practical matter, Officer Ellwood never had. And. as with all volitional choices, there are consequences. By contrast, Officer Ellwood had no choice, at least as a practical matter, and he could not have envisioned, at the time he became a police officer, being sent into Illinois and thereby subjecting himself to suit in a place far from his home. Corporate officers and directors are fully aware at the time of the assumption of their duties that they will be acting on behalf of an entity that is either incorporated in Illinois or has its principle place of business here. In short, the underlying considerations of fairness that animate the fiduciary shield doctrine are not remotely implicated in cases involving corporate directors and officers. The cases cited above appear to be the only ones that have considered the fiduciary shield’s applicability in light of the long-arm statute’s specific reference in § 2-209(a)(12) to jurisdiction over non-resident officers and directors of Illinois corporations. Defendants have not cited a single case where the interplay between the fiduciary shield doctrine and the long-arm statute has been discussed where the statute did not trump the doctrine when applied to corporate officers and directors. And our independent research has not disclosed one. Cases that have applied the doctrine to directors or officers of Illinois corporations make no mention of the very provision the Illinois legislature enacted to cover these types of situations. See e.g., Denari v. Rist, 2011 WL 332543, *1 (N.D.Ill.2011); Dick Corp. v. SNC-Lavalin Constructors, Inc., 2006 WL 1049724, *4 (N.D.Ill.2006); Benda v. Per-Se Technologies, Inc., 2004 WL 1375361, at *2 (N.D.Ill. June 17, 2004); Interlease Aviation Investors II (Aloha) L.L.C. v. Vanguard Airlines, Inc., 262 F.Supp.2d 898, 910 (N.D.Ill. 2003); Continental Cas. Co. v. Marsh, No. 01 C 0160, 2002 WL 31870531, at *6 (N.D.Ill.2002); Plastic Film Corp. of America, Inc. v. Unipac, Inc., 128 F.Supp.2d 1143 (N.D.Ill.2001); Brujis v. Shaw, 876 F.Supp. 975, 978 (N.D.Ill.1995). This silence is no doubt the result of the parties’ failure to have raised the long-arm statute’s specific provision covering corporate officers and directors. It is simply not conceivable that had the argument been raised, judge after judge would have failed even to have mentioned it — especially when the issue would be outcome-determinative. In Benda, for example, the plaintiff did not even dispute that the fiduciary shield applied, 2004 WL 1375361, at *2, and in Denari, the pro se plaintiff argued only that the defendant officers had minimum contacts with the state. Where arguments are not made by the parties, courts have been cautioned that it is not their obligation to research and construct the legal arguments available to parties, Gross v. Town of Cicero, Ill, 619 F.3d 697, 704 (N.D.Ill.2011); United States, v. McLee, 436 F.3d 751, 760 (7th Cir.2006), and that they are not to go beyond the briefs and effectively assume the role of counsel. See Fabriko Acquisition Corporation v. Prokos 536 F.3d 605, 609 (7th Cir.2008); Kay v. Board of Educ. of City of Chicago, 547 F.3d 736, 738 (7th Cir.2008); Hartmann v. Prudential Insurance Co. of America, 9 F.3d 1207, 1214 (7th Cir.1993). Thus, those cases that have applied the fiduciary shield doctrine to corporate officers and directors without considering the inter-relationship between the fiduciary shield doctrine and the Illinois long-arm statute, have no value here, for prior cases have precedential value only when there has been a deliberative consideration of the issue at hand. Sub-silentio or assumptive resolution is not enough. See United States v. More, 7 U.S. 159, 172, 3 Cranch 159, 2 L.Ed. 397 (1805) (Marshall, C.J.); United States v. Acox, 595 F.3d 729, 731 (7th Cir.2010) (“A handful of opinions in this circuit make what appear to be de novo appellate decisions on the good-cause question.... But the briefs in those cases did not join issue on the standard of appellate review, and the opinions do not discuss this subject ... so they do not establish holdings.”); United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849 (7th Cir.2009); Karraker v. Rent-A-Center, Inc., 492 F.3d 896 (7th Cir.2007); Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir.2006) (“Because Tunis [v. Gonzales, 447 F.3d 547 (7th Cir.2006) ] did not mention the subject, it does not contain a holding on the issue [citing Supreme Court cases].”). In light of § 2-209(a)(12), the fiduciary shield might cover employees like the police officer in Rollins, but it does not cover directors like Mr. Takayama, who can be taken to task for the performance or neglect of the corporate duties. See supra at 984; Morse v. E & B, 261 Ill.App.3d at 747, 199 Ill.Dec. 597, 634 N.E.2d at 442-43 (distinguishing between ordinary employer and corporate officers and directors). Defendants have not cited a single case that has precluded jurisdictional discovery based on the fiduciary shield doctrine. The only cases that discuss discovery and the doctrine indicate that it does not shield one from discovery; in fact, discovery is necessary before its applicability can be determined. See Seaga Mfg., Inc. v. Fortune Metal, Inc., 2001 WL 1196184, *1 (N.D.Ill.2001) (concluding that fiduciary shield issue could not be resolved before further discovery); A.I. Credit Corp. v. Legion Insurance Co., Inc., 1998 WL 460271, *2 (N.D.Ill.1998) (fiduciary shield doctrine not designed to thwart discovery; tenor of most cases is that discovery is necessary before applicability of the doctrine can be determined) (collecting cases); Orix Credit Alliance, Inc. v. Taylor Mach. Works, Inc., 1995 WL 109322, *2 (N.D.Ill. 1995) (motion to dismiss denied pending completion of discovery related to fiduciary shield doctrine). The Seventh Circuit, which has not spoken directly on subject, has indicated the same thing. Rice v. Nova Biomedical Corp., 38 F.3d 909, 915 (7th Cir.1994) (the court held that a party did not use “ample tools of pretrial discovery” to “turn up material relevant to the fiduciary shield doctrine”). In sum, and without deciding the question of personal jurisdiction over Mr. Takayama, it can be said that Hach has at least a “colorable claim” of jurisdiction, and that is sufficient to allow relevant and limited discovery, subject to the same types of limitations discussed in relation to Hakuto Japan. Since Hach hopes to base personal jurisdiction over Mr. Takayama on his hand in the purported violation of 805 ILCS 5/8.65(2) — see 735 ILCS 5/2-209(a)(12) — discovery should be targeted to that and his contacts with Illinois due to his position with Hakuto America and any involvement he may have had in or knowledge of the sale of the Anatel stock and the movement of the sale proceeds to Hakuto Japan. Discovery properly and narrowly focused on the alter ego issue would also be appropriate. As with discovery involving Hakuto Japan, strict compliance with Fed.R.Civ.P. 37(a)(1) and Local Rule 37.2 will be required before any discovery disputes will be heard. Moreover, in the event of further discovery disputes regarding either Mr. Takayama or Hakuto Japan, the parties’ briefs must contain arguments that are fully developed and supported. Conclusory, skeletal, or perfunctory briefing will result in waiver of the issue, as the Seventh Circuit has repeatedly held. See United States v. Collins, 604 F.3d 481, 488, n. 2 (7th Cir.2010); White Eagle Co-op. Ass’n v. Conner, 553 F.3d 467, 476 n. 6 (7th Cir.2009) (collecting cases); Fabriko Acquisition Corporation v. Prokos, 536 F.3d 605, 609 (7th Cir.2008); de la Rama v. Illinois Dept. of Human Services, 541 F.3d 681, 688 (7th Cir.2008); United States v. Hook, 471 F.3d 766, 775 (7th Cir.2006); Thakore v. Universal Mach. Co. of Pottstown, Inc., 670 F.Supp.2d 705, 717 (N.D.Ill.2009) (collecting cases). CONCLUSION The Motion to Conduct Jurisdictional Discovery [# 41] is granted in part and denied in part as explained above. . The affidavits state in conclusory fashion that neither Hakuto Japan nor Mr. Takayama have any contacts with the state of Illinois, and that Hakuto Japan had essentially nothing to do with Hakuto America. The affidavits were not included in the defendants’ submissions herein, but were instead a part of the previously filed motions to dismiss [Dkt. # 30, 33], which have since been denied. [Dkt. # 53], . They argue again and again that their 12(b)(6) motion is well-taken or that Hach has not made out a claim. These are simply not matters for me and they play no role in this decision. .In his affidavit, Mr. Takayama does not say he wasn’t a director of Hakuto America, but he does say he was never employed by an entity located in Illinois. So there is a contradiction between his assertions and those of Mr. Kastner, Hakuto America’s president. . The relationship between. Hakuto Japan and Hakuto America Mr. Kastner describes is quite a bit closer than the relationship Mr. Suzuki describes in his affidavit. . This testimony directly undermines that of Mr. Suzuki, who claimed that the two companies did not share assets. . In its conclusion, the opinion said "Corporate affiliation with and the provision of standard administrative services to ITCL are not sufficient minimum contacts to exercise specific personal jurisdiction over" the foreign defendants. 230 F.3d at 947. See also id. at 945 (“We adopt the rule that a corporate parent may provide administrative services for its subsidiary in the ordinary course of business without calling into question the separateness of the two entities for purposes of personal jurisdiction.”). . The brief also misreads Kohler Co. v. Kohler Int’l, Ltd., 196 F.Supp.2d 690 (N.D.Ill.2002), as applying the fiduciary shield doctrine “to the President and Secretary-Treasurer of Dimensional Millwork of Chicago, an Illinois based corporation.” (Takayama’s Brief in Opposition to Hack’s Supplemental Brief, at 6). But the case came to precisely the opposite conclusion, finding that "the Edgemons [the President and Secretary-Treasurer] cannot hide behind the fiduciary shield doctrine, because their interests are coextensive with the interests of Dimensional Millwork of Chicago,” id. at 699 (emphasis supplied), and that there was personal jurisdiction over the two officers. Id. at 700. Other similar misreadings of cases are found in the brief. Separating the wheat from the chaff has been needlessly time-consuming. . Hach’s claims, for breach of contract and violation of an Illinois statute, do not arise under federal law. See ISI Intern., Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 551 (7th Cir.2001). As this is a diversity case (Second Amended Complaint, ¶ 9), the court has personal jurisdiction only where an Illinois court would have such jurisdiction. Citadel Group Ltd. v. Washington Regional Medical Center, 536 F.3d 757, 760 (7th Cir.2008). . Defendants also argue that the dissolution claim against Mr. Takayama fails as a matter of law and direct me to its motion to dismiss. (Defendants' Opposition, at 5). As I have no authority to rule on any arguments raised in such a motion, 28 U.S.C. § 636(b)(1)(A); Fed. R.Civ.P. 72, it can play no part in this determination. Moreover, the motion was denied (without prejudice) in November 2010. [Dkt. # 60]. Briefing was suspended at that time, so these arguments have not even had the benefit of a full development by the parties.

ORDER GRANTING MOTIONS TO DISMISS WITHOUT PREJUDICE JAMES LAWRENCE KING, Senior District Judge. THIS CAUSE comes before the Court upon three Motions to Dismiss the Amended Complaint filed by ten defendants. Defendants Costa Rican Land & Development, Inc., Judith Gale, LTS Management, Inc., Julian Siegel, Lisa Tashman, and Mariland Tashman filed a Consolidated Motion to Dismiss Plaintiffs Second Amended Complaint (DE # 91) September 27, 2010. Defendants All Star Consulting Group, Inc. and Bruce Goldberg filed their Motion to Dismiss Second Amended Class Action Complaint (DE # 118) December 6, 2010. The Court has been fully briefed on the matters raised in both Motions. Although the Motions moved for dismissal of both the federal-law and state-law causes of action asserted in the Second Amended Complaint, the Court heard oral argument on the federal law claims only on January 27, 2011. (DE # 122). At the conclusion of the hearing, the Court reserved ruling on the Motions, and ordered counsel for Defendants to prepare a proposed order granting the motions to dismiss, raising all the issues argued at the hearing, within twenty days. Id. The Court further ordered that Plaintiffs would have ten days thereafter to respond. Defendants timely submitted a proposed order on February 16, 2010, and Plaintiffs responded March 2, 2011. (DE # 125). The third motion to dismiss was filed by Defendants Charles L. Neustein, P.A., Law Offices of Charles L. Neustein, P.A., and Charles L. Neustein (DE # 77). The Court has been fully briefed on the matters raised therein, but did not hear oral argument. 1. BACKGROUND This case centers around a massive fraud relating to the sale of properties in Costa Rica. The fraud was orchestrated by a few key individuals who allegedly operated a Ponzi scheme to bilk would-be purchasers of Costa Rican land out of hundreds of thousands of dollars in pre-construction deposits. In short, Defendants solicited supposedly refundable deposits and installment payments from land purchasers, and then refused to either refund the monies upon request, or transfer title to the purchased property when the balance was paid in full. Instead, Defendant diverted the funds to personal accounts and to other people for purposes wholly unrelated to the project. At first, Defendants were able to pay refunds to disgruntled purchasers out of funds solicited from new buyers. However, when Defendants ran out of money from new buyers to pay refunds to earlier buyers, the entire operation simply shut down. The individual Defendants allegedly used the sixteen entity Defendants to carry out the Ponzi scheme. The first named Defendant-entity is Paragon Properties of Costa Rica, LLC, and the Plaintiffs have dubbed Defendants’ entire fraudulent scheme the “the Paragon enterprise.” (DE # 64 ¶ 1). The Defendant entities are collectively referred to in the Complaint as “Paragon” or “the Paragon entities.” Id. According to Plaintiffs, “Paragon” marketed and sold vacant lots in Costa Rica through the individual Defendant-entities. One of the entities was listed as the seller on each of the sales contracts. The lots themselves were supposedly part of large subdivision projects which had not yet begun construction. Purchasers were required to make a substantial deposit to consummate the sale. Additionally, Paragon frequently solicited additional installment payments beyond the initial deposit by offering a discount off the final purchase price if the installment was paid prior to the closing date. All of these payments were supposedly refundable upon request. All payments were made to Defendants’ escrow agent, Charles L. Neustein, P.A., which is also named as a Defendant in this action. Charles L. Neustein, P.A. was an entity run by Defendant Charles L. Neustein, a Florida lawyer who previously served as a North Miami Municipal Judge. Brochures and other materials sent to investors emphasized Defendant Neustein’s judicial experience. Defendants used virtually identical sales contracts, called Agreements for Deed, for all the sales. Among other things, the Agreements for Deed provide that Paragon would provide roads, electricity, water and sewer service within two years of signing the agreement. The Agreements for Deed require the buyer to pay the balance of the purchase price within five years from the date of signing the Agreement, and the seller to transfer title to the property within a reasonable time after payment of the full purchase price. The Agreements also contain a unique clause: If the entire balance is not paid within the five-year period, any amounts that have been paid by the purchaser are fully refundable. The Agreements for Deed provided the procedure for payment by purchasers. All payments were to be made to the escrow holder, Defendant Charles L. Neustein, P.A. The escrow holder was supposed to disburse purchasers’ deposits to the seller upon receipt of the deposit and a signed Agreement for Deed. Charles L. Neustein, P.A., as escrow holder, was also supposed to disburse the balance to the seller upon receipt of a registered deed to the subject property. However, according to Plaintiffs, “Paragon, like the paradise it purported to sell, is a myth.” (DE # 64 ¶ 4). The promised infrastructure improvements were never made, refund requests have gone unanswered, and valid deeds have not been provided to buyers who made full payments. Plaintiffs allege that the promises contained in the Agreements for Deed were false when made, and are therefore fraudulent. Accordingly, they assert claims for breach of contract, fraudulent inducement, civil RICO, civil theft, breach of fiduciary duty, restoration of lost document, violation of the Interstate Land Sales Full Disclosure Act (“ISFDA”), and fraudulent transfers. The Complaint is divided into three sections. Section I is an introduction that describes the scheme generally, identifies the parties, and includes jurisdiction and venue allegations. (DE # 64 at ¶¶ 1-132). Section II describes the transactions entered into between Defendants and individual named Plaintiffs. Id. ¶¶ 133-772. Section II also contains class action allegations. Id. ¶¶ 773-80. Section III alleges the above-mentioned causes of action in nine counts. Id. ¶¶ 781-865. Defendants move to dismiss the entire Complaint on the ground that it is a shotgun pleading, and move to dismiss all of the individual counts except for Count VII, which seeks restoration of a lost document on behalf of Plaintiffs who do not have an executed copy of their Agreements for Deed in their possession. II. LEGAL STANDARD Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). This plausibility requirement outlined by the Supreme Court “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “For the purposes of a motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom.” Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.2003). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 129 S.Ct. at 1949. Thus, courts determining the sufficiency of a complaint engage in a two-pronged analysis: “(1) eliminate any allegations in the complaint that are merely legal conclusions; and (2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.’ ” Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.2010) (quoting Iqbal, 129 S.Ct. at 1950). III. DISCUSSION A. Shotgun Pleading Defendants argue the Complaint should be dismissed as an impermissible “shotgun pleading.” According to Defendants, the Complaint “bears an uncanny resemblance” to the complaint described by the Eleventh Circuit in Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.2001): The complaint is a quintessential “shotgun” pleading of the kind we have condemned repeatedly, beginning at least as early as 1991. It is in no sense the “short and plain statement of the claim” required by Rule 8 of the Federal Rules of Civil Procedure.... It names fourteen defendants, and all defendants are charged in each count. The complaint is replete with allegations that “the defendants” engaged in certain conduct, making no distinction among the fourteen defendants charged, though geographic and temporal realities make plain that all of the defendants could not have participated in every act complained of. Each count incorporates by reference the allegations made in the section entitled “General Factual Allegations”— which comprises 146 numbered paragraphs — while also incorporating the allegations of any count or counts that precede it. The result is that each count is replete with factual allegations that could not possibly be material to that specific count, and that any allegations that are material are buried beneath innumerable pages of rambling irrelevancies. This type of pleading completely disregards Rule 10(b)’s requirement that discrete claims should be plead in separate counts, and is the type of complaint that we have criticized time and again. Magluta, 256 F.3d at 1284. However, Plaintiffs Complaint differs from the complaint in Magluta and the type of complaint condemned as a “shotgun pleading” in this circuit. “The typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.” Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir.2002). See also Whitney Info. Network, Inc. v. Gagnon, 353 F.Supp.2d 1208, 1210-11 (M.D.Fla.2005) (“A party may not incorporate all allegations of each count in every successive count.... The entirety of the counterclaim will be dismissed as a shotgun pleading.”); T.D.S., Inc. v. Shelby Mutual Ins. Co., 760 F.2d 1520, 1545 (11th Cir.1985) (criticizing complaint which “combin[ed] a variety of discrete claims in one count in such a way as to make it difficult to discern which allegations or damages pertained to which theory of recovery”). Unlike the complaints normally characterized as “shotgun pleadings,” the Complaint here incorporates the allegations of Section II only (allegations relating to named Plaintiffs’ individual transactions) into six of the nine counts. It does not incorporate all the preceding paragraphs in the Complaint into each successive count, and each count states which Defendants it is asserted against. See Flamenbaum v. Orient Lines, Inc., Case No. 03-22549, 2004 WL 1773207, at *15 (“It is hardly a violation in every case for several counts to adopt by reference paragraphs describing the same set of circumstances.”). The collective references throughout the Complaint to “Paragon” and “the Paragon Entities,” however, is problematic. Plaintiffs explain they used the collective reference for the sake of brevity — because the alleged misrepresentations in each Plaintiffs Agreement for Deed are identical, Plaintiffs sought to avoid repeating the same allegations again and again. The collective references are not objectionable in Section I of the Complaint, which describes the overall scheme generally, and even in some instances in Section III, which contains some counts where multiple defendants are alleged to have engaged in identical misconduct. However, such a collective reference is only permissible if Defendants and the Court can ascertain which Defendants are alleged to have engaged in what wrongdoing. As explained more fully in the sections below, Plaintiffs’ use of the collective reference becomes problematic in Section II. In many instances, Plaintiffs employ the collective reference to “Paragon” or “the Paragon entities” to allege specific transactions between individual named Plaintiffs and specific Defendants. If Plaintiffs wish Section II to serve as the factual basis for the counts pled in Section III, Section II must be pled with the specificity required by Rule 8 and Twombly. Although this Complaint is not as egregious as the “shotgun pleadings” discussed above, the collective references in Section II render many of Plaintiffs’ claims insufficient under Rule 8, and where applicable, Rule 9(b). These pleading deficiencies are discussed in detail in the succeeding sections. B. Fraud-based.Claims In federal court, fraud-based claims must be pled with the heightened level of particularity required by Federal Rule of Civil Procedure 9(b). Rule 9(b) provides: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). To comply with Rule 9(b), a complaint alleging fraud must state: “(1) the precise statements, documents, or misrepresentations made; (2) the time and place of and person responsible for the statement; (3) the content and manner in which the statements misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud.” Ambrosia Coal & Constr. Co. v. Morales, 482 F.3d 1309, 1316-17 (11th Cir.2007). 1. Count IV: RICO Count IV of the Complaint incorporates Section II of the Complaint (allegations of individual Plaintiffs’ transactions with Defendants), and alleges violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c) (“RICO”). (DE #64 ¶¶ 809-25). Defendants argue Plaintiffs have failed to state a claim for relief under RICO. Upon review of the Complaint, the Court finds that Plaintiffs have failed to comply with Federal Rule of Civil Procedure 9(b) and Local Rule 12.1, which requires the filing of a Civil RICO Case Statement. Count IV will be dismissed without prejudice. RICO, in relevant part, prohibits the conducting of an enterprise’s affairs through a pattern of racketeering activity. 18 U.S.C. § 1962(c). To satisfy the “pattern of racketeering” element, a RICO plaintiff must prove “at least two acts of racketeering activity” occurred over a pe riod of ten years. 18 U.S.C. § 1961(5). “Racketeering activity,” in turn, is defined as violation of any of a number of statutes listed in section 1961(1). 18 U.S.C. § 1961(1). These include the federal statutes prohibiting mail fraud and wire fraud. Id. In order to state a claim under § 1962, therefore, “a plaintiff must allege facts sufficient to support each of the statutory elements for at least two of the pleaded predicate acts.” Republic of Panama v. BCCI Holdings, (Luxembourg) S.A, 119 F.3d 935, 948 (11th Cir.1997). Defendants argue Plaintiffs have failed to allege facts supporting the predicate acts of mail fraud and wire fraud with the heightened level of specificity required for fraud claims. a. Rule 9(b) RICO predicate acts sounding in fraud must be pled with the heightened level of specificity required by Federal Rule of Civil Procedure 9(b) for fraud claims generally. Liquidation Comm’n of Banco Intercontinental v. Renta, 530 F.3d 1339, 1355 (11th Cir.2008) (finding that fraud-based predicate acts must be pleaded with specificity, but non-fraud predicate acts need only meet Rule 8 pleading standard). Here, Defendants argue that Plaintiffs have failed to allege the predicate acts of racketeering activity, mail and wire fraud, with the requisite particularity. The offenses of mail and wire fraud are simply the transmission of a misrepresentation through the mail or by wire, respectively. 18 U.S.C. § 1341 (mail fraud); 18 U.S.C. § 1343 (wire fraud). Plaintiffs allege the misrepresentations in this case were the statements in the individual Plaintiffs’ Agreements for Deed that “all monies paid are 100% refundable if the transaction does not close.” (DE # 64). Accordingly, Plaintiffs assert that the “person responsible for the statement” is the seller of the property referenced in each Agreement for Deed. Id. However, Plaintiffs fail to name the seller in Section II of the Complaint for a number of the transactions described in the Complaint. See, e.g., id. ¶¶ 242-46 (alleging Plaintiff Grant Moody purchased property from “Paragon” without naming individual person or entity who acted as the seller); ¶¶ 247-55 (same, as to transactions with Plaintiff Randall Lipsius); ¶¶ 335-41 (same, as to transactions with Plaintiff Joshua Swedland); ¶¶ 406-10 (same, as to transactions with Plaintiff Frances DeLuca). Plaintiffs argue that Defendants may find this information by referring to the Agreements for Deed themselves, which were filed as Exhibits to the Second Amended Complaint. (DE # 66). However, the Exhibits are 159 pages long and are not indexed or organized in any way to aid in locating the Agreement corresponding to a particular property, plaintiff, or defendant. Id. This failure to identify the particular Defendant responsible for the alleged misrepresentations that constitute mail and wire fraud in the Complaint itself is fatal to Plaintiffs’ RICO claim. In addition, Plaintiffs allege that Defendants made misrepresentations other than those contained in the Agreements for Deed. The Complaint states the following sentence with respect to each of the individual Plaintiffs’ transactions with Defendants: “Similar oral misrepresentations were made via wire prior to the execution of the Agreement for Deed.” See, e.g., DE # 64 ¶¶ 138, 145, 162, 175, 273, 294, 319, 381, 431, 639. Plaintiffs allege no facts supporting these statements. To the extent that Plaintiffs wish these “similar oral misrepresentations” to serve as RICO predicate acts, they must allege the misrepresentations made, the person responsi ble for the misrepresentations, the time and place the statements were made, how the statements misled the individual Plaintiffs, and how Defendants gained from them. Ambrosia Coal & Constr. Co. v. Morales, 482 F.3d 1309, 1316-17 (11th Cir.2007). b. RICO Case Statement This Court’s Local Rules reiterate Rule 9(b)’s heightened specificity standard by requiring that all civil RICO plaintiffs file and serve a RICO Case Statement. 5.D.Fla. L.R. 12.1. The RICO Case Statement must “include the facts relied on to initiate the RICO claim.” Id. To ensure that the necessary facts are included, the Case Statement must contain specific information that is listed in the Rule, and must be presented in the format laid out in the Rule. Id. RICO claims may be subject to dismissal for failure to comply with Rule 12.1. Platypus Wear, Inc. v. Clarke Model & Co., Case No. 06-20976-CIV, 2008 WL 186637, at *3 (S.D.Fla. Jan. 18, 2008) (“Dismissal of RICO counts for violation of Local Rule 12.1 is discretionary.”); Harrison Enters., Inc. v. Moran, Case no. 97-4362-CIV, 1999 WL 1211753, at *4 (S.D.Fla. Aug. 30, 1999) (warning that continued failure to comply with Local Rule 12.1 would result in dismissal with prejudice). Here, Plaintiffs have included a properly organized RICO Case Statement in the Second Amended Complaint. (DE # 64 ¶¶ 812-25). However, the RICO Case Statement, as filed, omits some of the required information. For example, Rule 12.1(d) requires Plaintiffs to “provide in detail and with specificity ... when and how each victim was injured.” L.R. 12.1(d). However, Plaintiffs only state the names of each Plaintiff along with the sums each Plaintiff claims he or she is owed. (DE #64 ¶ 815(a)-(dddd)). Rule 12.1(e) also requires that civil RICO plaintiffs “describe in detail the pattern of racketeering/criminal activity.” S.D.Fla. L.R. 12.1(e). The Rule further explains that a sufficient description separately lists: the predicate acts and their dates, the participants in the acts, the activity surrounding each predicate act, whether there have been any criminal convictions for any of the predicate acts, the relationship between the predicate acts, and how the predicate acts pose a threat of continued criminal activity. L.R. 12.1(e). Furthermore, section (e) expressly states the predicate offenses of mail fraud and wire fraud “shall be stated with particularity,” and cites Rule 9(b). L.R. 12.1(e)(3). Plaintiffs instead allege, in a single paragraph, a general and vague description of the fraudulent scheme. (DE # 64 ¶ 816). This does not meet the Rule’s requirements. In addition, Plaintiffs have not complied with the Local Rule’s requirements that they “describe in detail the enterprise.” L.R. 12.1(f). To comply with section (f) of the Rule, civil RICO plaintiffs must, among other things, state the names of all individuals and entities constituting the enterprise, “explain how each separate defendant participated in the direction or conduct of the affairs of the enterprise,” and state whether the defendants are the enterprise itself or separate from it. Id. Again, Plaintiffs included a one-paragraph, general description of the fraudulent scheme. (DE# 64 ¶ 817). Again, this does not satisfy the Rule. Finally, Plaintiffs have not alleged how the racketeering activity and the enterprise have merged into one, the benefits each Defendant received as a result of the scheme, and the damages for which each Defendant is liable, as required by Local Rule 12.1(g), (i), and (q), respectively. L.R. 12.1; DE # 64 ¶¶ 818, 820, 825. For these reasons, Plaintiffs RICO claims in Count IV will be dismissed without prejudice for failure to comply with Federal Rule of Civil Procedure 9(b), and Local Rule 12.1. 2. Count VIII: Interstate Land Sales Full Disclosure Act The Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 (“ILSFDA”), prohibits fraud in the sale of subdivision property, and requires subdivision developers to disclose certain information to buyers of property within subdivisions. 15 U.S.C. § 1703. a. Applicability of ILSFDA As a threshold matter, ILSFDA only regulates the conduct of “developers,” as defined by the statute. 15 U.S.C. §§ 1701, 1703. The statute defines a “developer” as “any person who, directly, or indirectly, sells or leases, or offers to sell or lease, or advertise for sale or lease any lots in a subdivision.” 15 U.S.C. § 1701(5). The Complaint alleges: “Paragon is a developer within the meaning of the Interstate Land Sales Full Disclosure Act,” and “Paragon used a common promotional plan to sell unimproved vacant lots in Costa Rica.” (DE # 64 ¶¶ 850, 851). “Paragon” is defined in the Complaint as an amalgamation of sixteen entities allegedly involved in a single fraudulent scheme. (DE # 64 ¶ 1). Plaintiffs here have thus alleged that this amalgamation of entities constitutes a “developer,” but have not alleged that the individual Defendants named in Count VIII are developers. It is not enough to allege that an individual Defendant is part of a larger conglomerate that is a developer. To assert a cause of action against individual persons or entities under ILSFDA, a plaintiff must allege that the individual persons or entities are themselves developers. See 15 U.S.C. § 1709(a) (providing cause of action under section 1703(a) for purchaser or lessee “against a developer or agent”). Plaintiffs incorporate Section II of the Complaint into Count VIII, and argue that the allegations in Section II sufficiently state that the individual Paragon entities are developers. (DE # 64 ¶ 849). However, as explained in the preceding section, Section II omits key facts with respect to certain Plaintiffs’ transactions, particularly the seller of the properties at issue. Plaintiffs have not adequately alleged that Defendants are developers, triggering the application of ILSFDA. b. Fraud Claims under ILSFDA Even if Plaintiffs had adequately alleged the Defendants are “developers” under the statute, their ILSFDA claims would nonetheless fail. In Count VIII, Plaintiffs incorporate the allegations related to individual Plaintiffs’ transactions, and allege that Defendants’ misrepresentations in the Agreements for Deed constitute violations of four subsections of the statute prohibiting fraud in the sale of subdivision lots. Plaintiffs’ fraud claims under ILSFDA are insufficient under Rule 9(b) for the same reasons that their RICO claims are insufficient. In Count VIII, Plaintiffs allege: Paragon used fraud and deceit to sell and market the lots in Costa Rica. In particular, Paragon falsely represented that all monies paid toward the land purchases were 100% refundable. These representations were false when made as Paragon was depleting the monies it received in a manner that would make refunds impossible. (DE # 64 ¶ 855). This statement does not allege the “who, what, when and where” that would “alert defendants to the precise misconduct with which they are charged,” as required by Rule 9(b). Ben-Yishay v. Mastercraft Dev., LLC, Case no. 08-14046, 2009 WL 6387928, at *3 (S.D.Fla.2009) (quoting Leisure Founders, Inc. v. CUC Int’l, Inc., 833 F.Supp. 1562, 1575 (S.D.Fla. 1993)); see also Degirmenci v. Sapphire-Fort Lauderdale, LLLP, 693 F.Supp.2d 1325, 1343-44 (S.D.Fla.2010) (applying Rule 9(b) standard to fraud claims under ILSFDA). As discussed above, Section II of the Complaint does not supply the requisite particularity, as Plaintiffs argue. As a result, Plaintiffs have failed to plead their fraud claims under ILSFDA with the heightened specificity required by Rule 9(b). c. Disclosure Requirements under ILSFDA Plaintiffs also allege that Defendants sold them subdivision lots without obtaining statements of record and without furnishing property reports to Plaintiffs, as required by ILSFDA. 15 U.S.C. § 1703(a)(l)(A)(B). (DE #64 ¶ 853). The required statements of record and property reports contain descriptive and legal information about the property, including, for example, the names and addresses of persons having an interest in the property, a description of the property including a subdivision map, a statement of the condition of title, and any encumbrances on the property. 15 U.S.C. §§ 1705,1707. To state a claim under this section 1703(a)(1)(A), a plaintiff needs only to allege the property at issue is part of a subdivision, the defendant sold or leased the property to the plaintiff, and no statement of record was in effect at the time of the sale. Count VIII contains no allegations whatsoever that a statement of record was not in effect for the properties sold to Plaintiffs. (DE # 64 ¶¶ 848-58). Section II, which details the transactions by individual Plaintiffs, similarly lacks any allegations as to statements of record. Because Plaintiffs have not pled any allegations as to one of the elements of this cause of action, the claim is insufficient on its face and must be dismissed. d. Claim Against LTS Management Finally, Plaintiff has failed to state a cause of action against Defendant LTS Management, Inc. (“LTS”). LTS is named as a defendant in Count VIII, but there are no allegations in the Complaint that it engaged in any transactions with any Plaintiffs. (DE # 64). In its Response in Opposition to one of the Motions to Dismiss, Plaintiffs allege for the first time that LTS is a defendant because it is a successor in interest to Paragon Properties of Costa Rica, LLC, which is now defunct. (DE # 103 at 6). To assert a claim against a defendant under a successor liability theory, a plaintiff must allege, “(1) the successor impliedly assume[d] the obligations of the predecessor, (2) the transaction is a de factor merger, (3) the successor corporation is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid the liabilities of the predecessor.” Orlando Light Bulb Serv., Inc. v. Laser Lighting and Elec. Supply, Inc., 523 So.2d 740, 742 (Fla. 5th DCA 1988). Here, the Complaint alleges only that LTS is “the managing and controlling member of Paragon Properties of Costa Rica LLC” (DE # 64 ¶ 121) and that “by all accounts [Paragon Properties of Costa Rica’s] office is closed.” Id. ¶ 92. These statements do not sufficiently allege successor liability, and would not put LTS on notice of why it was named as a defendant in these counts. Furthermore, these arguments raised for the first time in a Response to a Motion to Dismiss are not properly before the Court. If Plaintiffs wish to claim LTS is liable as a successor in interest, they must properly allege facts supporting that claim in a Complaint. 3. Count II: Fraudulent Inducement To state a claim for fraud in the inducement, a plaintiff must show that: “(1) a false statement was made regarding a material fact; (2) the individual who made the statement knew or should have known that it was false; (3) the maker intended that the other party rely on the statement; and (4) the other party relied on the false statement to its detriment.” Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So.2d 536, 542 (Fla. 5th DCA 2003). Claims for fraudulent inducement in federal court are governed by Rule 9(b). Cadow v. Sandals Resorts Int'l, Case No. 10-24092-CIV, 2011 WL 1527555, at *2 (S.D.Fla.2011) (dismissing fraud in the inducement claim because failure to allege identity of person who made misrepresentations constituted noncompliance with Rule 9(b)). In Count II, Plaintiffs again incorporate Section II of the Complaint. (DE # 64 ¶ 64). The insufficiency of those allegations has already been discussed. In addition, Plaintiffs allege in Count II: Paragon knew that it could not and would not fulfill its obligations when it made these fraudulent statements. In particular, Paragon knew it could never refund the deposits because it was dispersing the money as it came in to individuals and entities for purposes unrelated to the project. Paragon was not keeping itself capitalized because it had [no] intention of refunding the money it received.... Paragon made the false statements with the intention of inducing the Plaintiffs to enter into Agreements for Deed and to make payments to Paragon. (DE # 64 ¶¶ 791-92). These allegations as to the elements of knowledge and intent are not sufficient to state a claim for fraudulent inducement. The collective references to “Paragon” is fatal to Plaintiffs’ claim. This count is asserted against “each of the Paragon entities that are parties to the contracts (i.e., Agreements for Deed) with the Named Plaintiffs.” Id. ¶ 788. However, to state a claim against each of these defendants, Plaintiffs must allege that each Defendant knew the statements that it made were false, and that each Defendant intended that Plaintiffs would rely on those statements. It is not enough to allege that “Paragon,” an amalgamation of sixteen separate entities, had the requisite knowledge and intent. Again, Section II of the Complaint does not supply the required specificity. Accordingly, Count II must be dismissed. 4. Count IX: Fraudulent Transfers Plaintiffs allege that four individual Defendants, Judith Gale, Lisa Tashman, Julien Siegel, and Mariland Tashman, were the recipients of fraudulent transfers in violation of Fla. Stat. § 726.105. (DE # 64 ¶¶ 859-65). Section 726.105 is part of Florida’s Uniform Fraudulent Transfers Act (“UFTA”), which lays out a statutory scheme for creditors to set aside a debtor’s transfer of assets to a third party under certain circumstances. Fla. Stat. § 726.101 et seq; Wiand v. Waxenberg, 611 F.Supp.2d 1299, 1318 (M.D.Fla.2009); see also Pearlman v. Alexis, Case No. 09-20865-CIV, 2009 WL 3161830, at *4 (S.D.Fla.2009) (“[UFTA] was adopted to prevent an insolvent debtor from transferring assets away from creditors when the debtor’s intent is to hinder, delay, or defraud any of its creditors.”). Section 726.105(1) of UFTA, invoked by Plaintiffs here, provides: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or (b) Without receiving a reasonable equivalent value in exchange for the transfer or obligation, and the debtor: 1. Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due. Fla. Stat. § 726.105(1). Thus, the statute “provides two theories by which a present or future creditor may recover fraudulent transfers: an actual fraud theory, under subsection (a), and a constructive fraud theory, under subsection (b).” Wiand, 611 F.Supp.2d at 1318. There is a split within this Circuit as to whether fraudulent transfer claims must be pled with the particularity required by Rule 9(b). The Court declines to address the issue at this time because Plaintiffs have failed to plead their claim with the specificity required by Federal Rule of Civil Procedure 8(a). Plaintiffs allege an actual fraud claim against Defendants Judith Gale, Lisa Tashman, and Julien Siegel. (DE # 64 ¶ 863). To state a claim for actual fraud under UFTA, a plaintiff must “allege (1) there was a creditor sought to be defraud ed; (2) a debtor intending fraud; and (3) a conveyance of property which could have been available to satisfy the debt.” Nationsbank, N.A. v. Coastal Utils. Inc., 814 So.2d 1227, 1229 (Fla. 4th DCA 2002). Here, Plaintiffs have not adequately alleged the second element, “a debtor intending fraud.” First, Plaintiffs have not adequately identified the “debtors.” The Complaint simply states: “Plaintiffs and members of the class are creditors of the Paragon Entities, by virtue of the monies transferred for the alleged land transactions.” (DE # 64 ¶ 860). Again, the “Paragon Entities” are sixteen separate entities. Plaintiffs fail to explain which entities are “debtors” as defined by the statute, which Plaintiffs are creditors of which debtor-entities, and which of the debtors made the transfers to which recipients. Rather, Plaintiffs allege that, “Paragon transferred monies received from Plaintiffs and members of the class ... to Defendants Judith Gale, Lisa Tashman, and Julien Siegel Paragon paid the personal credit cards of Defendants Judith Gale, Lisa Tashman, and Julien Siegel from funds that were supposed to be held in escrow [], and Paragon ordered the direct transfer of funds from Charles L. Neustein, P.A.’s trust fund[] account to Defendants Lisa Tashman and Julien Siegel.” (DE # 64 ¶ 861). These vague assertions do not give Defendants “fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A defendant included in the “Paragon” or “Paragon Entities” definition in the Complaint can not determine from these allegations what, if any, of its alleged conduct is implicated here. Second, Plaintiffs have not adequately alleged the intent element. “Because of the difficulty of proving actual intent, past statutory law, existing case law and the UFTA look to indicia of intent commonly known as ‘badges of fraud.’ ” Amjad Munim, M.D., P.A. v. Azar, 648 So.2d 145, 152 (Fla. 4th DCA 1994); In re XYZ Options, Inc., 154 F.3d 1262, 1271 (11th Cir.1998) (“In determining whether the circumstantial evidence is sufficient to establish fraudulent intent, the court should investigate the transfer for the existence of badges of fraud.”). The UFTA lists eleven nonexclusive “badges of fraud” that may be considered in determining actual intent. Fla. Stat. § 726.105(2). Plaintiffs have not alleged the existence of any of these badges of fraud in Count IX. (DE # 64 ¶¶ 859-65). The only allegation of Defendants’ intent is: “Paragon made the transfers to Defendants Judith Gale, Lisa Tashman, and Julien Siegel with the actual intent to hinder, delay, or defraud Plaintiffs and members of the class from obtaining the monies Paragon owed them.” Id. This is the type of “formulaic recitation of a cause of action’s elements [that] will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Plaintiffs have also failed to state a claim for a constructive fraudulent transfer against Mariland Tashman in Count IX. Count IX contains only the following allegations as to Mariland Tashman: “The Paragon Entities also paid Mariland Tashman monies from the Paragon operating account. There is no evidence that she ever provided services for Paragon.” (DE # 64 ¶ 862). To state a claim for constructive fraud under section 726.105(Z )(b), a plaintiff must allege that a debtor made a transfer or incurred an obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: (1) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (2) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his ability to pay as they became due. Fla. Stat. 726.105(l)(b) (emphasis added). The Complaint contains no allegations as to either of the alternative second elements. Because Plaintiffs have not pled an element of this cause of action, the claim fails to meet Rule 8(a)(2)’s requirements and must be dismissed. C. Non-Fraud Claims 1. Count I: Breach of Contract Plaintiffs allege that the Paragon entities breached the Agreements for Deed by failing to either refund their deposits and installment payments or failing to deliver valid deeds to purchasers who paid the full purchase price. (DE # 64 ¶¶ 781-87). Plaintiffs also allege Defendants breached the contracts by failing to install infrastructure improvements within the promised time period. Id. This count is asserted against “each of the Paragon Entities that are parties to the contracts (i.e., Agreements for Deed with the Named Plaintiffs.” Id. ¶ 781. Count I also incorporates Section II, which contains allegations as to named Plaintiffs’ individual transactions. Id. ¶ 782. The elements of a breach of contract claim are straightforward: “(1) a valid contract; (2) a material breach; and (3) damages.” Schiffman v. Schiffman, 47 So.3d 925, 927 (Fla. 3d DCA 2010) (quoting Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000)). Here, Plaintiffs allege that the parties entered into Agreements for Deed, the Paragon entities breached them by keeping Plaintiffs’ money without delivering any valid deeds, and that Plaintiffs suffered damages as a result. Defendant All Star Consulting Group, Inc. (“All Star”) does not argue that Plaintiffs have failed to allege the elements for breach of contract; rather All Star argues that Count I should be dismissed because it “lacks the proper specificity.” (DE # 118 at 7). In particular, All Star argues that “Plaintiffs’ failure to identify which Defendants allegedly breached which contracts dooms this count.” Id. Plaintiffs argue that the Agreements for Deed, attached as exhibits to the Complaint, sufficiently identify which Defendants allegedly breached which contracts. (DE # 119 at 2). As an initial matter, All Star is named in Section II of the Complaint as the seller of the property purchased by Plaintiff Anne Smith. (DE # 64 ¶ 163). However, All Star also allegedly entered into Agreements for Deed with Plaintiffs Ronald and Kathleen Erb, and Rhonda Brewer, but All Star is not identified as the property seller in the allegations pertaining to these Plaintiffs in Section II (no seller is identified). (DE # 64 ¶¶ 326-34, 456-60). In addition, the Complaint alleges conduct that would constitute a breach of contract was taken by people and entities other than All Star. For example, the Complaint alleges that Plaintiff Anne Smith requested refunds from Defendants William Gale, Esteban Soto, and Charles L. Neustein, and that those refund requests have gone unanswered. (DE #64 ¶¶ 164-173). The Complaint contains no allegations that these Defendants acted on behalf of All Star, or that All Star refused to pay refunds to these plaintiffs. In addition, with respect to Plaintiffs Ronald and Kathleen Erb and Rhonda Brewer, the Complaint alleges that “Paragon was obligated to put in place infrastructure of roads and electricity,” within a time period that has now passed, and that the infrastructure is not in place. Id. ¶¶ 331-32, 458-59. Again, Paragon is comprised of sixteen entities. It is not clear from this allegation which obligations All Star was allegedly responsible for, and which obligations it allegedly breached. Plaintiffs’ failure to name the sellers of the properties in the relevant sections of the Complaint is addressed above, and, like the claims already discussed, this failure renders the breach of contract claim insufficient. Moreover, Plaintiffs’ failure to allege breaching conduct by All Star rather than non-parties is fatal to Plaintiffs’ claims. Any actions taken by nonparties, even if inconsistent with the contracts, cannot give rise to a cause of action for breach of contract against All Star. See Norfolk S. Ry. Co. v. Groves, 586 F.3d 1273, 1282 (11th Cir.2009) (“It goes without saying that a contract cannot bind a nonparty.”) (quoting Miles v. Naval Aviation Museum Found., Inc., 289 F.3d 715, 720 (11th Cir.2002)). In sum, Plaintiffs have alleged that All Star agreed to build infrastructure improvements and to refund money under certain circumstances, but that other individuals and a group of entities refused to refund the money and failed to build the promised improvements. As a result, Plaintiffs have not alleged that All Star breached the contracts. To the extent that the same deficiencies are present in allegations for breach of contract against other, non-moving defendants, Plaintiffs should remedy them as well in any amended pleading that is filed. 2. Count III: Alter Ego In Count III, Plaintiffs assert that mov ing Defendant Julien Siegel abused the corporate form of the Paragon entities, and should be held personally liable for wrongdoing committed by the entities. (DE # 64 ¶¶ 796-808). Defendant Siegel moves to dismiss this count on the grounds that alter ego is not an independent cause of action that can be the subject of a separate count, and that Plaintiffs have failed to adequately allege that he abused the corporate form, such that the “corporate veil” should be pierced. As an initial matter, Florida courts permit alter ego allegations to be pled as a distinct cause of action. See, e.g. Acadia Partners, L.P. v. Tompkins, 759 So.2d 732, 740 (Fla. 5th DCA 2000). Nonetheless, federal courts require that only separate claims for relief be pled in separate counts. Fed.R.Civ.P. 10(b) (“[E]aeh claim founded on a separate transaction or occurrence ... must be stated in a separate count.”). Accordingly, federal courts generally find that “[a]lter ego is not a separate cause of action for which relief can be granted; rather, ... alter ego serves as a theory to impose liability on an individual for the acts of a corporate entity.” Tara Prods., Inc. v. Hollywood Gadgets, Inc., Case No. 09-CV-61436, 2010 WL 1531489, at *9 (S.D.Fla. April 16, 2010) (dismissing alter ego count with prejudice and requiring plaintiff to re-plead allegations regarding alter ego in the body of the complaint). Count III will be dismissed with prejudice, but Plaintiffs will be permitted to plead allegations related to their alter ego theory in the body of the Complaint. In addition, Plaintiffs have failed to allege the substantive elements required to pierce the corporate veil. In general, “a corporation is a separate legal entity, distinct from the persons comprising [it].” Gasparini v. Pordomingo, 972 So.2d 1053, 1055 (Fla. 3d DCA 2008). However, “the corporate veil may be pierced if the plaintiff can prove both that the corporation is a mere instrumentality or alter ego of the defendant, and that the defendant engaged in improper conduct in the formation or use of the corporation.” XL Vision, LLC v. Holloway, 856 So.2d 1063, 1066 (Fla. 5th DCA 2003). To show that a corporation is the alter ego of a defendant, a plaintiff must allege “the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact nonexistent and the shareholders were in fact alter egos of the corporation.” Gasparini, 972 So.2d at 1055. Here, Plaintiffs have only alleged that Julien Siegel owns and operates or is the president of Costa Rican Land and Development. (DE # 64 ¶¶ 114, 115, 797, 802). However, “the mere ownership of a corporation by a few shareholders, or even one shareholder, is an insufficient reason to pierce the corporate veil.” Gasparini, 972 So.2d at 1055. Plaintiffs’ conclusory allegations that the Paragon Entities were “nothing more than shell corporations” used by Defendants “to commit a major fraud,” Id. ¶ 803, do not save their claim. These allegations do not explain how Defendants allegedly abused the corporate form, such that they should be held personally liable. See, e.g., XL Vision, 856 So.2d at 1066 (finding allegations that shareholders commingled funds, failed to maintain corporate formalities, paid corporate salaries and expenses sufficient to allege corporation was alter ego of defendants). Finally, Plaintiffs have not adequately alleged “improper conduct in the formation or use of the corporation” by Defendant Siegel. As previously discussed, Plaintiffs have alleged fraudulent conduct by “Paragon,” a group of sixteen different entities. Plaintiffs have not alleged any facts related to the improper formation or use of any corporations by any of the individual Defendants named in this count. 3. Count V: Civil Theft Florida has created a civil cause of action for victims of theft. Fla. Stat. § 772.11(1). Plaintiffs here allege the Paragon Entities stole money from them by fraudulently soliciting deposit monies and then refusing to refund the deposits, despite the contractual obligation to do so. (DE # 64 ¶¶ 826-833). Defendants argue that Plaintiffs’ civil theft claims should be dismissed for failure to comply with a statutory pre-suit notice requirement. Specifically, Florida’s civil theft statute provides: Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Fla. Stat. § 772.11(1). Plaintiffs’ Complaint did not allege compliance with this pre-suit notice requirement, and Defendants argue that dismissal of their claims is warranted as a result. However, “the Southern District of Florida has been lenient in the application of this rule.” Ames v. Provident Life and Accident Ins. Co., 942 F.Supp. 551, 562 n. 8 (S.D.Fla.1994) (deeming failure to comply with pre-suit notice requirement excusable neglect and directing plaintiff to make demand before case was set for trial); Comcast of South Florida II v. Best Cable Supply, Inc., 2008 WL 190584, at *9 n. 6 (S.D.Fla. Jan. 22, 2008) (noting plaintiffs’ failure to plead compliance with written demand requirement and requiring plaintiffs to “address this deficiency” in an amended complaint); see also Seymour v. Adams, 638 So.2d 1044, 1049 (Fla. 5th DCA 1994) (declining to grant summary judgment for failure to comply with demand letter requirement). In fact, this Court has previously recognized the harshness of dismissal as a sanction for failure to comply with the notice requirement. Korman v. Iglesias, 736 F.Supp. 261, 267 (S.D.Fla.1990) (King, J.) (“The court deems such a pleading failure excusable neglect, and directs plaintiff to comply with the statute at this time.”). The Court will again follow its previous course of action. Plaintiffs civil theft claims will be dismissed without prejudice to re-plead after complying with the statute. 4. Count VI: Breach of Fiduciary Duty Plaintiffs allege that Defendants Charles L. Neustein, Charles L. Neustein, P.A., and Law Offices of Charles L. Neustein, P.A. breached fiduciary duties to owed to them as their escrow agent. (DE # 64 ¶¶ 834-841). These Defendants are re ferred to collectively in the Complaint as “Neustein.” Id. at 835. The three Neustein Defendants move to dismiss Count VI on the ground that it fails to state a claim because they owed no fiduciary duties to Plaintiffs, and even if they did, Plaintiffs’ claims would be barred by the economic loss rule. a. Failure to State a Claim for Breach of Fiduciary Duty The elements of a breach of fiduciary duty claim are: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damages that are proximately caused by the breach. Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002). Here, Plaintiffs have alleged that the Neustein Defendants owe them fiduciary duties as escrow holders, they breached that duty by disbursing funds in a manner contrary to the escrow agreement, and that they have sustained damages as a result. Defendants argue that no funds were “truly escrowed,” so they owed no duties to Plaintiffs. To establish a binding escrow, “there must be an instrument embodying conditions mutually beneficial to both parties, agreed to by both parties, and it must be communicated to and deposited with a third party.” Smith v. Macbeth, 119 Fla. 796, 803, 161 So. 721, 724 (1935). Contrary to Defendants’ argument, Florida law imposes no requirement that the escrow agent sign the escrow agreement for it to be binding. See id.; Fla. Bar v. Joy, 679 So.2d 1165, 1166 (Fla.1996) (recognizing transmittal letter accompanying check to be escrowed constituted valid escrow agreement). Here, Plaintiffs have alleged the Agreements for Deed, which expressly provide for deposit money to be paid to “Trust Account of Charles L. Neustein, P.A. (the Escrow Holder),” were escrow agreements. The Agreements for Deed contain the requisite “conditions mutually beneficial to both parties” and are signed by the relevant parties. Plaintiffs also allege in Section II that they paid their deposits and installment payments to “Neustein.” Finally, they allege that “Neustein” sent them letters confirming receipt of the deposits and that Neustein was the escrow agent for their transactions. (DE # 64 ¶ 837). Plaintiffs have adequately alleged the existence of a valid escrow. Although Defendants may not have considered these funds to be “truly es-crowed,” that is irrelevant. Even if the requirements for formation of a valid escrow had not been met, there is an exception for cases where an escrow agent represents to a party that a valid escrow has been formed. USA Flea Mkt. v. EVMC Real Estate Consultants, Inc., Case No. 8:06-CV-00431-TBM, 2006 WL 2830881, at *2 (finding that escrow agent owed principals fiduciary duties where valid escrow never created because escrow agent never received deposit, but escrow agent represented to plaintiff that deposit was received and was being held in escrow). Because Plaintiffs here allege that Neustein held itself out as the escrow agent for Plaintiffs’ transactions, this exception would apply even if Plaintiffs had not adequately pled the formation of an escrow. Because they alleged existence of a valid escrow, Plaintiffs have alleged the existence of a fiduciary duty. It is well-settled that one who undertakes to act as an escrow holder assumes fiduciary duties as a matter of law: Regardless of the escrow agent’s other relationships or duties to the principal parties ... when principal parties agree upon an escrow agent, by undertaking to act as such, the escrow agent establishes a new legal relationship to the principal parties and by an expressed agreement or an agreement implied in law, agrees to certain inherent matters. The relationship established is that of principal and agent and involves the escrow agent being an agent of, and owing a fiduciary relationship to, all of the principal parties. ... The agent has undertaken a legal obligation (1) to know the provisions and conditions of the principal agreement concerning the escrowed property, and (2) to exercise reasonable skill and ordinary diligence in holding and delivering possession of the es-crowed property (i.e., to disburse the escrowed funds) in strict accordance with the principal’s agreement. United Am. Bank of Central Fla. v. Seligman, 599 So.2d 1014, 1016 (Fla. 5th DCA 1992); see also Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So.2d 1063, 1064 (Fla. 3d DCA 1993) (“Escrow holders are recognized as agents of the parties to the escrow and as trustee in charge of the performance of an express trust. As such, escrow holders have a duty to exercise reasonable skill and ordinary diligence.”). Furthermore, “escrow agents have a duty to disclose all material facts.” Watkins, 622 So.2d at 1064; Aberbach v. Wekiva Assocs., Ltd., 735 F.Supp. 1032, 1035 (S.D.Fla.1990) (King, J.) (finding plaintiffs’ allegations that escrow agent failed to disclose material facts stated claim for breach of fiduciary duty). Finally, Plaintiffs allege that the Neustein Defendants breached their fiduciary duty by disbursing funds in a manner contrary to the Agreements for Deed. More specifically, they allege that money deposited into the Neustein escrow account was transferred out immediately, regardless of whether the conditions precedent for disbursement in the Agreements for Deed had been met. Handling of es-crowed funds in a manner contrary to the escrow agreement is a breach of an escrow holder’s fiduciary duties. Fla. Bar v. Joy, 679 So.2d 1165, 1167 (Fla.1996) (finding escrow agent breached fiduciary obligation where he transferred escrowed funds into his wife’s bank account in violation of escrow agreement); United Am. Bank of Central Fla. v. Seligman, 599 So.2d 1014, 1017 (Fla. 5th DCA 1992) (holding escrow holder breached duty by disbursing es-crowed funds to party other than recipient named in escrow agreement); Wall Street Mortgage Bankers, Ltd. v. Attorneys Title Ins. Fund, Inc., Case No. 08-21648, 2008 WL 5378126, at *3 (S.D.Fla. Dec. 23, 2008) (“[The escrow holder] breached its duty when it disbursed Plaintiffs money that it had held in escrow without first obtaining a [deed].... These allegations state a claim for breach of fiduciary duty.”). b. Economic Loss Rule Florida’s economic loss rule is a doctrine that bars an action in tort where the alleged losses arise out of a contract, and the plaintiff seeks recovery of only economic damages. Indemnity Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 536 (Fla.2004). The rationale for the rule is that parties to a contract are assumed to have already allocated the risk of loss from nonperformance when negotiating the contract. Moransais v. Heathman. 744 So.2d 973, 980 (Fla.1999). “A party to a contract who attempts to circumvent the contractual agreement by making a claim for economic loss in tort is, in effect, seeking to obtain a better bargain than originally made.” Indemnity Ins. Co., 891 So.2d at 536. However, the Florida Supreme Court has limited the application of the economic loss rule to two situations: (1) products liability cases where the only damage is to the product itself, and (2) cases where the parties are in contractual privity. Id. at 534. The Florida Supreme Court has also stated: “We again emphasize that by recognizing that the economic loss rule may have some genuine, but limited, value in our damages law, we never intended to bar well-established common law causes of action.” Moransais, 744 So.2d at 983. More specifically, courts have recognized an exception for so-called “independent torts,” or torts that “require! ] proof of facts that are distinct from breach of contract.” Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So.2d 1263, 1265 (Fla. 3d DCA 2000); see also Moransais, 744 So.2d at 983 (holding that “the mere existence of a contract should not serve per se to bar [a tort action].”). Florida courts have found that breach of fiduciary duty is such an independent tort. Id. at 1267 (“The economic loss rule has not abolished the cause of action for breach of fiduciary duty, even if there is an underlying oral or written contract.”). Here, Plaintiffs have alleged breaches of fiduciary duties that are independent from the breaches of contract they allege in Count I. The breach of contract claim is asserted against different Defendants, and alleges different conduct as a basis for the breach. Plaintiffs would have to prove a different set of facts to support each claim. Furthermore, this is not the type of case where a plaintiff seeks to “obtain a better bargain than originally made” in the underlying contract. The Neustein Defendants are not parties to the Agreements for Deed; rather, the Plaintiffs and Sellers are parties to the contracts. Accordingly, Plaintiffs are not attempting to circumvent contract law by bringing a tort claim, because they could not assert a breach of contract claim against these Defendants in the first place. Contrary to Defendants’ arguments, the only duties they may have owed to Plaintiffs were grounded in tort, and not contract. The economic loss rule is not a bar to their claims. c. Rule 8(a)(2) Nonetheless, Plaintiffs’ breach of fiduciary duty claims must be dismissed because they suffer from the same lack of specificity as other claims in the Complaint. Plaintiffs’ collective reference to “Neustein” makes it unclear which of the three Defendants comprising “Neustein” is alleged to be liable for what conduct. In addition, it is unclear how Charles L. Neustein and Law Offices of Charles L. Neustein, P.A. could be liable for breach of fiduciary duties to Plaintiffs where only Charles L. Neustein, P.A. is identified as the escrow holder in the Agreements for Deed. Count VI does not give the three Neustein Defendants “fair notice of what the claim [against them] is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Accordingly, Count VI will be dismissed without prejudice for failure to comply with Rule 8(a)(2) of the Federal Rules of Civil Procedure. IV. Conclusion After a careful consideration of the record, and having the benefit of oral argument, it is hereby ORDERED, ADJUDGED, and DECREED that the Motions to Dismiss (DE # 77, DE # 91, DE # 118) are GRANTED. Count III is DISMISSED with prejudice, but Plaintiffs may plead alter ego allegations in other sections of an Amended Complaint. Counts I, II, IV, V, VI, VIII, and IX of the Amended Complaint (DE # 64) are DISMISSED without prejudice. Plaintiffs may re-file these claims in an Amended Complaint within thirty (30) days from the date of this Order. Defendants SHALL respond to any Amended Complaint that is filed within twenty (20) days of its filing. .Plaintiffs filed a Response in Opposition to the Motion to Dismiss Filed by Defendants Costa Rican Land & Development, Inc., Judith Gale, LTS Management, Inc., Julian L. Siegel, Lisa Tashman and Mariland Tashman (DE # 103) on October 14, 2010. Defendants filed a Reply (DE #111) October 29, 2011. Plaintiffs filed a Response in Opposition to All Star Consulting Group, Inc. and Bruce Goldberg's Motion to Dismiss (DE #119) on December 23, 2010. . Defendants' Motion (DE # 77) was filed September 14, 2010. Plaintiffs filed a Response in Opposition (DE # 93) September 28, 2010, to which Defendants replied October 6, 2010. (DE # 100). . These facts are taken from the Second Amended Complaint (DE # 64). Plaintiffs filed the original Complaint May 26, 2010. (DE # 1). Plaintiff filed an Amended Complaint (DE # 8) on June 20, 2010, before any Defendants were served, and filed the Second Amended Complaint (DE # 64) August 24, 2010 with leave of court. See DE # 54. The instant motions to dismiss are directed at the Second Amended Complaint, which will be referred to simply as “the Complaint.” . The Agreements for Deed provide, in relevant part: “If the balance is not paid by the expiration of the sixty (60) month period, Seller will return the amounts paid without interest. In such event, this Agreement shall be deemed cancelled.” (DE # 66-1). . Section 1962(c) provides in full: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962(c). . Local Rule 12.1(f) provides in full: Describe in detail the enterprise for each RICO claim. A description of the enterprise shall: (1) state the names of the individuals, partnerships, corporations, associations, or other entities constituting the enterprise; (2) describe the structure, purpose, roles, function, and course of conduct of the enterprise; (3) state whether any defendants are employees, officers, or directors of the enterprise; (4) state whether any defendants are associated with the enterprise, and if so, how; (5) explain how each separate defendant participated in the direction or conduct of the affairs of the enterprise; (6) state whether you allege (A) that the defendants are individuals or entities separate from the enterprise, or (B) that the defendants are the enterprise itself, or (C) that the defendants are members of the enterprise; and (7) if you allege any defendants to be the enterprise itself, or members of the enterprise, explain whether such defendants are perpetrators, passive instruments, or victims of the racketeering activity. S.D.Fla.L.R. 12.1(f). . . "Person” is defined as "an individual, or an unincorporated organization, partnership, association, corporation, trust, or estate.” 15 U.S.C. § 1701(2). . The statute provides: " 'Subdivision' means any land which is located in any State or in a foreign country and is divided or is proposed to be divided into lots, whether contiguous or not, for the purpose of sale or lease as part of a common promotional plan.” 15 U.S.C. § 1701(3). . Section II contains allegations related to the named Plaintiffs' individual transactions with Defendants. . The statute's fraud provisions, in relevant part, are as follows: It shall be unlawful for any developer or agent, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce, or of the mails— (2) with respect to the sale or lease, or offer to sell or lease, any lot not exempt under section 1702(a) of this title— (A) to employ any device, scheme, or artifice to defraud; (B) to obtain money or property by means of any untrue statement of a material fact, or any omission to state a material fact necessary in order to make the statements made (in light of the circumstances in which they were made and within the context of the overall offer and sale or lease) not misleading, with respect to any information pertinent to the lot or subdivision; (C) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon a purchaser; or (D) to represent that roads, sewers, water, gas, or electric service, or recreational amenities will be provided or completed by the developer without stipulating in the contract of sale or lease that such services or amenities will be provided or completed. 15 U.S.C. § 1703(a)(2)(A)(D). .Section 1703(a) provides, in relevant part: (a) Prohibited activities It shall be unlawful for any developer or agent, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce, or of the mails— (1) with respect to the sale or lease of any lot not exempt under section 1702 of this title— (A) to sell or lease any lot unless a statement of record with respect to such lot is in effect in accordance with section 1706 of this title; (B) to sell or lease any lot unless a printed property report, meeting the requirements of section 1707 of this title, has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser or lessee. 15 U.S.C. § 1703(a)(l)(A)(B). . As explained above, to make any claim under ILSFDA a plaintiff must also allege the defendants are "developers” as defined by the statute, which Plaintiffs here have failed to do for the reasons discussed in the preceding section. . LTS is also named as a defendant in Count V, which asserts a cause of action for civil theft. (DE # 64 ¶¶ 826-33). The analysis here applies to the allegations in Count V as well. . See, e.g., Akanthos Capital Mgmt., LLC v. CompuCredit Holdings Corp., 770 F.Supp.2d 1315, 1336, 2011 WL 987353, at *17 (N.D.Ga. 2011) (Batten, J.) (applying Rule 9(b) to actual fraud claims but not constructive fraud claims under Georgia UFTA); Steinberg ex rel. Lancer Mgmt. Group LLC v. Alpha Fifth Group, Case No. 04-60899-CIV, 2010 WL 1332840 at *2 (S.D.Fla. March 30, 2010) (Marra, J.) (finding UFTA claims are “significantly different from other fraud claims to which Rule 9(b) is directed,” and that Rule 9(b) therefore does not apply to claims brought under the Florida UFTA); Perlman v. Five Corners Investors I, Case No. 09-81225-CIV, 2010 WL 962953, at *4 (S.D.Fla. March 15, 2010) (Hurley, J.) (same); Ben-Yishay v. Mastercraft Dev., LLC, Case No. 08-14046-CIV, 2009 WL 6387928, at *4 (S.D.Fla. Dec. 14, 2009) (Moore, J.) (applying Rule 9(b) pleading requirements to fraudulent transfer claims under Fla. Stat. § 726.105); Special Purpose Accounts Receivable Co-op. Corp. v. Prime One Capital Co., Case No. 06-61055-CIV, 2007 WL 2826603 (S.D.Fla. Sept. 25, 2007) (Moreno, C.J.) (finding Rule 9(b) applies to claims of actual fraudulent transfers, but not claims of constructive fraudulent transfers). . The statute provides: In determining actual intent under paragraph (Z)(a), consideration may be given, among other factors, to whether: (a) The transfer or obligation was to an insider. (b) The debtor retained possession or control of the property transferred after the transfer. (c) The transfer or obligation was disclosed or concealed. (d) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit. (e) The transfer was of substantially all the debtor's assets. (f) The debtor absconded. (g) The debtor removed or concealed assets. (h) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred. (i) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. (j) The transfer occurred shortly before or shortly after a substantial debt was incurred. (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. Fla. Stat. § 726.105. . Defendant Costa Rican Land Development, Inc. has moved to dismiss Count I on the ground that "there is no specific allegation of a contract between any Plaintiff and Costa Rican Land & Development." (DE #91 at 7). However, as explained in Plaintiffs' Response in Opposition (DE # 103), Costa Rican Land Development is not named as Defendant in Count I because it is not a party to any of the Agreements for Deed. Id. at 11-12. Therefore, the Motion to Dismiss Count I as to Defendant Costa Rican Land Development, Inc. is denied as moot. . None of the other moving Defendants are named in this Count. . Plaintiffs also allege that Defendants William Gale, Esteban Soto, Lyle Wexler, Larry Webman, and Stephen Tashman abused the corporate form of the Paragon entities, and that they too should be personally liable for the wrongdoing of the entities. (DE # 64 ¶¶ 796, 808). However, Julien Siegel is the only defendant named in Count III that has moved to dismiss. . Plaintiffs allege for the first time in their Response in Opposition to the Motion to Dismiss that Defendants failed to disclose material facts to them. These failure-to-disclose allegations, not pled in the Complaint, are not properly before the Court at this time and will not be considered in ruling on the Motions to Dismiss.

ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE IN PART DEFENDANT’S MOTION TO DISMISS ROYAL FURGESON, Senior District Judge. BEFORE THE COURT is Defendant Hi-Line Electric Company’s (“Hi-Line”) Motion to Dismiss Claims for Individual Relief (Docket No. 44), filed March 29, 2011. Plaintiff Equal Employment Opportunity Commission (“the EEOC”) filed a Response (Docket No. 48) on April 5, 2011. Hi-Line filed a Reply on April 19, 2011 (Docket No. 49). Hi-Line seeks the Court to limit the EEOC’s potential recovery in this case to injunctive relief, arguing that the EEOC lacks standing to obtain monetary relief. For the reasons stated below, Hi-Line’s Motion to Dismiss is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART. I. Factual and Procedural Background The EEOC filed its Complaint against Hi-Line on September 30, 2009. The EEOC alleged that since September 2004, Hi-Line violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), in its recruitment and hiring policies. The EEOC alleged that the policies that had the effect of excluding applicants over the age of 50 years from the position of Territory Manager. The EEOC requested relief including a permanent injunction regarding the alleged conduct, payment of back wages and other damages, and an order requiring the institution of policies, programs and practices to provide equal employment opportunities for applicants over the age of 50 years. Earlier in this litigation, Hi-Line moved to dismiss all of the EEOC’s claims for monetary relief on the grounds that the EEOC had not named any party plaintiff on behalf of whom it intended to recover. See Mot. to Dismiss, Docket No. 27. The Court denied this motion without prejudice and allowed the EEOC to amend its pleadings in accordance with the Court’s Order of December 28, 2010 (Docket No. 33). The EEOC filed an Amended Complaint on January 25, 2011 (Docket No. 36), in which it listed eighteen individuals who were allegedly denied hiring opportunities because of their age. The EEOC did not, however, name these eighteen individuals as party plaintiffs. Hi-Line subsequently filed the instant Motion to Dismiss, arguing that Plaintiff had failed to address the Court’s concerns in its prior Order and that because these individuals were not named plaintiffs, the EEOC lacks standing to obtain monetary relief on their behalf. Accordingly, Hi-Line asks the Court to limit the scope of relief available to the EEOC to injunctive relief, and dismiss the EEOC’s claims that seek monetary relief. II. Discussion As an initial matter, the Court addresses Hi-Line’s contention that the EEOC’s Second Amended Complaint was filed without leave of the Court and without a proper accompanying motion. Contrary to Hi-Line’s assertions to this point, the Court is of the opinion that the EEOC properly filed its Second Amended Complaint. The Court’s Order of December 28, 2010 instructed that “the deadline to file a motion to join parties or amend pleadings is extended to February 1, 2011.” Order, Docket No. 33, at 8. It is true at this stage that the EEOC may not amend its complaint on its own initiative; it must do so with leave of the Court “as justice so requires.” Fed.R.Civ.P. 15(a)(2). However, because that Order extended the deadline to amend pleadings to February 1, 2011 and denied the previous Motion to Dismiss without prejudice while identifying the First Amended Complaint’s defects, this Order permitted the EEOC to amend its pleadings. In any case, Rule 15(a) provides the Court with “virtually unlimited discretion” to allow amendments before entry of judgment. Benson v. St. Joseph Reg’l Health Ctr., 575 F.3d 542, 550 (5th Cir.2009); Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir.2000). Here, Hi- Line has already filed a substantive objection to the Second Amended Complaint through the instant Motion to Dismiss. The Court is convinced that proceeding directly to the merits of the issue by addressing a Motion to Dismiss filed by Hi-Line as opposed to a motion for leave to amend its pleadings filed by the EEOC will not alter the Court’s analysis or ultimate conclusion, and will not prejudice either party. The Court now turns to the merits of instant Motion. Actions for relief under the ADEA are governed by 29 U.S.C. § 626, which reads in relevant part, “The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title----” Congress accordingly intended for actions under the ADEA, including EEOC enforcement actions, to be governed by the same procedural rules as those that govern the FLSA under the noted portions of 29 U.S.C. § 216 and 29 U.S.C. § 217, which constitute portions of the Fair Labor Standards Act (“FLSA”). These FLSA provisions empower the EEOC to enforce the statute, and provide direction for that agency’s procedures attempting to obtain recovery in a representative action on behalf of aggrieved individuals. Section 216(c) and Section 217 provide different guidelines for the EEOC’s role in bringing enforcement actions. First, Section 216(c) provides, The Secretary may bring an action in any court of competent jurisdiction to recover the amount of unpaid minimum wages or overtime compensation and an equal amount as liquidated damages.... In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations provided in section 255(a) of this title, it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action. 29 U.S.C. § 216(c). This Section “authorizes the Secretary to recover back wages as well as liquidated damages on behalf of those employees specifically named in a complaint.” Donovan v. University of Texas at El Paso, 643 F.2d 1201, 1204 (5th Cir.1981). It also counsels courts about determining when the statute of limitations (which is defined in Section 255(a), the provision cited in Section 216(c)) is runs for the purpose of determining the amount of recovery or when such actions are time-barred. Second, courts may allow the recovery of back wages under Section 217 unless those individuals are barred from recovering at the time of commencement of the action. “Section [217] ... allows the Secretary through the Courts to seek broad injunctive relief as well as back wages for all affected employees without any requirement that they be specifically named in the complaint.” Donovan, 643 F.2d at 1204. Section 217 specifically provides, The district courts ... shall have jurisdiction, for cause shown, to restrain violations of section 215 of this title, including in the case of violations of section 215(a)(2) of this title the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter (except sums which employees are barred from recovering, at the time of commencement of the action to restrain the violations, by virtue of the provisions of section 255 of this title). 29 U.S.C. § 217. Section 255, as mentioned above, refers to statutes of limitations under the FLSA. After reviewing the amended pleadings, the Court is of the opinion that the EEOC should not be permitted to pursue monetary relief under Section 216(c) because it has not added any plaintiffs as named parties, as discussed by the Court in its previous Order. See generally Order, Docket No. 33, at 5-6. In that Order, the Court held “that any such plaintiffs must be named in the complaint if monetary relief is sought on their behalf under § 216(c).” Order, Docket No. 33, at 4. The Court further elaborated, In Donovan, [643 F.2d 1201], the Fifth Circuit stated, Section 16(c) authorizes the Secretary to recover back wages as well as liquidated damages on behalf of those employees specifically named in a complaint. The filing of such a suit under this section terminates the rights of any employees to become party plaintiffs pursuant to a § 16(b) action. Section 17, on the other hand, allows the Secretary through the Courts to seek broad injunctive relief as well as back wages for all affected employees ivithout any requirement that they be specifically named in the complaint. Id. [at 1204] (citations omitted) (emphasis added). Under Donovan, it is clear that the EEOC must specifically name parties in the complaint if it wishes to recover monetary relief on their behalf under § 216(c). The EEOC has not done so. Additionally, § 216(c) states, In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations provided in section 255(a) of this title, it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action. 29 U.S.C. § 216(c) (emphasis added). Because a particular plaintiffs action is not considered commenced for statute of limitations purposes until that plaintiff is named in the complaint, it is unlikely that the EEOC may seek monetary relief on individuals’ behalf without actually naming those individuals in its Complaint. Order, Docket No. 33, at 4-5. The Court accordingly concluded, “Based on the plain language of [Section 216] and the Fifth Circuit’s comments in Donovan, the Court finds that the EEOC must name plaintiffs in its complaint if it seeks monetary or make-whole relief on their behalf under § 216(c).” Id. at 6. The Court further provided that “it appears that all individuals for whom the EEOC seeks monetary relief must be named plaintiffs.” Id. at 5 n. 2 (first emphasis in original; second emphasis added). In its Second Amended Complaint (Docket No. 36), the EEOC provided a list of eighteen individuals allegedly discriminated against by Hi-Line’s hiring process. See 2d Am. Compl., Docket No. 36, at 1. However, none of these individuals were listed as party plaintiffs or named plaintiffs to the action, contrary to the requirements laid out by the Court in its Order of December 28, 2010 to seek monetary relief on their behalf. As noted above, Section 216(c) reads, in relevant part, In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations provided in section 255(a) of this title, it shall he considered to he commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action. 29 U.S.C. § 216(c) (emphasis added). Section 216(c) therefore specifically provides that the recovery of monetary relief is conditioned on the individuals’ claims being timely when the suit on their behalf is brought by the EEOC. Because the 18 individuals for whom the EEOC seeks monetary recovery have not been “specifically named as a party plaintiff in the complaint” and have not been “added as ... party plaintiffis]” in this action, the EEOC cannot seek payment of wages and compensation on behalf of these employees at this time under Section 216(c). Section 217, however, does provide the EEOC with the ability to recover back pay without naming these individuals in the Complaint. “Section [217] ... allows the Secretary through the Courts to seek broad injunctive relief as well as back wages for all affected employees without any requirement that they be specifically named in the complaint.” Donovan, 643 F.2d at 1204. Therefore, an attempt to recover back pay under the ADEA’s incorporation of Section 217 is permissible when the action is brought by the EEOC, even if the parties on whose behalf the EEOC seeks to recover are not named in the complaint or as party plaintiffs. Section 217 specifically provides, The district courts ... shall have jurisdiction, for cause shown, to restrain violations of section 215 of this title, including in the case of violations of section 215(a)(2) of this title the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter (except sums which employees are barred from recovering, at the time of commencement of the action to restrain the violations, by virtue of the provisions of section 255 of this title). 29 U.S.C. § 217. Unlike Section 216(c), Section 217 makes reference to allowing claims for monetary relief to be brought “at the time of commencement of the action to restrain the violations.” This indicates that monetary relief under Section 217 can be obtained as long as, on the date of the filing of the suit for injunctive relief, the claims of the employees for whom the EEOC is attempting to obtain relief are not barred by the relevant statute of limitations. The EEOC is not permitted under Section 217 to recover “sums which employees are barred from recovering, at the time of commencement of the action to restrain the violations, by virtue of’ the statute of limitations. The Court does not possess sufficient information in the EEOC’s pleadings to determine if the listed individuals were barred from recovering back pay at the time this lawsuit was filed on September 30, 2009. Therefore, as currently constructed, the Court cannot determine if the EEOC is entitled to seek monetary relief on behalf of these individuals, and shall require further information to make a final determination on this issue. In sum, it is the opinion of the Court that the EEOC cannot pursue relief on behalf of the individuals listed in its plead ings under Section 216(c). The Court will therefore grant Hi-Line’s Motion to Dismiss as to recovery for back wages and liquidated damages as provided under Section 216(c). See Donovan, 643 F.2d at 1204. However, there remains a question at this time as to whether the EEOC can pursue relief for back pay for violations of the ADEA under the incorporated provisions of 29 U.S.C. § 217. The Court shall therefore deny without prejudice Hi-Line’s Motion to Dismiss as to relief sought under Section 217, and shall grant the EEOC the opportunity to amend its pleadings to address this specific deficiency. In an amended pleading, should the EEOC fail to show that the employees on whose behalf it is attempting to recover back pay under Section 217 could not have been brought “at the time of commencement of the action to restrain the violations,” 29 U.S.C. § 217, the Court shall dismiss the EEOC’s claims for backpay under that Section. Finally, the Court takes note of Hi-Line’s request that the EEOC not be granted a third opportunity to amend its complaint on several grounds. This request is denied, Several months remain prior to the close of discovery and trial is not scheduled to take place until February 6, 2012. As the Court previously noted, “dismissal of a claim prior to review of the merits is not taken lightly by the Court.” Order, Docket No. 33, at 7. In this case, despite the lengthy debate over the potential scope of the relief available, the Court is of the opinion that leave to amend is justified at this stage. Leave to amend one’s pleadings should be freely given when justice so requires, Fed. R, Civ. P. 15(a)(2), and, as noted above, a district court is empowered with “virtually unlimited discretion” to allow amendments before the entry of judgment. Vielma, 218 F.3d at 468, Here, justice requires that the Court permit the EEOC to provide sufficient factual details so the Court can determine whether the EEOC can recover back pay on behalf of the eighteen individuals listed in its pleadings, or whether the EEOC cannot obtain monetary relief on their behalf because these individuals were barred from recovering “at the time of the commencement of the action to restrain the violations.” 29 U.S.C. § 217. Conclusion For the reasons stated above, Hi-Line’s Motion to Dismiss is GRANTED IN PART AND DISMISSED WITHOUT PREJUDICE IN PART. As to the EEOC’s claims for monetary relief as provided under Section 626(b)’s incorporation of Section 216(c)’s provision for monetary relief, Hi-Line’s Motion to Dismiss is GRANTED. It is ORDERED that the EEOC’s claims for monetary relief under Section 216(c) are DISMISSED WITH PREJUDICE. As to the EEOC’s claims for recovery of back pay under Section 626(b)’s incorporation of Section 217, Hi-Line’s Motion is DENIED WITHOUT PREJUDICE. It is ORDERED that the EEOC shall have the ability to file amended pleadings that address the deficiencies noted in this Order by May 30, 2011. This Order shall have no impact on the EEOC’s pursuit of injunctive relief as provided under Section 626(b)’s incorporation of Section 217. IT IS SO ORDERED. . This resolves Docket No. 44. . In its Response, the EEOC requested leave to amend if the Court did not deny Hi-Line’s Motion to Dismiss, See EEOC’s Resp., Docket No. 48, at 6.

OPINION & ORDER HERNANDEZ, District Judge. Plaintiffs DG Cogen Partners, LLC (“DG Cogen”) and 1211658 Alberta LTD (“Alberta”) bring this legal malpractice action against defendants Lane Powell PC and Jonathan Norling, one of its former attorneys. Defendants move for partial summary judgment, making seven separate arguments on a variety of issues. I grant the motion in part and deny it as moot in part. After defendants filed the summary judgment motion, plaintiffs moved for leave to amend the First Amended Complaint. I grant the motion to amend. BACKGROUND DG Cogen is in the “cogeneration” energy business. A cogeneration system generates electricity and uses the excess heat from the system’s engine for other purposes such as heating water. In 2000, Hess Microgen LLC (“Hess Mierogen”), sold certain cogeneration systems to Real-Energy. Ex. 8 to Fox Decl. The cogeneration systems included engine heads manufactured by Daewoo Heavy Industries America Corporation, whose successor in interest is Doosan Infracore America Corporation. In 2004, DG Cogen bought the cogeneration systems from RealEnergy. Ex. 9 to Fox Decl. At approximately the same time, DG Cogen and Hess Microgen Services, Inc. (“Hess Services”), entered into a Long Term Services Agreement (LTSA) in which Hess Services agreed to repair and maintain the cogeneration systems. Ex. 11 to Fox Decl. In December 2005, Alberta became a secured creditor of DG Cogen. Details about Alberta’s acquisition of DG Cogen’s interests are discussed below. In March 2006, Hess Services initiated arbitration against DG Cogen to collect money Hess Services alleged DG Cogen owed to it under the LTSA. The LTSA mandated dispute resolution through arbitration. Norling represented DG Cogen in that arbitration. Norling joined Lane Powell on May 1, 2006. In July 2007, shortly before the arbitration proceeding was to commence, lawyers for the parties to the arbitration told the arbitrator that a settlement had been reached. Over the next several months, the precise terms of the written settlement were negotiated. The proposed settlement terms included mutual release language. On July 3, 2008, an attorney for Hess Services sent an email to Norling and Milo Petranovich, another attorney at Lane Powell, stating that if they failed to have a signed settlement agreement in the arbitration by July 10, 2008, Hess Services would apply to the arbitrator to enter an award in its favor. Norling forwarded the email to Bradley Kruper , asking him how he wanted to handle the request from Hess Services and noting that Lane Powell “desires to withdraw as counsel of record.” Ex. 21 to Fox Decl. Bradley Kruper forwarded the email to James Hannah, a lawyer at King & Spalding LLP. Id. Bradley Kruper told Hannah that this “Hess arbitration issue” related to the “current lawsuit.” Id. That same day, July 3, 2008, DG Cogen filed a lawsuit in the United States District Court for the Northern District of California against Hess Microgen, “Hess Corporation,” Daewoo, Doosan, Advanced Power Distributors, Inc., and Does 1-100 (“the King & Spalding Action”). Ex. 22 to Fox Decl. DG Cogen was represented by King & Spalding. Defendants represent that “Hess Corporation” was Hess Microgen’s parent. In that action, DG Cogen brought fourteen claims: unfair competition and false advertising under the Lanham Act, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of express warranty, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, unconscionability, fraud, fraudulent inducement, negligent misrepresentation, tortious interference with contract, negligent interference with contract, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage. Id. Among other things, DG Cogen alleged that the “Hess defendants” fraudulently induced DG Cogen to purchase the cogeneration systems from RealEnergy, and to sign the LTSA with “Hess” by representing and warranting that the cogeneration systems would operate and run at the specifications set forth in “Hess’s” technical and design specification sheets. Id. DG Cogen also alleged that Daewoo fraudulently induced DG Cogen to purchase a series of engine head replacements from defendant Advanced Power Distributors, a Daewoo distributor. Id. On July 9, 2008, Bradley Kruper sent an email to Ellen Smith of Hess stating that DG Cogen would not consent to the arbitration settlement agreement. Ex. 24 to Fox Decl. In the email, Bradley Kruper expressly stated that DG Cogen would not agree to the waiver of claims language. Id. On August 1, 2008, Hess Services applied to the arbitrator for issuance of an award enforcing the settlement. Ex. 25 to Fox Decl. King & Spalding represented DG Cogen in opposing this application. On August 22, 2008, DG Cogen filed an Amended Complaint in the King & Spalding Action. Ex. 7 to Fox Decl. In the Amended Complaint, Alberta was added as a plaintiff, and the Daewoo and Doosan companies were sued in slightly different names. Id. The fourteen claims appear to be the same as those brought in the original King & Spalding Action Complaint. Id. On September 30, 2008, the arbitrator issued an interim award in the LTSA arbitration between Hess Services and DG Cogen, granting Hess Services’s application for enforcement of the settlement agreement. Ex. 17 to Fox Decl. On the advice of King & Spalding that the arbitration settlement agreement prohibited plaintiffs’ pursuit of any claims against Hess Microgen and Hess Corporation in the King & Spalding Action, and that the lawsuit was of limited value without the Hess defendants, plaintiffs voluntarily dismissed the King & Spalding Action, including the claims against Daewoo and Advanced Power, on October 9, 2008. Exs. 28, 29, 30, 31 to Fox Decl. On December 17, 2008, the arbitrator issued a Final Award in the LTSA arbitration which was consistent with the interim award. Ex. 27 to Fox Decl. On May 26, 2011, plaintiffs filed the instant action against defendants. They allege that without express or implied authority to do so, and without informing plaintiffs that they were doing so, defendants caused or allowed plaintiffs to commit themselves to an unreasonably unfavorable release of all potential claims against Hess Microgen, Hess Services, or any other Hess entity, as part of the settlement of claims arising under the LTSA. First Am. Compl. at ¶ 14. They further allege that defendants breached their duties of care in terms of (1) “the legal advice given (or not given) to Plaintiffs in connection with the settlement of the Arbitration,” (2) “the failure to communicate adequately (or sometimes at all) with Plaintiffs in connection with the settlement of the Arbitration,” and (3) “the actions taken (or not taken) in connection with binding Plaintiffs to the settlement of the Arbitration under extremely unfavorable terms.” Id. at ¶ 14a. They also allege that defendants breached their duties of care by failing to provide (in the case of Lane Powell), or request (in the ease of Norling), assistance to Norling in the representation of plaintiffs in light of Nor-ling’s lack of adequate skills and experience to handle the matter essentially on his own. Id. at ¶ 14b. Plaintiffs allege that had defendants not breached these duties, the LTSA settlement would not have occurred as it did, and a settlement or litigated resolution of the arbitration over the LTSA would not have foreclosed plaintiffs’ ability to pursue damage claims against Hess Microgen and other Hess entities. Id. at ¶¶ 14c, 14d. Plaintiffs contend that as a direct result of defendants’ breaches of duty, Hess Services and Hess Microgen were able to obtain an order in the arbitration prohibiting pursuit of the King & Spalding Action against Hess Microgen, rendering plaintiffs unable to pursue those claims. Id. at ¶ 16. If plaintiffs had been able to pursue those claims, plaintiffs would have recovered many millions of dollars of damages, plus pre- and post judgment interest. Id. at ¶ 15. STANDARDS Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir.2009) (internal quotation omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir.2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Long v. City & Cnty. of Honolulu, 511 F.3d 901, 905 (9th Cir.2007). If the factual context makes the non-moving party’s claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). DISCUSSION I. Defendants’ First Summary Judgment Motion: Lack of Standing of DG Co-gen in King & Spalding Action Before the King & Spalding Action was filed in July 2008, Alberta had obtained DG Cogen’s assets through foreclosure. Defendants argue that the King & Spalding Action was one of those assets. As a result, defendants argue that DG Cogen lacked standing to pursue any claims in the King & Spalding Action. Accordingly, the argument continues, as a matter of law, defendants’ alleged negligence relating to the LTSA arbitration settlement did not cause DG Cogen to lose the value of the King & Spalding Action given that DG Cogen should have been dismissed from that action having previously lost through foreclosure any claims against the Hess defendants that DG Cogen once possessed. Therefore, defendants maintain, DG Cogen cannot recover from defendants in this case the sums plaintiffs sought under the various claims asserted in the King & Spalding Action. There is no dispute between the parties that to prevail on a legal malpractice claim plaintiff must establish “(1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a causal link between the breach of the duty and the harm.” Stevens v. Bispham, 316 Or. 221, 227, 851 P.2d 556, 560 (1993). A plaintiff must show “not only that the attorney was negligent, but also that the result would have been different except for the negligence.” Watson v. Meltzer, 247 Or.App. 558, 565, 270 P.3d 289, 293 (2011) (internal quotation marks omitted), rev. denied, 352 Or. 266, 286 P.3d 1231 (2012). A legal malpractice plaintiff must “demonstrate that, but for the malpractice of the defendant, he or she would have obtained a more favorable result[.]” Id. at 566, 270 P.3d at 294. When the outcome of the underlying case depends on factual issues, the malpractice case jury must determine “what the outcome for plaintiff would have been in the earlier case if it had been properly tried.” Id. at 567, 270 P.3d at 294 (internal quotation marks omitted). When the outcome of the underlying case depends on the resolution of a legal issue, “the appropriate focus of the reviewing judge [is] what the outcome should have been if the issue had been properly presented.” Id. (internal quotation marks omitted). On July 23, 2004, DG Cogen became a party to a Security Agreement with First American Bank, SSB, a state savings bank located in Dallas, Texas. Ex. 33 to Fox Deck First American Bank lent DG Cogen $19,550,000 and took a security interest in thirteen types of personal property belonging to DG Cogen, including general intangibles, collectively referred to as “the Collateral.” Id. The Security Agreement provides that it “shall be governed and construed according to and determined under the laws of the State of Texas.” Id. at § 10.9. On July 27, 2004, a UCC Financing Statement was filed with the State of Delaware showing DG Cogen as the debtor and First American Bank as the secured party in regard to all of DG Cogen’s “personal property,” referred to as “the Collateral,” and listing several categories of property, including general intangibles. Ex. 32 to Fox Deck The UCC Financing Statement further defines “general intangibles” to include “all other choses in action and causes of action.” Id. An April 29, 2008 “Intercreditor Agreement” among Bradley Kruper, Daryl Kru per , Alberta, and others shows that Citibank Texas succeeded First American Bank as the secured party and then assigned all of its rights under the loan and related documents, including the Security Agreement, to Alberta in December 2005. Ex. 35 to Fox Decl. Thus, Alberta became the secured party under the Security Agreement at that time. Id. In March 2006, Alberta became DG Cogen’s sole member. Ex. 14 to Fox Decl. On May 8, 2008, Alberta sent a letter/notice of default to DG Cogen and demanded “the Collateral” as that term was defined in the 2004 Security Agreement. Ex. 34 to Fox Decl. Alberta stated that unless all of the collateral was assembled and turned over to Alberta as demanded, Alberta would “have no alternative but to take immediate action to enforce its rights and remedies in and to the Collateral, including without limitation, seeking the immediate appointment of a receiver to take possession, preserve and protect the Collateral pending its foreclosure or other disposition thereof for benefit of Alberta[.]” Id. On May 21, 2008, Alberta issued a “Notice of Public Foreclosure Sale” to occur on Friday, June 6, 2008, at the offices of Alberta’s counsel in Los Angeles. Ex. 37 to Fox Decl. The notice was issued under Texas Business & Commercial Code § 9.610. Id. It indicated that the collateral would be sold by the secured party (meaning Alberta), at public auction to the highest bidder. Id. At the conclusion of that sale, Alberta obtained ownership of DG Cogen’s collateral. See Ex. 38 to Fox Decl. (Dec. 24, 2009 Opinion Letter from Alberta’s counsel to 808 Energy 3, LLC, stating, inter alia, that Alberta “acquiesced title [] in and to the accounts, receivables, chattel paper, deposit accounts, equipment and related parts and inventory, securities, documents, instructions and general intangibles of DG Cogen Partners, LLC, pursuant to a foreclosure proceeding conducted pursuant to applicable law effectuated on June 8, 2008”). Defendants assert that under the express terms of the Security Agreement, Texas law governed the foreclosure sale of DG Cogen’s assets and the validity of the claims assigned via the foreclosure. Generally, “[clauses of action in Texas are freely assignable.” City of Brownsville ex rel. Pub. Utils. Bd. v. AEP Tex. Cent. Co., 348 S.W.3d 348, 358 (Tex.App.2011), reh’g overruled (Aug. 29, 2011), rev. denied (May 11, 2012); see also State Farm, Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 707 (Tex.1996) (“free alienation of choses in action [is] the general rule”). Under Article III of the Constitution, DG Cogen must have suffered an “injury-in-fact,” meaning the “invasion of a legally protected interest[.]” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because, defendants argue, DG Cogen had no legally protected interest in the claims asserted in the King & Spalding Action when it was filed on July 3, 2008, DG Cogen had no Article III standing to pursue those claims and thus, the federal court in the Northern District of California should have dismissed DG Cogen from that action. As a result, defendants did not cause DG Cogen to lose the value of the King & Spalding Action because DG Cogen should have been dismissed from the case regardless of defendants’ alleged negligence. E.g., Sanford Inv. Co. v. Ahlstrom Mach. Holdings, Inc., 198 F.3d 415, 420, 425 (3d Cir.1999) (plaintiff, which had previously assigned its rights under a contract, brought a breach of contract action; court concluded that it was unambiguous that the plaintiff had completely assigned its right to enforce payment and thus, the plaintiff lacked standing to sue the defendant). Plaintiffs do not dispute that Texas law applies and that the assignment of the King & Spalding Action from DG Cogen to Alberta is permissible under Texas law. Plaintiffs appear to take no issue with the argument that if DG Cogen actually assigned its interest in the King & Spalding Action to Alberta, DG Cogen should have been dismissed from the King & Spalding Action because DG Cogen would have lacked standing to pursue the claims brought in that action. Plaintiffs dispute, however, that any assignment of the King & Spalding Action to Alberta actually occurred. In support, plaintiffs rely on the declarations of Simon Aron, Bradley Kruper, and James Hannah. Aron was lead counsel for Alberta in regard to the June 2008 foreclosure of DG Cogen’s assets. He acknowledges that at and before the June 2008 foreclosure, Alberta owned a security interest in all of DG Cogen’s assets, having acquired those interests by assignment from a prior lender to DG Cogen in December 2005. Aron Decl. at ¶ 5. He notes that the interests of Alberta and DG Cogen were “aligned because Alberta was the sole member of DG and ... had become DG’s only secured creditor.” Id. at ¶ 4. He states: Consistent with its interests, Alberta expressly and consciously chose NOT to foreclose on all DG assets in June 2008. More specifically, Alberta expressly and consciously chose to foreclose on what were the tangible, hard assets owned by DG (such as the cogeneration units at specific sites and spare parts) and the related site-specific assets (such as the contracts between DG and the individual site owners). By contrast, Alberta expressly and consciously chose NOT to foreclose on other, intangible DG assets such as the claims that DG might have against one or more Hess entities or others, either within or outside of the then-pending arbitration over the Long Term Service Agreement (or LTSA) and the then-anticipated complaint against Hess and others which was filed by King & Spalding on behalf of DG in early July 2008 (the “King & Spalding Complaint”). Therefore, those claims and issues remained assets owned entirely by DG. Id. at ¶ 6. In support of his statements, Aron cites to portions of three documents for the proposition that a creditor is “not required to take an all-or-nothing approach to foreclosure!,]” but may instead choose to foreclose only on some assets and not others. Id. at ¶ 5 (citing to (1) the portion of the Loan Agreement between DG Cogen and First American Bank providing that in the event of default by DG Cogen, the lender may exercise any of its rights under the any of the loan documents; (Ex. 10 to Fox Decl., § 10 “Remedies”); (2) the portion of the Security Agreement between DG Co-gen and First American Bank which indicates that the secured party may exercise certain rights in the event of a default; (Ex. 33 to Fox Decl., § 5 “Secured Party’s Rights”); and (3) a section of the Notice of Public Foreclosure Sale addressing how the proceeds of the sale were to be applied, including that the “Secured Party does not have or assume any obligation to foreclose upon any or all of the Collateral prior to proceeding against Debtor and/or any of the other Obligors” (Ex. 37 to Fox Decl.)). The problem, however, is that this proposition is undisputed and not determinative of the issue. Simply because Alberta had the right to selectively foreclose does not mean that it did selectively foreclose. Bradley Kruper states that [t]here are no contracts or agreements transferring any or all of the claims included in the King & Spalding Complaint from DG to Alberta, nor, as I understood the matter at the time, would there have been any reason to do so. It was always both Alberta’s and DG’s intention to leave the right to pursue any and all Hess-related claims solely with DG, and that is what we did. B. Kruper Decl. at ¶ 10; see also id. at ¶ 9 (stating that Aron explained the goal was to have Alberta acquire the “hard” or “site-specific” assets). In a footnote, he adds that when King & Spalding added Alberta as a plaintiff in the Amended Complaint in the King & Spalding Action, he understood this to be “part of a precautionary approach rather than something that had to be done.” Id. at ¶ 10 n. 2. Hannah was an associate at King & Spalding at the time the King & Spalding Action was filed. Hannah Decl. at ¶ 1. He states that in July and August 2008, he was “aware that Alberta had the ability to foreclose on some of DG’s assets.” Id. at ¶2. He recalls discussions with Bradley Kruper about whether DG Cogen, Alberta, or both might be proper plaintiffs in the litigation. Id. He further states that “[a]l-though I no longer remember the specifics of this analysis or the discussions, I believe that DG was the proper plaintiff in the litigation and that Alberta had not foreclosed on DG’s interest in the litigation.” Id. at ¶ 3. According to Hannah, the Amended Complaint in the King & Spalding Action added Alberta as a plaintiff not because DG did not own the claims or had assigned them to Alberta, but instead as a “purely protective measure in order to avoid a potential challenge on this ground and because Alberta could theoretically choose in the future to foreclose on some or all of these claims.” Id. at ¶ 4. Based on these declarations, plaintiffs argue that Alberta deliberately chose to foreclose only on DG Cogen’s “hard” assets (meaning site-specific equipment and related parts and the contracts relating to that equipment), but did not foreclose on other assets, including the claims in the then-forthcoming King & Spalding Action. Plaintiffs contend that at a minimum, the three declarations create material issues of fact as to whether DG Cogen assigned, or was foreclosed out of, the claims in the King & Spalding Action. Defendants argue that the declarations fail to create an issue of fact because they are conclusory and unsupported and are contradicted by the relevant contemporaneously-generated records. I agree with defendants. In the Ninth Circuit, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978); see also United States v. Wilson, 881 F.2d 596, 601 (9th Cir.1989) (self-serving and conclusory declarations of fact are insufficient to raise a genuine issue of fact); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (“summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data”); Calif. ex rel. Dep’t of Transp. v. United States, 561 F.2d 731, 733 n. 4 (9th Cir.1977) (stating same rule; concluding that conclusory declaration did not create triable issue of disputed fact). The relevant statement in Aron’s Declaration, that Alberta chose not to foreclose on the intangible assets, is conclusory. It is unsupported by any other evidence and is contradicted by documents Aron generated in 2008 and 2009. Bradley Kruper’s Declaration is similarly eonclusory as it states only what the “goal” was and adds “that was what we did.” These statements are also unsupported by other evidence in the record and are contradicted by the contemporaneously-generated documents. Hannah’s Declaration is also insufficient. His having become “aware,” from unidentified sources in July and August 2008, that Alberta could foreclose on DG Cogen’s assets fails to establish that he had personal knowledge of which entity, either DG Co-gen or Alberta, actually owned the assets Additionally, aside from the fact that Hannah admits he cannot remember the specifics of any analysis or discussion of the issue, he offers only a eonclusory statement that DG Cogen was the proper plaintiff because Alberta had not foreclosed on DG Cogen’s interests. Like the statements by Aron and Bradley Kruper, Hannah’s statement is eonclusory, unsupported by other facts in the record, and is contradicted by the contemporaneously-generated documents. Statements of what Alberta may have subjectively intended do not create an issue of fact regarding what actually occurred. In Klopfenstein v. Pargeter, 597 F.2d 150 (9th Cir.1979), the plaintiff and defendant were parties to an oral agreement to jointly seek a fast food franchise. After meeting with representatives of the franchisor, preparing to incorporate their business, and arranging for a bank loan, the defendant wrote to the plaintiff stating he was severing their joint efforts because of dissatisfaction between them. Id. at 151. The plaintiff never replied to the letter, but he did inform the franchisor and the bank by letter that the joint applications were to be withdrawn and that he would compete with the defendant for the franchise. Id. The plaintiff took no action to protest the defendant’s withdrawal from the joint venture or to reconcile his differences with the defendant. Id. Within six months, the defendant secured the franchise. Id. A couple of years later, the plaintiff filed suit, alleging that the defendant’s letter severing their efforts was a breach of the joint venture agreement and that therefore, the defendant held a half-interest in the franchise as a constructive trust for the plaintiff. Id. The Ninth Circuit affirmed the district court’s grant of summary judgment to the defendant. The court noted that the plaintiffs inaction, along with his letters to the bank and the franchisor, showed that he construed the defendant’s letter as an offer to rescind and accepted it, or, he chose to abandon the joint venture when he realized that the defendant was dissatisfied. Id. The court rejected the plaintiffs argument that the plaintiffs own affidavit raised a material issue of fact. Id. In the affidavit, the plaintiff averred that he did not intend to rescind or abandon the contract. Id. This statement was insufficient to create an issue of fact: “the affidavit does not point to any conduct from which [the defendant] or anyone else could infer that this was [the plaintiffs] intention.” Id. The plaintiffs “conduct unequivocally implied that he no longer intended to follow through with the joint venture, but instead intended to seek the franchise alone or with a new partner.” Id. at 151— 52. According to the court, “[undisclosed, subjective intentions are immaterial in this commercial transaction, especially when contradicted by objective conduct.” Id. at 152. Both Bradley Kruper’s and Aron’s current statements about what Alberta intended in 2008 are, under Klopfenstein, incapable of creating an issue of fact on the asset foreclosure by Alberta, especially when they are contradicted by the documents generated and the statements made in 2008 and 2009. The underlying Security Agreement and UCC Financing Statement include general intangibles as part of the definition of the collateral. The UCC Financing Statement defines general intangibles as including choses in and causes of action. Aron’s May 8, 2008 letter/notice of default includes multiple references to “all of the Collateral.” The May 21, 2008 Notice of Public Foreclosure specifically states that the public auction includes the sale of general intangibles. Aron’s December 2009 Opinion Letter confirms that all of these assets were indeed foreclosed upon by Alberta in June 2008. Finally, Alberta conveyed assets to 808 Energy 3, LLC in an October 2009 Asset Purchase Agreement. Ex. 36 to Fox Decl. Section 3 of that agreement governs the purchase and sale of assets. The particular types of assets are listed by category in Section 3.1(a)-3.1(l). Id. One of those categories is “previously-commenced lawsuits and other proceedings.” Id. at 11 (Section 3.1(f)). There, the agreement states that except for those lawsuits set forth on Schedule 3.1(f), referred to as the “Retained Lawsuits and Other Proceedings,” all rights to any recoveries under any lawsuit commenced by Alberta or a predecessor in interest of Alberta, before the closing date, were conveyed to 808 Energy. Notably, the King & Spalding Action is listed on Schedule 3.1© (listed as “1211658 Alberta Ltd vs Hess Microgen/Amerada Hess Crop/Doosan”), as a retained lawsuit. Id. at 110. I agree with defendants that the exception of the King & Spalding Action from the assets transferred from Alberta to 808 Energy reinforces the only reasonable conclusion derived from the other contemporaneously-generated documents: Alberta owned the King & Spalding Action at that time. If Alberta had not obtained ownership of the action via its June 2008 foreclosure of DG Cogen’s assets, there would have been no need to exempt it from the transfer to 808 Energy in the October 2009 Asset Purchase Agreement. The documents unambiguously demonstrate that Alberta acquired DG Cogen’s general intangibles, including the claims in the King & Spalding Action, as of June 8, 2008. Plaintiffs’ declarations, the only evidence plaintiffs offer in opposition, do not create a genuine issue of material fact. They are conclusory and contradicted by contemporaneously-made documents. While they express what plaintiffs may have intended, under Klopfenstein, such an intent expressed in a declaration filed in later litigation, cannot create an issue of fact, especially when contradicted by the documents. I grant this part of defendants’ summary judgment motion because DG Cogen was not a proper plaintiff in the King & Spalding Action and should have been dismissed from that case for a lack of standing. As a result, DG Cogen cannot prevail in the part of the malpractice claim in which it seeks as damages the sums allegedly recoverable in the King & Spalding Action. II. Defendants’ Second Summary Judgment Motion: Alberta Lacks Standing to Pursue DG Cogen’s Malpractice Claim and Alberta Cannot Establish a Duty Running to It from Defendants This argument has two parts: (1) Alberta cannot bring a malpractice claim as a successor in interest to DG Cogen because although Alberta obtained all of DG Co-gen’s general intangibles in June 2008 via foreclosure, Texas law prohibits assignment or transfer of a legal malpractice claim on public policy grounds, and thus, Alberta did not obtain any rights in this malpractice action by assignment/foreclosure from DG Cogen; and (2) Alberta cannot bring a malpractice claim against defendants independently because Alberta was not defendants’ client and thus, there was no duty running from defendants to Alberta. A. Whether Alberta Received the Malpractice Claim via Assignmenf/Foreclosure As noted above, the original Security Agreement executed by DG Cogen and First American Bank provides that it “shall be governed and construed according to and determined under the laws of the State of Texas.” Ex. 33 to Fox Decl. at § 10.9. In Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex.App.1994), the court held that “assignment of a legal malpractice action arising from litigation is invalid.” Subsequent Texas appellate cases have consistently followed this holding and the Texas Supreme Court has cited Zuniga as well. E.g., Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 665 n. 20 (Tex.2008) (citing Zuniga with the parenthetical “holding that assignment of legal malpractice claims was against public policy”); InLiner Ams., Inc. v. MaComb Funding Group, LLC, 348 S.W.3d 1, 6 (Tex.App.2010) (“In Texas, assignments of legal-malpractice claims arising from litigation generally are invalid.”), rev. denied (June 17, 2011). Defendants argue that while “all collateral” once belonging to DG Cogen and then assigned to/foreclosed by Alberta included all other choses in action and causes of action, given the prohibition on assignment of legal malpractice claims, no assignment of any malpractice claim belonging DG Cogen could have been assigned to Alberta. Thus, defendants contend, Alberta has no standing to sue defendants for malpractice as DG Cogen’s successor in interest. I agree with defendants that Texas law applies to the determination of what assets Alberta acquired through the foreclosure and that under that law, assignments of legal malpractice claims are prohibited. I reject plaintiffs’ suggestion that neither the Security Agreement nor Texas law is relevant because the malpractice claim had not accrued at the time of the foreclosure of DG Cogen’s assets. This argument misses the mark because the issue is whether Alberta had standing as a successor in interest to DG Cogen to bring this malpractice claim against defendants. If the assignable assets under the Security Agreement included future causes of action, then but for the Texas policy prohibiting assignments of legal malpractice actions, the malpractice claim would have been assigned to Alberta along with the other collateral even if the claim had not yet accrued. Alternatively, if the assignable assets did not include future claims, then Alberta could not have obtained the malpractice claim as an asset in the foreclosure. Either way, defendants are correct that Alberta cannot be a plaintiff in the malpractice action as DG Cogen’s successor in interest. Plaintiffs also argue that the Texas cases defendants rely on are factually distinguishable. They contend that because Alberta was and is DG Cogen’s sole member, the interests of the two entities are “completely aligned,” and because the defendants against whom this malpractice claim is brought represented both DG Co-gen and Alberta , there is no legal or policy reason to prohibit an assignment of a malpractice claim from DG Cogen to Alberta. The InLiner court explained that Texas courts have identified many reasons why the harm caused by the assignment of a legal-malpractice claim outweighs its benefits. Among other things, assignment of legal-malpractice claims could lead to commercial marketing of claims, substitution of a malpractice claim for a claim against an insolvent defendant, discouragement of voluntary settlement agreements, compromise of client confidentiality, and weakening of the attorney’s duty of loyalty. 348 S.W.3d at 8 (noting that the assignment of legal malpractice claims would lead to the marketing of such claims and would demean the legal profession) (citations omitted). In that case, the creditor argued that the assignment of a legal malpractice claim should be unenforceable as against public policy only if it “necessitat[es] a duplicitous change in the positions taken by the parties in the underlying litigation.” Id. at 8. The Texas court rejected that argument, noting that the argument would allow the assignment of malpractice claims as part of the collateral the parties had agreed could be sold by the creditor upon the debtor’s default. Id. The court objected to this because “treating the malpractice claims like the debtors’ other assets ... would lay the groundwork for the kind of commercial marketing criticized by the Zuniga court.” Id. The court then acknowledged the creditor’s additional argument that it was not a stranger to the legal malpractice claims at issue, but it rejected that fact as material because “the result would be no less demeaning to the legal profession.” Id. Here, the fact that DG Cogen and Alberta have interests which are “aligned” does not distinguish this case from InLiner in any meaningful way. As the InLiner court explained, even when the creditor is not a “stranger,” the fact that a malpractice claim is a “collateral” asset capable of being sold at a public foreclosure auction along with other assets, still raises public policy concerns. Alberta, even with its interests “aligned” with DG Cogen’s, filed the appropriate notice stating that all of DG Cogen’s assets were going up for public sale as a result of DG Cogen’s default and that Alberta was exercising its rights under the Security Agreement. But for the public policy prohibition, Alberta would have acquired a right to the malpractice action, not as a result of having purchased DG Cogen’s equity and becoming its sole member, but as a result of the foreclosure. This implicates the public policy concerns as expressed by the InLiner court. I grant this part of defendants’ motion. Texas law applies and assignment of the malpractice claim is prohibited by Texas law. Alberta cannot be a plaintiff in this malpractice action as a successor in interest to DG Cogen. B. Whether Alberta Can Maintain the Malpractice Claim Independently Defendants argue that Alberta cannot maintain an independent malpractice claim against them because there was no attorney-client relationship between Alberta and defendants and therefore, defendants owed Alberta no duty with regard to the allegations in plaintiffs’ malpractice claim. As noted above, to succeed in their malpractice claim, plaintiffs must allege and prove that a duty ran from defendants to plaintiffs. Stevens, 316 Or. at 227, 851 P.2d at 560. There is generally no duty owed to non-clients. See Lord v. Parisi, 172 Or.App. 271, 275, 19 P.3d 358, 360 (2001) (Oregon “adhere[s] to the general rule that only a client may sue his or her attorney for malpractice”); Roberts v. Fearey, 162 Or.App. 546, 550, 986 P.2d 690, 693 (1999) (lawyer owes no duty to protect economic interests of a non-client). The court in Lord noted that the Oregon Supreme Court had previously held that “a nonclient may not bring a malpractice action against an attorney unless the attorney owes that person a duty that arises apart from the foreseeability of the harm.” Id. at 279, 19 P.3d at 363 (citing Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (1987)). Additionally,, non-clients who suffer “derivative” damages fail to establish a duty sufficient to support a malpractice action. See Or. Shiitake Tech., Inc. v. Kennedy, 118 Or.App. 575, 579, 848 P.2d 635, 637 (1993) (sole shareholder and director of two corporations could not pursue malpractice claim where damages, as director, “would be derivative of damage sustained by the corporations”); see also Proskauer Rose, LLP v. Blix St. Records, Inc., 384 Fed.Appx. 622, 624 (9th Cir.2010) (sole shareholder lacked standing to complain of injury to corporation; diminished value of shareholder’s shares insufficient to confer standing); Huang v. Claussen, 147 Or.App. 330, 334-35, 936 P.2d 394, 396 (1997) (“duties inherent in attorney-client relationship will not be presumed to flow to third parties and will not be presumed to arise by implication”) (citing Clagett v. Dacy, 47 Md.App. 23, 420 A.2d 1285 (1980)). Under Oregon law, an attorney-client relationship may be formed absent an express written or oral contract. Kidney Ass’n of Or. v. Ferguson, 315 Or. 135, 146, 843 P.2d 442, 448 (1992). Payment of fees is not required. Id. Rather, the attorney-client relationship may be inferred by the conduct of the parties. Id. To establish that Alberta had an attorney-client relationship with defendants by implication, Alberta must show that its subjective, uncommunicated intention or expectation [was] accompanied by evidence of objective facts on which a reasonable person would rely as supporting existence of that intent; by evidence placing the lawyer on notice that the putative client had that intent; by evidence that the lawyer shared the client’s subjective intention to form the relationship; or by evidence that the lawyer acted in a way that would induce a reasonable person in the client’s position to rely on the lawyer’s professional advice. The evidence must show that the lawyer understood or should have understood that the relationship existed, or acted as though the lawyer was providing professional assistance or advice on behalf of the putative client[.] In re Conduct of Weidner, 310 Or. 757, 770, 801 P.2d 828, 837 (1990) (footnote omitted); see also Currey v. Butcher, 37 Or. 380, 390, 61 P. 631, 635 (1900) (“The relation of attorney and client is a personal relation, and can only be entered into by the consent of both parties”). The evidence in the record supports defendants’ argument. Alberta was not a party to the LTSA, the arbitration, or the settlement agreement. The LTSA was an agreement between Hess Services and DG Cogen, executed in July 2004. Ex. 11 to Fox Decl. The demand for arbitration was initiated by Hess Services on March 3, 2006 against DG Cogen. Ex. 12 to Fox Decl. Norling is listed as DG Co-gen’s representative on the arbitration demand. Id. The arbitrator’s October 1, 2008 interim award and December 17, 2008 final award listed Hess Services and DG Cogen as the parties. Exs. 17, 27 to Fox Decl. In his declaration, Norling states that he represented DG Cogen in the arbitration and that Alberta was not a party to the arbitration. Norling Decl. at ¶¶ 3, 4. He also states that Alberta was not his client with regard to the arbitration or any other matters at issue in the instant lawsuit. Id. Defendants sent invoices for the work on the arbitration to “Simmax Energy (CA) LLC,” an entity described as DG Cogen’s “manager.” Ex. 39 to Fox Decl. (July 20, 2007 account statement sent by Lane Powell to Simmax Energy, attention Eric Baty , for work on the “Hess Arbitration”); Ex. 45 to Fox Decl. (May 2008 briefing submitted by Simmax in unrelated litigation in California referring to itself as DG Cogen’s manager and as an operator of property). After leaving Lane Powell, Norling sent Simmax bills for legal services rendered to DG Cogen. Ex. 40 to Fox Decl. (March 2008 Invoice from “Renewable Counsel” to Simmax re: “Legal matters pertaining to DG Cogen Partners, LLC” showing work performed in January and February 2008 for DG Cogen, including review of the Hess settlement documents). Lane Powell withdrew from representing DG Cogen, not Alberta, in the arbitration. Ex. 41 to Fox Decl. (Aug. 6, 2008 Letter from Lane Powell attorney Milo Petranovich to Brad Kruper of Simmax Energy informing him that defendants would advise the American Arbitration Association (AAA) that they were withdrawing from “the representation of DG Cogen in the pending matter,” previously identified as the “Hess Micro-gen Services and DG Cogen Partners Arbitration”); Ex. 42 to Fox Decl. (Aug. 11, 2008 letter from Petranovich to AAA Case Manager enclosing notice of withdrawal of defendants as “counsel for DG Cogen Partners, LLC” in the arbitration). In a May 2008 pleading filed by Simmax in unrelated litigation against DG Cogen and Simmax, Norling is referred to as having been “DG Cogen’s counsel,” not Alberta’s counsel. Ex. 45 to Fox Decl. As should be clear, all of the contemporaneously-generated documents indicate that only DG Cogen was defendants’ client in regard to issues surrounding the LTSA and the arbitration. Additionally, defendants note that in May 2008, Lane Powell emailed Daryl Kruper regarding an unfulfilled promise by Daryl Kruper that Lane Powell would be paid in full by the end of April 2008. Ex. 44 to Fox Decl. In response, Daryl Kruper stated that “[t]he secured creditor has taken control of the assets and is now putting together a plan for the future of the assets. We understand you received a copy of the Notice of Foreclosure Sale. DG Cogen bank accounts were seized and are now in the hands of the secured creditors.” Ex. 43 to Fox Decl. As indicated above, Alberta was DG Co-gen’s secured creditor and obtained its assets through foreclosure in early June 2008. I agree with defendants that Daryl Kruper’s response to Lane Powell’s demand for payment is contrary to the existence of an attorney-client relationship between defendants and Alberta because there is no statement or suggestion that Alberta should or would pay or was responsible in any way for the outstanding fees. If Alberta had also been a client, some mention of Alberta paying the fees would have been made. In response, plaintiffs point to the LTSA settlement agreement which they contend included broad releases not only by DG Cogen, but also by Alberta, against Hess entities. Ex. 17 to Fox Decl. at ¶ 3(b) (releasing claims “for itself and for its past and present affiliates, subsidiaries, parent companies, divisions, predecessors, successors, assigns, officers, shareholders, directors, agents, representatives, administrators, trustees, receivers, employees and attorneys, and each of them, and any other persons or entities who may claim through them”); see also id. at ¶ 3(a) (nearly identical provision for Hess). Because, plaintiffs argue, the release included Alberta, Alberta must have been a client of defendants. Plaintiffs’ argument is unconvincing. The release does not expressly name Alberta but instead is broad, boilerplate language meant to include any entity or person connected to DG Cogen. Under plaintiffs reasoning, all of the categories of persons and entities listed in the release were defendants’ clients. But, that is an absurd interpretation of the language and is unsupported by the other documentary evidence discussed above. Plaintiffs also rely on Bradley Kruper’s Declaration where he states that based on the relationship between DG Cogen and Alberta and the fact that their interests were aligned, and based on his communications with Norling, he believed that defendants represented the interests of both Alberta and DG Cogen. B. Kruper Decl. at ¶ 6. He explains that he believed defendants represented both entities because (1) he had explained to Norling the relationship between DG Cogen and Alberta; (2) neither Norling nor Lane Powell told him that they did not represent both DG Co-gen and Alberta or that the scope of their representation of DG Cogen or Alberta did not include a full assessment of all claims against Hess, Daewoo, or others; (3) neither Norling nor Lane Powell told him that Alberta should look elsewhere for counsel for these matters; (4) when defendants filed a counterclaim against Hess Services in the arbitration, Norling told Bradley Kruper that the counterclaim was the best means available to Alberta or DG Cogen to assert any claims or defenses as to any Hess entity and also that the best way for Alberta or DG Cogen to recoup any losses would be to sue Daweoo or other non-Hess parties and that the filing of the counterclaim in the arbitration would not impair any such rights; and (5) the settlement agreement to which defendants committed DG Cogen included broad releases not only by DG Cogen, but also by Alberta , against Hess entities. Id. at ¶ 7. Bradley Kruper’s subjective belief does not establish an attorney-client relationship between defendants and Alberta. There are no facts supporting the requirement of an objectively reasonable basis for his subjective belief that defendants represented Alberta. While defendants certainly should have understood that Alberta was an owner of DG Cogen, that status does not make Alberta defendants’ client. See Or. Formal Ethics Op. No.2005-85, 2005 WL 5679675 (stating that “[a] lawyer who represents an entity, such as a corporation or partnership, generally represents that entity only and not its employees, shareholders, or owners”). Finally, plaintiffs argue that there is a “special rule” for determining whether an attorney-client relationship exists when one individual or entity owns another. In support, plaintiffs rely on In re Banks, 283 Or. 459, 584 P.2d 284 (1978), an attorney discipline case involving the conflict of in terest of a lawyer who represented a closely held family corporation but who also drafted the employment contract of one of its shareholders. Banks does not help plaintiffs because it addressed a different situation than is present here. While- Alberta may have owned DG Cogen’s assets and been its sole member, and the interests of the two companies may have' been aligned, there is no evidence in this record that DG Cogen is a “closely held family corporation” or that anyone treated Alberta and DG Cogen as one and the same entity. As a result, there is no reason to deviate from the usual rule that a lawyer who represents a corporation does not have an attorney-client relationship with that corporation’s employees, shareholder, or owners. In summary, it is not enough for plaintiffs to articulate a subjective belief that defendants represented Alberta. Even construing the evidence in a light most favorable to plaintiffs, there is no objective manifestation of an attorney-client relationship between defendants and Alberta. The law makes clear that being DG Co-gen’s owner is not enough and Banks is distinguishable because the facts here do not show that DG Cogen was a closely held family corporation. I grant summary judgment to defendants on this part of the motion. Alberta is not a proper plaintiff in the malpractice action because it did not acquire a right to bring the malpractice claim as a successor in interest to DG Cogen and it cannot bring the claim independently because it was not defendants’ client. Given my determination that Alberta cannot be a plaintiff in the malpractice case, and given my determination that DG Cogen cannot obtain damages for the sums it contends it would have received in the King & Spalding Action, I deny as moot defendants’ third, fourth, and fifth motions which address whether the warranty and fraud-based claims asserted in the King & Spalding Action were viable when that Action was filed, and whether the loss of the claims against Daewoo and Advanced Power in the King & Spalding Action was caused by defendants’ alleged negligence. However, because defendants’ sixth and seventh motions raise issues regarding DG Cogen’s claim for damages other than the sums potentially recoverable in the King & Spalding Action, I address those motions. III. Defendants’ Sixth Motion: Damages for Time Spent Working with Hess Entities re: Making the Cogeneration Systems Operational Plaintiffs allege that as a result of defendants’ malpractice, they suffered “many millions of dollars in damages that they would otherwise have been able to recover under or in consequence of the King & Spalding complaint, plus prejudgment and post judgment interest.” First Am. Compl. at ¶ 17. In addition to the sums they contend they would have recovered under the claims in the King & Spalding Action, they also allege as damages funds spent working with Hess Services and Hess Microgen in what turned out to be failed attempts to make the equipment operate as represented and warranted and funds spent hiring King & Spalding to defeat the motion by Hess Services to impose the arbitration settlement. Id. at ¶ 17b. Defendants move against any attempt by plaintiffs to recover for funds they spent working with Hess Microgen and Hess Services to make the cogeneration systems operational. Defendants argue that any alleged negligence by defendants did not cause those alleged losses because defendants’ alleged acts and omissions in 2006 came after Hess Services terminated all work on the cogeneration units in July 2005. In response, plaintiffs clarify that they are seeking these funds as part of what they would have recovered under the specific claims in the King & Spalding Action. They state: “Plaintiffs do not allege that Defendants’ malpractice caused them to work, with or without Hess, in failed attempts to make the equipment work successfully. Plaintiffs allege only (and correctly) that the cost of their attempts to do so constitute consequential damages that could and would have been recovered in the King & Spalding Action.” Pls.’ Resp. Mem. at 28. Plaintiffs argue that these damages are recoverable against defendants here in the malpractice case because they were recoverable in the King & Spalding Action. Plaintiffs’ response to the motion clarifies that paragraph 17b of their First Amended Complaint does not seek any damages beyond what plaintiffs contend they could have obtained in the King & Spalding Action. Because defendants’ motion attacks claims to damages beyond what plaintiffs were seeking in the King & Spalding Action, the motion is moot in light of plaintiffs’ clarification. IV. Defendants’ Seventh Motion: Damages for Funds Spent to Hire King & Spalding to Represent DG Cogen in the Arbitration As noted in the previous section, in paragraph 17b of the First Amended Complaint, plaintiffs seek damages for money spent to hire King & Spalding to fight against Hess’s motion in the arbitration to enforce the settlement agreement. Defendants cite to deposition testimony from Paul Andre, the King & Spalding partner who approved of the fee arrangement between plaintiffs and King & Spalding, that plaintiffs agreed to pay King & Spalding $10,000 for time spent opposing the enforcement motion in the arbitration. Ex. 2 to Fox Decl. at 142, 182-83, 186. As a result, defendants move for summary judgment on any damages claim of more than $10,000 for time spent by King & Spalding representing DG Cogen in the arbitration. Plaintiffs concede this motion and I grant it. V. Motion to Amend the Complaint Plaintiffs move to amend the First Amended Complaint in two ways, one of which defendants oppose. First, plaintiffs move to amend paragraph 17a to add a reference to the sixth claim of relief in the King & Spalding Action, meaning the express warranty claim. Defendants do not oppose the motion, which I grant. Second, plaintiffs move to amend paragraph 14 of the First Amended Complaint to add specifications of negligence regarding defendants’ failure to advise plaintiffs about the “desireability and/or legal effect” of the LTSA settlement and “the reasonable alternatives to settlement including the applicable statutes of limitation that might apply to those alternatives” and to add allegations that if defendants had not breached their duties to plaintiff, plaintiffs would have “timely filed and prevailed upon the claims about which they should have been advised.” Ex. 1 to Pls.’ Mot. to Amend, at ¶ 14. Defendants oppose this part of the motion. Federal Rule of Civil Procedure 15(a) provides that the court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The court should apply the rule’s “policy of favoring amendments ... with extreme liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987) (internal quotation marks omitted). In determining whether to grant a motion to amend, the court should consider bad faith, undue delay, prejudice to the opposing party, futility of amendment, and prior amendments to the complaint. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004). However, the timing of the motion to amend following discovery and with a pending summary judgment motion, weighs heavily against allowing leave. Schlacter-Jones v. Gen. Tel., 936 F.2d 435, 443 (9th Cir.1991). Defendants argue that plaintiffs have unduly delayed in seeking the amendment; that the amendment will cause substantial prejudice to defendants; that the amendment is futile; and that plaintiffs have acted in bad faith. They also note that plaintiffs have previously amended the Complaint. I agree with defendants that plaintiffs could have sought to include these allegations sooner. However, delay, by itself, does not justify denying leave to amend. DCD Programs, 833 F.2d at 186. And, while the motion to amend was made while defendants’ summary judgment motion was pending, defendants filed the summary judgment motion about five months before the dispositive motion deadline, while discovery was ongoing. Fact discovery does not close until January 22, 2013, and the court retains discretion to extend the case schedule as necessary. Additionally, while plaintiffs have previously amended the Complaint, that amendment was the result of a stipulation with defendants in which plaintiffs agreed to limit certain claims and allegations by withdrawing them. Stip. to Limit Discovery, Claims, and Evidence at Trial (Dkt. # 29). Under such circumstances, the fact of a previous amendment does not weigh against further amendments. Defendants argue that they will be substantially prejudiced by the amendment. They contend that they relied on the current allegations in forming their discovery efforts, that they will be required to engage in additional discovery, including subpoenaing individual Canadian nonparties in conformance with international law, and that the new allegations greatly expand the nature of the malpractice claim to include a “never-filed phantom case.” Defs.’ Opp’n to Mot. to Amend at 7. Defendants are correct that allowing the amendment keeps this case alive beyond the $10,000 in damages attributable to what plaintiffs spent to oppose the enforcement of the settlement agreement. But, allowing the amendment does not change or alter the summary judgment rulings contained in this Opinion. Thus, Alberta is not a plaintiff in this action and nothing in the newly asserted allegations of negligence changes that holding. DG Cogen may not prevail in this malpractice action on any claim brought in the King & Spalding Action because it did not own those claims at the time the King & Spalding Action was filed. Thus, any allegations of damages based on the claims brought in the King & Spalding Action are dismissed from the case and nothing in the newly asserted allegations of negligence changes that holding. Defendants need no longer concern themselves with the King & Spalding Action. Plaintiffs’ new allegations of negligence are not an alternative theory to obtain damages caused by the loss of the King & Spalding Action claims. Instead, in addition to the $10,000 damages claim, what remains is a claim for malpractice based on allegations that defendants were negligent in their representation of DG Cogen in the LTSA arbitration by failing to advise plaintiffs of alternatives to settling the arbitration and the statutes of limitations applicable to those alternatives. Plaintiffs will have to establish that but for defendants’ negligence, they would have pursued those “alternatives” when they were still timely and would have prevailed in any action bringing those alternative claims. With this understanding of the new allegations, and the ability to alter the current case schedule, defendants are not substantially prejudiced. Contrary to defendants’ argument, the new allegations do not raise a futile claim. I have considered defendants’ bad faith argument and reject the assertion that the timing of the motion to amend evidences a wrongful motive. I grant the motion to amend. VI. Summary Alberta is dismissed from the case with prejudice because it is not a proper plaintiff. DG Cogen may not recover damages in this malpractice action for the loss of the claims in the King & Spalding Action. Damages attributable to funds spent by DG Cogen to hire King & Spalding to oppose the motion to enforce the settlement are limited to $10,000. As a result of the motion to amend, DG Cogen may pursue the malpractice claim to the extent it is premised on a theory that defendants were negligent for failing to advise DG Cogen of the existence of viable fraud or other claims while representing DG Cogen in the LTSA arbitration, and for failing to advise DG Cogen as to the statutes of limitations for those alternative claims, and that but for this negligence, plaintiffs would have filed timely fraud or other claims and would have prevailed in an action asserting those claims. CONCLUSION Defendants’ motion for partial summary judgment [37] is granted in part and denied as moot in part. Plaintiffs’ motion to amend [55] is granted. IT IS SO ORDERED. . As I understand the motion, defendants seek partial summary judgment because even if all seven motions are granted, DG Cogen will still have a claim for $10,000 in damages for funds it spent on other counsel in an attempt to defeat a motion made in a separate proceeding described more fully herein. . In an October 11, 2012 Declaration submitted in opposition to defendants’ summary judgment motion, Bradley Kruper identifies himself as the current president of Alberta. B. Kruper Decl. at ¶ 2. He also states that at all material times, he has been, and presently is, authorized to speak and act on behalf of DG Cogen with respect to all matters that have been or are at issue in this litigation. Id. Other documents in the record have identified him as (1) president of DG Cogen; Ex 54 to Fox Sec. Decl. (July 6, 2006 letter from B. Kruper); (2) the chief financial officer of an entity called '‘Simmax’’; Ex. 45 to Fox Decl. (May 2008 Decl. of B. Kruper submitted in separate litigation); (3) the president of Alberta; Id.; and (4) being affiliated with "Simmax Energy”; Ex. 41 to Fox Decl. (Aug. 6, 2008 letter to B. Kruper from Lane Powell). Simmax was a company which operated property on behalf of DG Cogen. Ex. 45 to Fox Decl. (May 2008 B. Kruper Decl. submitted in separate litigation). It appears that Simmax and DG Cogen shared a mailing address. Ex. 41 to Fox Decl. (Aug. 6, 2008 letter from Lane Powell to B. Kruper of "Simmax Energy” addressed to 3202 W Warner Avenue in Santa Ana, California); Ex. 54 to Fox Sec. Decl. (July 6, 2006 letter from B. Kruper on DG Cogen letterhead with same address and listing an email address as “www.simmax.com”). . The references to the various Hess entities are confusing. I refer to Hess Microgen or Hess Services when the particular entity’s identity is clear. In the July 9, 2008 email to Smith, it is unclear which Hess entity Smith worked for. She is identified in a July 14, 2006 letter as "President” on letterhead that refers to "Hess” and "Hess Microgen LLC,” but she signed her name under a reference to "Hess Microgen Services, Inc.” Ex. 55 to Fox Sec. Decl. . The First Amended Complaint in the King & Spalding Action named the following defendants, in addition to Hess Microgen and Hess Corporation: (1) Doosan Infracore Co. Ltd., formerly known as Daewoo Heavy Industries & Machinery Ltd.; (2) Doosan Infracore America Corporation, formerly known as Daewoo Heavy Industries America Corporation; and (3) Advanced Power Distributors, Inc. Ex. 7 to Fox Decl. Plaintiffs in the King & Spalding Action alleged that Daewoo Heavy Industries & Machinery changed its name to Doosan Infracore Co Ltd. in 2005, and that Doosan America was formerly known as Daewoo Heavy Industries Corporation. Id. at ¶¶ 5, 6. In this Opinion, I refer to the Daewoo and Doosan entities as “Daewoo.” . In Paragraph I7a of the First Amended Complaint in this malpractice action, plaintiffs seek as damages the sums plaintiffs would have recovered under the following claims brought in the King & Spalding Action: breach of contract against Daewoo and Advanced Power Distributors, breach of express warranty, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, fraud, fraudulent inducement, and negligent misrepresentation, all brought against all of the defendants. First Am. Compl. at ¶ 17a (including the express warranty claim which the parties agree was mistakenly omitted from the First Amended Complaint due to a scrivener’s error). Plaintiffs do not seek to recover damages for any other claims brought in the King & Spalding Action. . Daryl Kruper was identified in a May 2008 memorandum submitted by Simmax in unrelated litigation against Simmax and DG Co-gen as the president of DG Cogen. Ex. 45 to Fox Decl. At about that same time, an email sent by Daryl Kruper carried a "simmax” email address as well as a signature block with Alberta’s name. Ex. 43 to Fox Decl. Defendants identify Daryl Kruper as "Alberta's agent responsible for the DG Cogen assets[J” Defs.’ Reply Mem. at 12. . As explained below, plaintiffs fail to create an issue of fact as to whether Alberta was defendants' client. . In his Declaration submitted in opposition to the summary judgment motion, Baty states that he was a consultant to DG Cogen, its asset manager, vice president, and then president from on or about mid-2004 until August 10, 2007. Baty Decl. at ¶ 2. A July 20, 2007 invoice from Lane Powell for services connected to the “Hess Arbitration” was sent to Baty who was addressed as the Executive Vice President of Simmax. Ex. 39 to Fox Decl. . As explained above, the release language does not name Alberta. . As defendants note, plaintiffs’ proposed amendments fail to amend allegations in paragraph 17 of the First Amended Complaint regarding damages. The proposed second amended complaint adds a new theory of negligence but still seeks as damages the "many millions of dollars” plaintiffs would have been able to recover under the King & Spalding Action. First Am. Compl. at ¶ 17. As should be clear from the discussion above, no damages are available to either plaintiff based on the claims brought in the King & Spalding Action. In allowing the motion to amend, I order plaintiffs to also amend paragraph 17 to make the damages sought consistent with the new theory of negligence asserted in paragraph 14.

MEMORANDUM OPINION DONALD C. NUGENT, District Judge. This case is before the Court on remand from the Sixth Circuit Court of Appeals. The Sixth Circuit reviewed the Court’s denial of an extension of an amended consent decree that included race-based hiring quotas as a remedy for past discrimination by the City of Cleveland in the hiring of firefighters. While not expressing disagreement with the Court’s conclusion, the Sixth Circuit vacated the decision and remanded the case for further specific findings addressing the question of “whether 31 years out, the consent decree’s racial classifications continue to remedy past discrimination by the City’s Fire Department.” Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 738-39 (6th Cir.2012). Procedural Background This case has an incredibly long history and the underlying facts and procedural history have been stated and re-stated in a myriad of opinions over the course of the last thirty-nine years. This case was originally filed in 1973 as a class action discrimination suit brought by Lamont Headen and other minority residents of the City of Cleveland who applied for, but were not offered employment as firefighters in the Cleveland Fire Department. The suit was brought against the City of Cleveland and other named defendants. Discrimination was alleged to have been perpetuated by: (a) Written tests used as a prerequisite for employment exclude a disproportionately high number of minority applicants for employment as compared to the [wjhite applicants and have not been professionally developed nor validated to establish any predictive validity evidence that the tests measure job performance; (b) The background investigation and oral interviews exclude a disproportionately high number of minority applicants for employment as compared to [wjhite applicants because: (i) factors are used to deny employment to minority persons which are not related to job performance; (ii) arbitrary discretion is vested in the Defendants to decide whether or not to employ an applicant; this arbitrary discretion has been used by the Defendants to deny employment to a high proportion of minority applicants as compared with [wjhite applicants. (c) The psychological examinations are conducted by means of a written examination which discriminates against minority applicants and which fails to take into account the differing cultural experiences of minority applicants as compared to [wjhite, largely middle-class applicants. Individuals are eliminated for “psychological” reasons which are not job related. (d) The medical examination excludes a disproportionately high number of minority applicants for reasons not related to the medical and physical requirements of the job of fireman. Plaintiffs in the original action later filed an Amended Complaint, and a Second Amended Complaint, adding allegations that the Safety Director improperly implemented a “one in three” rule to refuse employment to minorities in violation of 42 U.S.C. §§ 1981, 1983 and O.R.C. § 4112.02. In 1975, the Honorable Robert B. Krupansky conducted an evidentiary hearing in the case. He found that the entrance exam administered until that time was identical to an entrance exam for patrolman/patrolwoman that had already been held to be unconstitutional in the case of Shield Club v. City of Cleveland, Civil Action No. C7201088. He also found that the other allegations were “intimately interwoven as a practical matter with the administration of the entrance examination” and bore a “similar likeness to the issues fully litigated and determined” in the Shield Club case. Judge Krupansky then ordered that there be developed an entrance exam which is demonstrably job-related and consistent with EEOC Guidelines; a plan for recruitment of minorities to take all subsequent examinations; a method of awarding City of Cleveland residents bonus points for their residency on future examinations; and revised screening procedures that are job-related, objective, and non-discriminatory. Headen v. City of Cleveland, No. C73-330 (N.D.Ohio Apr. 25, 1975). In 1976, the case was transferred to the Honorable Judge John M. Manos. In 1977 Judge Manos approved and adopted a consent order developed by the parties to address the discrimination found by Judge Krupansky in his April, 1975 Order. Part of the original consent decree provided that the City of Cleveland would implement a hiring ratio wherein the ratio of minorities to non-minorities who were hired could not be less than the ratio of minorities to non-minorities who passed the entrance exam during any given testing period. Following the adoption of this decree, the Vanguards of Cleveland, an organization of minority firefighters, intervened as Plaintiffs. In 1984 the consent decree was amended, although the remedial provisions remained essentially the same. In 2000, the City of Cleveland moved to stay further execution of the consent decree. Also in 2000 an organization calling itself Cleveland Firefighters for Fair Hiring Practices (“CFFHP”) brought a lawsuit challenging the constitutionality of the consent decree, and in particular, the race-based hiring ratios called for in the decree. Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 1:00 CV 301 (consolidated with Headen v. City of Cleveland, No. C73-330). In response, the Vanguards alleged that the City had continued to discriminate against minorities. The City denied these allegations. Following these developments, Judge Manos approved an additional amendment to the consent decree. This second amendment recognized that the percentage of minority firefighters in the City’s fire department had increased from 4% at the inception of the original lawsuit, to 26% in the year 2000. Judge Manos then ordered that the hiring ratios set forth in the 1977 consent decree be increased to require that one out of every three new hires into the department be a minority applicant. This new ratio was to be implemented either until 33 and a third percent of firefighters were minorities, or for three hiring cycles. The three hiring cycles were to be completed by September 29, 2008. The Order setting forth this requirement also recognized, however, that “there may be legitimate circumstances which may prevent” the City from reaching this hiring goal. In that event, the second amended consent decree contemplated that the City could petition for a “reasonable extension of time” and that such an extension would be approved if “the City has made a good faith effort” to meet the deadline. (ECF #22). The 2000 amended consent decree also recognized that the parties agreed to negotiate and implement a plan for “reinvigoration of the prior recruitment and training records” for the entry level position of firefighter, “in a manner that will be focused upon by City residents,” and to institute a new program, funded by the City of Cleveland, which will focus on teaching high school students to become skilled in abilities required to perform well on the fire entrance exams. (ECF # 22). These programs were to be made available to persons of all races. (Ex. 13; ECF # 33-1). The decree outlined some guidelines as to how the entrance exams should be scored and weighted, with equal weight being given to the written exam and the physical agility test so long as the Headen decree was in place. (ECF #22 at 4-9). The entrance examination process was also to be reevaluated no later than January 1, 2008 with special attention being given to the validity of the written and physical exams, their relative weights, and possible alternative methods of selection to insure merit-based hiring and to avoid discrimination on the basis of race or gender. Id. Any changes that were warranted were not to be implemented until after the expiration of the Headen decree. Id. In September of 2008, this case was reassigned once more to the currently presiding Judge. On September 26, 2008, only three days before the expiration of the 2000 amended consent decree, the City sought an extension of time in which to reach the 33 and a third percent minority hiring goal and/or to complete the three hiring cycles contemplated by the 2000 amended consent decree. (ECF #44). The City had been unable to reach the hiring goals of the 2000 amended consent decree due to budget issues and a reduction in the number of firefighters who voluntarily retired from the Department. The Vanguards also petitioned for an extension of the 2000 amended consent decree citing the City’s inability to hire as previously contemplated, and alleging that the City had failed to reevaluate the examination process. (ECF # 45). Although the Court allowed the parties additional time to brief all of the issues raised by the requests for extension, in the end the Court did not extend the 2000 amended consent decree. Therefore, the 2000 amended consent decree expired by its own terms own terms on September 29, 2008. (ECF #22). During the briefing period, the CFFHP opposed the requested extension, alleging that extensive changes to the testing procedures, as well as the duration of the consent decree, had eliminated any need for further adherence to the race-based ratios contained in the 2000 amended consent decree. (ECF # 50). The CFFHP did not oppose a continuation of the terms relating to future test advertising and recruitment, or requiring consultation efforts relating to the composition of future tests and test scoring procedures. The CFFHP also alleged that the minority make-up of the Cleveland Fire Department had come in line with the racial make-up of the City’s general work pool and regulations for minority hiring in other professions. (ECF # 53). In May of 2009, this Court held a hearing wherein the parties submitted evidence in the form of witnesses and exhibits. (ECF # 62). Following the hearing all parties were to submit additional briefing at the request of the Court addressing the issue of whether an extension of the 2000 amended consent decree was necessary to advance its purpose. The parties did not address this question either at the evidentiary hearing or through any subsequent briefs. Instead, they submitted a proposed agreement that would extend the 2000 amended consent decree until the end of 2014. The Court called a status conference and informed the parties that the proposed stipulation was unacceptable and granted them leave to file a new proposal. If the parties did not submit a new proposed stipulation, the Court indicated that it would rule on the pending motions. (ECF # 68). The Vanguards filed a status report indicating that they would not change their position on the proposed stipulation. (ECF # 70). No other parties filed any additional documents. The Court, after considering all of the arguments, briefing, evidence, and relevant law, concluded that the consent decree was meant to be a temporary solution to increasing minority access to and involvement in the hiring opportunities with the Cleveland Fire Department. It also found that the 2000 amended consent decree had outlasted its usefulness, and that no further judicial supervision over the consent decree was appropriate. Therefore, the Court denied the requests to extend the 2000 amended consent decree, and the expiration of the decree, which occurred on September 29, 2008 was never altered. The parties appealed this decision to the Sixth Circuit, which vacated and remanded the case for further factual findings, specifically: whether the racial classifications contained in the 2000 amended consent decree continue to remedy past discrimination by the Cleveland Fire Department. On remand, the Court ordered the parties to brief this issue, and submit any supporting evidence they may have. An evidentiary hearing was held on December 19, 2012, and the parties filed supplemental briefs following the hearing. (ECF # 95, 96, 97, 98). Factual Findings There have now been in this case two evidentiary hearings, and multiple briefings including evidentiary submissions aimed at addressing whether a continuation of the consent decree is appropriate in this case. This opinion most often focuses on the 2000 amendment to the consent decree as it sets forth the most recent terms of agreement. However, the case must be viewed with the understanding that the discrimination at issue was found by Judge Krupansky in 1975 and the first consent decree was established in 1977. Judge Krupansky’s Order did not impose any race-based hiring ratios. A race-based hiring ratio was included in the 1977 consent decree requiring that the number of minority hired be proportional to the number of minority who passed the entrance exam. This requirement remained the same in the 1984 amendment. In 2000 the race-based hiring ratios were altered to require that one of every three hires must be a minority until the specified ratio or number of hiring cycles was achieved. This race-based hiring requirement is the primary focus of this opinion. The parties have been provided more than ample opportunity to submit evidence in support of their respective positions, and each party has had the chance to address the Court’s concern regarding whether the consent decree continues to serve its original purpose or whether it has been rendered unconstitutional by the change in circumstances over the last thirty-nine years. In the 1970s when this case was filed and a consent decree was originally put in place, minorities accounted for only 4% of the firefighters in the Cleveland Fire Department. The Judge who originally reviewed the case made the finding that this incredibly low representation was caused by the City’s discriminatory hiring practices, especially with regard to the content and scoring of the entrance exam. The evidence shows that by the year 2000, twenty-six percent of the Cleveland firefighters were minorities. That ratio has remained substantially the same to this date. (Dec. 19, 2012 Tr. at 86). As the Court articulated in its prior opinion, the 2009 hearing yielded substantial evidence that the City of Cleveland has extended its best efforts to achieve the hiring goals set forth in the 2000 amended consent decree. There was also substantial evidence produced during the 2009 hearing that showed all parties have used their best efforts to produce substantial change with regard to increasing minority recruitment and hiring opportunities within the Fire Department, and that they did, in fact, succeed in creating increased opportunities for minorities who are interested in and qualified for a position in the Cleveland Fire Department. (Dec. 19, 2012 Tr. at 145-47). The evidence also shows that the recruitment and education of minorities, including efforts to inform and prepare individuals interested in applying for firefighter positions, has been equal to or has exceeded the recruitment and education efforts aimed at potential non-minority candidates. In the documents supporting the parties’ briefs, as well as in both evidentiary hearings, the evidence shows that the City of Cleveland, in cooperation with the Cleveland School District and the Vanguards of Cleveland have instituted aggressive minority recruitment efforts, including but not limited to targeting advertising to minorities (Dec. 19, 2012 Tr. at 32, 42, 46-47, 52, 53, 145, 152-53); maintaining lists of potential interested and/or qualified individuals from the minority community for upcoming tests (Dec. 19, 2012 Tr. at 31, 44, 46^47, 146); providing tutoring to any interested applicant, but emphasizing minorities, in order to promote higher scoring on the written entrance exam (Dec. 19, 2012 Tr. at 31-32, 39, 49, 66-68); implementing a high school trade program for firefighting at MLK High School which has nearly 100% minority enrollment (Dec. 19, 2012 Tr. at 27, 148); giving significant preference points on the exam scoring to the MLK firefighting school graduates (Dec. 19, 2012 Tr. at 28, 119, 153-54; Ex. 93-C; 93-F); and, giving significant preference points on the exam to City of Cleveland residents. (Dec. 19, 2012 Tr. at 29, 120). Many of these efforts go above and beyond what was required by the 2000 amended consent decree, and all have remained in effect well after the 2008 expiration of that decree. (Dec. 19, 2012 Tr. at 30-31, 33, 66-68,123,153-54; Ex. 93-C; 93-F). The evidence also shows, and the parties have not disputed, that further efforts to comply with the specific race-based hiring ratios set forth in the 2000 amended consent decree have been impossible due to unanticipated economic factors, Cleveland’s population decline, and the reduced workforce needs of the Fire Department. The City has been prevented from hiring any new firefighters in more than a decade due in part to budget cuts and delayed retirements. (Dec. 19, 2012 Tr. at 54-55). The last firefighters hired were hired from an eligibility list that was based on the 1998 exam, (Dec. 19, 2012 Tr. at 54-55, 64), and the last fire academy was held in 2001. In 2004 and again in 2010 firefighters were laid off (Dec. 19, 2012 Tr. at 56), and a retention program (the “DROP” program) caused many firefighters who would otherwise have retired to stay in their current positions. To the extent that the City has been able to hire any firefighters since 2004, it has only been able to re-hire those who had previously been laid off. The evidence further shows that had the Court extended the 2000 amended consent decree until 2014 as suggested by the parties, the entire consent decree would have lasted 41 years past the complained of discrimination and would be affecting only applicants who had not even yet been born at the time the discrimination was found to have occurred. (Dec. 19, 2012 Tr. at 121). It would, therefore, be favoring minority candidates who have never faced discrimination by the Cleveland Fire Department, and would have a detrimental effect on non-minorities who had never benefitted from any discriminatory practices carried out by the City. (Dec. 19, 2012 Tr. at 155). In addition, there is no evidence that there is anyone left in the Cleveland Fire Department who was employed at the time of the original consent decree. Therefore, there are no individuals affected by the previous discrimination who will be positively affected by a continuation of 2000 amended consent decree. There is also no evidence that any applicant would suffer any residual effects of the past discrimination. Much has changed since the early 1970s affecting the institutional composition of the City and its public safety forces. There are now minorities in the leadership of the Fire Department, in the Mayor’s Office, and in the Civil Service Commission for the City of Cleveland who all have input in the testing, hiring, and recruitment of new firefighters. (Dec. 19, 2012 Tr. at 142-43). There is also an increased awareness of the need for diversity among the city leaders. There are organizations committed to advancing diversity and minority rights at all levels of government, in all employment arenas, and specifically in the public service arena. The evidence presented at the most recent hearing shows, even more specifically, that there are local and international organizations committed to representing the rights of minority firefighters and increasing minority participation in fire departments locally, nationally, and internationally. (Dec. 19, 2012 Tr. at 36). In the City of Cleveland there are aggres sive minority recruitment and training programs in effect that either primarily benefit minorities or are meant to equalize the chances of minorities to qualify for hire in the Fire Department. (Dec. 19, 2012 Tr. at 27-29, 31-32, 39, 42, 46-47, 49, 52, 53). There has been absolutely no evidence of continued discrimination in the hiring practices of the Cleveland Fire Department. No individual or entity has complained that the current entrance exam or any other hiring criteria are discriminatory either in intent or in effect. (Dec. 19, 2012 Tr. at 120). There is evidence that the City will continue to preference City residents and MLK firefighting program graduates, and will continue to make serious efforts to recruit, prepare, and hire qualified minority candidates into the Cleveland Fire Department. (Dec. 19, 2012 Tr. at 30-31, 33, 66-68, 123, 153-54). The most recent entrance exam was given on July 31, 2010. (Dec. 19, 2012 Tr. at 17, 55). The eligibility list for new hires based on this exam was established in January of 2011, and will expire on January 14, 2013. (Dec. 19, 2012 Tr. at 116). Prior to offering the 2010 exam, the City hired a professional consultant, and the mayor consulted with the prior fire chief, and the public safety department to determine how to weight the scores. (Dec. 19, 2012 Tr. at 116, 119, 142-43; Ambroz Aff. § 2; ECF 84-2). The mayor and the prior fire chief are both minorities. (Dec. 19, 2012 Tr. at 142-43). In previous exam years the written and agility tests were given equal weight. (Dec. 19, 2012 Tr. at 119). For the 2010 exam, the consultations outlined above led to a change wherein the written exam became 60% of the final score, and the agility test accounted for 40% of the final score. (Dec. 19, 2012 Tr. at 119). The scoring was also changed by providing five additional points to graduates of the MLK firefighting program. (Dec. 19, 2012 at 119). The Vanguards were not consulted in determining the new preference points or the new weighting calculations because the 2000 amended consent decree had already expired at the time the exam scoring issues were reviewed. (ECF # 72, 73). Even without any input from the Vanguards, however, the City implemented a new practice that was aimed primarily at benefitting minority candidates by adding the five preference points to the scores of the MLK firefighting program’s graduates. The evidence shows that the firefighter’s exam is very competitive. A candidate who scores 95/100 has been ranked 806 out of the total pool of eligible candidates prior to the calculation of preference points. (Ex. 93-E). In fact, no one on the current eligibility list has rated high enough to receive a job offer without the addition of preference points either for being a City of Cleveland resident, or being a disabled veteran. (Ex. 93-D, 93-E). Further, there is evidence that an MLK graduate who scored 95 on the exam placed 445 places higher on the final eligibility list than another candidate who scored 100, due to the fifteen preference points he received for being an MLK graduate and a City of Cleveland resident. (Ex. 93-D, 93-E). The non-minority, non-resident applicant who scored a perfect score on the exam cannot place high enough on the eligibility list to have a chance of being hired because he did not receive any preference points. The parties have submitted no evidence that any qualified, interested, minority candidate has been precluded or dissuaded from applying for, testing for, or being hired for the position of firefighter in the City of Cleveland since Judge Krupansky’s original Order was issued in 1975. Nor is there any reason to expect that any such discrimination will occur if the 2000 amended consent decree is allowed to expire. The parties have also failed to submit any evidence that there remain any ramifications with regard to the hiring practices of the Cleveland Fire Department that are attributable to past discrimination practiced by the Department. The only evidence presented that even attempts to prove continuing effects from prior discrimination is the testimony of the Headen Plaintiffs proffered expert witness, Dr. Mark Sailing, who testified that the percentage of minority firefighters in the Cleveland Fire Department is not equal to the percentage of minority 18-34 year olds in the general “relevant” population. However, the percentage does not become equal even if the Headen hiring ratios are achieved, and even their expert acknowledges that this ratio would not be expected to be equal. (Dec. 19, 2012 Tr. at 112-113). The numbers used by Dr. Sailing in his analysis also do not comport with the stipulated actual numbers of applicants and minority applicants and exam takers in the 2010 test. The comparison made does not take into account any non-discriminatory factors that may account for the difference in ratios. There has been no comparison of the ratio of interested minority individuals, minority applicants, minority exam takers, or minorities with passing scores to the ratio of those hired, nor has there been any evidence that these ratios differ from those within the non-minority hiring pool. There has been no evidence that minorities are not able to do as well on the written or physical exam, that the hiring criteria are skewed toward non-minorities, or that any qualified, interested candidates have been denied employment based either directly or indirectly on their race. Dr. Sailing testified that there has been sufficient time and turnover since the adoption of the original consent decree in 1977 to provide an opportunity to raise the percentage of minorities in the Cleveland Fire Department. (Dec. 19, 2012 Tr. at 89-90). He could not, however, answer whether past hiring discrimination has been eliminated. (Dec. 19, 2012 Tr. at 90). Instead he re-framed the question to determine whether the aspirational 33 and a third percent ratio articulated in the 2000 amended consent decree had been met. This does not address the issue currently before the Court. The question before the Court is not whether that numerical ratio has been met: every entity associated with this case knows that it has not been. The question rather, is whether the continued judicial enforcement of a race-based hiring mandate instituted to achieve this ratio is necessary to remedy past discrimination in hiring by the Cleveland Fire Department. Dr. Sailing did not, and cannot answer this question simply by reviewing statistically significant differences between somewhat randomly chosen numbers that do not reflect or otherwise take into account the actual number of qualified, interested, and available minority candidates who have, or absent any alleged discrimination, would have taken advantage of the opportunities existing for employment with the Cleveland Fire Department. In fact, after outlining all of his various calculations, Dr. Sailing admitted that he would not necessarily expect the general racial compositions he outlined and based his opinions upon to mirror the Fire Department workforce. (Dec. 19, 2012 Tr. at 112-113). Analysis This court has discretion to determine whether and how a consent decree will remain in effect, including the discretion to terminate the decree altogether. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 380, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). A consent decree’s own terms relating to its duration and the projected need for possible extensions as set forth in the decree are relevant but not binding on this Court’s decision. Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 740-41 (6th Cir.2012). This is particularly true when, as in this case, the consent decree affects the rights of persons beyond the immediate litigants. Id. at 741-42; Heath v. DeCourcy, 888 F.2d 1105, 1109 (6th Cir.1989). The Sixth Circuit has pointed out that when terminating jurisdiction over a consent decree, the Court should make “explicit findings concerning Defendants’ compliance with the decree’s goals and specific terms.” Gonzales v. Galvin, 151 F.3d 526, 532 (6th Cir.1998). Although the Court of Appeals has asked this court on remand to make explicit findings in compliance with Gonzales, it should be noted that this Court was never asked to terminate an ongoing consent decree. Rather, the 2000 amended consent decree expired by its own terms on September 29, 2008. (ECF #22). Two of the parties subsequently sought an extension of the decree. (ECF # 44, 45). A court has even greater discretion when deciding whether to extend an expired consent decree than it does when determining whether to terminate a decree that is ongoing, and the Gonzales factors do not necessarily apply. Nonetheless, the Court’s decision to deny an extension of the 2000 amended consent decree satisfies all of the Gonzales factors, as will be shown below. Further, because the 2000 amended consent decree includes race specific classifications and hiring ratios, the Court must also determine whether these provisions remain constitutionally viable under the current circumstances and context in which the case exists today. A. Constitutionality of Race-Based Classifications in the 2000 Amended Consent Decree The Court has previously recognized in this case, as it did in Rutherford v. City of Cleveland, 1:94 CV 1019, which addressed similar allegations and findings of discrimination in the historical hiring practices of the City of Cleveland’s Police Department, that race-based remedial hiring practices constituting “reverse discrimination” or “affirmative action” were approved by the United States Supreme Court as a necessary step toward creating greater equality when used in a limited and temporary fashion. However, the Sixth Circuit in reviewing the Rutherford case also noted that such remedies are disfavored if they “are not temporary and do not terminate when racial imbalances have been eliminated.” Rutherford v. City of Cleveland, 179 Fed.Appx. 366, 380 (6th Cir.2006). This, in fact, is an understatement of the law. In actuality, beyond being disfavored, if the race-based hiring practices contained in a consent decree do not withstand strict scrutiny, they are un constitutional under the Equal Protection Clause as are any other racial classifications set forth in the law. See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 741, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007); Aiken v. City of Memphis, 37 F.3d 1155, 1162 (6th Cir.1994) (en banc). As the Circuit recognized in its opinion remanding this case, “[a]t most, the Constitution barely tolerates a public employer’s decision to hire or reject a job applicant based upon ... race,” and any such distinctions, even if allowed under the strict scrutiny standard, must be applied “only reluctantly, in circumstances limited in both scope and duration.” Cleveland Firefighters, 669 F.3d at 738. To survive strict scrutiny, a racial classification must be narrowly tailored to achieve a compelling governmental interest. Parents Involved, 551 U.S. at 720, 127 S.Ct. 2738. “[R]emedying the effects of past intentional discrimination” is a compelling interest. Id. However, to fall under this recognized compelling governmental interest, the state actor must not only show past discrimination, it must be able to show that the racial classification imposed actually serves to remedy that past discrimination. Cleveland Firefighters, 669 F.3d at 742. Judge Krupansky made a finding of discrimination in this case in 1975. Therefore, past discrimination has been established. The question of whether the race-based classifications or hiring quotas set forth in the 2000 amended consent decree actually serve to remedy that past discrimination at this point in time is the primary question before the Court. As the Sixth Circuit noted in its opinion remanding this case, the showing that discrimination will be remedied by imposing a race-based classification is often taken for granted and not articulated in the typical case. However, it cannot be assumed when the classification has already been applied for over thirty years and the parties seek a continuance that would extend it beyond the forty year mark. Id.; accord, Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir.1998) (citing Board of Educ. v. Dowell, 498 U.S. 237, 248-49, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991)) (“Injunctive relief after a period of compliance should not extend beyond the time necessary to remedy the violation.”). In fact, the Sixth Circuit has adopted the position taken by the Eleventh Circuit in Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1575-76 (11th Cir.1994), which effectively recognizes a presumption that after a passage of significant time, (thirteen years in Ensley and over thirty years in this case), a district court should presume the “ ‘retrospective, remedial purpose of affirmative action satisfied except where it finds that past discrimination continues to taint a particular position.’ ” Cleveland Firefighters, 669 F.3d at 742 (quoting Ensley, 31 F.3d at 1575-76). Based on the evidence presented at the 2009 hearing, the 2012 hearing, and in the supporting briefs and evidence presented by the parties in connection with those hearings, this Court finds that there is no evidence, let alone “strong evidence” as required by Aiken, 37 F.3d at 1163, that the 2000 amended consent decree’s racial classifications remain remedial at this point in time. The one in three minority hiring ratio no longer serves to remedy past discrimination by the Cleveland Fire Department. As set forth above in the Court’s findings of fact, there is absolutely no evidence whatsoever that there is continuing discrimination in the hiring practices of the Fire Department. There have been no challenges by any party, or any third-party to the most recent entrance examination (Dec. 19, 2012 Tr. at 120); there are no allegations, let alone evidence, that any qualified minority candidate has been overlooked based on their race since the original consent decree went into effect; there is an abundance of evidence that the City has gone out of its way to recruit, tutor, encourage, and assist minority candidates in applying for and passing the entrance examination (Dec. 19, 2012 Tr. at 27-34, 39, 42, 46-47, 49, 52, 53, 66-68, 119-120, 123, 145-146, 148, 152-54); the City has in effect a resident preference that in all practicality precludes non-residents (who constitute a higher non-minority population) from making it onto the hiring eligibility list (Dec. 19, 2012 Tr. at 29, 120, Ex. 93-D, 93-E); the City has helped to establish a firefighting program at MLK high school, which has nearly total minority enrollment (Dec. 19, 2012 Tr. at 27, 148); the City has voluntarily provided preference points to the graduates of the MLK firefighting program (Dec. 19, 2012 Tr. at 28, 119, 153-54); there are a significant number of minorities in leadership positions with the City, the Public Safety Department, and the Fire Department who have influence on the hiring practices of the Cleveland Fire Department (Dec. 19, 2012 Tr. at 142-43). Further, there has been a substantial increase in the percentage of minority uniformed firefighters in the City of Cleveland, rising from 4% at the time of the initial filing of the lawsuit to a steady 26% over the last twelve years. (ECF # 99). Finally, the evidence also shows that the percentage of minority candidates taking the most recent exam who made it on to the hiring eligibility list is 70%, only 4% lower than the overall percentage of eligible candidates taking the test. (ECF # 99). A 4% difference between the overall eligibility rate of exam takers and the minority eligibility rate is not strong evidence of any discriminatory intent or effect arising from the exam or the scoring methods currently implemented by the City. All of these factors combine to compel a finding that there is no evidence, let alone strong evidence, of any discrimination by Cleveland’s Fire Department with regard to their hiring practices, exam content, or scoring methods. Further, there is no evidence that continuing the race-based classifications and hiring ratios will remedy any on-going effects of past discrimination. The increase from 4% to 26% minority representation within the Fire Department (notwithstanding that hiring efforts have been unavoidably stalled for nearly a decade), combined with the presence of minority leadership in the City and in the Fire Department itself, as well as the existence of organizations committed to increasing minority participation in the firefighting industry, have eliminated any long term effects of the prior lack of minority representation in the department on future hiring decisions. (Dec. 19, 2012 Tr. at 36, 142-43). The evidence has also made clear that due to age restrictions in the hiring criteria of firefighters (a restriction not challenged by any of the parties) there cannot possibly be anyone eligible for hire from this date forward who was personally affected, posi tively or negatively, by any of the prior discrimination addressed by the original lawsuit. (Dec. 19, 2012 Tr. at 121). In addition, there are no longer any employees in the Cleveland Fire Department who were employed there at the time the original consent decree was put in place. Therefore, there are no current employees in the department who have been either positively or negatively affected by any prior discrimination as alleged in the original lawsuit. For all of these reasons, the Court finds that there is simply no evidence that would support the conclusion that a continuation of the 2000 amended consent decree would serve to remedy past discrimination by the Cleveland Fire Department. Rather there is an abundance of evidence to suggest that any past discrimination by the Fire Department in its hiring practices has been eliminated, and there is no continuing impact arising from that past discrimination on any current or future employees, or in the hiring process itself. Therefore, the race-based hiring ratios contained in the 2000 amended consent decree are not narrowly tailored to address a compelling governmental interest, cannot pass strict scrutiny, and are unconstitutional under the Equal Protection Clause of the United States Constitution. B. Continuation of Race Neutral Provisions of the 2000 Amended Consent Decree The Sixth Circuit case of Gonzales v. Galvin, 151 F.3d 526 (6th Cir.1998), sets forth the criteria a court should consider when determining whether to terminate a consent decree that has not expired on its own terms. Although, as mentioned above, this case does not involve the early termination of a consent decree, but rather a request to extend the terms of an already expired decree, even the higher threshold requirements for termination under Gonzales would be satisfied in this case. Gonzales instructed that a district court should consider the following factors when deciding whether to terminate a consent decree: (1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree’s underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and, (6) the continuing efficacy of the consent decree’s enforcement. Id. at 531. Notwithstanding these factors, Gonzales held that a district court may not terminate its jurisdiction until it finds that the Defendants are in compliance with the decree’s terms, and that the decree’s objectives have been achieved. The reasoning behind this edict is to give effect to the parties agreement and ensure that the bargained for results are achieved. Id. (citing Jansen v. City of Cincinnati, 977 F.2d 238, 241 (6th Cir.1992)). This must be somewhat tempered, however, when the parties’ agreement has a significant negative effect on third parties who did not join in the agreement. As indicated above, in this case, none of the individuals who would now be affected by a continuation of the 2000 amended consent decree were parties to, or even impacted by the original litigation and consent decree. Further, as the new eligibility list was created based on a 2010 exam, many of the individuals who will be impacted by this Court’s decision were not involved with or represented in the negotiations leading to the 2000 amended consent decree. When originally faced with the question of whether to extend the 2000 amended consent decree, this Court considered preliminary briefing, held an evidentiary hearing, and requested additional briefing on whether a continuation of the 2000 amended consent decree was necessary to achieve the goals originally sought by the parties. All parties disregarded that request, submitting instead an agreement to extend portions of the 2000 amended consent decree for another six years, through December 31, 2014. The evidence presented in the first hearing, the briefs submitted on remand, and the evidentiary hearing held in December all lead to the conclusion that the goals of the original consent decree and of the amended consent decrees have all been satisfied and no further extensions are warranted. At least five of the six factors the court has been instructed to consider under Gonzales weigh heavily in favor of a finding that the parties have indeed complied, to the best of their abilities, with the terms of the 2000 amended consent decree; and, all evidence suggests that further enforcement of the decree is unlikely to have any substantive effect in furtherance of the goals and issues addressed therein. The first factor has little to no weight under the current circumstances, but it would also weigh, if at all, in favor of terminating the decree. Looking at the first Gonzales factor, the 2000 amended consent decree does specify that if the Fire Department does not achieve 33 and one third percent minority representation, or if it does not complete three hiring cycles implementing the one in three minority hiring ratios, the Court shall extend the decree for a reasonable time. As discussed above, however, the imposition of a race-based hiring quota does not withstand constitutional scrutiny, and is unenforceable. As noted by the Sixth Circuit in its opinion remanding this case, the Constitution clearly trumps any provisions set forth in a consent decree. Therefore, any time line that is based on the fulfillment of the race-based ratios is unenforceable and cannot provide weight in favor of continuation under Gonzales’ first factor. With regard to the race neutral requirements of the 2000 amended consent decree, there are no specific time lines or expiration dates set by the terms of the agreement. Although a review of the entrance exam was to have taken place by January 1, 2008, there are no provisions for extending the 2000 amended consent decree based on a failure to meet this deadline. Further, the decree specifically states that any recommended changes would not take effect until after the termination of the Headen decree. Therefore, it does not appear that Judge Manos or the parties contemplated that any changes in the exam would be subject to court supervision under the 2000 amended consent decree, and the parties have not argued that the decree contemplated a continuance of the recruitment requirements for any particular duration. Factor one, therefore, if it has any weight at all, would tend to support the Court’s refusal to extend the 2000 amended consent decree with regard to the race neutral requirements of the agreement. With regard to the second factor, the Court finds that there is strong evidence that the underlying goal of the 2000 amended consent decree, and all of its previous iterations, was to eliminate race discrimination in the hiring of Cleveland firefighters, and to remedy the effects of any past discrimination. As discussed in more detail in the constitutionality discussion set forth above, there is no evidence whatsoever of any on-going discrimination, or of any remaining impact from past discriminatory practices on current candidates or current employees of the Cleveland Fire Department. More specifically, the original consent decree was implemented to address the Court’s Order requiring a review of the entrance exam, additional minority recruitment efforts, the provision of preference points to City of Cleveland residents, and the implementation of non-discriminatory screening procedures in the hiring process for firefighters. See Headen v. City of Cleveland, No. C73330 (N.D.Ohio Apr. 25, 1975). As of December 19, 2012 the evidence shows that the entrance examination has been reviewed by the City and outside consultants, and that changes resulting from this review were implemented in the 2010 exam. (Dec. 19, 2012 Tr. at 119, 142-43; Ambroz Aff. § 2). The evidence farther shows that the City has made outstanding advances in minority and general recruitment practices and the Fire Department continues to dedicate extraordinary amounts of time and resources to continuing these recruitment efforts despite the expiration of the 2000 amended consent decree. (Dec. 19, 2012 Tr. at 20-22, 27-29, 30-33, 38-39, 41-42, 46-47, 49, 52, 53, 55, 64-68, 146-48). There is no dispute that the Cleveland resident preferences points have been made available, and that they, in fact, are crucial to obtaining a high enough spot on the eligibility list to obtain an employment offer. (Dec. 19, 2012 Tr. at 29, 120; Ex. 93-D; 93-E). Finally, there has absolutely no evidence presented that there remain any discriminatory screening procedures in the hiring process for Cleveland firefighters. All evidence supports a finding that the goals of the 2000 amended consent decree have been achieved and the issues addressed by the original and only Court Order identifying discrimination by the Cleveland Fire Department have been fully resolved. Factor two, therefore, weights heavily in favor of allowing the 2000 amended consent decree to expire as originally planned in September Of 2008. There is also ample evidence that the City of Cleveland has, to the extent possible, complied with all prior court orders, including the requirement of reinvigorating the prior recruitment and training efforts for the entry level position of firefighter (Dec. 19, 2012 Tr. at 31-32, 44, 42, 46-47, 52-53, 145-146, 152-53); reviewing the exam substance, scoring, and weighting of future exams (Dec. 19, 2012 Tr. at 119, 142-43; Ambroz Aff. § 2); implementing a specific educational program to train students at the MLK high school in firefighting and other public service careers (Dec. 19, 2012 Tr. at 27, 148); making concerted efforts to increase minority recruitment and tutor or otherwise assist potential candidates to prepare for the firefighting exam (Dec. 19, 2012 Tr. at 31-32, 39, 49, 66-68); and, providing significant preference points to City of Cleveland residents to increase their rank on the eligibility list, (Dec. 19, 2012 Tr. at 29, 120). Further, no party has challenged that other aspects of the decree were fully complied with, including but not limited to re-scoring the written portion of the 1999 exam; paying attorney’s fee for the Plaintiffs; negotiating with Vanguard and the other Plaintiffs to reinvigorate the existing recruitment and training efforts (ECF #33, Dec. 19, 2012 Tr. at 39-40); and, maintaining the existing method of assigning seniority to persons on the eligibility list. Where compliance has been made impossible by unforeseen economic factors, as in the City’s failure to complete three hiring cycles by September 29, 2008, the City has made good faith efforts to comply. They conducted one hiring cycle utilizing the Headen ratios and when hiring was stalled due to economic factors, made extreme efforts to extend and protect the eligibility list that included the Headen preferences. (ECF # 44). Therefore, factors three and four also weigh heavily in favor of allowing the expiration of the 2000 amended consent decree. The original consent decree and its two amendments have imposed race-based hiring ratios and other affirmative requirements on the City for nearly forty years. If extended the parties seek to have the decree in effect for over forty years in total. The parties have suggested that this may be the longest running consent decree in history, and more importantly, because of the passing of time, the decree has absolutely no effect on any individual who was impacted by the original discrimination. Rather, the parties now seek to have it applied to individuals who were not even born at the time the original lawsuit was filed. The consent decree has been allowed to continue for nearly forty years without a single showing of on-going discrimination or any proof that a single interested candidate was kept from employment based on their minority status or the effects of prior discrimination since the filing of the lawsuit in 1973. Nonetheless, an extension of the 2000 amended consent decree would create a disadvantage for some non-minority candidates who have never received any benefit from prior discriminatory practices, but are nonetheless being prevented from obtaining employment based solely on the basis of their own race. There can be absolutely no doubt that significant changes have occurred in society, in the City and its leadership, and in the Fire Department itself that have eliminated many of the causes of the prior discrimination by the Cleveland Fire Department. Although some may argue that trends and circumstances in our society still limit the opportunities for minorities, there is absolutely no evidence that the Cleveland Fire Department has done anything over the last thirty plus years other than encourage and assist minority candidates who are interested in a career in firefighting. There is no evidence that minorities have anything less than an equal opportunity to pursue a career with the Fire Department, and the evidence suggests, in fact, that even without the Headen ratios in place they may have a greater opportunity than non-minority candidates through the establishment of the MLK firefighting program and the preference points offered to its graduates and to Cleveland City residents. Whether they take advantage of these opportunities is not a matter that is within the control of the Cleveland Fire Department, nor is that an issue that can be, or should be addressed by the terms of a consent decree. The Cleveland Fire Department has increased from 4% minority representation in 1973 to 26% representation in 2000. The 26% representation has remained level for over a decade now. Despite what can only be seen as extraordinary efforts to engage and nurture a larger pool of minority candidates over the course of the last thirty years, there is no indication that minority applications for the position of firefighter have increased over that time. At the latest exam, just over 35% of the applicants were minorities, and only 32% of the people who actually took the exam were minorities. This is compared with Dr. Sallings’s demographic finding that 60% of the age eligible community in the City of Cleveland are minorities. Taking into account the broad and comprehensive recruiting efforts made by the City of Cleveland; the free tutoring programs sponsored by the City aimed at enhancing exam scores; the establishment of a firefighting program at the nearly exclusively minority high school; the preference points given to Cleveland City residents on the exam; the highly competitive nature of the exam; and the five point preference given to the MLK program graduates, the 32% minority turn out rate for the latest exam leads to the conclusion that nothing within the control of the City of Cleveland, including a heightened degree of recruitment, tutoring, training, or preference points has been, or likely will be effective in luring a- population proportionate number of minority candidates to sit for and pass the firefighters exam. This further leads to the conclusion that the sixth factor of the Gonzales test weighs against the continuation of the 2000' amended consent decree, as there is no evidence that would suggest an extension would increase the efficacy of the decree or further advance its goals. Based on all of the facts presented at the evidentiary hearings, all of the evidence submitted in support of the parties briefs, and a review of all of the relevant law, this Court finds that the City of Cleveland has substantially complied with the terms of the 2000 amended consent decree in all aspects except for a full implementation of the race-based hiring ratios originally contemplated in the 2000 amended consent decree. For the reasons set forth above, further use of these ratios under the current circumstances would be unconstitutional under the Equal Protection Clause of the United States Constitution. They are, therefore, unenforceable provisions and cannot be said to prevent a finding of full compliance. This Court further finds that the decree’s objectives have been achieved in so far as there is no evidence of continuing discrimination in the hiring practices of the Cleveland Fire Department and there is no evidence of any continuing repercussions resulting from the prior discrimination outlined in the 1973 complaint and the 1975 Court Order which gave rise to the original consent decree and its future amendments. For these reasons, the requests for extension of the 2000 amended consent decree are denied. Conclusion For the reasons set forth above, this Court finds that the 2000 amended consent decree in the above captioned litigation is no longer necessary to advance the goals of that decree, and that the City has substantially complied with all enforceable terms of the decree. The race-based provisions are no longer needed to address past discrimination and arc, consequently, unconstitutional. Therefore, the City’s Motion for Extension of Time to Comply with the Headen Decree (ECF #44), the Vanguards of Cleveland’s Molion to Extend the Terms of the Second Amended Consent Decree (ECF # 45), and the Vanguards renewed Motion to Extend (ECF # 83) are denied. This case is terminated. IT IS SO ORDERED. JUDGMENT ORDER For the reasons set forth in this Court’s Memorandum Opinion, the Court finds that the 2000 amended consent decree in the above captioned litigation is no longer necessary to advance the goals of that decree, and that the City has substantially complied with all enforceable terms of the decree. The race-based provisions are no longer needed to address past discrimination and are, consequently, unconstitutional. Therefore, City’s Motion for Extension of Time to Comply with the Headen Decree (ECF # 44), the Vanguards of Cleveland’s Motion to Extend the Terms of the Second Amended Consent Decree (ECF # 45), and the Vanguards’ renewed Motion to Extend (ECF #83) are denied. This case is terminated. IT IS SO ORDERED. . At this point the case has been under Court supervision for over thirty-nine years. . Although the MLK program is facially race neutral, as set forth above, it is available only to full time students at MLK high school. The population of that school is nearly 100% minority. Therefore, the opportunity to participate and eventually obtain these preference points is available to far more minorities than non-minorities, should the students choose to take advantage of this opportunity. Only “five to six” of the approximately 500 graduates from the MLK firefighting program have been non-minority. (Dec. 19, 2012 Tr. at 27). . Two hundred and ninety-seven of the top 300 candidates on the eligibility list received ten preference points for City residency. Three received ten preference points for being a disabled veteran. (Ex. 93-D, 93-E). The post-hearing brief of the Vanguards and Headen Plaintiffs calculates that nearly fifteen percent more minorities receive City residency preference points than do non-minorities. (ECF # 98 at 5). . Chief Luke and Chief Brewington both testified that they hold a personal belief that the consent decree has been the impetus for the recruitment and educational changes that have been made. This is an indication that the consent decree has in fact served a positive purpose by bringing these changes to light and highlighting the importance of prioritizing minority recruitment and diversity in employment at the Fire Department. It is not, however, evidence that an extension of the 2000 amended consent decree is needed in the future to remedy past discrimination. Chief Brewington also expressed a personal belief that society has not yet risen to the level where discrimination can be avoided without the oversight of judicial enforcement. This too falls short of providing evidence that continued judicial enforcement of the 2000 amended consent decree is required to remedy past discrimination. It is, rather, an expression of a personal fear of future discrimination based on Chief Brewington’s experience and personal history that is understandable but not supported by the evidence presented in this case. Further, it should be noted that judicial enforcement of the equal right guarantees of the United States Constitution is always an available remedy for any future discrimination, and as such, is itself a deterrent to future discrimination. However, the fear of future discrimination does not justify the current imposition of race-based hiring criteria or "affirmative action” that itself violates the equal protection guarantees of the Constitution. . Although the Court will discuss the opinions rendered by Dr. Sailing, and does accept that he has provided relevant information regarding the facts underlying his opinions, he does not qualify as an "expert witness” in this case. Dr. Sailing may qualify as an expert in geography, demographics, and possibly even statistical analysis. However, while these areas of expertise may shed light on the general context and make-up of the relevant community, they are not relevant to the base question of whether these statistical comparisons indicate any actual remaining ramifications of past discrimination by the Cleveland Fire Department, or whether there is any continuing discrimination being practiced by the Cleveland Fire Department. Dr. Sailing did not account for the effects of any of the many factors outside of discrimination by the Cleveland Fire Department that might affect whether minorities apply for, take, or receive passing grades on the firefighter entrance exam in numbers that are disproportionate to their representation in the general population of Cleveland. The Cleveland Fire Department cannot be held accountable for remedying or addressing any and all of those potential factors, nor does it have the power to force minorities to apply for, study for, take, and pass the exam when it is offered. Although Dr. Sailing articulated what general ratios exist in the Department and in the City of Cleveland and surrounding areas, he made absolutely no determination as to what might cause these ratios to differ, nor does he have the expertise to do so. . In his report, Dr. Sailing projects that 46.8% of all applicants for the 2010 exam would be minorities. The parties have stipulated that 32% of the 2010 written exam takers were minorities, and 31% made it to the eligibility list. According to other declarations by Dr. Sailing, this is a statistically significant difference and it substantially skews his analysis. . The 33 and a third percent goal was not a mandatory requirement under the 2000 amended consent decree. This goal was set forth as a measure that, if achieved, would allow the 2000 amended consent decree to expire before three hiring cycles had been completed. It was not meant to be a reason for extending the duration of the 2000 amended consent decree. . The parties’ stipulations indicate that of the 1884 individuals taking the exam, 1403 names made it to the hiring eligibility list. Of those taking the exam 609 were minority candidates and 429 of those minority candidates made the eligibility list. . Any larger discrepancy that may exist between the ratio of minorities to non-minorities in the general population of the relevant community and the ratio of minorities who actually choose to take the exam sheds no light on whether the exam and scoring procedures themselves have a discriminatory effect. As the original finding of discrimination was based on the effect of the exam and other scoring factors, determining whether this type of discrimination continues requires consideration of how minorities do on the exam in comparison to the overall pool of test takers, not whether or not minorities for whatever reason choose to take or refrain from taking the exam in the first place. This is especially true when all parties have presented evidence that the City’s recruitment efforts encouraging minority participation in the exam taking process have been extraordinary and above reproach. .In fact, two of the primary witnesses at the most recent evidentiary hearings, Chief Luke and Johnny Brewington were minority firefighters who had achieved the rank of “Chief,” and who were committed to the ongoing recruitment of minority firefighters. Further, the current Cleveland Mayor is a minority as are the majority of the City Council members. . Although there is no evidence as to whether this was completed by the January 2008 deadline, the exam was re-evaluated using a professional consultant prior to the issuance of the first exam following the expiration of the Headen ratios. This would have been the first allowable time to implement any changes to the exam pursuant to the terms of the 2000 amended consent decree. . There is no reason to believe, based on the evidence presented that the City will not continue in its efforts to promote racial diversity in the Fire Department or that it will discriminate in any way in its future recruitment and hiring practices. However, even if future discrimination remains a fear by some of the parties to this litigation, the continued enforcement of the 2000 amended consent decree is not justified by the fear of future discrimination. Racial classifications such as those contained in the 2000 decree can only be tolerated when they offer redress for past discrimination, they are not allowable as a preventative measure taken as insurance against potential future harms.

MEMORANDUM OPINION AND ORDER ROBERT M. DOW, JR., District Judge. Following a jury trial, Melvin Newman was found guilty of fatally shooting Andy Dent in July 2001 and sentenced to a 47-year prison term. After launching an unsuccessful direct appeal of the verdict, Newman mounted a similarly unsuccessful collateral attack on his conviction in state court. Using the procedures called for in the Illinois Post-Conviction Act (725 ILCS 5/122-1(a)(1)), he raised three arguments. Only one of those arguments is pressed in this federal case, so there is no need to recount the others here. Newman’s remaining argument is that his lawyer failed to investigate and raise the issue of Newman’s fitness to stand trial, despite having received a two-inch-thick stack of diagnoses and other records from Newman’s mother and learning that Newman went to a “special school.” Those records included a document from the U.S. Social Security Administration (“SSA”) confirming that Newman had been found disabled in 1995 on the basis of mental retardation. Another document, an evaluation from a psychologist, stated that Newman had an IQ of 62, “yielding] a * * * national percentile rank of 1.” On June 21, 2006, the state trial court dismissed Newman’s post-conviction claims without holding an evidentiary hearing. The Illinois Appellate Court affirmed in a split decision, with Justice Wolfson dissenting on the ground that Newman had made a substantial showing of a constitutional violation and thus was entitled to an evidentiary hearing. After exhausting his post-conviction remedies in the Illinois state courts, Newman filed a habeas corpus petition in federal court alleging ineffective assistance of counsel [1], On September 21, 2010, 2010 WL 3780988, this Court issued an Order [31] concluding that Newman had established a prima, facie, case that his lawyer’s representation fell below the constitutional minimum and that Newman suffered prejudice as a result. Accordingly, the Court granted Newman’s request for an evidentiary hearing, which it held in the spring of 2011 [60, 61]. A few weeks after the hearing, on April 4, 2011, the Supreme Court issued its decision in Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), changing the landscape that applies to ineffective assistance of counsel habeas cases and limiting the circumstances in which district courts may hold evidentiary hearings and when they may consider evidence produced at those hearings. At the time of the post-hearing briefing, there was considerable uncertainty in regard to the proper application of Pinholster. However, the Seventh Circuit’s recent opinion in Mosley v. Atchison, 689 F.3d 838 (7th Cir.2012), provided clear guidance to district judges on how to proceed in a habeas case in the post-Pinholster world. Applying Mosley, the Court first assesses whether Newman has properly established a case under § 2254(d) looking only at the record before the state court. If Newman is successful under § 2254(d), the Court then may consider the additional evidence presented at the federal evidentiary hearing to determine whether Newman is entitled to relief. I. Legal Standard Federal courts are authorized to issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Section 2254(d) states: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Under § 2254(d), “federal courts are usually limited to deferential review of the reasonableness, rather than absolute correctness, of a state court decision.” Mosley, 689 F.3d at 844. For purposes of reasonableness review, “a state prisoner must show that the state court’s ruling on a claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). “Where the state court’s decision is ‘contrary to’ federal law, that decision is not entitled to usual AEDPA deference and is therefore reviewed de novo with the reviewing court applying the correct legal standard.” Mosley, 689 F.3d at 844 (citing Martin v. Grosshans, 424 F.3d 588, 592 (7th Cir.2005)). Federal review of a claim governed by § 2254(d) “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 131 S.Ct. at 1398. “It would be strange to ask federal courts to analyze whether a state court’s adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.” Id. at 1399. Therefore, under § 2254(d) “evidence later introduced in federal court is irrelevant.” Id. at 1400. If, however, § 2254(d) does not bar relief, then an evidentiary hearing may be needed to determine if the petitioner is being held in violation of the Constitution. Mosley, 689 F.3d at 844 (citing Pinholster, 131 S.Ct. at 1412 (Breyer, J., concurring in part and dissenting in part)). II. Analysis Newman claims that his trial lawyer rendered constitutionally ineffective assistance of counsel. To succeed on that claim, Newman must show (1) that counsel’s performance fell below an objective standard of reasonableness and (2) that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing the familiar two-part “performance” and “prejudice” test for ineffective assistance of counsel claims). Although in this case an evidentiary hearing was held before the Supreme Court decided Pinholster, the Court must decide whether the state court’s decision was contrary to or an unreasonable application of federal law based only on the evidence available to the state court when it made its decision. See Mosley, 689 F.3d at 844 n. 1. A. Section 2254(d) 1. Posl-Conviction State Court Proceedings Newman originally raised his ineffective assistance claim in state trial court pursuant to the Illinois Post-Conviction Act (725 ILCS 5/122—1(a)(1)). The trial court denied Newman’s claim in an oral ruling. Rather than addressing whether it was unreasonable for Newman’s lawyer to decline to investigate his client’s mental condition, the trial judge primarily discussed whether there was enough information available to the trial court such that it should have held a competency hearing on its own motion. To the extent that the trial judge made a finding that Newman was fit to stand trial, the court’s conclusions rested on a simplistic rationale: As to fitness, I personally had conversations with Mr. Newman; and I’m not inexperienced in this matter. And his responses were correct. If he was drooling or if his eyes were going someplace, counsel, I assure you, I would have sua sponte asked for a fitness hearing. His responses were appropriate. In fact, it wasn’t a yes-or-no mat ter when I asked him about the second degree murder instruction. He replied no. June 2006 Order at 17-18 (emphasis added); compare Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 46 (4th ed. 1994) (“DSM-IV”) (diagnostic criteria for mental retardation are (a) significantly subaverage intellectual functioning, (b) deficits in adaptive functioning in two of eleven specified areas, and (c) onset before age 18). No witness was called to testify in the state trial court, and Newman’s trial lawyer does not appear to have responded to the ineffective assistance allegation even in a subsequently filed affidavit. The trial court suggested that Newman’s answer of “no” to a question that did not call for a “yes” or “no” answer was evidence that Newman had given an “appropriate” response to the Court’s question. June 2006 Order at 18. Newman appealed the decision to dismiss his petition without an evidentiary hearing to the Illinois Appellate Court. In a 2-to-1 decision, the Appellate Court affirmed the lower court, ruling that the “defendant has failed to demonstrate that a bona fide doubt as to [Newman’s] fitness to stand trial existed at the time of trial.” People v. Newman, No. 1-06-1977, slip op. at 10 (Ill.App.Ct. Sept. 4, 2007). The Appellate Court did not reach the question of whether Newman’s trial counsel’s performance was constitutionally deficient; rather, it addressed only the issue of whether Newman suffered any prejudice as a result. Compare id. at 7 (“Where a defendant fails to show prejudice, the reviewing court need not determine whether the test of deficient performance was met”), with id. at 8-11 (reasoning that prejudice can be found only if there was, at the time of trial, bona fide doubt about fitness and concluding that no doubt about fitness existed). The court concluded that an expert report (the “Kavanaugh Report”), which indicated that Newman had an IQ within the “extremely low range” (meaning the 2.2 percentile), but which was prepared after Newman’s trial, was “irrelevant” because the facts as they existed at the time of trial were what mattered. In his dissenting opinion, Justice Wolfson expressed his view that Newman had “made a substantial showing of a constitutional violation” and thus should be entitled to an evidentiary hearing. Id. at 14. 2. Prejudice The Court begins its analysis with the only prong of the Strickland test that the state appellate court addressed on the merits — prejudice. The Court reviews the Appellate Court’s decision under the AEDPA and looks only at the state court record. Pinholster, 131 S.Ct. 1388; Charlton v. Davis, 439 F.3d 369, 374 (7th Cir.2006) (explaining that the pertinent decision for review under the AEDPA is the last state court decision on the merits of the issue). Even if a lawyer’s representation was objectively unreasonable, a habeas petitioner is not entitled to relief unless he can show that the attorney’s deficient performance actually prejudiced the petitioner. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Eddmonds v. Peters, 93 F.3d 1307, 1319 (7th Cir.1996). To make the required showing, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (emphasis added) (teaching that a reasonable probability means “a probability sufficient to undermine confidence in the outcome”). In this case, that means that Newman must show that if his lawyer had investigated his mental condition, there is a reasonable probability that Newman would have been adjudged unfit to stand trial. Illinois law attaches a presumption of fitness; a defendant is only unfit if, “because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” 725 ILCS 5/104—10; see also Benefiel v. Davis, 357 F.3d 655, 659 (7th Cir.2004) (“It is well-settled that a defendant may not be tried unless he has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and * * * a rational as well as factual understanding of the proceedings against him.’ ”) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). In the Appellate Court, the panel majority held that Newman “failed to demonstrate that a bona fide doubt as to his fitness to stand trial existed at the time of the trial” and thus he “failed to satisfy the prejudice prong.” People v. Neuman, slip, at 10. In the context of a habeas petition governed by the AEDPA, this Court does not assess the adequacy of the state court’s reasoning, but rather the reasonableness of its judgment. Harrington, 131 S.Ct. at 785 (2011). Relief will be available only when “there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedent.” Harrington, 131 S.Ct. at 786. Newman argues that, despite this high standard, the state court’s decision was unreasonable under both § 2254(d)(1) and (2). Specifically, Newman argues that under § 2254(d)(1) the state court unreasonably applied Strickland and its progeny when, after deeming “irrelevant” an unrebutted expert opinion indicating that Newman was unfit to stand trial, it concluded that Newman was “nothing more than academically challenged and a slow learner.” The Court agrees. The Appellate Court found that the Kavanaugh Report was “irrelevant” because it was produced after the trial. But the Kavanaugh Report is relevant evidence-a court cannot simply ignore a post-conviction report of a professional who opines that a defendant may have been unfit at the time of the trial. See Burt v. Uchtman, 422 F.3d 557, 570 (7th Cir.2005). The Kavanaugh Report addresses in detail whether Newman was competent to stand trial at the time of his conviction. Specifically, after interviewing and performing tests on Newman and interviewing others who interacted with him at the time of his trial, Dr. Kavanaugh opines that Newman’s limited intellectual ability “would have significantly interfered with his ability to assist in his defense and his [sic] understand the nature and purpose of the proceedings.” Kavanaugh Report at C576-77. Kavanaugh also offers her “clinical opinion that Mr. Newman cannot and was not able to assist in his own defense.” Id. at 77. The Appellate Court unreasonably refused to consider the Kavanaugh Report, which strongly supports Newman’s argument that had his counsel conducted a proper investigation and raised the issue of Newman’s mental deficits with the state trial court, there is a “reasonable probability” that Newman would have been unfit to stand trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Second, Newman argues that under § 2254(d)(2) the Appellate Court’s factual determinations were unreasonable. Again, the Court agrees with Petitioner. The Appellate Court’s opinion focused on selected statements out of a two-inch stack of reports, ignoring other statements that pointed toward a different conclusion. For instance, the records given to Newman’s attorney indicated that Newman had a first-grade reading level, possessed an IQ of 65, and had been declared mentally retarded by the SSA. As the most analogous Seventh Circuit case law holds, when key facts of record run contrary to the state court’s conclusions but are not addressed in the court’s decision, a major concern arises about the correctness of the disposition. See Julian v. Bartley, 495 F.3d 487, 494 (7th Cir.2007) (reversing district court’s denial of § 2254 petition raising ineffective assistance of counsel on grounds that state court’s unreasonably determined the facts because “[t]he state court simply ignored a key piece of evidence”); Hall v. Washington, 106 F.3d 742, 749 (7th Cir.1997) (reversing district court’s denial of a § 2254 petition alleging ineffective assistance of counsel on the grounds that the state courts had made an unreasonable determination of facts because state court findings were “inadequately supported by the record” and hence essentially “arbitrary”). In sum, this Court concludes that the Appellate Court unreasonably overlooked critical evidence in the record in rejecting Newman’s claim for post-conviction relief and issued an “inadequately supported” judgment that resulted in prejudice to Newman under § 2254(d)(1) and (2). Id. 3. Performance As mentioned above, the Illinois Appellate Court reached only the prejudice prong in its analysis and did not address the performance prong of Strickland. Accordingly, the Court reviews the performance prong de novo according to pre-AEDPA standards. See Pinholster, 131 S.Ct. at 1401 (noting that de novo standard applies when the “state court decision did not reach the question” presented by petitioner); Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir.2011) (“As noted previously, the state appellate court did not address the merits of Mr. Suss-man’s allegations of deficient performance, but proceeded directly to the prejudice inquiry. Consequently, we review de novo Mr. Sussman’s claim of deficient performance.”). The performance standard provides significant latitude for what qualifies as permissible attorney conduct, and a prisoner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotations omitted). If the prisoner identifies specific errors or omissions made by counsel, the court then must determine “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. In this case, Newman argues that his counsel was ineffective when he failed to investigate obvious issues relating to Newman’s fitness for trial and ask the trial judge to conduct a competency hearing. Because the Seventh Circuit’s decision in Brown v. Sternes, 304 F.3d 677 (7th Cir.2002), arose in similar circumstances, it is instructive in evaluating Newman’s claim. In Brown, the petitioner was arrested and convicted of armed robbery. Five years prior to his arrest, Brown had been incarcerated at the Menard Correctional Facili ty, where he was diagnosed with chronic schizophrenia and placed on numerous medications. He also had applied for Social Security benefits, at which point he received another diagnosis of chronic schizophrenia. Id. at 680-81. When Brown was arrested on the armed robbery charge in 1991, his trial lawyer did not know all the past details of Brown’s medical history, but a credible source (faculty at Northwestern University Law School’s legal clinic) told the lawyer that Brown had a history of mental illness. Id. at 682. Brown’s lawyer did ask for a competency hearing, but did not pursue the underlying medical records with particular zeal, and the court-appointed expert psychiatrists did not seek the records either (despite being advised of their existence and the integral nature of the records in diagnosing schizophrenia). Id. at 682, 696. After the experts opined that Brown was competent, his lawyer failed (1) to object to the experts’ conclusory reports, (2) to object to the judge’s conclusion, (3) to inform the judge that Brown previously had been declared unfit to stand trial in a different case, and (4) to inform the judge that communicating with Brown had been difficult. Id. at 684. When Brown filed a petition for post-conviction relief, the state trial court declined to hold an evidentiary hearing. The Illinois Appellate Court affirmed, holding that there was “no compelling basis or reason for counsel to further investigate defendant’s mental health condition.” Brown, 304 F.3d at 688. The Seventh Circuit took issue with the Illinois Appellate Court’s analysis and conclusion, calling the “reasoning and comments” of the court “alarming, confusing and most surprising.” Brown, 304 F.3d at 689. The Seventh Circuit concluded that the state court had unreasonably applied clearly established precedent under 28 U.S.C. § 2254(d)(1). The Seventh Circuit then explained that “where it will be apparent from * * * conversations with the defendant, or from other sources of information not requiring fresh investigation, that the defendant has some mental or other condition that will require further investigation * * * then the failure to investigate will be ineffective assistance.” Id. at 692; see also id. at 693 (noting that attorneys have an obligation to explore readily available sources of evidence that might benefit their clients). More recently, in a slightly different context, the Seventh Circuit in Wilson v. Gaetz ruled that a lawyer was constitutionally ineffective for obtaining an expert’s evaluation on fitness, but failing to obtain an additional evaluation on the issue of the petitioner’s sanity. 608 F.3d 347, 349-50, 356 (7th Cir.2010). In that case, the defendant did raise a sanity defense, but the expert called to testify on his behalf was “taken apart in cross-examination” by the prosecutor who forced the expert to concede that only three paragraphs of his 14-page fitness report concerned the defendant’s mental state when he had committed the murder (the rest of the report was about the defendant’s fitness during the expert’s interview). Id. at 350. On those facts, the Seventh Circuit held that defense counsel performed deficiently in presenting the insanity defense and remanded to the district court for an evidentiary hearing on the prejudice prong of the ineffective assistance claim. 608 F.3d 347, 349-50, 356 (7th Cir.2010). As demonstrated in the cases discussed above, and reaffirmed in those cited below, the principle that a defense attorney provides ineffective assistance of counsel when he or she receives reliable information about a history of mental deficiencies but fails to investigate the matter and to seek a competency hearing if facts revealed during counsel’s investigation in dicate an issue for judicial determination is well established in the law of the Seventh Circuit and beyond. See Brown, 304 F.3d at 693 (citing Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir.1991)); Eddmonds v. Peters, 93 F.3d 1307, 1325-26 (7th Cir.1996) (Flaum, J., concurring) (in death penalty case, “counsel’s decision not to initiate an investigation that was clearly called for by the evidence was not supported by reasonable professional judgment”); Seidel v. Merkle, 146 F.3d 750, 755-56 (9th Cir.1998) (petitioner was denied effective assistance of counsel by his trial attorney’s deficient performance in failing to conduct any investigation into extent or possible ramifications of defendant’s psychiatric impairment); Williamson v. Ward, 110 F.3d 1508, 1517-18 (10th Cir.1997) (concluding that defense counsel was ineffective in failing to investigate defendant’s mental illness and seek competency hearing); Genius v. Pepe, 50 F.3d 60, 61 (1st Cir.1995) (finding counsel’s failure to investigate a possible complete defense as “an extraordinarily unbalanced choice,” regardless of whether counsel made the decision deliberately — as to which there was no evidence — or by default, particularly when there was evidence of a mental disturbance in the record); Bouchillon v. Collins, 907 F.2d 589, 597-98 (5th Cir.1990) (“It must be a very rare circumstance indeed where a decision not to investigate would be ‘reasonable’ after counsel has notice of the client’s history of mental problems”); Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th Cir.1987) (concluding that petitioner’s trial counsel was ineffective in failing to investigate prior mental history for insanity defense). The question is whether the performance of Newman’s counsel in this case fell below the minimum constitutional threshold articulated in these cases. Returning to the facts in this case, the evidence before the state court showed that Newman’s lawyer, Michael Johnson, was aware of multiple diagnoses of a serious mental health condition as well as information that his client may have been mentally retarded. There also is evidence that Johnson experienced difficulty communicating with his client but failed to raise the matter with the trial court. Indeed, it appears that counsel in Brown actually exerted greater effort on his client’s behalf than Johnson did; in Brown, counsel at least raised the issue of competence with the trial court, although counsel’s pursuit of the pertinent medical records was lackadaisical. Johnson, by contrast, would not have had to do much investigating, if any, to determine that Newman had severe mental deficits. Newman’s mother stated that, after her first meeting with Johnson, she gave him a two-inch-thick envelope of medical and other records — which Johnson acknowledges receiving. The records included an SSA verification that Newman had been diagnosed as mentally retarded, a school psychologist’s evaluation of Newman that pegged his IQ at 62, and an Individualized Education Program Plan stating that Newman was learning disabled and read at a first-grade level when he was 16. To be sure, not every document repeats that Newman was found to be mentally retarded. For instance, the school evaluation states that Newman was hospitalized with “Intermittent Explosive Disorder,” and the report that concludes that Newman had an IQ of 62 also notes that the measurement was lower than in past tests. There was, however, more than enough information making it clear that Newman had a history of serious mental deficiencies. Brown, 304 F.3d at 692-93. The Seventh Circuit cases in this realm instruct that the absolute bare minimum for a lawyer in these circumstances is to investigate and learn facts that reasonably “quiet[ ] the misgivings.” Galowski v. Berge, 78 F.3d 1176, 1180 (7th Cir.1996). Newman’s attorney, however, did very little to follow up on the red flags that had been raised for him. Moreover, even if the medical and diagnostic files had not literally been placed in Newman’s counsel’s hands, the record presents a strong circumstantial case that any reasonably competent lawyer would have been aware that Newman had severe cognitive issues immediately upon speaking with him. E.g., Galowski, 78 F.3d at 1178 (trial counsel provided adequate counsel where he sought a psychological evaluation of his client after the client told the lawyer that his mind “had been goin [sic] 100 miles and hour” and that he did not “know what [was] going on” and just “seemed to want to get the matter over with”). For example, one of Newman’s teachers from 2001 — the year that Dent was murdered — said that Newman could not understand complex or abstract concepts and needed to have things put to him in simple terms. Another teacher who offered personalized instruction stated that Newman had the worst reading skills of anyone she had taught, that he had memory problems, and that he talked to her about his legal case in a way that suggested a lack of understanding about the case. Furthermore, Newman’s post-conviction evaluation conducted by Dr. Antoinette Kavanaugh placed his IQ between 35 and 70. The report indicated that Newman had the listening skills of someone aged 4 years and 8 months and concluded that his impairments would be obvious to one speaking with him in part because his limited vocabulary caused conversations to break down. Because Newman’s condition was obvious to his teachers and Dr. Kavanaugh, it is not a stretch for the Court to conclude that trial counsel, whose own affidavit says that he spoke with Newman “on many occasions about his case” [22-2] and “who was in the best position of any lay person to evaluate [Newman’s] competence” (Galowski, 78 F.3d at 1182), at least should have investigated to a far greater degree than he did. E.g., Galowski, 78 F.3d at 1180. Taking into consideration all of the evidence available to the state court at the time of the post-conviction proceedings, the Court finds that Attorney Johnson failed to fulfill his duty to investigate his client’s fitness. Consequently, Johnson’s performance fell below an objectively reasonable standard, as required in Strickland, and Newman has met his burden as to both performance and prejudice under § 2254(d). B. Section 2254(a) Because the Court concludes that the state court decision denying Newman re lief was contrary to or an unreasonable application of federal law, the Court now must determine whether under § 2254(a) Newman is in custody in violation of the Constitution or law or treaties of the United States. See Mosley v. Atchison, 689 F.3d 838, 853-54 (7th Cir.2012) (quoting Pinholster, 131 S.Ct. at 1412 (2011) (Breyer, J., concurring in part and dissenting in part)). In making this second determination, the Court may consider the evidence presented during the evidentiary hearing in March 2011. Id. 1. Federal habeas proceedings Over the course of the evidentiary hearing, Newman put forward additional evidence in support of his claim that his counsel was ineffective when he failed to investigate Newman’s fitness for trial and request a competency hearing. While there was an abundance of testimony presented and evidence produced, the relevant evidence and testimony can be summarized as follows. Daphne Whitington testified that she was a literacy specialist who worked with Newman at the Audy Home, the juvenile facility at which Newman stayed during his trial from 2001-2002. To be sure, Respondent’s comment that the Court should take Whitington’s testimony “with a grain of salt” is not unfounded. Whiting-ton obviously has a teacher’s fondness for a student who — by Whitington’s lights— struggled despite trying hard. She also plainly feels badly for Newman given his current incarceration and his limited mental abilities. While cognizant of Whiting-ton’s sympathy for Newman, the Court nevertheless found her testimony credible, largely because it was consistent with (1) the observations of others who interacted with Newman near the time of his trial and conviction and (2) the written record of his mental abilities and challenges at that time. According to Whitington, despite the fact that Newman “came every day ready to work,” her progress was “slower with him than with almost any other student” she had ever worked with, because “things that he seemed to have mastered the day before, he would have forgotten by the next day.” Ultimately, despite daily literacy instruction for a year from a highly acclaimed teacher, Newman was able to achieve only a kindergarten-level reading ability by the time he was convicted. Moreover, Whitington found that Newman had general cognitive delays that were readily apparent: he could not talk about abstract concepts and was easily lost by concepts such as justice. He also was unable to comprehend the role of the defense attorney and the prosecutor and unable to respond when Whitington asked him about his own trial. Dan Dillon, another one of Newman’s special education teachers at the Audy Home, reported similar troubles. Dillon testified credibly that Newman was “one of the lowest students” he had ever taught and that he was unable to read or spell simple four-letter words. Dillon also testified, like Whitington, that Newman was unable to retain whatever minimal academic progress he made from day-to-day. Dillon further testified that based on his experience teaching Newman, he did not believe that Newman could have understood phrases used by the Judge during the trial including: “constitutional right to testify,” “inference,” “consulting,” “second degree murder request,” and “second degree murder jury instruction.” Jerry South, Newman’s special education teacher at Menard, testified that when Newman arrived at the prison after his trial, he was functionally illiterate, could not tell time, and was unable to do basic arithmetic. In February 2004, shortly after arriving at the prison, Newman was tested by a team of psychologists and teachers, who diagnosed him as suffering from “mental retardation” — a diagnosis that South, who participated in the development of the testing process, found to be consistent with his observations of Newman. In sum, the testimony of all three teachers who worked with Newman shortly before and shortly after his trial paints a consistent picture of Newman as a person with significant and obvious mental impairments. The records made available to defense counsel further support that view. Petitioner Melvin Newman also testified at the evidentiary hearing. In the years since his conviction, Newman has shown improvement — at age 26, he now has a reading level of a sixth-grader. But according to Newman, at the time of his trial he struggled to comprehend the court’s instructions and the roles of the different parties — state’s attorney, his attorney, and the judge. He testified that he did not understand courtroom procedures, or phrases such as “constitutional right,” “consult with attorney,” “inference,” or “degree” — all terms that were used by the trial judge in colloquies with Newman. Even as of the time of the federal evidentiary hearing, several years removed from his trial and with the benefit of further education and development, it was evident that Newman lacked the mental abilities of even the least sophisticated witness of normal mental capacity. Attorney Johnson was called to testify at the evidentiary hearing. The opportunity to see and hear from Johnson was valuable in that the charges leveled against him by his former client raise important issues that turn at least in part on credibility determinations. In hearing Johnson’s side of the story and watching his demeanor as he testified, the Court was left with the impression that Johnson’s shortcomings were not malicious. Rather, his deficiencies in representing Newman sprung from a failure to appreciate what should have been evident from sources within his grasp at the time of trial, including (1) what had been said to him about Newman, (2) what the available records revealed about Newman, and (3) his interactions with Newman himself. On the last point, by almost all accounts, Newman’s mental shortcomings would have been readily apparent from any prolonged engagement with Newman on any subject of seriousness or gravity— of which a murder trial certainly is an example. Thus, weighing Attorney Johnson’s credibility at the evidentiary hearing along with the other evidence presented, the reasonable conclusions to draw from the factual record include the following: (1) Johnson represented Newman at a very busy time in his professional career, (2) even if Johnson previously had represented clients with mental disabilities, he had neither spent enough time with the records nor with Newman to recognize that Newman fit into that category as well, and (3) Johnson accordingly never realized that he could not treat the Newman case like the routine cases that he handled on a high volume basis at the time of Newman’s trial. Notably, there is neither any tangible evidence nor any recollection by lawyer, client, or anyone else of any meeting between Johnson and Newman that took place anywhere other than in the “pen” (a holding area adjacent to the courtroom where defendants in custody are placed prior to being brought into court) or in the courtroom itself contemporaneously with a scheduled court hearing. That suggests that Johnson never had a lengthy, private meeting with his client either to explore potential leads, trial strategy, or competence issues. True, Johnson met with Barbara Newman on many occasions and it would not be accurate to say that Johnson did nothing to prepare for trial or try to comprehend at least some of the records in his possession. But even if the Court were to accept his recent statement recalling some “concerns” about Newman’s fitness and disregard the absence of any evidence that he ever voiced any such concerns prior to the filing of the federal habeas case, the concrete actions that Johnson took to “quiet” those concerns (Galowski, 78 F.3d at 1180) were plainly inadequate under circuit law. For instance, the record contains precious little to support Johnson’s vague recollections of what he may have done to investigate the red flags in Newman’s records. Given the lapse of time since the trial, the absence of mental recollection is not as surprising as the dearth of any corroborating materials from Johnson’s files. Moreover, Johnson’s speculation as to certain doctors with whom he may have consulted (including Drs. Schwartz, Smith, and Guttman) and certain diagnoses that he may have considered (such as intermittent explosive disorder) was convincingly undercut by the interviews and research of Newman’s counsel. And again accepting at face value Johnson’s 2011 recollections that he considered Newman’s grades and his acceptance into the Lincoln’s Challenge program as counterindicators to the nota tions in the records of mental retardation and other profound mental challenges, those counterindicators were not nearly strong enough to excuse further investigation of the red flags, which was not done in any meaningful way. At the end of the day, the best that can be said for Attorney Johnson is that he either hoped or guessed that Newman was fit to stand trial, but failed to take a number of reasonable (and readily available) steps to actually investigate whether that was so-and, following from that inaction, he failed to alert the state trial court to Newman’s mental deficits so that a judicial fitness determination could be made. Finally, the Court heard testimony from competing experts, Dr. Antoinette Kavanaugh, a psychologist who evaluated Newman in 2005, and Dr. Stafford Henry, a psychiatrist retained by the State who evaluated Newman in 2010. Both experts have appropriate (and impressive) qualifications and both provided useful insights in their testimony. Dr. Kavanaugh testimony largely tracked the opinions in her expert report — which were discussed in detail above. She noted that Newman’s cognitive deficits were apparent within minutes of meeting him and that he was unable to define important legal concepts like “witness” and “evidence” or give meaningful definitions of the roles of the judge, jury, and state’s attorney. Ultimately, Kavanaugh testified that, after considering her two interviews with Newman, her reviews of the records in this case, the tests she administered to him, interviews with other individuals who knew Newman at the time of his trial, Johnson’s interactions with Newman, and Newman’s inability to understand basic legal concepts, she concluded that Newman was not competent to stand trial in 2002. She further opined that Newman was mildly to moderately retarded and that his cognitive deficits would have been readily apparent to others at the time of trial. Dr. Henry, a forensic psychiatrist for more than fifteen years who met with Newman for approximately two hours more than eight years after trial, reached a very different conclusion than Kavanaugh. Henry’s approach was to openly challenge Newman during their two-hour session when he believed that Newman was lying. Henry opined that Newman was fit to stand trial in 2002 and was a malingerer — in other words, Henry believed that Newman has been feigning his deficits. He also testified that Newman gave accurate answers to questions about his trial, thus demonstrating an understanding of the process. Deciding which expert has the better assessment of Melvin Newman and, in particular, Newman’s fitness to stand trial as of 2002, is a difficult task. On balance, however, the Court is more persuaded by Dr. Kavanaugh’s evaluation, as it was more rigorous and comprehensive and took place much closer to the actual event in question — Newman’s 2002 trial. Kavanaugh conducted two interviews of Newman over a three-week period in 2005. During those interviews, she probed his basic cognitive skills, his ability to understand and comprehend matters relating to his trial and conviction, and his ability to retain information from one interview to the next. Most tellingly for present purposes, Kavanaugh determined that Newman was completely unable to explain what took place during to colloquies at trial when he waived his right to testify and his right to a second-degree murder instruction. If Newman could not articulate the aspects of the trial where he had not only the advice of counsel, but the added protection of the Court’s interposition and inquiry, it is difficult to imagine how he would have understood other critical aspects of the trial that unfolded without that additional safeguard. Finally, given that she was conducting a retrospective analysis, Kavanaugh sensibly interviewed others who had known Newman around the time of his trial. Respondent argues that the Court should credit Dr. Henry’s opinions over Dr. Kavanaugh’s principally on the ground that Dr. Henry is far more experienced at conducting fitness evaluations than Dr. Kavanaugh is. If all other things were equal, the Court might be inclined to use cumulative experience as a tie-breaker, even though Dr. Kavanaugh’s credentials and experience are substantial. But, as noted above, all things are not equal in regard to the experts’ work in this case. To be sure, Dr. Henry is highly credentialed and he offered a comprehensible summation of the bases for his opinions. But when placed against the full record of documents and testimony in this case, Dr. Henry’s conclusion that Newman is a malingerer who has been feigning his deficits — made after a single two-hour session with Newman eight years after the critical events took place — strikes the Court as conclusory and even abrupt. The parties have argued the relative merits of Henry’s confrontational approach against Kavanaugh’s attempt to build rapport with her interviewee. In the Court’s view, Kavanaugh’s suggestion that Henry might have first tried building rapport with Newman before engaging in cross-examination of his answers has a certain common sense appeal, especially given that Henry was conducting his examination from the distance of eight years and had never previously met Newman. But Henry is an experienced professional, so the Court will not second guess his approach to interviewing Newman. What Henry’s opinion lacks, however, is support from other people who knew Newman in the relevant time frame or from documents in the record. Henry’s assessment of Newman as a malingerer stands as an outlier among the views of the many individuals who have worked with Newman over the time frame — more than a decade — encompassed within the record of this case. While some of those individuals, most notably Whiting-ton, may have become so attached to Newman that their views must be taken “with a grain of salt,” others who have had no role in the development of the habeas case — most notably Newman’s teachers in Chicago both before and after he was in custody as well as prison officials at Menard and Macon — reported cognitive deficiencies despite what they perceived to be Newman’s best efforts. In view of these reports in the record, the Court cannot help but conclude that while Henry’s two-hour examination of Newman in 2010 might have been the start of a comprehensive analysis leading to the conclusion that Newman is a malingerer, far more investi gation, analysis, and confirmation would be needed before the Court could accept that opinion over the opposite inference that is supported by the rest of the evidence. To be sure, Henry testified that he did consult collateral documents, even if he did not interview any other individuals. Still, on balance, Kavanaugh’s opinion rested on a more thorough study that was undertaken much closer to the trial and took into account a more diverse range of documents and viewpoints than Henry’s, and thus the Court credits Kavanaugh’s conclusion that Newman was not fit to stand trial over Henry’s view that he was. 2. Performance In assessing the totality of the record against the pertinent legal standards, the Court begins with the first prong of Strickland — whether the performance of Newman’s attorney was deficient when he failed to ask for a competency hearing. The State argues that Johnson took the appropriate steps to quell any doubts that he may have had as to Newman’s fitness and therefore his performance was sufficient. However, looking at the testimony and evidence presented at the federal evidentiary hearing, as well as the parties’ briefs, the Court concludes that Johnson’s failure to conduct further investigation in light of the information at his disposal amounted to deficient performance under Strickland. First, the Court finds that Johnson performed deficiently when he failed to follow up on the red flags contained within documents in his possession, which in all likelihood would have confirmed his “concerns” about Newman’s fitness for trial and led him to call those concerns to the court’s attention. Specifically, when Newman’s mother, Barbara Newman, handed Johnson a stack of records detailing Newman’s mental limitations — including a diagnosis of “mentally retarded” by the SSA — and told Johnson that Newman went to a “special school,” Johnson had a duty to investigate. See Brown, 304 F.3d at 692 (7th Cir.2002) (counsel’s “failure to investigate will be ineffective assistance” when it is apparent from “sources of information not requiring fresh investigation, that the defendant has some mental or other condition that will repay further investigation”); Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (not any investigation will suffice; rather counsel is obligated to conduct “reasonable investigations or to make reasonable decision that makes particular investigations unnecessary”). Any investigation that he did — the scope of which remains uncertain given his vague testimony and non-existent corroborating evidence — fell far short of what is required of counsel in circumstances like these. Respondent’s arguments that (1) Johnson’s doubts were put to rest when he met with Newman at the Audy Home and (2) that Johnson was capable of making the determination because he had experience representing other mentally compromised defendants fall short for multiple reasons. To begin with, Johnson’s testimony concerning his meetings with Newman is unconvincing because it rests solely on his recollection; there simply is nothing in the record to corroborate the meetings that Johnson claims to have had with Newman. See Brown, 304 F.3d at 688 (warning against the acceptance of “post-hoc, self-serving” claims from attorneys during ineffective counsel proceedings). Second, regardless of how many times Johnson actually met with Newman in the months leading up to trial, none of Johnson’s descriptions of their meetings explain how his interactions with Newman quieted his doubts or how Johnson was qualified to make the medical determinations that he now claims to have made. To the extent that Johnson may have thought Newman suffered from ADD or ADHD, rather than mental retardation, again he was guessing, not making a reasoned assessment after adequate investigation. The other evidence that was available to Johnson indicated that Newman had an IQ of 62, scored in the lowest possible percentile on basic skills and intelligence test, consistently had trouble understanding abstract concepts, required numerous educational accommodations by the Chicago Public Schools, had been diagnosed mentally retarded by the SSA, and exhibited serious developmental problems, such as bed-wetting as a teenager. This information triggered an obligation on Johnson’s part to undertake a reasonable investigation into Newman’s fitness to stand trial and to bring any concerns in that regard to the trial court’s attention. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052; Brown, 304 F.3d at 692; People v. Brown, 31 Ill.2d 415, 418, 201 N.E.2d 409 (Ill.1964). A reasonable lawyer would have developed a bona fide doubt as to Newman’s fitness, which obligated him to conduct further inquiry and alert the trial court so that medical professionals could assess and ultimately assist counsel and the court in determining whether Newman was in fact fit to stand trial. Johnson’s failure to adhere to that standard amounted to constitutionally deficient performance. 3. Prejudice Because the Court finds that Newman has fulfilled the deficient performance prong of Strickland, it must address whether Newman was prejudiced by Johnson’s failure to seek a fitness hearing. Taking all of the evidence into consideration, the Court finds that the evidence presented at the Court’s evidentiary hearing confirms that Newman indeed suffered prejudice under Strickland. In other words, Newman has proved that there was a reasonable probability that he would have been found unfit to stand trial. First, the evidence convincingly shows that Newman was unable to provide “meaningful assistance” to his attorney in his defense. Illinois law instructs courts to consider factors such as the defendant’s “knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process.” 725 ILCS 5/104-16(b)(1). The “ability to repeat legal terms and concepts” is not enough, as it does not indicate “a full understanding of the nature of the allegations.” People v. Lucas, 388 Ill.App.3d 721, 328 Ill.Dec. 362, 904 N.E.2d 124, 128 (2009). In Lucas, the court found that the petitioner was unfit because he “had no realistic idea of the severity of the charges” and could not explain things like “who picked the jury” or how it functioned. Id., 328 Ill.Dec. 362, 904 N.E.2d at 128, 130; see also United States. v. Williams, 113 F.3d 1155, 1160 (10th Cir.1997) (finding that defendant’s ability to recite the charges against her, list witnesses, and use legal terminology is insufficient “for proper assistance in the defense requires an understanding that is ‘rational as well as factual’ ”) (quoting Dusky, 362 U.S. at 402, 80 S.Ct. 788). Here, Newman’s only real involvement in his defense was identifying his girlfriend’s brother as a potential witness and his house in a photograph. Newman was unable to understand or explain the role of the jury and other essential legal concepts that critically bear on a defendant’s competency to stand trial. See Dusky, 362 U.S. at 402, 80 S.Ct. 788 (“[I]t is not enough for the [judge] to find that the defendant is oriented to time and place and has some recollection of events’, but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.”). Newman’s description of the jury was that they “sat in the courtroom. They sat there and listened. They left out. They came back in. Somebody stood up. They said I was guilty.” Newman’s assessment does not show an understanding of how the jury makes its decision or of how Newman could have tried to influence that decision with the assistance of his lawyer. See United States v. Hardy, 2008 WL 4682218, at *7 (N.D.Okla. Oct. 22, 2008) (defendant unfit where he understood that “the role of the jury is to say you’re guilty” without understanding “how a trial is conducted”). While the Court agrees with Respondent that Newman’s low IQ alone is not enough to render him unfit for trial, Newman’s low IQ in conjunction with the overwhelming evidence of his inability to understand basic legal concepts convinces the Court that there is a reasonable probability that Newman would have been found unfit had he been granted a competency hearing. In reaching this conclusion, the Court gives substantial weight to the testimony of those witnesses who had an opportunity to observe Newman closer to the time of his trial in 2001-2002. Their testimony and supporting documentation establish that Newman was mentally retarded and functionally illiterate at the time of his trial; at the age of 16, despite trying hard, Newman could not master the alphabet, read the clock, read simple words, or retain information from one day to the next. Each of the witnesses and the bulk of the records from that time period supported the proposition that the Newman of 2001-02 was severely limited in his cognitive abilities, and rather obviously so. In regard to the two doctors’ reports' — ■ Dr. Kavanaugh and Dr. Henry — the Court reiterates that it finds Dr. Kavanaugh’s testimony and report to be more complete, more relevant, and therefore more reliable. First, Dr. Henry met with Newman more than five years after Kavanaugh did. The Court’s task is to determine whether Newman was fit to stand trial at the time of his trial in state court, not today, and therefore relative time matters at least at the margins in assessing the contradictory conclusions of the experts. Second, and most importantly, the lack of time that Henry put into his investigation compared to the other witnesses (both expert and lay) who reached a different conclusion, the absence of any test to confirm his judgment (as opposed to Kavanaugh, who did perform tests), and the abundance of corroborating evidence establishing that Newman was not malingering all undermine Henry’s opinions. The collective testimony of Whitington, Dillon, South, and Kavanaugh, as well as the documents and records dating back long before the trial (including the SSA diagnosis and Chicago Public School reports), persuades the Court that the more likely conclusion is that Newman was not malingering, but rather was suffering from severe cognitive limitations. See People v. Shanklin, 351 Ill.App.3d 303, 286 Ill.Dec. 489, 814 N.E.2d 139, 144 (2004) (“[A] defendant cannot readily feign the symptoms of mental retardation * * * It is unlikely defendant began faking systems when he was 15 or 16 years old to later use his manufactured retardation to confuse the justice system.”). As in Shanklin, it is not likely that Newman began faking his symptoms when he was a child in the Chicago Public Schools, going so far as to obtain a diagnosis of mental retardation from the SSA, all in effort “to later use his manufactured retardation to confuse the justice system.” Id. In order for Henry’s conclusions to persuade, they would have to rest on a much broader and firmer basis than they do at present. Ultimately, the Court finds Kavanaugh’s testimony and conclusion that Newman was unfit to stand trial to be credible and persuasive given the totality of evidence presented in support of her opinion. See United States ex rel. Bilyew v. Franzen, 842 F.2d 189, 193 (7th Cir.1988) (“[T]he mere passage of time may not make [a retrospective competency hearing] meaningless. The passage of even a considerable amount of time may not be an insurmountable obstacle if there is sufficient evidence in the record derived from knowledge contemporaneous to trial.”); Reynolds v. Norris, 86 F.3d 796, 803 (8th Cir.1996) (“When determining whether a meaningful [retrospective fitness] hearing may be held, we look to the existence of contemporaneous medical evidence, the recollections of non-experts who had the opportunity to interact with the defendant during the relevant period, statements by the defendant in the trial transcript, and the existence of medical records.”). Newman also has proved that he was prejudiced by his attorney’s failure to investigate obvious red flags — which Johnson himself now acknowledges raised “concerns” — in order to determine whether to request a competency hearing prior to trial. In fact, in many ways this case is closely analogous to Brown, cited above, in which the Seventh Circuit concluded its opinion by criticizing the systematic failures that ultimately landed the petitioner in federal court. The court of appeals observed that “Brown’s psychiatric illness was not given so much as a sideways glance” by those who were involved in handling and evaluating Brown’s case. Brown, 304 F.3d at 699. Here, too, Newman’s attorney possessed documentary evidence, which should have, at a minimum, prompted further inquiry. Yet any minimal inquiry that finds support in the record fell woefully short of adequacy, especially in view of the multiple avenues for exploration that went unprobed. In addition to the prejudice set forth above, one final point is worth mentioning. The state trial court’s conclusion that Newman was fit to stand trial (rendered after trial) not only evinced a fundamental misunderstanding of what could constitute a mental deficiency — “If he was drooling or if his eyes were going someplace, counsel, I assure you, I would have sua sponte asked for a fitness hearing” — but also defied common sense. The judge’s only articulated reasoning — “In fact, it wasn’t a yes-or-no matter when I asked him about the second degree murder instruction. He replied no.” — doesn’t hold up under any conceivable interpretation. Answering “no” to a question that does not call for a yes-or-no answer was a clear sign of trouble, not a justification for finding Newman mentally fit. In sum, Newman did not receive the competency hearing to which he was entitled to prior to being tried for murder. Thus, taking into consideration all of the evidence from the state court record as well as the evidentiary hearing, the Court concludes that Newman indeed suffered prejudice under Strickland by demonstrating that there was a reasonable probability that he would have been found unfit to stand trial had a competency hearing been held. III. Conclusion For the reasons stated above, pursuant to § 2254(d) and on the basis of the state court record alone, the Illinois courts unreasonably concluded that Newman was not prejudiced by his attorney’s failure to explore his fitness to stand trial and bring the issues related to his mental competency to the state trial court’s attention. In addition, the state court record alone con tains enough evidence to establish that Johnson provided ineffective assistance of counsel by failing to investigate known deficiencies in Newman’s mental capacity and to raise with the trial judge Newman’s fitness to stand trial. The additional testimony and evidence presented in the federal evidentiary hearing further supports the Court’s conclusions that Johnson’s performance fell below the constitutional minimum and that Newman was prejudiced by his counsel’s performance because there is a reasonable probability that Newman would have been declared unfit to stand trial at a competency hearing. Therefore, the Court finds that pursuant to § 2254(a) Newman is being held in custody in violation of the Constitution or law or treaties of the United States and grants Newman’s request for a writ of habeas corpus. The Court directs Respondent to release Newman unless, within 180 days of this order, he is given a new trial on the charges against him should he be found fit to stand trial. See Richardson v. Hardy, 855 F.Supp.2d 809, 846 (N.D.Ill.2012). AMENDED MEMORANDUM OPINION AND ORDER On November 8, 2012, the Court granted Petitioner Melvin Newman’s petition for a writ of habeas corpus and ordered that the State of Illinois release or retry him within 180 days [78]. On December 3, 2012, Respondent simultaneously filed a timely notice of appeal with the Seventh Circuit, seeking review of the Court’s decision, and a motion for stay of judgment pending appeal [79], maintaining that it should not be required to retry Petitioner before resolution of the appeal. Petitioner has both objected to the stay motion and cross-moved for Petitioner’s release on recognizance [96]. For the reasons set forth below, the Court grants in part and denies in part Respondent’s motion for stay of judgment pending appeal [79] and grants Petitioner’s cross-motion for release on recognizance without surety [96] subject to the conditions set forth herein. I. Applicable Standards Consideration of whether to grant a stay and whether to grant a successful habeas petitioner’s motion for release on bond both are controlled by Federal Rule of Appellate Procedure 23(c) as well as the U.S. Supreme Court’s decision in Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Under Rule 23(c), there is a presumption of release pending appeal where a petitioner has been granted habeas relief. However, the presumption can be overcome if the traditional factors regulating the issuance of a stay weigh in favor of granting a stay. See O'Brien v. O’Laughlin, 557 U.S. 1301, 130 S.Ct. 5, 174 L.Ed.2d 602 (2009) (Breyer, J., in chambers). These factors are: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured ab sent a stay; (3) whether issuance of a stay will substantially injure the other parties in the proceeding; and (4) where the public interest lies. Hilton, 481 U.S. at 778, 107 S.Ct. 2113; O’Laughlin, 557 U.S. at 1301, 130 S.Ct. 5. The Hilton Court summarized how to weigh whether the factors rebut the Rule 23’s presumption as follows: “Where the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release.” Hilton, 481 U.S. at 778, 107 S.Ct. 2113. Among the matters that a court should consider are the possibility of the petitioner’s flight; any showing by the respondent of a risk that the petitioner will pose a danger to the public if released; and the state’s interest in continuing custody and rehabilitation pending a final determination of the case on appeal. Id. at 777, 107 S.Ct. 2113. II. Analysis In granting habeas relief, the Court concluded that Petitioner’s counsel provided constitutionally ineffective assistance by failing to investigate and raise the issue of his fitness to stand trial, even though counsel received a stack of records detailing Petitioner’s mental limitations, including a Social Security Administration document concluding that Petitioner was mentally retarded and a psychologist’s evaluation that put Petitioner’s IQ in “the national percentage rank of 1.” Cognizant that Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), “chang[ed] the landscape that applies to ineffective assistance of counsel habeas cases,” prior to issuing its opinion granting habeas relief, this Court looked to guidance from the Seventh Circuit on how to proceed and applied the procedure set forth by the Seventh Circuit in Mosley v. Atchison, 689 F.3d 838 (7th Cir.2012). In its decision, the Court limited its § 2254(d) analysis to the record before the state court at the time it reviewed the claim and only considered the evidence adduced at the evidentiary hearing to determine whether Petitioner was being held in violation of the constitution pursuant to § 2254(a). Courts have determined that “a substantial case on the merits” is “largely interchangeable” with establishing “reasonable probability” or a “fair prospect” of success, or that “serious legal questions * * * [are] raised.” Lair v. Bullock, 697 F.3d 1200, 1204 (9th Cir.2012). The standard requires more than demonstrating a “better than negligible” or “a mere possibility” of success on appeal, but something less than establishing that success is “more likely than not.” Id. Respondent acknowledges that the Court “analyzed petitioner’s claims within the proper legal framework,” but maintains that the state court’s decision does not lie “well outside” the boundaries of permissible differences of opinion and that the Court came to “an erroneous legal conclusion.” In addressing these issues, Respondent points out the “dissonance” associated with a district court’s consideration of “the likelihood of being reversed.” On the one hand, the Court would not have issued its decision granting habeas relief unless it believed the decision to be correct and consistent with the controlling decisions of the Supreme Court and the Seventh Circuit as well as the applicable statutes. On the other hand, the Court appreciates the exacting standards for habeas relief, the relative infrequency with which habeas relief is granted, and Respondent’s firmly held view that the Court’s decision is incorrect. With that said, however, the Court is not convinced that Respondent’s arguments create a reasonable probability that the Court’s decision will be reversed. First, the Court applied the proper legal framework. Second, the state trial court did not merely make a questionable ruling; rather, in this Court’s view, the ruling “evinced a fundamental misunderstanding of what could constitute a mental deficiency.” Further, the Court’s reliance on analogous Seventh Circuit decisions in support of its conclusion bolsters its decision. See, e.g., Wilson v. Gaetz, 608 F.3d 347 (7th Cir.2010); Brown v. Sternes, 304 F.3d 677 (7th Cir.2002). Indeed, in its analysis, the Court concluded that Petitioner’s trial counsel exerted even less effort on behalf of its client than the attorney in Brown, a case in which the Seventh Circuit reversed the district court’s denial of a habeas petition and concluded that counsel failed to fulfill his duty to investigate his client’s fitness. Finally, the state appellate court’s decision that an unrebutted expert report concluding that Petitioner was unfit at trial was “irrelevant” was almost certainly unreasonable. As the foregoing summary indicates, even without considering what took place at the evidentiary hearing, the Court does not believe that Respondent would likely prevail on appeal. However, when the Court adds to the mix its own observations at the evidentiary hearing, Respondent’s case grows weaker, not stronger. Even taking into account Petitioner’s recent educational improvements and achievements— as the Court did in its ruling — Petitioner’s mental acuity was “noticeably lower than any other witness” who had ever testified before the Court. Additionally, the Court heard extensive testimony from experts on both sides and, as demonstrated in its opinion, considered all of it before concluding that Dr. Kavanaugh’s thorough study — undertaken much closer to trial and consisting of a more diverse range of documents and viewpoints — was more credible and ultimately more accurate. The balance of the remaining factors, to the extent they are even considered when Respondent has failed to demonstrate a substantial case on the merits, weigh in favor of releasing Petitioner (but, as demonstrated below, not necessarily in favor of denying a stay altogether). The injury that Petitioner will suffer by continued detention is undeniably irreparable. The Court notes the presumption of release established by Rule 23(c) and further notes that every day Petitioner spends in prison compounds the “substantial harm” that he has suffered on account of imprisonment based upon an unconstitutional conviction. See Harris v. Thompson, No. 12-1088 (7th Cir. Feb. 20, 2013) (slip opinion) (modifying State’s deadline for retrial, releasing petitioner, and noting that the “harm to [petitioner] is self-evident: Maintaining the status quo increases the length of time she spends in prison on an unconstitutional conviction * * * * Any harm to the State pales in comparison.”). The fact that Petitioner already has spent more than 12 years in prison does not mean that the Court can disregard the harm he will suffer from further imprisonment. See also Hampton v. Leibach, 2001 WL 1618737, at *2 (N.D.Ill. Dec. 18, 2001). As then-District Judge Williams wrote in addressing similar circumstances: It would be intolerable that a custodian adjudged to be at fault, placed by the judgment of the court in the position of a wrongdoer, should automatically, by a mere notice of appeal prolong the term of imprisonment, and frustrate the operation of the historic writ of liberty * * * * The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty’ * * * * Certain it is, at least, that the write may not be thwarted at the pleasure of the jailer * * * * Little would be left of this, the greatest of all writs * * * if a jailer were permitted to retain the body of his prisoner during all the weary processes of an appeal * * *. U.S. ex rel. Cross v. DeRobertis, 1986 WL 12590, at *3 (N.D.Ill. Nov. 3, 1986) (quoting Justice Cardozo’s opinion in People ex rel. Sabatino v. Jennings, 246 N.Y. 258, 158 N.E. 613 (C.A.N.Y.1927) (internal quotations omitted)). Justice Cardozo’s sentiments and Judge Williams’ ruling apply with equal force in the present case. Additionally, the public interest does not tilt the balance in favor of continued incarceration. The public has a significant interest in ensuring that individuals are not imprisoned in violation of the Constitution. With respect to Petitioner’s danger to society, the Court recognizes the seriousness of the murder charge of which Petitioner was convicted, albeit following a constitutionally deficient trial. Yet Petitioner had no record of a violent criminal history pri- or to his arrest in the case at issue, and Respondent has made no attempt to show that Newman poses a current risk, twelve years after the events at issue (for example, there is no indication that he has committed any acts of violence while incarcerated). See also Hampton, 2001 WL 1618737 at *2 (noting that the petitioner had no criminal history, not even an arrest, other than the charges that were the subject of the habeas corpus petition); McCandless v. Vaughn, 1999 WL 1197468, at *2 (E.D.Pa. Dec. 14, 1999) (finding no current danger resulting from defective seventeen-year-old murder conviction). Indeed, “[i]f the mere fact of having been convicted in the case to which a habeas corpus petition is directed was enough to overcome Rule 23(c)’s presumption of release, the presumption would be meaningless.” Hampton, 2001 WL 1618737 at *2. Further, in his 12 years in the Cook County Department of Corrections and the IDOC, Petitioner has not attempted escape, assaulted anyone, or possessed any weapons in the facility. In fact, Petitioner’s prison record includes only three disciplinary incidents, all non-violent, during his time in custody. Respondent raises a concern that Petitioner has affiliated himself with a gang (the Gangster Disciples) during his incarceration. But the indication of any gang involvement appears to be minimal — resting on an abbreviation placed on one of Petitioner’s prison records. To be sure, gang activity is a proper consideration when considering release, but there is no concrete manifestation of any such activity on the record before the Court. Moreover, the strict conditions of release make it highly unlikely that Petitioner would associate in any fashion with Gangster Disciples or any other gang and carry with them the possibility of swift revocation of his release if he does. Finally, having heard from multiple witnesses at the evidentiary hearing who described Petitioner as respectful and cooperative and having personally observed Petitioner’s conduct during the hearing, the Court does not view Petitioner as a present danger to the community if he is released subject to the conditions set forth below. The Court also concludes that Petitioner is not a flight risk. He is a 28-year-old mentally retarded individual who has been incarcerated since the age of 16. His mother (Barbara Newman), father (Melvin McLain), maternal grandmother (Loristene Cummings), and aunt (Victoria Kelly) are all long-time residents of Chicago. Petitioner also has a son who lives with Ms. Cummings in Chicago. Additionally, Petitioner, with the aid of his mother, turned himself into police when he learned that he was a suspect in this crime back in 2001. Taking into account Petitioner’s noted deficiencies and lack of financial means, it is highly unlikely that Petitioner could successfully flee the jurisdiction of the Court. Additionally, even if the risk were deemed inherent, the Court will set conditions of Petitioner’s release, including electronic monitoring, to minimize any such risk. Those conditions will not, however, include a surety. Rule 23(c) permits release “with or without surety.” The Court is persuaded that even if Petitioner or a family member had any significant assets' — and all indications are that they do not — the other conditions of release are sufficient to assure Petitioner’s appearance at all further federal or state court proceedings. Respondent argues that it “will suffer irreparable injury as a result of having to prosecute an expensive and difficult retrial more than a decade after the crime took place, particularly when such a trial may be rendered unnecessary by a successful appeal.” However, the case law holds to the contrary: “[t]he ordinary incidents of litigation — the time and other resources consumed — do not constitute irreparable harm.” See Crist v. Miller, 846 F.2d 1143, 1144 (7th Cir.1988); see also Conkright v. Frommert, 556 U.S. 1401, 129 S.Ct. 1861, 173 L.Ed.2d 865 (2009) (Ginsburg, J., in chambers) (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), for the proposition that “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough”). The Cook County State’s Attorney’s Office, with over 800 lawyers, has responsibility for retrying this case. While Cook County undoubtedly has a sizeable caseload, the number of attorneys employed by the County alone cuts against Respondent’s irreparable injury claim. While it is no doubt true that attention will have to be diverted from “more recent cases to devote to “retrying petitioner’s decade-old murder case,” the same can be said anytime a court orders a new trial. Even among that relatively small universe of cases, it strikes the Court that this is the kind of case that deserves especially prompt attention, given that it involves a murder charge against a defendant with severe, documented mental impairments who faces decades of imprisonment. Finally, the Court notes that the prior trial lasted only two days and the State’s Attorney’s Office no doubt retains the complete case file in its possession. To be sure, the wind-up to any retrial may well involve a competency hearing and the trial itself may last longer than two days. But this is not a complex case and the imposition on the State’s Attorney’s Office is correspondingly minimal in the grand scheme of its mission and resources. This is especially true in view of the unconstitutional defects identified in the Court’s November 8 opinion that marred Petitioner’s prior trial, which resulted in a conviction for which he has been imprisoned for a dozen years. Although the Court is not persuaded that Respondent will suffer irreparable injury based on having to dedicate time and resources to Newman’s retrial, Respondent’s position that a retrial may be rendered unnecessary by a successful appeal merits further consideration. The Court agrees that it is appropriate to permit the State to defer any actual retrial of Newman — if the State choses that path— until the conclusion of its appeal to the Seventh Circuit. As noted above, any attempt to predict the likelihood of reversal of its own decision places the Court in the awkward position of second guessing its own work. But if the Court’s decision is reversed on appeal, the State could be forced to retry a matter that never should have been retried, and, even more problematic, that retrial could end in an acquittal before the Seventh Circuit issues a decision on the state’s appeal. See, e.g., DeRobertis, 1986 WL 12590, at *1 (granting stay pending appeal after noting that “if the court denies their motion to stay, it effectively will have denied the respondents their right to appeal,” especially if the deadline for retrial expires before the decision on appeal is rendered). To avoid such a conundrum, the Court draws on a recent Seventh Circuit order setting forth a “reasonable resolution of the competing interests” at stake in circumstances like these. Harris v. Thompson, No. 12-1088, Order at 4 (7th Cir. Feb. 20, 2013) (ordering a successful habeas petitioner released from prison pending disposition of the State’s petition for certiorari and extending deadline for State to decide whether to retry petitioner). As in Harris, the Court will order Petitioner to be released on reasonable conditions while also extending Respondent’s time to decide whether to retry Petitioner until 14 days after the Seventh Circuit issues an opinion disposing of the appeal. Recognizing, as the Seventh Circuit did, that “the State should be able to prepare for retrial and [Seventh Circuit] review simultaneously” (id.), the State should prepare for retrial (if that is the intended path) while its appeal in the Seventh Circuit is pending so that it can meet the revised deadline for deciding whether to retry Petitioner and proceed expeditiously to trial. See 725 ILCS 5/103-5(a), (b) (2013). III. Conclusion Consistent with the discussion above, the Court grants in part and denies in part Respondent’s motion for stay of judgment pending appeal [79]. Specifically, the Court extends the deadline for deciding whether to proceed to a retrial of Petitioner until 14 days after the Seventh Circuit issues a ruling on Respondent’s appeal. In addition, the Court grants Petitioner’s cross-motion for release on recognizance without surety [96] but subject to the conditions set forth below. Pursuant to Federal Rule of Appellate Procedure 23(c), Petitioner Melvin Newman is ordered to be released from prison effective at noon C.S.T. on Wednesday, March 13, 2013, and shall be subject to supervision by the United States Probation Officer for the Northern District of Illinois on the following conditions: 1.Petitioner Newman must report to the U.S. Probation Office for the Northern District of Illinois, 55 East Monroe Street, Room 1500, Chicago, Illinois, within 48 hours of his release from the Illinois Department of Corrections facility where he is currently housed — that is, no later than noon C.S.T. on Friday, March 15, 2013. He shall continue to report to the Probation Office periodically as directed by the United States District Court or the Probation Office. 2. Petitioner shall not commit any federal, state, or local crime. 3. Petitioner shall not unlawfully use or possess a controlled substance. The Court may order periodic drug testing if deemed advisable. 4. Petitioner shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. 5. Petitioner shall not leave the Northern District of Illinois without the permission of the United States District Court or the Probation Office. 6. Petitioner shall answer truthfully all inquiries by the Probation Office and follow the instructions of the Probation Office. 7. Petitioner shall refrain from excessive use of alcohol. 8. Petitioner shall reside with his mother, Barbara Newman, as third-party custodian and shall notify the Probation Office at least 10 days prior to any change in residence or employment. 9. Petitioner shall not frequent places where controlled substances are illegally sold, used, distributed, or administered. 10. Petitioner shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the Probation Office. 11. Petitioner shall permit a Probation Officer to visit him at any time at home or elsewhere and shall permit confiscation of any contraband observed in the plain view of the Probation Officer. 12. Petitioner shall notify the Probation Office within 72 hours of being arrested or questioned by a law enforcement officer. 13. Petitioner shall, as directed by the Probation Office, notify third parties of risks that may be occasioned by his criminal record or personal history or characteristics and shall permit the Probation Office to make such notifications and to confirm Petitioner’s compliance with such notification requirement. 14. Petitioner shall be placed on electronic monitoring under the standard conditions for electronic monitoring employed by the Probation Office in this district. 15. Prior to March 13, 2013, counsel for Petitioner shall provide to the Court and the Probation Office all contact information, including address and telephone number(s), for Barbara Newman. In the event that Petitioner believes another relative would be a more suitable third party custodian, counsel for Petitioner shall file a motion to amend this order as soon as possible. The Court reserves the opportunity to hold a hearing, on its own motion or on motion of any party, to consider whether to modify these conditions at any time. See Harris, Order at 6. . As the Court noted in its previous opinion, as long as mental retardation generally persists in a relatively constant state (see DSM-IV, at 40 (noting that cognitive IQ "tends to remain a more stable attribute” than adaptive functioning)), a recent evaluation provides fairly strong circumstantial evidence of what Newman's condition was like prior to his conviction. The Illinois Appellate Court's conclusion is different only in degree, not in kind, from concluding that DNA from a blood-laden crime scene is "irrelevant” because it does not tell you about the blood's characteristics before it was spilled. . In addition to the evidence discussed above, Petitioner also contends that Johnson knew that his client could not meaningfully assist in his own defense and sought to conceal that information from the trial court. Specifically, Newman alleges that Johnson told him, before going "up in front of the Judge, 'You watch me, if I tap my leg once, say yes, and if I tap it twice, say no.' " Johnson vigorously denies that any such "leg tapping” incident took place. This allegation pits the testimony of Melvin and Barbara Newman against Attorney Johnson's testimony, without any additional corroborating evidence. There is no suggestion that Barbara Newman was privy in advance to any such plan, so her testimony would rest on conjecture from what she observed in the courtroom on the day of the hearing in question. The Court finds Attorney Johnson’s version of events more likely to be the accurate one, for it is unlikely that such a charade would have gone unnoticed by the trial judge or opposing counsel. But even without considering any evidence that counsel tried to conceal Newman's mental deficits from the trial judge, there is ample evidence of inadequate investigation on Johnson’s part. . Whitington left the Audy Home in August of 2002. She received the Milken National Educator Award in 2007, in recognition of her success teaching literacy to special education students. . Apart from pointing out a potential bias based on Whitington's obvious sympathy for her former student, Respondent's criticisms of Whitington’s testimony largely miss the mark. The fact that she gave more detailed testimony as a live witness than as an affiant on a prior occasion does not undercut the weight of her descriptions of Newman’s mental functioning at the time that he was her student, particularly in view of the consistency between those observations and the recollections of others both at the Audy Home and Menard Correctional Center. .Dillon has been teaching special education for more than twenty-five years. . As noted above, it was evident to the Court on the basis of its one opportunity to observe Newman in person during the evidentiary hearing — and especially during his testimony — that Newman's mental acuity is noticeably lower than any other witness who has testified at any proceeding over which the undersigned judge has presided. . The Court also heard testimony from Barbara Newman, who is Petitioner Melvin Newman's mother. As Respondent observes, because Ms. Newman "is a devoted mother” who wants to aid her son, the Court views her testimony cautiously. Yet, as Petitioner points out, many of the historical facts to which Ms. Newman testified are corroborated by independent sources and records, which enhances the credibility of her recollections. To be sure, it is evident that Ms. Newman consciously tried to avoid referring to her son as "mentally retarded,” preferring instead to characterize him as "special” when alluding to his mental challenges and deficits. But it is not disputed that she provided Attorney Johnson with a large quantity of documents that set forth in a more direct manner than Ms. Newman would have the kinds of observations and diagnoses that should have tipped Johnson off to the need to investigate his client's fitness for trial. Thus, even if Barbara Newman was overly circumspect in describing her son’s mental abilities to his lawyer, her description of Melvin as "special” along with the documents that she provided to Johnson cannot be said to have "throw[n] [Johnson] off the scent,” nor can her actions have reasonably "closed off” a path of inquiry that Johnson should have taken. See Thomas v. Gilmore, 144 F.3d 513, 515 (7th Cir.1998). . Lincoln’s Challenge Academy essentially is a youth intervention program that attempts to teach life skills to at risk students using a military model. Johnson testified that based on his familiarity with the program, a person with a serious mental deficit would not have been accepted into Lincoln's Challenge. . The Court's confidence in its conclusions about Newman’s lack of comprehension of his predicament at the time of his trial — including the level of his understanding of his trial rights and the limited degree to which he was able to assist counsel in mounting a defense— is reinforced by Johnson’s admission that he never tried to explain to Newman the respective roles of the judge, jury, or prosecutors, nor did he explain to Newman how much time he might spend in prison if he were convicted of the charges. In any event, even if Johnson had explained various aspects of the trial, given his lack of appreciation of Newman’s cognitive deficits, it is unlikely that Newman would have understood because the language Johnson would have used (as reflected in his testimony at the evidentiary hearing) was, in Kavanaugh’s well-supported opinion, far too complex. . The Court recognizes that in its prior order, it set a deadline for retrying Petitioner, not simply deciding whether to proceed with a retrial. Upon further reflection, with the benefit of the Seventh Circuit's guidance in Harris and taking into account that the competency issue may complicate pre-trial matters, the Court concludes that it should deny the stay— thereby moving the case forward toward retrial if the Seventh Circuit does not reverse and the State intends to proceed to a retrial— but not set a fixed date by which the actual trial must commence. This resolution also gives proper respect to the assigned state trial court judge in the prioritization of this matter among all of the matters on his or her own docket. . Finally, the Court notes that, given Petitioner’s noted mental deficiencies, it will be incumbent on Petitioner’s experienced habeas counsel to ensure that he understands the current posture of this litigation. In particular, Petitioner must be made aware that his release pending appeal (and possible retrial) may be of short duration and that he may be incarcerated again if Respondent wins on appeal or if Respondent loses on appeal and Petitioner is convicted after a retrial.

MEMORANDUM OF DECISION AND ORDER SPATT, District Judge. This action was commenced by the Plaintiff Patricia Dillon, M.D., M.P.H. (“Dr. Dillon” or “the Plaintiff’) seeking compensatory damages, punitive damages, equitable relief, and attorneys’ fees based on the Defendants (1) taking adverse employment actions against her, including but not limited to suspending her from employment without pay and bringing charges against her pursuant to New York State Civil Service Section 75, all in retaliation for her exercise of free speech, speaking as a citizen regarding a matter of public concern in complaining of consciously indifferent medical treatment of prisoners and possible prisoner abuse in the Riverhead Correctional Facility in Suffolk County, New York; and (2) taking adverse employment actions against Dr. Dillon in violation of New York Civil Service Law § 75-b, by retaliating against her for reporting illegal conduct and/or conduct that she reasonably believed constituted improper government action. Thus, Dr. Dillon asserts (1) a First Amendment retaliation claim and (2) a claim pursuant to the New York State whistleblower statute against the Defendants Suffolk County, Dr. Humayun Chaudhry, and Dr. Vincent Geraci. Presently before the Court is the Defendants’ motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part. I. BACKGROUND The Plaintiff Patricia Dillon is a medical doctor who worked as a high-ranking public health employee of Suffolk County from 2001 through August 2007. On August 22, 2007, Dillon was transferred from her administrative public health position to Suffolk County’s Riverhead Correctional Facility, where she was assigned to provide primary health care to individual prisoners. Dr. Dillon alleges that she was transferred by the newly appointed Suffolk County Commissioner of Health Services, Defendant Humayun Chaudhry, D.O. (“Dr. Chaudry”). In her new position, she reported to Defendant Vincent Geraci, M.D. (“Dr. Geraci”), the Medical Programs Administrator of the Jail Medical Unit (“JMU”) of the Suffolk County Department of Health Services. Dr. Dillon does not state why she was transferred to the Suffolk County Jail, and this transfer does not form the basis of any of her claims. According to the Plaintiff, she never received an oral or written description of her new assignment. On September 4, 2007, Dr. Dillon met with Dr. Geraci to discuss her new assignment in the JMU. At that time, he explained to Dr. Dillon the nature and procedures of the JMU. The Plaintiff claims that during the course of this discussion, Dr. Geraci told her that JMU (1) routinely denied methadone to patients in methadone maintenance programs; (2) does not provide asthma inhalers to patients; and (3) delays starting patients on medications for several days after they arrive. On the following day, September 5, 2007, Dr. Geraci requested that the Plaintiff assist him with chart reviews. While observing these charts, Dr. Dillon noted that several patients were receiving inadequate treatment. For example, one chart showed that a patient had received no treatment for broken ribs; not even pain medication. She raised her concerns with Dr. Geraci. In addition, on that same day, Dr. Dillon expressed her concern to Rick Kaufman, a social worker at JMU who serves as Dr. Geraci’s second-in-command. For the next day and a half, the Plaintiff was assigned to the file room and directed to help file charts and conduct chart reviews. In the course of doing so, she once again observed further evidence of inadequate medical treatment and possible prisoner abuse. Dr. Dillon then made photocopies of the relevant portions of these charts. Again, Dr. Dillon reported her concerns to Dr. Geraci, but her concerns were dismissed. In particular, he denied Dr. Dillon’s suggestion that federal and/or state authorities be contacted to perform an outside audit of the JMU. On September 6, 2007, Dr. Dillon also called Paul Sabati no, the Chief Deputy County Executive, to discuss some of her concerns regarding the order and dispensation of pharmaceuticals at the JMU. On September 7, 2007, Dr. Geraci told Dr. Dillon that because she was a female, she would need to start seeing OB/GYN patients. At that time, the Plaintiff explained that she did not have the necessary experience or training in gynecology and was also not properly credentialed to treat patients in this area. Nevertheless, Dr. Geraci told her that he would have one of the nurse practitioners train her in gynecology and would take care of filing the appropriate paperwork in order for her to receive the proper credentials. On that same day or the following Monday, September 10, 2007, Dr. Dillon also expressed her concerns to John Heilbrunn, a contracts administrator with Suffolk County Health Services. She explained to him that she had been working at JMU for approximately one week and that she had learned that necessary medications were not being prescribed; that prescribed medications were not being administered to patients; that there was an unwritten policy requiring nurses to list unadministered medications as having been administrated by a fictitious nurse; that abnormal test results were removed from charts; that injured and acutely ill patients were being neglected and left untreated; that required diagnostic tests were not being performed; and that mistreatment of patients was being covered up. On September 10, 2007, the Plaintiff reached out to the Defendant, Dr. Chaudhry, and informed him of her various concerns. She told Dr. Chaudhry that Dr. Geraci had instructed her that inmates are entitled to a less standard of medical care than the general population. The Plaintiff also notified Dr. Chaudhry that when patients at the JMU were not administered medication, the staff was instructed to note that the medication had been administrated by a fictitious nurse. On that same day, Dr. Geraci received a questionnaire from the Suffolk County Director of Compliance, which listed various areas of competency that would be required for the Plaintiff to be credentialed to practice gynecology. Dr. Geraci instructed Dr. Dillon to sign the papers and attest that she was competent in these various areas, but she refused, stating that she did not know how to perform the listed procedures. In response, Dr. Geraci insisted that Dr. Dillon pursue whatever steps were necessary to receive the credential or submit a written refusal to see patients. Dr. Dillon then reiterated her concerns about the level of care at the JMU, and informed Dr. Geraci that she had contacted her union and they had advised her not to sign anything. Dr. Geraci then demanded that Dr. Dillon leave the JMU and she was escorted off the premises. It appears that from September 4, through September 11, 2007, Dr. Dillon photocopied “problematic” charts and brought them to Dr. Geraci’s attention. On September 11, 2007, Dr. Dillon reported to work as she had on previous days, but was told by a file clerk that she needed to speak with Dr. Geraci before filing any charts. She was then called into Dr. Geraci’s office, where Rick Kaufman was present. At this meeting, Dr. Dillon was told that she was being moved from the file room to an exam room, and she was handed a new protocol that forbade her from photocopying patient charts. After this meeting, she stopped photocopying any documents. Later that day, Dr. Chaudhry responded to an earlier email from the Plaintiff regarding her concerns about the medical treatment in the JMU, and wrote to her that “as a reminder, Dr. Geraci is your immediate supervisor and it is correct to work with him in the chain of command to clarify any questions or confusion you may have about Jail Medical Unit (JMU) operations or your role in them.” On September 13, 2007, shortly after the Plaintiff arrived at work, she was called into Dr. Geraci’s office, where John Heilbrunn and three men in plainclothes with handcuffs on their person were waiting. Dr. Geraci demanded that the Plaintiff turn over any photocopies she had made of patients charts. Dr. Dillon failed to comply, and at that time Dr. Geraci informed her that she was being suspended for thirty days without pay. He then had the three men escort her off the premises with her hands held behind her back. The Defendants have a completely different account of the events at the JMU. For instance, the Defendants assert that the Plaintiff was directed to perform OB/ GYN procedures only because she explained she was afraid to be around male inmates as a result of a prior incident in her career. In addition, the Defendants contend that during the course of her one week in the JMU, Dr. Dillon refused to familiarize herself with the procedures employed in the JMU and refused to fill out appropriate credentialing materials which apparently were necessary as a pre-condition for her to see and treat inmates/patients. Finally, the Defendants claim that Dr. Dillon was observed photocopying inmate medical records, and upon inquiry from Dr. Geraci, Dr. Dillon untruthfully stated she was doing so as the request of Clare Maser, a Senior Clerk Typist assigned to the JMU. Both parties agree that Dr. Dillon refused to turn over photocopies of these documents when requested. On September 14, 2007, the Defendants filed a complaint against Dr. Dillon with the New York State Office of Professional Misconduct, accusing her of malfeasance in the copying of records. This ultimately resulted in an investigation that has since been closed. On or about September 25, 2007, Dr. Dillon was served with Disciplinary Charges pursuant to New York State Civil Service Law Section 75. The County alleged that the Plaintiff was insubordinate in refusing to obey an order to return all photocopies of prisoner medical records; in failing to obey an order to participate in a mandated training process; and in refusing a direct order to complete required credentialing paperwork. In addition, the County alleged that she violated Suffolk County Health Department Rules and Procedures by making photocopies of confidential inmate medical records and doing so without prior consent on two separate occasions. (Def. Ex. E.) These charges were incorporated into an Amended Statement of Charges and Notice of Hearing, which was dated March 17, 2008. The Plaintiff was served with these charges on May 17, 2008. (Def. Ex. F.) Meanwhile, on November 13, 2007, the Plaintiff filed the instant lawsuit in the Eastern District of New York. According to the Plaintiff, this instigated further retaliatory conduct, which intensified. On November 13, 2007, the Defendant removed Dr. Dillon from the payroll without notifying her. She was not reinstated to the payroll until February 12, 2008. In addition, on November 15, 2007, Dr. Dillon received a notice that the County was going to terminate her health insurance benefits effective November 18, 2007, unless she immediately paid the health insurance premiums, which the Plaintiff claims she did. Nevertheless, on December 3, 2007, the County canceled her health insurance. Her health insurance was not reinstated until January 15, 2009. As another example of alleged retaliatory conduct, the Plaintiff was directed to undergo a psychological examination on December 14, 2007. On several occasions in January 2008, Dr. Dillon spoke to Chris McPartland, the Suffolk County District Attorney’s Government Corruption Bureau Chief, as well as a representative of the Suffolk County Attorney’s Office, regarding her concerns about both the medical treatment of prisoners at the Riverhead Correctional Facility, as well as the forgery and adulteration of medical records. On January 24, 2008, the Plaintiff was reassigned to a new position in the Southampton Clinic. The Plaintiff raises several issues with regard to Dr. Wickramaaratachi, the Medical Director of the facility, including that he assigned her to do OB/ GYN tasks despite her lack of experience and training in that field. Also, he directed the Plaintiff to bill Medicaid with a computer that had been pre-programmed to falsely attest that she was board-certified in Family Practice, which the Plaintiff refused to do. According to Dr. Dillon, during the time that she was assigned to the Southampton Clinic, from February 2008 through May 2008, she repeatedly requested that she be provided with medical textbooks to review and receive formal medical training in Primary Care medicine, but her requests were refused by the Defendant. The Defendants dispute that this occurred. On or about May 14, 2008, the Defendants transferred Dr. Dillon to the River-head Clinic. At this facility, she was directed to not go near patients or medical charts, and was assigned to a solitary room where she was only allowed to exist for a lunch period and two fifteen minute breaks. On April 23, 2008, the Plaintiff filed an Article 78 Special Proceeding under the New York Civil Practice Law and Rules (“CPLR”), seeking a finding that the County had illegally transferred her from her prior position to the new position at the JMU, and that the County had failed to perform its lawful duties by serving the Plaintiff with Section 75 charges of misconduct pursuant to the Civil Service Law, and by violating the provisions of the Collective Bargaining Agreement. (Def. Ex. H.) On March 26, 2009, New York State Supreme Court Justice Paul J. Baisley issued a decision which denied the Plaintiffs petition in its entirety. (Def. Ex. I.) In particular, the Court found that the transfer of the Plaintiff to the JMU was proper, and that the institution of the Section 75 Charge was lawful and proper. The Plaintiff was eventually terminated, effective February 10, 2009. II. DISCUSSION A. Legal Standard It is well-settled that summary judgment under the provisions of Fed.R.Civ.P. 56(c) is proper only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” within the meaning of Fed.R.Civ.P. 56 when its resolution “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In determining whether an issue is genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989)). Once the moving party has met its burden, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere “metaphysical doubt” upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Summary judgment is appropriate when the moving party can show that “little or no evidence may be found in support of the nonmoving party’s case.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir.1994) (citations omitted). B. As to the Plaintiff’s First Amendment Retaliation Claim The Plaintiff claims that after she spoke to various Suffolk County officials regarding her concerns over the deliberate indifference of medical treatment and the abuse of prisoners at the Riverhead Correctional Facility; the alteration and destruction of medical records; and the possible misuse of drugs; she was retaliated against by the filing of the New York State Civil Service Discipline Charges for misconduct while she worked at the JMU from September 4, 2007 through September 13, 2007. In addition, the Plaintiff alleges that after she filed the instant case, she was retaliated against again by the County’s actions in filing additional Discipline Charges for misconduct in early 2008. The Plaintiff also alleges a number of other retaliatory acts, including her removal from the County payroll; her health benefits being temporarily terminated; the required psychological examination; and the filing of a complaint against her with the New York State Office of Professional Misconduct. The Second Circuit has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.” Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). Where a plaintiff is a public employee and brings a claim based on allegations of retaliation for speech protected by the First Amendment, as in the present case, the three-part test articulated in Johnson v. Ganim, 342 F.3d 105 (2d Cir.2003) provides the relevant inquiry. See Martir v. City of New York, No. 07 Civ. 7922, 2009 WL 2191332, at *5 (S.D.N.Y. July 23, 2009). To establish a prima facie case of First Amendment retaliation, a plaintiff must show that (1) she engaged in “constitutionally protected speech” because she spoke as a citizen on a matter of public concern; (2) she suffered an adverse employment action; and (3) the speech at issue was a substantial or motivating factor in the decision. Johnson, 342 F.3d at 112. If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the government employer to offer some legitimate, non-retaliatory rationale for its actions. See Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.1995). In other words, the burden shifts to the defendant “to show that it would have taken exactly the same action absent the improper motive.” Scott v. Coughlin, 344 F.3d 282, 288 (2d Cir.2003). If the defendant does so, then the burden then shifts back to the plaintiff to demonstrate by competent evidence that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation].” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir.2004). 1. Whether the Claimed Speech Fails the “Public” Test The first basis for the Defendants’ motion for summary judgment is that the Plaintiff did not engage in “constitutionally protected speech.” In particular, they contend that her statements related to her concerns regarding her ability to execute her duties at the JMU, and thus were undertaken in the course of performing her core employment responsibility of providing medical care to the inmates. Furthermore, the Defendants claim that because she only acquired this information as a result of her position and what she observed on the job, her speech was made “pursuant to” her official duties as a physician. “The [United States Supreme] Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “[F]ew values are more carefully and thoroughly protected than the citizen’s right to speak his mind on matters of public concern without interference by the government.” Pappas v. Giuliani, 290 F.3d 143, 146 (2d Cir.2002). The threshold inquiry is thus whether the employee spoke as a citizen on a matter of public concern. “If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. As the Supreme Court has recognized, “conducting these inquiries sometimes has proved difficult.” Id. Indeed, the present question the Court now faces is not easily answered. Unlike the facts presented in Garcetti or certain Second Circuit cases where, as in Garcetti, the speech at issue was expressly part of the employee’s official job duties and thus not protected under the First Amendment, here “there [is] room for serious debate” over whether Dr. Dillon was speaking as a citizen or “pursuant to [her] employment duties.” Garcetti, 547 U.S. at 424, 126 S.Ct. 1951. a. Legal Standard Speech is on a matter of public concern and therefore a protected activity “if it relates ‘to any matter of political, social, or other concern to the community.’” Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003) (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In analyzing whether speech addresses a matter of public concern, courts must “focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.” Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.1999). However, “the speaker’s motive, while one factor that may be considered, is not dis-positive as to whether his speech addressed a matter of public concern.” Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir.2006). Whether or not “ ‘an employee’s speech addresses a matter of public con cern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.’ ” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008) (quoting Lewis, 165 F.3d at 163). The inquiry should be “a practical one” that goes beyond mere “[f]ormal job descriptions.” Id.; see Ross v. Breslin, 693 F.3d 300, 306 (2d Cir.2012) (“The inquiry into whether a public employee is speaking pursuant to her official duties is not susceptible to a brightline rule. Courts must examine the nature of the plaintiffs job responsibilities, the nature of the speech, and the relationship between the two. Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court’s decision.”). In Garcetti v. Ceballos, supra, the recent seminal case on this issue, a supervising district attorney was disciplined for writing a memorandum in which he recommended the dismissal of a case on the basis of purported government misconduct. Id. The United States Supreme Court found that the district attorney was not protected by the First Amendment because he “spoke as a prosecutor fulfilling a responsibility to advise his superiors how best to proceed with a pending case” and not as a private citizen. Id. at 421, 126 S.Ct. 1951. “In Garcetti, Ceballos [the prosecutor] was acting pursuant to his official duties because he was performing activities required to fulfill his duties.” Williams v. Dallas Indep. School Dist., 480 F.Sd 689, 693 (5th Cir.2007). The Supreme Court suggested that in determining whether speech is uttered pursuant to employment “[t]he proper inquiry is a practical one” and that whether views are expressed in the office, concern the subject matter of employment, and whether the subject speech is required by a formal job description, are nondispositive. Garcetti, 547 U.S at 424, 126 S.Ct. 1951. It appears that the guiding consideration, as set forth by the Supreme Court, is whether the expressions were made pursuant to that employee’s duties. Id. at 421, 126 S.Ct. 1951 (“The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy ... That consideration — the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case — distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline.”). Under the Supreme Court’s rationale, “[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id. at 422, 126 S.Ct. 1951. After Garcetti narrowed the scope of First Amendment protections for public employees, the Second Circuit has had several opportunities to opine on the subject. For instance, in Weintraub v. Board of Educ. Of City School Dist. of City of New York, 593 F.3d 196, 203 (2d Cir.2010), a terminated public elementary school teacher filed an action against the New York City Board of Education. He asserted a First Amendment retaliation claim based upon his complaint and filing of a formal grievance to challenge the school administration’s refusal to discipline a student who threw a book during class. In that case, the Second Circuit held that the speech was unprotected because the grievance was filed pursuant to his official duties as a teacher. In this regard, the court focused on the various guideposts set out by the Supreme Court in Garcetti In Weintraub, it was confirmed that the employee’s official job description was not determinative as to whether the speech was made as a citizen or as an employee. See id. at 202 (“a public employee’s duties are not limited only to those tasks that are specifically designated,” under the First Amendment, speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer”). More importantly, the Second Circuit honed in on the controlling factor of whether the employee’s expressions were made pursuant to one’s duties. In particular, they concluded that Weintraub’s grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties, as a public school teacher — namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning. Id. at 203. In other words, his speech was a “means to fulfill,” and “undertaken in the course of performing,” his primary employment responsibility of teaching. Id. However, the decision also explored another main factor, which was inferred to in the Garcetti decision. The Weintraub court looked to whether the speech took the form of an employee grievance, for which there was no relevant citizen analogue. In particular, the court noted that: [t]he lodging of a union grievance is not a form or channel of discourse available to nonemployee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general. Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication pursuant to an existing dispute-resolution policy established by his employer, the Board of Education. See id. at 204 (asking whether the plaintiff “voic[ed] his grievance through channels available to citizens generally”); Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir.2006)(“[Plaintiffs] right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.”); Dingle v. City of New York, No. 10 Civ. 4, 2011 WL 2682110, at *6 (S.D.N.Y. July 7, 2011) (extending First Amendment protection where public official complained to “precisely” the same “administrative agencies ... where a private citizen ... would report”). Thus, in the wake of Weintraub, many courts inside and outside this circuit have looked to the channels through which the speech was made as pertinent to the analysis. See, e.g., Boyce v. Andrew, 510 F.3d 1333, 1343-44 (11th Cir.2007) (finding that the “form and context” of the employees’ complaints, which were made directly to supervisors and were not “sent to an outside entity,” weighed against First Amendment protection); Carter v. Inc. Village of Ocean Beach, 693 F.Supp.2d. 203, 211 (E.D.N.Y.2010) (“If ... a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.”) (internal citations and quotation marks omitted). But see Taylor v. N.Y. City Dep’t of Ed., No. 11 Civ. 7833, 2012 WL 3890599, at *5 (S.D.N.Y. Sept. 6, 2012) (“Garcetti and Weintraub suggest that if the content of an employee’s speech is directed toward the proper performance of their own specific job duties, it was likely as an employee even if made through external channels.”). In addition to the factors explored above, the Court notes that an employee may be performing her job when she speaks, even if the expression is not necessarily demanded of her. See Sweeney v. Leone, No. 05 Civ. 871, 2006 WL 2246372, at *8 (D.Conn. Jul. 31, 2006) (holding that police dispatcher’s calls “to request help in the overloaded dispatch center ... were made pursuant to his official duties as dispatch supervisor of the shift”). Speech need not be “required by, or included in, the employee’s job description, or in response to a request by the employer,” so long as it is “a means to fulfill, and undertaken in the course of performing,” one of the employee’s “primary employment responsibilities].” Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir.2010) (internal quotation marks and citations omitted); see Flyr v. City Univ. of New York, No. 09 Civ. 9159, 2011 U.S. Dist. LEXIS 44047, 2011 WL 1675997, at *3 (S.D.N.Y. Apr. 25, 2011). As a rule of thumb, activities required of the employee as part of his employment duties are not performed “as a citizen” if they are not “the kind of activity engaged in by citizens who do not work for the government.” Jackler v. Byrne, 658 F.3d 225, 238 (2d Cir.2011) (internal quotation marks and citations omitted). Precedent thus dictates several important considerations that this Court must keep in mind when determining whether Dr. Dillon’s complaints were made on a matter of public concern as a private citizen. b. Matter of Public Concern As an initial matter, there is no doubt that Dr. Dillon’s speech was a matter of public concern, and the Defendants do not attempt to argue otherwise. Dr. Dillon made serious allegations regarding the policies and practices at JMU, including that necessary medications were not being prescribed; prescribed medications were not being administered to patients; that there was an unwritten policy requiring nurses to list unadministered medications as having been administrated by a fictitious nurse; that abnormal test results were removed from charts; that injured and acutely ill patients were being neglected and left untreated; that required diagnostic tests were not being performed; and that mistreatment of patients was being covered up. “These incidents, the inadequacy of training and care within the facility, and the lack of a response to reported conditions implicate the health, welfare and safety of severely disabled individuals in the care of the state, are matters of importance to the public.” McLaughlin v. Pezzolla, No. 06 Civ. 0376, 2010 WL 56051, at *9 (N.D.N.Y. Jan. 4, 2010). See DiMarco v. Rome Hosp., No. 88 Civ. 1258, 1991 WL 336000, at *1 (N.D.N.Y. July 1, 1991) (finding complaints in which the plaintiff “raised questions about ... the professional conduct and medical judgment of several of his colleagues and the nursing staff, the Hospital’s overall patterns and practices, and the leadership and competence of those individuals who were responsible for managing the Hospital” to be matters of public concern); Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Ed., 444 F.3d 158, 164 (2d Cir.2006); Coward v. Gilroy, No. 05 Civ. 285, 2007 WL 1220578, at *6 (N.D.N.Y. Apr. 24, 2007) (finding that complaints about systemic concerns which were “wide-reaching and dealt with his patients’ well being, the general workings of the hospital, and the community’s interest in quality care” would have brought speech into the realm of public concern, but that specific speech was not a matter of public concern because “statements made were specific and personal in nature” and related only to the treatment on one patient). Cf. Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir.1991) (holding that a medical resident’s complaints regarding her treatment in a residency program did not address matters of public concern); Kirby v. Yonkers School Dist., 767 F.Supp.2d 452, 462 (S.D.N.Y.2011). c. Speaking as a Citizen or as an Employee Next, the Court proceeds to the more difficult inquiry — whether Dr. Dillon’s speech was made as an employee of the County in the JMU or as a private citizen. “In applying Garcetti and Weintraub to this second and more nebulous class of cases where no clear ‘official duty* to speak is present on the record, this Circuit focuses on the subject, manner, and context of the speech to determine whether it relates to topics that are ‘indispensable prerequi sites to effective’ performance of the speaker’s ‘primary employment responsibility,’ and thus not entitled to First Amendment protection.” Griffin v. City of N.Y., 880 F.Supp.2d 384, 396 (E.D.N.Y.2012) (comparing Tucker v. City of New York, No. 07 Civ. 10367, 2011 WL 2893077, at *6 (S.D.N.Y. July 15, 2011) (holding city employee’s complaints about a colleague’s corruption were protected because they did not have “any bearing on [the employee’s] ability to carry out his job as a [Poison Control Information Specialist].”); with Carter v. Inc. Vill. of Ocean Beach, 693 F.Supp.2d. 203, 211 (E.D.N.Y.2010), aff'd, 415 Fed.Appx. 290 (2d Cir.2011) (finding no First Amendment protection where “[a]ll of plaintiffs’ complaints to their superiors ... related to their concerns about their ability to properly execute their duties as police officers, as they expressed concern ... [that various acts] affected their ability to perform their job assignments safely....”); D’Olimpio v. Crisafi, 718 F.Supp.2d 340, 353 (S.D.N.Y.2010) (holding speech “part-and-parcel” of police officer’s duties and not protected where “common theme of all [of plaintiffs] statements was that [ his partner] was violating suspects’ rights and was not performing his job properly, and by implication that [the partner] was interfering with [plaintiff]’s ability to perform his own duties.”)). First, the Court agrees with the Defendants that the Plaintiffs speech undeniably concerned the subject matter of her employment, namely the treatment of patients at the JMU. Nevertheless, the Supreme Court has made clear that this alone is not dispositive. See Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (“The First Amendment protects some expressions related to the speaker’s job.”). As for whether her expressions were made pursuant to her duties, the Plaintiff appears to have never received a formal job description when she began her employment. She was at the JMU for a brief period of time — approximately one week— and during that period she largely spent her time filing patient charts and shadowing nurse practitioners. Regardless, it cannot be disputed that the Plaintiff was hired to perform medical duties for the inmate population. This is clear based upon her extensive career background and the various conversations she had with her supervisors regarding their desire for her to perform OB/GYN examinations and procedures. In addition, the description for a “Physician III” civil service position, which the Defendant argues the Plaintiff necessarily reviewed prior to applying for employment with the County, describes her duties as “[p]erform[ing] professional medical services for departments and agencies of Suffolk County.” (Def. Ex. D.) Strictly speaking, she was not employed to uncover gaps or errors on inmates’ medical charts, nor was she hired to oversee that the inmates were receiving proper medical care. Nevertheless, the relevant inquiry is not that narrow. To count as employee rather than citizen speech, it must be made “in furtherance of one of’ the employee’s “core duties.” Garcetti at 421, 126 S.Ct. 1951. This category extends beyond specific speech made at the behest of the employer; it encompasses speech that is “part-and-parcel” of an employee’s ability to properly execute his or her duties. See id. at 422, 126 S.Ct. 1951. However, even in light of the broader perspective that the Plaintiffs job duties included the general medical treatment of inmates in the JMU, the Court finds that Dr. Dillon’s speech was not made pursuant to those duties. See DiMarco v. Rome Hosp. and Murphy Hosp., No. 88 Civ. 1258, 1991 WL 336000, *8 (N.D.N.Y. July 1, 1991) (finding that speech was protected where it was wide-reaching and dealt with his patients’ wellbeing, the general workings of the hospital, and the community’s interest in quality care); see also Paradis v. Montrose Mem. Hosp., 157 F.3d 815, 818 (10th Cir.1998) (holding that a nurse’s complaints that a doctor only treated patients based on their ability to pay and practicing without a license constituted public speech); Springer v. Henry, No. 00 Civ. 885, 2004 WL 2127172, at *11 (D.Del. Sept. 16, 2004) (determining that a public health care provider’s speech regarding a psychiatric center’s dangerous conditions and practices that could lead to suicides and escapes constituted protected public speech addressing an issue of concern for the community). In the instant case, unlike the complaint in Weintraub which referred to incidents in the teacher’s own classroom, the Plaintiffs complaints referred to systemic mistreatment and corruption extending outside of her own personal duties and affecting inmates with whom she had no personal or job connection. See McLaughlin v. Pezzolla, No. 06 Civ. 0376, 2010 WL 826952 (N.D.N.Y. March 04, 2010). The Court finds that, as a matter of law, this speech was not made pursuant to her official duties but rather that of a concerned citizen seeking to bring certain wrongdoing to light. Cf. Barclay v. Michalsky, 368 Fed.Appx. 266 (2d Cir.2010) (finding that complaints to supervisors that her co-workers were mistreating patients was within her duties, but largely because she testified that she “did [her] duty ... [she] did [her] job” and conceded that she personally received instructions from her supervisors to report verbally to them any violations). One could argue that if there was a systematic practice of inadequate treatment and widespread usage of fictitious treatments and omissions in the patients’ charts, this would inevitably affect the Plaintiffs ability to perform her job of providing adequate medical treatment to the prisoners. However, the Court finds that this relationship is too attenuated and would stretch the logic of Garcetti to an unreasonable degree. “Were “part-and-parcel” to encompass all speech that aims to improve a government employee’s workplace' — ’thereby helping the employee carry out her core duties there — everything that employees say relating to their work would end up falling outside the First Amendment’s protections. This would fly in the face of the Supreme Court’s repeated reminders that government employees’ speech is often most valuable when it concerns a subject they know best: their jobs.” Ricciuti v. Gyzenis, 832 F.Supp.2d 147, 157 (D.Conn.2011). While the Defendants do not raise this point, it would also be reasonable to assert that as a physician, Dr. Dillon had a duty to report any misconduct she saw with regard to the treatment of patients. In fact, “[d]octors ... have an affirmative duty to report misconduct of a licensed professional under New York law.” N.Y. Public Health Law § 230-11 (McKinney 2008). Yet, the Court is not persuaded that this forecloses the Plaintiffs claim to First Amendment protection. This would be akin to preventing any public doctor from having a First Amendment retaliation claim anytime the speech was remotely related to the treatment of patients. The Supreme Court’s narrow “holdfing] that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” Garcetti, 126 S.Ct. at 1960, “should not be read to overrule all First Amendment whistleblower protection cases by generally categorizing whistleblowing as part of employees’ employment obligations.” Walters v. County of Maricopa, Ariz., No. 04 Civ.1920, 2006 WL 2456173, at *14 (D.Ariz. Aug. 22, 2006). One’s professional reporting obligations, imposed by an outside authority and mandated by some edict like the New York Public Health Law, is not necessarily part of one’s duties as an employee. This is in stark contrast to other cases where speech was found to be unprotected because the plaintiffs reported wrongdoing pursuant to broadly applicable work rules and/or employee manuals requiring reporting of internal corruption or misconduct. See, e.g., Barclay v. Michalsky, 368 Fed.Appx. 266 (2d Cir.2010) and Paola v. Spada, 372 Fed.Appx. 143 (2d Cir.2010). Here, the Defendants have not pointed to any particular policy or manual that would require the internal reporting of corruption or misconduct so as to make the Plaintiffs complaints part-and-parcel of her duties as an employee. Even if such a manual or policy was in existence, this would not be dispositive. See Griffin, 880 F.Supp.2d at 397 (“Thus the fact that plaintiffs reporting may have been required by some broader written policy applicable to all police officers has no bearing on whether such reporting was actually expected or permitted, much less tolerated, in practice.”). In addition, Dr. Dillon’s complaints went far beyond the scope of just inadequate medical treatment by other physicians. The Plaintiff also expressed her concerns regarding the potential cover up of abuse by prison guards. This could not be said to be “in furtherance of one of’ the employee’s “core duties.” Weintraub, 593 F.3d at 198. Cf. Matthews v. Lynch, 483 Fed.Appx. 624, 625-26 (2d Cir.2012) (finding report of police corruption by member of Connecticut State Police Internal Affairs’ not protected by First Amendment because plaintiff was specifically tasked with investigating the misconduct of fellow officers). Furthermore, some instances of the Plaintiffs speech had citizen analogues, a factor which weighs in favor of finding that her expressions were made as a private citizen. See Kiehle v. County of Cortland, No. 09 Civ. 1259, 2011 U.S. Dist. LEXIS 73711, *13-14, 2011 WL 2680713, *5 (N.D.N.Y July 8, 2011) (“Although not a dispositive factor, the existence of a citizen analogue may serve as a proxy for the controlling question of what role the speaker occupied when [she] spoke.” (internal citation and quotation marks omitted)). Here, many of Dr. Dillon’s complaints were to her supervisors, the Defendants Dr. Chaudhry and Dr. Geraci, and thus were within the chain of command. Dr. Dillon also expressed concern to Rick Kaufman, a social worker at JMU who served as Dr. Geraci’s second-in-command. However, Dr. Dillon also called Paul Sabatino, the Chief Deputy County Executive, to discuss some of her concerns regarding the order and dispensation of pharmaceuticals at the JMU. In addition, the Plaintiff expressed her concerns to John Heilbrunn, a contact administrator with Suffolk County Health Services. Further, on several occasions, Dr. Dillon spoke to Chris McPartland, the Suffolk County District Attorney’s Government Corruption Bureau Chief, as well as a representative of the Suffolk County Attorney’s Office, regarding her concerns about both the medical treatment of prisoners at the Riverhead Correctional Facility, as well as the forgery and adulteration of medical records. These latter communications were not part of an established internal communication method. In fact, Dr. Chaudhry wrote to the Plaintiff that “as a reminder, Dr. Geraci is your immediate supervisor and it is correct to work with him in the chain of command to clarify any questions or confusion you may have about Jail Medical Unit (JMU) operations or your role in them.” This further reinforces the fact that communications beyond Dr. Geraci and Dr. Chaudhry were done outside the relevant chain of command. Moreover, speaking to a contact administrator with Suffolk County Health Services or with the Suffolk County District Attorney’s Government Corruption Bureau Chief are actions that could have been undertaken by any member of the public at large. Thus, Dr. Dillon lodged her grievances through channels of discourse that are available to non-employee citizens. See Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006) (focusing on a former prison guard’s “responsibility as a citizen to expose ... official malfeasance” in holding that the First Amendment protected her complaints to a state senator and the Inspector General’s office about her superi- or’s failure to respond to inmates’ sexually explicit behavior towards female guards because the “right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.”). The fact that the Plaintiff first spoke within her chain of command “is of no consequence.” Griffin, 880 F.Supp.2d at 399; see Carter, 693 F.Supp.2d at 211 (“If ... a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.”) (emphasis added) (internal citations and quotation marks omitted). The Defendants assert that Dr. Dillon’s speech cannot be protected by the First Amendment because all of her complaints were made based upon her personal knowledge that she acquired solely while working at the jail. However, this contention is without merit. As explained in Griffin v. City of N.Y., 880 F.Supp.2d 384, 399-400 (E.D.N.Y.2012), where the defendants made a similar argument that there were no allegations that a member of the general public would have knowledge of the alleged misconduct, the court explained that was “exactly the point”, because “[sjuch speech must necessarily be protected by the First Amendment to protect the public’s significant First Amendment interest in receiving information about the functioning of government, to which they otherwise would not be privy.” As further explained by the Griffin court, “[w]ere [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” Id. (citing City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam)); see also Garcetti, 547 U.S. at 419, 126 S.Ct. 1951 (acknowledging that “First Amendment interests ... extend beyond the individual speaker” and recognizing “the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion”); Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, 391 U.S. 563, 572, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (“Teachers are ... the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”). Therefore, the Court finds as a matter of law that the speech at issue here is on matters of public concern and was spoken as a citizen, and therefore a protected activity. Accordingly, the Defendants’ motion for summary judgment on this ground is denied. 2. Causal Connection In the Defendants’ motion for summary judgment, they also argue in the alternative that the Plaintiff has failed to establish the requisite causal connection. In particular, they assert that even if Dr. Dillon’s speech is protected under the First Amendment, in order for her to prevail on her retaliation claim, she must establish a causal connection between her protected activity and the Defendants’ alleged adverse employment actions. This causal connection must be sufficient to support a finding that the Defendants’ speech was a substantial or motivating factor in the adverse action. The Defendants contend that as established through the findings of Hearing Officer Herzweig, the Plaintiff engaged in numerous acts of misconduct while she was employed at the JMU, such as refusing to obey orders with respect to returning inmate records; refusing to participate in mandated training; and refusing to complete required credentialing. Therefore, the Defendants assert that the County had the power to act, namely to rectify employee misuse of her job responsibilities, regardless of her speech. In other words, the record arguably shows an independent basis for the actions of the Defendants. “As for the third element, causal connection, ‘allegations must be sufficient to support the inference that the speech played a substantial part in the adverse action.’ ” Arteta v. County of Orange, 141 Fed.Appx. 3, 5 (2005) (quoting Davis v. Goord, 320 F.3d 346, 354 (2d Cir.2003)). The Plaintiff bears the “initial burden of showing that an improper motive played a substantial part in defendant’s action.” Scott v. Coughlin, 344 F.3d 282, 288 (2d Cir.2003). The causal connection can be established either indirectly by means of circumstantial evidence — for example, by showing that the protected activity was closely followed by adverse action — or directly by evidence of retaliatory animus. Id.; Roper v. Hynes, No. 05 Civ. 7664, 2006 WL 2773032, at *8 (S.D.N.Y. Sept. 27, 2006). However, even if the Plaintiff does so and makes out a prima facie retaliation claim because “there is evidence that the adverse employment action was motivated in part by protected speech, the government can avoid liability if it can show that it would have taken the same adverse action in the absence of the protected speech.” Heil v. Santoro, 147 F.3d 103, 109 (2d Cir.1998). Here, the Plaintiff has met her burden to show a causal connection. Although she does not expressly articulate it as such, it appears that she is relying upon temporal proximity to establish such a causal connection. “[A] plaintiff can indirectly establish a causal connection to support a ... retaliation claim by showing that the protected activity was closely followed in time by the adverse [employment] action.” Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir.2001) (internal quotation marks and citation omitted). “[T]his period is measured from the date of the ‘employer’s knowledge of [the] protected activity.’ ” Kim v. Columbia Univ., 460 Fed.Appx. 23, 25 (2d Cir.2012) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). The Second Circuit “has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action.” Id. However, “courts in this Circuit have consistently held that a passage of more than two months between the protected activity and the adverse employment action does not allow for an inference of causation.” Flood v. UBS Global Asset Mgmt., No. 10 Civ. 374, 2012 WL 288041, at *17 (S.D.N.Y. Feb. 1, 2012) (citation omitted). The Second Circuit, on the other hand, has previously held that “five months is not too long to find the causal relationship.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 111 (2d Cir.2010). Here, the Plaintiff began making her complaints about the treatment of patients in the JMU as well as the alleged fabrications and/or omissions in their medical records as early as September 4, 2007, largely through her conversations with Dr. Geraci. On September 13, 2007, the Plaintiff was suspended without pay for thirty days and was escorted from the Riverhead Correctional Facility. On September 14, 2007, the Defendants filed a complaint against Dr. Dillon with the New York State Office of Professional Misconduct, accusing her of malfeasance in the copying of records. On or about September 25, 2007, Dr. Dillon was served with Disciplinary Charges pursuant to New York State Civil Service Law Section 75 on September 25, 2007. Thus, the alleged retaliatory actions all took place within a few weeks of the Plaintiffs protected activities. “Suspect chronology — the close sequence of protest and scrutiny — constitutes circumstantial evidence.” Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 153 (2d Cir.2006). The Court finds that this limited time period is sufficient for the Plaintiff to meet her burden to demonstrate a causal connection and establish a prima facie case of retaliation. See Jean v. Acme Bus Corp., No. 08 Civ. 4885, 2012 WL 4171226, at *12 (E.D.N.Y. Sept. 19, 2012) (“There was a gap of approximately of five weeks to seven weeks between his complaints and any adverse actions. Thus, the temporal relationship is sufficient to satisfy plaintiffs burden of showing indirect causation. With this prong met, plaintiff has stated a prima facie case of retaliation.”). 3. Non-Retaliatory Justification Having determined that the Plaintiff has established her prima facie case, the Court turns to the Defendants’ proffer of a legitimate, non-retaliatory reason for taking action. The Defendants assert that they had genuine reasons and an independent basis for taking the actions they did against the Plaintiff, so that they can show that they would have taken the same adverse action in the absence of her protected speech. In particular, the Defendants rely on the Findings of Hearing Officer Herzweig, which found that the Plaintiff engaged in numerous acts of misconduct while she was employed at the JMU. According to the Defendants, this misconduct included refusing to obey supervisor orders with respect to returning inmate medical records; refusing to participate in mandated training; refusing to complete required credentialing; and refusing to review the State Commission of Correction’s Minimum Standard and State Procedures pertaining to Correctional Medicine. Consequently, Dr. Dillon was found guilty of numerous Section 75 disciplinary charges. However, these disciplinary charges are not dispositive of this issue. Even if the Defendants’ charges against the Plaintiff were justified, which it appears they were, their pursuit of the claims against the Plaintiff may still have been motivated by an intent to punish her for exercising her First Amendment rights of speech. There is at least a question of fact as to whether the Defendants were substantially motivated by her speech, despite the legitimate bases for the disciplinary charges. Ultimately, a fact finder must weigh the impact of the Defendants’ possible impermissible reasons on their decisions to act. Moreover, the particular circumstances of this case further support the denial of the Defendants’ motion for summary judgment with regard to causal connection, because issues of fact exist as to the Defendants’ motivations. Here, the stated legitimate reasons for subjecting the Plaintiff to adverse employment actions, such as the Plaintiffs photocopying of certain inmates’ medical charts, is directly related to the protected speech — the fabrications and/or omissions in those inmates’ medical charts. Thus, this direct correlation between the protected speech and the articulated reasons for the Defendants’ actions further dictate against a finding that the Defendants’ actions were not substantially motivated by the Plaintiffs speech. The Defendants also briefly raise the doctrines of res judicata and collateral estoppel in their motion for summary judgment, without much explanation. It appears that the Defendants are contending that because Dr. Dillon was found guilty of numerous acts of misconduct, she cannot relitigate, whether she did or did not do those acts. The preclusive effect of state administrative findings is governed by New York law. Kosakow v. New Rochelle Radiology Assoc., 274 F.3d 706, 728 (2d Cir.2001). Under New York law, a prior decision has preclusive effect as to any issue that both (1) was “necessarily decided” in the first action, and (2) is “decisive” in the later action. See Jeffreys v. Griffin, 1 N.Y.3d 34, 39, 769 N.Y.S.2d 184, 801 N.E.2d 404 (2003); Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 (1985); see also Town of Deerfield v. FCC, 992 F.2d 420, 428-29 (2d Cir.1993). An issue that is “necessarily decided” must have been both “actually decided” and “necessary to support a valid and final judgment on the merits”. See Leather v. Eyck, 180 F.3d 420, 426 (1999); Wilder v. Thomas, 854 F.2d 605, 620 (2d Cir.1988). New York law provides a whistle-blowing defense at a Section 75 hearing. Thus, Dr. Dillon, if she reasonably believed that the disciplinary action “would not have been taken but for [protected whistle-blowing activity],” could assert that claim as a defense; if the hearing officer found “that the dismissal or other disciplinary action [was] based solely on a violation by the employer [of the whistle-blower protections],” the hearing officer was to dismiss or recommend dismissal of the disciplinary charges. N.Y. Civil Service Law § 75-b(3)(a). However, at her hearing it does not appear that the Plaintiff raised the defense that the charges were illegitimate retaliation for her protected speech, and the hearing officer did not consider such a defense sua sponte. “Moreover, under state law, the only finding necessary to support a valid judgment in the administrative hearing was that the [Defendants] w[ere] not solely motivated by retaliatory animus against [the Plaintiff] for initiating disciplinary action against [her].” Broich v. Inc. Village of Southampton, 462 Fed.Appx. 39, 46 (2d Cir.2012) (citing N.Y. Civil Service Law § 75-b(3)). However, to make out a First Amendment retaliation claim, Dr. Dillon need only establish that the protected activity was a substantial or motivating factor for the adverse employment action. Even granting collateral estoppel effect to the hearing officer’s findings that were necessary to support his ultimate determination, this would not preclude the Plaintiff from establishing the required elements of her First Amendment retaliation claim. As stated by the Second Circuit, “[t]hat the [Defendants] had sufficient justification to bring charges against [Dr. Dillon] does not resolve the question of whether they would in fact have brought the charges in the absence of retaliatory animus.” Id. at 46 n. 4 (citing DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 115 & n. 8 (2d Cir.1987)) (“In the event, however, that appellees were motivated by retaliatory animus in instituting the Section 75 proceeding, Title VII would be violated even though there were objectively valid grounds for the proceeding and the resulting discharge.”). Here, it is possible that the disciplinary charges — even though upheld in administrative proceedings — would not have been brought but for the Defendants’ retaliatory motive. Indeed, there is nothing in the record to support a finding that the hearing officer considered the existence of whole or partial retaliatory motive, and no ground to conclude that this issue was necessarily decided. This is a showing that the County, as the proponent of collateral estoppel, has the burden to make, Jeffreys v. Griffin, 1 N.Y.3d 34, 39, 769 N.Y.S.2d 184, 801 N.E.2d 404 (2003), and must clearly establish, Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir.1995). Therefore, issue preclusion does not provide a ground for dismissal of the First Amendment retaliation claim. Accordingly, the Defendants’ motion for summary judgment as to the First Amendment retaliation cause of action is denied. C. As to the Plaintiff’s New York State Whistleblower Claim Finally, with regard to the Plaintiffs other cause of action, a New York State Whistleblower claim, the Defendants assert that this claim must be dismissed on the ground that the Plaintiff has failed to serve a notice of claim within the ninety day period as required by County Law Section 52(1) and General Municipal Law Section 50(e). A “powerful network of legislative enactments — such as whistle-blower protection laws and labor codes — [are] available to those who seek to expose wrongdoing.” Garcetti, 547 U.S. at 425, 126 S.Ct. 1951; Ross, 693 F.3d at 307; Ruotolo v. City of New York, 514 F.3d 184, 189 n. 1 (2d Cir.2008). The Plaintiffs second cause of action is New York’s whistleblower statute, Civil Service Law § 75-b, which prohibits a public employer from, among other things, taking an adverse employment action against an employee who “discloses to a governmental body information ... which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” § 75-b(2)(a)(ii). A plaintiff pursuing a claim pursuant to § 75-b must comply with the notice requirements of New York County and General Municipal Law. See Dingle v. City of New York, 728 F.Supp.2d 332, 348 (S.D.N.Y.2010); N.Y. General Municipal Law §§ 50—i, 50-e; County Law § 52. Thus, as a condition precedent to the commencement of certain types of action “against a public corporation ... or any officer, appointee or employee thereof,” a notice of claim must be served within ninety days after the claim arises. N.Y. General Municipal Law § 50-e(1)(a). Further, New York County Law § 52 also requires notice pursuant to § 50-e for any claim for damages against a “county, its officers, agents, servants or employees.” “Federal courts do not have jurisdiction to hear state law claims brought by plaintiffs who have failed to comply with the notice of claim requirement, nor can a federal court grant a plaintiff permission to file a late notice of claim.” Dingle, 728 F.Supp.2d at 348-49. It appears to the Court that the Plaintiff has failed to comply with the provisions of the General Municipal Law Section 50-e. Indeed, the Plaintiff has not argued otherwise in its opposition. Therefore, since there is no evidence that the Plaintiff has served a notice of claim nor is there an allegation of proper service of a notice of claim in her complaint, the Plaintiffs state law cause of action for violations of the New York State Whistleblower law is dismissed. III. CONCLUSION For the foregoing reasons, it is hereby: ORDERED, that the Defendants’ motion for summary judgment with regard to the Plaintiffs First Amendment retaliation claim is denied; and it is further ORDERED, that the Defendants’ motion for summary judgment with regard to the Plaintiffs state law cause of action for violations of the New York State Whistle-blower law is granted; and it is further ORDERED, that the parties are directed to appear before this Court for the purpose of a pre-trial conference on January 29, 2013 at 9:00am. SO ORDERED.

MEMORANDUM OPINION AND ORDER JOHN R. TUNHEIM, District Judge. Rockland Burks and Adrienne Lawrence (“plaintiffs”) bring this failure to warn action against Abbott Laboratories (“Abbott”) and Mead Johnson & Company (“Mead”) individually and on behalf of their minor child, E.B. Plaintiffs allege that defendants’ powdered infant formula (“PIF”) was contaminated with Cronobacter sakazakii (C. sak), that E.B. became ill after being fed defendants’ PIF, and that the PIF was unreasonably dangerous because defendants failed to provide an adequate warning of the risks of C. sak infection. In July 2009, the Court held that Louisiana law would govern the present action and dismissed plaintiffs’ claims that were not brought under the Louisiana Products Liability Act (“LPLA”) with prejudice. See Burks v. Abbott Labs., 639 F.Supp.2d 1006, 1014-15 (D.Minn.2009). The Court denied defendants’ motion to dismiss plaintiffs’ LPLA failure to warn claim and the parents’ derivative loss of consortium claims, dismissed without prejudice plaintiffs’ LPLA claims premised on manufacturing defect, design defect, and express warranty, and allowed plaintiffs to file an amended complaint. See id. at 1015-20. In April 2010, the Court again denied defendants’ motions to dismiss plaintiffs’ LPLA failure to warn claim and the parents’ derivative loss of consortium claims, but dismissed plaintiffs’ remaining LPLA claims with prejudice. See Burks v. Abbott Labs., Civ. No. 08-3414, 2010 WL 1576779 (D.Minn. Apr. 20, 2010). Accordingly, plaintiffs’ sole surviving claim is for failure to warn under the LPLA, along with the parents’ derivative loss of consortium claims. Defendants move for summary judgment and assert, among other things, that plaintiffs’ failure to warn claim fails because there is no direct evidence that defendants’ PIF was contaminated and because plaintiffs’ experts cannot opine that it is more likely than not that one particular defendant caused E.B.’s illness. Defendants assert that they are entitled to summary judgment on the parents’ derivative loss of consortium claims because Plaintiffs filed the action after the statute of limitations expired. The Court will deny defendants’ motion with respect to the failure to warn claim and grant the motion to dismiss the parents’ loss of consortium claim. A reasonable jury could find that both defendants failed to use reasonable care to provide an adequate warning of a dangerous characteristic of their PIF and that it is more likely than not that the tortious conduct of one of the defendants caused E.B.’s illness. As the Court will explain below, the doctrine of alternative liability is applicable and plaintiffs’ failure to warn claim survives summary judgment for that reason. Defendants also bring several motions to exclude plaintiffs’ expert witnesses, which the Court will deny because it finds that the experts’ opinions are reliable and relevant. BACKGROUND 1. FACTS E.B. was born on June 19, 2006. (Decl. of Melissa B. Hirst in Support of Abbott’s Motion, Ex. 1 (Dep. of Adrienne Lawrence (“Lawrence Dep. A”) 60:19-20), May 21, 2012, Docket No. 323.) She was a healthy, full term baby. (Aff. of Stephen C. Rathke in Opposition, Ex. B (Dep. of Adrienne Lawrence (“Lawrence Dep. B”) 172:13-16), June 8, 2012, Docket No. 351-2.) On July 2, E.B. had a fever and plaintiffs took her to the emergency room where she was diagnosed with C. sak meningitis. (Id. 188-91; Aff. of Stephen C. Rathke in Opposition, Ex. A (Decl. of Janine Jason, M.D. (“Jason Decl.”) ¶ 277), Docket No. 351-2.) A.E.B.’s Feedings During the first week of E.B.’s life, she ate milk-based, ready-to-feed liquid formula at the hospital and at home. (Jason Decl. ¶ 250; Lawrence Dep. B 142-43.) On or about June 27, E.B. showed signs of an upset stomach and Lawrence decided, upon the advice of a physician, to feed E.B. soy-based formula instead of milk-based formula. (Lawrence Dep. B 157-58:16-4.) The only soy-based formula Lawrence had was a sample of Abbott’s Similac PIF that she had received in an unsolicited mailing two or three weeks before E.B. was born. (Lawrence Dep. B 155:6-8.) Lawrence fed E.B. a packet of Abbott’s PIF on the morning of June 28. (Id. 158:6-11.) That same day, Lawrence purchased two cans of Mead’s Enfamil ProSobee Lipil PIF. (Id. 159:14-22.) Between the afternoon of June 27 or 28 and the evening of June 30, Lawrence fed E.B. Mead’s PIF three times. (Id. 169:17-24.) Each time Lawrence fed E.B. PIF, she mixed it with Music Mountain bottled water, which was delivered to her home on a weekly basis. (Id. 158-65.) Lawrence testified at length regarding the cleanliness of her home, the care she took in sanitizing E.B.’s bottles and storing E.B.’s food, and the care she took to ensure that her hands and the surrounding surfaces were sanitary when she fed E.B. (See, e.g., id. 108-25.) B. The PIF Warning Labels Mead and Abbott’s PIF featured nearly identical instructions and warnings. Mead’s label included “Instructions for Preparation & Use,” which began as follows: Your baby’s health depends on carefully following the instructions below. Proper hygiene, preparation, dilution, use and storage are important when preparing infant formula. [PIFs] are not sterile and should not be fed to premature infants or infants who might have immune problems unless directed and supervised by your baby’s doctor. Ask your baby’s doctor which formula is appropriate for your baby. (Decl. of David J. Grycz in Support, Ex. 12, May 18, 2012, Docket No. 312.) Following the instructions, Mead’s label stated that “[f]ailure to follow these instructions could result in severe harm.” Id. The only use of the word “warning” on the label was a warning that using a microwave to warm the formula could cause serious burns. Id. C. C. sak, PIF, and Neonates As the labels indicate, PIF is not sterile. According to Mead, this is because it cannot undergo a terminal heat process without destroying the powder. (Mead’s Memo in Support at 4-5, May 18, 2012, Docket No. 311.) C. sak is an enteric bacterium that is frequently isolated in PIF, but it has also been isolated in other environments. (Jason Decl. ¶¶ 19, 63, 77.) Although C. sak infections are rare, C. sak outbreaks have historically been linked to PIF. (Id. ¶¶ 85-95.) For these reasons, the World Health Organization (“WHO”) has convened expert panels on three occa sions over the past decade to assess the risks of PIF and identify ways to make PIF safer. (Id. ¶ 54.) The PIF labels suggest that PIF may not be safe for infants who are particularly susceptible to infection, such as premature infants and infants with immune problems. But the labels do not explicitly refer to healthy, full term infants. Healthy, full term infants that are less than four weeks old — neonates—do not have fully developed enteric (gut) immunity. (Id. ¶ 32.) The root of plaintiffs’ failure to warn claim is that healthy, full term neonates are particularly susceptible to C. sak infection (like premature infants and infants with immune problems) and the label should have included a warning about this category of infants as well. (Id. ¶ 55.) D. Investigations Following E.B.’s Diagnosis Following E.B.’s diagnosis, the Food and Drug Administration (“FDA”) and Center for Disease Control (“CDC”) commenced an investigation. (Decl. of David J. Gryez in Support, Ex. 4 (Dep. of Adrienne Lawrence (“Lawrence Dep. C”) 203-07) May 18, 2012, Docket No. 312.) The FDA obtained the remaining Mead PIF from Lawrence; an unopened can from the same batch, which it purchased at the same store that Lawrence purchased the PIF; and thirty cans from the same batch, which it collected from a distributor’s warehouse. (Decl. of David J. Gryez in Support, Ex. 13, May 18, 2012, Docket No. 312.) Testing by the FDA and CDC did not identify C. sak in the samples. The FDA did not conduct any testing of the Burks’ home because E.B.’s grandmother had sanitized the home after E.B.’s diagnosis. (Id.) The FDA also did not analyze the Music Mountain water dispenser because the investigator believed the jug used for E.B.’s feedings was no longer available. (Id.) Plaintiffs’ experts contend that the negative tests do not establish that the PIF did not contain C. sak and advance various theories to support their opinions. (See, e.g., Jason Decl. ¶¶ 155-57, 311-14; Aff. of Stephen C. Rathke in Opposition, Ex. C (Decl. of John (Jim) Farmer (“Farmer Decl.”), ¶¶ 125-28), June 8, 2012, Docket No. 351-2.) ANALYSIS I. MOTIONS FOR SUMMARY JUDGMENT A. Standard of Review Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). B. Failure to Warn In order to prevail on an LPLA claim, a plaintiff must establish that (1) “the defendant is a manufacturer of the product;” (2) “the product [was] unreasonably dangerous in one of the four ways provided in the statute;” (3) plaintiffs “damage was proximately caused by [the] characteristic of the product;” and (4) plaintiffs “damage arose from a reasonably anticipated use of the product.” See Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1251 (5th Cir.1997). With respect to the second element, plaintiffs allege that the PIF was unreasonably dangerous because an adequate warning was not provided. More specifically, under the LPLA: A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product. La.Rev.Stat. § 9:2800.57(A). The LPLA defines “adequate warning” as: [A] warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the damage for which the claim is made. La.Rev.Stat. § 9:2800.53(9). A manufacturer is not required to provide a warning when “[t]he product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics” or when “[t]he user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.” La.Rev.Stat. § 9:2800.57(B)(1)-(2). The burden of proving each element is on the plaintiff. See La.Rev.Stat. Ann. § 9:2800.54(D). In the motions before the Court, defendants do not dispute that they are manufacturers of the PIF, that C. sak contamination is a “characteristic” of PIF that may cause damage, or that plaintiffs’ use of the PIF was a reasonably anticipated use. Mead moves for summary judgment on the basis that it had no obligation to warn of “remote risks,” that it took reasonable care to provide adequate warnings, and that plaintiffs cannot establish by a preponderance of the evidence that Mead’s PIF, or any company’s PIF, caused E.B.’s illness. Abbott moves for summary judgment on the basis that plaintiffs cannot establish by a preponderance of the evidence that Abbott’s PIF, or any company’s PIF, caused E.B.’s illness, and that plaintiffs cannot establish that Abbott’s warning, if it was inadequate, proximately caused E.B.’s illness. There is substantial overlap between the defendants’ motions for summary judgment and the Court will distinguish between the defendants only where necessary. 1. Duty to Warn The Court must first determine whether “duty” is a question for the Court and or the jury in an LPLA failure to warn action. Mead contends that under Louisiana law, manufacturers have no obligation to warn of remote risks. On the one hand, Mead’s proposition could mean that the court must determine whether a manufacturer has a duty to warn of a particular risk in light of the risk’s remoteness and if so, the jury merely decides whether such a warning was adequately provided. On the other hand, Mead’s proposition could mean that the jury decides whether particular risks warrant warnings and also whether adequate warnings were provided, but that the court may find in certain cases that no reasonable jury could find that a particular risk is sufficient to warrant a warning. The Court concludes that the latter framework is correct under Louisiana law. Whether a manufacturer has a duty to warn consumers of a particular danger posed by its product appears to be a question for the jury under Louisiana law. See Manuel v. Am. Bank & Trust Co., No. Civ. A. 88-3562, 1990 WL 728, at *1 (E.D.La. Jan. 2, 1990) (citing Boudreaux v. Jack Eckerd Corp., 854 F.2d 85 (5th Cir.1988)). For example, there are certain situations where a manufacturer has no duty to warn, such as “when the purchaser has particular knowledge of or experience with the inherent dangers in the use of a product,” see La.Rev.Stat. § 9:2800.57(B)(2), and the jury determines whether a case presents such a situation. See Mozeke v. Int’l Paper Co., 933 F.2d 1293, 1297 (5th Cir.1991). Additional Louisiana cases and jury instructions also suggest that it is the jury’s responsibility to determine whether a product possesses a characteristic that may cause damage and whether the defendant used reasonable care to provide an adequate warning of the characteristic. See, e.g., Lozano v. Touro Infirmary, 778 So.2d 604, 613 (La.Ct.App.2000); Simon v. Am. Crescent Elevator Co., 767 So.2d 64, 74 (La.Ct.App.2000); see also 18 La. Civ. L. Treatise, Civ. Jury Instructions § 11:3 (3d ed.). In other words, the jury is charged with determining both the contours of a defendant’s duty to warn and whether defendants breached the duty. Mead cites several cases in which courts have held, as a matter of law, that certain risks were so remote that no warnings were required. All of the cases were decided prior to the enactment of the LPLA or were decided after the enactment but applied pre-LPLA law. See, e.g., Blalock v. Westwood Pharms., Inc., Civ. No. 89-2117, 1990 WL 10557, at *2 (E.D.La. Jan. 30, 1990) (holding that manufacturers are not obligated to warn against the possibility of “a rare or idiosyncratic reaction”); Thomas v. Gillette Co., 230 So.2d 870, 875 (La.Ct.App.1970) (“[T]he possibility of danger from an allergic reaction to [the product] was so remote and unlikely that defendant was under no duty to warn purchasers or users of such a possibility.”). To the extent that these cases hold that the Court, not the jury, is responsible for determining whether a manufacturer has a duty to warn consumers of a particular risk, the Court concludes that they are no longer good law in light of the LPLA. The LPLA expressly provides two exceptions in which a manufacturer is not required to provide an adequate warning. See La.Rev.Stat. § 9:2800.57(B)(1)-(2). The LPLA does not include a third exception for remote risks. The omission of an exception for remote risks indicates that the remoteness of the risk is simply a factor for the jury to weigh in determining whether the manufacturer exercised “reasonable care to provide an adequate warn ing,” not a categorical exception to a manufacturer’s duty to warn. See Watt v. GMAC Mortg. Corp., 457 F.3d 781, 783 (8th Cir.2006) (“A standard axiom of statutory interpretation is expressio unius est exclusio alterius, or the expression of one thing excludes others not expressed.”); Filson v. Windsor Court Hotel, 907 So.2d 723, 728 (La.2005) (discussing and applying the same rule of construction). It bears noting, though, that even if there were a third categorical exception where manufacturers had no obligation to provide an adequate warning, it would be for the jury to determine whether a case fell within the exception because Louisiana law appears to charge juries with determining whether a case falls within an exception to a manufacturer’s duty to warn. In the present case, the practical impact of the Court’s conclusion is that it is not for the Court to determine whether defendants had a specific duty to warn consumers of the risk that potential C. sak contamination in PIF poses for healthy, full term neonates. Defendants’ duty under the LPLA is to use reasonable care to provide an adequate warning of a characteristic of their product that may cause damage. It is for the jury to determine whether such a characteristic exists, and if so, whether defendants took reasonable care to provide an adequate warning. 2. Reasonable Care to Provide Adequate Warnings Defendants’ primary contentions regarding the reasonableness and adequacy of the warning are (1) that the risk of E.B.’s illness was so remote that they did not need to provide a warning regarding it and (2) that a more detailed warning including an explicit reference to C. sak and an explicit reference to neonates would be unreasonable because it would contribute to public health risks rather than alleviate them. Mead cites a number of cases to suggest that it did not need to provide a warning because the risk of E.B.’s illness was remote. The Court concluded above that these cases, to the extent that they created a categorical “remoteness” exception to a manufacturer’s duty to warn, are inconsistent with the LPLA. However, the facts of these cases are still somewhat relevant to determining what findings a jury could reasonably make on the basis of the facts of the present case. For example, in Blalock, 1990 WL 10557, the plaintiff suffered severe burns in places where she applied sunscreen and the defendant had sold nearly one million units without receiving a similar complaint. Id. at *2. The court noted that even the plaintiffs own expert described the reaction as “idiosyncratic in its severity” and held that the defendants were not liable for failure to warn. Id.; see also Guilbeau v. W.W. Henry Co., 85 F.3d 1149, 1169 (5th Cir.1996) (holding that “a single injury” cannot support liability for failure to warn when the product “has been used by thousands of people without any other reported injuries”). Here, plaintiffs’ experts offer substantial evidence suggesting that although C. sak infection is rare, there is a well-documented connection between PIF and C. sak infection and E.B.’s severe illness was not one-of-a-kind. For example, an expert meeting convened by the World Health Organization and the Food and Agriculture Organization of the United Nations to analyze the risks of C. sak contamination in PIF concluded that “intrinsic contami nation of [PIF] with [C. sak] ... has been a cause of infection and illness in infants” and “[a]mong infants those at greatest risk for [C. sak] infection are neonates (first 28 days), particularly pre-term infants, low birth-weight infants or immunocompromised infants.” (Aff. pf Stephen C. Rathke, Ex. F, June 4, 2012, Docket No. 347.) As for the potential consequences of a more detailed warning, defendants contend that other than breast feeding, no alternatives to PIF present lower overall risks, and a more detailed warning would “send consumers in the direction of feeding sources that were substantially less safe than formula, such as cow’s milk, goat’s milk and homemade concoctions.” (Memo, in Support of Mead’s Motion for Summ. J. at 27, May 18, 2012, Docket No. 311.) Plaintiffs contend that there is no basis for defendants’ concern and that a more detailed warning would provide consumers opportunity to make an informed choice, which they are entitled to under the LPLA. Specifically, plaintiffs argue that defendants already provided a warning that PIF is not sterile and referred to premature infants or infants who might have immune problems, but the warnings are insufficient because they do not explicitly refer to healthy, full-term neonates. Whether it is reasonable for a manufacturer to omit a warning regarding a particular risk is a factually specific inquiry for the jury to decide. See, e.g., Wood v. SubSea Intern., Inc., 766 So.2d 563, 569 (La.Ct.App.2000) (“What actions are reasonable under the circumstances is a question of fact to be determined by the fact finder.”); Williams v. Super Trucks, Inc., 842 So.2d 1210, 1217-18 (La.Ct.App.2003) (“Whether a particular warning on a product is adequate is a question for the trier of fact.”). The Court finds that genuine issues of material fact remain regarding the reasonableness of defendants’ warnings. The parties dispute the remoteness of the risk and what consequences might flow from a more detailed warning, among other things. A jury could find that Mead and Abbott struck a reasonable balance with their warnings after considering a number of factors such as the likelihood of the risk, the gravity of the risk, the feasibility of providing an effective warning, and the consequences of providing a more detailed warning. On the other hand, given the severity of the potential harm, the known association between C. sak and PIF, and the heightened risk posed to neonates, a jury could reasonably conclude that Mead and Abbott failed to exercise reasonable care to provide an adequate warning because their warnings seemingly suggested that their PIF posed risks for premature infants and infants with immune problems, but not for healthy, full-term neonates. 3. Causation a. Alternative Liability Defendants’ primary argument regarding why plaintiffs cannot establish causation is that they are entitled to summary judgment because plaintiffs’ experts cannot opine that a particular defendant’s PIF was more likely than not the cause of E.B.’s illness and plaintiffs therefore have failed to meet their burden of proof with respect to causation. Plaintiffs’ experts opine that contaminated PIF manufactured by one of the defendants was more likely than not the cause of E.B.’s illness, but cannot opine that either company’s PIF was more likely than not the cause. (See Jason Decl. ¶ 432; Farmer Decl. ¶ 64; Aff. of Stephen C. Rathke in Opposition, Ex. B (Decl. of Catherine Donnelly, Ph.D (“C. Donnelly Decl.”) ¶ 15), June 8, 2012, Docket No. 351.) Plaintiffs argue that the doctrine of alternative liability allows their claim to proceed. Whether a plaintiff may invoke the doctrine of alternative liability in an action under the LPLA appears to be an unresolved question of Louisiana law. When confronted with a novel or unresolved issue of state law, this Court’s duty is to predict how the state supreme court would resolve the issue. See Spine Imaging MRI, L.L.C. v. Country Cas. Ins. Co., 2011 WL 379100, at *6 (D.Minn. Feb. 1, 2011) (citing Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 715 (8th Cir.2004)). The Court will first outline the doctrine of alternative liability, then explain why the present case satisfies the requirements of the doctrine, then predict whether the Louisiana Supreme Court would apply the doctrine. A 1948 case, Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), is crediting with giving birth to alternative liability. The doctrine has gained widespread acceptance and has been adopted by the Restatement, which defines the doctrine as follows: When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiffs harm but the plaintiff cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 28(2) (2010). Alternative liability has been rejected by only two states and only in one instance by a state supreme court. See Restatement (Third) of Torts § 28, Reporters’ Note. As the Restatement explains, to prevail a plaintiff must prove that each defendant’s conduct was tortious and that the tortious conduct of one or more of the defendants caused the plaintiffs harm. Further, the doctrine applies only if “all persons whose tortious acts exposed the plaintiff to a risk of harm [are] joined as defendants.” See Restatement (Third) of Torts § 28 cmt. h; see also Doe v. Baxter Healthcare Corp., 380 F.3d 399, 408 (8th Cir.2004) (explaining that alternative liability imposes a “much stiffer burden” on plaintiffs than market share liability, because plaintiffs “must target all the companies that might have been liable and prove that each had a duty of care that it breached”). “The rationale for shifting the burden of proof to defendants whose tortious conduct exposed the plaintiff to a risk of harm is that, as between two culpable defendants and an innocent plaintiff, it is preferable to put the risk of error on the culpable defendants.” Restatement (Third) of Torts § 28 cmt. g. At the summary judgment stage, the present case meets the requirements of alternative liability. As the Court explained above, a jury could reasonably find that both Abbott and Mead’s conduct was tortious — that is, that both Abbott and Mead breached a duty to plaintiffs by manufacturing a product that “possessed a characteristic that may cause damage and ... failing] to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.” La.Rev.Stat. § 9:2800.57(A). Additionally, all potentially liable parties are before the Court because E.B. did not consume PIF manufactured by any other companies. Finally, a reasonable jury could find, on the basis of plaintiffs’ experts’ opinions, that “one or more of the[] [defendants] caused the plaintiff’s harm but the plaintiff cannot reasonably be expected to prove which actor or actors caused the harm.” Restatement (Third) of Torts § 28(2). Defendants contend that alternative liability cannot apply in the present case because plaintiffs’ experts have not ruled out potential environmental causes other than PIF with 100% certainty. In the classic alternative liability case, Summers, there were no potential causes other than the two defendants’ who fired their shotguns in the plaintiffs direction. See Summers, 199 P.2d at 2. While the present case is distinguishable from Summers because environmental sources other than the defendants’ PIF could have caused E.B.’s illness, the Court concludes that alternative liability is applicable if a plaintiff proves by a preponderance of the evidence that one of the defendants caused the harm. The Court has located very little authority on this specific question, but some courts agree that a preponderance of the evidence is the appropriate standard. See, e.g., Anderson v. Anderson, 355 Ill. Dec. 434, 959 N.E.2d 1167, 1173-74 (Ill.App.Ct.2011) (“The plaintiff must still prove that the manufacturers failed to provide adequate warnings and that the injuries suffered by her husband were, in fact, caused by [the drug]. Thus, ... alternative liability does not shift the burden of proof for causation ... onto the defendants until plaintiff has proven its case by a preponderance of the evidence.”). According to the Restatement, the causation element of alternative liability is satisfied if the plaintiff “proves that ... the tortious conduct of one or more of the[] [defendants] caused the plaintiffs harm.” Restatement (Third) of Torts § 28(2) (emphasis added). The Restatement does not suggest that “proves” refers to something greater than the typical burden of proof for civil cases, which is a preponderance of the evidence. If a plaintiff establishes that both defendants’ engaged in tortious conduct, that the harm was more likely’ than not caused by one of the defendants’ tortious conduct, and that all potentially liable defendants are joined in the action, the policies underlying alternative liability are served by applying the doctrine. Having established that plaintiffs’ case satisfies the requirements of alternative liability, the Court must determine whether the Louisiana Supreme Court would apply the doctrine in the present case. Louisiana courts have neither accepted nor rejected alternative liability, but they have accepted a somewhat analogous burden-shifting doctrine called the “guest passenger presumption.” See, e.g., Richardson v. Aldridge, 854 So.2d 923, 935 (La.Ct.App.2003) (on rehearing). The guest passenger presumption provides that when “ ‘an innocent party is injured through the concurrent acts of two parties under circumstances where one or the oth er must be at fault, the burden is upon these parties to exculpate themselves from negligence.’ ” Id. (quoting Eason v. Hartford Accident & Indem. Co., 327 So.2d 187, 190 (La.Ct.App.1976)). Under the guest passenger presumption, the plaintiff is relieved of the burden of proving which of two drivers was negligent if “the circumstances of the accident compel a finding that either one or both drivers in a two-car collision must be at fault.” Eason, 327 So.2d at 191. Under alternative liability, on the other hand, the plaintiff is relieved of proving that a particular defendant caused the harm, but must prove that all defendants’ conduct was tortious. While the doctrines are distinct, the consistent willingness of Louisiana courts to apply the guest passenger presumption and relieve plaintiffs of the burden of proving that a specific defendant was negligent provides some indication that the Louisiana Supreme Court would apply alternative liability in the present case and relieve plaintiffs of the burden of proving that a specific defendant caused the harm. Defendants argue that even if alternative liability were generally available under Louisiana law, it is unavailable in LPLA actions because the LPLA makes no reference to alternative liability and the statute states that it “establishes the exclusive theories of liability for manufacturers for damage caused by their products.” La.Rev.Stat. Ann. § 9:2800.52 (emphasis added). The Court concludes, however, that the LPLA’s “theories of liability” are the four causes of action outlined in the LPLA, not more specific tort doctrines that relate to certain elements of the four causes of action. See id. § 9:2800.54(B)(1)-(4); see also John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La. L. Rev. 565, 571 (1989) (“[T]he LPLA ‘establishes the exclusive theories of liability for manufacturers for damage caused by their products.’ There are four such theories available under the act[.]”) (footnote omitted) (emphasis added). The LPLA provides that a manufacturer shall be liable if a product is “unreasonably dangerous in one of four ways: (1) in construction or composition; (2) in design; (3) because an adequate warning has not been provided; or (4) because it does not conform to an express warranty. Id. Because plaintiff proceeds on an inadequate warning theory, plaintiffs’ claim is within the “exclusive theories of liability” established by the LPLA. Alternative liability is widely accepted and supported by a sensible rationale; the policies underlying the doctrine would be advanced by applying the doctrine in the present case; Louisiana courts have shown willingness to apply analogous burden-shifting doctrines in tort cases; and the LPLA does not prevent the application of alternative liability. For all of these reasons, the Court predicts that the Louisiana Supreme Court would allow plaintiffs to proceed relying on alternative liability. b. Lack of Direct Evidence Defendants contend that even if alternative liability applies, plaintiffs cannot prove that either defendant’s PIF caused E.B.’s illness because there is no direct evidence that the PIF was contaminated and there are other potential environmental sources of C. sak. Plaintiffs acknowledge that there is no direct evidence that the PIF was contaminated. Plaintiffs’ experts’ method of proof is a “differential etiology,” which is a process where experts determine the most likely cause of a disease by eliminating other potential causes rather than by providing direct evidence that a particular product caused the harm. See Wagoner v. Exxon Mobil Corp., 813 F.Supp.2d 771, 804 (E.D.La.2011). The Court concludes that neither the lack of direct evidence that the PIF was contaminated nor the possibility an environmental source other than PIF caused E.B.’s illness means that plaintiffs’ have failed to prove causation as a matter of law. As one Louisiana court explained: The plaintiffs burden is to prove causation by a preponderance of the evidence. This burden may be met by direct or by circumstantial evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation. Llewellyn v. Lookout Saddle Co., 315 So.2d 69, 71 (La.Ct.App.1975). Plaintiffs’ experts claim to have considered all possible causes of E.B.’s illness and opine that contaminated PIF was more likely than not the cause. They reach this opinion after considering a wide range of relevant information, including the fact that C. sak is present in environmental sources other than PIF and that none of the tests of the batches of PIF from which E.B. ate were positive for C. sak. A jury is not required to accept an expert’s opinion, and defendants’ experts present different opinions, but a jury could reasonably find, on the basis of plaintiffs’ experts’ opinions, that it is more likely than not that one of defendants’ PIFs was contaminated and caused E.B.’s illness, c. Would Lawrence Have Heeded a Different Warning? A final issue the Court must consider relating to causation is whether defendants are entitled to summary judgment on the basis that a different warning would not have changed Lawrence’s decision to feed PIF to E.B. Abbott in particular argues that Lawrence decided to feed PIF to E.B. solely because she wanted to switch to a soy-based formula and that the warnings, which she had read weeks prior, did not enter into her mind at the time she made the decision. Under Louisiana law, “‘when a manufacturer fails to give adequate warnings or instructions, a presumption arises that the user would have read and heeded such admonitions.’ ” Wagoner v. Exxon Mobil Corp., 813 F.Supp.2d 771, 797 (E.D.La.2011) (quoting Bloxom v. Bloxom, 512 So.2d 839, 850 (La.1987)). “The presumption may be rebutted ‘if the manufacturer produces contrary evidence which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances.’ ” Id. (quoting Bloxom, 512 So.2d at 850). Although Bloxom predated the LPLA, Louisiana courts have continued to apply this rebuttable presumption since the enactment of the LPLA. See, e.g., Grayson v. State ex rel. Dept. of Health and Hosps., 837 So.2d 87, 93 (La.Ct.App.2002). In the present case, Lawrence testified that she read the warnings, that she was unaware PIF posed risks to E.B., and that she would not have fed PIF to E.B. had she known the risks. (See Lawrence Dep. B 172:6-10.) Lawrence’s testimony creates a genuine issue of material fact regarding whether “an adequate warning or instruction would have been futile.” A jury might conclude that Abbott has successfully rebutted the presumption that Lawrence would have heeded an adequate warning, but a reasonable jury could certainly conclude that the presumption applies. For all of the reasons explained above, the Court will deny defendants’ motions for summary judgment on plaintiffs’ failure to warn claim. C. Parents’ Derivative Loss of Consortium Claims The Court must next decide whether to grant defendants’ motion for summary judgment on E.B.’s parents’ derivative loss of consortium claims. Although plaintiffs filed the claims after Louisiana’s one year statute of limitations for tort actions had expired, see La. Civ.Code Art. 3492, plaintiffs urge the Court to utilize the “escape clause” in the Minnesota Uniform Conflict of Laws-Limitations Act, which provides that “[i]f the court determines that the limitation period of another state ... is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon ... the claim, the limitation period of this state applies.” Minn.Stat. § 541.33. The escape clause should “rarely be employed” and only “extreme cases” justify deviating from the statute of limitations of the state whose law governs the case. Unif. Conflict of Laws-Limitations Act § 4, cmt. “It is not enough that the forum state’s limitation period is different than that of the state whose substantive law is governing.” Id. In its 2009 Order, the Court withheld judgment on the escape clause issue because “additional discovery [wa]s needed to determine whether the Burks had a fair opportunity to litigate their claims under the Louisiana prescriptive period.” Burks, 639 F.Supp.2d at 1020. The Court stated that discovery may provide a reasonable factual basis to conclude that the parents “encountered any kind of substantial barriers to instituting the suit within one year.” Id. at 1019-20 (internal quotation marks omitted). Discovery has ended and plaintiffs have not produced evidence that the present action is an extreme case warranting application of the escape clause. While Minnesota’s six-year statute of limitations is substantially different from Louisiana’s one-year statute of limitations, plaintiffs have made very little effort to establish that the one-year statute of limitations deprived them of a fair opportunity to sue upon their claim. Plaintiffs seemingly believed the burden was on defendants to establish that the escape clause should not apply, which several courts have held is incorrect. See, e.g., Vicknair v. Phelps Dodge Indus., Inc., 794 N.W.2d 746, 753 (N.D.2011). Plaintiffs point to the fact that they contacted an attorney well within the one year statute of limitations and the attorney failed to file the action, but, if anything, this fact suggests that the parents did have a fair opportunity to litigate under Louisiana’s one-year statute of limitations and that it was the attorney, not an unfair statute of limitations, that deprived them of the opportunity. Because plaintiffs have not produced evidence suggesting Louisiana’s one-year statute of limitations deprived them of a fair opportunity to litigate their derivative loss of consortium claims, the Court will grant the defendants’ motions for summary judgment as to the parents’ derivative claims and dismiss the claims with prejudice. II. MOTIONS TO EXCLUDE Having resolved defendants’ motions for summary judgment, the Court will now address defendants’ motions to exclude plaintiffs’ expert witnesses. A. Standard of Review Under Federal Rule of Evidence 702, expert testimony must satisfy three prerequisites to be admitted: First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir.2001) (citations and internal quotation marks omitted). The district court has a gate keeping obligation to make certain that all testimony admitted under Rule 702 satisfies these prerequisites and that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The proponent of the expert testimony has the burden of establishing by a preponderance of the evidence that the expert is qualified, that his methodology is scientifically valid, and that “the reasoning or methodology in question is applied properly to the facts in issue.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir.2006). The Supreme Court in Daubert outlined particular factors for courts to consider in assessing reliability, such as (1) whether the opinion is based on scientific knowledge, is susceptible to testing, and has been tested; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology; and (4) whether the theory has been generally accepted by the scientific community. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (summarizing Daubert factors). However, in Kumho Tire, the Court explained that “the test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id. at 141-42, 119 S.Ct. 1167. The reliability inquiry is designed to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Marmo, 457 F.3d at 757 (quoting Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167). “Courts should resolve doubts regarding the usefulness of an expert’s testimony in favor of admissibility.” Id. at 758; see also Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167 (“[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir.2001) (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir.1996)). B. Abbott’s Motion to Exclude Plaintiffs’ Warnings/Labeling Expert Abbott first moves to exclude plaintiffs’ proposed warnings expert, Dr. Gerald M. Goldhaber. Dr. Goldhaber has a masters in Communication Theory and a Ph. D. in Organizational/Interpersonal Communication. (Aff. of Stephen C. Rathke, Ex. D, June 4, 2012, Docket No. 347.) He has published many books and articles on communications and the effectiveness of warnings, and he runs a company that designs and evaluates warnings. (Id.) After familiarizing himself with the risks of C. sak contamination in PIF, Dr. Goldhaber arrived at his central opinion, which is that defendants’ warnings were inadequate because they did not specifically refer to C. sak and its consequences and because they did not convey that healthy, full term neonates are at risk. (Deck of Melissa B. Hirst, Ex. 6 (Expert Report of Gerald M. Goldhaber (“Goldhaber Report”) at 6), May 21, 2012, Docket No. 329.) Among other things, Dr. Goldhaber also opines that average consumers would not know about the risks of C. sak in PIF and would assume the risks do not apply to neonates on the basis of the warnings provided. (Id. at 2, 5.) Abbott attacks Dr. Goldhaber’s report on numerous grounds. Abbott contends that he is unqualified and that his opinions are not based on sufficient facts and data because he is not an expert on infant feeding practices or the science of C. sak and PIF. Abbott also argues that his opinions are unreliable and speculative because he did not conduct testing or surveys regarding the current warnings or of his proposed alternative warning. For the following reasons and with the following qualifications, the Court will deny Abbott’s motion. The Court finds that as a warnings and human factors expert, Dr. Goldhaber is qualified to opine on whether the risks posed by PIF are the type that an average consumer would understand without a warning and whether the warnings provided would effectively communicate the risks of PIF to consumers. See, e.g., Wolfe v. McNeil-PPC, Inc., Civ. No. 07-348, 2011 WL 1673805, at *10 (E.D.Pa. May 4, 2011) (“[A]fter reviewing substantial literature on the association between SJS and ibuprofen ... [the witness] concluded that the warning in this case was inadequate to communicate the nature of the risk. Based on her years of studying human interaction with packaging, she is qualified to make that determination.”). Dr. Goldhaber’s opinions about the adequacy and effectiveness of the warnings provided are based on well-established theories regarding how humans interact with warning labels. His experience and expertise allow him to provide reliable and useful opinions regarding the effectiveness of the provided warnings and alternative warnings. See Michaels v. Mr. Heater, Inc., 411 F.Supp.2d 992, 999-1000 (W.D.Wis.2006) (“It is undisputed that [the witness] is an expert i[n] human factors engineering. Although he performed no studies or tests in conjunction with this case, the theories and methods upon which he relies are recognized by the engineering community. [The witness’] credentials are impressive, and his knowledge of warnings and their proper design may be helpful to the jury.”). The Court notes that Dr. Goldhaber’s opinions must be carefully confined to remain within his area of expertise and to avoid invading the province of the jury. First, Dr. Goldhaber may opine regarding whether PIF poses the type of risks average consumers would comprehend in the absence of a warning, but he is not qualified to opine on the scope of the risk posed by PIF or the likelihood that PIF caused E.B.’s illness. Second, Dr. Goldhaber will not be permitted to invade the province of the jury by opining on whether defendants’ acted reasonably. See, e.g., Hutto v. McNeil-PPC, Inc., 79 So.3d 1199, 1211 (La.Ct.App.2011) (“Whether a product is unreasonably dangerous due to an inadequate warning is a question for the trier of fact.”) Rather, Dr. Goldhaber will be permitted to opine on issues such as (1) whether C. sak contamination is the type of risk an average consumer would understand in the absence of a warning, (2) how an average consumer would interpret and react to the warnings provided and to alternative warnings, and (3) how Lawrence would have responded to alternative warnings. Dr. Goldhaber’s opinions and explanations will help the jury determine whether the defendants had an obligation to provide a warning and whether they took reasonable care to provide an adequate warning. Although the Court denies Abbott’s motion to exclude Dr. Goldhaber, the Court will entertain objections to specific aspects of Dr. Goldhaber’s testimony if it falls outside the witness’ expertise or invades the province of the jury. C.Abbott’s Motion to Exclude Plaintiffs’ Causation Experts Abbott also moves to exclude plaintiffs’ three proposed causation experts, Dr. Janine Jason, Dr. John Farmer, and Dr. Catherine Donnelly. The three experts opine that it is more likely than not that PIF contaminated with C. sak caused E.B.’s illness. Abbott contends that the experts’ reports lack relevance and are likely to confuse the jury because none of the experts could opine that it was more likely than not that Abbott’s PIF caused E.B.’s illness and hone offer direct evidence that Abbott’s PIF was contaminated. The Court held above that plaintiffs may rely on the doctrine of alternative liability, which means that plaintiffs can potentially be relieved of the burden of proving that it is more likely than not that a particular defendant — Abbott or Mead' — caused E.B.’s illness. If plaintiffs successfully establish the other prerequisites for applying alternative liability, plaintiffs’ burden with respect to cause-in-fact will be to establish that it is more likely than not that contaminated PIF manufactured by one of the defendants caused E.B.’s illness. The Court also held that a lack of direct evidence is not fatal to plaintiffs’ claims, which means that plaintiffs may prove cause-in-fact on the basis of circumstantial evidence. Under Federal Rule of Evidence 402, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Because of the Court’s holding on alternative liability, whether contaminated PIF manufactured by one of the defendants’ was more likely than not the cause of E.B.’s illness is a fact that is of consequence in determining the action. Plaintiffs’ experts’ opinions that it is more likely than not that contaminated PIF manufactured by one of the defendants caused E.B.’s illness has a tending to make this fact more probable. Therefore, the Court will deny Abbott’s motion to exclude plaintiffs’ causation experts on the basis of relevance. D.Mead’s Motion to Exclude Plaintiffs’ Causation Experts Mead separately moves to exclude Dr. Jason, Dr. Farmer, and Dr. Catherine Donnelly, as well as Dr. Scott Donnelly. Mead challenges the experts’ qualifications, as well as the reliability and relevance of their opinions. 1. Dr. Jason Dr. Jason is a “pediatrician, ... epidemiologist, clinical pediatric infectious diseases physician, and board-eligible immunologist.” (Aff. of Janine Jason, M.D. (“Jason Aff.”) ¶ 2, June 11, 2012, Docket No. 361.) Dr. Jason’s central opinion is that it is more probable than not that E.B.’s illness was caused by PIF contaminated with C. sak. (Jason Deck at 7.) Mead attacks Dr. Jason’s report on numerous grounds, relating to both reliability and relevance. For example, Mead contends that Dr. Jason’s reliance on case reports and cross-sectional analysis to predict the likelihood that PIF caused E.B.’s illness is unreliable because of various methodological biases. Mead also contends that Dr. Jason’s opinions regarding the tests conducted on the batches of PIF at issue and regarding other possible sources of C. sak are speculative and lack foundation. Additionally, Mead contends that Dr. Jason is unqualified to opine on the adequacy of Mead’s product testing and that evidence relating to Mead’s plant is irrelevant because it is not direct evidence that the batch in question was contaminated. The Court finds that Dr. Jason is qualified to opine on potential causes of C. sak infection and on the potential effectiveness of various methods of testing for C. sak and preventing C. sak contamination. The Court also finds that her methodology— identifying the most likely cause of E.B.’s illness by performing a differential etiology — is reliable enough to assist the jury. See, e.g., Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir.1999) (“[A] reliable differential diagnosis provides a valid foundation for an expert opinion.”). Dr. Jason’s qualifications allow her to reliably opine on potential causes of C. sak infection on the basis of the scientific literature on C. sak, to which she has contributed. Dr. Jason’s experience also allows her to assess, with sufficient reliability, the potential effectiveness of various methods of testing for C. sak contamination. While case reports and cross-sectional analysis may not be as reliable or persuasive as other methods of assessing risk, such as prospective cohort studies, the Court does not find that Dr. Jason’s opinion “is so fundamentally unsupported that it can offer no assistance to the jury.” See Bonner, 259 F.3d at 929-30. Crucially, “ ‘[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.’ ” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir.2001) (quoting Hose v. Chicago NW Transp. Co., 70 F.3d 968, 974 (8th Cir.1996)). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. Mead will have ample opportunity to attempt to undermine the factual basis of Dr. Jason’s opinion through cross-examination and its own experts’ opinions. Mead may attempt to expose on cross-examination the potential weaknesses and biases in the case reports and cross-sectional analysis on which Dr. Jason relies. The Court will also entertain specific objections to Dr. Jason’s testimony at a later juncture should the testimony stray beyond the narrow question on which she was asked to opine — whether it is more likely than not that E.B.’s illness was caused by contaminated PIF manufactured by one of the defendants. To the extent that Dr. Jason opines on unrelated matters, such as the effectiveness of the warning labels, the Court will not allow them into evidence. 2. Dr. Farmer Dr. Farmer is a former CDC director who specializes in enteric diseases. (Aff. of Stephen C. Rathke, Ex. L, June 12, 2012, Docket No. 363.) In 1980, he identified and named the bacteria at issue in the present case. (Aff. of John J. Farmer III, Ph.D. ¶ 4, June 11, 2012, Docket No. 360.) Like Dr. Jason, Dr. Farmer opines that E.B.’s illness was more likely than not caused by contaminated PIF manufactured by one of the two defendants. (Aff. of Stephen C. Rathke, Ex. C, (Decl. of John J. Farmer III, Ph.D. (“Farmer Decl.”) ¶ 64), June 8, 2012, Docket No. 351.) In reaching his opinion, Dr. Farmer considered, among other things, the likelihood that E.B.’s illness was caused by sources other than contaminated PIF, the likelihood that conditions at defendants’ plants could lead to contaminated PIF, and the significance of the negative testing of the batches of PIF in the present case. Much of Mead’s attack on Dr. Farmer overlaps with its attack on Dr. Jason and is the proper subject of cross-examination, but not a basis for the Court to exclude Dr. Farmer as a witness. Dr. Farmer has significant experience analyzing the causes of infectious diseases. (Farmer Aff. ¶ 4.) The Court finds that Dr. Farmer is qualified to assess the effectiveness of product testing at defendants’ plants and the testing that was done on the specific batches at issue and the Court finds that his opinions are sufficiently reliable. (Id. ¶ 16.) Dr. Farmer relies on a body of peer-reviewed scientific literature to reach his opinion despite the fact that none of the tests of the batches of PIF at issue were positive C. sak. The Court does not find that Dr. Farmer’s opinion “is so fundamentally unsupported that it can offer no assistance to the jury.” See Bonner, 259 F.3d at 929-30. To the extent that Mead sees flaws in the methodologies and scientific theories upon which Dr. Farmer relies or believes alternative methodologies and scientific theories are more reliable and persuasive, it may raise these issues through cross-examination and the testimony of its own experts. Dr. Farmer, like Dr. Jason, was asked to provide an opinion on a specific question and his testimony must be limited to that specific question. Thus, Dr. Farmer will not be allowed to offer opinions on the adequacy of defendants’ warning labels. Additionally, the Court will not allow Dr. Farmer to opine on the financial incentives that may have led defendants to adopt what Dr. Farmer believes are inadequate safety measures. Dr. Farmer will be allowed to describe the safety measures and explain why he believes they are inadequate because such testimony is relevant to the likelihood that defendants’ PIF was contaminated, but the company’s financial incentives are not directly relevant to the issue on which Dr. Farmer is asked to testify. 3. Dr. Catherine Donnelly Dr. Catherine Donnelly is a food microbiologist with experience investigating infectious disease outbreaks. (Aff. of Catherine Donnelly, Ph.D. ¶ 2, June 11, 2012, Docket No. 357.) Her central opinion is the same as that of Dr. Jason and Dr. Farmer — that it is more likely than not that E.B.’s illness was caused by contaminated PIF manufactured by one of the defendants. (Aff. of Stephen C. Rathke, Ex. E, (Decl. of Catherine W. Donnelly, Ph.D. ¶ 15), June 8, 2012, Docket No. 351.) Her opinion is premised on the likelihood that other sources might have caused E.B.’s illness, the conditions and testing at defendants’ plants, and the testing of the specific batches conducted in the present case, among other topics. Mead attacks Dr. Catherine Donnelly’s qualifications, the foundation of her opinions, and her methodology. The Court will deny Mead’s motion for reasons similar to those described above. Dr. Catherine Donnelly is qualified to opine on possible sources of E.B.’s illness and to analyze the potential effectiveness of PIF testing. Mead’s doubts about various aspects of her analysis can be brought to light through cross-examination and the testimony of Mead’s experts. 4. Dr. Scott Donnelly Dr. Scott Donnelly is a food microbiologist who worked for Wyeth, another manufacturer of PIF, for over 20 years. (Aff. of Stephen C. Rathke, Ex. N, June 12, 2012, Docket No. 363.) Mead’s primary contention regarding Dr. Scott Donnelly is that his report is irrelevant because he was retained to provide an opinion on the design, construction, and composition of defendants’ PIF and those issues relate to plaintiffs’ dismissed claims, not to their failure to warn claim. The Court rejected this argument when it was raised by Abbott in a separate motion. (See Order Adopting the R. and Recommendation of the Magistrate J., Sept. 30, 2012, Docket No. 407.) The Court held then, as it does now, that Dr. Scott Donnelly’s report analyzing the conditions at defendants’ plants was relevant to two aspects of plaintiffs’ failure to warn claim: whether C. sak contamination constitutes a “characteristic” of PIF and whether E.B.’s illness was caused by contaminated PIF. (See id. at 8-10.) Mead also contends that Dr. Scott Donnelly lacks foundation for his assessment of their plant and that his report contains irrelevant attacks on Mead personnel. The Court finds that Dr. Scott Donnelly is qualified to assess the conditions and policies of a PIF plant and opine on the likelihood that the plant would produce contaminated PIF. The Court also finds that his opinions are sufficiently reliable and that his opinions regarding policies and personnel at the plant may be relevant to the likelihood that contaminated PIF was manufactured. As with each of the other experts, the Court will entertain specific objections if the witness’s testimony strays beyond the specific areas in which it is relevant or runs afoul of other evidentiary principles such as the need to avoid unfair prejudice. As outlined above, and with the exceptions noted above, the Court will deny Mead’s motion because it finds that plaintiffs’ experts’ opinions are relevant and reliable. III. MISCELLANEOUS MOTIONS A. Mead’s Motion to Strike Dr. Jason’s Supplemental Declaration On July 17, 2012, plaintiffs submitted an affidavit of Dr. Jason indicating that an article she authored that she relies upon in her expert report was accepted for publication by Pediatrics. Mead moves to strike the supplemental exhibits on the grounds that it was procedurally improper for plaintiffs to submit them without moving the Court to extend the briefing deadline. Mead also contends that it is unfair for the Court to accept Dr. Jason’s affidavit because Dr. Jason has not turned over documents relating to earlier attempts to publish the article in other journals, a revised copy of the article, or the peer review comments she received from Pediatrics. “District courts have broad discretion in establishing and enforcing deadlines.” In re Baycol Prods. Litig., 596 F.3d 884, 888 (8th Cir.2010). Neither the federal rules nor the local rules explicitly prohibit plaintiffs’ provision of a newly discovered fact after the end of briefing and the fact that Dr. Jason’s article was accepted by Pediatrics has relevance because it bolsters the reliability of her opinions. Further, because Dr. Jason avers that the methodology of the revised version of the article is identical to the methodology in the draft she has already pro vided to defendants (Aff. of Janine Jason, M.D. ¶¶ 6, 8, July 7, 2012, Docket No. 387), defendants seemingly suffer no prejudice in their attempts to undermine Dr. Jason’s methodologies by virtue of not being able to review the revised version of the article. For these reasons, the Court will deny Mead’s motion to strike Dr. Jason’s supplemental declaration. B. Defendants’ Motion to Supplement Record Defendants also move to supplement the record with newly received materials that they contend could not reasonably have been produced earlier. The materials consist of (1) a recently published article relating to the prevalence of C. sak in home kitchens and (2) five pages of email correspondence between Dr. Jason and a CDC doctor relating to Dr. Jason’s article discussed above. Plaintiffs do not object to defendants’ experts relying upon the article discussing C. sak in home kitchens and the Court will allow experts on both sides to discuss and rely upon the article. Plaintiffs oppose supplementing the record with Dr. Jason’s email correspondence, but the Court will allow the supplementation as the email correspondence contains information that may be of some relevance to defendants’ attempts to undermine the strength of Dr. Jason’s publication. This case will be placed on the Court’s next available trial calendar. ORDER Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. Mead’s Motion for Summary Judgment [Docket No. 309] and Abbott’s Motion for Summary Judgment [Docket No. 321] are GRANTED in part and DENIED in part, as follows: a. The motions are GRANTED as to plaintiffs’ derivative loss of consortium claims and those claims are DISMISSED with prejudice. b. The motions are DENIED as to plaintiffs’ failure to warn claim under the LPLA. 2. Abbott’s Motion to Exclude Plaintiffs’ Proposed Labeling Expert [Docket No. 327] is DENIED. 3. Abbott’s Motion to Exclude Plaintiffs’ Proposed Causation Experts [Docket No. 332] is DENIED. 4. Mead’s Motion to Exclude Expert Testimony Pursuant to Fed.R.Evid. 702 [Docket No. 338] is DENIED. 5. Mead’s Motion to Strike the Supplemental Declaration of Dr. Janine Jason [Docket No. 392] is DENIED. 6. Defendants’' Motion to Supplement the Record [Docket No. 397] is GRANTED. . Prior documents in this action have referred to the bacteria as Enterobacter sakazakii or E. sak. . One of plaintiffs' experts believes there have been only ninety-two reported cases of pediatric C. sak infection between 1958 and 2008. (Jason Decl. ¶ 105.) . C. sak was also not identified in a sample of Abbott’s PIF from the batch that included the PIF E.B. consumed. (Decl. of Melissa B. Hirst in Support of Abbott’s Motion, Ex. 1 (Dep. of Janine Jason ("Jason Dep.”) 303, 350), May 21, 2012, Docket No. 323.) . The Court notes that in Perez v. Michael Weinig, Inc., No. Civ. A. 304CV0448, 2005 WL 1630018, at *6 (W.D.La. July 7, 2005), a United States Magistrate Judge stated that “[w]hether defendant owes plaintiff a duty to warn is a question of law.” However, the court formulated the "duty” as a general "duty to warn of the known risks of using its product.” Perez is not controlling and even if it were, it would not change the Court's analysis because in the present case, like in Perez, there is no dispute that defendants owe a general duty to warn consumers about dangerous characteristics of their product. Perez does not suggest that the Court, not the jury, makes more subtle determinations about the scope of the duty and whether a defendant breached its duty. . A Louisiana commentator reached the same conclusion. See John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La. L. Rev. 565, 616 (1989) ("Among the factors that should be considered in ascertaining whether a manufacturer has exercised such reasonable care [is] ... [t]he likelihood and gravity of the danger.”). . This approach is not followed in all circuits. See, e.g., Thompson v. Johns-Manville Sales Corp., 714 F.2d 581, 583 (5th Cir.1983) (refusing to consider applying market share liability in a case governed by Louisiana law because no Louisiana court had adopted the doctrine and “[s]uch departures are for the Louisiana courts, not for us”). . The Restatement (Second) of Torts § 433B(3) (1965) also included alternative liability, and it defined the doctrine similarly: Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. .Minnesota is one of the two jurisdictions reported as rejecting alternative liability. See Restatement (Third) of Torts § 28, Reporters’ Note (citing Leuer v. Johnson, 450 N.W.2d 363 (Minn.App.1990)). However, the Reporters’ Note describes I^euer as unpersuasive, and Minnesota commentators note that the Minnesota Supreme Court has not categorically rejected alternative liability. See Michael K. Steenson et al., Minn. Prac., Products Liability Law § 3.19 (2012). . The Court draws slight support for its conclusion from George v. Housing Auth. of New Orleans, 906 So.2d 1282 (La.Ct.App.2005). In that case, the court considered whether a plaintiff could utilize the doctrine of market share liability in an LPLA action. Id. at 1286-87. Market share liability is somewhat similar to alternative liability, but the two are distinct doctrines. See Doe v. Baxter Healthcare Corp., 380 F.3d 399, 407-09 (8th Cir.2004). The court in George declined to allow plaintiffs to rely on market share liability because the products in question “cannot be deemed fungible[,]“ but not because allowing market share liability would necessarily run afoul of the LPLA’s exclusive theories of liability. See George, 906 So.2d at 1287. . The Court is not alone in predicting that the Louisiana Supreme Court would apply a burden-shifting tort doctrine. See In re MTBE Prods. Liab. Litig., 379 F.Supp.2d 348, 405-09 (S.D.N.Y.2005) (noting, in a product liability action, that "Louisiana courts have been silent regarding collective liability theories” and predicting that "Louisiana would be likely to find market share liability applicable"). A remaining question is what burden defendants will face in disproving that they caused E.B.'s illness. The Oregon Supreme Court cited this difficult question as one reason it rejected alternative liability. See Senn v. Merrell-Dow Pharm., Inc., 305 Or. 256, 751 P.2d 215, 223 (1988) ("In a two defendant situation ... [a]s to either defendant it is exactly as likely as not that that defendant caused plaintiff's harm. In theory, one of the defendants can escape liability altogether by presenting some scintilla of exculpatory evidence greater than that the other defendant produces, so that the evidence preponderates against the other defendant. Where there are three or more possible defendants, however, the necessary quantum of exculpatory evidence cannot be easily articulated.... What lesser degree of likelihood would a defendant have to prove to escape liability?”). In a two defendant situation, like the present case, it seems too arbitrary to allow one defendant to escape liability by merely presenting "some scintilla of exculpatory evidence greater than the other defendant produces.” On the other hand, requiring a defendant to prove that it "could not possibly have caused the harm,” as one commentator suggests, is too steep a burden. See Mark A. Geistfeld, The Doctrinal Unity of Alternative Liability and Market-Share Liability, 155 U. Pa. L. Rev. 447, 466 (2006). In the present case, if plaintiffs successfully carry their burden as described above such that the burden shifts to the defendants to prove that they did not cause E.B.'s illness, the Court concludes that an appropriate middle ground is to allow either defendant to avoid liability by proving that it was substantially less likely than the other defendant to have caused E.B.'s illness. . The statute of limitations does not apply to a minor’s claims relating to permanent disability under the LPLA. See La. Civ.Code Art. 3492. . Dr. Goldhaber's report opines that the following warning would be more appropriate: "DANGER! Powdered infant formulas are not sterile products and may be contaminated with E. Sakazakii, a highly virulent bacterium that may cause meningitis, brain and other serious injury or death to infants, especially neonates, low birth weight and premature infants as well as infants whose immunity systems may be compromised. Parents and caregivers should avoid giving powdered infant formulas to infants at risk without consulting their doctor and carefully following preparation and use instructions on this package.” (Goldhaber Report at 6.) . "Human factors analysis ... 'is a recognized analytical approach that is applied in a variety of contexts and may yield legitimate insights as to the hazards that particular products and situations ... may pose in light of predictable human behavioral patterns.' ” Michaels v. Mr. Heater, Inc., 411 F.Supp.2d 992, 999 (W.D.Wis.2006) (quoting Mihailovich v. Laatsch, 359 F.3d 892, 919 (7th Cir.2004)). . The Court has previously rejected Abbott’s attempt to strike Dr. Catherine Donnelly and Dr. Scott Donnelly. (See Order Adopting the R. and Recommendation of the Magistrate J., Sept. 30, 2012, Docket No. 407.) The order contains additional description of the two experts’ reports. . Plaintiff also submitted an excerpt of deposition transcript from another action involving Mead, in which one of Mead's experts stated that “Pediatrics would be a journal thought to have significant impact.” . If, in light of this opinion and order, defendants still wish to review the revised version of Dr. Jason’s article, they may move the Court to order plaintiffs to provide the revised version under seal for the limited purpose of defendants reviewing the article to ensure that its methodology is unchanged, as Dr. Jason avers. . The correspondence between Dr. Jason and the CDC doctor were produced in response to an order by a United States Magistrate Judge in a separate action involving Mead.

OMNIBUS ORDER DENYING PLAINTIFF’S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD; DENYING DEFENDANT’S MOTIONS TO STRIKE; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT KENNETH L. RYSKAMP, District Judge. THIS CAUSE comes before the Court on parties’ cross motions for summary judgment [DE 42, 46] filed on October 31, 2012 and November 1, 2012. Also before the Court is Plaintiffs motion to supplement the administrative record [DE 72] filed on December 20, 2012, and Defendant’s motions to strike exhibits to Plaintiffs motion for summary judgment and Plaintiffs response in opposition to Defendant’s motion for summary judgment. See [DE 54, 69]. The motions are fully briefed, and a hearing was held on Janu ary 11, 2018. These matters are ripe for adjudication. I. Background Plaintiff Melissa R. Bloom (“Bloom”) brought this action against Defendant Hartford Life and Accident Insurance Company (“Hartford”) for wrongful termination of long-term disability benefits pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). Bloom was a speech pathologist and participant in an employee welfare benefit plan established by her employer. As such, Bloom had coverage for long-term disability benefits under a group insurance policy issued by Hartford, which served as the claim administrator for the plan. The policy provided Hartford with “full discretion and authority” to determine entitlement to disability benefits under the plan, which stipulated payment of such benefits on a participant’s satisfactory and continued proof of disability. Under the policy, disability was defined as follows: Disability or Disabled means You are prevented from performing one or more of the Essential Duties of: 1) Your Occupation during the Elimination Period; 2) Your Occupation, for the 24 month(s) following the Elimination Period, and as a result Your Current Monthly Earnings are less than 80% of Your Indexed Predisability Earnings; and 3) After that, Any Occupation. Further, the policy defined ‘Your Occupation” as: Your Occupation means Your Occupation as it is recognized in the general workplace. Your Occupation does not mean the specific job You are performing for a specific employer at a specific location. On March 17, 2009, Bloom suffered a “transient ischemic attack” — i.e., a mini-stroke — or some other cerebralvascular accident while driving with her son. She checked in at the hospital and complained of weakness and numbness in her right-side and slurred speech. Besides some right-sided numbness, her symptoms had resolved by the time she was evaluated. The hospital conducted an EEG and MRI and CT scans of the brain. The EEG registered normal and the MRI and CT scans each registered negative. Bloom was deemed “neurologically stable” by the treating neurologist, Dr. Shiftan, and was released from the hospital on March 20, 2009. On January 28, 2010, Bloomed discontinued work as a speech pathologist. Dr. Shiftan, who remained her attending physician, diagnosed Bloom with “late effects” of a cerebrovascular accident, with a secondary diagnosis of “complex partial seizures” resulting in fatigue, memory loss, and right-sided weakness and numbness. He reported that Bloom had no physical defects, but she had cognitive impairment due to memory deficit and dysphasia (trouble communicating). As a result, Bloom applied to Hartford for long-term disability benefits in June 2010. After reviewing her application and concluding that Bloom could not work due to uncontrolled seizure activity, Hartford approved Bloom’s claim on August 3, 2010. In an initial telephone interview with Hartford, Bloom reported her seizures as “hit or miss,” and noted that they “var[ied] from day to day.” Further, she stated that on days when she did not have a seizure she was able to perform most tasks independently. In light of what Hartford determined were “subjective complaints of seizures,” however, video surveillance was conducted on Bloom on November 29 and 30, 2010. During these two days, Bloom was recorded driving nearly 90 miles, much of the time alone. She shopped, performed various errands, and visited with friends. There was no evidence that Bloom suffered a seizure or that she was restricted from completing physical or focus-oriented tasks, like driving, during the period she was under surveillance. In a follow-up interview conducted by a Hartford investigator Bloom was shown the surveillance video, but she defended that it was consistent with her original statements that her seizure activity was sporadic and she was capable of performing most activities independently on days when they did not occur. On May 18, 2011, Hartford referred Bloom to an independent medical examination (“IME”) performed by Dr. Grossman, a neurologist. After examining Bloom and reviewing her medical records, Dr. Gross-man concluded that Bloom “should be able to work full-time without restrictions .... ” Dr. Grossman noted that her neurological exam was normal and the diagnosis of her treating physician, Dr. Shiftan, was “strictly subjective” and “primarily historical only.” He stated he was “hard pressed to consider and agree with [Dr. Shiftan’s] diagnosis” without objective evidence to substantiate Bloom’s subjective complaints. Dr. Grossman also reviewed the surveillance video and found that Bloom’s manipulative capacity was normal and her manual dexterity was excellent. Hartford sent Dr. Shiftan a copy of the IME report on June 1, 2011 and requested his comments, but it did not receive a response. Therefore, on June 28, 2011, Hartford notified Bloom of its decision to terminate her benefits. In its denial letter, Hartford detailed the findings of the surveillance video and Dr. Grossman’s report, and it concluded that Bloom did not establish she was no longer prevented from performing the essential duties of her job, and therefore, she did not meet the policy definition of disability. Hartford informed Bloom of her right to appeal its decision, which she did on July 12, 2011. In her appeal letter, Bloom emphasized the sporadic nature of her seizures and their manifestation as a cognitive deficit, not a physical incapacitation. Furthermore, Bloom claimed that she experienced “auras” before a seizure would occur, and thus, she would avoid activities she otherwise would be capable of doing during those times, like driving. Bloom included testimonial letters from family and friends attesting to her seizures and her cognitive problems. Additionally, Bloom submitted a letter from Dr. Shiftan, in which he stated that Bloom experienced “frequent seizures” and was unable to work due to difficulty with speech and concentration. He noted in the letter that Bloom’s ambulatory EEG taken during her initial incident was abnormal. In evaluation of Bloom’s appeal, a medical records review was performed at Hartford’s request by Dr. Engstrand, a neurologist. Dr. Engstrand reviewed Bloom’s medical files, including past reports by Dr. Shiftan and the IME by Dr. Grossman, and watched the surveillance video. Dr. Engstrand attempted to contact Dr. Shiftan on numerous occasions to consult with him about Bloom’s condition, but Dr. Shiftan did not return her calls. In a report issued on October 5, 2011, Dr. Engstrand concluded that Bloom was “not functionally impaired or limited in any way.” She stated that while Bloom may have suffered an episode of “transient right-sided weakness” — albeit unclear whether it was a stroke, cerebralvaseular accident, seizure activity, or a complex migraine — her condition and functional ability were excellent and there was “no evidence of cognitive impairment.” She characterized Bloom’s reports of seizures as “subjective,” and found that they were inconsistent with her clinical findings. She finished by stating that Bloom could work “an eight hour work day, 5 days a week on a continuous basis without restrictions and limitations.” On October 6, 2011, Hartford denied Bloom’s appeal, stating that “there does not appear to be any clinical or radio-graphic evidence that [she] actually suffers from seizures.” Bloom brought this suit claiming that Hartford’s decision to terminate her benefits was wrong and arbitrary and capricious, and that Hartford failed to provide Bloom a full and fair review of her claim. Particularly, Bloom contends: (1) the administrative record contains evidence of Bloom’s disability; (2) Hartford failed to obtain objective evidence supporting Bloom’s disability, namely, her abnormal ambulatory EEG and a failure to conduct a neuropsychological exam; (3) Hartford improperly initiated surveillance and used the surveillance video as a basis for her benefits-termination; (4) Hartford failed to acknowledge consideration of Bloom’s Social Security Disability (“SSD”) award in its termination letter in violation of company policy; and, (5) Hartford failed to employ a “perfection statement” to notify Bloom of information absent from the administrative record. Bloom requests that the Court reverse Hartford’s determination and reinstate her long-term disability benefits, or in the alternative, remand the case back to Hartford to reconsider her claim with additional evidence. In response, Hartford contends that Bloom did not prove she was disabled under the plan, and it was not wrong to credit the surveillance video and opinions of two independent doctors over Bloom’s subjective complaints and the reports of her treating physician. Furthermore, Hartford maintains that it was not obligated to build Bloom’s case for her and find objective evidence to support her claim. Hartford argues that Bloom improperly relies on evidence outside the administrative record in an attempt to bolster her claim, and that ultimately, Bloom fails to demonstrate that its decision to terminate her benefits was arbitrary and capricious. II. Legal Standard on Summary Judgment “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)(1)(A)). Where the non-moving party bears the burden of proof on an issue at trial, the movant may simply “[point] out to the district court that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. After the movant has met its burden under Rule 56(c), the burden shifts to the non-moving party to establish that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Although all reasonable inferences are to be drawn in favor of the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), he “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The non-moving party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but instead must come forward with “specific facts showing that there is a genuine issue for trial." Id. at 587, 106 S.Ct. 1348 (citing Fed.R.Civ.P. 56(e)). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the non-moving party fails to make a sufficient showing on an essential element of his case on which he has the burden of proof, the moving party is entitled to a judgment as a matter of law. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. III. Discussion A. Consideration of Materials Outside the Administrative Record Bloom requests the Court to consider materials outside of the administrative record in reviewing Hartford’s decision. Specifically, Bloom requests that the Court admit medical records evidencing Bloom’s seizure debility, including an abnormal ambulatory EEG and a recent hospital report documenting post-operative seizure activity. Moreover, Bloom seeks to introduce as exhibits to her motions multiple documents produced by Hartford during discovery. These, Bloom claims, support her argument that Hartford failed to provide a full and fair review of her claim and violated its own claims practices in reaching its decision to terminate her benefits. The exhibits include: (1) a page from Hartford’s claim manual detailing its use of a “perfection statement” to notify claimants of missing information, see Ex. A. to Pl.’s Resp. to Def.’s Mot. for Summ. J. [DE 65]; (2) Hartford’s internal training guideline concerning seizure disorders introduced to support the contention that a stroke may cause seizures and not all seizure activity may be recorded, see Ex. O [DE 46-3]; (3) the deposition transcript of a Hartford representative introduced to demonstrate procedural irregularities in Hartford’s determination, see Ex. V [DE 46-5, 6]; and (4) excerpts from Hartford’s claim manual requiring a claimant’s termination letter to include language indicating Hartford considered the claimant’s SSD award prior to terminating her benefits. See Ex. W [DE 46-7]. Hartford contests supplementing the administrative record with Bloom’s additional medical reports and moves to strike the above exhibits. As a general rule, deferential review of a plan administrator’s decision to deny benefits is limited to “consideration of material available to the administrator at the time it made its decision,” Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir.2011), cert. denied, - U.S. -, 132 S.Ct. 849, 181 L.Ed.2d 549 (U.S. 2011), i.e., the administrative record. Thus, in a “very real sense,” the district court “sits more as an appellate tribunal than as a trial court.” Epolito v. Prudential Ins. Co. of Am., 737 F.Supp.2d 1364, 1369 (M.D.Fla.2010) (internal citation omitted). The Court “does not take evidence, but rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the [administrator].” Id. As the First Circuit explained: It would offend interests in finality and exhaustion of administrative procedures required by ERISA to shift the focus from that decision to a moving target by presenting extra-administrative record evidence going to the substance of the decision.... Even if the new evidence directly concerned the question of his disability before the final administrative decision, it was inadmissible. Furthermore, the final administrative decision acts as a temporal cut off point. The claimant may not come to a court and ask it to consider post-denial medical evidence in an effort to reopen the administrative decision. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 519 (1st Cir.2005) (internal citation omitted), cert. denied, 546 U.S. 937, 126 S.Ct. 425, 163 L.Ed.2d 324 (2005). Thus, under the deferential standard of review provided to administrators, the rule against consideration of extra-record materials to determine a claimant’s eligibility for benefits prevents post-hoc relitigation of the substantive claim and encourages a full development of the record before the administrator. See Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303, 1308 (10th Cir.2007)(“And if litigation should ensue, requiring the parties to have developed the record during the claim administration process deters the practice of holding back evidence for presentation to the district court as a fallback or a ‘surprise.’ ”). It does not appear, however, that the rule precludes the admissibility of evidence to support a claimant’s collateral assertion of an administrator’s procedural misconduct or bias. The Eleventh Circuit has not yet weighed in on the matter, but the Supreme Court’s decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) “can be read as contemplating some discovery on the issue of whether a structural conflict has morphed into an actual conflict” and procedural irregularities threaten the fair resolution of a claim. Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1161 (10th Cir.2010). In pertinent part, Glenn reads: In such instances, any one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tie-breaking factor’s inherent or case-specific importance. The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.... It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decision-making irrespective of whom the inaccuracy benefits. Glenn, 554 U.S. at 117-18, 128 S.Ct. 2343 (internal citations omitted). Relying on this language, district courts and sister circuits have carved out exceptions for claims alleging procedural irregularities and conflicts of interests affecting a claimant’s full and fair review. See Murphy, 619 F.3d at 1161 (10th Cir.2010) (“[a]lthough the Supreme Court did not explicitly state that the district court could consider extra-record materials or that claimant could discover extra-record materials [in Glenn], it must have contemplated that, at least in some eases, discovery and consideration of extra-record materials may be necessary and appropriate as an administrative record is not likely to con tain the details of a history of biased administration of claims”); Johnson v. Conn. Gen. Life Ins. Co., 324 Fed.Appx. 459, 466-67 (6th Cir.2009) (holding that Glenn abrogated any prior precedent of the Sixth Circuit requiring “a threshold evidentiary showing of bias as a prerequisite to discovery”); Wilcox v. Wells Fargo & Co. Long Term Disability Plan, 287 Fed.Appx. 602, 603 (9th Cir.2008) (concluding that Glenn endorsed Ninth Circuit precedent that “a district court could, in its discretion, consider extrinsic evidence in evaluating the conflict’s effects”); Brantley v. Pepsi Bottling Grp., Inc., 718 F.Supp.2d 903, 906 (E.D.Tenn.2010) (holding that a district court should limit its review under ERISA to the administrative record unless the evidence is offered to support a procedural challenge to the administrator’s decision, such as alleged lack of due process or bias); Price v. Hartford Life and Acc. Ins. Co., 746 F.Supp.2d 860, 862 (E.D.Mich.2010) (permitting additional evidence where a plaintiff brings procedural challenges to administrator’s decision); Allen v. Life Ins. Co. of N. Am., 267 F.R.D. 407, 412 (N.D.Ga.2009) (permitting evidence relevant to an administrator’s conflict of interest in the decisionmaking process). See generally 8 Charles Alan Wright et al., Federal Practice and Procedure § 2005 (3d ed.1998); Jayne E. Zanglein et al., ERISA Litigation 524-35 (4th ed.2011). Moreover, even before Glenn, circuits maintained exceptions for the consideration of extra-record evidence when plaintiffs averred procedural indiscretion or bias on the part of an administrator. See, e.g., Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir.2006) (en banc); Semien v. Life Ins. Co. of N. Am., 436 F.3d 805 (7th Cir.2006), cert. denied, 549 U.S. 942, 127 S.Ct. 53, 166 L.Ed.2d 251 (2006); Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510 (1st Cir.2005), cert. denied, 546 U.S. 937, 126 S.Ct. 425, 163 L.Ed.2d 324 (2005). Based on the Supreme Court’s decision in Glenn and its progeny, the Court finds that extra-record evidence is admissible where Bloom can demonstrate the evidence will be used to support a claim of procedural misconduct or bias on the part of Hartford. Thus, the Court will permit extra-record materials pertaining to Bloom’s accusations that Hartford deviated from its own claims practices, and thus, failed to provide a full and fair review. The Court will not permit, however, extra-record evidence offered to substantively impact her eligibility for benefits, i.e., evidence introduced to show she was or was not disabled. As stated by another court: Normally, in ERISA benefits denial cases, matters outside the administrative record are not discoverable .... Where, however, the plaintiff alleges a procedural defect in the administrative process, then matters pertaining to that process become relevant .... [TJhis fact does not, however, mean that the entire universe of relevant evidence is opened up for discovery.... Discovery into the substantive merits of a claim are still off limits — unless, of course, the court finds a serious procedural deficiency exists requiring substantive supplementation of the administrative record for a full and fair review. Myers v. Prudential Ins. Co. of Am., 581 F.Supp.2d 904, 913 (E.D.Tenn.2008). Therefore, the Court allows Bloom to introduce those exhibits and deposition testimony into evidence which support her claim of procedural misconduct on behalf of Hartford. These extra-record documents, as listed above, include: (1) a page from Hartford’s claim manual concerning its use of a “perfection statement,” see Ex. A. to Pl.’s Resp to Def.’s Mot. for Summ. J. [DE 65]; (2) Hartford’s internal training guideline concerning seizure disorders, see Ex. O [DE 46-3]; (3) the deposition transcript of a Hartford representative, see Ex. V [DE 46-5, 6]; and (4) excerpts from Hartford’s claim manual regarding explicit recognition of the consideration of Bloom’s SSD award in her termination letter. See Ex. W [DE 46-7]. The Court does not permit Bloom to supplement the administrative record with medical records of her abnormal ambulatory EEG or hospital reports of post-operative seizure activity. These latter documents are produced in an after-the-fact attempt to retroactively impact the substantive merits of her claim, and thus, are impermissible. The controlling rule still remains: the Court reviews the administrator’s decision to terminate benefits in light of the evidence before it at the time the decision was made. See Blankenship, 644 F.3d at 1354. The burden lies with Bloom to obtain evidence to prove her disability at the time of the administrator’s review, see Glazer v. Reliance Standard Life Insurance, 524 F.3d 1241, 1247 (11th Cir.2008), and these records are not necessary to support her claims for procedural misconduct. Thus, the Court denies Bloom’s motion to supplement the administrative record [DE 51] and denies Hartford’s motions to strike Bloom’s exhibits [DE 54, 69]. B. ERISA Review of Hartford’s Decision to Terminate Benefits The Eleventh Circuit lays out a six-step analysis for reviewing a benefits decision under ERISA: (1) Apply the de novo standard to determine whether the claim administrator’s benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator’s decision in fact is “de novo wrong,” then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is “do novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator’s decision was arbitrary and capricious. Blankenship, 644 F.3d at 1355. Under this framework, Bloom initially bears the burden to prove that she is disabled and Hartford’s decision to deny her long-term disability benefits was wrong. See Glazer, 524 F.3d at 1247. If Bloom meets her burden, then she must demonstrate that Hartford’s decision was arbitrary and capricious, meaning Hartford had no reasonable grounds to support its decision. Id. at 1246. In considering whether Hartford’s decision was arbitrary and capricious, the Court must take into account Hartford’s conflict of interest in paying Bloom’s claim, but its analysis remains centered on whether a reasonable basis existed for Hartford’s decision. See Blankenship, 644 F.3d at 1355. Even where a conflict of interest exists, the Court must still give deference to Hartford’s “discretionary decisionmaking” as a whole. See Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352, 1363 (11th Cir.2008). i. Hartford’s Decision to Deny Benefits was Not Wrong Upon review of the facts, the Court finds that Bloom fails to prove she was disabled at the time her benefits were terminated. Therefore, the Court holds that Hartford’s decision was not “wrong.” Among the evidence relied upon by Hartford to deny Bloom’s claim was a surveillance video of Bloom driving and performing other focus-oriented activities and the reports of two independent physicians, each concluding that Bloom was not disabled and there was no objective evidence supporting her claim of seizure activity or related cognitive impairment. Driving is a “dangerous activity that requires the utmost focus.” Hillyer v. Hartford Life and Acc. Ins. Co., 2011 WL 925027, *14 (N.D.Ala. Jan. 31, 2011). Courts have upheld decisions to deny benefits for seizure related disabilities where there was “no indication the claimant’s driving was ever restricted.” Deel v. United of Omaha Life Ins. Co., 2012 WL 928349, *6 (E.D.Mich. Feb. 27, 2012); see Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 87 (2d Cir.2009). Moreover, while surveillance evidence “is of limited utility .... where the evidence obtained during surveillance is not inconsistent with the claimant’s own account of her activities,”' Marantz v. Permanente Medical Group, Inc. Long Term Disability Plan, 687 F.3d 320, 329 (7th Cir.2012), it may be used in conjunction with other medical evidence to support an administrator’s decision to terminate benefits. See id.; Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1052 (8th Cir.2011)(stating video evidence need not conclusively establish a claimant’s disability, but it does provide another form of objective evidence upon which an ERISA administrator may base its claims determination). When considering the medical opinions of its independent doctors as evidence to support its determination, the plan administrator “need not accord extra respect to the opinions of a claimant’s treating physicians” and “may credit[] those opinions over the opinions of [the claimant’s] doctors.” Blankenship, 644 F.3d at 1356. Here, the surveillance video demonstrated no objective evidence that Bloom suffered from seizures or was cognitively impaired. In the video she talked on her cell phone, shopped, visited with friends, unloaded chairs from the back of her car, and drove almost 90 miles in two days. Notably, the surveillance video contradicts the findings of her treating physician, Dr. Shiftan, who states in his appeal letter to Hartford that Bloom suffers absence seizures almost daily. The video evidence is not conclusive. As Bloom explained in a post-surveillance interview, the activities witnessed were not inconsistent with her initial reports that her seizures were “hit or miss” and she was capable of performing most tasks independently when she did not experience a seizure. When taken in conjunction with the conclusions reached by Hartford’s two independent physicians that Bloom was not disabled and there was no finding of cognitive impairment, however, the surveillance video becomes a reliable form of evidence contradicting Bloom’s disability claim. Thus, the Court cannot say that Hartford was wrong in relying on this evidence in terminating Bloom’s benefits. Furthermore, the Court finds that Hartford was not wrong in crediting the opinions of its reviewing physicians over that of Dr. Shiftan’s. See Giertz-Richardson v. Hartford Life & Acc. Ins. Co., 536 F.Supp.2d 1280, 1291 (M.D.Fla.2008)(“While Plaintiffs doctors believe that Plaintiff was unable to work, it was not wrong for Defendant to credit the opinions of the [] doctors that reviewed Plaintiffs medical records over the opinions of Plaintiffs doctors.”). As noted above, Dr. Shiftan’s reports of Bloom’s inability to work due to daily seizures are belied by the surveillance video evidence. Moreover, Dr. Shiftan’s diagnosis, which does not by itself establish a disability, Jordan v. Northrop Grumman Corp., 370 F.3d 869, 880 (9th Cir.2004), is undermined by the fact that it was labeled by Drs. Grossman and Engstrand as solely subjective, and was based “on [Bloom’s] subjective reports [which] are inconsistent with the clinical findings.” Both doctors found there was no objective evidence to support Bloom’s claims of seizures and related cognitive impairment, and they both concluded that Bloom could work without restriction or limitation. Thus, while Hartford was obligated to consider Dr. Shiftan’s diagnosis and the letters from family and friends attesting to Bloom’s disorder, it was not wrong to rely on the surveillance video and opinions of two independent physicians to conclude that she did not, in fact, meet her burden in proving that she could not perform the essential duties of her job and thus was disabled. Bloom makes several substantive attacks on Hartford’s decision. Bloom claims that Hartford “inexplicably reversed course” when it first approved her claim for long-term disability benefits and later terminated it. She claims that Hartford wrongfully terminated her claim based on a lack of objective evidence of her disability, in that it failed to obtain available diagnostic evidence to establish her disability, namely, an abnormal ambulatory EEG and a neuropsychological examination. Furthermore, Bloom claims that the medical opinions of Drs. Grossman and Engstrand are unreliable, as both doctors opinions were biased from viewing Bloom’s surveillance video. First, under the plan, Bloom’s benefits are contingent on her continuing proof of disability. Her burden is the same whether Hartford “denies a claim initially or decides to discontinue benefits after initially approving them.” Richards v. Hartford Life and Acc. Ins. Co., 356 F.Supp.2d 1278, 1284 (S.D.Fla.2004), aff'd, 153 Fed.Appx. 694 (11th Cir.2005). Therefore, Hartford’s prior approval of benefits does not prevent it from “subsequently finding [a] claimant fails to show ongoing disability.” Meadows v. Am. Airlines, Inc., 2011 WL 1102774, *20 (S.D.Fla. Mar. 24, 2011). Importantly, Hartford’s initial decision to approve Bloom’s benefits was based on its conclusion that she could not work due to uncontrolled seizure activity, a determination founded on Dr. Shiftan’s treatment notes of Bloom’s self-reported complaints. Its latter decision to terminate her benefits, however, was based on subse quent contradicting evidence, namely, a surveillance video and an IME which indicated Bloom suffered no impairment of any kind whatsoever. Thus, the information Hartford had before it at the time of its initial decision to approve benefits and at the time of its decision to terminate benefits was drastically different. Hartford, therefore, cannot be “bound” by its prior decision to approve Bloom’s benefits, and Bloom’s argument to the contrary misunderstands the burdens allocated to the claimant and the administrator during the claims process. That is, Bloom “retains the burden of proving continued disability” and Hartford “has no burden of proving a change in [her] condition to justify benefits termination.” Clark v. Hartford Life and Acc. Ins. Co., 2006 WL 890660, *5 (M.D.Fla. Apr. 6, 2006), aff'd, 195 Fed.Appx. 932 (11th Cir.2006) (citation omitted). Considering the foregoing, Hartford was not wrong to terminate Bloom’s benefits on her failure to demonstrate objective proof of her disability. “[W]here the plan puts the burden on the claimant to prove that she is disabled, it is implicit in the requirement of proof that the evidence be objective.” Watts v. BellSouth Telecomms., Inc., 218 Fed.Appx. 854, 856 (11th Cir.2007). And where a condition is subjective in nature, “it is reasonable to expect objective medical evidence of an inability to work.” Creel v. Wachovia Corp., - Fed.Appx. -, -, 2009 WL 179584, *9 (11th Cir. Jan. 27, 2009). Here, Drs. Grossman and Engstrand found Dr. Shiftan’s medical reports of Bloom’s conditions to be “subjective,” noting that his reports were “primarily historical” and that Bloom’s “subjective complaints are inconsistent with the clinical findings.” While Bloom introduced testimonial letters from family and friends attesting to her seizures and cognitive dysfunction resulting therefrom, an examination conducted by Dr. Grossman and a medical review by Dr. Engstrand found no corroborative evidence to support their testimony. In fact, medical tests conducted on Bloom by Dr. Grossman demonstrated no abnormalities suggesting a seizure disorder or cognitive impairment, at all. While Dr. Engstrand noted there “was a question of a mild hypercoagulable state,” she found it clinically insignificant and able to be treated with aspirin. Simply put, the Court cannot find that Hartford was wrong to consider the subjective evidence presented by Bloom as insufficient to demonstrate proof of her disability, particularly in light of the lack of objective evidence supporting her claims. See Fick v. Metro. Life Ins. Co., 347 F.Supp.2d 1271, 1286 (S.D.Fla.2004) (finding that a claim administrator may require objective medical evidence in order to prevent benefits “payable to any participant with subjective and effervescent symptomology merely because the symptoms were first passed through the intermediate step of self-reporting to a medical professional”) (citation omitted). Furthermore, Hartford was not required to obtain objective evidence to support Bloom’s claim. See Wright v. Hartford Ben. Mgmt. Servs., 2012 WL 1680094, *7 (D.N.J. May 11, 2012). As stated above, Bloom retains the burden to prove she is disabled under the plan. Therefore, it was her duty to introduce evidence sufficient to support a finding that she was disabled at the time her claim determination. Bloom’s contention that Hartford may not rely on a lack of objective evidence to terminate her benefits where it failed to obtain her abnormal ambulatory EEG and to conduct neuropsychological testing, then, is unpersuasive. Moreover, the only mention of Bloom’s abnormal EEG was contained in Dr. Shiftan’s appeal letter, which in one sentence he stated: “In addition, her ambulatory EEG was abnormal.” Dr. Shiftan did not ascribe any particular significance to test, and it was not provided with his letter. Furthermore, Dr. Engstrand attempted to contact Dr. Shiftan on numerous occasions after he submitted his appeal letter to discuss Bloom’s claim, but he did not return her calls. To hold Hartford responsible for knowing this evidence was material and for collecting it “misinterprets an ERISA administrator’s role in the decisionmaking process.” Sell v. UNUM Life Ins. Co. of Am., 2002 WL 31630707, *7 n. 4 (E.D.Pa.2002). Hartford could have referred Bloom for neuropsychological testing, but the Court does not find that its decision to forego such testing was wrong. Hartford prepared a referral form to send Bloom to a neuropsychologist for cognitive testing and its representative testified that a neuropsychological exam could be expected to be performed in a situation where a claimant’s treating physician reported cognitive impairment but not formal testing had been done. But, Dr. Grossman performed a standard neurological exam on Bloom and found no evidence to suggest Bloom had a seizure disorder or any cognitive abnormalities. Moreover, surveillance indicated no evidence of seizure activity; rather, Bloom appeared completely normal, capable of performing high-functioning tasks, such as driving. In light of this evidence, Hartford may have decided neuropsychological testing was not necessary. Or, Hartford may have decided a file review by Dr. Engstrand, who found no evidence of seizures or cognitive impairment, may have been more a more reliable form of assessing Bloom’s condition. As Bloom indicates, Hartford’s training guidelines state that “not all neurological seizure activity shows up on electrographic recordings.” Given this, the Court cannot say Hartford was wrong in choosing a file review over neuropsychological testing. In any event, as discussed below, Hartford’s failure to conduct neuropsychological testing certainly does not result in a finding that Hartford’s decision to terminate benefits on the evidence before it was arbitrary and capricious. See Blankenship, 644 F.3d at 1357 (“[W]e do not conclude ... that [the administrator’s] use of “file” reviews by its independent doctors— instead of live, physical examinations of [the claimant] — counted as evidence that [the administrator] acted arbitrarily and capriciously .... ”). Hartford relied on the opinions of two independent doctors and a surveillance video to terminate Bloom’s benefits. Furthermore, Bloom has made no showing that neuropsychological testing would result in reliable and objective evidence to support her claim of disability. The mere possibility that such testing would reveal neurological seizure activity does not prove that those seizures would be of such frequency and severity to render her disabled. Her hypothetical is not enough, in this case, to overturn Hartford’s reasoned determination. Ultimately, Hartford was “under no duty to conduct its own investigation or gather more information as long as its decision based on the information available [was] not arbitrary and capricious.” Eppley v. Provident Life and Acc. Ins. Co., 789 F.Supp.2d 546, 573 (E.D.Pa.2011). Finally, Bloom claims that the independent medical opinions on which Hartford relied were unsupportable and unreliable; however, she draws no evidence from the record to support her claim. Dr. Shiftan, Bloom’s treating physician, saw her once a month, and therefore, relied mainly on her self-complaints as a basis for his diagnosis. To the contrary, Drs. Grossman and Engstrand considered a whole body of evidence, including Dr. Shiftan’s treatment notes, Dr. Grossman’s IME, and direct observations of Bloom via surveillance video to determine that Bloom lacked clinical support for her disorder. Bloom argues their opinions are prejudiced because they relied on the surveillance video provided by Hartford without her statements given in a follow-up interview in which she states the video is consistent with her claims of the “day-to-day” nature of her seizures. This claim is belied by evidence in the record, however. It is clear that both doctors were aware of the reported sporadic nature of Bloom’s seizure disorder at the time of their review, with Dr. Engstrand specifically noting “[Bloom] states that a video investigation missed her bad days” and “tries to avoid driving.” Therefore, the Court does not find Hartford was wrong to provide those doctors with the video as a form of objective evidence on which to inform their opinions. Bloom’s further attempts to discredit the medical opinions of Hartford’s independent physicians are unpersuasive. She introduces Hartford’s deposition testimony and internal training manual as sources which support her claim that a disability claim can be supported by subjective evidence alone and that seizure activity cannot always be objectively recorded. Even in light of this evidence, however, one does not, and cannot, jump to the conclusion that a disability claim can always be supported on subjective evidence alone, or that seizure activity can never be objectively recorded. Here, Hartford was presented with testimony from Bloom and her doctor that she experienced debilitating seizures, but it was also presented with surveillance evidence and medical reports that she experienced no seizures at all, and in either case, was fit to work without restriction. Thus, the Court finds that is was “entirely appropriate” to rely on the reviewing physicians’ reports to “rebut the opinion of the treating physician[ ] asserting [Bloom] is disabled,” Hufford v. Harris Corp., 322 F.Supp.2d 1345, 1359 (M.D.Fla.2004), and to determine Bloom was not disabled under the plan. ii. Hartford’s Decision to Deny Benefits was Not Arbitrary and Capricious While Blankenship instructs the Court to end its inquiry after determining an administrator’s benefits-denial decision was not wrong, the Court simply notes that under the facts of this case and prevailing case law, Hartford’s decision cannot be seen as arbitrary and capricious. This standard requires the Court to determine if there is “a reasonable basis” for the administrator’s decision. Blankenship, 644 F.3d at 1355. A reasonable determination is not necessarily the “best” determination, or even the result the Court would have reached. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 675 (9th Cir.2011) (“[r]easonableness does not mean that we would make the same decision”). Rather, “[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Perry v. United Food & Comm. Workers Dist. Unions, 64 F.3d 238, 241 (6th Cir.1995). Thus, “even if there is evidence that would support a contrary decision,” Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1140 (11th Cir.1989), the Court must accord deference to the administrator’s decision if reasonable. Here, considering the facts as presented above, it is clear that a reasonable basis existed for Hartford’s decision to terminate Bloom’s benefits. Again, Bloom submitted no concrete, objective evidence in support of her claim that she could not work due to her seizure disorder and related cognitive disability. Dr. Shiftan’s medical records were described as “primarily historical” and based on Bloom’s “subjective reports” by Hartford’s independent physicians. While hospital records demonstrate that Bloom complained of “petit mal seizures” and that “seizure precautions” were taken, there are no reports from any medical professional actually observing a seizure occur. Furthermore, though Bloom’s family and friends wrote letters testifying as to her seizures and inhibited cognitive function, a diagnostic examination and file review performed by Hartford’s independent doctors found no clinical evidence to support those claims. Even if it was the case that Bloom, or the Court, could offer an equally reasonable interpretation of the evidence to support an award of benefits in this instance, Hartford’s denial of benefits cannot be reversed if a reasonable basis exists to support it. See Rutledge v. Liberty Life Ass. Co., 481 F.3d 655, 659 (8th Cir.2007) (“we must affirm if a reasonable person could have reached a similar decision, given the evidence before him, not that a reasonable person would have reached that decision”) (emphasis in original). In fact, as discussed below, the majority of Bloom’s challenges to Hartford’s decision are procedural, not substantive in nature, as it is clear that a reasonable basis, even if disputed, exists to support Hartford’s benefits-denial. Because the Court does not find the procedural irregularities surrounding Bloom’s benefits determination to amount to a deprivation of a full and fair review of her claim, the Court holds that Hartford’s decision to terminate Blooms benefits was supported by a reasonable basis and was not arbitrary and capricious, iii. Hartford Provided a Full and Fair Review of Bloom’s Claim Bloom claims that Hartford failed to act in accordance with its internal policies, and thus, failed to provide a full and fair review of her claim. Particularly, Bloom claims that Hartford: (1) improperly initiated and used surveillance as a basis to terminate her benefits; (2) failed to acknowledge consideration of Bloom’s Social Security Disability (“SSD”) award in Bloom’s termination letter; and (3) failed to employ a “perfection statement” to notify Bloom of information absent from the administrative record. Based on its procedural noncompliance, Bloom argues that Hartford’s decision should be reversed or Bloom’s claim should be remanded for a full and fair review. While Hartford failed, in some respects, to fully comply with its internal claims procedures, the Court finds that any irregularities did not deprive Bloom of a full and fair review of her claim such that Hartford’s decision to terminate her benefits was unreasonable. Pursuant to ERISA § 508, the Full and Fair Review Regulations mandate certain requirements for the claims review process. See 29 U.S.C. § 1135; 29 C.F.R. § 2560.503-1. Among these is the obligation that administrators establish and maintain reasonable procedures for evaluating benefit claims. 29 C.F.R. § 2560.503-1(b). In Glenn, the Supreme Court rejected the proposition that courts should subject a conflicted administrator, imbued with discretion to approve or deny benefits, to an altered standard of review when reviewing claims of procedural misconduct. See Glenn, 554 U.S. at 115, 128 S.Ct. 2343 (observing that trust, law, which informs ERISA jurisprudence, continues to apply a deferential standard of review to a conflicted decisionmaker when determining whether he, substantively or procedurally, abused his discretion). Thus, the Court’s inquiry is directed toward whether Hartford’s procedural violations substantially impacted Hartford’s determination of Bloom’s claim such that she did not receive a full and fair review and Hartford abused its discretion in terminating her benefits. See Miller v. Am. Airlines, Inc., 632 F.3d 837, 852-53 (3d Cir.2011)(“[administrator’s] noncompliance with the statute weighs in favor of finding that [its] decision was arbitrary and capricious”). As discussed below, the Court finds Hartford’s procedural violations did not rise to this level. Bloom criticizes Hartford’s decision to employ surveillance, claiming that Hartford prematurely conducted surveillance without a “pre-surveillance investigation.” To support her claim, Bloom points to language in Hartford’s claims manual which states that surveillance should be conducted “only after conducting an appropriate pre-surveillance investigation.” Hartford’s representative testified that a pre-surveillance investigation means “don’t do surveillance as a first step.” Additionally, Bloom points to Hartford’s records which indicate that Bloom was “refer[ed] to siu [special investigations unit] to see if they can impact [the] claim,” indicating that Hartford arbitrarily took measures to terminate her benefits. The Court finds that any failure by Hartford to take prior steps to investigating Bloom’s claim before employing surveillance did not amount to abuse of discretion. A further reading of the records cited by Bloom indicates that the claim manager also noted that Bloom’s “disability appears mainly supported by subjective complaints of seizures.” Thus, while it appears Hartford failed to abide by its internal policies by referring Bloom’s claim for surveillance prior to some type of presurveillance investigation, it ultimately cannot be said that Hartford’s noncompliance was arbitrary, or that it impacted Bloom’s claim in such a way that she did not receive a fair review of her benefits determination. Hartford may have concluded that because Bloom’s claims were entirely subjective, that other typical, preinvestigative procedures were futile. Moreover, it may have concluded that surveillance was the best method to verify her claim and condition. See Kiloh v. Hartford Life Ins. Co., 2005 WL 2105957, *13 (M.D.Fla. Aug. 31, 2005). (video surveillance has “great utility” for “verifying many components of the subjective self-reporting and the corresponding opinions rendered on such self-reporting”). In the end, the administrative record included Bloom’s subsequent explanation of her ability to drive and perform other functional activities recorded in the surveillance video. Thus, Bloom’s main concern — the surveillance video was not a fair depiction of her debilitating condition — was mitigated by the inclusion of her statements in the record, considered by Hartford and the independent physicians. Therefore, the Court does not find that Hartford’s use of surveillance prejudiced Bloom’s claim or prevented the full development of the administrative record. Bloom’s other procedural challenges fall to the same fate. Hartford’s failure to specifically acknowledge that Bloom’s SSD award was considered in its determination to terminate her benefits “does not make [its] decision wrong or even unreasonable.” Herman v. Metro. Life. Ins. Co., 689 F.Supp.2d 1316, 1326 (M.D.Fla.2010). That is because the “legal principles controlling the Social Security analysis are different from those governing the ERISA analysis.” Id. This is particularly true when Hartford had objective, reliable evidence rebut Bloom’s claim of disability, i.e., medical examinations and reports indicating no neurological abnormality or cognitive impairment. See also Richards, 356 F.Supp.2d at 1288-89 (recognizing that Social Security Administration decisions are “not persuasive in ERISA benefits cases”). Furthermore, Bloom’s reliance on Hartford’s failure to issue a “perfection statement” is equally unavailing. In particular, Bloom claims that Hartford failed to notify Bloom of relevant evidence missing from her file, namely, abnormal ambulatory EEG and a neuropsychological exam to support her cognitive deficits. A review of Hartford’s claim manual, however, reveals that a perfection statement is only required if Hartford’s termination was based on “a failure to submit an element of “proof of loss” that [it] requested, but did not receive .... ” Here, Hartford’s benefits-denial was not based solely on Bloom’s failure to produce objective evidence of her disability; rather, the surveillance video and IME demonstrated objective evidence contradicting Bloom’s claim. Moreover, examples provided in Hartford’s claims manual of when a perfection statement should be issued indicate that it is more appropriately used when an administrator requests specific, tangible materials pertinent to a claimant’s claim. See Ex. A to Pl.’s Resp to Def.’s Mot. for Summ. J. [DE 65] (a “perfection statement” is required when “a requested APS of Continued Disability” is not provided; an “updated narrative and/or records” is not provided; or “documentation of Current Monthly Earnings” is not provided). To allow Bloom to rely on Hartford’s failure to provide a perfection statement as a sword to overturn its decision based, in part, on her categorical failure to produce objective evidence to support her claim, exceeds the purpose and applicability of the perfection statement in the ERISA context. See Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1465 (9th Cir.1997) (interpreting the Full and Fair Review Regulations, stating: “If the plan is unable to make a rational decision on the basis of the materials submitted by the claimant, it must explain what else it needs.”). In any condition, Hartford was under no duty to obtain objective evidence on behalf of Bloom to support her claim, especially where there is no indication that an abnormal EEG or neuropsychological exam would provide any definitive support for Bloom’s disabling condition. See Giordano v. Thomson, 564 F.3d 163, 168 (2d Cir.2009) (holding that “remand is unnecessary where it would be futile”). Ultimately, the Court finds that Hartford’s procedural violations were de mini-mus in nature and did not impact a full and fair review of Bloom’s claims. Bloom did not demonstrate that these procedural violations amounted to a conflict of interest with “sufficient inherent or case-specific importance.” Blankenship, 644 F.3d at 1357 (internal citation omitted). Thus, the Court cannot conclude that Hartford’s decision to terminate Bloom’s benefits was wrong or arbitrary and capricious. Therefore, the Court declines Bloom’s request for remand based on procedural irregularities and upholds Hartford’s decision to terminate her long-term disability benefits in this instance. IV. Conclusion The Court has carefully considered the motions, responses, replies, applicable law, and pertinent portions of the record. For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that: 1) Bloom’s motion to supplement the administrative record [DE 51] is DENIED; 2) Hartford’s motions to strike Bloom’s exhibits [DE 54, 69] is DENIED; 3) Hartford’s motion for summary judgment [DE 42] is GRANTED; 4) Bloom’s motion for summary judgment [DE 46] is DENIED. Final judgment will be issued by separate order. . Here, Hartford is the plan administrator, vested with "full discretion and authority” to determine entitlement to disability benefits under the plan. . The Court’s finding is not exclusive. There may be other circumstances where a court finds it appropriate to permit extra-record evidence or supplement the administrative record. For example, in Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th Cir.2008), the Ninth Circuit held that where an administrator raises a new reason for denying benefits for the first time in an appeal determination, and where the appeal determination is otherwise substantially deficient, a court may permit the claimant and the administrator to submit new evidence bearing on that issue to the court for its consideration. Saffon, 522 F.3d at 874 n. 6. . The court’s reference to “discovery” of extra-record evidence implies its admissibility. . The Eleventh Circuit provides there is an inherent, or structural, conflict of interest where the ERISA plan administrator both makes eligibility decisions and pays awarded benefits out of its own funds, as is the case here. Blankenship, 644 F.3d at 1355. Thus, the Court permits extra-record evidence in light of this fact. The Court does not address whether it is appropriate to supplement the administrative record in cases where no structural conflict of interest exists, i.e., the plan is self-funded by the employer. Case law suggests that Glenn stands for the proposition that discovery of matters outside the administrative record is permissible only when such a conflict of interest exists. See Glenn, 554 U.S. at 117-18, 128 S.Ct. 2343; Worsley v. Aetna Life. Ins. Co., 780 F.Supp.2d 397, 408 (W.D.N.C.2011) (holding that Glenn permits supplementation of the administrative record "regarding the procedural safeguards it has implemented to ensure that its inherent structural conflict of interest does not lead to biased claim determinations”). Notably, the Tenth Circuit recently refused to consider "a variety of bias-related information from depositions, testimony, and judicial opinions in other cases” where, because the plan was self-funded by the employer, the court found that “any conflict of interest is more attenuated than in other ERISA cases,” and thus, "the rationale for considering extra-record evidence ... is diminished.” Williams v. Metro. Life Ins. Co., 459 Fed.Appx. 719, 728 (10th Cir.2012). . Bloom and a friend claim that Dr. Gross-man stated she was disabled following the examination. The Court finds that Hartford was not wrong to rely on Dr. Grossman's written, signed report instead of the alleged verbal statements made to Bloom after her examination. . Section 2560.503—1 (g)(iii) of the Full and Fair Review Regulations also mandates a plan administrator to provide a claimant “a description of any additional material ... necessary for the claimant to perfect the claim and an explanation of why such material ... is necessary ....” 29 C.F.R. § 2560.503-1(g)(iii). Bloom does not rely on this provision to assert Hartford failed to provide a full and fair review. Regardless, as the Court discussed above, Bloom makes no showing that a neuropsychological exam — the evidence Bloom contends that Hartford failed to notify her to obtain — would provide an objective basis to substantiate her seizure disorder or cognitive impairment. In other words, the Court finds that such evidence was not necessary to “perfect" Bloom’s claim, as there is no indication it would do so.

ORDER JAMES S. MOODY, JR., District Judge. THIS CAUSE comes before the Court upon Plaintiffs Motion to Remand (Dkt. 7) and Defendant Margaret Ferris’ Response in opposition (Dkt. 15). The Court, having considered the motion, response, and being otherwise advised of the premises, concludes that the motion should be denied. BACKGROUND Plaintiff Jeanne H. Thompson commenced this action in Circuit Civil Court in and for Polk County, Florida, seeking to appoint Calene Hernandez as her legal guardian and contemporaneously seeking an ex parte injunction freezing accounts held by Defendants Discover Bank (“Discover”), Ameriprise Financial Services, Inc. (“Ameriprise”), and Americo Financial Life and Annuity Insurance Company (“Americo”). The second amended complaint alleges liability and damages solely against Defendant Margaret P. Ferris related to her alleged conversion, duress, interference with an expectancy, and elder abuse. Specifically, the second amended complaint alleges that Ferris, who maintained a close, personal relationship of trust and confidence with Thompson, coerced and unduly influenced Thompson to alter and change the ownership of Thompson’s financial accounts to reflect joint ownership with Ferris, with rights of survivorship. The second amended complaint further alleges that Thompson was demented, feeble-minded, mentally weak, and incapable of fending off coercion, duress, or undue influence. On September 12, 2012, Ferris timely removed the state-court action to this Court based on diversity. On October 9, 2012, Hernandez filed the instant motion to remand. Hernandez acknowledges that the parties are diverse and the requisite amount of controversy is met. Hernandez also acknowledges that the removal is timely. Hernandez’s single argument in favor of remand is that the removal is defective because Ferris’ eo-Defendants, to wit, Discover, Ameriprise, and Americo, did not join in or consent to the removal. For the reasons set forth below, the Court concludes that the motion to remand should be denied because Discover, Ameriprise, and Americo are nominal parties whose consent was unnecessary for removal purposes. DISCUSSION The United States Constitution and Congress limit a federal court’s jurisdiction by restricting the types of cases which the federal courts may hear. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). For this reason, statutes authorizing removal of actions to federal courts are to be strictly construed against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Burns, 31 F.3d at 1095 (“[Rjemoval statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.”). In fact, because federal courts are of limited jurisdiction “there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir.2001) (internal citations and quotations omitted). Federal courts have diversity jurisdiction over civil actions when the amount in controversy exceeds $75,000 and the action is between citizens of different states. 28 U.S.C. § 1332(a). Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant. The removing party bears the burden of demonstrating that removal is proper. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir.2001). However, for purposes of a diversity jurisdiction analysis, the citizenship of “nominal” parties need not be considered. Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 460-61, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980). In general, “nominal or formal parties, being neither necessary nor indispensable, are not required to join in the petition for removal.” Smith v. Health Ctr. of Lake City, Inc., 252 F.Supp.2d 1336, 1339 n. 5 (M.D.Fla.2003) (quoting Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, Int’l Printing Pressmen & Assistants’ Union of N.A., 427 F.2d 325, 327 (5th Cir.1970)) ; see also Property Choice Group, Inc. v. LaSalle Bank Nat. Ass’n, 2012 WL 2568138, at *1 (M.D.Fla. July 2, 2012) (noting that “[a] defendant may remove without the consent of a nominal party”). “The ultimate test of whether the ... defendants are ... indispensable parties ... is whether in the absence of the [defendant], the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to plaintiff.” Smith, 252 F.Supp.2d at 1339 n. 5 (internal citations and quotations omitted). Whether a party is necessary or indispensable “depends on the facts in each case.” Id. (internal citations and quotations omitted); see also Property Choice Group, Inc., 2012 WL 2568138, at *1 (noting that “[a] nominal party includes a party with no legal interest in the outcome of the action and a party in whose absence the plaintiff can obtain sufficient relief’). Hernandez’s claims in this case demonstrate that Defendants Discover, Ameriprise, and Americo are nominal parties; specifically, their only connection to this case relates to the custody of the relevant financial accounts, which they hold. As financial institutions, they have no legal interest in the outcome of the dispute, which is between Hernandez, as Thompson’s legal guardian, and Ferris. Importantly, the second amended complaint is devoid of any allegations of wrongdoing or liability against Discover, Ameriprise, or Americo. Simply put, Discover, Ameriprise, and Americo are financial institutions with no stake in the outcome of this case. Accordingly, as nominal parties, their consent to the removal was not required. See Gaetke v. Bankers Life & Cas. Co., 1997 WL 211234, at *2-3 (N.D.Ill. April 22, 1997) (holding that defendant Bankers Life & Cas. Co. was a nominal party whose presence did not affect removal because “the allegations of the complaint made clear that the actual dispute was between the siblings and father and that Bankers Life was only holding funds which one or more of the other parties were entitled to obtain”); see also Argo Global Special Situations Fund v. Wells Fargo Bank, N.A., 810 F.Supp.2d 906 (D.Minn.2011); Sun River Energy, Inc. v. Mirador Consulting Inc., 2011 WL 3703229 (N.D.Tex. Aug. 19, 2011). It is therefore ORDERED AND ADJUDGED that Plaintiffs Motion to Remand (Dkt. 7) is DENIED. . The complete state-court record was not filed with this Court. It appears, from a review of the state-court docket, that the state court appointed Calene Hernandez as Thompson’s legal guardian prior to the removal of the action to this Court and granted the ex parte injunction, thereby freezing the relevant financial accounts. . Ferris was served on August 13, 2012. . The Eleventh Circuit adopted as precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).

OPINION AND ORDER JAMES L. GRAHAM, District Judge. This is an action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Plaintiffs Rusby Adams, Jr., Leslie Schell, Daniel Stewart and Kevin Jones are former employees of the Metal Container Corporation (“MCC”), a subsidiary of defendant Anheuser-Busch Companies, Inc. (“ABC”). Adams was employed at the MCC plant in Columbus, Ohio, Schell and Stewart were employed at the MCC plant in Gainesville, Florida, and Jones was employed at the MCC plant in Fort Atkinson, Wisconsin. As employees of MCC, plaintiffs were participants in the AnheuserBusch Companies Pension Plan (“the Plan”). Administrative Record (“AR”), Ex. 1. ABC was acquired by InBev, N.V. (“InBev”), a Belgian beverage company, on November 18, 2008. MCC was later sold to Ball Corporation (“Ball”) on or about October 1, 2009, and plaintiffs were then employed by Ball. At or around the time of the sale of MCC, plaintiffs made claims for benefits under § 19.11(f) of the Plan. AR Exs. 2-A (Adams claim letter dated September 25, 2009), 3-A (Schell claim letter dated December 23, 2009), 4-A (Stewart claim letter dated September 25, 2009), and 5-A (Jones claim letter dated October 5, 2009). Section § 19.11(f) states that the retirement benefit of any participant “whose employment with the Controlled Group is involuntarily terminated within three (3) years after the Change in Control” shall be entitled to certain enhanced retirement benefits. Plaintiffs claimed that because they were no longer employed by an ABC-affiliated “Controlled Group” company within three years of the acquisition of ABC due to Ball’s acquisition of MCC, their employment had been “involuntarily terminated” within the meaning of § 19.11(f), and they were entitled to the enhanced retirement benefits. Plaintiffs were notified on December 23, 2009, that their claims for benefits under § 19.11(f) were being denied because they had accepted employment with Ball Corporation. AR Exs. 2-B, 3-B, 4-B, and 5-B. On February 18, 2010, plaintiffs appealed the denial of their benefits to the Anheuser-Busch Companies Pension Plans Appeals Committee (“the Committee”). AR Exs. 2-C, 3-C, 4-C, and 5-C. On June 17, 2010, the appeal was denied by the Committee. AR Exs. 2-F, 3-F, 4-F, and 5-F. Plaintiffs then filed the instant action as individuals and as representatives of a class of similarly-situated former employees of MCC. Count One of the complaint asserted a claim for benefits pursuant to 29 U.S.C. § 1132(a)(1)(B), and Count Two advanced a claim for breach of fiduciary duty under 29 U.S.C. § 1132(a)(2). By order dated April 25, 2011, 2011 WL 1559793, this court granted defendants’ partial motion to dismiss. Count Two of the complaint and the claims against defendants Anheuser-Busch InBev and Jeff Karrenbrock were dismissed. The remaining defendants are the Plan, the Committee, and ABC. By orders dated March 28, 2012, 2012 WL 1058961, and April 2, 2012, this court granted plaintiffs’ motion for class certification and certified the following class: All persons who were participants in or beneficiaries of the Anheuser-Busch Companies Pension Plan and the Supplement for the Anheuser-Busch Salaried Employees’ Pension Plan (the “Plan”) who were employed at any Metal Container Corporation plant within the “Controlled Group” of AnheuserBusch-related companies that was sold to a buyer outside the “Controlled Group” (the “Amended Proposed Class”) at any time between November 18, 2008 and November 17, 2001 (the “Class Period”). This matter is now before the court on plaintiffs’ motion for judgment on the administrative record. Defendants have filed a brief in support of the Committee’s decision. I. Standard of Review A. Arbitrary and Capricious Standard of Review A plan administrator’s denial of benefits is reviewed de novo unless the benefit plan specifically gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Morrison v. Marsh & McLennan Companies, Inc., 439 F.3d 295, 300 (6th Cir.2006). Where an ERISA plan gives the plan administrator such discretionary authority, the administrator’s decision is reviewed under the arbitrary and capricious standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Plan in this case provides that the “Plan Administrator shall have such duties and powers as may be necessary to discharge its duties hereunder, including, but not by way of limitation, the following: (a) to construe and interpret the Plan, decide all questions of eligibility and determine the amount, manner and time of payment of any benefits hereunder[.]” Plan § 14.5. The Plan states: An interpretation or construction placed upon any term or provision of the Plan by the Plan Administrator, any decisions and determinations of the Plan Administrator of any matter arising under the Plan, including without limiting the generality of the foregoing, ... (c) the time, method and amounts of payments payable under the Plan, (d) the rights of Participants, their spouses, and Beneficiaries, and any other action or determination or decision whatsoever taken or made by the Plan Administrator in good faith shall be final, conclusive, and binding upon all persons concerned, including, but not limited to, the Company, Participating Employers, Employees and former Employees, Participants and former Participants, and their spouses and Beneficiaries. Plan § 14.6. The Plan further provides: [T]he interpretation of all Plan provisions, and the determination of whether a Participant or Beneficiary is entitled to any benefit pursuant to the terms of the Plan, shall be exercised by the Plan Administrator in its sole discretion. Any construction of the terms of the Plan for which there is a rational basis that is adopted by the Plan Administrator shall be final and legally binding on all parties. Plan § 14.11. The “Plan Administrator” is defined as “[s]uch person as the Company [ABC] may so designate in writing, or in the absence of such designation, the Company.” Plan §§ 1.1.11, 1.1.38. The Plan defines “Administrative Committee” as “[a]ny group of individuals who may be appointed by the Plan Administrator from time to time in accordance with Section 15.” Plan § 1.1.4. Section 15 of the Plan authorizes the Plan Administrator to appoint a committee of at least three persons to perform all or any part of the duties of the Plan Administrator. There is no dispute that the three-member Committee is a Plan Administrator. Because the Plan gives the Plan Administrator discretionary authority to determine eligibility for benefits and to interpret the terms of the Plan, this court will apply the arbitrary and capricious standard of review. “Review under the arbitrary and capricious standard is the least demanding form of judicial review of an administrative action; it requires only an explanation based on substantial evidence that results from a deliberate and principled reasoning process.” Morrison, 439 F.3d at 300; see also Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir.2003) (“When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.”); Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir.2000) (if there is a reasonable explanation for the administrator’s decision denying benefits in light of the plan’s provisions, then the decision is neither arbitrary nor capricious). “The arbitrary and capricious standard requires courts to review the plan provisions and the record evidence and determine if the administrator’s decision was ‘rational.’ ” Schwalm v. Guardian Life Ins. Co. of America, 626 F.3d 299, 308 (6th Cir.2010). In reviewing the administrator’s decision, the court’s review is limited to the administrative record which was before the plan administrator at the time of the benefit determination. Schwalm, 626 F.3d at 308. Where the plan grants the administrator discretionary authority to construe and interpret the provisions of the plan, the administrator is entitled to “great leeway in interpreting ambiguous terms.” Shelby County Health Care Corp. v. Southern Council of Indus. Workers Health and Welfare Trust Fund, 203 F.3d 926, 935 (6th Cir.2000). The court “must accept a plan administrator’s rational interpretation of a plan even in the face of an equally rational interpretation offered by the participants.” Morgan v. SKF USA Inc., 385 F.3d 989, 992 (6th Cir.2004); see also Mitzel v. Anthem Life Ins. Co., 351 Fed.Appx. 74, 81 (6th Cir.2009) (“Under the arbitrary and capricious standard, courts must favor a plan administrator’s interpretation over an equally reasonable contrary interpretation.”) (emphasis in original, citing Morgan). B. Conflict of Interest The Plan is a self-funded plan, and the Committee members are ABC employees. Where a plan is a self-funded plan and employees make the decisions regarding an award of benefits, the administrator’s self-interest must be taken into account in applying the arbitrary and capricious standard of review. McCartha v. National City Corp., 419 F.3d 437, 442 (6th Cir.2005); see also Gismondi v. United Techs. Corp., 408 F.3d 295, 299 (6th Cir.2005) (noting that there is an actual, readily apparent conflict when the company or plan administrator is the insurer that ultimately pays the benefits). The conflict of interest inherent in self-funded plans does not alter the standard of review, but rather is taken into account as a factor in determining whether the decision was arbitrary and capricious. Peruzzi v. Summa Medical Plan, 137 F.3d 431, 433 (6th Cir.1998); see also Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). More weight is given to the conflict where circumstances suggest a higher likelihood that it affected the benefits decision. DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d 440, 445 (6th Cir.2009). A long history of biased claims administration may render the conflict more important, as opposed to a situation where the administrator has taken active steps to reduce potential bias and to promote accuracy, in which case the conflict is less important. See Curry v. Eaton Corp., 400 Fed.Appx. 51, 58 (6th Cir.2010). A plan participant must provide “significant evidence” that the conflict actually affected or motivated the benefits decision. Peruzzi, 137 F.3d at 433. If the conflict of interest did not actually motivate the administrator’s decision, then it is given no weight as a factor in determining whether the decision was arbitrary and capricious. See Curry, 400 Fed.Appx. at 59 (noting lack of indication that the denial of benefits specifically was motivated in any part by the conflict of interest); Pflaum v. UNUM Provident Corp., 175 Fed.Appx. 7, 10 (6th Cir.2006) (noting that where plaintiff pointed to nothing beyond the mere existence of a conflict of interest to show that the administrator’s decision was motivated by self-interest, “we give no further consideration in the arbitrary and capricious analysis to the possibility that the conflict affected” the decision). C. Review of Plan Terms Under ERISA, every employee benefit plan must be established and maintained pursuant to a written instrument specifying the basis on which payments are to be made from the plan. 29 U.S.C. §§ 1102(a)(1) and 1102(b)(4); Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285, 300, 129 S.Ct. 865, 172 L.Ed.2d 662 (2009). The plan administrator is obliged to act in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of ERISA. 29 U.S.C. § 1104(a)(1)(D). A plaintiff's claim under § 1132(a)(1)(B) “therefore stands or falls by ‘the terms of the plan[.]’ ” Kennedy, 555 U.S. at 300, 129 S.Ct. 865 (quoting § 1132(a)(1)(B)). “Accordingly, in determining whether benefits were due under the Plan, the starting point is the language of the Plan itself.” Farhner v. United Transportation Union Discipline Income Protection Program, 645 F.3d 338, 343 (6th Cir.2011). Federal common law rules of contract interpretation apply in construing an ERISA plan, and a plan’s provisions must be interpreted “according to their plain meaning, in an ordinary and popular sense.” Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir.1998). Courts are not permitted to rewrite contracts by adding additional terms. Id. at 557. In developing federal common law rules of contract interpretation, courts take direction from both state law and general contract law principles. Id. at 556. The Plan in this case provides that the Plan is governed by Delaware law except as pre-empted by federal law. Plan § 1.2(b). Thus, in addition to applying the federal common law of ERISA, this court will look for guidance to Delaware law, although the basic Delaware and federal law of contract interpretation are substantially the same in this context. Under both federal and Delaware law, the interpretation and construction of a contract is a matter of law for the court. See Detroit Radiant Products Co. v. BSH Home Appliances Corp., 473 F.3d 623, 627 (6th Cir.2007); Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del.Supr.2009). Under Delaware law, a contract’s construction should be that which would be understood by an objective, reasonable third party. Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. Supr.2010). When a contract is clear and unambiguous, courts will give effect to the plain meaning of the contract’s terms and provisions. Id. at 1159-60; see also Williams, 227 F.3d at 711 (when interpreting ERISA plan provisions, general principles of contract law dictate that the provisions be interpreted according to their plain meaning in an ordinary and popular sense). A court must construe the agreement as a whole, giving effect to all provisions therein; however, the meaning which arises from a particular portion of an agreement cannot control the meaning of the entire agreement where such inference runs counter to the agreement’s overall scheme or plan. E.I. du Pont de Nemours and Co., Inc. v. Shell Oil Co., 498 A.2d 1108, 1113 (Del.1985). If a contract is unambiguous, extrinsic evidence may not be used to interpret the intent of the parties, to vary the terms of the contract or to create an ambiguity. Eagle Industries, Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del.Supr.1997). “A contract is not rendered ambiguous simply because the parties do not agree upon its proper construction.” Rhone-Poulenc Basic Chemicals Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 (Del.1992). “Rather, a contract is ambiguous only when the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings.” Id. II. Review of Committee’s Decision A Section 19.11 The Plan at issue in this case is the Plan restated as of January 1, 2001, as amended. See AR Ex. 1. Section 19.11 of the Plan is entitled “Change in Control” and was effective as of September 28, 2000. Section 19.11(d) provides that the “Accrued Benefit of each Participant who is actively employed by a Participating Employer as of the date of a Change in Control shall be fully vested.” The Plan further provided that during the three years following a change in control, the formulas for determining benefits and “the forms of payment available under the Plan shall not be reduced ... and no other benefits, rights and features ... available to Participants shall be eliminated.” Plan § 19.11(e)(ii) and (iii). Section 19.11(f), the provision particularly at issue in this case, states: The Normal Retirement Benefit, Late Retirement Benefit, Early Retirement Benefit or Termination Benefit of any Participant under the Supplement for the Anheuser-Busch Salaried Employees’ Pension Plan ... whose employment with the Controlled Group is involuntarily terminated within three (3) years after the Change in Control ... shall be determined by taking into account an additional five (5) years of Credited Service and Vesting Service and, for purposes of Section 4.3 only, an additional five (5) years of age, and shall in any event be at least fifteen percent (15%) larger than the Participant’s Normal Retirement Benefit, Late Retirement Benefit, Early Retirement Benefit or Accrued Benefit, as calculated without regard to this Section 19.11(f) as of the date the Participant’s employment with the Controlled Group ends; provided that nothing in this Section 19.11(f) shall cause acceleration of a Participant’s Payment Date under the Plan. Section 19.11(f) (emphasis supplied). The phrase “Controlled Group” is defined as “the controlled group of corporations, trades and businesses ... of which the Company is a part, as determined from time to time.” Plan § 1.1.13. The Plan incorporates the definition of “Change in Control” found in the ABC 1998 Incentive Stock Plan, which defines that term as an “agreement of merger or consolidation with another corporation or business entity.” The acquisition of ABC by InBev on November 18, 2008, was the first and only “Change in Control” to occur since the adoption of § 19.11(f). The Plan does not define “employment” or “involuntarily terminated.” B. Plaintiffs ’ Claims for Benefits In a memorandum to employees dated August 21, 2009, ABC took the position that salaried employees who were offered a position with Ball were not eligible for enhanced benefits under § 19.11(f). After September 30, 3009, the effective date of the sale of MCC to Ball, plaintiffs filed their claims for benefits under § 19.11(f). Plaintiffs argued that because their employment “with the Controlled Group” had been terminated, they were entitled to benefits under § 19.11 even though their actual employment otherwise was not terminated, but rather continued uninterrupted under Ball, the new owner of the assets of MCC. Those claims for benefits were denied on the basis that plaintiffs were offered and accepted employment with Ball with compensation and benefits substantially equivalent in the aggregate to the compensation and benefits to which they were entitled immediately prior to the sale. AR Exs. 2-B, 3-B, 4-B, and 5-B. The denial letter included the following reasoning: The purpose for the special benefits under Section 19.11(f) is to provide additional benefits to individuals who are out of work after they involuntarily lose their employment within three years after a change in control of AnheuserBusch Companies, Inc. (which occurred on November 18, 2008). In order for that Section to apply, there must be an actual break in an individual’s employment, rather than simply a change in the legal entity employing the individual, or the owner of that entity, during a continuous employment period. In addition, the break in employment must be involuntary, which would not be the case where an individual is offered, but does not accept, comparable employment with a successor entity. Section 19.11(f) was not intended to apply to situations where an individual does, or is offered the opportunity to, continue employment without any break in the same or similar position and under terms that are substantially similar to those that existed prior to the sale of a facility or entity. In those situations, there has been no involuntary termination of employment within the meaning of Section 19.11(f). AR Exs. 2-B, 3-B, 4-B, 5-B. The decision further stated that because plaintiffs had all been offered and accepted employment with Ball in positions and under terms that were substantially similar to those provided to them prior to the sale, and because their employment continued without a break, plaintiffs’ employment was not “involuntarily terminated” within the meaning of § 19.11(f). AR Exs. 2-B, 3-B, 4-B, and 5-B. C. Decision on Appeal 1. Denial of Benefits as Transferred Salaried Employees Plaintiffs pursued appeals from the denial of benefits to the Committee. By letters dated June 17, 2010, the appeals were denied. See AR Exs. 2-F, 3-F, 4-F, and 5-F. The Committee first noted that the terms of the Asset Purchase Agreement with Ball required Ball to offer employment as of September 30, 2009, the closing date, to salaried employees actively employed and providing services for facilities sold as of that date, with compensation and benefits substantially equivalent in the aggregate to the compensation and benefits provided immediately prior to the sale. The Committee reviewed information regarding plaintiffs’ employment and participation in the Plan. The Committee also reviewed an analysis of the compensation and benefits provided to salaried employees whose employment was transferred to Ball, and determined that their base pay remained the same and that they received substantially equivalent aggregate compensation and benefits as required by the Asset Purchase Agreement. See AR Exs. 2-F, 3-F, 4-F, 5-F. The Committee concluded that plaintiffs were not entitled to enhanced benefits under § 19.11(f) because they “were offered employment in a position under terms that were substantially similar to those provided to [them] prior to the sale ... and therefore their “employment was not involuntarily terminated within the meaning of Section 19.11(f).” AR Exs. 2-F, 3-F, 4-F, and 5-F. In arriving at this conclusion, the Committee considered the provisions of the Plan; evidence of the drafter’s intent, including minutes of the Board of Directors and the Pension Committee of the Board, and information provided by Tom Larson, an ABC employee who was involved in the discussions surrounding the adoption of § 19.11(f); information concerning the application of § 19.11(f); and an opinion letter provided by outside counsel which “advised that there was a reasonable basis for the determination that individuals who were employed by a successor organization in the same capacity and with substantially equivalent wages and benefits were not involuntarily terminated within the meaning of Section 19.11(f).” AR Exs. 2-F, 3-F, 4-F, and 5-F. The Committee’s decision denying the appeals states: Relying on the Board minutes, the opinion of outside counsel and other information considered by the Committee during its review, we find that the Section 19.11(f) enhanced benefit was intended to be provided only to Participants who incur an actual termination of employment as opposed to a change in ownership of the entity employing the individual in the same job without interruption. Individuals who continue their employment in their same positions have not suffered the same harm or incurred the same detriment as those whose positions are eliminated in connection with the type of restructuring that generally occurs following a change in control. It is the situation of the elimination of positions and similar losses of employment that we believe the enhanced benefit provided by Section 19.11(f) was designed to address. AR Exs. 2-F, 3-F, 4-F, and 5-F. The Committee noted that because plaintiffs, as Transferred Salaried Employees under the Ball purchase agreement, were offered and accepted continued employment as of the closing date of the sale of assets to Ball, “they suffered no actual termination of employment in any sense.” The Committee concluded that § 19.11(f), which requires an “involuntary termi nation” of employment, did not apply to such transferred employees. See AR Exs. 2-F, 3-F, 4-F, and 5-F. The court will now address in more detail the information in the administrative record which was considered by the Committee. 2. Review of Other Plan Provisions In reaching its decision, the Committee reviewed other terms contained in the Plan. The Committee considered the language of § 19.11, as well as §§ 14.6 and 14.11, which grant to the Plan Administrator the sole discretionary authority to interpret the provisions of the Plan and to make good faith benefit determinations which are binding on all parties. See AR Exs. 2-F, 3-F, 4-F, and 5-F. The Committee’s decision further stated that the “Committee also reviewed other provisions of the Plan (including Sections 3.1(a) and 2.5). The Committee believes that, reading the plan as a whole, the enhanced benefit provided in the Change in Control provisions does not apply to your situation.” AR Exs. 2-F, 3-F, 4-F, and 5-F. Plan § 3.1 governs the determination of a participant’s severance from service date, provides as follows: Severance from Service Date Except as otherwise provided in Section 3.2, the Severance from Service Date of an Employee shall be the earlier of: (a) the date on which the Employee resigns, retires, dies or is discharged from employment with all members of the Controlled Group, including for this purpose a termination of employment in connection with sale of part or all of its interest in an incorporated or unincorporated business or assets by a member of the Controlled Group. Plan § 3.1(a) (emphasis supplied). The Committee stated in its decision While the transfer of employment in connection with a sale of an entity or assets is specifically addressed in Section 3.1(a) in defining “Severance from Service Date”, there is no similar specification in Section 19.11(f). As a result, a “termination” qualifying for enhanced benefits under the Change in Control provisions does not necessarily include a transfer of employment in connection with a sale of an entity or assets.” See AR Exs. 2-F, 3-F, 4-F, and 5-F. Plaintiffs argue that the phrase “for this purpose” was intended to clarify that a transfer of employment following the sale of a company can qualify as a resignation or discharge under § 3.1(a), and was not intended to limit the application of the phrase “transfer of employment in connection with a sale of an entity or assets” to a determination of an employee’s severance from service date under § 3.1(a). They argue that because the term “discharge” in § 3.1(a) includes a termination of employment in connection with the sale of an entity, the Committee should have interpreted the word “terminated” in § 19.11(f) as including termination of employment in connection with the sale of an entity. They also note payroll documents which show their termination date as being the effective date of the sale of MCC to Ball. However, the plain language “for this purpose” clearly limits the phrase “termination of employment in connection with a sale of an entity or assets” in § 3.1(a) to its use as a factor in determining an employee’s severance from service date. Thus, the fact that plaintiffs’ severance from service date is listed in accordance with § 3.1(a) as being the effective date of the sale of MCC to Ball does not render the Committee’s interpretation of § 19.11(f) arbitrary and capricious. No language in § 3.1(a) mandates that the phrase “termination of employment in connection with a sale of an entity or assets” be incorporated into the words “termination” or “terminated” found in other sections of the Plan such as § 19.11(f). The Committee noted the fact that the Plan drafters included language in § 3.1(a) which specified that a “termination of employment in connection with the sale of an entity or assets” qualified as a “discharge” for the purpose of determining the participant’s severance from service date, but did not include similar language in describing eligibility for benefits under § 19.11(f). The Committee viewed this omission in § 19.11(f) as an indication that “a ‘termination’ qualifying for enhanced benefits under [§ 19.11(f) ] does not necessarily include a transfer of employment in connection with a sale of an entity or assets.” AR Exs. 2-F, 3-F, 4-F, and 5-F. The Committee could reasonably infer from the lack of any specific reference to a sale of an entity in § 19.11(f) that the drafters did not “necessarily” intend for the word “terminated” in § 19.22(f) to have the same meaning as the word “discharged” in § 3.1(a), with its specific but limited qualifying phrase. This conclusion was not unreasonable. See Active Asset Recovery, Inc. v. Real Estate Asset Recovery Services, Inc., No. CIV.A. 15478 (unreported), 1999 WL 743479 (Del.Ch. Sept. 10, 1999) (failure to refer to media overhead charges in contract definition of “direct costs” indicated intent to exclude such charges from the definition). The Committee also referred to Plan § 2.5, which addresses employee transfers and layoffs. Section 2 of the Plan addresses the requirements for eligibility to participate in the Plan. For example, Plan § 2.2(b) requires that the employee must be twenty-one years of age and have completed one year of eligibility service. Plan § 2.3 describes the requirements for completing a year of eligibility service. Plan § 2.4 addresses the effect on eligibility of various types of breaks in service and termination. Section 2.5(a) provides: (a) No transfer or other change in the employment classification, either voluntary or involuntary, of an Employee from a classification of Eligible Employees under this or any other Supplement to the classification of ineligible Employees under this or any other Supplement or to a different classification of Eligible Employees under this or any other Supplement shall be treated as a Break in Service or a termination of employment, whether or not the transferred Employee is reported as having resigned or otherwise ceased employment in the former employment classification. In the case of transfer to a classification of Employees who are ineligible to participate under this or any other Supplement, the transferred Employee shall no longer accrue any benefits under the Plan. In the case of transfer to a classification of Eligible Employees under any other Supplement, the Participant’s rights under the Plan shall be determined pursuant to Section 3.9. Under this section, no “transfer or other change in the employment classification, either voluntary or involuntary” is treated as a “termination of employment” even if the employee “is reported as having resigned or otherwise ceased employment in the former employment classification.” Plan § 2.5(a). Defendants claim that § 2.5 “explicitly excludes transfers from the employment events that will qualify as a ‘termination of employment.’ ” Doc. 71, p. 14. Plaintiffs contend that the language in § 2.5 which excludes transfers from being a “termination of employment” is applicable only in the context of determining eligibility to participate in the Plan, and that it applies only to transfers between Controlled Group employers. The Committee’s decision did not address any of these issues. The Committee did not engage in any analysis of the wording of § 2.5 in its decision or express any conclusion regarding the meaning or scope of § 2.5; rather, it simply stated that it had “reviewed” other Plan provisions, including § 2.5 and § 3.1(a). This statement occurred immediately before the Committee’s observation that the fact that § 3.1(a) contained an express provision regarding discharge resulting from the termination of employment following the sale of an entity, whereas § 19.11(f) did not, indicated that a transfer of employment was not necessarily a “termination” for purposes of qualifying for benefits under § 19.11(f). The most that this court can glean from the Committee’s brief reference to § 2.5 is that the Committee was aware that there was precedent elsewhere in the Plan for transfers not being considered as terminations of employment. Even assuming arguendo that plaintiffs are correct and that the reference to transfers in § 2.5 has no application to § 19.11(f) benefits, there is no language in § 2.5 which would preclude the interpretation of § 19.11(f) adopted by the Committee. Plaintiffs point to language in § 5.1 of the Plan, which they argue should have been considered by the Committee. Section 5.1(a), as amended effective November 18, 2008, provides: (a) If a Participant’s employment with all members of the Controlled Group terminates (i)for any reason [emphasis supplied] after the Participant has five (5) years of Vesting Service or has attained age sixty-five (65) (or age sixty-two (62) in the case of Flight Crew Members), or (ii) by reason of the sale of Precision Printing and Packaging, Inc. on May 31, 2008, or (iii) after the Participant has become fully vested under Section 19.11(d) and before the Participant has satisfied all age and service requirements for retirement on a Normal Retirement Date, Early Retirement Date or Disability Retirement Date, the Participant shall be entitled to an annual Retirement Benefit equal to the Participant’s Accrued Benefit determined as of the date the Participant’s Credited Service ends, payable as of the Participant’s Normal Retirement Date[.] Section 5.1(a) addresses only the distribution of an accrued retirement benefit, as calculated under § 4. The term “Accrued Benefit” is defined in § 1.1.1 of the January 1, 2001, Supplement to the Plan as being calculated under the mathematical formula specified in § 4 of the Plan Supplement, taking into account the participant’s final average annual earnings and credited service as of the date of determination of the benefit amount. Under § 5.1(a), an accrued retirement benefit is payable starting on what would otherwise be the participant’s normal retirement date, when the participant fails to meet the eligibility requirements for the payment of a normal, early, or disability retirement benefit upon the termination of his employment. Section 5.1(a) says nothing about eligibility for the enhanced retirement benefits provided under § 19.11(f). In the event of a Change in Control, a participant is entitled under § 5.1(a) to the distribution of pension benefits which have become vested under § 19.11(d). Plan § 5.1(a)(iii). Section 19.11(d) provides that the “Accrued Benefit of each Participant who is actively employed by a Participating Employer as of the date of a Change in Control shall be fully vested.” Sections 19.11(d) and 5.1(a)(iii) together simply assure that any retirement benefits already accrued under the formula specified in Plan § 4 as of the effective date of a change in control shall be fully vested and subject to distribution under § 5.1(a) when the employee reaches normal retirement age. Neither of those sections addresses how an employee might later qualify for enhanced benefits under § 19.11(f) when his employment is “involuntarily terminated” within three years after a change in control, nor do they provide any insight into the meaning of the phrase “employment with the Control Group is involuntarily terminated.” No language in § 5.1(a) renders unreasonable the interpretation of § 19.11(f) agreed upon by the Committee. 3. Committee’s Review of Evidence of Drafters’ Intent Plaintiffs argue that the language of § 19.11(f) is unambiguous, and that it was inappropriate for the Committee to consider evidence outside the Plan language, such as evidence of the drafters’ intent. As stated previously, if a contract is unambiguous, extrinsic evidence may not be used to interpret the intent of the parties, to vary the terms of the contract or to create an ambiguity. Eagle Industries, 702 A.2d at 1232. However, when the contract language is ambiguous, then all objective extrinsic evidence may be considered. Explorer Pipeline, 781 A.2d at 714. A contract is ambiguous when the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings. American Motorists, 616 A.2d at 1196. The question of whether a plan’s contractual language is ambiguous is a question of law requiring de novo review. Wulf v. Quantum Chemical Corp., 26 F.3d 1368, 1376 (6th Cir.1994). Once a court determines that the language is ambiguous, then all objective extrinsic evidence is considered. Id.; In re: Explorer Pipeline Co., 781 A.2d 705, 714 (Del.Ch.2001). Traditional methods of contract interpretation used to resolve the ambiguity include drawing inferences and presumptions, considering extrinsic evidence, and looking to additional evidence that reflects the intent of the contracting parties. Wulf, 26 F.3d at 1376. In Wulf, 26 F.3d at 1376, the Sixth Circuit found that the plan provision “termination of employment” in the context of the company’s sale of a plant was ambiguous, and that the court could consider evidence in the administrative record that reflected the intent of the contracting parties. See also Farmer v. Square D. Co., 114 Fed.Appx. 657, 661 (6th Cir.2004) (phrase “involuntarily terminated” was not defined by plan and was, at most, ambiguous when applied to the facts at bar). Here, plaintiffs argue that their “employment with the Controlled Group” was “involuntarily terminated” because their employment relationships “with the Controlled Group” were terminated, even though their actual jobs were not terminated and they continued to be employed in the same jobs -with Ball. Defendants argue that the common understanding of the phrase “involuntarily terminated” requires an actual job loss, and that plaintiffs’ jobs were not “involuntarily terminated” because they continued to work uninterrupted in the same positions with the purchaser of MCC. In essence, this interpretation views “with the Controlled Group” as simply clarifying that it is the Controlled Group position which an employee has to lose in order to qualify for benefits under § 19.11(f), as opposed to being terminated from some other job with a non-Controlled Group employer during the three-year period. Under this interpretation, termination of an employment relationship with the Controlled Group alone is not sufficient to constitute a termination of employment. The court concludes that the phrase “whose employment with the Controlled Group is involuntarily terminated” is reasonably or fairly susceptible of different interpretations and is therefore ambiguous. Thus, the Committee could consider evidence bearing upon the intent of the drafters of § 19.11(f). The Committee’s decision states that it reviewed the evolution of § 19.11, including relevant portions of the minutes of the meeting of the Pension Committee of the Board of Directors on September 27, 2000, and the meeting of the full Board at which the adoption of § 19.11 was approved. See AR Exs. 2-F, 3-F, 4-F, 5-F. The minutes of the Pension Committee meeting on September 27, 2000, state that Mr. Kelly recommended amendments to the Anheuser-Busch Companies Pension Plan ... to revise the impact of a change in control. Recommended provisions include immediate vesting for all employees following a change in control, additional benefits for employees displaced as a result of a change in control, and provisions designed to maintain benefit levels for a period of three years after a change in control. AR Ex. 6-C. The summary of the Pension Committee meeting indicates that the Pension Committee “considered amendments to the Anheuser-Busch Salaried Pension Plan to ... revise the impact of a change in control to include, for a period of three years after a change in control” including immediate vesting for all employees, prohibitions against a reduction in benefits and termination or merger of the Plan, and “[ajdditional pension benefits awarded to any employee who is displaced as a result of the change in control (add 5 years to age and service).” AR Ex. 6-C. The summary also states, “These revisions are intended to support retention under a change in control by maintaining the status quo for a reasonable period.” The Committee also reviewed the minutes from the Board of Director’s meeting of September 27, 2000. The minutes reflect that at that meeting, the Board passed the following resolution: RESOLVED ... Any participant under the Supplement for the Anheuser-Busch Salaried Employees’ Pension Plan ... whose employment is involuntarily terminated within three (3) years after a change in control shall receive an additional five (5) years of age for purposes of determining the participant’s benefit under the Supplement and entitlement to any early retirement subsidy, or the participant’s accrued benefit under the plan shall be increased by 15%, whichever produces a greater benefit; provided that benefits shall not be payable until the Participant attains age fifty-five (55) or otherwise becomes eligible for distribution under the plan. AR Ex. 6-C. The administrative record also includes the notes of the Committee members taken during that Committee’s conversations with Tom Larson, an ABC officer who was involved in the drafting of the change in control provisions of § 19.11 of the Plan. See AR Ex. 6-D. Larson indicated that in 1999, the Plan was overfunded, and that the intent of Plan § 19.11 was to save pension funds for the employees, rather than an acquiring company, to preserve the assets of the Plan, and to set up a mechanism “if [an] employee [was] fired.” The first two goals were implemented through provisions which: (1) prohibited termination of the Plan for three years following a change in control, see Plan § 19.11(b); (2) prohibited merger, consolidation, or transfer of assets or liabilities of the Plan and the Trust Fund for three years following a change in control, see Plan § 19.11(c); (3) provided that the accrued benefit of each participant actively employed by a Participating Employer as of the date of a change in control would be fully vested, see Plan § 19.11(d); and (4) prohibited, for three years following a change in control, a change in the classifications of eligible employees, a reduction in formulas for determining benefits and forms of payment, or the ehmination of other benefits, rights and features available to participants, see § 19.11(e). The third goal was addressed through the enhancement in years of credited service and age provided in Plan § 19.11(f), under which plaintiffs now claim benefits. Larson indicated that the discussions leading up to the adoption of § 19.11 did not specifically contemplate whether a divestiture of assets would constitute an involuntary termination. According to Larson, the purpose of the provision was to preserve Plan assets for employees and to “compensate for [a] loss of job.” He stated that “if [the employee] was fired [the employee would be entitled to an] enhanced benefit” but that the provision was “not intended to be a ‘windfall.’ ” See AR Ex. 6-D. The Committee concluded that the “minutes indicate that the enhanced benefit was intended for individuals who were ‘displaced’ and “whose employment is involuntarily terminated’ within three years of a change in control.” The Committee observed that the “focus of Section 19.11(f) appears to be the provision of enhanced benefits to those who suffer a loss of employment following a change in control.” AR Exs. 2-F, 3-F, 4-F, and 5-F. The Committee further stated in its decision denying plaintiffs’ appeals: Where a participant suffers no interruption in employment in connection with the sale of an entity or assets, the participant does not suffer the type of harm occasioned by the loss of employment that Section 19.11(f) was intended to address. The award of enhanced benefits under the Change in Control provisions under such circumstances would, contrary to the intent and purposes of Section 19.11(f), provide a windfall for individuals who otherwise are entitled to keep their same job with substantially equivalent compensation and benefits. AR Ex. 6-C. Plaintiffs focus on the Pension Committee’s comments that the “revisions are intended to support retention under a change in control by maintaining the status quo for a reasonable period.” Plaintiffs argue that since the status quo of their employment relationship with a Controlled Group employer was not maintained, the pension enhancements described in § 19.11(f) must have been intended to apply to their situation. However, Larson told the Committee that the persons involved in adding § 19.11(f) to the Plan did not specifically contemplate a situation involving participants continuing their employment with the purchaser of an ABC company. The “retention” of plaintiffs was arguably achieved through the purchase agreement with Ball, which provided for the continuation of plaintiffs’ employment with Ball the same salary. Therefore, the references in the minutes to “retention” and “maintaining the status quo” relied on by plaintiffs need not be definitively construed by the Committee as indicating an intent to provide the enhanced benefits to employees whose entities were sold but who continued working for the purchasing employer. Plaintiffs also note the Pension Committee’s comments that the “[additional pension benefits awarded to any employee who is displaced as a result of the change in control” and argue that the word “displaced” must mean “involuntarily terminated” as that phrase is used in the Board’s resolution. However, the word “displaced” does not clarify the phrase “involuntarily terminated”, because it is also subject to more than one interpretation. Although plaintiffs would argue that they were “displaced” from their employment because they were no longer employed with the Controlled Group, the Committee could reasonably conclude that plaintiffs were not “displaced” from their employment because they continued to hold their jobs. The record provides other support for the Committee’s decision. For example, the resolution passed by the Board provides for benefits to participants “whose employment is involuntarily terminated” with no reference to employment “with the Controlled Group.” The Committee was also informed by Larson that the purpose of the provision was to compensate employees for the loss of a job and was not intended to be a windfall. The Committee could reasonably infer from the minutes of the Pension Committee, the Board of Directors, and the information provided by Larson that in passing the above resolution which formed the basis for § 19.11(f), the Board intended to provide enhanced benefits only to those individuals suffered an actual job loss, i.e., a total loss of employment. 5. Uniform Application of § 19.11(f) An important factor in determining whether the administrator’s interpretation of plan language was arbitrary and capricious is whether the administrator has consistently interpreted and applied the terms of the Plan in the past. See Fuller v. FMC Corp., 4 F.3d 255, 259 (4th Cir.1993) (evidence of prior practice of consistently denying severance pay to employees who were offered continued employment with a purchaser supported construction of plan offered by employer); Adcock v. Firestone Tire & Rubber Co., 822 F.2d 623, 626 (6th Cir.1987) (noting employer’s consistent interpretation and application of plan provisions regarding eligibility for termination pay as an indication that the defendants’ interpretation of the plan was not arbitrary and capricious); Harris v. Pullman Standard, Inc., 809 F.2d 1495, 1499 (11th Cir.1987) (considering employer’s prior inconsistent application of plan as a factor in concluding that denial of benefits was arbitrary and capricious); Sly v. P.R. Mallory and Co., Inc., 712 F.2d 1209, 1213 (7th Cir.1983) (noting evidence of prior consistent practice of denying benefits to former employees who were immediately rehired in comparable positions by purchasers); Dalesandro v. International Paper Co., 214 F.R.D. 473, 480-481 (S.D.Ohio 2003) (noting lack of evidence that employer had consistently interpreted plan to require unemployment as a prerequisite for severance benefits). The administrative record in the instant case includes correspondence from Committee Chair Melissa Reuscher dated April 16, 2010, responding to plaintiffs’ request for the production of documents made in their appeal letters of February 18, 2010. See AR Exs. 2-D, 3-D, and 4-D. The April 16th letter indicates that one of the documents being produced was “a report which lists, as of February 16, 2010, the number of participants by business unit who received enhanced benefits under Section § 19.11(f) of the Plan.” The document referred to is entitled “NUMBER OF EMPLOYEES INVOLUNTARILY TERMINATED SINCE CHANGE IN CONTROL WHOSE DATE OF TERMINATION WAS ENTERED INTO PAYROLL SYSTEM AS OF 2/16/10.” That document reveals that 1,227 employees had been “involuntarily terminated” and that none of those employees were MCC employees. The April 16th letter further states, “Our records indicate that none of those individuals was involved in a situation where, pursuant to a sale agreement between the Company and a third party, the individual continued employment in the same or similar position.” See AR Exs. 2-D, 3-D, and 4-D. In her April 16th letter, Reuseher also stated that the November 18, 2008, merger of ABC and InBev, N.V., “is the only Change in Control event upon which any benefits pursuant to Section 19.11(f) of the Plan have been provided. AR Exs. 2-D, 3-D, and 4-D. In its decision of June 17, 2010, denying plaintiffs’ appeals, the Committee stated: The Committee has also been advised that, since November 18, 2008, when the Change in Control occurred, all Participants whose employment was transferred to a successor entity in connection with the sale of assets or an entity have been treated in a uniform and consistent manner. The Plan Administrator has consistently determined that Participants in those situations are not entitled to the enhanced benefit of Section 19.11(f). AR Exs. 2-F, 3-F, 4-F, and 5-F. Thus, the administrative record in this case does include information indicating that § 19.11(f) benefits had consistently been denied in the cases of employees such as plaintiffs whose employment was transferred to the new owner. This consistent interpretation of § 19.11(f) provides further support for a finding that the Committee’s interpretation of the Plan was rational and reasonable. 6. Opinion Letter of Outside Counsel The Committee also considered an opinion letter drafted by Hal B. Morgan, outside counsel for ABC. See AR Exs. 2-D, 3-D, and 4-D. In its appeals decision, the Committee noted that the opinion advised that there was a reasonable basis for the determination that individuals who were employed by a successor organization in the same capacity and with substantially equivalent wages and benefits were not involuntarily terminated within the meaning of Section 19.11(f). AR Exs. 2-F, 3-F, 4-F and 5-F. The Committee’s reliance on the opinion of counsel is not in itself a defense to plaintiffs’ benefits claims. See Baylor Heating & Air Conditioning, Inc. v. Federated Mutual Ins. Co., 987 F.2d 415, 419 (7th Cir.1993) (reliance on advice of counsel is not a defense to a breach of contract claim). However, the fact that the Committee considered advice from outside counsel prior to making a decision is some indication that the Committee’s decision was the result of “a deliberate and principled reasoning process.” Morrison, 439 F.3d at 300; see Baylor Heating, 987 F.2d at 419 n. 6 (in determining whether decision was arbitrary and capricious, “seeking the advice of competent counsel before entering into the morass of employee benefits law would seem to be eminently reasonable behavior”). There is no evidence that the opinion letter was a product of collusion with the Committee, or was anything other than an unbiased legal opinion by outside counsel. In the opinion letter, counsel noted that the term “involuntarily terminated” is not defined in the Plan, and that the issue was whether the phrase “employment with the Controlled Group is involuntarily terminated” applied to participants who became employed or were offered employment by the successor entity in a sale of assets. Counsel described the arbitrary and capricious standard of review, including the conflict of interest component. Counsel then discussed cases which have addressed similar plan language and its application to participants who were employed by a successor, and concluded that it would be reasonable for the Committee to deny benefits under the comparable circumstances in the instant case. Counsel discussed Plan § 3.1(a), governing the severance from service date, and concluded that a different interpretation of “involuntarily terminated” for purposes of § 19.11(f) would not be inconsistent. Counsel noted that there were no prior inconsistent interpretations of the language in § 19.11(f) because there had been no other Change in Control since the adoption of that section. Finally, counsel stated that the proposed interpretation of § 19.11(f) was not inconsistent with any specific language in the Plan. See AR Exs. 2-D, 3-D, and 4-D. D. Discussion of Authorities 1. Decisions in the Sixth Circuit The parties have cited a number of cases both from the Sixth Circuit and other circuits. Plaintiffs argue that the cases cited by defendants are irrelevant, because none of these cases involved the exact language contained in the Plan. This argument would be more persuasive if the de novo standard of review applied in this ease. As the Sixth Circuit noted in Wulf because every case subject to de novo review turns on the interpretation of the specific language contained in the particular plan before the court, cases concerning plans containing different language may “furnish little guidance” and cases decided under the deferential arbitrary and capricious standard were of “limited, if any, applicability.” Id. at 1376. See also Anstett v. Eagle-Picher Indus., Inc., 203 F.3d 501, 506 (7th Cir.2000) (noting the distinction between de novo review and the arbitrary and capricious standard). However, the instant case is governed by the arbitrary and capricious standard of review. Other cases which have also applied that standard, albeit to claims involving nonidentical plan language and variations in the underlying facts, may nonetheless offer guidance as to how the arbitrary and capricious standard has been applied in similar situations. In addition, some courts applying a de novo standard of review have also agreed with the administrator’s interpretation of similar plan language. In Blakeman v. Mead Containers, 779 F.2d 1146 (6th Cir.1985), abrogated on other grounds by Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989), the employer provided severance benefits to employees who were “involuntarily terminated in the interest of the Division.” 779 F.2d at 1148. The phrase “involuntarily terminated” is also found in the Plan before this court. Mead paid severance benefits to employees at facilities that were closed, but not at facilities that were sold as going concerns, such as the facility where plaintiffs were employed and continued their employment at the same salary under the new owner. Id. at 1149. The district court granted summary judgment to the employer, concluding that the severance policy “ ‘may be reasonably interpreted as not providing severance pay to employees who continued to work at their same salary but for a different employer following the sale of the plant.’ ” Id. The district court further wrote that “ ‘it is obvious that the guidelines were meant to give severance pay benefits to employees who, through no fault of their own, lost their jobs, i.e., were involuntarily terminated.’ ” Id. In essence, the phrase “involuntarily terminated” was interpreted to mean an actual job loss. The Sixth Circuit con- eluded that Mead’s decision to deny severance pay to the plaintiffs was not arbitrary, capricious or unreasonable. Id. at 1149-1151. In Adcock v. Firestone Tire & Rubber, the severance plan provided for termination pay in the event of a reduction in force, described as a termination when “necessary to eliminate a position because of reduced workload or due to economic necessity.” 822 F.2d at 624. The plan summary stated that the goal of the plan was to reduce the stress of terminated employees between the time of their release and securing other employment. Id. The administrator interpreted the plan language as not requiring benefits where the plant was sold as an ongoing concern. Id. Because plaintiffs’ plant was sold pursuant to an agreement which provided that the purchaser would continue to employ them, they did not receive severance pay. Id. at 625. The Sixth Circuit concluded that the administrator’s interpretation was not arbitrary and capricious, noting that the plan had been consistently applied in the past, and that the administrator’s interpretation was a fair reading of the plan. Id. at 626-627. The Sixth Circuit also observed that “[i]n analyzing plans such as the one at issue, courts have often held that unemployment should be a prerequisite for benefits, as severance pay is generally intended to tide an employee over while seeking a new job, and should be considered more of an unemployment benefit.” Id. at 627. In Rowe v. Allied Chemical Hourly Employees’ Pension Plan, 915 F.2d 266 (6th Cir.1990), the Sixth Circuit applied the de novo standard of review to a plan which afforded service credit to an employee “laid off for any reason” within three years of the date he would be eligible for retirement. 915 F.2d at 268. Plaintiffs were denied pension credits under this provision because they continued to be employed by Armco, the purchaser of the Allied plant where they worked. Plaintiffs argued that they were “laid off for any reason” from their employment with Allied due to the sale of plant. The Sixth Circuit concluded that “only a layoff, and not another type of separation from employment with Allied, provides continued accrual of service credits.” Id. at 269. In upholding the grant of summary judgment to defendants, the court further stated that “plaintiffs’ separation from Allied and immediate employment with Armco upon the sale of the Ashland Plant did not constitute a layoff.” Id. (citing Garavuso v. Shoe Corporations of America Industries, Inc., 709 F.Supp. 1423, 1428 (S.D.Ohio) aff'd, 892 F.2d 79 (6th Cir.1989)). In Garavuso, the defendant’s severance pay plan provided a severance allowance to employees who were “permanently terminated or laid off by the Company due to lack of work” and further provided that if the employee’s job was eliminated due to lack of work, the employee would not receive a severance pay allowance “if comparable employment is offered and refused.” 709 F.Supp. at 1427. When the division in which plaintiff worked was sold, plaintiff was offered and accepted employment with the new owner, and he was denied severance benefits. Applying the de novo standard of review, this court considered: (1) evidence that the purpose of the plan was to assist employees financially during a period of unemployment; (2) evidence of past practices; and (3) the language of the plan, which indicated that the plan was intended to provide an unemployment benefit rather than simply a bonus upon termination. Id. at 1426-1428. This court noted that defendant’s interpretation of the plan was “a common one throughout industry” and that courts “have noted that the policy behind such plans is generally to aid employees through a period of unem ployment due to layoff, during which the employee is without income.” Id. at 1428. This court concluded that plaintiff did not qualify for severance benefits under the plan. Id. at 1430. This court’s judgment was affirmed on appeal by the Sixth Circuit for the reasons stated in this court’s opinion, and for the “further reason that a proper construction of the severance pay plan is that if one is offered a comparable job by a successor corporation and accepts the offer without a loss of compensation, no severance benefits are recoverable.” See Garavuso v. Shoe Corporations of America Industries, Inc., 892 F.2d 79 (table), 1989 WL 153151 (6th Cir.1989). In Easterly v. Philips Electronics North America Corp., 37 Fed.Appx. 166 (6th Cir.2002), the employer had a severance plan which provided benefits upon “being laid off or separated at Company convenience.” The stated purpose of the plan was to financially assist salaried employees being laid off or separated at Company convenience, and the plan provided that benefits were “designed to financially assist salaried employees during the period of unemployment!.]” The plan also provided that no severance pay would be paid to individuals who refused comparable employment. Id. at 167. The administrator interpreted the phrase “laid off or separated” as meaning “laid off or separated from employment,” and concluded that since plaintiffs continued their employment with the purchaser of a Philips facility and never experienced a period of unemployment, they were not entitled to benefits. Plaintiffs argued that the phrase “being laid off or separated at Company convenience” only required that they be “laid off or separated” from their employment with Philips. Id. at 169. Applying the arbitrary and capricious standard of review, the Sixth Circuit upheld the administrator’s interpretation that benefits would not be paid to employees who continued their employment uninterrupted with the purchaser of a Philips facility in a “going concern” sale. Id. at 167-169. The court noted that although the plan language “laid off or separated” was ambiguous because it did not include the precise language “from employment” or “from employment with Philips,” the plan’s interpretation of that phrase was not foreclosed by the plan’s plain language and was therefore reasonable. Id. at 169. In Morgan v. SKF USA the Sixth Circuit considered plan language which is closely analogous to the “employment with the Controlled Group” language found in the Plan in the case before this court. The vested retirement plan provided that any employee “whose active service with an Employer ceases by reason of a layoff or a permanent shutdown of the plant at such Location, or a department or subdivision thereof’ and who had attained the required service and age combination was to receive an immediate pension. 385 F.3d at 991. The terms “layoff’ and “permanent shutdown” were not specifically defined in the plan. Plaintiffs’ division was sold, and plaintiffs became employees of the buyer immediately after the sale at the same facility with no period of unemployment or interruption of wages. Id. at 990. Plaintiffs claimed pension benefits, contending that they were “laid off’ from their employment “with an Employer” as a result of the sale. Id. at 991. The plan administrator denied benefits, concluding that plaintiffs were not “laid off’ when they became employees of the new owner immediately after the sale and did not have any period of unemployment or interruption of wages as a result of the sale. The administrator further found that “layoff’ meant a temporary termination of employment with recall rights, which plaintiffs did not have, and that there was no “permanent shutdown” of the plant because the facility where plaintiffs worked remained in continuous operation. Id. Applying the arbitrary and capricious standard of review, the Sixth Circuit concluded that the case was governed by its prior decision in Rowe, in which the key factor was the lack of interruption in the plaintiffs’ employment because they immediately became employees of the purchasing company upon completion of the sale. Id. at 992 (citing Rowe, 915 F.2d at 269). The court upheld the dismissal of plaintiffs’ claims, stating: Even though plaintiffs may have presented an equally rational interpretation of layoff, we cannot say that the plan administrator acted arbitrarily or capriciously in deciding that layoff means a temporary termination or interruption in employment. Id. at 993. There are additional cases in the Sixth Circuit in which the court disagreed with the employer’s interpretation of the plan. In Wulf v. Quantum Chemical, the Sixth Circuit concluded that a “termination of employment” for purposes of determining the distribution value of employee stock ownership accounts occurred as of the date of the sale of plaintiffs’ division to another company, even though plaintiffs’ employment continued with the purchaser following the sale. 26 F.3d at 1377. Wulf is distinguishable from the instant case both by its facts and the standard of review applied. The Sixth Circuit applied, not the deferential arbitrary and capricious standard of review applicable in the instant case, but rather the de novo standard of review, which permitted the court arrive at its own interpretation of the language of the plan. 26 F.3d at 1374. The court considered extrinsic evidence that the purpose of the stock bonus plan was to motivate employee productivity, thereby furthering the success of SKF. The court reasoned that the fact that this plan purpose was no longer served once the division was sold and plaintiffs were working for another company supported its conclusion that a “termination of employment” occurred on the date of the sale of the division. Id. at 1376-1378. In contrast, the Committee in the instant case determined that the enhanced pension benefits under § 19.11(f) are in the nature of severance benefits designed to assist employees in the event of the “involuntary termination” of their employment. Plaintiffs rely on Dalesandro v. International Paper, in which the court reviewed the Champion International Paper Company severance policy adopted shortly before the merger of Champion with International Paper Company. 214 F.R.D. at 475. The policy provided that its purpose was “to provide certain severance and other benefits to employees of the Company whose employment is Terminated as a result of Reorganization.” The term “Reorganization” was defined as “employment action(s) resulting in an Eligible Employee’s Termination during the Policy Period.” The policy defined “Termination” as “a termination of the Company of the employment of an Employee for any reason other than Cause, Disability ... or death[.]” Id. at 475. However, a termination did not occur under the policy if “after the Merger the Employee is transferred to the employment of International Paper Company or a subsidiary thereofi.]” Id. In February, 2001, International Paper sold the mill where plaintiffs were employed to Smart Papers. Id. at 476. A letter was sent to employees stating that their employment with International Paper would terminate when the sale was finalized, and that they were encouraged to seek employment with Smart Papers. Id. Plaintiffs were employed by Smart Papers, but claimed severance benefits. The administrator denied the claims, noting that the phrase “employment action” carries the connotation of an action by an employer that has an adverse effect on an employee, and concluding that if the employee continued working in the same position under the same conditions, there is no adverse effect and therefore no “employment action.” The administrator further noted that although the policy defined the word “Termination,” it did not specifically address the situation of the sale of a mill with offers of employment from the buyer, and therefore that term was the proper subject of interpretation by the administrator. The administrator concluded that because plaintiffs were employed by Smart Papers, they were not entitled to severance benefits. Id. at 477-478. The court applied the arbitrary and capricious standard of review. Id. at 479. The court found that the denial of benefits was arbitrary and capricious because the administrator interpreted the plan to require employees to suffer an “employment action” while ignoring the plan’s express and unambiguous definition of “Termination” as occurring when the company terminates the employment of an employee “for any reason other than Cause, Disability ... or death[.]” Id. at 480-482. The court noted that a previous Champion severance plan contained an express provision making employees who were hired by the purchaser ineligible for benefits, whereas the later policy had no such language. Id. at 480. The court also commented on the lack of evidence that International Paper had consistently interpreted its plan to require continued unemployment as a precondition for severance benefits. Id. Dalesandro is distinguishable from the case at bar. Whereas the policy in Dalesandro expressly defined the term “Termination,” the phrase “involuntarily terminated” is not expressly defined in the Plan before this court. Unlike Dalesandro, where there was no evidence before the court that the policy had been consistently interpreted, there is evidence of consistent interpretation in this case. The underlying facts are also distinguishable in that the plaintiffs in Dalesandro did not have the seamless transition of employment enjoyed by the plaintiffs in the instant case. When their employment with International Paper was terminated, the plaintiffs in Dalesandro were required to go through an exit process, removing personal belongings and accounting for or turning in property owned by International Paper. Thereafter, they went through an interview process and were hired by Smart Paper. Dalesandro, 214 F.R.D. at 476-477. In Dalesandro, there was evidence of a previous plan which expressly made employees who were hired by the purchaser ineligible for severance benefits, i.e., a statement of who was not eligible for benefits, phrased in the negative. The court observed that the drafters of the plan at issue could have included a similar provision stating that plaintiffs were not eligible for severance benefits if they accepted a job with the purchaser, but did not do so. In contrast, the Plan in the instant case includes provisions, phrased in the positive, which specifically indicate when employees are eligible for benefits following the sale of an ABC entity. Under § 5.1(a)(ii), a participant becomes eligible for the distribution of accrued retirement benefits “(ii) by reason of the sale of Precision Printing and Packaging, Inc. on May 31, 2008[.]” Under Plan § 3.5(d)(iv), service credit is given, for purposes of determining eligibility for early retirement, to participants who were continuously employed by certain named successor entities following the sale of Busch Industrial Products Company. As noted by the Committee, Plan § 3.1 refers specifically to a termination of employment in connection with the sale of a business for the purpose of determining the employee’s severance from service date. The Committee could reasonably conclude that the fact that § 19.11(f) makes no similar positive reference to continuously employed participants being eligible for enhanced benefits under § 19.11(f) following the sale of an entity meant that such participants were not intended to receive § 19.11(f) benefits. Following the reasoning in Dalescmdro, plaintiffs argue that since the Plan authors included specific language in § 2.5 which excluded transfers from being considered terminations of employment, the fact that they did not include a similar exception in § 19.11(f) indicates an intent to include transfers within the scope of § 19.11(f) terminations. However, if plaintiffs’ interpretation of § 2.5 is correct, then the transfers referred to in § 2.5 included only transfers from one Controlled Group position to another Controlled Group position, and did not include a transfer of employment to the purchaser of an outside entity. Assuming, as plaintiffs suggest, that § 2.5 refers only to a transfer of employment within the Controlled Group, then the failure to include similar language in § 19.11(f) does not imply an intent to include employment transferred to a new owner within the category of “involuntarily terminated” employment. Further, unlike Dalesandro, the record here includes information provided by Tom Larson, who stated that the discussions leading up to the adoption of § 19.11 simply did not contemplate whether a divestiture of assets would constitute an involuntary termination of employment. Thus, the failure of the Committee to infer an intent to include employment transferred to a purchaser within the scope of the “involuntarily terminated” employment referred to in § 19.11(f) from the failure of Plan drafters to specifically mention “transfer to a purchaser upon the sale of an entity” as an exception to eligibility under that section was not arbitrary and capricious. 2. Decisions From Other Circuits Other circuits have also considered claims involving plan language similar to the language at issue in the instant case, and the court will address a sample of those cases here. Some cases from other circuits involving similar plan language have upheld the administrator’s interpretation. For example, in Harper v. R.H. Macy and Co., Inc., 920 F.2d 544, 545 (8th Cir.1990), a de novo review case, the court held that plaintiffs were not “permanently terminated” within the meaning of the severance plan upon the sale of their store because they continued to work without interruption on comparable terms for the purchaser of the store. In Sejman v. Warner-Lambert Co., Inc., 889 F.2d 1346, 1350 (4th Cir.1989), the court upheld defendant’s interpretation of its severance policy that plaintiffs were not “terminated” upon the sale of their division when they continued working at the same job, in the same facility, at the same tasks for comparable rates of compensation and benefits. Plaintiffs cite Harris v. Pullman Standard. That ease is distinguishable from the instant case both in terms of plan language and factual circumstances. In Harris, most plant workers were terminated in 1981 upon the shutdown of the plant. Plaintiffs were offered an incentive bonus to continue working at the closed plant, and were told that they would receive the bonus in addition to all other regular severance and benefit arrangements for staying. Upon the sale of the plant in 1984, plaintiffs continued working for the new owner, although with a twelve percent wage cut and lower benefits, and they were denied a termination allowance. Id. at 1496-97. The plan in that case provided that “for all involuntary terminations, other than ‘lay-off, the termination allowance will be granted. ” Id. at 1497 (emphasis supplied). The plan also encouraged employees to explore other opportunities “within the company” when positions were eliminated, and provided that “[i]n the event that a new assignment cannot be identified, the employee will be eligible for the termination allowance under involuntary termination.” Id. In finding that the denial of benefits was arbitrary and capricious, the Eleventh Circuit concluded that the phrase “within the company” referred only to opportunities or assignments with Pullman, not to assignments with successive corporations. Id. at 1498. The court further noted a policy requirement that employees elect between unemployment benefits provided in the section on layoffs and the termination allowance, which indicated that unemployment compensation was not the purpose of the termination allowance. Id. at 1499. The employer was also inconsistent in its interpretation of the benefits plan, as most of the plant’s salaried employees terminated as a result of the shutdown of the plant in 1981 were paid the termination allowance. Finally, the court also cited the fact that the employer violated ERISA by failing to furnish copies of the benefits policy to all salaried employees and by failing to have any claims procedure. Plaintiffs also cite Anstett v. Eagle-Picher, a de novo review ease. The plan in that case provided that “[sjalaried employees terminated other than for cause or voluntary separation, due to the exigencies of the business situation, will be entitled to [separation] benefits.” 203 F.3d at 504. In determining that plaintiffs were “terminated” within the meaning of the plan even though they continued working for the buyer of their division, the Seventh Circuit noted that the defendant had a parallel policy for key employees which contained specific language stating (in negative terms) that employees who continued to work for the buyer were not entitled to benefits, but that the severance policy before it had no such disqualifying language. 203 F.3d at 505. The court also commented on the distinction between de novo and arbitrary and capricious review. Id. at 506. As previously noted, the Plan in this case is distinguishable because it includes other provisions where the sale of an entity is mentioned, in positive terms, as qualifying participants for benefits or as being a factor which could be considered, but contains no language referring to the sale of an entity in § 19.11(f). Bedinghaus v. Modern Graphic Arts, 15 F.3d 1027 (11th Cir.1994) is likewise a de novo review case which involved distinguishable plan language. The defendants’ plan stated that an employee who is “discharged as a full-time staffer for reasons other than cause” will receive severance pay. Id. at 1029. The Eleventh Circuit noted that the term “staffer” was repeatedly used in the .defendant’s handbooks as meaning employees of the defendants, and concluded that the phrase “discharged as a full-time staffer” meant discharged as a full-time employee of the defendants. Id. The court also noted the distinction between de novo and arbitrary and capricious review and the need to look to the particular terms of the severance policy before it. Id. at 1032. E. Additional Arguments 1. Plan Eligibility Requirements Plaintiffs argue that by interpreting the phrase “involuntarily terminated” as requiring the actual termination or loss of employment, the Committee added addi tional eligibility requirements to the Plan. See Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 661, 665 (6th Cir.2004) (administrator acted arbitrarily in adding an eligibility requirement under the guise of interpreting the plan term “accident” by requiring that the insured be engaged in “unusual activity” or meet with an “external force or event” where these requirements were not found in plan documents or supported by federal common law). Plaintiffs contend that through its interpretation of “involuntarily terminated,” the Committee added as additional requirements for receiving benefits that the participant was not hired by the new owner of an entity at substantially the same salary and benefits. However, there is no language in the Plan which would preclude the Committee’s interpretation or compel a different interpretation. In addition, the Committee’s interpretation of the phrase “involuntarily terminated” does find support in federal common law. As previously discussed, there are several Sixth Circuit cases which have upheld the administrator’s interpretation of plan terms very similar to those at issue here. For example, in Adcock, where the severance plan provided for termination pay in the event of a reduction in force, described as a termination when “necessary to eliminate a position because of reduced workload or due to economic necessity,” plaintiffs argued that defendants impermissibly read “unemployment” into the plan as a prerequisite for benefits, contending that there was no such requirement in the plan. 822 F.2d at 625. The Sixth Circuit rejected this argument, concluding that “it is a fair reading of the plan to require unemployment as a prerequisite” to the payment of termination pay.” Id. at 627 (noting that “courts have often held that unemployment should be a prerequisite for benefits”). In Rowe, 915 F.2d at 269, the court rejected plaintiffs’ argument that defendants’ interpretation of “laid off’ constituted an impermissible unilateral amendment of the plan, noting that it was “simply an interpretation of the Allied Plan by Allied[.]” The Committee was called upon to interpret the meaning of the phrase “involuntarily terminated,” which it was given the authority to do under the Plan. The Committee’s interpretation, which finds no termination where there has been no actual job loss, is consistent with the common definition of “termination.” The word “terminate” has been defined as: “To put an end to; to bring to an end[.]” Black’s Law Dictionary 1511 (8th ed.2004). The phrase “termination of employment” has been defined as: “The complete severance of an employer-employee relationship.” Id. The Committee could reasonably conclude that plaintiffs’ employment was not brought to an end, but continued pursuant to the sale agreement with Ball. It was MCC which was terminated as an employer. Although the sale of MCC resulted in a severance of the employer-employee relationship between plaintiffs and the Controlled Group, it was not a “complete” severance of “an employer-employee relationship” because plaintiffs continued to have an employer-employee relationship with Ball. The Committee’s interpretation of the Plan is also consistent with the usual purpose of severance benefits. “[Sjeverance pay is largely afforded to help former employees minimize the privations of temporary unemployment while they seek new work.” Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1276 (10th Cir.1994). A plan administrator may reasonably conclude that interpreting a plan to require benefits when “the employee has retained his same position without interruption would in no way advance this interest; indeed, rather than softening the blow of a period of unemployment, it would only serve to provide ... a happy period of double income.” Id. at 1276-1277. The court in Headrick further commented, “[A]s the First Circuit has indicated, it ‘beggars credulity’ to suggest the ordinary employer would intend such an anomalous result ‘without some clear indication to that effect in the plan documents.’ ” Id. at 1277 (quoting Allen v. Adage, Inc., 967 F.2d 695, 702 (1st Cir.1992)). £ Conflict of Interest Plaintiffs argue that the Committee’s interpretation of the Plan was tainted by the fact that the Committee members were ABC employees who denied benefits under a self-funded Plan which was underfunded at the time, so that Controlled Group employers would not have to make additional contributions to the Plan. While these are factors to be considered, they do not mandate a finding that the Committee’s decision was arbitrary and capricious. Were that the case, then administrators of self-funded plans would never be able to deny benefits. There is nothing in the record which indicates that the Committee’s decision was improperly influenced by a conflict of interest. The administrative record reveals that the Committee did not summarily reject plaintiffs’ claims; rather, the decision included “an explanation based on substantial evidence that resulted] from a deliberate and principled reasoning process.” Morrison, 439 F.3d at 300. There is evidence that the Committee has been consistent in its interpretation of § 19.11(f). The record also indicates that as of February 16, 2010, 1,227 employees whose jobs were terminated and who did not continue their employment in the same or similar position with a new owner had been granted § 19.11(f) benefits. There is no evidence of a history of biased claims administration here. The fact that § 19.11(f) benefits have actually been paid in a substantial number of cases to employees who, unlike plaintiffs, lost their jobs and were not immediately retained by a successor employer weighs against a finding that the Plan’s self-funded status was ever a factor in the Committee’s decisions to grant or deny § 19.11(f) benefits. 3. Substantially Similar Terms Plaintiffs contest the Committee’s conclusion that their employment with Ball was “under terms that were substantially similar to those provided to you prior to the sale.” AR Exs. 2-F, 3-F, 4-F, and 5-F. Plaintiffs also note that, although they received the same base pay under the Asset Purchase Agreement, effective October 1, 2009, the Agreement only preserved that those salaries for a year, i.e., until October 1, 2010, or thirteen-and-a-half months prior to the expiration of the three-year Change in Control period. Plaintiffs argue that the Change in Control provisions were designed to preserve the status quo for three years following a Change in Control, in other words, until November 18, 2011 (the three-year anniversary of the Change in Control). Plaintiffs point to AR Ex. 6-B, a chart which compares the benefits provided by MCC and Ball across various pay bands. The listed benefits include LTI (long-term incentive) packages (which may include such things as stock options), active health insurance, retired medical insurance, pension benefits, and 401(k) contributions. With all pay bands, the base pay is the same, and with the two highest pay bands, the expected bonus is the same. At the highest pay band, with an annual salary of $180,000, the other benefits provided by Ball were anticipated as being 20% less than the MCC benefits if LTI benefits were included in the calculation, and 5% less than MCC benefits if LTI benefits were excluded from the calculation. The $105,000 pay band showed that the Ball benefits were 6% less than MCC benefits, both with or without LTI benefits-the Ball LTI benefits were $1,000 higher than MCC LTI benefits in this category. The $98,000 pay band shows a 13% decrease in benefits if LTI benefits are considered, and a 9% decrease if LTI benefits are not considered. The $65,000 pay band indicates an 11% decrease in benefits-there are no LTI benefits in this category. The administrative record does not indicate how many class members fall within each of these pay bands. The Committee’s decision includes a determination that plaintiffs’ “base pay has remained the same and that substantially equivalent aggregate compensation and benefits have been provided as required by the Asset Purchase Agreement.” AR Exs. 2-F, 3-F, 4-F and 5-F. The court surmises that the reference to benefits may stem from the cases from other circuits cited in the opinion letter from outside counsel which was reviewed by the Committee. The Sixth Circuit cases discussed above do not state that substantially equivalent benefits are a prerequisite in every case to denying severance benefits upon the transfer of employment to a new owner. See, e.g., Blakeman, 779 F.2d at 1149 (noting only that plaintiffs continued their employment at the same salary under the new owner). Rather, they focus primarily on the fact that the plan participants continued their employment with the new owner without interruption. Thus, although the Committee, which has authority under the Plan to interpret its terms, could and did consider whether substantially equivalent benefits would be available from the purchaser in determining whether the employment of participants was “involuntarily terminated” within the meaning of the Plan, there is no Sixth Circuit authority which would require the Committee to do so. The fact that the Committee did compare the employee benefits offered by MCC and Ball underscores the thoroughness of the Committee’s evaluation of the Plan. The Committee’s determination, after reviewing AR Ex. 6-B, that plaintiffs would receive “substantially equivalent aggregate compensation and benefits” as Transferred Salaried Employees” was within the Committee’s authority to interpret Plan terms and to determine eligibility for benefits, and was. not unreasonable or arbitrary and capricious. The Committee’s decision to deny benefits was also not rendered arbitrary and capricious by the fact that the Asset Purchase Agreement only guaranteed base salaries for a year. While other provisions in Plan § 19.11 preclude amendments to the Plan for the three-year period following a Change in Control, § 19.11(f) is worded differently in that eligibility for enhanced benefits hinges on the occurrence of a triggering event, termination of employment, within the three-year period. The Committee was aware that under the Asset Purchase Agreement, AR Ex. 2-D, Ball could not reduce salaries and benefits for a year following the effective date of the agreement. The Committee determined that because plaintiffs continued to be employed in the same position at the same base pay and substantially the same benefits, their employment was not “involuntarily terminated” within the meaning of § 19.11(f). In other words, the triggering event had not occurred. Even accepting plaintiffs’ argument that the Pension Committee’s stated goal of maintaining the “status quo” must be read into § 19.11(f), at the time of the Committee’s decision denying benefits, the status quo was preserved, in that the Committee determined that plaintiffs continued to be employed in the same jobs, with the same salaries and with substantially the same benefits. The Committee had no way of knowing whether plaintiffs’ salaries or benefits would be reduced following the expiration of the one-year period; there is no evidence in the administrative record that this in fact occurred. The issue of whether a transferred employee was “involuntarily terminated” within the meaning of § 19.11(f) if that employee continued to work for Ball after the sale of MCC but was later terminated or incurred a reduction in salary within the three-year period following the Change in Control was not before the Committee in this case. III. Conclusion Upon review of the administrative record, the court concludes that the Committee’s decision to deny benefits furnished “an explanation based on substantial evidence that results from a deliberate and principled reasoning process.” Morrison, 439 F.3d at 300. The Committee’s interpretation of § 19.11(f) was a rational one which must be accepted “even in the face of an equally rational interpretation offered by the participants.” Morgan, 385 F.3d at 992. The Committee’s denial of plaintiffs’ claims for benefits was not arbitrary and capricious. In accordance with the foregoing, plaintiffs’ motion for judgment on the administrative record (Doc. 68) is denied. Defendants are hereby granted judgment on the administrative record. The clerk is directed to enter judgment on the administrative record in favor of defendants. . Specifically, the Sale Agreement states that the Acquiror shall offer to each Transferred Employee who commences employment with the Acquiror as of the Closing Date, effective immediately following the Closing, the same initial salary or hourly wage rate level as the salary or hourly wage rate level in effect with the Seller immediately prior to the Closing Date.... AR Ex. 2-D. The Sale Agreement further provides that Ball was required to provide substantially comparable annual salary and benefits to transferred salaried employees for a year after the closing date. Ex. 2-D.

OPINION & ORDER HAROLD BAER, JR., District Judge. The City of New York and Guadalupe Sarracino (“Sarracino”) (collectively “Defendants”) move to dismiss several claims in the Complaint charging violations of 42 U.S.C. § 1983 and New York state law for injuries arising out of a police search of Plaintiff George Gannon (“Plaintiff”)’s apartment. For the reasons set forth below, Defendants’ motion to dismiss is GRANTED with respect to unlawful seizure but DENIED with respect to malicious prosecution. Background On November 11, 2009, Sarracino arrived at Plaintiffs apartment building with a team of police officers under her supervision following a tip from a security guard to investigate whether Jason Coonan (“Jason”) possessed a handgun. The security guard in the lobby directed the officers to Plaintiffs apartment on the seventh floor, where Jason was headed. The police found Jason with Plaintiffs stepson Michael Buccino (“Michael”) on the seventh floor. The police patted down the two men but found no gun. Not satisfied, Sarracino knocked on Plaintiffs apartment door and directed a full blown search without a search warrant or consent, notwithstanding Plaintiffs objection. Am. Compl. ¶ 19. As a result of the search, the police found weapons not attributed to the original gun investigation. Id. ¶ 20. Sarracino then arrested Plaintiff and charged him with several counts related to criminal possession of a weapon. Id. ¶ 21. Plaintiff was subsequently indicted by a grand jury and incarcerated until he was released on bail approximately a week later. Id. ¶¶ 21-22. Plaintiffs motion to suppress all evidence was subsequently granted, and the case was dismissed on January 3, 2012. Id. ¶¶ 25, 26. Following Defendants’ motion to dismiss, Plaintiff amended the Complaint, withdrawing several claims and terminating the action against the New York City Police Department. See Pl.’s Opp. 6; Am. Compl. In addition to opposing Defendants’ motion, Plaintiff originally submitted a cross-motion for summary judgment with respect to Defendants’ liability for unlawful search and malicious prosecution. At the oral argument, however, Plaintiffs Counsel notified the Court that Plaintiff was withdrawing the cross-motion, as well as the assault and battery claim in the Amended Complaint. Two claims remain for the Court to resolve: (1) unlawful seizure under § 1983; and (2) malicious prosecution under state law. Discussion A. Legal Standard To survive Defendants’ motion under Fed.R.Civ.P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The requirement that the court accept all factual allegations as true does not apply to “[t]hreadbare r’ecitals of the elements of a cause of action, supported by mere conclusory statements.” Id. The court’s determination of whether a complaint states a “plausible claim for relief’ is a “context-specific task” that requires application of “judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937. To decide the motion to dismiss, a court may consider “any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint,” Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (internal citations omitted), as well as “documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). B. Unlawful Seizure Claim under § 1983 The Complaint alleges that Sarracino found weapons in Plaintiffs apartment during an unlawful search, and Plaintiff seeks damages pursuant to § 1983 for being “detained against his will and incarcerated until his release on bail, a period of approximately one week” all based on the weapons found during the search. Am. Compl. ¶ 22. Defendants argue that the weapons discovered in Plaintiffs apartment constituted probable cause for his arrest, and Plaintiffs claim based on the arrest and a week of imprisonment should be dismissed because Plaintiff may not seek civil damages under § 1983 based on the fruit of the poisonous tree doctrine. I agree with Defendants that Plaintiffs claim with respect to the arrest and incarceration for unlawful seizure must be dismissed. The Second Circuit has clearly rejected an attempt to recover damages under § 1983 based on the fruits of the poisonous tree doctrine. In Townes v. City of New York, the plaintiff sought damages pursuant to § 1983 for “his arrest, conviction, and incarceration” based on handguns and cocaine discovered during what was found to be an unconstitutional stop and search. 176 F.3d 138, 141 (2d Cir.1999). The Circuit concluded, “[t]he individual defendants here lacked probable cause to stop and search [the plaintiff], but they certainly had probable cause to arrest him upon discovery of the handguns in the passenger compartment of the taxicab in which he was riding .... because (among other reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.” Id. at 149. Remarking that the Fourth Amendment value had already been served by the suppression of evidence in the criminal case, the Second Circuit opined that the unreasonable search and seizure was not the proximate cause of the plaintiffs conviction and incarceration and “the injury he pleads (a violation of his Fourth Amendment right to be free from unreasonable searches and seizures) does not fit the damages he seeks (compensation for his conviction and incarceration).” Id. at 147. On the other hand, I note that under Townes, damages related to the initial search and seizure would be “possible.” Id. at 149; see also Hayes v. Perotta, 751 F.Supp.2d 597, 604 (S.D.N.Y.2010) (dismissing the Fourth Amendment claim “to the extent [Townes ] bars Plaintiff from seeking damages from his conviction and incarceration, which allegedly followed the unlawful search” but concluding “that Plaintiff may still pursue his Fourth Amendment claim and seek damages from the search itself’). Here, however, the Amended Complaint did not plead facts with respect to the two-hour detention before the illegal search, and it was raised only in Plaintiffs Opposition Memorandum in the context of his “assault and battery” claim, which has since been withdrawn. I inquired about this two-hour detention during the oral argument and permitted Plaintiff to file a Second Amended Complaint, which adds this allegation. SAC ¶ 19. In an abundance of caution, I do not dismiss the unlawful seizure claim with respect to the two-hour detention at this stage. C. Malicious Prosecution Claim “To establish a malicious prosecution claim under New York law, a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions.” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir.2010) (internal quotation marks and citations omitted). “Under New York law, police officers can ‘initiate’ prosecution by filing charges or other accusatory instruments.” Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir.2010). The existence of probable cause is a complete defense to the claim, and an indictment by a grand jury creates a presumption of probable cause, which may “only be rebutted by evidence that the indictment was procured by ‘fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.’ ” Savino v. City of New York, 331 F.3d 63, 69 (2d Cir.2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248, 1251 (1983)). On the other hand, “[a] lack of probable cause generally creates an inference of malice.” Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir.2003) (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir.1997)). While there is certainly a presumption of probable cause based on the grand jury indictment, I am not convinced by Defendants’ argument that Plaintiffs malicious prosecution claim should be dismissed at this stage of litigation. In the language of the Second Circuit, “[t]he defendants seem to conflate probable cause to arrest with probable cause to believe that [the plaintiff] could be successfully prosecuted. Only the latter kind of probable cause is at issue with respect to the malicious prosecution claim .... ” Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir.1999). Here, Plaintiff clearly alleges that Sarracino filed charges against Plaintiff after the arrest pursuant to an unlawful search and that a criminal proceeding was terminated in Plaintiffs favor. Defendants, on the other hand, does not explain why these allegations do not constitute “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks and citation omitted). The Second Circuit clearly distinguished the probable cause necessary to defeat a false arrest claim from that required to defeat a malicious prosecution claim in Boyd v. City of New York, a case decided four years after Townes. There the Second Circuit found that a summary judgment motion that resulted in a dismissal of the false arrest claim under § 1983 came out the right way because “[t]he police had sufficient information to warrant a reasonable belief that [the plaintiff] knowingly possessed stolen property,” but it concluded that the malicious prosecution claim had been improperly dismissed because if the incriminating statement about the stolen property had been made after the plaintiffs arrest but before Miranda warnings, the requisite probable cause would go up in smoke and malice would emerge. 336 F.3d at 76. Just as there was “the possibility that the police knew where they arrested [the plaintiff], but lied in order to secure an indictment,” id. at 77, Plaintiff here has alleged sufficient facts to raise the prospect that Sarracino lied about the circumstances of the search to secure the indictment. See, e.g., Brandon v. City of New York, 705 F.Supp.2d 261, 274 (S.D.N.Y.2010) (denying summary judgment with respect to malicious prosecution claim because a jury could reasonably find that the indictment was secured through bad faith or perjury). I also decline Defendants’ invitation to extend Townes to preclude damages based on the malicious prosecution claim, although I know that some district courts have adopted such an approach. See, e.g., Cyrus v. City of New York, No. 06 Civ. 4685, 2010 WL 148078, at *4 (E.D.N.Y. Jan. 14, 2010) (finding, pursuant to Townes, that the gun discovered following an unlawful arrest constituted probable cause defeating malicious prosecution claim). But see Mazyck v. Johnson, No. 08 Civ. 548, 2009 WL 2707360, at *5 (E.D.N.Y. Aug. 25, 2009) (relying on Boyd and rejecting the defendants’ argument based on Townes because “the question is not whether there exists probable cause to prosecute, but rather whether there is probable cause to believe that a prosecution will succeed ”) (emphasis in original). Put another way, Townes cannot preclude Plaintiffs malicious prosecution claim. Unlike the complaint in Townes, the Amended Complaint specifically asks for damages for Sarracino’s malicious prosecution, Am. Comp. ¶¶ 50-57, and alleges sufficient facts, including her search without warrant or consent and over Plaintiffs objections, the arrest and charges by Sarracino based on the weapons found as a result of that search, and the dismissal of the case following the decision on the suppression motion, id. ¶¶ 19, 21, 25, 26. Conclusion I have considered the parties’ remaining arguments and find them to be without merit. For the foregoing reasons, Defendants’ motion to dismiss is GRANTED with respect to the unlawful seizure claim based on his incarceration prior to bail but DENIED with respect to malicious prosecution. The unlawful search claim remains, as Defendants have not moved with respect to that claim. At this stage, I also do not dismiss the unlawful seizure claim with respect to the two-hour detention. The Clerk of the Court is directed to close the motion and remove it from my docket. SO ORDERED. . Because Plaintiff has withdrawn its cross-motion for summary judgment with respect to malicious prosecution, I do not address Defendants’ letter to the Court on November 15, 2012, requesting the Court to strike Plaintiff's Exhibit D in support of his cross-motion. I have not, at this stage, considered Exhibit D.

ORDER AND REASONS HELEN G. BERRIGAN, District Judge. This matter comes before the Court on a motion to dismiss pursuant to Rule 12(b)(6), or, alternatively, to strike pursuant to the Louisiana Anti-SLAPP statute, La. C.C.P. art. 971, filed by the defendant, Roger Goodell (“Goodell”). Having considered the record, the memoranda of counsel, and the law, the Court has determined that dismissal is appropriate for the following reasons. The plaintiff, Jonathan Vilma (“Vilma”), filed this suit in diversity setting forth eleven claims against Goodell in his Complaint: (1) slander per se — injury to professional reputation; (2) slander per se— injury to personal reputation; (3) slander per se — accusations of criminal conduct; (4)slander by implication; (5) slander— reckless disregard/maliee; (6) libel per se — injury to professional reputation; (7) libel per se — injury to personal reputation; (8) libel per se — accusations of criminal conduct; (9) libel by implication; (10) libel — reckless disregard/maliee; and (11) intentional infliction of emotional distress. Rec. Doc. 1. In his Complaint, Vilma identifies six statements made by Goodell as Commissioner of the National Football League (“NFL”) that were slanderous or libelous and caused him extreme emotional distress: (1)statements in the March 2, 2012, NFL press release alleging that Saints executives, coaches, and defensive players violated the “Bounty Rule” in 2009, 2010, and 2011; (2) statements in the March 2, 2012, report to the 32 NFL Clubs that Saints defensive players pledged money toward the “Bounty Program” and targeted certain opposing players for injury; (3) statements in the March 21, 2012, NFL press release detailing punishment imposed on the Saints and Saints personnel and implicating unnamed defensive players; (4) statements in the March 21, 2012, memorandum to the 32 NFL Clubs concerning the reasons for the punishment of Saints personnel; (5) statements in an April 24, 2012, interview on the NFL Network that the players were involved in a Bounty Program; and (6) the May 2, 2012, NFL press release detailing punishment imposed on four players, including Vilma. Rec. Doc. 1. In this motion, Goodell seeks dismissal of the Complaint based on three grounds: (1) the claims are preempted under Section 301 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185; (2) they are barred by the mandatory, binding dispute resolution procedures of the Collective Bargaining Agreement (“CBA”) with the NFL; and (3) they are inade quately pled. Alternatively, Goodell argues that the Complaint should be struck under La.Code Civ. P. art. 971. The plaintiff opposes the motion. Federal Rule of Civil Procedure 12(b)(6) provides for dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Rule 8 pleading standard does not require “detailed factual allegations,” but it does demand more than “labels and conclusions” and a “formulaic recitation of the elements of [the] cause of action.” Id. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). If the factual allegations are insufficient to rise above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Id. at 555, 127 S.Ct. 1955; Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n. 9 (5th Cir.2007). When considering a Rule 12(b)(6) motion, a court must accept all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.2009). A court may consider the contents of the pleadings, including attachments thereto, as well as the documents attached to the motion to dismiss that are referred to in plaintiffs complaint and are central to his claims. Morgan v. Swanson, 659 F.3d 359, 367 (5th Cir.2011); Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.2008). Vilma is a New Orleans Saints football player whose terms and conditions of employment are governed by the NFL Player Contract and by the CBA negotiated between the previously defined NFL and the NFL Players Association (“NFLPA”), along with the NFL Constitution and Bylaws incorporated into the CBA. There is also no dispute that Goodell is sued as Commissioner of the NFL. Rec. Doc. 1 at 1. Preliminarily, Vilma argues in his opposition that “[t]his case has nothing to do with the NFL’s discipline of Vilma” because Goodell’s “statements were not made within the confines of any forum or procedure created by the NFL-NFLPA CBA nor were they a part of any duties or responsibilities of the Commissioner’s office.” Rec. Doc. 72 at 5. Vilma maintains that Goodell is responsible for the allegedly offending statements “in his individual capacity.” Id. The Court rejects Vilma’s argument, which is contradicted by his own Complaint. Rec. Doc. 1. The Court finds that all of the allegedly offensive statements were made by Goodell as Commissioner of the NFL in conjunction with the investigation resulting in the now well-known discipline against Vilma and others associated with the Saints. Id. Vilma’s Complaint has not been amended since the May 17, 2012, filing of this suit, although he did recently accept a revised discipline that still found he had engaged in conduct detrimental to the game of football, though it imposed no suspension or fine. Rec. Docs. 169, 170-71, 174. Preemption The defendant’s argument that all of Vilma’s defamation and intentional infliction of emotional distress claims are preempted is supported by ample Fifth Circuit caselaw. Generally, claims that require the interpretation of a collective bargaining agreement are preempted by the LMRA. Reece v. Houston Lighting & Power Co., 79 F.3d 485, 487 (5th Cir.1996); Smith v. Houston Oilers, 87 F.3d 717, 718-719 (5th Cir.1996); Stafford v. True Temper Sports, 123 F.3d 291, 296 (5th Cir. 1997); Bagby v. General Motors Corp., 976 F.2d 919, 921 (5th Cir.1992); Strachan v. Union Oil Co., 768 F.2d 703 (5th Cir.1985). Vilma argues in opposition that the state-law claims do not require an analysis of the terms of a CBA. Rec. Doc. 72 at 12. He focuses on the fact that a number of the allegedly defamatory statements were made prior to Vilma himself being formally disciplined. Rec. Doc. 72 at 17. The Court disagrees with Vilma’s characterization and argument for the following reasons. Goodell’s discipline, imposed first upon the nonplayer staff of the Saints and ultimately upon Vilma, was based upon the same underlying investigation into the so-called “Bountygate” allegations. Goodell’s discipline, against both players and staff, resulted from that investigation, which likewise is based upon the CBA and related documents. Vilma’s claims for defamation and intentional infliction of emotional distress have to be evaluated through the lens of what the CBA allows Goodell to do. Reece, 79 F.3d at 487-88. A defamation claim cannot survive a motion to dismiss when it arises out of an arbitration involving discipline. Bagby v. General Motors Corp., 976 F.2d 919, 921 (5th Cir.1992); Weber v. Lockheed Martin Corp., 2001 WL 274518, at *7 (E.D.La.2001) (noting that defamation claims are typically preempted when the claim is about the employee’s conduct in a disciplinary action under a collective bargaining agreement or when the alleged conduct occurred in the context of an arbitration proceeding). Vilma relies on cases in which non-defamation claims were not preempted. Wells v. General Motors Corp., 881 F.2d 166, 173 (5th Cir.1989) (claims for verbal fraudulent inducement, independent of the CBA); Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th Cir.1991) (retaliatory discharge claim did not require an interpretation of the CBA). The Fifth Circuit in Bagby noted that those cases were inapplicable and unpersuasive. Bagby, 976 F.2d at 921, note 7. Here, even according to the plaintiffs own Complaint, the defamation claims are directly related to Goodell’s decision to suspend, that is, discipline Vilma, pursuant to the CBA arbitration procedure. Moreover, the defamation claims and the claim for intentional infliction of emotional distress would require interpretation of multiple portions of the CBA, not just the non-suit provision in CBA Art. 3, section 2, as Vilma contends. As set forth hereinabove, for example, the CBA authorizes Goodell to suspend a player for what he considers “conduct detrimental” and also authorizes him to investigate actions that he suspects constitute “conduct detrimental.” Vilma’s argument that the statements were made in Goodell’s individual capacity is unpersuasive as Goodell was sued as Commissioner of the NFL and all of the statements attributed to Goodell were made in connection with the NFL’s investigation of the pay-per-performance/bounty allegations. Therefore, Vilma’s claims are preempted and must be dismissed. Sufficiency under Rule 12(b)(6) In addition, the Court finds that all of Vilma’s claims fail to meet the 12(b)(6) standard because assertions of malice and of outrageous conduct are insufficient conclusory allegations. In the Complaint, Vilma alleges per se slander and libel on the ground that the statements injured his professional reputation, or because they accused Vilma of criminal conduct. For all defamation claims, including the non -per se claims, Vilma makes the conclusory statement that the Goodell’s statements “were made with reckless disregard of their truth or falsity and/or with malice.” Rec. Doc. 1 at ¶¶ 48, 54, 60, 66, 72, 78, 84, 90, 96, 102. The only facts he alleges in support are some version of the following: “Goodell had no reasonable grounds for believing the truth of his Statements. Goodell relied on, at best, hearsay, circumstantial evidence and lies in making the Statements.” Id. at ¶¶ 67, 73, 97, 103. As for the intentional infliction of emotional distress claim, Vilma makes the conclusory statement that “Goodell’s Statements and conduct were extreme and outrageous.” Id. at ¶ 106. He makes no further allegation in support. As a public figure, Vilma has the burden of showing that Goodell made the statements with “actual malice” under both Louisiana and New York law. Starr v. Boudreaux, 978 So.2d 384, 390 (La.Ct.App.2007); People ex rel. Spitzer v. Grasso, 21 A.D.3d 851, 801 N.Y.S.2d 584, 586 (2005). Vilma alleges that the suspension and the appeal were so procedurally flawed that no reasonable person could have believed the statements were true. However, the statements themselves indicate that they were based on an extensive investigation. See Young v. Meyer, 527 So.2d 391 (La.App. 4 Cir.1988) (ruling for defendant where alleged defamatory statements were made after investigation of the information prior to publication). While the Court is extremely disturbed by the fundamental lack of due process in Goodell’s denying the players the identities of and the right to confront their accusers, that was substantially rectified later in the process. So while the process was initially procedurally flawed, the statements were ultimately found to have enough support to defeat the defamation claims. As for Vilma’s claim for intentional infliction of emotional distress, the Fifth Circuit has affirmed dismissal of such a claim where the complaint only made a “bare assertion” of outrageous conduct. Stallworth v. Singing River Health Sys., 469 Fed.Appx. 369, 372 (5th Cir.2012). The conduct must be so “egregious as to shock the conscience.” Jones v. Trump, 971 F.Supp. 783, 787-788 (S.D.N.Y.1997). Here, the claim must fail because, unlike the defamation claims, Vilma does not even allege facts beyond the conclusory statement that Goodell’s conduct was “extreme and outrageous.” Rec. Doc. 1 at ¶ 106. Even though this matter has been pending only since May of this year, it feels as protracted and painful as the Saints season itself, and calls for closure. The Court nonetheless believes that had this matter been handled in a less heavy handed way, with greater fairness toward the players and the pressures they face, this litigation and the related cases would not have been necessary. Accordingly, IT IS ORDERED that the motion to dismiss pursuant to Rule 12(b)(6) filed by Roger Goodell is GRANTED. Rec. Doc. 23. . Section 301(a) provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. . Article 3, Section 2 of the CBA provides: The NFLPA agrees that neither it nor any of its members ... nor any member of its bargaining unit, will sue, or support financially or administratively, or voluntarily provide testimony or affidavit in, any suit against the NFL or any Club with respect to any claim relating to any conduct permitted by this Agreement, or any term of this Agreement ... In addition, neither the NFLPA nor any of its members ... nor any member of its bargaining unit will sue or support financially or administratively any suit against the NFL or any Club relating to the provisions of the Constitution and Bylaws of the NFL Rec. Doc. 23-8 at 23. Article 43, Section 1 of the CBA provides: Any dispute (hereinafter referred to as a “grievance”) arising after the execution of this Agreement and involving the interpretation of, application of, or compliance with, any provision of this Agreement, the NFL Player Contract, the Practice Squad Player Contract, or any applicable provision of the NFL Constitution and Bylaws or NFL Rules pertaining to the terms and conditions of employment of NFL players will be resolved exclusively in accordance with the procedure set forth in this Article, except wherever another method of dispute resolution is set forth elsewhere in this Agreement. Rec. Doc. 23-8 at 203. Article 46, Section 1 of the CBA provides: Notwithstanding anything stated in Article 43: (a) All disputes ... involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player's approval, may appeal in writing to the Commissioner. Rec. Doc. 23-8 at 220. . Paragraph 15 of the standard NFL Player Contract provides: Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefor acknowledges his awareness that if he ... is guilty of any ... form of conduct reasonable judged by the League Commissioner to be detrimental to the League or professional football, the Commissioner will have the right, ... to suspend Player for a period certain or indefinitely. Rec. Doc. 23-8 at 277-78. . Article VIII of the Constitution and Bylaws provides the Commissioner with authority that includes: "full, complete, and final jurisdiction and authority to arbitrate ... [a]ny dispute involving ... players ... that in the opinion of the Commissioner constitutes conduct detrimental to the best interests of the League or professional football"; "the complete authority” to suspend a player after deciding that the player "has either violated the Constitution or Bylaws of the League or has been or is guilty of conduct detrimental to the welfare of the League or professional football ...”; to "interpret and from time to time establish policy and procedure in respect to the provisions of the Constitution and Bylaws and any enforcement thereof”; and the authority to establish and exclusively control a Public Relations Department for the League. Rec. Doc. 23-9 at 24-25.

MEMORANDUM OPINION JAMES C. CACHERIS, District Judge. This matter is before the Court on Defendant Eugene Biagi’s Motion to Reconsider Meaning of “Willfulness’ Element of Campaign Finance Violations. [Dkt. 74.] For the following reasons, the Court will deny Defendant’s Motion. I. Background The basic facts of this case are recounted in the Court’s Memorandum Opinion dated May 26, 2011 which addressed Defendants’ motions to dismiss. (See Mem. Op., 788 F.Supp.2d 472 (E.D.Va.2011) [Dkt. 60].) Defendants are charged with illegally soliciting and reimbursing contributions from their employees to Hillary Clinton’s 2006 Senate Campaign (“Senate Campaign”) and 2008 Presidential Campaign (“Presidential Campaign”). (Indictment [Dkt. 1] (“Indict.”).) The instant motion concerns Counts Two and Three, which charge making campaign contributions in the name of another in violation of 2 U.S.C. § 441f and 18 U.S.C. § 2. Joint trial for Defendant Biagi and co-Defendant William P. Danielczyk, Jr. is set for February 26, 2013. [Dkt. 120-121.] On May 26, 2011, this Court addressed Defendants’ motions to dismiss Counts Two, Three, Four, Six, and Seven, granting dismissal with respect to Count Four and Paragraph 10(b) from the Indictment and denying dismissal as to the remaining counts. [Dkt. 52.] In doing so, the Court concluded that the intermediate standard for willfulness articulated in Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998)—that the defendant had acted with knowledge that his conduct was unlawful but not necessarily with knowledge of the specific statutory violation resulting in that unlawfulness— applied to Counts Two and Three. On June 8, 2011, Defendant Biagi file a Motion to Reconsider Meaning of Willfulness’ Element of Campaign Finance Violations. [Dkt. 74.] At a June 17, 2011 status conference, the Court held that this motion would be addressed when the Fourth Circuit’s mandate on the appeal returned and that the Government’s obligation to respond to the motion was relieved until then. [Dkt. 76.] The Fourth Circuit’s mandate took effect on August 20, 2012. [Dkt. 114.] On November 16, 2012, Defendant Biagi noticed his Motion for hearing on January 4, 2013. [Dkt. 124.] On November 27, 2012, the Government filed its opposition brief. [Dkt. 127.] Defendant filed his reply on December 9, 2012. [Dkt. 133.] Defendant’s Motion is before the Court. II. Standard of Review The Federal Rules of Civil Procedure do not provide a vehicle for a “motion to reconsider.” Rather, they provide for a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from judgment. Defendant does not specify whether he is bringing his Motion pursuant to Rule 59(e) or 60(b). Pursuant to Rule 59(e), “a motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). The Fourth Circuit has interpreted a motion for reconsideration as a motion to alter or amend a judgment pursuant to Rule 59(e) where that motion has been filed within the specified time period. See Lee-Thomas v. Prince George’s County Pub. Sch., 666 F.3d 244, 247 n. 4 (4th Cir.2012); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 n. 4 (4th Cir.2011). Here, Defendant’s Motion was filed within 28 days of the Court’s May 26, 2011 Memorandum Opinion and Order applying the intermediate standard of willfulness. Accordingly, the motion will be construed as a Rule 59(e) motion to alter or amend a judgment. See Fed.R.Civ.P. 59(e). A district court has “considerable discretion in deciding whether to modify or amend a judgment.” Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 241 n. 8 (4th Cir.2008). The Fourth Circuit has made it clear, however, that “[a] district court has the discretion to grant a Rule 59(e) motion only in very narrow circumstances: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir.2002) (quoting Collison v. Int’l Chem. Workers Union, 34 F.3d 233, 236 (4th Cir.1994)) (internal quotations omitted). A party’s mere disagreement with the court’s ruling does not warrant a Rule 59(e) motion, and such motions should not be used “to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). Rather, the purpose of Rule 59(e) motion is to allow “a district court to correct its own errors, ‘sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.’ ” Id. (quoting Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995)). A Rule 59(e) motion is “an extraordinary remedy which should be used sparingly.” Pac. Ins. Co., 148 F.3d at 403. III. Analysis Defendants argued in their motions to dismiss that the ambiguity of the statutes underlying Counts Two, Three, Six, and Seven meant that they could not have “willfully” violated those statutes. That argument was based upon the notion that “willfulness,” in the context of election law, connotes an awareness of the law’s commands — a heightened standard of intent found in the Supreme Court’s opinions in Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), and Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). This Court disagreed, choosing instead to apply an intermediate standard of willfulness as laid out in Bryan. Defendant Biagi seeks this Court’s reconsideration of that decision, raising a number of compelling arguments in favor of the Cheek/Ratzlaf standard applying here. As discussed below, however, the Court concludes that it was correct in applying the Bryan standard instead of the Cheek/Ratzlaf standard. Although the Court analyzed the issue of mens rea in detail in its initial Memorandum Opinion (Mem. Op., 788 F.Supp.2d at 486-91), the Court agrees with Defendant that the issue was not fully briefed in the motions to dismiss. Nonetheless, the Court undertook a full review of the issue in its previous opinion out of necessity. As explained in the Memorandum Opinion, both Defendants and the Government in the motions to dismiss briefing seemed to take as a given that “willfulness” in this case required that Defendants knowingly violate the law’s specific commands, citing Ratzlaf. (Id. at 486.) Upon examination of relevant case law, however, it became clear to the Court that the question of mens rea was in fact so muddled that this Court could not simply follow that premise without further consideration. (Id.) This Court therefore attempted to outline the different willfulness standards that have apparently evolved in federal criminal law, following then-Judge Sotomayor in breaking them down into three categories. First, there is the Cheek/Ratzlaf standard, which requires that the de fendant know that he is violating an actual law. This standard applies “where the obscurity or complexity” of a criminal statute “may prevent individuals from realizing that seemingly innocent acts are, in fact, criminal,” and thus willfulness requires the defendant to have known that he was violating a specific law. United States v. George, 386 F.3d 383, 390 (2nd Cir.2004). Second, the Bryan standard simply requires that the defendant possess “knowledge of the conduct’s general unlawfulness.” Id. at 392. Third, the baseline standard simply requires that the defendant know what he is doing, regardless of his awareness of the law, and it applies where conduct by its nature could not be participated in innocently. Id. at 393-94. The Court found that, while complex, the election statutes at issue did not pose as high of a risk of ensnaring individuals engaged in apparently innocent conduct as did highly technical statutes like tax law, and therefore did not warrant a Cheek/Ratzlaf-level mens rea. (Mem. Op., 788 F.Supp.2d at 489-91.) The Court also found that the election statutes could potentially capture innocent conduct, thus precluding the baseline mens rea. (Id. at 490-91.) The Court therefore applied the Bryan standard, requiring knowledge of general unlawfulness in order to show that Defendants acted willfully. (Id. at 489-91.) Defendant Biagi now asserts that the Court erred in choosing Bryan as opposed to Cheek/Ratzlaf. Defendant raises a number of arguments in support. First, Defendant argues that contrary to the Court’s conclusion, campaign finance laws are complex and the conduct at issue is not intuitively nefarious and thus the Cheek/Ratzlaf standard should apply. (Def. Mot. at 8; Def. Reply at 1, 3-9.) Second, Defendant asserts that Congress intended to adopt the highest willfulness standard for campaign-finance violations, as evidenced by the text of the willfulness element in 2 U.S.C. § 437g(d)(1)(A) and by legislative history. (Def. Mot. at 16; Def. Reply at 2, 9-11.) Third, Defendant notes that the Department of Justice publieally has taken the position for almost 20 years that the highest willfulness standard applies to campaign-finance violations, as indicated in both its manual published soon after Cheek and Ratzlaf but before Bryan and by its manual published almost 10 years after Bryan. (Def. Reply at 2, 11-13; Def. Mot. at 15, 18.) Fourth, Defendant argues that the very limited case law on this issue, albeit pre-Ratzlaf applies a Ratzlaf-]ike heightened standard of willfulness. (Def. Mot. at 18; Def. Reply at 6-7.) In its opposition, the Government responds with several arguments. First, it argues that the language of the relevant statutory provision is plain, narrow, and unambiguous and that a reasonable person who knowingly uses a false conduit to hide the identity of the true campaign contributor is on notice that he or she is engaging in unlawful conduct. (Gov’t Opp. at 5.) Second, the Government argues that the intermediate standard of requiring only knowledge of unlawfulness, rather than knowledge of a specific statutory violation, is consistent with Congress’ purpose in enacting Section 441f to ensure full disclosure of campaign contributions, including the source of those contributions, so that citizens could make educated and informed decisions. (Id. at 6-7.) In contrast, the Government argues that imposing a higher standard for willfulness would increase the difficulty in enforcing contribution laws, undermining the purpose of the statute. (Id. at 7.) Relatedly, the Government asserts that Section 441f s legislative history does not indicate that Congress was concerned with protecting persons who were aware of the general unlawfulness of their actions but not necessarily the specific statutory violations. (Id.) Third, the Government contests that the external reference materials to which Defendant cites— the Department of Justice manuals and the FEC brochures — do not undermine this Court’s determination that the Bryan standard applies. (Id. at 8-10.) Fourth, the Government argues that the case law cited by Defendants is not relevant because it pre-dates Cheek and Ratzlaf, as well as Bryan. (Id. at 9.) After careful review, the Court concludes that it was not a clear error of law to apply the Bryan intermediate standard for willfulness to this case and, therefore, the Court will deny Defendant’s Motion. First, as the Court recognized in its previous Memorandum Opinion, “[m]any areas of federal law are ‘complex,’ including laws governing campaign contributions.” (Mem. Op., 788 F.Supp.2d at 490.) This increasingly is true given this age of constantly proliferating statutes and regulations. Nonetheless, “the phrase ‘willfully’ should not be interpreted to create unwar-, ranted exceptions to the fundamental cannon of criminal law that ignorance of the law is no excuse.” George, 386 F.3d at 393. To require proof of a defendant’s knowledge of his or her specific statutory violation every time the statute at issue was somewhat complex would risk making the exception the rule, gutting the principal that ignorance of the law is no excuse, and seriously hindering the enforcement of a vast number of statutes in practice. Instead, courts have limited the Cheek/Ratzlaf standard to apply only to rare and “isolated circumstances,” George, 386 F.3d at 392, involving two sets of “ ‘highly technical’ exceptional statutes ... [:] federal tax laws, for which the Court has explicitly “carvfed] out an exception to the traditional rule” that ignorance of the law is no excuse, and a complicated statute addressing structuring of cash transactions, where the Court limited its holding specifically to antistructuring laws.” U.S. v. Kay, 513 F.3d 432, 451 (5th Cir.2007) (citing Cheek and Ratzlaf). Numerous courts have refused to extend this highest standard of willfulness to statutes outside of those narrow contexts. See e.g. Bryan, 524 U.S. at 194-95, 118 S.Ct. 1939 (refusing to apply Cheek/Ratzlaf standard to Firearms Owners’ Protection Act); U.S. v. Starnes, 583 F.3d 196, 211-12 (3rd Cir.2009) (same; involving transmission of falsified airmonitoring reports in violation of 18 U.S.C. § 1001(a), backpedaling from the circuit’s previous application of the standard in the campaign finance context in U.S. v. Curran, 20 F.3d 560 (3d Cir.1994)); Kay, 513 F.3d at 450-51 (refusing to apply the standard to the Foreign Corrupt Practices Act). Moreover, in practice, the highest standard willfulness now primarily applies only to federal tax law, an area of law which remains “an enclave apart.” United States v. Aitken, 755 F.2d 188, 193 (1st Cir.1985). After the decision in Ratzlaf, Congress amended the antistructuring statute at issue and eliminated the heightened mens rea imposed by the Supreme Court. (See Gov’t Opp. at 4 n. 2 (citing 1994 Riegle Community Development and Regulation Improvement Act, Pub. L. No. 103-325, § 411, 108 Stat. 2160, 2253 (1994) and United States v. Zehrbach, 47 F.3d 1252, 1262 n. 7 (3d Cir.1995) (finding that the only mens rea currently required is that the defendant have the purpose of having a financial institution not file a required report)).) The principal remaining context for the highest standard for willfulness— federal tax law — is, as noted in this Court’s previous opinion, unique in its “likelihood of ensnaring innocent conduct through sheer bewilderment.” (Mem. Op., 788 F.Supp.2d at 490.) As other courts have noted, “[o]ne of the most esoteric areas of the law is that of federal taxation. It is replete with ‘full-grown intricacies/ and it is rare that a ‘simple, direct statement of the law can be made without caveat.’ ” United States v. Regan, 937 F.2d 823, 827 (citation omitted), modified, 946 F.2d 188 (2d Cir.1991), cert. denied, 504 U.S. 940, 112 S.Ct. 2273, 119 L.Ed.2d 200 (1992). Indeed, federal tax laws are the very definition of mala prohibita statutes. Given the very isolated and unique remaining example of the requisite combination of technicality, obscurity, and complexity necessary for the highest standard for willfulness — federal tax law — and in light of the repeated refusals by other courts to extend this standard beyond that enclave as noted above, the Court concludes that it did not err in refusing to apply the Cheek/Ratzlaf standard to the instant case. Second, the Court again concludes that the intermediate standard in Bryan “adequately demarcates the boundary between innocent and unlawful conduct” in the context at hand. Starnes, 583 F.3d at 211-12. In interpreting the mens rea required by criminal statutes, courts attempt to “achieve a fine balance between protecting innocent conduct and penalizing wrongful conduct.” George, 386 F.3d at 392-93. “The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’ ” Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)). The Court concludes that, as in Bryan, “requiring only knowledge that the conduct is unlawful,” as opposed to specific “knowledge of the law,” is “fully consistent” with protecting “law-abiding citizens who might inadvertently violate the law” and “individuals engaged in apparently innocent activity” involving campaign finance. 524 U.S. at 195 & n. 23, 118 S.Ct. 1939. The Court’s decision to apply the Bryan standard is consistent with other courts which require in jury instructions for felony violations of § 441f and § 2(b), as well as other campaign finance law violations, that the government prove that the defendant “acted voluntarily and was aware that his conduct was unlawful.” See Jury Instructions at 21-22, United States v. Acevedo Vila, No. 08-36 (D.P.R. March 20, 2009), ECF No. 656; Jury Instructions at 16-17, United States v. Fieger, No. 07-20414 (E.D. Mich. June 2, 2008), ECF No. 348; Jury Instructions at 21, United States v. Alford, No. 05-69 (N.D.Fla. October, 7, 2005), ECF No. 86; see also Final Jury Instructions at 11, United States v. Edwards, No. 1:11-CR-161, 2012 WL 1856481 (M.D.N.C. May 18, 2012), ECF No. 288 (employing the Bryan standard and explaining that willfulness requires only that the defendant “acted with knowledge that his course of conduct was unlawful and with intent to do something that the law forbids ... not by mistake or accident”). Moreover, as noted in the Government’s opposition brief, such cases generally also require that in order to show defendant’s knowledge of the unlawfulness of his or her conduct, the government must prove that the defendant knew the true source of the contribution. (Gov’t Opp. at 5-6.) This requirement further decreases the risk that criminal penalties will be imposed on the basis of innocent conduct. Third, not only would imposing-a requirement of detailed knowledge of campaign finance laws go well beyond what is needed to screen out innocent conduct, it also would make enforcement of these laws and their underlying purposes very difficult. See United States v. Andrade, 135 F.3d 104, 108 (1st Cir.1998). Increased difficulty in prosecuting straw donor contributions would undermine Congress’ broad purpose in enacting FECA, to “promote transparency” and “to ensure the complete and accurate disclosure of the contributors who finance federal elections.” United States v. O’Donnell, 608 F.3d 546, 553-54 (9th Cir.2010). FECA is unlike tax law, where “[ijnnocent ‘avoidance’ is an established part of’ “a unique scheme consisting of myriad categories and thresholds, applied in yearly segments, designed to generate appropriate levels of taxation while also influencing behavior in various ways.” Ratzlaf, 510 U.S. at 156 n. 8, 114 S.Ct. 655 (Blackmun, J., dissenting). In contrast, evading the reporting of contributions by using straw donor schemes “completely deprives the Government of the information that those requirements are designed to obtain, and thus wholly undermines the purpose of the statute.” Id. Moreover, contrary to Defendant’s assertions, refusing to extend the Cheek/Ratzlaf standard does not necessarily contradict legislative history indicating that Congress described “willful violations” as involving “specific wrongful intent” and that Congress was concerned about local civic organizations, for example, inadvertently violating campaign finance laws in the process of “with all good intentions endorsing] a candidate for Congress in its literature.” (See Def. Reply at 10 (quoting 122 Cong. Rec. H2542 (daily ed. Mar. 30, 1976) (Statement of Rep. Rostenkowski), as well as citing H. Rep. No. 94-917 at 4, and 122 Cong. Rec. H3779 (daily ed. May 3, 1978) (Statement of Rep. Hays).)) The baseline mens rea standard for willfulness is not the sole alternative to applying the Cheek/Ratzlaf standard; instead, in its previous opinion, this Court acknowledged that some level of heightened mens rea was necessary to avoid capturing seemingly innocent conduct. (Mem. Op., 788 F.Supp.2d at 490.) Requiring that a defendant have the specific wrongful intent to violate “the” law (ie. to act unlawfully) rather than to violate “a” law (ie. to violate a specific statutory provision), however, adequately addresses this need and Congress’ concerns. A higher level of specificity is not necessary. For example, a local civil organization acting “with all good intentions” will not meet the standard for willfulness under Bryan. As noted above, the Court maintains that Bryan’s requirement of a defendant’s “general awareness of the illegality of his or her acts” sufficiently delineates “the mens rea boundary between protected and unlawful conduct” in this context. George, 386 F.3d at 394. Finally, although the position taken by the Department of Justice manual is persuasive evidence in support of adopting the Cheek/Ratzlaf standard, it is not dispositive. The Court does not believe such evidence outweighs the considerations detailed above. IY. Conclusion As a result, for the foregoing reasons and the reasons laid out in its prior Memorandum Opinion [Dkt. 60], the Court concludes that the Bryan standard is the correct standard for willfulness in this case. Accordingly, the Court will deny Defendant’s Motion. An appropriate Order will issue.

OPINION AND ORDER MUKASEY, District Judge. The defendant, John Martonak, moves to bar further proceedings in this case, challenging the Court’s jurisdiction to sentence him following his plea of guilty in October 1991 to a one-count information charging him with bank fraud in violation of 18 U.S.C. § 1344 (1994). The basis for his challenge, which accounts for the more-than-a-decade-long delay between plea and sentence, arises from Martonak’s fugitivity following his guilty plea, and his arrest in London and subsequent extradition to this country. Martonak argues that under the rule of specialty in extradition law — which holds that “the requisitioning state [here, the United States] may not, without permission of the asylum state [here, the United Kingdom], try or punish the fugitive for any crimes committed before the extradition except the crimes for which he was extradited,” Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973) (internal quotation marks omitted) — this court may not sentence him because the crime for which he was extradited is different from the crime to which he pleaded guilty and for which he is to be sentenced. Martonak does not dispute that the crime to which he pleaded guilty is extraditable under the relevant treaty between the United States and the United Kingdom. The government argues both that (i) Martonak lacks standing to raise this issue, because the rule of specialty protects the interest of the asylum state — the United Kingdom — and not the interest of the defendant, and (ii) Martonak is wrong on the merits because under the terms of the relevant treaty, the crimes for which he was extradited and for which he is to be sentenced are the same, and thus there is no violation of the rule of specialty. For the reasons set forth below, it appears that Martonak does have standing to argue the rule of specialty, but that the rule would not be offended if Martonak were sentenced for the crime to which he pleaded guilty. Therefore, Martonak’s motion is denied. I. As noted, Martonak pleaded guilty before me in this case in October 1999. The allocution included the following colloquy among the Court, the prosecutor (Nelson Boxer), the defendant, and defense counsel (Ian Weinstein): THE COURT: Mr. Boxer, do you want to give me a summary of what the government’s evidence would be if this case went to trial. MR. BOXER: At trial, your Honor, the government would be able to prove that Mr. Martonak mailed a check as described in the information, $35,100 check, bearing a certification stamp drawn on a Dreyfus Liquid account, to Spink & Son Auction House for certain precious coins, and the government would also be able to prove that at the time Mr. Martonak sent that check, the account was closed, in addition to which the government would be able to prove that the certification on that check was a bogus certification. THE COURT: Mr. Martonak, do you want to tell me in your own words what you did that makes you believe that you are guilty of the charge in this information? THE DEFENDANT: I did draw the check as suggested and attempted to receive rare coins from this auction house, sent it as a payment. THE COURT: And you obtained the bogus certification as well? THE DEFENDANT: Yes, sir. MR. WEINSTEIN: Just so the Court is clear, it was a certification that Mr. Martonak was able to produce basically by his own hand or with the aid of a home computer. It wasn’t just stamped with any insignia from the bank. THE COURT: Is that correct, Mr. Mar-tonak? THE DEFENDANT: Yes, sir. THE COURT: And you sent it in? THE DEFENDANT: Yes, I did. THE COURT: Where did this happen? THE DEFENDANT: I was living in New York and I sent it to the auction house in Austraha, in Sydney. THE COURT: Where in New York are you living? THE DEFENDANT: I am at 350 East 30th Street, here in Manhattan. THE COURT: And you are pleading guilty to this crime because you are in fact guilty? THE DEFENDANT: Yes, sir. THE COURT: Mr. Boxer, Mr. Wein-stein, you agree there is sufficient factual predicate for the plea? MR. BOXER: I would just ask your Honor if you would inquire as to whether the defendant knew that the account was closed at the time that he made the check. THE COURT: Were you aware that the account was closed at the time you sent the check? THE DEFENDANT: Yes, your Honor. (10/9/91 Tr. at 10-12; 10/10/01 Letter of Katherine Polk Failla to the Court (“Failla Ltr.”), Ex. A at 55-57) Martonak’s plea before me in 1991 was then the last of a series of three charging instruments to which Martonak had pleaded guilty in this Court. The first two charged him with mail fraud, under docket numbers 88 Cr. 898(MBM) and 90 Cr. 270(DNE). As the initials in the docket numbers suggest, the first of those cases was assigned to me, the second to the late Judge David N. Edelstein. The criminal conduct underlying Martonak’s guilty pleas in the 1990 case and the instant case also constituted violations of the terms of his supervised release in the 1988 case before me, and Martonak pleaded guilty as well before me in October 1991 to the supervised release violations in the two earlier cases. (10/9/91 Tr. at 13-14) Initially on March 6, 1992, and again on March 11, Martonak failed to appear for sentencing, and a bench warrant was issued. In April and July 1999, Martonak was arrested in London, and when his whereabouts were made known to the United States Attorney’s Office in this District, extradition proceedings were initiated under the extradition treaty between the United States and the United Kingdom. Article XII of that treaty provides in relevant part as follows: A person extradited shall not be detained or proceeded against in the territory of the requesting Party [here, the United States] for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted .... Extradition Treaty, June 8, 1972, U.SU.K., art. XII(l), 28 U.S.T. 227, 233. Those proceedings began in September 1999 with a formal diplomatic note from the American Ambassador to the Secretary of State for Foreign and Commonwealth Affairs, requesting Martonak’s provisional arrest. (Failla Ltr. at 4-5) Following intermediate steps not here relevant, Martonak’s extradition case was heard before Magistrate Geoffrey Breen in Bow Street Magistrates’ Court, London. The prosecution’s case consisted of a packet of papers submitted to the Magistrate, and included a list styled “Committal Charges” which purported to describe the charges on which Martonak’s extradition was sought, an order establishing the Magistrate’s authority to proceed, and a separate group of documents received from the United States — tied together with a ribbon and under seal of the Department of State' — consisting in part of certified copies of various documents from this Court and including the information in this case and the transcript of Martonak’s plea allocution. (Failla Ltr. Ex. A, at 43, 45-63) The first document in the packet submitted to the Magistrate — the list of “Committal Charges” — describes Martonak’s convictions in the 1988 and 1990 cases, and the supervised release violations relating to them, and describes his conviction in the instant case as follows: John Martonak (aka John Weston) in or about June 1990 dishonestly attempted to obtain from Spink and Son Auction House coins, with intention of permanently depriving the said Spink and Son Auction House thereof by deception namely by falsely representing that a cheque for $35,100 drawn on the account of Dreyfus Liquid Assets was a good and valid order for payment and that the cheque certification was genuine. Sentence in respect of the above conviction is outstanding. (Failla Ltr. Ex. A, at 1A) The extradition proceedings ended with a decision adverse to Martonak in the House of Lords in May 2001, and he was returned to this District in July. Martonak’s specialty rule claim is based on the above quoted portion of the “Committal Charges,” which appears to describe his crime as an attempt to defraud the auction house to which the worthless check was sent, rather than an attempt to defraud the bank on which that check was drawn. Because Martonak pleaded guilty to bank fraud — directed perforce at the bank — rather than mail fraud — directed at the auction house — he argues that if he is sentenced it would be for a crime different from the one for which he was extradited, and the rule of specialty would be violated. II. Before Martonak’s claim can be addressed, the court must first address the question of whether Martonak has standing to raise it. There appears to be divided authority on that point, see United States v. Nosov, 153 F.Supp.2d 477, 480 (S.D.N.Y.2001) (collecting cases), with some courts holding that only the asylum state may raise issues of specialty, inasmuch as the rationale for the rule of specialty rests on protecting the interest of that state in preserving the limits of its agreement to extradite a particular defendant, and others holding that the extradited defendant may raise whatever objections the asylum state might have had. See id. Although the Nosov court did not appear to rule explicitly on the issue of standing, noting instead that “even if Nosov had standing, his argument would fail,” id., I do not believe I am free so to avoid the standing issue. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Supreme Court held that federal courts are not free to assume subject matter jurisdiction and decide the merits' — -exercising “hypothetical jurisdiction” — even if the jurisdictional issue is far more nettlesome than the merits and even if the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied. Id. at 94, 118 S.Ct. 1003. Rather, the issue of subject matter jurisdiction must be addressed, and, as noted in Steel Co., “[standing to sue is part of the common understanding of what it takes to make a justiciable case.” Id. at 102, 118 S.Ct. 1003 (citation omitted). The Court listed three requirements that make up the “irreducible constitutional minimum of standing.” Id. at 102, 118 S.Ct. 1003 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (internal quotation marks omitted). “First and foremost” among them is “an ‘injury in fact’ — a harm suffered by the plaintiff that is ‘concrete’ and ‘actual or imminent, not “conjectural” or “hypothetical.” ’ ” Id. at 103, 118 S.Ct. 1003 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Edüd 135 (1990)). The other two are causation and redressability, id. at 103, 118 S.Ct. 1003, which are not at issue here. What is at issue is whether Marto-nak can claim that he would suffer an injury in fact from a prosecution that exceeded, or at least differed from, what the United Kingdom had agreed to extradite him for. The government cites Shapiro v. Fer-randina, 478 F.2d 894 (2d Cir.1973), for the proposition that Martonak lacks standing, and the opinion in that case, by Chief Judge Friendly, does in fact say that “[a]s a matter of international law, the principle of specialty has been viewed as a privilege of the asylum state, designed to protect its dignity and interests, rather than a right accruing to the accused.” Id. at 906 (citations omitted). However, although the opinion says that, the Court in Shapiro did consider the specialty arguments the petitioner raised, even though the United States was the asylum state in that case and urged the Court not to consider those arguments, and even though, as Judge Friendly recognized, any ruling in such a case “can only be advisory in character, and in certain circumstances might cause embarrassments to the executive branch in the conduct of foreign affairs.” Id. The government also cites United States v. Reed, 639 F.2d 896 (2d Cir.1981), for the proposition that “absent protest or objection by the offended sovereign, [the defendant] has no standing to raise violation of international law as an issue.” Id. at 902. Reed, however, involved a claim by a defendant that he had been abducted from a foreign country that had an extradition treaty with the United States, and did not involve any principle of specialty. It had long been the law that how a defendant came into the control of the sovereign was irrelevant to whether he could be tried, see Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952) (applying Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886)), absent blatantly lawless and overreaching conduct by the government, see United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). Reed simply applied that longstanding law. In United States v. Jurado-Rodri-guez, 907 F.Supp. 568 (E.D.N.Y.1995), Judge Weinstein permitted an extradited defendant to invoke the rule of specialty, “but only to the extent of the surrendering country’s wishes.” Id. at 576. That appears to be a reasonable rule of standing that has the virtue of following the standing rules of Steel Co. while at the same time assuring that the wishes of the asylum state will govern. Here, Martonak indisputably would suffer an injury of the most direct sort if he were to be sentenced to jail for a crime that the United Kingdom did not agree he should face upon extradition. Of course, whatever Marto-nak’s argument, the position of the United Kingdom on the limits of its extradition order could always be presented to the Court through an appropriate representative, and would govern. On this basis, and absent any authoritative declaration from the United Kingdom that no rule of specialty issue exists, Martonak has standing to argue the issue of specialty. III. Although Martonak has been allowed to raise the issue of specialty, he is wrong on the merits. For the reasons set forth below, sentencing him on the bank fraud charge to which he pleaded guilty is within the limits set by the asylum state, the United Kingdom. As noted above, Article XII of the governing treaty between the United States and the United Kingdom, as applied here, bars the United States from punishing Martonak “for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted .... ” Extradition Treaty, supra, 28 U.S.T. at 233 (emphasis added). As the highlighted language says, what governs is what has been “established by the facts in respect of which his extradition has been granted.” Id. The “facts,” insofar as they relate to the bank fraud charge in dispute, are contained in Martonak’s guilty plea allocution, part of which is quoted at pages 2-3 above, and which was presented to Magistrate Breen in Bow Street Magistrates’ Court. Those were the “facts in respect of which” Marto-nak’s extradition was granted, and they establish bank fraud under the laws of the United States. That the list of charges presented to the Magistrate, including the supervised release violations and the bank fraud charge, might have misdescribed the bank fraud charge so as to make it look like mail fraud, is irrelevant. That much is plain from the language of the treaty, which makes the extradition determination turn on the facts presented to the tribunal determining the issue, not on the nature of the offense for which extradition is sought. The same argument Martonak relies on here was raised by the defendant in United States v. Sensi, 879 F.2d 888 (D.C.Cir. 1989), and rejected. There, Sensi, a defendant extradited from the United Kingdom, argued, among other things, that “the British magistrate who extradited him set out 18 counts of theft.” Id. at 895. Sensi contended that “the United States could not charge him with the various offenses contained in the indictment, because those offenses were not ‘listed before the magistrate.’ ” Id. (quoting the defendant’s appellate brief). The Court rejected that claim, and held that all that is required under the doctrine of specialty, as applied to the same treaty at issue in this case, “is that the prosecution be ‘based on the same facts as those set forth in the request for extradition.’ ” Id. at 895-96 (quoting Restatement (Third) of Foreign Relations Law of the United States § 477, cmt. a (1987)). “Thus, the test focuses on the evidentiary material that was submitted to the magistrate.” Id. at 896. The list of charges that appears on a page preceding the certified copies of documents received from the United States is not “evidentiary material that was submitted to the magistrate.” For the above reasons, Martonak’s request to bar further proceedings in this case is denied, and the Court will proceed to sentence him at a date and time to be determined after consultation with counsel. SO ORDERED.

AMENDED OPINION & ORDER PANNER, District Judge. I. BACKGROUND In this action, the Court declared the existence, nature, scope and priority of the reserved Indian water rights of the Kla-math Tribes, but left the quantification of those rights to the State of Oregon’s Kla-math Basin Adjudication (“KBA”). See, United States v. Adair, 478 F.Supp. 336 (D.Or.1979) (“Adair I”). The Court entered a Declaratory Judgment on April 21, 1980, which was affirmed in United States v. Adair, 723 F.2d 1394 (9th Cir.1983) (“Adair IF), cert. denied sub nom, Oregon v. United States, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). This Court retained continuing jurisdiction of this matter “for the purpose of enabling the parties or their successors in interest to apply to this court at any time for such orders and directions as may be necessary or appropriate for the construction and effectuation of this judgment, for the modification of any of the provisions hereof, and for the enforcement of compliance with this judgment.” Declaratory Judgment, ¶ 15. Pursuant to Paragraph 15 of the Declaratory Judgment, Plaintiffs filed motions for exercise of this Court’s continuing jurisdiction. A dispute has arisen among the parties in the KBA over the proper interpretation of the Declaratory Judgment and how to effectuate rulings in this case to quantify the Tribes’ water rights in the state proceeding. The motions were granted, and this Court is exercising its continuing jurisdiction to determine two narrow issues: (1) whether the Klamath Tribes have a water right to support reserved gathering rights; and (2) whether and to what extent the “moderate living” standard applies in quantifying the Tribes’ water rights. II. DISCUSSION A. The Gathering Right The Klamath Tribes have reserved gathering rights, along with supporting water rights. The 1980 Declaratory Judgment explicitly holds that the tribal water right included water for, gathering purposes. Paragraph 3 of the Declaratory Judgment provides: “In creating the Reservation by treaty in 1864 the Government reserved land from the public domain to preserve the Tribe’s hunting, fishing, trapping and gathering rights and to encourage agriculture. The treaty granted the Tribe an implied right to as much water on the Reservation as was necessary to fulfill these purposes.” Paragraph 11 of the Declaratory Judgment provides: “The priority date of the Tribe’s hunting, fishing, trapping and gathering rights, and their water rights necessary to preserve these hunting, fishing, trapping and gathering rights is time immemorial.” The Court could not have been more clear in articulating its holding that gathering rights, and supporting water rights, are reserved to the Tribe. Moreover, the plain language of the 1864 Treaty, and a commonsense reading of Adair I & Adair II, and United States v. OWRD, 774 F.Supp. 1568 (D.Or.1991), affd. and modified, 44 F.3d 758 (9th Cir.1994), support this position. The Ninth Circuit’s use of “hunting and fishing” language as a shorthand phrase shall not be construed to eliminate the Tribes’ right to water for gathering purposes. There is nothing in Adair I or Adair II that is inconsistent with the Declaratory Judgment on this issue. Accordingly, the Klamath Tribes’ water rights include a right to water to support resources the Tribes gather, in addition to the resources they hunt, fish, and trap. B. Legal Standard for Measuring Water Rights The parties dispute how to apply the legal standard for quantifying the Tribes’ water rights. The Oregon Department of Justice (“ODOJ”) attempted to provide legal advice to the Adjudicator in the KBA on this issue, but admitted it was uncertain how to apply the relevant standards. The parties dispute not only what standard should be applied, but how it should be applied, and which party has the burden of proof. The primary dispute revolves around applying the “moderate living” doctrine announced in Adair II. The parties also struggle to interpret the phrase “as currently exercised” from Adair II. At the outset, it is worth noting that any argument that would have the practical effect of quantifying the Tribes’ reserved water right at a level that would not support productive habitat is rejected. That would result in abrogating the Tribes’ treaty rights to hunt, fish, gather, and trap on the reservation lands. The Ninth Circuit has recently confirmed, in the context of the Klamath Tribes’ water rights, that “[o]nly Congress can abrogate Indian treaty rights, see United States v. Dion, 476 U.S. 734, 738, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986), and it has not done so here.” Klamath Water Users Prot. Ass’n v. Patterson, 204 F.3d 1206, 1213 (9th Cir.1999), cert. denied, 531 U.S. 812, 121 S.Ct. 44, 148 L.Ed.2d 14 (2000). Moreover, both Adair I and Adair II announce that water must be maintained at some level on the land to fulfill the purpose of the reservation. In Adair II, the Ninth Circuit could not have been more clear that it intended to “prevent other appropriators from depleting the streams and waters below a protected level in any area where the non-consumptive [water] right applies.” Adair II, 723 F.2d at 1411. With these arguments put to rest, this Court must reconcile the quantification standard announced in Adair I, with the “moderate living” standard announced in Adair II. The two standards are not in conflict and what Defendants have apparently lost sight of is that the initial quantification of water rights is a separate analysis from the “moderate living” standard. The adjudicator is called upon to first quantify the Tribes’ water rights to establish an allocation of water to fulfill the purpose of the reservation. Only after the quantification stage can the “moderate living” doctrine be considered to possibly adjust the quantification. 1. Step One — Quantifying the Water Right Adair I announced the legal standard for quantifying the Tribes’ water rights by holding: The Indians are still entitled to as much water on the Reservation lands as they need to protect their hunting and fishing rights. If the preservation of these rights requires that the Marsh be maintained as wetlands and that the forest be maintained on a sustained-yield basis, then the Indians are entitled to whatever water is necessary to achieve those results. Adair I, 478 F.Supp. at 345-46. Adair II and the “moderate living” standard did not change this threshold quantification standard. The quantification standard does not involve an analysis of any actual beneficial use of the water, or any actual harvest of treaty protected resources on a fixed day or time in history. Adair II, 723 F.2d at 1406 n. 11; see also Arizona v. California, 373 U.S. 546, 598, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963) (“Arizona I”) (reserved water rights measured by “practicably irrigable acres” to fulfill treaty purposes, and not based upon number of Indians on reservation or actual use of land). Instead, the focus must be on fulfilling the purpose of the reservation. Id. Adair II held that there were two primary purposes of the reservation and accompanying implied water rights. One was to support Klamath agriculture, and the other, which is at issue here, was “for the purpose of maintaining the Tribe’s treaty right to hunt and fish on reservation lands.” Adair II, 723 F.2d at 1409. In order to provide the Tribe an opportunity to continue hunting and fishing on the reservation lands, it is axiomatic that there be sufficient water to support productive habitat so there may be game to hunt, and fish to fish, as well as edible plants to gather. As Adair I announced, this may require that the “Marsh be maintained as wetlands” and that the “forest be maintained on a sustained-yield basis.” Adair I, at 345-46. Quantifying the reserved water right so that productive habitat can be supported is the only meaningful way to measure the water requirements to meet the goal of fulfilling the purpose of the reservation. Defendants interpret the rulings in this case to hold that Plaintiffs are “entitled to the minimum amount of water necessary to protect the Tribes’ hunting and fishing water rights,” and that “the minimum amount necessary is a factual determination that must be made based upon the material supplied by the claimants.” Although there seems to be no dispute that Plaintiffs carry the initial burden of proving that a certain amount of water is needed to support productive habitat, the assertion that the tribes are entitled only to some “minimum amount” of water is an incorrect statement of the law. In quantifying the right under Adair I, the Tribe is entitled to “whatever water is necessary to achieve” the result of supporting productive habitat. Adair I, 478 F.Supp. at 346. Once the adjudicator has quantified the Tribes’ water rights under the principles announced in Adair I, the moderate living standard may be considered. 2. Step Two — The Moderate Living Standard In Adair II, the Ninth Circuit Court of Appeals stated that: “Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but not more than, is necessary to provide the Indians with a livelihood — that is to say, a moderate living.” 443 U.S. at 686, 99 S.Ct. at 3075. Implicit in this “moderate living” standard is the conclusion that Indian tribes are not generally entitled to the same level of exclusive use and exploitation of a natural resource that they enjoyed at the time they entered into the treaty reserving their interest in the resource, unless, of course, no lesser level will supply them with a moderate living. See Washington v. Fishing Vessel Ass’n, 443 U.S. at 686, 99 S.Ct. at 3074-75. As limited by the “moderate living” standard enunciated in Fishing Vessel, we affirm the district court’s decision that the Klamath Tribe is entitled to a reservation of water, with a priority date of immemorial use, sufficient to support exercise of treaty hunting and fishing rights. Adair II, 723 F.2d 1414-15. Under the traditional application of the moderate living standard, the initial quantification of a reserved right may be limited “if tribal needs may be satisfied by a lesser amount.” Washington v. Fishing Vessel Ass’n, 443 U.S. 658, 685, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). However, this case is unlike Fishing Vessel where the reserved right could be reduced without completely frustrating the purpose of the reservation. For example, if the tribes’ 50% allocation of the harvestable fish run at issue in Fishing Vessel would have been reduced to a 35% allocation, the reserved right would still survive after the reduction. In contrast, the Klamath Tribes’ reserved water right does not readily lend itself to such a reduction. Ultimately, the water level cannot be reduced to a level below that which is required to support productive habitat, and the Tribes are entitled to “whatever water is necessary to achieve” the result of supporting productive habitat. This would be true even if there were fewer members of the Tribe. Reducing the water level below a level which would support productive habitat would have the result of abrogating the reserved rights. Because only Congress can abrogate treaty rights, and it has not done so here, the moderate living standard cannot be applied to have the effect of reducing water levels below a level that would support productive habitat. To the extent the moderate living standard can be applied in this ease, the Supreme Court’s guidance in Fishing Vessel on the burden of persuasion and the applicable legal test was followed in United States v. Washington, 873 F.Supp. 1422, 1445-46 (W.D.Wash.1994) [hereinafter Shellfish I], affd. in relevant part, rev’d in part, 135 F.3d 618 (9th Cir.1998), opinion amended and superceded on other matters, 157 F.3d 630 (9th Cir.1998). The district court in Shellfish I looked for “persuasive evidence ... presented to the Court by the State and the interveners [parties opposing the tribal right]” demonstrating that the full resource amount claimed by the tribes was in fact not necessary to provide the tribes with a moderate living. Id. 873 F.Supp. at 1445. Because the parties opposing the tribal right did not present sufficient persuasive evidence, the district court in Shellfish I did not apply the moderate living standard to reduce the treaty right from its initial allocation. The same burdens should be used to the extent non-tribal parties seek to reduce the Tribes’ water rights based on the moderate living standard. However, if reducing the full resource amount would result in reducing the water level below that which is necessary to support productive habitat, no such reduction may be made regardless of the outcome of the moderate living standard analysis. S. “As currently exercised” The parties dispute the meaning of the “as currently exercised” language in Adair II where the Court of Appeals “confirmfed] to the Tribe the amount of water necessary to support its hunting and fishing rights as currently exercised to maintain the livelihood of the Tribe members, not as these rights once were exercised.” Adair II, 723 F.2d at 1414 (emphasis added). Some defendants have interpreted this phrase to be the definitive measure for quantifying the tribal water right in the KBA. Under these defendants’ interpretation, the amount of water associated with the Tribes’ right is fixed by a specific date in 1979 — the date of the Adair I decision. For example, Oregon’s Preliminary Evaluation concluded that the Tribes’ right is to “that amount of unconsumed water flowing through [each described reach] as of September 27, 1979, the date of [Adair 7], or the quantity of water claimed by the BIA for physical habitat maintenance flows, whichever is less.” Some private defendants also assert that water flows in 1979 or 1984 (the date of Adair II) are the proper measure of the Tribes’ water rights. Defendants’ interpretations conflict with the meaning of Adair II and are inconsistent with the cases relied upon therein. In particular, in Fishing Vessel the Supreme Court did not limit the Indian treaty harvest of the fishery to the number of fish that were currently being harvested as of the date of the opinion, or on any other fixed date. By the time of the Fishing Vessel litigation, the Indian harvest had shrunk to only about 2% of the harvestable fishery and current fishery management “exclude[d] most Indians from participating in it.” Fishing Vessel, 443 U.S. at 669, 99 S.Ct. 3055. Rather, Fishing Vessel confirmed 50% of the harvest to the tribes (unless opponents could prove that a lesser share was appropriate under the “moderate living” standard) and confirmed that the treaty fishing right remained undiminished by the fact that non-treaty fishermen had, at the time of the litigation, overwhelmed Indian participation in the fishery. Id. at 684-87, 99 S.Ct. 3055. Similarly, in Arizona I, which Fishing Vessel relied upon, the court confirmed enough water to the tribes to irrigate all irrigable acres on their reservation lands regardless of the amount of irrigation then currently being exercised by the tribes. Arizona I, 373 U.S. at 600-01, 83 S.Ct. 1468. Defendants’ interpretations have the effect of assigning a 1979 (or 1984) priority date to the Tribes’ water right. This result cannot be reconciled with this Court’s holding, which was affirmed in Adair II, that the Tribes’ priority date is “time immemorial.” Moreover, a stream without water cannot be reconciled with the purpose of the tribal right which is to “guarantee continuity of the Indians’ hunting and gathering lifestyle,” (Adair II, 723 F.2d at 1412-13), and its acknowledgment that “the treaty is not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” Id., quoting United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). Fixing the tribal water rights to a specific date is not related to the fulfillment of purposes of the Klamath Indian Reservation, which is the paramount consideration mandated by Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). The “as currently exercised” phrase refers only to the moderate living standard which recognizes that changing circumstances can affect the measure of a reserved right. Fishing Vessel, 443 U.S. at 686-87, 99 S.Ct. 3055. The “as currently exercised” language does not set a water right to a level in 1979 or 1984, for that would clearly be contrary to the intent of Adair II. This is the only way to interpret the phrase to be consistent with the rest of Adair II, to not result in changing the Tribes’ priority date, and to not result in abrogating the Tribes’ reserved rights. C. Hufford Defendants’ Preclusion Argument A significant portion of the Hufford Defendants’ opening brief is devoted to their contention that “[t]he Klamath Tribes and their members have relinquished their rights to hunt, fish and gather and all interests in water incident thereto through disposal of the lands upon which those rights, under the Treaty of 1864, were necessarily appurtenant.” Memorandum of Private Defendants, p. 43. This contention was rejected by Judge Solomon in Adair I. It is too late to relitigate that issue now, over twenty years later. The Hufford Defendants also contend that an award of compensation made by the Court of Claims in 1971 extinguished water rights under Article I of the Treaty. The short answer is that this argument could and should have been asserted in Adair I, which was decided in 1979. It is too late now. Finally, in their reply brief, the Hufford Defendants assert that they need more time to marshal evidence in support of their preclusion argument, and seek to delay a decision on that defense. However, no additional “evidence” can change the fact that this argument comes twenty years too late. CONCLUSION For the foregoing reasons, it is hereby Ordered and Declared that: (1) the Kla-math Tribes’ water rights include a right to water to support resources the Tribes gather, in addition to the resources they hunt, fish, and trap; (2) Adair I announced the standard for quantifying the tribal water right; and (3) the “moderate living” standard has limited application in this case, but could be used to adjust the initial quantification of the tribal water right upon a proper showing by non-tribal opponents. In no event shall the adjudicator quantify or reduce the Tribal water right to a level below that which is necessary to support productive habitat. . The State of Oregon resisted the motion for excercise of the Court’s jurisdiction on the ground that deference to the state adjudication was appropriate under the Colorado River doctrine. The court rejected that argument. Opinion and Order, August 9, 2001, dkt. no. 2359. Thereafter, the State of Oregon did not participate in the current proceeding, and took no position with regard to the merits of the substantive issues addressed in this opinion.

MEMORANDUM OPINION CHASANOW, District Judge. This employment discrimination case is before the court after remand from the Fourth Circuit. The court’s original ruling that Defendants were not state actors for purposes of 42 U.S.C. § 1983 was vacated and the case was remanded for further proceedings. Defendants continue to assert that summary judgment should be entered on this claim, based on the factual posture found by the court and affirmed by the Fourth Circuit with regard to the Title VII claim. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. I. Background Plaintiff William Wells has been a career firefighter in Montgomery County since November 1973, serving in fire departments in Glen Echo, Bethesda, Wheaton, Hillandale, Laytonsville, and most recently Gaithersburg. From June 1994 to November 1996, Plaintiff worked at the Laytons-ville Volunteer Fire Department (“LVFD”) as Station Commander. LVFD has both volunteer and career firefighters, and the record provides ample evidence of the ongoing tension between the two groups. In particular, Plaintiff described three incidents in 1996 which occurred while Plaintiff was the Station Commander at LVFD. On March 7, volunteer firefighters barricaded themselves in a bunkroom to protest career firefighters waking them up during the night. In May 1996, a second incident occurred when volunteer firefighters including Defendant Montgomery allegedly returned a self-contained breathing apparatus to the station without using the proper cleaning procedures. Plaintiff, as Station Commander, reported the volunteer firefighters for their conduct on each occasion. Finally, on June 4, 1996, a group of volunteer firefighters allegedly held down and “spanked” Nancy Banks, a career firefighter, on her birthday. Although not present during the Banks incident, Plaintiff reported the event to his supervisors, encouraged Banks to file an EEOC complaint, and provided assistance in the EEOC investigation. On June 5, 1996, the day following the Banks incident, Defendant Chief J.B. Kline called Montgomery County Department of Fire and Rescue Services to request that Plaintiff be transferred. Defendants assert that Kline had on previous occasions mentioned the possibility of transferring Plaintiff, but the day after the Banks incident is the first time that Chief Kline mentioned that possibility to Plaintiff. On June 14, Kline, Defendant Sutton, and Defendant Board of Directors submitted the request in writing to the County for the first time. The County initially resisted the suggestion, but after several months of consideration, ordered the transfer. Following the Banks incident and before the transfer, the conflict between the two groups worsened at LVFD. Volunteer firefighters allegedly violated rules and harassed the career firefighters, particularly Plaintiff, on an almost daily basis. The County finally offered Plaintiff two possible posts, at Gaithersburg Volunteer Fire Department or Hillandale Volunteer Fire Department. Plaintiff rejected the position at Hillandale, which would have offered similar hours and title as his previous position, because his son was a volunteer firefighter there. Plaintiff believed that County regulations forbade his working in a supervisory position where his son also worked. Therefore, the County transferred Plaintiff on November 24, 1996, to the Gaithers-burg Volunteer Fire Department. There, Plaintiff is still at the captain level, but is no longer a Station Commander and therefore does not receive the 5% salary differential for that post. Furthermore, while previously Plaintiff worked four twelve-hour shifts per week, now Plaintiff works 24 hours on and 48 hours off — a schedule less desirable to him. Finally, Plaintiff claims that the Gaithersburg position offers significantly fewer overtime hours and, therefore, a lower net salary. In his 42 U.S.C. § 1983 claim, Plaintiff asserts that Laytonsville Volunteer Fire Department and its Board of Directors violated his rights under the First and Fourteenth Amendments to the United States Constitution by his transfer, allegedly in retaliation for the exercise of his right of free speech and for his insistence on following mandatory county policy related to charges of sexual harassment. II. Standard of Review It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judg ment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In Celotex Corp., the Supreme Court stated: In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the “pleadings, depositions, answers to interrogatories, and admissions on file.” Such a motion, whether or not accompanied by affidavits, will be “made and supported as provided in this rule,” and Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. However, “ ‘a mere scintilla of evidence is not enough to create a fact issue.’ ” Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967)). There must be “sufficient evidence favoring the nonmov-ing party for a jury to return a verdict for that party. If the evidence is merely col-orable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). III. Analysis In the original decision, this court granted summary judgment to Defendants on the ground that there was insufficient evidence of state action. In light of Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337 (4th Cir.2000), that finding is in error. The court did not reach Defendants’ alternative arguments originally and will now proceed to do so. A first amendment retaliation claim contains three elements: first, proof that the expressions related to matters of public concern; second, that the retaliatory action deprived plaintiff of a valuable benefit, and third, that there was a causal relationship between the protected expression and the retaliatory action. Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir.1993). With regard to the causation requirement: By its decision in the Mt. Healthy [City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ] and Givhan [v. Western Line Consol. Sch. Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) ] cases, the Supreme Court has allocated the burden of proof regarding causation between the parties in a first amendment discharge case in the following manner. The initial burden lies with the plaintiff, who must show that his protected expression was a “substantial” or “motivating” factor in the employer’s decision to terminate him. If the plaintiff successfully makes that showing, the defendant still may avoid liability if he can show, by a preponderance of the evidence, that the decision to terminate the plaintiff would have been made even in the absence of the protected expression, more simply, the protected speech was not the but for cause of the termination. Wagner, 13 F.3d at 90. Generally, the standards under Title VII are applicable to parallel actions under 42 U.S.C. §§ 1981 and 1983. See, e.g. Causey v. Balog, 162 F.3d 795, 804 (4th Cir.1998) (“Because Causey failed to establish that the defendants violated his rights under Title VII, his similar claims brought under sections 1981 and 1983 must also fail. See Gairola v. Virginia Dept. of General Services, 753 F.2d 1281, 1285 (4th Cir.1985) (elements of a prima facie case are the same under Title VII, § 1981, and § 1983).”); Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir.1994) (“Courts may apply the standards developed in Title VII litigation to similar litigation under § 1983. See Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 202-03 (6th Cir.1993); Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir.1990).”) Defendants assert that the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), shifting burden of proof scheme applicable in Title VII cases should be used to analyze this claim and that, inasmuch as summary judgment has been granted against Plaintiff on the parallel Title VII claim, the § 1983 claim fails as well. Plaintiff disputes the applicability of the McDonnell Douglas scheme by arguing that this is a “mixed motive” case, making Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the appropriate framework. He claims that there is direct evidence that his conduct regarding the Nancy Banks incident was the impetus. Plaintiffs attempt to characterize the evidence as “direct” fails. To satisfy the standard from Price Waterhouse for “[djirect evidence that a decision maker placed substantial negative reliance on an illegitimate criterion,” 490 U.S. at 277, 109 S.Ct. 1775 (O’Connor, J., concurring), requires “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995). Other courts are equally emphatic. “[Djirect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods., 176 F.3d 921, 926 (6th Cir.1999). The Seventh Circuit said it most clearly: Direct evidence is “ ‘evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant.’ ” Maldonado v. U.S. Bank, 186 F.3d 759, 763 (7th Cir.1999) (quoting Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.1994)). As stated in the original decision, Plaintiff has only weak evidence of causation in the timing of the events. This court concluded that, other than the timing of his transfer, in proximity to both the EEO report and the mounting tension at LVFD, Plaintiff offers no evidence of retaliation other than his subjective impressions. As before, that is not enough. IV. Conclusion The evidence in this case fails to measure up to the standard for direct evidence. At most, Plaintiff made out a pri-ma facie case under the McDonnell Douglas burden shifting scheme. Defendants, however, successfully presented a non-discriminatory legitimate explanation, which Plaintiff failed to rebut as required under Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Accordingly, summary judgment will be granted in favor of Defendants on the § 1983 claim. A separate order will be entered. ORDER For the reasons stated in the foregoing Memorandum Opinion, it is this_day of February, 2002, by the United States District Court for the District of Maryland, ORDERED that: 1. Defendants’ motion for summary judgment BE, and the same hereby IS, GRANTED with respect to the claim under 42 U.S.C. § 1983; 2. Judgment BE, and the same hereby IS, ENTERED in favor of Defendants and against Plaintiff on the claim under 42 U.S.C. § 1983; 3. Plaintiffs state law claim BE, and hereby IS, DISMISSED without prejudice; and 4. The clerk is directed to transmit a copy of the Memorandum Opinion and this Order to counsel for the parties and CLOSE this case. . Plaintiff's supplemental state law claim was dismissed without prejudice once both federal claims were resolved. On appeal, Plaintiff did not challenge that decision and the Fourth Circuit concluded that he thus abandoned that claim. Because the court will again resolve the § 1983 claim against Plaintiff, the state law claim will remain dismissed.

Green, Judge, delivered the opinion of the court: The material facts in this case are not at all complicated. At the close of the World War the Government had on hand an enormous quantity of surplus military supplies in the form of canned goods which had been purchased for' the Army, including bacon, corned beef, and corned-beef hash, and was desirous of selling these surplus stocks as speedily as possible. It was a matter of common knowledge that the longer these supplies were kept the smaller the price which was likely to be obtained. Realizing this fact, Congress by the act of July 11, 1919, authorized the Secretary of War to sell these supplies “ to any corporation or individual upon such terms as may be deemed best.” Pursuant to this authority the War Department, through proper officials, issued a circular giving prices and terms upon which these canned goods would be sold," and plaintiff, which had 2,150 stores for the sale of provisions, on September 21, 1920, purchased 120,000 cans of corned-beef hash and 30,000 cans of bacon, making a total purchase amounting to $103,500. In November of the same year the War Department, finding that these canned goods were not moving as rapidly as was desirable, issued another circular giving prices and terms thereon lower and more favorable than those of the circular first issued. Shortly after this new price list had been issued the Quartermaster General announced that “ on all canned meats ordered and paid for but not shipped, adjustment with customer will be made on the basis of new prices, discounts, and terms of shipment.” On November 15, 1920, of the 120,000 cans of hash purchased, 33,600 cans had been delivered to the plaintiff and sold by it and the remaining 86,400 cans the plaintiff had not received or had not disposed of. Of the 30,000 cans, of bacon purchased, 13,200 had reached the plaintiff but none of it had been resold. The plaintiff having paid for the entire order of the corned-beef hash, the War Department, therefore, in accordance with the policy announced by the Quartermaster General, refunded to the plaintiff $5,875.20. Of the bacon ordered, the plaintiff having paid for 13,200 cans, the War Department gave the plaintiff credit for $3,378.89, of which amount $2,911.20 was refunded to the plaintiff. On March 8, 1921, there still remained undelivered to the plaintiff 16,800 cans of bacon. On that date the plaintiff requested permission to purchase in lieu of the undelivered bacon an amount of corned beef exceeding the. quantity and value of the bacon ordered. This proposition of plaintiff was accepted by the Government officials and the order for the bacon was canceled. The plaintiff paid for this corned beef in accordance with the agreement, and the transaction for the time being was closed. Five years later the plaintiff sold to the defendant a large quantity of butter pursuant to a contract which it fulfilled. When, however, the matter of payment arose the Government withheld therefrom $22,106.44, which it still withholds, and has further demanded of the plaintiff an additional sum of $7,148.56, which the plaintiff has not paid. The cause of this action on the part of the Government is found in a ruling of the Comptroller General, who held that the action of the Quartermaster General and the War Department in modifying the original contracts made by the plaintiff with the defendant for the purchase of canned goods was unauthorized and void by reason of which the amount withheld and the additional sum demanded became due from the plaintiff to the defendant. The question in the case is whether this ruling was correct. So far as the transaction is concerned whereby a portion of the order for bacon was canceled and in lieu thereof an order for an amount of corned beef exceeding in quantity and value the order for bacon, it is quite clear there was a consideration for this new contract. Plaintiff gave up its right to demand bacon from the defendant and the defendant canceled the order for bacon and accepted instead an order for corned beef larger in quantity and value. There can be no doubt but that the War Department had the authority to so act. With reference to the refunds made to the plaintiff after the issuance of the circular of new price lists and discounts, the question is more difficult, although it must be said if it related to the power of a selling agent of a concern engaged in the wholesale business there would not be the slightest question as to his authority to make the refunds under the same circumstances. It becomes necessary therefore to determine what power had been granted the Secretary of War by the act of Congress. Congress had authorized the Secretary of War to dispose of the surplus property “ upon such terms as may be deemed best.” This authority is very broad. We think it meant that he might dispose of this property in such a manner as he considered was for the best interest of the Government. Support will be added to this construction if we consider the action of the Secretary of War in the light of the surrounding circumstances and the emergency which had arisen. Congress must have known that there was an enormous amount of these supplies on hand and that they must be sold with reasonable dispatch, for the longer they were kept the less would be obtained for them, but the Government had no organization properly equipped to dispose of these' goods to the consumer. If disposed of, they must be sold through large selling organizations such as the plaintiff had with its over 2,100 stores. Also, we think it was apparent to Congress that the supplies must be sold in accordance with the custom of the trade in disposing- of such products, and it was intended they would be so sold where such customs were. in the interest of the Government. Selling agents of large wholesale concerns who are endeavoring to dispose 'of large quantities of goods within a comparatively brief period in case of a change in prices and discounts usually give to their customers the benefit of new prices and discounts upon unsold goods purchased under the former rates. But even if it can not be said that the court can take judicial notice of such a practice, it is quite evident that it was to the interest of the Government to follow it under the circumstances before us. The Government still had on hand great quantities of • these canned goods which were not being disposed of as rapidly as was desired. No one knew what changes might be made in the Government’s price list in order to bring about the sale of these goods. If those considering purchases understood that changes might be made giving lower prices and discounts than those under which they bought, thus not only depriving them of any chance of profit but making a loss probable, it is obvious that all purchasers would hold back to the last day in order to get the lowest prices. The Government could not hope to dispose of these supplies if it discouraged future purchasers by failing to deal fairly with those who had already purchased. It was therefore clearly ■ to the interest of the Government to make the refunds on the unsold goods which were either in the hands of the plaintiff or which had not been shipped but had been paid for. In so far as this applied to the goods that were not shipped, it was merely a cancellation of an unfulfilled contract. The findings, however, show that some of the supplies upon which refunds were made had been actually delivered to plaintiff and payment made therefor. Neither of the original contracts, however, had been completely carried out. Was the War Department authorized to cancel these contracts and make the refunds? The question is not free from doubt, but on the whole we think it was. Our attention has been called to the case of the American Sales Corporation v. United States, recently decided by the Circuit Court of Appeals for the fifth circuit, as an authority for holding that the defendant is not liable. The facts and circumstances of that case were quite different from those in the case at bar, and we are compelled to decline to follow the doctrine 'laid down therein as applicable to the questions under consideration in the instant case. Numerous authorities can readily be found and cited which hold that where an agent is authorized to make a sale of a particular parcel of property, such as a tract of land or an article of personal property, he has no authority to revoke or rescind the sale and receive back the goods which he had previously sold or alter his contract in any material point, but, as is said in 2 C. J. 609, section 243: “A general agent with full authority to represent the principal in a given locality, or to manage a particular branch of the principal’s business, is more than a mere sales agent, and where the conduct of his agency reasonably requires power to modify the contracts he makes, courts have often held the right so to do to be within his implied powers.” We think the Secretary of War was “ more than a mere sales agent.” His power extended to the disposition of this great amount of property which must be sold in a great number of different parcels and lots, and we think that the circumstances of the case were such that the proper “ conduct of his agency reasonably requires power to modify the contracts he makes.” The Secretary of War was appointed the agent of the Government not merely to sell the goods included in the purchase made by plaintiff but all the vast quantity of surplus supplies which, to avoid deterioration, must be quickly sold. If a modification of a contract was in the interest of the Government, we think he had power to make such a modification, especially when the contract had not been entirely carried out, which was the situation in the case at bar. There are numerous cases which hold that the Secretary of War' or the Secretary of the Navy may cancel contracts which he has made if such cancellation is in the interest of the Government, even though the authority conferred upon him so far as the language of the statute is concerned is only to make and execute contracts. It is true that in these cases there was something in the nature of a settlement or there was some consideration passing between the contractor and the Government, yet in most of them the controlling feature that led the court to conclude that the Secretary had power to make a new contract was that the action was in the interest of the Government and that such authority would be implied notwithstanding it was not expressly granted by the statute conferring it. While the Government received, as we think, a benefit as a result of carrying on its business in a fair and equitable manner and making refunds which were morally although not legally due the plaintiff, the benefit was not one which passed from the plaintiff, and consequently could not be considered a consideration. If the transaction of the refunds is to be sustained at all, it must be on the ground that the Secretary of War had the broad power of a general sales agent acting for a large mercantile concern not only to make contracts but to modify them in order that he might better execute in the interest of his principal the general powers -which had been given him. If the Secretary of War did not bave this power, he was seriously hampered in the conduct of the public business. We think that Congress intended by the broad language of the statute conferring authority upon him to authorize the modification of contracts for the sale of these supplies when he “ deemed ” it “ best ” for the public interest. It follows that the plaintiff is entitled to recover the full amount claimed, and judgment will be rendered accordingly. Sinnott, Judge, and Booth, Ghief Justice, concur. Geaham, Judge, took no part in the decision of this case, and Moss, Judge, took no part on account of illness.

MEMORANDUM-DECISION and ORDER HURD, District Judge. I. INTRODUCTION Plaintiff Stephen B. Serow (“Serow” or “plaintiff’) commenced this action pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq. and the Labor Management Relations Act. Plaintiff alleges that the defendants, Redco Foods, Inc. (“Redco”) and Bakery, Confec-tionary and Tobacco Worker’s Union (“Union”), violated the ADA and the collective bargaining agreement (“CBA”) by refusing to grant his request for the accommodation of being switched to a “day shift” at his job. The plaintiff also alleges that the Union violated its duty of fair representation to him. Redco and the Union have moved for summary judgment pursuant to Fed. R.Civ.P. 56. Oral argument was heard on August 10, 2001, in Utica, New York. Decision was reserved. II. FACTS The following are the facts in the light most favorable to the non-moving plaintiff. Serow is an employee of Redco, and has been since 1977. Over time, he became a production machine mechanic (“PMM”), operating and repairing the machines which produce and package tea products. As a condition of Serow’s employment, he joined the Union in 1977. He was a member of the bargaining unit covered by the CBA between the Union and Redco. On February 23, 1998, Serow experienced a heart attack. Prior to his heart attack, he had worked the third (night) shift as a PMM. After his return and upon advice from his doctor, Serow asked Redco for the accommodation of being switched to the first (day) shift at the same wage rate. Plaintiffs doctor stated that the move to the day shift would limit his stress, improve his sleep, and assist in blood pressure control. Redco denied Ser-ow’s request. Both the Union and Redco asserted that granting his request by bumping a more senior PMM to another shift would violate the seniority provision of the CBA in force between the Union and Redco; however, Redco did agree to let Serow attempt to find an employee to switch shifts with him. No employee agreed to switch with Serow. Plaintiff filed three grievances with the Union claiming that Redco was not accommodating his disability. The Union accepted all three grievances filed with it, but did not pursue the claims. Serow filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on January 6, 1999. After plaintiff filed with the EEOC, Redco and the Union agreed to exhaust all other possibilities before using him for a first (day) shift. In order to leave the third (night) shift, plaintiff had to bid for lower paying positions within Redco. III. DISCUSSION A. Summary Judgment Standard Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsu-shita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983). When the moving party has met its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. At that point, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56: Liberty Lobby Inc., 477 U.S. at 250, 106 S.Ct. 2505; Mat-sushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment motion, evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lob by, Inc., 477 U.S. at 248-249, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1848. Thus, summary judgment is proper where there is “little or no evidence ... in support of the non-moving party’s case.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir.1994) (citations omitted). B. Defendant Redco Redco contends that plaintiffs ADA claim should be dismissed on three grounds. First, Redco claims that Serow cannot make the necessary showing that he is “disabled” within the meaning of the ADA. See 42 U.S.C. § 12102. Second, that even if Serow was “disabled” he can not perform the “essential functions” of the job with or without a reasonable accommodation. 42 U.S.C. § 12111(8). Third, that the accommodation requested by plaintiff was per se unreasonable as it would require Redco and the Union to violate the seniority provisions of the collective bargaining agreement. The ADA prohibits discrimination “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A plaintiff asserting an ADA claim bears the burden of proving that he is a qualified individual with a disability. See Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597, 1603, 143 L.Ed.2d 966 (1999). A qualified individual with a disability is a person “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The term “disability” means “ a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(2)(A). See generally, Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (discussing “substantially limits”). In determining whether Serow has a disability for purposes of the ADA, the three-step approach taken by the Second Circuit in Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 641 (2d Cir.1998) must be applied. Under Colwell, the plaintiff must first show the presence of a physical or mental impairment. See id. (citing Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)). The plaintiff must identify second the activity claimed to be impaired and establish that it constitutes a “major life activity.” See id. Third, the plaintiff must show that his impairment “substantially limits” that major life activity. See id. See generally, Toyota, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (discussing “substantially limits”). The Supreme Court in Toyota stated that the existence of a disability is specific to the individual and should be determined on a case-by-case basis. Id. at 692. In this case, it is not disputed that plaintiff has a cardiovascular disease which is a physical impairment to him. He claims that this impairment substantially limits him in the major life activities of sleep and work. Sleep and work are generally accepted as major life activities. See Colwell, 158 F.3d at 643 (stating that sleeping is a major life activity); Muller v. Costello, 187 F.3d 298, 312 (2d Cir.1999) (stating that working is a major life activity). The question, therefore, is whether the plaintiffs impairment substantially limits him in the major life activities of sleep and work. “‘Substantially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a large degree,’ and thus clearly precludes impairments that interfere in only a minor way ...” Toyota, — U.S. at —, 122 S.Ct. at 691. In Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court stated that a determination of whether a person is disabled in the area of work should only be made after it is determined that the person is not disabled in any other major life activity. The Supreme Court also noted that even assuming that working is a major life activity, a plaintiff is required to show that he is unable to work in a “broad range of jobs,” not just a specific job or shift. Id. Turning first to plaintiffs claim that his impairment substantially limits his ability to sleep. Plaintiff fails to allege that his impairment affects his sleep. His complaint states that his “doctor advised Red-co that,. as a direct result of [pjlaintiffs heart attack, [pjlaintiff should only work on a day shift to limit [pjlaintiffs stress level, improve his sleep, assist in blood pressure control, and provide better compliance with [pjlaintiffs cardiac diet.” (Comply 14.) Working the night shift means that plaintiff must sleep during the day. This causes plaintiff to have trouble sleeping which may affect his blood pressure. It should be noted that plaintiff does not claim that as a result of his cardiovascular disease he loses sleep or is unable to sleep during the day. Instead, he essentially claims that his job affects his sleep because working the third shift requires him to sleep during the day. This is inadequate because plaintiff has to show that he has an impairment which affects his sleep, not merely a job that affects his sleep. As such, plaintiff has failed to establish that his cardiovascular disease is a physical impairment which limits him in the major life activity of sleep. As to plaintiffs other claim that his impairment substantially limits his ability to work, he similarly fails to establish this claim as well. Even viewing the facts in the light most favorable to the plaintiff, it is not his complaint that he is unable to work. In fact, it is not even his complaint that he is unable to work the night shift or sleep during the day. Plaintiffs complaint is that when working the night shift, he is required to sleep during the day, which he has difficulty doing. Nowhere does plaintiff claim that he is unable to work a broad range of jobs. See Sutton, 527 U.S. at 492, 119 S.Ct. 2139. He simply claims that it is difficult for him to work the third (night) shift. Again, plaintiffs cardiovascular disease does not substantially limit him in the major life activity of work, as is evidenced by the fact that he has continued to work since his heart attack. His impairment only affects, if at all, his ability to work on a certain schedule. As such, plaintiff has failed to show that he is disabled within the meaning of the ADA. C. The Union The plaintiff claims that the Union breached its duty of fair representation when it declined to process his grievance and require Redco to provide him with what he claims was a “reasonable accommodation.” The Union would not arbitrate his grievance against Redco to place him on the first or second shift at the same wage rate he received on the third shift. Plaintiff claims this was in violation of the CBA. “[A] union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith.” Marquez v. Screen Actors Guild, 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (citing Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). An employee covered by a collective bargaining agreement does not have an “absolute” right to have the Union act on his grievance. Vaca, 386 U.S. at 191, 87 S.Ct. 903. In this case, the Union claims that it reviewed plaintiffs grievances and decided they could not be prosecuted. The plaintiff has not set forth any facts from which to draw an inference that the Union’s conduct was arbitrary, discriminatory, or in bad faith. Further, as previously discussed, plaintiffs claim is not viable under the ADA, and he has not demonstrated that he is entitled to any accommodation that might be provided by it. The Union is not required to pursue a grievance on behalf of a member to obtain relief to which he is not entitled. IV. CONCLUSION Viewing the facts most favorable to the plaintiff, the following conclusions are clear. The plaintiff is not disabled under the ADA because he is not substantially limited in a major life activity. The defendants did not violate the collective bargaining agreement. The Union met its obligation of fair representation to the plaintiff. The defendants are entitled to summary judgment. Accordingly, it is ORDERED that 1. Defendant Redco Foods, Inc’s motion for summary judgment is GRANTED; 2. Defendant Bakery Confectionary and Tobacco Workers’ Union, Local 50’s motion for summary judgment is GRANTED; and 3. The complaint is dismissed in its entirety. The clerk is directed to enter judgment accordingly. IT IS SO ORDERED. . Plaintiff also commences this action for retaliation, and pursuant to the New York Human Rights Law. Plaintiff offers no argument in opposition to defendants' motion for summary judgment on these causes of action. . Redco claims that it is an essential function of the job that PMMs be able to work any of three work shifts, which were either during the day or at night. . The determination must first be made that the individual is not disabled in any other major life activity before looking to see whether they are substantially limited in their ability to work. Sutton, 527 U.S. at 492, 119 S.Ct. 2139. . Because plaintiff is not "disabled,” the second and third grounds for dismissal asserted by Redco need not be discussed in any detail. However, being able to work the third (night) shift does not appear to be an "essential function" of the PMM job. Further, the plaintiff appears to be fully capable of performing the PMM job without any "accommodation” for change in shift. Redco did not breach the CBA by refusing to grant plaintiff's "accommodation” request.

SiNNOTT, Judge, delivered the opinion of the court: Plaintiff seeks to recover $7,325.70. The only question presented to the court for decision is the proper classification of the Sweet & Piper Horse & Mule Company, hereafter referred to as claimant, for excess-profits tax purposes, under sections 201, 210, or 209, of the revenue act of 1917, 40 Stat. 300. The Commissioner of Internal Revenue assessed claimant’s taxes under section 201, with the benefit of section 210, in order to prevent a hardship because of the relatively high earnings and small amount of capital employed. It is claimant’s contention that it had not more than a nominal capital, within the meaning of section 209, and that the excess-profits tax should be determined at the flat rate of eight per cent. Section 209, 40 Stat. 307, is as follows: “ That in the case of a trade or business having no invested capital or not more than nominal capital there shall be levied, assessed, collected, and paid, in addition to the taxes under existing law and under this act, in lieu of the tax imposed by section two hundred and one, a tax equivalent to eight per centum of the net income of such trade or business in excess of the following deductions: In the case of a domestic corporation, $3,000, and in the case of a domestic partnership or a citizen or resident of the United States, $6,000; in the case of all other trades or business, no deduction.” Claimant was engaged in the business of selling horses and mules as a wholesale commission merchant, operating in the stockyards at Kansas City, Missouri. It maintained an establishment where the owners of stock could ship the same to claimant for sale. Claimant paid the freight on the shipments, fed the stock, provided yardage, halterage, shoeing, and other incidental expenses. The stock was then sold, generally at auction, and immediately after sale claimant remitted to the consignors of the stock the sale price, after deducting all the expenses paid by claimant. The claimant was incorporated August 25, 1917, with an authorized capital stock of $50,000, of which $32,500 was actually paid in. This amount of capital was, during the period, found inadequate at times, and claimant borrowed from banks sufficient money to conduct its business, aggregating $50,000. Frank H. Sweet, president of claimant company, testifying as to the use by the company of said $32,500 •capital stock and $50,000 of borrowed money and why it was necessary, said: “ Well it was necessary to pay the consignors immediately as soon as their stock was sold; our customers, such as the different governments, our resident dealers, paid us weekly; sometimes as much as ten days was taken.” ■ Plaintiff contends in his brief that the basis of classification under said section 209 is the presence or absence of invested capital as a material income-producing factor; that capital was in no material manner employed, if at all, and was in no sense necessary; that the investment was employed only four months, and the gross sales amounted to over $4,000,000; that on the basis of an investment for twelve months, gross sales would have amounted to $12,000,000, and that when compared with the volume of business engaged in, the capital invested, it was entirely insignificant, and could not possibly have been a material income-producing factor, and that while claimant in some instances made advances to consignors, these advances bore no interest. In C. B. Fox Company v. United States, No. F-336, decided by this court December 3, 1928 [66 C. Cls. 447], it was said: “ The gross sales for the year in question amounted to more than $12,000,000, and the net income to $244,230.27. Is it a reasonable contention that because plaintiff’s transactions for the year in question were out of proportion to the amount of the invested capital, $100,000, such capital should be regarded as nominal or negligible ? If plaintiff’s contention is sound, then an invested capital of, say, $500,000, in a business which resulted in proportionately larger gross sales and a proportionately greater net income, could likewise be treated as nominal capital.” In Feeders’ Supply Co. v. Commissioner of Internal Revenue, 31 Fed. (2d) 274, the Circuit Court of Appeals, opinion by Judge Kenyon, in passing on the question whether appellant was entitled to have its profits taxes for the years 1917 and 1918 computed under section 209 of the revenue act of 1917, said: “ The invested capital, then, in this matter, including surplus, for the year ending June 30, 1917, was $14,252.55, and for the fiscal year 1918-was $44,391.98, as found by the board. These would seem to be substantial sums. But appellant insists that they are merely nominal, because gross sales of over $2,000,000 were made in each fiscal year under consideration, and that such a small investment could not have been used to any appreciable or substantial extent in bringing about the result. “ [2] The amount of business carried on by a corporation is not the test to determine whether capital is nominal or otherwise. We agree with the statement in the opinion of the board, viz: ‘ The ratio which invested capital bears to-gross sales we do not conceive to be a proper criterion for determining whether such capital is nominal or otherwise.’ “ [3] Nominal capital is that which is capital in name only; that is, not substantial. Black’s Law Dictionary defines ‘ nominal ’ as follows: Titular; existing in name only; not real or substantial; connected with the transaction or proceeding in name only, not in interest.’ Webster’s New International Dictionary: ‘ Existing in name only; not real or actual; merely named, stated, or given, without reference to actual conditions; often with the implication that the thing named is so small, slight, or the like, in comparison to what might properly be expected, as scarcely to be entitled to the name; as, a nominal difference; a nominal price.’ " In Hubbard-Ragsdale Co. v. Dean, 15 F. (2d) 410 (District Court case), which was affirmed by the Circuit Court of Appeals of the Sixth Circuit, 15 F. (2d) 1013, the court said: If the nature of the business is such that it can not be carried on at all without the constant use of capital, and such use of capital plays a vital part in the successful conduct of the business, it can not be said that its use in the business is merely incidental. * * * But where the use of capital served a direct and necessary function in carrying on the business as it was in fact carried on, it was not to be classified as merely nominal.’ ” Applying the test as to nominal capital laid down in the above excerpt, we can not escape the conclusion that claim ant’s invested capital of $32,500 was not a nominal but a substantial sum, and particularly so in view of the fact that the manner of claimant’s operations permitted its capital to be reused every week or ten days. Neither can we escape the conclusion that its capital was necessary to its business. Not only was its invested capital of $32,500 necessary, but claimant was compelled to borrow an additional $50,000 in order to pay consignors immediately as soon as their stock was sold. It is apparent that the use of claimant’s capital “ served a direct and necessary function in carrying on the business as it was in fact carried on,” and that claimant is squarely within the rule quoted from Hubbard-Ragsdale Co. v. Dean, in the above excerpt from the Feeders’ Supply Co. case. We conclude that the Commissioner of Internal Revenue committed no error. The petition is dismissed. It is so ordered. GreeN, Judge, and Booth, Chief Justice, concur. Graham, Judge, took no part in the decision of this case; and Moss, Judge, took no part on account of illness.

OPINION MOTZ, District Judge. Eleven plaintiffs have instituted this action against Giant Food, Inc. and several of its executives and managers, alleging employment discrimination. Nine of the plaintiffs have filed a motion for class certification. Although the propriety of class action treatment appeared doubtful on the face of the complaint, I did not want to judge the issue prematurely, particularly in light of allegations concerning racist graffiti, racial epithets used by co-workers and supervisors, and the display of nooses at Giant’s warehouses. Accordingly, I permitted a full factual record to be developed before ruling on the class certification motion. That motion is now pending, together with motions for summary judgment filed by defendants as to the individual claims of each of the plaintiffs. This opinion addresses several global issues raised by the litigation, relating to (1) class certification, (2) the effect of “early” right-to-sue notices issued by the Equal Employment Opportunity Commission (“EEOC”), (3) the applicability of the “continuing violation” doctrine to plaintiffs’ claims, (4) the cognizability of various state law claims, and (5) a claim under 42 U.S.C. § 1981 against the individual defendants. It also addresses all of the claims asserted by Gregory Carson, the first named plaintiff, and hostile environment claims asserted by eight of the plaintiffs. I am issuing separate opinions addressing the merits of all of the other claims asserted by the ten other plaintiffs. I. Plaintiffs seek to have two subclasses certified: (1) “[a]ll current, former and future African American (“Black”) persons who were permanent union employees employed by Giant and worked at its Distribution Warehouses, including but not limited to Jessup, Land-over and Bakery Warehouses during the period of 1980 to present;” and (2) “[a]ll African American (“Black”) persons who are former, current and future vacation relief workers at Giant’s Distribution Warehouses, including but not limited to Jessup, Landover and Bakery Warehouses who were rejected for permanent employment by Giant during the period of 1980 to present.” (See PL Amended Mem. for Class Cert, at 4-5.) The first subclass alleges violations of Title VII through hiring, promotion, discipline, termination, training, racial harassment and hostile work environments, and Giant’s fair employment and grievance process. The second subclass alleges violations of Title VII regarding Giant’s hiring and promotion practices. The burden is on Plaintiffs to demonstrate that their proposed classes meet the certification requirements of Fed.R.Civ.P. 23. First, they must show that the four prerequisites of Rule 23(a)' — numerosity, commonality, typicality, and adequacy of representation — are met. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 5.Ct. 2364, 72 L.Ed.2d 740 (1982). If those prerequisites are satisfied, Plaintiffs must then demonstrate that their proposed subclasses fit into one of the categories set forth in Rule 23(b). See Miller v. Baltimore Gas & Elec. Co., 202 F.R.D. 195, 198 (D.Md.2001) (citing Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Here, although Plaintiffs’ first proposed subclass presumably would meet the numerosity requirement of Rule 23(a), neither it nor the second proposed subclass meets the other three requirements. Both subclasses also fail under Rule 23(b). A. The commonality requirement of Rule 23(a) is “more easily met when a disparate impact rather than a disparate treatment theory underlies a class claim.” Stastny v. Southern Bell Tel. and Tel. Co., 628 F.2d 267, 274 n. 10 (4th Cir.1980). A disparate impact theory is based upon a practice or policy which is neutral or benign in intent but nevertheless has a disproportionately adverse impact upon a protected class without any business justification for the disproportionate impact. Id. at 273-74 (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)). Plaintiffs have not identified any neutral practice or policy that lies at the basis of them claims. Rather, it is clear that what Plaintiffs are claiming is that African-Americans were subjected to disparate treatment. That fact alone would not necessarily preclude class action treatment. For example, it has been held that “the use of entirely subjective personnel processes that operate to discriminate ... satisfy the commonality and typicality requirements of Rule 23(a).” Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993). Here, however, the record is clear that although the disciplinary decisions about which Plaintiffs complain were individualized, they were not entirely subjective in nature but involved the application of general rules to particular employees. In short, as reflected in my discussion of Giant’s summary judgment motions as to the claims of individual employees, in effect, this litigation involves an aggregate of individual disparate treatment claims. Moreover, during the course of their careers, the putative class members worked in at least thirteen different facilities, located in five different towns or cities. This geographical diversity itself would make class treatment inappropriate. See Stastny, 628 F.2d at 278-79; Wright v. Circuit City Stores, Inc., 201 F.R.D. 526, 542 (N.D.Ala.2001); Zachery v. Texaco Exploration and Prod., Inc., 185 F.R.D. 230, 238-40 (W.D.Tex.1999); Bostron v. Apfel, 182 F.R.D. 188, 195 (D.Md.1998). For these reasons, Plaintiffs have not shown that their proposed subclasses meet the commonality and typicality requirements. Even if they had done so, I could not find that they would adequately represent the class. The adequacy of representation element requires both the class representatives and the class attorney to adequately represent, the class. In this ease, Jo Ann P. Myles, Esq., cannot adequately represent the proposed subclasses. Ms. Myles’ frequent typographical errors, citation errors and clear misstatements of the law in memoranda and during oral argument prove that the interests of the putative class members will not be adequately served by her representation. Additionally, Ms. Myles has failed to include deposition pages that were essential to her clients’ claims, thus, requiring the Court to ask for those transcript pages. Finally, significant financial resources (e.g., to provide notice and to retain experts) are required to represent a class of this size. The history of this litigation, including a dispute between the plaintiffs and their expert over payment, demonstrates the inability of Ms. Myles and the class representatives to meet the financial demands of representing the proposed classes. B. Although Plaintiffs’ failure to demonstrate that their proposed subclasses would meet the commonality, typicality, and adequacy of representation requirements of Rule 23(a) is dispositive of the certification question, I will add that the highly individual nature of Plaintiffs’ indi vidual claims also would preclude certification under Rule 23(b)(3); Clearly, it cannot be said that whatever common questions of law or fact there might be “predominate over questions affecting only individual members.” Lott v. Westinghouse Savannah River Co., Inc., 200 F.R.D. 539, 563 (D.S.C.2000). Certification also would be inappropriate under Rule 23(b)(2) because the final relief that would be appropriate were Plaintiffs to prevail would not be injunctive in nature but would “relate[] exclusively or predominately to money damages.” See Fed R. Civ. P. 23(b)(2) advisory committee’s note; Zimmerman v. Bell, 800 F.2d 386, 389 (4th Cir.1986). In this case, Plaintiffs have asked almost exclusively for money damages. II. Each plaintiff was issued a right-to-sue notice fewer than 180 days after he filed a charge of discrimination. Giant argues in its motions for summary judgment that the plaintiffs’ Title VII claims are invalid because Title VII does not allow the EEOC to issue a right-to-sue notice fewer than 180 days after the plaintiff files a charge of discrimination. For the reasons stated below, I find that the early right-to-sue notices provided by the EEOC are valid. Title VII provides in relevant part: If a charge filed with the Commission ... is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge ... the Commission has not filed a civil action ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. 42 U.S.C. § 2000e-5(f)(l). The EEOC has established a regulation that allows it “to issue a right to sue letter at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided that [an appropriate Commission official] has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge.” Miller, 202 F.R.D. at 206 (citing 29 C.F.R § 1601.28(a)(2) (1998)). The validity of this regulation has been a topic of litigation, resulting in a circuit split on the issue. The D.C. Circuit found the regulation invalid and required that “Title VII complainants must wait 180 days after filing charges with the EEOC before they may sue in federal court.” Martini v. Fed. Nat. Mortgage Ass’n, 178 F.3d 1336, 1347 (D.C.Cir.1999). Defendant relies on Martini in its argument. The Ninth, Tenth and Eleventh Circuits have held that the regulation is a valid exercise of authority by the EEOC. See Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1273-77 (10th Cir.2001); Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061-63 (11th Cir.1994); Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir.1984). The Fourth Circuit recently declined to address the issue. See MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 248 (4th Cir.2001). However, two judges in this district have recently upheld the EEOC regulation. See Miller, 202 F.R.D. at 206; Thomas v. Bet Sound-Stage Restaurant/BrettCo, Inc., 61 F.Supp.2d 448, 459 (D.Md.1999). But see Loney v. Can-Lowrey Glass Co., 458 F.Supp. 1080, 1081 (D.Md.1978). I agree with the reasoning of those cases and find the Plaintiffs’ Title VII claims to be timely. hi. Each plaintiff asserts various claims under Title VII and section 1981. Under Title VII, a plaintiff in a “deferral state,” a state that has its own law prohibiting discrimination and an agency enforcing the law, has 300 days after the alleged act of discrimination to file a claim with the EEOC. See Nye v. Roberts, 159 F.Supp.2d 207, 210 (D.Md.2001). Section 1981 has a three-year statute of limitations in Maryland. See Derrickson v. Circuit City Stores, Inc., 84 F.Supp.2d 679, 687 (D.Md. 2000). This suit was initiated on September 12, 1996 on behalf of all plaintiffs. Therefore, claims dating back to September 12, 1993 are valid under section 1981. Plaintiffs assert that the continuing violation doctrine should apply to their Title VII and section 1981 claims. It operates to save certain unexhausted, otherwise time-barred claims. See Muhammad v. Giant Food, Inc., 2000 WL 1828248, at *3 (D.Md.2000). A “continuing violation” occurs in two types of cases: those involving serial discrimination and those involving systemic discrimination. See Redding v. Anne Arundel County, 996 F.Supp. 488, 490 (D.Md.1998). “A serial violation exists when an employer engages in a series of discriminatory actions derived from ‘the same discriminatory animus.’ ” Id. (citations omitted). A plaintiff must demonstrate that the discrimination complained of is more than isolated or sporadic to establish a serial violation. Id. Systemic violations, on the other hand, occur “where an express policy of unlawful discrimination exists, requiring the plaintiff to prove that the policy ‘manifests itself over time.’ ” Id. (citations omitted). There are two general considerations in determining whether there is a continuing violation: “whether the separate incidents are sufficiently related, and whether the acts individually should have triggered the plaintiffs awareness of and duty to challenge the employer’s discriminatory conduct.” Muhammad, 2000 WL 1828248, at *3. The claims of the plaintiffs involve isolated and sporadic incidents of harassment. For example, Plaintiff Newman attempts to invoke the continuing violation doctrine as to a single incident in 1990 when he was asked an offensive question about race by a white manager. Similarly, Plaintiff Mathews asserts that a sole incident where the word “nigger” was inscribed in large bright letters in his locker in the mid-1980’s should not be time-barred. These incidents were clearly discriminatory and should have been challenged at the time they occurred. Cf. Hill v. AT&T Techs., Inc., 731 F.2d 175, 179-80 (4th Cir.1984) (stating that an allegation that the continuing violation doctrine applies does not constitute “a talismanic or shibboleth term automatically relieving a claimant of any obligation to comply with the statutory time requirement for the filing of a charge with the EEOC under Title VII”). Accordingly, the continuing viola tion doctrine does not apply to the plaintiffs’ claims under Title VII or section 1981. IV. I will now consider the hostile work environment claims asserted by Plaintiffs. The record before me clearly demonstrates that racial hostility existed between African-American workers and white workers at the Giant warehouses from 1980 to the time this suit was initiated in 1996. On at least four occasions, nooses were displayed in the warehouses. Likewise, racist graffiti written on the walls of trailers used to transport products from the warehouses to Giant’s retail stores was a constant problem. Finally, there is evidence that managers and supervisors used racist epithets and made other racially offensive remarks. These incidents, whether considered alone or together, are reprehensible. However, the different plaintiffs had substantially different experiences and the hostile work environment claim of each plaintiff must be considered on its own individual merits. I have concluded that only the claim of Gregory Carson under section 1981 survives summary judgment. A. Carson was a dockman in the Jessup warehouse beginning in 1990. At unspeci-fled times from 1993 to 1995, white coworkers of Carson would throw bananas at him and make ape noises on the warehouse microphone. While this was occurring, Mike Majors, one of Giant’s managers, would laugh at the white employees, but would not discipline or stop them. On several occasions during 1994 and 1995, a white co-worker called Carson a “nigger.” (Carson Dep. at 296.) Sometime in 1995, Majors remarked to Carson that white people could send people to the moon, but black people were only good for sticking bones through their noses. (Id. at 280.) Also in 1995, Majors placed dough in the front zipper of his pants and said that he was depicting a black penis, commenting that black men have larger penises. (Id. at 132-33.) At indefinite times during Carson’s employment, white managers would point to racist graffiti in warehouse trailers depicting African-Americans with big lips and noses and tell Carson that the graffiti reminded them of Carson. (Id. at 43-44.) On January 1, 1996, a van being driven by a white employee, available to drive employees one mile from the parking lot to the warehouse, would not stop for Carson. On January 18, 1996, a white employee posted pictures of monkeys and apes in the warehouse and wrote Carson’s name under one of the pictures. Carson had to remove the pictures himself, a full day after they were posted and viewed by several em ployees, including managers. (Id. at 133-38.) On several occasions, white employees would arrive at work and spend up to 30 minutes reading the paper and drinking coffee without suffering any discipline while Carson was screamed at by a manager for reporting to the warehouse floor a few minutes late. Until 1997, there were two locker rooms at the warehouse. The smaller, less desirable locker room was assigned to all African-American employees and one white employee. It was referred to as the “nigger locker room” by white managers and employees. Carson’s locker was in this smaller locker room. (Id. at 171-79.) Wilbert Skipper, Jr., a produce selector in the Landover warehouse, claims that a manager, Bob Bennett, called him a “nigger” and harassed him by following him throughout the warehouse. He states that he overheard white co-workers use the term “nigger” in the warehouse approximately thirteen times in the four years prior to his filing suit , and that he was exposed daily to racist graffiti in truck trailers and restrooms that included such statements as, “Kill all niggers at Giant Foods,” “Black babies are crack babies” and “KKK will kill all niggers at Giant Foods.” (Skipper Dep. at 246-50, 262, 267-69.) William Ingram, a produce selector in the Landover warehouse, allegedly was exposed daily to racist graffiti scrawled on Giant truck trailers, including such epithets as “kill all niggers at Giant Food.” David Newman, an employee in the Landover warehouse who held several positions, viewed racially offensive graffiti in the bathrooms and trailers that included the words “monkey” and “nigger.” Newman does not specifically describe any of the graffiti or how often he saw it. Melvyn Connor, a dockman in the Jess-up warehouse, has provided specific evidence of only one alleged incident of harassment after September 12,1993: seeing a hanging noose in the warehouse in 1995. Additionally, Connor witnessed racist graffiti during his last several years of employment before he was terminated in 1995. Maurice Mathews, an employee in the Landover warehouse, was exposed to racist graffiti in the trailers that included the word “nigger” and to pictures of apes and monkeys labeled with the names of other African-American employees. Jerry Mungro, a truck driver, alleges that Chris Balodemas, the head of Giant’s Transportation Department, said in response to a comment by Mungro about forgetting to contact dispatchers when he was delayed: “I see you didn’t forget to put on your gold chains when you got dressed this morning.” Additionally, Mungro states that one white driver would make comments over the CB radio such as, “[N]igger, get off the CB, go lay your nappy head down.” Finally, he claims he saw racist graffiti on Giant truck trailers that included “[h]anging nooses” and words like “[njiggers,” “[s]pear chuckers,” and “[b]ush boogers.” Finally, Kirb Qualls, an employee at the produce department in Giant Store # 50, had his car tires slashed on four occasions from November 1994 to August 1996. There were also instances of graffiti concerning Qualls, but none included racially derogatory content. B. A prima facie case of hostile work environment consists of the following elements: (1) the harassment was unwelcome; (2) the harassment was based on [Plaintiffs] race ...; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. Causey v. Balog, 162 F.3d 795, 801 (4th Cir.1998). The plaintiffs fall into four groups based on the alleged harassment they experienced: (1) Carson, who alleges inappropriate harassment by managers during the relevant time period and graffiti specifically aimed at him; (2) Skipper and Ingram, who allege with specificity the content and frequency of the racist graffiti they saw in warehouse trailers; (3) Newman, Connor, Mathews and Mungro, who allege that they witnessed offensive graffiti in the trailers, but do not allege how often they saw the graffiti and, with the exception of Mungro, do not specifically describe the graffiti; and (4) Qualls, who did not work in Giant warehouses and only alleges isolated instances of harassment that are not established to be based on race. It is undisputed that the harassment of the plaintiffs, other than Qualls, was unwelcome and based on race. Therefore, my analysis as to those plaintiffs’ claims will focus on the final two elements. c. Several factors are considered when determining the severity and pervasiveness of harassment: “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating or a mere offensive utterance; and (4) whether it unreasonably interferes with [the] employee’s work performance.” Smith v. First Union Nat. Bank, 202 F.3d 234, 242 (4th Cir.2000) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). 1. Carson experienced significantly worse harassment during the relevant time period than the other plaintiffs. The incidents of harassment were frequent during the period in question, several remarks or actions were specifically directed at Carson and most incidents involved the highly offensive word “nigger” or comparably offensive language or conduct. Additionally, many incidents involved Carson’s managers or supervisors, which is particularly troubling. Moreover, Carson’s coworkers are able to “buttress” some of his claims. See e:g., Collier v. Ram Partners, Inc., 159 F.Supp.2d 889, 899-900 (D.Md. 2001); see also Mundell Aff. ¶ 10 (verifying that pictures of apes and monkeys were displayed in the warehouse); Isaac Aff. ¶ 9 (explaining that the parking lot van would not stop for African-American employees). Thus, the alleged harassment experienced by Carson is clearly actionable under section 1981. 2. The claims of Skipper and Ingram essentially consist of allegations of offensive racist graffiti they viewed daily. Skipper was also called “nigger” by his manager on one isolated occasion. Sexist and racist graffiti certainly contribute to the existence of a hostile work environment. See, e.g., Carter v. Chrysler Corp., 173 F.3d 693, 701 n. 7 (8th Cir.1999) (finding graffiti relevant to hostile environment); Wattman v. Int’l Paper Co., 875 F.2d 468, 478 (5th Cir.1989) (finding graffiti and other incidents of harassment created a dispute as to whether the workplace was a hostile environment). Plaintiffs have not, however, cited any case (and I have found none) where graffiti alone has been found sufficient to establish severe and pervasive harassment. Here, the content of the graffiti was as offensive as one can imagine, and Skipper and Ingram testified they viewed it daily. However, the severity and pervasiveness of the graffiti must be considered in context. The record establishes that the graffiti was written in 45-foot-long trailers that were driven to the warehouses or on the walls of the bathrooms. It appeared amidst other tasteless but non-racist graffiti of all sorts, and it was written in regular size. Although offensive to African-Americans (and anyone with good sense and good values), it was not menacing but simply reflected the unfortunate fact that there are prejudiced people in the world. Moreover, none of the graffiti was directed personally at Skipper or Ingram, contrary to most cases in which graffiti is found to be part of a hostile work environment. See e.g., Chrysler, 173 F.3d at 701. Under these circumstances, I do not find that the graffiti standing alone satisfies the third element of a prima facie case. 3. The claims of Newman, Connor, Mathews and Mungro consist of allegations of offensive racist graffiti, including the word “nigger,” and pictures of monkeys that appeared in trailers and bathrooms. However, unlike Skipper and Ingram, Newman, Connor, Mathews and Mungro are unable to describe with specificity how often they viewed the graffiti. Newman, Connor and Mathews also are unable to describe the specific content of the graffiti they viewed. For the reasons discussed above, the graffiti in the trailers is not sufficient to establish a prima facie case of a hostile work environment. 4. The hostile work environment claim of Qualls is different from the claims of the plaintiffs employed at the warehouses. Qualls’ claim consists of four tire slashing incidents and graffiti. Qualls has presented no evidence the tire slashings or graffiti were based on race. Therefore, these allegations cannot support a claim of hostile work environment. See Jackson v. Maryland, 171 F.Supp.2d 532, 541 (D.Md. 2001); Smith v. Allied Sys., Ltd., 2000 WL 708909, at *5 (D.Md.2000), ajfd, 232 F.3d 889 (4th Cir.2000). D. Giant’s primary challenge to Carson’s prima facie case is that he cannot establish the fourth element- — a basis for imposing liability on Giant. In this case, incidents of harassment involved Carson’s supervisors and co-workers. A separate analysis is required for each. For incidents involving supervisors or managers, agency principles have been applied in determining whether the employer is hable. In Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), the Supreme Court established a defense whereby an employer can avoid liability for a supervisor’s sexual harassment of an employee. This defense consists of two elements that must be established by a preponderance of the evidence: (1) “that an employer exercised reasonable care to prevent and correct promptly any ... harassing behavior,” and (2) “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807, 118 S.Ct. 2275. First, Giant has presented sufficient evidence that it had an anti-harassment policy in place at the time of the events. “Distribution of an anti-harassment policy provides ‘compelling proof that the company exercised reasonable care in preventing and promptly correcting ... harassment.” Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir.2001); accord Lissau v. S. Food Serv., Inc., 159 F.3d 177, 182 (4th Cir.1998). Giant set forth policies that were in place from 1991 to the present that described Giant’s alleged dedication to fair employment and creating a safe work environment free of harassment. (See Harris Dec. ¶¶ 12-19.) This policy stated that incidents of harassment “should be reported directly and promptly” to the FEO at Giant. (See Carson Mem. Exs. C, F and H.) The policy was set forth in Giant’s employee handbook and in pamphlets and outlined on large posters displayed in the common areas at Giant. (See Harris Dec. ¶¶ 17-19.) Giant argues that the second element is satisfied because Carson failed to complain to the FEO. An employee’s “failure to use any complaint procedure provided by the employer ... will normally suffice to satisfy the employer’s burden under” this element. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257 (emphasis added). In this case, Giant argues that Carson did not complain to the FEO, except once in 1990. (See Carson Mem. at 23; Carson Dep. at 46-49, 56.) However, Carson did complain to warehouse managers and supervisors on numerous occasions. (See, e.g., Carson Dep. at 133 (stating that he complained to Manager Tom Maynard about the incident where Majors placed dough in his zipper); Carson Dep. at 178 (stating that he complained about the locker room segregation and conditions); Carson Dep. at 281 (stating that he complained to Maynard about Majors’ racially offensive jokes.)) The Faragher Court observed “that a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute.” 524 U.S. at 806, 118 S.Ct. 2275. There is no strict requirement that an employee follow an exact reporting procedure set forth by an employer. Furthermore, the Fourth Circuit has stated that complaining to one’s managers satisfies the plaintiffs reporting requirement. See E.E.O.C. v. R & R Ventures, 244 F.3d 334, 341 (4th Cir.2001) (“[The plaintiffs] ... complained at virtually every opportunity available. It therefore cannot be said, as a matter of law, that [the plaintiffs] failed to take advantage of any corrective opportunities.”). Additionally, the Giant policy itself states that an employee “should,” not “must,” report incidents to the FEO. (See Carson Mem. Ex. C, F and H; see also Carson Mem. Ex. 1 (stating that there are a number of fair employment policies, not one single policy to be followed.)) Moreover, if the Giant policy had been strictly followed, Carson’s managers and supervisor who knew of the incidents should have themselves reported the incidents to the FEO. They did not. Therefore, Giant has not satisfied the second element of the Far-agher/Ellerth defense and can be held liable for the racial harassment by its managers. For incidents involving co-workers, an employer may be found liable “only for [its] own negligence in failing, after actual or constructive knowledge [of the harassment], to take prompt and adequate action to stop it.” Mikels v. City of Durham, N.C., 183 F.3d 323, 332 (4th Cir. 1999). Giant argues that there is no evidence it should have known of the alleged harassing conduct Carson was being subjected to by co-workers. However, Carson has presented evidence that he complained to managers about the actions. (See Carson Dep. at 138-39 (stating that he complained to warehouse manager Maria Myers about the pictures of monkeys and gorillas); Carson Dep. at 296 (stating that he complained to Maynard about a co-employee calling him a “nigger.”)) In some instances, managers and supervisors witnessed and laughed at the conduct. (See, e.g., Carson Dep. at 137 (stating that Majors watched and laughed as a co-worker hung up the pictures of monkeys and gorillas.)) Therefore, Giant managers knew about the alleged harassing conduct and Giant can be held liable for the racial harassment by Carson’s co-workers. Carson has established all of the elements of a prima facie case. V. Plaintiffs have asserted claims against Giant and several individual defendants, who were employed in various managerial and supervisory positions at Giant during the employment periods of the plaintiffs, for quantum meruit, discrimination under the Maryland Fair Employment Practices Law, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract and wrongful termination. The defendants’ motions for summary judgment will be granted as to these claims. A. “A recovery under a theory of quantum meruit generally ‘is not applicable when compensation of the parties is covered by an express written contract.’ ” Abt Assoc., Inc. v. JHPIEGO Corp., 104 F.Supp.2d 523, 534 (D.Md.2000) (quoting Mass Transit Admin, v. Granite Cónstr. Co., 57 Md.App. 766, 471 A.2d 1121, 1126 (1984)). The rationale of a claim based on a theory of quasi-contract is that a defendant should not be unjustly enriched by a benefit bestowed upon it by the plaintiff. Id. When there is no real promise by defendant to pay plaintiff, the law thus implies such a promise. Id. Conversely, where an actual promise to pay does exist, there is no need to imply one. Id. (citing Attorney Grievance Comm’n v. McIntire, 286 Md. 87, 405 A.2d 273 (1979)). In this case, each Plaintiff was a member of a local union and each plaintiffs employment terms were covered under the collective bargaining agreement between Giant and his union. Plaintiffs argue that the collective bargaining agreements do not cover every matter of services and compensation and thus are not express contracts in this situation. It is true that “when an express contract does not fully address a subject, a court of equity may impose a remedy to further the ends of justice.” Klein v. Arkoma Prod. Co., 73 F.3d 779, 786 (8th Cir.1996). However, Plaintiffs have pointed to no evidence demonstrating that any of them performed extra service not covered by the collective bargaining agreement governing their relationship with Giant. B. Maryland Fair Employment Practices Law, Md.Code Ann., art. 49B § 14 (“Article 49B”) does not provide a private cause of action. See Maryland Comm’n on Human Relations v. Downey Communications, Inc., 110 Md.App. 493, 678 A.2d 55, 79 (Md.1996); see also Jordan v. CSX Intermodal, Inc., 991 F.Supp. 754, 756 n. 1 (D.Md.1998) (stating that Article 49B “empowers] only the Maryland Human Rights Commission to initiate litigation upon an employer’s refusal to comply with the Commission’s orders” and “does not create a private cause of action”). Article 49B is a state administrative remedy that only provides for injunctive relief. See Makovi v. Sherwin-Williams Co., 75 Md.App. 58, 540 A.2d 494, 498 (1988), aff'd, 316 Md. 603, 561 A.2d 179 (1989). C. To support a prima facie case of intentional infliction of emotional distress, a plaintiff must show: (1) the conduct is intentional or reckless; (2) the conduct is extreme and outrageous; (3) there is a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress is severe. White v. Maryland Trans. Auth., 151 F.Supp.2d 651, 658 (D.Md.2001). The fourth element “requires the plaintiff to show that he suffered a severely disabling emotional response to the defendant’s con duct.” Bryant v. Better Bus. Bureau of Greater Maryland, Inc., 923 F.Supp. 720, 748 (D.Md.1996) (quoting Harris v. Jones, 281 Md. 560, 380 A.2d 611, 616 (1977)) (emphasis in original). “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” Bryant, 923 F.Supp. at 748-49. In Bryant, the plaintiff felt demeaned, humiliated and suffered extreme mental anguish and outrage. Additionally, the plaintiff suffered from irritable bowel syndrome, needed counseling by a therapist, had disturbed sleep, was in a depressed mood and was placed on antidepressant drugs by a doctor. Still, the Court found that there was no severe distress because the distress did not interfere with the plaintiffs ability to attend work or look for a new job. Id. at 750. Here, Plaintiffs offer no evidence of any emotional distress comparable to the distress suffered by the plaintiff in Bryant, which itself was legally insufficient. There is also no evidence that any of the Plaintiffs were unable to perform their duties at work due to emotional distress. D. Maryland does not recognize an independent claim for negligent infliction of emotional distress. See Miller v. Bristol-Myers Squibb Co., 121 F.Supp.2d 831, 839 (D.Md.2000); Lapides v. Trabbic, 134 Md.App. 51, 758 A.2d 1114, 1122 (2000). Accordingly, I will grant summary judgment on these claims as well. E. Finally, the defendants move for summary judgment on Plaintiffs’ claims for breach of contract and wrongful termination. First, I will address the breach of contract claims. Only parties to a contract can enforce that contract and they may only enforce it against parties to the contract. Copiers Typewriters Calculators, Inc. v. Toshiba Corp., 576 F.Supp. 312, 322 (D.Md.1983). Therefore, there must be a contract between the parties for there to be a breach. Plaintiffs have produced no evidence that there was a contract between any of the Plaintiffs and any defendant other than the collective bargaining agreement. Accordingly, there is no possible claim for breach of contract. Second, when stating a claim for abusive discharge, Plaintiffs must show that their terminations contravened a clear mandate of public policy. See Jones v. Giant Food, Inc., 2000 WL 1828283, at *3 (D.Md.2000); Orci v. Insituform E., Inc., 901 F.Supp. 978, 982 (D.Md.1995); Chappell v. S. Md. Hosp., Inc., 320 Md. 483, 578 A.2d 766, 768-71 (1990). The purpose of the tort of abusive discharge is to vindicate a public policy in the absence of any civil remedy. See Jones, 2000 WL 1828283 at *3. “Preclusion [of an abusive discharge claim] ... applies only when the public policy sought to be vindicated is expressed in a statute which carries its own remedy for vindicating that public policy.” Insignia Residential Corp. v. Ashton, 359 Md. 560, 755 A.2d 1080, 1086 (2000); see also Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179, 182 (1989) (holding that there was no valid wrongful discharge claim where Title VII and Article 49B specifically provided remedies for the alleged public policy violation). Abusive discharge suits for employment discrimination are generally precluded because federal and Maryland anti-discrimination laws create a civil remedy to vindicate discrimination in employment settings. Jones, 2000 WL 1828283, at *3; Makovi, 561 A.2d at 182. The Court in Insignia clarified the type of situation in which an abusive discharge claim will be allowed. Thus, an employee was fired for refusing to have sex with her employer under circumstances that would have amounted to prostitution. The Court in Insignia held that a wrongful discharge claim was not precluded because Maryland’s anti-prostitution statute created a clear public policy, but did not create a private cause of action. See Jones, 2000 WL 1828283, at *3; Insignia, 755 A.2d at 1086; see also Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 588 A.2d 760, 769 (1991) (allowing wrongful discharge claim to go forward where an employee was terminated following the initiation of a suit against her employer in which she alleged a co-worker had sexually harassed her and assaulted and battered her). Plaintiffs have alleged that they were discharged for exercising their First Amendment rights to free speech and that under the reasoning of Insignia their claim is valid. However, the only sort of speech alleged here, filing charges with the EEOC, is specifically protected by Title VII. Therefore, Makovi, not Insignia, is controlling. VI. Plaintiffs have also asserted a claim against the individual defendants under 42 U.S.C. § 1981. I have previously dismissed that claim against one of the defendants, Tom Maynard. The individual defendants have now moved for summary judgment on the section 1981 claim against them. Directors or managers can be held personally liable when they “intentionally cause a corporation to infringe the rights secured by” section 1981. Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 517 F.2d 1141, 1145 (4th Cir.1975); see also Shirkey v. Eastwind Cmty. Dev. Corp., 941 F.Supp. 567, 572 (D.Md.1996) (requiring intentional discrimination in order to establish a section 1981 violation), modified on other grounds, 993 F.Supp. 370 (D.Md.1998). Here, Plaintiffs have only alleged that the individual defendants were aware of racial problems and graffiti in the workplace after they occurred and did not respond properly. There is no evidence that any of the individual defendants directed, participated in or even approved of intentional discrimination. Since there is no direct or circumstantial evi dence of intentional discrimination, I will grant summary judgment on the section 1981 claims against the individual defendants. VII. I will now address the remaining claim of Plaintiff Gregory Carson against Giant. This claim is for disparate treatment under 42 U.S.C. § 1981 in connection with a suspension that was imposed upon him in September 1994. A. Carson was hired by Giant as a vacation relief worker at Giant’s Landover, Maryland warehouse in August 1985. Carson was hired into a permanent position as a dockman in the Landover warehouse in November 1985. In 1990, Carson moved to the salvage department at Giant’s Jess-up, Maryland warehouse, where he is still employed. Throughout his employment at Giant, Carson has been a member of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 922 (“Local 922”). On September 24, 1994, Carson, while on the warehouse floor, pushed a cart towards a co-worker. Another employee, Tyrone Mundell, was operating a powered hand jack and ran the jack into the cart. Mundell then purposely fell backwards off the jack and pretended to be injured. Supervisor Jake Guthridge saw Mundell and, believing that Carson had caused the accident and injury to Mundell, ran to Carson and proceeded to scream at him. (See Carson Dep. at 199-200.) In response, Carson became angry and argued with Guthridge about what had transpired. As a result of this incident, Maria Myers, the general manager of the warehouse, suspended Carson for insubordination pending an investigation. Following that investigation and a grievance hearing on October 3, 1994, Carson was reinstated on the condition he undergo a drug test. According to Giant, the purpose of this drug test was to determine if Carson was using steroids since he had reportedly acted violently. (Myers Dep. at 55-56.) Carson agreed to this condition and returned to work. The result of the drug test was negative. B. “As a general matter, to make out a prima facie case for employment discrimination, the Plaintiff must show that: (1) he is a member of a protected group; (2) he earned satisfactory performance marks; (3) he suffered an adverse employment action; and (4) other similarly situated employees outside his protected class were treated more favorably.” McCain v. Waste Mgmt. Inc., 115 F.Supp.2d 568, 573-74 (D.Md.2000) (citations omitted). Only the fourth of the elements is disputed. Giant states that Carson screamed and cursed at Guthridge, refused a directive to leave the warehouse floor and report to the office, kicked over several empty milk crates and approached Gu-thridge with clenched fists. Carson argues that he never screamed or cursed and never approached Guthridge with clenched fists. There is thus a factual dispute concerning what actually occurred during the confrontation between Carson and Gu-thridge and it is, therefore, unclear how to define “similarly situated employees.” However, this dispute is not material because even if Carson could establish a prima facie case, he cannot establish pretext as discussed below. Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence that the plaintiff was suspended for a legitimate, nondiscriminatory reason. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). If the employer meets this burden, the presumption of discrimination is eliminated, and the plaintiff bears the ultimate burden of proving by a preponderance of the evidence that the employer’s nondiscriminatory reasons are pretextual and that the adverse employment action was actually taken because of the employee’s race or national origin. Obi v. Anne Arundel County, 142 F.Supp.2d 655, 660 (D.Md.2001). Giant has articulated a legitimate, nondiscriminatory reason for suspending Carson: Giant believed that Carson had verbally and physically threatened his manager. (See Myers Dec. at ¶ 7; Myers Dep. at 55-56, 61-62.) Carson is unable to establish that this reason is a pretext for discrimination. Carson argues that Giant has “trumped up” this explanation simply for the purpose of this litigation. The final decision to suspend Carson was made by Maria Myers, general manager of the Landover warehouse, based on her evaluation of the confrontation and her discussions with Guthridge. (See Carson Mem. Def. Ex. C.) Although Carson disagrees with Myers’ decision and with Guthridge’s version of the confrontation, he presents no evidence that Myers did not actually believe Guthridge. “While reviewing the employer’s articulated reasons for discharge and the plaintiffs refutation thereof, we must keep in mind that ‘Title VII is not a vehicle for substituting the judgment of a court for that of the employer.’ ” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.1998) (quoting Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir.1995)). “[W]hen an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not our province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiffs termination.” Id.; see also Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir.2000) (finding no pretext where the terminated plaintiff disagreed with her employer’s evaluation of her work performance). Since Plaintiff is unable to present any evidence that Myers’ decision was not the true reason for Carson’s suspension, there is no showing of pretext. Accordingly, summary judgment is granted on Plaintiffs § 1981 claim concerning his suspension. A separate order is attached. ORDER For the reasons stated in the accompanying Opinion, it is, this 20th day of February 2002 ORDERED 1. Plaintiffs’ motion for class certification, preliminary injunctive relief and bifurcation of liability and damage trials is Denied; 2. Defendants’ motions for summary judgment are Granted as to all claims of Plaintiff Carson, except Carson’s hostile work environment claim against Giant under section 1981; 3. Defendant Giant’s motion for summary judgment is Denied as to the hostile work environment claim under 42 U.S.C. § 1981 of Plaintiff Carson; 4. The Clerk is directed to open nine new cases in eight of which each of the plaintiffs in this action, other than Gregory Carson, John Dallas, Jr., and David Jones, is named as the plaintiff, and in the ninth of which John Dallas, Jr. and David Jones are named as the plaintiffs; provided, however, that in the event of an appeal by more than one plaintiff, the cases shall be consolidated and only one filing fee need be paid. . As I did in related litigation instituted against Giant by other plaintiffs represented by plaintiffs' counsel in this action, Muhammad v. Giant Food, Inc., Civil No. JFM-98-3565, I am directing the Clerk to open nine different cases for the plaintiffs other than Gregory Carson, the named plaintiff in this action. (Plaintiffs Dallas and Jones filed suit together.) I am doing so because, as the litigation has turned out, it constitutes ten separate employment discrimination actions that have taken substantial time to decide. Therefore, the court should be given credit for the different cases under the work measurement criteria used to determine the resources allocated to individual district courts. Plaintiffs' counsel objected to this administrative action in the Muhammad litigation. Although I had not meant to affect the rights of plaintiffs, in retrospect it may be that by opening separate cases, I unintentionally imposed upon plaintiffs the obligation of paying separate filing fees on appeal. To prevent that from happening here, my accompanying order directs that in the event of an appeal by more than one plaintiff, all of the cases should be consolidated and only one filing fee be paid. . On February 6, 2002, after all papers had been filed and oral argument conducted, Plaintiffs’ counsel filed a supplemental memorandum in support of motion for class certification in which she changed the definitions of the proposed subclasses. This supplemental memorandum was not filed in a timely manner and will not be addressed. I do note, however, that although the amended proposed subclasses appear to present less problems than the original subclasses, the same analysis would apply and the amended proposed subclasses would also fail. . Plaintiffs Blocker, Carson, Connor, Ingram, Mathews, Newman and Skipper would represent this subclass. . Plaintiffs Dallas and Jones would represent this subclass. . Plaintiffs seek to represent class members whose experience was entirely different from their own. For example, they contend that African Americans who were denied employment because of discrimination in Giant's hiring practices should be included in the classes they represent although none of them were discriminated against during the hiring process. Such an "across-the-board" class is not certifiable. See E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); Adams v. Bethlehem Steel Corp., 736 F.2d 992, 994 (4th Cir.1984); Hill v. W. Elec. Co., 596 F.2d 99, 102 (4th Cir.1979). . It is substantially less clear that the second proposed subclass would meet the numerosity requirement. Plaintiffs assert that Giant has rejected 800 African-American vacation relief workers for permanent positions. The exhibits cited by Plaintiffs to support this contention malte no reference to vacation relief workers or the number "800.” Plaintiffs present virtually no evidence concerning vacation relief workers other than Plaintiffs Dallas and Jones. Plaintiffs do point to several affiants who allegedly experienced the same problems as Dallas and Jones. However, only Charles Guión alleges that he was denied a position improperly under a seniority system. Based on this record, I can only assume that three former African-American vacation relief workers, Dallas, Jones, and Guión, were denied permanent positions given to less senior white vacation relief workers. Clearly, three individuals is not enough to certify a class. . Plaintiffs' claims concerning a hostile work environment and the failure to hire vacation relief workers for permanent employment present a somewhat closer question on commonality and typicality. However, as discussed in the text, infra, "rigorous analysis,” see Gen. Tel. Co., 457 U.S. at 161, 102 S.Ct. 2364, reveals that despite the superficial similarity, the hostile work environment claims of the different plaintiffs vary substantially from one another. Likewise, since the summary judgment record establishes that Giant based its decisions whether to hire vacation relief workers for permanent employment on the basis of their performance, those claims too fail to meet the commonality and typicality requirements. In any event, all proposed classes fail under the adequacy of representation element of Rule 23(a). . Plaintiffs have provided statistical evidence in an attempt to prove general discrimination. However, the statistics are not separated by facilities or departments. Plaintiffs’ expert, Harriet Zellner, tested for overall discrimination at Giant stores and warehouses. Additionally, as shown in Tables 8 and 10 of Plaintiffs' report, Zellner tested for discrimination at all warehousing facilities, all recycling facilities and all manufacturing facilities. (See Pl.Ex. 3.) This control for work environment is not specific enough. See Stastny, 628 F.2d at 278-79 (rejecting statistical evidence because the statistics were not probative of separate facilities, but only showed overall disparities); Abram v. United. Parcel Serv. Of Am., Inc., 200 F.R.D. 424, 431 (E.D.Wis.2001) (stating that aggregate statistical evidence "masks differences from district to district and from supervisor to supervisor that preclude a finding of ‘commonality’ "). . I declined to reach this question in the related Muhammad litigation, now pending in the Fourth Circuit, in which counsel for Plaintiffs in this litigation sought to represent a class. I chose not to do so (and was prepared to decline to reach the issue again here) to avoid commenting upon the performance of Plaintiffs’ counsel unnecessarily. However, during oral argument, Plaintiffs’ counsel suggested that because I did not reach the question in Muh'ammad, Giant was collaterally estopped from raising the issue again. Under these circumstances I have reluctantly concluded that, lest my silence be misinterpreted, I must address the question. . "Under Title VII and ... Section 1981, the elements of the required prima facie case are the same.” Gairola v. Com. of Va. Dept. of General Services, 753 F.2d 1281, 1285 (4th Cir.1985). . The plaintiffs filed EEOC complaints on different dates. Each plaintiff's Title VII claims includes events dating back 300 days from the specific date he filed his EEOC complaint. .I note that allegations by Plaintiffs Skipper and Ingram of a continuing pattern of racist graffiti in the trailers may constitute a serial violation because the alleged graffiti was not sporadic. However, as discussed below, the allegations of graffiti are not sufficient to establish a hostile work environment. Considering the graffiti over a longer period of time does not alter that determination. . Five plaintiffs refer to a noose in their pleadings. Carson refers to the Jessup noose. He heard about the noose second-hand and, therefore, its effect on his claim is minimal. Connor also refers to the Jessup noose, but notes that he simply kept cleaning after he saw it. Skipper and Ingram refer to all three nooses in the Landover warehouse. The 1991 noose incident is time-barred. The 1995 and 1996 noose incidents are not time-barred, but the plaintiffs fail to allege who placed the nooses, whether they complained about the nooses and whether management removed the nooses in a timely manner. Therefore, they have failed to present any evidence that would establish Giant's liability. Finally, Mathews states that he saw two nooses, but he provides insufficient details and no dates. Thus, he has not demonstrated either that the incidents occurred during the relevant time period or that Giant can be held liable for them. . Carson states that Majors made numerous racially offensive jokes daily, but there are no details surrounding other jokes. . Three or four African-American employees had lockers in the more desirable, larger locker room. (See Carson Dep. at 173.) . Skipper also stated on deposition that on approximately twelve other occasions African-American co-workers called him "nigger.” However, he further testified that the use of the word "nigger” by African-Americans was not offensive to him. . Skipper also claims to have seen a picture of a monkey, ape, and bear with the caption "just blacks” on a bulletin board in 1997 or 1998. Under Fed.R.Civ.P. 15(d), a plaintiff must move the court for leave to file a supplemental pleading setting forth occurrences which happened after the date of the amended complaint. See Young-Henderson v. Spartanburg Area Mental Health Ctr., 945 F.2d 770, 775 (4th Cir.1991). Since Skipper has not filed a supplemental pleading, this incident is not considered part of his hostile work environment claim. . Ingram also makes allegations about several separate incidents that occurred prior to 1993, including ones where (1) a co-worker referred to African-American employees as "niggers,” (2) a manager called a black employee a "black monkey,” and (3) Ingram heard a manager state that white employees were better selectors than black employees. To the extent that Ingram seeks to state independent claims based upon these allegations, the claims are time-barred. Moreover, while extremely disturbing, the incidents were sporadic and, although evidence of them would perhaps be admissible under Rule 404, they were not sufficiently pervasive to establish a hostile work environment when considered in connection with incidents that later occurred. . Connor does not present any specific evidence of the dates concerning three other allegations he makes: that a manager harassed him in the bathroom, that he was assigned pallet duty alone, and that he was called a monkey by a co-worker. . Mathews also alleges that in the mid-1980s the word "nigger” was written all over his locker and that in 1989 Giant allegedly refused to take him to the hospital. Like Ingram's allegations relating to pre-1993 incidents, see supra n. 18, these allegations neither give rise to independently actionable claims nor constitute sufficient background evidence to render Mathews’ graffiti allegations actionable as a hostile work environment claim. . On one occasion, an employee drew a picture in the bathroom of Qualls with sexually offensive content and the words "Kirby the tire man” written under the picture. Somewhere between 1994 and 1996, someone wrote a derogatory remark concerning Qualls next to his name on a union decal in the workplace. On another occasion, an employee wrote a sexually explicit reference to Qualls and his family in the downstairs bathroom. The only instance of racist graffiti involving Qualls is time-barred. . Summary judgment will be, however, granted on Carson’s hostile work environment claim under Title VII because most of the alleged instances of harassment occurred prior to the 300 day reporting requirement under Title VII. The incidents that clearly took place during the 300 days are the posting of monkey pictures, the incident where Carson was not picked up by a van, Carson’s assignment to the smaller locker room and Carson's manager screaming at him for being late. These incidents are not alone sufficient to establish severe and pervasive harassment. . Skipper alleges that his manager followed him around the warehouse and announced his productivity over a loudspeaker. Ingram also alleges that his productivity was announced over a loudspeaker. There is no evidence that these incidents were based on race. This is not unique to Skipper and Ingram. Throughout Plaintiffs’ papers. Plaintiffs’ counsel asserts numerous incidents that nothing in the record establishes as being connected to race. For example, Carson alleges that he could not listen to the radio stations he desired and could not play on the company softball team. Because of the lack of evidence tying such incidents to race, they cannot be considered as establishing a legally actionable hostile work environment. .I decline to find Giant liable for the alleged use by Skipper's white co-workers of the racist epithet “nigger” approximately thirteen times during the four years prior to this lawsuit. Skipper has stated that he was unable to recall the names of any of his white coworkers who used the term, and he could not offer any specifics of the incidents. (Skipper Dep. at 248.) General allegations lacking in dales, times, and' circumstances are without the particularity required to support a claim of racial harassment. See Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir.1994) (holding that "general allegations do not suffice to establish an actionable claim of harassment”); Fisher v. Maryland Dep't of Hous. & Cmty. Dev., 32 F.Supp.2d 257, 262 (D.Md. 1998), aff’d 166 F.3d 1208 (4th Cir.1998). Further, Skipper acknowledges that he did not complain to managers or file a complaint with Giant's Fair Employment Office (“FEO”) when the incidents occurred, although he complained to the FEO after this lawsuit was filed. (Skipper Dep. at 248-49.) . This is not to say that an employer must not be alert to the existence of racist (or sexually harassing) graffiti and take steps to remove or paint over it when it appears. The record establishes that Giant is now doing so. If it did not, I would entertain a motion for injunctive relief. . Mungro claims that his manager made a racially offensive comment to him. It is an isolated incident that does not constitute a hostile work environment. Mungro also claims other drivers made racially offensive comments over the CB radio. These incidents are not sufficiently particularized, as to the dates, frequency and circumstances in which they occurred, to determine whether they occurred during the relevant time period or whether there is any basis to hold Giant liable for the harassment. See Carter, 33 F.3d at 461-62. .Both white and African-American employees had their tires slashed. Additionally, all four tire-slashing incidents occurred at Qualls’ home. Following the tire slashing in August 1996, Qualls discovered that William Donahue, a co-worker, was the perpetrator. Giant fired Donahue when it was notified of the incident. . The Fourth Circuit noted that “[although Ellerth and Faragher each specifically dealt with claims of sexual harassment, the developing consensus is that the holdings therein apply with equal force to other types of harassment claims under Title VII." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 186 n. 9 (4th Cir.2001). . Carson even slated: "I complained all the time. I complained about every damn thing. Excuse me, I complained every day.” (Carson Dep. at 286.) Giant argues that Carson's deposition testimony is self-serving. However, at summary judgment, the court’s role is not to weigh testimony. Carson asserts more than general complaints. He testifies about complaints he made to specific individuals and, several times, he provides specific dates. . The seven individual defendants are Pete Manos, Sam Thurston, Maria Myers, Robert Haywood, Deborah Lilly, Chris Balodemas and Tom Maynard. . Plaintiffs rely upon Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996), for the proposition that Article 49B creates a cause of action for an improper discharge where that discharge is the result of discrimination condemned by section 14 of Article 49. This interpretation of Molesworth is inaccurate. In Molesworth, the Court determined that section 14 supports a common law claim of wrongful discharge against an employer exempted as a small business under Art. 49B, § 15(b). Id. at 637, 672 A.2d 608. Giant is not a small business exempted under section 15(b). .Plaintiff relies on Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 502 A.2d 1057 (1986), for the proposition that one can assert a claim for negligent infliction of emotional distress. However, the Court in Hamilton clearly states that there is no recovery in Maryland for negligent infliction of emotional distress. Id. at 1065-66. The Court in Hamilton simply points out that under a claim of intentional infliction of emotional distress, the tort need not be intentional in all circumstances; an actor can be liable for emotional distress if the injury is inflicted by extreme and outrageous recklessness. Id. at 1066. . I will also refer to the claim of "wrongful termination” as a claim for "abusive discharge” or "wrongful discharge.” . As Defendants point out, if the Plaintiffs were asserting a breach of their collective bargaining agreements, these claims would also be barred as a matter of law. Claims regarding the interpretation and application of collective bargaining agreements are governed solely by Section 301 of the Labor Management Relation Act, 29 U.S.C. § 185 ("LMRA”). See United Steelworkers v. Raw-son, 495 U.S. 362, 368, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990); Jones v. Giant Foods, Inc., 2000 WL 1835393, at *5 (D.Md.2000). . I also previously dismissed a series of other claims against all individual defendants, including claims under section 1985, section 1986, the Equal Pay Act, Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. See Carson v. Giant Food Inc., 2002 WL 246437, - F.Supp.2d-(D.Md. 1997). . The parties dispute the details surrounding Carson’s reaction towards Guthridge. Giant asserts that Carson screamed and cursed at Guthridge, refused a directive to leave the warehouse floor and report to the office, kicked over several empty milk creates and approached Guthridge with clenched fists. Carson argues that he never raised his voice at Guthridge, never cursed at Guthridge and never approached Guthridge with a clenched fist. Carson also asserts that another white employee struck Carson's leg with a dairy cart while Carson was arguing with Gu-thridge, and that this other employee was never disciplined. As discussed below, this factual dispute is not a material one. . Plaintiff also argues that requiring him to take a drug test for steroids demonstrates pretext because there was no indication he had used drugs. However, testing Plaintiff for steroid use was consistent with Myers' belief that he had acted violently. . Plaintiff also argues that Giant made Carson sign a "last-chance letter” as a condition to his return to work in violation of Carson's union contract. Plaintiff presents no evidence that this was actually in violation of the union contract. Plaintiff also asserts that white employees were never forced to sign last-chance letters. However, Plaintiff's only evidence is his own testimony that he did not know of a white employee who signed a last-chance letter. (Carson Dep. at 221.) This mere speculation is not sufficient to establish pretext.

MEMORANDUM OPINION AND ORDER GOODWIN, District Judge. Now pending is defendant National Republican Congressional Committee’s motion for summary judgment. For reasons discussed herein, the motion is DENIED. I. Background This suit concerns statements allegedly implying that Harry Bell is a repeat sex offender and rapist. It arises in the context of the race for West Virginia’s second district congressional seat in 2000. James Humphreys was the Democratic candidate. Harry Bell was Humphrey’s former neighbor and agreed to appear in a television advertisement for Humphreys. The ad was taped in Bell’s house, and Bell spoke the line “We want the right to choose our own doctors.” The ad was aired across the second district in the spring of 2000. Later in the campaign, Bell and his wife agreed to pose with Humphreys for campaign photographs at a local drug store. One photograph depicting Humphreys, Bell, and Bell’s wife appeared in four Humphreys campaign pamphlets and on the Humphreys web site. The photograph showed Bell and his wife standing in front of a drug store shelf, listening to Hum-phreys speak. Bell consented to the campaign’s use of the television advertisement and the drug-store photos. In mid-October 2000, the National Republican Congressional Committee (NRCC) commissioned and mailed a political pamphlet commenting on Humphrey’s record as a lawyer and West Virginia state legislator. One page of the pamphlet featured a version of the Humphreys-Bell photograph, downloaded from Humphreys’ web site, from which Mrs. Bell had been cropped. The cropped photograph appeared immediately adjacent to the bold text, “Humphreys Defended Sex Offenders as a Criminal Defense Lawyer,” and the caption, “A multi-millionaire trial lawyer, Jim Humphreys has represented rapists and repeat child' molesters.” The pamphlet did not identify Bell. Bell filed this suit, asserting claims of libel per se, invasion of privacy, and intentional infliction of emotional distress. After the case began, Bell gave interviews with local news media in which he discussed the pamphlet and his suit. II. Discussion A. Standard of Review To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the non-moving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. B. Defamation and Invasion of Privacy Claims For Bell to prevail on his defamation claim, he must show that the pamphlet was defamatory and that it referred to him. Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70, 77 (1984). On the invasion of privacy claim, he must show that the pamphlet placed him in a false light. Id. at 86. In performing its analyses, the court is cognizant that the pamphlet appeared in connection with a political campaign. Free speech protections are especially important in this context because elections are manifest democracy. It is the informed participation of everyday citizens that sustains our democracy. The framers recognized that open debate leads to the discovery and spread of political truth and. that citizens who have the opportunity to express themselves help soothe the inherent unrest in a society. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandéis, J., concurring). They recognized that obstacles to such debate and expression threaten to destabilize government and provided significant protections for political speech, placing it at the core of the First Amendment. Id. “The greatest menace to freedom is an inert people.” Whitney, 274 U.S. at 375, 47 S.Ct. 641. It has long been recognized, however, that not all speech is of equal First Amendment importance. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). Speech on matters of public concern lies at the heart of the First Amendment’s protections. Id. But speech on matters of purely private concern is of less First Amendment concern, and therefore warrants less protection. Id. Balancing First Amendment concerns and the state’s interest in providing redress for injury to reputation results in differing levels of protection for public and private figures. Id. To encourage active participation, the law makes it difficult for public figures, such as political candidates, to prevail in defamation suits. Requiring them to prove that a defendant acted with actual malice encourages people to comment freely on high-profile figures — who have invited attention and comment and assumed some risk of injury from defamation— without fear of liability for accidentally defamatory statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (citations omitted). On the other hand, private individuals — who have not invited public comment and are not integral to the discussion— may prevail upon a lesser showing. Id. at 342, 347, 94 S.Ct. 2997. This case requires the court to determine whether Bell was a public or private figure in the context of a congressional election. During an election, citizens engage in public discussion by pinning buttons on lapels, sticking campaign signs in yards, gluing bumper stickers on cars, and speaking out at town hall meetings. Through these and similar acts, citizens invite their neighbors to discuss political and social reform. Their stated or displayed political preference often provokes further discussion. Given the often contentious nature of political campaigns and the hunger of the media for the slightest whiff of scandal, it is hardly surprising that many citizens are repelled by the process and choose not to participate. Fortunately, others recognize the structural importance of citizen engagement in the public debate which is an election campaign. Here, Bell marginally participated in such a debate by showing support for Humphreys. He spoke one line in a television ad and posed for campaign photos. Bell did not actively campaign for Hum-phreys. Bell Dep. at 38. He appeared in the ads only as a “neighborly gesture,” and had no particular interest in the issues being discussed. Id. at 30, 33, 37-38. He chose his line solely because it was short. Id. at 30. He did not talk with the media, write editorials or letters to the editor, give press releases, or speak out at public rallies about his support for Humphreys. The Humphreys ads, pamphlets, and web site never identified him. In short, Bell simply became peripherally involved, as was his right and civic duty, in the election process. It was this involvement which lead to the NRCC’s use of his photo in its pamphlet. The pamphlet is the subject of this suit, and the court must determine how much protection is due it. 1. Limited-Purpose Public Figure Doctrine Both defamation and invasion of privacy are common law torts. Analysis of each requires the court to determine whether Bell is a limited-purpose public figure or a private individual. Since Gertz, lower courts have developed differing approaches to the limited-purpose public figure doctrine. See generally Nat Stern, Unresolved Antitheses of the Limited Public Figure Doctrine, 33 Hous.L.Rev. 1027 (1996). In West Virginia, a plaintiff is a limited-purpose public figure if the defendant proves 1) that the plaintiff voluntarily engaged in significant efforts to influence a public debate or voluntarily assumed a position that would propel him to the forefront of a public debate on a matter of public concern; 2) that the public debate or controversy and the plaintiffs involvement in it existed prior to the publication of the allegedly libelous statement; and 3) that the plaintiff had reasonable access to channels of communication that would permit him to make an effective response to the defamatory statement in question. Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548, 557-58 (1996). In determining Bell’s status, the court conducts a three-part inquiry. See Suriano, 480 S.E.2d at 558-61. First, it identifies the public controversy in which Bell was involved and determines whether it existed before the allegedly defamatory statement was made. Id. at 558. It next examines Bell’s role in that controversy and determines whether his participation sufficed to establish him as a public figure within the context of that controversy. Id. at 558-59. Finally, it determines whether Bell had reasonable access to channels of communication. Id. at 560. The emphasis of the inquiry is on the two rationales identified in Gertz: public figures, unlike private figures, have voluntarily waived their private status and have ready outlets to respond to attacks. Id. at 557. a. Public Controversy The court finds that the allegedly defamatory statement occurred within the context of a campaign, which was a controversy for the purposes of the Suriano test. An election is clearly a matter of public concern and controversy. “One is hard-pressed to identify an event more public in nature — and more essential to a free society — than an election of public officials.” Martin v. Griffin, 2000 WL 872464 (Conn.Super.2000). The congressional race was debated publicly and had foreseeable and substantial ramifications for nonparticipants. Suriano, 480 S.E.2d at 558 (quoting Waldbaum v. Fairchild Pubs., Inc., 627 F.2d 1287, 1297 (D.D.C. 1980)). The Humphreys campaign was therefore a public controversy in existence before publication of the NRCC’s pamphlet. b. Plaintiffs Role in the Controversy The next question is whether Bell’s involvement in the campaign rises to the level of “significant efforts to influence a public debate” or, stated another way, whether appearing in the ad and photos was “assum[ing] a position that would propel him to the forefront of’ the campaign. Suriano, 480 S.E.2d at 557. Bell’s involvement was limited to speaking one line in a Humphreys television ad and posing with Humphreys for photographs. The court finds that these efforts were not “significant,” nor was Bell at the forefront of the campaign. See Suriano, 480 S.E.2d at 557. Limited-purpose public figures usually have a much greater degree of involvement than Bell did here. For example, in Suriano, the plaintiff was “aggressively involved” with a debate over changes to the public health care insurance program. Id. at 558. He had written at least 50 letters to newspapers, organizations, and government officials around the state arguing for his point of view. Id. at 558-59. In Carr v. Forbes, Inc., the limited-purpose public figure plaintiff had voluntarily assumed a prominent public presence in the development of a sewer project. 259 F.3d 273, 281 (4th Cir.2001). He attended public meetings, spoke out in favor of the project, wrote editorials for local papers, and was quoted in the media. Id. Indeed “his acts created much of the controversy.” Id. In Gray v. St. Martin’s Press, Inc., the First Circuit upheld the district court’s classification of lobbyist Robert K. Gray as a limited-purpose public figure, noting that he was “one of the best-known of the high-level Washington public relations experts, an emblematic figure, and a self-professed defender against attacks on lobbying.” 221 F.3d 243, 251 (1st Cir.2000). Where plaintiffs are less involved in the controversy, courts find that they were private individuals. For example, in Hutchinson v. Proxmire, the Supreme Court found that a scientist who published his research and applied for federal funds had not assumed a role of public prominence and was therefore a private figure. 443 U.S. 111, 135, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). In Gertz, the Court concluded that publishing books and articles on legal issues and being active in local community affairs did not make the plaintiff a public figure. Gertz, 418 U.S. at 351-52, 94 S.Ct. 2997. In Nehls v. Hills-dale College, the plaintiff talked with and wrote to various journalists, including a Vanity Fair reporter, and posted a statement on the Internet. 178 F.Supp.2d 771 (E.D.Mich.2001). The court found that he had voluntarily injected himself into the public controversy, but noted that plaintiffs “position within the public controversy occupied a short blurb in a nine page article.” Id. at 778. The court found that this limited involvement did not constitute a position of prominence and held that he was a private individual. Id. Here, Bell was a volunteer in the Humphreys campaign. Simple involvement with a matter of public controversy, however, is not enough to establish one as a public figure. See Wolston v. Reader’s Digest Assoc., Inc., 443 U.S. 157, 167, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979). One rises to limited-purpose public figure status only if one thrusts oneself into the “vortex of the issue.” Gertz, 418 U.S. at 352, 94 S.Ct. 2997. Candidates are at the center of the political campaigns which swirl around them. A volunteer posing for campaign photos and speaking one line in a TV spot is hardly positioning himself at the forefront of the campaign. Id. Bell did not seek or achieve any position of great importance in the campaign. He neither sought nor had any responsibilities in the campaign. He certainly cannot be said to have had “a major impact on the resolution of a specific public dispute.” Suriano, 480 S.E.2d at 557 (citations omitted). If casting a vote is the most basic political duty of a good citizen, then expressing support for a candidate may be his most basic personal right. His expression may touch on public concerns and may be intended to affect public opinion, but a common citizen’s political speech does not thrust him into the public limelight and subject him to the same torrent of criticism that the candidates themselves must bear. Political speech is a common right commonly exercised, and the limelight is so diffused as to only rarely shine upon a given speaker. The campaign volunteer is not in the spotlight illuminating public figures. Nevertheless, the defendant argues that Bell is a limited-purpose public figure. The court disagrees. Legal recognition that such minimal engagement in a political campaign makes one a limited-purpose public figure for purposes of a defamation analysis would serve to chill citizen participation in the political process and further the lamentable trend toward public passivity. Citizens need not weigh the value of participating in the electoral process against the risk of being libeled. c. Access to Channels of Communication Finally, the court turns to the third prong of the Suriano test and determines whether Bell had reasonable access to channels of communication. See Suriano, 480 S.E.2d at 558. Bell spoke to the media on several occasions following publication of the NRCC pamphlet. According to the defendant, this activity demonstrates that Bell had access to channels of communication, thus fulfilling the third prong. However, the Fourth Circuit has held “that a person who has been publicly accused of committing an act of serious sexual misconduct that (if committed in the place of publication and proved beyond a reasonable doubt) would be punishable by imprisonment cannot be deemed a ‘limited-purpose public figure’ merely because he or she makes reasonable public replies to those accusations.” Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1558 (4th Cir.1994). Therefore, if Bell’s public comments following the pamphlet were predominantly reasonable replies to accusations of rape and child molestation, his access to channels of communications would not meet the third prong of Suri-ano. Id. For example, in Foretich, the plaintiffs and their son had been publicly accused of molesting their granddaughter. Id. at 1543. They gave interviews with national news media in which they talked about themselves and their son. Id. at 1545-49. Applying general principles of the common law on the privilege to speak in self-defense or to defend one’s reputation, the court looked to whether the Foretiches’ public comments and appearances were responsive to the attacks; proportionate to the attacks; and not excessively published. Id. at 1559-60. This analysis enabled the court to determine whether the plaintiffs’ public appearances were reasonable replies to the accusations, or efforts to assume special roles of prominence. Id. The court then determined that the test was satisfied and the Foretiches’ public comments did not remove them from the private individual category. Id. at 1563. West Virginia has adopted the Foretich approach to evaluating reasonable access to channels of communication, except that a defendant need not show that plaintiff assumed a role of special prominence in the public controversy. See Suriano, 480 S.E.2d at 558 n. 13 (“As we see it, prominence is certainly relevant to the determination of whether the plaintiff had access to communication channels — the greater one’s prominence, the greater one’s access-r-but we do not believe it is essential to securing an opportunity to make an effective response.”). Accordingly, the court will apply the Foretich test with special emphasis on the forum in which the allegedly defamatory statement occurred. Id. at 560. First, the court finds that Bell’s public appearances were responsive. Statements that deny the accusations, express one’s impressions upon first hearing, or impugn the motives of the accuser are responsive. See Foretich, 37 F.3d at 1560. Here, in local newspaper and television interviews following the .pamphlet’s distribution, Bell and his former lawyers criticized the pamphlets, reiterated the claims made in the complaint, denied that Bell was a sex offender or had ever been arrested, reported Bell’s feelings upon seeing the pamphlet, and called the mailing a malicious and irresponsible act. PI. Ex 12-15. It does not appear that Bell’s response said more than was necessary to protect his reputation or exceeded the scope of the attack. The court also finds that Bell’s response was proportional. In Foretich, the court noted that because the allegations of sexual abuse are particularly serious, “a reply would have to be truly outrageous before we would deem it ‘altogether disproportionate to the occasion.’ ” Id. at 1562 (quoting Montgomery Ward & Co. v. Watson, 55 . F.2d 184, 188 (4th Cir.1932)). Honest indignation, strong words, colorful verbiage, hyperbole, and exaggerated statements of fact are all permissible as self-defense. Id. Excessive enthusiasm or expressions of malice, however, are considered unreasonable. Id. Bell’s lawyers described the pamphlet as the reckless, irresponsible, malicious act of right-wing zealots. Some of these remarks are strong, but viewed in light of the alleged assault on Bell’s character, the court can not find they were excessive or disproportionate. See id. Finally, the court finds that Bell’s replies were not excessively published. This prong of the test requires the reply to reasonably focus on the audience which heard the attack. Where an attack is widespread, so too may be the response. Foretich, 37 F.3d at 1563. The NRCC pamphlet was mailed to nearly 75,000 West Virginians across the state. Bell’s response appeared in local newspapers and on local television stations in Charleston. Considering the large size of the NRCC pamphlet audience, Bell’s response was reasonably focused. The court also notes that Bell does not appear to have had access to channels of communication before the publication of the NRCC pamphlet. Before the pamphlet appeared, he was a retired engineer leading an anonymous life. His appearance in Humphrey ads did not change this anonymity. It was only the alleged defamation that created access to channels of communication. Thus, he “did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure.” Hutchinson, 443 U.S. at 136, 99 S.Ct. 2675. Therefore, the court holds that Bell is a private figure and will proceed to evaluate his claims with that classification in mind. 2. Libel PerSe A statement is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70, 77 (1984). Because Bell is a private figure, he must prove the following essential elements to prevail on his defamation claim; 1) defamatory statements; 2) a nonprivileged communication to a third party; 3) falsity; 4) reference to the plaintiff; 5) at least negligence on the part of the publisher; and 6) resulting injury. Id. Neither party disputes that communication was made to a third party, or that Bell is not a sex offender. First, the court must decide as a matter of law whether the challenged statements are capable of a .defamatory meaning. Dixon v. Ogden Newspapers, Inc., 187 W.Va. 120, 416 S.E.2d 237, 241 (1992). The defendant argues that Bell has not met his burden because the NRCC did not intend for the pamphlet to refer to him. Proving intent, however, is not necessary to showing that a statement is capable of defamatory meaning. See Crump, 320 S.E.2d at 77 (“[A]t least negligence on the part of the publisher” is required). The defendant also argues that Bell has not proven the first element because he has failed “to find anyone who shared his interpretation of the pamphlet.” This is irrelevant to determining whether the statement is capable of defamatory meaning. Plaintiff need prove only the element of publication; if he has shown that the statement was made to a third person, and that the statement is defamatory, harm to reputation is presumed. See Crain v. Lightner, 178 W.Va. 765, 364 S.E.2d 778, 785 (1987). The NRCC argues that “in no respect whatsoever” is it reasonable to conclude that the pamphlet’s text referred to Bell. Reply Mem. at 7. In determining whether the pamphlet is capable of defamatory meaning, the court assesses whether the text and picture imply an assertion that Bell is a sex offender. Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (assessing clear impact, general tenor and impression and finding that a newspaper headline was capable of defamatory meaning). Courts assess the meaning of an allegedly libelous statement from the perspective of a reasonable reader. McKimm v. Ohio Elections Comm’n., 89 Ohio St.3d 139, 729 N.E.2d 364, 370-71 (2000) (relying on Milkovich, 497 U.S. at 21, 110 S.Ct. 2695 and Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 513, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)). In determining the reasonableness of a recipient’s understanding, meaning is to be given to words which is normally attached to them by ordinary people. Restatement (Second) of Torts § 563 cmt. c (1977). “The defamatory imputation may be made by innuendo, by figure of speech, by expressions of belief, by allusion, or by irony or satire.” Id; Crump, 320 S.E.2d at 77. In assessing a communication, words are to be taken in context. Restatement (Second) of Torts § 563 cmt. c. “The context of a defamatory imputation includes all parts of the communication that are ordinarily heard or read with it.” Id. Libel can therefore include defamation through the publication of photographs. Crump, 320 S.E.2d at 80 (citing Wandt v. Hearst’s Chicago Amer., 129 Wis. 419, 109 N.W. 70, 70 (1906) (holding that the juxtaposition of plaintiffs photograph with an article accusing a third person of being a “suicide fiend” was a statement that the plaintiff was a suicide fiend); see also Peck v. Tribune Co., 214 U.S. 185, 188, 29 S.Ct. 554, 53 L.Ed. 960, (1909)). In Crump, the plaintiffs photograph accompanied an article about problems faced by women miners. Id. at 75. The article discussed one incident in which the women miners were stripped, greased, and sent out of the mine as part of an initiation rite. Id. The court concluded that plaintiffs allegations of defamation were sufficient to raise a genuine issue of material fact for the jury. Id. at 80. Here, the pamphlet’s headline “Humphrey’s Defended Sex Offenders” must be taken in context with the adjacent photograph depicting Humphreys standing next to an unidentified man. The court finds that a reasonable reader could conclude that the headline and the picture implied that Bell is a sex offender. Therefore, the court finds that the pamphlet is capable of defamatory meaning. Whether it actually was defamatory is a question for the jury. The court finds that Bell has produced enough evidence to create a material issue of fact as to whether the NRCC was negligent in distributing the pamphlet. He has shown that the NRCC neither knew who Bell was nor attempted to ascertain his identity before using his photo adjacent to text about child molesters and repeat rapists. McGahn Dep. at 108, 113. It was aware of the availability of pictures depicting only Humphreys, yet selected a photo showing an unidentified man and woman. Id. at 111. Finally, it is noteworthy that the original downloaded photograph showed three individuals — Humphreys, Bell, and his wife. The NRCC cropped Mrs. Bell from the photo but purposely left Bell in it. The court believes there is a genuine issue of material fact as to whether these actions constitute negligence. Finally, the court turns to the issue of injury. Where the statements are libelous per se, damages are presumed. See Milan v. Long, 78 W.Va. 102, 88 S.E. 618, 620 (1916); 50 Am.Jur.2d Libel and Slander § 146 (1995). Statements imputing serious sexual misconduct are defamatory per se because they are so obviously and materially harmful to-reputational interests. See Foretich, 37 F.3d at 1558. Bell thus meets the last element of the tort of defamation. The court finds that, viewed in the light most favorable to Bell, he has produced enough evidence to survive summary judgment on this count. 3. Invasion of Privacy West Virginia recognizes false light invasion of privacy. See Crump, 320 S.E.2d at 85. Defendant argues that because of Bell’s voluntary political activities, he had no reasonable expectation of privacy with respect to his photographs. Defendant misinterprets the law on false light. A plaintiff states a claim for false light invasion of privacy when he demonstrates publicity which places him in a false light before the pubhc. Id. at 86. For example, using another’s photograph as an illustration for an article or book with which that person has no reasonable connection, and which places the person in a false light, is actionable as an invasion of privacy. Id. (citing Leverton v. Curtis Pub. Co., 192 F.2d 974, 977 (3d Cir.1951) (finding false light invasion of privacy where the Saturday Evening Post published a photo of a child who was nearly struck by a car next to an article about pedestrian carelessness in the role of accidents); Peay v. Curtis Pub. Co., 78 F.Supp. 305, 306 (D.D.C.1948) (finding false fight where photo of honest taxi driver accompanied article about dishonest ones); Gill v. Curtis Pub., 38 Cal.2d 273, 239 P.2d 630, 633 (1952) (finding false fight where a photo of an affectionate couple was used to illustrate an article about how love at first sight was founded on sexual attraction and would be followed by divorce)). To prevail on this claim, Bell must show that the matter was untrue and highly offensive to a reasonable person. Crump, 320 S.E.2d at 87. He also must demonstrate that there was widespread publicity of the item. Id. Because he is a private figure, he need only prove that the NRCC was negligent in publishing the statement. Id. at 90. If a legitimate matter of public interest is involved, he must prove knowledge of falsity or reckless disregard for the truth. Id. This privilege is applicable only where a logical nexus exists between the plaintiff and the matter of public interest. See Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir.1980); see also Vassiliades v. Garfinckel’s, Brooks Brothers, 492 A.2d 580, 589-90 (D.C.Ct. App.1985). Here, the campaign in general, and Humphreys’ qualifications as a candidate in particular, were certainly matters of legitimate public interest. There is no nexus, however, between Bell and Humphreys’ representation of sex offenders. Publication of Bell’s photo adds nothing to the discussion of Humphreys’ candidacy. See Vassiliades, 492 A.2d at 589-90. The public’s awareness of the issues raised by the NRCC pamphlet were not enhanced in any way by the inclusion of Bell. The court therefore finds that no nexus exists between the NRCC’s statements and Bell’s inclusion in the photograph, and that the public interest privilege is not applicable. See Campbell, 614 F.2d at 397; Vassiliades, 492 A.2d. at 590. Because the public interest privilege is not applicable, Bell can prevail if he demonstrates that the NRCC was negligent in publishing the pamphlet. See Crump, 320 S.E.2d at 88. As the court found in its defamation analysis, Bell has clearly produced enough evidence for a reasonable fact finder to conclude that the NRCC was negligent. Therefore, summary judgment on this claim must be denied. C. Intentional Infliction of Emotional Distress Claim West Virginia recognizes the separate tort of intentional infliction of emotional distress. See Travis v. Alcon Labs., Inc., 202 W.Va. 369, 504 S.E.2d 419, 424 (1998). This tort, unlike defamation and invasion of privacy, requires more than negligence. Bell must show either that the NRCC acted with intent to inflict emotional distress on him or was substantially certain its conduct would have that result. Id. at 425. The court finds that Bell has produced enough evidence that the NRCC acted recklessly. While the NRCC points out that it did not intend for the headline to refer to Bell, or for the pamphlet to injure his reputation, Bell has shown that the NRCC placed a loaded headline immediately next to a picture depicting Humphreys and Bell after deliberately cropping Mrs. Bell from the photo. The court has already found that a reasonable reader could view the pamphlet as a statement that Bell is a sex offender. Therefore, a reasonable juror could conclude that the NRCC foresaw this implication and that Bell would be emotionally distressed by its publication. Bell also must demonstrate a high degree of outrageousness. See Hines v. Hills Dept. Stores, Inc., 193 W.Va. 91, 454 S.E.2d 385, 390 (1995). The court finds that being labeled a child molester and rapist may reasonably be considered outrageous. Whether it is in fact outrageous is a question for the jurors. See Travis, 504 S.E.2d at 428. Furthermore, Bell has demonstrated that he was distressed by the implications in the pamphlet. The intensity of this distress is another question for the fact finder. Id. at 430 (citing Restatement (Second) of Torts § 46 cmt. j (1965)). Accordingly, summary judgment on this claim is denied. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party and to publish the same on the court’s website at www.wvsd.uscourts.gov. . Indeed, the NRCC admits it did not know who Bell was when it downloaded the photo and published the pamphlet. McGahn Dep. at 108. . The matter of public concern here is the election, not, as plaintiff suggests, the issues raised by the NRCC pamphlet. That controversy existed before and after publication of the allegedly defamatory statement. See Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) (finding that the controversy must exist before the publication of the defamatory statements); Fitzgerald v. Penthouse Int’l., Ltd., 691 F.2d 666, 669 (4th Cir. 1982) (looking to the controversy as it existed before the defamatory statements).

PER CURIAM: Defendant-Appellant Northlake Christian School (“NCS”) appeals the district court’s order enforcing an arbitration award against NCS obtained by its former employee, Plaintiff-Appellee Pamela Prescott. We affirm the district court’s enforcement order. I. FACTS AND PROCEEDINGS NCS’s appeal is the latest chapter in its five-year-old employment dispute with Prescott; indeed, this is the second time that these parties have come before us regarding the validity of the arbitrator’s award. As we detailed the facts underlying this dispute in our Prescott I opinion, we shall not repeat them here. We shall, however, briefly review the background proceedings for the sake of clarity. After being fired from her job as principal at NCS, Prescott brought suit in the district court, alleging Title VII and various state law claims, including breach of her employment contract. After NCS moved successfully to compel arbitration, such proceedings were conducted according to the Rules of Procedure for Christian Conciliation (“Rules”) of the Institute for Christian Conciliation (“ICC”). In arbitration, Prescott prevailed on her breach of contract claim and was awarded approximately $ 150,000 in damages for reputational harms and loss of future income. In reaching his decision, the arbitrator determined that NCS had wrongfully discharged Prescott by failing to follow Biblical precepts, as required in her employment contract; specifically, the conflict resolution process described in Matthew 18. NCS immediately returned to federal district court, this time requesting vacatur of the arbitrator’s award. NCS insisted that, even though the parties’ arbitration agreement specified that proceedings would be conducted under the Rules of the ICC and the Montana Uniform Arbitration Act (“MUAA”), the parties had actually contracted for plenary judicial review of the arbitration proceedings when they struck through language in NCS’s form arbitration agreement, thereby making communications between the parties confidential and inadmissible in a court of law. The parties had also inserted a hand-written provision stating that “[n]o party waives appeal rights, if any, by signing this agreement.” NCS reasoned that, under this expanded scope of review, the district court had jurisdiction to address and hold that the arbitrator misconstrued Prescott’s employment contract as well as applicable Louisiana law. NCS also argued that the arbitrator exceeded his authority and was impermissibly biased — both grounds for vacatur under the MTJAA. The district court ruled against NCS, holding that the parties had not expanded the scope of judicial review of the arbitration proceedings and that NCS had not shown that it was entitled to vacatur under the MUAA’s narrow standard of judicial review of proceedings in arbitration. NCS appealed this ruling to us in Prescott I. Holding that the parties’ handwritten strike-outs and their insertion to their arbitration agreement were ambiguous, we vacated the district court’s order and remanded with instructions for the district court to hold an evidentiary hearing. In so doing, we directed the district court to “take evidence on and contractually interpret the circumstances surrounding the making of the provision.” On remand, the district court held an evidentiary hearing as instructed, after which it again concluded that the parties had not contractually expanded the scope of review and again ordered enforcement of the arbitrator’s award for the reasons given in its previous opinion. In the instant appeal, NCS challenges the district court’s determination that the arbitration agreement did not expand the parties’ right to judicial review on appeal. In addition, NCS now contends that it was entitled to a jury trial on the question of interpretation of the arbitration agreement, not just the making of that agreement, reiterating the contention that the district court erred in its earlier order enforcing the arbitration award in favor of Prescott. II. DISCUSSION A. The Ambiguous “Appeal Rights” Clause 1. Standard of Review We review the district court’s findings of facts for clear error. “The burden of showing that the findings of the district court are clearly erroneous is heavier if the credibility of witnesses is a factor in the trial court’s decision.” “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” 2. The Evidentiary Hearing On remand from Prescott I, the district court heard testimony from the parties as to whether, in amending their arbitration agreement, they had intended to expand the scope of any subsequent judicial review. Prescott testified that she understood at the time that she had only a limited right of appeal but that she wanted to confirm in writing that, by signing the arbitration agreement, she was not waiving or curtailing even this limited right of review. To that end, she requested that the parties include a clause stating that “No party waives appeal rights by signing this agreement.” Prescott testified further that NCS twice rejected her suggestion but finally agreed to accept her modification on the condition that the words “if any” be inserted after “appeal rights.” Boyd Leahy testified on behalf of NCS that the clause was added to preserve all appeal rights in the event that there was no successful mediation. He claimed that the words “if any” were added to the clause because, if the mediation had been successful, there would have been no appeal. NCS also argued to the district court that the conduct of the parties demonstrated their belief that they had contracted for appeal rights beyond those guaranteed by the MUAA. NCS emphasized that (1) Prescott had hired a court reporter to transcribe the entire arbitration hearing, (2) during the arbitration proceeding, the parties discussed possible appeal to the Fifth Circuit, (8) Prescott proffered evidence for consideration on appeal, and (4) she agreed to the arbitrator’s retaining custody of disputed evidence pending final appeal. The district court ruled in favor of Prescott, holding that the phrase “if any” was inserted to preserve appeal rights normally guaranteed by the MUAA. He interpreted “if any” to mean “if there are any,” a phrase that implies the possibility of none. “In other words,” ruled the district court, “the parties agreed to not waive appeal rights if there are any.” NCS’s insistence on adding the words “if any” to the contract, the court concluded, demonstrated its own concern that, without these words, Prescott might be allowed to appeal the arbitrator’s decision on grounds not permitted by the MUAA. The court stated that NCS’s explanation that “if any” referred to the possibility that there would be no appeal rights if mediation was successful “makes no sense because it is obvious that a successful mediation would mean there would be no need for an appeal.” The only reason for including language regarding appeal rights under these circumstances, reasoned the court, “was to clarify the parties’ intention in the event there was an arbitration hearing and decision.” In contrast, the district court found credible Prescott’s explanation that she was concerned that the arbitration agreement stated that “arbitration will be the exclusive remedy for this dispute and ... we may not later litigate these matters in civil court” without reference to the appeal rights available under the MUAA. And, the court disagreed with NCS’s characterization of the parties’ conduct, finding that it indicated only that they were aware that some ground for appeal was available, not necessarily that they would be entitled to plenary judicial review. NCS also cites Prescott’s communications with the ICC prior to the mediation as evidence of her intent to gain plenary appeal rights, noting that she stated in a letter protesting the ICC’s jurisdiction that she intended to participate, “reserving every right to exhaust every appeal.” This proves nothing, however; a reading of the entire letter shows that Prescott’s primary concern was her perception that the ICC was biased in favor of NCS. Her letter makes clear that she felt herself cheated out of a fair trial and considered the ICC a willing party in “this evil attempt to permanently damage my professional and personal integrity ... thus becoming a biased party supporting NCS in this action.” Prescott also referred to the ICC as “a biased party to this conspiracy to effectively strip away my guaranteed Constitutional rights.... ” The MUAA provides for vacatur of awards granted by a biased arbitrator. The district court committed no error in determining that the parties did not intend to expand the scope of judicial review. The court’s conclusion — that Prescott intended only to preserve what rights she thought she had and that NCS intended to ensure that she did not gain any appeal rights to which she was not already entitled — is plausible. Even if the court had not credited Prescott’s explanation that she wished only to preserve her rights under the MUAA and instead had credited NCS’s explanation that Prescott wanted plenary appeal rights, NCS’s insertion of the words “if any” effectively nullified any such effort on her part. Thus, when the words furnished by each party are construed against the writer, and after noting that NCS made the final change to the language, it is logical to assume that, in the final revised draft of the arbitration agreement, the parties intended nothing more than to reiterate that the appeal rights enumerated in the MUAA — and only such appeal rights — would be available to them. We affirm the district court’s ruling that the parties did not expand the scope of review available to them under the MUAA. B. Jury Trial After we remanded this case in Prescott I for an evidentiary hearing on the meaning of the contract’s wording, NCS requested a jury trial on the interpretation of the contract. The district court denied this request, noting that motions to enforce or vacate an arbitration award carry no right to a trial by jury. On appeal, NCS asserts that the FAA permits parties to demand a jury trial to resolve factual issues surrounding the making of an arbitration agreement, and that this right should also apply to interpretation of an arbitration agreement as well. Neither the FAA nor the MUAA provide for a jury trial under these circumstances. Unlike the FAA, the MUAA makes no explicit guarantee of a trial by jury at any stage of arbitration-related litigation. As for the FAA, its § 4 allows for a jury trial only'to resolve fact issues surrounding “the making of an arbitration agreement” and applies in proceedings to compel arbitration. Although the “making of an arbitration of an agreement” could be broadly construed to include any factual issue surrounding the writing of the arbitration agreement, we have not done so. In fact, we have explicitly interpreted § 4 to require that a party make “at least some showing that under prevailing law, he would be relieved of his contractual obligation to arbitrate if his allegations proved to be true.” The party must put the existence of the agreement to arbitrate itself at issue to create a jury-triable issue. NCS is not seeking a jury determination whether the parties contracted to arbitrate disputes; they clearly did. NCS seeks a jury determination only as to the meaning of particular words of the agreement that the parties acknowledge having made. In contrast, neither § 10 of the FAA (the portion governing judicial review of an arbitration award) nor any other part of the FAA explicitly authorizes jury trials on issues of interpretation of other aspects of an arbitration agreement. Obviously, NCS’s argument relates to the enforceability of the contract, an issue that we have expressly held not to be encompassed within § 4’s jury trial provision. NCS also contends that it is entitled to trial by jury by virtue of Federal Rule of Civil Procedure 38. But of course, Rule 38 only preserves the parties’ right to jury trial in cases in which the right is guaranteed by the Seventh Amendment or is provided by statute. In determining whether a party enjoys a right to a trial by jury when the statute does not expressly grant one, we examine (1) the nature of the issues involved, comparing them to actions brought in 18th century England before the merger of law and equity, and (2) the nature of the remedy sought, whether legal or equitable. “In the 18th century, an action to set aside an arbitration award was considered equitable.” And, even though NCS ultimately seeks vacatur of the arbitrator’s award for damages, it seeks a jury trial only on the issue whether it contracted to expand the scope of review of the award, not the award itself. NCS thus seeks only a declaration of its rights, not a legal award of damages. NCS enjoys neither a Seventh Amendment nor a statutory right to a trial by jury under these circumstances. Finally, in our Prescott I remand for an evidentiary hearing, we only ordered the district court “to take evidence on and contractually interpret the circumstances surrounding the making of the [review] provision.” We did not order the district court to conduct a jury trial. The district court did not abuse its discretion by declining NCS’s request for a jury trial. C. Motion to Vacate Award As the district court did not clearly err in its determination that the parties did not intend to expand their right of judicial review, we must consider whether the district court properly denied NCS’s motion to vacate the arbitration award under the narrow standard of review applicable to such an issue. NCS insists that the arbitrator’s award must be vacated because (1) he erroneously concluded that NCS had breached its employment contract with Prescott and that she was entitled to damages — conclusions that NCS contends are in conflict with Louisiana law — (2) the arbitrator exceeded his authority, and (3) the arbitrator was biased against NCS. 1. Standard of Review We review a district court’s confirmation or vacatur of an arbitration award de novo. The district court’s scope of review of an award by the arbitrator, however, is extremely limited. Although the FAA would normally provide the grounds for vacatur, in this case the parties’ arbitration agreement specifies that “[t]his agreement is subject to arbitration pursuant to the Montana Arbitration Act, Title 27, Montana Code Annotated,” which statement expresses the parties’ binding agreement that Montana’s procedural rules will govern the entire arbitration process, including the review of the award. And, the Rules of the ICC do not purport to change the scope of judicial review of its arbitration decisions, stating that “[t]he arbitration decision is final and cannot be reconsidered or appealed except as provided by Rule 41 and/or civil law.” As we noted in Prescott I, the MUAA provides substantially identical grounds to the FAA for vacatur by the district court: to wit, (a) the award was procured by corruption, fraud, or other undue means; (b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; (c) the arbitrators exceeded their powers; The MUAA does not allow for judicial review of arbitration awards on the merits of the controversy. (As NCS has not argued that the arbitrator manifestly disregarded the law, we do not consider this ground for vacatur. ) 2. Mis-interpretation of Louisiana Law NCS dedicates the bulk of its appellate brief to demonstrating that the arbitrator misconstrued both Louisiana law and the contract between the parties. NCS contends that, under Louisiana law, it did not breach its contract with Prescott and therefore cannot be hable for damages. Arbitrators have the power to decide issues of fact and law under the MUAA and, as should be obvious, neither the MUAA nor the FAA permits either the district court or this court to review the merits of the controversy underlying this arbitration award. We decline to consider NCS’s attacks on the arbitrator’s interpretation of law or fact. 3. Exceeding the Powers of the Arbitrator An arbitrator exceeds his powers when he acts outside the limits of the authority granted to him by the arbitration agreement, such as deciding issues that have not been submitted to him or acting contrary to express provisions of that agreement. As a general rule, the fact that the remedy ordered by an arbitrator is inconsistent with state law is not grounds for vacating an award. NCS argues that § 27-5-113 of the MUAA exempts employment agreements from the automatic application of many other portions of the code, including § 27-5-312(2), which states that the fact that an arbitrator has awarded damages that a court could or would not is not grounds for vacatur. Prescott responds that § 27-5-113 of the Montana Code refers only to labor agreements, as it is titled “Application to Labor Agreements.” Neither party cites any case law in support of their arguments or stating the converse, that an arbitrator’s award of damages inconsistent with state law is grounds for vacatur. As NCS’s argument appears to be in conflict with established law, we decline to adopt this expansive construction of Montana’s statute. NCS argues that the arbitrator also exceeded his powers by awarding on a matter not submitted for resolution and by awarding damages inconsistent with Louisiana law, despite the employment contract’s provision requiring that Louisiana law govern the employment relationship. An award is sustainable against a challenge that the arbitrator has exceeded his power if the award can be “rationally inferred” from the contract. That we may disagree with the arbitrator’s interpretation of both law and fact, including his determination of the kinds of damages allowed by the contract, is not a grounds for vacatur. “To draw its essence from the contract, an arbitrator’s award must have a basis that is at least rationally inferable, if not obviously drawn, from the letter and purpose of the agreement. The award must, in some logical way, be derived from the wording or purpose of the contract.” First, the statement of issues that the parties submitted to the ICC for resolution through conciliation included determina tions of, inter alia, (1) whether NCS wrongfully terminated Prescott; (2) what damages, if any, does NCS owe Prescott; and (3) how and when should damages be paid. The issues whether NCS breached Prescott’s employment contract by wrongfully discharging her, as the arbitrator ultimately found, and what damages should be awarded for that reason, were plainly placed before the arbitrator by the parties. Second, the arbitrator’s award of damages is not contrary to express contractual provisions. In contending that the award is contrary to the contract, NCS argues that, because the parties included a Louisiana choice-of-law provision in the employment contract, they agreed to have their employment relationship governed by Louisiana law. Therefore, reasons NCS, the arbitrator was limited to awarding damages that would be available under Louisiana law. The narrow scope of our review limits us to inquiring whether an award is rationally derived from the parties’ contract, or whether it is contrary to express contractual provisions. Thus, we must examine first whether the parties contracted to restrict arbitration awards to damages ordered by a court of law applying the substantive law of Louisiana. Neither the employment contract nor the arbitration agreement specifically mention, or limit, the kind of damages that may be awarded in the arbitration proceedings. Both agreements do, however, express the parties’ intention to abide by the Rules of the ICC, which specify that arbitrators may award any remedy or relief that they deem scriptural, just and equitable, and within the scope of the agreement of the parties, including, but not limited to, specific performance of a contract. In making their decisions, the arbitrators shall consider, but are not limited by, the remedies requested by the parties. We hold that the contract’s silence on limitations of damages, when contrasted with the Rules’ express, broad provision for any manner of damages the arbitrator deems acceptable, demonstrates that the arbitrator’s award of damages, even if not avail able under substantive Louisiana state law, was not expressly contrary to the parties’ contract. The arbitrator’s award is also rationally derived from the employment agreement. That contract does not state broadly that Louisiana law will govern every aspect of the employment relationship between the parties, only that “[t]his contract shall be interpreted under the laws of the state of Louisiana as if jointly authored by the parties.” More importantly, the employment contract states the overarching principle that the parties will be governed by biblical provisions, both in the substantive terms of their employment relationship and in their arbitration and mediation proceedings. Specifically, employees are required to affirm that (1) they are “Born Again” Christians, (2) they have a sense of God’s will and that their presence at NCS is at God’s direction, (3) they will manifest the highest Christian virtue and personal decorum in and out of school, and (4) they will attend and financially support a local church with fundamental beliefs that are in agreement with the doctrinal statement of Northlake Christian School. Furthermore, each employee promised to abide by the precepts of Matthew 18: 15-17 and Galatians 6:1, and to resolve all differences, including those not submitted to arbitration, according to biblical principles. This is the provision of the contract that the arbitrator held NCS to have violated, and this is the violation for which the arbitrator assessed damages against NCS. The parties thus evinced a clear desire to incorporate biblical provisions into their everyday employment dealings. Whether such a contract is sustainable under Louisiana law is not a question for this court: The parties freely and knowingly contracted to have their relationship governed by specified provisions of the Bible and the Rules of the ICC, and the arbitrator’s determination that NCS had not acted according to the dictates of Matthew 18 relates to that contract. Further, the Rules of the ICC indisputably contemplate that an arbitrator will have extremely broad discretion to fashion an appropriate remedy; and no language in the parties’ contracts expresses their intent to depart from the Rules of the ICC. We hold that the arbitrator’s award of damages is rationally derived from Prescott’s employment contract with NCS and not contrary to any express contractual provisions, either biblical or secular. Consequently, NCS is not entitled to vacatur of the arbitrator’s decision on this ground and the district court’s order enforcing the arbitration award cannot be vacated for the reasons asserted by NCS. 4. Misconduct by Arbitrator Finally, NCS asserts that the arbitrator’s award should be vacated because he participated in ex parte communications with Prescott’s counsel, neglected to hear material evidence pertinent to the controversy, and refused to disclose circumstances likely to affect partiality. NCS contends further that, under either the FAA or the MUAA, the district court had the power and duty to vacate the arbitration award because of the arbitrator’s apparent bias. NCS includes only two sentences on this argument in its brief, electing instead to direct our attention to documents that it filed in the district court, which documents NCS purports to adopt by reference in its brief. But, an appellant must include the substance of its arguments in the body of its brief: We will not consider arguments presented only in earlier filings. As we do not consider arguments that are not adequately briefed to us, we decline to entertain NCS’s assertions on this point. III. CONCLUSION The district court did not clearly err in deciding to credit Prescott’s version of events over that of NCS and, accordingly, to hold that the parties did not expand the scope of judicial review over the arbitration award. Neither did the district court abuse its discretion in refusing to order a jury trial to ascertain the meaning of the party’s hand-written addenda to their arbitration agreement, because, as a matter of law, NCS was not entitled to demand a jury trial on this or any other issue, save only the making of the contract which was not questioned. The district court correctly determined that NCS had not demonstrated entitlement to vacatur of the arbitration award on any of the narrow grounds on which a court of law may vacate such an award. The district court’s order enforcing Prescott’s arbitration award is, in all respects, AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See Prescott v. Northlake Christian Sch., 369 F.3d 491, 493 (5th Cir.2004) (hereinafter "Prescott I”). . All employment contracts at NCS require individuals to follow this process, as well as other provisions of scripture in their everyday dealings with students and other employees. . Mont.Code Ann. § 27-5-101 et seq. The parties agreed to be bound by the Rules of Procedure for Christian Conciliation of the ICC. In their arbitration agreement, the parties also agreed to conduct the arbitration proceedings according to the MUAA, which provides the relevant standard of review and other procedural requirements not covered by the ICC rules. . Although, generally, the Federal Arbitration Act (“FAA"), 9 U.S.C. § 1 ef seq., governs a federal court’s consideration of matters involving arbitration, parties are free to contract for expanded judicial review of their arbitration proceedings. Action Indus. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir.2004); Harris v. Parker Coll, of Chiropractic, 286 F.3d 790, 793 (5th Cir.2002); Gateway Technologies, Inc. v. MCI Telecommunications, Corp., 64 F.3d 993, 996-97 (5th Cir.1995). . 369 F.3d at 497-98 (emphasis added). . Prescott I, 369 F.3d at 494. We erroneously stated in Prescott I that this provision and any ambiguities therein must be construed against Prescott, as she had added the language. Id. at 497 n. 10. It is undisputed at this time that NCS added the language, “if any” to the contract, thus this language should be construed against NCS. See La. Civ.Code Ann. § 2056 ("In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.”); Lifemark Hosp., Inc. v. Liljeberg Enters., 304 F.3d 410, 440 (5th Cir.2002)(construing contract language against drafting party pursuant to Louisiana law). The parties' employment contract contained a clause providing that the contract's language should be construed according to Louisiana law; although the arbitration agreement did not contain such a provision, it is a contract entered into in Louisiana by two Louisiana parties, and therefore we employ Louisiana law in our analysis of the contractual language. Prescott I, 369 F.3d at 496. . Coury v. Prot, 85 F.3d 244, 254 (5th Cir.1996) (citation omitted). . United States v. Valencia, 44 F.3d 269, 272 (5th Cir.1995). . Leahy added, however, that he understood that he agreed to arbitration with a right of appeal in the case of mistake or unfair decision, the same right of appeal guaranteed under the MUAA. . Mont Code Ann. § 27-5-312(1)03). . See La. Civ.Code Ann. § 2056. . 9 U.S.C. § 4. . Compare MontCode Ann 27-5-115(1), (2) (directing courts to proceed summarily to the determination whether there is an agreement to arbitrate as "[s]uch an issue, when in substantial and bona fide dispute, shall be immediately and summarily tried.”) with 9 U.S.C. § 4 ("If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue.”). . 9 U.S.C. § 4 (emphasis added). . Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1154 (5th Cir.1992). "While Section 4, by its terms, applies to proceedings to compel arbitration, its provisions have been deemed applicable also in instances when the proceeding is initiated by the party seeking to avoid arbitration.” 8 James Wm. Moore et al., Moore’s Federal Practice § 38.33 (3d ed.1999). . Id. "[I]t is well-established that ‘[a] party to an arbitration agreement cannot obtain a jury trial merely by demanding one.’ ” Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 710 (5th Cir.2002) (quoting Dillard, 961 F.2d at 1154). . See Am. Heritage Life, 294 F.3d at 710 (holding that party’s argument that an arbitration agreement was unconscionable, lacked mutuality, and failed to result from a meeting of the minds did not impact the “making” of the arbitration agreement, as required by statute, because a party contesting the “making” of an agreement for purposes of § 4 must put the very existence of the contractual agreement to arbitrate at issue). . Rachal v. Ingram Corp., 795 F.2d 1210, 1214 (5th Cir.1986); 8 James Wm. Moore et al., Moore’s Federal Practice § 38 (3d ed.1999). . Tull v. United States, 481 U.S. 412, 417-18, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987). . Teamsters v. Terry, 494 U.S. 558, 566, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990) (citations omitted). . Prescott, 369 F.3d at 498 (emphasis added). . Becker v. Tidewater, Inc., 405 F.3d 257, 259-60 (5th Cir.2005)(holding that district court did not abuse its discretion by denying party’s request for jury trial when party had no independent right to jury trial and court of appeals had remanded case without instructions that district court provide such a trial). . Gateway Technologies, Inc. v. MCI Telecommunications Corp., 64 F.3d 993, 996 (5th Cir.1995). . See Hughes Training Inc. v. Cook, 254 F.3d 588, 593 (5th Cir.2001)(concluding that, despite provision in arbitration agreement stating that FAA governed motions to compel or enforce arbitration, the agreement's specific provision-stating that "the arbitration process shall be conducted in accordance with the Employment Problem Resolution Procedures” meant that ”[t]he procedural rules pertained to the entire arbitration process, which included the review of arbitration awards.”). . ICC Rule 42 (emphasis added). . 369 F.3d at 494-95. The FAA permits only strictly limited review — it has been called "the narrowest known to the law.” ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1462 (10th Cir.1995)(quoting Litvak Packing Co. v. United Food & Commercial Workers, 886 F.2d 275, 276 (10th Cir.1989)). . Mont.Code Ann. § 27-5-312. An award may also be vacated if the arbitrators refused to postpone a hearing despite sufficient cause being shown or if there was no arbitration agreement and the party participating in the hearing objected on this basis. Id. . Geissler v. Sanem, 285 Mont. 411, 949 P.2d 234, 238 (1997)(holding party unentitled to vacatur of arbitration award as it had not demonstrated that arbitrator had exceeded his power, "[ijnstead of presenting evidence to the District Court that the panel exceeded its power, Geisslers’ appeal alleged only that the panel had arrived at the wrong result.”); May v. First Nat’l Pawn Brokers, 269 Mont. 19, 887 P.2d 185, 187 (1994)(‘‘The MUAA clearly does not authorize judicial review of arbitration awards on the merits of the controversy.”). The standard is the same under the FAA. See United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987)("Courts ... do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.”); Six Flags Over Tex. v. IBEW, 143 F.3d 213, 214 (5th Cir.1998)(”The courts have no authority to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract.”); Int’l Bhd. of Elec. Workers v. Green Corp., 725 F.2d 264, 268-269 (5th Cir.1984)("We refrain from commenting on the correctness or incorrectness of the arbitrator’s factual findings and legal conclusions. That is not our function. Nor shall we impress the law of corporations, contracts, evidence, or other legal rules and concepts upon this situation and then measure the arbitrator's actions against them. We consider that to be inconsistent with the national arbitration policy and the many decisions limiting judicial oversight. What we might have done to resolve the factual and legal issues were we the deciding body is of no moment. We are not the trier of fact nor the elucidator of the bargaining agreement. The arbitrator, by active choice of the parties, exclusively performs those functions.”). . Courts reviewing arbitration awards pursuant to the MUAA or the FAA may also vacate awards if an arbitrator has demonstrated “manifest disregard” for the law, a non-statutoiy court-approved exception to these statutes. Geissler, 949 P.2d at 237-38 (holding that district courts may vacate arbitration awards if the arbitrator "is aware of a clearly governing principle of Montana law, and blatantly refuses to follow it ... ”); Prestige Ford v. Ford Dealer Computer Servs., 324 F.3d 391, 397 (5th Cir.2003)(same). . Paulson v. Flathead Conservation Dist., 321 Mont. 364, 91 P.3d 569, 574 (2004). . See supra at n. 27. . Nelson v. Livingston Rebuild Ctr., Inc., 294 Mont. 408, 981 P.2d 1185, 1187 (1999). . Paulson, 91 P.3d at 574; Terra W. Townhomes, L.L.C. v. Stu Henkel Realty, 298 Mont. 344, 996 P.2d 866, 871 (2000). . See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995)(holding that, as parties had incorporated arbitration rules permitting arbitrator to award punitive damages, such damages were permissible despite New York law prohibiting award of such damages in arbitration proceedings); Nelson, 981 P.2d at 1188 (Mont.l999)("Without reaching the merits of whether the damages were correctly awarded in the first instance, we agree that the arbitrator did not exceed his powers by awarding them. The fact that the damages might not have been awarded by a court of law is not grounds for vacating the award.”)(citing Mont.Code Ann. § 27-5-312(2)). . Mont.Code Ann. § 27-5-113. . See Paulson, 91 P.3d at 574 (holding that awards will be vacated only if not rationally related to the parties' agreement); Nelson, 981 P.2d at 1188 (stating that fact that court could not have awarded same damages as arbitrator was not grounds for vacatur in employment dispute between individual employee and company). . Terra W. Townhomes, 996 P.2d at 871; Glover v. IBP, Inc., 334 F.3d 471, 475 (5th Cir.2003). . See id. . Glover, 334 F.3d at 475 (quoting Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215, 1218 (5th Cir.1990) (internal quotation marks and citations omitted)). . The Supreme Court has rejected a similar argument in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). In Mastrobuono, the parties' contract included a New York choice of law provision in addition to an arbitration provision, stating that arbitration proceedings would be governed by the rules of the National Association of Securities Dealers ("NASD”). 514 U.S. at 58-59, 115 S.Ct. 1212. Although the NASD rules allowed arbitrators to award “damages” without reference to punitive damages, New York case law forbade arbitrators from awarding punitive damages, even though punitive damages might be awarded by a New York state court, and the parties’ contract itself was silent on the subject. Id. at 61, 115 S.Ct. 1212. The Court based its decision on an inquiry into whether the parties intended to exclude or include punitive damages from arbitration proceedings, eventually concluding that punitive damages were permissible — stating that "if contracting parties agree to include claims for punitive damages within the issues to be arbitrated, the FAA ensures that their agreement will be enforced according to its terms even if a rule of state law would otherwise exclude such claims from arbitration.” Id. at 59, 64, 115 S.Ct. 1212. Although this case differs slightly, in that NCS does not argue that Louisiana law purports to limit the kinds of damages available in arbitration proceedings, the Court made clear that the relevant inquiry was whether the parties intended to exclude punitive damages from consideration in arbitration proceedings, not whether such damages were available under state law. . Terra W. Townhomes, 996 P.2d at 871. . ICC Rule 40(b). Moreover, ICC rule 42 states that "[sjhould these Rules vary from state or federal arbitration statutes, these Rules shall control except where the state or federal rules specifically indicate that they may not be superseded.” The MUAA contains no restrictions on the amount or kinds of awards available in arbitration. . NCS appears to rely on our language in Pres'cott I to the effect that Louisiana law applies to this dispute as support for its argument that the arbitrator exceeded his powers when he awarded of damages inconsistent with Louisiana law. See 369 F.3d at 496. This argument is specious: In Prescott I, we inquired only “which state's law governs the interpretation of the arbitration contract" and decided that, consistent with the above-cited contractual language, Louisiana law governed the interpretation of the contract’s language. Id. (emphasis added). . Although dicta in Prescott I stated that the arbitrator’s decision was based on "prefatory language” in the employment agreement that applied only to the parties’ choice of arbitration and mediation rules, in fact, such language is also included within the substantive terms and conditions of employment in the employment contract. See 369 F.3d at 494 n. 2. As that dicta was not necessary to our decision in Prescott I, it has no binding effect on our instant review of the district court’s decision on remand. . See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993)(holding that appellant had abandoned arguments as "(h]e requests, in part, the adoption of previously filed legal and factual arguments in his objections to the magistrate judge’s report and in various state court pleadings. He specifically states that he will not repeat such claims. Yohey has abandoned these arguments by failing to argue them in the body of his brief.”). In Yohey, we also noted that to permit the appellant to incorporate arguments from other briefs would lengthen a brief already at the 50-page limit. Id. NCS's brief, likewise, is already quite lengthy at 62 pages. . L & A Contracting Co. v. S. Concrete Servs., 17 F.3d 106, 113 (5th Cir.1994)(holding appeal to be abandoned because appellant cited no authority in a one-page argument); Fed. R.App. P. 28(a)(9)(A)(requiring argument to contain "appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

PER CURIAM: Appealing the Judgment in a Criminal Case, Agustín Martinez-Garza raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM. Saiqing Chin petitions for review of the Board of Immigration Appeals’ order affirming the Immigration Judge’s (“IJ”) decision denying her petition for asylum and withholding of removal under the Immigration Nationality Act (“INA”) and the United Nations Convention Against Torture and Other Cruel, Inhumane, and Degrading Treatment or Punishment (“CAT”). Substantial evidence supports the IJ’s determination that Chin failed to demonstrate eligibility for asylum or withholding of removal. Accordingly, Chin’s petition is DENIED. I. Background Chin was born in 1982 in Fuzhou City, China. She testified that in April 2001, her parents borrowed approximately $10,000 from a local official in order to open a business. The business failed, and Chin’s parents were unable to repay the debt. Chin testified that the official offered to forgive the debt if Chin married his son. Chin objected to the proposal, both because she did not want to be a “piece of merchandise” and because the official’s son was “mentally retarded.” Despite Chin’s objections, her parents accepted the official’s offer and arranged the marriage. In April 2002, Chin ran away from her parents to the home of another relative. After about a week, her mother, accompanied by four village cadres, came and took her home. Chin ran away again in June 2002, this time to her sister’s home in Fuzcheng City. She stayed there for about two weeks, until her mother sent the cadres to take her home again. Chin ran away to the city of Quanzhou in September 2002. She rented a room and found work with the help of a smuggler, known as a “snakehead.” She remained in Quanzhou for three months. She testified that her parents borrowed $25,000 to pay half of the snakehead’s fee for smuggling Chin to the United States, and that the remainder of the fee would be paid over time, in part from monies that Chin earned working in the United States. Upon leaving Quanzhou, Chin traveled first to Thailand. She stayed in Thailand for about three months, then flew to Nepal, where she stayed for a week. From Nepal, she flew to India, where she stayed for another week before flying to Germany, changing planes and heading to Atlanta. Once in Atlanta, Chin attempted to enter the United States under a visa waiver pilot program using a Singapore passport that was not her own. When immigration authorities in Atlanta questioned Chin about the passport, she admitted that she was a resident of China and stated that she wished to file for asylum. On April 24, 2008, Chin submitted her application for asylum and withholding of removal, citing past persecution and a fear of future persecution by local officials on account of her political opinion against arranged marriages. At her hearing, Chin argued that the local officials had persecuted her by attempting to force her into an arranged marriage and by returning her to her family when she ran away. She also claimed that she feared future persecution because her family owed a substantial amount of money and she thought she might be forced to go through with the arranged marriage. Finally, she claimed that she would face torture if returned to China because she left the country illegally- The IJ denied Chin’s petition, finding that Chin’s claim was personal in nature and that she was an economic rather than political refugee. The IJ also found Chin’s story regarding her parents’ debt and resulting agreement to the arranged marriage “highly suspect” in light of the parents’ ability and willingness to obtain the funds to pay the snakehead. The IJ went on to hold that, even if her claims were accepted as true, Chin could not establish refugee status under the INA because she could not establish past persecution or a well-founded fear of future persecution. Finally, the IJ held that Chin did not qualify for withholding of removal under the CAT because Chin could not demonstrate that she was likely to be persecuted or tortured upon being returned to China. In support of this holding, the IJ noted that first-time returnees to China generally suffer only a fine. The Board of Immigration Appeals affirmed the IJ’s decision without issuing an opinion. II. Discussion A. Standard of Review The IJ’s factual determinations are reviewed under the substantial evidence test, and we “must affirm the [IJ]’s decision if it is supported by reasonable, substantial, and probative evidence on the record as a whole.” Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.2001) (internal quotation omitted). In other words, we reverse the agency’s decision only if “the evidence presented by [the petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). When the Board of Immigration Appeals affirms an IJ’s order without opinion, the IJ’s decision constitutes the final agency determination subject to review by this court. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1285 n. 2 (11th Cir.2005). B. Asylum An alien who arrives in, or is present in, the United States may apply for asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is defined as any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (emphasis added). The asylum applicant carries the burden of proving statutory “refugee” status. See Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the petitioner must, with specific and credible evidence, “establish (1) past persecution on account of her political opinion or any other protected ground, or (2) a ‘well-founded fear’ that her political opinion or any other protected ground will cause future persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31 (11th Cir.2005). If the petitioners demonstrate past persecution, they are presumed to have a well-founded fear of future persecution unless the government can rebut this presumption by showing a fundamental change in circum stances in the country or the ability to avoid future persecution by relocating within the country. Antipova v. U.S. Att’y Gen., 392 F.3d 1262, 1264 (11th Cir.2004). If the petitioners cannot show past persecution, then they must demonstrate a well-founded fear of future persecution that is both subjectively genuine and objectively reasonable. See Al Najjar, 257 F.3d at 1289. The subjective component can be proved “by the applicant’s credible testimony that he or she genuinely fears persecution,” while the objective component “can be fulfilled either by establishing past persecution or that he or she has a good reason to fear future persecution.” Id. (internal quotation omitted). Although the INA does not expressly define “persecution” for purposes of qualifying as a “refugee,” we have stated that “persecution is an extreme concept, requiring more than a few isolated incidents of verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231 (internal quotations omitted). In order to establish the necessary causal connection between the political opinion and the feared persecution, the petitioner must present “specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account of such an opinion.” Id. (internal quotation omitted) (emphasis in original). Furthermore, we have approved of a “country-wide requirement” in which a refugee must first pursue an “internal resettlement alternative” in their own country, or establish that this is not possible, before seeking asylum here. Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1326-27 (11th Cir.2001). Thus, in addition to estabhshing a “well-founded fear” of persecution, the alien must also establish that the persecution could not be avoided by relocating within their country. In this case, substantial evidence supports the IJ’s finding that Chin did not suffer past persecution on account of her political opinion. Chin sets forth only two incidents in which the government allegedly persecuted her, and both of these incidents occurred when local officials, either accompanied by her mother or acting upon her mother’s request, found Chin and took her home after she had run away to avoid an arranged marriage. It is not at all clear that this conduct rises to the level of persecution, nor is there any evidence of a causal link between the conduct and any political opinion, real or imputed, on the part of Chin. Additionally, substantial evidence supports the IJ’s finding that Chin failed to establish a well-founded fear of future persecution. We agree with the IJ that Chin’s claimed fear of being forced to enter an arranged marriage to satisfy her parents’ $10,000 debt is undermined by the fact that her parents were willing and able to obtain $25,000 to help Chin reach the United States, and that even if that were not the case, it is unlikely that the Chinese government would force Chin to enter and remain in an arranged marriage in order to satisfy her parents’ debt. We also agree that Chin’s concerns about the arranged marriage, even if legitimate, are not likely to persist country-wide. This is particularly so given Chin’s testimony that she lived and worked unmolested in Quanzhou for three months prior to her departure for the United States. With respect to Chin’s claim that she will be persecuted for illegally leaving China, the country reports cited in the IJ’s opinion provide substantial support for the IJ’s finding that first time returnees to China are generally only subjected to fines, not persecution or torture. Because Chin cannot demonstrate past persecution or a well-founded fear of future persecution, her petition for asylum was properly denied. B. Withholding of Removal An alien is entitled to withholding of removal under the INA if she can show that her life or freedom would be threatened on account of her race, religion, nationality, membership in a particular social group, or political opinion. Sepulveda, 401 F.3d at 1232. When attempting to make this showing, the alien bears the burden of demonstrating that it is “more likely than not” that she will be persecuted or tortured upon being returned to her country. Id. Because this is a more stringent standard, “an applicant [who] is unable to meet the ‘well-founded fear’ standard for asylum ... is generally precluded from qualifying for either asylum or withholding of deportation.” Id. at 1232-33 (internal quotation omitted). Since Chin has failed to establish past persecution or a well-founded fear of persecution sufficient to support her asylum claim, as discussed above, it logically follows that she cannot establish eligibility for withholding of removal under the heightened standard of the INA and the CAT. Upon review of the record, and having considered the briefs of the parties, we discern no reversible error. Based on the foregoing, we deny the petition. PETITION DENIED. . Because Chin’s removal proceedings commenced after April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (‘'IIRIRA”), this case is governed by the permanent provisions of the INA, as amended by IIRIRA.

ROGERS, Circuit Judge. The defendant-appellant, Bobby Bonee, appeals his conviction on charges of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Specifically, Bonee argues that the government failed to prove that Bonee possessed, either actually or constructively, the firearms which formed the basis of the charge of felon in possession of a firearm. For the following reasons, we affirm. I. Background On November 27, 2003, deputies from the Henderson County Sheriffs Department went to Bonee’s house as part of an ongoing investigation. While deputies were talking with Bonee outside of his home, it began to rain heavily. At the deputies’ request, Bonee allowed the deputies to enter his trailer and, after being advised of his Miranda rights, gave the officers permission to search the trailer. The search of the trailer led to the discovery of seven firearms located in Bonee’s bedroom in an unlocked gun cabinet. In particular, the search revealed a Remington Model 700, a .270-caliber Winchester, a Winchester Model 370 12-gauge shotgun, a Winchester single-shot Model 370 16-gauge shotgun, a Winchester Model 1300 12-gauge shotgun, a .17-caliber Marlin rifle, and a Remington Speed Master Model 552 .22-caliber rifle. After the discovery of the firearms, Bonee was transported to the Henderson County Sheriffs Department. After again being advised of his Miranda rights, Bonee gave a statement to Investigators Tolley and Stanford. At the defendant’s request, Tolley wrote the defendant’s statement “word-for-word.” Tolley testified that, after every sentence, he and Bonee went back through the statement for accuracy. After Bonee was finished with the statement, Tolley read it back to Bonee, and then let Bonee read and review the statement for accuracy. Finally, Bonee signed the statement to indicate that the information was truthful. In the statement to investigators, Bonee admitted ownership of some of the weapons. Specifically, Bonee stated: (1) that he bought the .270 from a Gene Moore, who lived in Scott’s Hill, Tennessee, about two years prior; (2) that he traded for the .22-caliber about eleven years ago; (3) that he bought one of the 12-gauge shotguns from a Jeremy Marshbanks last summer; (4) that he received the other 12- gauge shotgun as a Christmas gift when he was 15; (5) that he traded with his brother for the 16-gauge in 1988; and (6) that he traded with a boy in Crump, Tennessee for a 20-gauge firearm. Despite Bonee’s statement to the contrary, the defense presented several witnesses who testified that the guns did not belong to Bonee, but instead belonged to Bonee’s wife, Tammy Barrett. These witnesses testified as to how Barrett received the weapons and for what purposes Barrett used the weapons. At the end of prosecution’s case, and again at the end of the defense’s case, the defendant moved for a motion for judgment of acquittal. The court denied both of the defendant’s motions and sent the case to the jury. The jury returned a verdict of guilty and, on September 27, 2004, the district court entered a judgment sentencing the defendant to 51 months’ incarceration, to be followed by two years of supervised release. Bonee appeals his conviction, arguing that the government failed to prove that Bonee possessed the firearms in question. Because there was sufficient evidence to support the jury’s verdict, we affirm. II. Analysis When a conviction is attacked for insufficiency of the evidence, an appellate court must determine whether, taking the evidence in the light most favorable to the prosecution, any rational trier of fact could have found each essential element of the offense beyond a reasonable doubt. United States v. Barnett, 398 F.3d 516, 521-22 (6th Cir.2005). In this case, Bonee was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g). The essential elements of a § 922(g) violation are as follows: (1) the defendant had a previous felony conviction; (2) the defendant possessed a firearm; and (3) the firearm had traveled in or affected interstate commerce. See United States v. Walker, 160 F.3d 1078, 1087 (6th Cir.1998). The term “possession,” as it is used in § 922(g), includes actual possession and constructive possession. United States v. DeJohn, 368 F.3d 533, 545 (6th Cir.2004). “ ‘Both actual and constructive possession may be proved by circumstantial evidence.’ ” Id. (quoting United States v. Schreane, 331 F.3d 548, 560 (6th Cir.2003)). In this case, Bonee argues that there was insufficient evidence to establish the second element of the offense — that he possessed, either actually or constructively, the guns found in his bedroom. Bonee’s argument lacks merit. When viewed in the light most favorable to the government, the evidence against Bonee is sufficient to allow a reasonable juror to infer that Bonee possessed the firearms in question. The guns at issue were found in an unlocked gun cabinet in Bonee’s bedroom. While mere proximity to contraband may not be sufficient to indicate ownership, see United States v. White, 932 F.2d 588, 589-90 (6th Cir.1991), in this case, more than physical proximity tied Bonee to the firearm — Bonee admitted to the police that he owned several of the guns in question. While Bonee now attempts to downplay the significance of his confession by arguing that, because the confession was not actually written by the defendant, it was “not credible,” this court has previously upheld the admission of a confession taken in similar circumstances. See United States v. Soto, 124 Fed.Appx. 956 (6th Cir.2005) (affirming the admittance of defendant’s statement where officers read the defendant questions and then recorded the defendant’s answer .in writing). Moreover, Bonee had the opportunity to read and review the statement as recorded by the investigators, and Bonee signed the statement indicating that it accurately reflected what Bonee had told investigators. Under such circumstances, the jury was entitled to rely on Bonee’s statement that he owned several of the guns and to discount the testimony of defense witnesses who stated that the guns did not belong to Bonee, but instead belonged to Bonee’s wife, Tammy Barrett. Quite simply, Bonee’s admission that he owned several of the guns in question, coupled with the location of the guns in Bonee’s bedroom, was sufficient evidence from which a jury could infer that Bonee possessed the guns in question. See United States v. Gardner, No. 90-2182, 1991 WL 58297 (6th Cir. April 11,1991) (holding that defendant’s residency in an apartment where firearms were located, coupled with the defendant’s admission that he owned the firearms, was sufficient evidence to sustain his conviction for being a felon in possession of a firearm). Bonee’s conviction is accordingly affirmed. IV. Conclusion Because there was sufficient evidence to support the jury’s verdict in this case, Bonee’s conviction is affirmed.

PER CURIAM: Mary Casto appeals the district court’s judgment revoking her supervised release and sentencing her to fourteen months in prison. On appeal, Casto argues the district court failed to fully consider her history and characteristics, and it abused its discretion by denying her motion for modification in lieu of'revocation. We affirm. We review a district court’s judgment revoking supervised release and imposing a term of imprisonment for abuse of discretion. United States v. Davis, 53 F.3d 638, 642-43 (4th Cir.1995). In exercising this discretion, the district court must consider the factors set forth in 18 U.S.C. § 3553(a) (2000). See 18 U.S.C.A. § 3583(e) (West 2000 & Supp.2004). The district court abuses its discretion when it fails or refuses to exercise its discretion or when its exercise of discretion is flawed by an erroneous legal or factual premise. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir.1993). Our review of the record convinces us the district court fully considered Casto’s history and characteristics and did not abuse its discretion. Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

PER CURIAM: Following a jury trial, Olen Tyrone Smith was convicted of possession with intent to distribute phentermine, in violation of 21 U.S.C. § 841(a)(1) (2000), and interference with commerce by threats or violence, in violation of 18 U.S.C. § 1951(a) (2000). The district court sentenced Smith under the federal sentencing guidelines to 36 months incarceration on the § 841(a) conviction and a concurrent 71 months in prison for the § 1951(a) offense. The court also ordered Smith to pay restitution in the amount of $33,500. On appeal, Smith asserts that the district court erred by refusing to give his requested jury instructions and also erred in determining his sentence. For the reasons that follow, we affirm Smith’s convictions, but vacate and remand for resentencing. Smith was employed by Doctor Robert Keenan, who owned the Elite Weight Management Center in Towson, Maryland. As part of weight loss programs, physicians prescribe phentermine, a mild form of amphetamine, to their patients as an appetite suppressant. Dr. Keenan was registered with the Attorney General’s Office and the Drug Enforcement Administration under 21 U.S.C. § 822 (2000), and authorized to possess and prescribe phentermine, which is a Schedule IV controlled substance. Dr. Keenan owned an encapsulating machine, which was used to create phentermine gelatin capsules from bulk phentermine.' As part of his job, Smith would take bulk phentermine from Dr. Keenan’s office in Towson to Alpha Bio-Science Center in Baltimore City, where the encapsulating machine was kept. There, Smith would encapsulate the phentermine with the assistance of Robin Williams, the manager of Alpha Bio-Science. At some point, Smith began to encapsulate phentermine for another doctor, Dr. Strowhouer, using Dr. Keenan’s machine without his authorization. Dr. Ladden, an employee of Dr. Strowhouer, traveled from Media, Pennsylvania, to Baltimore City with bulk phentermine to be encapsulated. Smith performed the encapsulation of phentermine for Dr. Strowhouer on five occasions. Dr. Keenan discovered that Smith was using his machine to encapsulate phentermine for Dr. Strowhouer without his consent and confronted Smith. As retaliation, Dr. Keenan instructed Smith to “get their next batch.” On December 19, 2002, Dr. Ladden brought five kilograms of bulk phentermine to Alpha Bio-Science to be manufactured into capsules. Smith performed the encapsulation and Dr. Ladden bottled the resulting 167,000 phentermine capsules into labeled bottles. He placed the bottles into cardboard boxes. Smith and his cousin picked up the boxes and carried them outside to the parking lot. Dr. Ladden testified that he believed that Smith was taking the phentermine to Dr. Ladden’s car. Instead, Smith and his cousin placed the boxes in Smith’s vehicle. Williams yelled to Smith, telling him, “that’s not where they go.” Smith responded with a demand for more money. Williams put his hands on Smith to stop him, and Smith pushed him with a box back though the doorway and into some steel drums. Dr. Ladden testified that Smith’s cousin was standing near Smith’s car and had his hand in his coat pocket as if he had a gun. Once the boxes were loaded, Smith’s cousin left Alpha Bio-Science and took the pills to Smith’s house, where they remained in Smith’s car until the next day when Smith delivered them to Dr. Keenan. Dr. Keenan paid Smith $5000 for the capsules. Smith contends that the district court erred in its instructions to the jury as to the exception in 21 U.S.C. § 822(c), for possession of a controlled substance in the course of employment by an employee of a person authorized and registered to possess such substance. He also asserts that the court erred in refusing to instruct the jury as to a required nexus between the use of force or violence or threat of injury and the taking of property under § 1951. This court’s review of jury instructions is for an abuse of discretion. United States v. Patterson, 150 F.3d 382, 387-88 (4th Cir.1998); United States v. Brooks, 928 F.2d 1403, 1408 (4th Cir.1991). The district court’s instructions will be upheld “provided the instructions, taken as a whole, adequately state the controlling law.” Teague v. Bakker, 35 F.3d 978, 985 (4th Cir.1994). Section 822 requires persons who manufacture, distribute, or dispense any controlled substance to obtain a registration and authorization from the Attorney General. 21 U.S.C. § 822(a), (b). An exception to the registration requirements provides that “[a]n agent or employee of any registered manufacturer, distributor, or dispenser of any controlled substance [may lawfully possess a controlled substance] if such agent or employee is acting in the usual course of his business or employment.” 21 U.S.C. § 822(c). The instruction given by the court explained this exception and summarized: If you find that Mr. Smith, one, was an agent or employee of a person registered under the act at the time of his possession, and, two, that he was acting in the course of his employment for that registered person, and, three, that his conduct was in furtherance of the usual course of the registrant’s lawful professional practice, then you must find the defendant not guilty of count one of the indictment. Smith contends that the court erred in adding the third requirement — that the conduct needed to be “in furtherance of the usual course of the registrant’s lawful professional practice” in order for the jury to find that Smith’s possession of the phentermine was lawful under § 822. He argues that his theory of defense was that he was employed by Dr. Keenan and acting pursuant to his instructions when he took the phentermine capsules from Dr. Strowhouer. He asserts that he was therefore lawfully in possession of the controlled substance and cannot be convicted of possession with intent to distribute under 21 U.S.C. § 841(a). See 21 U.S.C. § 822(c). By adding the requirement that Smith’s “conduct was in furtherance of the usual course of the registrant’s lawful professional practice” in order that the jury find him not guilty, Smith contends that the court misstated the law and allowed the jury to convict him even if he did not know that Dr. Keenan’s instructions and directions were unlawful and even if he believed that he was acting “in the usual course of his business or employment.” See United States v. Lewis, 53 F.3d 29, 32 (4th Cir.1995). To qualify under the employee or agent exception to registration under § 822, the person must be employed in the “legitimate distribution chain” of the controlled substance. See United States v. Pruitt, 487 F.2d 1241, 1244 (8th Cir.1973). Any possession or distribution outside of the legitimate distribution chain is unlawful. United States v. Vamos, 797 F.2d 1146, 1151-52 (2d Cir.1986). Thus, if the possession is not in the “usual course of the registrant’s lawful professional practice,” then it is not in the legitimate chain of possession and therefore not within the § 822(c) exception. See United States v. Hill, 589 F.2d 1344, 1350 (8th Cir.1979) (holding that mere fact that defendant was employee of company registered to possess and distribute controlled substances does not make otherwise unlawful conduct lawful). Here, Smith was directed by his employer to take the phentermine capsules from Dr. Strowhouer without his consent. This taking resulted in Smith’s possession of the phentermine outside the legitimate chain of distribution. We find that the district court’s instructions, “taken as a whole, adequately state the controlling law.” Teague, 35 F.3d at 985. Thus, the court’s inclusion of the requirement that the conduct be “in furtherance of the usual course of the registrant’s lawful professional practice” does not amount to an abuse of discretion. Id. Smith also challenges the court’s refusal to instruct the jury as to a nexus requirement between the taking of the property and the threat or use of force under 18 U.S.C. § 1951(a). Smith requested that the court include this instruction: There must be a nexus between the taking of the property and the threat or use of force. The use or threat of force subsequent to the taking of the goods does not constitute robbery. In proposing this instruction, Smith cited United States v. Smith, 156 F.3d 1046, 1056 (10th Cir.1998), in which the Tenth Circuit held that a threat or force or injury that occurred in the escape, rather than during the taking of the property, was insufficient to show that the taking was accomplished by means of force or threats. Id. at 1056. The court did not give this instruction, but instructed the jury that “[r]obbery is the unlawful taking or obtaining of personal property of another against his will by means of actual or threatened force, violence, or fear of injury immediately or in the future to person or property.” The court also explained that the taking of the property must be “by means of actual or threatened force, violence, or fear of injury.” The court added, “[a]s I have instructed you, you must determine whether the defendant knowingly and willfully threatened to use force, violence or fear to unlawfully obtain the property.” Smith asserts that any force or injury that occurred in this case occurred in the escape, rather than during the taking of the property, and thus the evidence was insufficient to show that the taking was accomplished by means of force or violence. See Smith, 156 F.3d at 1056. We find that the court’s instructions, as a whole, adequately stated the controlling law. See Teague, 35 F.3d at 985. Smith’s contention that the jury could have found that he pushed Williams after the taking of the property, is belied by Smith’s own testimony. Notably, Smith testified that he pushed Williams while he was in the act of placing the boxes of phentermine capsules in his vehicle: I loaded the other two [boxes] into the truck. As I was putting them down, Robin Williams grabbed me on my shoulder. Q. And what, if anything, did you then do? A. I told Robin to get his hands off of me and that if I have got to — If I have to turn around, it’s going to be problems. Robin Williams still grabbed my shoulder and said, “No. What are you doing. You can’t do this.” And then, from there, I proceeded to turn around, and I shoved him. Additionally, Smith admits, in his appeal brief, that he “pushed [Williams] with a box back through the doorway into some steel drums.” (Appellant’s Br. at 6). In light of these admissions, we conclude that the requested instruction was not required by the evidence. Thus, we find that the district court’s refusal to give Smith’s nexus instruction was not an abuse of discretion. See Teague, 35 F.3d at 985. Accordingly, we affirm Smith’s convictions. Citing United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Smith argues for the first time on appeal that his sentence is unconstitutional because it was based on facts that were neither charged in the indictment nor found by the jury beyond a reasonable doubt. In Booker, the Supreme Court held that the federal sentencing guidelines’ mandatory scheme — which provides for sentencing enhancements based on facts found by the court — violated the Sixth Amendment. Id. at 746 (Stevens, J., opinion of the Court). The Court remedied the constitutional violation by making the guidelines advisory through the removal of two statutory provisions that had rendered them mandatory. Id. at 746 (Stevens, J., opinion of the court); id. at 756-57 (Breyer, J., opinion of the Court). In United States v. Hughes, 401 F.3d 540 (4th Cir.2005), this court held that a sentence enhanced based on facts found by the court, rather than upon facts found by the jury or admitted by the defendant, constitutes plain error that affects the defendant’s substantial rights and warrants reversal. Id. at 547-48 (citing United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In light of Booker and Hughes, we find that the district court plainly erred in imposing a sentence under the federal sentencing guidelines as they existed prior to Booker. Therefore, although we affirm Smith’s convictions, we vacate his sentence and remand for proceedings consistent with Hughes. Id. at 546 (citing Booker 125 S.Ct. at 764-65, 767 (Breyer, J., opinion of the Court)). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED . As we noted in Hughes, 401 F.3d at 545 n. 4, “[w]e of course offer no criticism of the district judge, who followed the law and procedure in effect at the time” of Smith’s sentencing. See generally Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (stating that an error is "plain” if "the law at the time of trial was settled and clearly contrary to the law at the time of appeal”). . Although the Sentencing Guidelines are no longer mandatory, Booker makes clear that a sentencing court must still "consult [the] Guidelines and take them into account when sentencing." 125 S.Ct. at 767. On remand, the district court should first determine the appropriate sentencing range under the Guidelines, making all factual findings appropriate for that determination. Hughes, 401 F.3d at 546. The court should consider this sentencing range along with the other factors described in 18 U.S.C. § 3553(a) and then impose a sentence. Id. If that sentence falls outside the Guidelines range, the court should explain its reasons for the departure as required by 18 U.S.C. § 3553(c)(2). Id. The sentence must be “within the statutorily prescribed range and ... reasonable.” Id. at 547.

DECISION GOETTEL, District Judge. This is wrongful termination and employment discrimination action brought by plaintiff, Sherri Swihart, against her former employer, defendant Pactiv Corp., and against defendants Tenneco Packaging (formerly known as Tenneco Inc.), and Tenneco Automotive Inc. (formerly known as Tenneco Inc.). Plaintiff claims that she was discriminated against on the basis of her gender, and was then discharged in retaliation for her objection to certain discriminatory practices. The Complaint contains six claims for relief. The first and second claims allege retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) and in violation of 42 U.S.C. § 1981 (“Section 1981”). The third claim alleges discrimination on the basis of gender in violation of Title VII. The fourth claim alleges discrimination on the basis of gender in violation of the Equal Pay Act, 29 U.S.C. § 206(d) (the “EPA”). The fifth claim alleges that plaintiffs termination and defendant’s continued retaliation thereafter violated public policy. Defendant have moved for summary judgment on five of the six counts of the Complaint. For the reasons set forth below and in footnote 1 above, defendant’s motion [Doc. # 33] is GRANTED in part and DENIED in part. 1. Summary Judgment Standard A motion for summary judgment may not be granted unless the Court determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is “genuine” if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it may affect the outcome of the suit under governing law. Id. The burden of demonstrating the absence of a genuine dispute as to a material fact rests with the party seeking summary judgment, in this case defendant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Defendant must identify those portions of the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celo-tex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party’s case, and the elements on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The nonmovant, plaintiff, “must do more than present evidence that is merely colorable, conclusory, or speculative and must present ‘concrete evidence from which a reasonable juror could return a verdict in [her] favor ... ’ ” Alteri v. General Motors Corp., 919 F.Supp. 92, 94-95 (N.D.N.Y.1996) (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505). In assessing the record to determine whether there are any genuine issues of material fact, the Court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997). Additionally, the Second Circuit has held that a district court should exercise particular caution when deciding whether summary judgment is appropriate in an employment discrimination case. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994). Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer’s documents, a trial court must be particularly cautious about granting summary judgment when the employer’s intent is at issue. Affidavits and depositions must be scrutinized for circumstantial evidence which, if believed, would show discrimination. Id. Accordingly, we set forth the facts in the light most favorable to plaintiff. II. Facts The Court accepts the following facts as true, except where noted, for the purposes of defendant’s motion for summary judgment. Plaintiff was employed in April 1997 by Tenneco Packaging. (Defs.’ Rule 9(c)l Statement of Facts ¶ 18.) There is a dispute as to whether plaintiff was hired as a temporary employee and later offered a permanent position, or whether she was hired to replace Thomas Ryer (“Ryer”), who had been in charge of human resources at the packaging plant. (Defs.’ ¶¶ 15, 17; Pl.’s ¶¶ 15, 17.) It is undisputed, however, that when plaintiff was hired by Carl Santoro, manager of the packaging plant, she started in a temporary capacity in April 1997 and was offered “regular” employment three months later. (Defs.’ ¶¶ 17, 34; Pl.’s ¶ 17.) Plaintiff accepted defendant’s offer of $30,000 per year. (Pl.’s ¶ 37.) Initially, Santoro offered plaintiff a position as “Manufacturing Support Specialist,” the lowest of the three generic titles at Tenneco used for “exempt” administrative staff. (Defs.’ ¶ 35.) There is a dispute as to what title Santoro then offered plaintiff, but the record is clear that she was ultimately given the title “Management Team Specialist.” (Pl.’s ¶ 36.) There are several other disputed facts relating to plaintiffs employment and her and Ryer’s duties and work experience. Santoro’s behavior toward plaintiff or in her presence or toward other minority employees is also disputed. (Defs.’ ¶¶ 48, 49, 98; Pl.’s ¶¶48, 49, 98.) During her tenure at Tenneco Packaging, plaintiff talked to Santoro about two employees’ salaries and discussed with him the possibility of giving those employees an increase. (Defs.’ ¶¶ 76, 89.) There is a dispute as to whether plaintiff discussed the employees’ race or gender with Santo-ro or anyone else or whether she discussed the salaries or job classifications of any other employees with Santoro. (Pl.’s ¶ 94, 97, 102.) The reasons for certain salary discrepancies at the plant are also disputed. (Defs.’ ¶¶ 26, 27, 31, 32, 39; Pl.’s ¶¶26, 27, 31, 32, 39.) Towards the end of 1997, Geoffrey Grue-lich (“Gruelich”), Tenneco Packaging’s Area Manufacturing Manager, concluded that the plant’s fixed costs were too high and directed Santoro to reduce overhead costs, which included salaries. (Defs.’ ¶¶ 50, 51.) Ultimately, Gruelich approved Santoro’s decision to eliminate three positions at the plant, including plaintiffs. (Defs.’ ¶ 62.) How Santoro reached that decision (the steps he took and the factors he took into account) is in dispute. (Defs.’ ¶¶ 52-59; Pl.’s ¶ 52-59.) Defendant’s contention that Gruelich was not aware of plaintiffs complaints about wage levels at the plant is also disputed. (Pl.’s ¶ 63.) After plaintiffs position was eliminated, no one was hired to replace her; instead, her duties were simply divided up among the existing staff. (Defs.’ ¶ 67.) Plaintiff seems to suggest, however, that someone might have been hired to replace her some time later but does not provide any evidence to support this allegation. (PL’s ¶ 70.) III. Discussion a. Title VII and Section 1981 Retaliation Claims Defendant has moved for summary judgment on Claims I and II of the Complaint as to Tenneco Packaging on the ground that plaintiff cannot establish a prima facie case of retaliation under Title VII and Section 1981. Defendant also as serts that it has provided sufficient admissible evidence that it had legitimate, nondiscriminatory reasons for terminating plaintiff. Title VII protects not only plaintiffs underlying right to be free from certain forms of discrimination, but also her right to complain about treatment that she perceives as violating that right. The McDonnell Douglas burden-shifting framework is used to evaluate Title VII retaliation claims as well as discrimination claims. Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); Sumner v. United States Postal Serv., 899 F.2d 203, 208 (2d Cir.1990). Under this framework, plaintiff has the initial burden of production and she must demonstrate that (1) she engaged in an activity protected by Title VII; (2) her employer was aware of that activity; (3) she suffered an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir.2001); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996). As with discrimination claims, once plaintiff establishes her prima facie case, the burden shifts to defendant to present a legitimate, non-retaliatory reason for the adverse employment action. Then, if satisfied, the burden shifts back to plaintiff to show that defendant’s explanations are pretext for the true discriminatory motive. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir.1996). Plaintiffs evidence, including that establishing her prima facie case, must show circumstances that would be sufficient to permit a rational finder of fact to infer that her termination was more likely than not based in whole or in part on retaliation. Reeves, 530 U.S. at 143, 120 S.Ct. 2097; Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir.1997); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir.1995). Defendant argues that plaintiff did not engage in a protected activity because she did not raise the issues of gender or racial discrimination when she complained that certain employees were being underpaid. However, defendant has not established that there is no. material issue of fact on this point. Plaintiff claims that it was clear that she believed that discrimination was the reason certain employees were being underpaid. (Pl.’s Mem.Opp.Summ.J. at 6.) Defendant also argues that even if she did engage in a protected activity, plaintiff has not shown that defendant was aware that she was engaging in such activity. Plaintiff has produced evidence that she made defendant aware that she was complaining about the fact that certain employees were being paid less than other employees and that race and gender seemed to be a factor. (Id. at 7-8.) The question of whether plaintiff was engaging in a protected activity and whether defendant was aware that she was doing so appears to be a material issue of fact in dispute. Defendant also argues that it has produced evidence that plaintiff was terminated for legitimate, non-retaliatory reasons. However, plaintiff has also produced evidence that, under the circumstances, could lead a reasonable jury to conclude that defendant’s economic reasons for eliminating plaintiffs job were merely pretextual and that retaliation was a factor in defendant’s decision to terminate plaintiff. (Pl.’s Mem.Opp.Summ.J. at 9-11.) In sum, drawing all inferences in her favor, we hold that plaintiff has set forth sufficient evidence to raise a triable issue of fact as to whether her being terminated was in retaliation for her complaining about discriminatory practices at the plant. Accordingly, defendant’s motion for summary judgment on Claims I and II is denied. b. Title VII Gender Discrimination Claim Plaintiff alleges that she was discriminated against because of her gender in violation of Title VII in that she was paid less than male employees performing jobs with equal responsibility and requiring equal skill. Plaintiffs initial burden of making out a prima facie case of discrimination is very similar to that for retaliation claims. She must show that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, (4) under circumstances giving rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817; Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir.1998). Despite defendant’s contention to the contrary, we find that plaintiff has indeed established the fourth element of her pri-ma facie case. She has met her de minim-is burden of showing circumstances that would allow a rational fact finder to infer that defendant had a discriminatory motive in paying her less than her male predecessor, Ryer. Defendant may rebut plaintiffs prima facie case by producing evidence to show a legitimate, non-discriminatory business reason for the disparity in salary. Dister v. Continental Group, Inc., 859 F.2d 1108, 1115 (2d Cir.1988). Defendant need not prove this point at this stage but must provide “clear and specific” explanations to dispel the inference of discrimination raised by plaintiffs prima facie case. Id. (quoting Mein v. Dacon, 759 F.2d 989, 997 (2d Cir.1985)). Defendant relies on the broad assertion that plaintiffs salary was determined by a combination of factors, including her background and skills, and the duties of the job. However, defendant’s proffered explanation is inadequate to dispel the inference of discrimination for the purposes of this summary judgment motion. Defendant provides no clear explanation for why plaintiffs salary was set as low as it was nor why it continued to be significantly lower than Ryer’s, even after a 9.3 percent raise in August 1997. There is a material issue of fact as to whether plaintiff was hired to replace Ryer and whether her duties were substantially similar to Ryer’s duties. (Pl.’s Mem.Opp.Summ.J. at 2-5.) Similarly, there is a material issue of fact as to whether defendant’s proffered non-gender-related reasons for the salary discrepancy were merely a pretext for a discriminatory motive. (Id.) Accordingly, defendant’s motion for summary judgment on Claim III is denied. c. Equal Pay Act Claim Plaintiff has also alleged a violation of the Equal Pay Act (the “EPA”), 29 U.S.C. § 206(d). The EPA prohibits employers from discriminating among employees on the basis of gender by paying higher wages to employees of the opposite sex for “equal work.” Belfi v. Prender-gast, 191 F.3d 129, 135 (2d Cir.1999). In order to set forth a prima facie case of salary discrimination under the EPA, plaintiff must demonstrate (1) that the employer pays different wages to employees of the opposite sex; (2) that the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) that the jobs are performed under similar working conditions. Id. Unlike Title VII, however, the EPA does not require plaintiff to establish an employer’s intent. Id. at 135-36. Once plaintiff makes out a prima facie case of discrimination, the burden then shifts to defendant to demonstrate that the wage disparity is due to a seniority system, a merit system, a system which measures earnings based upon quantity or quality of production, or a differential based on any factor other than sex. Ryduchowski v. Port Auth. of New York and New Jersey, 203 F.3d 135, 142 (2d Cir.2000). Once defendant proves that the wage disparity is justified by one of the four affirmative defenses of the EPA, plaintiff may counter by producing evidence that the reasons defendant seeks to advance are actually a pretext for gender discrimination. Id. It is undisputed that plaintiff and Ryer were paid different wages. However, as discussed above, there is a genuine dispute as to whether plaintiff was hired to replace Ryer and whether plaintiffs skills, experience and responsibilities were substantially the same as Ryer’s. The Court concludes that the issues of whether plaintiff and Ryer performed equal work on jobs requiring equal skill, effort, and responsibility, and whether the jobs were performed under similar- working conditions, depend on the resolution of factual issues not appropriate for summary judgment at this time. Accordingly, defendant’s motion for summary judgment on Claim IV is denied. d. Termination in Violation of Public Policy Claim Connecticut recognizes a common-law cause of action for wrongful discharge based on a violation of public policy. See Dallaire v. Litchfield County Ass’n for Retarded Citizens, Inc., No. 3:00cv1144 (GLG), 2001 WL 237213, at *3 (D.Conn.2001); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385, 388-89 (1980); Thibodeau v. Design Group One Architects, LLC, 64 Conn.App. 573, 781 A.2d 363, 366 (2001). However, such a public policy cause of action is only available when a plaintiff is otherwise without a remedy. Burnham v. Karl and Gelb, P.C., 252 Conn. 153, 745 A.2d 178, 183 (2000) (citing Atkins v. Bridgeport Hydraulic Co., 5 Conn.App. 643, 501 A.2d 1223, 1226 (1985)). In this ease, plaintiff has alleged that she was terminated in retaliation for complaining about discriminatory practices at the plant, which, if true, would violate important public policies embodied in Title VII. As defendant correctly asserts, because plaintiff already has an adequate statutory remedy, this Court will not recognize a separate claim for wrongful discharge in violation of public policy. The public policy against retaliation is adequately vindicated through Title VII and the remedies available thereunder. See Dallaire, 2001 WL 237213, at *4. Therefore, we grant defendant’s motion for summary judgment as to the Claim V of plaintiffs complaint. IV. Conclusion For the reasons set forth above, defendant’s motion for summary judgment [Doc. #33] is GRANTED in part and DENIED in part. Summary judgment is GRANTED in favor of defendant Pactiv as to Claim V. Summary judgment is GRANTED in favor of defendants Tenne-co Inc. and Tenneco Automotive Inc. as to all claims. Defendant’s motion is DENIED as to Claims I, II, III and IV against defendant Pactiv. This case will be added to the Summer 2002 Trial Calendar. SO ORDERED. . Plaintiff was employed from April to December 1997 by Tenneco Packaging, which was then a subsidiary of Tenneco Inc. In 1999, Tenneco Packaging was spun off by Tenneco Inc. and the new entity was named Pactiv Corp. At the time of plaintiff's employment, Tenneco Automotive Inc. was a separate subsidiary of Tenneco Inc. Tenneco Inc. and Tenneco Automotive did not hire plaintiff, and they did not have any control over the human resources policies or employment decisions of Tenneco Packaging (now known as Pactiv Corp.). (Defs.' Rule 9(c) 1 Statement of Facts ¶¶ 5 — 11.) Defendants have moved for summary judgment on the Complaint as to defendants Tenneco Inc. and Tenneco Automotive on the ground that these entities were not plaintiff's "employer” and were not involved in any of the employment decisions or policies at Pactiv. Plaintiff agrees with defendants on this point. Consequently, the Court grants defendants’ motion for summary judgment on all counts with respect to Tenneco Inc. and Tenneco Automotive. Since this decision relates only to Pactiv, defendant is hereinafter referred to in the singular. Furthermore, any reference in this decision to Tenneco Packaging is a reference to the entity now known as Pactiv Corp. . The sixth claim seeks attorneys' fees and experts' fees pursuant to 42 U.S.C. §§ 1981, 1981(a). . Defendant' Rule 9(c) 1 Statement of Facts is hereinafter referred to as "Defs.' 11_” Plaintiff's Rule 9(c)2 Statement of Facts is hereinafter referred to as "PL's ¶._.." . For example, defendant has characterized Ryer as a "manager,” a fact that plaintiff disputes. According to plaintiff, Ryer's title was "Manufacturing Team Specialist” and he was earning approximately $40,000 in early 1996. (Pl.’s ¶¶ 27, 30.) Defendant claims that plaintiff had no human resources experience prior to working for Tenneco Packaging. (Defs.’ ¶ 16.) Plaintiff disputes this by pointing out that she had managed other employees during her career. (Pl.’s ¶ 16.) Defendant alleges that Santoro did not consult with anyone else at Tenneco Packaging when setting plaintiff’s salary, nor did he review any salary grades; instead, he set her starting salary based on the responsibilities of the position and what he perceived the market to be at the time. (Defs.' ¶¶ 38, 39.) Plaintiff has produced evidence, however, that Santo-ro was at least aware that the salary range for Mr. Ryer’s "Manufacturing Team Specialist” position was between $35,128 and $52,681. (PL's ¶ 38.) . Plaintiff also brings to the Court’s attention certain discriminatory remarks about women made by Santoro to another co-worker. (Pl.’s Mem.Opp.Summ.J. at 6.) However, these remarks occurred long after plaintiff's termination, and they shed no light on whether Santoro’s decision in setting plaintiff's salary was motivated by any kind of discriminatory intent. Therefore, they are not relevant to plaintiff's discrimination claim. . Section 1981 provides, inter alia, that "[a]ll persons ... shall have the same right in every State and Territory to make and enforce contracts, ... and to the full and equal benefit of all laws ... as is enjoyed by white citizens...." The Second Circuit has held that white persons have standing to sue under Section 1981 for injuries resulting from retaliation for their activities in vindicating the Section 1981 rights of non-white minorities. Pettman v. U.S. Chess Federation, 675 F.Supp. 175 (S.D.N.Y.1987) (citing DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir. 1975)). Plaintiff's Claim II survives defendant’s summary judgment motion because plaintiff has raised material issues of fact as to whether she was terminated because of her actions in advocating the Section 1981 rights of black and Hispanic co-workers.

PER CURIAM. William Bernard Crews, a federal prisoner proceeding pro se, appeals the denial of his petition for writ of habeas corpus, 28 U.S.C. § 2241. He argues that the district court erred in finding that he had failed to show that 28 U.S.C. § 2255 was inadequate or ineffective for testing the legality of his detention. For the reasons stated more fully below, we affirm. Crews, serving a 188-month prison term for conspiracy to possess with intent to distribute controlled substances, 21 U.S.C. § 846, claimed in his petition that his sentence, imposed after he pled guilty, violated the Ex Post Facto Clause of the Constitution because his sentence was considered “non-paroleable” under an amended version of 21 U.S.C. § 846 that had not been operative at the time he committed his offense. Therefore, he argued the Bureau of Prisons was improperly computing his sentence by applying the non-parole provisions of a statute that should not apply to his conviction. In his petition, Crews admitted that he had (1) never filed a direct appeal of his sentence or conviction and (2) previously filed two separate motions to vacate, alter, or amend his federal sentence pursuant to 28 U.S.C. § 2255, each time arguing that he should have been “sentenced under the old law.” Both of his § 2255 motions were denied. Crews’s brief in support of his petition stated that (1) he was charged with distributing cocaine base between March 12, 1986, and April 1988; (2) on April 4, 1990, he entered into a plea agreement indicating that he faced a prison term of 10 years to life; (3) on March 12, 1991, he was sentenced pursuant to U.S.S.G. § 2Dl.l(a)(3) to 188 months’ imprisonment; (4) his two previous § 2255 motions had been dismissed; (5) he had attempted to seek administrative relief from the Bureau of Prisons (“BOP”), arguing that his sentence should be corrected because his sentence was imposed under the “new” penalty provisions of 21 U.S.C. § 846, as amended by Congress effective November 18, 1988, instead of the “old” version of 21 U.S.C. § 846, in force at the time his conduct of conviction had ended; and (6) as a result of the BOP’s continued use of the “new” instead of the “old” law, he was being rendered ineligible for parole or good time for parole in violation of his rights. A magistrate issued a report and recommended that Crews’s petition be dismissed with prejudice. The magistrate found that, on July 1, 1992, Crews had filed a § 2255 motion to vacate, claiming ineffective assistance of counsel and that he “should have been sentenced under the old law.” It further found that, based on Crews’s pleadings, Crews had filed a second motion or petition alleging that he should have been sentenced under the “old law,” but it was impossible to discern from the documents the court had whether Crews was referring to a second § 2255 motion or a § 2241 petition that Crews had filed in the Northern District of West Virginia, which was denied as a successive § 2255 motion and dismissed without prejudice. The report found that the issue presented was whether the “savings clause” of § 2255, which permits a federal prisoner to seek § 2241 habeas relief when a motion to vacate is “inadequate or ineffective to test the legality ... of detention,” afforded Crews any relief. It found that the clause did not, as Crews’s claim failed to satisfy any of the criteria for permitting a § 2241 petition under the “savings clause” of § 2255. The report concluded that Crews’s claims were the same claims that previously had been presented and were all sentencing claims that either should have been presented at sentencing or direct appeal or were constitutional challenges that should have been raised in Crews’s § 2255 motion. Thus, the magistrate found that Crews’s petition merely sought to circumvent the restrictions imposed on successive § 2255 motions, and the savings clause did not exist for such a purpose. Therefore, the magistrate recommended that Crews’s petition be dismissed with prejudice. Crews objected to the report, arguing that he was not trying to circumvent the requirements for filing a second § 2255 motion, but that instead he was challenging the BOP’s computation/execution of his sentence, a permissible basis for a § 2241 petition, citing Martorana v. United States, 873 F.2d 283, 285 (11th Cir.1989). The district court, after conducting a de novo review of the magistrate’s report and Crews’s objections, adopted the report and recommendation, denied Crews’s petition for habeas relief, and dismissed the case with prejudice. On appeal, Crews argues that it was improper for the district court to apply AEDPA to his claim because his initial 2255 motion was filed in 1992, before AEDPA’s passage. Thus, he argues that because he was unable to file a second or successive 2255 motion claiming actual innocence of the sentence he is presently serving, any § 2255 relief is inadequate and ineffective to test the legality of his detention, and he should be permitted to file a § 2241 petition. He further contends that sentencing for conspiracies pri- or to the November 18, 1988, amendment was governed by United States v. Rush, 874 F.2d 1513 (11th Cir.1989), and that any procedural default for failing to raise his claims on direct appeal or in a § 2255 motion is overcome because he is actually innocent of the sentence he agreed to in his plea agreement. Crews also argues that the sentencing provisions to which he pled in his agreement represented a version of 21 U.S.C. § 846 to which he could not have pled guilty because those sentencing provisions did not exist at the time he committed his offense. Lastly, Crews argues in his reply brief that the government’s attempt to construe his § 2241 petition as a second or successive § 2255 motion should be dismissed because it would be an unfair retroactive application of AEDPA, citing In re Jones, 226 F.3d 328 (4th Cir.2000). (Id.). He then restates his original arguments. (Id. at 2-4). We review de novo a district court’s denial of habeas relief under § 2241. Skinner v. Wiley, 355 F.3d 1293, 1294 (2004). While 28 U.S.C. § 2255 is the primary method of collateral attack for federal prisoners, it is possible for a federal prisoner to attack his conviction and sentence through § 2241 as opposed to § 2255. Pursuant to the “savings clause” of 28 U.S.C. § 2255: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255 5 (emphasis supplied). Thus, a § 2241 petition attacking custody resulting from a federally imposed sentence may only be entertained if the petitioner establishes that the remedy provided for under § 2255 is inadequate or ineffective. See McGhee v. Hanberry, 604 F.2d 9, 10-11 (5th Cir.1979) (holding that a prior unsuccessful § 2255 motion is insufficient on its own to establish the ineffectiveness of § 2255 remedies). The burden of showing the inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner. Id. at 10. We have held that to determine whether a § 2255 motion is inadequate or ineffective to test the legality of prisoner’s detention under the “savings clause,” a prisoner must show: (1) that [his] claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, (3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner’s trial, appeal, or first § 2255 motion. Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.1999). Like in Wojford, Crews “had a procedural opportunity to raise ... his claims and have [them] decided either at trial or on appeal.” Id. at 1245. Therefore, under Wofford, Crews “is attempting to use § 2241 simply to escape the restrictions on second or successive § 2255 motions.” Id. Crews has failed to point to any Supreme Court or Circuit decision, retroactive or otherwise, indicating that he was convicted for a non-existent crime and, therefore, actually innocent. See Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir.2003) (applying the test from Wojford and concluding that a petitioner, under the “non-existent offense” prong must demonstrate that he is actually innocent). However, Crews urges us to follow. In re Jones, 226 F.3d 328 (4th Cir.2000) and Fiore v. White, 528 U.S. 23, 120 S.Ct. 469, 145 L.Ed.2d 353 (1999). Neither is apposite to this case. The Fourth Circuit in Jones first addressed whether the application of AEDPA’s gatekeeping provisions for filing second or successive applications was impermissibly retroactive where a prisoner had filed his first § 2255 motion prior to the enactment of AEDPA. Jones, 226 F.3d at 331. The Fourth Circuit held it was not because the petitioner there failed to demonstrate any reliance on the continued existence of pre-AEDPA law or that he might have acted differently had he known that any subsequent § 2255 motion would be subject to the new gatekeeping provisions. Id. at 332. The same is true in the instant case, and the applica tion of AEDPA’s gatekeeping provisions are not impermissibly retroactive to Crews’s claims. However, applying a slightly different test than the one in Wofford, the petitioner was allowed to proceed under § 2241 because the court held that § 2255 was ineffective and inadequate to test the legality of his conviction. Id. at 333-34. The facts of Jones, however, are distinguishable in several material aspects. There, the petitioner was convicted under 18 U.S.C. § 924(c)(1) (using and carrying a firearm during and in a drug offense), filed a direct appeal, and filed a § 2255 motion prior to the passage of AEDPA. Id. at 329-30. Subsequently, the Supreme Court overruled Fourth Circuit precedent defining what the government was required to prove under the “use” prong of § 924(c)(1), but the petitioner, because of the recently enacted AEDPA, would not be able to satisfy the gatekeeping provisions of § 2255 because the new rule was not one of constitutional law. See generally Jones, 226 F.3d at 330-34. Thus, because the petitioner was “incarcerated for conduct that is not criminal” in light of the Supreme Court’s holding, § 2255 was inadequate for testing the legality of the petitioner’s conviction. Id. at 334. Unlike in Jones,. Crews never filed a direct appeal, but more importantly, and fatal to his ease, has pointed to no Supreme Court holding overruling and altering the conduct criminalized in his statute of conviction and, therefore, altering what the government must prove to secure a conviction under that statute, 21 U.S.C. § 846. The legality of his conviction, therefore, is not in question and Crews cannot show, under Jones, that § 2255 is ineffective or inadequate to test the legality of his conviction. In Fiore, a state prisoner filed a habeas petition arguing that a Pennsylvania Supreme Court decision, clarified the law in existence at the time of his conviction and, under the clarified law, the state had failed to prove a necessary element of the crime for which he was convicted. Fiore, 528 U.S. at 24-25, 120 S.Ct at 470-71. The United States Supreme Court did not decide the case, but certified a question to the Pennsylvania Supreme Court to determine whether that Court’s opinion at issue articulated a new rule of law or merely clarified the existing law at the time of the petitioner’s conviction. Id. at 29, 120 S.Ct. at 473. The Pennsylvania Supreme Court responded, indicating that its opinion had merely clarified existing law and, therefore, the United States Supreme Court held that the petitioner’s conviction was invalid because a necessary element of the crime had not been proven. Fiore v. White, 531 U.S. 225, 228-29, 121 S.Ct. 712, 714, 148 L.Ed.2d 629 (2001). Here, Crews has failed to prove that any element of his crime of conviction was not proven by the government, nor has he demonstrated that any Court has clarified the existing law regarding the necessary elements for proving drug conspiracy charges under 21 U.S.C. § 846 in such a way as to render his conviction invalid under federal law. Therefore, Fiore is inapposite. Finally, Crews argues that his failure to raise a direct appeal to his guilty plea, conviction, and sentence should be excused because he was “actually innocent” and, therefore, he should be permitted to pursue habeas relief under Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In Bousley, the Supreme Court held that, despite the fact that the petitioner had procedurally defaulted on his claim that his guilty plea was not knowing and voluntary in light of the Supreme Court’s pronouncement in Bailey (see note 1 supra), he could pursue habeas relief only if he proved that “the constitutional error in his plea colloquy has probably resulted in the conviction of one who is actually innocent.” Bousley, 523 U.S. at 623, 118 S.Ct. at 1611. Thus, the petitioner needed to demonstrate “no more than that he did not ‘use’ a firearm as that term is defined in Bailey. ” Id. at 624, 118 S.Ct. at 1612. Like Jones and Fiore, Bousley is inapposite. First, the question in Bousley was limited to whether courts should permit post-Bailey collateral attacks, a challenge Crews is not making. Id. at 618, 118 S.Ct. at 1608-09. Second, assuming arguendo that Bousley had some applicability here, Crews’s misconception is that an essential element of the crime for which he was convicted has been in some way altered by a subsequent court decision, as in all three cases he mentions. Unlike in Bousley, Crews has not pointed to an element of the crime of conspiracy under 21 U.S.C. § 846 that has been so altered that the government failed to properly prove the charge, making Crews actually and factually innocent of the crime with which he was charged. Lastly, because the amendment Crews alleges affected his sentence was already operative at the time of his sentencing, he cannot show cause for why no argument was ever made to the district court or an appellate court on that issue. See Bousley, 523 U.S. at 622, 118 S.Ct. at 1611. Therefore, we conclude that Crews’s habeas petition was correctly dismissed by the district court for being an impermissible attempt to circumvent the requirement for filing a second or successive motion pursuant to § 2255. AFFIRMED. . The Supreme Court decision at issue was Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995), which held that § 924(c)(l)’s "use” prong requires the government to show active employment of the firearm, not mere possession.

PER CURIAM: Appealing the Judgment in a Criminal Case, Felipe Martin Morales-Juarez raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Willie Chester, federal prisoner No. 56341-080, appeals the district court’s denial of a 28 U.S.C. § 2241 petition challenging Chester’s 1992 Western District of Texas convictions and sentences as a career criminal for possession of a firearm by a felon and for making false statements in connection with the acquisition of a firearm. The district court denied relief because it determined that Chester’s claims sounded as an unauthorized second or successive 28 U.S.C. § 2255 motion and found that Chester had not made the showing necessary to seek 28 U.S.C. § 2241 relief by means of the savings clause of 28 U.S.C. § 2255. Because Chester does not challenge this determination by the district court, he has waived the only issue relevant to his appeal. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993). AFFIRMED. Pursuant to 5th Cir. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

MEMORANDUM Jose Luis Ramos-Rosales appeals his guilty-plea conviction and sentence for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Ramos-Rosales has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record. Ramos-Rosales has filed a pro se supplemental opening brief. We have conducted an independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We affirm the conviction. Because the guidelines are now purely advisory, see United States v. Booker, — U.S. -, 125 S.Ct. 738, 764-67, 160 L.Ed.2d 621 (2005), we remand so the district court can determine if Ramos-Rosales should receive a different sentence under the advisory Guidelines system. See United States v. Hermoso-Garcia, 413 F.3d 1085, 1089-90 (9th Cir.2005). Counsel’s motion to withdraw as counsel on appeal is denied. Appellee’s request for summary affirmance is denied as moot. The conviction is AFFIRMED, and the sentence is REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

PER CURIAM: Lavelle Aultman, Jr., seeks to appeal the district court’s orders denying his motion to amend and denying relief on his petition filed under 28 U.S.C. § 2254 (2000). The orders are not appealable unless a circuit justice or judge issues a certifícate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that Aultman has not made the requisite showing. Accordingly, we deny Aultman’s motions for certificate of appealability, expansion of certificate of appealability, and leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED

PER CURIAM: Calvin R. Mallory seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2254 (2000). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of his constitutional claims is debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). We have independently reviewed the record and conclude that Mallory has not made the requisite showing. Accordingly, we deny Mallory’s motion for appointment of counsel, a certificate of appealability, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM. This case is before the Court for consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 73, 8, 160 L.Ed.2d 621 (2005). We previously affirmed Defendant Jimmie Lee Byrd’s appeal, with a limited remand to correct a clerical error in the judgment of conviction. See United States v. Byrd, 126 Fed.Appx. 462 (11th Cir.2004). The Supreme Court vacated the judgment and remanded the case to us following its decision in Booker. See United States v. Byrd, — U.S. -, 125 S.Ct. 2535, 161 L.Ed.2d 1108 (2005). Jimmie Lee Byrd directly appealed his life sentence for conspiracy to import five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952, 963, 960(b)(1), 851 (“Count 1”); conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B), 851 (“Count 2”); importation of five kilograms or more of cocaine, in violation of §§ 952(a), 960(b)(1)(B), 851 (“Count 3”); and possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 851; 18 U.S.C. § 2 (“Count 4”). The jury returned a guilty verdict on all counts. In regard to the substantive conviction, Byrd argued that the district court erred in denying: (1) his motion to suppress evidence seized from a vessel; and (2) his motion for a judgment of acquittal on Counts 2 and 4 of his indictment. We affirmed Byrd’s conviction. Byrd further argued, in relation to his sentence, that the district court erred in: (1) enhancing his offense level by two levels, pursuant to U.S.S.G. § 2Dl.l(b)(2)(B), based on his serving as a captain of a vessel used in the conspiracy; (2) enhancing his sentence, pursuant to 21 U.S.C. §§ 851, for Byrd’s previous criminal convictions; and (3) refusing to grant a downward departure, pursuant to U.S.S.G. § 5K2.0, based on Byrd’s “act of humanitarianism.” We also affirmed Byrd’s sentence, but remanded the case to the district court because the judgment of conviction erroneously reflected that Byrd’s convictions in Counts 2 and 4 involved five grams of cocaine, instead of five kilograms. After we issued our opinion, Byrd sought a writ of certiorari to the United States Supreme Court based upon its recent decision in Booker. In his initial brief, Byrd did not assert error in his sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or its progeny. Only in the reply brief did Byrd rely on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), arguing that the district court violated his Fifth Amendment rights by increasing his offense level based on facts not charged in the indictment. This Court recently addressed a similar case which had been remanded in light of Booker. See United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir.2005). In Dockery, we observed that the appellant in that case did not raise a constitutional challenge or an argument based on Apprendi or Apprendi principles. See Dockery at 1262. We further noted how we handled cases which were remanded with instructions to reconsider in light of Apprendi: Nothing in the Apprendi opinion requires or suggests that we are obligated to consider an issue not raised in any of the briefs that appellant has filed with us. Nor is there anything in the Supreme Court’s remand order, which is cast in the usual language, requiring that we treat the case as though the Apprendi issue had been timely raised in this Court. In the absence of any requirement to the contrary in either Apprendi or in the order remanding this case to us, we apply our well-established rule that issues and contentions not timely raised in the briefs are deemed abandoned. Id. at 1262-63 (quoting United States v. Ardley, 242 F.3d 989, 990 (11th Cir.), cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001)). Because he made no arguments in his initial brief raising Booker/Apprendi issues, Byrd has abandoned those issues. Accordingly, we reinstate our previous opinion in this case and affirm, once again, the Defendant’s conviction and sentence after our reconsideration in light of Booker, pursuant to the Supreme Court’s mandate. We further remand this case to the district court for the limited purpose of correcting the clerical error in the judgment of conviction. OPINION REINSTATED. CONVICTIONS AND SENTENCES AFFIRMED; LIMITED REMAND TO CORRECT CLERICAL ERROR IN JUDGMENT OF CONVICTION. . Prior to Booker, this Court has held that claims not raised on appeal, including Blakely claims, are deemed waived. United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir. 2004); United States v. Curtis, 380 F.3d 1308, 1310-11 (11th Cir.2004); United States v. Levy, 379 F.3d 1241, 1242-44 (11th Cir.2004).

MEMORANDUM OPINION HEYBURN, District Judge. After dismissal of all the criminal charges in this case, Defendant moved for attorney’s fees and costs pursuant to the Hyde Amendment, Pub.L. No. 105-119, 11 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory notes) and the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) (2001). The Hyde Amendment allows the Court to award fees and costs to a prevailing criminal defendant where “the position of the United States was vexatious, frivolous, or in bad faith unless the court finds that special circumstances make such an award unjust.” 11 Stat. at 2519. The Court has thoroughly reviewed its reasons for the acquittal, taking care to reevaluate and restate its opinion previously delivered from the bench. That Memorandum of Acquittal is now part of the record of this case and shall constitute the opinion of this Court, providing a foundation for consideration of the pending motion. The focus of this Memorandum Opinion is the merit of Defendant’s Hyde Amendment claim with respect to the four basic charges brought against him: (1) fraudulently transferring and concealing property belonging to Triple S Restaurants, Inc. (“TSR”), in contemplation of TSR’s bankruptcy in violation of 18 U.S.C. § 152(7); (2) concealing property belonging to the estate of TSR from the U.S. trustee and the bankruptcy court in violation of 18 U.S.C. § 152(1); (3) committing criminal contempt under 18 U.S.C. §§ 401(3) and 402 by selling certain assets in violation of an order by the bankruptcy court; and (4) lying under oath in relation to a bankruptcy case in violation of 18 U.S.C. § 152(2). Since the money laundering charges are derivative of these charges, the Court need not consider them separately. The United States has argued professionally and with great conviction that the indictments were justified. The Court has drawn all reasonable inferences in favor of the government. The Court is mindful that bankruptcy fraud often involves many complex issues which take time and effort to understand and that the Hyde Amendment was not meant to chill the government’s vigorous enforcement of the laws of the United States. Notwithstanding all this, the Court finds a conspicuous absence of any supporting law or evidence on several important elements of the indictment. I. Absent an express waiver of sovereign immunity, the United States is immune from claims for attorney’s fees. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Any such waiver must be strictly construed in favor of the sovereign. Id. By the Hyde Amendment, Congress waived the government’s immunity from suit by prevailing criminal defendants in specific, limited circumstances. The Hyde Amendment conditions the award of attorney’s fees on a defendant’s compliance with the procedural limitations of the EAJA. See United States v. Ranger Electronic Communications, Inc., 210 F.3d 627, 633 (6th Cir.2000). The relevant procedures for a Hyde Amendment claim are those set forth in 28 U.S.C. § 2412(d). Id. That subsection provides: A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. § 2412(d)(1)(B). A “party” is an individual whose net worth did not exceed two million dollars at the time the civil action was filed. § 2412(d)(l)(C)(2)(B). In Ranger, the Sixth Circuit held that the thirty-day time limitation is a jurisdictional prerequisite to governmental liability. 210 F.3d at 631 (quoting Allen v. Secretary of Health & Human Services, 781 F.2d 92, 94 (6th Cir.1986)). Ranger considered only the thirty-day filing period and did not hold that all the procedural requirements set forth in § 2414(d) were jurisdictional. This Court concludes the requirement that a defendant state his net worth does not exceed $2,000,000 is not jurisdictional and may be cured after the thirty-day limit. See United States v. Gardner, 23 F.Supp.2d 1283, 1293 (N.D.Okla.1998) (technical deficiencies in a fee application may be cured if untimely filed) (citing Lee v. Johnson, 799 F.2d 31, 35 n. 4 (3d Cir. 1986)). The Hyde Amendment requires a defendant to prove, by a preponderance of the evidence, that the position of the United States was frivolous, vexatious, or in bad faith. United States v. Truesdale, 211 F.3d 898, 908 (5th Cir.2000). Liability may follow proof that the government’s position meets any one of these standards. United States v. Pritt, 77 F.Supp.2d 743, 747 (S.D.W.Va.1999). Courts have struggled to define the terms frivolous, vexatious, and bad faith; often discussing in great detail various comments from the House floor debate as well as reports and commentary from legal newspapers. See, e.g., Gilbert, 198 F.3d at 1299; Truesdale, 211 F.3d at 908-09. Since these sometimes contradictory comments and reports were neither subject to a vote by Congress nor signed into law by the President, they offer little authoritative guidance. The plain terms of the statutes at issue, however, illustrate that by replacing the EAJA language, “not substantially justified” with “frivolous, vexatious, or in bad faith,” Congress imposed a higher burden on defendants than merely requiring them to show the government did not have a strong or substantial basis for its position. Truesdale, 211 F.3d at 909. The Conference Report on the Hyde Amendment makes clear that “a grand jury finding of probable cause to support an indictment does not preclude a judge from finding the government’s position was vexatious, frivolous or in bad faith.” 134 Cong. Rec. H10809-01, H10863 (Nov. 13, 1997), 1997 WL 712946; Gardner, 23 F.Supp.2d at 1293. On the other hand, the standard for granting a judgment of acquittal at trial is lower than that for a successful Hyde Amendment claim. Pritt, 77 F.Supp.2d at 748; United States v. Reyes, 16 F.Supp.2d 759, 761 (S.D.Tex. 1998). The Court must locate the meaning of “frivolous,” “vexatious,” and “bad faith” within this general compass. In Gilbert, 198 F.3d at 1298-99, the court found that “vexatious” means without probable cause or without foundation, even though not brought in subjective bad faith (citing Black’s Law Dictionary, 1559 (7th Ed.1999) and Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)); “frivolous” means groundless and with little prospect of success brought primarily to embarrass or annoy the defendant, Gilbert, 198 F.3d at 1299; and “bad faith” is the conscious doing of a wrong because of a dishonest purpose, a furtive design, or ill will, requiring more than bad judgment or negligence. Id. Applying these general principles to the case at hand, this Court determines that a frivolous charge is either one without some legal precedent for the government’s position or, if legally sound, a charge brought without a reasonable expectation of evidence at trial to support this position. The government need not have actual evidence before bringing charges, only a reasonable expectation of attaining it at trial. Defendant has presented no evidence that the government had a dishonest purpose or otherwise acted in bad faith and evidence only that Count Nine was vexatious. He does, however, raise credible questions about whether the government’s position so lacked a basis in law or fact as to be frivolous. II. For purposes of this motion, Counts One and Two are closely related because they involve some common evidence and similar legal issues. Indeed, Counts One and Two seem to merge, forming allegations of a single and broad fraudulent scheme. Heavrin’s blindness to appearances and ethical lapses creates suspicion. The un usual nature and large amount of Heav-rin’s settlement with MDFC would raise questions in the mind of a bankruptcy-trustee and certainly to a casual observer. However, when bringing a criminal indictment the government is more than a casual observer. The Court must examine each count for the law and potential evidence supporting each element of the crimes charged. A. The troubling aspect of the Count One fraudulent transfer charge is the complete absence of factual evidence to suggest that Heavrin concealed the transfer. In its memoranda, the government fails to address this crucial issue, instead arguing at length that the insurance proceeds were property of the bankruptcy estate because the only viable theory for MDFC’s settlement is a proportionality theory, not a lender liability theory. In its original statement of acquittal, and again today, the Court accepts as true the theory that the policy proceeds were property of TSR’s bankruptcy estate. However, a lot more was required to make a viable case of fraudulent transfer. Whether the government’s case on Count One was so groundless that it is frivolous is a close question. There was evidence of motive (as a beneficiary of the trust Heavrin stood to gain whatever was left of the insurance proceeds after MDFC claimed its share), and opportunity (as TSR’s counsel and as the source of the referral to bankruptcy attorney, Daniel Chinn, Heavrin had influence over TSR’s affairs). Heavrin took advantage of his opportunity and seems to have paid little attention to the potential conflict between his personal interests and fiduciary duties to TSR. On the other hand, no evidence suggested that Heavrin concealed the transfer. In particular, the government never indicated it had any other evidence showing Heavrin acted intentionally to deceive the trustee or the bankruptcy court and, as a consequence, the evidence fell short of proving causation. This evidence was indeed insubstantial ground upon which to put a man’s liberty in jeopardy. However, given the strict standard by which waivers of sovereign immunity are to be construed, the government’s case on Count One was not completely without foundation. Any other indicia of an intent to defraud could have allowed this count to go to a jury and there were several sources by which the government could have believed such evidence would come out at trial. The Hyde Amendment does not require the government to have a strong or substantial basis before bringing charges — only a non-frivolous basis. Defendant has not proven that Count One was without basis in law or fact. B. Unlike fraudulent transfer charge, Count Two’s charge required the government to prove an affirmative act of concealment. Fraudulent concealment is ordinarily proven by showing that someone who had a specific duty to list certain property on the bankruptcy petition intentionally failed to do so. The Court cannot attach such a specific legal duty to Heav-rin. Absent such a legal duty, the Court assumed that the government would introduce evidence that Heavrin caused or conspired to cause the $252,000 insurance proceeds to be omitted from the bankruptcy filings. It did not do so. The United States argues that Heavrin’s close association with TSR — ’“as an agent for the corporation, its corporate counsel, and an insider within the meaning of the Bankruptcy Code, as stepson of one of the two principal owners of the company”— imposed on him an affirmative legal duty to disclose the $252,000. In support of this claim the government cites United States v. Ross, 77 F.3d 1525, 1548 (7th Cir.1996), which states that 18 U.S.C. § 152 “broadly criminalizes” bankruptcy fraud and, by its own terms, applies to “[w]hoever, either individually or as an agent or officer of any person or corporation ... with intent to defeat the provisions of title 11, knowingly and fraudulently transfers or conceals ... property belonging to the estate of the debtor [violates this section].” As a literal statement this is true. However, the government goes a step further, contending that § 152 requires corporate insiders to take specific affirmative action to prevent a misrepresentation. Such an interpretation dramatically expands criminal liability under § 152. The government adopts this position without citing a single ease — other than Ross — to support its position. This Court has carefully examined Ross, which the government relies upon as its exclusive authority. That case, this Court must conclude respectfully, does not provide a sufficient legal basis to support the criminality of Heavrin’s conduct. First, the Ross court merely refuses to adopt the narrowest reading of 18 U.S.C. § 152 — that § 152 only applies to the actual bankrupt. It addresses neither the outer limit of criminal liability nor the nature of affirmative conduct which creates such liability. Ross is not affirmative authority for the proposition that § 152 criminalizes the conduct at issue here. In short, the United States gives an overly expansive reading to rather general language in Ross. Second, the facts of Ross differ significantly with those at bar and, therefore, its holding is not applicable to our facts. In Ross, the defendant founded the corporation at issue, served as its president, and wholly owned the company. In contrast, Heavrin did not create TSR, was not an officer, and had no ownership interest. Third, the rule of lenity, a basic canon of criminal law, precludes the expansive reading of ambiguous criminal laws. See, e.g., Reno v. Koray, 515 U.S. 50, 64-65, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (explaining circumstances in which rule of lenity applies); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971) (holding that the “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity”). Given this clear background rule, the United States needs significantly more authority than a lone, factually-distinguishable, nonbinding court of appeals decision to bring a criminal prosecution. Ross simply does not support this indictment. Charges may be brought only where there is a clear legal basis for the assertion that certain conduct is criminal. See United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (“a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so fair as possible the line should be clear”) (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (Holmes, J.)). The Court would not fault the government for adopting a legal position where the issue is one of first impression and various circuits have taken different positions. United States v. Gilbert, 198 F.3d 1293, 1303 (11th Cir.1999). However, the government cannot adopt novel legal positions as the basis for a criminal indictment without asserting credible authority for those positions. The Court finds no legal foundation for the government’s position that Heavrin personally had an affirmative duty to disclose the proceeds of the life insurance policy on TSR’s bankruptcy petition. Of course, someone in Heavrin’s position can violate bankruptcy fraud laws. Were the government able to produce some evidence that Heavrin caused Chinn or Mac-atee to violate their duty to list the $252,000 on the petition, or that Heavrin caused MDFC to fail to timely amend its proof of claim to reflect receipt of the $252,000, that would be evidence of fraud. But the government produced no such evidence at trial. As best the Court can tell, neither Chinn nor Macatee ever told governmental investigators that Heavrin sought to influence either one. Considering this, it was understandable that the government did not call Chinn as a witness. Without some basis for believing that such evidence would come out at trial, the government’s case wholly lacked evidence establishing an essential element of the crime. During discussions with the Court, the government emphasized two incriminating circumstances: Heavrin’s settlement of the MDFC claim allegedly on the basis of a proportionate liability theory; and Heav-rin’s apparent failure to list the $250,000 insurance payment on either his father’s estate tax return or his state inheritance return. They argue that these circumstances show that Heavrin was trying to conceal his fraud. To be sure, one might view these circumstances as suspicious. Each suggests a reason to investigate further. However, neither tends to prove that Heavrin was attempting to defraud the TSR bankruptcy estate. Neither is evidence of the remaining critical component of the government’s case: that Heav-rin caused TSR and MDFC to omit listing of the Harrod Policy transactions. Neither supports an indictment. With no legal basis for the government’s proposed expansion of the legal duty to disclose facts on the bankruptcy petition, such evidence of causation is the only possible basis for Count Two. In the absence of any evidence linking Heavrin to Chinn’s, Macatee’s, or MDFC’s failure to list the $252,000 on TSR’s bankruptcy petition or proof of claim, Count Two has no factual basis and is therefore frivolous. III. Count Seven charged Heavrin with committing criminal contempt by violating the bankruptcy court’s order not to sell any of his assets except for living and business expenses. As trustee and beneficiary of various trusts, Heavrin controlled forty percent of a company called Total Vend. The government alleged that Heavrin violated the Court’s order when Total Vend sold a large portion of its physical assets for several hundred thousand dollars cash and additional payouts over a period of years. The substantive legal arguments soundly support Heavrin’s position. Heavrin owned shares of the corporation, not vending machines or accounts receivables. It is axiomatic that a corporation’s assets are distinct from the assets of individuals who own stock in the corporation. Without some showing that Total Vend was Heav-rin’s alter ego, that the sale was not duly authorized by the corporation, or that Total Vend co-mingled its assets with Heav-rin’s, there is very little to support the charge of criminal contempt. The government’s failure to produce anticipated evidence will not make its position frivolous. A charge is frivolous only if brought without any reasonable foundation in law or anticipation of material facts. The government argues that, “[t]hough, technically, Heavrin’s assets in the corporation were his shares, the bank ruptcy court would more likely have been concerned about preserving the corporation’s underlying tangible assets.” Criminal contempt requires the government to prove that Heavrin had violated an order that is clear and unambiguous. United States v. NYNEX Corp., 8 F.3d 52, 54 (D.C.Cir.1993). The bankruptcy court’s order clearly ordered Heavrin not to sell or transfer his own assets. The order does not mention Total Vend’s assets. While the bankruptcy court may have intended to apply its order to Total Vend’s assets, a court’s tacit intentions cannot serve as a basis for a charge of criminal contempt. The government did not attempt to prove Total Vend was Heavrin’s alter ego or that he so controlled the company that its assets were his own. In the alternative, the government says that by selling Total Vend’s assets to a third party, Heavrin’s shares were left valueless, an “empty shell,” thus violating the spirit and intent of the order. Perhaps Heavrin would have violated the order if his actions had fraudulently drained all value from his shares. The government, however, presented no evidence that Heav-rin’s Total Vend shares were worth less after the sale than before it. Nor was this an argument which the United States pursued at trial. Moreover, any proceeds of the sale which Heavrin did receive would then be covered by the bankruptcy court’s order. The order itself prohibits Heavrin from selling any asset held “individually, jointly or in any other capacity.” As applied to Total Vend shares, at best it is rather imprecise. Under these circumstances an order so ambiguous cannot be the basis of criminal charges. Moreover, civil remedies were available that are faster and more appropriate. This charge had no legal or factual basis. IV. Count Nine charges that Heavrin lied during a November, 1998, deposition related to an adversary proceeding in bankruptcy court. The government alleged Heavrin said he had no ownership interest in Total Vend when, in fact, he had an individual ownership interest in Total Vend as a shareholder. Heavrin did respond to the deposer’s question, “And what percentage do you own of [Total Vend]?” saying, “I don’t own any of it.” When considering alleged perjury, one must consider any statement in its full and reasonable context. See Bronston v. United States, 409 U.S. 352, 359, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973) (“A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner ... ”); United States v. De Zarn, 157 F.3d 1042, 1048 (6th Cir.1998). Within one page in the same deposition, Heavrin explains that he did initially owned shares in Total Vend, but that he transferred those shares to a trust fund established for his sons. The government knew that in October, 1999, when Total Vend sold, Heavrin was listed as an individual shareholder. The government asked another shareholder, Kay Sternenberg, whether Heavrin had placed his shares in trust and she replied that she had not heard anything about a trust. On this basis, the government obtained its indictment. Without any more apparent investigation the government assumed that because Heavrin owned shares in Total Vend sometime prior to his deposition and because he owned the shares one year after his deposition, that he owned those shares during his deposition. At trial, Heavrin introduced Total Vend stock certificates supporting the truthfulness of his statement showing that a revocable trust owned the shares during the deposition. The government did not attempt to show that this trust was a sham or legal fiction. It did not suggest that the documentation was false or fraudulent. Instead, the government voluntarily dismissed the charges. The government maintains that had Heavrin disclosed these exculpatory documents prior to trial, it would have dropped this charge. Heavrin, of course, had no duty to assert affirmative defenses prior to trial. The government has a duty to investigate and establish some factual basis for its position prior to bringing criminal charges. As far as the Court can tell, Heavrin told the truth. The government could have tested the truth of Heavrin’s deposition testimony by acquiring these stock certificates prior to seeking an indictment. Instead, it added these charges to the indictment without any apparent evidentiary basis. That criminal conduct was one of several explanations for the course of events as understood by the government does not relieve the government of the obligation to investigate whether the facts support a finding of probable cause that Heavrin committed this crime. By any measure, Count Nine of the Superceding Indictment was without merit and frivolous. V. Determining the amount of attorney’s fees due under the Hyde Amendment is complicated by two factors: the Court finds only three of the charges to be frivolous and Heavrin has provided insufficient detail regarding his attorney’s fees. Heavrin may not receive reimbursement for his own time or normal office overhead devoted to his defense. Kay v. Ehrler, 499 U.S. 432, 437-38, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991) (pro se litigant who was an attorney may not recover attorney’s fees in civil rights action); SEC v. Price Waterhouse, 41 F.3d 805, 808 (2nd Cir.1994) (holding that Kay’s prohibition of attorney’s fees to pro se attorney litigant controls EAJA claims). Fees incurred by attorneys Heavrin hired to defend him of these charges, regardless of whether they entered a formal appearance at trial, may be reimbursed. But cf. United States v. Eleven Vehicles, 966 F.Supp. 361, 367 (E.D.Pa.1997) (non-attorney pro se plaintiff who hired attorney to assist with research and drafting pleadings is not entitled reimbursement under EAJA for attorney’s fee). Any such fees will be capped at $125.00 an hour and flat fees will be converted to an hourly rate by dividing the total flat fee by the hours worked before applying this cap. 28 U.S.C. § 2412(d)(2)(A). By virtue of its involvement throughout the case, the Court is well acquainted with the time and effort required to defend the allegations contained in the various indictments. Counts One and Two, as well as the underlying money laundering counts, allege separate aspects of a larger fraudulent scheme. The proof as to each was interrelated. Some evidence was relevant to both counts. Other evidence concerned only one or the other. The legal considerations were distinct, but of similar complexity and magnitude. Heavrin would have incurred significant expenses even to defend only Count One, even though eliminating Count Two would have significantly simplified the defense. Notwithstanding this discussion, Heavrin has provided little assistance as to how the Court might apportion his expenses. Heavrin has simply provided insufficient documentation from which the Court may determine the amount of Heavrin’s reasonable attorneys’ fees and the allocation of it among the counts. In its order, the Court will allow Heavrin until a date certain to provide complete and appropriate documentation and to advise the Court how the total fees should be allocated among various counts. Heavrin may be reimbursed for a flat or lump sum fee arrangement. As provided by 28 U.S.C. § 2112(d)(B), Heavrin must provide documentation of the fee arrangement and an itemized or authenticated statement from any attorney representing Heavrin stating, with reasonable specificity, the actual time expended (both the total time and the proportion of time devoted to each count) and the rate (or flat fee) Heavrin was charged. Heav-rin has not met his obligation to provide this information. The Court will enter an order consistent with this Memorandum Opinion. ORDER Defendant has moved for attorney’s fees and costs pursuant to 28 U.S.C. § 2412(d). The Court has considered the motion and has issued a Memorandum Opinion. Being otherwise sufficiently advised, IT IS HEREBY ORDERED that Defendant is entitled to attorney’s fees and costs related to the charges contained in Counts Two and Eight of the Third Su-perceding Indictment; however, only upon appropriate documentation of the amounts and allocation. IT IS FURTHER ORDERED that Defendant shall have to and including August 16, 2001, to properly document his request for attorney’s fees and costs. Proper documentation will indicate both the total amount of fees and costs and the relative proportion of these totals devoted to defending each of the four underlying counts. On or before August 28, 2001, the United States may respond. IT IS FURTHER ORDERED that all other pending motions are MOOT. . The Hyde Amendment provides in full: During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act [Nov. 26, 1997], may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of title 28, United States Code. To determine whether or not to award fees and costs under this section, the court, for good cause shown, may receive evidence ex parte and in camera (which shall include the submission of classified evidence or evidence that reveals or might reveal the identity of an informant or undercover agent or matters occurring before a grand jury) and evidence or testimony so received shall be kept under seal. Fees and other expenses awarded under this provision to a party shall be paid by the agency over which the party prevails from any funds made available to the agency by appropriation. No new appropriations shall be made as a result of this provision. . At the threshold, the United States argues that Defendant is barred from asserting his claim because he did not comply with the procedures of the EAJA. Defendant's initial claim was filed within thirty days of this Court's final judgement in the criminal matter but this claim did not state Defendant’s net worth and did include an itemized statement from the attorney's representing Defendant. In his Reply, filed more than 30 days after his acquittal, Defendant states that his net worth did not exceed two million dollars at any time and his attorneys may provide itemized statements of their fees for those counts on which Defendant has shown the Government's position to be frivolous, vexatious, or in bad faith. Having provided the Government with timely notice of his claim, Ranger does not bar these technical deficiencies in Defendant’s claim. . The standard for obtaining attorney's fees in a criminal case is, therefore, more demanding than that for a civil case. Under the EAJA, a prevailing party in a civil case may be entitled to fees unless the government's position was substantially justified. 18 U.S.C. § 2412(d). . The Court stated in its Memorandum of Acquittal, absent an affirmative act of concealment, the language of § 152 does not impose a specific duty on all corporate insiders of bankrupt corporations to verify the accuracy of the corporation's bankruptcy petition. . This admonition seems particularly appropriate where robust civil mechanisms exist to correct or test these alleged misdeeds.

PER CURIAM. William G. McLaughlin and Karen B. Cobb appeal their sentences, imposed following their guilty pleas to conspiracy to manufacture and posses with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(viii) and 846. We affirm their sentences. I. DISCUSSION A. Substantial risk of harm to a minor McLaughlin asserts the district court erred in finding a substantial risk of harm to a minor occurred because the risk of harm relating to the presence of a minor in the vicinity of a methamphetamine lab, without more, does not constitute a substantial risk of harm. Cobb contends the district court erred in finding a substantial risk of harm to a minor where the presence of the minor, her daughter, Courtney Owen, was not reasonably foreseeable to Cobb as she did not know that Courtney was at the residence that day, nor had she been at the residence with Courtney that day, nor had she ever been on the premises when chemicals were present or during the manufacturing process. We review the district court’s factual findings for clear error and its application of the Guidelines to those facts de novo. United States v. Florence, 333 F.3d 1290, 1292 (11th Cir.2003). “If the offense (i) involved the manufacture of amphetamine or methamphetamine; and (ii) created a substantial risk of harm to the life of a minor or an incompetent,” the offense level shall be increased by six. U.S.S.G. § 2Dl.l(b)(5)(C) (2002). The commentary to § 2D1.1 provides certain factors a court must consider in determining whether the offense created a substantial risk of harm to human life or the environment for the purposes of § 2Dl.l(b)(5)(C): “(i) [t]he quantity of any chemicals or hazardous or toxic substances found at the laboratory, and the manner in which the chemicals or substances were stored[;] (ii) [t]he manner in which hazardous or toxic substances were disposed, and the likelihood of release into the environment of hazardous or toxic substanees[;] (iii)[t]he duration of the offense, and the extent of the manufacturing operation[; and] (iv) [t]he location of the laboratory (e.g., whether the laboratory is located in a residential neighborhood or a remote area), and the number of human lives placed at a substantial risk of harm.” U.S.S.G. § 2D1.1, comment. (n.20(A)) (2002). “Minor” is defined as “an individual who had not attained the age of 18 years.” U.S.S.G. § 2D1.1, comment. (n.20(B)) (2002). Based on the factors enumerated in the application note to § 2Dl.l(b)(5)(C), the district court did not err in applying the enhancement. The court stated the enhancement was supported by the dangerous nature of the chemicals contained in open containers, the location of the chemicals and starter fluid near the stove and open oven, which was on, and the headaches experienced by Courtney and the officers, which the district court attributed to the chemical vapors. The district court’s findings are supported by the record. The evidence before the court was that: (1) Agent Cosey and Officer Watson immediately detected a strong smell of denatured alcohol coming from the house when they stepped out of the car; (2) Courtney, as well as several officers, experienced headaches at the scene, which Agent Cosey attributed to the fumes; (3) chemicals were found in the house that were consistent with the manufacturing of methamphetamine, including starter fluid and denatured alcohol; (4) there was hardly a space in the house that did not have materials associated with the manufacture of methamphetamine; (5) the shed, located between 50 and 60 feet from the house, contained a homemade condenser system used for manufacturing anhydrous ammonia, which is a very dangerous substance; (6) mason jars of chemicals, including denatured alcohol, were located in the kitchen near the oven that was on and open; and (7) batteries with the lithium strips removed, which can self-ignite where there is a sufficiently high moisture content in the air if not placed into a petroleum product, were found in an ashtray. In response to McLaughlin’s arguments, the evidence supports that Courtney was at the residence for more than one hour as she stated she was dropped off in the afternoon and the officers did not arrive to retrieve her until 11:00 P.M. Next, the evidence showed many of the officers experienced headaches; thus, it is more likely that Courtney’s headache was caused by the fumes and not her eyeglasses prescription. Aso, the evidence does not support the argument the smell of denatured alcohol was coming from the alcohol McLaughlin used for paint jobs as the smell was extremely strong, and the denatured alcohol was found in jars in the kitchen mixed with other substances. Additionally, the fact the residence was located in the country does not support the argument there was no substantial risk of harm to the life of a minor as Courtney was actually present at the residence. Further, as to the speculation the situation could not have been very dangerous since the officers left the oven on for warmth and were not wearing a respiratory device inside the home, at least some of the chemicals were removed from the home and set outside to be collected by the hazardous materials disposal company, which likely would have decreased the risk to the officers. Finally, there is no support for the contention that for substantial risk of harm to the life of a minor to exist, the situation must involve either an obvious explosive condition or fire, or the presence of very young children. Cobb argues the six-level enhancement should not have been applied to her because she had no knowledge of Courtney’s presence at the residence that day. However, neither the Guidelines nor any binding law require the defendant’s knowledge of the presence of minors in order to apply the enhancement under § 2Dl.l(b)(5)(C), and “[ljanguage in the [Guidelines] is to be given its plain and ordinary meaning.” United States v. McClain, 252 F.3d 1279, 1286 (11th Cir.2001). Further, this Court has ruled the district court is not required to identify a specific minor at risk before imposing the enhancement. See Florence, 333 F.3d at 1293. It is logical if the district court is not required to identify a specific minor, the court is also' not required to find a defendant knew of the minor’s presence. Cobb argues her case is analogous to United States v. Simpson, 334 F.3d 453 (5th Cir.2003), in which the Fifth Circuit determined that (1) no evidence had been presented to support the presence of a minor while co-conspirator Mills was involved; and (2) Mills could not have reasonably foreseen his participation would endanger the infant child of a co-conspirator because the co-conspirator’s wife had not yet given birth to the child during Mills’ involvement, and there was no evidence that Mills knew she was pregnant. Id. at 458—59. Even if this Court were to adopt the reasonable foreseeability requirement in Simpson, it was reasonably foreseeable that Courtney would visit Cobb as Cobb was Courtney’s mother, and Cobb testified Courtney had visited her home three or four times and loved to come over and ride the four wheeler. Further, Cobb’s mother testified Courtney would stay overnight at Cobb’s on occasion. Thus, the district court did not err by applying the enhancement under § 2Dl.l(b)(5)(C), because the record supported the conclusion the offense created a substantial risk of harm to the life of a minor, and the Government was not required to establish that Cobb knew of her daughter’s presence at the residence. B. Blakely/Booker McLaughlin and Cobb also argue the district court erred by enhancing their sentences under the Guidelines based on facts decided by the district court and not a jury. Because McLaughlin and Cobb did not raise a constitutional objection to the district court’s application of the Guidelines, it is reviewed for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quotations and citations omitted). At their change of plea hearing, Cobb and McLaughlin admitted that (1) Courtney had been present at the house, (2) they had operated an active methamphetamine lab at the house and nearby shed, including a dangerous anhydrous ammonia production facility in the shed, and (3) “numerous items ... consistent with the manufacture of methamphetamine” were found “throughout the entire home and throughout the shed.” They never explicitly admitted, however, that they turned on the stove, making the conditions even more hazardous. Because of the complex nature of the facts required for the substantial risk of harm to the life of a minor enhancement under U.S.S.G. § 2D1.1, it is difficult to sort out whether McLaughlin and Cobb admitted to the exact facts which formed the basis for the district court’s enhancement. Thus, there is arguably error that is plain because their sentences were increased under a mandatory guidelines system because of an enhancement based on facts found by the judge that were neither admitted by the defendants nor found by the jury. Id. at 1298—99. As to the third prong, the burden is on McLaughlin and Cobb to demonstrate the plain error affected their substantial rights, and the error actually made a difference. Id. at 1299. “[I]n applying the third prong, we ask whether there is a reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding fashion by the sentencing judge in this case.” Id. at 1301. A review of the sentencing transcript reveals no indication the district court would have sentenced differently under an advisory Guidelines system. Although Cobb was sentenced at the low end of the Guidelines, that fact alone does not establish a reasonable probability the court would have imposed a lesser sentence under an advisory regime. See United States v. Fields, 408 F.3d 1356 (11th Cir.2005). Thus, there is no plain error under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). II. CONCLUSION The district court did not err in imposing an enhancement under U.S.S.G. § 2Dl.l(b)(5)(C). Additionally, neither McLaughlin’s nor Cobb’s sentence violates Booker. AFFIRMED. . United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not alter our review of application of the Guidelines. United States v. Crawford, 407 F.3d 1174, 1180-81 (11th Cir.2005).

JUDGMENT PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36

OPINION MOORE, Circuit Judge. Defendant-Appellant George Washington Penson, III (“Penson”) challenges the validity of his conviction and sentence for three bank robberies. Penson contends that he should receive a new trial based on several allegedly erroneous evidentiary rulings by the district judge. Additionally, Penson argues that resentencing is required as his current sentence violates the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We agree that Pen-son’s sentence violates Booker. Therefore, we VACATE Penson’s sentence and REMAND for resentencing. As to the other errors raised by the defendant, we AFFIRM the district court’s judgment. I. BACKGROUND On March 13, 2003, Penson was released from prison after serving ninety-two months’ imprisonment for four unarmed bank robberies. Prior to this incarceration, Penson was imprisoned in Ohio state prison and served 18 months’ imprisonment for a parole violation. When Penson was released on March 13, Penson’s niece, LaShell Penson (“LaShell”) picked up Pen-son from the federal penitentiary in Elk-ton, Ohio with the intent of driving him home to Youngstown, Ohio, where Pen-son’s sister and nieces resided. On the drive to Youngstown, Ohio, Penson had LaShell stop at two banks: Consumer’s National Bank in Lisbon, Ohio and Sky Bank in North Lima, Ohio. LaShell re mained in the car while Penson entered both banks. Following his release from federal prison Penson did not report to either his federal or state probation officers. On March 17, 2003, Penson borrowed LaShell’s vehicle, a burgundy Delta 88 Oldsmobile with the word “hot” scratched into the front hood. Penson drove the vehicle to the Sky Bank in North Lima and proceeded to rob the bank of over $29,000. Several witnesses observed the vehicle in the area of the bank at the time of the robbery. On April 4, 2003, Ashley Davis (“Davis”), Penson’s seventeen-year-old niece, drove Penson to Akron, Ohio in Penson’s black Jaguar. Penson then stole a vehicle from a grocery store parking lot and the two drove both cars to the First Merit Bank in Akron. Penson robbed the bank of approximately $21,000. He then left in the stolen vehicle, with Davis following him in the Jaguar. A bank customer followed the two cars for a distance but eventually stopped after Penson exited the stolen vehicle and pointed a gun at the customer. On April 10, 2003, Penson drove with LaShell and his girlfriend Angelique Stanford in LaShell’s van to Lisbon, Ohio, where Penson stole another vehicle. The two vehicles proceeded to Consumer’s National Bank, where Penson entered the bank and stole over $22,000. Based on Penson’s earlier withdrawal at the bank on March 13th, a bank teller and the bank manager were able to identify Penson as the robber. Once Penson became a suspect as a result of this identification, FBI Special Agent Gerald Hopper (“Agent Hopper”), a member of the Mahoning County Violent Crimes Task Force assigned to investigate the robberies, contacted the Ohio Adult Parole Authority to gather further information on Penson. Parole Officer Robert O’Malley (“Parole Officer O’Malley”) checked the Law Enforcement Automated Data System and discovered that there was an active warrant for Penson’s arrest for a state parole violation. Parole Officer O’Malley then requested that Agent Hopper and the Violent Crimes Task Force assist him in arresting Penson as fugitive. Penson was later located and arrested outside Penson’s sister’s residence in Youngstown. Following his arrest Penson was advised of and waived his Miranda rights. Penson then confessed to committing all three bank robberies. The residence at which Penson was arrested was also searched after Penson’s sister gave the officers consent to search. At the home, the police found money from the robberies along with the van and the burgundy Oldsmobile used during the robberies. The black Jaguar was later found at a repair shop. On May 6, 2003, Penson was indicted on one count of bank robbery in violation of 18 U.S.C. § 2113(a) and two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). Prior to trial, Penson moved to suppress “[a]ll evidence obtained directly or indirectly from searches and seizures of the Defendant, his residence, his domicile and/or any automobiles operated by him or to which he had access, on the ground that said searches and seizures were conducted without a warrant, without probable cause and not incident to a lawful arrest.” Joint Appendix (“J.A.” at 44) (Mot. to Suppress at 1). Penson also moved to suppress his confession on the grounds that his Miranda rights had been violated. The district court denied Penson’s motion, stating that no warrant was needed for the search because it had been authorized by Pen-son’s sister and that Penson’s Miranda rights had not been violated. At trial, Davis testified to her involvement in the robbery of the First Merit Bank. During her testimony Davis was asked how long she had known Penson, to which she replied “I really had no relationship with him until he had got out of jail.” J.A. at 127 (Trial Tr. at 134). Defense counsel objected to Davis’s reference to Penson’s prior incarceration and moved for a mistrial. The district court offered to give the jury a curative instruction but denied the motion for a mistrial on the grounds that the statement was unsolicited and Davis had been warned by the prosecution not to mention Penson’s prior criminal history during her testimony. The trial continued and no curative instruction was given. Subsequently, Davis was asked how long Penson had owned a black Jaguar, to which Davis stated, “I’m not sure. He bought it soon as he got out.” J.A. at 136 (Trial Tr. at 143). Defense counsel again objected to the reference to Penson’s prior record, but the district court permitted questioning to continue. Later in the trial Randy Spano (“Spano”), a mechanic at the repair shop where Pen-son’s Jaguar was found, testified. Spano was asked how many times he had spoken with Penson, and Spano replied, “Quite a few. I believe we spoke while he was incarcerated.” J.A. at 112 (Trial Tr. at 199). Following this comment, defense counsel renewed his motion for a mistrial, and the district court denied the motion. At the close of trial, the jury found Penson guilty on all counts. Penson was then sentenced to 365 months’ imprisonment. Penson filed this timely appeal. II. ANALYSIS On appeal, Penson raises three claims. First, Penson argues that his arrest was unconstitutional and thus his motion to suppress his confession ought to have been granted. Second, Penson contends that the district court erred in denying his motion for a mistrial based on several references by witnesses to his past incarceration. Third, Penson asserts that he should be resentenced as he was sentenced in violation of Booker. We will address each these claims in turn. A. Motion to Suppress When reviewing a district court’s denial of a motion to suppress evidence, we review the factual findings for clear error and the legal conclusions de novo. United States v. Foster, 376 F.3d 577, 583 (6th Cir.), cert. denied, — U.S. -, 125 S.Ct. 635, 160 L.Ed.2d 478 (2004). The burden of proof is on the defendant to demonstrate “a violation of some constitutional or statutory right justifying suppression.” United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.2003) (internal quotation marks and citation omitted). ‘When reviewing the denial of a motion to suppress evidence, we must consider the evidence in the light most favorable to the government.” Id. (internal quotation marks and citation omitted). Before the district court, Penson argued that his confession ought to be suppressed based on violations of his Miranda rights. On appeal, Penson now asserts an alternate theory for the suppression of his confession. Penson currently contends that his arrest violated the Fourth Amendment, and thus that his confession must be suppressed as a product of this illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (indicating that generally any evidence that is the fruit of an illegal search or seizure must be suppressed). The government asserts that this new theory was never advanced before the district court and thus cannot be raised before this court. Appellee Br. at 19. The government’s argument, however, confuses waiver, in which a defendant intentionally relinquishes a known right and may not raise that right on appeal, with forfeiture, in which a defendant fails to assert timely a right, and may only raise that right on appeal if the plain-error standard has been met. See United States v. Osborne, 402 F.3d 626, 630 (6th Cir.2005) (discussing the difference for purpose of appeal between forfeiture and waiver). Here, Penson did not waive his right to challenge the validity of his confession on Fourth Amendment grounds. Instead, he merely failed to raise the challenge in a timely manner. We therefore may review Penson’s claim and provide relief if the district court’s admission of the confession was plainly erroneous. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (outlining the elements of the plain-error test). In this case, we find that no violation of Penson’s Fourth Amendment rights occurred and thus the district court did not plainly err in denying Penson’s motion to suppress his confession. Penson argues that the officers investigating the bank robberies used Parole Officer O’Malley as a “stalking horse,” meaning that the police used the state parole officer as a means of carrying out a seizure which the police had no investigatory authority to perform. We have previously recognized that “it is impermissible for a probation search [or seizure] to serve as subterfuge for a criminal investigation.” United States v. Martin, 25 F.3d 293, 296 (6th Cir.1994). Nonetheless, it is wholly permissible for law enforcement officers and probation officers to “work together and share information to achieve their objectives.” Id. Thus, probation officers may properly request police assistance in executing their duties as probation officers. United States v. Butcher, 926 F.2d 811, 815 (9th Cir.), cert. denied, 500 U.S. 959, 111 S.Ct. 2273, 114 L.Ed.2d 724 (1991). The only type of cooperation which the Fourth Amendment prohibits is the use of the probation system for investigatory purposes in order to permit law enforcement officers to evade the Fourth Amendment warrant requirement. See Martin, 25 F.3d at 296. In this case, Parole Officer O’Malley was not used as a “stalking horse” in order to execute an otherwise illegal seizure of Pen-son. In determining that there was an outstanding warrant for Penson’s arrest for parole violations and ensuring that the arrest warrant was executed, Parole Officer O’Malley was merely carrying out his duties as -a parole officer. Penson’s arrest at the behest of Parole Officer O’Malley was not an attempt by the police to evade the Fourth Amendment warrant requirement as there was an active warrant for Penson’s arrest. The existence of the warrant must therefore defeat Penson’s “stalking horse” argument. We therefore conclude that the district court did not err in denying Penson’s motion to suppress his confession subsequent to arrest. B. Prior Incarceration References Penson contends that the district court erred in denying his motion for a mistrial based on statements by Davis and Spano during trial which alluded to Pen-son’s prior incarceration. We review a district court’s evidentiary rulings, along with a district court’s denial of a motion for a mistrial, for an abuse of discretion. United States v. Humphrey, 279 F.3d 372, 376 (6th Cir.2002); United States v. Parker, 997 F.2d 219, 221 (6th Cir.1993). “The scope of this discretion has been broadly construed, and the trial court’s actions are to be sustained unless manifestly erroneous.” Humphrey, 279 F.3d at 376 (internal quotation marks and citation omitted). The government may not introduce evidence of a defendant’s prior convictions where the defendant does not testify at trial and the defendant’s character is not otherwise at issue. United States v. Terry, 729 F.2d 1063, 1070 (6th Cir.1984). Therefore, it was erroneous for Davis and Spano to make statements which may have informed the jury of Penson’s prior criminal history. We must determine, however, not only whether the admission of the statements was erroneous, but more importantly whether the district court abused its discretion by denying defense counsel’s motion for a mistrial. See id. (noting that we must “review the record as a whole and determine whether the[] errors so adversely affected the rights of the defendants as to compel reversal. If not then we must determine whether the exercise of our supervisory powers require[s], as matter of sound judicial administration, the deterrent therapy of a new trial.”). In this case, we believe that the references made by Davis and Spano to Pen-son’s past incarceration constituted harmless errors and thus did not require the district court to grant defense counsel’s motion for mistrial. These statements were not intentionally elicited by the prosecutor, but were instead inadvertent slips by two legally unsophisticated witnesses. Additionally, none of the three statements informed the jury of the nature of Pen-son’s criminal history. The statements only made the jury aware that Penson had been incarcerated in the past. The jury was not made aware of the fact that Pen-son had been convicted previously of bank robbery. The district court also offered to provide a curative instruction to jury as to the statements, but defense counsel did not accept this offer. More importantly, even without these statements, the evidence against Penson was, as Penson concedes in his brief, “overwhelming.” Appellant Br. at 31. At trial, the government introduced into evidence, inter alia,: (1) Penson’s confession to all three bank robberies; (2) the money and automobiles recovered from Penson’s residence that were linked to the robberies; (3) eyewitness testimony of Penson’s nieces and girlfriend who assisted Penson in the robberies; and (4) eyewitness testimony of others who observed the robberies. Consequently, the evidence properly introduced by the prosecution leaves little doubt as to Penson’s guilt. Under the circumstances of this case, we therefore conclude that the witnesses’ statements alluding to Penson’s prior criminal history were harmless error and it was not an abuse of discretion for the district court to deny Penson’s motion for a mistrial. C. Sentencing Error Following the Supreme Court’s recent decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), both parties have agreed that Pen- son’s sentence constituted plain error and that remand to the district court for resentencing is appropriate. See United States v. Oliver, 397 F.3d 369 (6th Cir.2005). We will therefore vacate Penson’s sentence and remand the case for resentencing. III. CONCLUSION For the reasons stated above, we VACATE Penson’s sentence and REMAND for resentencing. As to the other errors raised by the defendant, we AFFIRM the district court’s judgment. . Penson was also sentenced to 24 months’ imprisonment for violating federal supervised release, to be served prior to the 365-month sentence. . We note the question whether the “stalking horse" theory is even a cognizable argument following the Supreme Court’s decision in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). In Knights the Court stated that in determining the constitutionality of a search of a probationer "there is no basis for examining [the] official purpose” of the search. Id. at 122, 122 S.Ct. 587. As the Ninth Circuit noted in United States v. Stokes, 292 F.3d 964, 967 (9th Cir.), cert. denied, 537 U.S. 964, 123 S.Ct. 398, 154 L.Ed.2d 321 (2002), this holding seems to suggest that prior "cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is ... no longer good law.” We need not decide, however, whether the "stalking horse” argument is still good law as it does not apply to the circumstances of this case.

MEMORANDUM Meirong Hao, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) denial of her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of asylum for substantial evidence and may reverse only if the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We deny the petition. Substantial evidence supports the BIA’s finding that petitioner failed to establish past persecution or a well-founded fear of future persecution on account of an enumerated ground. Because petitioner was arrested for harboring a fugitive, and there is no evidence that she was arrested based on a political opinion or membership in a particular social group, she fails to present evidence compelling the conclusion that she was persecuted on account of an enumerated ground. See id. at 482-84, 112 S.Ct. 812 (holding that guerrilla group’s attempt to recruit alien did not establish persecution based on political opinion); Molina-Estrada v. INS, 293 F.3d 1089, 1094-95 (9th Cir.2002) (holding that alien must show that the persecutors imputed a political opinion to him and that there was no such evidence showing that guerrillas attacked alien’s home based on political opinion). Because petitioner failed to demonstrate that she was eligible for asylum, it follows that she did not satisfy the more stringent standard for withholding of removal. See Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir.1999). Petitioner also fails to establish a CAT claim because she did not show that it was more likely than not that she would be tortured if she was returned to China. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2001). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

MEMORANDUM AND ORDER MILLER, District Judge. This cause comes before the court on the motion of defendant United States of America, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss plaintiff Judith Lop-er’s loss of consortium claim for failure to file the appropriate administrative claim as required by the Federal Tort Claims Act (FTCA). For the reasons that follow, the court finds that the defendant’s motion to dismiss must be denied. On July 2,1990, vehicles driven by plaintiff Kenneth Loper and John Lyness collided. At the time of the collision, John Lyness was acting within the scope of his employment as a United States postal worker. Plaintiff Kenneth Loper filed a Notice of Tort Claim with the United States Postal Service, pursuant to the FTCA. The “Standard Form 95” completed by Mr. Loper included both Mr. Loper’s name as “Claimant” and his wife Judith Loper’s name, as well as both of their signatures. The form, however, described only the physical and psychological injuries to Mr. Loper and listed only one total for the “Amount of Claim.” Mr. and Mrs. Loper filed their complaint against the United States under 28 U.S.C. § 1346(b). While Mr. Loper alleged property damage and serious bodily injury, Mrs. Loper alleged to have “lost an important share of her husband’s consortium, society, and companionship.” The government’s dismissal motion contends that the court lacks subject matter jurisdiction over Mrs. Loper’s claim because Mrs. Loper has failed to comply with the FTCA’s requirements, contained in 28 U.S.C. § 2675, to file the appropriate administrative claim. The FTCA provides in pertinent part: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). The filing of the appropriate administrative claim is an absolute jurisdictional prerequisite to maintaining a FTCA action against the federal government. McNeil v. United States, 508 U.S. 106, -, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993); Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972). District courts lack subject matter jurisdiction over suits filed under the FTCA if the plaintiffs have failed to comply with the FTCA’s requirements. McNeil v. United States, 508 U.S. at ---, 113 S.Ct. at 1983-84; Best Bearings Co. v. United States, 463 F.2d at 1179. Further specification as to the filing of a proper administrative claim is set forth in 28 C.F.R. § 14.2(a), which provides in pertinent part: For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. 28 C.F.R. § 14.2(a) (1994). The Seventh Circuit has construed § 2675(a) and § 14.2(a) as requiring that a claimant provide in his administrative claim “sufficient notice to enable the agency to investigate the claim and the setting of a ‘sum certain.’” Charlton v. United States, 743 F.2d 557, 559-60 (7th Cir.1984). This interpretation of the FTCA is consistent with the stated purposes of Congress in enacting § 2675(a) — to “ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” S.Rep. No. 1327, 89th Cong., 2d Sess. 2 (1966), reprinted in 1966 U.S.C.C.A.N. 2515, 2516. Under Indiana law, a spouse’s claim for loss of consortium, while derivative of the injured spouse’s claim, is independent and separate from the primary action and can be maintained even if the primary action fails. Dearing v. Perry, 499 N.E.2d 268, 272 (Ind.Ct.App.1986). Mrs. Loper cites two cases that held that a spouse who specifically identifies herself as a “claimant” on the administrative claim, without articulating the injury of loss of consortium, has sufficiently exhausted the administrative requirements of the FTCA. Hardiman v. United States, 752 F.Supp. 52, 53-54 (D.N.H.1989); Casey v. United States, 635 F.Supp. 221, 225-226 (D.Mass.1986). In opposition, the government cites cases from various jurisdictions in support of its position that Mrs. Loper has not complied with the administrative requirements of FTCA. Unlike most of those cases, however, Mrs. Lop-er’s name and signature appeared as a claimant on the Standard Form 95. The government argues that the inclusion of Mrs. Loper’s name and signature on the Standard Form 95 does not disclose the injury claimed by Mrs. Loper. Question No. 10 on the Form directs the claimant to “STATE NATURE AND EXTENT OF EACH INJURY OR CAUSE OF DEATH, WHICH FORMS THE BASIS OF THE CLAIM. IF OTHER THAN CLAIMANT, STATE NAME OF INJURED PERSON OR DECEDENT.” The Ropers’ response described only the direct injuries to Mr. Loper: “Mr. Loper suffered serious personal injuries including head trauma, recurrent neck and shoulder pain, dizziness, constant loud ringing in ears, sleep disturbances, problems concentrating, memory problems, and related problems.” The court cannot agree that these facts preclude jurisdiction. As an initial matter, although neither party raised the issue, the source of a claimant’s legal obligation to state the nature and extent of the injuries for which damages are sought is not immediately apparent; neither the FTCA nor 28 C.F.R. 14.2 expressly require such information to be part of the requisite claim. More importantly, the court believes that the Lopers’ response to Question No. 10 satisfies the requirement, if there is such. If, instead of signing jointly with her husband, Mrs. Loper had filed a separate Form 95 with precisely the same language in response to Question No. 10, the government could not seriously argue that it understood Mrs. Loper’s claim to be for anything other than loss of consortium. The Ropers’ response to Question No. 10 was “sufficient notice to enable the agency to investigate the claim____” Charlton v. United States, 743 F.2d 557, 559-60 (7th Cir.1984). If the inclusion of Mrs. Loper’s name and signature otherwise satisfied the FTCA and the regulation, the description of her claim cannot be inadequate. The purpose of the administrative requirements of the FTCA is to provide the government with sufficient information relating to the nature and circumstances surrounding the injury and the amount of the potential claim to effectuate efficiency and fair settlements. To affect this purpose, the Justice Department specifically required in 28 C.F.R. 14.2(a) that a “sum certain” for each individual claim be stated in the administrative claim. A claimant’s failure to individually state her “sum certain” deprives the court of subject matter jurisdiction over the claim. See Willie v. United States, No. 92-CV-1143, 1993 WL 184149, *2, 1993 U.S.Dist. LEXIS 7024, *5 (N.D.N.Y. May 26, 1993); Dondero v. United States, 775 F.Supp. 144, 149-50 (D.Del.1991); Rispoli v. United States, 576 F.Supp. 1398, 1403 (E.D.N.Y.1983). The Ropers’ claim satisfies that purpose. The claim informed the government of the claimants’ identities: Kenneth and Judith Loper. The claim informed the government of the nature of the injuries — some inferential reasoning was necessary with respect to Mrs. Loper, but no more so than had she filed a separate claim with the same language. The claim informed the government of the “sum certain” they sought — a figure that cannot be exceeded with or without the consortium claim. Accordingly, the court concurs with the reasoning of Hardiman v. United States, 752 F.Supp. 52, and Casey v. United States, 635 F.Supp. 221, and concludes that under circumstances such as those presented by this case, a single Standard Form 95 identifying both spouses as claimants and bearing the signatures of both spouses complies with the jurisdictional requirements of 28 U.S.C. § 2675(a). The government next argues that McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), compels dismissal. McNeil held that the FTCA’s requirement of exhaustion of the administrative claims process must be read literally; McNeil did not hold that the regulations governing the claims process itself must be read literally. The plaintiff in McNeil filed no claim before filing suit. Mrs. Loper filed her administrative claim in writing. She did not employ a separate Form 95 to do so, but McNeil offers no guidance in deciding whether she was required to do so. This decision is not inconsistent with this court’s earlier holding in Richardson v. United States, 831 F.Supp. 657, 661 (N.D.Ind.1993), which addressed a different issue. In Richardson, “the parties [did] not dispute that the [spouse’s loss of] consortium claim is so distinct and separate that it should have been filed separately.” For the foregoing reasons, the court DENIES the defendant’s motion to dismiss Judith Loper’s claim (filed July 7, 1995 (# 11)). SO ORDERED. . The cases cited by the government in which the spouse’s name seeking loss of consortium did not appear as a “claimant” on the administrative claim include: Johnson v. United States, 704 F.2d 1431 (9th Cir.1983); Allen v. United States, 517 F.2d 1328 (6th Cir.1975); Richardson v. United States, 831 F.Supp. 657 (N.D.In.1993); Davis v. United States, 834 F.Supp. 517 (D.Mass.1993); Rode v. United States, 812 F.Supp. 45 (M.D.Pa.1992); Seyler v. United States, 643 F.Supp. 1027 (D.Idaho 1986) rev’d on other grounds, 832 F.2d 120 (9th Cir.1987); Susanin v. United States, 570 F.Supp. 25 (W.D.Pa.1983); Swizdor v. United States, 581 F.Supp. 10 (S.D.Iowa 1983); Fol v. United States, 548 F.Supp. 1257 (S.D.N.Y.1982); Santoni v. United States, 450 F.Supp. 608 (D.Md.1978); Walker v. United States, 471 F.Supp. 38 (M.D.Fla.1978); Mudlo v. United States, 423 F.Supp. 1373 (W.D.Pa.1976); Collazo v. United States, 372 F.Supp. 61 (D.P.R.1973).

PER CURIAM: Appealing the Judgment in a Criminal Case, Alfredo Diaz-De Leon raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM. Willadeur Alphonse, a federal prisoner, seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and dismissing Alphonse’s motion filed pursuant to Fed.R.Crim.P. 35(b)(2), which the court construed as a successive motion under 28 U.S.C. § 2255 (2000), and concluded that it lacked jurisdiction to consider. Alphonse also appeals from the district court’s order denying his motion filed under Fed.R.Civ.P. 59(e). The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of his constitutional claims is debatable or wrong and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Alphonse has not made the requisite showing. Accordingly, we deny Alphonse’s motion to proceed in forma pauperis, deny a certificate of appealability, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED

PER CURIAM. Adrian Morin was indicted and convicted by a jury of possession with intent to deliver a controlled substance in violation of 21 U.S.C. § 841(a)(1) and possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Morin challenges his sentence of 123 months’ imprisonment. We affirm. At trial, the jury concluded that Morin possessed “with intent to distribute 50 grams or more of a mixture containing a detectable amount of methamphetamine.” A presentence report (PSR) was prepared prior to sentencing and recommended calculating Morin’s base offense level on an amount of methamphetamine greater than 50 grams. No objections to the PSR were filed. At the sentencing hearing, the district court asked if Morin had any objections to the PSR and he replied in the negative. Morin argues that the district court erroneously calculated his base offense level by failing to exclude drug quantities intended for personal use. He contends that if his personal use quantities were excluded, the actual drug quantity for sentencing purposes would be less than 50 grams. We review the sentence imposed by the district court and will reverse if the sentence is unreasonable. United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Breyer, J.); see also United States v. Mashek 406 F.3d 1012, 1017 (2005) (explaining that we will review a sentence for reasonableness in light of the factors listed in 18 U.S.C. § 3553(a) if the district court properly computes the Guidelines range). Because Morin failed to object to the PSR, we are limited to plain error review. United States v. Piggie, 316 F.3d 789, 791 n. 4 (8th Cir.2003). Under the plain error standard of review, we determine whether there is an error that is plain and that affects substantial rights, and reverse only if that error seriously affects the fairness, integrity or public reputation of the judicial proceedings. United States v. Rashid, 383 F.3d 769, 775 (8th Cir.2004). Drug quantities intended for a defendant’s personal use must be excluded in calculating the base offense level for possession of a controlled substance with intent to distribute. See United States v. Fraser, 243 F.3d 473 (8th Cir.2001). In Fraser, the defendant plead guilty and the district court was required to calculate the drug quantity. Id. However, when a jury makes a finding as to the element of drug quantity, the district court is prohibited from reducing that quantity for personal consumption during the sentencing phase. United States v. Campos, 362 F.3d 1013 (8th Cir.2004). Pointedly stated, once a jury finds “beyond a reasonable doubt that the amount of methamphetamine [a defendant] intended to distribute was 50 or more grams, it [is] a legal impossibility for the district court to find by a preponderance of the evidence that the amount of methamphetamine [the defendant] intended to distribute was less than 50 grams.” Id. at 1015-16. In this case, the jury made a specific finding that Morin possessed with intent to distribute 50 grams or more of a mixture containing a detectable amount of methamphetamine. Therefore, the district court had no authority to reduce the amount for any quantity it perceived to be intended for personal use. On this record, we cannot conclude that the district court committed plain error in calculating Morin’s base offense level. The sentence imposed is not unreasonable in light of the factors listed in § 3553(a). Accordingly, we affirm Morin’s sentence. . The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota. COLLOTON, Circuit Judge, concurring. I agree with the court that the district court did not commit plain error in calculating Morin’s base offense level under the sentencing guidelines, and that his sentence therefore was not imposed as a result of an incorrect application of the sentencing guidelines. See 18 U.S.C. § 3742(f)(1). Morin has not raised any challenge to the reasonableness of the sentence in light of 18 U.S.C. § 3553(a) or United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Cole, 395 F.3d 929, 932 & n. 4 (8th Cir.2005); cf. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). Therefore, I agree that the sentence should be affirmed.

ORDER AND JUDGMENT JOHN C. PORFILIO, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Petitioner-appellant Max A. Jackson appeals from the district court’s order denying his petition for habeas relief filed under 28 U.S.C. § 2254. We granted a certificate of appealability (COA) on two issues. The first issue is whether the New Mexico Court of Appeals unreasonably applied Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The court concluded that the prosecutor’s reason for excusing a venireperson on the basis that he demonstrated sympathy and bias for Mr. Jackson by stating that he felt it was unfair that Mr. Jackson, who is African-American, would “be tried before a jury containing no African-American jurors” was a valid, race-neutral reason for excluding the juror. ApltApp. at 63. The second issue has several subparts for a claim of ineffective assistance of counsel. The first is whether the New Mexico state courts unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in refusing to grant habeas relief for Mr. Jackson’s counsel’s failure to seek disqualification of the district attorney’s office. The state court denied the claim because Mr. Jackson could not show prejudice, “[t]he evidence of [his] guilt [having been] overwhelming.” ApltApp. at 69. The second is whether the federal district court erred in determining that Mr. Jackson’s counsel’s failure to challenge the venire selection procedure was not objectively unreasonable and not prejudicial. The third is whether the federal district court erred in concluding that Jackson’s counsel conducted a sufficient investigation into a key witness’s credibility. And the fourth part of the issue is whether the federal district court erred in concluding that counsel was not ineffective for having made a strategic decision not to compel an interview or deposition or the disclosure of the location of a potential witness. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253, and affirm. I Following a jury trial, Mr. Jackson was convicted in New Mexico state court of three counts of trafficking cocaine by distribution and one count of conspiracy to traffic cocaine. His convictions were affirmed on direct appeal and his subsequent state petitions for post-conviction relief were denied. Mr. Jackson brought a habeas petition in federal district court, asserting the same issues set forth above. The New Mexico courts had addressed the merits of only the Batson issue and the ineffective-assistance-of-counsel claim related to counsel’s failure to seek disqualification of the district attorney’s office. The state courts denied relief on the other three ineffective-assistance-of-counsel claims without discussion. The magistrate judge to whom the federal habeas petition was assigned prepared a thorough, eighteen-page report fully analyzing all claims, which the district court adopted in denying the petition for habeas corpus. II Because this habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), it is governed by AEDPA’s provisions. See Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001). When reviewing the denial of a habeas corpus petition, we are generally subject to two different frameworks of review, depending upon whether the state courts addressed the merits of the claim for relief. If the state courts have not heard the claim on its merits, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error. If the state courts have addressed the claim on its merits, we review the state court ruling under the standard enunciated under 28 U.S.C. § 2254. Id. (quoting Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir.2000)). After AEDPA, a federal court may not grant habeas relief on a claim adjudicated on the merits in state court unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). State court fact findings are presumed correct unless the petitioner rebuts them by clear and convincing evidence. A state court decision is contrary to clearly established federal law under section 2254(d)(1) if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. A state court decision is an unreasonable application of federal law under section 2254(d)(2) if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. The reasonableness of the state court’s application of federal law is to be evaluated by an objective standard. The Supreme Court has cautioned that an unreasonable application of federal law is different from an incorrect or erroneous application of federal law. Id. (quotation marks, citations, and brackets omitted). Applying these standards, we have carefully reviewed the record, the parties’ arguments, and the applicable law in this case. For substantially the same reasons stated in the magistrate judge’s amended report and recommendations filed June 15, 2004, we conclude that the habeas petition was properly denied. The judgment of the district court is AFFIRMED. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

PER CURIAM: Bartholomess Robichaux, Louisiana prisoner #91571, challenges the district court’s denial of his application to proceed in forma pauperis (IFP) on appeal following the district court’s denial of his motion for summary judgment, grant of summary judgment to the defendants, and dismissal of his 42 U.S.C. § 1983 complaint against various prison officials alleging that inade quate ventilation in the prison harmed him by aggravating his asthma. Robichaux is effectively challenging the district court’s certification that he should not be granted IFP status because his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); 28 U.S.C. § 1915(a)(3). Robichaux was not entitled to summary judgment in his favor because he did not show the absence of evidence to support the defendants’ case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-27, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nor did Robichaux satisfy his summary-judgment burden of showing the existence of a genuine factual dispute material to the issue of prison conditions such that the defendants’ summary-judgment motion should have been denied. Fed.R.CivP. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250; 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because there was no genuine issue as to any material fact and the defendants were entitled to judgment as a matter of law, the district court’s determination that Robichaux’s appeal was not taken in good faith was correct. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Because Robichaux has failed to show that he has a nonfrivolous issue for appeal, we uphold the district court’s order certifying that the appeal is not taken in good faith. Robichaux’s request for IFP status is DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5th Cir. R. 42.2. IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS. Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Appealing the Judgment in a Criminal Case, Bernardo Araujo-Cantu raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.

MEMORANDUM Thomas Lee Morris appeals the district court’s grant of summary judgment in favor of defendant, Judge Winona Tanner, and defendant-intervenor, United States. For the past six years, Morris has had criminal speeding charges pending against him in the tribal court of the Confederated Salish and Kootenai Tribes (“CSKT”) in Montana. Morris is an enrolled member of the Mmnesota Chippewa Tribe, Leech Lake Reservation, but is not a member of the CSKT. He challenges the jurisdiction of the tribal court. The district court granted summary judgement against Morris. Morris v. Tanner, 288 F.Supp.2d 1133, 1144 (D.Mont.2003). Morris appealed. Morris challenges the jurisdiction of the CSKT tribal court, which was confirmed by the 1990 amendments to the Indian Civil Rights Act (“ICRA”) to extend to “all Indians” in criminal cases. See Pub.L. No. 101-511, Title VIII, § 8077(b)-(e), 104 Stat. 1856, 1892 (1990) (amending 25 U.S.C. § 1301). He contends that the 1990 amendments violate principles of equal protection and due process. In our recent opinion in Means v. Navajo Nation, — F.3d -, No. 01-17489, slip op. 11191, 2005 WL 2008433 (9th Cir. Aug. 23, 2005), however, we squarely addressed and rejected both of these challenges to the 1990 amendments to the ICRA. We are therefore bound by Means to reject Morris’ challenges as well. The judgment of the district court is therefore AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. . In Means, we also held that, as used in the 1990 amendments to ICRA, " '[a]ll Indians’ plainly includes Indians who are not members of the tribe,” but excludes "anyone who might ethnically be an Indian but who is not an enrolled member of a federally recognized tribe.” Means, — F.3d at -, slip op. at 11199.

PER CURIAM: Appealing the Judgment in a Criminal Case, Tomas Vega Ortiz raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

ORDER HENRY, Circuit Judge. Noah Q. Hill, an Oklahoma state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s decision dismissing as untimely his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He also seeks leave to proceed in forma pauperis (“IFP”). We deny Mr. Hill’s application for a COA, deny his request to proceed IFP, and dismiss this appeal. I. BACKGROUND On November 20, 1995, Mr. Hill pleaded guilty in Oklahoma County district court to first-degree murder and robbery with firearms. On November 20, 1995, the court sentenced him to a term of life imprisonment without parole and a consecutive term of fifteen years’ imprisonment. Mr. Hill did not appeal his convictions or sentences. However, on April 21, 2004, he filed an application for post-conviction relief in the Oklahoma County district court. The Oklahoma County court denied the application, and, on June 22, 2004, the Oklahoma Court of Criminal Appeals affirmed that decision. On July 14, 2004, Mr. Hill delivered to prison officials a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, he alleged that he had received ineffective assistance of counsel in violation of his Sixth Amendment rights because his attorney had failed to present mitigating evidence at sentencing and had failed to file a direct appeal. The federal district court received Mr. Hill’s petition on July 19, 2004, and referred the matter to a magistrate judge. The magistrate judge concluded that Mr. Hill’s petition was untimely and recommended dismissal. Mr. Hill objected to that recommendation, but the district court agreed with the magistrate judge and dismissed Mr. Hill’s petition as time-barred. II. DISCUSSION To obtain a COA, Mr. Hill must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Hill may make this showing by demonstrating that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (internal quotation marks omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that [the] petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Mr. Hill also seeks to proceed IFP in this appeal. In order to succeed on a motion to proceed IFP, Mr. Hill must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.1991) (addressing IFP status requirements on appeal). Here, the decision whether to grant a COA turns on the application the one-year statute of limitations for § 2254 actions, established by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), a habeas corpus petition must be filed within one year of the latest of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). As we have noted, Mr. Hill pleaded guilty on November 20, 1995. He did not seek to withdraw the guilty pleas or otherwise appeal his convictions. Thus, his convictions became final on November 30, 1995, ten days after the entry of judgment and sentence. See Okla. Stat. tit. 22, § 1051. Absent the removal of some impediment to filing, a Supreme Court decision made retroactive to cases on collateral review, the discovery of a factual predicate, see 28 U.S.C. § 2244(d)(l)(B)-(D), or the tolling of the limitations period, see 28 U.S.C. § 2244(d)(2), Mr. Hill had until April 24, 1997 (one year after AEDPA’s effective date) to timely file his § 2254 petition. See United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir.2003) (establishing April 24,1997 as end of statutory grace period); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.1997) (creating grace period beginning on April 24, 1996), overruled on other grounds by Hurst, 111 F.3d at 1260. However, Mr. Hill did not file his § 2254 petition until over seven years later. As in the district court proceedings, Mr. Hill argues that the one-year limitations period should be equitably tolled. He contends that a copy of 28 U.S.C. § 2244 was not available to him in any of the facilities in which he was incarcerated and that as a result, he was not aware of AEDPA’s statute of limitations. He adds that it was not until he received the magistrate judge’s report and recommendation that he learned that there were time limits on the filing of a habeas corpus petition. Mr. Hill also invokes the Fifth Circuit’s decision in Egerton v. Cockrell, 334 F.3d 433 (5th Cir.2003). There, the court concluded that “[t]he State’s failure to make available to a prisoner the AEDPA, which sets forth the basic procedural rules the prisoner must follow in order to avoid having his habeas petition summarily thrown out of court [constituted] an impediment” under § 2244(d)(1)(B). Id. at 438. Accordingly, the court held that the one-year limitations period did not begin to run until the petitioner was transferred to a facility where a copy of AEDPA was available. In this circuit, equitable tolling is only warranted in “rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th Cir.2003). For example, “[equitable tolling would be appropriate ... when a prisoner is actually innocent” or “when an adversary’s conduct — or other uncontrollable circumstances — prevents a prisoner from timely filing.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000). However, “[s]imple excusable neglect is not sufficient.” Id. Moreover, equitable tolling applies only “when an inmate diligently pursues his claims.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Absent such diligence, “a claim of insufficient 'access to relevant law, such as AEDPA, is not enough to support equitable tolling.” Gibson, 232 F.3d at 808; Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998) (noting that “[the petitioner] has provided no specificity regarding the alleged lack of access [to AEDPA]” and that “[i]t is not enough to say that [a particular correctional] facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate” and therefore concluding that equitable tolling of the limitations period was not warranted). We agree with the district court that Mr. Hill has not met this circuit’s standard for equitable tolling. More than eight years elapsed between the imposition of Mr. Hill's sentence in November 1995 and the filing of his state post-conviction action in April 2004, and he offers no explanation of this long delay. Moreover, by Mr. Hill’s own account, he filed his state post-conviction action when he was still unaware of AEDPA, and the fact that he was able to do so undermines the proposition that a lack of access to AEDPA caused the delay in filing his § 2254 petition. See id. (noting that “the claims [the petitioner] sought to raise are similar to those raised in his direct appeal and motion for state postconviction relief, thereby undercutting his argument that lack of access caused his delay”). III. CONCLUSION Accordingly, we DENY Mr. Hill’s application for a COA, DENY his request to proceed IFP, and DISMISS this appeal. . We also note that the Fifth Circuit case on which Mr. Hill relies is distinguishable in important respects. There, the petitioner alleged that within the eight an a half month period following the imposition of his sentence, he filed numerous requests for legal materials but was informed by prison officials to cease filing these requests because law library privileges were unavailable to prisoners in his housing unit. Egerton, 334 F.3d at 435. Moreover, unlike Mr. Hill, the petitioner did not file a state post-conviction proceeding until after he learned about AEDPA. Id. Thus, the prejudicial effect of the lack of access to AEDPA was supported by the record in a manner that is lacking here.

ON PETITION FOR REHEARING PER CURIAM. Our opinion in this case issued on June 7, 2005. In this petition for panel rehearing, Tom James Company requests that we rehear its cross appeal with respect to the narrow issue of disgorgement of Walter Louie Morgan, Jr.’s profits. The petition for panel rehearing is GRANTED. We vacate our prior opinion in this appeal and substitute the following opinion, in which we have made substantive changes to section II.B. and conclude that the denial of disgorgement of Morgan’s profits should be vacated and remanded to the district court. Defendant Walter Louie Morgan, Jr. (“Morgan”) seeks review of the district court’s January 14, 2004, order of civil contempt, and its September 28, 2004, order awarding attorney’s fees and costs to Plaintiff Tom James Co. (“Tom James”). Tom James also appeals the district court’s September 28, 2004, order awarding attorney’s fees and costs. I. Background Morgan is a former sales employee of Tom James Co., a men’s business and business casual clothing retailer. Morgan worked for Tom James for approximately fifteen years before he left the company to start his own business, Benchmade Clothing of Atlanta. Since ending his employment with Tom James Co., Morgan has contacted and made sales to customers whom he previously serviced while employed by Tom James. As a result, on February 21, 2002, Tom James sued Morgan for alleged violations of covenants not to compete and not to disclose confidential information and trade secrets. In December of 2002, Tom James and Morgan amicably resolved the suit by entering into a Settlement Agreement and Release. Additionally, Morgan agreed and consented to an injunction that was prepared and submitted to the court by Tom James. The district court entered the injunction on December 20, 2002. Pursuant to the terms of the injunction, Morgan was “enjoined, until December 12, 2004, from directly or indirectly soliciting, for the sale of clothing and wardrobe accessories of the sort he sold for [Tom James], those customers of [Tom James] as to whom he was paid a sales commission while employed by [Tom James], ... [and is further enjoined] from directly or indirectly selling such clothing and wardrobe accessories to any such customers even in the absence of any solicitation.” In September 2003, Tom James, alleging that Morgan had violated the injunction, filed a motion for criminal and civil contempt. Over several days in November and December of 2003, the district court held an evidentiary hearing on the motion. During the lengthy evidentiary hearing, the district court, citing Young v. U.S. ex rel Vuitton et Fils, SA, 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), suspended the criminal contempt proceedings, and proceeded only with the civil contempt proceedings; As evidence that Morgan violated the injunction, Tom James offered the testimony of five men who originally were customers of Morgan when he was employed by Tom James and had continued to be customers of Morgan after he terminated his employment with Tom James. In its January 14, 2004, order (“contempt order”), the district court found Morgan in civil contempt, ordered Morgan to pay nominal damages of $500.00 ($100.00 per each of the five customer witnesses) plus attorney’s fees, and declined to award compensatory damages or equitable relief to Tom James. In accordance with the terms of the contempt order, Tom James submitted a fee petition in which it requested $115,375.20 in attorney’s fees and $26,917.86 in costs. After reviewing the attorney’s fees and costs incurred, the district court awarded Tom James $76,917.00 in attorney’s fees and $5,324.08 in costs. II. Discussion Morgan asserts that the district court’s finding of civil contempt constitutes reversible error. Alternatively, Morgan claims that the district court awarded Tom James an excessive amount of attorney’s fees and costs. Tom James, on the contrary, argues that the amount of attorney’s fees and costs awarded was not sufficient. A. Civil Contempt “A finding of civil contempt must be based on clear and convincing evidence that a court order was violated.” Jove Eng’g v. I.R.S., 92 F.3d 1539, 1545 (11th Cir.1996) (citation and internal quotation omitted). This standard is more exacting than the preponderance of the evidence standard, but does not require proof beyond a reasonable doubt. See id. We review the district court’s determination of civil contempt for abuse of discretion. Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990) (citing Afro-American Patrolmen’s League v. City of Atlanta, 817 F.2d 719, 723 (11th Cir.1987)). “A district court abuses its discretion when it misconstrues its proper role, ignores or misunderstands the relevant evidence, and bases its decision upon considerations having little factual support.” Arlook v. S. Lichtenberg & Co., Inc., 952 F.2d 367, 374 (11th Cir.1992). Morgan argues numerous grounds on which we should find that the district court abused its discretion in finding him in civil contempt. 1. The Injunction Morgan first argues that the December 20, 2002, injunction is unenforceable because it is vague, ambiguous, and overly broad. Rule 65 of the Federal Rules of Civil Procedure requires that an injunction be “specific in terms” and describe “in reasonable detail the acts sought to be restrained.” Nevertheless, we “do not set aside injunctions under Rule 65(d) unless they are so vague that they have no reasonably specific meaning.” Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1203 (11th Cir.2001) (internal quotations omitted). In other words, “the inquiry should be whether the parties subject to the injunctive order understood their obligations under the order.” Williams v. City of Dothan, Ala., 818 F.2d 755, 761 (11th Cir.1987). Morgan asserts that the injunction did not explain with specificity what actions were enjoined, and is broader in scope than the relief Tom James originally requested in the complaint. We note, however, that Morgan voluntarily agreed to be bound by the terms of the injunction as part of the settlement agreement negotiated to amicably resolve the suit Tom James filed against Morgan. In return, Tom James agreed to dismiss with prejudice its claims against Morgan. Moreover, Morgan was represented by counsel in this bargained for exchange. At no point prior to the contempt proceeding did Morgan complain to the court about the adequacy of the terms of the injunction or seek to have it modified. Accordingly, at this point, any objection to the specific terms of the injunction is deemed waived. See Combs v. Ryan’s Coal Co., Inc., 785 F.2d 970, 979 (11th Cir.1986). Nevertheless, even if Morgan had not waived his objections to the injunction, the injunction is not vague, ambiguous, or overly broad. Pursuant to the terms of the injunction, Morgan was prohibited for a period of approximately two years from selling “clothing and wardrobe accessories of the sort he sold” while employed by Tom James to the customers to whom he sold while employed by Tom James. Morgan worked at Tom James for over fourteen years and was familiar with the clothing sold by that company such that he should understand his obligations under the injunction. Further, the relief resulting from the injunction does not exceed the scope of the relief requested in the complaint. Nonetheless, even if it did, the voluntary injunction is enforceable. See Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525-26, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (court may issue an agreed upon injunction providing for broader relief than available pursuant to the terms of the complaint so long as the agreement is “within the general scope of the case made by the pleadings” and does not “conflict ] with or violate[ ] the statute upon which the complaint was based”). Since the injunction was not vague, ambiguous, or overly broad, we will not reverse the district court’s order of civil contempt on these grounds. 2. Exclusion of Evidence Morgan appeals the district court’s exclusion of the testimony of two of his experts and evidence regarding the differences between the clothing that he sold while at Tom James and after leaving Tom James. Rather than permit the experts to testify, the district court permitted Morgan to submit a written proffer of their testimony. For these evidentiary rulings to be reversible, Morgan must not only show that the error, was an abuse of the district court’s discretion, but also that he was prejudiced by the omission. See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir.2002). Morgan has shown neither. Thus, we will not reverse the district court on these evidentiary rulings. 3. Sufficiency of the Evidence Morgan asserts that Tom James failed to prove with clear and convincing evidence that the clothing Morgan sold after December 20, 2002, violated the terms of the injunction. Specifically, Morgan alleges that Tom James should have admitted samples of the clothing at issue into evidence during its case in chief. Notably, any alleged failure on the part of Tom James was cured when Morgan himself entered samples of the clothing sold by him as well as clothing sold by Tom James into evidence during his defense. Moreover, the district court had the benefit of voluminous testimony, including that of Tom James’s former customers. Based on this testimony and other evidence, the district court did not abuse its discretion in finding that Tom James had proven a violation of the injunction with clear and convincing evidence. B. Damages Award Ultimately, the district court awarded Tom James nominal damages in the amount of $500.00, attorney’s fees in the amount of $76,917.00, and costs in the amount of $5,324.08. Both Morgan and Tom James dispute this damages award. “[Sjanctions in civil contempt proceedings may be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” Local 28, Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443, 106 S.Ct. 3019, 3033, 92 L.Ed.2d 344 (1986) (internal quotations omitted) (emphasis added). We give the district court broad discretion in fashioning sanctions for civil contempt. See Khimani, 892 F.2d at 1519. Morgan argues that the district court’s award of attorney’s fees and costs should be reversed because Tom James’ fee request is unreasonable. Specifically, Morgan alleges that Tom James exercised poor billing judgment and maintained improper and inaccurate billing records. We note that the district court has “wide discretion” in awarding fees and costs. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). While we agree that Tom James’s billing records are not a good model for filing a successful fee petition, we do not find that the amount of attorney’s fees and costs, with the exception of investigative costs discussed infra, rises to the level of reversible error. In its cross appeal, Tom James requests that we reverse the district court’s award of attorney’s fees and remand so that the district court can award additional damages. First, Tom James asserts that the district court erred in holding that lost revenues and disgorgement of profits are not recoverable in civil contempt proceeding. We disagree with Tom James’s assessment that the district court misconstrued its power to award lost revenue as damages. At no point did the district court state that lost revenue was not recoverable as civil contempt sanctions. On the contrary, the district court exhibited that it was fully aware of its discretion to award such damages, but ultimately determined that Tom James had not presented sufficient evidence to merit damages for lost revenue. This decision is well within the district court’s wide discretion and does not constitute reversible error. With regard to disgorgement of Morgan’s profits, we reach a different conclusion. Having reviewed the transcripts of the contempt hearing and the January 14, 2004 contempt order, it appears that the district court’s interpretation of its inherent power to order disgorgement of Morgan’s profits as a civil contempt sanction is ambiguous. We review de novo a district court’s decision that it does not have the legal authority to award a particular type of contempt sanction. See EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1515 (11th Cir.1987). To the extent that the district court did not think that the disgorgement of Morgan’s profits was within its power to award as a civil contempt sanction, the district court erred. Accordingly, we vacate the portion of the district court’s January 14, 2004, order relating to the disgorgement of Morgan’s alleged profits, and remand so that the district court may exercise its broad discretion in awarding civil contempt sanctions. Of course, implicit in this broad discretion to award civil contempt sanctions is the discretion to choose not to award disgorgement of any alleged profits. Second, Tom James argues that it presented sufficient evidence that the district court should have awarded it lost profits due to Morgan’s violations of the injunction. Again, such a determination of compensatory damages is within the district court’s wide discretion. Having reviewed the evidence proffered by Tom James, we will not disturb the district court’s denial of recovery for alleged lost profits. Third, Tom James claims that the district court erred in disallowing reim bursement for $16,966.50 in investigative expenses. Specifically, Tom James asserts that the district court erred in its belief that Rule 54(d) and 28 U.S.C. § 1920 restricted its inherent authority to award expenses as a sanction for contempt such that investigative fees were unrecoverable as a matter of law. In awarding costs as a sanction for contempt, the district court is not bound by § 1920’s list of costs that may be taxed pursuant to a final judgment. See Sheila’s Shine Products, Inc. v. Sheila Shine, Inc., 486 F.2d 114, 130-31 (5th Cir.1973). Instead, the district court, in its discretion, may exercise its “wide power ... to impose fines for disobedience to its orders.” Id. In this case, the district court concluded that Tom James could not recover its investigative costs pursuant to Rule 54(d) and § 1920. This narrow interpretation of its inherent power to sanction was an error. Of course, as we stated above, implicit in the district court’s inherent power to award contempt sanctions is also the district court’s inherent power to decline to award reimbursement for these investigative expenses. Thus, we vacate the denial of investigative expenses and remand to the district court so that it may exercise its inherent power and broad discretion with an understanding that it is not restricted by Rule 54(d) and § 1920. III. Conclusion We have carefully and thoroughly reviewed the record, the hearing transcripts, the briefs of the parties, and the relevant orders of the district court. With the exception of the denial as a matter of law of the disgorgement of Morgan’s profits and recovery for investigative expenses, we find no reversible error, and affirm the orders of the district court. We vacate the district court’s denial of disgorgement of Morgan’s profits and investigative expenses, and remand to the district court for consideration of the propriety of awarding these damages to Tom James. AFFIRMED IN PART; VACATED AND REMANDED IN PART. . In Bonner v. Prichard, 661 F.2d 1206, 1209 (lith Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

MEMORANDUM The Supreme Court vacated our judgment entered October 26, 2004, and remanded for further consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Olea-Pino’s Sixth Amendment challenge to his sentencing enhancement, based on a prior aggravated felony, remains foreclosed after Booker. See United States v. Moreno-Hernandez, No. 03-30387, 2005 WL 1560269, *8 n. 8 (9th Cir. July 5, 2005) (explaining that a district judge’s enhancing a sentence based on the fact of a prior conviction does not raise any Sixth Amendment problems). Because Olea-Pino was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory, we remand to the sentencing court to answer that question, and to proceed pursuant to United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir.2005) (en banc). See United States v. Moreno-Hernandez, id., at *9 (extending Ameline’s limited remand procedure to cases involving non-constitutional Booker error). REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

ORDER Before the Court is defendant-appellant John D. Ohlinger’s petition for rehearing. Pursuant to a written plea agreement, on March 30, 2003, Ohlinger pled guilty to transporting in interstate commerce a visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1). His offense of conviction consisted of e-mailing a photograph of a naked child to an undercover agent on February 16, 2002. The district court also considered as relevant conduct defendant’s possession of numerous depictions of chil dren engaged in sexually explicit conduct on his personal computer. The district court departed upward and sentenced defendant to 360 months of imprisonment, the statutory maximum. Following a limited remand pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.2005), the district judge reported that he would have imposed the same sentence under an advisory guidelines regime. Thereafter, we affirmed Ohlinger’s sentence as reasonable. In his petition for rehearing, defendant correctly points out that we have not ruled on two claimed errors in the district court’s application of the sentencing guidelines. Ohlinger raised these issues in his initial appellate brief, filed prior to this Court’s decision in United States v. Booker, 375 F.3d 508 (7th Cir.2004). We therefore grant the petition for rehearing in order to address the district court’s application of the sentencing guidelines. Because both parties have extensively briefed the guidelines issues, neither further briefing nor additional argument is necessary. We have examined the record at length and find no error in the district court’s application of the sentencing guidelines. Accordingly, we reaffirm Ohlinger’s sentence. The first sentencing argument presented by Ohlinger is that the district court erred in assigning him three criminal history points for a 1983 conviction for oral copulation and molestation of a child under the age of fourteen. Defendant contends that this conviction is too remote in time to count in his criminal history. The guidelines provide that a defendant’s criminal history should include “any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated ... within fifteen years of the defendant’s commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(l). “Commencement of the instant offense” includes relevant conduct, which is defined as “all acts and omissions ... caused by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. §§ 4A1.2, cmt. n. 8; lB1.3(a)(l). Ohlinger was last incarcerated for the 1983 conviction on October 25, 1986. The question under the guidelines is whether Ohlinger commenced the instant offense (or committed any relevant conduct) on or before October 25, 2001. The district court found that Ohlinger’s relevant conduct began on October 6, 2001 when he created an online profile on a Yahoo! website titled “All Things Sexually Accepted.” Ohlinger identified himself on the website as a “pedophile truck driver” interested in “picture trading” and posted a photograph of himself naked. Agent Eric Szatkowski of the Wisconsin Department of Justice, posing as a female pedophile, later began e-mail communications with defendant through this website. Defendant contends that the district court erred in considering his postings to the chat room as relevant conduct, arguing that they were legal and had no relation to the offense of conviction. Relevant conduct determinations are factual findings that we review with great deference to the district court, reversing only in the case of clear error. United States v. Breland, 356 F.3d 787, 795 (7th Cir.2004). The district court did not clearly err in finding that Ohlinger’s October 6, 2001 posting was “in preparation for” his later offense of transmitting child pornography across state lines. Ohlinger had to find a willing recipient in order to transmit the.illegal image; he did so through his posting to the chat room in which he identified himself as a pedophile interested in meeting a female pedophile. That Agent Szatkowski did not respond to Ohlinger’s posting until several months later does not render his initial message any less relevant to the ultimate offense of conviction. Moreover, defendant’s assertion that his web activity was not illegal by itself does not preclude its consideration as relevant conduct in determining whether the offense of conviction commenced within the fifteen-year period. See U.S.S.G. § 1B1.3, cmt. n. 1 (“The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability.”); United States v. Gabel, 85 F.3d 1217, 1223 (7th Cir.1996) (preparatory acts such as opening several bank accounts and creating a shell corporation could qualify as relevant conduct to the crime of illegal structuring of transactions for the purpose of determining criminal history). Ohlinger adopts a different strategy in his reply brief, arguing that the 1983 conviction cannot be counted toward his criminal history because the district court also considered that offense as “relevant conduct” to his offense of conviction. According to Ohlinger, the district court considered his 1983 offense as evidence that he had “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor,” which resulted in a five-level increase to his offense level under § 2G2.2(b)(4). He therefore contends that considering that offense in calculating his criminal history constitutes impermissible double counting. We need not consider this argument because defendant raised it for the first time in his appellate reply brief. United States v. Collins, 361 F.3d 343, 349 (7th Cir.2004). In any event, we note that the district court did not err in counting the 1983 conviction both toward defendant’s criminal history and his offense level. The guidelines expressly instruct the sentencing judge to do so. See U.S.S.G. § 2G2.2(b)(4), cmt. n. 2 (“Prior convictions taken into account under subsection (b)(4) are also counted for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History).”). Ohlinger also contends that the district court’s decision to depart upward was erroneous. The court departed upward one criminal history category, from V to VI, on the ground that defendant’s criminal history did not adequately reflect the seriousness of his past criminal conduct or the likelihood that he would commit other crimes. In support of this departure, the district court mentioned a 1981 conviction for child molestation, which fell outside the fifteen-year time limit, as well as sexual abuse described in a 1987 complaint. Defendant argues that the departure decision was erroneous because the court used the same underlying facts to apply the five-point enhancement for pattern of abuse under § 2G2.2(b)(4). He also asserts more generally that his criminal history category was adequate and not outside the heartland of child pornography cases. Despite the government’s contention to the contrary, defendant adequately preserved the departure issue for our consideration on appeal. We review the decision to depart upward de novo. United States v. Griffith, 344 F.3d 714, 718 (7th Cir.2003). We conclude that this departure was not erroneous. Application note 2 to § 2G2.2 specifically provides that “an upward departure may be warranted if the defendant received an enhancement under subsection (b)(4) but that enhancement does not adequately reflect the seriousness of the sexual abuse or exploitation involved.” Moreover, the district court provided proper and adequate justification for the departure. In announcing its decision to depart, the district court observed: The Court has examined the entire file in this matter and found the actions of the defendant most egregious, perhaps more so than any similar case which the Court has had an opportunity to preside over. There is some hardcore [sic] here that is frightening and the Court is of the opinion that the circumstances are indeed egregious. (Sent. Tr. at 31.) The district court also concluded that “defendant’s criminal history is significantly more serious than most defendants in the Criminal V area.” (Id. at 33.) Finally, the court noted that defendant posed a clear danger to the community and “must be incapacitated by confinement for as long as possible.” (Id. at 31.) These reasons provide a sound basis for upward departure. See U.S.S.G. § 4A1.2, cmt. n. 8 (“If the court finds that a sentence imposed outside [the fifteen-year] time period is evidence of similar, or serious dissimilar, criminal conduct, the court may consider this information in determining whether an upward departure is warranted under § 4A1.3.”); § 4A1.3(a) (permitting court to consider “prior sentenced] not used in computing the criminal history category” in deciding to depart); § 4A1.3(e) (permitting consideration of “prior similar adult conduct not resulting in a criminal conviction”); Griffith, 344 F.3d at 719-20 (affirming upward departure in sentence for pornography distribution where defendant’s photographs were the worst the judge had seen in 35-year legal career and defendant posed serious risk of future dangerousness); United States v. Turchen, 187 F.3d 735, 742 (7th Cir.1999) (affirming upward departure in child pornography case where defendant’s criminal history and unsuccessful rehabilitation suggested risk of recidivism). Because we have determined that the district court did not err in applying the guidelines and that the sentence of 360 months is reasonable, the judgment of the district court is AFFIRMED.

PER CURIAM: We affirm the judgment in this case on the basis of the thorough and well-reasoned discussion of the issues in the January 28, 2004 Report and Recommendation of United States Magistrate Judge Gerrilyn Brill, as adopted and supplemented by the July 29, 2004 order of United States District Court Judge Richard W. Story.

MEMORANDUM Appellants Studio 2000 USA Inc. (“Studio”) and Studio’s bankruptcy counsel, Albert Kun, appeal the Bankruptcy Appellate Panel’s (“BAP”) decisions affirming the bankruptcy court, which dismissed Studio’s Chapter 11 case and imposed sanctions on Kun. We have jurisdiction pursuant to 28 U.S.C. § 158(d). After a careful review of the record and briefs, we affirm for the reasons stated in the well-reasoned BAP opinions. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

PER CURIAM: Sergio Alcantar-Saldana, also known as Carlos Morales-Saldana, pleaded guilty to reentry after deportation in violation of 8 U.S.C. §§ 1326(a) and (b) and was sentenced to 27 months of imprisonment and three years of supervised release. He appeals his conviction and sentence. For the first time on appeal, Alcantar-Saldana contends that he was illegally sentenced pursuant to the formerly-mandatory sentencing guidelines regime, in violation of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Sentencing a defendant pursuant to a mandatory guidelines scheme, standing alone, constitutes “Fanfan ” error, and such an error is “plain.” See Booker, 125 S.Ct. at 769; United States v. ValenzuelaQuevedo, 407 F.3d 728, 733 (5th Cir.2005), petition for cert. filed (July 25, 2005) (No. 05-5556). Alcantar-Saldana argues that he has made this showing based on the district court’s comments at sentencing. Alcantar-Saldana mischaracterizes the sentencing judge’s comments and takes them out of context. The judge’s comments were clearly directed to the harshness of the immigration laws, which make it illegal to return to the United States without obtaining permission after having been deported. The judge’s comments did not refer to the sentencing guidelines at all. There is nothing in the judge’s comments which indicate that the judge would have sentenced Alcantar-Saldana below the guideline range if he had that discretion. “[TJhere is no indication in the record from the sentencing judge’s remarks or otherwise” that the court would have imposed a different sentence under an advisory guidelines regime. United States v. Mares, 402 F.3d 511, 522 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Because Alcantar-Saldana has not shown that the error affected his “substantial rights,” see id. at 521, he has not demonstrated plain error. Alcantar-Saldana also argues that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, 8 U.S.C. § 1326(b) is unconstitutional because it permits a sentencing judge to increase a sentence beyond the statutory maximum based on a factor that need not be submitted to a jury for proof or admitted by the defendant. Alcantar-Saldana concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for possible Supreme Court review. This court must follow Almendarez-Torres “ ‘unless and until the Supreme Court itself determines to overrule it.’ ” United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.2005) (citation omitted), petition for cert. filed (July 22, 2005) (No. 05-5469). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Eduardo Efrain Chavez appeals his guilty-plea conviction and sentence for pos session of more than 1,000 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) and (b)(1)(A). He argues that the sentencing provisions of 21 U.S.C. § 841(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Chavez concedes that his argument is foreclosed by our opinion in United States v. Slaughter, 238 F.3d 580, 581-82 (5th Cir.2000). See United States v. Valenzuela-Quevedo, 407 F.3d 728, 731 (5th Cir.2005), petition for cert. filed (July 25, 2005)(No. 05-5556). He raises the issue only to preserve it for further review. Accordingly, Chavez’s argument is foreclosed, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is REMANDED with instructions to vacate the sentence and resentence in conformity with Booker. Defendant Sayed Abdul Malike, appeals from a judgment of the United States District for the Eastern District of New York (Gershon, J.) convicting him, upon his plea of guilty, of making a materially false statement in a matter within the jurisdiction of the executive branch of the United States Government in violation of 18 U.S.C. § 1001(a)(2). The District Court sentenced him principally to a term of incarceration of thirty-seven months. Familiarity with the relevant facts, procedural history, and the issues on appeal is assumed. Appellant is an Afghani asylee, legally residing in the United States. He has been employed driving a taxi in New York City. In April 2003, Appellant inquired of a store-owner about building a bomb. The store-owner relayed his questions to the FBI, which commenced an investigation of Appellant. During four meetings with an undercover officer, Appellant discussed purchasing explosives, night vision goggles, bulletproof vests, bullet proofing material for a car, Valium, and Viagra. At each meeting, Appellant stated he wanted the materials in order to mine for precious stones in Afghanistan. He stated he had a friend who might start such a venture with him, and he could not purchase the equipment, until he received confirmation from his friend. Appellant was fully aware that the equipment he discussed purchasing was stolen. At the fourth meeting with the undercover, Appellant agreed to purchase Valium. He was immediately arrested for unlawful possession. In his post arrest statement, he made several false statements to the FBI agents. Appellant was indicted for making false statements and unlawfully possessing Valium. He pleaded guilty to the false statement charge. The false statement charge carries a guidelines range of zero to six months. The District Court upwardly departed, based on either U.S.S.G. § 2B1.1 or § 5K2.9, enhanced under § 3C1.1, and denied a downward departure for acceptance of responsibility. To calculate the extent of the U.S.S.G. § 2B1.1 departure, the Court relied on U.S.S.G. § 2J1.2 Obstruction of Justice, because Appellant’s lies caused the Government to expend resources in a prolonged investigation. To calculate the extent of the U.S.S.G. § 5K2.9 departure, the Court relied U.S.S.G. § 2K1.3 for an unlawful receipt of explosives, because Appellant contemplated purchasing stolen explosives, and the Court looked to 18 U.S.C. § 842(i) because Appellant, as an alien, was prohibited from purchasing explosives. The Court also relied on New York Penal Law 270.20 making it illegal to wear a bulletproof vest while possessing a firearm and committing a violent felony, because Appellant sought to purchase bulletproof vests and explosives. The Court then sentenced him to the top of the range for the § 5K2.9 departure with the § 3C1.1 enhancement, namely to thirty-seven months. On appeal, Appellant challenges his sentence on numerous grounds. As an initial matter, Appellant requests a remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005), because the District Court’s compulsory use of the Guidelines violated United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). This error was not preserved for appellate review and the Government concedes the appropriateness of a Crosby remand. See United States v. Fagans, 406 F.3d 138,140-41 (2d Cir.2005). We agree that the District Court’s compulsory use of the Guidelines violated Booker and customarily we would issue a Crosby remand in order to determine whether a materially different sentence would have been imposed in a system with advisory Guidelines. However, in this case, we vacate the entire sentence in order to afford the District Court a fresh opportunity to impose a post-Booker sentence and to consider some difficult issues this case presents, which we briefly note below. We do not, however, reach these difficult issues of law because the District Court’s findings on remand may well moot such a discussion. Appellant maintains that his case, similar to most cases of making a false statement to the executive, was a post arrest false denial of guilt and therefore U.S.S.G. § 5K2.9 is not available as a basis for departure. See, e.g. United States v. Robertson, 324 F.3d 1028, 1031-32 (8th Cir.2003) (holding that false post arrest statements regarding wrongdoing are not unusual or outside the heartland). Appellant takes issue with the Government’s reliance on United States v. LeMaster, 54 F.3d 1224, 1232-33 (6th Cir.1995), in its request for the enhancement because, in Le Master, the defendant was indicted for an underlying crime about which he lied. Here, however, that did not occur. Our Court has not spoken to the issue of whether a § 5K2.9 departure is available in sentencing a defendant convicted under 18 U.S.C. § 1001 where the false statements are merely denials of culpability.. Nor has our Court spoken to the issue of the required specificity of a sentencing court’s finding of “another offense,” 'within the meaning of § 5K2.9. To calculate the extent of the departure under § 5K2.9, the District Court looked to 18 U.S.C. § 842(i), which makes it unlawful for several categories of persons “to receive or possess any explosive.” In 2003, § 842(i) was amended to include certain aliens. Because the Government did not argue for the consideration of § 842(i) in calculating the extent of the departure, the Appellant did not have an opportunity to challenge it, potentially violating Burns v. United States, 501 U.S. 129, 138-39, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (“We hold that before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure.”), and United States v. Thorn, 317 F.3d 107, 129 (2d Cir.2003) (“Before sentence is imposed, the district court must give the government both notice of the court’s intention to depart, including the factors that the judge is planning to rely upon, and some brief explanation as to why these factors warrant a departure, and an opportunity to be heard as to why the contemplated departure is unwarranted.”). Our Court has not yet resolved whether and to what extent the calculation of a departure in the manner in which it was done here — as distinct from the basis for that departure — requires notice. To calculate the extent of the departure under § 5K2.9, the District Court also relied on U.S.S.G. § 2K1.3(a)(3) for Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials, and on New York Penal Law 270.20. Appellant contends that it was improper to rely on § 2K1.3(a)(3) by analogy, because he never actually purchased explosives, and on New York Penal Law § 270.20, because he did not wear a vest, nor did he possess a firearm or commit a violent felony. The District Court’s reliance on U.S.S.G. § 2K1.3(a)(3) and New York Penal Law 270.20 is not clear, given that these statutes both reference several significant factors not “same or similar” to Appellant’s offense conduct. Cf. United States v. Stephens, 7 F.3d 285, 290 (2d Cir.1993). For the foregoing reasons, the case is remanded to the District Court with instructions to vacate the sentence and re-sentence in conformity with Booker. . U.S.S.G. § 5K2.9 provides: "If the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant's conduct.” . New York Penal Law § 270.20 provides: "A person is guilty of the unlawful wearing of a body vest when acting either alone or with one or more other persons he commits any violent felony offense defined in section 70.02 while possessing a firearm, rifle or shotgun and in the course of and in furtherance of such crime he wears a body vest.”

PER CURIAM. The appeal pending from the filing of notice of appeal to the District Court’s order denying appellant’s motion to vacate sentence under 28 U.S.C.A. § 2255 is permitted to be docketed without payment of fee. The Memorandum and Order of the District Court fully disposes of appellant’s contentions and clearly shows that the appeal is frivolous. Leave to proceed further in forma pauperis is accordingly denied; the motion for appointment of counsel is overruled; and the appeal is hereby dismissed as frivolous. Appeal docketed and dismissed.

BLODGETT, District Judge. I have examined the law bearing upon these questions which have been raised on this motion to quash, and shall be obliged under the authorities to overrule the motion. The objection taken against this indictment is that the defendant is charged with having removed five kegs of lager beer without affixing and canceling a stamp denoting the tax on said beer, and that by the internal revenue law lager beer was not subject to a tax until it was removed for the purpose of sale; that it might be removed for various purposes, such as to change the place of warehousing and various other purposes under the various provisions of the act of 1866 (.Act July 13, 1866; 14 Stat. 166, §§ 33, 54), without subjecting it to a tax, and that it is therefore the duty of the plead-hr to negative in his indictment any and all of these innocent removals which a party might perform without subjecting his beer to a stamp duty; that is to say, according to the position taken by the defendant's counsel it was the duty of the pleader on the part of the government to negative all cases where the law authorized a removal without the affixing and cancellation of a stamp. The case comes within the general rule which is laid down in Wharton (Whart. Cr. Law, § 293), and I think it fully answers the argument of the defendant. The clauses quoted and relied upon by the counsel are all of them in different sections from that which prescribes these penalties, and furnish exceptions to the general rule. The act taken together— the act of 1866, and all the acts amendatory of it—provides that beer is not to be removed from the place of manufacture until it is stamped; the presumption is, it is only to be removed when in condition for sale, and when it is sold. The removal is not to take place, under the general scope of the act, until the kegs are properly stamped and the stamps canceled. All the cases where removal can take place without the cancellation of the stamps are exceptional to the general principle of .the act, and therefore the ease comes within the principle laid down in Wharton: “It is not necessary to charge in the indictment anything more than is requisite to make out the offense.” In other words, it is sufficient as a general rule to charge an offense in the language of the statute. That is a fundamental law of pleading. The principle is understood by all members of the bar that where the exception does not occur in the enacting clause it is not necessary to set it out in the indictment, but where it occurs elsewhere than in the enacting clause, the exception may come in by way of defense, and it is not necessary for the pleader to set it out. The application of this principle disposes of this objection to the indictment. The next objection made to the indictment is that it is too general. The language is that defendant on a certain time “did carry on the business of a brewer, and did then and there remove from his brewery a large number, to wit, five kegs of lager beer, and did then and there neglect to affix and cancel on said kegs the stamps required by law.” The objection taken to this averment is that it is too general, that it does not point out to the defendant with sufficient particularity the specific offense with which he is charged, that is, the time, place and circumstances under which he committed the offense, so as to enable him to prepare for a trial. If this were an indictment for a felony, or was even a common law indictment, I think the objection would hold good, but coming under a class of offenses known as purely statutory, and a misdemeanor, where the pleading is much more loose, the rule has grown up, especially in the English courts under their revenue law, of requiring with these specific charges a bill of particulars whenever the defendant made it appear to the satisfaction of the court that it was necessary for the purpose of trial that he should have such specifications, pointing out the character of the offense so as to enable him to prepare himself properly for trial. I shall therefore overrule this motion to quash the indictment, with the statement, however, that in all cases where the charge is general, like this, if the defendant asks for a bill of particulars, or that the prosecutor shall file in the case a detailed statement of the time aud place of the occurrence described, I shall make a rule to that effect, in order that no excuse of want of certainty may delay the trial of the cause. The prosecution will then be held strictly within its bill of particulars and specifications. Motion to quash overruled. NOTE. The same rule above laid down by Judge Blodgett, was applied by Judge Drum-mond .to a case of information for a forfeiture, where he held that it was not necessary for the information to allege that the case was not within a proviso in the statute; that it was for the defense to set up anything coming within the proviso. The Mary Merritt [Case No. 9.222). Consult, also, U. S. v. One Distillery [Id. 15.929), and notes thereto; U. S. v. Cook, 17 Wall. [84 U. S.) 173; The Merritt, Id. 582.

OPINION EN BANC COFFIN, Circuit Judge. This complex litigation has involved this court at three stages. On first hearing the appeal from the district court we certified two questions to the Supreme Judicial Court of Massachusetts. After considering its responses, together with its suggestions on an issue not expressly raised by either question, a panel of this court agreed on the disposition of issues relating to plaintiffs’ contract claim but divided as to the disposition of a claim under the Massachusetts Civil Rights Act (MCRA), Mass.Gen. L. ch. 12, §§ 11H — I (1986). Subsequently, the panel opinion and dissent were withdrawn in order to reconsider the MCRA claim in an en banc proceeding. We now proceed with our en banc opinion, which includes and reaffirms the panel’s position on the contract claim, but differs from the panel majority by concluding that, as a matter of Massachusetts law, defendant is not subject to MCRA liability. The plaintiffs, actress Vanessa Redgrave and Vanessa Redgrave Enterprises, Ltd. (hereinafter Redgrave), brought suit against the Boston Symphony Orchestra (hereinafter the BSO) for cancelling a contract for Redgrave’s appearance as narrator in a performance of Stravinsky’s “Oedipus Rex.” The cancellation occurred in the wake of protests over Redgrave’s participation because of her support of the Palestine Liberation Organization. She sought recovery both for breach of contract and for violation of her civil rights under the MCRA. A jury awarded Redgrave $100,000 in consequential damages caused by the BSO’s breach of contract; sitting in an advisory capacity on Redgrave’s MCRA claim, the jury found for the BSO. On the BSO’s motion for judgment notwithstanding the verdict on the consequential damages issue, the district court held that the evidence of consequential damages was sufficient but that Redgrave could not recover these damages because of First Amendment limitations. The court also held that the MCRA does not impose liability on a party for acquiescence to third party pressure. Redgrave appealed from these rulings, and the BSO cross-appealed, arguing that the evidence of consequential damages was insufficient. We conclude, in Part II, that the district court erred in reversing the jury’s award of consequential damages, but that Redgrave has presented sufficient evidence to prove only $12,000 in consequential damages, minus certain expenses. In Part III, we report and accept the response of the Massachusetts Supreme Judicial Court to our certified questions that acquiescence to third party pressure is not a defense to an action under the MCRA. In Part IV, we discuss the conclusions of the Justices of the Supreme Judicial Court that, for different but consistent reasons of Massachusetts law, the BSO is not subject to MCRA liability in these circumstances. We therefore affirm the judgment for the BSO on the MCRA claim and remand for entry of a reduced judgment for consequential damages on the contract claim. I. PROCEDURAL HISTORY In March 1982, the Boston Symphony Orchestra (BSO) engaged Vanessa Redgrave to narrate Stravinsky’s “Oedipus Rex” in a series of concerts in Boston and New York. Following announcement of the engagement, the BSO received calls from its subscribers and from community members protesting the engagement because of Redgrave’s political support for the Palestine Liberation Organization and because of her views regarding the state of Israel. On or about April 1, 1982, the BSO cancelled its contract with Redgrave and its performances of “Oedipus Rex.” Redgrave sued the BSO for breach of contract and for violation of the MCRA. The BSO argued at trial that the contract rightfully was cancelled because the cancellation was the result of “a cause or causes beyond the reasonable control” of the BSO. In response to the civil rights claim, BSO agents testified that they had not cancelled the performances in order to punish Redgrave for her past speech or repress her future speech, but because it was felt that potential disruptions, given the community reaction, would implicate the physical safety of the audience and players and would detract from the artistic qualities of the production. Following a sixteen-day trial, the jury found that the BSO wrongfully had breached its contract with Redgrave. On that basis, the district court awarded Redgrave her stipulated performance fee of $27,500. The jury also found that the BSO’s cancellation had damaged Redgrave’s career by causing loss of future professional opportunities, and awarded Redgrave $100,000 in consequential damages. The district court found that the question whether there was sufficient evidence to support a finding of $100,000 in consequential damages was a “close and debatable” one, but concluded that there was sufficient evidence to support the award. Nevertheless, the district court overturned the grant of consequential damages, finding that a First Amendment right of freedom of speech was implicated by the theory of consequential damages advanced by Redgrave and that Redgrave had not met the strict standards required by the First Amendment for recovery of damages. Redgrave v. Boston Symphony Orchestra, Inc., 602 F.Supp. 1189, 1193-1203 (D.Mass.1985). Redgrave’s MCRA claim was premised on the allegation that the BSO had interfered, “by threats, intimidation, or coercion,” with Redgrave’s exercise of free speech rights. Mass.Gen.L. ch. 12, §§ 11H —I. The district court utilized the jury in an advisory capacity on this claim. In response to special interrogatories, the jury found that the BSO did not cancel the contract because of the disagreements of BSO agents with Redgrave’s political views. The district court stated that this finding eliminated an “essential factual premise” of Redgrave’s primary claim based on the MCRA. 602 F.Supp. at 1192. But Redgrave also argued that, even if BSO agents had not themselves disagreed with Redgrave’s political views and did not cancel the contract because they wished to punish her for past speech or to repress her future speech, the BSO did cancel the contract in response to pressure from third parties who disagreed with and wished to repress Redgrave’s speech. Redgrave contended that such acquiescence to third parties on the part of the BSO made it liable under the MCRA. The district court concluded that acquiescence unaccompanied by express personal disagreement with Redgrave’s views could not amount to the “threats, intimidation, or coercion” needed to establish a claim under the MCRA. 602 F.Supp. at 1192. The district court, therefore, rejected Redgrave’s acquiescence theory and entered judgment for the BSO on Redgrave’s MCRA claim. Redgrave appealed from the district court’s entry of judgment notwithstanding the verdict on the consequential damages claim and from the judgment against her on the MCRA claim. The BSO cross-appealed, arguing that even if the First Amendment should be found inapplicable to the consequential damages claim, the evidence of those damages was insufficient to support the verdict. II. THE CONSEQUENTIAL DAMAGES CLAIM A. Consequential Damages for Loss of Professional Opportunities In response to special interrogatories, the jury found that the BSO’s cancellation of the “Oedipus Rex” concerts caused consequential harm to Redgrave’s professional career and that this harm was a foreseeable consequence within the contemplation of the parties at the time they entered the contract. 602 F.Supp. at 1204. A threshold question is whether Massachusetts contract law allows the award of such consequential damages for harm to a claimant’s professional career. Redgrave’s consequential damages claim is based on the proposition that a significant number of movie and theater offers that she would ordinarily have received in the years 1982 and following were in fact not offered to her as a result of the BSO’s cancellation in April 1982. The BSO characterizes this claim as one for damage to Redgrave’s reputation, and argues that the recent Massachusetts state court decisions in McCone v. New England Telephone & Telegraph Co., 393 Mass. 231, 471 N.E.2d 47 (1984), and Daley v. Town of West Brookfield, 19 Mass.App.Ct. 1019, 476 N.E.2d 980 (1985), establish that Massachusetts law does not permit plaintiffs in breach of contract actions to recover consequential damages for harm to reputation. In McCone v. New England Telephone & Telegraph Co., plaintiffs alleged that their employer’s breach of an implied covenant of good faith had caused them loss of salary increases, loss of pension benefits, and “damage to their professional reputations, disruption of their personal lives, and great pain of body and mind.” 393 Mass. at 234 n. 8. The Massachusetts Supreme Judicial Court held that the claims for damages to reputation and other emotional injury could not be sustained in the suit because “these additional damages are not contract damages.” Id. In Daley v. Town of West Brookfield, a Massachusetts appellate court observed that “[d]amages for injury to reputation are usually not available in contract actions,” noting that the rationale most often given is that “such damages are remote and not within the contemplation of the parties.” 19 Mass.App.Ct. at 1019 n. 1, 476 N.E.2d at 980 n. 1. The BSO notes that Massachusetts is in agreement with virtually all other jurisdictions in holding that damages for reputation are not available in contract actions. See, e.g., Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 446 (1st Cir.1966) (applying federal law); Stancil v. Mergenthaler Linotype Co., 589 F.Supp. 78, 84-85 (D.Haw.1984); O’Leary v. Sterling Extruder Corp., 533 F.Supp. 1205, 1209 (E.D.Wis.1982); Skagway City School Board v. Davis, 543 P.2d 218, 225-27 (Ala.1975); Tousley v. Atlantic City Ambassador Hotel Corp., 25 N.J.Misc. 88, 50 A.2d 472, 474-75 (N.J.Sup.Ct.1947). This impressive line of cases, however, becomes less impressive for our purposes when the reasoning in these cases is analyzed with reference to the particular claim put forth by Redgrave. In cases that have analyzed the reasons for disallowing a contract claim for reputation damages, courts have identified two determinative factors. First, courts have observed that attempting to calculate damages for injury to reputation is “unduly speculative.” Skagway City School Board, 543 P.2d at 225. See O’Leary, 533 F.Supp. at 1209; Tousley, 50 A.2d at 474-75. In many cases, the courts have viewed the claims for damages to reputation as analogous to claims for physical or emotional distress and have noted the difficulty in ascertaining such damages for contract purposes. See, e.g., Westwater v. Rector, Warden and Vestry of Grace Church, 140 Cal. 339, 342, 73 P. 1055 (1903) (“Damages to health, reputation, or feelings are not clearly ascertainable either in their nature or origin.”). As the court in Skagway noted, an estimate of injury to reputation “must rest upon a number of imprecise variables,” including the causal connection between the breach of contract and the injury to reputation and the amount by which any future earnings would be decreased by causes other than the breach. Skagway City School Board, 543 P.2d at 225. The second factor that courts identify is that damages for injury to reputation “cannot reasonably be presumed to have been within the contemplation of the parties when they entered into the contract.” Skagway City School Board, 543 P.2d at 225. These courts state that the basic rule of Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), which requires that contract damages be of the kind that arise naturally from the breach of a contract or be of a kind that reasonably may have been in the contemplation of the parties when they entered the contract, cannot possibly be met in a claim for general damages to reputation occurring as the result of a breach of contract. See Skagway City School Board, 543 P.2d at 225; O’Leary, 533 F.Supp. at 1209-10; Tousley, 50 A.2d at 474—75; Mastoras v. Chicago, M. & St. P.R.R., 217 F. 153, 154 (W.D.Wash.1914). The Massachusetts Supreme Judicial Court seems to have accepted this rationale as a legitimate one for disallowing claims for injury to reputation as a contract damage. See Daley v. Town of West Brookfield, 476 N.E.2d at 980 n. 1 (“The rationale often given [for disallowing damages for injury to reputation in contract actions] is that such damages are remote and not within the contemplation of the parties.”). See also 5 Corbin on Contracts, § 1007-11 at 70-87 (1964); 11 Williston, Contracts, § 1344 at 226-29 (1968) (discussing Hadley v. Baxendale general rule of consequential damages). The claim advanced by Redgrave is significantly different, however, from a general claim of damage to reputation. Redgrave is not claiming that her general reputation as a professional actress has been tarnished by the BSO’s cancellation. Rather, she claims that a number of specific movie and theater performances that would have been offered to her in the usual course of events were not offered to her as a result of the BSO’s cancellation. This is the type of specific claim that, with appropriate evidence, can meet the Hadley v. Baxendale rule, as adopted by the Massachusetts Supreme Judicial Court in John Hetherington & Sons, Ltd. v. William Firth Co., 210 Mass. 8, 21; 95 N.E. 961, 964 (1911) (in breach of contract ation, injured party receives compensation for any loss that follows as a natural consequence from the breach, was within the contemplation of reasonable parties as a probable result of breach, and may be computed by “rational methods upon a firm basis of facts”). As the district court correctly noted in a preliminary memorandum: [I]f plaintiffs proved other employers refused to hire Redgrave after termination of the BSO contract because of that termination (that loss of the other employment “followed as a natural consequence” from the termination of the contract), that this loss of other employment would reasonably have been foreseen by the parties at the time of contracting and at the time of termination, and that damages are rationally calculable, then plaintiffs may be entitled to damages that include monies for loss of the other employment. Although plaintiffs have a heavy burden to carry here, it cannot be said with certainty at this time that they will not be able to meet this burden. Redgrave v. BSO, 557 F.Supp. 230, 234 (D.Mass.1983). The jury was given appropriate instructions to help it determine whether Redgrave had suffered consequential damages through loss of future professional opportunities. They were told to find that the BSO’s cancellation was a proximate cause of harm to Redgrave’s professional career only if they determined that “harm would not have occurred but for the cancellation and that the harm was a natural and probable consequence of the cancellation.” Redgrave v. BSO, 602 F.Supp. at 1211. In addition, they were told that damages should be allowed for consequential harm “only if the harm was a foreseeable consequence within the contemplation of the parties to the contract when it was made.” Id. at 1212. In response to special interrogatories, the jury found that the BSO’s cancellation caused consequential harm to Redgrave’s career and that the harm was a foreseeable consequence within the contemplation of the parties. 602 F.Supp. at 1204. Although we find that Redgrave did not present sufficient evidence to establish that the BSO’s cancellation caused consequential harm to her professional career in the amount of $100,000, see infra at 896-900, we hold that, as a matter of Massachusetts contract law, a plaintiff may receive consequential damages if the plaintiff proves with sufficient evidence that a breach of contract proximately caused the loss of identifiable professional opportunities. This type of claim is sufficiently different from a nonspecific allegation of damage to reputation that it appropriately falls outside the general rule that reputation damages are not an acceptable form of contract damage. B. First Amendment Restrictions The district court found that, although consequential damages for loss of professional opportunities could be a legitimate contract claim, it was required to overturn the jury’s verdict of $100,000 because Redgrave had not met the strict standards required by the First Amendment for the recovery of such damages. According to the district court, the only theory that Redgrave could advance for establishing consequential damages necessarily implicated First Amendment concerns. As the court explained, “the only possible mechanism of harm to Redgrave’s professional career, revealed by the evidence, is the alleged influence of some statement made by the BSO on later decisions of others — a statement of fact or opinion implied in BSO’s cancellation, or express or implied in BSO’s press release.” Redgrave v. BSO, 602 F.Supp. at 1197. In other words, “an inescapable element of the claimed causal connection between BSO’s cancellation and consequential harm to Redgrave’s professional career” was for “a factfinder reasonably [to] infer that others, upon receiving the news of BSO’s cancellation, interpreted the cancellation as conveying a message about Redgrave.” Id. Having concluded that Redgrave’s theory of consequential damages necessarily rested on the premise that the BSO had conveyed a message about her to others, the district court felt it was required to apply heightened First Amendment scrutiny to any claim for damages stemming from such communicative activity. It made the threshold decision that state action would exist because it, as a court, would enter a judgment for such damages. 602 F.Supp. at 1199. The court then applied the standard governing damages in defamation cases. Accordingly, it required that Redgrave show that “BSO has impliedly communicated to others some material issue of fact (and not merely opinion) about Redgrave that it knew to be false, or that BSO acted with reckless disregard for the truth or falsity of a material statement of fact it impliedly communicated.” 602 F.Supp. at 1201. The court concluded that, in any message the BSO could be said to have sent, no statement of fact to which the jury could apply a “reckless falsity” test could be disentangled from the BSO’s statements of opinion. Further, any statements of opinion by the BSO would be protected absolutely under the First Amendment. Id. at 1201-03. Thus, the court found that Redgrave had not overcome the significant obstacles created by the First Amendment to recovery of consequential damages. The district court is correct in stating that an act can be a protected form of First Amendment activity. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (economic boycott may be form of First Amendment activity); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (contributing money is form of speech); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (wearing sign on back of jacket is form of speech). The BSO’s cancellation of its contract with Redgrave was not, however, an act intended to be a form of symbolic speech or a “statement” by the BSO. As BSO agents testified, the press release announcing the BSO’s cancellation went through a number of drafts in order to remove any statement or implication that Redgrave was too controversial or dangerous to hire. In fact, the press release did not even refer to Redgrave by name. Indeed, in response to special verdict question 11A, the jury found that the BSO’s cancellation and press release did not “impliedly state to others that BSO’s managerial agents held the opinion that Vanessa Redgrave was so controversial because of her publicly expressed political views that the risks associated with the series of performances in Boston and New York, in which she was to appear as narrator, were too great to be acceptable to a prudently managed symphony orchestra.” 602 F.Supp. at 1205. Thus, the evidence does not support an inference that the BSO intended its cancellation to act as a symbolic message to others. An act not intended to be communicative does not acquire the stature of First-Amendment-protected expression merely because someone, upon learning of the act, might derive some message from it. Nor is such an act entitled to special protection merely because others speak about it. Accordingly, we believe the district court erred in reasoning that the causal link between the BSO’s contract cancellation and Redgrave’s harm necessarily involved protected expression by the BSO. Redgrave’s counsel presented two distinct avenues of causation through which the jury could find that the BSO’s cancellation caused Redgrave consequential harm and the jury was instructed on both grounds. Besides contending that the BSO’s cancellation and press release impliedly stated to others that Redgrave was too controversial to be acceptable to a prudently managed symphony orchestra, Redgrave also contended that “since BSO was a prestigious cultural organization, the very fact that it decided to cancel rather than proceed with performances in which Vanessa Redgrave was to appear would tend to influence others not to offer her future professional opportunities.” Redgrave v. BSO, 602 F.Supp. at 1212. The jury was instructed to “determine whether the evidence supports either, both, or neither of these contentions” in deciding whether the BSO’s cancellation caused Redgrave consequential harm. Id. The jury rejected the “implied message” theory yet still found that the BSO’s contract cancellation caused Redgrave to lose future professional opportunities. Apparently, the jury felt that the BSO’s cancellation had caused harm to Redgrave’s career, despite its conclusion that the BSO had not intentionally sent any implied message regarding Redgrave. Theodore Mann, a director, testified that he chose not to offer Redgrave a job in a theater performance because [t]he Boston Symphony Orchestra had cancelled, terminated Ms. Redgrave’s contract. This had a—this is the premier or one of the premier arts organizations in America who, like ourselves, seeks support from foundations, corporations, individuals; have subscribers; sell individual tickets. I was afraid ... and those in my organization were afraid that this termination would have a negative effect on us if we hired her. App. 1302a. Thus, the jury could appropriately have found that even though the BSO did not intend its contract cancellation to be a purposeful symbolic communication, other performing companies may have de rived, or feared that their supporters might derive, some message from the cancellation, causing them concern about hiring Redgrave. Under this theory, the jury could have found that the act of cancellation, unprotected by the First Amendment, was the proximate cause of Redgrave’s harm. The district court correctly stated that “plaintiffs must prove that in some way information about BSO’s action was communicated to others.” 602 F.Supp. at 1197. However, as amici correctly point out, the trial court erred in confusing communication about the BSO’s contract cancellation with the notion of an implied communication of a particular message by the BSO regarding Redgrave. Absent unusual circumstances suggesting primary interest in communicating an idea transcending the immediate act, a contract cancellation would not trigger the concerns ordinarily protected by the First Amendment. Indeed, under the district court’s ruling, the cancellation of almost any contract with a notable figure could effectively be transformed into a statement protected by the First Amendment, thereby unnecessarily diluting the protections intended'by contract law. Thus, although Redgrave must meet the ordinary strict contract requirements for finding consequential damages, see infra at 896-97, no additional requirements need be imposed in this case because of the strictures of the First Amendment. C. Sufficiency of the Evidence The requirements for awarding consequential damages for breach of contract are designed to ensure that a breaching party pays only those damages that have resulted from its breach. Thus, to receive consequential damages, the plaintiff must establish a “basis for an inference of fact” that the plaintiff has actually been damaged, Williston, Contracts, § 1345 at 231, and the factfinder must be able to compute the compensation “by rational methods upon a firm basis of facts.” John Hetherington & Sons, 210 Mass. at 21, 95 N.E. at 964. In analyzing the evidence presented by Redgrave on her claim for consequential damages, we are guided by the basic principle that on a motion for judgment notwithstanding the verdict the evidence must be viewed in the light most favorable to the party for whom the jury found, and that that party must be given “the benefit of every favorable inference that may be fairly drawn.” Borras v. Sea-Land Service, Inc., 586 F.2d 881, 885 (1st Cir.1978) (quoting Dumas v. MacLean, 404 F.2d 1062, 1064 (1st Cir.1968)). In examining the evidence, however, we must not neglect un-contradicted evidence offered by the other party. Layne v. Vinzant, 657 F.2d 468, 472 (1st Cir.1981); Allen Pen Co. v. Springfield Photo Mount Co., 653 F.2d 17, 19 (1st Cir.1981). Further, the party for whom the jury found is not entitled to “unreasonable inferences which rest on conjecture and speculation.” Carlson v. American Safety Equipment Corp., 528 F.2d 384, 386 (1st Cir.1976); see also Goldstein v. Kelleher, 728 F.2d 32, 39 (1st Cir.1984). In order for Redgrave to prove that the BSO’s cancellation resulted in the loss of other professional opportunities, she must present sufficient facts for a jury reasonably to infer that Redgrave lost wages and professional opportunities subsequent to April 1982, that such losses were the result of the BSO’s cancellation rather than the result of other, independent factors, and that damages for such losses are capable of being ascertained “by reference to some definite standard, either market value, established experience or direct inference from known circumstances.” John Hetherington & Sons, 210 Mass. at 21, 95 N.E. at 964. During trial, evidence was presented regarding losses Redgrave allegedly suffered in film offers and American theater offers. Based on this testimony, the jury found that the BSO’s cancellation of its contract with Redgrave caused Redgrave $100,000 in consequential damages. We find that the evidence presented by Redgrave was not sufficient to support a finding of damages greater than $12,000, less expenses. Most of Redgrave’s annual earnings pri- or to April 1982 were derived from appearances in films and the English theater. Redgrave presented evidence at trial that she earned more than $200,000 on the average since her company’s fiscal year 1976, and she testified that she had a constant stream of offers from which she could choose films that had secure financial backing. After the BSO’s cancellation in April 1982, Redgrave contended, her career underwent a “startling turnabout.” Redgrave testified that she did not work at all for the fourteen months following the cancellation and that the only offers she received during that time were for films with insufficient financial backing. The evidence demonstrates that Redgrave accepted three firm film offers in the fourteen months following the BSO cancellation. If these three films had been produced, Redgrave would have earned $850,-000 during that period. The first offer, for a film entitled Annie’s Coming Out, was for a role in which Redgrave had expressed interest in February 1982, two months pri- or to the BSO cancellation. The offer for the role was made in July 1982, a short time after the BSO’s cancellation, and was finalized in August 1982. The film was to be financed by Film Australia, a government production company, and no evidence was presented that Redgrave believed the film might experience financial difficulties. Redgrave’s fee for the film was to be $250,000. From July 1982 until approximately the end of October 1982, Redgrave believed that she would be filming Annie’s Coming Out sometime during the fall. Because of that commitment, Redgrave turned down other firm offers that had secure financial backing. These included an offer received in July 1982 to do a cameo appearance in a Monty Python film entitled Yellowbeard for $10,000 and an offer received in September 1982 to star in the television film Who Will Love My Children? for $150,000. In late October or early November 1982, Redgrave was informed that Annie’s Coming Out would not be produced because of financial difficulties. No evidence was presented that the film’s financial failure was related to the BSO cancellation. In February 1983, Redgrave accepted an offer to appear in the film No Alternatives, for a fee of $350,000. Until June or July of 1983, Redgrave assumed that she would be filming No Alternatives. During that period, Redgrave turned down other offers, including an offer to appear in a film about Andre Sakharov for a fee of $70,000. In June or July of 1983, Redgrave was informed that No Alternatives would not be filmed because of financial difficulties. Redgrave received $25,000 as a forfeiture on the contract. In June 1983, Redgrave accepted an offer to appear- in a film entitled Track 39, for a fee of $250,000. This film fell through in late July 1983. There was no allegation that the financial failures of either No Alternatives or Track 39 were directly related to the BSO cancellation. Although there is no doubt that Redgrave did not have a successful financial year following the BSO cancellation, we cannot say that she presented sufficient evidence to prove that her financial difficulties were caused by the BSO cancellation. No evidence was presented that, at the time she accepted the offer for Annie’s Coming Out, Redgrave believed the film would experience financial difficulties. In addition, there was no allegation that the offers Redgrave turned down because of her commitment to Annie’s Coming Out, such as offers to appear in Yellowbeard and Who Will Love My Children?, did not have firm financial backing. If Annie’s Coming Out had been produced, Redgrave would have earned $250,000 in the year following the BSO cancellation — an amount equal to Redgrave’s average earnings before April 1982. Redgrave contends, however, that the film offers she received following the BSO cancellation lacked secure financial backing and were thus significantly different from offers she had received prior to the cancellation. Thus, although Redgrave would have received $600,000 had No Alternatives and Track 39 been produced, she argues that the fact that she had to accept two films that ultimately were not produced was itself a result of the BSO cancellation. We have some doubt as to whether Redgrave presented sufficient evidence to prove that the type of film offers she received in the year following the BSO cancellation were radically different from the film offers received before the cancellation. On direct examination, Redgrave testified regarding her previous performances, starting from 1966. As to most of the years, Redgrave testified solely regarding the work she did, rather than the offers she received, noting that she. could only “remember what [she] actually did at the moment” and not the offers she had received. Redgrave did testify that she received four film offers in 1980, none of which she accepted, and four film offers in 1981, two of which she accepted. No evidence was presented, however, regarding the financial backing of those films that were offered to Redgrave but which she did not accept. Thus, the evidence does not present an effective comparison between the type of film offers received before and after the BSO cancellation and we are left primarily with Redgrave’s allegation that the film offers received in the two time periods were significantly different. Even if we accept, however, that Redgrave proved she had experienced a drop in the quality of film offers following the BSO cancellation, Redgrave must also prove that the drop was proximately caused by the BSO cancellation and not by other, independent factors. Redgrave failed to carry her burden of presenting evidence sufficient to allow a jury reasonably to infer this causal connection. The defense introduced evidence that Redgrave’s political activities and statements had generated much media attention prior to the incident with the BSO. Redgrave conceded that her agents had informed her, prior to April 1982, that certain producers were hesitant to hire her because of the controversy she generated. And, in a newspaper interview in February 1982, Redgrave stated that she “had lost a lot of work because of her political beliefs” but that every time there had been a move to stop her working, “an equally terrific response [came] forward condemning any witch hunts.” App. 983. To the extent that Redgrave may have experienced a decline in the quality of film offers received subsequent to April 1982, that decline could have been the result of Redgrave’s political views and not the result of the BSO’s cancellation. Even if the cancellation highlighted for producers the potential problems in hiring Redgrave, it was Redgrave’s burden to establish that, in some way, the cancellation itself caused the difference in film offers rather than the problems as highlighted by the cancellation. Redgrave produced no direct evidence from film producers who were influenced by the cancellation. Thus, the jury’s inference that the BSO cancellation had caused Redgrave consequential damages was one based more on “conjecture and speculation,” Carlson v. American Safety Equipment Corp., 528 F.2d at 386, than on a sufficient factual basis. Redgrave also claims that the BSO’s cancellation caused a drop in her offers to perform on Broadway. Bruce Savan, Redgrave’s agent, testified regarding all offers to perform in American theater that had been made to Redgrave prior to April 1982. The offers averaged from two to four plays in the years 1976-1980. There was no evidence of any offers to perform on Broadway made to Redgrave in 1981, the year immediately preceding the BSO cancellation. Redgrave accepted only one of the offers made during this time period, appearing in Lady From the Sea in off-Broadway’s Circle in the Square in 1976. Redgrave contends that, as a result of the BSO cancellation, she no longer received offers to appear on Broadway. She testified that in April 1983 she was appearing in a successful English theater production of The Aspern Papers and was led to believe by the producers that the show would move to New York. Although it was Redgrave's opinion that the reason the play did not move to Broadway was because of the “situation” caused by the BSO cancellation, there was no testimony from the producers or others as to why the production did not go to Broadway. Redgrave also testified that in August 1983 she was asked by the Jujamson producers to appear in The Abdication, but that the play was never produced. Again, there was no testimony from the producers or others as to why the production did not materialize. In addition, Redgrave testified that Lillian Heilman had wished Redgrave to portray Heilman in a theater production on Broadway, but that Heilman was concerned about the BSO incident. Finally, Redgrave testified that Theodore Mann had considered offering her a role in Heartbreak House at Circle in the Square, but decided not to extend the offer because of the ramifications of the BSO cancellation. Theodore Mann was the one producer who testified regarding his decision not to employ Redgrave in a Broadway production. He explained that the Boston Symphony Orchestra had can-celled, terminated Ms. Redgrave’s contract. This had a — this is the premier or one of the premier arts organizations in America who, like ourselves, seeks support from foundations, corporations, individuals; have subscribers; sell individual tickets. I was afraid ... and those in my organization were afraid that this termination would have a negative effect on us if we hired her. And so we had conferences about this. We were also concerned about if there would be any physical disturbances to the performance _ And it was finally decided ... that we would not hire [Redgrave] because of all the events that had happened, the cancellation by the Boston Symphony and the effects that we felt it would have on us by hiring her. App. 1302a. The evidence presented by Redgrave concerning her drop in Broadway offers after April 1982, apart from Mann’s testimony, is not sufficient to support a finding of consequential damages. We do not, of course, question Redgrave’s credibility in any way. Our concern is with the meager factual evidence. Redgrave had to introduce enough facts for a jury reasonably to infer that any drop in Broadway offers was proximately caused by the BSO cancellation and not by the fact that producers independently were concerned with the same factors that had motivated the BSO. Mann’s testimony itself reflects the fact that many producers in New York may have been hesitant about hiring Redgrave because of a feared drop in subscription support or problems of physical disturbances. Apart from Mann’s testimony, Redgrave presented nothing other than the fact that three expected offers or productions did not materialize. This type of circumstantial evidence is not sufficient to support a finding of consequential damages. In addition, we note that it would be difficult for any assessment of damages resulting from the lack of Broadway theater offers to meet the standard that damages must be “capable of ascertainment by reference to some definite standard, either market value, established experience or direct inference from known circumstances.” John Hetherington & Sons, 210 Mass. at 21, 95 N.E. at 964. See Lowrie v. Castle, 225 Mass. 37, 51-52, 113 N.E. 206 (1916); Williston, Contracts, § 1346 at 239-40. The three specific performances to which Redgrave referred, other than Mann’s, were never performed on Broadway and there is no indication of the compensation Redgrave would have received. In addition, Redgrave had accepted only one Broadway offer among the many she had received over the years because, according to Redgrave, the scripts were not good enough for her first Broadway appearance. There was no evidence that Redgrave would necessarily have accepted any Broadway offer made in 1982. Mann’s testimony regarding the production of Heartbreak House is the one piece of evidence from which reasonable factfind-ers could draw conflicting inferences and upon which a reasonably ascertainable damage award could be granted. We therefore defer to the inferences drawn by the jury from that testimony and grant Redgrave damages on that basis. Mann’s testimony reveals that, in considering whether to hire Redgrave, he and his partners were concerned about losing support from foundations and subscribers, having difficulty selling tickets, and dealing with possible physical disruptions. These are factors that result from the community response to Redgrave’s political views. They are. the same factors that apparently motivated the BSO to cancel its contract with Redgrave and are not the result of that cancellation. Thus, one possibly could infer from Mann’s testimony that the BSO cancellation was not a proximate cause of the damage suffered by Redgrave in being denied the part in Heartbreak House. Mann also testified, however, that he and his partners were affected by the BSO cancellation because the BSO was a premier arts organization and was dependent on the same type of support as Circle in the Square. A jury reasonably could infer that the BSO’s cancellation did more than just highlight for Mann the potential problems that hiring Redgrave would cause but was actually a cause of Mann’s decision, perhaps because Mann’s theater support was similar to that of the BSO or because Mann felt influenced to follow the example of a “premier arts organization.” Because this is a possible inference that a jury could draw from Mann’s testimony, we defer to that inference. We therefore find that Redgrave presented sufficient evidence to prove consequential damages of $12,000, the fee arrangement contemplated by Mann for Redgrave’s appearance in Heartbreak House, minus expenses she personally would have incurred had she appeared in the play. III. THE MASSACHUSETTS CIVIL RIGHTS CLAIM AND THE DEFENSE OF ACQUIESCENCE TO THIRD-PARTY PRESSURE The factor that converts this case from a garden variety, if not simple, contract action into an exotic plant without very apposite precedents is the MCRA (and its judicial gloss as added by the Massachusetts Supreme Judicial Court). As we shall see, the MCRA extends the 42 U.S.C. § 1983 concept of a civil rights claim against government officials to a claim against private individuals, so that it is no defense to the MCRA to show that the defendant’s action was not “state action.” Further, as with a typical civil rights claim against a government official, it is no defense to the MCRA to show that a defendant acted in response to third-party pressure. Finally, the sweeping liability resulting from the absence of these defenses may be limited by a constitutional right of free speech. A. The Nature of the Claim The MCRA creates a private cause of action for injunctive and other equitable relief, including damages, against “any person or persons, whether or not acting under color of law, [who] interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth.” Mass. Gen.L. ch. 12, §§ 11H—I (1986). A right is “secured” against private parties under the MCRA even though the constitutional provision from which it emanates applies only to government action. See Bell v. Mazza, 394 Mass. 176, 474 N.E.2d 1111 (1985). In this fashion the MCRA dispenses with the state action requirement of ordinary civil rights claims, by permitting a plaintiff to sue a private party for action that would be, absent the MCRA, forbidden only to state actors. Redgrave alleged that the BSO interfered with her “secured” rights of free speech and free association under the First Amendment and the Massachusetts Constitution. Redgrave asserted that her secured rights were violated whether the BSO cancelled the contract because its own agents disagreed with her political views and intended to punish her for past speech or repress her future speech, or whether the BSO cancelled the contract because it acquiesced to pressure from third parties who disagreed with her views and intended to punish her or chill her expression. B. The Findings Below The jury, in answer to a special interrogatory, found that the BSO did not cancel the contract because its own agents disagreed with Redgrave’s political views. Although the district court found that the BSO cancelled because of outside pressure, the court held that Redgrave’s MCRA claim failed, because acquiescence to third party pressure, absent any discriminatory intent, did not constitute “threats, intimidation, or coercion” under the MCRA. The court did not go further and make a finding as to the precise reason why the BSO cancelled, but it did find credible the testimony of BSO officials that the BSO cancelled because of concerns over the physical safety of the performers and audience and over disruptions that might jeopardize the artistic qualities of the performance. The court cited the testimony of, among others, Seiji Ozawa, the BSO’s Music Director, who explained that his conception of “Oedipus Rex” required an “atmosphere of hearing” in which both performers and audience could concentrate, rather than an atmosphere influenced by shouting, booing, and the presence of uniformed police. Earlier in the case, the district court had noted that “the extent to which a broad interpretation of the MCRA could interfere with the BSO’s First Amendment rights to make artistic judgments may depend upon whether the factfinder decides that the cancellation of the concerts was at least in part for artistic reasons.” In ultimately ruling for the BSO on Redgrave’s MCRA claim, however, the district court did not reach this constitutional issue. C. Our Certified Questions and the Answers Because we felt that Redgrave’s MCRA claim turned on a significant question of Massachusetts law on which we found no controlling precedent, we certified two questions of law to the Supreme Judicial Court of the Commonwealth pursuant to Supreme Judicial Court Rule 1:03. The questions were as follows: 1. Under the Massachusetts Civil Rights Act, Mass.Gen.Laws ch. 12, § 11H and § 111, may a defendant be held liable for interfering with the rights of another person, by “threats, intimidation, or coercion”, if the defendant had no personal desire to interfere with the rights of that person but acquiesced to pressure from third parties who did wish to interfere with such rights? 2. If a defendant can be held liable under the Massachusetts Civil Rights Act for acquiescence to third party pressure, is it a defense for the defendant to show that its actions were independently motivated by additional concerns, such as the threat of extensive economic loss, physical safety, or particular concerns affecting the defendant’s course of business? The Supreme Judicial Court answered “Yes” to the first question. It held: Making an exemption for civil rights deprivations resulting from third-party pressure “would reward and encourage” the very conduct which the substantive statutes prohibit. See Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 618 n. 7, 447 N.E.2d 1228 (1983). Whether the issue is phrased in terms of the existence of a specific intent requirement under the Massachusetts Civil Rights Act or a third-party pressure exemption from the statute, recognizing such an exemption would tend to eviscerate the statute and defeat the legislative policies behind the statute. Persons seeking to interfere with the civil rights of others in violation of the statute may not know or believe that the interference may lead to civil or 'criminal liability. Thus, to be effective, the provisions of §§ 11H and 111 must apply to any threatening, intimidating, or coercive behavior regardless of whether the defendant specifically intended to interfere with a right to which the plaintiff is entitled. Accordingly, we answer “yes” to the first question. Redgrave v. Boston Symphony Orchestra, 399 Mass. 93, 100, 502 N.E.2d 1375, 1379 (1987). The second question was answered “No.” The court held: As an abstract proposition, fear of business disruption, fear for economic loss, or fear for physical safety are not justifications under §§ 11H and 111. The legislative intent would be negated if such defenses were permitted. See Sarni Original Dry Cleaners, Inc. v. Cooke, supra. In an analogous context, the Supreme Court has rejected the notion that private biases and injuries that may be inflicted as a result of such biases are permissible justifications for deprivations of constitutional rights. Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). Fear that the prejudice of third-party actors may lead to a breach of the peace has also been rejected as a justification for deprivations of civil rights. Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149 (1917). We recognize that explicit and imminent danger of physical harm might well in some circumstances justify interference with an individual's civil rights (cf. Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 [1969]), but the certified question raises no such premise. Our answer to the second certified question is, “No.” 399 Mass. at 101, 502 N.E.2d at 1379-80. These answers effectively disposed of the district court’s view that acquiescence to third party pressure was a defense to an MCRA action. At first blush, this might suggest, as our dissenting colleagues insist, that we must now confront the BSO’s additional argument for affirmance — that the First Amendment protects it from MCRA liability. The response of the SJC, however, significantly expanded upon and went beyond the answers to our specific questions. The nature and deliberateness of these additional remarks convince us that, as a matter of Massachusetts law, the BSO may not in these circumstances be held liable under the MCRA. IV. THE MASSACHUSETTS CIVIL RIGHTS ACT CLAIM: THE TEACHINGS OF THE SUPREME JUDICIAL COURT The response of the Supreme Judicial Court to our questions was divided among three groups of Justices: the Chief Justice, writing for himself and Justices Liacos and Nolan; Justice Wilkins, joined by Justice Abrams, concurring; and Justice O’Connor, joined by Justice Lynch, dissenting. All three groups thought it necessary to identify an issue we had not raised expressly in our two certified questions. All three groups indicated, in tones ranging from strong suggestion to outright certainty, a view that the BSO should not be held liable under the MCRA for exercising its free speech right not to perform. Although all of the Justices’ reflections on this issue technically may fall under the heading of dicta, they are so deliberate, so unanimously expressed, and involve such a basic proposition, thht we feel constrained to listen carefully. The certification process is the only opportunity for direct dialogue between a federal and a state court. We think it pointless to turn a deaf ear to all but the direct responses to formal questions where, as here, other important issues clearly are implicated. To do so would be to elevate form over substance, to ignore a helpful opportunity to interpret state law correctly, and to demean the principles of comity and federalism. “In the absence of a definitive ruling by the highest state court, a federal court may consider ‘analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand,’ taking into account the broad policies and trends so evinced.” Michelin Tires (Canada) Ltd. v. First National Bank of Boston, 666 F.2d 673, 682 (1st Cir.1981) (quoting McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.1980)). As two commentators recently have noted: [T]he ability of the answering court to reshape or add to the issues is necessary to further the goals of certification. The answering court may be best situated to frame the question for precedential value and to control the development of its law's. If state courts take offense at a poorly framed question, they may miss a genuine opportunity to settle state law on a particular point. Corr & Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand.L.Rev. 411, 426 (1988). See also Martinez v. Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir.1968) (form of certified question should “not ... restrict the [state] Supreme Court’s consideration of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified ..., [including] the Supreme Court’s restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts”) (emphasis supplied); St. Paul Fire & Marine Ins. Co. v. Caguas Federal Savings & Loan Ass’n of Puerto Rico, 825 F.2d 536, 537 (1st Cir.1986) (welcoming the advice of the answering court “on any other question of Puerto Rican law material to this case on which it would like to comment”). In order to understand the reaction of the Supreme Judicial Court, it is helpful to describe the difficulty of the free expression issues involved, and the uncommon relation of the MCRA to those issues. A. A Conflict of Rights The MCRA is an unusual statute, a civil rights law that abolishes the state action requirement for constitutional claims of deprivation of rights. This is not difficult to understand in the context of racial discrimination, the prohibition of which was the statute’s primary object. Redgrave, 399 Mass. at 105, 502 N.E.2d 1375. There, it makes sense to treat private individuals similarly to the state, just as Title VII is designed as a “private” analogue to the non-discrimination provisions of the Constitution. But where the issue is the plaintiffs “right” to free speech, the analogy is strained. Such a right traditionally has content only in relation to state action — the state must be neutral as to all expression, and must not unreasonably restrain speech or expression. The right is to be free of state regulation, so that all private speech is formally on equal footing as a legal matter. In the traditional context, this means that various private actors can, without state interference, battle it out in the marketplace of ideas.. In the present case, this application of the statute is made doubly unusual because, unlike in the typical discrimination case, there are free speech interests on the defendant’s side of the balance as well. The plaintiff’s statutory “free speech” right against the defendant is to be measured against the defendant’s constitutional right against the state. If it were to enforce the statute, the state would be entering the marketplace of ideas in order to restrict speech that may have the effect of “coercing” other speech. We have grave concerns about the implications of such a conflict. If constitutional protections are effectively to protect private expression, they must do so, to some extent, even when the expression (or lack thereof) of one private person threatens to interfere with the expression of another. To permit a newspaper, for example, wide freedom to pick and choose what to print, freedom to turn down some who would write letters or columns with which a particular newspaper (or its readers) disagrees, is to permit the newspaper to deprive certain speakers of an audience (perhaps deliberately, perhaps for “speech-content-related” reasons) or to intimidate the expression of other voices outside the newspaper. But, for the government to guarantee even some of those speakers a “newspaper” platform (or guarantee that they will not be coerced by what the newspaper decides to write or not to write) itself risks interfering with the newspaper’s editorial freedom. The freedom of mediating institutions, newspapers, universities, political associations, and artistic organizations and individuals themselves to pick and choose among ideas, to winnow, to criticize, to investigate, to elaborate, to protest, to support, to boycott, and even to reject is essential if “free speech” is to prove meaningful. The courts, noting that free speech guarantees protect citizens against governmental restraints upon expression, have hesitated to permit governments to referee disputes between speakers lest such mediation, even when it flies the banner of “protecting speech,” interfere with the very type of interest it seeks to protect. We digress briefly to note that we disagree fundamentally with our dissenting colleagues’ analysis of the constitutional questions implicated in this case. The BSO does not demand, as our dissenting colleagues claim, the constitutional right to perform without audience interruption, or an absolute right against any infringement of its artistic expression. Of course there are no such rights. The BSO merely alleges a constitutional right not to be penal-ized for failing to perform an artistic work where the BSO believes that its expression will be compromised or ineffective. That the reason for its desire to cancel may be the potential for audience disruption does not mean that the decision should be immune from constitutional solicitude. The BSO asserts, simply, a right to be free from compelled expression. It is clear that artistic expression in the performing arts enjoys substantial constitutional protection. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981). Protection for free expression in the arts should be particularly strong when asserted against a state effort to compel expression, for then the law’s typical reluctance to force private citizens to act, cf, e.g., Lumley v. Wagner, 42 Eng. Rep. 687, 693 (Ch. 1852), augments its constitutionally based concern for the integrity of the artist. A distinguished line of cases has underscored a private party’s right to refuse compelled expression. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (invalidating a compulsory flag sa lute statute); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (invalidating a statute forcing newspapers to print candidates’ replies to editorials, as an impermissible burden on “editorial control and judgment”); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1976) (invalidating penalty for refusal to display “Live Free or Die” motto on license plate); Pacific Gas & Elec. Co. v. Public Utilities Comm’n, 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion) (invalidating requirement that utility place consumer group’s newsletter in utility’s mailings to customers). “[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.” Riley v. National Federation of the Blind of North Carolina, Inc., — U.S. -, 108 S.Ct. 2667, 2677, 101 L.Ed.2d 669 (1988) (emphasis in original). We have been unable to find any case, involving the arts or otherwise, in which a state has been allowed to compel expression. The outcome urged by our dissenting colleagues would, to our knowledge, be completely unprecedented. Redgrave conceded at oral argument, and presumably the dissent would not disagree, that persons picketing a Redgrave performance would have a free expression defense to MCRA liability. This principle logically would extend as well to persons boycotting Redgrave performances. These are activities that are intended to coerce the exercise of others’ speech by means of public approbation and economic pressure. Indeed, that is their animating purpose. Yet they are protected, for the simple reason that we have always tolerated and encouraged private expression, rather than state compulsion, as the antidote to private speech with which we disagree. We see no reason why less protection should be provided where the artist refuses to perform; indeed, silence traditionally has been more sacrosanct than affirmative expression. The BSO argues that it desired simply to protect its own artistic expression, and it chose cancellation as the means of doing so. That this may have had a residual effect of coercing Redgrave’s exercise of her speech should not mean that the cancellation is any less protected than expression intended to coerce such exercise. We raise these points not to resolve the constitutional questions, but to point out how difficult those questions are to resolve, to indicate that expression-related interests appear on all sides, and to suggest that the dissent’s resolution, while motivated by values we share, too easily reduces a very complex clash of rights to a simple equation that neglects the serious weight of the BSO’s interests. We have no reason to think that the Massachusetts Legislature enacted the MCRA in an attempt to have its courts, at the insistence of private plaintiffs, oversee the editorial judgments of newspapers, the speech-related activities of private universities, or the aesthetic judgments of artists. To be more specific, our examination of these difficulties helps us understand why at least four, and perhaps as many as seven, members of the Supreme Judicial Court wrote opinions indicating that the statute does not impose liability upon the BSO in the circumstances of this case. We therefore present the responses of the Supreme Judicial Court. B. The Responses of the Supreme Judicial Court 1. The Plurality Chief Justice Hennessey was sufficiently concerned by “some serious issues which are not addressed in the questions but which are suggested by the record of the case” that he discussed these issues even before answering our questions. 399 Mass. at 97, 502 N.E.2d at 1377. The Chief Justice wrote: It can be inferred from the record that the BSO was itself a victim of violations of G.L. e. 12, § 11H, by those persons who put pressure on the BSO to cancel the Redgrave participation. From the premise that the BSO had the free speech right to perform or not as it saw fit, it can be argued that the BSO’s secured rights were interfered with, and that it was not within the legislative intent that anyone should be punished under c. 12 for exercising the constitutional right not to speak (i.e., perform). It can also be argued that when a private person decides not to speak and has no duty to do so, it would be unconstitutional to require that person to speak or, contractual obligations aside, to punish him civilly for not speaking. The foregoing arguments can be focused on both of the certified questions. It can be offered that a person exercising constitutional rights who interferes with another’s constitutional rights is not (Question 1) “interfering with the rights of another person by ‘threats, intimidation, or coercion,’ ” within the meaning of G.L. c. 12, §§ 11H and 111. It can be further offered by way of defense to an action under §§ 11H and 111 (Question 2) that the defendant was motivated by the “additional concern[]” of the artistic integrity of its production; that this motivation is within the defendant’s free speech rights; and that this independent motivation, if established, is a complete defense to the action where it is also shown that the defendant had no personal wish either to punish the plaintiff or to intrude upon the plaintiff’s rights. We have not considered any of the above arguments or issues in answering the two certified questions. We treat the questions as addressed to a typical action under the Massachusetts Civil Rights Act, which does not concern a defendant who is exercising a free speech or other constitutional right in interfering with the secured rights of another. In short, we answer the two questions as they are worded. 399 Mass. at 97, 502 N.E.2d at 1377. Although the Chief Justice was careful to frame most of the above observations as “offerings” or arguments, and to disregard these matters in supplying yes-or-no answers to the questions in the form we had posed them, we do not read his comments as mere speculation. On the contrary, the Chief Justice made plain that there might be no MCRA liability where a defendant is exercising its “free speech right” not to speak or perform. Either such liability would not be within the realm of behavior that the legislature intended to prohibit, or a constitutional defense might be offered to deny liability. The Chief Justice’s opinion did not speak to the source of the constitutional defense, referring only to constitutional “free speech rights.” 2. The Concurrence The concurring Justices expressed a similar view in even more assertive terms. Justice Wilkins, joined by Justice Abrams, began his concurring opinion by noting that our questions were not “clear and unequivocal” but involved “substantial constitutional questions.” 399 Mass. at 101, 502 N.E.2d at 1380. He observed: Because the BSO’s constitutional right to free speech under art. 16 of the Massachusetts Declaration of Rights is present in this case, it may seem surprising to some that no question has been asked of us concerning the BSO’s State constitutional right to determine not to perform “Oedipus Rex.” Perhaps the Court of Appeals has already concluded that, if the nonconstitutional grounds indicated by its questions are not dispositive of Redgrave’s claim, First Amendment con siderations will be and that, therefore, it need not ask us about analogous State constitutional considerations. I have been unable to think of any theory under which, in the circumstances, statutory liability may properly be imposed on the BSO in the face of its State constitutional right to determine what artistic performances it will or will not perform. Redgrave’s constitutional rights are no greater than those of the BSO, and there was no way in which the interests of each could be accommodated. 399 Mass. at 102, 502 N.E.2d at 1380. Justices Wilkins and Abrams thus unequivocally expressed their view that article 16 of the Massachusetts Declaration of Rights creates a right not to speak or perform and thus bars MCRA liability in this case. 3. The Dissent Finally, Justice O’Connor, joined in dissent by Justice Lynch, delved into the legislative history of the MCRA and found that, “beyond reasonable question,” it was enacted in 1979 “in response to a concern about the inadequacy of then current law to deal generally with discrimination against minority groups, and more specifically, to deal with racial violence.” 399 Mass. at 105, 502 N.E.2d at 1382. The dissenters concluded that “[rjacial discrimination and violence involve conduct that is specifically designed to interfere with secured rights, and it is that kind of conduct that the Legislature made the basis of civil liability.” Id. They flatly asserted that the MCRA “is properly interpreted to provide for liability only when the defendant interferes with a plaintiff’s secured rights with the specific intent to do so.” 399 Mass. at 106, 502 N.E.2d at 1382. Therefore, they concluded, unintentional interference with secured rights would not constitute interference by “threats, intimidation or coercion,” as required by the statute. This abstract conclusion was rejected by the other five justices. As an alternative ground for rejecting Redgrave’s claim, the dissenters, in the last paragraph of their opinion, identified another reason why liability was inappropriate in this case even assuming that no specific intent to coerce was required under the statute. Cancellation of the performance, the dissenters explained, “may have conveyed a message to Redgrave that in the future other performances may be can-celled, but the conveyance of that message did not amount to threat or intimidation unless it suggested that the BSO itself intended to take future harmful action against her.” 399 Mass. at 110, 502 N.E.2d at 1385. The dissenters concluded that “[m]ere cancellation of the performances would not appear to convey the message that the BSO intended to take any future action.” Id. Thus, there would be no threat or intimidation. This statutory construction, as applied to the facts of this case, was not addressed by any of the other justices, and there is no indication that any of them would have disputed the conclusion that liability could not attach in this case. In reaching their conclusions, the dissenting Justices specifically noted that their statutory interpretation was based not only on legislative history and logic, but also was motivated “by another consideration.” Justice O’Connor agreed that the plurality’s answers to our certified questions implicated serious constitutional questions stemming from the BSO’s constitutional right not to speak (i.e., perform), and not to be civilly liable for not speaking. Those constitutional questions are reduced or altogether removed by construing § 111 as imposing liability only on a defendant who specifically intends to interfere with another’s secured rights. 399 Mass. at 106, 502 N.E.2d at 1382. Justice O’Connor reasoned that “ ‘It is our duty to construe statutes so as to avoid ... constitutional difficulties, if reasonable principles of interpretation permit.’ ” Id. (quoting Langone v. Secretary of the Commonwealth, 388 Mass. 185, 190, 446 N.E.2d 43 (1983) (quoting in turn School Comm. of Greenfield v. Greenfield Educ. Ass’n, 385 Mass. 70, 79, 431 N.E.2d 180 (1982))). In accordance with this principle, and keeping in mind that the BSO may have intended “only to exercise its constitutional right not to present an inartistic performance,” 385 Mass. at 103, 502 N.E.2d at 1381, the dissenters construed the statute to preclude liability in the situation presented by this case. C. Making Sense of the Supreme Judicial Court’s Opinions There are at least four votes on the SJC denying liability on state law grounds. The concurring justices would establish a state constitutional defense, and the dissenters would interpret the statute, in light of constitutional concerns, to prohibit liability in the first instance. These two grounds are separate and not inconsistent. Because a majority of the SJC would foreclose liability on state law grounds, it is unnecessary and improper for us to reach the federal constitutional issues. We are, moreover, confident that the entire SJC would, if explicitly asked to decide the issue, concur with the finding of no liability on both state law grounds. First, we think that there would be unanimity on the dissenters’ theory that the statute does not in the first instance impose liability for refusing to perform. The dissent explicitly held so on two separate grounds. One of those grounds was rejected by the rest of the court as a general holding, but not as it related to these specific facts. Indeed, the other justices rejected the dissent’s view of “coercion” only on the abstract assumption that constitutional concerns were not implicated in a particular case; that is, they established third-party pressure as a source of coercion and thus liability in a typical MCRA case, without reaching the novel issues of statutory construction presented by the instant facts. And none of the other justices rejected the dissent’s alternative statutory interpretation in the final paragraph, which related specifically to the facts of this case. It is not mere speculation to presume that the justices in the plurality also would deny liability on the facts of this case. In fact, the plurality opinion suggested that the statute could be construed, in light of constitutional concerns, to deny liability for cancellation of an artistic performance. On. such a difficult question of statutory construction, regarding a fact situation far removed from the prototype envisioned by the legislature and implicating a plaintiffs free speech rather than equal protection rights, we think it clear that the plurality (and the concurring justices, for that matter) would interpret the statute so as to find that cancellation of a performance could not be the basis for MCRA liability. Such a conclusion follows directly from the longstanding principle of statutory construction that “ ‘[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.’ ” Loriol v. Keene, 343 Mass. 358, 363, 179 N.E.2d 223 (1961) (quoting United States v. Jim Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916)) (emphasis supplied). See also Frisby v. Schultz, — U.S. -, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988) (“well-established principle that statutes will be interpreted to avoid constitutional difficulties”). This principle has for many years been a paramount tenet of Massachusetts statutory construction. See, e.g., Spence v. Gormley, 387 Mass. 258, 264, 439 N.E.2d 741 (1982); Baird v. Attorney General, 371 Mass. 741, 745, 360 N.E.2d 228 (1977); Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 364, 294 N.E.2d 393 (1973); Opinions of the Justices to the Governor, 361 Mass. 897, 901, 282 N.E.2d 629 (1972); Worchester Cnty. Nat’l Bank v. Commissioner of Banks, 340 Mass. 695, 701, 166 N.E.2d 551 (1960); Ferguson v. Commissioner of Corporations and Taxation, 316 Mass. 318, 322-24, 55 N.E.2d 618 (1944); Kennedy v. Commissioner of Corporations and Taxation, 256 Mass. 426, 430, 152 N.E. 747 (1926). The SJC has “traditionally ... regarded the presence of a serious constitutional question under one interpretation of a statute to.be a strong indication that a different possible interpretation of that statute should be adopted, if the constitutional issue can be avoided thereby.” Baird, 371 Mass. at 745, 360 N.E.2d 228. Even where the SJC is unpersuaded that constitutional infirmities are implicated, it “prefer[s] to read the statute in a way that will avoid constitutional doubts.” Spence, 387 Mass. at 264, 439 N.E.2d 741. In light of this unassailable rule of statutory construction, we are certain that the remainder of the SJC would agree with the dissenters that the MCRA, when construed in light of constitutional considerations, does not impose liability for a refusal to perform an artistic work. It is clear that all of the justices had at the very least grave doubts about the constitutionality of imposing MCRA liability on the BSO in this case. Without seeing any indication that a single justice would otherwise have construed the statute in this case, we conclude that at least a majority would follow the traditional presumption and construe the statute so as not to implicate the constitutional right, recognized by them all, to refuse to proceed with an artistic performance. We are equally confident that a majority, if not all, of the justices, would agree with the concurrence that a state constitutional defense also bars liability. It cannot seriously be contended that the dissenting justices, who were willing explicitly to construe the statute so as to preclude liability, would not join in the concurrence’s reasoning. Similarly, the plurality took great pains to acknowledge the possibility of a constitutional defense. While neither the dissent nor the plurality distinguished between possible state and federal sources, théy declared the existence of the right to refrain from performing with such certainty that, were we to hold that the First Amendment created no such right, we are confident that they would find such a right in article 16 of the Massachusetts Declaration of Rights. D. The State Law Basis for the SJC’s Opinions We think it is clear that the grounds relied upon by the concurrence and the dissent (each of which, we believe, would be adopted by a majority of the court), do in fact arise from consideration of state, rather than federal, law. The dissenting justices’ view is that the statute does not contemplate liability under the facts of this case. The dissenters concluded, based on at least two separate theories, that cancellation of a performance could not constitute “interfere[nce] by threats, intimidation or coercion” of Redgrave’s exercise of her “right” to speak freely. This follows from the responsibility to construe Massachusetts statutes so as to avoid possible constitutional doubts. We next examine the concurring justices’ alternative state law theory for denying liability — a state constitutional defense. We think that our dissenting brethren are mistaken when they assert that “[a]ny decision by the SJC that the BSO has a state constitutional defense to MCRA liability is virtually the same as, and indistinguishable from, a ruling that the BSO has a federal constitutional defense.” Infra at 917. We note that Justice Wilkins is himself the author of a careful and scholarly study of the relationship between federal constitutional provisions and parallel provisions of the Massachusetts constitution. See Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U.L.Rev. 887 (1980). In that article he discusses in detail the Supreme Judicial Court’s past treatment of article 16 and the future prospects for construing article 16 as divergent from the First Amendment. See id. at 897-906. In addition, the SJC has itself found it appropriate in certain circumstances to read article 16 to provide greater protection for freedom of artistic expression than does the First Amendment. See Commonwealth v. Sees, 374 Mass. 532, 536-38, 373 N.E.2d 1151, 1155-56 (1978) (finding protection under article 16 for semi-nude dancing that is not protected by the First Amendment-compare Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975)). Accord Cabaret Enterprises, Inc. v. Alcoholic Beverages Control Comm’n, 393 Mass. 13, 468 N.E.2d 612 (1984) (nude dancing). See also Commonwealth v. Upton, 394 Mass. 363, 372, 476 N.E.2d 548, 555 (1985) (reaffirming Sees, and, noting that “[t]he Constitution of the Commonwealth preceded and is independent of the Constitution of the United States,” listing numerous cases where the two constitutions have been read to diverge). We do not take lightly Justice Wilkins’s express reliance on the existence of a state, as opposed to federal, constitutional right. We read his concurrence as a measured and meaningful conclusion that there is such a state constitutional right. Nor does Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), compel us to treat the SJC’s constitutional views as reflecting exclusively, or primarily, federal constitutional law. Michigan v. Long addressed the prototypical case where a state court cites a mix of federal and state cases as authority for a “constitutional” holding. In that sort of case, the Supreme Court, on direct review of the federal questions, is legitimately concerned about the precedential impact of ambiguity on federal decisional law; the Michigan v. Long rule is devised to prevent unnecessary erosion of federal constitutional law through opaque state court rulings. But in the case before us, we defer to a state court’s interpretation of state constitutional law on certification in a diversity case. We think it clear that the concurrence did rely on “adequate and independent state grounds,” and we are confident that at least a majority of the SJC would join that position. The “plain statement” rule in Michigan, quoted at length by the dissent, makes it clear that federal review of such a decision would be inappropriate. The dissent quotes, but fails to emphasize, the Supreme Court’s ruling that the state ruling is presumed to be based on federal law when that decision “fairly appears to rest primarily on federal law, or to be interwoven with the federal law....” 463 U.S. at 1040, 103 S.Ct. at 3476. This prerequisite is not met here. Similarly in the next passage quoted by the dissent: there is federal jurisdiction to hear the federal claim “when it fairly appears that the state court rested its decision primarily on federal law.” Id. at 1042, 103 S.Ct. at 3477. There is, of course, no appearance at all here that the concurrence or either of the other opinions from the SJC was referring to federal law when speaking about the BSO’s constitutional right not to perform, and the concurrence explictly makes reference to state constitutional law as the adequate and independent ground for denying liability. It is not surprising that the various SJC opinions do not cite federal cases, not only because those opinions were tendered in response to questions about state law, but also because there are not any federal cases directly, or even closely, on point in such a strange fact situation and with such an unusual state statute. It cannot plausibly be argued that the SJC’s opinions say anything at all about federal law. The concerns of Michigan v. Long therefore are not implicated here. E. Conclusion In these circumstances, and especially in view of our obligation to avoid the unnecessary decision of federal constitutional questions, we see no need to discuss the existence or content of a First Amendment right not to perform an artistic endeavor. In sum, we decline to reach the federal constitutional issues not only to avoid the unnecessary resolution of very difficult and novel questions of constitutional law, but also to avoid an unnecessary disputation with a state court over the reach and in-tendment of a state statute. There are at least four, and as many as seven, votes on the SJC for denying MCRA liability for refusing to perform an artistic work. The four votes are based on separate yet not inconsistent interpretations of state law, even if federal constitutional concerns might animate those state law constructions. We are confident that each of the two state law theories would be accepted by a majority, if not all, of the court, because of the necessity of construing state statutes so as to avoid constitutional doubts. But even if the entire court was not so inclined, a majority has already declared that liability should not be imposed under state law. Accordingly, we hold, in light of our understanding of state law, that the district court correctly entered judgment for the BSO on Redgrave’s MCRA claim. The judgment on the MCRA claim is AFFIRMED and the judgment on the contract claim is VACATED and REMANDED for entry of judgment for consequential damages to the extent approved herein. No costs. . Redgrave Enterprises Ltd. was a plaintiff only as to the contract claim; it did not join the MCRA claim. . The court apparently submitted the factual question to the jury either before it decided the legal issue or to protect against the need for a retrial in the event of reversal on appeal. . The BSO notes that Redgrave contended that "the cancellation, as communicated to other employers through the news media, harmed Vanessa Redgrave because it carried with it the message ‘that Vanessa Redgrave was unemployable,’ a claim for damage to Redgrave's reputation.” . We are not convinced that the cancellation of a contract could ever receive First Amendment protection. Unlike engaging in an economic boycott, burning a draft card, or wearing an armband, cancelling a contract is not a traditional form of protest. We would be wary of adopting a principle that would allow a party wishing to breach its contract for economic objectives to hide behind First Amendment protections merely by stating that it has cancelled the contract in order to make a statement about the other party. This question, however, is not before us in this case. . It is true that, as a result of previous press reports regarding the community reaction to the Redgrave engagement, the public could easily infer that the BSO’s cancellation of the performances resulted from the furor over Redgrave. Nevertheless, the fact that the BSO made an intentional effort not to mention Redgrave by name in the press release indicates that the act of cancellation was not intended to be a form of expression. . Although Redgrave received a number of offers to appear in Broadway plays between 1975 and 1980, the only offer she accepted and received payment for was a 1976 play, Lady From the Sea, performed in off-Broadway’s Circle in the Square theater, for which Redgrave received $9,000. . Redgrave testified that the original departure date for Australia had been postponed from October 11th to November 2d, and that she could not recall whether it was in late October or early November that she found out that the film had fallen through. .Redgrave testified that she turned down the offer for the Sakharov film because she obtained "alternative work” and because she was afraid the film might be used as anti-communist propaganda. There was no evidence that this film did not have secure financial backing. . In fact, Redgrave expressed an interest in filming Annie’s Coming Out in February 1982, two months before the BSO cancellation. . We assume that Redgrave's claim must refer primarily to offers made after November 1982, when she learned that Annie's Coming Out would not be produced. Offers made before that time, for projects that would have conflicted with the filming of Annie, presumably would not have been accepted by Redgrave in. any case. .In addition, immediately following the BSO cancellation, Redgrave stopped using the services of her long-term agent, Bruce Savan, and engaged the services of the William Morris agency. After one year, Redgrave re-engaged Savan. The BSO contends that the change in agencies could have been an additional factor causing any decline in offers. . We note that Redgrave’s claim regarding American theater offers is both stronger and weaker than her claim regarding film offers. On the one hand, Redgrave indeed did not receive any Broadway offers in 1982, in contrast to various film offers and inquiries that she did receive throughout 1982. On the other hand, Redgrave failed to present evidence of any Broadway offers made to her in 1981, weakening her assertion that a dramatic decline in such offers occurred subsequent to April 1982. . Although Massachusetts has omitted state action as an element of an MCRA claim, Massachusetts’ own action in creating rights and duties under the MCRA is, of course, state action. Consequently, rights and duties under the MCRA are limited by the various constitutional constraints on state action. . "Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This amendment is, of course, now applicable to the states. . Article 16 of the Declaration of Rights to the Constitution of the Commonwealth guarantees that ”[t]he right of free speech shall not be abridged.” Article 19 of the Massachusetts Declaration of Rights provides that "[t]he people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.” . Cf. Carpenters v. Scott, 463 U.S. 825, 831-33, 103 S.Ct. 3352, 3357-59, 77 L.Ed.2d 1049 (1983) (there can be no private conspiracy to violate First Amendment rights under 42 U.S.C. § 1985(3) without state action because that right "is by definition a right only against state interference”). . Of course, a defendant’s freedom of expression interests can also be implicated in a traditional race or sex discrimination case under the MCRA. We do not think it at all obvious, as do our dissenting brethren, that liability should attach if a performing group replaces a black performer with a white performer (or vice ver-sa) in order to further its expressive interests. Unlike the case in Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), cited by the dissent, there would in this case be a conflict of protected interests. This presents serious constitutional and statutory questions that we do not pretend to survey here. We do note, however, that the Supreme Court recently has reaffirmed the principle that discrimination might in certain circumstances be justified in order to preserve expressive integrity. New York State Club Ass'n, Inc. v. City of New York, — U.S. -, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1 (1988) ("It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion.”). See also id. 108 S.Ct. at 2237 (O’Connor, J., concurring) ("there may well be organizations whose expressive purposes would be substantially undermined if they were unable to confine their membership to those of the same sex, race, religion, or ethnic background”); Roberts v. United States Jaycees, 468 U.S. 609, 627, 104 S.Ct. 3244, 3254-55, 82 L.Ed.2d 462 (1984) (“It is ... arguable that, insofar as the Jaycees is organized to promote the views of young men whatever those views happen to be, admission of women .. will change the message communicated by the group’s speech because of the gender-based assumptions of the audience.") (emphasis supplied); id. at 633-36, 104 S.Ct. at 3257-59 (O’Connor, J., concurring in part) (“Protection of the association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.... [W]hen an association is predominantly engaged in protected expression ... state regulation of its membership will necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard.”). Finally, we note that, even if an artistic organization could not dbcriminate in favor of a white (or black, or male) performer, presumably it would have a much more compelling interest in cancelling the performance rather than acceding to the casting requirements imposed by the state, even if the reason for cancellation is fear of community reaction. Of course, we here simply point out some of the difficulties that arise when two important protected interests conflict—where there is a clash of rights. We express no view as to how, in particular cases, that clash might be resolved. . For constitutional purposes, it makes no difference whether the state seeks to compel expression directly by "forcing” the artist to perform, or by imposing civil liability for refusing to perform; either form of coercion is burdensome to rights of free expression. . There are numerous ways in which adverse performance conditions may disturb that synergistic interplay of performers and audience that is so important to the content of the performance. Of course the importance of conditions is not a constant; it will vary with the medium (music, dance, drama), the setting (Circle in the Square, Symphony Hall, Shea Stadium), the audience (young children, rock fans, opera lovers) and the performers (Barnum & Bailey, the Beastie Boys, the Bolshoi Ballet). Some performers and audiences may be able to ignore adverse conditions; others may welcome the challenge of working around or with those conditions; still others may find adverse conditions intolerable—there is a long tradition of performers stalking offstage when an audience is not to their liking. But there can be no doubt that performance conditions may sometimes be vitally important to the overall impact of a performance, to the point where it makes little sense to speak separately of the performance's content. Visual or aural disruption easily can destroy the intended mood and atmosphere of a performance and produce an impact on the audience different from that which the performer intended to convey. . Cf. Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966) (plurality opinion) (holding that First Amendment rights "are not confined to verbal expression” but may also include "protest by silent and reproachful presence_”). . The implications of the dissent’s position underscore its problems. For instance, under the dissent’s theory of the MCRA, a private university would be liable for denying tenure to a professor whose views it found politically reprehensible, or to a scholar who might cause turmoil on campus. A newspaper could not, without running afoul of the statute, cancel an opinion writer's column in response to outrage in the community, even if it meant that the newspaper’s reputation was impugned or that great numbers of people stopped reading the paper. While we may commend those institutions and artists that resist such public pressure, no court has, to our knowledge, ever held legally accountable those private groups or artists that do succumb to public taste. . We must interpret this reference to mean Redgrave’s free speech right, emanating from the state constitution but "secured” by the MCRA against private interference. The BSO’s free speech right under the state constitution— that is, the right to speak, or not to speak, free of governmental interference — would, of , course, outweigh Redgrave’s merely statutory right under the MCRA, and would in Justice Wilkins’ view bar the state from imposing MCRA liability. . Of course, Michigan v. Long does not in any way affect our decision to defer to the SJC’s implicit interpretation of the statute itself, in light of constitutional doubts, to foreclose liability in the first instance. See supra at 909-10. In so doing, we are respecting a state court’s discernible reading of its own statute influenced by constitutional concerns. That these concerns might be regarding federal constitutional issues does not change the fact that the state court’s decision is, exclusively, one of state statutory construction; there is no suggestion that any view about federal law is being decided. BOWNES, Circuit Judge, with whom Circuit Judge SELYA joins, concurring in part and dissenting in part. Although I concur wholeheartedly in part II of the majority opinion concerning Redgrave's consequential contract damages claim, I cannot agree with the majority’s treatment of Redgrave’s claim under the Massachusetts Civil Rights Act (MCRA). Accordingly, I write separately. In framing the terms of my disagreement, it is important to emphasize what the majority actually holds when it rebukes Redgrave’s MCRA claim. The majority's opinion is not based on a federal constitutional defense to application of the MCRA against BSO. Notwithstanding that it spends eight pages discussing federal constitutional issues raised by the MCRA, supra at 904-07, the majority opinion — paradoxically — goes on to add that “we see no need to discuss the existence or content of a First Amendment right” for the BSO. Supra at 911. Rather, the majority purports to rest its decision solely on principles of Massachusetts state law gleaned from the answers to the two questions we certified to the Supreme Judicial Court (SJC). The result of this approach is that the majority allows a state court to bar Redgrave from recovering on essentially first amendment grounds without any independent review by a federal court. The majority’s reading of the SJC’s opinions is ill-founded and wholly unconvincing. It ignores the dear and unequivocal answers to the two questions certified to the SJC, relying instead on dicta in the SJC plurality opinion, it unduly emphasizes the concurring opinion by two justices, and it engrafts onto the plurality and concurring opinions selected statements from the dissent. Then, to hold this pastiche together, it overrules, on the basis of a law review article by one of the associate justices of the SJC, well-established Massachusetts law holding that, as far as freedom of speech is concerned, state and federal rights are coextensive. Not only has the majority ignored the dictates of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), it has rewritten Massachusetts law. This is comity run amok. I. THE OPINIONS OF THE SUPREME JUDICIAL COURT Unlike the majority, I do not believe that state law provides a basis for ducking the important and difficult federal constitutional issues raised by this case. Before turning to those issues, however, it is necessary first to examine what the SJC wrote in its answers to the questions certified by this court and how these answers ought to be interpreted in light of state and federal law. My discussion of the SJC’s opinions is divided into two parts. The first part reviews what the SJC actually said about the scope of the MCRA and the second part applies a common sense approach concerning the import of possible defenses under the- Declaration of Rights of the Massachusetts Constitution. A. What the Supreme Judicial Court Said Because this case involves certified questions, I begin by reviewing the answers supplied by the SJC. I first point out that with respect to the answers as opposed to any dicta, there is no need to distinguish between the plurality opinion on behalf of three justices and the concurrence on behalf of two: the two concurring justices specifically joined “in the answers given to the questions as the Chief Justice’s [plurality] opinion has construed them.” Redgrave v. Boston Symphony Orchestra, 399 Mass. 93, 101, 502 N.E.2d 1375, 1380 (1987) (Wilkins, J., concurring). A clear majority (five justices) of the SJC thus has agreed to a single answer to each of the certified questions. Each answer was favorable to the claims of Redgrave. They may be summarized as follows. First, a defendant may be held liable under the MCRA even if the defendant did not desire to interfere with the rights of another, but merely acquiesced to third-party pressure. See 399 Mass. at 98-100, 502 N.E.2d at 1378-79. Second, it is no defense to an action under the MCRA that the defendant’s actions were motivated independently by concerns for economic loss or physical safety, absent explicit and imminent danger of physical harm. See 399 Mass. at 100-01, 502 N.E.2d at 1379-80. The logical result of these answers, seemingly lost in the majority opinion, is that the MCRA was intended to reach precisely the conduct of the BSO in this case. The only statutory defenses offered by the BSO — that it merely acquiesced to third-party pressure and acted out of an independent concern for economic loss and physical safety — were soundly rejected. The three justices in the plurality and the two concurring justices were not, however, in complete agreement, as evidenced by their separate opinions. Their disagreement lay in a possible state constitutional defense for the BSO, a question which is implicitly raised by the facts of this case, but which was never certified to the SJC. The three justices in the plurality concluded that the constitutional issue was not before them and limited their answers to “the two questions as they are worded.” 399 Mass. at 97, 502 N.E.2d at 1377. They specifically stated that they were “express[ing] no opinion” on such issues as a free speech defense for the BSO. Id. In contrast, the two concurring justices found that BSO’s free speech rights were inseparably involved in the case and thus did reach the question of state constitutional defenses. For himself and Justice Abrams, Justice Wilkins wrote: “I have been unable to think of any theory under which, in the circumstances, statutory liability may properly be imposed on the BSO in the face of its State constitutional right to determine what artistic performances it will or will not perform.” 399 Mass. at 102, 502 N.E.2d at 1380. The two dissenting justices differed fundamentally from both the plurality and concurring justices on the question of how to interpret the MCRA. The dissenters argued that the statute must be understood to require a showing of specific intent, applying only to persons who specifically intend to interfere with secured rights of another. 399 Mass. at 102-09, 502 N.E.2d at 1380-84. Like the plurality, the dissenters did not decide whether the BSO has any state constitutional defense to the MCRA, although the dissent did use the possibility of some “constitutional” problems — not specifying the federal or state Constitution as the source for such problems — as support for its interpretation of the statute. Invoking the familiar maxim of statutory construction, the dissent argued that the MCRA should be interpreted to require specific intent so as to avoid “serious constitutional questions” that would otherwise arise. 399 Mass. at 106, 502 N.E.2d at 1382. A plain reading of the SJC’s opinions reveals two things. First, a majority of five justices has rejected the statutory defenses offered by the BSO. Two justices dissented on this point, but we are, of course, bound to accept the conclusions of the majority and assume that the BSO’s statutory defenses to the MCRA are not valid. Second, the two concurring justices reached the question of whether the BSO has any constitutional defense. They found that it did, under the state Constitution. However, a majority of five justices — the plurality of three plus the two dissenting justices — expressly declined to decide the constitutional question. This court is, therefore, left without definitive guidance from the SJC on that issue and must, I believe, decide both the state and federal constitutional questions in order to resolve fully the issues presented by this case. The majority of this court obviously views the situation quite differently. It has put forth what are apparently three separate reasons for evading the constitutional questions and “deferring” to the views of the SJC on ostensibly state law grounds. Each argument is without merit. I address them individually. First, by aggregating the views of the two dissenting and two concurring justices, the majority suggests that “[tjhere are at least four votes on the SJC denying liability on state law grounds,” making it “unnecessary and improper for us to reach the constitutional issues.” Supra at 909. It is true that four members of the SJC would not have held the BSO liable under the MCRA. The two dissenters found that the MCRA did not extend liability absent specific intent to interfere with secured rights, and the two concurring justices found a state constitutional defense. Therefore, had this exact case arisen in the Massachusetts state courts and proceeded in its present form to the SJC, the BSO would not have been subjected to liability, by virtue of the somewhat unusual combined effect of two minority positions. But that possibility is simply irrelevant to the issues here, because this case did not arise in the state courts, it arose in the federal courts. As a federal court sitting in a diversity case, our task is to apply the substantive law of Massachusetts on any given state law question, not to predict what quirky result might obtain in the state courts because a particular case contains multiple state law issues, each of which attracts a minority as well as a majority position. The central state law issues in this case are the two questions of statutory interpretation we certified to the SJC. On those questions, we have received clear answers from a majority of five justices. That two justices disagreed with the majority’s analysis should have no bearing on our handling of this case, for their view, however interesting it may be, failed to carry the day in the SJC. Certainly we have no business combining the two dissenting votes with the votes of the two concurring justices, who based their position on entirely different grounds and indeed explicitly rejected the dissent’s analysis. In its eagerness to “defer” to the SJC, the majority of this court has confused the procedure of certifying questions of state law to a state court with the procedure of certifying entire cases to state courts. Federal courts do not certify cases to state courts. They certify questions of law and then apply the answers to those questions to reach a result which represents the combined effect of majority, not minority, positions. The second reason offered by the majority for ducking the federal issues in this case is its “confiden[cej that a majority, if not all, of the justices [of the SJC], would agree with the concurrence that a state constitutional defense also bars liability.” Supra at 910. One would expect such a conclusion to be based on a substantive review of SJC decisions in the free speech area. Surprisingly, however, the majority bases its “confidence” solely on a reading of the three SJC opinions in this case, only one of which (the concurring opinion) even purported to reach the issue of the state Constitution. It is, therefore, necessary to review the SJC opinions in some detail in order to see how the majority could have reached such a remarkable conclusion. Writing for a plurality of the SJC, Chief Justice Hennessey addressed the question of a possible constitutional defense, which he termed “serious issues ... suggested by the record of this case,” in prefatory remarks preceding his answer to the two certified questions. 399 Mass. at 97, 502 N.E.2d at 1377. This court’s majority opinion quotes liberally from these remarks, concluding that they “deelar[e] the existence of the right to refrain from performing with ... certainty.” Supra at 910. I cannot agree. To begin with, although the majority extensively quotes and discusses the plurality’s “serious issues” remarks, it inexplicably omits the crucial paragraph with which these remarks are introduced and which places them in proper perspective: “We answer the two certified questions in accordance with their clear and unequivocal wording. In so doing, we express no opinion on some serious issues which are not addressed in the questions but which are suggested by the record of the case.” 399 Mass. at 97, 502 N.E.2d at 1377 (emphasis added). I cannot imagine how to read this passage, except as indicating that, although the plurality felt compelled to mention some issues raised by the certified questions — including the question of a constitutional defense — it did not wish even to state an opinion as to how those issues might be resolved. The majority’s opinion subverts these clear words of the Chief Justice by reading into the Chief Justice’s opinion a view that the opinion itself expressly declined to take. Moreover, if the plurality’s intent not to take a position on the question of a constitutional defense was not made clear in its prefatory remarks, it is amply demonstrated by the language used by the Chief Justice to discuss the “serious issues.” Each remark he made, to which the court today attaches overriding significance, is phrased as an “offering,” a possible “inference,” or an “argument,” not as an opinion or a conclusion. See 399 Mass. at 97, 502 N.E.2d at 1377 (“It can be inferred_ [I]t can be argued.... It can also be argued_ It can be offered_ It can be further offered_”) (emphasis added). These comments are pure hypothetical conjecture and equivocation. They do not even rise to the level of dicta because they are not statements of opinion regarding issues not before the court. They are merely recitations of arguments that might be made (concerning issues not before the court), without any indication whether the justices in the plurality indeed thought that the arguments were valid. The plurality deliberately narrowed the focus of both questions, particularly question two, by stating immediately after the remarks: “We have not considered any of the above arguments or issues in answering the two certified questions.” Id. The justices of the Supreme Judicial Court know how to offer an opinion, even in dicta, when they choose to do so. This court’s attempt to elevate the plurality’s comments into rulings of law binding on us ignores its expressed intent not to issue such rulings in this case. It is also important to note that Justice Wilkins’ decision to reach the question of defenses under the Massachusetts Constitution was the sole reason for his filing a separate concurrence. In every other respect, he agreed with the analysis of the plurality. See 399 Mass. at 101-02, 502 N.E.2d at 1380. By suggesting that both the plurality and concurrence “would” have found a state constitutional defense to the MCRA in this case, supra at 910, the majority of this court attempts to read out of existence the one and only distinction between the two SJC opinions. Notwithstanding that the five justices found suffi cient disagreement amongst themselves to warrant two separate opinions, this court declares that the justices were actually in total agreement concerning a constitutional defense. This dovetailing of the plurality and concurring opinions is achieved by wresting the justices’ words out of the context in which they were used. As if it were not presumptuous enough to have disregarded the stated ground for disagreement between the plurality and concurring justices, the majority of this court goes on to create “unanimity” on the part of the SJC by declaring that the dissenters as well “would” have joined in the concurring justices’ finding of a state constitutional defense. Supra at 910. The dissent certainly says no such thing explicitly. No constitutional cases are cited by the dissent. Indeed, the dissent’s only reference to any constitution was its assertion that interpreting the MCRA to require a showing of specific intent avoided “serious constitutional questions.” 399 Mass. at 106, 502 N.E.2d at 1382. This court’s majority opinion pays lip service to this principle of statutory construction, but then overlooks the central point of the dissenting justices’ opinion. When the dissent said it was construing the MCRA to avoid constitutional questions, it was doing precisely that: avoiding the constitutional question, not deciding it. It is only by ignoring the very words of the dissent, and inverting the maxim of statutory construction invoked by the dissent, that the majority of this court purports to find within the SJC dissent a resolution of the constitutional question. For its third reason to justify avoiding the federal issues in this case, the majority latches on to dictum in the dissent from the SJC. In this dictum, the dissenters identified an additional possible statutory defense for the BSO, namely, that “merely” cancelling the performance was not “threats, intimidation or coercion” within the meaning of the MCRA. See 399 Mass. at 110, 502 N.E.2d 1385; supra at 908-09. Importantly, this argument was not articulated by any party to this case nor was it addressed in any fashion by either the plurality or the concurring justices of the SJC. It was simply a suggested theory, virtually an aside, presented in the last paragraph of the dissent. At that, the dissenting justices noted only that it was “doubtful” that the BSO’s action amounted to “interference with secured rights by threats, intimidation or coercion.” 399 Mass. at 110, 502 N.E.2d at 1385 (O’Connor, J., dissenting). Nevertheless, the majority speculates that there “would” be “unanimity” on this theory. Supra at 909. The majority identifies no precedent of the SJC that supports such speculation. It merely points out that the SJC, like all courts, normally construes statutes so as to avoid constitutional difficulties and also notes that “none of the other justices rejected” the dissent’s “novel” statutory argument. Id. I think it obvious that this important issue of statutory construction cannot stand on such a flimsy foundation. To begin with, I can ascribe no significance to the fact that the plurality and concurring justices failed to reject this argument given that no party ever raised the issue and it was not even the basis for the dissent. More fundamentally, I think that the majority’s facile interpretation of the statute is absolutely untenable as applied to the facts of this case. The BSO did not “merely” cancel a performance, it cancelled an employment contract with Redgrave — essentially fired her —on the basis of community reaction to her political beliefs. In so doing, the BSO substantially undermined Redgrave’s ability to obtain other work, as evidenced by the fact that this court has affirmed an award to Redgrave of $12,000 in consequential contract damages. See part II supra. Even if they do not amount to “threats” or “intimidation,” I fail to see how the BSO’s actions, affecting Redgrave’s fundamental right to work, can be characterized as other than “coercive” within the meaning of the MCRA. In sum, I do not agree with the majority’s selective reading of the SJC’s opinions. I find no basis in those opinions for rejecting Redgrave’s claims on state law grounds. Accordingly, I move on to consider the issues not resolved by the SJC: possible defenses for the BSO under the Massachusetts Declaration of Rights and the United States Constitution. B. Application of the Massachusetts Declaration of Rights Although the issue of a possible state constitutional defense for the BSO was not reached by a majority of the SJC, it remains (at least potentially) an important question in this case. For, if the Massachusetts Declaration of Rights does provide an adequate and independent state law basis for precluding application of the MCRA to the BSO, we need not reach the question of a possible federal constitutional defense. The answer to this question is, however, as simple as it is important: insofar as freedom of speech is concerned, the Massachusetts and federal rights have previously been held to be coextensive. In the words of the SJC, “the criteria which have been established by the United States Supreme Court for judging claims arising under the First Amendment ... are equally appropriate to claims brought under the cognate provisions of the Massachusetts Constitution.” Opinions of the Justices to the House of Representatives, 387 Mass. 1201, 1202, 440 N.E.2d 1159, 1160 (1982) (quoting Colo v. Treasurer & Receiver General, 378 Mass. 550, 558, 392 N.E.2d 1195, 1200 (1979) (same holding)). To determine the breadth of constitutional free speech defenses in Massachusetts, then, we need only construe the federal Constitution itself and we will have our answer. Moreover, because Massachusetts has chosen to base the interpretation of its own free speech rights on analogous federal rights, as a federal court we cannot avoid construing the federal Constitution even if we could find a state court opinion directly on point. Any decision by the SJC that the BSO has a state constitutional defense to MCRA liability is virtually the same as, and indistinguishable from, a ruling that the BSO has a federal constitutional defense. Such a state court interpretation of federal law is, of course, not binding authority on the federal courts. The majority opinion attempts to evade the impact of this point by referring to a law review article by Justice Wilkins, who wrote the concurring opinion in the SJC. Justice Wilkins’ article discusses generally the relationship between the United States Constitution and the Massachusetts Declaration of Rights and, among other things, it explores “the future prospects for construing [the Massachusetts free speech guarantees] as divergent from the First Amendment.” Supra at 910 (emphasis added). Based solely on this law review commentary, the majority says it feels confident that when Justice Wilkins referred to the Declaration of Rights in his concurrence, he conclusively signalled that the Massachusetts Constitution was to be interpreted as different from the United States Constitution. I do not agree. The principle that Massachusetts and federal free speech rights are coextensive is a firmly established one, noted in many opinions of the SJC. See, e.g., cases cited supra at 917. It has never seriously been questioned in any SJC opinion. This principle leads to the inescap able presumption that whenever the SJC rules on the state constitutional right to free speech, it is also ruling on the first amendment. The extrajudicial commentary of a single justice does not alter this presumption. If anything, Justice Wilkins’ law review article demonstrates a familiarity with past SJC practice such that if he had wanted to depart from the established rule, he would have done so explicitly. In discussing its own jurisdiction in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court also explored the interplay between analogous state and federal constitutional guarantees, and developed a firm rule to be applied by federal courts in determining whether a state court decision rests on “adequate and independent state grounds” such that federal review would be inappropriate. As the Court noted, the “adequate and independent state grounds” doctrine is based on “[rjespect for the independence of state courts, as well as avoidance of rendering advisory opinions.” Id. at 1040, 103 S.Ct. at 3476. It provides that where there is no dispositive issue of federal law, the federal courts will not disturb state court rulings. The application of the doctrine has not, however, always been easy. The problem confronted by the Long Court was this: state constitutional rulings often do not make clear whether the basis for the ruling is the federal Constitution or an independent provision of the state constitution. Prior to Long, such ambiguity had lead to a series of inconsistent and “unsatisfactory” “ad hoc ” decisions by the Court. Id. at 1039, 103 S.Ct. at 3475. Thus, in Long, the “plain statement” rule was set down: [W]hen ... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the way it did because it believed that federal law required it to do so. [Thus,] in determining ... whether ... to review a case that is alleged to rest on adequate and independent state grounds, we merely assume that there are no such grounds when it is not clear from the opinion itself that the state court relied upon an adequate and independent state ground and when it fairly appears that the state court rested its decision primarily on federal law. Id. at 1040-42, 103 S.Ct. at 3476-77 (citations omitted) (emphasis added). As I have already stated, I believe that neither the SJC plurality opinion nor the dissent can fairly be read to have decided or opined on any constitutional issue. However, even assuming that all three opinions suggested a constitutional ruling, none satisfies the Long plain statement test and none, therefore, justifies the majority’s evasion of the federal constitutional issues raised. With respect to the plurality and the dissent, this court’s majority opinion itself notes that neither “distinguished between possible state and federal sources.” Supra at 910. To the extent those opinions have any constitutional dimension, they are precisely the kind of “opaque” state court rulings that Long was intended to address. See supra at 911. The majority attempts to overcome this facial violation of the plain statement rule through its “confidence” that the plurality and dissenting justices “would” decide this case on state constitutional grounds if that issue were presented to them. Supra at 911. Speculation about what the SJC “would” decide does not, however, a plain statement make, and without a plain statement that the justices intended to rely independently on the Massachusetts Constitution, we must, under Long, assume that the justices were relying on the federal Constitution. The opinion of the two concurring justices presents a somewhat more difficult question with respect to the plain statement rule because it did rely on the Massachusetts Constitution without explicitly referencing the federal Constitution. As previously noted, however, in invoking the Massachusetts Declaration of Rights, the concurring justices expressed no intent to depart from the established rule that state free speech rights are identical to and based on federal rights. Their opinion, therefore, does not provide “independent grounds” as required by Long, Overall, the majority has read between the lines of the SJC’s three opinions, ferreted out a constitutional ruling where none was intended, and then blindly deferred to that ruling in the complete absence of any plain statement of adequate and independent state grounds. This flouts the compelling logic and binding precedent of Long. The ultimate irony in this manipulative reading of the SJC’s opinions lies in its purported justification: faithfulness to “principles of comity and federalism.” Supra at 903. Certainly, the process whereby federal courts certify doubtful questions of state law to state courts can “save time, energy, resources and hel[p] build a cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974). And where, as here, a state court delivers a definite answer to a question of state law which has been put to it, in the interest of comity that answer is normally conclusive in federal court. Even a definite answer to a question of state law not explicitly certified is welcome and entitled to considerable deference. But such principles simply are not involved in the extraordinary action taken by this court today. Not only does the majority of this court ignore the direct answers supplied by the SJC to the questions we certified, it finds controlling a question of law that was never even reached by a majority of the SJC. The root of the problem presented by the majority’s handling of this case, I believe, lies not with any error by the SJC, but with a mistake by the original panel in this case (which included me). When we certified our two questions to the SJC, we erred by not framing questions that were complete enough and broad enough in scope to elicit definitive answers from the SJC on all relevant, unresolved questions of Massachusetts law. But rather than admitting this error, and certifying new questions to the SJC, the majority now compounds our mistake by entering into a guessing game about what the SJC “would” have done if we had certified sufficiently broad questions. The majority opinion is riddled with terms of speculation, actually using the word “would” more than twenty times to describe what the SJC “would” decide if all the state law issues had been put squarely before it. The majority’s opinion amounts to nothing more than a prediction, a “hunch,” based on comments, or at best dicta, contained in the SJC’s opinions, that the SJC “would” decide the question of constitutional law raised by this case in favor of the BSO and that the state constitutional ruling “would” be independent from the federal Constitution. This approach turns comity on its head, and makes a mockery of the certification process. Far from deferring to state court prerogative, the majority’s action places a federal court in the position of itself deciding a delicate and unresolved question of state law. In so doing, the court disregards the words of the SJC’s answers to the certified questions by reading into those answers a view the SJC expressly declined to adopt. And, to make matters worse, the court has resolved the state law issues in a manner that actually constitutes a break with existing state court precedent. Today, the United States Court of Appeals for the First Circuit effectively makes itself the first court ever to hold, as a matter of state law, that free speech rights under the Massachusetts Constitution are not based on federal court interpretations of the first amendment. This concludes my reasons for disagreeing with the majority’s interpretation of the SJC opinions. My opinion cannot, however, end here. In order to fully resolve the issues of the case, and to demonstrate why the result reached by the majority is wrong, I must discuss whether the BSO has a first amendment defense that blocks application of the MCRA. II. THE FIRST AMENDMENT “ARTISTIC INTEGRITY” DEFENSE The next issue, therefore, is whether the BSO has, as it asserts, a first amendment “artistic integrity” defense to its violation of the MCRA. Although the words “artistic integrity” evoke a positive response and sound as if they ought to come within the protective mantle of the first amendment, I have found no case explicitly recognizing a first amendment right of “artistic integrity.” The term is hard to define. It can mean an actor’s desire to perform a role as she wishes, the right of an artist to write, paint, or compose free of any outside restraints, or a myriad of other activities involving artistic creation and expression. In the context of this case, however, and as articulated by the BSO, it means the right of the BSO to refuse to perform Oedipus Rex under less than optimal audience conditions. I recognize that the BSO has a first amendment right to control its artistic expression but, like every other first amendment right, this one is not an absolute. The MCRA provides a cause of action against “any person or persons, whether or not acting under color of law, [who] interfere by threats, intimidation of coercion” with the free speech rights of another. Redgrave argues that the BSO’s refusal to perform with her as narrator was motivated, as it clearly was, by the public outcry over her open endorsement of the Palestine Liberation Organization (PLO). She claims that she was deprived of employment because of her political views and that this deprivation amounted to coercion. The SJC agreed, rejecting the BSO’s proffered statutory defenses to MCRA liability. This case thus presents a clash between Redgrave’s right under the MCRA not to be punished for her public espousal of unpopular political views, and the BSO’s asserted first amendment right to control its artistic expression. It requires the application of a standard approach to first amendment issues: the balancing of two competing rights. In a number of recent cases, the Supreme Court has considered similar challenges to state antidiscrimination laws that, like the MCRA, incidentally infringe the right to free speech. Under the Court's now well-established test, such laws survive so long as they are necessary to serve a compelling state interest that is unrelated to the suppression of ideas. E.g., Board of Directors of Rotary Int’l v. Rotary Club, — U.S. -, 107 S.Ct. 1940, 1947-48, 95 L.Ed.2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462 (1984). In order to apply that test to this case, I begin by examining the MCRA and Massachusetts’ interest in passing it. The effect of the MCRA in this case is to further the Commonwealth’s interest in preventing the abridgement of speech. There can be no denying that this interest is substantial. Political speech, like the pro-PLO speech for which Redgrave has been made to suffer, is a particularly valuable and protected commodity. See, e.g., Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Neither the federal government nor the states may regulate such speech on the basis of its content absent a clear and present danger. See Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). And, unless accompanied by a present intent to overthrow the government and an actual likelihood of concrete harm, even subversive political speech is protected and may not be made the basis for discrimination by the government. Id. The Commonwealth has reinforced the centrality of these first amendment values by passing a statute that broadens the reach of free speech rights. By eliminating the state action requirement of 42 U.S.C. § 1983, the MCRA proscribes the abridgement of speech rights by private actors, such as the BSO, as well as by state actors, such as the Commonwealth itself. The Supreme Court has noted that the states and the federal government have a compelling interest in eliminating invidious discrimination by private persons on the basis of race and sex. Consequently, it routinely has upheld statutes aimed at eradicating such discrimination, even though they have the incidental effect of abridging the first amendment rights of the discriminators. E.g., New York State Club Ass’n v. City of New York, — U.S. -, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); Rotary Int’l, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474; Roberts, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462; Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). I believe that a similar analysis should be applied to the MCRA, which, among other things, prohibits discrimination on the basis of speech or politics. Branding it “an unusual statute,” however, the majority attempts to distinguish the MCRA from “traditional” statutes such as Title VII, which forbid racial and gender discrimination. Supra at 904. The majority declares that it “makes sense to treat private individuals similarly to the state” in order to combat racial discrimination. Id. On the other hand, it does not “make sense” to the majority to accord similar treatment to individuals who discriminate on the basis of political speech. The majority asserts that, unlike the right to be free from racial discrimination, the right to free speech “traditionally has content only in relation to state action.... The right is to be free of state regulation.” Id. I am at a loss to understand the majority’s position except as the “common sense” of federal judges so wedded to “traditional” thinking that they simply refuse to accept the basis for Massachusetts’ innovative antidiscrimination law. Certainly it is not true that the right to be free from racial discrimination is by definition less dependent on state action than the right to be free from restraints on speech. Even today, a primary legal guarantee against racial discrimination in this country is the equal protection clause of the fourteenth amendment which, of course, applies only to state action. Moreover, prior to the civil rights revolution of the 1960s, many Americans, including federal judges, thought that it did not “make sense,” even through legislation, to extend that antidiscrimination mandate to private persons. See, e.g., Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883) (holding that public accommodations such as railroads and hotels were immune from federal legislation aimed at racial discrimination because they did not involve state action). It is also important to note that the first amendment’s free speech guarantee textually applies to action by the federal government alone. It is the fourteenth amendment’s due process guarantee which extends to individuals a federal right to free speech enforceable against the states. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629-630, 69 L.Ed. 1138 (1925). Therefore, insofar as action by states is concerned, the same amendment — the fourteenth amendment — provides individuals with both their right to free speech and their right to be free from invidious racial discrimination. How, then, can the majority argue that the free speech right is inherently more dependent on state action than the antidiscrimination right? Virtually all antidiscrimination rights, whether they pertain to discrimination on the basis of race, sex or political belief, find their “traditional” basis in constitutional guarantees which are limited to state action. However, just as Congress through Title VII extended rights against racial discrimination to encompass actions by private persons, so has Massachusetts through the MCRA extended protection to persons like Redgrave whose free speech rights are abridged by private persons. Certainly, laws against racial discrimination have a somewhat more established track record than the Redgrave’s use of the MCRA, but I find particularly repugnant the majority’s assertion that because Redgrave’s claim is innovative, it does not “make sense.” Turning to the constitutional rights aspect of the balancing equation, the BSO argues, in its defense, that its own interest in interpreting and presenting Oedipus Rex as it wishes precludes liability to Redgrave under the MCRA. It asserts that the cancellation of her contract, in response to threats of audience disruption arising out of a disagreement with her prior political expression, was a legitimate means of maintaining artistic control over the production and did not give rise to liability under the MCRA. It is necessary to state what the BSO has not alleged. The BSO has never claimed that it cancelled the contract with Redgrave as a symbolic act meant to communicate its disapproval of the PLO. Indeed, this court unanimously has rejected the idea that the BSO’s firing of Redgrave intended to be any kind of symbolic speech or “statement.” Supra at 895. Had the BSO intended to communicate such expression, we would be confronted by a more difficult case, with a conflict between two compelling speech interests: that of Redgrave to be free, under the MCRA, of economic retaliation by an employer for her views on matters of significant public import, and that of the BSO to be free, under the first amendment, of state encroachment on its right to express itself on those same matters. In fact, the district court found, and it seems beyond dispute, that the BSO can-celled its contract with Redgrave out of concerns stemming from the potential for disruption during her narration. As the BSO acknowledges and as the record explicitly reveals, BSO agents feared disruption because they received threatening telephone calls from persons protesting the engagement on political grounds: One caller ... stated that there would be “bloodshed and violence” at Symphony Hall if Redgrave appeared. Other callers promised “trouble,” and some stated that the Redgrave engagement would “haunt” the Symphony, that Redgrave should perish, and that the Symphony would “mourn.” The persons at the Symphony who received these calls were alarmed and frightened. BSO Opening Brief at 7. In the words of one BSO agent, “it was the reaction against her politics that was the problem.” The only possible conclusion to be drawn from this record and from the findings of the district court is that the BSO cancelled its contract with Redgrave in acquiescence to pressure from persons who disagreed with her political views and who, therefore, sought to retaliate against her. The BSO’s asserted first amendment right, then, was not an independent artistic judgment to cancel the performance of Oedipus Rex but an instance of caving in to third-party pressure. The BSO, by doing so, effectively has blacklisted Redgrave. The Supreme Court previously has held that fear of community reaction is no defense to an action for discrimination on the basis of race. See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984) (“The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”); Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149 (1917) (similar). The BSO argues that in this case the acquiescence to third-party pressure was justified by the necessity of protecting the artistic integrity of its own performance. The BSO’s musical director, Seiji Ozawa, testified to his belief that, if police were in the audience, the performers could not concentrate, and that, if somebody shouted or booed, the performance might not be able to continue. The artistic administrator, Bernell, referred to the possibility of police lining the halls as a threat to “artistic integrity.” The BSO president, Darling, remembered a conversation in which Ozawa commented that the presence of security forces would change the artistic format of the performance. By invoking a broad-based defense in the name of “artistic integrity,” the BSO is, in essence, asserting a right to unlimited discretion in the presentation of its work. “Artistic integrity,” as the BSO defines it, means the absolute and unrestricted power to determine everything about the performance — from the choice of the production to the hiring of performers, to the quality of the audience ambience. The effect of allowing such a defense would be that the BSO itself would determine when the MCRA would and would not apply simply by deciding what is “artistic” and what is not. Under the rubric of “artistic integrity,” the BSO could insulate itself from any but the most superficial legal scrutiny. The very breadth of this proposed defense renders it suspect. Although I recognize that the BSO does have a first amendment right to control its artistic expression, I do not believe that this right is so broad and so absolute as to outweigh Massachusetts’ interest in protecting Redgrave’s rights. Cf. Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949) (“To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself.”). Neither the majority of this court nor the BSO seriously has suggested that Massachusetts does not have a compelling state interest in enacting legislation to protect the free speech rights of citizens in the Commonwealth. Nor has anyone argued that the MCRA does not represent the least restrictive means of achieving that purpose. Rather, the BSO asserts an absolute right against any infringement of its artistic expression. Under established Supreme Court precedent, it is clear that this argument must be rejected. In Board of Directors of Rotary Int’l v. Rotary Club, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987), Rotary International asserted that an absolute right of free association and expression under the first amendment immunized it from a California statute prohibiting discrimination on the basis of sex. The Court rejected Rotary International’s claim, noting that even if the California act did “work some slight infringement on Rotary members’ right of expressive association, that infringement is justified because it serves the State’s compelling interest in eliminating discrimination against women.” Id. 107 S.Ct. at 1947; see also Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (rejecting a similar challenge by the United States Jaycees to a Minnesota antidiscrimination statute). This holding was recently reaffirmed in New York State Club Ass’n v. City of New York, — U.S. -, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988), where the Supreme Court rejected a facial challenge to a New York City ordinance prohibiting discrimination in certain private clubs. I believe these cases conclusively establish that the BSO’s claim to absolute first amendment immunity from state antidiscrimination laws is contrary to governing constitutional precedent. If the Commonwealth were attempting to dictate how Oedipus Rex should be presented, an entirely different case would be presented. Such an extreme and probably unjustifiable exercise of state power would almost certainly be a violation of the first amendment. Here, however, the Massachusetts statute does not take control of the production away from the BSO. It merely holds the BSO to its own previously and voluntarily adopted contractual obligations. The BSO is still free to interpret and perform Oedipus Rex as it chooses. The only constraint imposed upon the BSO by operation of the MCRA is that the BSO cannot cancel the performance in reaction to anticipated audience disruption. History and experience teach that the risk of catcalls, boos, disruptions, and even being the target of vegetable projectiles is inherent in any public performance by artists who seek to entertain and/or educate the public. Indeed, it could be argued that the audience has a first amendment right to object vociferously to an artistic performance. The record in this case contains a strong dissent from Peter Sellars, the stage director hired by the BSO for the production, to Ozawa’s opinion that the presence of police or expressions of displeasure by the audience would affect adversely the BSO’s performance. Sellars testified that there is a “rich history of disruption” in the history of musical concerts and that, rather than shocking, “it is an important part of the concert to have a strong audience reaction.” He pointed out that at the first performance of Stravinsky’s Rites of Spring, “there were riots [and] the audience was stampeding.” But Sellars went even further. He stated that “music has a responsibility to incite and is very exciting in this way.” He believed that, far from disrupting the performance, the presence of police officers in Symphony Hall could be incorporated into the drama of Oedipus Rex. Sellars declared that the political tensions surrounding Redgrave’s performance could result in a “living recreation” or even a “living creation” of the moral essence of the drama of Oedipus Rex. To recognize an absolute first amendment defense of “artistic integrity,” as the BSO urges, would flout the very values that the first amendment and the MCRA protect. It would mean that a performing artist, or group of artists, could deny another artist her statutorily protected right to perform because of fear that the audience might interrupt the performance. This is the opposite of “artistic integrity”; it allows the audience to dictate who shall perform and what shall be played. “Artistic integrity” under this view would be a license for the heckler’s veto in the arena of artistic expression. But perhaps the strongest illustration of the weakness of the BSO’s asserted absolute first amendment defense lies in examining the potentially nightmarish consequences of recognizing it. If the first amendment extends absolute protection to the BSO when it fired Redgrave in response to public outcry over her political views, why would it not also protect the BSO in caving in to public views about her sex, her race, or her religion? If, in another case, the BSO refused to hire a Black performer because it felt that protests by bigots would be so intense as to compromise the BSO’s “artistic integrity,” then the Black performer should have a cause of action under the MCRA against the BSO for infringing her rights under the equal protection clause and any analogous state constitutional provisions banning race discrimination. But the “artistic integrity” defense would impose a fatal barrier to the application of the MCRA. And there is no reason to assume that the same defense would not also extend to other institutions, such as newspapers and universities, that engage generally in first amendment activity. In order to qualify for protection, these institutions would only need to characterize their discriminatory acts as based on artistic or intellectual choices and thus effectively foreclose legislative or judicial scrutiny. Ironically, the BSO conceded at oral argument that the first amendment would not protect it from liability for race or sex discrimination. But its attempt to portray laws against race or sex discrimination as having deeper historical roots than laws against discrimination on the basis of political views is not only doctrinally unsound, but historically incorrect. The first amendment, and not the equal protection clause, is the longstanding tradition. The passage of the equal protection clause, and its concomitant application to Blacks came over one hundred years after the passage of the Bill of Rights. And the application of the equal protection clause to women is too recent to characterize as anything short of an innovation. In conclusion, it is important to point out that the elimination of the state action requirement by the MCRA puts the BSO in the place of the state. Of course, the BSO retains its first amendment rights against the Commonwealth. But now, by operation of the MCRA, it also has obligations like those of the Commonwealth itself not to abridge the free speech rights of others. In cancelling its contract with Redgrave, the BSO repudiated that obligation and thwarted the Commonwealth’s compelling interest in preventing the abridgement of speech. I respectfully dissent. . The majority stresses another possible statutory defense which it borrows from dicta in the SJC dissent. This argument was not, however, put forward by any party to this case and must be rejected at any rate for the reasons set forth infra at 916. . General application of the majority’s head-counting approach would produce equally inconsistent and anomalous results in other cases. In deciding cases involving multiple issues of Massachusetts law, federal courts in this circuit would be free to comb the volumes of Massachusetts Reports until they found sufficient dissenting votes from different justices on some combination of issues to produce a “majority.” Hypothesizing that the case actually arose in state court, the federal court could then apply its constructed "majority” of dissents even though its resulting decision ran counter to the result that would be produced if the court applied the majority position on each issue. Such a situation obviously would be intolerable. . This paralleling of federal and state law with respect to constitutional defenses mirrors the fact that the MCRA itself is patterned after and essentially coextensive with federal law. See Redgrave, 399 Mass. at 98, 502 N.E.2d at 1378 ("The remedy provided in [the MCRA] is coextensive with the remedy provided by Federal law by means of 42 U.S.C. § 1983 (1982), except that the State statute does not condition the availability of the remedy on state action.”) (plurality opinion). . The majority has cited three SJC cases in an effort to demonstrate that the SJC has, "in certain circumstances,” interpreted the Massachusetts free speech guarantees as divergent from federal rights. Supra at 911. The cases, however, do not support that proposition. One of the cases, Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985), is actually a fourth amendment search and seizure case and has nothing to do with free speech rights. The other two cases, Cabaret Enterprises, Inc. v. Alcoholic Beverages Control Comm’n, 393 Mass. 13, 468 N.E.2d 612 (1984), and Commonwealth v. Sees, 374 Mass. 532, 536-38, 373 N.E.2d 1151 (1978), do involve free speech rights, but do not constitute breaks from the Supreme Court’s interpretation of the first amendment. Both cases involve nude dancing, an activity which is treated as protected expression under both the state and federal constitutions. See Schad v. Borough of Mount Emphraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975); Cabaret Enterprises, supra; Sees, supra. Federal and state law regarding nude dancing varies only in that under the twenty-first amendment to the United States Constitution, federal courts must allow states "broad powers ... to regulate the sale of liquor, [including the right • to] ban [nude] dancing as part of [their] liquor license program.” Doran, 422 U.S. at 932-33, 95 S.Ct. at 2568-69. By contrast, "no provision of [the Massachusetts] Constitution gives a preferred position to regulation of alcoholic beverages" and so nude dancing retains its full panoply of constitutional free speech protections even if performed on premises licensed to serve alcohol. Sees, 374 Mass. at 537, 373 N.E.2d at 1155. Neither Sees nor Cabaret Enterprises, therefore, represents a departure from the established principle that the SJC will follow Supreme Court first amendment precedent in deciding free speech claims under the Massachusetts Constitution. They merely evidence the fact that, unlike the Massachusetts Constitution, the federal Constitution has a twenty-first amendment as well as a first amendment. This case, of course, involves no liquor-regulating issues and so the Sees/Cabaret Enterprises distinction is clearly inapplicable. . Even if the concurring justices had stated that, contrary to prior practice, their state constitutional ruling was independent of the federal Constitution, their opinion represents the views of only two members of the SJC. The remaining majority of five justices concededly found no independent ground. . Strangely, in arguing that the SJC’s opinions did rest on adequate and independent state grounds, the majority makes much of the fact that none of the opinions explicitly mentioned the federal Constitution. Supra at 911. Of course, five of the justices failed to mention the state Constitution as well — eschewing any constitutional ruling — because no constitutional issue had been certified to the SJC for resolution in the first place. . The majority cites the New York State Club Ass’n and Roberts cases for the proposition that "discrimination might in some circumstances be justified in order to preserve expressive integrity,” supra at 904 n. 17, but neglects to mention that its cited proposition and the remarks it quotes are merely dicta. In both cases, by overwhelming majorities, the Court upheld the challenged statute and dismissed the first amendment argument. . “Congress shall make no law ... abridging the freedom of speech, or of the press.” U.S. Const., Amend. I (emphasis added). . The majority has turned the BSO's absolutist first amendment claim on its head, instead suggesting that in order to apply the MCRA to the BSO, this court would have to adopt the absolutist position that there could never be a first amendment defense to the BSO. The majority thus marches out a "parade of horribles," asserting that under my interpretation of the MCRA, the statute would be used to control the editorial practices of newspapers. Supra at 904, 906 n. 21. This far-fetched hypothetical, however, demonstrates that the majority has missed the point. First amendment claims are not made of absolutes, they involve the balancing of competing interests. Each case must be judged on its own specific facts, and I am more than willing to concede that certain applications of the MCRA, including the majority's newspaper hypothetical, would be plainly impermissible under the first amendment. See New York State Club Ass’n, 108 S.Ct. at 2233-35 (noting that there might be applications of the New York City ordinance that would be unconstitutional, but adding that such cases must be considered on their own facts); Coffin, Judicial Balancing: The Protean Scales of Justice, 63 N.Y.U.L.Rev. 16 (1988) (a thoughtful espousal of careful, open and detailed judicial balancing in constitutional civil rights cases).

PER CURIAM: The attorney appointed to represent Ar-naldo Martinez-Gomez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Martinez-Gomez has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Sean Nelson appeals the district court’s denial of his motion for a reduced sentence under 18 U.S.C. § 3582(c)(2). We conclude that Amendment 706 to the Sentencing Guidelines had no impact on Nelson’s statutory mandatory minimum sentence. Accordingly, we AFFIRM. I. BACKGROUND Nelson pled guilty in 2001 to possession ■with intent to distribute at least 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He received the statutory mandatory minimum sentence of 120 months (ten years) of imprisonment. In 2007, Nelson filed a pro se § 3582(c)(2) motion to reduce his sentence under Amendment 706. At a hearing on his motion, Nelson, through counsel, argued that the district court erroneously assessed a second criminal history point for his prior conviction for possession of marijuana. Without that point, Nelson maintained that he would have qualified for safety-valve relief under U.S.S.G. § 5C1.2 and the sentencing court would not have been bound by the statutory mandatory minimum sentence. The district court denied the § 3582(c)(2) motion. First, the court found no basis for adjusting his criminal history category, even if the court were to reevaluate it. “[Sjecond and more compelling,” the court concluded that it could not reassess Nelson’s criminal history category in a § 3582(c)(2) proceeding and that Nelson was not entitled to relief from his minimum mandatory sentence. Rl-60 at 1-2. On appeal, Nelson reiterates his argument that he should have qualified for safety-valve relief. He therefore asserts that he was entitled to a sentence reduction because Amendment 706 lowered his base offense level. Nelson further suggests that we should consider the racial disparity between sentences for crack violations and powder cocaine violations acknowledged in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). II. DISCUSSION We review a district court’s denial of a § 3582(c)(2) motion for abuse of discretion, and its legal interpretations de novo. See United States v. Williams, 549 F.3d 1337, 1338-39 (11th Cir.2008) (per curiam). Section 3582(c)(2) permits a district court to reduce a defendant’s sentence that was based on a sentencing range which was subsequently lowered by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). For example, defendants convicted of crack cocaine offenses who were sentenced according to their base offense levels in § 2D1.1 are eligible for a sentence reduction under Amendment 706. See Williams, 549 F.3d at 1339. However, Amendment 706 has no effect on a sentence that was based on something other than § 2D1.1, such as a statutory mandatory minimum, “since the amendment would not lower his applicable guidelines range.” Id. Furthermore, because a sentencing adjustment under § 3582(c)(2) does not constitute a de novo resentencing, the district court must leave intact all original sentencing determinations except for the amended guideline range. See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.2005) (per curiam). We find no abuse of discretion in the denial of Nelson’s § 3582(c)(2) motion. It is undisputed that Nelson’s ten-year sentence was based on the statutory mandatory minimum, not his base offense level under § 2D1.1. As such, his sentence does “not fall within the scope of Amendment 706.” Williams, 549 F.3d at 1342. Nor could the district court disturb the prior sentencing determinations concerning Nelson’s criminal history points and his eligibility for safety-valve relief. See Moreno, 421 F.3d at 1220. Finally, as Kimbrough does not apply to § 3582(c)(2) proceedings, we do not consider Nelson’s racial disparity arguments. See United States v. Melvin, 556 F.3d 1190, 1193 (11th Cir.2009) (per curiam), petition for cert. filed (Feb. 10, 2009) (No. 08-8664) (concluding that Kimbrough only addressed the crack/powder disparity with respect to original sentencing proceedings, not § 3582(c)(2) proceedings). Accordingly, we AFFIRM. AFFIRMED. . A defendant convicted of violating 21 U.S.C. § 841(a) involving fifty grams or more of crack cocaine must be sentenced to at least ten years of imprisonment. See 21 U.S.C. § 841(b)(1)(A). . In order to qualify for safety-valve relief under U.S.S.G. § 5C1.2, a defendant must meet the criteria listed in 18 U.S.C. § 3553(f)(1)—(5), which include having no more than one criminal history point. See U.S.S.G. § 5C1.2(a)(l).

OPINION OF THE COURT COWEN, Circuit Judge. Katherine Taylor brought suit under the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (PHRA), 43 Pa.Cons.Stat.Ann. § 951 et seq., alleging that her former employer, the Phoenixville School District, failed to provide her reasonable accommodations for her mental illness. The District Court granted summary judgment for the school district, reasoning that Taylor’s mental illness, bipolar disorder, or manic depression as it is sometimes called, did not qualify as a disability under the ADA. Alternatively, the District Court held that even if Taylor did have a disability, the only accommodation she specifically requested, transfer to another position, was not possible and,* consequently, she was not an otherwise qualified individual with a disability. We will reverse and remand for further proceedings. I Before she was terminated on October 28, 1994, Katherine Taylor had worked for twenty years as the principal’s secretary at the East Pikeland Elementary School in the Phoenixville School District. Prior to the fall of 1993, Taylor had not received a single disciplinary notice from any of the various principals she worked with over the years, and when formal evaluations were instituted in the 1991-92 school year, she received high praise. Trouble began after Taylor suffered the onset of bipolar disorder in late August of 1993, regrettably during the first full week that a new principal, Christine Menzel, assumed her duties at East Pikeland. While Taylor was at work during that week, she began acting strangely, alarming Menzel and Linda Ferrara, the school district’s administrative assistant for personnel. Menzel and Ferrara were so disturbed by Taylor’s behavior that they doubted Taylor’s capacity to leave on a train by herself and had someone at the school district contact Taylor’s son, Mark Taylor. He soon drove his mother to Coastal Plain Hospital, a psychiatric institution in Rocky Mount, North Carolina, where she was admitted as an in-patient on August 31,1993. Hospital records indicate that Taylor had become manic and was increasingly agitated and psychotic. According to the records, Taylor hid herself at the train station, believing that someone was after her, and tried to disguise herself by covering her head with a scarf. On the car ride from Pennsylvania to the hospital, she was delusional and announced that the car was being escorted by state troopers and helicopters. She also claimed that her son’s boss was after him and that there were many people on the highway who were “firefighters” who were trying to protect her. The hospital report noted that Taylor did not have any insight into the severity of her condition and believed she was being admitted due to “acute stress.” The school district’s own expert, Dr. Rieger, agreed that during Taylor’s hospitalization, she “clearly had paranoid delusions” and was hyperactive and psychotic. Taylor was treated by two psychiatrists at the hospital who diagnosed her illness as bipolar disorder and treated her with lithium carbonate and an antipsychotic drug, Navane, when lithium alone was insufficient. Once Taylor’s symptoms were brought under control by the combination of drugs, she was discharged on September 20, 1993, and her care was taken over by Dr. Louise Sonnenberg, a psychiatrist in Phoenixville, Pennsylvania. Since her discharge from the hospital, Taylor has continued to take lithium, see Dr. Sonnen-berg, and receive the necessary, periodic blood tests. Taylor’s son stated in an affidavit that during his mother’s leave of absence, he had numerous phone conversations with Ferrara in which he explained that his mother would be absent from work because she had been diagnosed with bipolar disorder and required hospitalization. Mark Taylor also asserted in his affidavit that during a phone call on October 8, one week before Ms. Taylor resumed working, he told Ferrara that due to Ms. Taylor’s bipolar disorder, she “would require accommodations when she returned to work.” The affidavit adds that he provided Ferrara with the information he received from his mother’s doctors “including diagnosis and treatment information and medications.” Coastal Plain Hospital itself sent a letter to the school district on September 13, 1993, identifying one of Taylor’s physicians and providing a phone number to address any additional questions the school district might have. According to Taylor, Ferrara did eventually contact one of her treating physicians. Ferrara’s own handwritten notes show that she attempted to obtain copies of Taylor’s records from Coastal Plain Hospital and planned to speak to at least one of Taylor’s doctors. The school district had other contact with Taylor’s doctors because before Taylor was permitted to return to work, the school district required her to submit a note from Dr. Son-nenberg saying that Taylor was no longer disabled. Even prior to Mark Taylor’s October 8th phone call, Ferrara sent a letter to the school district’s superintendent which stated that: Mrs. Taylor has been released from the-Coastal Plain Hospital in North Carolina and her son will be picking her up this coming weekend to bring her back to Pennsylvania. She will be receiving outpatient care in Phoenixville through the Phoenixville Psychiatric Associates. They will monitor her Blood Lithium [sic] levels. It was stressed that she must maintain and continue her medication. He felt, as well as the doctor, that the first week should be easing her transition back into the work place. App. vol. I at 80. A notation on the letter indicates that a copy was forwarded to Menzel. However, Menzel has submitted an affidavit denying that she saw the memo and asserting that: “I did not learn the specifics of the Plaintiffs alleged condition (i.e., bipolar disorder) until after reading a newspaper article describing her filing of the current lawsuit.” App. vol. II at 2. Ferrara has also submitted an affidavit asserting that “at no túne was I or anyone else at the School District aware of Plaintiffs alleged diagnosis of bipolar disorder or the details or frequency of any treatments she may have been receiving after returning from Coastal Plain until after the current lawsuit was filed.” App. vol. II at 50. After Taylor provided the note from Dr. Sonnenberg, she resumed work on October 15, 1993 although, as Ferrara’s letter indicated, Taylor was only authorized to work half days for the first week. Prior to her hospitalization, Taylor had received high praise for her performance. In June of 1993, about two- months before Taylor’s hospitalization, the outgoing principal, Dr. Herron, wrote that Taylor “excels in all aspects” of her job, was a “credit to our school,” and “a tribute to excellence.” App. vol. I at 86. In a subsequent letter of recommendation, Dr. Herron again praised Taylor’s performance without reservation and stated that: As a secretary, Mrs. Taylor served me and the entire school family exceedingly] well ... I felt comfortable in leaving the building, sometimes for an extended amount of time, because of Mrs. Taylor’s skills. Indeed, at such times, Mrs. Taylor carried on the full functions of the school as if she herself was capable of running the functions of the building without supervision, and, indeed, in such cases, she was entirely capable of doing so. App. vol. I at 87. Almost immediately upon Taylor’s return to work, Menzel, following Ferrara’s advice, began documenting errors Taylor committed. The errors were then compiled into a bullet-format list, the list was presented to Taylor, and soon thereafter Menzel and Ferrara would call Taylor into a disciplinary meeting and offer her a chance to rebut the charges. A representative from Taylor’s union also attended although it is unclear to what extent the representative participated. Taylor’s first disciplinary notice, dated November 9, 1993, listed errors as early as October 19,1993, only four days after Taylor’s return to work and while she was still working part time. Eight more disciplinary notices followed, dated 11/23/93, 12/9/93, 1/6/94, 2/1/94, 3/11/94, 4/22/94, 9/2/94, and 10/27/94, the last arriving shortly before Taylor was terminated. Over the course of the disciplinary meetings, Taylor disputed some charges and tried to explain others, but as 1994 wore on, Menzel documented many errors that Taylor did not contest, and the interpersonal friction between Menzel and Taylor continued unabated. Disciplinary notices during this period list problems such as missed deadlines, mishandling of records, typing errors, interpersonal conflicts, and undelivered messages. Part of Taylor’s complaint about her treatment is that Menzel often did not speak to her informally and in-person about problems as they arose. Instead, Taylor alleges that Menzel documented every misstep, saved letters containing typos, photographed Taylor’s desk and trash can, as well as the inside of the office refrigerator, and waited to confront Taylor with the evidence in the disciplinary meetings. Taylor also objects that the school district made her job more difficult upon her return from the hospital. First, during Taylor’s absence, Menzel instituted a number of changes in the office: she introduced new office policies, created new forms, relocated documents, rearranged furniture, threw out Taylor’s old filing system, and discarded files, including some in Taylor’s desk. Taylor claims that these changes were disorienting and made it much more difficult to accomplish tasks she could easily perform before the hospitalization. Of course, Taylor’s absence coincided with the first weeks Menzel served as principal, and thus changes were inevitable and part of Menzel’s prerogative as a new principal. The gravamen of Taylor’s complaint, however, focuses on the abrupt, seemingly hostile manner in which the changes were made. Compounding Taylor’s difficulties, a new computer system was introduced to keep track of student records and other data. The school district points out that plans to introduce the computers had been underway prior to Taylor’s hospitalization, and according to an affidavit submitted by a school-district employee, Taylor had more difficulty than the other secretaries at a training session conducted in July of 1993. Taylor does not appear to dispute that the school district was entitled to switch to computers; rather, the thrust of her objection seems to be that the school district raised another hurdle by the manner in 'which the new system was introduced when she returned from her hospitalization. Taylor claims that her job was made more difficult in another, more straightforward way: Following her return, her job description was changed, increasing the number of her job responsibilities from 23 to 42. It is not clear from the record when these changes were made, how substantial they were, or to what extent the new list •simply enumerated in greater detail duties she already performed, but reading the evidence in the light most favorable to Taylor, there is reason to believe that the new list added significant responsibilities and made her return more difficult. On September 2, 1994 Taylor received a notice placing her on probation for 30 days and informing her that if her performance did not improve, she would be terminated. She was in fact discharged on October 28, 1994 although Taylor’s union representative subsequently negotiated with the school district to allow Taylor to “retire” and receive some retirement benefits. Since her termination, Taylor has applied at different times for unemployment benefits and disability benefits. II The District Court had subject matter jurisdiction over Taylor’s ADA claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Taylor’s state-law claim pursuant to 28 U.S.C. § 1367. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a district court’s grant of summary judgment is plenary. Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d Cir.1996). In evaluating the school district’s motion for summary judgment, we must determine whether there are any genuine disputes of material fact, and if not, then viewing the evidence in the light most favorable to the plaintiff, we must decide whether the school district was entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). III A. Basic statutory framework Under the ADA, employers are prohibited from discriminating “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual with a disability” is defined by the ADA as a person “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). In view of the foregoing definitions, we have held that in order for a plaintiff to establish a prima facie case of discrimination under the ADA, the plaintiff must show: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir.1998) (citing, Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996)). Discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations of disabilities. The ADA specifies that an employer discriminates against a qualified individual with a disability when the employer does “not mak[e] reasonable accommodations to the known physical or mental limitations of the individual unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer].” 42 U.S.C. § 12112(b)(5)(A). Before turning to the first issue, whether Taylor has a disability under the ADA, we mention that we will only discuss Taylor’s ADA claim because our analysis of an ADA claim applies equally to a PHRA claim. Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir.1996). B. Does Taylor have a disability under the ADA? As set forth above, Taylor can establish that she has a disability if she has a mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment. 42 U.S.C. § 12102(2). Taylor argues that she can satisfy each of these standards, but because we conclude that she has a mental impairment that substantially limits a major life activity, we need not reach the other two grounds. No one disputes that bipolar disorder counts as a mental impairment under the ADA. The ADA’s regulations define a “physical or mental impairment” as including “[a]ny mental or psychological disorder, such as ... emotional or mental illness ...” 29 C.F.R. § 1630.2(h)(2). While the District Court agreed that bipolar disorder clearly qualifies as a “mental impairment,” the District Court nonetheless concluded that Taylor’s impairment did not substantially limit one of her major life activities. Our analysis therefore begins with the definitions for “substantially limits” and “major life activities.” While we have observed that “[t]he ADA does not define ‘major life activities,’ ” Kelly, 94 F.3d at 105 (citation omitted), the ADA’s regulations provide a nonexhaustive list of major life activities that includes “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). According to the ADA’s regulations, an impairment “substantially limits” a major life activity when the person is either: “(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(l). The regulations list the following factors to use in evaluating when someone is substantially limited in a major life activity: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2). A separate analysis is applied under the regulations to determine when the major life activity of working is substantially limited, see Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir.1998); 29 C.F.R. § 1630.2(j)(3), but since we find Taylor’s illness affected major life activities even more fundamental than working, we need not analyze her disorder’s impact on her ability to work. When someone must be confined to a hospital because she is psychotic, increasingly agitated, and gripped by delusions, it is manifest that her abilities to think, care for herself, concentrate, and interact with others are substantially limited. As Taylor’s records from Coastal Plain Hospital document, before Taylor was treated with lithium and an antipsychotic drug, she suffered paranoid delusions that people were trying to kill her, inducing her to disguise herself at the train station. On the car ride, she thought her son’s life was in danger, believed that the highway patrol was escorting her, and thought the highway was filled with “firefighters” there to protect her. Unable to recognize that these beliefs were baseless, she explained at the time of her admission that she was there for “acute stress.” Symptoms like these constitute severe limitations in a person’s ability to think. We have previously held that disabilities should be evaluated based on the plaintiffs unmedicated state. Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933 (3d Cir.1997). In Matczak we explained that according to the United States Equal Employment Opportunity Commission’s (EEOC) interpretive guidelines, whether an impairment “substantially limits” a major life activity should be evaluated “without regard to mitigating measures such as medicines, or assistive or prosthetic devices.” Id. at 937 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2© at 348). We recognized that although the EEOC’s interpretive guidelines are not entitled to the same degree of deference as regulations, we give the EEOC’s interpretations “a great deal of deference since Congress charged the EEOC with issuing regulations to implement the ADA.” Id. We added that “we must give the EEOC’s interpretation of its own regulations ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation[s].’ ” Id. (quoting, Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994)). Legislative history reinforces the EEOC’s position and shows that Congress intended mitigating measures to be excluded from the evaluation of when an impairment substantially limits a major life activity: “[PJersons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity are covered under the first prong of disability, even if the effects of the impairment are controlled by medication.” Id. (quoting H.R.Rep. No. 101-485(11), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 334) See also H.R.Rep. No. 101-485(111), at 28 (1989), reprinted in 1990 U.S.C.C.A.N. 451; S.Rep. No. 101-116, at 23 (1989). We recognize that the Tenth Circuit has rejected this view and held that disabilities should be evaluated based on their'mitigated state. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 902 (10th Cir.1997), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999). And we are aware that the Supreme Court has decided to review Sutton along with two similar cases. See Murphy v. United Parcel Service, 141 F.3d 1185 (10th Cir.1998)(unpub-lished table decision), cert. granted, — U.S. -, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999); Kirkingburg v. Albertson’s Inc., 143 F.3d 1228 (9th Cir.1998), cert. granted, — U.S. -, 119 S.Ct. 791, 142 L.Ed.2d 654 (1999). Nonetheless, we remain firm in our belief that legislative history and deference to the administering agency require the rule announced in Matczak, and we are, of course, bound by our prior precedent. We would add that the majority of circuits which have considered the issue have held that disabilities should be judged based on their unmitigated state. See Arnold v. United Parcel Service, Inc., 136 F.3d 854, 857-866 (1st Cir.1998); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.1995); Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir.1997); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996); Harris v. H & W Contracting Co., 102 F.3d 516, 520-21 (11th Cir.1996); but see Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464 (5th Cir.1998)(only “serious impairments” like diabetes, epilepsy, and hearing impairments will be assessed in their unmitigated state; permanent corrections will be evaluated based on the mitigated condition); Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir.1997)(Kennedy, J., concurring in part); id. at 768 (Guy, J., concurring in part and dissenting in part)(“impact of mitigating measures must be decided on a case-by-case basis”). Except for the Tenth Circuit, even those circuits rejecting the EEOC’s rule have allowed that serious conditions, which we believe Taylor’s illness is, should be judged based on their unmitigated state. As the First Circuit pointed out in Arnold, 136 F.3d at 861, it makes little sense to insist that serious, chronic conditions like diabetes, epilepsy, or bipolar disorder cannot be disabilities unless they are so poorly controlled that it becomes all but inevitable that no reasonable accommodation is possible. The District Court concluded that Taylor was not disabled because she faded to show that her bipolar disorder was more than a temporary condition. Closely related to this point was the District Court’s alternative statement that Taylor did not suffer a disability at the time the adverse employment decision was made, i.e., on the District Court’s view, the date of her termination. Concerning the District Court’s second statement, we want to clarify that Taylor alleges the school district refused to accommodate her throughout the period starting immediately after she returned to work from the hospital and continuing until the date of her termination. Thus, the proper inquiry is whether Taylor was disabled during the period she says she sought and was denied reasonable accommodations. We do not narrow the inquiry and ask only whether Taylor was psychotic or had some uncontrolled symptoms of her bipolar disorder on the specific day she was terminated, for that would vitiate the rule that a disability controlled by medication is still a disability and would ignore the fact that the alleged failure to accommodate began before the termination. The District Court’s position properly understood seems to be that Taylor failed to prove that her illness continued beyond the date of her discharge from Coastal Plain, and therefore, the school district was not required to accommodate a disability that no longer existed. The trouble with this view is that Taylor provided ample evidence that her disability has continued since the date of her hospitalization. The District Court noted that Taylor’s records from Coastal Plain Hospital did not discuss her prognosis after the discharge. The records only stated that at the time of discharge, Taylor was doing well, was “not overtly psychotic,” and would be “followed by a psychiatrist of her choice in her home town.” These statements certainly are not inconsistent with Taylor’s having a chronic condition, and by indicating that her symptoms are currently under control and that she will receive further treatment, the records at least imply that the condition is ongoing. Other evidence before the District Court affirmatively demonstrated that Taylor has a continuing illness. Most obviously, Taylor has continued to take lithium and see a psychiatrist. Dr. Sonnenberg, Taylor’s treating physician, stated that Taylor’s bipolar disorder “is not cured but controlled with her medication” and “without the medicine Mrs. Taylor’s symptoms are likely to be exhibited.” The District Court evidently refused to consider Dr. Sonnenberg’s opinion because the Court said, citing Gaul v. AT & T, Inc., 955 F.Supp. 346 (D.N.J.1997), Taylor could not rely on the opinion of her own treating physician. But Gaul stated that “[i]t is well settled that treating physicians may testify as to any subject relevant to the evaluation and treatment of their patients.” Id. at 349. At issue in Gaul was whether testimony by the plaintiffs treating physician satisfied the New Jersey Supreme Court’s holding that “expert medical testimony is required to establish the fact of the employee’s [handicap].” Id. (quoting Clowes v. Terminix International, Inc., 109 N.J. 575, 597, 538 A.2d 794 (1988)). Just as the District Court in Gaul deemed admissible the opinion of a plaintiffs treating physician, we hold that a plaintiff in an ADA case can rely on the testimony of his or her treating physician to demonstrate that the plaintiff has a disability. The District Court also cited the report of the school district’s expert witness, Dr. Rieger. Dr. Rieger stated that: There is no doubt in my mind that Ms. Taylor experienced a biologic psychiatric illness in which genetic factors play a role. These illnesses can appear even fairly late in life regardless of life events and stressors ... When I examined Ms. Taylor[,] she had a normal mental state. Her chronic biological psychiatric illness was obviously well controlled by medication. If she continues to take her medications as instructed!,] she will be able to work. She is now not at all disabled from a psychiatric point of view ... If she were somehow not compliant with the medication!,] she might relapse into psychosis and then might become disabled. Theoretically there is a very small chance that she could develop another psychotic break even while being properly treated. App. vol. I at 157 and 159. The District Court placed great weight on the fact that Dr. Rieger said that Taylor “might relapse” if she ceased taking medication. Given that both parties’ experts agree that Taylor’s condition is chronic, we conclude that the District Court erred in reasoning that Taylor’s condition could be temporary. We would add that Dr. Sonnenberg stated that without medication Taylor’s symptoms “are likely to be exhibited,” and nothing in Dr. Rieger’s report suggests that it is likely Taylor would be fine without medication. When both parties’ experts agree that the plaintiffs condition is chronic, both agree that the plaintiff could relapse without medication, and the plaintiffs treating physician has decided the risk of relapse is serious enough to warrant having the plaintiff continue taking a drug that imposes significant burdens, the plaintiff has established that her condition is not temporary. We have previously held that a plaintiff with epilepsy, whose condition had been controlled for thirty years with medication, could still demonstrate that he had a disability. Matczak, 136 F.3d at 937-38. The likelihood of relapse was never an issue; it was simply assumed reasonably enough that if continuing drug treatment was medically indicated, the condition persisted. We would add that the EEOC has said chronic, episodic conditions can be substantially limiting, see 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 9 (March 25, 1997), and indeed, it seems reasonable to say that conditions that cause periodic, substantial shifts in a person’s ability to function can be highly disabling. Many activities in life, and certainly most jobs, require a consistent level of functioning. A career interrupted by hospitalization, especially hospitalization punctuated by strange, embarrassing behavior, is not an easy one. Should our discussion above create any doubt, we want to emphasize that even once a plaintiff establishes that her condition persists or is chronic, the plaintiff still must show, as we specifically required in Matczak, 136 F.3d at 938, that her persistent condition substantially limits a major life activity when left untreated. Not every chronic condition is a disability under the ADA. But as discussed above, Taylor has shown that the untreated symptoms of her chronic illness do substantially limit a number of her major life activities. The school district’s own expert agreed that Taylor had bipolar disorder which caused “an acute psychotic break, necessitating hospitalization,” and that Taylor “clearly had paranoid delusions” and was “hyperactive and euphoric” before and during her hospitalization. App. vol. I at 156 and 159. Because we find that the undisputed evidence in the record shows that Taylor had a disability, we believe that judgment should be entered in Taylor’s favor on this issue. The school district had a full opportunity to present its side on this question, and both parties’ experts agree on the essential facts. See Fabric v. Provident Life & Accident Insurance Co., 115 F.3d 908, 915 (11th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 1563, 140 L.Ed.2d 794 (1998)(“Summary judgment in favor of a non-moving party has become an accepted method for an appellate court to expedite litigation ... [However,] [i]f a party did not have an opportunity to present his side of a dispute, granting summary judgment for a non-moving party would be improper.”) (citations omitted). See also 10A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2716 at 292-93 (1998). C. Reasonable accommodations Having concluded that Taylor was entitled to judgment as a matter of law that she has a disability under 42 U.S.C. § 12102(2)(A), we must consider whether the school district failed to provide reasonable accommodations. On this issue, we find that the District Court applied the wrong legal standards and that under the correct standard, disputes of material fact remain, requiring remand. As stated above, an employer commits unlawful discrimination under the ADA if the employer does “not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].” 42 U.S.C. § 12112(b)(5)(A). In evaluating whether a plaintiff is a “qualified individual with a disability,” we have held that a plaintiff must “satisffy] the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.” and, the plaintiff must be able to “perform the essential functions of the position held or desired, with or without reasonable accommodations.” Gaul, 134 F.3d at 580 (quoting, 29 C.F.R. Pt. 1630, App. § 1630.2(m) at 351). Because Taylor held her position as secretary to the principal for many years, receiving high praise, there is no serious dispute that she satisfies- the prerequisites for the position. The critical issue is whether Taylor could, with reasonable accommodations, perform the essential functions of her job following her return from her hospitalization. The Interactive Process The ADA’s regulations state that: “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Similarly, the EEOC’s interpretive guidelines provide that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359. We have previously recognized both this regulation and the EEOC’s interpretive guideline and applied them to a claim brought under the Rehabilitation Act, 29 U.S.C. § 701, et seq. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir.1997); see also Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3d Cir.1998)(en banc). Based on the regulation and interpretive guidelines, we held in Mengine that “both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Id. We noted that other circuits have taken this view. See, e.g., Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996)(“A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.”); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.1996)(The “employee’s initial request for an accommodation ... triggers the employer’s obligation to participate in the interactive process ... ”). In Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir.1996) an employee diagnosed with paranoid schizophrenia and bipolar disorder sought to return from an extended disability leave to his job as a custodian. His employer informed him that he would be reassigned to the largest school operated by Fort Wayne Community Schools, and added that he would not receive any special ac commodation. The employer then instructed the plaintiff to take a physical and report to work or else he would be terminated. After touring the new school with the custodial foreman, the plaintiff told his employer that he did not think he was equal to the task but said he was not resigning. The plaintiff subsequently failed to take the physical or report to work although he did have his psychiatrist send a letter to the employer which stated that due to the plaintiffs illness, it would be in the plaintiffs best interest to work at a less stressful school. The employer never responded and terminated the plaintiff. The Seventh Circuit, reversing summary judgment for the employer, concluded that there was a genuine dispute as to whether the employer engaged in the interactive process of seeking accommodations. We agree with the Seventh Circuit which held that: An employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer ... [B]oth parties bear responsibility for determining what accommodation is necessary ... ‘[NJeither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.’ Bultemeyer, 100 F.3d at 1285 (quoting Beck, 75 F.3d at 1135). Our analysis of the interactive process in the present case is divided into two steps: first, we will clarify what notice must be given to the employer to trigger the employer’s obligations under the interactive process, and second, we will elaborate on the employee’s and the employer’s duties once the interactive process comes into play. 1. Notice of the disability and request for accommodation The first question we must address is who must make the request for accommodation and what form that request must take. The EEOC compliance manual provides that “a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability.” 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 20-21. Likewise, in Bultemeyer the Seventh Circuit allowed that an employee’s psychiatrist could make a request for accommodations on behalf of an employee. Bultemeyer, 100 F.3d at 1286. In our case, therefore, Taylor’s son could make the initial request for accommodations. The EEOC’s manual further provides that “[r]equests for reasonable accommodations do not need to be in writing,” 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 21, and “[t]o request accommodation, an individual may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation.’ ” Id. at 19. The Seventh Circuit said that “properly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say T want reasonable accommodation,’ particularly when the employee has a mental illness.” Bultemeyer, 100 F.3d at 1286. The EEOC’s manual makes clear, however, that while the notice does not have to be in writing, be made by the employee, or formally invoke the magic words “reasonable accommodation,” the notice nonetheless must make clear that the employee wants assistance for his or her disability. In other words, the employer must know of both the disability and the employee’s desire for accommodations for that disability. These rules are consistent with the statute which says that the employer must make reasonable accommodations to an employee’s “known” disability. 42 U.S.C. § 12112(b)(5)(A). What matters under the ADA are not formalisms about the manner of the request, but whether the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation. What information the employee’s initial notice must include depends on what the employer knows. In Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir.1996), an employee whose job performance had fallen off mentioned to his employer that he was diagnosed with bipolar disorder. Nothing the employee had done suggested the nature of his illness. When the employer, who said he did not know about the illness, asked the employee if he was okay, the employee responded that he was. The employee never offered further information about his disorder and, even more significantly, could not confirm that he ever explicitly asked for an accommodation or help of any sort. Under these circumstances, the employee has not given sufficient notice to trigger the employer’s duty to engage in the interactive process. Cf. Crandall v. Paralyzed Veterans of America, 146 F.3d 894 (D.C.Cir.1998)(Em-ployee with bipolar disorder could not state a claim under the Rehabilitation Act when he never told his employer of his mental illness and never requested accommodations.). Employers cannot assume employees are disabled and need accommodations. Our case differs markedly. It is undisputed that Taylor became psychotic at work, that the school district knew she was hospitalized immediately thereafter, and that Coastal Plain Hospital contacted the school district by letter about Taylor’s hospitalization and provided a phone number to answer questions. It is also undisputed that Ferrara wrote a note saying she planned to contact Taylor’s doctors and that she wrote a letter to the superintendent, stating that “Phoenixville Psychiatric Associates ... will monitor [Taylor’s] Blood Lithium [sic] levels. It was stressed that she must maintain and continue her medication.” The school district also does not deny that it required Taylor to submit a note from Dr. Sonnenberg, further demonstrating that the school district knew how to get information from Taylor when it deemed it necessary. Based on this evidence, the school district had more than enough information to put it on notice that Taylor might have a disability, and therefore, in order to trigger the school district’s obligation to participate in the interactive process, Taylor or her representative only needed to request accommodation. In light of the undisputed background information putting the school district on notice that Taylor had recently developed a serious disability, we think it would be especially inappropriate to insist that Taylor’s son must have specifically invoked the ADA or used the words “reasonable accommodation” when he requested accommodations. Under the circumstances, it hardly should have come as a surprise that Taylor would want some accommodations, particularly as the successive disciplinary meetings began to mount for an employee who had previously performed very well. We would add that the school district had ample time to seek legal advice on its obligation to provide reasonable accommodations. Regardless, Taylor’s son has submitted an affidavit saying that not only did he provide diagnostic and treatment information to the school district, he also asked for “accommodations” for his mother. Menzel’s affidavit asserts that she did not “learn the specifics” of Taylor’s disor der until after this litigation was started. Ferrara’s affidavit states that: “To my knowledge, at no time was I or anyone else at the School District aware of Plaintiffs alleged diagnosis of bipolar disorder or the details or frequency of any treatments she may have been receiving after returning from Coastal Plain until after the current lawsuit was filed.” We want to make clear that the school district’s duty to participate in the interactive process is triggered if Taylor notified either Menzel who was Taylor’s supervisor and East Pikeland’s principal, or Ferrara, the school district’s administrative assistant for personnel. Thus, if Taylor’s son requested accommodations from Ferrara, then the school district would have a duty to participate in the interactive process regardless of how much Menzel knew about Taylor’s disorder. We would add that to trigger the school district’s duty to participate in the interactive process, it is not essential that Ferrara or Taylor knew the specific name of Taylor’s condition although Taylor’s son has created a factual dispute on this issue by saying that he provided Fer-rara with diagnostic and treatment information. Suffice it to say that there is no genuine dispute that the school district was aware that Taylor exhibited serious psychiatric problems and those problems were severe enough to require her to be hospitalized for roughly three weeks. Following Taylor’s discharge from the hospital, the school district knew that Phoenix-ville Psychiatric Associates monitored the lithium Taylor was taking and that Taylor continued to see a psychiatrist. Taylor also provided the school district with a number of avenues for obtaining further information from her doctors, avenues that the school district used. If there was any further information that the school district felt it needed to justify an accommodation, it was incumbent on the school district to ask for it. As the Seventh Circuit has said, “[t]he employer has to meet the employee half-way.” Bultemeyer, 100 F.3d at 1285. To raise the bar for triggering the interactive process any further would essentially nullify the process. Once the employer knows of the disability and the employee’s desire for accommodations, it makes sense to place the burden on the employer to request additional information that the employer believes it needs. Disabled employees, especially those with psychiatric disabilities, may have good reasons for not wanting to reveal unnecessarily every detail of their medical records because much of the information may be irrelevant to identifying and. justifying accommodations, could be embarrassing, and might actually exacerbate workplace prejudice. An employer does not need to know the intimate details of a bipolar employee’s marital life, for example, in order to identify or justify an accommodation such as a temporary transfer to a less demanding position. Another reason for placing some burden on the employer is that, as the Seventh Circuit recognized in Bultemeyer, an employee "with a mental illness may have difficulty effectively relaying medical information about his or her condition, particularly when the symptoms are flaring and reasonable accommodations are needed. Id. See also Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir.1998)(When an employer terminated an employee with a mental illness due to an alleged miscommunieation over a leave of absence, a jury could find that the employer failed to live up to its responsibility to help find accommodations.). It is worth noting that Taylor’s hospital records specifically stated that at the time of her hospitalization, she “lacked insight” into her condition and believed her only problem was “acute stress.” 2. Application of the interactive process following adequate notice Viewing the evidence in the light most favorable to Taylor, we believe that a reasonable jury could conclude, based on the evidence presented thus far, that the school district did not meet its burden under the interactive process. Taylor’s version of the case can be stated succinctly as follows: After Menzel and Ferrara watched Taylor become manic and require hospitalization, the two decided that Men-zel should begin documenting Taylor’s every error within days of her return, despite the fact that Taylor’s son requested accommodations, informed them about Taylor’s condition, and provided them with the means to obtain more information if needed. Notwithstanding Taylor’s previous twenty years of strong performance and the school district’s clear notice of Taylor’s disability and desire for accommodations, the school district offered no accommodations or assistance in finding them, made Taylor’s job more difficult, and simply sat back and continued to document her failures. A reasonable jury could conclude that the school district did not engage in an interactive process of seeking accommodations and is responsible for the breakdown in the process. The school district emphasizes that the only accommodation Taylor specifically requested was transfer to another position, which Taylor later conceded was not feasible. We do not think that it is fatal to Taylor’s claim that her son did not request a specific accommodation or that Taylor’s request in March of 1994 was for an accommodation that she admitted was not possible. The interactive process, as its name implies, requires the employer to take some initiative. In Bultemeyer, the court explained that: “If the note [from the psychiatrist requesting accommodation] was too ambiguous and [the employer] did not know what Bultemeyer wanted, [the employer] easily could have called [the psychiatrist] for a clarification.” Bultemeyer, 100 F.3d at 1285. The interactive process would have little meaning if it was interpreted to allow employers, in the face of a request for accommodation, simply to sit back passively, offer nothing, and then, in post-termination litigation, try to knock down every specific accommodation as too burdensome. That’s not the proactive process intended: it does not help avoid litigation by bringing the parties to a negotiated settlement, and it unfairly exploits the employee’s comparative lack of information about what accommodations the employer might allow. In addition, in some cases courts may be better positioned to judge whether the employer met with the employee in good faith than to judge how burdensome a particular accommodation really is. The ADA’s regulations make clear that the purpose of the interactive process is to determine the appropriate accommodations: “This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Therefore, it would make little sense to insist that the employee must have arrived at the end product of the interactive process before the employer has a duty to participate in that process. The EEOC’s interpretive guidelines squarely place some of the burden on the employer by stating that “the employer must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359. As we explained in Mengine, the process must be interactive because each party holds information the other does not have or cannot easily obtain. We noted that “employers will not always know what kind of work the worker with the disability can do, and conversely, the worker may not be aware of the range of available employment opportunities, especially in a large company. Thus, the interactive process may often lead to the identification of a suitable position.” Mengine, 114 F.3d at 420. More specifically, we explained that while an employee who wants a transfer to another position ultimately has the burden of showing that he or she can perform the essential functions of an open position, the employee does not have the burden of identifying open positions without the employer’s assistance. “In many cases, an employee will not have the ability or resources to identify a vacant position absent participation by the employer.” Mengine, 114 F.3d at 420. Taylor’s concession that she knew of no other open positions, therefore, should not necessarily be the end of the matter if the school district made no effort to help investigate. When transfer is not sought, as was presumably the case when Taylor’s son first requested accommodations, the employer likewise will often hold more information than the employee about what adjustments are feasible in the employee’s current position. The Seventh Circuit pointed out in Bultemeyer that: “When Bultemeyer worked at North Side High School, a simple adjustment in his duties was enough of an accommodation to enable him to work there. But this time, we do not know what might have happened, because [the employer] was unwilling to engage in the interactive process and accommodation him.” Bultemeyer, 100 F.3d at 1285. In short, an employer who has received proper notice cannot escape its duty to engage in the interactive process simply because the employee did not come forward with a reasonable accommodation that would prevail in litigation. Participation is the obligation of both parties, however, so an employer cannot be faulted if after conferring with the employee to find possible accommodations, the employee then fails to supply information that the employer needs or does not answer the employer’s request for more detailed proposals. And while a specific request may not always be necessary to initiate the process, it certainly helps bolster the employee’s claim that the employer knew that the employee wanted accommodations. The interactive process does not dictate that any particular concession must be made by the employer; nor does the process remove the employee’s burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the job’s essential functions. See Walton v. Mental Health Association of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir.1999). All the interactive process requires is that employers make a good-faith effort to seek accommodations. Employers can show their good faith in a number of ways, such as taking steps like the following: meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered employee’s request, and offer and discuss available alternatives when the request is too burdensome. These steps are consistent with the recommendations in the EEOC’s interpretive guideline. See 29 C.F.R. Pt. 1630, App. § 1630.9 at 359-61. We do not think this process is especially burdensome.- As we found in Mengine, the Postal Service engaged in good faith in the interactive process when it exchanged a number of letters with an employee in an effort to identify a vacant position for reassignment and sent the employee multiple job descriptions of vacant positions. Mengine, 114 F.3d at 421. The school district can be understood as arguing implicitly that it did not have to participate in the interactive process because there was no feasible accommodation that would have made Taylor capable of performing the essential functions of her job. In Mengine we stated that “if reasonable accommodation is impossible, nothing more than communication of this fact is required. Nonetheless, if an employer fails to engage in the interactive process, it may not discover a way in which the employee’s disability could have been reasonably accommodated, thereby risking violation of the Rehabilitation Act.” Mengine, 114 F.3d at 420-21. We explained that whether an employer’s duty to participate in the interactive process has been discharged will often be a matter of “timing”: i.e., the employer will almost always have to participate in the interactive process to some extent before it will be clear that it is impossible to find an accommodation that would allow the employee to perform the essential functions of a job. Put differently, because employers have a duty to help the disabled employee devise accommodations, an employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations. In making that determination, the jury is entitled to bear in mind that had the employer participated in good faith, there may have been other, unmentioned possible accommodations. On the other hand, as we explained in Mengine, “[t]he ADA, as far as we are aware, is not intended to punish employers for behaving callously if, in fact, no accommodation for the employee’s disability could reasonably have been made.” Mengine, 114 F.3d at 420 (quoting, Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997)). When an employee has evidence that the employer did not act in good faith in the interactive process, however, we will not readily decide on summary judgment that accommodation was not possible and the employer’s bad faith could have no effect. To assume that accommodation would fail regardless of the employer’s bad faith would effectively eliminate the requirement that employers must participate in the interactive process. An employer who acted in bad faith would be in essentially the same, if not better, position than one who participated; that is, both employers would be arguing that the employee failed to find an accommodation making him or her able to perform- the essential function of the job. The less the employer participated, the easier this would become, and as a result, the requirement that employers participate in the interactive process would be toothless. Thus, where there is a genuine dispute about whether the employer acted in good faith, summary judgment will typically be precluded. Cf. Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir.1998)(Refusing to grant an employer summary judgment because it may not have participated in good faith in finding accommodations); Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir.1998)(Refusing to grant an employer summary judgment because disputes of fact remained about which party caused the breakdown in the interactive process). When the disability involved is one that is heavily stigmatized in our society— as is true when the employee is voluntarily or involuntarily committed to a mental institution — courts should be especially wary on summary judgment of underestimating how well an employee might perform with accommodations or how much the employer’s bad faith may have hindered the process of finding accommodations. In Taylor’s case we believe that there are genuine disputes about the school district’s good faith participation in the interactive process, and assuming the school district did act in bad faith, nothing the school district points to demonstrates that it would be impossible to accommodate Taylor. Prior to her hospitalization, Taylor performed her job effectively for nearly two decades. But after becoming disabled and seeking accommodations, she has presented evidence that the school district made no response to her request and instead increased the difficulty of her job. Given the evidence Taylor presents of bad faith on the school district’s part, we will not decide on summary judgment that it would have been fruitless for the school district to make some modest and fairly obvious efforts to accommodate. In particular, the school district could have increased Taylor’s job responsibilities more slowly, given more time to introduce the computer, or communicated less by formal, written reprimands. The EEOC compliance manual for psychiatric disorders provides that some adjustments in supervisory methods can qualify as legitimate accommodations. The ADA itself specifically provides that reasonable accommodations can include “job restructur ing, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B). The fact that Taylor’s potential accommodations are modest should not encourage us to dismiss Taylor’s claim on summary judgment on the theory that they would be useless; that would have the bizarre implication that the more demanding a plaintiffs accommodations were, the more likely the plaintiff is to survive summary judgment. Plaintiffs who wish to participate in good faith in the interactive process are more likely to have scaled back their demands and asked for modest accommodations. More importantly, we think it is worth remembering that sometimes comparatively modest accommodations can reap large returns in how well a disabled employee performs. We want to reiterate the limits of the interactive process. We are not holding that an employer who has made a good faith effort to accommodate must be saddled with a secretary who consistently makes typos and fails to deliver messages. Nor do we hold that an employer cannot introduce a new computer system or switch an employee to a less forgiving-supervisor. What we do hold is that an employer, having received adequate notice of an employee’s disability and desire for accommodations, cannot fail to engage the employee in the interactive process of finding accommodations, increase the disabled employee’s job responsibilities, and then simply document the employee’s failures. To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith. Mengine, 114 F.3d at 420; Bultemeyer, 100 F.3d at 1285; Taylor, 93 F.3d at 165. We believe that a reasonable jury could conclude that Taylor requested accommodations, that the school district made no effort to help Taylor find accommodations and was responsible for the breakdown in the process, and that there were accommodations that the school district could have provided that would have made Taylor able to perform the essential functions of her job. If a jury concludes that the school district was not responsible for the breakdown in the interactive process, Taylor must demonstrate that a specific, reasonable accommodation would have allowed her to perform the essential functions of her job. We have viewed the evidence in the light most favorable to Taylor, as we must on summary judgment. The school district is, of course, free on remand to argue that it did not receive notice of Taylor’s request for accommodation, that it tried to assist Taylor in seeking accommodations, or, assuming the school district was responsible for the breakdown in the process, that no accommodation would have allowed Taylor to perform the essential functions of her job. IV For the foregoing reasons, we will reverse the March 20, 1998 grant of sum mary judgment by the District Court and remand the case for further proceedings. . One widely-used text explains that: "Because lithium has an extremely narrow therapeutic range, blood levels of the drug must be closely monitored. The occurrence and intensity of side effects are, in most cases, directly related to plasma concentrations of lithium ... The main toxic effects involve the gastrointestinal tract, the kidneys, the thyroid, the cardiovascular system, the skin, and the nervous system.” Robert M. Julien, A Primer of Drug Action, 8th ed., W.H. Freeman & Co., at 229-30 (1998). The Physicians' Desk Reference, 53rd ed., Medical Economics Co., at 2750 (1999) likewise states that: "Lithium toxicity is closely related to serum lithium levels and can occur at doses close to therapeutic levels.” Both authorities state that when the amount of lithium in the blood is near and above the therapeutic range, side effects can include nausea, vomiting, abdominal pain, slight tremor, lethargy, impaired concentration, dizziness, slurred speech, ataxia, muscle weakness, and nystagmus. Julien adds that memory problems and weight gain are also frequent complaints with continued treatment. As plasma levels rise higher, toxic effects include muscle rigidity, coma, renal failure, cardiac arrhythmias, and death. Blood levels can fluctuate for a variety of reasons. For example, Julien notes that “when a patient lowers his or her salt intake or loses excessive amounts of salt (such as through sweating), lithium blood levels rise and intoxication may inadvertently follow.” Id. at 228. . Employers need not fear that discounting mitigating factors will establish a flood of new-found disabilities and demands for accommodations. First, many widely-treated conditions simply do not significantly restrict a person’s functioning as compared to the average person’s — even when those conditions are left untreated. If, on the other hand, a condition is disabling when untreated, but really is fully corrected by mitigating measures, then it is very unlikely that employers will need to make much in the way of accommodations, for by hypothesis, the condition imposes no restrictions on the employee. The value of looking to the unmitigated condition is that it allows the ADA to encompass serious, chronic conditions like diabetes or bipolar disorder that, while capable of being controlled by medication, are not always perfectly controlled. Medical treatments for many chronic conditions can in some instances themselves create limitations. See, e.g., supra note 1. The problem with insisting that these uncontrolled symptoms must themselves be substantially limiting before accommodations are required is that once the symptoms of a serious, chronic condition are no longer kept in check, they can rapidly become totally disabling. As a result, employees with these disabilities would be denied the right to accommodations when modest accommodations could help them surmount significant although not substantially limiting symptoms. And "disability” status would only be achieved when their health had deteriorated so precipitously that no reasonable accommodation was possible. To take Taylor’s case, she would not be legally entitled under the ADA to even the most simple accommodations for blood tests until she experienced the onset of another manic episode which could easily result in her becoming psychotic, requiring another commitment to an institution. It might be thought that those who have serious, chronic conditions can turn to the "regarded as disabled" prong to establish a disability and obtain accommodations when symptoms or the side effects of treatments flare. However, aside from the fact that an employer may noL regard the employee as disabled, it remains an open question in this circuit whether employees are entitled to accommodations if they can only satisfy the "regarded as” prong for demonstrating a disability. See Deane v. Pocono Medical Center, 142 F.3d 138, 140-41 (3d Cir.1998)(en banc). . We have previously held that some temporary impairments will not qualify as disabilities under the ADA even during the time the impairment actively affects the individual. McDonald v. Com. of Pa., Dept. of Public Welfare, 62 F.3d 92 (3d Cir.1995). We explained in McDonald that the EEOC’s guidelines provide that "temporary, nonchronic impairments of short duration, with little or no long term permanent impact, are usually not disabilities.” Id. at 95 (quoting 29 C.F.R. Ft. 1630, App. § 1630.2(j) at 347-48) We also reviewed the factors set forth in 29 C.F.R. § 1630.2(j)(2) for determining when an impairment "substantially limits” a major life activity: the impairment’s nature and severity, its expected duration, and its long-term impact. Because we conclude that Taylor’s condition was chronic and substantially limiting, we need not delve into the question of which acute conditions are excluded from the ADA's definition of a disability. . The DSM-IV states that: "Bipolar I Disorder is a recurrent disorder—more than 90% of the individuals who have a single Manic Episode go on to have future episodes.” Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., American Psychiatric Association, at 353 (1994). . Although the evidence cited above is sufficient for our holding, we note that a leading text on bipolar disorder states: "We wish to emphasize the common clinical belief that the great majority of bipolar patients withdrawn from lithium will eventually relapse. The wisdom of this assumption is reinforced by long-term follow-up studies ... The Page study involved 101 bipolar and recurrent unipolar patients maintained on lithium for a median of 13 years. Of the 31 who stopped lithium, all but 2 suffered relapses, and those 2 were unipolar patients; that is, all bipolar patient who discontinued lithium relapsed.” Frederick Goodwin and Kay Redfield Jami-son, Manic-Depressive Illness, Oxford University Press, at 680-81 (1990). See also Julien, supra note 1, at 232. . While Mengine involved a claim under the Rehabilitation Act, the regulation and interpretive guidelines applied in the case were from the ADA. Furthermore, according to 42 U.S.C. § 12201(a), the ADA should not be construed to apply a lesser standard than the Rehabilitation Act. See also Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998). . In Deane we emphasized the value ,of the interactive process for avoiding litigation: “we take this opportunity to observe that this protracted (and very much ongoing) litigation would likely have been unnecessary had the parties taken seriously the precepts announced in our opinion in Mengine.” Deane, 142 F.3d at 149 (citation omitted). We would add that the interactive process can be thought of as a less formal, less costly form of mediation. See 67 U.S.L.W. 2255 (noting the value of mediated settlement in ADA cases). Mediated settlements, the article explains, are cheaper than litigation, can help preserve confidentiality, allow the employee to stay on the job, and avoid monetary damages for an employer’s initially hostile responses to requests for accommodations. The interactive process achieves these same goals even more effectively. . Our opinion in Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir.1998) should be distinguished because there the employee’s proposed accommodation, a transfer whenever he decided he was stressed, was unreasonable as a matter of law. If an employee insists on a single accommodation that is unreasonable as a matter of law, then the employee will be at fault for the breakdown in the interactive process. . Employers may find it useful to take advantage of the Job Accommodation Network although we do not in any way suggest that employers are obliged to make use of this service. The EEOC compliance manual explains that: "The Job Accommodation Network (JAN) provides advice free-of-charge to employers and employees contemplating reasonable accommodation. JAN is a service of the President’s Committee on Employment of People with Disabilities which, in turn, is funded by the U.S. Department of Labor. JAN can be reached at 1-800-ADA-WORK." EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 23, n. 56. . The Ninth Circuit has expressed disagreement with our decision in Mengine and concluded that employers are not obliged to participate in the interactive process. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 753 (9th Cir.1998). The majority in Barnett worried that an employer could be held liable for failing to engage in the interactive process even though the employee was successfully accommodated. We believe that where an employer has successfully made reasonable accommodations, a court can conclude as a matter of law that the employer did not act in bad faith. The Barnett majority also objected that it was not clear when an employer would incur process liability. Bad faith can, of course, take many different forms, just as negligence can, precluding easy statement of a general rule about when bad faith has occurred. However, we believe that jurors should be able to distinguish between stonewalling and assisting an employee in finding accommodations. The fact that there may be some hard cases is hardly unique in law. The Barnett majority's last objection was that 29 C.F.R. § 1630(o)(3) only states that it "may be necessary” for the employer to engage in an interactive process. But the EEOC's interpretive guidelines state that once an employee requests accommodations, the employer "must make a reasonable effort to determine the appropriate accommodation.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359. The guidelines continue that in some instances the interactive process may not be necessary because it is clear to both parties involved what accommodation will work. For example, the guidelines explain that an employee in a wheelchair may want her desk elevated with blocks so that her wheelchair will slide under. No interactive process will be needed here. Id. at 360. The regulation uses the phrase "may be necessary,” in other words, because sometimes the necessary accommodation is obvious. We have also recognized that the process is not necessary in cases where accommodation is impossible. . The EEOC compliance manual states that: "Supervisors play a central role in achieving effective reasonable accommodations for their employees. In some circumstances, supervisors may be able to adjust their methods as a reasonable accommodation by, for example, communicating assignments, instructions, or training by the medium that is most effective for a particular individual {e.g., in writing, in conversation, or by electronic mail).” 2 EEOC Compliance Manual, Enforcement Guidance for Psychiatric Disabilities, at 26. However, the manual continues that "[r]ea-sonable accommodation ... does not require lowering standards or removing essential functions of the job.” Id. at 26, n. 62. We would hasten to add that a disabled employee is not entitled to a supervisor ideally suited to his or her needs. We held in Gaul, for instance, that an employee is not entitled to transfer whenever the employee deems that his co-workers are causing him inordinate stress. 134 F.3d at 579. . The District Court treated Taylor’s case as possibly raising a disparate-treatment claim. Because Taylor represents on appeal that she did not intend to raise such a claim, we need not reach the issue.

LITTLE, District Judge: The Cadle Company (“Cadle”) appeals the district court’s decision to dismiss its RICO and state law claims under the “first-to-file” rule. Cadle argues that the district court should have applied the rule only if it first determined that the first-filed court’s jurisdiction was proper, and erred by failing to do so in this case. Cadle argues in the alternative that even if the lower court did not err in applying the rule, it should have transferred the case rather than dismissed it. We find that the district court properly applied the first-to-file rule, but should have transferred the suit rather than dismissed it. The judgment of the district court is therefore vacated and the case is remanded to the district court with instructions to transfer the case. I. Background The following events are gleaned from Cadle’s complaint in the district court. Appellee Whataburger of Alice (“Whata-burger”) is a family-owned corporation founded by Joe Alvin Andrews (“Andrews”) in 1968. Whataburger grew into a successful business and supplied Andrews with funds to invest in other business ventures. One of these ventures, Anshad, Inc. (“Anshad”), owned apartment buildings in the San Antonio area. As part of his dealings with Anshad, Andrews in 1987 guaranteed a loan to Anshad from the Windsor Savings Association ('Windsor”) in the amount of $2,495,000. In 1988 An-shad defaulted on its obligation to repay Windsor and Andrews defaulted on his guarantee. Windsor filed suit against Andrews to recover the debt in 1989. Windsor obtained a judgment against Andrews on 13 June 1991 in the amount of $1,075,-167.47, plus post judgment interest (“the Windsor judgment”). That judgment forms the basis for the instant dispute. Windsor went bankrupt and' into receivership in or about 1992. Cadle claims to have acquired the right to collect on the Windsor judgment from Windsor’s receiver on 23 June 1992. As we shall see infra, Cadle’s claim of ownership is the subject of a vigorous debate in the bankruptcy proceedings, and the parties have attempted to carry on that debate in this court as well. The defendants have even based a motion to dismiss pursuant to Fed. R.App. Proc. 38 on their argument that Cadle does not own the claims and therefore lacks standing to argue about its dismissal in this court. That motion is denied. Cadle has suffered an adverse ruling in the district court, and has standing to appeal. See Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (“[A] party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom.”). Moreover, we need not (and as we shall see should not) decide who owns these claims in order to answer the question presented by this appeal. We assume without deciding that Cadle does own the right to collect on the Windsor judgment for purposes of this appeal only. Cadle claims that the defendants (Andrews’ wife, daughter, lawyer, accountant, and son, respectively) conspired with Andrews in the execution of two fraudulent transfers intended to insulate Andrews from collection of the Windsor judgment. First, Cadle claims that Andrews and Whataburger, co-plaintiffs in a suit against Whataburger’s franchisor, structured the settlement agreement that resulted from the litigation to shield the proceeds from ownership by Andrews: Whataburger received the entire amount of the $16,450,000 settlement, while Andrews received nothing. Whataburger, flush with cash from the settlement, distributed sizeable bonus payments to all of its shareholders but Andrews, even though he owned 23.7% of Whataburger’s stock. Cadle claims that the settlement should have filtered to the shareholders on a pro rata basis. Andrews should have received his share of the stockholder bonus. If so, Andrews would have had assets that Cadle could have seized to satisfy the Windsor judgment. Second, Cadle alleges that the defendants helped Andrews release 15,000 shares of Whataburger stock that Andrews had pledged to secure a debt he was repaying to Laredo National Bank. Had the debt béen payed in full, the 15,000 pledged shares would have been returned to Andrews. Cadle then could have seized those shares in partial satisfaction of the Windsor debt. Whataburger, however, bought the debt from the bank, which included the pledge of the stock. Andrews defaulted, and Whataburger foreclosed on the pledged stock on 4 February 1994. Andrews, therefore, remained without any assets that Cadle could seize to satisfy the Windsor judgment. II. Procedural History On 14 June 1994, Andrews filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, Laredo Division. Cadle filed several claims in those proceedings seeldng to recover on the Windsor judgment. On 10 April 1996, bankruptcy Judge Richard Schmidt dismissed Cadle’s second amended complaint for lack of standing because he found that the bankruptcy trustee, rather than Cadle, actually owned the claims that Cadle was attempt ing to assert. See In re Joe Alvin Andrews, No. 94-21308, slip op. (Apr. 10, 1996). Undaunted by this setback, Cadle filed a third amended complaint in the bankruptcy court on 24 November 1997. Apparently unwilling to leave matters in the hands of the bankruptcy court, Cadle filed the instant complaint in the -United States District Court for the Western District of Texas, San Antonio Division, on 23 December 1997. Cadle claims that the defendants violated RICO §§ 1962(b), (c), and (d) by engaging in a pattern of wrongful conduct involving bankruptcy fraud, mail fraud, wire fraud, and securities fraud (1) to acquire an interest in and to maintain control over the affairs of Whatabur-ger and Andrews’ financial empire and (2) fraudulently to transfer and otherwise maintain custodianship over Andrews’ assets. Cadle also alleges that the defendants’ conduct constitutes tortious interference with Cadle’s right to enforce its judgment against Andrews in violation of Texas state law. Finally, Cadle alleges that Whataburger’s corporate form should be pierced and set aside because Andrews and the individual defendants operate the company as an extension of themselves in furtherance of their fraudulent scheme. The defendants moved to dismiss, arguing again that Cadle does not own the claims and that the pending bankruptcy matter required the court to dismiss the case under the first-to-file rule. Both parties devote their attention to the ownership of the claims. As to the pending bankruptcy proceedings, Cadle stated simply that the first-to-file rule should not apply because “[t]he bankruptcy court ... does not have jurisdiction to entertain the RICO claims[.]” The district court, in its ruling of 16 March 1998, relied upon the first-to-file rule. See Cadle v. Whataburger of Alice, Inc., No. 97-1502, slip op. (W.D.Tex. Mar. 16, 1998). In doing so, the court decided that the issues pending before the bankruptcy court substantially overlapped those raised by the suit before it. See id. at 3. The fact that the attorney and accountant are named as defendants in the district court suit but not in the bankruptcy complaint does not, in the district court’s opinion, render the cases so dissimilar as to warrant action at the district court level. See id. The court did not specifically address Cadle’s objection that the bankruptcy court lacked subject matter jurisdiction over its claims, but closed with a comment on the propriety of addressing any substantive issues in the case: There are proper appellate procedures a dissatisfied litigant can employ. This Court does not sit as a super appellate court to review orders of bankruptcy courts in other districts, and will not be employed in a collateral attack on a decision of a sister court. This is one of the very abuses the first-to-file rule is designed to prevent, and is an illustration of why the principle of comity is so vital to our judicial system. Id. at 3-4. The district court decided to dismiss the case rather than transfer it to the Laredo proceedings because the “plaintiff waited too long there to add Pounds and Braun as defendants.” Id. at 3 n. 2. Cadle filed this appeal challenging the district court’s order of dismissal. Meanwhile, back in the bankruptcy court, proceedings continued apace. The bankruptcy court, on 9 June 1998, again decided that Cadle did not own the claims and therefore lacked standing to bring the motion. On 12 November 1998, the bankruptcy court entered a take nothing judgment against Cadle on all of its claims. Cadle appealed that judgment, as well as Judge Schmidt’s earlier ruling, to the Laredo district court. III. Analysis Cadle argues here that the district court should not have applied the first-to-file rule because the bankruptcy court in the first-filed suit never had jurisdiction over the claims. The first-to-file rule is a discretionary doctrine, see Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-84, 72 S.Ct. 219, 96 L.Ed. 200 (1952) (“Necessarily, an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower courts.”), the application of which we normally review for abuse of that discretion. See Sutter Corp. v. P & P Indus., Inc., 125 F.3d 914, 917 (5th Cir.1997). Cadle, however, does not raise issues of application, such as the district court’s findings that the issues raised by the cases substantially overlap and that such a finding is not precluded by the lack of complete identity of parties between the cases. Cadle instead questions the contours of the rule itself. This is a purely legal matter that we review de novo. See id. A. Contours of the First-To-File Rule Under the first-to-file rule, when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the cases substantially overlap. See Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir.1997); West Gulf Maritime Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir.1985). The rule rests on principles of comity and sound judicial administration. See Save Power, 121 F.3d at 950; West Gulf, 751 F.2d at 728. “The concern manifestly is to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result.” West Gulf, 751 F.2d at 729. The defendants, rather than undertake a comprehensive response to Cadle’s argument, have gone to tremendous length arguing yet again that Cadle does not even own the claims it is attempting to assert, and therefore that Cadle lacks standing. The only proper subject for our attention at this point, however, is the district court’s decision to dismiss Cadle’s claims under the first-to-file rule and to leave Cadle’s jurisdiction and the defendants’ standing arguments for the bankruptcy court. Cadle essentially argues that the first-to-file rule should include a precondition that requires the district court to find proper jurisdiction in the first-filed court before applying the rule at all. Although Cadle does not say so, it has imported this notion from the doctrine of collateral es-toppel, which “applies to bar litigation of an issue previously decided in another proceeding by a court of competent jurisdiction .... ” Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415, 1421 (5th Cir.1995). Cadle’s argument misses the mark for at least two reasons. 1. The Relationship Between the First-To-File Rule and Collateral Estoppel First, Cadle’s implicit comparison to the doctrine of collateral estoppel is inapposite. The comparison does have some surface appeal in light of our statement in another case that the first-filed court takes priority “[b]y virtue of its prior jurisdiction over the common subject matter....” Mann Mfg. Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th Cir.1971). But it makes no sense to read this statement to establish a jurisdictional precondition for the first-to-file rule similar to that required for the doctrine of collateral estoppel. ■ Although both doctrines rest on notions of judicial economy and consistency in judgments, they address these issues at different times. Collateral estoppel is a backward-looking doctrine. Courts apply it to avoid relitigation of, and inconsistency with, issues already decided by other courts. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). We examine the prior court’s jurisdiction before applying the doctrine of collateral estoppel because we should only bind the present litigants with a past ruling if that ruling was rendered by a court of competent jurisdiction. See 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4428 (1981) (“[A] judgment entered by a court lacking subject matter jurisdiction is ‘void’ and is not entitled to res judicata effect.”). The first-to-file rule, by contrast, is essentially a forward-looking doctrine. Courts use this rule to maximize judicial economy and minimize embarrassing inconsistencies by prophylactically refusing to hear a case raising issues that might substantially duplicate those raised by a case pending in another court. Because the second-filed court is not binding the litigants before it to a ruling of the first, there is no reason to examine the jurisdiction of the first-filed court. Such a requirement would actually undercut the values of economy, consistency, and comity that the rule is designed to maximize: the jurisdictional ruling of the second-filed court would either conflict with a ruling already made, rehash an issue already decided, or trench on a sister court’s treatment of the issue before it has been reached there. Because the doctrines approach the problem of inconsistent rulings and judicial economy from different perspectives, different procedures are required for proper operation of the rules. As such, the district court properly declined to accept Cadle’s suggestion to apply a jurisdictional requirement to the first-to-file rule. 2. Why the Jurisdiction of the First-Filed Court Might Matter In light of this distinction between collateral estoppel and the first-to-file rule, it comes as no surprise that Cadle has not presented any persuasive case law to support its analogy. The only support that Cadle provides for its argument comes from a case decided by a district court in the Third Circuit, Jefferson Ward Stores, Inc. v. Doody Co., 560 F.Supp. 35 (E.D.Pa.1983). Jefferson Ward had contracted with Doody to renovate its stores; after several rounds of complaints by Jefferson Ward, Doody filed an action in the Southern District of Ohio seeking a declaration that it had not breached their contract. Jefferson Ward then filed suit in the Eastern District of Pennsylvania against Doody for breach of contract and negligence. The “dispositive” factor in the court’s decision to keep the case rather than dismiss it in favor of the first-filed court was “a serious question as to that court’s jurisdiction.” Jefferson Ward, 560 F.Supp. at 36. The court supported its decision with the following statement, which provides the sole basis for Cadle’s argument in its brief: “It is not the first case filed which has precedence, but ‘the court first obtaining jurisdiction of the parties and the issues’ which should proceed with the litigation.” Jefferson Ward, 560 F.Supp. at 37 (quoting Omni-Exploration, Inc. v. McGookey, 520 F.Supp. 36, 37 (E.D.Pa.1981)). This excerpt would seem to lend support to Ca-dle’s view that the first-to-file rule requires the second-filed court to consider the jurisdiction of the first. Jefferson Ward’s analysis of the first-to-file rule, however, is unpersuasive. The court’s decision to consider the jurisdiction of the first-filed court sprang from Columbia Pictures Industries., Inc. v. Schneider, 435 F.Supp. 742 (S.D.N.Y.1977). That case presents a much clearer picture of how the jurisdiction of the first-filed court fits into the rule and indicates that Jefferson Ward failed to place the relevance of the first-filed court’s jurisdiction in the proper context. The defendants in Columbia had threatened antitrust litigation against Columbia; Columbia responded by filing an action in the Southern District of New York seeking a declaration that it had not violated any antitrust laws. See id. at 745-46. The defendants filed their antitrust suit in the Central District of California six days later. Columbia moved the New York court to enjoin the defendants from pursuing their claim in California. Id. The New' York court declined to issue the injunction, finding that although it was the first-filed court, exceptional circumstances militated against exercising its priority under the rule. Id. at 747. Among other factors (not relevant in this case), the court considered the effect that a potential dispute about its personal jurisdiction over Columbia would have on the value of judicial economy so central to the first-to-file rule. There is a substantial question ... whether [personal] jurisdiction exists under the New York long arm statute against these defendants, all of whom reside in California. The possibility of an erroneous determination of personal jurisdiction in New York followed by lengthy proceedings thereafter over which we were ultimately found to lack jurisdiction, ' and the desirability of avoiding decisions unnecessary to ultimate resolution of the merits by a federal court strongly suggest that California is a more appropriate forum. Columbia Pictures, 435 F.Supp. at 748. The mere existence of such questions suggested “that considerations , of judicial economy require the case to be litigated first in California.” Id. at 750. Subsequent case law, uncited by Cadle, casts the Jefferson Ward and Columbia Pictures decisions in the appropriate light. While the likelihood of a jurisdictional dispute in the first-filed court may be a factor to consider in applying the rule, resolving the dispute in favor of that court’s jurisdiction is never a condition precedent to applying it. See Berisford Capital Corp. v. Central States, Southeast and Southwest Areas Pension Fund, 677 F.Supp. 220 (S.D.N.Y.1988) (“I would not conclude in the ‘sound discretion’ allotted to me in this matter that [jurisdictional uncertainty in the first filed court], standing virtually alone, should be so compelling as to cause me to depart from the well established and salutary first-filed rule.”); Brower v. Flint Ink Corp., 865 F.Supp. 564, 570 (N.D.Iowa 1994) (noting that Berisford “rejected the suggestion that jurisdictional uncertainties standing alone should be so compelling- as to cause the court to depart from the ‘first filed rule.’ ”); FirsTier Bank, N.A. v. G-2 Farms, No. 95-3118, 1996 WL 539217, at *4 (D.Neb. Mar. 11, 1996) (noting that a jurisdictional dispute is only one factor to consider). 3. The District Court Properly Applied the First-To-File Rule In sum, Cadle’s view of the first-to-file rule is supported by neither the policies behind the rule nor the cases that apply it. While the jurisdictional certainty of the first-filed court might be a proper factor for a district court to weigh in maximizing judicial economy, Cadle does not allege that the court below erred in this respect. Nor could it: the district court in this case was the second-filed court, and under Fifth Circuit precedent that balancing act is reserved only for the first-filed court. “Once the likelihood of a substantial overlap between the two suits ha[s] been demonstrated, it [is] was no longer up to the [second filed court] to resolve the question of whether both should be allowed to proceed.” Mann, 439 F.2d at 407. The district court correctly refused to act as a “super appellate court” by entertaining either Cadle’s jurisdiction or the defendants’ standing arguments, and properly limited its inquiry to the potential overlap between the two cases. By so limiting its analysis, the district court indeed avoided trenching on the authority of its sister court, one of “the very abuses the first-to-file rule is designed to prevent.” Cadle, No. 97-1502, slip op. at 4. B. Transfer or Dismiss? Cadle argues in the alternative that the district court should have transferred the case back to the Laredo division rather than dismiss it entirely. We agree. “[T]he ‘first to file rule’ not only determines which court may decide the merits of substantially similar issues, but also establishes which court may decide whether the second suit filed must be dismissed, stayed or transferred and consolidated.” Sutter Corp., 125 F.3d at 920. As noted above, “[t]he Fifth Circuit adheres to the general rule, that the court in which an action is first filed is the appropriate court to determine whether subsequently filed cases involving substantially similar issues should proceed.” Save Power, 121 F.3d at 948. Thus, once the district court found that the issues might substantially overlap, the proper course of action was for the court to transfer the ease to the Laredo court to determine which case should, in the interests of sound judicial administration and judicial economy, proceed. The district court erred by dismissing the suit. MOTIONS DENIED. The judgment of the district court is VACATED, and the case is REMANDED to the district court with instructions to transfer the case to the United States Bankruptcy Court for the Southern District of Texas, Laredo Division, for further proceedings consistent with this opinion. Each party shall bear its own costs. . Andrews and Whataburger had agreed " to sell their restaurants in Bexar County, Texas and the exclusive right to operate the chain in the area for 10.5 million dollars. The franchisor challenged the sale, which caused the deal to fall through. .. The record in this case does not include that complaint,, so we cannot set forth allegations with any more specificity. . The quoted passage discusses the subject matter jurisdiction of the decision-rendering court in the context of closely related doctrine of res judicata. The importance of the decision-rendering court’s jurisdiction is now apparently very rarely brought into issue. "Today, it is safe to conclude that most federal court judgments are res judicata notwithstanding a lack of subject matter jurisdiction.” 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4428 (1981). No such clear statement as to the importance of the decision-rendering court's subject matter jurisdiction seems to exist in the context of collateral estoppel. The fact that the decision-rendering court in this case was a bankruptcy court may further complicate the issue. See Copeland v. Merrill Lynch & Co., Inc., 47 F.3d 1415, 1422 (5th Cir.1995) (noting live question as to whether or not the jurisdiction of a decision-rendering bankruptcy court must be "core” in order to satisfy the "competent jurisdiction” component of collateral estoppel). . Omni-Exploration, quoted by Jefferson Ward above, also relied on Columbia Pictures in its analysis. See Omni-Exploration, 520 F.Supp. at 37-38.

PER CURIAM: Richard Showers Jr., proceeding pro se, appeals the partial denial of his 18 U.S.C. § 3582(c)(2) motion for a reduced sentence based on Amendment 706 to the U.S. Sentencing Guidelines. After Showers moved for a sentence reduction, the district court granted the motion and resentenced him at the low end of the amended guideline range. On appeal, Showers argues that the district court erred by declining to grant him a reduction below the amended guideline range under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and by sentencing him based on an erroneous drug quantity that was not supported by the trial evidence, was not reasonably foreseeable, and was outside the scope of the conspiracy. I. Showers first argues that the district court erred by declining to grant him a reduction below the amended guideline range under Booker. “We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003). However, “we review de novo the district court’s legal conclusions regarding the scope of its authority under the Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.2002) (per curiam). A district court may not modify a term of imprisonment once it has been imposed, except where expressly permitted by statute or by Fed.R.CrimP. 35. 18 U.S.C. § 3582(c)(1)(B). One such statutory exception to this general rule is § 3582(c)(2), which allows a district court to reduce a defendant’s sentence when a change in the guidelines reduces his applicable guideline range. § 3582(c)(2). In considering a § 3582(c)(2) motion, the district court must engage in a two-part analysis. United States v. Bravo, 203 F.3d 778, 780 (11th Cir.2000). First, the court recalculates the sentence under the amended guidelines, changing only that which was changed by the amendment. Id. The court then makes a discretionary decision whether to impose the amended sentence or retain the original sentence. Id. at 781. On November 1, 2007, the Sentencing Commission promulgated Amendment 706, which amended the Drug Quantity Table in U.S.S.G. § 2Dl.l(c). U.S. Sentencing Guidelines Manual app. C, Amend. 706 (2007). The effect of Amendment 706 is to provide a two-level reduction in base offense levels for certain crack cocaine offenses. See id. The Commission made this amendment retroactively applicable, effective as of March 3, 2008. See U.S. Sentencing Guidelines Manual app. C, Amend. 713 (Supp. May 1, 2008) (listing Amendment 706 under U.S.S.G. § lB1.10(e) as a retroactively applicable amendment). Under § 3582(c)(2), a sentencing reduction must be consistent with the Commission’s policy statement, which is found at § 1B1.10. 18 U.S.C. § 3582(c)(2). Section lB1.10(b)(2) provides: (2) Limitations and Prohibition on Extent of Reduction.— (A) In General.—Except as provided in subdivision (B), the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection. (B) Exception.—If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a further reduction generally would not be appropriate. U.S. Sentencing Guidelines Manual § lB1.10(b)(2) (made effective on March 3, 2008 by Amendment 712). In separate majority opinions, the Supreme Court in Booker issued both a constitutional and a remedial holding. With respect to the former, the Supreme Court reaffirmed that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244, 125 S.Ct. at 756. The Court concluded that this constitutional holding was incompatible with the mandatory nature of the guidelines. Id. at 245, 125 S.Ct. at 756. Therefore, in its remedial opinion, the Court excised, inter alia, 18 U.S.C. § 3553(b)(1), which had made the guidelines mandatory. Id. at 258-60, 125 S.Ct. at 764-65. Concluding that Booker does not apply to § 3582(c)(2) proceedings, we recently held that Booker does not prevent the Sentencing Commission from limiting a judge’s discretion in reducing a sentence under § 3582(c)(2). United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir.2009) (per curiam), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664). Because our decision in Melvin prohibited the district court from reducing Showers’ sentence below the amended guideline range, the court did not err by declining to do so. In other words, the district court was not authorized to impose a sentence lower than 135 months, because that was the low end of the amended guideline range. II. Showers also argues that the district court erred by sentencing him based on an erroneous drug quantity that was not supported by the trial evidence, was not reasonably foreseeable, and was outside the scope of the conspiracy. Objections or arguments not raised in the district court are reviewed for plain error. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.2007). Under plain error review, we may reverse only if there is (1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights. Id. Moreover, even if the first three conditions are met, we only may exercise our discretion to correct the error if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. As discussed above, when considering a § 3582(c)(2) motion, the district court must engage in a two-part analysis. Bravo, 203 F.3d at 780. The first step requires the court to recalculate the sentence under the amended guidelines, changing only that which was changed by the amendment. Id. “All other guideline application decisions made during the original sentencing remain intact.” Id.; see also U.S. Sentencing Guidelines Manual § lB1.10(b)(l). As noted above, we recently held that Booker does not prevent the Sentencing Commission from imposing limitations on a judge’s discretion in reducing a sentence under § 3582(c)(2). Melvin, 556 F.3d at 1192. The district court was required to recalculate Showers’s sentence, changing only that which was changed by Amendment 706. Accordingly, the district court did not err, much less plainly err, by declining to reconsider the drug quantity it used to calculate Showers’s base offense level. CONCLUSION Upon review of the record and consideration of the parties’ briefs, we find no reversible error. AFFIRMED.

OPINION SMITH, Circuit Judge. Mitchell D. Diventura was convicted by a jury in 1977 of the first degree murder of his wife. On direct appeal, the Superior Court of Pennsylvania concluded that he had been denied the effective assistance of trial counsel because of counsel’s failure to request a jury instruction on involuntary manslaughter. Commonwealth of Pennsylvania v. Diventura, 270 Pa.Super. 471, 411 A.2d 815, 818 (1979), aff'd 497 Pa. 231, 439 A.2d 1154 (1982). On retrial, a jury again convicted Diventura of first degree murder, and he was sentenced to life imprisonment. Diventura did not file a direct appeal. Thereafter, he filed a pro se petition for relief under the Pennsylvania Post Conviction Hearing Act (PCHA), which has since been repealed and replaced with the Post Conviction Relief Act (PCRA), 42 Pa. Cons.Stat. §§ 9541-9546. According to Diventura, he withdrew his PCHA petition without prejudice pursuant to an agreement with the prosecution by which he would receive letters from the trial judge and the prosecutor in support of his pending application for executive clemency from the prosecutor and the trial judge. When the Governor of Pennsylvania de-pied Diventura’s application for clemency, he filed a motion to reinstate his PCHA petition. Despite the fact that he had withdrawn his PCHA without prejudice, the trial court denied reinstatement. Thereafter, Diventura filed a PCRA, which was rejected by the trial court. Diventura’s first petition for habeas corpus under 28 U.S.C. § 2254 followed in 1995. DiVentura v. Stepniak, No. 95-CV-0443, 1996 WL 107852, at *1 (E.D.Pa. March 11, 1996). The District Court denied the petition. Thereafter, Diventura filed a third PCRA petition in June of 1996. This was rejected by both the state trial and appellate courts. Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa.Super.Ct.1999). A fourth PCRA petition, filed in October of 1998, met a similar fate. Id. Diventura applied for executive clemency in 2003. This time he was unable to obtain a letter of support from the District Attorney. After the Board of Pardons denied Diventura’s application, Diventura sought relief in the Pennsylvania Superior Court, alleging that the Commonwealth breached the 1987 agreement by faffing to support his most recent clemency application, and that his right to file a direct appeal should be granted nunc pro tunc. The application was denied, and the Pennsylvania Supreme Court affirmed. Diventura turned to the federal district court again, filing a pro se “Motion for Equitable Relief in the Exercise of this Court’s Inherent Article III Powers and/or for Relief from Judgment 28 U.S.C. Rule 60(b).” In addition to Diventura’s pro se motion, counsel filed a “Complaint for Equitable Relief Pursuant to Article III, [the] U.S. Constitution and Fed.R.Civ.P. 60(b)(6).” Diventura’s motion and the counseled complaint alleged that he had withdrawn his PCHA petition without prejudice as part of an agreement with the Commonwealth to support his application for clemency. He asserted that the District Attorney’s opposition to his clemency application was a breach of the agreement entered into in 1987 and he prayed for reinstatement of his original PCHA petition so that he could litigate the issues which would have been litigated had no agreement been made. According to Diventura, reinstatement of his PCHA would remedy a breach of an agreement that “hoodwinked [him] out of his constitutional rights to appeal.” The District Court construed the pro se motion and the counseled complaint as ha-beas corpus petitions seeking the reinstatement of his PCHA petition and dismissed them as unauthorized second or successive applications pursuant to § 2244(b)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA). A motions panel of this Court granted a certificate of appealability “on the jurisdictional and/or procedural question whether the District Court erred in applying 28 U.S.C. § 2244(b) to bar consideration on the merits of [Diventura’s] pro se motion ... and counseled complaint.” The order identified the “ ‘valid’ underlying constitutional claim” as whether Diven-tura “was induced by the Commonwealth to waive a remedy that could have restored his right to a direct appeal by a promise, since broken, to recommend clemency.” Neither party, however, addressed whether § 2244(b) was properly applied. The AEDPA established new procedural and substantive requirements for habeas petitions. One of the new procedural hurdles was the requirement in § 2244(b) that a second or successive petition must satisfy certain criteria. 28 U.S.C. § 2244(b). Although this gatekeeping provision seems to apply to Diventura’s motion and complaint filed in 2007, we must be mindful that Diventura’s initial § 2254 habeas petition was filed in 1995, before AEDPA was enacted. Because application of § 2244(b) would have a retroactive effect upon Diventura if it foreclosed habeas review that would have been available under the pre-AEDPA abuse of the writ doctrine, In re Minarik, 166 F.3d 591, 602 (3d Cir.1999), we must apply pre-AEDPA law and determine whether Diventura’s claim was raised in an earlier habeas petition. If so, the claim would have been barred and we may apply § 2244(b)’s gatekeeping provisions to Diventura’s most recent filings. If Diventura’s claim is new, however, we must determine whether Diventura has demonstrated cause and prejudice for failing to present it in the state court. See McCles-key v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). “In the absence of such a showing, however, ... the AEDPA standard must be ap-plied____” Minarik, 166 F.3d at 602. Diventura’s claim, that as a result of agreeing to withdraw his PCHA petition he “was hoodwinked out of his constitutional rights to appeal,” is new. It was not presented in his PCHA petition, or in any of the collateral attacks he has filed. Under pre-AEDPA law, he may proceed with this new claim if he demonstrates cause and prejudice for failing to raise it in his earlier petition. McCleskey, 499 U.S. at 494, 111 S.Ct. 1454. [T]he cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel’s efforts to raise the claim in state court. Objective factors that constitute cause include interference by officials that makes compliance with the State’s procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel. Id. Diventura asserts that he was prevented from raising this claim in his earlier petitions because of the agreement he made with the prosecutor in 1987 to withdraw his PCHA petition in exchange for the support of his clemency application by the trial judge and the prosecutor, and that it was only after the District Attorney refused in 2004 to support his clemency application that this claim was ripe. We are not persuaded. Even if we assume that the agreement alleged by Diventura existed and in some way interfered with the restoration of Diventura’s right to file a direct appeal, he cannot show that the factual basis for this ground for relief was not reasonably available pri- or to the District Attorney’s refusal in 2004 to support his application for clemency. The state court docket indicates that after Diventura’s first application for clemency was denied in 1990, Diventura promptly filed a petition to reinstate his PCHA petition. Contrary to the alleged agreement to withdraw the petition without prejudice, the trial court denied the petition for reinstatement. This was a breach of the agreement that he would be able to reinstate his PCHA petition (which, if successful, would have allegedly restored his right to file a direct appeal). As a result of this breach, Diventura had an opportunity at that point to file an appeal to the Superior Court, raising this very ground for relief. He did not. A21. In short, Diventura cannot establish cause under pre-AEDPA law for failing to raise this claim in state court. Accordingly, we must apply AEDPA’s gatekeeping provision in § 2244(b). Minarik, 166 F.3d at 602. Section 2244(b) bars the filing of a second or successive petition unless it meets certain requirements. 28 U.S.C. § 2244(b). In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court instructed that a motion under Federal Rule of Civil Procedure 60(b) should be treated as a second or successive habeas petition for purposes of § 2244(b) if it “assert[s] a federal basis for relief from a state court’s judgment of conviction.” Id. at 530,125 S.Ct. 2641. As an example of a Rule 60(b) motion that qualified as a successive petition, the Gonzalez Court cited a motion that sought leave to add a claim of constitutional error that had been omitted from an earlier petition. 545 U.S. at 531, 125 S.Ct. 2641. Here, Diventura’s motion and complaint seek the reinstatement of his PCHA petition as a means of restoring his right to file a direct appeal. This constitutional ground for relief, however, was omitted from his PCHA petition, as well as his PCRA petitions and his initial § 2254 petition. Under Gonzalez, a motion seeking to add a ground for relief should be treated as a successive habeas petition. 545 U.S. at 531, 125 S.Ct. 2641. Because these successive petitions cannot satisfy § 2244(b)(2)’s requirements, we will affirm the District Court’s dismissal of Diventu-ra’s pro se motion and counseled complaint. . We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Our review regarding exhaustion and procedural default is plenary. Fahy v. Horn, 516 F.3d 169, 179 (3d Cir.2008). . Section 2244(b) provides: (1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (1) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b). . The cause and prejudice standard also may be satisfied if the petitioner can demonstrate that "a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U.S. at 495, 111 S.Ct. 1454. This requires a showing that a ‘‘constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (internal citation and quotation marks omitted). No such claim has been pressed here, and we are persuaded by the District Court's analysis in Diventura's first § 2254 petition that Diventura cannot establish a claim of actual innocence. DiVentura, 1996 WL 107852, at *7-9. . We have considered the other arguments raised in Diventura's appellate brief and find them lacking in merit.

PER CURIAM: Howell W. Woltz petitions for a writ of mandamus seeking an order removing the district court judge from his case due to alleged bias. We conclude that Woltz is not entitled to mandamus relief. Mandamus relief is available only when the petitioner has a clear right to the relief sought. In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.1988). Further, mandamus is a drastic remedy and should only be used in extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987). Woltz fails to demonstrate a clear right to the relief sought. Accordingly, we deny Woltz’s motion to proceed in forma pau-peris and dismiss the petition for writ of mandamus. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DISMISSED.

MEMORANDUM Harjeet Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006), and we grant the petition for review. The IJ did not adequately explain the adverse credibility determination. See id. (the agency must identify specific and cogent reasons for an adverse credibility finding); Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir.2000) (the IJ must explain the significance of any perceived discrepancies). For one thing, in concluding that Singh’s testimony was “confusing, contradictory and evasive,” the BIA failed to address Singh’s contention that his testimony was not competently translated. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (“the BIA [is] not free to ignore arguments raised by a petitioner.”); He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.2003) (“faulty or unreliable translations can undermine the evidence on which an adverse credibility determination is based”). Accordingly, we remand for the agency to reconsider its adverse credibility determination on an open record. See Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir.2009); see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). PETITION FOR REVIEW GRANTED; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Petitioner Xue Yan Lin, a native and citizen of the People’s Republic of China, petitions for review of the August 14, 2007 decision of the Board of Immigration Appeals (the “BIA”), denying his motion to reopen immigration proceedings. Lin maintains that changed country conditions in China, combined with the birth of his two children in the United States, justified a reopening after—approximately nine years—of his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (the “CAT”). As explained below, we deny the petition for review. I. A. After illegally entering the United States on October 27, 1991, Lin filed an application for asylum and withholding of deportation, asserting that he had experienced past persecution and had a well-founded fear of future persecution in China, predicated on his resistance to the country’s communist leadership and his participation in the 1989 demonstrations at Tiananmen Square. Lin was issued a notice to appear on February 23, 1994, alleging that he was deportable for entering the United States without inspection. An immigration judge (the “IJ”), in a decision issued on February 21, 1997, denied Lin’s application for relief and found him deport-able (the “IJ Decision”). The IJ Decision granted Lin’s request to depart voluntarily from the United States, however, and ordered that he do so by May 21, 1997. Lin appealed the IJ Decision to the BIA, which summarily dismissed his appeal on February 17, 1998. Lin failed to seek judicial review of the BIA’s rejection of his appeal, and instead remained unlawfully in the United States. On February 25, 2003, Lin married a lawful permanent resident of this country, and the couple now has two children (both United States citizens): a son born in January 1997 (prior to the IJ’s Decision), and a daughter born in August 2005. B. On March 16, 2007, more than nine years after the BIA’s February 1998 dismissal of his appeal of the IJ Decision, Lin submitted a motion to the BIA to reopen his deportation proceedings, seeking to file a successive application for asylum, withholding of removal, and protection under the CAT (the “Motion to Reopen”). Lin asserted therein that his immigration proceedings should be reopened by the BIA because previously unavailable evidence established a change in country conditions in China—particularly the increased enforcement of family planning policies in the Fujian Province. Lin also asserted he has a well-founded fear of persecution in China because of the births of his two children, in violation of that country’s family planning policies, and that, if he returns to China, he will be subjected to involuntary sterilization. In support of his Motion to Reopen, Lin submitted to the BIA his affidavit; an affidavit from his father, who lives in Fuji-an Province; an amended application for asylum and for withholding of removal, and supporting affidavit; Lin’s and his wife’s birth certificates; their marriage certificate; his wife’s green card; birth certificates of their two children; and family photographs. In addition to the foregoing personal evidence, Lin submitted other materials in support of the Motion to Reopen. By its decision of August 14, 2007, the BIA denied the Motion to Reopen (the “BIA Decision”). In so ruling, the BIA decided that the Motion to Reopen was untimely because it was filed more than ninety days after the BIA’s February 1998 dismissal of Lin’s appeal of the IJ Decision, and that the motion did not otherwise fall under the statutory exception for changed country conditions. The BIA Decision also concluded that Lin had failed to make a prima facie showing of a well-founded fear of persecution if he returned to China, because “he has not shown a reasonable likelihood that he would be subject to more than fines and loss of any government job.” BIA Decision 2. Lin thereafter filed his petition for review with this Court, and we possess jurisdiction pursuant to 8 U.S.C. § 1252. II. We review for abuse of discretion the BIA’s denial of a motion to reopen, but assess de novo the legal rulings made by the BIA in connection therewith. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Barry v. Gonzales, 445 F.3d 741, 744 (4th Cir.2006). We may only reverse the BIA’s denial of a motion to reopen if its ruling was arbitrary, capricious, or contrary to law. Afanwi v. Mukasey, 526 F.3d 788, 794 (4th Cir.2008) (citing Doherty, 502 U.S. at 323-24, 112 S.Ct. 719). A BIA decision on such a motion “is reviewed with extreme deference, given that motions to reopen ‘are disfavored ... [because] every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.’ ” Barry, 445 F.3d at 744-45 (quoting Stewart v. INS, 181 F.3d 587, 595 (4th Cir.1999)). III. A. In this proceeding, Lin seeks review of the BIA Decision denying his Motion to Reopen his application for asylum, withholding of removal, and protection under the CAT. The provisions of § 240(e)(7) of the Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1229a(c)(7), apply to an alien who has been ordered removed from this country and thereafter seeks to reopen his removal proceedings. Generally, such an alien may file a single motion to reopen and that motion must be filed within ninety days of the entry of the final order of removal. See 8 U.S.C. § 1229a(e)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). These statutory time and numerical limitations are inapplicable, however, and no time limit is imposed on a motion to reopen “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). To proceed under the changed-country conditions exception to the statutory time limit, an applicant must present evidence of changed country conditions that “is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1008.2(c)(8) (ii). Furthermore, “[a] motion to reopen proceedings shall state the new facts that -will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). In addition to identifying the previously unavailable evidence, an applicant seeking to utilize the changed-country conditions exception must demonstrate his prima facie eligibility for asylum, that is, he must demonstrate that the new evidence would likely alter the result of his case. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Onyeme v. INS, 146 F.3d 227, 234 (4th Cir.1998). In this situation, we are obliged to reject Lin’s petition for review if the BIA Decision denied his Motion to Reopen on any valid ground. In that respect, the Supreme Court has identified “at least” three grounds on which the BIA is entitled to deny such a motion to reopen: • The applicant’s failure to introduce “previously unavailable, material evidence”; • Failure of the applicant to establish “a prima facie case for the underlying substantive relief sought”; and • A determination by the BIA that even if these two requirements were satisfied, “the movant would not be entitled to the discretionary grant of relief.” See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904 (“There are at least three independent grounds on which the BIA may deny a motion to reopen.”); see also INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (same); Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir.2008) (same); Onyeme, 146 F.3d at 234 (same). B. As heretofore explained, the Motion to Reopen, filed by Lin on March 16, 2007, was untimely under the applicable statute unless it falls under the changed-country conditions exception, where no time limit exists. Lin has acknowledged as much, but maintains that the ninety-day time limit was excused because the changed country conditions in China authorized the relief he sought. The BIA Decision denied the Motion to Reopen by relying on the first two of the three bases identified by the Supreme Court—first, that Lin had failed to establish a change in country conditions because he had only alleged a change in personal conditions, and did not otherwise establish any changed country conditions in China; and, second, that even if a change in country conditions was shown, he had nonetheless failed to make a prima facie showing of a well-founded fear of persecution. 1. On the question of whether the country conditions in China had changed since the earlier proceedings, the BIA Decision first found that to “the extent the motion is based on the changes in personal circumstances”—the birth of Lin’s children in the United States—such personal circumstances are insufficient to support a motion to reopen. BIA Decision 2. Second, the BIA Decision ruled that Lin had not persuasively shown that the country conditions in China had changed, because his evidence established only “a continued implementation of policies rather than a material change in policies.” Id. Predicated thereon, the BIA concluded that Lin had not persuasively shown that his Motion to Reopen fell within an exception to the otherwise applicable ninety-day statutory deadline. On the issue of changed personal circumstances, the BIA and the Attorney General have mischaracterized the Motion to Reopen as relying on such circumstances. In fact, the Motion to Reopen specified to the contrary—specifically seeking to reopen “in light of a change of conditions in China.” J.A. 29. Certainly, the birth of Lin’s children is a significant factor with respect to his Motion to Reopen, because the possibility that he might suffer persecution arises therefrom. And, as we recently recognized, changed personal circumstances arising in the United States—such as the birth of children—do not alone authorize a successive asylum application, and do not otherwise constitute the changed country conditions justifying an exception to the ninety-day statutory deadline. See Zheng v. Holder, 562 F.3d 647 (4th Cir.2009). Notwithstanding these observations, however, the BIA has not ruled that changed personal circumstances—when a change in country conditions otherwise exists—precludes it from granting a motion to reopen. Rather, changes in personal circumstances, if accompanied by sufficient evidence of changed country conditions, may support an otherwise untimely motion to reopen. See Chen v. Mukasey, 255 Fed.Appx. 573, 577-78 (2d Cir.2007) (unpublished) (observing that “whether a petitioner with both changed personal circumstances and changed country conditions ... can rely on those changed country conditions to reopen his case, despite an untimely motion, when the underlying change in personal circumstances postdated his order to depart,” is an open question). On the issue of changed country conditions, Lin’s petition for review finds support in a recent decision of the Eleventh Circuit, Li v. U.S. Attorney General, 488 F.3d 1371 (11th Cir.2007). In Li, the Eleventh Circuit considered evidence strikingly similar to that presented in this proceeding, and concluded that the evidence was material and “clearly satisfied the criteria for a motion to reopen.” 488 F.3d at 1375. Nevertheless, whether Lin’s evidence was sufficient to establish a change in country conditions is a close question. Compare Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008) (drawing “distinction between changes in the substance and in the enforcement of China’s population control policy”), with Li, 488 F.3d 1371. Notably, the BIA does not contend that Lin’s evidence was previously available; and such evidence appears to postdate his initial IJ hearing. If we were to conclude that Lin’s evidence established a change in country conditions, however, his petition for review would yet be unsuccessful if the BIA was correct in ruling that Lin had failed to make a prima facie showing for the relief sought. Because, as explained below, Lin did not make a prima facie showing, we need not decide whether the Motion to Reopen sufficiently established a change in country conditions. 2. As explained above, Lin seeks asylum, withholding of removal, and relief under the CAT, asserting that, if he is returned to China, he will face persecution because he has violated China’s family planning policy by having two children in the United States. In order to be eligible for asylum, Lin must establish refugee status based on either his past persecution in China, or a well-founded fear of persecution there, on a protected ground. See 8 C.F.R. § 1208.13(b). Because Lin does not assert, in support of his Motion to Reopen, that he suffered past persecution in China, he must—in order to be accorded relief—establish a well-founded fear of future persecution on one of the statutorily-enumerated grounds. See Lin-Jian v. Gonzales, 489 F.3d 182, 187 (4th Cir.2007); 8 C.F.R. § 208.13(b). A sterilization is deemed to be persecution, and “a person who has a well founded fear that he or she will be forced to undergo such a procedure ... shall be deemed to have a well founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B). As we have explained, the “well-founded fear of persecution” statutory mandate contains both subjective and objective components. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.2004). To satisfy its subjective component, an applicant must present “candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Id. In order to prevail on the objective component, the applicant is obliged to offer “specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution.” Id. at 187-88. In support of his Motion to Reopen, Lin presented both personal and background evidence. Specifically, Lin’s affidavit reported that friends and family in China had advised that “the government has increased the use of forced abortions and sterilization.” J.A. 50. Lin’s father, who lives in Fujian Province, reported that, in the prior year, family planning laws had been “more strictly carried out in [Chan-gle City, Fujian Province].” Id. at 79. Lin’s father gave two examples in which couples having more than two children were forcibly sterilized, concluding that “[e]xamples like these are very common in my hometown.” Id. Lin’s father also reported that the village committee in Chan-gle City was aware that Lin had two children and that “[i]f he returned to China, he had to undergo necessary Family Planning procedures, such as sterilizations, unless he became a U.S. citizen.” Id. Lin also submitted objective background evidence with his Motion to Reopen, such as Department of State Country Reports on China, in order to bolster his anecdotal evidence and establish an increase in China’s enforcement measures. The BIA Decision rejected Lin’s evidence, ruling that Lin had failed to make a prima facie case of a well-founded fear of persecution. The BIA recognized that “[Lin] reports he is known to have two children,” but nevertheless concluded that “he has not shown a reasonable likelihood that he would be subject to more than fines and loss of any government job.” BIA Decision 2. The BIA then ruled that the fact that “local officials in some areas of China have insisted upon sterilization does not establish that [Lin] has a reasonable fear of being forcibly sterilized, especially if his wife and children remain here.” Id. Put simply, the BIA did not err in concluding that Lin had failed to carry his burden on the well-founded fear of persecution question. The BIA did not reject Lin’s claim of subjective fear of persecution, ruling only that Lin had failed to satisfy the objective component of the statutory mandate. In so ruling, the BIA relied on its own precedential decisions, where it had already evaluated much of the background evidence submitted and relied upon by Lin. See BIA Decision 2 (citing Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); In re J-W-S-, 24 I. & N. Dec. 185 (BIA 2007); In re C-C-, 23 I. & N. Dec. 899 (BIA 2006)); see also Shao v. Mukasey, 546 F.3d 138 (2d Cir.2008) (denying petitioners’ petitions for review in above cases). Importantly, the BIA has observed that enforcement efforts in Fuji-an Province have been “lax,” “uneven,” and subject to “wide variation.” In re J-W-S- 24 I. & N. Dec. at 193-94. Moreover, in ruling on Lin’s claim, the BIA relied on precedent recognizing a “lack of national policy with respect to foreign-born children,” and explaining that violators of that policy are, at worst, subject to fines. BIA Decision 2 (citing Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir.2005)). The BIA, having previously considered much of the evidence submitted and relied on by Lin, was entitled to address such evidence in a summary fashion. See Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (observing BIA must not “expressly parse or refute” each individual argument or pieee of evidence, particularly evidence “which the BIA is asked to consider time and again”). Indeed, the BIA was entitled to find that the personal evidence offered by Lin fails to satisfy his burden of establishing the objective element of the fear of persecution issue. Lin’s and his father’s affidavits provide anecdotal evidence only, and they are otherwise uncorroborated. See Zheng v. Mukasey, 546 F.3d 70, 72 (1st Cir.2008) (“Absent substantiation, self serving affidavits from petitioner and her immediate family are of limited evidentiary value.”). In sum, after carefully assessing this record, we cannot conclude that the BIA’s determination that Lin failed to establish a well-founded fear of persecution was either arbitrary, capricious, or contrary to law. As a result, the BIA did not abuse its discretion in denying Lin’s Motion to Reopen. IV. Pursuant to the foregoing, we deny Lin’s petition for review of the BIA’s denial of his Motion to Reopen. PETITION FOR REVIEW DENIED. . After Lin filed his 1992 application for withholding of deportation, applicable statutory changes replaced the term “deportation” with a procedure designated as "removal.” . The IJ Decision is found at J.A. 7-15. (Citations herein to "J.A. _” refer to the contents of the Joint Appendix filed by the parties in this appeal.) . The supporting materials filed with the Motion to Reopen, in addition to personal evidence spelled out above, included a Policy Statement from China’s Administrative Office of the National Population and Family Planning Committee; a 1999 question and answer sheet issued by the Changle City Family Planning Office, addressing China’s family planning policy; demographer John Aird’s September 2002 testimony before the Congressional-Executive Commission on China; the May 2003 Consular Information Sheet on China; the 2004, 2005, and 2006 Department of State Country Reports on China; a 1997 policy letter issued by China's Department of Public Security; the 2005 and 2006 annual reports of the Congressional-Executive Commission on China; the December 2004 testimony of Harry Wu, Executive Director of the Laogai Research Foundation, before the House of Representatives Committee on International Relations; and two newspaper articles reporting human rights violations arising from enforcement of China’s family planning policy. . The BIA Decision is found at J.A. 162-63. . Lin does not seek review of the BIA's 1998 dismissal of his appeal of the IJ Decision. Indeed, we lack jurisdiction to assess the propriety of that dismissal because Lin failed to timely petition for review. See 8 U.S.C. § 1252(b)(1) (providing that petition for review be filed within thirty days); Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (explaining such thirty-day period is "jurisdictional in nature and must be construed with strict fidelity”). . The changed-country conditions exception provided for in 8 U.S.C. § 1229a(c)(7)(C)(ii), and which, if applicable, results in no time limit being applicable to a motion to reopen, states: There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for [asylum] and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if [the supporting] evidence is material and was not available and would not have been discovered or presented at the previous proceeding. . In his initial proceedings before the IJ, Lin claimed that he suffered past persecution in China as a result of his political resistance and participation in the Tiananmen Square demonstration. The IJ, however, found Lin’s testimony regarding past persecution to be "replete with inconsistencies” and lacking corroboration. IJ Decision 2. Because Lin did not seek judicial review of this adverse credibility finding, it is not now contestable. This finding cannot, however, be used to discredit Lin's testimony on all issues. See Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir. 2007) (explaining that despite adverse credibility finding regarding petitioner’s subjective fear of future persecution, IJ made no credibility findings regarding petitioner’s past persecution, and therefore IJ was "essentially silent” on petitioner’s credibility on that issue). . The burden of proof for withholding of removal is greater than for asylum. Thus if an applicant is ineligible for asylum, he is necessarily ineligible for withholding of removal. See Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004). Because Lin has failed to make a prima facie showing that he is eligible for asylum, he is also unable to establish that he is eligible for withholding of removal. Similarly, Lin’s claim for CAT relief lacks merit because this claim also relies on the probability of forcible sterilization. To be eligible for relief under the CAT, Lin must demonstrate “that it is more likely than not that he ... would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). On this record, we cannot conclude that the BIA erred in concluding that Lin did not meet his burden of proof on the CAT claim.

Plaintiffs-appellants April H. Young, Alonzo Young, Michael Matthews, Rick A. Jennings, and Mary M. Brewer appeal from two judgments of United States District Court for the Southern District of New York (Jones, J.), dismissing their class action complaints against defendant-appellees General Motors Investment Management Corporation (“GM”) and State Street Bank and Trust Company (“State Street”), that alleged breach of fiduciary duty claims under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. 1001 et seq., as time-barred. The district court did not consider defendants’ alternative argument that the action should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. We assume the parties’ familiarity with the facts, procedural background, and specification of issues on appeal. We review a district court’s grant of a motion to, dismiss de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (citation omitted). To survive a motion to dismiss, “the plaintiff must provide the grounds upon which [her] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiffs claim that defendants breached their fiduciary duties in managing the retirement plans of General Motors Company and one of its subsidiaries. Plaintiffs allege in their complaint that defendants offered undiversified single-equity funds that they “knew or should have known ... [were] too risky and volatile [as] investments] for a pension plan ... designed to provide retirement income.” The complaint further provides that defendants’ investment in the single-equity funds was inconsistent with “modern portfolio theoiy, which holds that diversification across and within assets classes is the optimum way to balance risk and return.” Plaintiffs also allege that GM “knew or should have known that fees and expenses for Fidelity Funds were excessive as compared to alternative investments [since] ... similar investment products were available with substantially lower fees and expenses.” Plaintiffs allege that investment in the Fidelity Funds “caused the Plans to lose millions of dollars a year in excess fees.” ERISA section 404(a)(1) requires a fiduciary to “diversify] the investments of the plan so as to minimize the risk of large losses.” 29 U.S.C. § 1104(a)(1)(C). The language of this section contemplates a failure to diversify claim when a plan is undiversified as a whole. Plaintiffs only allege that individual funds within the plan were undiversified. The complaint’s narrow focus on a few individual funds, rather than the plan as whole, is insufficient to state a claim for lack of diversification. Although plaintiffs argue that the failure to diversify is a fact-intensive inquiry that ordinarily cannot be resolved on the pleadings, plaintiffs’ claim cannot survive defendants’ motion to dismiss in the absence of allegations that suggest the fund was undiversified as a whole. ERISA section 404(a)(1) also provides that a fiduciary must act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). Plaintiffs’ excessive fees claim is one of imprudent investment. While ERISA section 404(a) does not specifically address excessive fee claims, we are not without guidance. Cf. Pocchia v. NYNEX Corp., 81 F.3d 275, 278 (2d Cir.1996) (“Because [29 U.S.C. § 1104(a) ] does not enumerate or elaborate in any detail on the duties owed by a fiduciary to a plan beneficiary, the courts have been called upon to define the scope of a fiduciary’s responsibilities.”). We consider the standard for excessive fee claims articulated in the context of the Investment Company Act (“ICA”) useful for reviewing plaintiffs’ claim that excessive fees violated ERISA. See Gartenberg v. Merrill Lynch Asset Mgmt., 694 F.2d 923, 928 (2d Cir.1982) (stating that to establish a valid excessive fees claim, “the adviser-manager must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s-length bargaining”); Krinsk v. Fund Asset Mgmt., Inc., 875 F.2d 404, 409 (2d Cir.1989) (articulating a six-factor test for analyzing whether a mutual fund fee is excessive). Plaintiffs fail to allege that the fees were excessive relative “to the services rendered.” See Gartenberg, 694 F.2d at 928. Plaintiffs also allege no facts concerning other factors relevant to determining whether a fee is excessive under the circumstances. See Krinsk, 875 F.2d at 409. Consequently, plaintiffs do not provide a basis upon which to infer that defendants’ offering of the Fidelity Funds was a breach of their fiduciary duties. Plaintiffs’ other arguments as to the sufficiency of the pleadings are without merit. Because we find that plaintiffs’ complaint fails to state a claim upon which relief can be granted, we do not reach the question of whether this action was time-barred. See United States v. Yousef, 327 F.3d 56, 156 (2d Cir.2003) (‘We are free to affirm an appealed decision on any ground which finds support in the record, regardless of the ground upon which the trial court relied.” (quotation marks omitted)). For the foregoing reasons, the judgment of the district court is AFFIRMED.

MEMORANDUM Rayford Norris appeals the district court’s denial of his motion to suppress (1) evidence seized during a parole search and (2) statements he made at the police station following his arrest and waiver of Miranda rights. After the denial of his suppression motion, Norris entered a conditional guilty plea to being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). We affirm the district court. The district court’s finding that Norris’s car had a crack in the windshield, in violation of California Vehicle Code § 26710, is not clearly erroneous. Thus, we conclude that the officers had reasonable suspicion based on articulated facts that Norris was driving in violation of state law, justifying an investigatory traffic stop. United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Given that officers knew that Norris was on parole and under investigation for possessing stolen property, including guns, the officers were justified in placing Norris in handcuffs during the stop. Alexander v. County of Los Angeles, 64 F.3d 1315, 1320 (9th Cir.1995) (“It is well settled that when an officer reasonably believes force is necessary to protect his own safety or the safety of the public, measures used to restrain individuals, such as stopping them at gunpoint and handcuffing them, are reasonable.”). The officers’ routine questioning of Norris during the stop was not improper, and after Norris’s false statements to the officers, it was reasonable to ask additional questions based on information learned during the course of the stop. United States v. Turvin, 517 F.3d 1097, 1102-04 (9th Cir.2008) (citation omitted); United States v. Richards, 500 F.2d 1025, 1029 (9th Cir.1974) (Terry stop lasting more than an hour did not violate the Fourth Amendment; the scope of inquiry and extended detention was justified by the police officers’ attempts to check the suspects’ unsatisfactory and evasive answers to routine questions). Norris’s initial detention during the traffic stop and subsequent transport to a nearby park was not an unlawful arrest, because it was temporary and lasted no longer than necessary to effectuate the purpose of the stop. United States v. Mendez, 476 F.3d 1077, 1080-81 (9th Cir.2007); Florida v. Royer, 460 U.S. 491, 500, 504-05, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (identifying “safety and security” as reasons that would “justify moving a suspect from one location to another”) (plurality opinion). However, considering the totality of the circumstances, his subsequent transport to his residence and continued detention in the patrol vehicle during the parole search of his house converted his detention into an arrest. Nonetheless, the arrest was lawful and supported by probable cause, because Norris (1) lied to the police officers about his prior arrests, (2) lied about his parole status, and (3) made statements evidencing that he had violated the terms and conditions of his parole by not previously informing his parole officer that he had changed his address. See Sherman v. United States Parole Comm’n, 502 F.3d 869, 873 (9th Cir.2007) (“War-rantless arrests of parole violators are also valid.”). Given the terms of Norris’s parole, the parole search of Norris’s residence was reasonable. See Samson v. California, 547 U.S. 843, 849-56, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); Cal.Penal Code § 3067(a), (b). Officers also had probable cause to believe that Norris lived at the house they searched, because he was observed at the house, Norris initially • told officers he lived at the address, and residents of the house confirmed that Norris lived in the upstairs bedroom. See United States v. Howard, 447 F.3d 1257, 1262 (9th Cir.2006) (citing Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir.2005) (en banc)). To effectively execute the parole search, officers acted reasonably, under the circumstances, in forcing open the locked door and closet in Norris’s bedroom. Given the particular facts of this case, damage to the door jam and closet door was necessary and not so excessive as to violate Norris’s Fourth Amendment rights. See United States v. Becker, 929 F.2d 442, 446 (9th Cir.1991). Norris makes no argument that the federal law enforcement officers conducting the search of Norris’s residence were acting outside of their jurisdictional authority. Additionally, the district court did not clearly err in finding that Riverside Police officers, participating as part of a multi-jurisdictional, multi-agency Parole and Corrections Team, were acting within their authority under a countywide mutual aid agreement. The evidence seized during the lawful parole search of Norris’s residence and Norris’s subsequent admission at the police station (after his arrest and waiver of Miranda rights), that he owned the ammunition found in his closet, do not require suppression. Such evidence was not the product of illegal governmental activity. United States v. Pulliam, 405 F.3d 782, 786 (9th Cir.2005). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Although law enforcement officers did not need reasonable suspicion to effect the parole search, Samson, 547 U.S. at 857, 126 S.Ct. 2193, we conclude that the parole search in this case was not a suspicionless search.

MEMORANDUM Substantial evidence supports the Immigration Judge’s determination that Monzon-Ortega and her son, Mejia-Monzon, did not establish past persecution. Although Monzon-Ortega suffered some economic detriment because of the guerillas’ extortion scheme, “mere economic disadvantage alone does not rise to the level of persecution.” Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir.2004); see also Baballah v. Ashcroft, 367 F.3d 1067, 1075-76 (9th Cir.2004); Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969). Monzon-Ortega was not physically harmed and was able, despite the guerillas, to earn a living. Likewise, substantial evidence supports the IJ’s finding that Mejia-Monzon did not establish past persecution. Threats alone, to be a basis for asylum, must be “so menacing as to cause significant actual ‘suffering or harm.’ ” Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000). Guerrillas attempted to recruit MejiaMonzon two times and during one of those efforts, some guerillas called him “cowardly” and threatened to kidnap him at some point in the future. These threats were not menacing enough to establish past persecution. Because neither Monzon-Ortega nor Mejia-Monzon established past persecution, they must demonstrate a “subjectively genuine” and “objectively reasonable” well-founded fear of future persecution “by a showing of ‘a good reason to fear future persecution’ based on ‘credible, direct, and specific evidence in the record of facts....’” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000)). Monzon- Ortega and Mejia-Monzon’s testimony-satisfied the subjective component of this determination. Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1077 (9th Cir.2004). Substantial evidence supports the IJ’s determination that MonzonOrtega failed to establish an “objectively reasonable” fear of persecution because of the 1995 peace treaty. Likewise, there is no specific evidence that the guerillas will seek out Mejia-Monzon based on his refusal to join them in 1995, especially now that the civil war fought by the guerillas is over. Monzon-Ortega’s and Mejia-Monzon’s failure to meet the more lenient requirements for asylum forecloses withholding of removal from Guatemala. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Similarly, they have failed to establish a clear probability that they will be tortured if they return to Guatemala. See 8 C.F.R. § 208.16(c)(2). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

OPINION OF THE COURT VAN ANTWERPEN, Circuit Judge. Blake McSpadden appeals the District Court’s April 2, 2008, order dismissing his 42 U.S.C. § 1983 case under Federal Rule of Civil Procedure 12(b)(6) on the grounds that Appellees were entitled to qualified immunity. McSpadden alleges that Appel-lees, employees of Pennsylvania’s Department of Corrections, violated his eonstitu- tional rights by improperly computing his sentence in a manner which resulted in his being wrongfully incarcerated for over 1,050 days. Because of the widely noted confusion in Pennsylvania law with respect to the computation of sentences involving the revocation of probation and parole, this Court affirms the decision of the District Court. I. On March 29, 2007, Appellant Blake MeSpadden, a former inmate in the Pennsylvania correctional system, filed suit under 42 U.S.C. § 1988 against two Pennsylvania Department of Corrections (“DOC”) officials: William J. Wolfe, who was then superintendent of the State Correctional Institution (“SCI”) at Albion, and Patricia Thompson, a records specialist at the same institution. Appellant contends that Ap-pellees wrongfully and deliberately caused him to be incarcerated for over 1,050 days after the expiration of his sentence, in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. On December 28, 1992, Judge Arnold New of the Pennsylvania Court of Common Pleas of Philadelphia County sentenced Appellant to a term of four to twenty-three months’ imprisonment, to be followed by one year of probation; he was then incarcerated from December 23, 1992, until April 23, 1993, when he was paroled. After violating the terms of his parole, Appellant was sentenced to an inpatient drug treatment program and was incarcerated from October 8, 1993, until March 4, 1994, while awaiting placement in such a program. After completing only one out of the scheduled nine months of treatment, Appellant was again found in violation of his parole, resulting in him being incarcerated from May 28, 1994, until August, 2, 1995. On September 21, 1995, Appellant was found to be in violation of his probation, and Judge New re-sentenced him to 11.5 to 23 months’ incarceration followed by one year of probation. Appellant was subsequently incarcerated from September 21, 1995, to September 6, 1996. On March 16, 1997, Appellant was arrested, and, on April 10, 1997, Judge New once again found him in violation of his probation and resentenced him to three to ten years’ imprisonment. On July 22, 1998, Judge New issued an amended order giving Appellant credit for time served during the periods of December 23, 1992, to April 23, 1993; October 8, 1993, to March 4, 1994; May 28, 1994, to August 2, 1995; September 21, 1995, to September 6, 1996; and March 16, 1997, to April 10, 1997. Pursuant to this order, officials at SCI-Chester, where Appellant was incarcerated in 1998, prepared a Sentence Status Change Report reflecting an “additional 1,050 Days credit not previously granted.” Appellant was later transferred to SCI-Albion, where he alleges that Appellee Wolfe “utterly] disregarded both the trial court’s July 22, 1998 amended order and [the] Sentence Status Change Report” and “refused to apply the 1,050 days as credit towards [his] sentence.” On July 31, 2003, Appellant submitted an “Inmate’s Request to Staff Member” form to Albion’s records room supervisor; the request questioned the calculation of his sentence. In response, Appellee Thompson, SCI-Albion’s records specialist, informed Appellant that he could not receive credit on his new sentence under the Superior Court of Pennsylvania’s ruling in Commonwealth v. Bowser, 783 A.2d 348 (Pa.Super.Ct.2001). Thompson also noted that the “matter is now in the hands of [the DOC’s general counsel’s] offiee[.] ... [Unfortunately we cannot release you until this matter is resolved and your sentence structure is corrected.” On August 4, 2003, Appellee Wolfe wrote to Judge New for assistance in resolving the issue with Appellant’s sentence; Judge New failed to respond. In a second letter, dated October 28, 2003, Ap-pellee Wolfe informed Judge New that: Documents received by the [DOC] indicate that on April 10,1997 Your Honor sentenced the inmate to 3 to 10 years ... for a revocation of a consecutive probation. Credit is being ordered from 12/23/92 to 4/23/93, 10/08/93 to 03/04/94, 05/28/94 to 08/02/95, 09/21/95 to 09/06/96 and 03/16/97 to 04/10/97. The time from 12/23/92 to 04/23/93, 10/08/93 to 03/04/94, 05/28/94 to 08/02/95 and 9/21/95 to 09/06/96 was previously credited towards the original sentence of 4 months to 23 months (with a consecutive 1 years [sic] probation). We have not credited this inmate with this credit. The case at hand does not meet the criteria as stated in [Williams ] as the combination of the ... time to which he was previously sentenced (4 months to 23 months) and the revocation sentence (3 years to 10 years) does not equal the maximum amount of time to which he can be sentenced. Credit has been denied in accordance with [Bowser], A letter was sent to your Honor on August 4, 2003 requesting an adjustment on Mr. McSpadden’s commitment credit as stated above. The inmate is now back as a Parole Violator and we have sentenced the inmate only awarding him credit from 03/16/97 to 04/10/97, please notify us if your Honor wants the inmate to have the additional credit as stated above. In a letter dated November 3, 2003, Judge New informed Appellees that “my sentence of April 10, 1997 of 3 years to 10 years was with all appropriate credit for time served/[ ] I do not want any additional credit to accrue to [Appellant].” Appellees claim that, because this letter did not reference the July 22, 1998, amended order, they construed it to mean that Appellant should be granted credit only for time served from March 16, 1997, through April 10, 1997, and not any other “additional credit.” On September 3, 2004, Appellant sought relief in the Commonwealth Court of Pennsylvania, requesting that the court order the DOC to award him credit for all periods of incarceration specified in the July 22, 1998, order. In an opinion dated March 17, 2005, the Commonwealth Court held that, under McCray v. Pa. Dep’t of Corr. (McCray I), 807 A.2d 938 (Pa. Commw.Ct.2002) , Appellant was “entitled to receive credit for all time spent in custody under a prior sentence when he is later reprosecuted and resentenced for the same offense.” McSpadden v. Dep’t of Corr. (McSpadden I), 870 A.2d 975, 982 (Pa. Commw.Ct.2005). The DOC appealed this decision to the Supreme Court of Pennsylvania, which remanded the case to the Commonwealth Court for reconsideration in accordance with McCray v. Pa. Dep’t of Corr. (McCray II), 582 Pa. 440, 872 A.2d 1127 (2005), which held that the DOC did not have a clear duty to award a prisoner credit for time served when a trial court has not so directed. On November 4, 2005, after considering the Pennsylvania Supreme Court’s decision in McCray, the Commonwealth Court held that that case was distinguishable from Appellant’s because, in Appellant’s case, Judge New awarded [him] specific credit for time served and listed the dates for which credit was awarded. In [McCray II], [the Pennsylvania] Supreme Court ... determined that DOC is “an executive branch agency that is charged with faithfully implementing the sentences imposed by the courts. As part of the executive branch, the [DOC] lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions.” [McCray II], 872 A.2d at 1133. Here, DOC did not faithfully implement the sentence imposed by the trial court. Instead, DOC requested clarification of the sentence. The trial court responded that the sentence was with all appropriate time served. DOC took that to mean that [Appellant] was not entitled to the credit the trial court had awarded him. This Court does not believe that DOC has the authority to delete the proviso of the specific time served contained in the trial court’s [July 22,1998,] sentence. McSpadden v. Dep’t of Corr. (McSpadden II), 886 A.2d 321, 328 (Pa. Commw.Ct.2005). Pursuant to this reasoning, the court again directed the DOC to credit Appellant with all previous time served. Id. at 329. Appellant was released from custody and, on March 29, 2007, filed the instant § 1983 action. Appellees’ motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) was granted by the District Court, which decided that Appellees were entitled to qualified immunity. The current appeal followed. II. The District Court had jurisdiction over Appellant’s 42 U.S.C. § 1983 claim pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has appellate jurisdiction under 28 U.S.C. § 1291. Our review of both a dismissal under Federal Rule of Civil Procedure 12(b)(6) and a grant of qualified immunity is plenary. Gibson v. Superintendent of NJ Dep’t of Law and Public Safety, 411 F.3d 427, 433 (3d Cir.2005) (citing Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir.2001)). In reviewing the dismissal of a claim under Rule 12(b)(6), we must accept the allegations of the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiff; the same approach applies when qualified immunity is asserted in a Rule 12(b)(6) motion. Leveto, 258 F.3d at 161. III. The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The defense “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Immunity, however, “generally is available only to officials performing discretionary functions,” as opposed to those performing “ministerial” tasks. Harlow, 457 U.S. at 816, 102 S.Ct. 2727. This Court has recognized that “the definition of a discretionary function is broad.” Eddy v. Virgin Islands Water and Power Auth., 256 F.3d 204, 210-11 (3d Cir.2001). According to the Supreme Court, a “law that fails to specify the precise action that the official must take in each instance creates only discretionary authority; and that authority remains dis cretionary however egregiously it is abused.” Davis v. Scherer, 468 U.S. 183, 196 n. 14, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Appellant argues that, because Pennsylvania law requires that a prison official follow the sentencing order of a common pleas court, Appellees’ calculation of Appellant’s proper term of imprisonment was a ministerial task for which they are not entitled to qualified immunity. In making this argument, Appellant cites Pennsylvania caselaw holding that “[i]t is beyond cavil that the Department has a duty to credit ... inmates[ ] for all statutorily mandated periods of incarceration.” McCray II, 872 A.2d at 1133. Appellant also notes that he obtained relief from the Commonwealth Court by petitioning for a writ of mandamus, a form of relief “available only to compel the performance of a ministerial act or mandatory duty where there exists no other adequate or appropriate remedy.” McCray II, 872 A.2d at 1131. While Pennsylvania courts may, for mandamus purposes, consider DOC officials’ duty to implement accurately a trial court’s sentence “ministerial” or “mandatory,” the fact remains that Pennsylvania law regarding computation of sentences involving revocation of probation and parole has been described as “varied and occasionally mystifying.” 16B West’s Pa. Prac., Crim. Prac. § 31:31 (2008). We do not dispute the fact that prison officials are bound to implement the sentence imposed by the court but we also recognize that, under Pennsylvania law, the computation of sentences involving the revocation of probation and parole is far from straightforward. See, e.g., Commonwealth v. Ya-kell, 876 A.2d 1040, 1043 (Pa.Super.Ct.2005) (“The practical applications of Williams and Bowser are not necessarily clear in the best of circumstances.”). In addition to the already vexing case law, Appellees had to contend with the ambiguity in Judge New’s November 3, 2003, letter, which, in making no reference to the July 22, 1998, order and stating that the April 10, 1997, order was “with all appropriate credit,” presented Appellees with seemingly conflicting directives. This Court has noted that “officials must make discretionary determinations even in the course of applying facially clear provisions. [When a] decision ... require[s] such discretionary determinations, including legal analysis ..., it cannot be characterized as a ministerial act outside the scope of the qualified immunity doctrine.” Larsen v. Senate of Commonwealth of Pa., 154 F.3d 82, 87 n. 5 (3d Cir.1998). In the case at hand, Appellees were forced to apply confused caselaw to a confusing factual situation—when presented with a sentence that, in their opinion, violated Bowser, they twice wrote for clarification to the sentencing judge, who, in emphasizing that the April 10, 1997, sentence was “with all appropriate credit for time served,” led them to believe that the credit specified in the amended order had already been applied. In light of the complexity of Pennsylvania sentencing case law, and the fact that Appellees were confronted with Judge New’s ambiguous letter, computation of Appellant’s sentence constituted a discretionary function for which qualified immunity may be available. See Larsen, 154 F.3d at 87 n. 5; Davis, 468 U.S. at 196 n. 14, 104 S.Ct. 3012 (1984). We now proceed to determine whether Appellant’s alleged right to a proper sentencing computation was clearly established at the time of the alleged violation; if not, then Appellees are entitled to qualified immunity. See Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that a federal court deciding qualified immunity issues has dis cretion to decide a case based solely on whether an alleged right was “clearly established”). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Because officials of reasonable competence necessarily could not disagree with the proper application of a law that identifies “the precise action” that they must take in a given situation, this analysis relies on many of the same factors that informed our ministerial-discretionary analysis. Compare Davis, 468 U.S. at 196 n. 14, 104 S.Ct. 3012 (a “law that fails to specify the precise action that the official must take in each instance creates only discretionary authority” (emphasis added)); with Malley, 475 U.S. at 341, 106 S.Ct. 1092 (“if [officials] of reasonable competence could disagree on [an] issue, immunity should be recognized”). Given the circumstances that were confronting Appellees, we cannot say that it should have been clear to them that their conduct was unlawful. The Pennsylvania Superior Court itself, in addressing the law confronting Appellees at the time of their alleged violation, noted that “[t]he practical applications of Williams and Bowser are not necessarily clear in the best of circumstances.” Yakell, 876 A.2d at 1043; see also id. at 1044 (contemplating whether the trial court was “simply caught in the admittedly confusing practical applications of Bowser and Williams ”); see also 16B West’s Pa. Prae., Crim. Prac. § 31:31 (2008) (describing computation of sentences involving revocation of probation and parole as “varied and occasionally mystifying”). The situation was further complicated by Judge New’s response to Appellees’ request that he clarify what they, under Bowser, determined to be an illegal sentence. Thus, because “it would not have been clear to a reasonable [official] what the law required under the facts alleged [by Appellant], [Appellees are] entitled to qualified immunity.” Kopec v. Tate, 361 F.3d 772, 776 (3d Cir.2004). IV. For the reasons stated above, we affirm the District Court’s grant of Appellees’ Motion to Dismiss on the basis of qualified immunity. . "When a prisoner is released on parole and then later incarcerated as a convicted parole violator, the remainder of his original sentence is reimposed. Perhaps for this reason, the Legislature has determined that a convicted parole violator must serve the balance of his original term before the new term of imprisonment commences. See 61 P.S. § 331.21a(a). On the other hand, when a probationer commits an offense for which probation is revoked, a new sentence is imposed in place of the original sentence of probation.” Jackson v. Vaughn, 565 Pa. 601, 777 A.2d 436, 441 n. 4 (2001) (Saylor, J., dissenting). . On August 22, 1994, the defendant in Bow-ser was sentenced to a six to twenty-three month period of incarceration and a three-year period of probation. 783 A.2d at 349. Because he had already been incarcerated for eleven months and nineteen days on the day the sentence was announced, he was immediately paroled. Defendant’s parole period ended, after which he was convicted of a second offense and was accordingly resentenced to one to three years’ incarceration. In rejecting the defendant’s argument that the eleven months and nineteen days he had already served should be credited to the new one—to three—year sentence, the Superior Court held that, as defendant "received credit for the time in jail on the first component of the sentence, [he] did not spend the last half of the 23-month incarcerative portion of his sentence in jail. Probation began after that credit. Credit has been given once; had no credit been given, he would not have been paroled in August 1994, and his probation would not have begun for some months thereafter. We see no reason to award duplicate credit in the second component of the sentence.” Id. at 350. In doing so, the Bowser court rejected defendant's contention that Commonwealth v. Williams, 443 Pa.Super. 479, 662 A.2d 658 (1995), required a different result: In Williams, this Court ordered the appellant's sentence (following the revocation of probation) be credited with previous time spent incarcerated, because the revocation sentence constituted the maximum time the appellant could serve for the crime; to avoid it being an illegal sentence, the appellant had to receive credit for time previously served for the same crime. Williams does not control our case. Appellant’s revocation sentence (one to three years), combined with the time to which he has previously been sentenced (six to 23 months), does not equal the maximum amount of time to which he can be sentenced (seven years). Accordingly, appellant's sentence is not illegal and Williams does not apply. Id.; but see id. at 351-52 (Olszewski, J. dissenting) (opining that Williams was "directly on point” and that Bowser should be credited for the entire period he had already served). . Judge New's emphasis. . On May 1, 1996, McCray was arrested and incarcerated and, on November 5, 1997, he entered a plea agreement and was sentenced to 11.5 to 23 months’ incarceration and a concurrent probation term of ten years, with credit for time already served. McCray I, 807 A.2d at 940. After considering his petition for reconsideration of sentence, the trial court vacated that sentence and, on January 7, 1998, imposed the following sentence: " ‘Time in to 23 months at the Phila. County Prison. Credit for time served. Immediate parole is Granted. Plus (10) years Probation to run concurrent to be supervised under the State Parole Board.' ” Id. (quoting sentencing order) (emphasis added by McCray I court). McCray's probation was revoked and the trial court sentenced him to two to four years incarceration to run concurrently to his original charges, to be followed by five years of probation. Id. McCray requested the DOC to credit the time he served under the "time in to 23 months" sentence against the sentence imposed after the probation revocation. Id. After they refused to do so, McCray petitioned the Commonwealth Court, alleging that the DOC calculated his sentence incorrectly by not crediting him for the time served from May 1, 1996, to January 7, 1998, toward his new sentence of 2-4 years. Id. The court expressly agreed with the Bowser dissent and held that, “[b]ecause McCray served the entire 23 months for the underlying offense and did not receive any credit for that time served, he should have received credit for the 23 months served against his sentence of 2-4 years.” Id. at 942. . McCray II, in basing its decision to reverse the Commonwealth Court on grounds relating to Pennsylvania’s writ of mandamus mechanism, did not clarify the state of Pennsylvania sentencing law. The decision to reverse was partially grounded in the fact that, before a writ of mandamus could issue, McCray had to show a "clear right to relief" and, in light of the potentially conflicting Williams and Bow-ser decisions, he could not do so. McCray II, 872 A.2d at 1132.

PER CURIAM: Marvin Fitzgerald Walker seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008) motion. The order is not appeal-able unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dis-positive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Walker has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED.

HOFFMAN. District Judge. This cause comes up on objections filed to the official survey on the part of the United States and of certain parties who have intervened for their interests. The principal point in controversy is the location of the northern boundary or dividing line between the rancho of the Peraltas and that of Castro. The official survey has been made in conformity with an amended decree of this court. This amendment was allowed by the court on the supposition that the error to be corrected was merely clerical, and that the decree, as amended, expressed the intention of the court when the original decree was framed. The cause having been originally tried in this court by the late judge of the Southern district, I was, .at the time of allowing the amendment, unacquainted with the merits, and assumed, perhaps too hastily, that the alleged error was merely accidental. It is now objected that the court had no power to make the amendment, and that, the decree having been affirmed in the supreme court, it is res adjudicata, and the law of the case, whatever be its correctness. I shall consider the question thus raised precisely as if no amendment had been made, and shall inquire whether, by the just construction and legal effect of the decree of the supreme court affirming that of the district court, I am precluded from examining into the true location of the northern boundary in question, and establishing the same as the proofs taken in this proceeding under the act of 1860 [12 Stat. 22], shall require. It is not pretended that this court has any power to reverse or annul its own final decrees for errors of fact or law after the term at which they were rendered, unless for clerical mistakes, or that any change or modification can be made which will vary or affect it in any material thing. Ex parte Sibbald, 12 Pet. [37 U. S.] 491; [Cameron v. M’Roberts] 3 Wheat. [16 U. S.] 591; [Bank of Kentucky v. Wistar] 3 Pet. [2S U. S.] 431. Still less has it any such power over the final decrees of the supreme court,—its duty being to execute the mandate,—and this though it should be discovered that neither it nor the supreme court had jurisdiction over the cause. [Skillern v. May] 6 Cranch [10 U. S.] 267; [Washington Bridge Co. v. Stewart] 3 How. [44 U. S.] 424; Id. 611. It is urged, however, that the proceedings in the cause, and the opinion of the supreme court, when considered in connection with the mandate, show that it was not the intention of the supreme court to determine the question now raised with respect to the location of the northern boundary; and further, it is contended that, by the act of 1860, all questions of location and boundary are referred to this court to be determined in a new proceeding between new parties and on additional evidence. To arrive at a just appreciation of tiie true construction and effect of the decree and mandate of the supreme court, a brief review of the proceedings in the cause and the questions presented for decision is necessary. The claimants derived title under an order made by Governor Sola, in August, 1820, directing Luis Peralta to be put in possession of a tract of land extending from the creek of San Leandro to a small hill adjoining the sea beach, at the distance of four or five leagues. This was accordingly done, and the return of the officer, Martinez, describing the boundaries of the tract of which he gave possession, is produced. On the thirtieth of August of the same year, the governor, on the reclamation of the Mission of San Francisco, directed a portion of the lands assigned to Peralta to be withdrawn, and on the sixteenth of September, Martinez established new boundaries for the grantee, fixing them at a rivulet which runs down from the mountains to the beach where there is a grove of willows, and about a league and a half from the cerrito of San Antonio, in the direction of San Leandro (i. e. to the south). On the thirtieth of August, 1823, Governor Arguello made a decree, directing that “the land which, by the order of his predecessor, had been taken from Peralta after it had been granted to him and possession had been given, should lie returned to him,” and on the fourth of December, 1S24, Martinez returns that in compliance with the order “the land which had been taken from Peralta has been returned to him, and he has been put in possession of the place called ‘Cerritos de San Antonio,’ and the rivulet which crosses the place to the coast, where is a rock looking to the north.” On the eleventh of February, 1S44, Ignacio Peralta, one of the heirs of Luis Peralta, petitioned the governor for a new title to the land, in consequence of the original title papers having been lost. This petition was accompanied by a diseño, or map. On the thirteenth of February, 1844, Jimeno reports that by the documents which Don Ignacio Peralta presents he shows that there was granted to his father the tract of land called “San Antonio,” agreeably to the extent shown by the map which he presents, and that, as it is twenty-two years since the government of that period made the grant and ordered possession to be given, the interested parties having occupied the land since the year 1S19, he believes there is no objection whatever to granting him a new title. On the same day the governor, Mieheltorena, ordered the title to be issued. The usual decree of concession was accordingly drawn up. It declares Pe-ralta owner in fee of the land bounded “on the southeast by the creek of San Leandro, on the northwest by the creek of the Cerritos de San Antonio, on the southwest by the sea, and on the northeast by the top of the range of hills.” This document contains an order that “this expediente be transmitted to the departmental assembly for their approval,” but nothing further appears to have been done, no formal title seems to have been issued, nor is the decree of concession signed by Mieheltorena. On these documents it was contended before the board that: 1st. The officers were without power to make the grant, and 2d, that the northern boundary should be fixed at the creek of San Antonio, being the reduced limits fixed by Martinez when Peralta was deprived of a part of his land on the reclamation of the mission. A majority of the board confirmed the claim within these limits. A dissenting opinion, however, was delivered by Mr. Commissioner Thompson, in which the right of the claimant was maintained to the whole tract originally assigned and subsequently returned to him by order of Arguello, and the boundaries of which are described in the report of Martinez, and in the decree of concession by Mieheltorena, and delineated on the map which accompanied Peralta’s petition to the latter. In this opinion the location of the northern boundary is discussed; and the attempt made to identify the rivulet issuing from the “mountain range and running along the foot of the cerrito of San Antonio, where, at the entrance of a little gulch there is a rock elevating itself in the form of a monument, looking towards the north,” as described by Martinez, with the San Antonio creek, is pronounced incompatible with the proofs, which unmistakably establish the identity of the two Cer-ritos of the brook which runs at the base of the larger one, and the rock at the entrance of the little cañada. The testimony of Berreyesa, who states that the southern and not the northern base of the cerrito of San Antonio was established by Martinez as a boundary, is referred to as constituting the only discrepancy in the evidence, and his statement is rejected “as directly in conflict with the return of the officer who gave the possession, and the other testimony which established the rivulet running at the base of the mountain as the boundary.” The cause having been appealed to the district court by the claimants, it was again urged by the United States that the grant was invalid, and that the claim should be rejected in toto. But the court affirmed the validity of the claim presented in the petition to the whole extent of its bounds. In the decree the northern boundary is described as follows: “A line commencing on the Bay of San Francisco, at a point where there are close to the bay the two cerritos as described in the first possession given by Martinez to Luis Peralta on the 16th August, 1820, running from the said bay east-wardly along by the southern base of the cer-rito of San Antonio up a ravine, at the head of which is a large rock, or monument, looking to the north, described in the evidence as the ‘Sugar Loaf Rock’; thence by the southern base of said rock to the comb or crest of the Coast Range of Mountains.” It does not appear for what reason the court thus described the northern boundary, nor is it easy, without doing some violence to the terms of the description, to adopt the Codornices creek as the boundary. The line is directed to be run from the bay “eastwardly along by the southern base of the cerrito of San Antonio, up a ravine, at the head of which there is a large rock, described in the evidence as ‘Sugar Loaf Rock,’ ” etc. But we have seen that the boundary which, according to Martinez’ report, divided and separated' the land, was a “rivulet,” and not a “ravine;” nor is any ravine found near either the northern base or the southern base of the cerrito, until the whole width of the plain is crossed, and the base of the mountains reached. If, then, the. Codornices be taken to be the boundary intended, we must attribute to the court a singular inaccuracy of language, and this when the report of Martinez, which was evidently intended to be adopted, pointedly distinguishes between the arroyito or rivulet designated as a boundary, and the cañadita or little gulch, at the mouth or entrance of which was the peñasco, or monumental rock. Again, the decree speaks of a ravine, “at the head of which is a large rock, described in the evidence as the ‘Sugar Loaf Rock,’ ” etc. But the sugar loaf rock described in the evidence at that time before the court was the remarkable rock near the Cerritos creek; and this is situated not at the head but “at the entrance of a ravine,” and that ravine, or rather thp brook which issues from it, is at the northern, and not the southern, base of the cerrito. If, then, we consider that the rock referred to in the decree is the same as that mentioned by Martinez in his report, and which had, up to that time, been alone spoken of by the witnesses, it would be impossible to adopt the Codornices as a boundary, for the rock is not near that creek, and no attempt had then, or has since been, made to show that at the mouth of the gulch from which it issues, any rock exists at all corresponding with the description given by Martinez. On the appeal from this decree, taken by the United States, it was again urged—1st, that the whole claim was invalid; and 2d, that the land did not extend beyond San Antonio creek. To these points the attention of the supreme court was exclusively directed. No question seems to have been raised as to whether the brook mentioned by Martinez as flowing at the ease of the cerrito of San Antonio flowed at its northern or southern base. The identity of the two cerritos being satisfactorily established, the attention of the court was not called to the fact that there might still be room for controversy as to the particular rivulet mentioned by Martinez. The decree of the district court was, therefore, affirmed. But the opinion of the court discloses that in settling the northern boundary the supreme ■court intended to adopt precisely the line described by Martinez in his first report; again, in his redelivery of possession under Arguello’s order, and again in the title of confirmation given by Micheltorena. All these documents are expressly referred to by the supreme court, and the description of the line given by Martinez in his first report is even copied into the opinion totidem ver-bis. Indeed, any other interpretation of their decree would be absurd; for, the validity of the grant by Sola, and the subsequent restoration of the land by Arguello, being recognized, the only tract to which that .grant could have referred was the tract of which the possession had been given by Martinez, and which is described in his report. If, then, on further examination, it appears that the land described in the decree affirmed by the supreme court is not the same as that whereof possession was given by Martinez, it has appeared to me to .be the duty of this court, under the act of 1S60, to conform to the obvious intention of the supreme court, rather than to the mere letter of its mandate, and to cause to be surveyed to the claimants the tract of which Martinez gave possession, and which he describes in his report. I therefore think myself at liberty to inquire, not merely whether the official survey is in accordance with the terms of the decree of this court, affirmed by the supreme court, but whether it is in accordance with the possession given by Martinez, upon which the judgments of both courts were founded. Had the two reports of Martinez, the concession by Micheltorena, and the diseño presented by Peralta, been expressly referred to in the final decree for a further description of the land, there would then (if the decree describes a different tract from that described in those documents) have been such a repugnance on the face of the decree as would clearly have authorized the location of the land as required by the title papers, rather than by the description in the decree. But the opinion of the supreme court shows as clearly as if it had been so stated in the decree that the land intended to be confirmed was that described in the title papers; and the decree of the district court is affirmed and adopted, because it was supposed to describe the same land, no suggestion to the contrary appearing to have been made or considered. It is to be observed, in addition, that the objection to the official survey is made on the part of persons claiming title under Castro, the grantee of the rancho to the north of that of the Peraltas. That rancho is bounded on the south by the rancho of San Antonio. But even if, by reason of the point having become res ad-judieata, the northern boundary of San Antonio should be fixed at the creek to the south of the cerrito, it would not follow that the same line would form the southern boundary of the Castro rancho. As between the owners of the latter rancho and the United States, it would still be open to show what were the true boundaries of the San Antonio; and, if the northern boundary of the latter should be found to be the northern base of the cerrito, that boundary would be the southern limit of the Castro rancho. Moreover, the decree in the Castro case, as well as the title papers, call for the “Cerrito de San Antonio” as its southern boundary. If, then, by reason of the acquiescence of the Peraltas in the decree of the district court, which fixed their boundary at a brook about half a mile south of •the cerrito, they should be restricted to that line, the only effect would be to leave between the two ranchos a strip of vacant land, which the United States do not claim should be reserved. Unless, therefore, the line described in the decree in the case at bar should be found to be the true line of division between the ranchos, and such as the court would adopt in the Castro case, were that now under consideration, I am unable to perceive how the parties intervening in this cause can be- benefited by a decision adopting the line contended for by them, not because it is the true line, but because the decree adopting it has become final. I proceed to consider the question of location on its merits. The identity of the cer-rito of San Antonio is not disputed. It is claimed that the rivulet mentioned by Martinez is the Codornices creek. This creek rises in the mountains, and flows in a nearly westerly direction toward the bay, not far from parallel with the Cerritos creek, and at the distance from it of about a mile, to the south. But this creek in several respects fails to answer the description given by Martinez. The creek described by him flowed at the base of the larger cerrito. The Codornices does not run into the bay, although its channel from the hills and to a considerable distance across the plain is clearly marked. But shortly after crossing the main road which traverses the plain from south to north, its channel disappears, and though, perhaps, as testified by the witnesses, its course at very high water may be traced by a superficial deposit of gravel, etc., there is nothing which could be called a channel, or which in ordinary seasons would reveal the existence of a brook or the bed of a brook. It is contended that its waters have been in some degree diverted by a small ditch recently dug; but this suggestion seems conclusively met by the diseño presented by Peralta to Micheltorena in 1S44. On this diseño a creek is delineated running from the mountains, and sinking a short distance to the west of the road, precisely as it is represented . on the recent and accurate topographical map of Stratton. The Codornices, moreover, if continued to the bay in the same direction, would pass by the cerrito at the distance of more than a quarter of a mile from its southern base, and when we remember that the possession of Martinez -was given on the 16th of August, in the middle of the dry season, it is almost impossible to suppose that he could have intended to describe that brook as a “stream flowing at the base of the cerrito.” On ascending the Codornices, we find no rock situated “at the entrance, or mouth of the little gulch.” The high conical rock which it has been sought to identify with that spoken of by Martinez, is situated far up on the mountain. It is at a considerable distance to the north of the main branch of the creek, and to an observer approaching it from the west or southwest it seems to be nearly on the crest of the ridge. But by no one could it be described as "situated in the mouth of a little gulch, or cañadita.” But the diseño of Peralta decisively settles any doubt which might be felt as to the creek referred to by Martinez. This diseño was drawn to indicate to Micheltorena the tract which had been granted to the father of the petitioner, and for which he asked a new title. With this diseño before him, and perhaps after referring to the Castro expediente, which was then in the archives, Jimeno reports: “By the documents which Don Ignacio Peralta presents, he accredits that to his father was granted a tract of land called ‘San Antonio,’ agreeably to the extent shown by the diseño which he presents.” On this diseño the cerrito of San Antonio is plainly delineated, and to the north of it, flowing from the hills into an estero of the bay, is a creek, on the north side of which is written “Terreno de los Castros,” and on the south “Terreno de los Peraltas,” thus “dividing and separating the land.” That this creek is the Cerritos creek, cannot be doubted. Its course and position with respect to the cerrito, exactly correspond, and it falls into an estero which puts up from the bay at right angles to the shore, or towards the east. At the point where the creek issues from the mountains, is a small triangular object, which seems almost certainly to have been intended to represent the rock spoken of by Martinez, and in fact there is found at the entrance of the little gulch in the hills from which the creek issues, ¿nd in a position corresponding to that of the object on the dise-ño, a very remarkable rock, of which photographic drawings have been exhibited, and which is identified by some of the witnesses who assisted at the act of possession, as the rock referred to by Martinez. At the request of all the parties, and accompanied by their counsel, I have visited the rancho, in order to learn by personal observation the actual features of the country. I confess myself unable to see how any one with the diseño before him, could for a moment doubt what creek was there intended to be delineated as the northern boundary of the tract. Much testimony has been taken to show that the Cerritos creek did not, until recently, extend to the estero by any clearly defined channel. That on the present road, which runs much nearer the bay than that used by the old inhabitants of the country, the creek may be crossed in the dry season without attracting notice, is quite possible. But my own observation has shown me, and the photograph (Exhibit Watkins, No. 8) proves, that to one standing on the hills, its course is distinctly marked across the whole plain, and nearly, if not quite, to tlie point •where it runs into the marsh and estero. The diseño, however, removes all doubt on the subject, for it demonstrates that whether or not its channel was discernible in 1850 and 1851, when the witnesses testify to crossing it with hay-wagons, etc., it was in 1814 known to flow in a well-defined channel from the mountains to the marsh ¿nd estero at the northern base of the cerrito. In fact, if it be once admitted that the diseño represents the land granted by Sola, and of which possession was given by Martinez, I cannot perceive how the location of the boundaries can be open to controversy. .That the diseño does represent that tract is expressly stated by Jimeno, and the well-known carefulness and circumspection of that officer give to his statements great weight. The tract delineated on fhe diseño exactly corresponds with the description given by Martinez. We have the larger cerrito at a short distance from the beach, the creek flowing along its base, and the high rock at the entrance of the cañadita from which it issues. That Micheltorena intended to grant, or rather issue, a new title for the land delineated on the diseño, cannot be doubted. In his decree of concession, the creek of Los Cerritos de San Antonio is expressly mentioned as the northwestern boundary, and this decree, called by the supreme court thetitleof confirmation by Micheltorena, is referred to in its opinion as clearly describing the same monuments as those mentioned by Martinez. It is therefore clear' that this claim must be considered precisely as if the diseño of 1814 had been attached to the report of Martinez, or the grant by Sola. And, if so, the location of the boundaries is unmistakable. A corroboration of these views is found in the expedienteand diseñoof Castro. By thegrant to Castro, his rancho is bounded by the cerri-to of San Antonio, and the same boundary is designated in the decree of confirmation, which has been acquiesced in by the parties.This description of itself, would, if the ordinary rule be applied, exclude the object named as the boundary. But the diseño removes all doubt. On it a conical hill is represented, and inscribed “Cerrito de San Antonio,” while from its summit, or northeastern side, it is not easy to say which, a dotted line is projected, evidently intended to indicate the boundary. This line, though not extended to the hills, nevertheless shows that the boundary ran to the northeast, and that it did not commence at the southern base of the cerrito, and run towards the hills in a direction south of east. If, however, the limits of the Castro rancho be fixed as is now contended for, at the Co-dornices creek, it will include not only all the cerrito, but a tract nearly a quarter of a mile wide to the south of it, and will embrace lands not even represented on the Castro diseño. Much testimony has been taken to show that Castro has occupied the tract in question with his cattle and cultivated fields, and that the Peraltas have at various times acknowledged the Codornices to be the boundary. But evidence as to oral admissions of this nature is at all times unreliable, especially when it is, as in this case, conflicting. That in IS44, Peralta claimed to the creek called “Cerritos,” is clear from the diseño, and we learn by the report of Jimeno that his father had occupied the land agreeably to the extent shown by the diseño since 1819. One of the Peraltas testifies that Castro was the first squatter he ever had on his land, and it is clear that in 1830, when the diseño of Castro was drawn for him by Forbes, and in 1834 when Joaquin Isidro Castro presented it to the governor, the tract in dispute could not have been occupied or claimed by Castro, for it was not even represented on his diseño. That in times comparatively recent, the Castros had a cultivated field to the south of the Cerritos creek, seems to be established, but I see nothing in that fact or the other evidence showing Castro’s occupation of the disputed tract, sufficient to justify us in disregarding the boundaries so unmistakably indicated by the report of Martinez, the diseño, and concession in the expediente of 1844, and the natural objects found upon the ground. For these reasons I am of the opinion that the location of the northern boundary is correctly located in the official survey, and that the objections to it should be overruled. The official survey is also objected to on the ground that it embraces lands on the shores of the bay below the ordinary high-water mark. These lands have been treated as having passed to the state of California as incidental to her sovereignty on her admission to the Union, and they have been disposed of by the state as her own. I do not understand it to be denied that the call in the grant for the bay as a boundary bounds it by the shores of the bay, nor is it contended in this case that that term should not be construed to embrace only what at common law is considered to be the shores of the sea. It includes all lands below ordinary high-water mark; that is, the limits reached by those tides which happen between the full and change of the moon, twice in the twenty-four hours. Teschemacher v. Thompson, 18 Cal. 21; Ang. Tide Waters, c. 3, and cases cited.' It seems, from the deposition of Stratton, that the official survey embraces lands below ordinary high-water mark, and in this respect it is evidently erroneous. I think that the western boundary should therefore be modified so as to exclude those lands lying below that limit, whether they be situated on the bay itself, or on the shores of any navigable estuary that may extend from the bay into the interior.

SAWYER, Circuit Judge. The first question in this case is, whether it is competent to show a usage in the grain trade in California to deliver grain in sacks, nothing being said in the contract as to whether it is to be delivered in bulk or in sacks. I am satisfied from the authorities, that the testimony is admissible. The cases cited in the note to Wiggles-worth v. Dallison, 1 Smith, Lead. Cas. Eq. (5th Am. Ed.) 305, clearly establish this rule. In a case there cited, Baron Parke says: “It has long been settled that in commercial transactions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, on matters with respect to which they are silent. The same rule has been applied to contracts in other transactions of life in which known usages have been established and prevailed, and this has been done on the principle of presumption, that, in such transactions, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to these known usages.” So another learned judge cited, in the notes at page 308, Id., says: In all contracts “as to the subject matter of which known usages prevail, parties are found to proceed with the tacit assumption of those usages; they commonly reduce into writing the special particulars of their contract, but omit to specify those known usages which are included, however, as, of course, by mutual understanding. The contract is in truth partly expressed in writing, partly implied and unwritten.” So at page 309, note a, Id., the learned editors of the American Notes well state the rule thus: “In like manner, where there has been an express contract about a matter concerning which there is an established custom, this custom is reasonably to be understood as forming a part of the contract, and may be referred to to show the intention of the parties in those particulars which are not expressed in the contract. And it is obvious that the reason of the rule which forbids the receipt of parol evidence of the intention of the parties for the purpose of adding to a written contract, has no application to the evidence of custom.” In one case (Smith v. Wilson, 3 Barn. & Adol. 728) the court went so far as to permit the custom of a particular place to be shown—that 1,000 rabbits meant 1,200 rabbits. But it is not necessary to go to that extent here; for in that case, there would seem to be a custom shown contrary to the express terms of the contract In this case there is nothing in the contract in terms inconsistent with the usage shown. The most that can be said is, that the testimony annexes an incident to the contract in a matter respecting which the contract itself is silent. It merely discloses the circumstances surrounding, and the well known incidents connected with, the subject matter, at the time of entering into the contract, and in view of which it is to be presumed the contract was made. See other authorities cited in note to Wigglesworth v. Dallison; also, Macy v. Whaling Ins. Co., 9 Metc. [Mass.] 363. I think the evidence of usage to deliver in sacks, when not otherwise expressly provided in the contract, admissible, and being admitted, the usage was clearly established, there being no contradictory evidence. The general usage being established, the defendants must be presumed to have been cognizant of it, and to have contracted with reference to it. But I think, also, that the evidence and acts of the parties justify the inference that the contractors well understood the usage. They at least, in fact, voluntarily conformed to it during the first half of the year over which the contract extended. I also think, that the refusal to deliver in sacks, and the subsequent notice to Major Hoyt, United States army quartermaster, that they would deliver no more barley under the contract, but should regard the contract as rescinded, a breach of the entire contract at that time, and that nothing more was required to be done on the part of the plaintiff after the continued failure to deliver the barley referred to, in January, to entitle the United States to recover, than was done in the matter by Major Hoyt. Hale v. Trout, 35 Cal. 230, and cases there cited. This case is sought to be distinguished from Hale v. Trout, because, in that case, the amount of lumber to be delivered was fixed, while here the defendants, Robinson & Co., might not be called upon to deliver the whole million pounds of barley; and it is claimed that it was necessary to make the requisitions from time to time in order to fix the amount. But this, I apprehend, does not affect the principle. The defendants had notified plaintiff that they “decline to furnish any more barl'ey to the government under the contract,” and they never did deliver the barley mentioned in the January requisitions. It would be a vain tbing after this to continue to make requisitions. They were to furnish all required for certain posts, not exceeding a specified amount. They had already declined to furnish any more under the contract, and had “been notified that they would be held to the -contract, and that the necessary amount of barley, etc., would be purchased in open market and the difference in cost charged to them. They did not afterward notify the agents of the government of any intention to recede from the determination not to furnish more “barley. I think there was a total breach of the contract. See, also, Withers v. Reynolds, 2 Bam. & Adol. 882; Franklin v. Miller, 4 Adol. & E. 599. The plaintiff, in my opinion, is entitled to judgment for $4,048.16 in gold coin. This judgment was affirmed by the supreme court at the December term, 1871. 13 Wall. [80 U. S.] 363.

OPINION OF THE COURT. This is an indictment for cutting walnut and other trees on the public lands of the United States. It was objected that no other timber except what is named in the indictment ‘can be proved. But THE COURT held that under the allegation of other timber, proof other than walnut trees was admissible to the jury. An objection was also made, that an indictment would not lie for a trespass on the public lands, unless such lands had been reserved for naval purposes. But THE COURT ruled an indictment could be sustained, under the decisions, for the cutting of timber on the public lands which had not been reserved for naval purposes. THE COURT instructed the jury must be satisfied that the person -who cut the timber, was employed by the defendant, and that the timber was cut by his direction. If this be proved, the defendant is answerable, under the law, the same as if the defendant had in person committed the trespass. The jury found the defendant not guilty.

HOFFMAN, District Judge. The grant in this case was made on the first day of May, 1839, by Governor Alvarado, to Antonio Bu-elna, the husband of the claimant. Buelna, after obtaining nis grant, appears by the proofs to have occupied and cultivated his land and continued to live there with his family until his decease. The present claimant, his widow, seems to be his sole heir. The United States have taken an appeal in this case, but it is submitted to us as usual without argument, or the statement of any objection to the validity of the claim. The genuineness of the grant seems to be fully proved, and the board have confirmed, the claim according to a judicial measurement, which on a resurvey has been found to include less than the quantity mentioned in the grant. We think the decree of the board should be affirmed.

PER CURIAM: Jerome Julius Brown, Sr., seeks to appeal the district court’s order dismissing his civil action. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. Parties in a civil case are required to file the notice of appeal within thirty days after the judgment or order appealed from is entered, Fed. R.App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5), or reopens the appeal period under Fed. R.App. P. 4(a)(6). This appeal period is mandatory and jurisdictional. Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). The district court’s order was entered on November 10, 2008. The notice of appeal was filed on February 18, 2009. See Fed. R.App. P. 4(d). Because Brown failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED.

THE COURT called D.P. Southworth, United States assessor for the. Fourth district of Pennsylvania, who had been charged with the investigation of the frauds charged in this case. It appearing by his evidence that the. alleged return was made on an old form, such as was required under the law of 1862 [12 Stat 432], and that the form prescribed by the commissioner of internal revenue, under the act of 1864 [13 Stat. 227], had never been used by the assistant assessor at Rahway, and the witness testifying that the return in evidence would not have been accepted by him, and was in no sense in compliance with the act of 1864, THE COURT interrupted the further progress of the case. FIELD, District Judge, said that this was a difficulty that had occurred to his mind from the first, and now it appearing as a fact that no return had been made, he could not charge the jury that such a return had actually been made, and that it was for them to decide whether it was false and fraudulent or not. This difficulty arises from the fact that the assistant assessor, A. S. Bonney, of Rahway, N. J., to cover up his own deficiencies, and to subserve his own private ends, it appearing that he was deeply interested in the return, had arranged his monthly account, at least, in a way 'to suit himself. THE COURT felt it was only proper to state this to the district attorney, leaving it for him to make such statement as he might deem proper under the circumstances. Mr. Keasbey, United States district attorney, said that this was a difficulty he had been called upon to consider at the outset of the case, and he had drawn the indictments with reference to it. He could not control the facts of the case, and if the court considered the objection an insuperable one, he must, of course, submit. He had tried to do his duty, and in future, as in this case, where evidence of fraud was presented to the grand jury, he should endeavor to secure a conviction. THE COURT then directed the jury to return a verdict of “Not guilty,” and under the direction of the court, the verdict was returned.

BLATCHFORD, District Judge. This is an action at common law. The first paper placed on the records of the court in it was an information, which was filed on March 1, 18G7. It states taat the attorney of the United States comes “in a suit of common law and informs the court” that the United States bring suit against the defendant for the cause of action propounded in two articles which follow in the information. The substance of them is, that the United States were entitled to the immediate possession of certain bales of cotton, their property; that the defendant, being in possession of the cotton, unlawfully converted and disposed of it to his own use; that such conversion was fraudulent; and that the proceeds of the property had been disposed of by the defendant with intent to secrete the same from and to defraud the United States. The information prays that process of attachment may issue against the property of the defendant, and is accompanied by an affidavit in support of the application for an attachment. Indorsed on the information is a direction signed by my predecessor, and dated February 28, 1807, in these words: “Let process of attachment issue against the property of the within-named Vernon K. Stevenson, agreeably to the prayer of the within-named information, and let the said Vernon K. Stevenson be cited to appear on the return of process herein, and answer to the allegations in this behalf.” Thereupon, process was issued to the marshal on March 1,1807, reciting that the information had been filed “in a certain action at common law,” and commanding the marshal to cite the defendant, if found in his district, to appear and answer the information. and, also, to attach the property of the defendant. The information and the process stated the claim at the sum of one million dollars. The return of the marshal to the process W'as that he had served a copy of it on the defendant, and had also served a copy of it on the president of a bank in the city of New York, stock in wrhich was alleged to be owned by the defendant. On March 1, 1867, a notice, signed by the district-attorney, and entitled in the suit and indorsed as being a lis pendens, wras filed in the office of the clerk of this court. The notice states “that an action has been commenced, and' is now pending, in this court, upon an information against the above-named defendant, and that a warrant of attachment, according to the rules and practice of this court and the statute in such case made and provided, has been duly issued therein against all and singular the property of the said defendant, Vernon K. Stevenson, both real and personal, situate and being within the city and county and state of New York, and also situate and being in the Southern district of the United States for the state of New York, and that the following is a description of all and singular the real estate of the said defendant, Vernon K. Stevenson, situate and being within the said city and county and state of New York, attached, levied upon, and affected under and by virtue of said process or warrant of attachment,” and closes with a specific description,' by metes and bounds, of the real estate referred to, which embraces forty lots of land in the city of New York. A like notice of lis pendens was filed by the district-attorney in the office of the clerk of the supreme court for the city and county of' New York. The defendant put in his answer in the suit, and the issue has been tried by a jury, resulting in a verdict for the defendant, under the direction of the court, on a question of law. [Case No. 16,396, opinion of district court.] The government has. taken steps toward a review of the decision. [Id., opinion of circuit court] The defendant now moves to vacate the attachment on the ground that it was issued without authority of law, and to set aside the notices of lis pendens, on the ground that they were filed without authority of law. In regard to the attachment, it is claimed that this court has no authority to issue any attachment in a common law action; that in the practice of the courts of the United States for this district no attachments have ever been issued in common law actions; that the right to issue attachments and the right to file notices of lis pendens are not matters of ordinary legal right, but exist only as creations of positive statutes; and that there is no statute of the United States which authorizes this court to issue an attachment, or to sanction the filing of a notice of lis pendens in a suit of the character of the present one. This suit must necessarily be regarded as a suit at common law, or this court would have no jurisdiction of it; for, by sections 9 and 10 of the judiciary act of September 24, 1789 (1 Stat. 77), no jurisdiction of any equity suit is given to this court, except of suits in equity against consuls or vice-consuls; and by section 9 of that act, in connection with section 4 of the act of March 3, 1815 (3 Stat. 245), jurisdiction is expressly given to this court of all suits at common law where the United States sue. The statute which governs the forms of process and the forms of proceeding; and the modes of proceeding in suits at common law, in the courts of the United States, is the act of May 8, 1792 (1 Stat. 275). The second section of that act provides that “the forms of writs, executions, and other'- process, except their style and the forms and modes of proceeding in suits in those of common law, shall be the same as are now used in the said courts respectively, in pursuance of the act entitled ‘An act to regulate processes in the courts of the United States,’ . . . . except so far as may have been provided for by the act to establish the judicial courts of the United States, subject, however, to such alterations and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations as the supreme court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same.” The act referred to, “to regulate processes in the courts of the United States,” is the act of September 29, 1789 (1 Stat. 93), the second section of which provides “that until further provision be made, and except where by this act or other statutes of the United States is otherwise provided, the forms of writs and executions, except their style, and modes of process and rates of fees, except fees to judges, in the circuit and district' courts, in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same.” This court existed when these acts of 1789 and/1792 were passed. It, therefore, is required, by the act of 1792, to use as its forms of process and modes of proceedings in suits at common law, the forms and modes which it was using in such suits on May 8, 1792 (and which forms and modes were required by the act of 1792, taken in connection with the act of 1789, to be the forms and modes used or allowed on September 29, 1789, in the supreme court of the state of New York), subject only, as provided by the act of 1792, to any provisions contained in the judiciary act of September 24, 1789 (1 Stat. 73), and also to such alterations and additions as this court shall, in its discretion, deem expedient, and also to such regulations as the supreme court of the United States shall think proper, from time to time, by rule, to prescribe to this court. The first section of the act of May 19, 1828 (4 Stat. 278), does not apply to the present case, because the state of New York was admitted into the Union before September 30. 1789; and the third section of that set applies only to final process. It is unnecessary to cite authorities to show that on September 29, 1789, there was no process of attachment of property used or allowed in the supreme court' of New York in a common law action where an individual was the plaintiff, and where the defendant was personally served with process in the action, unless the defendant was shown to be an absconding or concealed debtor. No general process of attachment of uroperty in a common law action in favor of an individual plaintiff was known to the common law. The only statute authority which existed on September 29, 1789, for the issuing of an attachment by the supreme court of New York in a common law action, was that conferred by the act of the legislature of New York, passed April 4, 1786 (1 Greenl. Laws N. Y. 214), which provides that when a debtor secretly departs the state, or keeps concealed within it, a creditor, or creditors, to a certain amount, may apply to a judge of the supreme court showing the debt, and the departure or concealment of the debtor, with intent to defraud his creditors of their just dues, or to avoid being arrested by the ordinary process of law, and proving the departure or concealment by two credible witnesses. and obtain from the judge a warrant to attach the real and personal estate of the debtor. The present case was not one of that kind. No provisions on the subject are found in the judiciary act of September 24, 17S0; and the supreme court of the United States has never, by rule, prescribed any regulations to this court in regard to the issuing of attachments in common law actions. The supreme court decided, In Wayman v. Southard, 10 Wheat. [23 U. S.] 1,. that tl.e act of 1792 was confined, in ns adoption of state laws, or regulating the modes of proceeding in suits at common law, to those in force in September, 1789; that it did not recognize the authority of any laws of that description which might be afterwards passed by the states; and that it enabled the several courts of the Union to make such improvements in their forms and modes of proceeding as experience might suggest, and especially to adopt such state laws on the subject as might vary to advantage the forms and modes of proceeding which prevailed in September, 1789. It is not necessary that a practice of a court to be recognized or sustained, should be embodied in a written rule. Written núes are undoubtedly preferable, but a practice in respect to a particular matter in a court may be established without the existence of a positive written rule. Fullerton v. Bank of U S., 1 Pet. [26 U. S.] 604, 613; Duncan v. U. S., 7 Pet. [32 U. S.] 435, 451. The fact that my learned predecessor, who presided in this court for more than forty years, granted this attachment, is the strongest possible evidence that he must have regarded it as the practice of the court to issue an attachment in a case like the present one, and that he must have understood either that such practice existed in the supreme court of New York on September 29, 1789, or that a departure had been established, either by written rule or by the practice of this court, from the practice which existed in September, 3789; and that this court had, within section 2 of the act of 3792, altered its form of process and mode of proceeding in the suit, like the present one, in such manner as to authorize the issuing of the attachment that was issued in this case. The judge who issued it knew better than any other person the practice of this court in the respect in question, and his action in a case of the character of the present one, involving a claim of so large-an amount, and affecting real estate of such large value, must be regarded by me as conclusive in regard to the fact of the establishment and existence of a practice which warranted the attachment in this case. Whether he regarded it as reposing on the privilege-of a prerogative of the United States, or on the construction of some written rule of this-court, or on acquiescence and uniform mode of proceeding, or on some specific acts of congress, cannot be ascertained, as his views are not on record, and the point is immaterial on this application. I am satisfied, from inquiry, that the matter of issuing the attachment was deliberately considered by him, and that his conclusion was not hastily reached. The propriety of that conclusion is strengthened by the fact that nearly two years have elapsed without the authority of the court to issue the attachment being questioned by the defendant. So far, therefore, as the motion to vacate the attachment is founded upon an alleged want of authority in this court to issue it, the motion must be overruled. The act of March 14, 1848 (9 Stat. 213), was referred to as affecting the question. The act provides “that whenever, upon process instituted in any of the courts of the United States, property shall hereafter be attached to satisfy such judgment as may be recovered by the plaintiff in such process, and any contingency occurs by which, according to the laws of the state, such attachment would be dissolved upon like process pending in, or returnable to, the state courts, then such attachment or attachments made upon process issuing from, or pending in, the courts of the United States within such state, shall be dissolved, the intent and meaning of this act being to place such attachments in the courts of the states and the United States upon the same footing.” No contingency, such as is referred to in this act, is shown to have occurred, as a ground for dissolving this attachment. So far as the motion is based upon the ground of amnesty and pardon, of which the defendant claims the benefit, those matters go to the entire action, and not merely to the question of attachment, and must be brought up, if at all, by way of plea. The question of pardon was so brought up in the Case of Armstrong’s Foundry, 6 Wall. [73 U. S.] 766. If the attachment was properly issued, it was not irregular to file in the office of the clerk of this court the notice of lis penden» that was filed therein. As to the one filed in the office of the clerk of the state court, this court has no control over the records of that court, or over the action of the district-attor ney in filing it there. Motion denied.

TORRUELLA, Chief Judge. In an earlier proceeding, the predecessor of plaintiff Futura Development of Puerto Rico, Inc. (“Futura”) obtained a judgment against the Cooperative Development Company (“CDC”), a public corporation and instrumentality of the Commonwealth of Puerto Rico, in the amount of $12,266,000. See U.S.I. Properties Corp. v. M.D. Construction Co., 860 F.2d 1 (1st Cir.1988). After CDC failed to satisfy the judgment, Futura brought this suit seeking a determination that CDC was an alter ego of the Commonwealth of Puerto Rico, and that, as a de facto party to the earlier litigation, the Commonwealth was liable for the judgment. On this theory of recovery, Futura was awarded summary judgment. See Futura Devel. of P.R. v. Puerto Rico, 962 F.Supp. 248 (D.P.R.1997). Futura also brought six other claims against individual government employees under various causes of action, all of which were dismissed by the district court sua sponte. See id. The parties cross-appealed to this court. We conclude that the district court acted without proper jurisdiction in awarding summary judgment to Futura on its alter ego theory and improperly dismissed the remaining claims against the individual defendants. Background On October 25, 1988, this court affirmed a district court judgment entered pursuant to a jury verdict against CDC, for $12,266,000. See U.S.I. Properties Corp. v. M.D. Construction Co., Inc., 860 F.2d 1 (1st Cir.1988). The jury found that CDC had unilaterally terminated a construction contract with M.D. Construction, predecessor in interest to Futura, which provided for the building of a low-income housing project called “Ciudad Cristiana.” The jury in that ease rejected CDC’s cross-claims alleging that the Ciudad Cristiana property was contaminated with mercury. Jurisdiction in that case was premised entirely upon diversity. See id. Now, almost ten years later, this court is faced with the current dispute over satisfaction of that judgment. CDC is a public corporation that was created by the Puerto Rico Legislative Assembly in order to develop housing cooperatives across Puerto Rico. See P.R. Laws Ann. Tit. 5, §§ 981 et seq. A majority of the CDC’s budget each year is provided by the Commonwealth. Since- the original litigation, the Commonwealth has engaged in a de facto liquidation of CDC in order to avoid satisfying the sizable judgment pending against it. Specifically, the Commonwealth has failed to provide for satisfaction of the judgment in CDC’s budgets, stripped CDC of its assets, transferred its employees, and replaced CDC in the organizational chart of Commonwealth agencies and public corporations. During its liquidation, CDC settled debts with some creditors, but not with Futura. CDC, insolvent and devoid of official responsibility, now exists in name only. Futura, frustrated by these tactics, brought this suit against the Commonwealth in federal court under the court’s enforcement jurisdiction. Futura argues that the Commonwealth of Puerto Rico is liable for the original judgment because it was a de facto party to the original litigation. This assertion is supported not only by the generally close relationship between the Commonwealth and the CDC, but specifically by the fact that the Attorney General of Puerto Rico took over the original litigation for CDC. Furthermore, in its closing argument to the jury in that original litigation, CDC argued that any judgment against it would have to be paid with Puerto Rico tax dollars. The Commonwealth argues that, even if CDC were its “alter ego,” it retains Eleventh Amendment immunity from this suit in federal court. Despite its active participation in the defense of the original suit and use of the “tax dollars” argument with the jury, the Commonwealth asserts that it did not implicitly waive its immunity. The district court disagreed, awarding summary judgment in Futura’s favor on the first count, and dis missing sua sponte Futura’s remaining claims against the individual defendants. See 962 F.Supp. at 257-58. Because we conclude that the district court acted without proper jurisdiction, we do not reach the questions raised regarding implicit waiver of Eleventh Amendment immunity. Analysis I. Enforcement Jurisdiction The first question to be resolved in this case is whether the district court properly exercised jurisdiction over Futura’s claim against the Commonwealth. The parties acknowledge that federal question jurisdiction is inapplicable to Futura’s alter ego claim, and that the Commonwealth of Puerto Rico is not subject to diversity jurisdiction. Cf. 28 U.S.C. § 1332(d) (Puerto Rico treated as a “state” for purposes of the statute, and therefore not subject to diversity jurisdiction); Nieves v. University of P.R., 7 F.3d 270, 272 (1st Cir.1993). Futura’s primary jurisdictional argument is that federal jurisdiction over the alter ego claim against the Commonwealth of Puerto Rico is premised upon federal enforcement jurisdiction. However, in actions such as this, where the district court had original jurisdiction founded solely on diversity jurisdiction, extending enforcement jurisdiction over a non-diverse party without sound reasons for doing so may represent an impermissible expansion of federal jurisdiction. At the same time, it is generally recognized that “without jurisdiction to enforce a judgment entered by a federal court, ‘the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.’ ” Peacock v. Thomas, 516 U.S. 349, 356, 116 S.Ct. 862, 868, 133 L.Ed.2d 817 (1996) (quoting Riggs v. Johnson County, 6 Wall. 166, 187, 18 L.Ed. 768 (1868)). Futura argues that under the doctrine of enforcement jurisdiction, federal courts generally possess jurisdiction over new proceedings in which a federal- judgment creditor seeks to impose liability for a judgment on a person or entity not named in the original judgment, even where there is no independent basis for federal jurisdiction. However, Futura’s argument fails in light of recent Supreme Court doctrine. In Peacock, the Supreme Court explained that it had “never authorized the exercise of [enforcement] jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not already liable for that judgment.” Id. at 357, 116 S.Ct. at 868. In that case, Thomas, the plaintiff, had obtained a large ERISA class action judgment against his former employer, Tru-Tech, Inc. Instead of paying the judgment, Peacock, an officer and shareholder of Tru-Tech, settled Tru-Tech’s debts with other creditors, including himself, and ignored the debt owed to Thomas. After collection efforts proved unsuccessful, Thomas sued Peacock in federal court using a “veil-piercing” rationale. Despite the absence of an independent jurisdictional basis for the proceeding, the district and circuit courts agreed to exercise enforcement jurisdiction in piercing the corporate veil. The Supreme Court reversed, explaining that there was insufficient factual dependence between the claims raised in Thomas’ suits to justify the extension of enforcement jurisdiction. See id. at 354-55, 116 S.Ct. at 866-67. Through Peacock, the Court reaffirmed the doctrine that “[i]n a subsequent lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction.” Id. at 355, 116 S.Ct. at 867 (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 380-81, 114 S.Ct. 1673, 1677, 128 L.Ed.2d 391 (1994); H.C. Cook Co. v. Beecher, 217 U.S. 497, 498-99, 30 S.Ct. 601, 601-02, 54 L.Ed. 855 (1910)). The Court reasoned that, while a proper exercise of enforcement jurisdiction will result in efficiencies which outweigh comity concerns, an exercise of enforcement jurisdiction over a factually independent proceeding has no practical benefit for judicial economy. See id. at 355-56, 116 S.Ct. at 867-68. Where a plaintiff plans to use the federal court to examine the defendant’s identity and finances, as Thomas did in his veil-piercing claim, the court is asked to delve into a new and séparate matter, and an independent basis for jurisdiction is required. This situation is distinguishable from where a party uses a post-judgment proceeding to challenge or revisit an issue or determination made by the federal court in the original proceeding. Futura attempts to distinguish Peacock on two grounds. First, Futura argues that, under Peacock, enforcement jurisdiction will only be refused where the new defendant’s liability is premised upon that party’s actions which took place after the original judgment was rendered. According to Futura, the Commonwealth’s liability stems from its actions before and during the original litigation, so Peacock is inapposite. This nuanced interpretation misses the rationale of the case. Peacock holds that enforcement jurisdiction does not exist in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a new defendant whenever the new proceeding lacks factual dependence upon the old proceeding. Obviously, subsequent proceedings based upon defendant’s actions occurring after the original proceeding will necessarily be factually independent from the primary proceeding. However, Peacock is broader than that. Extending enforcement jurisdiction to factually independent subsequent proceedings will not serve the purpose of judicial efficiency whether those proceedings premise liability upon pre- or post-judgment actions. Peacock does not limit itself, explicitly or implicitly, as Futura argues. Moreover, Peacock’s discussion of other relevant circuit and.Supreme Court case law confirms that its holding is as broad as dictated by its logic. The Peacock Court specifically declared that it had granted certiorari to resolve a split among the various federal courts of appeals. See id. at 352, 116 S.Ct. at 865-66, comparing Thomas v. Peacock, 39 F.3d 493 (4th Cir.1994); Argento v. Melrose Park, 838 F.2d 1483 (7th Cir.1988); Skevofilax v. Quigley, 810 F.2d 378 (3d Cir.1987) (en banc) and Blackburn Truck Lines, Inc. v. Francis, 723 F.2d 730 (9th Cir.1984) with Sandlin v. Corporate Interiors Inc., 972 F.2d 1212 (10th Cir.1992) and Berry v. McLemore, 795 F.2d 452 (5th Cir.1986). In both Sandlin and Berry, the two cases that Peacock ultimately supports, the circuit courts refused to exercise enforcement jurisdiction over factually independent subsequent proceedings where the new defendants’ liability was premised upon those parties’ actions before the original judgments were rendered. Furthermore, in H.C. Cook Co. v. Beecher, a 1910 case reaffirmed by the Court in Peacock, the Court held that enforcement jurisdiction would be refused to parties attempting to make new defendants answerable for an earlier judgment. Beecher also involved alleged liability on the part of new defendants based upon those defendants’ pre-judgment actions. See Beecher, 217 U.S. at 498-99, 30 S.Ct. at 601-02; Thomas v. Peacock, 39 F.3d 493, 500-01 (4th Cir.1994). The Peacock Court stated that Beecher was binding upon it. See 516 U.S. at 357-58, 116 S.Ct. at 868-69. Thus it is clear that Peacock’s holding is not limited to subsequent proceedings in which the new defendant’s liability is premised upon that party’s post-judgment actions. Futura’s other attempt to distinguish Peacock is futile as well. Futura claims that since the Commonwealth is the alter ego of CDC, the Commonwealth is not really a “new” defendant. According to this argument, whereas Peacock was not liable for the primary judgment until after the subsequent hearing, the Commonwealth was hable to Futura from the moment that the jury returned its verdict in the original proceeding. Thus, the viability of Futura’s argument depends entirely upon our ruling that, unlike a generic veil-piercing claim, which represents a substantive rule, of liability, an alter ego claim is a mere factual determination that identifies an original judgment debtor. Although we do not discount the possibility that some other alter ego claims can be so characterized, in this case, the Commonwealth and CDC are undeniably separate jural entities, and CDC (but not the Commonwealth) was the original judgment debtor. See P.R. Laws Ann. tit. 5, § 981(d) (stating that the Commonwealth is not liable for the debts of CDC). It is clear, then, that this alter ego claim seeks to do more than simply identify the original judgment debtor. It cannot be denied that this case is separate from the original proceeding. Like the veil-piercing claim in Peacock, an alter ego claim involves an independent theory of liability under equity, complete with new evidence. See Note, Piercing the Corporate Law Veil: The Alter Ego Doctrine Under Federal Common Law, 95 Harv. L.Rev. 853, 853 n. 1 (1982) (veil-piercing and alter ego claims are part of the same doctrine). Although a judgment entered pursuant to such a finding can affect previously existing judgments and other debts, the claim requires a subsequent and distinct inquiry from the court. To adopt Futura’s argument, we would be forced to treat the corporate form of CDC as a complete nullity—to look through its legal identity to the party standing behind it—and to do so under the guise of making a factual determination necessary to determine our subject matter jurisdiction over this case. Cf. United States v. United Mine Workers, 330 U.S. 258, 292 n. 57, 67 S.Ct. 677, 695 n. 57, 91 L.Ed. 884 (1947). This would be an unwarranted expansion Of our jurisdiction. Alter ego/veil-piercing claims involve a substantive theory for imposing liability upon entities that would, on first blush, not be thought liable for a tort or on a contract. See, e.g., Resolution Trust Corp. v. Smith, 53 F.3d 72, 79-80 (5th Cir.1995); Thomas v. Peacock, 39 F.3d 493, 499 (4th Cir.1994), rev’d on other grounds, 516 U.S. 349, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996). Thus, the Commonwealth is in the same position as the defendants in Beecher and Sandlin, who had also been sued under alter ego rationales. See Sandlin, 972 F.2d at 1217-1218. As previously discussed, Peacock supports both cases, wherein the federal courts ultimately refused to extend enforcement jurisdiction. Thus, insofar as alter ego theories require factually independent proceedings, they will not subvert the rule of Peacock. This rule is determinative in this case. II. Supplemental Jurisdiction In the alternative, Futura argues that its alter ego claim is within the district court’s supplemental jurisdiction because that claim is so related to its civil rights claims against the individual defendants, claims over which the court undeniably has original jurisdiction, that it forms part of the same ease or controversy. See 28 U.S.C. § 1367. We do not find this argument persuasive. Although its alter ego claim has pre- and post-judgment components, Futura carefully crafted the allegations in its alter ego claim to emphasize the pre-judgment relationship between the Commonwealth and CDC. It stressed the close ties between CDC and the government that existed before and during the original case. It did so because its only chance to penetrate Puerto Rico’s Eleventh Amendment immunity was to argue that the Commonwealth, through its behavior in the case, waived its immunity. Futura recognized that, were it to rely upon the Commonwealth’s post-judgment liquidation of CDC in its alter ego claim, Puerto Rico would have Eleventh Amendment immunity from the claim that would be virtually unassailable, as no waiver of such immunity can be inferred from the Commonwealth’s post-judgment conduct. Futura’s alter ego claim simply cannot be saved by the argument that it forms part of the same case or controversy as the civil rights claims, all of which are premised upon post-judgment conduct. And even if we were to agree that there existed sufficient relatedness between Futura’s claims against the individual defendants and the post-judgment components of Futura’s alter ego claim to bring these components within our supplemental jurisdiction, the Eleventh Amendment would, for reasons already explained, render us powerless to grant Futura any relief against the Commonwealth. In any event, we do not find sufficient relatedness between these claims because there is no common nucleus of operative facts shared by both the civil rights claims and the alter ego claim. See BIW Deceived v. Local S6, Indus. Union of Marine and Shipbuilding Workers, 132 F.3d 824, 833 (1st Cir.1997) (federal courts may only assert supplemental jurisdiction under 28 U.S.C. § 1367 where the claims arise from the same “nucleus of operative facts”). The claims do not overlap in theory or chronology. The cases are sufficiently distinct to require an independent jurisdictional basis. Any holding to the contrary would be inconsistent with the jurisdictional requirements of section 1332, and thus in direct contravention of section 1367. As the district court observed, the Commonwealth of Puerto Rico “stood behind CDC in filing an action of questionable merit in this Court, and when that backfired and resulted in an adverse judgment of $12.3 million, it sought to preclude collection of the same.” 962 F.Supp. at 257. Indeed the Commonwealth’s treatment of M.D. Construction/Futura throughout these proceedings has been despicable, and may result in hesitation by contractors to do business with public corporations funded by Puerto Rico, as well as other dire consequences for its financial reputation. However, federal courts are of limited jurisdiction, and may not weigh the equities of a case until jurisdiction has been established. See Hercules, 516 U.S. at 430, 116 S.Ct. at 989. In this case, Puerto Rico, like any state, enjoys the sovereign privilege not to be sued in federal court under diversity. Having concluded that neither enforcement nor supplemental jurisdiction exists over this suit, we must turn a blind eye to any perceived injustices delivered at the hands of the Puerto Rican government. III. Sua Sponte Dismissal of Futura’s Other Claims After awarding summary judgment for Futura on the first cause of action, the district court dismissed the six remaining causes of action Futura had brought against individual defendants. Although the district court’s desire to dispose of these claims is understandable in light of its having provided for the full satisfaction of the original judgment through its award of summary judgment on the first cause of action, the sua sponte dismissal of these remaining claims was premature. Because we herein vacate the district court’s award of partial summary judgment, these remaining claims become even more potentially significant. This court has held that, in limited circumstances, sua sponte dismissals of corn- plaints under Rule 12(b)(6) of the Federal Rules of Civil Procedure are appropriate. See Wyatt v. City of Boston, 35 F.3d 13, 14 (1st Cir.1994). However, such dismissals are erroneous unless the parties have been afforded notice and an opportunity to amend the complaint or otherwise respond. See id.; Street v. Fair, 918 F.2d 269, 272 (1st Cir.1990) (per curiam); Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir.1973). In this case, Futura’s initial complaint contained four causes of action against individual defendants, each a government employee. The individuals were sued under the Equal Protection Clause, Due Process Clause, and for federal civil rights violations and tortious interference with contractual relationships under Puerto Rico law. These causes of action were improperly pled in the initial complaint because they contained insufficient factual allegations to establish a causal nexus between the named defendants’ conduct and the alleged violations of law. See 962 F.Supp. at 257. After receiving various motions to dismiss and a Magistrate’s Report and Recommendation that these claims be dismissed, the district court dismissed the claims without prejudice. Futura then filed an amended complaint, devoting sixty pages exclusively to detailed claims against the individual defendants. This amended complaint also contained two completely new claims under the Contracts Clause and Puerto Rican tort law. Without any notice to the parties in this ease, the district court dismissed with prejudice all causes of action against the individual defendants. .The district court cursorily concluded that “the amended verified complaint does not ... cure the defects of the original one [because it] fails to draw a nexus between the individual defendants and the government’s scheme to preclude payment of the judgment in his favor.” Id. at 258. The district court erred in dismissing these claims sua sponte without providing the parties with notice and an opportunity to respond. See Wyatt, 35 F.3d at 14. The amended complaint contained new causes of action and more specific allegations of fact. Futura reasonably believed that its amended complaint addressed the court’s initial concerns, and was entitled to address any new or continuing infirmities that the court perceived. Accordingly, the dismissal of these claims is reversed, and they are remanded for further proceedings. Conclusion For the reasons stated herein, we vacate the district court opinion as to count one of the verified amended complaint and dismiss that count. We reverse the district court’s sua sponte dismissal of counts two through seven and remand those claims for further proceedings consistent with this opinion. Finally, we wish to note again the manifest injustice of the conduct of the government of the Commonwealth of Puerto Rico throughout this affair. It has cleverly used its sovereignty to shield itself from the fair consequences of its actions, and has been aided by recent Supreme Court doctrine. Peacock, however, is a relatively new case, and circuit courts are applying it differently. Cf. Matos v. Richard A. Nellis, Inc., 101 F.3d 1193, 1195 (7th Cir.1996) (remarking that after Peacock, it is “not altogether clear” in which types of federal litigation an independent ground of jurisdiction is necessary to pierce the corporate veil). As the doctrine of enforcement jurisdiction evolves, perhaps fewer unjust consequences will flow from it. This case might be well-served by the Supreme Court’s attention. No costs. . Plaintiffs argue that the district court has jurisdiction over this claim under the doctrine of ''ancillary jurisdiction” recognized in Dugas v. American Surety Co., 300 U.S. 414, 428, 57 S.Ct. 515, 521, 81 L.Ed. 720 (1937). In Dugas, the Court reaffirmed the inherent power of federal courts to exercise jurisdiction in order to enforce their judgments in certain situations where jurisdiction would otherwise be lacking. Cf. Root v. Woolworth, 150 U.S. 401, 410-412, 14 S.Ct. 136, 138-39, 37 L.Ed. 1123 (1893) (the first Supreme Court case brought under such jurisdiction). Throughout, we will refer to this type of jurisdiction as "enforcement jurisdiction.?’ We do so because the term “ancillary jurisdiction” is also used with reference to another common law concept of jurisdiction related to "pendent jurisdiction” whereby federal courts obtain jurisdiction over certain claims interposed by parties other than the plaintiff so as to avoid piecemeal litigation. See 28 U.S.C.A. § 1367, commentary (West 1993). While this other form of ancillary jurisdiction was joined with pendent jurisdiction and codified in 1990 under the rubric of "supplemental jurisdiction,” enforcement jurisdiction remains a creature of common.law. To prevent confusion, we will avoid references to ancillary jurisdiction wherever possible, referring instead to supplemental jurisdiction and enforcement jurisdiction. See Susan M. Glenn, Note, Federal Supplemental Enforcement Jurisdiction, 42 S.C.L.Rev. 469, 472 (1991) (urging that courts distinguish between the two forms of ancillaiy jurisdiction, adopt more precise terminology in these ■ cases, and analyze questions of enforcement jurisdiction without reference to supplemental jurisdiction doctrine). . Enforcement jurisdiction can extend to post-judgment conduct in cases where mandamus is sought to force compliance with an existing judgment. However, it cannot extend to most cases that seek to assign liability for the judgment to a new party. See Peacock, 516 U.S. at 358, 116 S.Ct. at 868-69 (citing Labette County Comm’rs v. United States ex rel. Moulton, 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698 (1884); Riggs, 6 Wall. (73 U.S.) 166, 18 L.Ed. 768). . Futura’s argument that an alter ego determination fundamentally differs from a generic veil-piercing is somewhat undermined by Futura’s own complaint, which declares that ”[t]he corporate entity [sic] of CDC must be disregarded and its veil pierced, and [the Commonwealth] be declared the alter ego of CDC.” . We note that Futura did not plead supplemental jurisdiction as an alternative basis for jurisdiction over its alter ego claim. Nor has plaintiff moved to amend the jurisdictional allegations in its complaint pursuant to 28 U.S.C. § 1653. There is a legitimate question as to whether Futura may preserve its judgment simply by suggesting an alternative jurisdictional theory in its brief. See Limerick v. Greenwald, 749 F.2d 97, 100 n. 2 (1st Cir.1984) (doubting the applicability of 28 U.S.C. § 1653 in similar circumstances). However, because we conclude that we may not exercise jurisdiction over Futura’s alter ego claim under 28 U.S.C. § 1367, we need not resolve this issue. . Recognizing the possibility that Peacock might govern this appeal, Futura argues that an appropriate remedy is not a dismissal of this case, but rather a remand to the district court with instructions to deem the first cause of action in this case a motion under P.R. R. Civ. P. 59 for a declaratory judgment that the Commonwealth is the party in interest in the original litigation and required to comply with the judgment. However, we cannot do so. Having determined that federal courts have no enforcement or supplemental jurisdiction over this proceeding, we similarly have no authority for a declaration along the lines suggested by Futura. See Hercules, Inc. v. United States, 516 U.S. 417, 430, 116 S.Ct. 981, 989, 134 L.Ed.2d 47 (1996) (federal courts are "constrained by our limited jurisdiction and may not entertain claims 'based merely on equitable considerations.' ”) (quoting United States v. Minnesota Mut. Inv. Co., 271 U.S. 212, 217-18, 46 S.Ct. 501, 503, 70 L.Ed. 911 (1926)). . Thus, we do not reach many of the substantive issues in this case, including whether CDC actually was an alter ego of the Commonwealth, whether the issue is precluded by a post-trial order in the earlier litigation, and whether Puerto Rico’s Eleventh Amendment immunity applies to this claim. . We note that, upon review, we are unable to determine how the amended verified complaint fails to draw a sufficient nexus between the defendants and the alleged wrongdoing. Without opining as to the ultimate survivability of these claims under Rule 12(b)(6), we expect that, on remand, the district court will provide Futura with more guidance as to the perceived failings in the amended complaint.

OPINION MERRITT, Circuit Judge. This case arises under the Clean Air Act, 42 U.S.C. §§ 7401-7671q, as amended. The petitioner, the Southwestern Pennsylvania Growth Alliance, appeals the decision of the Administrator of the United States Environmental Protection Agency directly to this Court under 42 U.S.C. § 7607(b)(1). The petitioner argues that the EPA’s decision to redesignate the . Cleveland-Akron-Lorain, Ohio, area as an “attainment” area for ozone was arbitrary and capricious because the EPA failed to take into account the “regional” effect of ozone pollution—specifically the effect of the airborne transport of ozone and its precursors across from Ohio into Pennsylvania. The EPA counters that the petitioner does not have standing to bring this ease and that the petitioner’s claims fail on the merits because the EPA acted reasonably in making the redesignation. It argues that it is handling the regional transport problem separately in a comprehensive study and set of proposals. We find that the actions of the EPA were reasonable and within its administrative authority, and therefore we affirm the decision of the EPA. I. Under the Clean Air Act, Congress directed the Administrator to set nationally uniform air quality standards known as “National Ambient Air Quality Standards.” 42 U.S.C. § 7409. The Clean Air Act requires the EPA to promulgate these standards for six criteria pollutants, including ground-level ozone. Ozone is formed in the atmosphere when oxides of nitrogen and volatile organic compounds are emitted into the air in the presence of sunlight. S.Rep. No. 101-228, at 6 (1990), reprinted in 1990 U.S.S.C.A.N. 3385, 3392. Under the Act, the Administrator designates areas as “nonattainment,” “attain ment,” or “unclassifiable,”' based upon whether the area meets the standards for a particular pollutant. 42 U.S.C. § 7407(d). Each area designated as “nonattainment” is further classified as marginal, moderate, serious, severe or extreme, depending on the degree to which the area exceeds the standards. 42 U.S.C. § 7511(a). The Act permits the governor of a state to request the Administrator to revise the designation for any area within the state. 42 U.S.C. § 7407(d)(3)(D). The states are responsible for meeting the national standards. Each state must draft a State Implementation Plan for each pollutant. These State Implementation Plans provide. for enforcement of national standards. See 42 U.S.C. § 7410. Among other things, these plans must include provisions prohibiting air emissions within the state from contributing significantly to nonattainment in other states or interfering with maintenance of the standards by other states. 42 U.S.C. § 7410(a)(2)(D). If the Administrator finds that a State’s Implementation Plan is “substantially inadequate” to attain or maintain the standards or to mitigate adequately interstate pollutant transport, then the Administrator is authorized to “require the state to revise the plan as necessary to correct such inadequacies” within 18 months. 42 U.S.C. § 7410(k)(5). This procedure is called a “SIP [State Implementation Plan] cah.” Before the EPA redesignates an area for ozone attainment, the EPA follows a two-step system. First, the EPA determines whether an area has met the applicable technical, chemical standards for “attainment” of the correct level of ozone in the area. Second, the EPA determines whether the area has met the additional requirements for redesignation to attainment. In the first step, the EPA determines whether the area has met the “attainment” standard for ozone, called the “national primary standard.” The EPA regulations define the standard for ozone as .12 parts per million. The “standard is attained when the expected number of days per calendar year with maximum hourly average concentrations above .12 parts per million ... is equal to or less than 1, as determined by appendix H.” 40 C.F.R. Pt. 50. An area will have attained the standard if three or fewer instances over the standard are recorded over a three year period at any of the monitoring sites within the area. In the second step, after an area has met the applicable standard for attainment, the EPA determines whether the area has met the additional four criteria for redesignation from nonattainment to attainment: (1) EPA must fully approve the applicable State Implementation Plan; (2) EPA must determine that improvement in air quality is due to permanent reductions in emissions; (3) EPA must fully approve a maintenance plan adopted by the State which demonstrates that the area will maintain the standard for at least 10 years after redesignation; and (4) the State has met all the requirements applicable to the area under section 7410 (requirements of State Implementation Plans) and part D. 42 U.S.C. § 7407(d)(3)(E). In 1991,- the Qleveland-Akron-Lorain, Ohio, area was- designated as a moderate ozone nonattainment area. On November 15, 1994, the Governor of the State of Ohio submitted a request to the EPA to redesignate the area to attainment. On June 15, 1995, the EPA published a Notice of Proposed Rulemaking, proposing to approve Ohio’s redesignation request for the area contingent on final approval by the EPA of several elements of Ohio’s State Implementation Plan. 60 Fed.Reg. 31,433 (1995). As part of this proposal, the EPA included the following section: Transport of Ozone Precursors to Downwind Areas Preliminary modeling results utilizing USEPA’s [United States Environmental Protection Agency] regional oxidant model (ROM) indicate that ozone precursor emissions from various States West of the ozone transport region (OTR) in the northeastern United Sates contribute to increases in ozone concentrations in the OTR. The State of Ohio has provided documentation that VOC and NO subX emissions in the CAL [Cleveland-Akron-Lorain] nonattainment area are predicted to remain below attainment levels for the next ten years. Should emissions exceed attainment levels, the contingency plan will be triggered. In addition, eight years after redesignation to attainment, Ohio is required to submit a revision to the maintenance plan which demonstrates that the NAAQS [National Ambient Air Quality Standards] will be maintained until the year 2105. The USE-PA is currently developing policy which will address long range impacts of ozone transport. The USEPA is working with the States and other organizations to design and complete studies which consider upwind sources and quantify their impacts. The USEPA intends to address the transport issue through Section 110 based on a domain-wide modeling analysis. 60 Fed.Reg. at 31,439. The proposed rule stated that the comment period on redesignation closed on July 17, 1995. The petitioner did not submit comments on redesignation by the close of the comment period. On June 29, 1995, the EPA published a direct Final Rule on attainment. In the rule, the EPA determined that the Cleveland, Toledo, Dayton and Cincinnati-Hamilton areas had achieved attainment. 60 Fed. Reg. 33,742 (1995). The action was based on Ohio’s demonstration that the areas achieved the standards for ozone during the three year period from 1992 through 1994. The rule stated that the action would become effective on August 14,1995, unless the EPA received adverse comments by July 31, 1995. On July 28, 1995, the petitioner submitted comments directed at the determination of attainment in a letter' captioned “Adverse Comments on Determination of Attainment of Ozone Standard by Cleveland, Toledo, Dayton, and the Cincinnati-Hamilton Interstate Ozone Attainment Areas, as published in the June 29,1995 Federal Register.” J.A. at 861. In the letter, the petitioner claimed that there was “strong evidence” that the ozone problem in southwestern Pennsylvania is caused by emissions of ozone precursors from states to its west, particularly Ohio and West Virginia. J.A. at 862. The EPA also received a comment on the attainment rule from the New York State Department of Environmental Conservation. After receiving adverse comments on the direct final notice of attainment determination, the EPA issued a notice on August 25,1995, withdrawing the direct final notice and announcing that the EPA would summarize and respond to the comments in a subsequent final rule. 60 Fed.Reg, 44,277 (1995). On May 7, 1996, the EPA took action on both the attainment and the redesignation, responding to comments on both actions. 61 Fed.Reg. 20,458 (1996). The interstate transport issue was raised as a comment to the attainment determination. The EPA responded that interstate transport is not relevant to the narrow issue of attainment of air quality standards but that it is relevant in a determination of redesignation. The EPA has been separately studying the regional ozone transportation problem. In November 1997, the EPA issued a new proposed rule based in part on the technical work and recommendations generated by the Ozone Transport Assessment Group. 62 Fed.Reg. 60,318 (1997). The Ozone Transport Assessment Group is an informal advisory committee formed to assess the regional ozone transport problem and develop solutions. The Group includes representatives from the EPA, thirty-seven states in the Midwestern and Eastern portions of the country (including Ohio), and industry and environmental groups. Based in part on the Group’s recommendations, the EPA’s new proposed rale would require twenty-two states, including Ohio, to adopt and submit revised State Implementation Plans containing control measures that will mitigate the transport of ozone to other states. Under the new rule, Ohio would be required to reduce its emissions of oxides of nitrogen by approximately forty per cent from otherwise expected levels. 62 Fed.Reg. at 60,361. The petitioner, Southwestern Pennsylvania Growth Alliance, is an organization of major manufacturers and local governments in the Pittsburgh-Beaver Valley Area. See Southwestern Pennsylvania Growth Alliance v. Browner, 121 F.3d 106, 111 (3rd Cir.1997) (same petitioner). On July 8, 1996, the petitioner filed this case in the Court of Appeals, as permitted by statute. The petitioner filed a related lawsuit in the Third Circuit, challenging the EPA’s refusal to redesignate the Pittsburgh-Beaver Valley area to attainment. The petitioner lost the challenge in that case. Southwestern Pennsylvania Growth Alliance v. Browner, 121 F.3d 106 (3rd Cir.1997). This Court must uphold the EPA’s decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). Because we must review the EPA’s interpretation of the Clean Air Act, we use the Supreme Court’s two-step process for reviewing an agency’s interpretation of a statute it administers. If “Congress has directly spoken to the precise question at issue ... the court ... must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If Congress has been silent or ambiguous about the “precise question at issue,” then a reviewing court must defer to the agency’s statutory interpretation if it is reasonable. Id. To uphold EPA’s interpretation of a statute, the Court “need not find that it is the only permissible construction that EPA might have adopted but only that EPA’s ■ understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA.” Chemical Mfrs. Ass’n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). II. The EPA argues that this Court should dismiss the petitioner’s case because the petitioner has no standing to challenge the EPA rule redesignating Ohio from nonattainment to attainment. Constitutional standing requires a showing of three elements: (1) an “injury in fact” that is concrete and particularized; (2) a connection between the' injury and the conduct at issue—the injury must be fairly traceable to the defendant’s action; and (3) likelihood that the injury would be redressed by a favorable decision of the Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The EPA argues that the petitioner has not shown standing because the petitioner fails to show that emissions transported from the newly redesignated Cleveland-Akron-Lorain area are greater than they would have been if the EPA had denied Ohio’s redesignation application. The petitioner also asserts two other injuries, however, that provide standing. The petitioner argues that it is injured by the EPA’s process of dealing with the regional transport of ozone. It says that this appeal is the only way it can attack the separation of the attainment decision from the regional transport decision. This fact together with its next argument establishes standing. The petitioner also argues that southwestern Pennsylvania is at an economic disadvantage as a result of the Cleveland-AkronLorain redesignation. The redesignation enables Ohio businesses to pay less for ozone controls, while businesses in southwestern Pennsylvania are required to pay the higher costs for nonattainment areas. The EPA concedes that areas designated as attainment are subject to different requirements than nonattainment areas. Attainment areas are subject to the less costly New Source Review requirements under Part C of Title I, and the nonattainment areas are subject to the more costly New Source Review requirements under Part D of Title I. In addition, the EPA conceded during oral argument that if the Cleveland-Akron-Lorain area had not been redesignated to attainment, the area would have been subject to additional emissions controls. If the EPA incorrectly redesignated the Cleveland-Akron-Lorain area as attainment, then that area has an economic advantage over its neighbors in southwestern Pennsylvania because businesses in the Ohio area unfairly pay less for ozone control measures. Thus, the southwestern Pennsylvania area, which is designated as nonattainment, suffers an economic disadvantage compared to its Ohio neighbor. This economic disadvantage is an alleged “injury in fact” directly caused by the EPA’s decision, an injury that would be redressed if the decision were overturned by this Court. See Central Arizona Water Conservation District v. United States Environmental Protection Agency, 990 F.2d 1531 (9th Cir.1993) (water and irrigation districts had standing because EPA rule under Clean Air Act would result in added costs to the districts); Connecticut v. United States Environmental Protection Agency, 656 F.2d 902 (2nd Cir.1981) (Connecticut and New Jersey permitted to petition for review of an EPA decision on a revision of the New York Implementation Plan); New York v. Administrator, United States Environmental Protection Agency, 710 F.2d 1200 (6th Cir.1983) (the State of New York appealed the decision of an EPA approval of a Tennessee State Implementation Plan revision); New York v. United States Environmental Protection Agency, 716 F.2d 440 (7th Cir.1983) (the State of New York appealed the decision of an EPA approval of an Illinois State Implementation Plan revision). III. The petitioner argues that the EPA’s decision to redesignate the Cleveland-Akron-Lorain area as an attainment area for ozone was arbitrary and capricious and should be overturned by this Court. As already discussed, once an area has satisfied the technical requirements of attainment, it must also meet four additional requirements before it is redesignated to attainment. One of these requirements is that the EPA approve Ohio’s State Implementation Plan. The Act provides that each State Implementation Plan shall: contain adequate provisions— (i) prohibiting, consistent with provisions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will— (I) contribute significantly to attainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard ... 42 U.S.C. § 7410(a)(2)(D)(i)(I). The petitioner argues that the Ohio State Implementation Plan should not have been approved because it did not contain a provision prohibiting sources of pollution in one state from emitting pollutants in amounts which eontrib1 ute significantly to nonattainment in another state. The EPA argues that Congress left to the EPA the method of determining whether interstate transport is a problem and it says that it has properly addressed the problem in this case. Obviously, most land areas are upwind of some areas and downwind of others. According to the EPA, it is addressing the interstate transport problem by using a regional approach to consider the broad and complex regional nature of ozone transport with the limited resources of the agency. This approach is being implemented through the Ozone Transport Assessment Group, which has studied the problem and recently made recommendations to address the problem. Based in part on these recommendations, the EPA issued a new proposed rule in November 1997. 62 Fed.Reg. 60,318 (1997). One portion of this rule requires Ohio to submit a revised State Implementation Plan that will reduce its emissions of oxides of nitrogen by approximately forty per cent from otherwise expected levels. 62 Fed.Reg. at 60,361. At the time that the EPA approved the Ohio State Implementation Plan, the Ozone Transport Assessment Group had not yet made its recommendations. The EPA argues that while it was waiting for the Group to finish its studies and make recommendations, the EPA reasonably relied on its earlier approval of an Ohio State Implementation Plan which complied with the interstate transport requirement. The EPA presented in its exhibits a memorandum which confirms its position that it has consistently interpreted section 7607(d)(3)(E) as permitting the EPA to rely on prior approvals of State Implementation Plans when reviewing redesignation requests. The memorandum, which was written by John Calcagni, Director of Air Quality Management Division to the Directors of various Air Divisions, J.A. at 801, states: “Regions should not reconsider those things that have already been approved and for which the Clean Air Act Amendments did not alter what is required.” In addition, Congress explicitly codified the same principle in 42 U.S.C. § 7410(n)(l). The petitioner counters that the EPA should have reconsidered the ozone transport issue because the previous Ohio State Implementation Plan was approved in 1980,- before the 1990 amendments, and the 1990 amendments made the requirements for interstate transport more stringent. The EPA argues that the 1990 amendments did not change the standard for interstate transport. Rather, the EPA requested the change in the law because prior to 1990 the EPA had enforced the stricter standards and wanted Congress to codify the EPA’s longstanding interpretation of the earlier provision. The EPA’s explanation is confirmed in 57 Fed.Reg. 13,-498,13,556 n.34, which provides: The pre-amended 110(a)(2)(E) required SIP’s to contain a provision prohibiting stationary sources from emitting an air pollutant in amounts which will “prevent attainment” in another State. The amended version of this language requires a SIP provision that prohibits emissions that will “contribute significantly to nonattainment” in another State. However, EPA interpreted the pre-amended language in the manner that Congress expressed in the amended Act. We find that the EPA’s approach to the regional transport problem is reasonable and not arbitrary and capricious. We therefore will not disturb the decision of the EPA to redesignate the Cleveland-Akron-Lorain area as an attainment area for ozone.

BEAM, Circuit Judge. Wal-Mart Stores, Inc. (Wal-Mart) appeals from a decision of the district court ordering it to pay $19,946,038.20 in premiums and interest to the receiver of an insolvent insurance carrier, Transit Casualty Company (Transit), which carrier issued policies of workers’ compensation insurance covering Wal-Mart employees in the states in which Wal-Mart conducted business. Wal-Mart contends that the district court drew erroneous legal conclusions from certain undisputed facts presented over seven days of trial. We agree and reverse. BACKGROUND The facts of this case are lengthy and complex. The district court issued an opinion which sets forth the numerous transactions giving rise to this litigation, see Wal-Mart Stores, Inc. v. Crist, 664 F.Supp. 1242 (W.D.Ark. 1987), and we will not attempt to restate each of the district court’s findings here. We will, however, discuss those facts essential to an understanding of the issues presented on appeal and to our resolution of those issues. Wal-Mart owns and operates a very successful chain of retail stores, with facilities in eighteen states at the times relevant to this appeal. In each of these states, as required by law, Wal-Mart provided workers’ compensation insurance for its employees. Beginning in 1980, Wal-Mart became self-insured for its workers’ compensation obligations and for its general liability risks in all states in which it conducted business except Texas and a few southern states in which it maintained only a limited number of employees. Wal-Mart remained self-insured through late 1982, at which time John Sooter, Wal-Mart’s Director of Risk Management, sought proposals for renewal or replacement of the workers’ compensation policy covering Wal-Mart’s Texas employees. Offers were solicited through Wal-Mart's insurance consultant, Alexander & Alexander (A & A). One of the quotes which A & A presented to Wal-Mart was from Transit through its agent Carlos Miro. Carlos Miro owned and operated Miro & Associates, an underwriting agency in Dallas, Texas. In May of 1982, Miro entered into a “Managing Agency Agreement” with Donald F. Muldoon & Co., Inc. (Mul-doon), a Transit general agent who possessed authority to appoint sub-agents. This agreement authorized Miro to issue and place insurance coverage on Transit’s behalf. Miro was provided with blank Transit policy forms for this purpose, and quickly became Transit’s most productive agent. The quote which Miro provided for Wal-Mart’s Texas workers’ compensation coverage, utilizing Transit policy forms, was quite favorable. Upon receipt of the Texas proposal, Wal-Mart asked Miro to provide a quote for workers’ compensation coverage for all Wal-Mart employees to replace the self-insurance arrangement utilized by Wal-Mart in the other states. Miro gladly accepted Wal-Mart’s invitation, obtained and reviewed Wal-Mart’s payroll data and loss history for several prior years, and arranged a meeting in Dallas to present his proposal. Miro offered to provide workers’ compensation insurance coverage for all Wal-Mart employees for a flat and guaranteed premium of $3,500.000.00. The premium was to be unaffected by any factor other than an increase or decrease in Wal-Mart’s estimated annual payroll, a change in which would increase or decrease the premium proportionately. The district court found, though Miro did consider Wal-Mart’s loss history in reaching the $3.5 million figure, that Miro quoted the premium as a guaranteed flat rate, not to be adjusted or influenced by the amount of claims paid. This arrangement was very attractive to Wal-Mart, according to Sooter, not only because of the competitive price, but because Wal-Mart could budget in advance for a fixed maximum premium expense. Wal-Mart accepted Miro’s bid, and received a cover note and binder from Miro which set forth the terms of the agreement. Somewhere between thirty and sixty days after the coverage took effect, Miro sent A & A the Transit policy which purportedly embodied the agreement. A & A reviewed the policy, considered it satisfactory, and sent it to Wal-Mart who also reviewed its terms. The policy contained a provision for computation of premium in accordance with standard manual rates promulgated by the National Council of Compensation Insurers, which rates were on file with the appropriate state regulatory bodies. The various rates were multiplied by estimated payroll for each job classification to reach an aggregate premium. The policy was structured so that the premium obtained after multiplication of rates times payroll, less discounts, was exactly $3,500,000.00, as agreed upon. However, to reach this result, Wal-Mart's estimated payroll, reported by Transit to be $547,000,-000.00, was reduced on the face of the policy to approximately $250,000,000.00. If the actual payroll estimate had been used, the total premium due would have been well in excess of the agreed upon figure. Wal-Mart and A & A were both aware that the estimated payroll had been depressed, but took no action and accepted the policies. In fact, A & A advised Wal-Mart that this was a common practice in the insurance industry and that it should be of no concern. Additionally, certain endorsements were attached to the policy which, if enforced, would have operated to raise the premium if losses proved greater than expected. Wal-Mart and A & A were also aware of these provisions, but apparently assumed they would not be enforced, since to do so would violate the premium portion of the agreement. A similar policy was issued for the following year, for the same $3.5 million maximum premium. Payroll figures utilized in the renewal policy were also substantially depressed. Near the end of the second policy year, problems began to surface. Claims on the Wal-Mart policies turned out to be well beyond any of the parties expectations, and. far in excess of premiums collected on the policies. Transit asserts that amounts paid to date on the two policies approximate $21,000,000.00. It is not surprising, therefore, that Transit soon learned that Miro’s captive reinsurers, with whom the entire risk on the Wal-Mart policies had been reinsured, had stopped paying claims. Shortly thereafter, Miro’s agency with Transit was terminated, and Transit demanded additional premium payments from Wal-Mart in accordance with the rates set forth in the issued policies and Wal-Mart’s actual payroll. Upon receipt of Transit’s demand for additional premium, Wal-Mart filed this suit for a declaratory judgment seeking enforcement of the agreement entered into with Miro. Transit answered, alleging that the agreement which Wal-Mart seeks to enforce is contrary to law and unenforceable. Transit also counterclaimed for nearly $20,000,000.00 in additional premiums it claims Wal-Mart owes pursuant to the terms of the two policies. Wal-Mart denied liability on the counterclaim, and filed a third-party claim against A & A, seeking recovery of any amounts which Wal-Mart is required to pay to Transit. After making thorough and detailed factual findings, the district court concluded (1) that Miro exceeded his authority, both actual and apparent, in entering into the agreement with Wal-Mart; (2) that the premium provisions of the agreement are illegal and unenforceable under state insurance law; and (3) that Wal-Mart is bound by the terms which were actually embodied in the Transit policies, though those terms differ substantially from the actual agreement which had been reached. The court ordered Wal-Mart to pay additional premiums to Transit, in accordance with the manual rates set forth in the policies and with Wal-Mart’s actual payroll figures. Wal-Mart appeals each of these determinations. DISCUSSION 1. Miro’s Authority The district court first concluded that Miro’s actual authority was limited by the terms of the agency agreement in force between Miro and Muldoon (acting in behalf of Transit), which agreement prohibited Miro from entering into agreements utilizing premium rates not on file with appropriate state regulatory authorities. The agreement authorized Miro to issue policies “subject to and in accordance with the insurance laws and regulations of each State, and in accordance with rates, filings, forms, policy limits, underwriting guidelines governing acceptance * * * as directed, filed, and promulgated by [Transit] * * Wal-Mart argues that this language amounts merely to “instructions” to act lawfully, and that Miro was actually authorized to issue whatever policies he deemed prudent. We agree with the district court that the language of the agency agreement operated to define the scope of Miro’s actual authority. See Restatement (Second) of Agency § 33 (1958). The limitations set forth in the agreement imposed substantive boundaries upon Miro’s authorized activities. Assuming, as the district court did, that Miro acted unlawfully in entering into the $3.5 million agreement, the district court correctly concluded under the facts presented that Miro acted outside of the bounds of the actual authority granted to him by Transit pursuant to the agency agreement. With regard to the issue of Miro’s apparent authority, however, we disagree with the conclusion reached by the district court. Under Arkansas law, which the parties agree applies to this issue, apparent authority is such authority as “a principal proclaims or permits, such authority which a principal by lack of care causes or allows, or such authority as a reasonably prudent man using diligence and discretion would naturally suppose.” Scholtes v. Signal Delivery Serv., Inc., 548 F.Supp. 487, 495 (W.D.Ark.1982). See Mack v. Scott, 230 Ark. 510, 323 S.W.2d 929, 931-32 (1959); Ozark Mut. Life Ass’n v. Dillard, 169 Ark. 136, 273 S.W. 378, 381 (1925). Two elements must be established to support a showing of apparent authority: “(1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority.” Central Surety & Ins. Corp. v. O. & S. Wholesale Co., 193 Ark. 523, 101 S.W.2d 167, 172 (1937) (quoting 2 C.J. Agency § 213, at 574). See Continental Cas. Co. v. Erion, 186 Ark. 1122, 57 S.W.2d 1025, 1028 (1933). If an agent acts within the scope of his apparent authority, his acts bind the principal, whether actually authorized or not, and even if contrary to express direction. See Landmark Savings Bank v. Weaver-Bailey Contractors, Inc., 22 Ark.App. 258, 739 S.W.2d 166, 169 (1987). Transit does not dispute that the first portion of this test, conduct by the principal, is satisfied in this case through Transit’s provision of blank policy forms to Miro. The more difficult issue is whether Wal-Mart acted reasonably in believing that Miro possessed sufficient authority to enter into the $3.5 million agreement. We believe it did. In reaching its conclusion on this issue, the district court focused primarily upon two facts: Wal-Mart’s sophistication as an insurance purchaser and the very low premium offered by Miro. The court concluded that the deal offered by Miro was “too good to be true,” and that Wal-Mart, as an experienced and knowledgeable insurance buyer, should have known that no reasonable insurer would permit an agent to offer a policy on such terms. There are two flaws in this approach. First, such an analysis places great weight upon events which took place subsequent to the time the contract was agreed upon. The terms offered by Miro appear extraordinarily favorable only because of Wal-Mart’s loss experience over the two years following the initiation of the policy. There was testimony that workers’ compensation claims filed by Wal-Mart employees over several years preceding 1982 in the states in which Wal-Mart was self-insured averaged just over $2 million per year. Projected losses for the first policy year were estimated to be under $3 million. Thus, while a $3.5 million guaranteed premium was certainly a competitive offer, it was by no means unreasonably low in comparison to Wal-Mart’s demonstrated loss history at the time. The reasonableness of Wal-Mart’s actions and perceptions must be judged at the time the contract was entered into, under the facts and circumstances then existing. The district court erred in relying so heavily on Wal-Mart’s disastrous loss experience, something about which all the parties were unaware at the relevant point in time. Additionally, we believe that the district court’s analysis improperly imposed upon Wal-Mart an unreasonable level of expertise in state workers’ compensation insurance laws and practices. The court found, and we agree, that Wal-Mart was a sophisticated insurance consumer. However, the court also found that such sophistication should have been adequate for Wal-Mart to know without question, before receipt of the actual policy from Transit, that Miro’s proposal, in any form, would not have been satisfactory to state insurance regulators. An insured whose principal business is retail sales cannot be reasonably expected to maintain such expertise in the intricacies of state workers’ compensation regulatory requirements in each of the many states in which it does business. Under the district court’s analysis, Wal-Mart would have been obligated to ascertain, for example, whether its insurer had utilized proper rating classifications in each state, whether those classifications had been properly applied to filed rates, and whether the insurer had properly applied filed rate deviations, if any, in each relevant state. Imputing such knowledge, and the investigatory obligations which follow, in an area as complex as workers’ compensation regulatory requirements and filings to an insured even as sophisticated as Wal-Mart is not reasonable under the circumstances of this case. Moreover, the standard applied by the district court imposes an obligation upon Wal-Mart to know when a quoted insurance premium is too low, and to reject it. Such an approach would require an insured to engage in an underwriting analysis of the risk involved to make an educated determination regarding the adequacy of the quoted premium. We believe that the duty to make this determination is better placed upon the insurer, who is undoubtedly in a better position to evaluate the relevant facts. While there may be a point at which a quoted premium is so small in light of previous loss experience that an insured should be charged with knowledge of its inadequacy, we do not believe that this case presents such a scenario. We find, therefore, that the district court erred in its reliance upon Wal-Mart’s purported knowledge of future losses, the requirements of state workers’ compensation regulations, and the intricacies of premium underwriting in finding that Wal-Mart acted unreasonably in believing that Miro was within his authority in offering the $3.5 million agreement. Further, the court improperly failed to consider evidence of the circumstances which existed at the time the agreement was reached. The record reflects that at that time, the insurance industry was extremely competitive. Witnesses referred to the “soft market” for insurance products which was then in existence in which premiums were lowered to obtain preferred clients. Wal-Mart was aware that insurers were willing to reduce premiums to obtain its business. Wal-Mart also knew that there existed numerous mechanisms by which filed workers’ compensation rates could be legitimately adjusted to achieve a quoted premium. Devices such as premium discounts, retrospective rating, policy dividends, rate deviations and scheduled rating were available to legally reduce premium charges below what would have to be paid pursuant to filed rates. We believe, at the time Miro approached Wal-Mart with his bid, that Wal-Mart could have reasonably believed that the $3.5 million premium was potentially within the bounds of state requirements. Through hindsight, we now know that the Miro bid was unreasonably low. To require Wal-Mart to have made such a determination in 1982, given the nature of the insurance market at the time and the numerous ways in which an insurer might have achieved such a rate, is improper. Miro acted within his apparent authority when he offered Wal-Mart the $3.5 million guaranteed premium, and Transit is, therefore, bound by his actions. 2. Legality of the Agreement We must next consider whether the district court correctly found that the premium agreement violates state law. The district court found that there was no need to examine the laws of each individual state in which Wal-Mart did business to make this determination because the agreement violated basic principles of workers’ compensation law common to each state’s regulatory system. The court found that an agreement to provide workers’ compensation coverage for a fixed premium, not to be adjusted for any factor other than a change in payroll, and not tied in any way to rate filings in effect in any state violated the basic statutory concept of workers’ compensation, that all employers must provide a specified level of coverage for injured workers at specified and approved rates. The court also found that the agreement was contrary to anti-rebate laws in effect in each relevant state. Wal-Mart argues that both of these conclusions are in error, and that the premium agreement is, or could have been, completely legal and fully enforceable in all states. After reviewing the record and the workers’ compensation laws of the states involved, we agree that the agreement is illegal and violates the law of each state, but for reasons different than those expressed by the district court. First, while it is true, as Wal-Mart contends, that there has been a marked trend away from strict regulation of the rates which workers’ compensation insurers must charge, all states, including those in which insurers are free to charge whatever rates they desire (the so-called “open-rated” states), require that insurers file their rating schedules and policy forms for review by state authorities, who may reject rate proposals which would result in inadequate, excessive or discriminatory charges. In addition, each state prohibits any person or organization from knowingly submitting false or misleading information to the regulatory authorities responsible for such review. Regardless of the degree of control and supervision each state exercises over the specific rates workers’ compensation insurers may charge, all require that these informational filings be made. We believe that the arrangement in effect in this case stands in clear violation of this statutory requirement. There is no dispute that the manner in which the policies issued to Wal-Mart reached the agreed upon premium was by manipulation of payroll amounts. The payrolls for each state were depressed below what was actually anticipated in order to reach the $3.5 million total, with no intent by either party to adjust the payroll figures to reflect actual amounts at a later time. The district court found, and we agree, that all parties, at some time during the policy period, knew that the payroll figures had been depressed, should have taken action to resolve the misrepresentations, but did nothing. As written by Miro, the policies did not embody the parties’ actual agreement, which was to provide coverage for the full employee payroll for $3.5 million. As written, therefore, the policies operated to deceive state regulatory authorities, because, in actuality, they embody a rating schedule which the parties never planned to file with any state. It would be impossible for state regulators to test the policies to ascertain whether the rates charged were inadequate, excessive or discriminatory, because the policies on their face did not reveal the true rates being charged. While the policies theoretically could have been structured to meet the $3.5 million bottom line through the use of legitimate discounting procedures, such legitimate procedures were not utilized here. The policies materially misrepresented information required by law to be reported truthfully in every state. They were deceptive as written, and thus violate the laws of each state involved. 3. Effect of Illegality The district court found that the insurance policies were enforceable pursuant to the terms appearing on their face, computed according to Wal-Mart’s actual payroll. Accordingly, the court ordered Wal-Mart to pay Transit additional premiums in an amount equal to what would have been due under the policy had actual payroll figures been utilized. The court said that whether the agreement regarding premium was illegal or not, workers’ compensation law requires that the coverage terms of the policies be enforced as written. We find such a result inappropriate given our conclusion that the agreement is illegal in its entirety. In its analysis, the district court separated the insurance agreement into two parts, a premium portion and a coverage portion, and enforced one segment but not the other. In reality, there was but one contract in effect between Transit and Wal-Mart, renewed after the first year, which contract consisted of premium and coverage terms, both of which were essential to a complete and binding agreement. See, e.g., Hanna v. Johnson, 233 Ark. 409, 344 S.W.2d 846, 851 (1961) (enforceable contract requires meeting of the minds as to all material terms). As clearly found by the district court, Transit agreed to provide workers’ compensation benefits to Wal-Mart employees for a premium of $3.5 million. If the premium term of the contract is illegal and unenforceable, as we believe it is, the coverage portion of the same contract is necessarily unenforceable as well. The district court’s resolution of this matter requires the execution of contractual terms to which there was no agreement by any party to the negotiations. Such a resolution is inappropriate under these circumstances. See Borden, Inc. v. Smith, 252 Ark. 295, 478 S.W.2d 744, 747 (1972) (court should not vary the terms of an agreement between the parties; to do so would “mean that we were making a new contract and we have consistently held that this will not be done.”). We find that a more fitting resolution to this dispute is to apply the doctrine of in pari delicto, and leave the parties as they presently stand. Arkansas has recognized and applied the doctrine of in pari delicto when parties to an illegal contract are equally culpable. “The general rule with respect to illegal contracts is that neither courts of law nor of equity will interpose to grant relief to the parties, if they have been equally cognizant of the illegality.” City Nat’l Bank v. First Nat’l Bank and Trust Co., 22 Ark.App. 5, 732 S.W.2d 489, 495-96 (1987). See Long v. Mabry, 250 Ark. 947, 470 S.W.2d 319, 321 (1971) (where parties to illegal bargains are in pari delic-to, the law will “leave them where it finds them.”); Womack v. Maner, 277 Ark. 786, 301 S.W.2d 438, 439 (1957). If the court finds that the parties are equally at fault in perpetrating the illegal transaction, relief will be unavailable to either party to the transaction. Id. See also Williams v. Wilson, 181 F.Supp. 351, 354 (E.D.Ark.1960). As noted by the district court, the principal purpose of the rule is to discourage the making of illegal agreements. See generally 17 Am.Jur.2d Contracts § 216, at 585-86 (1964) (“The rationale of the rule rests upon the broad ground that no court will allow itself to be used where its judg ment will consummate an act forbidden by law, and upon the policy of discouraging illegal and corrupt agreements by refusing all judicial aid to the parties thereto.”). The rule applies with equal force where the contract has been executed in whole or in part. Id. at § 223. The level of culpability of the parties was best put, we think, by the district court when it said, “there is more than enough fault to go around in this case.” Wal-Mart, 664 F.Supp. at 1269. The district court’s opinion explains in detail the various activities of Transit, through its agent Miro, and of Wal-Mart, by which each was or became an active participant in carrying out the illegal portions of the insurance contract. Transit is charged with responsibility for the acts of its agent, Miro, who structured the deal from the start. Wal-Mart, as the district court found, became aware of the depressed premium figures, and did nothing. Though Wal-Mart acted reasonably in its belief at the outset that Miro could have lawfully structured the policies to reach the quoted premium, when the policies were later delivered and Wal-Mart became aware of the manner in which the quoted premium was actually achieved, the reduction of payroll, Wal-Mart should have taken corrective action. It is at this point, when Wal-Mart saw how Miro structured the policies, that Wal-Mart became chargeable with the illegality. We believe the district court correctly concluded that all parties were active and willing participants in a knowingly illegal venture. Accordingly, we find that the district court should have found the parties in pari delicto and refused to grant relief of any sort. The district court discussed the issue, but found that application of the doctrine was inappropriate because Wal-Mart would supposedly receive the full benefit of its illegal activities, thereby encouraging rather than deterring the formation of illegal bargains. We disagree. The district court’s analysis places undue emphasis on the fact that the agreement has been partially executed, a fact which, as noted, is not pertinent to the application of the in pari delicto doctrine. In any event, we believe, to the contrary, that application of the doctrine here would work to discourage insurers from permitting agents to quote premiums and structure policies in violation of state insurance regulations. Requiring the payment of greater premiums by Wal-Mart not only stahds in direct conflict with the terms of the original agreement as all parties expected it to be carried out, but operates to reward Transit for structuring an illegal arrangement which it, as the insurer, was in the best position to prevent. The district court should have denied relief on both Wal-Mart’s action for a declaratory judgment and Transit’s counterclaim for payment of premiums. One further comment on the practical effect of such a resolution of this case is necessary. As noted, while Transit has paid somewhere between $16 and $21 million in claims on the two workers’ compensation policies, the parties expect that a significant amount of claims are yet to be filed and paid. The ultimate responsibility for payment of these claims, in the absence of valid workers’ compensation insurance coverage, rests with Wal-Mart as the employer. See New Hampshire Ins. Co. v. Logan, 13 Ark.App. 116, 680 S.W.2d 720, 722 (1984) (“[T]he primary liability for workers’ compensation is upon the employer and * * * insurance coverage does not relieve the employer of that liability.”); McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608, 611 (1961). As a leading commentator explained: While as between the insurer and employer, the former is liable to pay such awards, and the employer may recover back from the insurer payments he has made, nevertheless the' employer is primarily liable and on failure of the company to pay any award, the employer will be obligated therefor. Thus, if the insurer becomes insolvent, the employer must discharge any award made, or any other sums due the employee. 7B Appleman, Insurance Law and Practice § 4624, at 213-14 (1979). Thus, assuming that Transit does not pay further claims, either because of insolvency or because the insurance agreement is unenforceable against it, the responsibility for payment of these claims rests with Wal-Mart. We simply note that under our resolution of this case, there is no risk that injured employees will be left uncompensated. CONCLUSION The district court placed the primary responsibility for compliance with state workers’ compensation laws upon the insured, Wal-Mart. Given all the circumstances of this case, we believe this obligation more appropriately rests with the insurer, Transit. We reverse the decision of the district court with respect to Transit’s counterclaim, and remand with directions to dismiss the case without relief to any party. . Miro’s proposal did include a formula, which would have adjusted the premium downward if Wal-Mart were to have an extremely favorable loss experience. However, the district court found, and we agree, that even with this potential adjustment, the parties all understood the principal element of the proposal to be a maximum guaranteed premium which would not be increased if losses became substantial. . Miro also agreed to provide coverage for Wal-Mart’s future liability for workers’ compensation benefits for the period from February 1, 1980 through January 31, 1983, when Wal-Mart was self-insured. This coverage was provided for just under $3 million, the amount of reserves which had been established by Wal-Mart on claims incurred and reported during this period. With respect to this agreement, involving "tail coverage" as the district court described it, the district court found that Miro and wal-Mart had entered into a fully enforceable agreement which was binding upon both parties. This portion of the district court’s decision is not challenged on appeal, and we shall not discuss it further. . The Wal-Mart policies had been 100% rein-sured through offshore captive reinsurance companies under Miro's control. Transit had made a conscious effort to expand its involvement in such offshore captive reinsurance ventures, in which Transit served merely as the "fronting” company, permitting the use of its policy forms for a percentage fee. Assuming all risks were properly reinsured with solvent companies, Transit believed it was protected from exposure on the insured risks. . Issues regarding the nature and extent of an agency relationship are, when material facts are undisputed, questions of law reviewable de novo. Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249, 251 (1963); Field v. Omaha Standard, Inc., 582 F.Supp. 323, 328 (E.D.Pa.1983), aff’d, 732 F.2d 145 (3d Cir.), cert. denied, 469 U.S. 828, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984) (“If the facts concerning the connection between the parties are not in dispute, questions concerning the existence and the nature of the relationship are properly determined by the court."). See 3 CJ.S. Agency § 548, at 482 (1973); 3 Couch on Insurance § 26.61, at 618 (1984). The facts necessary to an analysis of the agency issues presented here were set forth in detail by the district court. Our analysis does not reevaluate these factual determinations, but simply places differing emphasis upon essentially undisputed facts when we believe they are of greater or lesser legal significance. . In addition, many states had, by this time, implemented efforts aimed at deregulating the workers’ compensation insurance industry. Minnesota, for example, a state which had required adherence to rates promulgated by a state rating commission, changed its laws in 1979 to require only that workers’ compensation insurers not charge more than a maximum rate. See Minn.Stat. § 79.21 (1982). Such deregulation efforts added to the growing competitive atmosphere in the industry. . For example, there was testimony that in 1984, Transit had filed and received approval in Arkansas for separate 15 and 50 percent deviations from filed rates. Accordingly, the actual premium charged by Transit in 1984 could have been up to 65 percent less than the actual rates filed in Arkansas. The premium which the district court ordered Wal-Mart to pay is based upon filed rates with no discounts or deviations. . The states within the coverage of the policies were: Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas. New Mexico was listed on the first policy, but not on the renewal policy. . Ala.Code § 25-5-8(f)(2) (1986); Ark.Stat.Ann. § 23-67-119(l)(A) (1987); Fla.Stat.Ann. § 627.091(1) (West 1984); Ga.Code Ann. § 33-9-21(a) (1987); Ill.Stat.Ann. ch. 73 ¶ 1065.4(1) (Smith-Hurd 1988); Ind.Code Ann. § 27-7-2-13(a) (1986); Iowa Code Ann. § 515A.4(1) (West 1988); Kan.Stat.Ann. § 40-928 (1986); Ky.Rev.Stat.Ann. § 304.13-051 (Baldwin 1987); La.Rev.Stat.Ann. § 22:1407(A)(1) (West Supp.1988); Miss.Code Ann. § 83-3-107(1) (1973); Mo.Rev.Stat. § 379.321(1) (1986); Neb.Rev.Stat. § 44-1405 (Reissue 1984); N.M.Stat.Ann. § 59A-17-10 (1984); N.C.Gen.Stat. § 58-124.20 (1982); Okla. Stat.Ann. tit. 36 § 903 (West Supp.1988); S.C. Code Ann. § 38-43-340 (Law. Co-op. 1985); Tenn.Code Ann. § 56-5-306(b) (Supp.1987); Tex.Ins.Code Ann. § 5.15(a) (Vernon 1981). .Ala.Code § 27-13-77 (1986); Fla.Stat.Ann. § 627.361 (West 1986); Ga.Code Ann. § 33-9-35 (1987); Ill.Stat.Ann. ch. 73 ¶ 1065.14 (Smith-Hurd 1988); Ind.Code Ann. § 27-1-22-17 (1986); Iowa Code Ann. § 515A.14 (West 1988); Kan.Stat.Ann. § 40-938 (1986); La.Rev.Stat. Ann. § 22:1416 (West Supp.1988); Miss.Code Ann. § 83-3-119 (1973); Mo.Rev.Stat. § 379.353 (1986); Neb.Rev.Stat. § 44-1436 (Reissue 1984); N.M.Stat.Ann. § 59A-17-31 (1984); Okla.Stat. Ann. tit. 36 § 935 (West Supp.1988); S.C.Code Ann. § 38-43-100 (Law. Co-op. 1985); Tex.Ins. Code Ann. § 5.21 (Vernon 1981). Arkansas, Kentucky, North Carolina and Tennessee had no comparable statute during the relevant time period. However, each state’s general prohibitions against misrepresentation and fraud upon state officials would undoubtedly extend to the conduct at issue here. . The district court also placed great weight upon an incident which we agree demonstrates Wal-Mart’s cognizance of and willingness to participate in the illegal arrangement after delivery of the policies. In late 1984, Miro told Wal-Mart and A & A that a transfer of $6 million needed to be made to “satisfy statutory requirements.” Miro acknowledged, according to their agreement, that Wal-Mart did not owe additional premiums, but suggested that Wal-Mart transfer the money to Miro, who would transfer it to his offshore captive reinsurance company, who would then transfer it back to Wal-Mart as a dividend. Wal-Mart, without inquiring about the specific regulatory requirements which were involved or questioning why such a sham payment had to be made, agreed to the transfer with assurances that the funds would be returned. We agree with the district court that Wal-Mart's willingness to participate in this transaction, though it was never consummated, speaks loudly about its knowledge of the propriety of the entire arrangement. For a more detailed description of the proposed transaction, see Wal-Mart, 664 F.Supp. at 1250-51 & 1260-61. . An additional issue raised by the parties, but not considered by the district court, involves whether Transit’s receiver is bound by the illegal acts of the insolvent prior to receivership. Transit relies upon a line of cases following D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), in which the Supreme Court held that the FDIC is not bound by undisclosed arrangements affecting the genuineness or integrity of notes in the insolvent bank’s portfolio. Transit asks that we apply a similar doctrine to it as the receiver of an insolvent insurer. Transit cites no cases extending the D’Oench doctrine beyond the confines of the banking industry, and we are not persuaded to take such a step here. . One other potential source of funds to pay claims made by Wal-Mart employees is state insurance guaranty funds, established to assist in payment of claims against insolvent insurers. However, such funds, in general, apply only to "covered claims,” a term generally defined to include only those claims within the coverage of a valid policy of insurance in effect at the time of the insolvency. 19A Appleman, Insurance Law and Practice § 10801, at 367-68 (1982). See, e.g., Fla.Stat.Ann. § 631.54(3) (1984); Ill. Stat.Ann. ch. 73 ¶ 1065.84-3 (Smith-Hurd Supp. 1988); Mo.Rev.Stat. § 375.785(3)(2) (1986); Neb.Rev.Stat. § 44-2406 (Reissue 1984); N.C. Gen.Stat. § 58-155.45(4) (Supp.1987). . Given our resolution of the claims between Wal-Mart and Transit, we need not consider the district court’s resolution of Wal-Mart’s third-party action against A & A. It, of course, shall be dismissed along with the other claims in the lawsuit.

PER CURIAM: Appellant, James Ray Jackson, appeals the denial of future compensation benefits pursuant to the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA), for injuries sustained on his job. Jackson settled a third party liability action for his injuries while he was receiving voluntary payments under the LHWCA from his employer. Following the settlement, his employer stopped the payments, and Jackson formally applied for future benefits. Jackson was denied future benefits from his employer, because he settled his third party action without obtaining the prior approval of his employer. 33 U.S.C. § 933(g). We affirm. I. Union Oil Company of California (Union) owns offshore oil platforms in the Gulf of Mexico. Union contracted with Land & Offshore Services, Inc. (L & 0) to perform maintenance services on these platforms. In the contract, L & 0 agreed to indemnify Union against claims brought against Union by L & 0’s employees, and L & 0 agreed to obtain insurance to protect Union from such claims. L & 0 also waived any right of subrogation against Union. Appellant Jackson was an employee of L & 0. In September of 1979, he was injured while working on a Union platform in the Gulf of Mexico. Following the accident, L & 0 voluntarily began making worker’s compensation payments to Jackson pursuant to the LHWCA. While receiving these payments, Jackson sued Union in the United States District Court for the Western District of Louisiana, claiming that Union negligently caused his injuries. The case went to trial, but before the jury returned from its deliberation, Jackson and Union confected a structured settlement. Jackson agreed to this settlement without the knowledge, consent, or approval of his employer, L & 0. L & 0 learned of the settlement over a year later and immediately discontinued its voluntary payments to Jackson. Jackson then filed a worker’s compensation claim with the United States Department of Labor seeking renewed worker’s compensation benefits. A hearing on Jackson’s claims was held before an Administrative Law Judge (AU). The AU denied Jackson’s application for benefits, because Jackson settled his third party claim against Union without his employer’s consent, and therefore, the LHWCA barred any future recovery of worker’s compensation benefits as a result of his accident. 33 U.S.C. § 933(g). Jackson appealed the decision of the AU to the United States Department of Labor Benefits Review Board (BRB). The BRB affirmed. We have jurisdiction of Jackson’s appeal seeking review of the legal conclusions of the BRB under 33 U.S.C. § 921(c). See Miller v. Central Dispatch, Inc., 673 F.2d 773, 778 (5th Cir.1982). There are no factual disputes. Jackson argues that the LHWCA requires neither notification to his employer nor his employer’s consent to his settlement with Union because his employer had waived its right to subrogation and had agreed to indemnify Union. This conclusion is contradicted by the clear precedent of this court. Petroleum Helicopters, Inc. v. Collier, 784 F.2d 644 (5th Cir.1986); Petro-Weld, Inc. v. Luke, 619 F.2d 418 (5th Cir.1980). We affirm the BRB. II. This case is controlled by 33 U.S.C. §§ 933(f) & 933(g)(1) and (2), which provide in pertinent part as follows: (f) If the person entitled to compensation institutes proceedings [against a third person] the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the net amount recovered against such third person.... (g)(1) If the person entitled to compensation ... enters into a settlement with a third person ... for an amount less than the compensation to which the person ... would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) of this section only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed.... (2) If no written approval of the settlement is obtained ... or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this chapter shall be terminated, regardless of whether the employer or the employer’s insurer has made payments or acknowledged entitlement to benefits under this chapter. III. Jackson raises two objections to the application of the notice and approval requirements of section 933. First, notice was not required, because L & 0 had no interest in the settlement. He argues that L & 0 waived any right it had in the settlement by agreeing to waive its subrogation rights and to indemnify Union. Second, notice was not required because the settlement was for an amount greater than the compensation Jackson was entitled to under the LHWCA. Jackson argues that section 933(g)(1) expressly applies only when the settlement is for an amount less than the statutory entitlement. Both of these arguments ignore a central purpose of the notice provisions — to protect the compensation scheme from costs that should be borne by third party tortfeasors and thus to prevent double recovery. Waiver of subrogation rights does not exhaust an employer’s interest in a settlement between an employee and such a third-party. Collier, 784 F.2d at 647. The employer has a right to set-off the amount of the settlement against future payments. 33 U.S.C. § 933(f); Collier, 784 F.2d at 646-47. This provision is independent of the right of an employer to subrogation. The right is also protected by the notice provision. Collier, 784 F.2d at 646-47; Petro-Weld, 619 F.2d at 421. For example: [AJssume that the injured worker is entitled to $10,000 compensation benefits. If the employee were to unilaterally settle his claim against the third party for $1.00, the covered employer would be liable for the remaining $9,999. By giving the employer the right to approve compromises, the [LHWCA] eliminates this potential prejudice. In our example, the employer would not approve the proposed $1.00 settlement and would insist on a larger one. If the third party would then settle the claim against it for $5,000, the employer’s ultimate liability would then be reduced to $5,000. United Brands Co. v. Melson, 594 F.2d 1068, 1074 (5th Cir.1979) (citations omitted). “Moreover, there is nothing in the language of § 933 to support a ‘waiver of subrogation’ exception to the unqualified requirement that an employee obtain the consent of the employer and carrier for any settlement with a third party tortfeasor.” Collier, 784 F.2d at 647. The fact that L & O indemnified Union in addition to waiving its subrogation rights strengthens, rather than distinguishes, the holding of Collier. If Jackson is allowed to recover twice and L & O is required to pay both the amount of Jackson’s settlement with Union and to continue worker’s compensation benefits it will pay twice. Jackson is entitled to only one recovery regardless of who pays it. The amount of the settlement is also irrelevant to whether L & O must continue to pay benefits. L & O is entitled to set-off any amount recovered by Jackson in an action against a third party tortfeasor. 33 U.S.C. § 933(f). If the amount of the settlement is greater than the value of the benefits to be paid by L & O, L & O’s obligation is set-off entirely. If the settlement is for a lesser amount, L & 0 could be required to continue making payments. In the latter case, the employer’s consent is expressly required on penalty of terminating all further rights to benefit payments. Since Jackson gave no notice, he is not entitled to future payments. This is true regardless of the amount of the settlement. The protections provided by section 933(g) are not necessary when the settlement amount exceeds the employer’s obligation; such a settlement eliminates any further obligation to pay. If the settlement is less than the amount of benefits provided, lack of notice terminates the right to receive those benefits. IV. The Order of the Benefits Review Board is AFFIRMED. . Since L & O paid benefits during the period from the settlement to the date it discontinued payments, Jackson has surely recovered more than he was entitled to be paid under the LHWCA. L & O and its insurance carrier have not requested relief from BRB or this court for the payments they made to Jackson after the settlement.

BAUER, Chief Judge. Plaintiff, Robert DeMallory, is an inmate at Wisconsin’s Waupun Correctional Institute (WCI). On August 17, 1978, WCI authorities placed DeMallory in the WCI Adjustment Center, a maximum security facility within the prison that separates certain inmates from general population inmates, because of his alleged involvement in a disturbance at WCI. The Adjustment Center’s surroundings are spartan, and its prisoners’ activities are more restricted than those of general population inmates. On November 4, 1978, prison authorities released DeMallory from the Adjustment Center, but returned him on January 10, 1979, where he remained until February, 1988. DeMallory originally brought two suits. In the first, DeMallory alleged that conditions of confinement in the WCI Adjustment Center amounted to cruel and unusual punishment. In the second, he argued that limitations on the legal resources available to Adjustment Center prisoners unconstitutionally restrict their access to the courts, thus violating their Fourteenth Amendment rights. Defendants, various government and prison officials, moved for summary judgment on both the eonditions-of-confinement claim and the access-to-courts claim. DeMallory moved for summary judgment on the access-to-courts claim. After submitting the matter to a magistrate, the district court granted summary judgment on both of DeMallory’s claims in favor of defendants. DeMallory appeals. I. DeMallory first argues that conditions in the Adjustment Center constitute cruel and unusual punishment. His Eighth Amendment claim focuses primarily on the defendants’ allegedly willful failure to protect him from the activities of other Adjustment Center inmates and the unsanitary conditions in the unit. He alleges that WCI officials knowingly housed mentally-ill inmates with the rest of the Adjustment Center population, that these inmates soil their cells and surrounding areas by throwing food, human waste, and other debris, and that these inmates have set “approximately 50 fires,” that have resulted in the hospitalization of several inmates, including himself. He further alleges that the various defendants are personally responsible for the health and safety hazards, specifically, that WCI officials intentionally allowed the Adjustment Center to remain unsanitary and kept Adjustment Center windows locked despite repeated fires. Finally, De-Mallory contends that a guard spit on him while he was housed in the Adjustment Center. The district court granted summary judgment in favor of the defendants, holding that “there has been no competent evidence presented that the prison officials evidenced a deliberate indifference to DeMallory’s medical needs, due to the inhalation of smoke, for a finding that his Eighth Amendment rights were violated.” As for the spitting incident, the court ruled that “a correctional officer spitting upon a prisoner does not rise to the level of a constitutional violation.” Id. at 3. We agree with the district court’s disposition of those portions of DeMallory’s Eighth Amendment claim that address the medical care given DeMallory and the spitting incident. Because the district court failed to address the primary thrust of DeMallo-ry’s complaint—that WCI officials have willfully allowed unsanitary and dangerous conditions to continue in the Adjustment Center, however, we reverse the order granting summary judgment and remand for further proceedings. “It has long been established that prisoners have rights under the Eighth Amendment to receive reasonable protection from harm inflicted by other inmates.” Madyun v. Thompson, 657 F.2d 868, 875 (7th Cir.1981). Such a claim may be sustained only by a showing of deliberate indifference by prison officials; mere negligence is not enough. Duckworth v. Franzen, 780 F.2d 645, 652-55 (7th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Liability under the Eighth Amendment “requires, at a minimum, that the prison officials have realized there was imminent danger and have refused—consciously refused, knowingly refused—to do anything about it.” Campbell v. Greer, 831 F.2d 700, 702 (7th Cir.1987). The district court, without expressly saying so, apparently treated the defendants’ motion for summary judgment on DeMallo-ry’s Eighth Amendment claim as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Only the plaintiff’s complaint and the defendants’ answers were before the court; no discovery was taken. In their answer to the complaint, the defendants asserted that they had insufficient information from which they could form an opinion with respect to the allegations and denied any unconstitutional conduct. By awarding summary judgment in this situation, the district court actually dismissed the case on the pleadings. In so doing, the district court failed to follow the basic standard governing Rule 12(b)(6) dismissals. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Moreover, in “complex cases involving both fundamental rights and important questions of public policy, such peremptory treatment is rarely appropriate.” Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th Cir., 1988) (Ripple, J., concurring in part, dissenting in part). In this case, the district court did not read DeMallory’s Eighth Amendment claim in this light. Rather, by focusing on only two incidents alleged in the complaint, the court failed to consider the complaint as a whole and seemingly ignored the more pressing issues alleged by DeMallory. DeMallory’s conditions-of-confinement complaint, taken as true, as it must for purposes of a motion to dismiss, states a claim on which relief can be granted. The Supreme Court has emphasized that “[n]o static ‘test’ can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meáning from the evolving standards of decency that mark the progress of a maturing society.’ ” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citation omitted). See also Smith v. Fairman, 690 F.2d 122, 125 (7th Cir.1982), cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). In all cases, the determination as to whether prison conditions constitute cruel and unusual punishment turns on the totality of the conditions of confinement. Madyun, 657 F.2d at 874; see also Smith, 690 F.2d at 125 (quoting Madyun). Not surprisingly, suits challenging the sanitation and safety of prisons have received varying treatment by federal courts. This court has repeatedly stressed that the Eighth Amendment requires prison officials to maintain minimal sanitary and safe prison conditions and we have not hesitated to award damages to inmates when prison conditions have fallen below the threshold of decency ensured by the Eighth Amendment. See, e.g., Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.1988) (Eighth Amendment requires at least five hours of exercise and one shower each week for inmates segregated more than ninety days); Wells v. Franzen, 777 F.2d 1258 (7th Cir.1985) (Eighth Amendment requires minimal exercise, showers, clothing, and sanitary eating conditions). We therefore reverse the judgment of the district court and remand the case for further consideration. II. DeMallory next argues that restrictions on library access for prisoners in the Adjustment Center preclude their effective access to the courts. Prisoners in the Adjustment Center may not go to the prison library, may not confer personally with WCI’s inmate paralegals, and may not participate in the legal training and services offered through the WCI paralegal program. The Adjustment Center prisoners may check out books from the legal library by written request and may consult paralegals by correspondence. They also may confer with each other during exercise periods and seek some legal assistance through public defenders, court-appointed counsel, private attorneys, or Wisconsin’s Legal Assistance to Institutionalized Persons (LAIP) Program. A set of 1969 Wisconsin statutes is also available to the inmates housed in the Adjustment Center. The record includes several memoranda in which WCI officials acknowledge that they are “aware of the problem of legal assistance for those inmates in segregation status,” but no solution appears forthcoming. A prison inmate’s right of access to the courts is the most fundamental right he or she holds. “All other rights of an inmate are illusory without it, being entirely dependent for their existence on the whim or caprice of the prison warden.” Adams v. Carlson, 488 F.2d 619, 630 (7th Cir.1973). In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court held that the constitutional right of access to the courts “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id., at 828, 97 S.Ct. at 1498. Prison authorities need not provide both of these, but must provide one or the other, or a comparable alternative. Id. at 830-32, 97 S.Ct. at 1499-1500. Prison officials bear an affirmative duty to provide inmates with this reasonable access to courts and counsel and also bear the burden of proving the adequacy of the means they provide. Campbell v. Miller, 787 F.2d 217, 225-26 (7th Cir.), cert. denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986). The defendants, therefore, can prevail if they can demonstrate that DeMallo-ry had access to an adequate library or to adequate personal legal assistance. The magistrate found that although the legal assistance available to the Adjustment Center’s prisoners might not be “optimal,” it constituted “sufficient access to the courts according to Bounds.” The district court agreed. We disagree. The district court lacked the evidentiary basis necessary for granting the defendants’ summary judgment. DeMallory contends that the procedures available to inmates at the Adjustment Center fail both elements of this test. He argues first that the law library available to Adjustment Center inmates is inadequate. As noted, prison authorities denied DeMallory all access to the library with the exception of 1969 Wisconsin Statutes housed in the Adjustment Center and specific volumes requested by inmates. In Corgain v. Miller, 708 F.2d 1241 (7th Cir.1983), this court held a system functionally similar to WCI’s constitutionally inadequate. In Corgain, inmates challenged the adequacy of their access to state courts while they were incarcerated at the United States Penitentiary at Marion, Illinois. The Marion law library was deficient in state law materials, but the inmates could obtain copies of necessary materials by written request accompanied by precise citations. We agreed with a federal magistrate’s conclusion that Marion’s system was constitutionally insufficient. The magistrate correctly concluded that the law library system at USP-Marion, without state law materials or supplemental legal aid, was inadequate. He aptly characterized the Shawnee Library System’s requirement for precise citations for photocopying as a “Catch 22” because the inmate could obtain precise citations only if he could refer to state law materials. Id. at 1250. We then approved plans submitted by prison officials to remedy the inadequate access by providing inmates either with starter libraries, in which the inmates themselves could do preliminary research, or with lists of legal services offices with whom the state had contracted to provide assistance to inmates. See id. at 1248-51. We again addressed the access-to-courts issue in Caldwell v. Miller, 790 F.2d 589 (7th Cir.1986). In Caldwell, prisoners at Marion challenged restrictions placed on library access following a “lockdown” imposed after the death of an inmate and two guards. During the lockdown, prisoners were denied access to the main library, but were allowed to initiate legal research in smaller “basic libraries” and to request copies of further materials by written requests including exact page citations. The district court granted summary judgment in favor of the defendant warden. We reversed, holding that factual issues remained regarding the sufficiency of the materials available in the basic libraries. The court noted that if “the exact-cite system is supplemented by adequate reference materials in the basic library,” then the exact-cite system may be permissible. Id. at 607. Thus, the mere existence of basic libraries did not preclude the inmates from raising a factual issue regarding the sufficiency of their access to the courts. Id. at 607. In the Campbell case, however, we upheld the sufficiency of the “exact-cite” system for inmates in a segregated control unit based upon the evidentiary record before the district court. We found this system adequate in that case because the control unit library “is designed to facilitate the initial steps of legal research, viz., the formulation of tentative theories and the notation of materials needed to be consulted,” Campbell, 787 F.2d at 227, and because the “exact-cite” system did not engender any delays. Id. at 229. DeMallory, however, had no access to law libraries—even “starter” or “basic” libraries. Unlike the control unit in Campbell, the Adjustment Center library lacked the primary resources to allow DeMallory or other inmates to adequately begin their initial legal research or to formulate tentative theories. Moreover, because the district court was unable to appoint an attorney to represent him, DeMallory had to proceed without counsel. DeMallory’s meaningful access to the courts, therefore, rested solely on written correspondence with inmate paralegals for assistance on his Eighth Amendment claim. Dependence on untrained inmate paralegals as an alternative to library access does not provide constitutionally sufficient access to the courts. “Rather, when inmates have no access to a law library they must be provided with assistance by trained, skilled, and independent legal personnel.” Walters v. Thompson, 615 F.Supp. 330, 340 (N.D.Ill.1985). The defendants justify the restrictions on DeMallory’s access to legal assistance on the grounds that he and other inmates in the Adjustment Center are security risks. Generalized security concerns, however, are insufficient to support such a ban. Instead, prison officials must come forward with evidence that the specific contact at issue threatens security and must show that less restrictive measures, such as precounseling searches, are not possible. See, e.g., Turner v. Safly, — U.S. -, 107 S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987); Kunzelman v. Thompson, 799 F.2d 1172, 1179 (7th Cir.1986); Campbell, 787 F.2d at 225-26. WCI officials have done neither. Moreover, several genuine issues of material fact remain relating to less-restrictive measures, which precludes awarding summary judgment for the defendants at this stage. The defendants argue that DeMallory has “meaningful” access to legal assistance through the aid of LAIP lawyers, the State Public Defender’s Office, and the private bar. DeMallo-ry, however, contests this position and contends that although LAIP provides a variety of legal assistance to inmates, it does not handle conditions-of-confinement or institutional-discipline cases like his. The record also is unclear as to the availability of the Public Defender and private attorneys in assisting plaintiffs like DeMallory. In addition, a dispute exists as to whether the inmate paralegals provide an adequate substitute for counsel and whether the State can provide greater direct access to paralegals. The State argues that direct contact between inmates and paralegals would overtax prison resources because of the security risk involved in permitting paralegals into the segregated Adjustment Center. Yet the record reflects that, at least in some other limited circumstances, general population inmates were allowed into the Adjustment Center under the supervision of prison officials. A genuine dispute exists as to whether similar arrangements can be made to allow Adjustment Center inmates, like DeMallory, to confer with the prison paralegals without overburdening the prison authorities. The district court, then, erroneously concluded that the State provided DeMallory with meaningful access to the courts. Before entering judgment, it is necessary for the district court to hold a hearing to resolve these issues and to determine whether the State’s legitimate security concerns justify the restrictions on DeMallory’s access to legal assistance. As an alternative basis for its decision, however, the district court held that DeMallory had failed to show prejudice and therefore failed to state a claim on which relief could be granted. Because the district court apparently misperceived the nature of the prejudice requirement, we decline to accept its conclusion. We recently emphasized that the necessary showing of prejudice is a minimal one. Hossman v. Spradlin, 812 F.2d 1019, 1022 (7th Cir.1987). We require only that the plaintiff “articulate, to some degree, the basis for his claim that his access to the courts was significantly ... impaired.” Id. at 1022. DeMallory’s complaint clearly alleges that the WCI rules prevent adequate legal research and counseling. Such a complaint amounts to a sufficient allegation of prejudice to state a claim on which relief can be granted. Cf. Walters v. Thompson, 615 F.Supp. at 338 (similar complaint sufficient to support preliminary injunction). Generally, we have required a showing of prejudice only where minor or indirect limitations on access to courts are alleged. Where, as here, the plaintiff alleges a direct and continuous limitation on access to legal materials or counsel, we have required no such showing. Compare Hossman, 812 F.2d at 1021-22 (occasional interference with library access and destruction of unspecified court papers—showing of prejudice required); Jones v. Franzen, 697 F.2d 801 (7th Cir.1983) (limits on number of free photocopies—showing of prejudice required); Bach v. Coughlin, 508 F.2d 303 (7th Cir.1974) (postage regulations—showing of prejudice required); and Isaac v. Jones, 529 F.Supp. 175 (N.D.Ill.1981) (denial of library access on one occasion—showing of prejudice required); with Caldwell, 790 F.2d 589 (continuous limitation on library access—no discussion of prejudice); Campbell, 787 F.2d at 217 (continuous limitation on library access—no discussion of prejudice); and Corgain, 708 F.2d at 1241 (continuous limitation on library access—no discussion of prejudice); see also Walters, 615 F.Supp, at 338 (criticizing requirement of showing prejudice). In our adversary legal system, few things can be as prejudicial as the denial of basic legal resources. In essence, when an inmate complains of prison rules that substantially and continuously limit his or her access to legal materials and counseling, the complaint carries an inherent allegation of prejudice. Furthermore, the record before us shows evidence of prejudice. Even WCI officials have repeatedly admitted that current rules create a “problem of legal assistance” for Adjustment Center inmates. In addition, DeMallory’s reply brief in the conditions-of-confinement action was filed too late for the magistrate’s consideration. Where limitations on library use prevent filing of briefs in time for the court’s consideration, those limitations are sufficiently prejudicial to sustain an access-to-courts claim. See Isaac, 529 F.Supp. at 178-79 (by implication). We therefore find that DeMallory has shown sufficient prejudice to support his access-to-courts claim. For the reasons stated, we reverse in part and remand for further proceedings consistent with this opinion. . Corgain, Campbell, and Caldwell addressed challenges mounted by prisoners at the United States Penitentiary at Marion, Illinois, and Campbell addressed court access by prisoners in Marion’s Control Unit. “Marion is the highest level maximum security prison in the federal penitentiary system. The Control Unit is designated for those inmates deemed unfit for the general population at Marion because they pose a threat to others or to the orderly operation of the institution." Campbell, 787 F.2d at 220. Thus, “Marion presents unique disciplinary and security considerations. This is true whether one is dealing with general population inmates or with those in the Control Unit.” Caldwell, 790 F.2d at 606. By contrast, although WCI is a maximum security facility, its security concerns are generally less severe than those present at Marion. Therefore, WCI's legitimate security needs, without more, do not justify restrictions more severe than those tested in Corgain, Caldwell, and Campbell. . The record also is unclear as to whether the “volume-cite" system in place at the Adjustment Center caused unreasonable delays in filing court documents. . Other courts facing this issue also have taken the position that, at a minimum, inmates either must be given direct access to adequate libraries or must receive help from trained and competent legal personnel other than mere "writ writers" or inmate paralegals. See, e.g., Harrington v. Holshouser, 741 F.2d 66, 69-70 (4th Cir.1984) (limited library access with help from untrained inmate paralegals insufficient); Ramos v. Lamm, 639 F.2d 559, 584-85 (10th Cir.1980) (access to untrained inmate paralegals insufficient), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Kendrick v. Bland, 586 F.Supp. 1536, 1552 (W.D.Ky.1984) (telephonic communication with untrained inmate paralegals insufficient for prisoners without library access); Canterino v. Wilson, 562 F.Supp. 106, 110-12 (W.D.Ky.1983) (inmates without library access must be given access to legally-trained personnel). Cf. Lovell v. Brennan, 566 F.Supp. 672, 696 (D.Me.1983) (direct counseling by inmate advocate and hiring of full-time advocate for segregated prisoners sufficient), aff’d, 728 F.2d 560 (1st Cir.1984). . The defendants, for the first time on appeal, argue that they are entitled to immunity. Although we have doubts as to the applicability of qualified immunity to the defendants’ conduct in this case, we do not decide the issue because the defendants waived this argument by failing to raise it before the district court. Textile Banking Co., Inc. v. Rentschler, 657 F.2d 844, (7th Cir.1981). EASTERBROOK, Circuit Judge, dissenting. Robert DeMallory, a prisoner of Wisconsin, complains about the conditions of his confinement in the Adjustment Center of the state’s maximum-security penitentiary at Waupun and about his access to law books. The Adjustment Center is the place for segregating the most incorrigible inmates in the state’s charge. DeMallory was put there for instigating a riot, and in an earlier appeal we held that the state complied with the Due Process Clause in doing so. I doubt very much that there is a case or controversy about the subjects DeMallory now presents; if there is one, I doubt very much that further proceedings are necessary. 1. DeMallory was confined to the Adjustment Center between 1978 and February 12, 1988, when, his appellate counsel informs us with commendable candor, he was placed in the general population. He wants an injunction governing the operation of the Adjustment Center, but as he is not confined there he has no continuing controversy with Wisconsin about its operation. DeMallory filed the case in 1981 as a class action, but in 1983 the district court declined to certify the class, finding DeMal-lory a poor representative; he has not challenged this decision on appeal. If he were likely to be returned to segregation the case might be “capable of repetition but evading review”, see Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 16 L.Ed.2d 350 (1975); Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982); Honig v. Doe, — U.S. -, 108 S.Ct. 592, 601-02, 98 L.Ed.2d 686 (1988), but DeMallory does not contend that he is planning to foment another riot. Even if he were, the “capable of repetition but evading review” doctrine comes into play only when courts are unable fully to adjudicate claims arising out of acts that in their nature have a short duration. The doctrine is limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein, 423 U.S. at 149, 96 S.Ct. at 349. DeMallory’s skillful appellate lawyer does not even contend that there is a “reasonable expectation” that he will again be placed in the Adjustment Center, let alone that, if he is, the duration of his stay will be too short to permit adjudication. De-Mallory was in the Adjustment Center for ten years, long enough to litigate. He will return to the Adjustment Center only if he shows unfitness for the general population, and given his history, a future stay is unlikely to be brief. In the absence of so much as an argument on the two foundations of the capable-of-repetition doctrine, the case is moot. Holmes v. Fisher, 854 F.2d 229, 232 (7th Cir.1988). Weinstein requires a “demonstrated probability”, 423 U.S. at 149, 96 S.Ct. at 349, that the same party will again be subject to the challenged action, and nothing has been “demonstrated” (or even argued) here. The “probability” part was a subject of much debate in Honig: does it mean more-likely-than-not, or is some lesser likelihood enough? Whatever the minimum probability, the fact that someone is at some risk is not enough. DeMallory will be back in the Adjustment Center only if he violates the institution’s rules. Weinstein and Murphy were similar: in each, the claimed injury could recur only if the plaintiff violated a rule of law and was again caught up in the criminal justice system, raising questions about bail (Murphy) or parole (Weinstein). In each case the Court thought that the chance of another cycle of violations and sanctions was too low to keep the case alive. DeMallory’s situation is governed by the same rules. DeMallory wants damages as well as an injunction, but this does not keep the case alive, for three reasons. First, many of the persons he has named as defendants have nothing to do with the conditions of which he complains — the Governor of Wisconsin, the Secretary of the Department of Health and Human Services, and so on. Section 1983 does not expose such persons to liability on account of their subordinates’ acts. Second, he has not even offered to show injury from the events remaining in the case — the odoriferous living conditions and the lack of access to a law library. To keep the library claim alive, my colleagues find it necessary to hold that the prisoner need not establish injury from the lack of access. That pretty much eliminates the possibility of damages. The majority does not say that DeMallory is entitled to damages if he suffered no prejudice to the vindication of any legal claim. So too for the challenge to the conditions of confinement. We do not learn from DeMallory what the injury was, so there is no serious claim for damages. Third, the five defendants who have something (tangentially) to do with the remaining claims — the Warden, Associate Warden for Security, and Major of Security of Waupun; the Administrator of the Division of Corrections; and the Chairman of the Wisconsin State Prison Paralegal Program — are entitled to qualified immunity as a matter of law under the standard of Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), and Rakovich v. Wade, 850 F.2d 1180, 1205-1210 (7th Cir.1988) (en banc). No reasonably well-trained jailer would be expected to know that the Waupun library system is unconstitutional when we have sustained more restrictive systems for a federal prison (discussed below) and when we have said that prejudice is an essential ingredient of a claim of denial of access to legal texts. A majority of all the judicial officers who have examined this case — the magistrate, the district judge, and I — believe that the defendants did not violate DeMallory’s rights. How then could we say, as Anderson and Rakovich require before there may be monetary sanctions, that any reasonably well-trained official would have understood that the acts in question were unconstitutional? It may be that questions concerning immunity and the probability that DeMallory will again find himself in the Adjustment Center should be resolved in the first instance by the district court. The defendants’ motions for summary judgment omitted the immunity point, so it is not before us although it remains for decision in the district court. If the defendants prevail, and the damages claims are cleared away, there is nothing left of the case. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). To the extent immunity has become a potentially-dispositive bone of contention, we should identify the problems and remand the case rather than deliver an advisory opinion on the off-chance that the district court might find a surviving issue. 2. There is a constitutional right of access to the courts, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), not of access to law books. Books are tools, not ends in themselves. While in the Adjustment Center, DeMallory had access to law books. The Adjustment Center uses the same system as the Library of Congress: the patron must request a book by title, using the information gleaned from finding aids and requests to the staff. It is a closed-stacks system. True, the access was on terms DeMallory found inconvenient, but inconvenience is not unconstitutional. We so held in Hossman v. Spradlin, 812 F.2d 1019, 1021-22 (7th Cir.1987), adding that unless the prison’s rules hamper the pursuit of a legal claim, the need to jump through hoops to get law books is no constitutional defect. See also Bruscino v. Carlson, 854 F.2d 162, 167 (7th Cir.1988) (“a showing [of prejudice] is required in a case alleging a denial of- access to the courts.”); Howland v. Kilquist, 833 F.2d 639, 642-43 (7th Cir.1987); Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983); Bach v. Coughlin, 508 F.2d 303, 308 (7th Cir.1974). DeMallory had to jump through hoops, no doubt, but he had leaping ability. An illiterate prisoner might find Wisconsin’s system an insuperable obstacle — but then an illiterate prisoner would find a law library of no use either. Giving an illiterate the run of the stacks is like giving an anorexic a free meal at a three-star restaurant. DeMallory is literate, and the record is filled with his lucid prose, including many legal citations. The documents he filed are better than some we see from members of our bar. Neither his complaint nor his briefs on appeal (one pro se and another filed by counsel) identifies any legal claim that was hampered by the way prisoners in the Adjustment Center get access to law books. That dooms his contention that the restrictions on his access to law books were unconstitutional. See Howland, 883 F.2d at 642 (“This court has consistently found that some showing of detriment caused by the challenged conduct must be made in order to succeed on a claim alleging a deprivation of the right to meaningful access to the courts.”); Hossman, 812 F.2d at 1021 & n. 2; Bruscino, at 167. The majority says that “[i]n Corgain v. Miller, 708 F.2d 1241 (7th Cir.1983), this court held a system functionally similar to WCI’s constitutionally inadequate.” Slip op. 6. Although the systems have their similarities, the differences are more important. Corgain dealt with the system then employed by the federal prison at Marion, Illinois, to handle litigation by state prisoners, who Marion had accepted in its capacity as the most secure prison in the nation. No state prisoner could get any information on his state’s law without providing volume and page citations; yet without any finding aids, no prisoner could provide them. The court held that Marion’s system was unconstitutional but added that it would be constitutionally sufficient to provide finding aids (digests, treatises, and the like) from which pinpoint citations could be derived. 708 F.2d at 1248-51. Wisconsin does not require the prisoners in the Adjustment Center to cite specific pages without aid. It requires citations to volumes, but the prisoner’s first volume may be a treatise, digest, or other finding aid; Wisconsin offers (as Marion did not) the assistance of law students, public defenders, and inmate paralegals to obtain those “starter” citations. This looks to me like what Corgain said would comply with the Constitution. The system allowed De-Mallory to find and cite cases on point in this litigation. To say, as my colleagues do, that a prisoner need not show “prejudice” from a violation of his entitlements not only goes against the law of the circuit but also misunderstands the nature of the right. It is not as if a right (to books) has been violated, and we have to determine whether a showing of prejudice is needed to get relief for the violation. Since the right is one of access to the courts, a prisoner who is able to place all legitimate grievances before a court has received his due. A demonstration of inability to present a legal claim is an essential ingredient of a suit such as this because the prisoner must be able to show that the rules interfered with his entitlement (access to the courts) rather than with a mere instrument for vindicating an entitlement (access to books). When a prisoner who has had full access nonetheless contends that the law library services are not adequate, he is making a contention that affects only third parties, and thus inviting us to overstep the bounds of judicial authority. It is as if a prisoner who always has received adequate medical care files a suit contending that the prison’s physicians are not adequately trained, that the infirmary is poorly equipped, and so on. Such shortfalls might cause harm, but unless they have worked to the plaintiff’s detriment he is not the right person to protest them. DeMallory’s objection to the terms on which inmates secure law books is no different from this hypothetical objection to the medical facilities of the prison. So we lack power under Art. Ill for two reasons: the case is moot, and DeMallory’s own rights were not at issue. A word on procedure. The court remands the case for further evidentiary proceedings, on the assumption that if the complaints state claims for relief there must be procedures to test the allegations. There are two problems. First, the district court gave DeMallory an opportunity to prove his claims. The complaint dealing with access to law books was filed in April 1981. Desultory discovery ensued. In January 1986 the defendants filed four sworn answers to De-Mallory’s interrogatories and, on the basis of these answers, a motion for summary judgment. The cover letter informed De-Mallory that “any factual assertion in the ... documents submitted or referred to in support of defendants’ Motion will be accepted by the District Judge as true unless you submit Affidavits or other documentary evidence contradicting the assertion.” To the letter and motion, the defendants attached a copy of Fed.R.Civ.P. 56. De-Mallory therefore did not need to do legal research; he knew that he could not stand on the averments of the complaint, Rule 56(e), and that if he needed more time to gather evidence, he had to file an affidavit to that effect, Rule 56(f). DeMallory neither submitted evidence nor filed a Rule 56(f) affidavit. He instead filed a brief addressing only points of law. Prisoners are not immune from the requirements of Rule 56, e.g., Hossman, 812 F.2d at 1022 & n. 6; cf. Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), so there is nothing more to do. The shortfall in DeMallory’s response is factual, unrelated to any burdens in obtaining access to law books. The record contains the evidence DeMallory wants to put in it, and that evidence is not enough to survive the motion for summary judgment. Second, to the extent there are disputes about the need to treat inmates as Wisconsin does, these disputes are not resolved by taking evidence and deciding the issue de novo. Prison officials, not district judges, decide whether the inmates in segregation are so dangerous that written requests to inmate paralegals rather than face-to-face meetings are appropriate. “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safly, — U.S. -, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). “Reasonable relation” in constitutional law is assessed by looking at the logical connection between means and ends, not by taking evidence and deciding where the “truth” lies. Vance v. Bradley, 440 U.S. 93, 110-12, 99 S.Ct. 939, 949-950, 59 L.Ed.2d 171 (1979); Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 537-38, 93 L.Ed.2d 499 (1986); Citizens for John W. Moore Party v. Board of Election Commissioners, 794 F.2d 1254, 1257-58 (7th Cir.1986). As the Court said in Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S.Ct. 370, 374, 60 L.Ed. 679 (1916), and reiterated in Vance: It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. See also, e.g., McGinnis v. Royster, 410 U.S. 263, 274, 93 S.Ct. 1055, 1061, 35 L.Ed.2d 282 (1973) (sustaining a law because the legislature “could have concluded rationally that” certain facts are true); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). “Adjudicatory” facts may be freely reviewed; “legislative” facts — those on which the validity of classifications or rules depend— are for law-givers, and courts may ask only whether the rulemaker rationally could have entertained the beliefs that support the rule. Ours is a case about legislative rather than adjudicatory facts; a court may ask no more than whether Wisconsin reasonably could have believed that greater access to books posed unacceptable risks to the safety of inmates and staff. Cases such as McGowan and Munro involved review of laws, while ours involves a rule established by administrative officials. What matters for these purposes, however, is the quality of the subject as rule. Wisconsin could have established the library-access rules by statute. That it chose a different way does not give a federal court greater freedom to say that the rule is unconstitutional. So far as the federal courts are concerned, a state is a state; how it chooses to make rules of general application is an internal concern. Whalen v. United States, 445 U.S. 684, 689 n. 4, 100 S.Ct. 1432, 1436 n. 4, 63 L.Ed.2d 715 (1980); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 615 n. 13, 94 S.Ct. 1323, 1330 n. 13, 39 L.Ed.2d 630 (1974); Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937); Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908); Dreyer v. Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79 (1902); United Beverage Co. v. Indiana Alcoholic Beverage Comm’n, 760 F.2d 155 (7th Cir.1985). The Fifth Circuit has applied to the decisions of a single state-operated hospital the same rational-relationship test employed to assess the validity of state laws. Stern v. Tarrant County Hospital District, 778 F.2d 1052, 1060-61 (5th Cir.1985) (en banc). This is an inevitable consequence of the principle that states need not allocate “legislative” powers to particular officials. When a “legislative” decision has been made, neither its constitutional status nor the means used to prove unconstitutionality depend on the identity of the decisionmaker. It is rational (reasonable, too) for prison officials to conclude that inmates segregated in the maximum-security prison on account of violence should be required to communicate in writing rather than in person with other inmates; we sustained a more severe restriction on library access on that account in Caldwell v. Miller, 790 F.2d 589, 607 (7th Cir.1986), and Campbell v. Miller, 787 F.2d 217, 225-29 (7th Cir.1986). The decision whether this reasonable inference is sustained in fact is for the state rather than the courts — if for no other reason than that “how safe is safe enough” is inescapably a decision of state policy. Establishing the quantum of risk to tolerate, and the costs to be borne to reduce risks within prisons, are legislative decisions. If we were confident that at small cost a state might produce a large improvement in access to the courts, we might say that the state’s choice was not rational in relation to its burden. But DeMallory has not shown how a policy designed at improving safety (and saving costs) has injured any interest he has in access to the courts — and the majority says he doesn’t need to. There is therefore no basis for overturning a rational decision by the officials Wisconsin has charged with making such decisions. If there is a case or controversy, the judgment with respect to the law library should be affirmed. 3. DeMallory’s objections to the conditions in the Adjustment Center have boiled down to three: that inmates set fires, causing smoke inhalation; that inmates’ personal hygiene is not the best, so the odor of excrement is in the air; and that guards clean toilet and face bowls twice a week with the same brush. DeMallory does not contend that prison officials neglect to put out fires or clean up other inmates’ filth when they can. Prison officials are not responsible for the low standards of hygiene and safety of their charges; they can’t tell the courts to send a better class of prisoner! The challenge to the cleaning is picky at best, since twice a week is more often than most people clean their own bathroom appliances, and there is no indication that when the guards are done the face bowls are unsanitary. They apparently use strong caustic agents, which kill bacteria — so strong that the guards do not want the prisoners to have access to the agents, useful as weapons. I grant that the procedure in this case was deficient, but the deficiencies do not matter. The defendants’ answer, filed in 1981, denied that they “have sufficient information as to form a belief as to the truth of the allegations” about the conditions of confinement — a shocking admission from the Warden of Waupun if true, and a violation of Rule 11 if the defendants’ lawyer was simply too lazy to investigate before filing. In February 1986, when the defendants moved for summary judgment, they ignored claims concerning the conditions of confinement; so did the magistrate when recommending that the district court grant the motion. The omission did not leave an empty record, however; sworn answers to interrogatories supplied an evidentiary basis for decision. DeMallory’s objection to the magistrate’s recommendation mentioned only the fires and the difficulties the smoke caused to other prisoners in the Adjustment Center. This waived any remaining claims, Lockert v. Faulkner, 843 F.2d 1015 (7th Cir.1988). My colleagues’ observation that the “district court failed to address” (slip op. 445) claims concerning unsanitary conditions was a natural consequence of DeMallory’s failure to raise these matters before that court. The district judge addressed every issue DeMallory presented to that court. Must a district judge address issues that, under the law of this circuit, have been waived? The protest about smoke is simply too insubstantial to require more litigation. DeMallory does not deny that prison officials obtained medical aid for those who suffered from smoke inhalation. Although he (and everyone else) would prefer clean to smoky air, the Eighth Amendment does not require prison officials to do the impossible. Nothing even hints at “deliberate indifference” to the serious medical needs of the prisoners in the Adjustment Center; DeMallory, in particular, does not allege that he suffered any adverse effect from smoke inhalation. “[T]he Constitution does not give inmates the right to be free from all discomfort. The issue with regards to ventilation is the same as with all alleged constitutional violations — does the condition amount to ... cruel and unusual punishment of convicted inmates.” Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir.1986) (emphasis in original). The prison carted many inmates, including DeMallory, off to hospitals after serious fires, but all the record shows — indeed, all DeMallory claims — is that this was precautionary. Nothing so much as hints at a policy of deliberately injuring prisoners or leaving them to suffer after being injured. A prison can put a stop to fires only by taking combustibles (mattresses, blankets, clothes) away from prisoners, and that step undoubtedly would violate the Eighth Amendment if applied to all prisoners for the duration of their confinement. So there is nothing to litigate here, unless we are to punish the defendants and the magistrate for their oversights by forcing them to trek through this record to its inevitable outcome a second time. Other litigants awaiting their first adjudication deserve the scarce judicial time. DeMallory has had his chance — this case is seven years old — and has produced nothing requiring a court to throw good time after bad. . The caption lists only the library access case, No. 81-C-348, but the district court evidently meant to cover the conditions-of-confinement case, No. 81-C-124, as well. . My colleagues say (maj. op. 449 n. 4) that the defendants have "waived this argument by failing to raise it before the district court.” The answer to the library-access complaint sets out as an affirmative defense that "[t]he defendants, at all times relevant to this action, have acted in good faith, and have exercised professional judgment in accordance with established correction policies and the applicable law.” The answer to the conditions-of-confinement complaint includes almost identical language. This does not employ the magic word “immunity”, but it raises the point. DeMallory filed in 1981 a “motion for more definite statement” recognizing that this was a claim of official immunity. The defendants’ motion for summary judgment was limited to the merits, but the omission of an issue from a motion does not "waive” it; • no rule comparable to Fed.R.Civ.P. 12(h) requires a party to include all issues in every motion for summary judgment on pain of surrendering the point. Rule 56(b), which speaks of motions directed to “all or any part” of a claim looks in the opposite direction. If the defendants had filed a motion for summary judgment raising only their immunity defense and had prevailed, would we say (if reversing . that judgment) that they had "waived” all defenses on the merits? If filing a motion based on immunity does not waive defenses based on the merits, how does filing a motion directed to the merits waive defenses based on immunity? . But see Williams v. Lane, 851 F.2d 867, 878-879 (7th Cir.1988), holding that Illinois violates the first and fifth amendment rights of inmates in "protective custody” by affording them "access ... severely inadequate in comparison to that afforded the general population.” The panel did not discuss why the rights of the general population are the right benchmark — can otherwise-constitutional library privileges of one group of inmates suddenly become unconstitutional because the state expands some other group’s privileges? — and did not cite Hossman or Howland or find that the system employed by the prison in question had hampered any inmate’s presentation of a sound legal claim. Bruscino did not cite or distinguish Williams. . According to a letter to the Governor that DeMallory submitted as an exhibit, one inmate stockpiled the stuff for offensive use until the prison discovered the cache and stopped allowing the prisoners access to caustic agents. . His objection, styled a "reply brief’, concentrated on his due process objection to placement in the Adjustment Center, which we addressed in an earlier appeal, and mentions the fires and the spitting incident in passing. It covers nothing else.

MARSHALL, Circuit Justice. In this case, P. T. Shelton & Co., consisting of P. T. Shelton, and Walter Shelton, being indebted to the United States for duties, made a voluntary assignment of all their effects for the payment of their debts. Walter Shelton, was in possession of some .estate in his private character, which he afterwards conveyed for the payment of his private debts. The United States have filed their bill, claiming priority out of the social fund, and have also, in a supplemental bill, claimed priority out of the private fund. The controversy is, between the creditors under the first and last deed. Those under the first deed, contend that its execution was not an act of insolvency, inasmuch as one of the partners remained solvent. The creditors under the second deed insist, that the‘claim of the United States, if it can now be asserted, ought to be charged on the first deed. Some other questions have been made in the cause, . but they are contingent questions, depending on the manner in which the first shall be decided. The act of congress gives a preference to the United States, “in all cases of insolvency.” And these “shall be deemed to extend, as well to cases in which a debtor, not having sufficient property to pay all of his, or her debts, shall have made a voluntary assignment thereof, for the benefit of his, or her creditors,” “as to eases in which an act of legal bankruptcy shall have been committed.” 1 Story’s Laws, c. 74, p. 465, § 5 [1 Stat. 515, c. 20]. P. T. Shelton & Co., executed their bond to. the United States, as partners, for a partnership debt. In that character, they were the “debtor” of the United States. In that character, they had not “sufficient property to pay all their debts.” In that character, they “made a voluntary assignment of all their property for the benefit of their creditors.” This would, I think, have been “an act of legal bankruptcy,” under the act of congress, passed afterwards on the subject, as well as under the bankrupt laws of England, and would, probably, have constituted an act of bankruptcy, under any state-law, which might exist at the time. Of this,, however, I am not certain. I cannot, therefore, say positively, that the question, whether this assignment is an act of insolvency, under the act of congress, derives any illustration from the reference it makes to “an act of legal bankruptcy;” though I am inclined to think it does. But be this as it may, I am disposed to think, that on the mere reason of the case, it is a fair exposition of the words of the act of congress, to consider it as an act of insolvency. It was an alienation of that whole fund, which was immediately, and in the first instance, chargeable with this debt. Had a commission of bankruptcy been sued out, the debt of the United States, being a partnership debt, would have been paid out of the social fund; and recourse would not have been allowed against the private fund, till the social fund was exhausted, or shown to be inadequate to the satisfaction of the debt. It seems to be the dictate of justice, that partnership transactions should be charged in the first instance, on the partnership fund, and private transactions on the private fund, when there is not enough for the payment of all. I shall, therefore, direct the trustees, under the first deed, to pay the debt due to the United States, with liberty to apply to the court, should that fund prove insufficient. See a summary of the cases, decided by the supreme and circuit courts of the United States, involving the question of the priority of the United States, arising under the insolvent laws. 1 Pet. Cond. R. 430, and 6 Pet. Cond. R. 603. See, also, a very interesting decision on the subject, in the case of U. S. v. Marshal of District of North Carolina [Case No. 15,727.]

MEMORANDUM Richard Joseph Crane, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of substantive law de novo and its factual determinations for clear error, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and we affirm. The district court properly dismissed Crane’s action because he did not complete the prison grievance process prior to filing suit, and failed to demonstrate that he was obstructed from doing so. See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and requires adherence to administrative procedural rules); see also McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (requiring inmates to exhaust administrative remedies prior to filing suit in federal court). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

THE COURT (THRUSTON, Circuit Judge, absent), after looking into precedents, overruled the motion.