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OPINION AND ORDER MUKASEY, District Judge. Plaintiff DVL, Inc. sues defendant Jeffrey Mutnick for breach of contract based on Mutnick’s failure to make payments due under a promissory note that he signed in 1985. Mutnick moves for summary judgment pursuant to Fed.R.Civ.P. 56(c) on the ground that DVL’s claim is time-barred. DVL cross-moves for summary judgment, arguing that when Mutnick joined a class action settlement in 1992, he made a new promise to pay the debt and that promise restarted the statute of limitations. For the reasons set forth below, Mutnick’s motion is granted, DVL’s cross-motion is denied, and the complaint is dismissed. I. The relevant facts are undisputed. On December 9, 1985, Mutnick executed a promissory note (the “Note”) in connection with his purchase of a one-unit limited partnership interest in Sonya Associates Limited Partnership. (Def.Ex. C) The Note included a payment schedule and provided that Mutnick would be in default if, inter alia, he failed to pay any installment within 10 days of the date it was due. (Id. at 1) In the event of a default, Mutnick would become obligated to pay the remaining note principal and accrued interest, plus additional interest on the unpaid principal from the date of default, as well as costs of collection and attorney fees. (Id. at 1-2) Sonya assigned the Note to its sponsor, Kenbee Management, Inc.; the Note was reassigned to DVL. (Id. at 2-3) Mutnick made all of the payments due on the Note through 1989. (Mutnick Aff. ¶ 5) By letter dated October 23, 1990, Kenbee informed Mutnick that it was suspending distributions from Sonya because Sonya was unable to meet its financial obligations. (Id. ¶ 6 & Def. Ex. D) Mutnick responded by letters dated November 13, 1990 and December 20, 1990, demanding his distribution and an accounting. (Mut-nick Aff. ¶ 7 & Def. Ex. E) Mutnick did not make the December 31, 1990 payment due on the Note. (PL SMF ¶¶3, 16) In early 1991, class action litigation ensued in federal district court in New Jersey against various Kenbee limited partnerships, including Sonya. (Id. ¶ 4) The litigation settled in 1992. (Def. SMF ¶ 13) In connection with the settlement, Mutnick signed a document on December 4, 1992 titled, “Proof of Claim and Release and Substitute Form W-9.” (Def.Ex. G) It provided: “By submitting this Proof of Claim, I state that ... I have read and understood the contents of the Notice ... and that I desire to participate in the proposed'Settlement described in the Notice.” (Id. at 1) The “Notice” referred to in the proof of claim was the “Notice of Class Action Certification, Proposed Class Action Settlement” dated August 24, 1992, which, in turn, incorporated as its Appendix B various excerpts from an August 12, 1992 “Stipulation of Settlement.” (Def.Ex. F) Among those excerpts were provisions under which settling class members acknowledged that each note remained “a valid and enforceable obligation,” and received a grace period until October 30, 1992 in which to cure any default in payments on their notes. (Id. at B-2) After signing the proof of claim, Mut-nick still did not make any further payments on the Note (PI. SMF ¶ 3), and DVL began this action in New York State Supreme Court on October 30, 1998 (id. ¶ 17), arguing that Mutnick was in default. Mutnick removed the case to this court on November 25, 1998 on the basis of diversity jurisdiction, and the parties now cross-move for summary judgment. II. Mutnick argues that summary judgment is warranted because DVL’s suit is time-barred. The Note at issue contains a choice-of-law clause stating that it should be construed in accordance with the laws of the State of New Jersey. (Def. Ex. C ¶ 7) Moreover, the parties rely on New Jersey law, and such “implied consent ... is sufficient to establish choice of law.” Tehran-Berkeley Civil & Envtl. Eng’rs. v. Tippetts-Abbett-McCarthy-Stratton, 888 F.2d 239, 242 (2d Cir.1989). Under New Jersey law, the statute of limitations for contract actions is six years. See N.J. Stat. Ann. § 2A:14-1 (West 1999). In this case, the Note provides that if Mutnick failed to make a required payment, he would be in default 10 days after that payment had been due. (Def. Ex. C ¶ 4) Mutnick failed to make his December 31, 1990 payment (PL SMF ¶¶ 3, 16), meaning that he would have been in default as of January 10, 1991. DVL began this action on October 30, 1998 (id. ¶ 17), well after the six-year limitations period. Therefore, on its face, this lawsuit appears time-barred. However, the inquiry does not end there. New Jersey law provides that the enforceability of a debt barred by the statute of limitations can be revived by a new promise to pay the debt (assuming certain requirements, such as a writing, are met). Significantly, the mere acknowledgment of the debt is not sufficient to restart the statute of limitations. Rather, there must be a new promise to pay the full amount of the debt immediately or on demand: An acknowledgment or promise to pay an existing debt is deemed to constitute a new contract; therefore, it must support the implication of a promise to pay the full amount due immediately or on demand, whether made before or after the statute of limitations has run.... Currently, there is a tendency in favor of the statute of limitations and against the construction of a statement as an acknowledgment or promise which will avoid its operation. Burlington County Country Club v. Midlantic Nat’l Bank S., 223 N.J.Super. 227, 538 A.2d 441 (1987) (citing, inter alia, Denville Amusement Co. v. Fogelson, 84 N.J.Super. 164, 201 A.2d 380, 383 (1964); Bassett v. Christensen, 127 N.J.L. 259, 21 A.2d 776, 777 (1941)) (internal quotation marks omitted). DVL argues that three provisions binding Mutnick constituted an acknowledgment sufficient to revive the limitations period. Principally, DVL cites ¶ 2.11(D) of the stipulation, which provides: Each Settling Class Member shall make all payments due on each Limited Partner Note directly to the Limited Partner Note Secured Party at the address specified in writing from time to time by the Limited Partner Note Secured Party. If any Limited Partner is currently in default in making payments on a Limited Partner Note, such Limited Partner shall have until October 30, 1992 to cure any such default by making payment to the Limited Partner Note Secured Party of any unpaid installments of principal, together with interest thereon at the contract rate set forth in the Limited Partner Note through the date of payment. In the event that the Limited Partner Note Secured Party does not receive payment on or before October 30, 1992, then the Limited Partner Note Secured Party shall have the right to enforce the Limited Partner Note in accordance with its terms. (Def. Ex. F at B-2) DVL similarly stresses that ¶ 2.11(B) states that each settling class member confirms that each note at issue “is a valid and enforceable obligation of such Settling Class Member.” (Id.) Finally, DVL points out that ¶22 of the notice states that class members “ratify their obligations under the notes.” (Id. at 4) None of these provisions contains a new promise to pay an existing debt under New Jersey law. To restart the statute of limitations, an acknowledgment must support the “implication of a promise to pay at once or on demand.” Bassett, 21 A.2d at 777. In Bassett, for instance, a debtor wrote a letter to his creditor that opened with a candid acknowledgment of the extent of the debtor’s liability: “My record of indebtedness to you is as follows: Original loan $2,000 dated June 8, 1929 — Interest paid to you $300.” Id. at 776. But because the writer never promised to pay the remaining debt — only expressing an interest in “discuss[ing] the subject ... after [he had] something definite to offer” — the Court held that there was not a sufficient basis for removing the bar of the statute of limitations. See id. Thus, the explicit acknowledgment of a debt does not itself constitute a promise to pay justifying revival of the limitations period. Here, ¶ 2.11(D) does not constitute a new promise to pay. That paragraph offered settling class members a grace period during which those with outstanding payments due on limited partnership notes could cure their defaults. The paragraph gives the address to which payments were to be directed, the date by which payments had to be made (October 30, 1992), and the effect of failing to pay. (Def. Ex. F at B-2) Though implicitly acknowledging that settling class members may have additional payments due, nowhere does the paragraph contain an express promise to make those additional payments. The suggestion that ¶ 2.11(D) constitutes a new promise because it states that “[e]ach Settling Class Member shall make all payments due on each Limited Partner Note” (PI. Mem. at 13-14) takes that statement out of context: The continuation of the sentence (“shall make all payments due on each Limited Partner Note directly to the Limited Partner Note Secured Party at the address specified in writing ... ”) simply states the location to which payments should be sent, but does not contain a promise to send them. Furthermore, ¶ 2.11(D) expressly addresses the creditors’ rights if the debtors do not pay by the end of the grace period. (Def. Ex. F at B-2) (“In the event that the Limited Partner Note Secured Party does not receive payment on or before October 30, 1992, then the Limited Partner Note Secured Party shall have the right to enforce the Limited Partner Note in accordance with its terms.”) That statement does not contain a new promise to pay. Most tellingly on the facts of this case, Mutnick signed the proof of claim on December 4, 1992. (Def. Ex. G at 2) Plainly, he could not thereby have been making a promise to pay as of October 30, 1992 — a date that already had passed. Paragraph 2.11(B) likewise does not contain a promise to pay. All it does is to acknowledge that each note remains “a valid and enforceable obligation.” (Def. Ex. F at B-2) Much as the debtor in Bassett described his debts, but did not take the additional step of promising to pay them, see 21 A.2d at 777, so did Mut-nick here. Moreover, ¶ 22 simply summarizes the Stipulation by stating that “the Stipulation contains many other provisions relating to these notes, including a provision that Class members ratify their obligations under the notes and waive any right of setoff and defenses to these notes.” (Def. Ex. F at 4) That statement is no more than a description of the obligations agreed to by settling class members in other provisions of the stipulation, as ¶¶ 2.11(B) & (D); it does not purport to impose any obligations beyond those specified elsewhere. Accordingly, none of the provisions cited by DVL embodies a new promise to pay that could revive the statute of limitations. Finally, DVL’s suggestion that Mutnick waived his right to assert a statute-of-limitations defense is meritless. The stipulation’s waiver clause, on which DVL relies, explicitly describes the relevant representations as being made “as of the Effective Date” of the settlement. (Def. Ex. F at B-2) Accordingly, by agreeing to waive defenses as of that date, Mut-nick did not waive a statute-of-limitations defense that had not yet come into being — and would not for several more years. In sum, there is no basis for restarting the statute of limitations and DVL’s claim against Mutnick therefore is time-barred. Because there is no genuine issue as to any material fact, Mutnick is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 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). ^ For the foregoing reasons, Mutnick’s motion for summary judgment is granted, DVL’s cross-motion for summary judgment is denied, and the complaint is dismissed. . "PI. SMF” refers to Plaintiffs Statement of Material Facts As To Which There Is No Genuine Issue To Be Tried, filed on October 28, 1999 (Dkt. No. 17). . “Def. SMF” refers to Defendant's Statement of Material Facts As To Which There Is No Genuine Issue To Be Tried, filed on September 28, 1999 (Dkt. No. 16). . N.J. Stat. Ann. § 2A: 14-24 provides in pertinent part: In actions at law grounded on any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, so as to take any case out of the operation of this chapter, or to deprive any person of the benefit thereof, unless such acknowledgment or promise shall be made or continued by or in some writing to be signed by the party chargeable thereby. . Notwithstanding Mutnick’s assertion to the contrary (Def. Mem. at 6), by signing the proof of claim Mutnick became bound by the terms of the settlement as outlined in the settlement notice and the stipulation attached to the notice. (Def. Ex. G ¶ III) ("By submitting this Proof of Claim, I state that ... I have read and understood the contents of the Notice ... and that I desire to participate in the proposed Settlement described in the Notice.”) As explained in the text, however, absent a new promise to pay an existing debt, the provisions of the notice and stipulation cannot revive Mutnick's obligation to DVL. . Because the waiver clause on its face does not apply to the statute-of-limitations defense, I need not decide whether a waiver of such breadth would be contrary to public policy.

MEMORANDUM and ORDER GLASSER, District Judge. This action is before the Court on the defendants’ motion for summary judgment, arising out of earlier proceedings on the plaintiffs application for declaratory and injunctive relief, decided against it for reasons set forth in a memorandum and order dated May 10, 2000, familiarity with which is assumed. See Coney Island Resorts, Inc. v. Giuliani, No. 00-CV-2233, 2000 WL 804636 (E.D.N.Y. May 10, 2000). For the reasons that follow, the defendants’ motion is granted, and the Complaint is dismissed. BACKGROUND Both the relevant factual background, and the parties’ legal contentions have been supplemented by submissions from the parties, and by arguments made before the Court since the proceedings on plaintiffs earlier application. Thus, at the risk of some repetition of findings already made in the memorandum and order of May 10, a new and fully consolidated statement of that background, and of those arguments, follows. The relationship between the plaintiff, Coney Island Resorts, Inc. (“CIR”), and the City began with a Request for Proposals in 1984 by the Parks Department, aimed at stimulating economic development in the Coney Island area of Brooklyn. Plaintiff responded with a proposal to develop an amusement park on Steeplechase Park and Steeplechase Pier, and in response, the City entered into a license agreement with plaintiff, permitting it to operate such a park on City-owned property in the area. Of Significance to the factual issues on this motion is a provision of the license agreement concerning CIR’s obligation to obtain project financing: This License is conditioned upon Licensee [i.e., CIR] securing a loan, syndication, cash, offering or other financing (in form and substance reasonably satisfactory to City) in an aggregate gross amount of not less than Three Million Dollars.... Bullard Aff., Exh. A at ¶ 6. In early 1986, CIR began talking with the New York City Public Development Corporation (the “PDC”), hoping to obtain its assistance in the development of the contemplated amusement park. On October 30, 1986, CIR, the PDC, and the Parks Department issued a letter of intent, describing a $70 million, three-phase project to develop an amusement park on a single site to be composed of the City-owned Steeplechase properties, and certain contiguous properties to be purchased, or already purchased by CIR. The letter states: The Developer [i.e., CIR] will submit to PDC and Parks, within 180 days after the execution of this letter, binding financial commitments, satisfactory to PDC and Parks, to develop, as applicable, the Initially Complete Project as described [elsewhere in the letter of intent]. PDC and Parks may require the Developer’s binding financial commitments to be sufficient to take into account the possibility of operating losses during the first years of the Project. What shall constitute sufficient financing to allow for such operating losses shall be determined by PDC and Parks in the reasonable exercise of their discretion. Brown Aff., Exh. A at 9-10. From the outset, CIR encountered obstacles to the procurement of financing, and from the outset, PDC and the City evinced a willingness to work with CIR in overcoming those obstacles. Thus, when the letter of intent deadline for obtaining financing — May 1, 1987 — came and went, PDC extended it to October 1, 1987. Brown Aff., Exh. B. The PDC and the Parks Department also cooperated actively in efforts to secure certain preliminary legislative and municipal clearances for the project. In conjunction with efforts to convert the Steeplechase Park site into “mapped parkland,” the City lobbied for, and obtained legislation from the New York State Legislature authorizing the leasing of such parkland, with specific reference to Steeplechase Park, CIR, and the contemplated transaction between CIR, the PDC, and the Parks Department. See Act of Sept. 1, 1988, ch. 632, 1988 N.Y.Laws 1231. During several months of 1988, CIR engaged in some initially promising talks about financing with Security Pacific National Bank, in the light of which the outlines of the contemplated project became more expansive and ambitious. That initial promise faded by early 1989, however, when Security Pacific withdrew from talks, never to return. Nevertheless, when the Board of Estimate authorized the City to enter into a long-term lease with CIR of City-owned property in Steeplechase Park for the purpose of developing an amusement park, it was the more ambitious plan formulated in collaboration with Security Pacific that was envisioned in its Resolution. See Bd. of Estimate Resolution, Cal. No. 21, May 23, 1989 (attached to Brown Aff., Exh B.). The Resolution recapitulates in some detail the material terms of the development leases that had been previously worked out between CIR and the City concerning the City-owned property, and two contiguous CIR-owned properties in the Steeplechase area. The Resolution concludes: RESOLVED, That the terms and conditions of the Development Leases and other legal instruments as hereinbefore stated are satisfactory, and that the Mayor, or Deputy Mayor, the Commissioner of Parks and Recreation and the Commissioner or Deputy Commissioner of General Services, as appropriate, are authorized to execute and deliver the instruments herein described and other instruments which may include such provisions, consistent with such terms and conditions, as the applicable above-named official shall determine to be necessary, appropriate or desirable to effect the transactions herein authorized and the Project herein described, provided that such instruments are approved as to form by Corporation Counsel and that the same are executed and delivered within 18 months after the date of this resolution, provided that such time may be extended for up to three years from the date of this resolution on account of litigation. Id. at 7. By November, 1990, CIR and the City had substantially concluded negotiating the terms of the lease referred to in the Board of Estimate Resolution, and the City delivered a draft copy of such a lease to CIR. At that point, however, CIR had not succeeded in procuring financing for the development project satisfactory to the City in form and amount, and in a letter to CIR President Horace Bullard, dated November 22,1990, the City, by Deputy May- or Sally Hernandez-Piñero, signified as much: This letter confirms that the undersigned have concluded negotiating in material respects a ground lease between The City of New York ..., as Landlord, and Coney Island Resorts, Inc...., as Tenant, for the project known as the Steeplechase Amusement Park. The procurement of financing by CIR in form and amount satisfactory to the City remains as one of the conditions to execution and delivery of such ground lease. Brown Aff., Exh. C. In the same letter, the City extended the deadline for execution and delivery of a lease to November 25, 1991, and also imposed monthly payment obligations on CIR, in consideration of that extension, amounting to $5,000 for each month that passed without execution and delivery of the lease. Id. A year later the parties were in essentially the same situation: waiting for the procurement of satisfactory financing. Once again, this was reflected in a letter from the Ms. Hernandez-Piñero to CIR’s Bullard, dated November 25, 1991, granting another extension for execution and delivery of the lease, this time to May 25, 1992: This letter reconfirms that the undersigned [namely, CIR and the City] have concluded negotiating in material respects a ground lease between the City of New York ... and [CIR] ... for the project known as Steeplechase Amusement Park. The procurement of financing by CIR in form and amount satisfactory to the City continues to remain as one of the conditions to execution and delivery of such ground lease. Brown Aff., Exh. D. The November 25, 1991 letter continued the monthly payment obligation of $5,000 per month, in consideration of the extension. Id. The letter also made reference to a joint venture CIR was contemplating with an enterprise called Triple Five, Inc., and stated that if CIR failed within 60 days to produce evidence that it had entered into an agreement with Triple Five consummating that joint venture, it must pay the Economic Development Corporation (the corporate successor to the PDC) an additional $10,000 per month as of January 30, 1992, until execution and delivery of the lease. Id. The November 25, 1991 letter also provided that CIR “shall furnish to EDC within 60 days from the date hereof copies of bank letters of interest from institutional lender^) and/or letters of interest from prospective equity investors for construction and permanent financing for the Steeplechase project in an amount not less than $200 million.” Id. Finally, the letter imposed on CIR responsibility for emergency repairs to the Coney Island Pier, as well as liability for two penalty' payments of $10,000 each if the repairs were not complete within 120 days. Id. On May 22, 1992, the City granted another extension to CIR, to June 26, 1992, in consideration of an extension payment of $20,000. Brown Aff., Exh. E. On June 25, 1992, another extension was forthcoming, to July 27, 1992, in consideration of another $20,000. Brown Aff., Exh. F. On July 27, 1992, a final extension was granted, to September 25, 1992, once more in consideration of a $20,000 extension payment. Brown Aff., Exh. G. These three letters contain substantially identical wording. They each refer to extending “the time for execution and delivery of the Ground Lease specified in the Board of Estimate Resolution approved on May 23, 1989.” They each identify a payment of $20,000 as a “condition of this extension.” They each state that “in the event either CIR has failed to make the required payment by [the specified extension date] or has not executed or delivered the Ground Lease by [that date], CIR shall have no authority, right, designation or interest of any kind with respect to the City-owned project parcels.” Finally, each letter continues “CIR’s rights and obligations under the license agreement between CIR and [the Parks Department], dated April 1, 1985.” Brown Aff., Exhs. E, F, & G. On September 22, 1992, Mr. Bullard signed the draft lease that had been provided to him in November, 1990, and on September 24 he delivered the signed draft lease to EDC, together with a check for $20,000. Mr. Bullard also wrote a letter, addressed to Deputy Mayor Barry F. Sullivan, which accompanied the lease and the check. In that letter, Mr. Bullard noted that he was taking this action “in order to protect the legal rights of the development package.” Brown Aff., Exh. J. He also observed: I am submitting this signed document reluctantly, Because [sic] the City of New York has failed to extend the deadline date (September 25, 1992) for the delivery of the “Ground Lease”. We would have much prefer [sic] to receive an appropriate extension of the deadline imposed by the City. Id. In its papers and in oral argument on its application for injunctive relief held on May 1, 2000, CIR urged that seen in the context of the extensive negotiations held beforehand, Mr. Bullard’s signature and delivery of the draft lease operated to create a valid and enforceable lease. This theory was discussed and rejected in this Court’s memorandum and opinion of May 10, 2000, but that discussion need not be recapitulated here, because in oral argument on July 7, 2000, CIR abandoned the argument, in favor of a new gambit. CIR now concedes that no lease was ever created. Rather, CIR argues that the City breached a valid and enforceable contract to enter into a lease, and by its conduct since the breach, has abridged CIR’s protected property interests, and thereby has violated its rights under the Due Process, Contract, Takings, and Equal Protection Clauses of the Constitution. The City maintains that CIR did not fully satisfy its payment obligations under the extension letters. See Balder Second Supp. Reply Aff. at ¶ 10-14. Nevertheless, the City does not dispute that CIR did pay more than $148,000 for extensions of the deadline set forth in the Board of Estimate Resolution. Id. Although the record reflects that the City gave some consideration to granting CIR additional extensions to obtain financing for the Steeplechase Project, there is no dispute that no such extension was actually forthcoming. See Brown Aff. at ¶ 34, Exh. I. Thus, on March 8, 1994, Deputy Mayor John Dyson wrote to Mr. Bul-lard to inform him that the City was finally terminating negotiations with CIR concerning the lease, effective in 10 days. Brown Aff., Exh. H. In response, Mr. Bullard wrote a letter to Mr. Dyson, stating that the City’s attempt to terminate negotiations was in violation of a two-year extension granted by the City on September 25, 1992. Brown Aff., Exh. N. Mr. Bullard also claimed that he had by now secured financing commitments from Donaldson, Lufkin & Jenrette and Fuji Bank, and urged the City to reconsider its termination decision. Id. In response, EDC Vice-President Angela Brown wrote to Mr. Bullard, in a letter dated April 6, 1994, that the City had no record of having granted an extension to CIR beyond September 25, 1992, and that in any event, the City “remains unconvinced that CIR has or will be able to procure a financing commitment from a potential source of construction and/or permanent loan financing any time soon.” Brown Aff., Exh. 0. Accordingly, Ms. Brown concluded, the City would not reconsider its decision to terminate discussions about the Steeplechase project with CIR. Id. On April 4, 1994, the Parks Department, by a letter from Joanne Imohiosen of the Commissioner’s Office, terminated CIR’s license to the City-owned Steeplechase Park properties, effective April 15, 1994. Ms. Imohiosen’s letter cited CIR’s failure to proceed with repairs of the Coney Island Pier, about which CIR had been on notice since November, 1991. Balder Reply Aff. on Cross-Motion to Dismiss, Exh. A. Indeed, CIR had made two extension payments to the Parks Department, as a penalty for having failed to make the required repairs, and pursuant to the terms of the November 25, 1991 extension letter. See Brown Aff., Exh. D, Bullard Second Supp. Reply Aff., ¶¶ 10, 14. Ms. Imohiosen’s letter also makes reference to a letter from the Parks Department to CIR, dated December 29, 1992, instructing CIR to proceed with the overdue repairs and submit documentation of having done so within 20 days. There is no evidence in the record to contravene Ms. Imohiosen’s representation that CIR never made the repairs, and in these proceedings, CIR has not contested the lawfulness of the City’s actions in terminating its license, or its authority to have done so. In March 1994, CIR did file an order to show cause in Supreme Court, New York County, seeking an order pursuant to Article 78 of the CPLR requiring the City to withdraw the Dyson termination letter, and to deliver a fully executed ground lease for Steeplechase Park to CIR. On April 11, 1994, Justice Arber orally denied CIR’s application for a temporary restraining order, and refused to sign an order to show cause, which oral order was affirmed and explained by a written Decision and Order, dated May 11, 1994. Balder Aff., Exh. C. For about three years, matters between CIR and the City lay dormant. In 1997 and 1998, at CIR’s prompting, the City conducted several meetings with CIR and various representatives of CIR. CIR has submitted affidavits from four of its agents or partners involved in those meetings, variously attesting to CIR’s understanding at the time that the City intended to continue working with CIR to realize the Steeplechase Park project. The affidavits make plain that CIR was still actively soliciting potential partners for the amusement park project. They show that EDC was still willing at least to listen to CIR, when CIR requested a meeting for the purpose of presenting ideas or proposals to it. They also show that the Mayor’s office held preliminary discussions with CIR about involving CIR in the newly envisioned project for Steeplechase Park, namely, building a minor league baseball stadium. What they do not show is that the City ever reconsidered its March, 1994 decision to terminate negotiations with CIR over the lease, or did anything to revive any commitment the City might still have been bound by in March, 1994. Indeed, the affidavits suggest to the contrary that CIR, when apprised of the City’s plan to build a baseball stadium, immediately attempted to collaborate, suggesting a site other than the City-owned property in Steeplechase Park. See Scheffer Aff. at ¶ 8. The City entertained CIR’s suggestion, although from the outset also made clear that if CIR was again unable to procure financing, the City would proceed without CIR. Id. at ¶ 10. Talks continued off and on for over a year, and CIR made several presentations to designees of the Mayor, hoping to persuade the City to work in conjunction with CIR on the development of the stadium. Significantly, on the account of CIR’s own consultant, a sticking point appears to have been the fact that, although CIR did own certain contiguous parcels, it did not have a lease on the City-owned property in Steeplechase Park. Id. at ¶ 20. This fact was a matter of particular concern to CIR’s development partners, New Roc Associates, which worried “that in order to obtain permanent bank financing for the project, the City would have to activate CIR lease.” Id. In turn, New Roc was told by former EDC President Charles Millard “that he could not comment on, or activate CIR’s lease, without the expressed permission of the May- or, as this project was out of the hands of EDC, and under the control of the May- or.” Id. Unfortunately for CIR, that permission was never forthcoming. The preliminary talks fell through, and the City proceeded on the baseball stadium without CIR. In January, 1999, Mayor Giuliani highlighted the stadium in his State of the City message. And, on April 12, 2000, the New York City Council voted to approve zoning changes necessary for the development of City-owned property in Steeplechase Park into a minor league baseball stadium. The City presently intends the stadium to be ready for baseball in June, 2001. DISCUSSION The standards governing a motion for summary judgment are familiar. Summary judgment is appropriate where the moving party establishes that “there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party must show that if the eviden-tiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Franco v. Kelly, 854 F.2d 584, 587 (2d Cir.1988). The court’s function in ruling on a motion for summary judgment is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of some alleged factual dispute between the parties, however, will not defeat an otherwise properly supported motion for summary judgment. Id. at 247-248, 106 S.Ct. 2505. Applying these principles, the ample record of this case — comprising a paper trail some 16 years long, including one prior and one pending judicial proceeding, legislative and municipal enactments, extensive correspondence, documents, and detailed affidavits from a half-dozen of the major players — compels the conclusion that the defendants’ motion for summary judgment must be granted. The plaintiff has alleged violations of it rights under the Due Process, Equal Protection, Contract, and Takings Clauses of the Constitution, but has failed to raise any colorable issue that it is entitled to relief on the basis of any of these constitutional doctrines. The plaintiff has also raised a claim of equitable estoppel, which is equally unavailing. The claims are treated in turn. A. Due Process CIR argues that the City has violated its property interest in the lease on the City-owned Steeplechase Park properties, which, though a creature of New York state law, is protected under the Due Process Clause of the Fourteenth Amendment to the U.S. - Constitution. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 38 L.Ed.2d 548 (1972). CIR’s account of the state law basis of its claim to a protected property interest shows that its claim of a due process violation is without merit. As already noted, at oral argument CIR abandoned its theory that it was a party to a draft lease made valid and enforceable by its part performance thereunder, in favor of a new theory, also first broached at oral argument: that CIR fully performed under a contract to enter into a lease that is valid and enforceable on its face. CIR’s argument rests almost entirely on a somewhat tendentious view of the transactions between CIR and the City between May and September 1992. Specifically, CIR notes that in the last three extension letters from the City, dated May 22, June 25, and July 27 of 1992, there is no express mention of financing as a condition on the creation of a lease between CIR and the City. From this observation, CIR invites the Court to infer that financing had somehow fallen out of the contract between the parties, leaving CIR with only two performance obligations: to sign and deliver the draft lease, and to make all extension payments due under extension letters dating back to November 22,1990. This argument fails on both the facts, and the law. As to the facts, it begs the question: what was the mutually intended purpose of the extensions for which CIR was paying so handsomely? If, as of May 1992, the parties’ understanding was that CIR had no performance obligations other than to sign and deliver the draft lease it had held since November, 1990, and to make all due extension payments, what conceivable end could signing yet another extension letter serve? The answer of course is plain on the record. As stated by Deputy Mayor Hernandez-Piñero in her November 25, 1991 letter to Mr. Bul-lard, the reason CIR needed the extensions in the first place was that it needed time to procure “financing ... in form and amount satisfactory to the City....” Brown Aff., Exh. D. In her affidavit of April 6, 1994, sworn to in support of the City’s opposition to CIR’s application for an order to show cause pursuant to Article 78, EDC Vice-President Angela Brown explained this rationale: Execution of the ground lease, however, was conditioned upon CIR securing firm financing for the construction and development of the proposed project. It was the intention of the parties that the developer could market the project to potential investors with a substantially completed draft lease in hand. A draft lease was prepared in order that CIR could further demonstrate to its potential financing sources that the City fully intended to provide CIR with a financea-ble leasehold interest in the property. Once CIR secured a firm commitment for financing, the parties could then make minor modifications to the draft ground lease to meet the requirements of the financing entity. Brown Aff. at ¶ 25. There is not an iota of evidence in the capacious record before this Court to suggest that CIR ever secured “a firm commitment for financing,” much less that such financial interest as it did generate was “in form and amount satisfactory to the City.” Though not for lack of trying, CIR simply failed to obtain the financing that was a condition precedent on the lease from the outset of and throughout its dealings with the City. That fact alone suffices to explain why the lease was never executed and delivered, why it cannot be deemed valid and enforceable today, and why therefore it is not a protected property interest under the Due Process Clause. New York contract law supports the same conclusion. Contracts are interpreted in light of all their surrounding circumstances and of the acts of the parties. Archibald v. Panagoulopoulos, 233 N.Y. 478, 488-89, 135 N.E. 857 (1922). Here the surrounding circumstances and the acts of the parties demonstrate that financing remained a condition precedent to execution and delivery of the lease throughout the entire negotiation process, including the period covered by the final three extension letters. From the project’s conception with the Board of Estimate Resolution in 1989, it was understood that the Mayor and his designees were vested with discretion to execute and deliver the lease under such terms and conditions as they deemed “necessary, appropriate or desirable.” Brown Aff., Exh. B at 7. Foremost among the terms and conditions imposed under this authority was the requirement that CIR obtain “financing in form and amount satisfactory” to the May- or or his designees. As the Brown Affidavit from 1994 attests, the City provided a draft lease to CIR in 1990, as an aid to the procurement of that financing. The circumstances make the City’s intent clear. Having told CIR that no lease could be executed absent firm financial commitments, yet knowing that securing such commitments in the context of a real estate deal is difficult absent evidence of a contemplated underlying property interest, the City gave CIR a document that would show prospective financiers what that property interest would look like were they to make a firm commitment to the envisioned project. The strategy did not work. CIR was unable to elicit that firm commitment, even with the draft lease in hand, and notwithstanding the City’s diligent assistance, in extending deadlines no fewer than five times. As a matter of law, the conclusion could not be plainer: even if, as CIR now maintains, the parties were contemplating a contract to enter a lease, a condition precedent to that contract was not satisfied. Consequently, there never was a contract. See Kapson Constr. Corp. v. ARA Plumbing, & Heating Corp., 227 A.D.2d 484, 485, 642 N.Y.S.2d 701, 703 (2d Dep’t 1996) (“Since the existence of the contract was premised on the satisfaction of a condition precedent, no contract arises ‘unless and until the condition occurs’.”) (quoting Calamari and Perillo, Contracts § 11-5, at 440 (3d ed)). Even more to the point here are the words of Justice Cardozo, engraved on the memories of anyone who has taken first-year contract law: The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. A promise may be lacking, and yet the whole writing may be ‘instinct with an obligation.’ imperfectly expressed .... Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91, 118 N.E. 214 (1917). The words expressly recapitulating CIRis obligation to procure financing as a condition precedent to execution and delivery of the lease may have been missing from the last three extension letters, but it would be the very epitome of primitive formalism to infer from that omission that it had somehow “fallen out” as a term of the agreement between the parties. Of course, it had not; as noted, that is the reason CIR continued to seek additional extensions. Thus, when CIR finally failed to obtain the financing it sought, and the City terminated negotiations with it, the City was not breaching any obligation to CIR. A transaction that had been contemplated simply failed to come to fruition. CIR, understandably aggrieved, does not thereby have a claim of constitutional dimension. Accordingly, its Due Process claim must be dismissed. B. Contract Clause The Contract Clause provides: No State shall ... pass any ... Law impairing the Obligation of Contracts .... U.S. Const., Art. I, § 10. The elements of a claim under the Contract Clause are well established: a contractual relationship; a change in law impairing that relationship; and, impairment that is substantial and unjustified. General Motors Corp. v. Romein, 503 U.S. 181,185-86, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992). Here, plaintiff fails to make even a prima facie showing under any of the elements. First, as has already been established, there was never a contractual relationship. There were negotiations undertaken in the mutual hope of entering into a contractual relationship. And second, two of the three “changes in law” on the record — the 1988 enactment of the New York State Legislature, and the Board of Estimate Resolution- — were made to assist CIR in its attempts to execute a contractual relationship that, in fact, never materialized. The third change in law is the City Council Resolution of this year, approving the City’s plans to construct a baseball stadium in Steeplechase Park, but of course, that action did not impair any contractual relationship, the mere prospect of which had long since been extinguished. Accordingly, plaintiffs Contract Clause claim must be dismissed. C. Takings Clause The Takings Clause provides that “private property [shall not] be taken for public use without just compensation.” U.S. Const., Amend. Y. This prohibition is applicable to the conduct of the states and their municipal subdivisions through the Fourteenth Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980). Plaintiff raises no claim of physical occupation of its own property, so its takings claim is of the “regulatory” variety, and must rest on a showing of “legal interference with the physical use, possession or enjoyment of property or a legal interference with owner’s power of disposition of the property.” City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 255, 321 N.Y.S.2d 345, 269 N.E.2d 895 (1971). Plaintiff contends that its parcels contiguous to the City-owned Steeplechase Park parcel have been rendered useless by the baseball stadium proposal, because the contiguous parcels are zoned exclusively for “amusement park and amusement park related uses.” Bullard Aff. of June 12, 2000 at ¶ 15. Leaving aside whether this representation is accurate, it still falls well short of making out a regulatory takings claim. A regulatory takings claim is not ripe until the government “entity charged with implementing the regulations has reached final decision regarding the application of the regulations to the property at issue.” Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). CIR has not alleged that it has sought a new zoning designation of its contiguous parcels, assuming one is necessary. For its part, the City has made several verbal representations to this Court of its willingness in principle to work with landowners contiguous with development projects on City-owned property; the impression left is that it would be willing to work with CIR in conjunction with the proposed baseball stadium. Certainly there is no evidence to suggest that the City is impeding or has impeded any CIR initiative to develop the contiguous property in a way that would somehow complement the stadium project. It follows that CIR’s takings claim must be dismissed. D. Equal Protection Plaintiffs President, Mr. Bullard, alleges that the reason the City terminated negotiations with him is that he is African American, and Mayor Giuliani was animated by hostility towards him as an African American. Bullard Opp. Aff. at ¶ 17. CIR claims that certain remarks by former EDC President Charles Millard support these charges. CIR claims that these allegations support a claim that its right to equal protection under the Fourteenth Amendment has been violated. An equal protection claim requires proof that the plaintiff, compared with others similarly situated, was selectively treated on the basis of impermissible considerations, such as race. Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir.1996). As already noted in this Court’s Memorandum and Order of May 10, 2000, plaintiff has failed to adduce any evidence showing how, compared with others similarly situated, either CIR or Mr. Bullard was selectively treated. He has also failed to show that anything about the City’s treatment of either CIR or Mr. Bullard was based on impermissible considerations. Mr. Bullard makes much of an alleged statement by EDC’s Millard, made in October, 1998, to the effect that the Mayor’s action in removing the Steeplechase Park amusement park from EDC was “unprecedented.” Bullard Opp. Aff. at ¶ 11; Scheffer Aff. at ¶ 16. Mr. Bullard also points to a meeting held in late 1997 between Millard and one of CIR’s representatives, in which the amusement park project was discussed and Millard made no mention of the baseball stadium proposal. Scheffer Aff. at ¶ 3. On their face, these incidents are manifestly insufficient to raise even a colorable equal protection claim. It follows that CIR’s allegation of an equal protection violation must be dismissed. E. Estoppel Finally, plaintiff asserts that the City should be estopped, under principles of equitable estoppel, from “denying that they were negotiating with the Plaintiff in bad faith.” PLMem. of Law at ¶ 10. Plaintiff asserts that it incurred significant expenditures in the course of trying to bring the transactions here at issue to a close, thereby relying to its detriment on representations by the City made in the course of years of negotiation. The law requires more than a showing of detrimental reliance on material representations by a plaintiff looking to invoke equitable estoppel against a government or government agency. Petrelli v. City of Mount Vernon, 9 F.3d 250, 256 (2d Cir.1993). Because an estoppel against the government implicates the “interest of the citizenry as a whole,” Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 61, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984), such an estop-pel must be supported by proof that the government’s conduct was willful, wanton, or reckless. FHM Constructors, Inc. v. Village of Canton Housing, Authority, 779 F.Supp. 677, 682 (N.D.N.Y.1992). It follows that equitable estoppel against the government is foreclosed “in all but the rarest of cases.” New York State Medical Transporters Assoc. v. Perales, 77 N.Y.2d 126, 130, 564 N.Y.S.2d 1007, 566 N.E.2d 134 (1990) (citation and internal quotation marks omitted). This is not one of those “rarest of cases.” No doubt plaintiff did spend a good deal of money in the hope that the amusement park project would succeed. It did not, but the reason lies not in the City’s wantonness or recklessness; the reason lies in CIR’s failure to obtain the required financing. Accordingly, an estoppel does not lie, and plaintiffs claim to an estoppel must be dismissed. CONCLUSION For the reasons stated, the defendants’ motion for summary judgment is granted in its entirety, and Complaint is dismissed. SO ORDERED. . In conjunction with its proposal, CIR posted a $10,000 "bid bond” with the Parks Department. . CIR posted a $25,000 security deposit with the Parks Department at the time it executed the license agreement. . In losing its license, CIR also forfeited its $10,000 bid bond, and a $25,000 security deposit. . Although in its Memorandum and Order of May 10, 2000, this Court referred to the Article 78 action as "pending,” the record has now been supplemented to make clear that because Justice Arber never signed the initial order to show cause, CIR never validly commenced its Article 78 proceeding. After Justice Arber’s determination, CIR did nothing, effectively abandoning its action (which is marked in the records of the Office of Court Administration in Supreme Court of New York County as "disposed”). Shapiro Dec., Exh. G; see also Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 717, 658 N.Y.S.2d 205, 680 N.E.2d 578 (1997) ("Since an unexe-cuted order to show cause is of no legal effect, its filing did not satisfy the provision of the commencement-by-filing statute requiring petitioner to file an order to show cause or a notice of petition along with the petition.”); Matter of Gershel v. Porr, 89 N.Y.2d 327, 332, 653 N.Y.S.2d 82, 675 N.E.2d 836 (1996) (where putative Article 78 petitioner had withdrawn his order to show cause, and Supreme Court had marked the proceeding as "dismissed,” the Article 78 proceeding "was effectively abandoned because there was then no viable order to show cause or notice of petition in the file”). . In its papers, plaintiff argues that its payments to the City between December 1990 and September 1992, amounting to in excess of $148,000, sufficed as "part performance” under the draft lease. But the record makes clear, as plaintiff finally came to concede at oral argument, that these payments were made in consideration first, of extensions granted by the City of the original Board of Estimate deadline for execution and delivery of a ground lease; and second, of an extension granted for the purpose of allowing CIR to execute a joint venture agreement. Balder Supp. Reply Aff. at ¶ 10. In addition, $20,000 was paid as a penalty for failure to make timely repair to the Coney Island Pier, which failure led eventually to the revocation of CIR's license. Id..; Balder Reply Aff. on Cross-Mot. to Dismiss, Exh. A. . Plaintiff states in conclusoiy fashion that it "did procure commitments for financing.” Pl.Opp.Mem. of Law at ¶ 7. But the record shows that the "commitments” referred to were, at best, vague expressions of preliminary interest. The most substantial communication, a letter from Fuji Bank dated March 16, 1994, states a potential interest in "the contractually obligated income portion of the transaction,” and refers to a need to solicit "bankable sponsorship commitments for entertainment facilities.” Brown Aff., Exh. L. Another letter from Donaldson, Lufkin & Jen-rette, which was acting as a placement agent for the amusement park project at the time, expresses the hope that “sufficient financing” will soon be identified, "provided we can locate a participant/operator willing to proceed and operate the Park.” Brown Aff., Exh. M. Even if this Court were to regard these letters as evidence of CIR's "commitments for financing,” there would be no basis for regarding the City's assessment of them as arbitrary or capricious. The City, quite reasonably, remained "unconvinced that CIR has or will be able to procure a financing commitment from a potential source of construction and/or permanent loan financing any time soon.” Brown Aff., Exh. O. . Indeed, even if CIR had established a breach of contract, it would still not have shown a deprivation of property, since the mere breach of a contractual right is not a deprivation of property protected by due process. S & D Maintenance Co. v. Goldin, 844 F.2d 962, 970 (2d Cir.1988); Waltentas v. Upper, 636 F.Supp. 331, 335 (S.D.N.Y.1986). . Mr. Bullard makes this allegation in the course of asserting that CIR intends to move to amend its Complaint. Bullard Opp. Aff. at ¶¶ 17-21. Although no such motion was actually made, even if it had been, it would have to be denied. Under Rule 15(a), leave to amend should be freely given in the absence of countervailing factors such as undue delay, bad faith, undue prejudice to the opposing party, or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). An amendment would be futile if it could not survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Bldg. 1 Hous. Dev. Fund Co., 608 F.2d 28, 42 (2d Cir. 1979). In considering whether plaintiff's proposed amended complaint is futile, the Court should construe the proposed amended complaint in the light most favorable to plaintiff, Gabourel v. Bouchard Transp. Co., 901 F.Supp. 142, 144 (S.D.N.Y.1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), and leave lo amend should only be denied if plaintiff can prove no set of facts which would entitle her to relief. Id. (citing Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985)). Here, plaintiff would move to amend its complaint to state causes of action for monetary damages, a takings claim, a Contract Clause claim, and an equal protection claim. Because they were raised at least obliquely in plaintiffs papers and in oral argument, the three latter constitutional claims are disposed of herein, so amendment to state them as causes of action would be futile. As to the damages claim, it too is foreclosed, because, for reasons already stated, CIR never had an enforceable contract with the City or any of its agencies or designees. Accordingly, deeming that the plaintiff has moved to amend its complaint, the Court is compelled to deny that motion.

DECISION AND ORDER KAHN, District Judge. In this criminal action, Defendant is charged with transporting three aliens in the United States in knowing or reckless disregard of the fact that they were present in the United States illegally in violation of 8 U.S.C. § 1324(a)(l)(A)(ii) and with conspiring to do the same in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(I). Presently before the Court is the Government’s motion for reconsideration of the Court’s 1 December 1999 order that granted in part and denied in part Defendant’s motion to suppress statements Defendant made between the time Government Agents started questioning her and the time they advised her of her Miranda rights. See United States v. Chiochvili, 81 F.Supp.2d 393 (N.D.N.Y.1999). I. Standard of Review for Motions for Reconsideration Motions for reconsideration proceed in the Northern District of New York under Local Rule 7.1(g), unless otherwise governed by Fed.R.Civ.P. 60. The Government submits that the moving party must “point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” (Mot. Recons. Ct.’s Decision to Suppress Gov’t’s Evid. (hereinafter “Mot. Recons.”) at 1 (Doc. 50, 13 Dec. 1999), quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995) (Calabresi, J.).) The “clearly erroneous” standard of review applies to motions for reconsideration. Generally, the prevailing rule in the Northern District “recognizes only three possible grounds upon which motions for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.” In re C-TC 9th Ave. Partnership, 182 B.R. 1, 3 (N.D.N.Y.1995) (McAvoy, C.J.). In the present case, the Government does not contend that the first ground, an intervening change in controlling law, applies. Although the Government does state that it wishes to draw the Court’s attention to certain testimonial evidence, that evidence was before the Court when it made its previous ruling. Thus, the Government is not contending that the second ground, the availability of new evidence not previously available, applies. It appears that the Government is instead arguing on the basis of the third ground, that its motion for reconsideration should be granted in order to correct a clear error of law or prevent a manifest injustice. This is a demanding standard. It is not enough ... that [the moving party] could now make a more persuasive argument .... “[M]ere doubt on our part is not enough to open [up] the point for full reconsideration.” The law of the case will be disregarded only when the court has “a clear conviction of error” with respect to a point of law on which its previous decision was predicated. Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir.1981) (Friendly, J.) (citations omitted) (quoting White v. Higgins, 116 F.2d 312, 317 (1st Cir.1940), and Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.1964) (Friendly, J.)). A simple difference of opinion, no matter how deep it runs, will not warrant reconsideration. “[A]ny litigant considering bringing a motion for reconsideration must evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant.” In re C-TC 9th Ave. Partnership, 182 B.R. at 3. II. Timeliness of Motion Defendant argues that the Government’s motion for reconsideration is untimely. “Motions for reconsideration ... may be served not later than TEN CALENDAR DAYS after the entry of the challenged judgment, order or decree.” L.R. 7.1(g). Defendant notes that the Court’s decision was filed 1 December 1999; the Government filed and served its Memorandum of Law and Affidavit in support of its motion for reconsideration on 13 December 1999, and filed its Notice of Motion on 15 December 1999. Therefore, Defendant asserts, the motion was served and filed later than ten days after the decision, and should be denied as untimely. At first glance that appears an obvious conclusion, but Defendant has not properly calculated the time period. “When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” Fed.R.Civ.P. 6(a). Accordingly, the 4th, 5th, 11th and 12th of December must be excluded in the computation of this ten-day period. Computed properly, the Government’s Memorandum of Law and Affidavit were filed eight days after the Court’s decision, and its Notice of Motion was filed ten days after the decision. The Government’s motion is timely. Defendant’s counsel should have known the proper rules for computing the pertinent time period. Nevertheless, the Court also acknowledges that L.R. 7.1(g) on its face appears to set forth a very straightforward requirement, but, in conjunction with the Federal Rules, does not really mean “calendar days,” but “business days.” This method of stating time periods, in which an ostensibly plain-language requirement invisibly presumes the reader’s knowledge of a separate provision in the rules, is not ideal. III. Discussion As detailed in the Court’s earlier decision, the events in question began when Canadian authorities alerted United States Government Agents to suspicious activities near the international border. (Untitled mem. at 3 (Doc. 44, 16 Aug. 1999) (hereinafter “mem.”).) The Agents established surveillance positions near the border, and observed individuals making a surreptitious crossing of the border, through the woods and under cover of night. (Id. at 2.) They then observed suspicious actions by a car that picked up the individuals who had crossed the border on foot. (Id.) Soon thereafter, a Border Patrol Agent, John Letourneau, stopped the vehicle the agents had observed, and questioned the Defendant, who was driving, and her three adult passengers. Defendant was “Mirandized ” not at the arrest scene (as stipulated by the Government, Suppression Hr’g tr. at 63 lines 7-9 (Doc. 42, 4 Aug. 1999)), but at the Border Patrol station to which she was subsequently taken. (Id. at 39 lines 12-20.) The Government argues that at the beginning of Agent Letourneau’s questioning of the vehicle’s occupants, the nature of the stop was still a detention for investigatory questioning, preliminary to an arrest. Accordingly, the stop at that point lacked the coercive character of an arrest, and a recitation of the Miranda warnings to those being questioned was not required. The Government cites United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), in support of its contention that questioning of individuals by law enforcement officials in such circumstances does not need to be preceded by a recitation of Miranda rights. The Government represents the Court’s reasoning, in its decision to suppress, as finding that Defendant was “in custody” because the Defendant was not free to leave. (See Mot. Recons, at 2.) That criterion would certainly not be adequate for establishing the fact of custody. A driver whom an officer pulls over for speeding, or a driver going through customs at a border crossing, may not leave at any time she pleases, but in neither case do we ordinarily consider her “in custody,” and the officer with whom she interacts need not — and surely will not — recite the Miranda rights to her. The distinguishing characteristic of such stops, however, is their presumptively transient nature. A reasonable person in either case would expect to be on her way in a few minutes, after receiving a ticket or a warning, or answering routine customs and immigration questions. The Court’s decision that the Defendant was in custody from the time she was stopped at the arrest scene is tightly implicated with the set of facts leading to the stop, facts that strongly indicated acts establishing probable cause and justifying an arrest. It is those facts and the probable cause arising from them that compel the Court’s finding that Defendant was in custody from the time Agent Letourneau stopped her, as surely as if he had actually uttered the words, “You’re under arrest,” at that moment. The Government asks the Court to find the stop of Defendant’s car in the same class as that which the Supreme Court, in Brignoni-Ponce, described as a limited stop and inquiry, in which an officer “may question the driver and passengers about their citizenship and immigration status, and ... ask them to explain suspicious circumstances.” 422 U.S. at 881-82, 95 S.Ct. 2574. The stop in this case, however, is clearly distinguishable from the stops that were the focus of the case in Brigno-ni-Ponce. This is obvious from the factors the Supreme Court discussed in explaining how a court may decide if there was reasonable suspicion to stop a car in the border area. Those factors involve whether the vehicle or the passengers’ behavior fits a general profile — a style of car of a certain size may be well suited for smuggling people, and passengers trying to hide may arouse suspicions — and whether circumstantial evidence, such as that relating to usual patterns of traffic on the stretch of road, reasonably draws an officer’s attention to a particular vehicle. Id. at 884-85, 95 S.Ct. 2574. Notably, the Supreme Court described indirect indicia of unlawful actions, which allow an officer to focus on a particular vehicle as being more likely to be engaged in unlawful activity, and worthy of intensified scrutiny as an officer attempts to learn whether those suspicions were justified. In the present case, in contrast, the Border Patrol Agents and Canadian authorities had directly witnessed, by seeing or hearing, behavior that, taken as a whole, they could almost certainly conclude was unlawful. Having heard and seen what he had, knowing what his colleagues had heard and seen, and having seen evidence such as the forest debris on the pants legs of the passengers in the car, Agent Letourneau by any reasonable standard had probable cause to take the car’s occupants into custody. It is at such a point that the Miranda warnings must be required, whether or not an officer has actually said, ‘You’re under arrest.” The criteria for determining the time custody begins and Miranda warnings thereby become mandatory must allow for this manner of inquiry; clearly, if a court could not recognize the existence of custody until the point the officer orally confirmed the arrest, then law-enforcement officials could simply avoid saying those words and thereby avoid the obligation of reading a person in custody her rights. The Court has acknowledged that when Agent Letourneau made this stop he was entitled to ask the vehicle’s occupants for proof of identity and citizenship. Chiochv-ili, 81 F.Supp.2d at 396-97 at — . That is, he could make these inquiries not because the information from them was necessary to legitimate the arrest of the vehicle’s occupants — he already had enough information for that — but simply because he might plausibly get answers that would let him know if he were making a mistake, and therefore must let those persons go on their way. As for the Government’s request that the Court reconsider Agent Letourneau’s testimony (see Mot. Recons, at 4), the Government is not suggesting that the Court missed any evidence in its earlier decision. It simply wants to reargue this point, and get the Court to change its mind about the weight it accords different portions of the Agent’s testimony. Absent any indication of a manifest injustice, that is not a proper basis for a motion to reconsider. Thus, the Court must conclude that its earlier decision in this case was not clearly erroneous or manifestly unjust. To reiterate, the Court’s differences with the Government arise because the Government misapprehended the Court’s legal reasoning concerning the nature of the stop of Defendant’s car, and, to put it plainly, because the Government wishes the Court had weighed one portion of an Agent’s testimony more heavily, and another portion less heavily, than it did. Such differences of opinion, as Chief Judge McAvoy has pointed out, simply are not a proper basis for granting a motion to reconsider. In re C-TC 9th Ave. Partnership, 182 B.R. at 3. The Court’s reasoning was not flawed by a clear error of law with regard to the nature of the stop of Defendant’s car, and its weighing and evaluation of the evidence simply did not work a manifest injustice. The Court will therefore DENY the Government’s motion for reconsideration. The Court, as it has done previously, directs the Government’s attention to L.R. 10.1(a), which requires that all documents presented to the Court for filing have “pages consecutively numbered.” Once again the Government has submitted a memorandum — -in this instance seven pages long — without page numbers. CONCLUSION For the reasons stated above, it is hereby: ORDERED that the United States’ motion for reconsideration of the Court’s Decision and Order, granting in part Defendant’s motion to suppress statements purportedly made by Defendant at the scene of the arrest prior to the time she was advised of her Miranda rights, is DENIED; and IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this order by regular mail upon the parties to this action. IT IS SO ORDERED. . See Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Warren, C.J.). . The memorandum failed to include page numbers, as does the Government’s memorandum in support of its present motion; citations to each document are the Court’s page count.

ENTRY DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BARKER, Chief Judge. Plaintiffs, former sixth grade students at Lillian Emery Elementary School, bring a 42 U.S.C. § 1983 action against then-teacher, the superintendent and trustees of the county School Corporation. They contend that their teacher, Larry Brunson (“Brunson”), subjected them to an unreasonable strip search in violation of the Fourth and Fourteenth Amendments. They also allege a number of pendent state law claims based on the search, including battery and intentional and negligent infliction of emotional distress. Plaintiff Higginbottom amended his complaint to include a state law breach of contract claim, contending that the student guide issued to parents by the School Corporation created a contract that the School Corporation breached when Brunson conducted the alleged unreasonable strip search. Defendants move for summary judgment, and plaintiffs counter-move for summary judgment on the breach of contract and Fourth Amendment claims. For the reasons discussed, the defendants’ motion is GRANTED IN PANT and DENIED IN PART, and plaintiffs’ motion is DENIED. Background ■ Larry Brunson taught a class of male and female sixth-graders, including the plaintiffs, at Lillian Emery Elementary School during the 1995-1996 school year. In our March 16, 1999, entry granting in part and denying in part defendants’ motion for judgment on the pleadings (“prior entry”), we recited the general allegations in the plaintiffs’ three complaints, so we dispense with detailing the specifics of plaintiffs’ complaints here. In short, plaintiffs contend that after the disappearance of $38.00 that someone left unattended on a snack cart, Brunson singled out the plaintiffs from the rest of the students, took them to the boys’ bathroom, and instructed them to strip down to their underwear. He then searched the boys’ clothing for the missing money to no avail. Brunson allegedly subsequently insisted that each boy hold out his underwear so that he could inspect their penis and buttock areas to determine if they had stashed the money in those locations. According to plaintiffs’ complaints, while Brunson searched the eleven and twelve-year-old boys in the bathroom, someone evidently discovered the missing $38.00 in the possession of another student from another class. The parties provide us with a factual record on summary judgment that is no more developed than the nascent record that existed when defendants moved for judgment on the pleadings. Aside from the lack of citation to and development of the factual record, both parties fail to comply with Local Rule 56.1, which requires a party opposing summary judgment (in this case, both parties) to respond to “each factual assertion in the moving party’s Statement of Material Facts” and, if applicable, to file a separate Statement of Additional Facts that warrant a denial of summary judgment. Local Rule 56.1(c)(1). The practical result of the parties’ omissions is that we have virtually no facts to construe in either party’s favor on summary judgment. Left to our own devices, we might have searched the record and teased out the facts we consider most relevant to the issues before us. But where, as here, some claims are especially fact-sensitive, such as plaintiffs’ Fourth Amendment claims, and where the parties have not provided us with the full record, we once again must defer a fuller discussion until the parties develop the record, if that ever occurs. Therefore, for now, we cite only to the parties’ brief statements of (allegedly) undisputed and material facts, which each party filed in support of their motions for summary judgment, when considering the claims advanced by the parties in those motions. The parties agree, or at least fail to dispute, that on May 3, 1996, someone reported $38.00 missing from a snack cart at the elementary school. See Higginbot-tom Mem. Supp. Partial Summ. J. at 4, ¶ 4 (Statement of Material Facts). During the afternoon of the same day, Brunson apparently searched each of the plaintiffs in the boys’ bathroom and required them to remove all articles of clothing except their underwear. Id. Plaintiffs claim that Brun-son had no individual suspicion that any of the plaintiffs had taken the money, although they fail to provide us with any excerpt of the record to support that assertion. Id. ¶ 5. Defendants contend (without citation to the record) that Brun-son never touched plaintiffs at any point during the search and that plaintiffs suffered no physical injury, but defendants do not otherwise dispute that Brunson searched the four plaintiffs in some manner. See Defs.’ Statement Material Facts ¶¶ 2,5; Defs.’ Mot. Summ. J. at 6. Defendants also contend that Brunson did not consider the socio-economic status of any student before searching plaintiffs. Id. ¶ 4. The parties agree that prior to Brun-son’s search of the plaintiffs, the School Corporation had issued a written student guide to parents that prohibited “strip searches” of students. Id. ¶ 1; See Hig-ginbottom “Findings of Undisputed Fact” Supp. “Cross [sic] Motion for Partial Summ. J. for Breach of Contract” ¶ 5. Plaintiffs bring this action against New Albany-Floyd County Consolidated School Corporation (“School Corporation”) and against Brunson in his individual capacity. The plaintiffs allege that both the School Corporation and Brunson violated 42 U.S.C. § 1983 due to Brunson’s alleged strip search of the plaintiffs. Plaintiffs allege § 1983 claims based on the Fourth and Fourteenth Amendments, as well as state law claims for breach of contract, battery, and intentional and negligent infliction of emotional distress. We now proceed to consider the legal merits of the parties’ summary judgment contentions. Summary Judgment Standards Summary judgment is appropriate 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 a judgment as a matter of law.” FED. R. CIV. P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir.1998). However, neither the mere existence of some alleged factual dispute between the parties, Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1152 (7th Cir.1998), nor the existence of “some metaphysical doubt as to the material facts,” Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 571 (7th Cir.1998) (internal quotations omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), is sufficient to defeat a motion for summary judgment. In considering a motion for summary judgment, a court must draw all reasonable inferences in the light most favorable to the non-movant. See Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir.1992). Yet, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but also required. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265; Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989). Discussion I. Plaintiffs’ State Law Breach of Contract Claim Based on the Student Guide Plaintiffs claim that the School Corporation violated the terms of a student guide issued to parents when its agent, Brunson, searched the four plaintiffs. They contend that the student guide formed a contract between the School Corporation and the students’ parents, with the plaintiffs-students serving as third-party beneficiaries. Plaintiffs also invoke the theories of promissory estoppel and quasi-contract as grounds to hold the School Corporation liable for Brunson’s search of plaintiffs. All parties move for summary judgment, insisting (despite the generally inadequate factual record) that the contract claim is amenable to disposition at the summary judgment level since the parties agree on the existence of the student guide and its contents. We find that plaintiffs’ claim fails as a matter of law, as plaintiffs fail to offer either relevant legal authority or evi-dentiary support for their position and neglect even to specify the elements of their claim. After our prior entry, plaintiff Higginbottom amended his complaint to include a breach of contract claim based on the student guide, which the School Corporation promulgated pursuant to Indiana statute. Indiana Code § 20-8.1-5.1-7 requires school corporations to establish and publicize written disciplinary rules. Although a school corporation must make a good faith effort to disseminate such rules to students or parents, the publicity requirement “may not be construed technically” and a school corporation is not required to ensure that every student or parent actually receives them. Ind.Code § 20-8.1-5.1-7. The State of Indiana, in passing compulsory education laws that mandate the availability of public elementary education for its citizenry, has recognized that public schools stand “in the relation of parents and guardians to the students” (in loco parentis) regarding matters of discipline and conduct of students. Ind.Code § 20-8.1-5.1-3(b). Likewise, the Supreme Court has emphasized that while public schools are cloaked with the authority of the state for purposes of affording students constitutional protections, the very nature of a public school’s power over its students “is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995); New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 738, 83 L.Ed.2d 720 (1985). Ultimately, unlike the university setting where students pay tuition and generally operate as adults, the relationship between elementary students and a public school is not by its nature contractual. In light of this relationship between a public school and its students, defendants correctly note that the student guide issued by the School Corporation fails to evidence the hallmarks of traditional contract formation. Plaintiffs admit as much in their response, stating that the student guide lacks the “classic offer, acceptance and consideration” necessary to form an express or implied contract between the School Corporation and the plaintiffs’ parents. Higginbottom Response at 7. Nor do plaintiffs attempt to explore the contractual subtleties, if any, that may infuse and surround the School Corporation’s relationship with its students and their parents. Furthermore, the Indiana Supreme Court has never held that a contractual relationship exists between a public elementary school and its students or their parents. In fact, in the employer-employee context, which inherently involves arms-length transactions and lends itself to a contractual framework, Indiana courts, unlike courts in other jurisdictions such as Illinois, have been resolute in refusing to construe employee handbooks or guides as a source of contractual rights. This Court recently had occasion to assess the state of Indiana law regarding employee handbooks as unilateral contracts, and we con- eluded that an employee handbook lacking a definite term of employment or adequate independent consideration failed to create a contractual right to continued employment under Indiana law. See St. John v. Town of Ellettsville, 46 F.Supp.2d 834, 842-43 (S.D.Ind.1999) (collecting Indiana cases). Other courts that have construed handbooks as contracts in the employer-employee context nonetheless have refused to import that logic into the public educational setting, even where public primary or secondary schools issue handbooks to students or parents. See, e.g., Zellman v. Independent Sch. Dist. No. 2758, 594 N.W.2d 216, 219-20 (Minn.Ct.App.1999); Achman v. Chisago Lakes Indep. Sch. Dist. No. 2144, 45 F.Supp.2d 664, 670 (D.Minn.1999) (despite state’s recognition that personnel handbooks may qualify as contracts in the employer-employee context, that state’s law has never suggested that a student/school district relationship is contractual in nature). Hence, in Zellman, the court eschewed the application of contract principles to the public education setting: A sufficiently definite handbook, communicated to an employee, who continues to work for an employer, may form a unilateral contract between the employer and employee.... Although a student handbook provided by a university or private school may form a unilateral contract, we decline to extend this doctrine to a student handbook provided by a public school district. Unlike the employment relationship or a student’s payment of tuition, public schools are required by law to provide free education to students living within the school district. Rather than a contractual arrangement, this represents the public policy of the state and its citizens. The relationship between the parties is similarly distinct. In contrast to the employment context, where an employer receives the results of an employee’s labor in exchange for wages, the school district does not receive a similar benefit. The state benefits from the education of its citizens and students benefit from their own educational success. Public education involves the participation of the student, the student’s parents, the school district, and the state to prepare a student to be a citizen. The legislature recognized this complex relationship by making a student’s parents primarily responsible for assuring that the [student] acquires knowledge and skills that are essential for effective citizenship. The nature of the relationship between a public school district and its students dictates against expanding the scope of handbook claims to this context. Zellman, 594 N.W.2d at 219-20 (citations and quotations omitted). We find no reason to add to this analysis under the facts of this case, especially in light of Indiana’s approach to employee handbooks and the absence of any effort by plaintiffs to analyze the requisite elements of contract formation in the context of the student-public elementary school relationship. Indeed, the compulsory nature of public elementary education, which requires public schools to accept enrollment of children in their districts and mandates student attendance, militates against importation of mutual assent and consideration principles into the public elementary school context. We decline to conclude (especially without any evidence or discussion from the plaintiffs to the contrary) that the School Corporation desired legal consequences to attach to its student guide, especially where the guide’s contents are not negotiated with students or parents, they are subject to unilateral change by the School Corporation (they had been revised 25 times since 1972), and they are meant to implement a statutory directive to effectively educate children, an objective that, in this particular case, is based on public policy and lacks a commercial contract element. We need not say much more to dispose of plaintiffs’ “[o]ne contract theory” based on promissory estoppel. Higginbottom Response at 3. In one brief paragraph void of any analysis, record evidence, or legal authority, plaintiffs claim that the contents of the student guide represented the School Corporation’s promises on how to regulate student conduct, which parents and students relied upon to their detriment when the plaintiffs attended elementary school and Brunson searched them. Id. The doctrine of promissory estoppel generally provides that a promisor is estopped from denying the enforceability of a promise when, in reliance on that promise, the promisee substantially changes his or her position. See Weinig v. Weinig, 674 N.E.2d 991, 996 (Ind.App.1996). Because the doctrine of promissory estoppel can act as a substitute for lack of consideration or mutuality, a party may recover on the theory even if an actual contract does not exist. Plaintiffs fail to mention the elements of a promissory estoppel claim, which include: (1) a promise by the promisor, (2) made with the expectation that the promisee will rely thereon, (3) which induces reasonable reliance by the promisee, (4) of a definite and substantial nature, and (5) injustice can be avoided only by enforcement of the promise. See First Nat’l Bank of Logansport v. Logan Mfg. Co., 577 N.E.2d 949, 954 (Ind.1991). The party who alleges and relies on the doctrine of promissory estoppel has the burden to establish all facts necessary to support its application, and herein emerges the affliction that burdens plaintiffs’ claim in this case. Id. at 955. Plaintiffs fail to offer any record evidence that they detrimentally relied on the student guide. Plaintiffs claim that their parents signed manuals that they received from the School Corporation, yet they fail to provide us with those signed documents or otherwise substantiate that assertion. More importantly, plaintiffs neglect to provide any affidavits or cite to any deposition testimony indicating that their respective parents relied on the student manual or that they changed their position based on its content. We have no evidence suggesting that plaintiffs attended Lillian Emery because of any representation in the student guide, or, for that matter, that the plaintiffs would have at tempted to attend some other school but for their reliance on it. In short, plaintiffs offer no evidence whatsoever that the content of the student guide factored into their decisions to send their children to Lillian Emery Elementary School. Moreover, we have not located any Indiana case, nor has plaintiffs provided one, recognizing a promissory estoppel claim against a public school based on a student guide or handbook. We acknowledge that the theory may be well-suited to claims brought by students/parents against public schools, but we are not prepared to endorse it where Indiana’s courts have never done so. Finally, plaintiffs resort to a quasi-contract theory, contending that principles of “reason, law and equity” require our finding that the student guide is a contract that the School Corporation breached when Brunson allegedly searched the plaintiffs unreasonably. Higginbottom Response at 7. Plaintiffs’ quasi-contract claim collapses from within, as plaintiffs fail to plead or discuss its essential element, unjust enrichment. Quasi-contracts, also referred to as contracts “implied in law,” are not contracts in the true sense; they rest on a legal fiction imposed by law without regard to the assent of the parties. See Galloway v. Methodist Hosps., Inc., 658 N.E.2d 611, 614-15 (Ind.Ct.App.1995). Plaintiffs neglect to elaborate the burden that confronts them; to recover on the basis of quasi-contract, they must demonstrate that they rendered a benefit to the School Corporation, under circumstances which equity demands compensation in order to prevent an unjust enrichment. Id. The purpose of the doctrine “is to provide the injured party with the fair value of the work and services rendered and thus prevent unjust enrichment to another.” Wright v. Pennamped, 657 N.E.2d 1223, 1229-30 (Ind.Ct.App.1995) (additionally noting that plaintiffs generally must establish that the defendants “impliedly or expressly requested that the benefit be conferred”). Plaintiffs never mention “unjust enrichment” or explain what measurable and retained benefit they conferred upon the School Corporation by attending a free, public school after the School Corporation promulgated the student guide. Even assuming that plaintiffs identified some benefit and demonstrated that its acceptance and retention by the School Corporation without compensation would be unjust, plaintiffs have failed to consider what type of compensation would cure that putative injustice. Plaintiffs postulate in a footnote (under the promissory estoppel claim no less) that the School Corporation may incur a benefit by defending against unspecified parental complaints in reliance on the student guide, but plaintiffs (admittedly) fail to offer any record evidence in support of that unfounded assertion. See Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir.1995) (noting that in assessing a motion for summary judgment, a court assumes that the record at trial would be identical to the record that has been compiled in the summary judgment proceedings). Arguably, assuming a school corporation functions as a viable commercial actor shielded from its public policy mandate to provide compulsory education (e.g., a private institution), it receives a measurable benefit if parents pay tuition after relying on the terms in a student handbook. Or perhaps the school would receive a benefit if their paying students self-disciplined themselves according to handbook rules with the understanding that the school also would abide by certain restrictions in the handbook, such as not strip-searching students. Our point is that while these hypo-theticals suffer their fair share of problems under quasi-contract theory, plaintiffs fail to engage in this type of analysis, or any analysis for that matter, to explain why we should expand unjust enrichment doctrine to include student claims against public elementary schools. Not surprisingly, like plaintiffs’ previous contract-related claims, we have not located any Indiana cases, nor have plaintiffs cited any authority, recognizing the validity of quasi-contract theory as applied to student/parent lawsuits against public elementary schools. Accordingly, we find that the plaintiffs’ contract-reláted claims based on the student guide warrant dismissal as a matter of law, and we GRANT defendants’ motion for summary judgment and DENY plaintiffs’ motion for summary judgment on those issues. II. Section 198S Claims for Violations of the Fourth and Fourteenth Amendment A. Fourth Amendment 1. The School Corporation Plaintiffs have asserted a claim under 42 U.S.C. § 1983 against the School Corporation for an alleged violation of their Fourth Amendment rights due to the strip search conducted by Brunson. In our prior ruling, we denied defendants’ motion for judgment on the pleadings, holding that plaintiffs sufficiently alleged in their complaints that the School Corporation tolerated unreasonable strip searches of students, which could have represented either its official policy or its accepted custom and practice. See Court’s March 16, 1999, Entry at 12. However, we noted that “plaintiffs may find themselves mounting a Picket’s Charge at the summary judgment level, especially in light of their burden of proving both a pattern of strip searches (in the absence of an express policy) and the causal nexus between the municipal policy or custom and their alleged injury.” Id. Summary judgment has arrived, with the plaintiffs losing a battle that they never attempted to wage, as they have not adduced any evidence that the School Corporation had either an express policy or an accepted custom of tolerating strip searches that caused their alleged injury. In our prior ruling, we recognized that a municipality could be liable under § 1983 if an action pursuant to an official policy or custom of the municipality causes a constitutional tort. See Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 478-79 (7th Cir.1997) (citing Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Hence, it is only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694, 98 S.Ct. 2018. Plaintiffs cannot claim municipal liability unless they demonstrate that the enforcement of its policy was the “moving force” behind the constitutional violation. See Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir.1993). That is, “[t]here must be a ‘direct causal link between a municipal policy or custom and the alleged constitutional deprivation.’ ” Lanigan, 110 F.3d at 479 (quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989)). Therefore, we held that for plaintiffs to prevail on a § 1983 claim against the School Corporation, they had to establish one of the following: (1) there existed within the New Albany-Floyd County school system an express policy that when enforced caused a constitutional deprivation; (2) there existed within the New Albany-Floyd County school system a practice or custom of such unconstitutional conduct; or (3) the constitutional injury was caused by a person with final policy making authority. See Oliver v. McClung, 919 F.Supp. 1206, 1213 (N.D.Ind.1995) (citing McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.1995); Cornfield, 991 F.2d at 1324). Importantly, we recognized that plaintiffs remained silent in their complaints on theory three above, never alleging that the School Corporation is liable based on a constitutional violation by a person with final policy making authority. See Court’s March 16, 1999, Entry at 10. Instead, plaintiffs claimed that their complaints reflected one of the first two theories, contending that only discovery would reveal whether the School Corporation adopted an express written policy tolerating strip searches or whether it authorized a practice or custom of allowing unreasonable strip searches. See, e.g., Pis.’ Response to Mot. J. Pleadings at 3-5 (“Whether one or both of the first two bases of liability will apply to the present case, cannot be determined without discovery on the matter... the Plaintiffs would argue [that the School Corporation] exercises a practice of strip searching students without reasonable suspicion, regardless of the written policy, as evidenced by the supposed tolerance of the incident complained of here.”). The “discovery” conducted in the interim, if any actually occurred, failed to reveal that the School Corporation issued an express policy encouraging strip searches, or that it had an informal custom or pattern of tolerating such searches. Plaintiffs offer no evidence that any previous strip searches occurred within the school district or that any prior conduct or policy of the school corporation caused the alleged unreasonable search in this case. Therefore, plaintiffs have not established municipal liability based on the first two theories described above, which, of course, were the only two liability bases at issue in our prior ruling. One might naturally conclude at this point that the municipal liability question has been resolved. But alas, plaintiffs backtrack to theory number three in their motion for summary judgment, now contending that the School Corporation was a final policy maker that “ratified” Brunson’s search of the students after the fact, thereby playing a sufficient role in causing plaintiffs’ alleged injury to impose municipal liability. Specifically, the plaintiffs claim that although the School Corporation issued Brunson a written reprimand for his search of the plaintiffs, this reprimand was tantamount to an approval of Brun-son’s actions. We disagree. Initially, plaintiffs have not moved to amend their complaints to allege this ratification theory, nor did they advance this position in their prior briefing despite ample opportunity to do so. We generously read plaintiffs’ complaints in allowing their municipal liability claim to survive defendants’ motion for judgment on the pleadings, but expressly recognized that they failed to plead the ratification theory. Therefore, this claim is not properly before us. Nonetheless, we have fully considered plaintiffs’ ratification position and find it without merit. In City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988), the Supreme Court held that “[i]f the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” The Seventh Circuit considered this language in rendering its decision in Cornfield, 991 F.2d at 1326, remarking that “arguably, the endorse ment or ex post facto authorization could create liability for any unconstitutional searches.” Plaintiffs, in turn, seize upon the court’s suggestion in Cornfield and argue that the School Corporation’s treatment of Brunson after the search constitutes an ex post facto authorization of his conduct. Specifically, they contend that the School Corporation should have disciplined Brunson more sternly than issuing him a written reprimand that remained in his personnel file for at least two years. Maybe so, but based upon the alleged insufficiency of the written reprimand alone, we must find as a matter of law that the School Corporation’s conduct after Brun-son’s search fails to demonstrate the degree of authorization necessary to impose liability on the School Corporation in this case. The September 27, 1996, letter from the School Corporation to Brunson is what it purports to be — a reprimand. While the letter documents the School Corporation’s relief that a grand jury declined to indict Brunson for the search, that statement by no means suggests that the School Corporation agreed with or authorized his conduct. On the contrary, the letter notes that Brunson “did violate Board policy,” which “did cause serious problems for Mr. Brunson, Lillian Emery Elementary School and the School Corporation.” Hig-ginbottom Response, Ex. 4h. The letter further acknowledged Brunson’s “remorse because of his violation of the Policy and great concern about the negative effect it had had upon the school.” Id. It is understandable that plaintiffs would have preferred that the School Corporation send Brunson a scathing letter immediately pri- or to dismissing him, but its election to issue a written reprimand falls considerably short of establishing that the School Corporation approved Brunson’s search after the fact. In all, we find no basis on the record before us to conclude that the School Corporation’s alleged policy, custom, or ex post facto authorization of Brunson’s conduct visited the alleged constitutional wrong upon plaintiffs. Accordingly, we GRANT defendants’ motion for summary judgment on plaintiffs’ Fourth Amendment claim against the School Corporation under 42 U.S.C. § 1983. 2. Teacher Brunson Plaintiffs and defendants both move for summary judgment on plaintiffs’ Fourth Amendment claim against Brunson in his 'individual capacity. Each party contends that it is entitled to judgment as a matter of law on whether the search was reasonable, although neither party sufficiently develops a factual record upon which we can assess the reasonableness of the search based on the totality of the circumstances. Therefore, we deny both parties’ motions for the moment. We acknowledged in our prior entry that the Fourth Amendment protects school students against unreasonable searches and seizures by public school officials. See New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 738, 83 L.Ed.2d 720 (1985); Willis v. Anderson Comm. Sch. Corp., 158 F.3d 415, 417 (7th Cir.1998). In T.L.O., the Court determined that the legality of a search of a student should depend simply on its reasonableness, under all the circumstances. Id. at 341-43, 105 S.Ct. 733. Thus, school officials do not need to establish probable cause to justify the search of a student, but a search must be (1) “justified at its inception,” and (2) “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. The “justified at its inception” requirement means that the search is warranted “only if the student’s conduct creates a reasonable suspicion that a particular regulation or law has been violated, with the search serving to produce evidence of the violation.” Cornfield, 991 F.2d at 1320. The second T.L.O. prong means that the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. See Bridgman v. New Trier High Sch. Dist. No. 203, 128 F.3d 1146, 1149 (7th Cir.1997). Both parties’ inattention to developing the record at summary judgment is readily apparent from an inspection of their briefing. Plaintiffs erroneously claim that defendants take “a second bite at the apple” in filing a motion for summary judgment because, according to plaintiffs, this Court treated defendants’ prior motion for judgment on the pleadings as a motion for summary judgment. Higginbottom Response at 1. However, we specifically stated in our prior ruling that plaintiffs labored under the misconception that the standard of review for judgments on the pleadings is the same as that for summary judgments. Court’s March 16, 1999, Entry at 7, n. 7. By claiming that we treated defendants’ prior motion as one for summary judgment, plaintiffs not only have ignored our previous reminder concerning the proper standard of review, but they also have disregarded the very reason why several of their claims survived defendants’ motion for judgment on the pleadings, for we expressly examined the sufficiency, not the merits, of their complaints in determining whether plaintiffs stated a claim upon which relief could be granted. Perhaps plaintiffs’ mistaken approach to their obligations at summary judgment explains why they have not developed the record since our prior ruling. Defendants’ briefing likewise demonstrates both their inattention to our prior ruling and their insufficient cultivation of the record. They cite no evidence or facts to support their claim that Brunson’s search was reasonable as a matter of law. Rather, they rest on an argument that we expressly rejected in their motion for judgment on the pleadings. See Court’s March 16, 1999, Entry at 16-17 (acknowledging that while school officials stand in loco parentis regarding their students, that doctrine does not suspend Fourth Amendment protections for elementary students). In fact, defendants import block segments of their motion for judgment on the pleadings into their motion for summary judgment, completely ignoring the fact that we have both discussed and dismissed some claims that they now move us to dismiss a second time. They also reiterate verbatim other arguments that we found unsupported by Indiana law. See Defs.’ Mot. Summ. J. at 8 (again contending in error that the impact rule precludes plaintiffs’ claim for negligent infliction of emotional distress). We are troubled that both parties now request us to make an intensely factual determination about the reasonableness of Brunson’s search without affording us “all the circumstances” under which it occurred. See T.L.O., 469 U.S. at 341, 105 S.Ct. 733; Cornfield, 991 F.2d at 1321 (finding that the reasonableness assessment depends on a “careful scrutiny of the circumstances surrounding the search”). The general allegations in plaintiffs’ complaints, of course, sufficed to put defendants on notice of the claims advanced, but without substantiation in the form of exhibits, depositions, affidavits, or other admissible trial evidence, they prove incomplete in establishing record evidence upon which we may rely on summary judgment. It is pointless for us to attempt to view the record in a light most favorable to either party when one scarcely exists. What we are able to glean from the parties’ cursory statements of undisputed facts is that Brunson searched the plaintiffs for the missing $38.00, requiring that they strip down to their underwear. While we lack a complete picture of the facts enveloping Brunson’s decision to conduct such a search in the absence of some pressing security concern, it is apparent that plaintiffs may not have much difficulty establishing the search’s unreasonableness at trial. Until then, we find that neither party is entitled to judgment as a matter of law on the record before us, and accordingly, we DENY both parties’ motions for summary judgment on plaintiffs’ Fourth Amendment claims against Brunson under 42 U.S.C. § 1983. B. Fourteenth Amendment Plaintiffs also claim that Brunson violated their Fourteenth Amendment rights by basing his decision to search them on their socio-economic status. They contend that the “policy, procedures, and practices of the Defendants relating to this strip search were selectively applied only to low income students.” Higginbottom A. Compl. ¶ 5d; see Cousin and Deluca Compl. ¶ 33; Farnworth Compl. ¶ 26. Defendants rejoin that no evidence suggests that Brunson searched plaintiffs based upon socio-economic status. We agree with defendants in this regard. In order to establish liability under § 1983 for a violation of equal protection, the plaintiffs must show that the defendants acted with a nefarious purpose and discriminated against them based on their membership in a definable class. See Indianapolis Minority Contractors Assoc, v. Wiley, 187 F.3d 743, 752 (7th Cir.1999) (quoting Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir.1996)). In Wiley, the Seventh Circuit summarized its prior holdings in Nabozny and Shango v. Jurich, 681 F.2d 1091,1104 (7th Cir.1982): The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state’s action. A plaintiff must demonstrate intentional or purposeful discrimination to show an equal protection violation. Discriminatory purpose, however, implies more than intent as volition or intent as awareness of consequences. It implies that a decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group. Id. (citations and internal quotation marks omitted). “A showing that the defendants were negligent will not suffice. [Plaintiffs] must show that the defendants acted either intentionally or with deliberate indifference.” Nabozny, 92 F.3d at 454 (citations omitted). Plaintiffs contend that Brunson must have acted with discriminatory and nefarious purpose towards plaintiffs because most of the students at Lillian Elementary were from low-income families receiving federal assistance. See Higginbottom Response at 7; Brunson Dep. at 37-38. Even assuming that Brunson knew plaintiffs’ socio-economic status and that plaintiffs were from low-income families (neither of these propositions having been clearly drawn from the record), plaintiffs fail to demonstrate that Brunson acted with any discriminatory animus in searching them. Plaintiffs offer nothing to suggest that Brunson had a history of treating children of modest means any worse than affluent students, that he harbored any ill-will towards lower-income children, or that he generally treated lower-income children differently than anyone else. We have no facts before us suggesting that Brunson singled out the plaintiffs from the rest of the class because of their families’ income level or invidiously classified them based on that factor. Simply put, plaintiffs’ Fourteenth Amendment claim suffers from a palpable absence of proof. Accordingly, we GRANT defendants’ motion for summary judgment on plaintiffs’ Fourteenth Amendment claims against Brunson in both his individual and official capacities. III. Plaintiffs’ Remaining State Law Claims A. Battery Plaintiffs originally alleged in their complaints that Brunson committed the tort of battery while conducting the alleged unreasonable search. Under Indiana law, the tort of battery is defined as “[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent....” West v. LTV Steel Co., 839 F.Supp. 559, 562 (N.D.Ind.1993) (quoting Fields v. Cum- mins Employees Fed. Credit Union, 540 N.E.2d 631, 640 (Ind.Ct.App.1989)). “It has long been established in Indiana that ‘any touching, however slight, may constitute assault and battery.’ ” Oliver v. McClung, 919 F.Supp. 1206, 1220 (quoting Cohen v. Peoples, 140 Ind.App. 353, 220 N.E.2d 665 (1966)). Plaintiffs subsequently have acknowledged that Brunson never touched plaintiffs during the course of the search, and, in any event, no evidence indicates that he did so. See Higginbottom Dep. at 7-8; Farnworth Response at 5. Accordingly, we GRANT defendants’ motion for summary judgment on plaintiffs’ battery claim. B. Intentional Infliction of Emotional Distress Plaintiffs allege a claim for intentional infliction of emotional distress based on Brunson’s searches and treatment of the four boys. Plaintiffs fail to adduce evidence that Brunson intended to inflict emotional distress upon them, and their claim grinds to an abrupt halt as a result. As explained in Oliver, the Indiana Supreme Court defined the tort of intentional infliction of emotional distress as follows: “ ‘one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress ....’ RESTATEMENT (SECOND) OF TORTS § 46 (1965). It is the intent to harm one emotionally that constitutes the basis for the tort of an intentional infliction of emotional distress.” Id. (quoting Cullison, 570 N.E.2d at 31). We stated in our prior entry that “plaintiffs face a difficult task in ultimately proving the merits of the claim that Brunson actually intended to inflict emotional distress on plaintiffs,” but we nonetheless found the allegations in plaintiffs’ complaints sufficient to withstand a motion for judgment on the pleadings. Court’s March 16, 1999, Entry at 24. In the shadow of our warning about the gravity of their burden on summary judgment, plaintiffs do not offer any evidentiary support for the assertion that Brunson actually intended to inflict emotional damage upon them. See Oliver, 919 F.Supp. at 1206 (finding that although a strip search of seventh-grade girls for allegedly stealing $4.50 was unreasonable, plaintiffs failed to present evidence that defendants intended to harm them emotionally); Cullison v. Medley, 570 N.E.2d at 31 (upholding summary judgment in favor of defendant on plaintiffs claim of intentional infliction of emotional harm even though defendant trespassed onto plaintiffs property, yelled angrily at him, and threatened him with a gun knowing defendant’s fear of firearms). Instead, plaintiffs contend, without any analysis or citation to new authority, that this Court “has rejected [] the Defendants’ contention that they are entitled to summary judgment on the issue of negligent and intentional infliction of emotional distress.” Higginbottom Response at 7-8; see Farnworth Response a 6-7. We did nothing of the sort in our ruling on defendants’ motion for judgment on the pleadings; rather, we expressed our full appreciation for the magnitude of the task plaintiffs faced in adducing evidence of Brunson’s alleged intent to harm them emotionally. Because plaintiffs have produced no evidence to establish Brunson’s intent to inflict emotional distress upon them, we GRANT defendants’ motion for summary judgment on that claim. C. Negligent Infliction of Emotional Distress Plaintiffs assert a claim for negligent infliction of emotional distress against Brunson, which they predicate on Brun-son’s alleged violation of their Fourth Amendments rights. Defendants respond by again contending that the “impact rule” prevents plaintiffs from recovering on that claim if they have not sustained a physical injury, an argument we expressly rejected in our prior entry. We find that plaintiffs’ claim withstands defendants’ summary judgment motion, as plaintiffs’ § 1983 ac tion based on the Fourth Amendment provides a valid predicate for a claim of negligent infliction of emotional distress. Unlike a claim for intentional infliction of emotional distress, a claim for negligent infliction of emotional distress does not require the movant to prove that the defendant acted with an actual intent to harm one emotionally. Federal courts interpreting Indiana law have recognized that a plaintiff may recover for negligent infliction of emotional distress in the absence of physical injury if “(1) there is a tort which invades a legal right of the plaintiff; (2) which is likely to provoke an emotional disturbance or trauma; and (3) the defendant’s conduct is willful, callous, or malicious.” Oliver, 919 F.Supp. at 1221 0quoting Moffett v. Gene B. Glick Co., 621 F.Supp. 244 (N.D.Ind.1985)); Cullison v. Medley, 570 N.E.2d 27, 29-30 (Ind.1991) (permitting the possibility of recovery for negligent infliction of emotional distress in the absence of physical injury if the tort, in that case a trespass, is one which would provoke a foreseeable emotional disturbance or trauma); Shuamber v. Henderson, 579 N.E.2d 452, 455 (Ind.1991). We have dismissed plaintiffs’ battery claim, which could have provided one basis to sustain their negligent infliction of emotional distress allegation. However, plaintiffs’ also claim that Brunson committed a constitutional tort under § 1983 when he allegedly strip-searched plaintiffs in violation of their Fourth Amendment rights. A constitutional tort based on an alleged unreasonable strip search of sixth-graders certainly is the type of conduct that reasonably could provoke emotional disturbance or trauma, and perhaps did in this case. We also conclude that a reasonable jury could find that Brunson acted willfully or callously in so conducting that search. Since we have denied both parties’ motions for summary judgment on plaintiffs’ Fourth Amendment claim under § 1983, that cause of action remains as the underlying tort that could sustain plaintiffs’ claim for negligent infliction of emotional distress. Accordingly, we DENY defendants’ motion for summary judgment as to that claim. Conclusion For the reasons discussed, we GRANT defendants’ motion for summary judgment and DENY plaintiffs’ motion for summary judgment as to plaintiffs’ contract-related claims based on the student guide. We GRANT defendants’ motion for summary judgment as to plaintiffs’ § 1983 claims, based on the Fourth and Fourteenth Amendments, against the School Corporation. Also, we GRANT defendants’ motion with respect to plaintiffs’ § 1983 claim, based on the Fourteenth Amendment, against Brunson in his individual capacity. However, we DENY both parties’ motions for summary judgment as to plaintiffs’ § 1983 claim, based on the Fourth Amendment, against Brunson in his individual capacity. Finally, we GRANT defendants’ motion for summary judgment on plaintiffs’ state law claims of battery and intentional infliction of emotional distress, but we DENY defendants’ motion with respect to plaintiffs’ claim of negligent infliction of emotional distress. Neither party has moved for summary judgment on plaintiffs’ claim for invasion of privacy/bodily integrity. A trial on the merits shall proceed forthwith on plaintiffs’ three remaining claims, which include the § 1983 action against Brunson based on the Fourth Amendment, the negligent infliction of emotional distress claim, and the putative claim for invasion of privacy/bodily integrity- . In our prior ruling on defendants' motion for judgment on the pleadings, we dismissed plaintiffs' Fifth Amendment claim, the individual capacity claim against principal Keith-ley, and the pendent state law claims of false imprisonment/confinement, sexual battery and sexual abuse. We expressed no opinion on plaintiffs’ invasion of privacy/bodily integrity claim, which defendants failed to address. Neither party mentions the putative invasion of privacy/bodily integrity claim at the summary judgment stage, so we again refrain from attempting to resolve the viability of such a claim. . Plaintiff Higginbottom has assumed the primary advocacy for all four plaintiffs, having filed a response to defendants' motion for summary judgment, a motion for partial summary judgment on the Fourth Amendment claim, and a "cross motion” for summary judgment on the breach of contract claim. Plaintiff Farnworth filed his own response to defendants’ motion for summary judgment, but he joined in Higginbottom's two summary judgment motions. Plaintiffs Deluca and Cousin joined in Higginbottom’s and Farn-worth’s responses and Higginbottom's summary judgment motions and statement of undisputed facts. . As we mentioned in our prior ruling on defendants’ motion for judgment on the pleadings, plaintiffs’ claims against the School Corporation’s superintendent and trustees in their official capacities, as well as the claims against Brunson in his official capacity, are simply claims against the School Corporation itself. Therefore, we will dispense with the technical descriptions of the parties involved and instead refer to plaintiffs’ official capacity, claims as those against the “School Corporation.” See Gibson v. City of Chicago, 910 F.2d 1510, 1519 n. 14 (7th Cir.1990) (“An official capacity suit against a municipal officer is merely another way of asserting a claim against the municipality.”). . While courts have declined to characterize the student-public elementary school relationship as contractual, the contract theory has received some support in the limited academic scholarship on the topic. See Kevin P. Mcjessy, Comment, Contract Law: The Proper Framework For Litigating Educational Liability Claim, 89 NW. U.L. REV. 1768 (1995) (noting that courts have been hostile to tort claims against educational institutions, and insightfully urging that courts should adopt contract theory as governing relationships between students and universities, trade schools, private elementary/secondary schools, and public schools); but see Victoria J. Todd, The Non-Contractual Nature of the Student-University Contractual Relationship, 33 U. KAN. L. REV. 701 (1985). Even proponents of the contract paradigm in the general educational setting recognize its incompatibility with the elementary student-public school relationship, describing the elements of mutual assent and consideration as “difficult if not impossible to prove” in that context. K. Mcjessy, 89 NW. U.L. REV. at 1803. While we can imagine scenarios under which the contract cause of action holds promise in the educational context, Indiana courts (and courts generally) have not accepted it in the public elementary setting, and as a federal court applying state law, we are disinclined to make bold departures in areas of the law that we have no responsibility for developing. See Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir.1985). Moreover, as we have said, plaintiffs have provided virtually no argument explaining why this case lends itself to a contractual analysis, and thus we find it especially inappropriate to advocate novel theories on their behalf. . The Indiana Supreme Court has adopted Section 90 of the Restatement (Second) of Contracts, which provides, in part: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. See First Nat'l, 577 N.E.2d at 954; Jarboe v. Landmark Comm. Newspapers of Indiana, Inc., 644 N.E.2d 118, 121 (Ind.1994). . As practical consideration, even if plaintiffs prevailed on their undeveloped promissory estoppel theory, their recovery would be limited to reliance damages only. See Sammons Communications of Indiana, Inc. v. Larco Cable Constr., 691 N.E.2d 496, 499 (Ind.Ct.App.1998). We suspect that plaintiffs primary injury derives from the emotional trauma of the alleged unreasonable search, not from any reliance on the student handbook, a fact that would decrease their recovery appreciably. See Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991, 995 (Ind.Ct.App.1998) (finding that emotional distress is not a recoverable damage under a contract theory); Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 866 (5th Cir.1999) (holding that mental anguish damages are compensatory in nature and do not represent an injured party’s reliance on a promise, and noting that promissory estoppel claims are contractual in nature). Moreover, since a claim for promissory estoppel will succeed only if injustice can be avoided by enforcement of the alleged promise, and since a court may give a reliance remedy as “justice requires,” plaintiffs’ possible recovery under its Fourth Amendment claim (predicated on the same alleged unreasonable search) would mitigate the injustice in this case considerably. See RESTATEMENT (SECOND) OF CONTRACTS § 90. . In future litigation in this federal district, the parties should provide the court with all the excerpts of the evidence they designate in support of their factual claims as required by local rules. . The parlies have yet lo address plaintiffs’ putative invasion of privacy/bodily integrity claim, so we express no opinion on the interaction between that allegation and the claim just discussed.

ORDER DALZELL, District Judge. AND NOW, this 7th day of October, 2014, upon consideration of defendant ComQi, Inc.’s motion to dismiss for lack of jurisdiction, lack of standing, and failure to state a claim (docket entry # 5), and for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that: 1. Defendant’s motion to dismiss for lack of personal jurisdiction is GRANTED; 2. Defendant’s motions to dismiss for lack of standing and failure to state a claim are DENIED AS MOOT; 3. Plaintiffs Complaint (docket entry # 1) is DISMISSED; and 4. The Clerk of Court shall CLOSE this case statistically. MEMORANDUM I. Introduction We consider here defendant ComQi, Inc.’s (“ComQi”) motion to dismiss plaintiff Element Financial Corporation’s complaint. Plaintiff, formerly known as CoAc-tiv Capital Partners, Inc. (“CoActiv”) brings this diversity suit for contract breach, unjust enrichment, quantum meru-it, and common law fraud. ComQi argues that we lack personal jurisdiction, that CoActiv lacks standing to sue it, and that CoActiv has failed to state a claim. Because we find that we lack personal jurisdiction over defendant ComQi, we need not reach its other defenses. II. Standard of Review After a defendant challenges the Court’s personal jurisdiction, plaintiff bears the burden of establishing such jurisdiction. General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir.2001). Where the Court does not hold an evidentiary hearing, a plaintiff needs to establish only a prima facie case of personal jurisdiction, and a plaintiff is entitled to have its allegations taken as true and have factual disputes resolved in its favor. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir.2004). Still, a plaintiff must prove personal jurisdiction by a preponderance of the evidence. Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir.1992). After a defendant raises a jurisdictional defect, a plaintiff bears the burden of proving that jurisdiction is proper by competent evidence, actual proofs, or affidavits. Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir.1996). Rule 12(b)(2) motions inherently require resolution of factual issues outside the pleadings—that is, whether personal jurisdiction actually lies. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 68 n. 9 (3d Cir.1984) (at no point may a plaintiff rely on the bare pleadings alone to withstand a defendant’s Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction). III. Factual Background Plaintiff CoActiv is a Delaware corporation with corporate headquarters in Hors-ham, Pennsylvania. Complaint at ¶ 1. Defendant ComQi is a Delaware corporation with its principal place of business in New York, New York. Id. at ¶ 3. In March of 2012 ComQi engaged in business discussions with Power Station LLC (“Power Station”), a corporation not party to this lawsuit. Id. at ¶ 7. Power Station wished to buy various media player devices and ancillary components for a related company, ConnectiVISION. Id. at ¶7. To finance this transaction, CoActiv agreed it would purchase the equipment from Com-Qi and Power Station would make monthly lease payments to CoActiv. Id. at ¶ 8. ComQi sent a Quote to “Power Station, LLC” and “Financial Pacific Leasing, LLC” in Federal Way, Washington, representing that the sales price for the equipment and services would be $647,381.90. Id. at ¶ 9. The Quote was for “[m]edia players, wall mounts, and ancillary components and services relating to the connec-tiVISION Expansion Project.” Id. at Ex. A. On April 26, 2014, CoActiv issued a Purchase Order authorizing ComQi to ship the equipment to Power Station and send the invoice to CoActiv. Id. at ¶ 10. The Purchase Order provided that the goods to be sold to CoActiv, under its trade name “Panasonic Finance Solutions,” included “Media Players, Wall Mounts and ancillary components” for $647,381.90. Id. at Ex. B. The Purchase Order specified that the goods were to be sold to CoActiv d/b/a Panasonic Finance Solutions and shipped to Power Station, listed under a Folsom, California address. Id. On April 27, 2014, ComQi issued an Invoice to Power Station, LLC and CoActiv Capital Partners in Horsham, Pennsylvania. Id. at Ex. C. The description of the transaction on the Invoice is for “[m]edia players, wall mounts, and ancillary components and services relating to the connec-tiVISION Expansion Project.” Id. CoAc-tiv entered into a UCC Article 2A finance lease with Power Station LLC for the items listed on the 'Invoice. Id. at ¶ 12. ComQi shipped the equipment to a Massachusetts warehouse, where Power Station accepted the goods. Id. at ¶ 13. Plaintiff avers in its Complaint that “The ‘services relating to the connectiVISION Expansion Project’ described in the Invoice and Quote ... have never been and will never be fully performed by Com-Qi. On information and belief, only a small portion of the Equipment has been installed and put into use that actually required any amount of Services.” Id. at ¶ 14. It further alleges that on November 13, 2013 CoActiv mailed ComQi a letter requesting a refund for the portion of the $647,381.90 attributable to the non-performed services, which CoActiv, without a waiver of rights, estimated to be $343,122.41. Id. at ¶ 15. CoActiv here asserts four causes of action—breach of contract, unjust enrichment, quantum meruit, and common law fraud. Complaint at 4-7. ComQi moved to dismiss for lack of personal jurisdiction, lack of standing, and failure to state a claim. Def. Mem. at 6,12-13. IV. Discussion A. Challenges to Personal Jurisdiction A district court sitting in diversity exercises personal jurisdiction according to the law of the state where it sits. Fed. R.Civ.P. 4(k)(l)(A); O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir.2007). Pennsylvania’s long-arm statute permits the exercise of personal jurisdiction to the fullest extent permitted under the United States Constitution. 42 Pa. Cons.Stat. § 5322(b); Pennzoil Prod. Co. v. Colelli & Assoc., Inc., 149 F.3d 197, 200 (3d Cir.1998) (personal jurisdiction over non-resident defendants authorized to the constitutional limits of the Fourteenth Amendment’s Due Process Clause). We therefore inquire whether exercising personal jurisdiction over a defendant is constitutional. Id. Due Process requires a non-resident defendant to have certain minimum contacts with the forum state such that bringing the defendant into court does not offend traditional notions of fair play and substantial justice. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). First, we must determine whether a defendant’s contacts with the forum state are sufficient to support general jurisdiction. Pennzoil Products Co., 149 F.3d at 200. A party subject to general jurisdiction can be brought into court regardless of whether the subject matter of the cause of action has any connection to the forum state. Mellon Bank (East) PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992). A party is subject to general jurisdiction when it has continuous and systematic contacts with the forum. Provident Nat. Bank v. California Federal Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.1987) (a showing of minimum contacts is insufficient to establish general jurisdiction, as plaintiff must show non-resident defendant’s contacts are continuous and substantial). Should we lack general jurisdiction, we must next inquire as to whether we have specific jurisdiction. Specific jurisdiction exists when a plaintiffs claim is related to, or arises out of, a defendant’s contacts with the forum state. Dollar Sav. Bank v. First Sec. Bank of Utah, N.A., 746 F.2d 208, 212 (3d Cir.1984). The relationship among the defendant, the forum state, and the litigation creates the foundation for specific jurisdiction. Id. We ask whether a defendant has purposely availed itself of the forum state, invoking the benefits and protections of its laws, and whether a defendant’s conduct and connection with the forum state are such that it should reasonably anticipate being brought into court there. Farino, 960 F.2d at 1222. A single contact creating a substantial connection with the forum state can be sufficient to support exercising personal jurisdiction over a defendant. Miller Yacht Sales, 384 F.3d 93, 96 (3d Cir.2004). We analyze personal jurisdiction questions on a defendant-specific and claim-specific basis. Id. at 96 n. 1. To determine whether there is specific jurisdiction, we ask three related questions. First, has the defendant purposefully directed its activities at the forum state? D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir.2009). Second, does the litigation arise out of, or relate to, at least one of those activities? Id. And third, if the first two requirements have been met, does exercising jurisdiction comport with fair play and substantial justice? Id. If there are sufficient minimum contacts to support personal jurisdiction, we inquire whether exercising that jurisdiction comports with fair play and substantial justice. Farino, 960 F.2d at 1222. We must evaluate fairness based on several factors, including the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies. Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). B. General Jurisdiction CoActiv argues that we may establish general jurisdiction over ComQi based on its partnership with Almo Corporation, a Pennsylvania corporation with its corporate headquarters in Philadelphia, and ComQi’s appearance at a national sales meeting in Philadelphia in July of 2012. PI. Resp. at unnumbered page 7. Plaintiff supports its contention with a press release from July 10, 2012, id. at Ex. A, various excerpts from the Almo Corporation’s catalogues listing products labeled “ComQi,” id. at Ex. C, and photos of booths for “ComQi” at that national sales meeting. Id. at Ex. D. ComQi responds that CoActiv has identified the wrong entity: “The company that contracted with Almo Corporation is not defendant, but ComQi US, Inc. (“ComQi US”), a separate and distinct entity.” Def. Reply at 3. Defendant explains that it and ComQi U.S. have different registration numbers and dates of registration with the Delaware State Division of Corporations and “are separately managed and maintain separate financial books and records.” Id. Defendant includes a Declaration of Sara Bause Mason, Vice-President of Operations at ComQi, Inc., which reports that defendant ComQi had no booths at Almo Corporation’s national sales meeting in Philadelphia in July of 2012, that no one attended the show on ComQi’s behalf, and that ComQi has not done business with Almo Corporation. Second Mason Deck at ¶¶ 7-8. ComQi also attaches printouts from the Delaware Department of State: Division of Corporations showing that defendant ComQi Inc. was incorporated on March 4, 2007 under file number 4311373, id. at Ex. 1, and that ComQi U.S. Inc. was incorporated on. March 17, 2010 under file number 4800982. Id. at Ex. 2. Mason represents that defendant ComQi, Inc. is a software company that operates, sells and supports an internet platform that allows retailers and advertisers to manage and control their digital signage. ComQi US, Inc., by contrast, is the distributor for the Americas of hardware boxes for extension and distribution of signals. The companies have different clients. On rare occasion, Deféndant has purchased hardware from ComQi US, Inc. for resale if needed for a project, but no such purchases were made in connection with the ConnectiVISION Expansion Project. Id. at ¶ 5. CoActiv need only establish a prima facie case for personal jurisdiction and is entitled to have its allegations taken as true and factual disputes resolved in its favor. Miller Yacht Sales, Inc., 384 F.3d at 97. But CoActiv still must prove personal jurisdiction by a preponderance of the evidence. Carteret Sav. Bank, 954 F.2d at 146. Even if we were to accept as true that ComQi US, Inc. would be subject to general jurisdiction in this Court on the basis of its contacts with Almo Corporation and Pennsylvania, we need not accept as true Plaintiff CoActiv’s implied assertion that ComQi US, Inc. and defendant ComQi are the same company when they palpably are not. Plaintiff CoActiv has not shown by competent evidence, actual proofs, or affidavits that we have general jurisdiction, as defendant ComQi has demonstrated that it is not the same business CoActiv contemplates in the exhibits attached to its response. Dayhoff Inc., 86 F.3d at 1302. Plaintiff has therefore not shown that we have general jurisdiction over defendant ComQi. C. Specific Jurisdiction Plaintiff and defendant disagree as to whether three documents—the Quote, the Purchase Order, and the Invoice—establish a foundation for specific jurisdiction over ComQi. Plaintiff claims that even if we lack general jurisdiction, specific jurisdiction exists. PI. Resp. at unnumbered pg. 9. CoActiv argues that “ComQi sent the Quote to CoActiv in order to induce CoActiv’s financing for the transaction” with Power Station. Id. at unnumbered pg. 12. Further, CoActiv contends that the address on the Quote to Power Station in the state of Washington is not dispositive on the issue of whether there is specific jurisdiction. Id. at unnumbered pg. 13. CoActiv also argues that the Purchase Order “indicated CoActiv’s acceptance of the initial Quote (sent by ComQi to CoActiv) and formed the basis for a contractual obligation between the parties.” Id. (emphasis omitted). ComQi responds that CoActiv cannot show that ComQi purposefully directed its activities at Pennsylvania, or that the cause of action arose out of ComQi’s purposeful direction toward the Commonwealth of Pennsylvania, or that exercising specific jurisdiction comports with traditional notions of fair play and substantial justice. Def. Mot. at 9. ComQi stresses that CoActiv’s Complaint makes clear that Power Station and ConnectiVISION, not plaintiff, were the beneficiaries of the services ComQi provided. It also contends that no services were provided in Pennsylvania, the goods purchased were stored in Massachusetts, and the Purchase Order was for goods only, not services. Id. Com-Qi also argues that the purported contract was not negotiated in Pennsylvania, that no meetings occurred in Pennsylvania, and that ComQi has not availed itself of any benefits of conducting business in Pennsylvania in connection with this particular transaction. Id. at 9-10. ComQi asserts that the Quote was sent to Power Station in California, not CoActiv in Pennsylvania. Id. at 10. ComQi also asserts that the fact that “the [Purchase Order] may have been sent from Pennsylvania to ComQi in New York establishes only plaintiffs contacts with Pennsylvania, not ComQi’s.” Id. ComQi also contends that the Purchase Order was only for goods, “and not for the services that are the subject of this lawsuit.” Id. at 11. Finally, ComQi argues that its “compliance with plaintiffs request to send the Invoice to plaintiff does not establish” purposeful availment. Id. 1. Personal Jurisdiction Over the Breach Of Contract Claims and Quasi-Contract Claims Though a contract may provide the basis for the proper exercise of personal jurisdiction, a contract alone does not automatically establish sufficient minimum contacts in the other party’s home forum. Grand Entm’t Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir.1993) (quoting Burger King, 471 U.S. at 478, 105 S.Ct. 2174). The Court may consider contract negotiations, and mail and telephone communications the defendant sent into the forum state, all which may count toward the minimum contacts needed to support in personam jurisdiction. Id. Our Court of Appeals instructs us that In contract cases, courts should inquire whether the defendant’s contacts with the forum were instrumental in either the formation of the contract or its breach. Parties who reach out beyond their state and create continuing relationships and obligations with citizens of another state are subject to the regulations of their activity in that undertaking. Courts are not reluctant to find personal jurisdiction in such instances. Modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity. General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir.2001) (internal quotations, citations, and brackets omitted). Where the parties in a business transaction have long-term relationships conducted over electronic facilities, however, actual territorial presence is less determinative of whether there is personal jurisdiction. The important consideration is “the intention to establish a common venture extending over a substantial period of time,” not which party initiated the relationship. Id. at 151. We are obliged to consider “the totality of the circumstances, including the location and character of the contract negotiations, the terms of the contract, and the parties’ actual course of dealing” as we determine whether we have in personam jurisdiction. Remick v. Manfredy, 238 F.3d 248, 256 (3d Cir.2001). In Streamline Bus. Servs., LLC v. Vidible, Inc., 2014 WL 4209550, *10 (E.D.Pa. Aug. 26, 2014) (Baylson, J.), the Court found personal jurisdiction where “[b]oth parties maintained constant and consistent communication via Skype, email and telephone communications during prior negotiations and in performance of the contract.” Defendant also made payments into plaintiffs Pennsylvania bank account and knew that plaintiff was a Pennsylvania resident during contract negotiations and that it would conduct its services in Pennsylvania. Id. By contrast, in Rotondo Weinreich Enter., Inc. v. Rock City Mech., Inc., 2005 WL 119571, *4 (E.D.Pa. Jan. 19, 2005) (Padova, J.), the Court found it “significant that the parties did not intend to establish a common venture extending over a substantial period of time” where the contract was for a one-time project that lasted less than a year. There, the lack of physical presence in Pennsylvania was significant, even in a contract case, because there was no deliberate assumption of long-term obligations. Id. at *5. Given the absence of such a long-term relationship, and the minimal electronic contacts with the Pennsylvania plaintiff, there were insufficient contacts to ground specific jurisdiction related to the contract at issue. Id. See also Guzzi v. Morano, 2011 WL 4681927, *7 (E.D.Pa. Oct. 6, 2011) (Buckwalter, J.) (reviewing cases and agreeing that contract negotiations leading to a long-term relationship beyond a single transaction gave rise to minimum contacts); Cohen, Seglias, Greenhall, Pallas, & Furman, P.C. v. Hessert Constr.—PA, LLC, 2011 WL 382571, *7 (E.D.Pa. Feb. 4, 2011) (Bayslon, J.) (finding personal jurisdiction where defendants solicited and initiated a business relationship with a Pennsylvania entity that lasted ten years and included extensive interstate communication and many payments made into Pennsylvania). Where the Court has found interstate communication to ground specific jurisdiction, it is generally in conjunction with an actual appearance by the non-resident defendant in the forum state and continuing obligations between the parties. See Pulte Home Corp. v. Delaware Land Assoc., L.P., 2008 WL 2168788, *3-4 (E.D.Pa. May 22, 2008) (Giles, J.). This controversy is precisely the type of contract case where the contract alone cannot ground specific jurisdiction over the non-resident defendant, and there is a distinct lack of additional contact with the forum state in relation to the transaction at issue. Even if, as plaintiff alleges, the Quote and Purchase Order represent the operative documents for contract formation, the only additional contact defendant ComQi would have had with the forum state would be the Invoice sent to CoActiv and Power Station in Pennsylvania. Plaintiff has not shown by a preponderance of the evidence any additional contacts that would support specific jurisdiction. There are no extended or protracted contract negotiations or post-contract discussion, no visits to Pennsylvania, no performance of the contract in Pennsylvania, and no manifest intent by the parties to enter into a long-term business relationship—or even to conduct business beyond the provision of media players and services the agreement contemplated in Pennsylvania. ComQi did not purposely avail itself of the privileges of doing business in Pennsylvania, nor could it have reasonably anticipated being haled into a Pennsylvania court in relation to this agreement. CoActiv has not shown by a preponderance of the evidence that ComQi purposely directed its activities at Pennsylvania. Even if ComQi did send the Quote to induce the transaction, and therefore solicited the contract, ComQi sent the Quote to Power Station in California, not CoActiv in Pennsylvania. The Purchase Order that CoActiv sent to ComQi is the type of “unilateral activity of those who claim some relationship with a nonresident defendant” that will not suffice to ground specific jurisdiction. D’Jamoos ex rel. Estate of Weingeroff, 566 F.3d at 103. Even if the Purchase Order formed a contract between ComQi and CoActiv, that contract alone does not automatically supply specific jurisdiction. Beyond that alleged contract, the only other contact defendant ComQi had with the forum state would be the Invoice billing $647,381.90 to Power Station and CoActiv in Horsham, Pennsylvania. These contacts are too attenuated to support personal jurisdiction over defendant ComQi. 2. Personal Jurisdiction Over the Common Law Fraud Claim In Pennsylvania, the elements of common law fraud are (1) misrepresenta tion of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance upon the misrepresentation by the party defrauded; and (5) damage to the party defrauded as a proximate result. Hunt v. U.S. Tobacco Co., 538 F.3d 217, 225 n. 13 (3d Cir.2008) (quoting Colaizzi v. Beck, 895 A.2d 36, 39 (Pa.Super.Ct.2006)). For intentional torts, we use an “effects test” to determine whether there is personal jurisdiction. The plaintiff must show that (1) defendant committed an intentional tort, (2) plaintiff felt the brunt of the harm in the forum state such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort, and (3) the defendant expressly aimed his tortious conduct at the forum state such that the forum can be said to be the focal point of the tortious activity. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir.1998) (summarizing the effects test from Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), as it applies in our Court of Appeals). To show the third prong of the test, plaintiff must demonstrate that defendant knew plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum state and point to specific activity indicating that defendant expressly aimed its tortious conduct at that state. Id. at 266. CoActiv has not shown by a preponderance of the evidence that ComQi directed tortious conduct at Pennsylvania such that this forum can be considered the focal point of the alleged tortious activity. Even if CoActiv has felt the brunt of the alleged tortious activity in Pennsylvania based on its theory of overpayment for services not rendered, CoActiv has not shown that ComQi directed its overbilling or withholding of services toward Pennsylvania. CoActiv alleges that ComQi has not, and will not, provide certain services for which CoActiv has paid. Those services are not alleged to have been contemplated to be performed in Pennsylvania. The equipment itself was delivered to Massachusetts, and CoActiv’s letter to ComQi requesting a refund indicates that one hundred thirty-five of the two hundred fifty-five sets of media player systems that were the subject of the Invoice remain in the warehouse where they were originally shipped ... in Massachusetts. Complaint at Ex. D. We therefore lack personal jurisdiction in regard to plaintiffs common law fraud claim as well. D. Lack of Standing and Failure to State a Claim Because we find that we lack personal jurisdiction over defendant ComQi, we need not address ComQi’s additional contentions that CoActiv lacks standing to sue ComQi or that CoActiv has failed to state a claim upon which relief can be granted. V. Conclusion CoActiv has failed to meet its burden to demonstrate that we have personal jurisdiction over defendant ComQi. Even taking ComQi’s allegations as true, ComQi’s contacts with the forum state are too attenuated to support either general jurisdiction or specific jurisdiction. We therefore dismiss this case for lack of personal jurisdiction. An appropriate Order follows.

OPINION AND ORDER ROGER B. COSBEY, United States Magistrate Judge. I. INTRODUCTION This matter is before the Court on Defendant Arlington Capital, LLC’s motion to compel Plaintiff R. David Boyer, Trustee (“Trustee”), to produce five e-mail communications that he has withheld under the claim of work product doctrine or common interest doctrine. (Docket # 184.) The withheld emails are responsive to a request for production served by Arlington Capital on the Trustee on May 22, 2008. (See Docket # 148.) The Trustee filed a response to Arlington Capital’s motion on January 13, 2009 (Docket # 189), and Arlington Capital replied on January 23, 2009 (Docket # 194). In addition to considering the parties’ respective arguments, the Court conducted an in camera inspection of the e-mails. (See Docket # 192, 193.) For the following reasons, Arlington Capital’s motion to compel will be DENIED. II. FACTUAL AND PROCEDURAL BACKGROUND The Trustee has described this as a “bid-rigging” case orchestrated by all ten Defendants for the sale of the business assets of a bankrupt entity, GT Automation, Inc., in April 2003. In particular, on October 18, 2004, the Trustee filed an amended adversary proceeding complaint against a number of Defendants, including Arlington Capital. (Docket # 12). In the complaint, the Trustee alleged among other things that Arlington Capital and the other Defendants violated 11 U.S.C. § 363(n) by entering into an agreement to control the price of the auction assets to the detriment of both secured (ie., primarily Comerica Bank) and unsecured creditors. Baker & Daniels, LLP, was initially employed as special counsel to the Trustee in the Bankruptcy Court case. Baker & Daniels, specifically Attorneys John Burns and Mark Werling, were counsel for Comerica Bank, the largest secured creditor of GT Automation during the Chapter 11 phase of the bankruptcy proceedings, and still are counsel for Comerica. After the Trustee filed its amended complaint, the Bankruptcy Court granted Baker & Daniels’s application to withdraw as special counsel to the Trustee. Attorney John McCarthy of Bainton McCarthy was and remains special counsel to the Trustee. On June 12, 2006, after Baker & Daniels had withdrawn as special counsel to the Trustee, Werling filed a lengthy affidavit with the Court (Docket #82), detailing his knowledge of the factual events relevant in this dispute. On May 22, 2008, Arlington Capital served counsel for the Trustee with a request for production of documents, and on July 9, 2008, the Trustee served his objections and responses. Arlington Capital then filed a motion to compel certain responses from the Trustee (Docket # 148), which the Court granted on November 13, 2008 (Docket # 176), ordering the Trustee to produce certain documents together with a privilege log for any documents he claims are privileged. On December 23, 2008, after receiving the Trustee’s privilege log, Arlington Capital filed the instant motion to compel, challeng- ing the Trustee’s withholding of five e-mail communications under the work product doctrine or common interest doctrine. Four of the e-mails are between Werling and one or more attorneys with Bainton McCarthy, the Trustee’s special litigation counsel. The remaining e-mail is between a Bainton McCarthy attorney and James Treadwell, an officer of one of GT Automation’s largest unsecured creditors and an anticipated fact witness in this case. III. LEGAL STANDARD The work product doctrine is a qualified privilege and is “distinct from and broader than the attorney-client privilege.” Caremark, Inc. v. Affiliated Computer Seros., Inc., 195 F.R.D. 610, 613 (N.D.I11. 2000) (citing United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)). The work product doctrine, stemming from Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), is codified in Federal Rule of Civil Procedure 26(b)(3) as follows: Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ____ But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means____If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. Therefore, in order to come within the qualified protection from discovery created by Rule 26(b)(3), a party claiming protection must show that the materials sought are: (1) documents and tangible things; (2) prepared in anticipation of litigation or for trial; and (3) by or for a party or by or for a party’s representative. Caremark, 195 F.R.D. at 613-14 (citing 8 Wright, Miller & Marcus, Federal Practice And Procedure: Civil 2D § 2024 (1994)). Materials prepared in anticipation of litigation by or for a party, by any representative of that party, are protected, regardless of whether the representative is acting for the lawyer. Id. at 615. “Thus, whether a document is protected depends on the motivation behind its preparation, rather than on the person who prepares it.” Id. Nonetheless, as articulated in Rule 26(b)(3), once the qualified work product privilege is established, it can still be overcome if the party seeking the materials shows: (1) a substantial need for the materials, and (2) an inability to obtain the substantial equivalent of the information without undue hardship. Id. at 614. Even upon such a showing, however, “the lawyer’s mental processes are required to be protected' from disclosure.” Id. To elaborate, Rule 26(b)(3) divides work product into two categories: (1) “opinion” work product, which reflects or reveals a lawyer’s mental processes; and (2) “ordinary” or “fact” work product. Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 768-69 (7th Cir.2006); Caremark, 195 F.R.D. at 616. “Both are generally protected and can be discovered only in limited circumstances.” Caremark, 195 F.R.D. at 616 (citing In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.1994)). Opinion work product, however, is even more scrupulously protected than ordinary or fact work product, since it “represents the actual thoughts and impressions of the attorney.” Grand Jury Proceedings, 33 F.3d at 348; see also Mattenson, 438 F.3d at 768-69; Caremark, 195 F.R.D. at 616. IY. DISCUSSION A. E-Mail Dated December 22, 2005, From Werling to Bainton and Cohen, and EMail Dated December 23, 2005, From Werling to Cohen The first two documents in dispute are e-mails sent by Werling to one or more attorneys at Bainton McCarthy, the Trustee’s current counsel: the first to J. Joseph Bainton and Michael Cohen (and copied to John Burns of Baker & Daniels), and the second to solely Cohen. The first e-mail articulates Werling’s analysis of the computation of certain buyout premiums and the second discusses his analysis of certain term sheets. Arlington Capital, citing Ricoh Co. v. Aero-flex Inc., 219 F.R.D. 66, 69-70 (S.D.N.Y. 2003), argues that these two e-mails do not constitute work product because they were prepared by Werling, who is a fact witness in this case and not a party. In Ricoh, the Court concluded that e-mails between the defendants’ counsel and the employees of a non-party did not constitute work product, stating that “it is a stretch to apply the attorney work product privilege to documents created by a third party and sent to counsel for a party.” Id. The Ricoh Court further reasoned that there was no “confidential relationship between the sender ... and the recipient (lawyers for the [defendants ...), as would be the case where the ‘third party’ is a consultant retained by a party or its lawyers and brought within the privilege as an agent of the attorney or party.” Id. However, as the Trustee argues, it is significant that Werling served as the Trustee’s prior counsel in this litigation and that this communication was directed to the Trustee’s current counsel. An in camera inspection of the two e-mails reveals that they contain Werling’s mental impressions, conclusions, opinions, or legal theories about this case, materials which the Seventh Circuit Court of Appeals has emphasized are afforded “heightened protection.” Logan, 96 F.3d at 976 n. 4. If these documents were to be disclosed, it could provide Arlington Capital with insight into the Trustee’s current legal strategy in this case. “The work product doctrine reflects the strong public policy against invading the privacy of an attorney’s course or preparation.” Jackson v. City of Chicago, No. 03 C 8289, 2006 WL 2224052, at *4 (N.D.I11. July 31, 2006) (citation omitted). In that regard, the Seventh Circuit has specifically explained that the work product doctrine shields materials “on the theory that the opponent shouldn’t be allowed to take a free ride on the other party’s research, or get the inside dope on that party’s strategy____” Matten-son, 438 F.3d at 767-68; see also Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006) (stating that the purpose of the doctrine is “to establish a zone of privacy in which lawyers can analyze and prepare their client’s case free from scrutiny or interference by an adversary”); 1100 West, LLC v. Red Spot Paint & Varnish Co., No. l:05-cv-1670-LJM-WTL, 2007 WL 2904073, at *2 (S.D.Ind. May 18, 2007) (stating that one of the purposes of the doctrine is to prevent a party “from taking a free ride on the research and thinking of his opponent’s lawyer” (quoting Hob-ley, 433 F.3d at 949)). In short, because these two communications contain the Trustee’s former counsel’s mental impressions about this litigation and were directed to the Trustee’s current counsel, their disclosure could reveal the Trustee’s legal strategy in this action; therefore, they are entitled to protection under the work product doctrine. Arlington Capital’s motion to compel these documents will be DENIED. B. E-Mail Chains Between Werling and Cohen Dated June 5, 2006, and June 9, 2006 The next two disputed e-mail chains are also between Werling and Cohen and pertain to, at least in part, Werling’s draft affidavit. The first was initiated by Werling and discusses certain factual issues about his draft affidavit, his analysis of certain background facts, and Arlington Capital’s request for sanctions. The second e-mail chain was initiated by Cohen (and copied to his paralegal) to discuss Werling’s draft affidavit and certain issues concerning the asset purchase agreement. As explained supra, Arlington Capital argues that these two e-mails do not constitute work product because Werling is a non-party, fact witness in this case. However, the Court’s in camera inspection of these two emails reveals that they again contain, in part, Werling’s mental impressions, conclusions, opinions, or legal theories about the instant litigation. As stated supra, the Seventh Circuit has referred to this type of material as “out of bounds.” Mattenson, 438 F.3d at 768-69. Placing the mental impressions and legal theories of the Trustee’s former counsel into the hands of Arlington Capital could provide it with insight into the Trustee’s legal strategy in this case, thereby violating the public policy interests of the work product doctrine. See generally In re ANR Advance Transp. Co., 302 B.R. 607, 616 (E.D.Wis.2003) (“[I]t is widely agreed that the principal justification for the doctrine is that protection of work product is necessary to preserve the adversary system of justice.”) (collecting cases). As to the portions of the e-mails that specifically discuss the evolution of Werling’s affidavit, many district courts “consider draft affidavits and communications with counsel relating to affidavits as covered by the attorney work product doctrine.” Randleman v. Fid. Nat’l Title Ins. Co., 251 F.R.D. 281, 285 (N.D.Ohio 2008); see, e.g., Tuttle v. Tyco Elees. Installation Servs., Inc., No. 2:06-cv-581, 2007 WL 4561530, at *2 (S.D.Ohio Dec. 21, 2007); Kyoei Fire & Marine Ins. Co. v. M/V Mar. Antalya, 248 F.R.D. 126, 155 (S.D.N.Y.2007); United States v. Univ. Hosp., Inc., No. l:05-cv-445, 2007 WL 1665748, at *1 (S.D.Ohio 2007); 1100 West, 2007 WL 2904073, at *2; Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 608-09 (D.Nev.2005). Admittedly, there is contrary authority, reasoning that affidavits are not “attorney thought” but are instead primarily “factual in nature and content.” Milwaukee Concrete Studios, Ltd. v. Greeley Ornamental Concrete Prods., Inc., 140 F.R.D. 373, 378-79 (E.D.Wis.1991); see, e.g., Murphy v. Kmart Corp., No. 07-5080-KES, 2009 WL 89687, at *6-9 (D.S.D. Jan. 9, 2009); Walker v. George Koch Sons, Inc., No. 2:07ev274 KSMTP, 2008 WL 4371372, at *5 (S.D.Miss. Sept. 18, 2008); Infosystems Inc. v. Ceridian Corp., 197 F.R.D. 303, 306-07 (E.D.Mich. 2000). But here Arlington Capital fails to show that it has a substantial need for this information and that is unable without undue hardship to obtain the substantial equivalent of the materials by other means. See Fed. R.Civ.P. 26(b)(3); Mattenson, 438 F.3d at 768-69. In fact, Arlington Capital does not even raise a substantial need argument until its reply brief and then does so rather con-clusorily, simply asserting that the e-mails “could contradict statements [Werling] made in his affidavit or during his deposition.” (Reply Br. 4.) Of course, “[arguments that first appear in a reply brief generally are deemed waived.” Merrick v. Wal-Mart Supercenter, No. 3:06-CV-292 RM, 2007 WL 1742194, at *2 (N.D.Ind. June 13, 2007); see, e.g., Porco v. Trustees oflnd. Univ., 453 F.3d 390, 395 (7th Cir.2006). And, Arlington Capital makes no allegation that Werling exhibited any inconsistencies or gaps in his memory during his deposition that would give rise to a substantial need for the e-mails. Cf. Johnson v. Bryco Arms, No. 03 CV 2582, 02 CV 3029, 2005 WL 469612, at *5 (E.D.N.Y.2005) (finding substantial need to disclose work product for impeachment purposes where the witness demonstrated inconsistencies and gaps in his memory during his deposition). Furthermore, Arlington Capital never even argues that it cannot obtain the substantial equivalent of these documents by other means. As a result, these two e-mail chains will be protected under the work product doctrine, and Arlington Capital’s motion to compel their disclosure will be DENIED. C. E-Mail Chain Dated June 8, 2006, Between Treadwell and Cohen The final document in dispute is the e-mail chain between non-party, fact witness Treadwell and Cohen, discussing Treadwell’s draft affidavit and his recollection of a meeting with Arlington Capital. Treadwell’s affidavit was filed with the Court four days after this e-mail correspondence took place. (See Docket # 79.) The Court’s in camera inspection of the email reveals that Cohen initiated this e-mail chain to Treadwell to discuss Treadwell’s affidavit that Cohen was preparing. The communication on its face seemingly articulates only factual details, giving very little glimpse, if any, into Cohen’s legal reasoning. Arlington Capital, however, never asserts that it has a substantial need for this document or that it is unable without undue hardship to obtain its substantial equivalent by other means. See Fed.R.Civ.P. 26(b)(3); Matten-son, 438 F.3d at 768-69. Consequently, we again will align with the eases that find communications with counsel relating to affidavits as covered by the attorney work product doctrine. See Randleman, 251 F.R.D. at 285; Tuttle, 2007 WL 4561530, at *2; Kyoei Fire, 248 F.R.D. at 155; Univ. Hosp., 2007 WL 1665748, at *1; 1100 West, 2007 WL 2904073, at *2; Ideal Elec., 230 F.R.D. at 608-09. Therefore, Arlington Capital’s motion to compel with respect to this document will also be DENIED. Y. CONCLUSION For the reasons set forth herein, Defendant Arlington Capital’s motion to compel to produce documents withheld under the claim of work product doctrine or common interest doctrine (Docket # 184) is DENIED. SO ORDERED. . The Supreme Court has declined to rule whether this immunity is absolute, and, if not, the showing required to overcome a presumption of protection. Upjohn Co. v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The Seventh Circuit Court of Appeals has staled that an attorney's mental impressions and opinions are afforded “heightened protection,” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 n. 4 (7th Cir.1996), and referred to such material as being "out of bounds,” Mattenson, 438 F.3d at 768-69. At least one district court has held that "mental impressions, conclusions, opinions, or legal theories” of an attorney are "absolutely privileged." Vardon Golf Co. v. BBMG Golf Ltd., 156 F.R.D. 641, 646 (N.D.I11.1994). Thus, in essence, the immunity from discovery for opinion work product is absolute or nearly absolute. See Bio-Rad Labs., Inc. v. Pharmacia, Inc., 130 F.R.D. 116, 121 (N.D.Cal.1990). In fact, in those circuits that do allow discovery for these type of documents, a "compelling showing” is required to produce the documents. Id. . The second e-mail is the only document that the Trustee claims is also protected under the common interest doctrine. Because the material is ultimately protected as work product, the Court does not need to reach the common interest doctrine. . In fact, in its reply brief (Docket # 159) to its initial motion to compel, Arlington Capital definitively stated that it "is not seeking communications that reflect the legal analysis of Mr. Wer-ling.” (Arlington Capital’s Reply to Trustee’s Mem. of Law in Opp’n of Arlington Capital’s Mot. to Compel Produc. 6.) . Arlington Capital also raises for the first time in its reply brief a vague waiver argument that is rather difficult to make sense of and merits no further mention. (Reply Br. 5-6.)

MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT SAYLOR IV, District Judge. This action is brought by a state prisoner for alleged medical malpractice and sub standard prison conditions, arising out of injuries he suffered in a motor vehicle accident while being transported in custody. After the accident, plaintiff Edwin Rua contends that he was treated by defendants Thomas Patnaude, M.D., and other medical staff. The complaint alleges that Dr. Patnaude and defendant Guy Glo-dis (who was then the sheriff and who oversaw the Worcester County Jail and House of Corrections) are responsible for his injuries. It asserts -claims under 42 U.S.C. §§ 1983 and 1985 for violating and conspiring to violate Rua’s rights under the Fourth, Eighth, and Fourteenth Amendments and under state law for breach of fiduciary duty and intentional infliction of emotional distress. Defendants Glodis and Patnaude have separately moved for summary judgment. For the reasons set forth below, the motions will be granted. I. Background Unless otherwise specified, the following facts are undisputed. A. Factual Background On March 20, 2008, Edwin Rua was arrested and then held as a pre-trial detainee in the Worcester County Jail. His medical entrance examination report stated that he had a history of drug or alcohol abuse, that he had last used heroin two days before, and that he complained of being “dope sick” but that he had no injuries or chronic medical conditions. (Pat-naude Mem., Ex., C at 2). He was placed on suicide watch for close observation during his detoxification. (Rua Mem., Ex. E). According to Rua, he felt ill and vomited during the withdrawal period and he remained on suicide watch for seven to ten days. (Rua Dep. at 40, 43). On July 25, 2008, while Rua and another inmate were being transported in a Sheriffs Office van to the Lawrence District Court, the driver of the van suddenly applied his brakes. As a result, the other inmate slid into Rua, both hit the wall of the van, and they fell to the floor. Rua testified that his head hit the side of the van, knocking him unconscious. He also testified that he was yelling and screaming for the vehicle to stop. (Rua Dep. at 45, 77-78). The driver continued on to the courthouse, from where Rua and the other inmate were transported to Lawrence General Hospital for medical treatment. Rua previously had been in two or three motor vehicle accidents. (Rua Dep. at 18). At the hospital, Rua complained of pain in his head, face, neck, spinal cord, left chest, shoulder, left knee, and left lower leg. Doctors examined him, conducted multiple tests, and provided intravenous morphine and Torodol for pain. CT scans revealed no injury to his head, spine, or back; x-rays of his left clavicle, left shoulder, left ribs, left knee, left leg, left ankle, or spine revealed no injuries. The hospital discharged him into police custody with a prescription for ibuprofen and instructions to follow up with a primary care physician. According to hospital records, Rua moved his extremities freely during the x-ray examination and was “laughing and smiling” at discharge. (Glodis Mem., Ex. 2 at 22). Rua was returned to the jail. Records of the Sheriffs Office indicate that a medical staff member placed him on medical watch. (Glodis Mem., Ex. 3 at 4; Pat-naude Mem., Ex. E at 3; Compl., Ex. D). However, Rua contends that he was placed on suicide watch, in which he allegedly had no mattress or blanket, toiletries, or books, was afforded no recreation time, and was exposed to light 24 hours per day. (Rua Dep. at 48; Rua Mem., Ex. L, Rua Aff. ¶ 2; see Glodis Mem., Ex. 4, Glodis Dep. at 32:16-38:21 (describing suicide unit as “cold,” “with a light on,” and having a bed with no box spring)). Prison records note that Rua complained of achiness in his neck and back, as well as nausea, dizziness, and headache; that he asked for pain medication; that his gait was within normal limits; and that he was oriented. (Glodis Mem., Ex. 3 at 4; Patnaude Mem., Ex. E at 3). He was given Motrin for five days. Rua testified that Nurse Pam Jones crushed his medications, causing him to have difficulty ingesting them. (Rua Dep. at 133). He also testified that after he was released from medical watch or suicide watch, he was held in segregation for one day before being released into the general prison population. (Rua Dep. at 50). On an undated medical request form, Rua complained of pain in his back and head. On August 20, 2008, he was given Tylenol. On August 21, he filed another form complaining of pain in his head, hip, and leg. On August 28, Dr. Thomas Pat-naude provided him Naproxen for pain. According to Dr. Patnaude, that was the first hands-on treatment he provided Rua. He had, however, discussed the case with the nurses on the day of the accident and formulated a treatment plan. (Rua Mem., Ex. I, Patnaude Dep. at 52). In addition to providing direct care to inmates, Dr. Patnaude was in charge of all medical care at the Worcester County Jail. (Patnaude Dep. at 18). He estimated that he was present at the prison four days per week and that he saw Sheriff Glodis there two to three times per week. (Id. at 65-70). On August 28, 2008, Rua filed another request for medical services, complaining of pain in his head and back, pressure in his chest, and a broken tooth. On September 5, he again requested medical attention, complaining of pain in his head and legs, dizziness, and hot flashes. On September 7, he was' evaluated by a nurse. On September 23, he filed another request, describing pain in his head and back. On September 25, Dr. Patnaude prescribed Meclizine for dizziness' and Parafon Forte, a muscle relaxant and pain medication. On October 1, 2, and 5, 2008, Rua filed three medical services request forms, stating that he continued to experience pain, that the prescribed medications did not relieve that pain, and that he had difficulty sleeping. On October 5, a nurse evaluated him and referred him to a doctor. On October 20, Dr. Patnaude altered his medication from Naproxen to Ultram and referred him to Saint Vincent Hospital for an MRI of his lumbar spine. The MRI, taken on October 29, revealed a mild compression deformity at T12-L1 and L1-L2 but no major abnormalities. Generally, once the prison received an external medical report, such as an MRI, a nurse would explain it to the inmate. (Patnaude Dep. at 64). However, according to Rua, he did not learn the results of the MRI until December 5. Rua continued to report persistent pain, filing medical services request forms on November 29 and December 6, 2008. A nurse evaluated him on December 6 and referred him to a doctor. On December 16, Dr. Patnaude referred him to neurologist Dr. Thomas Mullins at Saint Vincent’s Hospital. At the January 16, 2009 evalua tion, Rua described pain radiating from his left buttock to hip and in his shoulder and collarbone, discomfort in his hamstring tendons, fatigue in his lower legs, difficulty standing and walking, and numbness along his left lateral thigh. Dr. Mullins concluded that there was no evidence of lumbar radiculopathy and diagnosed meralgia par-esthetica. He explained that the condition would improve with time, but that “in the meantime he’d simply have to live with it.” (Patnaude Mem., Ex. L at 3). He also recommended that Rua stretch and ordered hip x-rays “for completeness.” (Id.). X-rays of Rua’s pelvis and hips performed on March 19, 2009, showed no abnormalities or fractures. On March 30, 2009, Dr. Patnaude referred Rua to an orthopedic clinic at Saint Vincent’s Hospital for pain management. On May 19, 2009, he was examined by Dr. Alberto Cabantong. Dr. Cabantong noted that Rua’s physical condition and neurologic condition were unremarkable. He stated, however, that he could not “totally rule out components of spondylosis from the compression fracture.... ” (Patnaude Mem., Ex. O at 4). He prescribed Parafon Forte and Ultram for back pain, recommended an epidural steroid injection, and referred Rua to physical therapy. On June 4, 2009, a physical therapist examined Rua and recommended six to eight treatments, with an initial plan for once-per-week treatments for four weeks. However, at his third visit on July 21, 2009, Rua reported that physical therapy was “not helping” and that “it feels worse.” (Patnaude Mem., Ex. P at 9). Accordingly, physical therapy treatment was discontinued. On July 21, 2009, because physical therapy had failed to control his pain, Dr. Geraldine Somers of the Worcester County Jail referred Rua to a pain management center, recommending a transforaminal epidural injection. On August 14, Dr. Ca-bantong noted that Rua had been practicing five exercises daily without significant relief. He further noted that, although he had previously recommended an epidural steroid injection, Rua had failed to attend the appointment to receive the injection. On November 19, 2009, an MRI of Rua’s thoracic and lumbar spine showed mild facet joint arthropathy and mild depression along the superior endplates of L2 to L4 vertebrae but no other abnormalities. Dr. Patnaude testified that during the course of his treatment of Rua, he has no recollection of ever refusing to see or treat him. (Patnaude Dep. at 51). B. Policies of and Conditions at the Worcester County Jail On September 1, 1998, Massachusetts abolished county government and all county sheriffs became employees of the Commonwealth. Each sheriff retained administrative and operational control over his or her own office and respective jails. Guy Glodis served as sheriff of Worcester County from 2004 until 2010. Special Sheriff and Deputy Superintendent Jeffrey Turco supervised the day-to-day operation of the Worcester County Jail. In 2008, the Worcester County Jail was nationally accredited by the National Commission on Correctional Healthcare and the American Correction Association. Its policies for transportation of inmates, placement of inmates on medical watch, provision of medical care, and staff training met the standards of those organizations. (Glodis Mem., Ex. 5). On April 29, 2008, the Civil Rights Division of the U.S. Department of Justice issued a report on its investigation of the Worcester County Jail, which included inspections of the facility in February and May 2007. (See Rua Mem., Ex. A). The report concluded, in part, that the jail lacked an adequate grievance procedure, in that officials encouraged inmates to communicate their problems informally, failed to enter such communications into the database, stored written forms in an inconvenient location, and imposed additional requirements for filing a written grievance. The report noted that, in response, the jail revised its policies to provide greater access to the grievance system and that grievances increased after those changes. The report further concluded that the jail failed to provide adequate mental health treatment and sometimes lacked adequate documentation of the rationale for placing an inmate on suicide precautions. The report did not make any findings about the jail’s transportation policies, its procedures for placing inmates on medical watch, or its medical care generally. According to the Worcester County Jail Inmate Orientation Book, issued in October 2009, an inmate cannot file a grievance relating to a medical decision, but can file a grievance relating to the denial of medical care. (Rua Mem., Ex. B at 35). C. Procedural Background On July 18, August 3, and October 5, 2009, and January 23, March 5, June 9, and October 19, 2010, Rua filed inmate grievances, contending that the medical staff had not provided adequate and timely treatment for his injuries stemming from the motor vehicle accident. On August 10 and August 19, 2009, respectively, the facility grievance coordinator responded to the first two grievances. The coordinator noted that Rua’s medical records documented that he had been receiving medical care and denied the grievance because inmates may not grieve decisions of the medical department, only denial of access to medical care. On October 21, the coordinator denied the October 5 grievance as time-barred but forwarded his concerns to Health Services for review. On February 8, 2010, he denied the January 23 grievance on the same grounds as the July 18 and August 3 grievances. On July 6, he denied the June 9 grievance as unfounded. On October 26, he denied the October 19 grievance as unfounded. Rua appealed the August 10 decision on February 3, 2010, but the Superintendent denied the appeal as time-barred. His appeal of the February 8 and July 6 decisions and the October 26 decision were denied on March 2 and November 2, 2010, respectively, on the ground that he had not been denied access to medical care. Rua filed a pro se complaint in this Court on December 10, 2010, and an amended complaint on December 12, 2011, against Sheriff Lewis G. Evangelidis, Superintendent Shawn P. Jenkins, Sheriff Guy W. Glodis, and unnamed deputies and security staff and against Kathy Wisniew-ski, Sue Rogers, Dr. Geraldine Somers, Dr. Thomas Patnaude, Pam Jones, and unnamed medical staff. On March 18, 2011, this Court referred the case against defendants Somers, Pat-naude, Rogers, and Jones to a medical malpractice board pursuant to Mass. Gen. Laws ch. 231, § 60B. On August 16, 2011, the Worcester Superior Court dismissed the medical malpractice claims for failure to file an offer of proof before the tribunal, and the case was transferred back to this Court. In October and December 2011, defendants Somers, Jones, Rogers, Evangelidis, and Jenkins separately moved to dismiss, in whole or in part, the claims against them. On June 13, 2012, the Court granted that motion in part and denied it in part, dismissing all claims against Evan-gelidis and Jenkins. In the same order, the Court referred the medical malpractice claim against Patnaude to a medical malpractice tribunal pursuant to Mass. Gen. Laws ch. 231, § 60B. On June 25 and 26, 2012, defendants Somers, Jones, and Rogers again moved to dismiss, in whole or in part, the claims against them. On October 3, 2012, the Court dismissed all claims against Somers and Rogers and the medical malpractice claim against Jones. On February 15, 2013, the Worcester Superior Court held a medical malpractice tribunal as to Rua’s claims against Pat-naude, during which Rua was represented by counsel. After considering Rua’s offer of proof, the tribunal reported that there was not sufficient evidence to raise a legitimate question as to liability for medical negligence. (Patnaude Mem., Ex. V). The case was transferred back to this ' Court. Rua failed to post the $6,000 bond required by Mass. Gen. Laws ch. 231, § 60B to proceed on a medical malpractice claim. Patnaude moved to dismiss the claims against him, and on September 10, 2013, the Court granted that motion as to the medical malpractice claim. On October 1, 2013, having secured the assistance of counsel, plaintiff filed an amended complaint against Glodis, Jones, Patnaude, Wisniewski, unnamed deputies, unnamed medical staff, and unnamed security staff. On April 9, 2014, Rua and Jones stipulated to a dismissal of all claims against her. Rua has never effected service on Wisniewski or any of the unnamed defendants. On May 20 and May 22, 2014, Glodis and Patnaude, respectively, filed motions for summary judgment. II. Standard of Review Summary judgment is appropriate when “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). “Essentially, Rule 56[] mandates the entry of summary judgment ‘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.’ ” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In making that determination, the court must view “the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009). When “a properly supported motion for summary judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). The non-moving party may not simply “rest upon mere allegation or denials of his pleading,” but instead must “present affirmative evidence.” Id. at 256-57, 106 S.Ct. 2505. III. Analysis A. Qualifíed Immunity Before proceeding to the merits of plaintiffs claims, the Court first considers whether the defendants are entitled to qualified immunity on the constitutional claims. “Qualified immunity is a judge-made construct that broadly protects pub- lie officials from the threat of litigation arising out of their performance of discretionary functions.” Bergeron v. Cabral, 560 F.3d 1, 5 (1st Cir.2009). The First Circuit has described the test for qualified immunity: We use a three-part test to determine whether an official is entitled to qualified immunity, following the guidance provided by the Supreme Court. The threshold inquiry is whether the plaintiffs allegations, if true, establish a constitutional violation. The second question is whether the right was clearly established at the time of the alleged violation. That inquiry is necessary because officers should be on notice that their conduct is unlawful before they are subject to suit. The third is whether a reasonable officer, similarly situated, would understand that the challenged conduct violated that established right. Suboh v. District Attorney’s Office of Suffolk Dist., 298 F.3d 81, 90 (1st Cir.2002) (internal citations omitted). The second prong of the test has been met; it is well-established that “prison officials have a duty under the 8th and 14th amendments to protect prisoners from violence at the hands of other prisoners.” Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.1988) 0quoting Leonardo v. Moran, 611 F.2d 397, 398-99 (1st Cir.1979)) (internal quotation marks omitted). The remaining questions are whether plaintiffs allegations, if true, establish a constitutional violation, and, if so, whether Glodis and Dr. Patnaude should reasonably have understood that their challenged conduct violated Rua’s established rights. For the reasons set forth below, the Court concludes that plaintiff has not established a constitutional violation. It is therefore not necessary to reach the third step of the inquiry. Defendants are thus entitled to summary judgment based on both qualified immunity and the merits of the constitutional claims. The constitutional claims are addressed below. B. Section 1983 Section 1983 “creates a private right, of action for redressing abridgements or deprivations of federal constitutional rights.” McIntosh v. Antonina, 71 F.3d 29, 33 (1st Cir.1995). “A claim under § 1983 has two ‘essential elements’: the defendant must have acted under color of state law, and his or her conduct must have deprived the plaintiff of rights secured by the Constitution or by federal law.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.2008). There is no vicarious liability under § 1983. Supervisors may be liable “when their own action or inaction, including a failure to supervise that amounts to gross negligence or deliberate indifference, is a proximate cause of the constitutional violation.” Guzman v. City of Cranston, 812 F.2d 24, 26 (1st Cir.1987) (quoting Lozano v. Smith, 718 F.2d 756, 768 (5th Cir.1983)). This encompasses situations where a supervisor “formulates a policy or engages in a practice that leads to a civil rights violation committed by another,” and where he has notice of the conditions likely to lead to a deprivation of constitutional rights. Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.1998). The Eleventh Amendment permits suits under § 1983 for prospective relief against state officials sued in their official capacities, but bars retroactive monetary relief. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex parte Young, 209 U.S. 123, 168, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see Wang v. New Hampshire Bd. of Registration in Med., 55 F.3d 698, 700-01 (1st Cir.1995). To obtain monetary relief, a plaintiff must sue state officials in their individual capacities. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Here, it is not disputed that defendants are state actors being sued for actions taken pursuant to their official duties. The parties, however, disagree as to whether defendants are liable either directly or in their supervisory capacities. Also, as an initial matter, the complaint and opposition papers make clear that plaintiff seeks only retroactive, and not prospective, relief from defendants, who are state employees. Accordingly, the motions for summary judgment will be granted as to all claims to the extent that they are asserted against defendants in their official capacities. See Kelley v. DiPaola, 379 F.Supp.2d 96, 100 (D.Mass.2005). An inadvertent or negligent failure to provide adequate medical care by prison staff does not rise to the level of a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, prison officials do violate the Fourteenth Amendment if they exhibit a “deliberate indifference” to a pretrial detainee’s serious medical needs. Feeney v. Corr. Med. Servs., 464 F.3d 158, 161-62 (1st Cir.2006) (citing Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285 (1976)). In order to succeed on a deliberate-indifference claim based on inadequate or delayed medical care, “a plaintiff must satisfy both a subjective and objective inquiry.” Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir.2011). Subjectively, he must show “that prison officials possessed a sufficiently culpable state of mind, namely one of ‘deliberate indifference’ to an inmate’s health or safety.” Burrell v. Hampshire County, 307 F.3d 1, 8 (1st Cir.2002). “Deliberate” means that the prison official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference,” while “indifference” means that he must both be aware of the risk and respond unreasonably. Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Objectively, plaintiff must establish that the deprivation alleged was “sufficiently serious.” Id. “The standard encompasses a ‘narrow band of conduct’: subpar care amounting to negligence or even malpractice does not give rise to a constitutional claim; rather, the treatment provided must have been so inadequate as to constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’ ” Leavitt, 645 F.3d at 497 (quoting Feeney, 464 F.3d at 162, and Estelle, 429 U.S. at 105-06, 97 S.Ct. 285). Plaintiff contends that Dr. Patnaude exhibited deliberate indifference to his serious medical needs by not providing prompt treatment and by allegedly placing him on suicide watch despite knowing the nature of Rua’s injuries and the occurrence of the motor vehicle accident. He further alleges that Dr. Patnaude failed to provide proper supervision of the prison medical staff and allowed the nurses to triage the medical attention request forms. The evidence demonstrates that Dr. Pat-naude was aware, as a subjective matter, of plaintiffs injuries. He testified that he spoke with the nurses soon after Rua’s release from Lawrence General Hospital and then formed a treatment plan. However, the record does not demonstrate that he was aware of any risk of serious harm or that he acted unreasonably in response. The initial CT scan and later MRI and x-rays were normal and showed no major abnormalities. Nurses administered the five-day course of ibuprofen prescribed at the hospital, and over the course of the next year, Dr. Patnaude tried multiple, alternative therapies as plaintiff continued to complain of pain. His treatments included multiple medications and referrals to a neurologist, an orthopedist, and a physical therapist. The fact that plaintiff continued to experience discomfort does not indicate that he received inadequate medical treatment. Plaintiff characterizes the time it took both for his injuries to heal and for him to receive specific treatments as delays of constitutional magnitude. Viewing the evidence in his favor, it is possible that Dr. Patnaude could have acted with greater celerity. He did not evaluate plaintiff in person until one month after the accident, allegedly did not discuss the MRI results with him for more than one month, and did not refer him to a pain management center. According to plaintiffs expert, the “delay in medical treatment,” specifically the eight-month delay between the October 2008 MRI and the referral to a pain management center (by another doctor), “was ill-advised, poorly executed, and worsened the plaintiffs injuries.” (Pomer-antz Dep. at 72-73, 76). At most, however, those delays amount to professional negligence. “[Sjubstandard care, malpractice, negligence, inadvertent failure to provide care, and disagreement as to the appropriate course of treatment are all insufficient to prove a constitutional violation.” Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.2007); see Ramos v. Patnaude, 640 F.3d 485, 489-90 (1st Cir.2011) (granting summary judgment where record showed only “arguable negligence”); DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991) (“In evaluating the quality of medical care in an institutional setting, courts must fairly weigh the practical constraints facing prison officials. Moreover, inadvertent failures to provide medical care, even if negligent, do not sink to the level of deliberate indifference.” (citations omitted)). Overall, even under the standard set by plaintiffs expert, the care provided by Dr. Patnaude does not appear constitutionally deficient. That expert, Dr. George Pom-erantz, testified that a doctor faced with a patient with persistent or progressive pain should occasionally re-evaluate the treatment plan. (Pomerantz Dep. at 73, 76). Dr. Patnaude did so here, varying plaintiffs medications and referring him to various specialists. Dr. Pomerantz also stated that referring a patient with meral-gia paresthetica to a neurologist would be appropriate. (Pomerantz Dep. at 66). Dr. Patnaude made such a referral in December 2009. Ultimately, Dr. Pomerantz offered no opinion as to whether Dr. Pat-naude was negligent or deliberately indifferent. (Pomerantz Dep. at 69-71). His opinion therefore provides little support in opposition to summary judgment. There is a disputed question of fact as to whether nurses placed plaintiff on medical watch or suicide watch. The balance of evidence weighs heavily in favor of the conclusion that Rua was placed on medical watch. All of the available records indi cate that plaintiff was on medical watch; the sole contrary piece of evidence is plaintiffs own testimony. Yet even plaintiffs opposition seems to express uncertainty as to what transpired. It states that “Suicide watch and Med watch are both located in Cell Block A-l so it is not a stretch of the imagination that plaintiff could have been placed in the much more punitive suicide watch” and “[i]f this is indeed the case it is arguable that Rua’s treatment immediately after the accident is arbitrary punishment. ...” (See PI. Mem. at 23) (emphasis added). More importantly, the distinction between medical watch and suicide watch is not material under the circumstances. Even assuming that plaintiff was held on suicide watch, the record contains no indication that Dr. Patnaude knew that fact. Dr. Patnaude therefore lacked the subjective state of mind required to prove deliberate indifference. Plaintiff stresses that summary judgment is inappropriate because there is a question of mental state, urging that a factfinder could infer deliberate indifference from the facts presented. It is true that questions of intent or mental state generally present questions of fact and that courts should be cautious in deciding such an issue on summary judgment. Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928-29 (1st Cir.1983). However, “the presence of issues involving state of mind, intent, or motivation does not automatically preclude summary judgment.” Id. at 929. “[A] party against whom summary judgment is sought is [not] entitled to a trial simply because he has asserted a cause of action to which state of mind is a material element.” Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir.1975). Where, as here, “there is no evidence of treatment so inadequate as to shock the conscience, let alone that any deficiency was intentional, or evidence of acts or omissions so dangerous (in respect to health or safety) that a defendant’s knowledge of a large risk can be inferred, summary judgment is appropriate.” Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir.1991) (internal quotation marks and citations omitted). As for liability on the basis of a failure-to-supervise or failure-to-train theory, the evidence here falls far short of establishing a viable claim. Plaintiff is required to specify the ways in which the training received by the medical staff was “inadequate” and demonstrate that it was “inferior by the standards of the profession.” Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir.1989) (citing Bordanaro v. McLeod, 871 F.2d 1151, 1160 (1st Cir.1989)). He has not done so. Moreover, “[a] generalized showing of a deficient training program is not sufficient. The plaintiff must establish that the particular officers who committed the violation had been deprived of adequate training, and that this specific failure in training was at least a partial cause of the ultimate injury.” Whitfield v. Melendez-Rivera, 431 F.3d 1, 9-10 (1st Cir.2005) (citing Young v. City of Providence, 404 F.3d 4, 26 (1st Cir.2005)). The mere fact that an injury occurred is insufficient to establish failure to train and supervise. Likewise, the fact that a subordinate may have done something wrong is insufficient. As the Supreme Court has explained, “plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the [defendant] liable.... [Officers who are well trained are not free from error and perhaps might react very much like the untrained officer in similar circumstances.” City of Canton, Ohio v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Here, the record provides no evidence to support the suggestion that Dr. Patnaude knew that the medical staff was providing improper treatment to or failing to triage incarcerated patients, that he failed to supervise them in an appropriate manner, or that he failed to provide adequate training. As to the claim against Glodis, plaintiff contends that the former sheriff failed to provide adequate medical and grievance procedures in the prison and possibly suggests that he failed to provide adequate policies for transportation of inmates or placement on medical or suicide watch. There is no evidence that Glodis was involved with medical care or transportation at the jail, either generally or specifically relating to plaintiff. Nor is there evidence that he knew that the medical care and procedures or the transportation services were generally inadequate. The .Department of Justice report took issue with certain conditions at the Worcester County Jail, including the placement of mentally ill patients on suicide watch. But it did not question the conduct of prison transportation, placement of physically ill patients on medical or suicide watch, or the standards of medical care as a general matter. Plaintiff has therefore not presented “the requisite quantum of evidence” to demonstrate that Glodis knew of any conditions that would place plaintiff at substantial risk of serious harm or of any related failure to train or supervise on Glodis’s part. Hahn v. Sargent, 523 F.2d at 468. Nor has he shown that Glodis was . aware of facts that suggested such a risk of harm and in fact drew the inference that harm would result. See Leavitt, 645 F.3d at 502. A supervisor cannot, of course, avoid liability through willful blindness. But it does not appear that the medical care or other treatment plaintiff received was deficient as a constitutional matter. Finally, plaintiff has not specified which particular officers Glodis failed to train or supervise and how that failure caused, at least in part, his specific injuries. See Whitfield, 431 F.3d at 9-10. Accordingly, the motions for summary judgment will be granted as to the claims under § 1983 alleging violation of the Fourteenth Amendment. C. • Section 1985 Plaintiff next contends that the defendants, acting in concert, violated 42 U.S.C. § 1985 by placing him on suicide watch, and denying him medical care to cause him to endure pain, in retaliation for his requests for and complaints about medical treatment and in order to limit medical expenses. (See Compl. ¶¶ 40-41). He does not specifically state under which of the three subsections of § 1985 he asserts his claim, either in the complaint or in his opposition papers. Indeed, the opposition papers make no mention whatsoever of § 1985. Section 1985 prohibits conspiracy to interfere with civil rights by (1) preventing an officer from performing his or her duties, (2) obstructing justice by intimidating a party, witness, or juror, or (3) depriving a person of his or her legal rights or privileges. 42 U.S.C. § 1985. Faced with no allegations that could remotely fit within the first two subsections, the Court presumes that plaintiff seeks to assert a claim under the third subsection. A claim under § 1985(3) requires proof of (1) a conspiracy; (2) “a conspiratorial purpose to deprive the plaintiff of the equal protection of the laws”; (3) “an overt act in furtherance of the conspiracy”; and (4) “injury to pérson or property, or a deprivation of a constitutionally protected right.” Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir.2008) (citing Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)). The second element, relating to deprivation of equal protection, requires that there be “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). Evidence of discrimination on the basis of race, class, or other category is entirely lacking here. Not only does the record not support such a finding, but the complaint also fails to allege it. Furthermore, although plaintiff notes that Sheriff Glodis and Dr. Patnaude did have offices near one another and did talk to one another periodically, there is no evidence of any agreement between them. Accordingly, the motions for summary judgment will be granted as to the § 1985 claim. D. Breach of Fiduciary Duty Next, the complaint asserts a claim for breach of fiduciary duty for alleged failure or refusal to provide medical care to plaintiff. The complaint does not specify which defendants committed the alleged breach, and plaintiff’s opposition fails to address the claim at all. The absence of affirmative evidence at this stage could, alone, warrant summary judgment. However, an examination of the claim on the merits also demonstrates that summary judgment is appropriate. Dr. Patnaude had a duty to plaintiff that arose out of their doctor-patient relationship. A breach of that duty would typically constitute a claim for medical negligence. However, this Court dismissed the medical negligence claims against Dr. Patnaude, and plaintiff cannot pursue that theory now merely by attaching a different label to it. As for Glodis, it is not clear what duty to plaintiff he had or how he breached it. His relationship with Rua, to the extent any existed, does not fall within the “many familiar and well recognized forms of fiduciary relationships” under Massachusetts law. See Korper v. Weinstein, 57 Mass.App.Ct. 433, 437-38, 783 N.E.2d 877 (Mass.App.Ct.2003) (citing Warsofsky v. Sherman, 326 Mass. 290, 292, 93 N.E.2d 612 (1950) for the proposition that the common fiduciary relationships are between “attorney and client, trustee and beneficiary, physician and patient, business partners, promoters or directors and a corporation, and employer and employee”). Fiduciary relationships are not limited to these familiar examples, but the existence of a fiduciary duty outside of these relationships “is to be determined by the facts established.” Warsofsky, 326 Mass, at 292-93, 93 N.E.2d 612. Rua has alleged no specific facts that could establish the existence of a fiduciary duty on the part of Glodis. There is no genuine issue of fact on this point. Accordingly, the motions for summary judgment will be granted as to the claims for breach of fiduciary duty. E. Intentional Inñiction of Emotional Distress Next, the complaint alleges intentional infliction of emotional distress (“IIED”). To establish such a claim, a plaintiff must show that (1) a defendant either intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous; (3) the conduct caused the plaintiff emotional distress; and (4) the emotional distress was severe and of a nature that no reasonable person could be expected to endure. Agis v. Howard Johnson Co., 371 Mass. 140, 144-45, 355 N.E.2d 315 (1976). Conduct is “extreme and outrageous” if it is “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 community.” Foley v. Polaroid Corp., 400 Mass. 82, 99, 508 N.E.2d 72 (1987). That standard may require more than is necessary to state a claim under § 1983. See, e.g., Guckenberger v. Boston Univ., 957 F.Supp. 306, 319 (D.Mass.1997) (“[T]he mere fact that the defendants’ conduct may turn out to be violative of the plaintiff’s] civil rights does not ... necessitate a finding that the conduct is sufficiently egregious to state a claim for intentional infliction of emotional distress.”). As set forth above, the available evidence fails to demonstrate that Glodis and Dr. Patnaude knew or should have known that any serious harm would befall plaintiff. They therefore could not have acted in the targeted and malicious manner that is required to meet the high bar for an IIED claim. See Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir.1996). Accordingly, the motions for summary judgment will be granted as to the IIED claims. F. Claims Against Kathy Wisniewski and the Unnamed Defendants The initial complaint included as defendants Kathy Wisniewski, former Medical Department Director at Worcester County Jail, and unnamed medical and security staff. The second amended complaint likewise included Wisniewski, unnamed medical staff, and unnamed security staff, as well as unnamed deputies. Under Fed.R.Civ.P. 4(m), a district court may dismiss a complaint without prejudice as to a particular defendant if the plaintiff fails to serve him within 120 days after filing the complaint. “Moreover, a district court otherwise prepared to act on dispositive motions is not obligated to ‘wait indefinitely for [the plaintiff] to take steps to identify and serve ... unknown defendants.’ ” Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir.1998) (quoting Glaros v. Perse, 628 F.2d 679, 685 (1st Cir.1980)) (upholding dismissal of defendants after seventeen-month lapse). In the nearly four years that this case has been pending, it does not appear that plaintiff ever served Wisniewski or made any attempts to identify, name, or serve the unnamed parties. Accordingly, the Court will dismiss the case without prejudice against Wisniewski and the unnamed defendants. IV. Conclusion For the foregoing reasons, the motions of defendants Thomas Patnaude, M.D., and Guy W. Glodis are GRANTED. The case is DISMISSED without prejudice as to defendant Wisniewski and the unnamed defendants. So Ordered. . At his deposition, Rua indicated that he was using opiates in pill form, not heroin. (Rua Mem., Ex. F, Rua Dep. at 34). . In the interim, Rua filed medical services request forms on December 20, December 27, and December 31, 2008, and January 7 and January 12, 2009. A notation on the January 12 form indicates that Rua was evaluated on January 13 and was aware of the pending neurological appointment. (Original Compl., Ex. G). . Meralgia paresthetica is a numbness or pain in the outer thigh caused by a nerve injury. . Rua filed additional medical service request forms on January 26, January 30, March 2, and April 23, 2009. On March 4, 2009, a nurse referred him to a doctor. . A "deliberate indifference” claim is based on the Eighth Amendment, which applies against the states through the Fourteenth Amendment. . In his reply memorandum, Dr. Patnaude suggests that he questions the qualifications of Dr. Pomerantz or the basis for his opinion. (See Patnaude Reply at 3). While there may be grounds to do so, no motion to preclude his opinion has been filed. The Court will therefore accept the qualifications of Dr. Pomerantz and the basis for his opinion for the purposes of the present motions. . In his opposition papers, plaintiff also invokes the Fourteenth Amendment to allege a lack of due process in two respects. First, he challenges his alleged placement on suicide watch in the aftermath of the motor vehicle accident, a placement which he contends was unlawful pre-trial punishment. Second, he raises questions about an alleged insubordination charge that led to a hearing and resulted in his placement in solitary confinement. As noted, it is a disputed question of fact whether plaintiff was placed on suicide watch. But even assuming that he was, he has presented no evidence that either Glodis or Dr. Patnaude knew of such confinement. They deny having such knowledge, and the official records of the prison indicate that plaintiff was held on medical watch. Thus, even if Glodis or Dr. Patnaude reviewed the official prison records, they would not have learned of the possibility that Rua had been placed on suicide watch. A party cannot rely on bare allegations to survive a summary judgment motion, but instead must present affirmative evidence. Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.2007). Such evidence is lacking here. Moreover, the claims under § 1983 as presented in the complaint focus solely on denial of medical treatment amounting to deliberate indifference. The complaint makes no mention of denial of procedural due process relating to placement on suicide watch or the February 2009 solitary confinement. Plaintiff had the opportunity to amend his complaint, and in fact did amend it, twice. Although he may seek leave to do so at any time, he cannot do so through opposition papers. Having been denied proper notice, defendants need not be held to answer for those claims now. .Plaintiff's failure to brief the issue is itself an independent ground on which to grant summary judgment. . Again, plaintiff's failure to brief the issue constitutes an independent ground for granting summary judgment. . It also appears that Dr. Patnaude is a public employee who is immune from negli gence suits under the Massachusetts Torts Claims Act, Mass. Gen. Laws ch. 258 § 2; see McNamara v. Honeyman, 406 Mass. 43, 46-48, 546 N.E.2d 139 (1989). Plaintiff failed to comply with the pre-suit requirements of the MTCA to bring a negligence claim against the Commonwealth. See Mass. Gen. Laws ch. 258 § 4; Schenker v. Binns, 18 Mass.App.Ct. 404, 405, 466 N.E.2d 131 (1984). . Indeed Glodis contends, and plaintiff has failed to dispute, that he had no knowledge of plaintiff prior to his filing suit. (Glodis Dep. at 14, 55).

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS SPENCER WILLIAMS, District Judge. Defendants Allstate Insurance Company (“Allstate”) and Tana Golden (“Golden”) move to dismiss the Complaint. The matter has been fully briefed, and hearings were held on May 24, 2000 and June 19, 2000. Having considered the contents of the Complaint and the arguments set forth by the parties, the Court now rules as follows. I. BACKGROUND This action arises from an April 6, 1999 freeway accident involving five automobiles, including one driven by Plaintiff Judith Icasiano. The crash caused bodily injury to several victims and the death of Ruben Blass Vasquez. Plaintiff was criminally charged with vehicular manslaughter for the death of Mr. Vasquez. At the time of the incident, Plaintiff held an insurance policy with Allstate, number 0674901690504 (“the Policy”). The Policy provides a limit of $25,000 per person for bodily injury, $25,000 for property damage per occurrence, and a limit of $50,000 per occurrence. The Policy also provides as follows: We will defend an insured person sued for damages which are covered by this policy even if the suit is groundless or false. We will choose the counsel. We may settle any claim or suit if we believe it is proper. We will not defend an insured person sued for damages which are not covered by the policy. Policy at page 3 (Decl. of Glen Davis, Ex. A). The complaint alleges the existence of several third-party “claims” that exceed the amount of the policy. The Complaint does not allege that any third-party civil lawsuits have been filed against Plaintiff. Allstate is allegedly willing to defend Plaintiff in any civil suit, and to tender its indemnity limits. Plaintiff alleges that Allstate has refused to provide a prompt and adequate investigation and defense of the claims. She alleges that “contrary to plaintiffs reasonable expectations, plaintiff is, and has been, provided only a token defense and investigation, which is actually prejudicing plaintiff and is leaving upon plaintiffs shoulders the full burden of adequate investigation and defense in order to protect herself from exposure to any excess judgment.” Complaint ¶ 11. Plaintiff complains that Allstate failed promptly to provide counsel, failed promptly to provide an investigator, restricted the investigator’s activities to reduce costs, failed promptly to provide an accident reconstruction report, failed to cooperate with the insured, failed to keep abreast of the investigation, misrepresented to the insured pertinent facts regarding policy provisions, failed to act reasonably promptly upon communication of the third-party claim, failed to adopt reasonable standards for the prompt investigation of claims, did not attempt to effectuate a fair settlement, and failed to provide a reasonable explanation for its denial of Plaintiffs request for an adequate defense. Id. at ¶ 14. The Complaint also names as a defendant Allstate employee Golden. The Complaint alleges that Golden “knowingly and willfully conspired with defendant Allstate to defraud Plaintiff.” Id. at ¶ 20. In May 1999, Golden allegedly reaffirmed Allstate’s promises to defend any action against Plaintiff alleging injury or property damage and seeking damages which are payable under the terms of the Policy. Id. Golden allegedly “knew that an adjuster who desires promotions and advances within the company could only obtain them by entering into the conspiracy with defendant Allstate to defraud plaintiff and cut defense costs in spite of plaintiffs excess and criminal exposure.” Id. at 11:5-9. At oral argument, Plaintiff stressed that Golden’s statements lulled Plaintiff into a false sense of security and therefore Plaintiff did not hire an investigator or undertake her own investigation of the accident in order to protect herself from ensuing claims. The Complaint alleges four causes of action: (1) Tortious Breach of the Implied Covenant of Good Faith and Fair Dealing (against Allstate); (2) Promissory Fraud and Conspiracy to Defraud (against Allstate and Golden); (3) Negligent Misrepresentation and Conspiracy (against Allstate and Golden); and (4) Breach of Contract (against Allstate). Plaintiff filed her Complaint on February 10, 2000 in the Superior Court of the State of California for the County of Santa Clara, case number CV 787750. On March 13, 2000, Allstate removed this action to federal court, on the basis of diversity jurisdiction. In the Notice of Removal, Allstate contends that Golden, a non-diverse defendant, was fraudulently joined as a defendant in order to defeat diversity. II. LEGAL STANDARD A complaint should only be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure where it appears beyond doubt that no set of facts could support the plaintiffs claim for relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In reviewing a motion under Rule 12(b)(6), all allegations of material fact are taken as true and must be construed in the light most favorable to the non-moving party. See Durning, 815 F.2d at 1267. III. DISCUSSION A. Tana Golden’s Motion to Dismiss Plaintiff alleges that Allstate entered into a conspiracy with Golden, and that Golden made representations having no intention of fulfilling them. Golden asserts that Plaintiffs causes of action lie against Allstate, not her, and that she was fraudulently joined as a defendant in order to defeat diversity jurisdiction. A defendant may remove a case with a non-diverse defendant on the basis of diversity jurisdiction and seek to persuade the district court that the defendant was fraudulently joined. See McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.1987); Good v. Prudential Ins. Co. of America, 5 F.Supp.2d 804, 806-07 (N.D.Cal.1998). “If a plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent.” McCabe, 811 F.2d at 1339 (citing Moore’s Federal Practice ¶ 0.161[2] (1986)). Removal to federal court will be sustained if a defendant demonstrates there is no possibility that the plaintiff will be able to state a cause of action against the non-diverse defendant. See id. An agent of an insurance company is generally immune from suits brought by claimants for actions taken while the agent was acting within the scope of its agency. See Lippert v. Bailey, 241 Cal.App.2d 376, 382, 50 Cal.Rptr. 478 (1966); Gasnik v. State Farm Ins. Co., 825 F.Supp. 245, 249 (E.D.Cal.1992); Good, 5 F.Supp.2d at 807. In such cases, the cause of action lies against the insurance company and not its agent. See Lippert, 241 Cal.App.2d at 383-84, 50 Cal.Rptr. 478. This rule has been applied.to claims for fraud. See Shepard v.Massachusetts Casualty Insurance Company, 2000 WL 101246, *2-3 (N.D.Cal. Jan.26, 2000) (citing Campbell v. Allstate Ins. Companies, 1995 WL 376926 (C.D.Cal.1995)). An agent cannot be held liable for a conspiracy to violate a duty peculiar to the insurance company. See id. (citing Cooper v. Equity General Ins. Co., 219 Cal.App.3d 1252, 1259, 268 Cal.Rptr. 692 (1990)). As long as the duty is owed by the insurance company only, and regardless of whether it derives from contract or tort, the insurance company’s agents cannot be held liable for conspiring to violate that duty. See id.; Doctors’ Co. v. Superior Court of Los Angeles County, 49 Cal.3d 39, 46, 260 Cal.Rptr. 183, 775 P.2d 508 (1989). Plaintiff argues that her claims against Golden fall into an exception to this general rule. Plaintiff relies on the cases of Younan v. Equifax, Inc., 111 Cal. App.3d 498, 169 Cal.Rptr. 478 (1980), and Judge Conti’s decision in Shepard for the proposition that an insured can state a cause of action against an employee of an insurer where the insured pleads that the employee committed actual fraud. Plaintiff reads the cases too broadly. Younan involved allegations that the defendant insurer, American Home Assurance Company hired and employed defendant Equifax Inc. to select and induce a local doctor to examine the plaintiff and prepare a medical report which would falsify the plaintiffs condition. Younan, 111 Cal.App.3d at 512, 169 Cal.Rptr. 478. The plaintiff alleged that American Home Assurance Company retained Equifax knowing that Equifax worked with doctors who would participate in the scheme to prepare false medical reports. Id. As such, Younan involved allegations that two separate entities involved in the insurance business conspired together to defraud the plaintiff, and did not involve accusations that an employee of an insurance company conspired with the insurance company to defraud an insured. There is nothing in Younan to indicate that employees of insurers, engaged in the process of administering a claim can be held independently liable to an insured under a tort or contract theory. Plaintiff has not pointed to a case similar to the present one where a court allowed a claim against an insurance agent acting solely as the representative of the insurer in the course of handling a claim. An employee acting solely as the representative of the insurer cannot be held liable for a conspiracy to violate a duty peculiar to the insurance company. See Cooper, 219 Cal.App.3d at 1259, 268 Cal.Rptr. 692. Here, the insurance company, not Golden herself, had the duty to administer Plaintiffs claim and the duty to defend Plaintiff in the event of a lawsuit. Plaintiff has failed to state a claim against Golden. Golden’s motion to dismiss is GRANTED. Because “allegations of other facts consistent with the challenged pleading could not possibly cure the defect,” Schreiber Dist. v. Serv-Well-Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986), the motion to dismiss is granted without leave to amend. B. Allstate’s Motion to Dismiss 1. Contract and Bad Faith Claims Pursuant to the express terms of the standard Policy issued to Plaintiff, All state owes a duty to defend Plaintiff against “suits,” not claims. Plaintiff concedes that she does not allege that Allstate owes a duty to defend in any other proceedings not amounting to a civil suit. She states that she is suing because Allstate failed to undertake a defense of the third-party claims and investigation of the accident prior to the tender of the third-party claims. However, the insurer’s obligation to defend and investigate is not triggered until Plaintiff tenders the defense of a third party lawsuit to the insurer. See Foster-Gardner, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 18 Cal.4th 857, 879, 77 Cal.Rptr.2d 107, 959 P.2d 265 (1998). The Court agrees with Allstate that Plaintiffs reliance on Stein v. International Ins. Co., 217 Cal.App.3d 609, 266 Cal.Rptr. 72 (1990) for the proposition that Allstate owes a duty to investigate and defend “claims” is misplaced. Unlike the present Allstate Policy, the policy language in Stein provided coverage for expenses “resulting from the investigation, adjustment defense and appeal of a claim, suit or proceeding.” Stein, 217 Cal.App.3d at 613 n. 2, 266 Cal.Rptr. 72 (emphasis added). The insurer’s duties to indemnify and to defend are separate obligations. Allstate apparently satisfied its duty to indemnify by offering to pay the policy limits ($50,000). In the absence of the tender of a third-party lawsuit, Allstate’s duty to indemnify Plaintiff did not somehow trigger a pre-tender duty to defend Plaintiff. Finally, Plaintiff has failed to allege the existence of actual damages. She seeks damages not only for the costs of hiring an attorney to enforce her alleged rights under the Policy, but also for “the amount of benefits due under the policy, the amount expended to secure and adequate investigation and defense, the amount of liability incurred in the third party claims, excess judgment, and consequential damages, in an amount to be ascertained.” Complaint ¶ 38. Assuming that Plaintiff can amend her Complaint to allege that Allstate has failed to provide an adequate post-tender defense and investigation, these damages are speculative: no judgment in excess of the policy’s limits has been entered against Plaintiff. See Safeco Ins. Co. v. Superior Court, 71 Cal. App.4th 782, 789, 84 Cal.Rptr.2d 43 (1999). Plaintiff has failed to state a claim for breach of contract, and because Plaintiff does not have a claim for breach of contract, she necessarily cannot allege a claim for breach of the good-faith covenant. Plaintiff will be granted leave to amend her contract and bad-faith claims if she can (1) allege the existence of a breach of a contractual duty and (2) allege the existence of actual damages. As an alternative, Plaintiff may voluntarily dismiss the contract and bad-faith claims, and re-file this lawsuit upon completion of the third-party lawsuits. 2. Fraud and Misrepresentation Claims As for the fraud claim, the Complaint is devoid of any allegation that Golden or Allstate promised Plaintiff it would undertake a thorough investigation of the vehicle crash prior to the tender of the defense of any third-party lawsuits. The Complaint merely alleges that Golden represented she and Allstate “were doing everything they could to fulfill Allstate’s obligations under the policy.” Complaint ¶ 20. Because Allstate’s obligations under the policy did not include a pre-tender defense of “claims,” Plaintiff could not as a matter of law have reasonably relied on Allstate’s representations in deciding to forego hiring her own private investigator and accident reconstructionist. Moreover, Allstate is correct that the Complaint fails to plead fraud with the specificity required under Rule 9(b). Plaintiff must allege specific facts contemporaneous to her purchase of the policy which, if true, would establish Allstate then had no intent to perform. Plaintiffs nebulous, retrospective allegation that Allstate never had any intention of performing its contractual obligations is insuffi- dent under federal law. The fraud and misrepresentation claims against Allstate are dismissed, with leave to amend. 3.Conspiracy Claims For the reasons set forth in Part 111(A), above, the “conspiracy to defraud” claim is DISMISSED with prejudice. Furthermore, because an employer cannot “conspire” with its employee as a matter of law, see Black v. Bank of America N.T. & S.A., 30 Cal.App.4th 1, 6, 35 Cal.Rptr.2d 725 (1994), the “conspiracy” claim set forth in the third cause of action must be dismissed. IV. CONCLUSION (1) Defendant Tana Golden’s Motion to Dismiss is GRANTED, without leave to amend. (2) Defendant Allstate’s Motion to Dismiss is GRANTED, with leave to amend. Any amended complaint shall be filed no later than July 19, 2000. As an alternative, Plaintiff may voluntarily dismiss this action and re-file following the conclusion of the underlying civil lawsuits. (3) Plaintiffs Motion to Remand is DENIED. . At the first hearing, the possibilities of remanding the action to state court were discussed. At the second hearing, the parties argued the merits of the motions. . The Court issued a tentative ruling on May 24, 2000, indicating the Court’s inclination to dismiss the Complaint with leave to amend. . Both Plaintiff and Golden are California residents. . The allegations in Shepard are similar to those in Younan v. Equifax, Inc., 111 Cal. App.3d 498, 169 Cal.Rptr. 478 (1980), and involved an alleged conspiracy between an entity that selected independent medical examiners and an entity that coordinates independent medical examinations. See Shepard v. Massachusetts Casualty Insurance Company, 2000 WL 101246, **1, 4 (N.D.Cal. Jan.26, 2000). The court followed the holding of Younan to find that the plaintiff could state a cause of action for conspiracy to defraud. Id. at *4. . This ruling supercedes any inconsistent ruling delivered from the bench at the June 19, 2000 hearing.

Eddie Joe Lloyd, a Michigan prisoner proceeding pro se, appeals a district court order dismissing his eivE rights complaint filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). On February 7, 2001, Lloyd filed a complaint against several officials and personnel employed by the Michigan Department of Corrections aEeging that the defendants assaulted him and subjected him to excessive and unnecessary force. Lloyd sought declaratory, injunctive, and monetary relief. Lloyd was granted in forma pauperis status in this case. Also on February 7, the district court issued an order to show cause, giving Lloyd fourteen days from the date of the order to explain in writing why the court should not dismiss the case pursuant to 28 U.S.C. § 1915(g). Lloyd responded. Nevertheless, the district court dismissed Lloyd’s suit, without prejudice, under 28 U.S.C. § 1915(g) because Lloyd had filed at least three previous civE actions that were dismissed as frivolous or for fafiure to state a claim. This timely appeal followed. Upon review, we conclude that the district court properly dismissed Lloyd’s complaint. Twenty-eight 28 U.S.C. § 1915(g) provides as follows: In no event shall a prisoner bring a civE action or appeal a judgment in a civE action or proceeding under this section if the prisoner has, on 3 or more prior occasions, whEe incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fafls to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious injury. Lloyd does not dispute that he has had at least three previous suits dismissed as frivolous or for failure to state a claim for relief. Instead, he raises numerous arguments in which he claims that he should be exempted from the “three strikes” provision contained in § 1915(g). However, none of the reasons offered by Lloyd "have any merit for the reasons stated by the district court. In addition, Lloyd has not demonstrated that he is in imminent danger of serious physical injury for the reasons stated by the district court. Because Lloyd’s complaint clearly satisfied the provisions of § 1915(g) at the moment of filing, the district court had no authority to consider the merits of the complaint. Finally, to the extent that Lloyd argues that § 1915(g) is unconstitutional, his argument has already been considered and rejected by this court. See Wilson v. Yaklich, 148 F.3d 596, 604-05. (6th Cir.1998). Section 1915(g) does not violate the Equal Protection Clause, does not deny indigent prisoners access to the courts, and does not violate due process principles. Id. Accordingly, the district court’s order is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

ORDER The petitioner appeals the denial of his motion for release on bail pending consideration by the district court of his petition for a writ of habeas corpus. The appeal has been briefed by the parties on an expedited basis, and we are in unanimous agreement that oral argument is unnecessary. See Fed. R.App. P. 34(a). The respondent asserts that the court lacks jurisdiction over the appeal because a certificate of appealability has not been issued. Alternatively, the respondent seeks affirmance of the district court’s ruling. 28 U.S.C. § 2253(c) provides that unless a certificate of appealability is issued, an appeal may not be taken from a final order in a habeas corpus proceeding. Although the statutory language provides that a certificate of appealability is required for an appeal from a final order, the requirement of a certificate of appealabili ty may apply to interlocutory appeals. The prior version of the habeas corpus statute made a certificate of probable cause a prerequisite for an appeal from a final order in a habeas corpus proceeding. We held, however, that a certificate of probable cause was also required to take an interlocutory appeal from the denial of release pending a habeas corpus petition. Lee v.. Jabe, 989 F.2d 869, 871 (6th Cir. 1993) (holding that “a certificate of probable cause is a prerequisite to appealing the denial of a bail motion in a habeas proceeding”); see also Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir.1990). Because this court has not yet addressed the requirement of a certificate of appeala-bility for an interlocutory appeal from the denial of release and this appeal is fully briefed on the merits, we will review the district court’s ruling despite the lack of a certificate of appealability. Release of a state prisoner pending consideration of the habeas corpus petition is reserved for the extraordinary case. Lee v. Jabe, 989 F.2d at 871 (“[s]ince a habeas petitioner is appealing a presumptively valid state conviction, both principles of comity and common sense dictate that it will indeed be the very unusual case where a habeas petitioner is admitted to bail prior to a decision on the merits in the habeas case.”). In order to warrant release, the petitioner must demonstrate “not only a substantial claim of law based on the facts surrounding the petition but also the existence of ‘some circumstances making [the motion for bail] exceptional and deserving of special treatment in the interests of justice.’ ” Dotson v. Clark, 900 F.2d 77, 79 (6th Cir.1990), quoting Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (1964) (Douglas, J., in chambers). The district court concluded that each of the four claims asserted by the petitioner have been rejected by the Ohio courts and do not appear to be substantial. In addition, the court noted that the petitioner had not demonstrated any unusual circumstances warranting release. We find no error in the district court’s ruling. The order of the district court denying release is AFFIRMED.

MEMORANDUM OPINION AND ORDER MORAN, Senior District Judge. Plaintiff markets Beanie Babies. They have been a phenomenal marketing success. Beanie Babies include plush “new face” bears and they are the subjects of copyright registrations. Defendant Holy-bears, Inc. markets plush bears with a religious theme. Plaintiff claims that those bears infringe its copyrights and has moved for a preliminary injunction. The motion for a preliminary injunction is denied. This lawsuit has, from its filing, been acrimonious. Much of the attention has centered on whether or not defendants have disclosed e-mails which, plaintiff contends, would show that defendants deliberately copied its bears. Defendants respond that the e-mails would show original creation if they could be retrieved, but they have been lost in cyberspace. We have waited to rule on preliminary relief until we could make some sense of that dispute and, having concluded that it is largely irrelevant, we are prepared to rule. The parties disagree about the preliminary injunction standards, with plaintiff arguing that it need not show more than some likelihood, more than negligible, that it will prevail on the merits of its claim, while defendants argue that plaintiff must show a reasonable likelihood of prevailing. We think those are distinctions without much of a difference. To obtain a preliminary injunction plaintiff must demonstrate (1) some likelihood that it will prevail, (2) absence of an adequate remedy at law, and (3) that it will suffer irreparable harm absent injunctive relief. Should those requirements be satisfied, we must then weigh the portended irreparable harm to the plaintiff against the potential injury to the defendant and must consider the effect of the injunction upon non-parties. “A determination whether to issue a preliminary injunction is, by its very nature, an exercise in weighing competing equities and interests.” Publications International, Ltd. v. Meredith Corp., 88 F.3d 473, 478 (7th Cir.1996). If the accused product is a brazen knockoff, the answer is easy. Irreparable harm to the plaintiff is presumed and there are no competing defendant equities. The stronger the case on the merits the less irreparable harm need be shown. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1172 (7th Cir.1997). Conversely, even though a plaintiffs chances of prevailing are no more than possible, it may be entitled to preliminary relief if a failure to grant it would cause plaintiff irreparable harm while the potential injury to the defendant is minor. See Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6 (7th Cir.1992). How, then, do we evaluate plaintiffs likelihood of prevailing? Plaintiff must prove it has valid copyrights, and nothing in the present record indicates it does not. It must then show that the defendants copied original elements of the work. It can establish copying by proof of access, and substantial similarity between the copyrighted and accused products. Substantial similarity can be demonstrated by a side-by-side comparison. Would the ordinary reasonable observer, comparing the two expressions, regard them as substantially similar unless he set out to detect the disparities? Would she conclude that the defendant unlawfully appropriated the plaintiffs protectable expression by taking material of substance and value? Would she regard the aesthetic appeal as the same? Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502 (7th Cir.1994). But copying is not enough. The test of substantial similarity is copying and improper appropriation. Id. The Copyright Act “assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349-350, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). In patents, the concept is articulated as “designing around” a patent. Hilton Davis Chemical Co. v. Warner-Jenkinson Co., Inc., 62 F.3d 1512, 1520 (Fed. Cir.1995), rev’d on other grounds, 520 U.S. 17, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). In copyright it is often articulated as the dichotomy between unprotected ideas versus protected expression, a somewhat elusive concept we discussed some years ago in Runstadler Studios, Inc. v. MCM Ltd. Partnership, 768 F.Supp. 1292, 1297-98 (N.D.Ill.1991). “Nobody has ever been able to fix that boundary, and nobody ever can.” Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931). There is, however, indeed a tension between monopoly and the encouragement of an author’s creativity. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984); Gund, Inc. v. Smile International, Inc., 691 F.Supp. 642 (E.D.N.Y.1988), aff'd, 872 F.2d 1021 (2d Cir.1989). The more particularized and complex the expression the greater the area of protection. Wildlife Express, 18 F.3d at 508. As a work embodies more in the way of particularized expression, it moves farther away from the bee pin in Kalpaki-an, and receives broader copyright protection. At the opposite end of the spectrum lie the “strongest” works in which fairly complex or fanciful artistic expressions predominate over relatively simplistic themes and which are almost entirely products of the author’s creativity rather than concomitants of those themes. See, e.g., Krofft, 562 F.2d at 1169 (“The expression inherent in the H.R. Pufnstuff series differs markedly from its relatively simple idea”). As one court noted: “The complexity and artistry of the expression of an idea will separate it from even the most banal idea.... [T]he scope of copyright protection increases with the extent expression differs from the idea.” Id. at 1168. See also Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904 (3d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975) (“between the extremes of conceded creativity and independent effort amounting to no more than the trivial, the test of appropriation necessarily varies”); Clarke, 472 F.Supp. at 482-83. Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 617 (7th Cir.1982), superseded by statute on other grounds as stated in Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1429 (7th Cir.1985). When the copyrighted work embodies original expression in an article that includes substantial materials in the public domain, our emphasis necessarily must be on the substantial similarities between the originality expressed in the copyrighted work and the accused work. Country Kids ‘N City Slicks, Inc. v. Sheen, 77 F.3d 1280 (10th Cir.1996); see also Feist Publications, Inc., 499 U.S. at 348 and 361, 111 S.Ct. 1282. It is beyond dispute that defendants had access to Beanie Baby bears. Indeed, defendant LeClair wrote about Beanie Babies under the name “BeanyGenie.” We think it is also clear that the Beanie Baby marketing phenomenon led to the defendants’ entry into the bean bag bear market. It is also relatively clear that at least some initial Holybear samples were strikingly similar to the copyrighted bears and in all probability infringed. We believe the evidence establishes that Beanie Baby bears were very much in the forefront of Robert LeClair’s mind when he got into the business. In a certain sense he “copied” those bears, but that sense is not enough. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir.1971). Defendants point out a number of differences between Beanie Baby bears and Ho-lybears. The Holybear’s eyes and ears are positioned wider apart than Ty’s, the Holybear body parts are generally slightly larger, the Holybears have separate interi- or mesh sacks, they are more fully stuffed, the legs are straighter, and Holybears are plumper. Those differences are, however, marginal. The shape, size and type of cloth, are substantially similar. The faces, however, are different. It is unclear whether defendants did not initially understand that plaintiff had copyrights or whether they later recognized that plaintiff would aggressively pursue them (as it has) if they infringed. In any event, the production Holybears’ faces were changed from those of the initial samples. Was that change enough to avoid infringement? We think it probably was. Stuffed toy bears have long been with us, as have bean bag toys. The teddy bear has been part of American culture for almost a century, as described in The Century of the Teddy Bear by Constance Smith (1997). See also North American Bear Company v. Carson Pirie Scott & Co., 1991 WL 259031 (N.D.Ill.). Stuffed toy bears have heads, ears, bodies, arms and legs, and a visit to any toy store reflects that there are a great number of teddy bear designs that have some similarities. We have no reason to doubt that the heads, ears, bodies, arms and legs of Beanie Baby bears have some modicum of originality. Those bears are not, however, the David statue or War and Peace. Plaintiffs marketing success is not because of the quality and complexity of artistic expression. See Ty, Inc. v. GMA 132 F.3d at 1171 (noting Ty’s practice of artificially creating product shortage in order to “excite the market”). The differences between Beanie Baby bears and various other stuffed bears is of limited particularity. It is against this spectrum that we act as an ordinary reasonable observer. And it is in that context that the differences in the faces become significant. The Beanie Baby bear face is quite simplistic. Two plastic eyes stare out over a plastic nose on the suggestion of a snout, and there is no mouth. The Holybear has a well-defined snout (an additional piece), a felt nose, and a stitched mouth. It has a much more traditional teddy bear look. We think there is a sufficient difference in the total concept and feel, in the essential expression, to probably preclude a finding of infringement. To decide otherwise might well provide plaintiff with “a larger private preserve than Congress intended to be set aside in the public market without a patent.” Kalpakian, 446 F.2d at 742. That conclusion does not end our inquiry, since in appropriate cases some likelihood of prevailing may be enough to undergird preliminary relief. We recognize that a damages remedy is not altogether satisfactory in a copyright case because damages are difficult to measure. There is, however, because of that, recourse to statutory damages. Nor is plaintiffs contention of irreparable harm particularly compelling. While defendants may cause some minor disruption to plaintiffs scheme of distribution, Holybear, Inc. is in a niche market which may be largely separate from plaintiffs, and there appears to be no dispute that defendants’ bears are of good quality. See Ty, Inc. v. GMA, 132 F.3d at 1173. A preliminary injunction may well, on the other hand, put defendants out of business. After weighing the competing equities and interests, we decline to issue a preliminary injunction.

ENTRY GRANTING DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT BARKER, Chief Judge. Plaintiff, Ralph Cornell (Cornell) sued his employer, Delco Electronics Corpora tion, now known as Delphi Electronics Systems Corporation (Delphi), alleging disability and age discrimination and retaliation for Cornell’s filing of administrative complaints based on the alleged discrimination. At a settlement conference before Magistrate Judge V. Sue Shields on March 18,1999, the parties purportedly reached a settlement agreement, memorialized on a sheet of legal paper by Judge Shields and signed by the parties and counsel. Subsequently, Delphi composed a formal, typewritten document incorporating the agreed-upon terms and delivered it to plaintiffs counsel, Mr. Kenneth Lauter (Lauter), so that he could review and approve the agreement and allow Cornell to review and sign it. Lauter approved the document, but Cornell refused to sign it. Because they disagreed about whether an agreement had been reached, Lauter eventually withdrew as Cornell’s counsel, and Cornell obtained new representation. When Delphi moved to enforce the settlement agreement, Cornell responded that due to the length of the conference, by the time it concluded he was unable to understand and/or knowingly consent to the settlement on March 18 because of his disability, namely attention deficit disorder (ADD), and that his waiver of certain elements of his lawsuit was therefore not voluntary and knowing. On November 12, 1999, we conducted an evidentiary hearing on Delphi’s motion, at which Magistrate Judge Shields, Mr. Lauter (Cornell’s former counsel), Mr. Cornell, and Mr. Raleigh Grady, Delphi’s human resource administrator, all testified. Magistrate Judge Shields testified as to the procedures followed at the March 18, 1999 settlement conference. The parties had met together briefly, then separated to consult with their attorneys with Judge Shields acting as a go-between during negotiations. Judge Shields’ view was that everyone had worked hard to find creative solutions to accommodate Cornell and to secure a result that would satisfy his interests. She described Cornell’s level of participation at the conference as “very high.” When the parties appeared to have reached agreement on a solution, they reconvened, and Judge Shields handwrote the terms on a sheet of legal paper. The parties negotiated a few changes to the document and signed it in Judge Shields’ presence to indicate their acceptance of the terms and the accuracy of the memo. The settlement memorandum’s first point reflected the amount of cash Delphi agreed to pay to Cornell, which, Judge Shields explained, included Cornell’s attorney’s fees. Point two documented Delphi’s promise to publish a maximum of twelve articles, related to themes of wellness and disabilities (in particular ADD, we assume), in a company publication for employees. Cornell would be allowed input into the article on disabilities and into choosing future topics, to satisfy his concerns about insensitivity to disabilities in the workplace. The third item recorded in the Shields memo indicated that Delphi would make available to Cornell assistance to help improve his technical writing and communication skills, as well as other functions affected by his disability, for a maximum of eight hours per week for twelve weeks. Fourth, the parties agreed to keep the amount of the settlement payment confidential. Fifth, Cornell agreed to dismiss with prejudice all claims he had accrued up to that time against Delphi, with the exception of potential claims arising from patent authorship. Cornell and his attorney specified that they were conditioning their acceptance of the agreement upon Delphi’s approval of this last point — neither Grady, acting as the representative of Delphi, nor counsel for Delphi had authori ty to except patent issues unrelated to the present suit. Finally, in the event that Cornell experienced future difficulties at work, he promised -to first raise the issues with Grady or whomever was serving as Delphi’s affirmative action coordinator. This provision was intended to accommodate Cornell’s difficulty in communicating by ensuring access to a sympathetic and responsible Delphi liaison to prevent any future issues from becoming severe problems. Judge Shields testified that she had no reason to believe Cornell did not understand the terms of the settlement and that she would not have allowed Cornell to sign the agreement if she had any doubts about his competence or understanding. In her extensive experience, conducting hundreds of settlement conferences, Judge Shields has had other occasions when she recessed the conference because she felt one of the parties was not capable of proceeding; but, she testified she did not feel this conference should be halted and that neither Cornell nor his attorney at any point had asked that the conference be adjourned for the day. Cornell seemed focused at the March 18 meeting and, though fidgety, was not uncontrollably or excessively so; furthermore, Judge Shields recalled no time when Cornell expressed or otherwise indicated that he did not understand what was happening. After the March 18 conference, in contacts initiated by Cornell, he and Judge Shields talked several times by telephone and in person about Cornell’s fears for his job security, and Judge Shields encouraged Cornell to try to smooth things out with his employer. Judge Shields did not recall Cornell ever saying during these conversations that he had not understood what had occurred at the settlement conference or that he thought no settlement had been achieved. The next witness, Mr. Lauter, counsel for Cornell at the time of the settlement conference, offered a description of the terms of the settlement agreement that mirrored Judge Shields’, summarized above. Though he no longer represents Cornell, Lauter’s firm is entitled to receive one-third of the cash settlement amount if the agreement is enforced. Lauter characterized Cornell’s level of participation at the March 18 conference as “very high”; for example, it was Cornell who initiated the proposed patent-related revisions that were eventually made to Judge Shields’ draft of the settlement agreement. Cornell “participated in asserting what he would or would not agree to, and what needed to be or not be in the agreement in order for that to be agreed to.” (Tr. at 26). Lauter never believed then or now that Cornell did not understand or was unable to participate in the conference. In Lauter’s practice as an attorney he has suspended depositions in the past when he felt his client was not able to continue, but he “never even considered” doing so on this occasion. Lauter testified that in his opinion the parties reached a settlement agreement that day, that all of Cornell’s concerns about the agreement had been resolved, and that Cornell himself read the agreement before Cornell signed it. Next, Mr. Grady, who represented Delphi at the March 18 conference, testified that Cornell participated “a lot” in the conference. Grady has never believed that Cornell did not understand what was happening that day. As for the terms of the agreement purportedly reached by the parties, Grady agreed with the explanation provided by Judge Shields and Mr. Lau-ter. In addition, Cornell had e-mailed Grady the day after the conference and stated that he (Cornell) agreed to the settlement in good faith, but against his better judgment. From the testimony at the hearing, we determined that Cornell is 54 years old, completed high school, earned a degree in electronic engineering technology in two years of vocational training at ITT Technical Institute, and later earned a degree in business through a program at Indiana Wesleyan in which life experiences fulfill some of the academic prerequisites. After he completed his vocational training, Delco (now Delphi) hired Cornell in its advanced development area. Cornell works at least 40 hours per week at the Delphi plant in Kokomo, where his duties involve the design, processing, and development of “flip chip” technology. He lives alone in his house in Kokomo; his three children are grown and also live in the area. Cornell drives a car and carries on all of the functions, such as grocery shopping, required to care for himself. In his free time he volunteers by working with children who have disabilities similar to his own. Cornell informed us that in 1996, Dr. George Lewis diagnosed him as having attention deficit disorder (ADD), as well as dyslexia, depression, and obsessive-compulsive disorder (OCD). He had been receiving medical treatment for symptoms of these maladies since late 1993, and has taken various prescription medications, including Ritalin, Dexedrine, and Prozac, to help control the manifestations of his illness. At the hearing, Cornell stated that when he does not take his medicine, he has difficulty focusing and “shuts down.” Cornell testified that on March 18, 1999, the day of the settlement conference, he was not able to take his afternoon dose of medications, Dexedrine and Prozac. Because the first settlement conference before Judge Shields had lasted only an hour or an hour and a half, Cornell did not anticipate that the second conference, scheduled for noon on March 18th, would last any longer; therefore, he did not bring his afternoon dosage of medication with him to the courthouse. He had taken his medication at 9:00 that morning, arrived at Lauter’s office around 11 or 11:30, and traveled to the courthouse to Judge Shields’ office. The judge was delayed, so the conference started and ended late; Cornell did not leave the courthouse before 8:00 p.m. Without his medication, Cornell reported, he had difficulty focusing: “The harder I try, the more I shut down ... And the longer the day went on, it became more and more difficult for me to get the point across what I wanted to get across and get done what I wanted to get done. It was not happening.” (Tr. at 64). He was having a “flighVfight symptom,” and finding it “difficult ... to bring everything into perspective.” Cornell said that “later on,” he was not able to reason and make an informed decision; he just wanted to leave. Cornell also explained that the next day, when he wrote in the e-mail to Grady that the original agreement was against my “better judgment,” he meant that he “felt like [he] really shouldn’t have signed it; but under the conditions that [he] was in at the time, that’s what happened.” (Tr. at 69-70). Cornell testified that he believed that the document he signed on March 18 was a “first draft,” and that he would have an opportunity to review the final draft, in which “certain protections” and “concerns,” discussed at the conference but not “totally” included in the memorandum created by Judge Shields, would be elaborated. However, when Cornell saw the typewritten version (Exhibit B), he felt unsure that it protected his interests: it seemed “skewed” from what he remembered the original agreement to be, had “many ad-dendums to what originally was stated,” and did not adequately address all the concerns he had raised at the conference. Cornell asked Lauter, and then Judge Shields, to furnish him with a copy of the original (handwritten) agreement (Exhibit A), because Exhibit B was “not what [he] agreed to.” Although Cornell admitted at the hearing that he understood each element of the settlement to be what was outlined in Exhibit A and explained by Judge Shields, he added that he did not believe the handwritten document was the final agreement to which he had assented, and that it differed in some respects from what he understood the agreement to be. Cornell had enumerated particular objectives at the begin ning of the conference, for example, ensuring that Delphi hired an appropriately skilled person to assist him with communication; but, as he “faded away,” those requests were buried in the discussion and were not reflected in Exhibit A. Lauter was present throughout the entire settlement conference, presumably representing Cornell’ interests, and they periodically conferred privately during the negotiations. Still, according to Cornell, Exhibit A did not specify that, as Cornell understood it, he would be evaluated after the twelve week accommodation period to see what additional arrangements would be necessary. The purported agreement also did not address Cornell’s desire for job security. Finally, Cornell said the division of the cash sum to allow for attorneys fees was not “broken down,” and that he did not understand how the money would be divided between himself and his counsel. On cross examination, Cornell admitted that he had signed the document written out by Judge Shields, and that Exhibit A was the only document he had signed regarding this case. Cornell admitted that he did not try to stop the conference because he could not understand what was happening — although he believed he told Judge Shields “this is confusing to me.” Legal Standard Seventh Circuit holdings remain unclear as to what law, federal or state, determines whether a valid settlement of a federal claim has been reached. Compare Taylor v. Gordon Flesch Co., 793 F.2d 858 (7th Cir.1986) (federal common law of contract governs) with Morgan v. South Bend Community Sch. Corp., 797 F.2d 471 (7th Cir.1986) (state contract law governs). See also Fleming v. United States Postal Serv. AMF O’Hare, 27 F.3d 259, 260 (7th Cir.1994) (noting unsettled state of law and citing cases suggesting state contract law should be federal rule of decision unless federal interests disserved.) Normally, a motion to enforce a settlement agreement will be treated as a motion to enforce any other kind of contract. Carr v. Runyan, 89 F.3d 327, 331 (7th Cir.1996). Under Indiana law, a binding contract can result (absent fraud or duress) when an offer is accepted and the contracting parties have a meeting of the minds, regardless of whether they sign a written agreement. See Straub v. B.M.T., 645 N.E.2d 597, 598 (Ind.1994); Pinnacle Computer Servs., Inc. v. Ameritech Publ’g, Inc., 642 N.E.2d 1011, 1013 (Ind.Ct.App. 1994); International Creative Management, Inc. v. D & R Entertainment Co., 670 N.E.2d 1305, 1312 (Ind.Ct.App.1996). Under federal contract principles, as under Indiana law, an oral settlement agreement can be enforced unless the parties expressly agree not to be bound until the agreement is reduced to writing. Taylor, 793 F.2d at 862. Contracts may be valid even if they specify that a condition must be fulfilled in the future, provided that the condition is indeed fulfilled. A party cannot avoid a contract in Indiana unless he was of unsound mind when he entered the agreement and had no reasonable understanding of the contract’s terms due to his instability. Gallagher v. Central Indiana Bank, N.A., 448 N.E.2d 304, 307 (Ind.Ct.App.1983). However, the contract approach does not give sufficient weight to federal interests in ensuring that the goals of anti-discrimination statutes are not undermined by agreements made between parties with unequal bargaining power. See Pierce v. Atchison Topeka and Santa Fe Ry. Co., 110 F.3d 431, 437 (7th Cir.1997) (Pierce II). Therefore, when a party to a settlement agreement purports to waive or release federally-based claims, courts will examine the totality of the circumstances in which the parties made the agreement to ensure that any waiver of civil rights was knowing and voluntary. Id. at 436-37. This may include, but is not limited to, analysis of the following factors: (1) the employee’s education and business experience; (2) the employee’s input in negotiating the terms of the settlement; (3) the clarity of the agreement; (4) the amount of time the employee had for deliberation before signing the release; (5) whether the employee actually read the release and considered its terms before signing it; (6) whether the employee was represented by counsel or consulted with an attorney; (7) whether the consideration being given in exchange for the waiver exceeded the benefits to which the employee was already entitled by contract law; and (8) whether the employee’s release was induced by improper conduct on the defendant’s part. Pierce v. Atchison, Topeka and Santa Fe Ry. Co., 65 F.3d 562, 571 (7th Cir.1995) (Pierce I). In addition, the Seventh Circuit has held that when a plaintiff is represented by independent counsel who actively negotiates a release, his waiver is presumed to be knowing and voluntary absent vitiating circumstances such as fraud or duress. Pierce II, 110 F.3d at 438; see also Riley v. American Family Mut. Ins. Co., 881 F.2d 368, 373-74 (7th Cir.1989) (adding that malpractice is proper remedy if counsel inaccurately conveys effect of release to plaintiff or fails to draft language adequate to protect plaintiffs rights). Discussion We find that the requirements for the formation of a valid contract were satisfied in this case. In addition, considering the totality of the circumstances, we find that Cornell’s waiver of his federal claims was knowing and voluntary. The requisite meeting of the minds is evidenced by Cornell’s signing the agreement. There was no evidence that he was compelled to agree, or that he had no other alternative but to agree, as would be required to find duress under Indiana law. Cornell was perfectly free to refuse to settle his claims, but, to use his own words, he agreed “in good faith” though it may have been against his better judgment. He cannot change his mind because he later thought otherwise of the matter. As we pointed out in our colloquy with Cornell’s counsel at the hearing, Cornell has raised issues that relate more to Delphi’s failure to live up to the agreement as Cornell understood it, rather than whether an agreement had been reached; for example, Cornell complains that the woman Delphi hired to assist him was not helpful. Cornell’s statements that the written documents did not express “what [he] agreed to” implicitly acknowledge that he did agree to settle his case. The evidence establishes that Cornell clearly understood the terms negotiated on March 18; his testimony reveals not a lack of comprehension or will regarding the settlement, but more a subsequent unhappiness with the way in which the agreement was drafted or the manner in which Delphi has carried out its obligations under the agreement. Cornell testified that he does not consider himself incompetent, and neither do we. He drove himself to court on the day of the hearing and appeared alert and intelligent, especially when discussing his work at Delphi. The evidence shows that he is fully capable of living, and does live, a high-functioning, normal, productive life. We doubt that an incompetent person could have arranged a trip and traveled to California to see his doctor, as Cornell recently has done. To the extent that he “shuts down” when he feels threatened or pressured or demeaned, Cornell explained that his trouble arises in explaining himself and expressing his thoughts. Although his medication reportedly controls this to a large degree, he may always experience some symptoms of his disability. We find that, under the totality of the circumstances, any trouble Cornell encountered in communicating at the settlement conference on March 18 was not nearly enough to render his consent to the agreement unknowing or involuntary, particularly in light of the fact that he was assisted by his counsel throughout. There is no evidence, including the deposition testimony of Cornell’s physician, to suggest that Cornell’s intelligence was impaired that day. As noted above, Cornell is well-educated and has many years of highly skilled work experience at Delphi. His level of input into the settlement was by all accounts “very high,” he had many hours on March 18 to deliberate on the proposed settlement with the advice of his attorney, the pace was sufficiently structured and the meeting protracted to such an extent that he could not have been under unabated pressure to decide or to perform throughout the meeting, he had ample opportunity to consider the terms and read the agreement before signing, and there was no evidence that anyone involved in the conference behaved improperly towards him; in fact, to the contrary. Cornell understood at the time he agreed to the settlement that he was giving up all of his claims related to the lawsuit, as well as any other claims he had against Delphi, which was why he specifically asked that an exception be made for the patent claims — he did not want to release those, and he in fact retains the right to bring patent-related claims against Delphi even now. It may be that Cornell was not as articulate as he wanted to be in ensuring that all of the details were included in Judge Shields’ written agreement, but we cannot find that Cornell lacked an understanding that he was waiving his remaining, non-patent-related claims or a comprehension of what he would receive in return. Conclusion For the reasons stated above, Defendant Delphi’s Motion to Enforce Settlement Agreement is GRANTED. The revised agreement submitted by counsel for Defendant in the wake of the hearing shall be enforced. The agreement provides that the terms of settlement remain confidential, and it is therefore ORDERED that the Clerk of the Court file the tendered Order Enforcing Settlement Agreement as of the date of this Entry and maintain it under seal. . This document was admitted at the hearing as Defense Exhibit B. In moving to enforce the settlement agreement, Delphi wishes to enforce the agreement purportedly reached by the parties at the settlement conference on March 18, 1999. To the extent that Exhibit B does not accurately reflect the agreed-upon terms, Delphi does not seek its enforcement. . Judge Shields retained the original in her files and brought it to the hearing, where it was admitted as Defense Exhibit A. . A printed-oul copy of the e-mail was admitted as Defense Exhibit C. . At the hearing, the parties did not address whether the waiver provisions of the Older Workers Benefits Protection Act (OWBPA), which amended the Age Discrimination in Employment Act (ADEA) in 1991, applies to Cornell’s release of his age discrimination claims, probably because Cornell’s claims center around disability discrimination; the parties’ failure to focus on age discrimination claims at the settlement conference and the enforcement hearing further establishes the peripheral nature of the age claims. However, the record clearly reflects that Cornell understood that his waiver encompassed all claims except those relating to patents. That his waiver was knowing and voluntary is clear not only from the circumstances of the court-supervised settlement conference and representation of counsel, but by what all who were present agree was Cornell’s high level of participation at the conference, including his insistence upon retaining the right to bring patent claims against his employer. His provision for the patent exception indicates he knew he was waiving all claims, including age discrimination, against Delphi. Moreover, the Supreme Court case of Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838, 843-44, 139 L.Ed.2d 849 (1998) (Breyer, J., concurring) indicates that a non-complying release would not be void, just voidable, as to age claims.

OPINION AND ORDER JESSE M. FURMAN, District Judge. The present case involves a dispute between two banks over losses arising from a mortgage loan to a borrower who subsequently defaulted. In March 2007, Defendant Carver Federal Savings Bank (“Carver,” the “Lender,” or the “Defendant”)— a New York Bank — made a loan totaling $6,080,000 to Shaker Gardens, Inc. (“Shaker” or the “Borrower”), a New York corporation wholly owned by Yehuda Nelkenbaum, to finance the purchase of real property in Monticello, New York, containing approximately 170 residential apartments. The same day, Carver and Third-Party Defendant Mariner’s Bank (“Mariner’s Bank,” the “Participant,” or “Third-Party Defendant”) — a New Jersey State chartered commercial bank — entered into a Participation Agreement (the “Participation Agreement” or the “Agreement”), pursuant to which Mariner’s Bank paid $3,040,000 to Carver in exchange for a fifty percent interest in the loan. The parties dispute whether Shaker made any payments on the loan. There is no dispute, however, that Shaker defaulted on the loan in or before June 2008. In December 2010, Carver foreclosed on the property securing the loan. On November 20, 2009, Mariner’s Bank brought this action against Carver. In its Complaint, Mariner’s Bank alleges (1) various breaches of the Participation Agreement; (2) breach of the covenant of good faith and fair dealing; (3) gross negligence; and (4) fraud. It seeks money damages, specific performance, and attorneys’ fees. Just over one month after the filing of the Complaint, Mariner’s Bank entered into an agreement to transfer its right, title, and interest in and to its claims in this case to Purchase Partners, LLC (“Purchase Partners” or “Plaintiff’), a New Jersey limited liability company; in the wake of that transfer, the Honorable Richard J. Holwell (to whom the case was previously assigned) issued an order substituting Purchase Partners as Plaintiff and re-designating Mariner’s Bank as Third-Party Defendant. (Docket No. 45). Meanwhile, Carver filed its Answer on January 6, 2010, asserting counterclaims against Mariner’s Bank, Purchase Partners, and Paul Schmidt, Sr. (an individual member of Purchase Partners). At bottom, Carver alleges that Mariner’s Bank breached the Participation Agreement by failing to reimburse Carver for advances Carver made on behalf of Shaker (Counterclaim 1) and by transferring its interest in the loan to Purchase Partners (Counterclaim 2). Carver seeks declaratory (Counterclaims 3, 6, 8) and injunctive (Counterclaims 4, 7) relief, monetary damages (Counterclaims 1, 2), and an award of attorneys’ fees (Counterclaims 5, 9). Now pending before the Court are the parties’ cross-motions for summary judgment. (Docket Nos. 63, 84). In addition, on September 7, 2012, following oral argument on the motions, Purchase Partners filed a motion for leave to amend the Complaint (superseding an earlier motion for leave to file an amended complaint) seeking to add claims for negligent misrepresentation and gross negligent representation and to revise its pleadings with respect to the contract and fraud claims in light of discovery. (Docket No. 127). For the reasons discussed below, the parties’ respective motions for summary judgment are GRANTED in part and DENIED in part. Purchase Partners’s motion for leave to amend the Complaint is also GRANTED in part and DENIED in part. The net result of these rulings is that all of Purchase Partners’s claims, except for its breach of contract claim and its claim for attorneys’ fees, are dismissed. All claims against Schmidt are also dismissed. As for the counterclaims, Carver is granted summary judgment as to liability on its counterclaim regarding transfer of Mariner’s Bank’s interest in the Participation Agreement to Purchase Partners, but damages are to be determined at trial; the Court dismisses the counterclaims seeking declarative and injunctive relief in connection with the transfer. The rest of Carver’s counterclaims survive. Finally, as discussed in more detail below, Purchase Partners may amend its Complaint to flesh out its breach of contract claim, but its motion for leave to file an amended complaint’s otherwise denied. BACKGROUND A. The Loan and the Participation Agreement As noted, this case involves a $6,080,000 loan from Carver to Shaker to finance the purchase of real property in Monticello, New York, containing approximately 170 residential apartments. (Def.’s Resp. to PL’s 56.1 Statement (“Def.’s 56.1 Resp.”) Nos. 2-3 (Docket No. 90)). Given the size of the loan, Carver approached other banks, including Mariner’s Bank, to contribute to the loan pursuant to a participation agreement. (Id. No. 4). On March 1, 2007, the date the loan closed, Carver and Mariner’s Bank entered into the Participation Agreement for that purpose. (Id. No. 5; Answer Ex. A (“Agreement”) (Docket No. 4)). Pursuant to the Agreement, Mariner’s Bank paid $3,040,000 to Carver and obtained a fifty percent interest in the loan. (Def.’s 56.1 Resp. No. 5). Carver was responsible for servicing the loan (Agreement § 3.1), although the Participation Agreement gave it the option of delegating that task to a third party at its discretion and without providing notice to Mariner’s Bank (Id. §§ 7.12, 7.15), which it eventually did. (See Def.’s 56.1 Resp. Nos. 13-14). The loan was evidenced by a promissory note (the “Note”) and secured by a mortgage agreement (the “Mortgage”). (Def.’s 56.1 Resp. No. 6). The Mortgage granted Carver a lien against the property and a collateral assignment of rent, giving Carver the right to collect and apply the rent generated by the property. (Id.). Shaker’s repayment obligation under the Note was personally guaranteed by Nelkenbaum (id.), who was no stranger to Carver. In 2006, Carver had made three other loans, totaling approximately $2.5 million, to entities owned or controlled by Nelkenbaum. (See id. No. 2) In conjunction with the loan, Shaker also entered into an Escrow and Security Agreement with Carver that required Shaker to establish an escrow account to ensure that certain repairs were made to the property. (PL’s Am. Resp. to Def.’s Rule 56.1 Statement (“PL’s 56.1 Resp.”) Nos. 5-8 (Docket No. 101)). If Shaker made the repairs, the money was to be returned to it. (Id.). In the event of a default, Carver, at its sole discretion, could apply the escrow funds to the payment or to a reduction in whole or in part of the loan. (Id. No. 9). B. Carver’s Advances and Shaker’s Default on the Loan Shaker issued its first payment under the Note on April 1, 2007, but Carver never received the money because Shaker stopped payment on the check. (Pincus Aff. Ex. 20 (Docket No. Ill); Tr. of Aug. 28, 2012 Oral Arg. (“Transcript”) 43:24-25). The second check, issued on May 1, 2007, was returned due to insufficient funds. (Pincus Aff. Ex. 22). Purchase Partners maintains that there is no record at all of the third payment that should have been made on June 1, 2007. (PL’s 56.1 Statement No. 12 (Docket No. 81)). For reasons that are not altogether clear, however, Carver did not immediately realize that Shaker had failed to make at least two of these payments in a timely fashion. (See id.; Transcript 43:24-25 (explaining that there is “[n]o doubt” about the fact that Carver “overlooked” the first two payments)). Additionally, Mariner’s Bank did not immediately know about the missed payments because it still received its share of the money from Carver. (See Pl.’s 56.1 Resp. No. 83). According to Purchase Partners, that is because Carver made the loan payments on Shaker’s behalf using money from the repair escrow— ultimately transferring the money to its loan servicer, Dovenmuehle Mortgage, Inc. (“DMI”), in Illinois. It alleges that DMI then applied the payments to the loan and re-delivered the funds back to Carver and that Carver, in turn, distributed fifty percent of the money to Mariner’s Bank on account of its participation interest. (Pl.’s Mem. Law 8-9 (Docket No. 82)). Although Carver disputes some details of Purchase Partners’s explanation, (see Def.’s 56.1 Response No. 12), it nonetheless maintains that it was authorized to make payments on behalf of Shaker pursuant to Section 3.8(a) of the Participation Agreement, which provides that Carver may make any “advance[s] which [are] reasonably incurred in order to protect the rights of the Holders, including, without limitation, all expenses reasonably incurred by the Lender to enforce the Loan Documents.” (Agreement § 3.8(a)). Over the course of the loan, Carver made advances on behalf of Shaker both to cover Shaker’s missed payments and to cover taxes, insurance, legal fees, and repairs to the property. (Def.’s Mem. Law 3 & n. 2 (Docket No. 70)). The precise total of these advances is somewhat disputed: Carver maintains that it advanced $1,789,832.47, while Mariner’s Bank and Purchase Partners claim they are only aware of advances totaling $798,076.68. (PL’s 56.1 Resp. No. 23). In any event, rather than apply these sums to the principal of Shaker’s underlying obligation, Carver treated the advances as a “negative escrow,” which is a receivable due and owing by the borrower secured by the real property. (Id. No. 24). Shaker officially defaulted on the loan in early to mid-2008 — roughly a year after the initial payments were returned. (Transcript 45:4-12). The parties dispute to what extent Shaker made payments in the intervening months. Purchase Partners alleges that there is evidence showing that Shaker did not in fact make any payments on the loan. Although Carver submitted copies of checks purporting to demonstrate that at least ten payments were made (March 19, 2012 Donohue: Decl. “Donohue Deck 1” Ex. S (Docket No. 64)), Purchase Partners maintains that it is uncertain whether those payments were applied to the loan in question or to one of the other Nelkenbaum loans. (Transcript 48:18-51:14). In any event, approximately six months later, in November 2008, Carver discovered that it had never even received the initial payments. Upon that discovery, for accounting purposes, DMI reversed all payments made during the course of the loan and reapplied all but the last two payments in order to account for the returned checks. (Def.’s 56.1 Resp. No. 12). In December 2008, Carver notified Mariner’s Bank that the first two payments had “bounced” and asked Mariner’s Bank to refund its share of those payments. Mariner’s Bank agreed. (Pl.’s 56.1 Resp. No. 83). C. Carver’s Civil Action and Foreclosure on the Property On May 14, 2008, Carver sent a letter to Shaker (and Nelkenbaum), via counsel, indicating that because Shaker had failed to make monthly payments since April 1, 2008, Carver was accelerating the entire balance of the loan. (Pincus Aff. Ex. 30). The letter further informed Shaker that Carver intended to commence an action against it, and advised Shaker to retain an attorney. (Id.). Less than a month later, on June 2, 2008, Carver did commence a civil action against Shaker and Nelkenbaum in New York Supreme Court to collect under the Note and Guaranty. (Pincus Aff. Ex. 31, at 2-3). In an e-mail dated June 4, 2008, Frank Greco, Mariner’s Bank’s Senior Vice President, advised Frank Giancola, Mariner’s Bank’s current President and CEO, that he had been informed that Carver was bringing an action against Nelkenbaum personally and that Carver would let him know when Nelkenbaum was served. (April 19, 2012 Donohue Decl. (“Donohue Deck 2”) Ex. Q (Docket No. 88)). Thereafter, Nelkenbaum was served. In the state court proceedings that followed, Shaker and Nelkenbaum argued that the May 14, 2008 notice from Carver was defective because it was sent by Carver’s attorneys rather than, as provided by the Mortgage, a named law firm or Carver itself. (See Pincus Aff. Ex. 31, at 6). On January 7, 2009, in an attempt to cure this deficiency, Carver sent a second letter to Shaker and Nelkenbaum alerting them that Shaker had failed to make monthly payments due under the loan. (Pincus Aff. Ex. 35). This time, Carver sent the letter itself rather than delegating that task to its attorneys. (Id.). The content of the letter, however, was substantially the same. (Compare id. Ex. 30, with id. Ex. 35). While the civil action against Shaker and Nelkenbaum was still pending, Carver decided to change tacks and pursue a foreclosure action. Thus, on January 27, 2009, Carver commenced a foreclosure action in New York Supreme Court. (See id. Ex. 32, at 3). Because New York law requires a mortgagee to “elect between pursuing a legal remedy or foreclosing on the property,” Mfrs. Hanover Trust Co. v. 100 Garden City Assoc., 150 Misc.2d 247, 568 N.Y.S.2d 505, 507 (Sup.Ct.1991), Carver moved shortly thereafter to discontinue the June 2, 2008 civil action (see Pincus Aff. Ex. 32, at 3). Carver’s motion to discontinue was granted over Shaker’s objection. (See id.). On February 2, 2009, Carver made an ex parte application as part of the foreclosure action to appoint a rent receiver for Shaker Gardens. (See id.) Thereafter, the parties filed cross-motions for summary judgment. Shaker’s motion relied on the denial of summary judgment in a different case between Carver and Shaker. (Id. at 3-4). In that case, involving a different property but the same form loan documents and the same acceleration letter as in this case, the Court had determined that Carver had failed to provide Shaker with proper notice of default and an opportunity to cure as required by the Mortgage. (See id. at 4). On July 8, 2009, the New York Supreme Court granted Shaker’s motion, dismissed Carver Complaint, and denied Carver’s cross-motion for summary judgment. It also denied Carver’s application to appoint a rent receiver. (Id. at 7-8). Relying on its earlier decision in the related action, the Court held that the January 7, 2009 letter from Carver to Shaker was defective because it did not “constitute written notice of default as required” under the Mortgage. (Id. at 7). Although Carver maintains that the New York Supreme Court’s ruling was wrong (Donohue Deck 2 Ex. A ¶ 34), it chose to commence a new foreclosure action rather than appeal the ruling. (Id. ¶ 41). In December 2010, Carver finally obtained a Judgment of Foreclosure and Sale and subsequently conducted a foreclosure sale in which it was the high bidder. (Id.; Pincus Aff. Ex. 86; Ph’s 56.1 Resp. No. 73). D. The Instant Action As noted, Mariner’s Bank commenced this action on November 20, 2009. Its Complaint includes six counts: Count One seeks specific performance to compel Carver to apply the amounts it advanced on behalf of Shaker to the principal balance of the loan; Count Two alleges various breaches of the Participation Agreement; Count Three asserts breach of the covenant of good faith and fair dealing; Count Four alleges gross negligence; Count Five asserts a claim for fraud; and Count Six seeks attorneys’ fees. (After the close of discovery, Purchase Partners filed a motion for leave to amend its Complaint to add causes of action for negligent and gross negligent misrepresentation. (Docket No. 83)). On December 21, 2009, Mariner’s Bank and Purchase Partners entered into an agreement whereby Mariner’s Bank agreed to transfer its “right, title, and interest in” this litigation to Purchase Partners (Donohue Deck 2 Ex. HH), after which Judge Holwell substituted Purchase Partners as Plaintiff and re-designated Mariner’s Bank as Third-Party Defendant (Docket No. 45). (Mariner’s Bank had agreed to transfer its participation interest to Purchase Partners on September 30, 2009 subject to a “put option.” (Donohue Deck 2 Ex. B ¶ 17)). On January 6, 2010, Carver filed its Answer denying the allegations, asserting five counterclaims against Mariner’s Bank, and asserting four third-party claims (also styled “counterclaims”) against Purchase Partners and Schmidt: (1) breach of the Participation Agreement by failing to reimburse Carver for fifty percent of the advances (Answer ¶¶ 76-97 (Docket No. 4)); (2) breach of the Participation Agreement by transferring Mariner’s Bank’s interest therein to Purchase Partners (and Schmidt) without Carver’s consent (id. ¶¶ 98-103); (3) a declaratory judgment that the transfer by Mariner’s Bank of its interest in the Participation Agreement to Purchase Partners is void (id. ¶¶ 104-09); (4) an injunction precluding Mariner’s Bank from transferring its interest in the Participation Agreement (id. ¶¶ 110-11); (5) a request for attorneys’ fees against Mariner’s Bank (id. ¶¶ 112-14); (6) a declaratory judgment against Purchase Partners and Schmidt that the transfer by Mariner’s Bank of its interest in the Participation Agreement to Purchase Partners is void (id. ¶¶ 123-29); (7) an injunction precluding Purchase Partners and Schmidt from transferring their interest in the Participation Agreement (id. ¶¶ 130-32); (8) a declaratory judgment that Purchase Partners and Schmidt are obligated to reimburse Carver for fifty percent of the advances (id. ¶¶ 133-39); and (9) an award of attorneys’ fees against Purchase Partners and Schmidt (id. ¶¶ 140-42). On March 19, 2012, Carver moved for summary judgment on the claims asserted against it and on all of its counterclaims. (Docket No. 63). On March 21, 2012, Purchase Partners cross-moved for summary judgment on (1) aspects of its breach of contract claim (Count Two); (2) Carver’s counterclaims seeking to recover fifty per cent of the advances made on behalf of Shaker; and (3) all counterclaims against Schmidt. (Docket Nos. 80, 84). In addition, on September 7, 2012, following oral argument on these motions, Purchase Partners filed a motion for leave to amend its Complaint — superseding an earlier such motion — seeking to add claims for negligent misrepresentation and gross negligent representation and to revise its pleadings with respect to the contract and fraud claims in light of discovery. (Docket No. 127). In the course of briefing these motions, the parties have each withdrawn certain claims. Specifically, Purchase Partners consents to dismissal of its claims for specific performance (Count One) and breach of the covenant of good faith and fair dealing (Count Three). (See Pl.’s Supplemental Submission 8 (Docket No. 132); Pl.’s Opp’n Mem. (Docket No. 96) at 46). Carver, for its part, consents to dismissal of all its claims against Paul Schmidt. (Def.’s Opp’n Mem. 1 n. 3). STANDARD OF REVIEW Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate “no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56; see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (per curiam). An issue of fact qualifies as genuine if the “evidence is such that a reasonable jury could return a judgment for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, all evidence must be viewed “in the light most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004), and the court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004). To defeat a motion for summary judgment, the non-moving party must advance more than a “scintilla of evidence,” Anderson, 477 U.S. at 252, 106 S.Ct. 2505, and demonstrate more than “some metaphysical doubt as to the material facts,” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party “cannot defeat the motion by relying on the allegations in [its] pleading or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir.1996) (citation omitted). Affidavits submitted in support or in opposition to summary judgment must be based on personal knowledge, must “set forth such facts as would be admissible in evidence,” and must show “that the affiant is competent to testify to the matters stated therein.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir.2004) (quoting Fed. R.Civ.P. 56(e)). Where, as here, each side moves for summary judgment, “neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993). “[T]he court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Id. (quoting Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 314 (2d Cir.1981)). DISCUSSION As noted, Purchase Partners consents to dismissal of Counts One and Three of its Complaint and Carver consents to dismissal of all claims against Schmidt. In its motion, Carver moves for summary judgment on the rest of Purchase Partners’s claims and on all of its counterclaims. Purchase Partners cross-moves for summary judgment on aspects of its breach of contract claim (Count Two) and Carver’s counterclaims seeking to recover fifty percent of the advances extended to Shaker. The Court will first address Purchase Partners’s remaining claims, as well as its motion for leave to amend the Complaint, then turn to Carver’s counterclaims. In doing so, the Court applies New York law, as all parties agree that New York law governs. (See Def.’s Mem. Law 15-19; PL’s Opp’n Mem. 46^49, 61-63; see also Agreement § 7.4 (“In all respects ... this Agreement shall be governed by, and construed in accordance with, the substantive laws ... of the State of New York....)) A. Purchase Partners’s Claim for Breach of Contract (Count Two) In Count Two of its Complaint, Purchase Partners alleges that Carver breached (1) Section 3.5(a)(iii) of the Participation Agreement by failing to give notice and obtain Mariner’s Bank’s consent prior to making the advances to Shaker; (2) Section 3.1 of the Participation Agreement, by failing to add the advances to the loan principal; (3) Section 3.5(a)(vii) of the Participation Agreement by failing to give notice and obtain Mariner’s Bank’s consent before instituting a civil action against Shaker; (4) Sections 3.1, 3.2, and 3.6(b) of the Participation Agreement by issuing a defective and improper notice of default and failing to act diligently and promptly in obtaining a rent receiver; and (5) Sections 3.2 and 3.6(b) of the Participation Agreement by failing to detect Shaker’s alleged initial payment defaults. Carver moves for summary judgment on all of these claims. By contrast, Purchase Partners moves for summary judgment only on the “liability aspects” of (4) and (5); it contends that trial is warranted on the remaining claims and damages. 1. Carver’s Liability Is Not Limited to Bad Faith Breaches Before turning to the parties’ arguments with respect to Purchase Partners’s individual claims of breach, it is necessary to address one general argument made by Carver that relates to all of the contract claims: that, under Sections 7.17(g) and 7.18 of the Participation Agreement, Carver’s liability is limited to breaches that “rise to the level of bad faith, willful misconduct or gross negligence.” (Defs Opp’n Mem. 4). To the extent relevant here, Section 7.17(g) provides that Carver “makes no representation and shall have no responsibility with respect to ... the filing, recording, or taking of any other action with respect to any of the Loan Documents, except in the case of the willful misconduct or gross negligence of the Lender.” (Agreement, § 7.17(g)). Section 7.18 provides, in relevant part, that Carver shall not be held liable for any act or omission “by any person on behalf of the Lender” unless that person “was authorized by the Lender to act in bad faith, or with willful misconduct or gross negligence.” (Id. § 7.18). Carver contends that the phrase “taking of any other action” in Section 7.17(g) should be read to include any and all actions having to do with the loan documents, including those actions Purchase Partners complains of in Count Two of the Complaint, and that Section 7.18 limits liability under the Agreement to acts taken “in bad faith, or with willful misconduct or gross negligence.” (Transcript 38:13-39:16). This argument is unpersuasive. First, the Court agrees with Purchase Partners that, in context, the phrase “taking of any other action” in Section 7.17(g) refers only to actions similar in kind to the filing or recording of loan documents. (Transcript 52:4-53:1). That interpretation is consistent with the principle of ejusdem generis, which holds that “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.” Black’s Law Dictionary 594 (9th ed. 2009); see Rock-land Exposition, Inc. v. Great Am. Assurance Co., 746 F.Supp.2d 528, 537 n. 8 (S.D.N.Y.2010) (noting that “[i]t is not uncommon for courts interpreting contracts to rely on the same principles that guide statutory construction” (citing Tilley v. Mead Corp., 927 F.2d 756, 771 (4th Cir. 1991), aff'd, 445 Fed.Appx. 387 (2d Cir. 2011) (Summary Order))). That interpretation is also necessary to reconcile Section 7.17(g) — a provision buried at the end of the Participation Agreement under the heading “No Reliance on Lender” — with Section 3.1, in which Carver agreed “to exercise the same degree of care to protect the Interest of Participant as Lender uses to protect its own investments and interests.” (Agreement §§ 7.17, 3.1; see also Transcript 59:15-19). Carver’s reliance on Section 7.18 of the Participation Agreement is even more misplaced. As Carver all but conceded at oral argument (see Transcript 39:3-4; 39:20-22), that provision does limit Carver’s liability, but — as its title, “Limitation on Liability Of Lender For Acts By Other Persons,” and its plain language make clear— only for acts or omissions of third parties. Because Purchase Partners’s breach of contract claim does not involve the acts or omissions of third parties, let alone third-party negligence or third-party misconduct, Section 7.18 is inapposite. 2. Specific Alleged Breaches of the Participation Agreement a. Notice and Treatment of the Advances The Court turns, then, to Purchase Partners’s specific allegations of breach and the parties’ arguments for and against summary judgment. Purchase Partners argues first that, under the terms of the Participation Agreement and the Mortgage, Carver was required to add the amount of the advances it made to the underlying principal of Shaker’s loan. Treating the advances as a “negative escrow,” it alleges, was a breach of that requirement. (Pl.’s Opp’n Mem. 31-32). Purchase Partners argues, further, that because the advances constitute “no less than an additional extension of credit to a borrower that is already in default” (Pl.’s Opp’n Mem. 35), they should have triggered the written consent provision of the Participation Agreement. (See Agreement § 3.5[a](iii)). Because Carver never notified Mariner’s Bank of its intention to make the advances, and, consequently, Mariner’s Bank never gave Carver written consent to increase the amount of the loan, Purchase Partners argues that Carver breached the Participation Agreement. Carver moves for summary judgment on the ground that Section 3.8(a) of the Participation Agreement authorized it to pay advances in its “commercially reasonable discretion” and that the relevant notice and consent provisions in the Participation Agreement and the Mortgage were not triggered by its making advances. Regardless of its contractual obligations to obtain written consent, Carver argues that Purchase Partners suffered no damages as a result of the way in which Carver accounted for the advances. (Def.’s Reply Mem. Law Supp. Summ. J. (“Def.’s Reply Mem.”) 10 (Docket No. 114 Attach. 11)). Finally, Carver argues that sufficient notice of the advances was in fact provided to Mariner’s Bank and, because Mariner’s Bank did not object to the advances, Purchase Partners should be estopped from alleging a breach on that basis now. (Id. at 8-9). Carver has not carried its burden on this issue. First, Section 3.8(a) of the Participation Agreement notwithstanding, the Mortgage — which is incorporated by reference into the Participation Agreement (Pl.’s Opp’n Mem. 31; Def.’s Reply Mem. 7; Agreement §§ 1.1, 3.1) — required that charges paid by the Mortgagee (Carver) on behalf of the Mortgagor (Shaker) be “added to the indebtedness secured hereby and be secured by this Mortgage.... ” (Mortgage § 5(a) (Docket No. 64, Ex. B)). On the basis of the current record, the Court cannot determine if “added to the indebtedness” means added to the principal (as Purchase Partners contends) or merely added to the amount owed by Shaker (as Carver contends). For substantially the same reasons, the Court cannot determine to what extent, if any, the written consent requirement was triggered by the advances. Thus, summary judg ment is improper. See, e.g., Postlewaite v. McGraw-Hill, Inc., 411 F.3d 63, 67 (2d Cir.2005) (explaining that “when the meaning of the contract is ambiguous and the intent of the parties becomes a matter of inquiry, a question of fact is presented which cannot be resolved on a motion for summary judgment” (citation and internal quotation marks omitted)). As for Carver’s argument about damages, there is a dispute about whether Carver recovered interest on the negative escrow amount in the foreclosure action as it did for the principal of the loan. (Compare Def.’s Supplemental Submission at 6 (Docket No. 125), with Pl.’s Supplemental Submission at 9; see Seidman Decl. Exs. 85, 86 (Docket No. 131)). At this stage, a reasonable jury could decide that it did not, in which case Purchase Partners would have a valid claim to the amount of lost interest. b. Notice and Action Taken Regarding Civil Action Next, Purchase Partners alleges that Carver breached the Participation Agreement by failing to obtain Mariner’s Bank’s written consent before commencing legal action against Shaker. Purchase Partners relies on Section 3.5(a) of the Participation Agreement, which states that “the Lender shall not, without the Participant’s prior written consent, exercise any such rights or take or omit to take any action which would ... (vii) except as set forth in Section 3.6 of this Agreement, commence any legal action against any Obligor or against any Security, except in emergency situations to preserve the Security or any right against any Obligor.” (Agreement § 3.5(a) (emphasis added); see also Compl. ¶ 36 (relying on Section 3.5(a)(vii))). Carver moves for summary judgment on the ground that it gave Mariner’s Bank adequate notice of the civil action and that, even if it did not, Purchase Partners’s claim is barred by waiver or estoppel because Mariner’s Bank never objected to Carver’s course of action once Mariner’s Bank learned of it. (Defs Reply Mem. 10-12). Carver is entitled to summary judgment on this aspect of Purchase Partners’s contract claim, albeit not for the reasons it initially put forward. Although both parties initially briefed this claim on the theory that Section 3.5(a) was the operative section of the Participation Agreement, the relevant portion of that provision states that written consent is required “except as set forth in section S.6 of this agreement. ” Section 3.6, in turn, provides that: [и]pon the occurrence of a default under any of the Loan Documents evidencing or securing the Loan which would permit acceleration of the maturity of the Loan[,] ... the Lender ... shall promptly and diligently (but in consultation with Participant) prosecute its remedies under the Loan Documents in good faith and in accordance with the standard of care set in Section S.l above (including, without limitation, taking all action, in a reasonably prudent manner, which is reasonably calculated to foreclose each lien and enforce each security interest against the Security). (Agreement § 3.6 (emphasis added)). On its face, this section does not appear to have required Carver to obtain Mariner’s Bank’s consent before prosecuting its remedies upon the occurrence of Shaker’s default; it appears to have required only that Carver act “in consultation with” Mariner’s Bank. The Court sees no merit in Purchase Partners’s contention (made in response to the Court’s questions regarding the applicability of Section 3.6 at oral argument) that Carver was required to obtain Mariner’s Bank’s written consent pursuant to Section 3.5 of the Participation Agreement and, after initiating legal proceed ings, to consult further with Mariner’s Bank pursuant to Section 3.6. (See Pl.’s Supplemental Submission 12-14). That interpretation ignores the plain language of Section 3.5, which states that written consent is required “except as set forth in section 3.6.” (Agreement § 3.5(a)(vii) (emphasis added)). Nor is the Court persuaded by Purchase Partners’s contention that this interpretation of Section 3.6 would “swallow the entire meaning of § 3.5[a].” (Id. at 12). Section 3.6 authorized Carver to prosecute its legal remedies without obtaining Mariner’s Bank’s consent in the event of a default, presumably to facilitate a quick response in such circumstances. Section 3.5 required written consent before legal action was taken in other circumstances. The two provisions are thus easily reconciled. On the present record, no reasonable jury could find that Carver breached the requirements of Section 3.6. First, the record is clear that Carver pursued its legal remedies “in consultation with” Mariner’s Bank. As noted above, in an e-mail dated June 4, 2008, for example, Mariner’s Bank’s Senior Vice President advised another Mariner’s Bank executive that “Carver is going after [Nelkenbaum] personally and is suing him on his guaranty. They were supposed to serve him yesterday.... They will let me know when and if this was done.” (Donohue Decl. 1 Ex. M). On July 10, 2008, Carver informed the Senior Vice President via e-mail that it was “pursing [sic] legal action against the Borrower,” and encouraged him to contact Carver if Mariner’s Bank needed any additional information. (Id. Ex. N). Finally, Carver’s Executive Vice President, Charles Koehler, testified in his deposition that he had “more than one conversation” with Don Estes, Mariner’s Bank’s Vice President, about their potential remedies and “the way I was going to ... go forward with the litigation.” (Id. Ex. P 47:1-48:21). Koehler testified that he “was very specific” about his legal strategy and that Mariner’s Bank agreed with it. (Id. at 48:3-9; see also id. Ex. R (showing Mariner’s Bank’s awareness of the suit)). Second, although Purchase Partners has reason now to second guess Carver’s decision, there is no basis for a jury to find that Carver failed to “promptly and diligently ... prosecute its remedies under the Loan Documents in good faith and in accordance with the standard of care set in Section 3.1” by filing a civil case instead of seeking foreclosure in the first instance. (Agreement § 3.6(b)). There is nothing in the Participation Agreement that required Carver to commence a foreclosure action instead of a civil action. And while, in retrospect, Carver may have been better off immediately foreclosing on the property rather than pursuing Nelkenbaum on his guaranty, hindsight is twenty-twenty. Given the facts and circumstances known to Carver (and Mariner’s Bank) at the time, Carver made a reasonable, albeit flawed, decision to proceed as it did — as the absence of any real objection by Mariner’s Bank at the time makes clear. Accordingly, Carver’s choice to pursue a civil action in lieu of foreclosure could not have been a breach of the Participation Agreement, and Carver is entitled to summary judgment on this issue. c. Defective and Improper Notice of Default Third, Purchase Partners alleges that, by issuing a defective and improper notice of default, Carver failed to act “in a reasonably prudent manner” to foreclose on the property. (Compl. ¶ 38 (quoting Agreement § 3.6(b))). Both Carver and Purchase Partners move for summary judgment on this issue. Purchase Partners’s principal contention is that collateral estoppel applies to the New York Supreme Court’s ruling that Carver’s notice to Shaker was defective. (Pl.’s Mem. Law 37). It also cites Moccio v. New York State Office of Court Admin., 95 F.3d 195, 197-98 (2d Cir.1996), abrogated by Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005), for the proposition that “under the Rooker-Feldman doctrine, federal district courts, as courts of original jurisdiction, lack the power to entertain claims which, if substantiated, would effectively overrule or modify a state court decision.” (PL’s Reply Mem. 7). By contrast, Carver maintains that the notice it issued was proper, despite the state court’s opinion to the contrary. In any event, it argues that neither collateral estoppel nor the Rooker-Feldman doctrine are applicable because the issue of whether Carver mismanaged the loan was never raised in the state court action. (See Def.’s Reply Mem. 17-18). In other words, it argues that its performance under the Participation Agreement is conceptually distinct from whether its notice of default was defective, the issue upon which the state court ruled. Purchase Partners’s arguments on this issue are without merit. First, the Rooker-Feldman doctrine is expressly confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir.2005) (quoting Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517). Thus, to apply the doctrine, (1) “the federal-court plaintiff must have lost in state court”; (2) “the plaintiff must complain of injuries caused by a state-court judgment”; (3) “the plaintiff must invite district court review and rejection of that judgment”; and (4) “the state-court judgment must have been rendered before the district court proceedings commenced.” Id. (internal quotation marks and brackets omitted). Here, none of the first three conditions is satisfied. The defendant; not the plaintiff, lost in state court. And Carver is not complaining of injuries caused by the state-court judgment or inviting this Court to review that judgment; instead, it is defending itself against an allegation that it failed to act diligently and promptly. Accordingly, the Rooker-Feldman doctrine has no bearing here. Nor is Carver collaterally es-topped from defending itself against Purchase Partners’s allegations. The doctrine of collateral estoppel, also known as “issue preclusion,” bars a party and its privies “ ‘from relitigating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding,’ regardless of whether it is in the same cause of action.” In re Indu Craft Inc., No. 11 Civ. 5996(JMF), et al., 2012 WL 3070887, at *10 (S.D.N.Y. July 27, 2012) (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir.2002)). But “collateral estoppel is an equitable doctrine — not a matter of absolute right. Its invocation is influenced by considerations of fairness in the individual case.” PenneCom B.V. v. Merrill Lynch & Co., 372 F.3d 488, 493 (2d cir.2004). Further, where, as here, a plaintiff seeks to estop a defendant from relitigating an issue it lost against a different plaintiff in a previous action, the Supreme Court has held that district courts have “broad discretion” in deciding whether to apply collateral estoppel. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Applying that discretion here, the Court would decline to apply collateral estoppel even if the requirements for the doctrine were otherwise met. Carver, after all, chose to file a new foreclosure action instead of challenging the New York Supreme Court’s decision on appeal — reasonably calculating that such an approach would bring it, and Purchase Partners, relief more quickly. See id. at 330, 99 S.Ct. 645 (noting that it may be unfair to apply collateral estoppel where a defendant had little incentive to vigorously defend the issue in the first action). Moreover, Carver could not necessarily have foreseen that its failure to file an appeal would have preclusive effect in a subsequent action by Purchase Partners. See id. (holding that applying collateral estoppel against a defendant may be unfair, “particularly if future suits are not foreseeable”). At the same time, there is no basis to grant summary judgment to Carver on this claim either, as a reasonable jury could certainly find, first, that it failed to act in a reasonably prudent manner in issuing the allegedly defective notices and, thus, violated Section 3.6(b) of the Participation Agreement and, second, that the resulting delay in obtaining foreclosure and appointment of a rent receiver caused damage to Purchase Partners. Whether and to what extent Carver breached its duty of care or the terms of the Participation Agreement are material questions of fact for the jury to decide. Similarly, whether and to what extent Carver complied with its internal lending policy, and the bearing that has on its performance under the contract, are questions for the jury. The parties’ cross-motions for summary judgment on this issue must therefore be denied. d. Failure to Detect Initial Payment Defaults Finally, Purchase Partners contends that Carver breached the Participation Agreement by failing in a timely fashion to discover, notify Mariner’s Bank about, or act upon Shaker’s defaults on the loan. More specifically, Purchase Partners contends that Carver breached the standard of care set forth in the Agreement by failing to detect or address the first three payments by Shaker, which were either not made or made with checks that bounced. (PL’s Mem. Law 29-36). In addition, citing the deposition testimony of Charles Koehler, Executive Vice President of Carver in charge of defaulted loans and workouts between September 2006 and March 2008, it contends that there is some evidence that Shaker made no payments at all on the loan. (See PL’s Supplemental Submission 4). Carver disputes that Shaker failed to make any payment on the loan, pointing to roughly a dozen checks from All Star Management Group (a Nelkenbaum-owned entity that managed the property), only three of which were marked void or returned for insufficient funds. (See Def.’s Supplemental Submission 4). With respect to the initial payments, Carver argues that Purchase Partners’s claim fails because “Carver had the unilateral right and authority [under the Participation Agreement] to waive or extend Shaker’s performance with respect to any condition of the Loan.” (Def.’s Opp’n Mem. 8-9). It is true that Carver had the unilateral right to waive or extend Shaker’s time for performance of any condition of the loan, including payment. Specifically, Section 3.1 of the Participation Agreement gave Carver the full power and authority, in its sole discretion, as if it were the sole party in interest, to take or refrain from taking, any and all actions with respect to the administration of the Loan, including, without limitation, the right, power, and authority ... to waive or extend the time for performance of any of the conditions and covenants set forth therein.... (Agreement § 3.1). That authority is besides the point, however, because there is no evidence that Carver exercised it in this case. That is, waiver and extension of performance are intentional acts, requiring knowledge. Here, Carver did not realize that Shaker had defaulted on its initial payments until November 2008. It follows that Carver could not, logically, have waived or extended Shaker’s obligation to make those payments a year and a half earlier. Whether Carver should have detected the initial payment defaults sooner, and whether Purchase Partners suffered damages as a result, are fact questions for the jury. So, too, is the question of whether Shaker made any subsequent payments on the loan. Although Carver submitted an affidavit and documentation purporting to establish a number of interim payments from Shaker, including photocopies of roughly a dozen checks from All Star Management Group, the testimony of Koehler, a former Carver employee, puts the question of whether Shaker made any payments into some doubt. (Pl.’s Supplemental Submission 4). Given that testimony, there is some basis for Purchase Partners’s argument that Shaker made no payments on the loan and that the checks submitted by Carver were related to one of the other loans made by Carver to a Nelkenbaum-owned entity. (PL’s Supplemental Submission 8; Pincus Aff. Exs. 28, 29). Although these allegations are admittedly somewhat speculative, they are sufficient—in conjunction with the handling of the initial missed payments—to raise an issue of fact for the jury. Accordingly, the parties’ motions for summary judgment on this issue are both denied. B. Purchase Partners’s Claim for Gross Negligence (Count Four) In Count Four, Purchase Partners alleges that Carver was grossly negligent, and therefore liable in tort, for its mismanagement of the loan to Shaker. (See PL’s Opp’n Mem. 46). To state a claim for gross negligence under New York law, Purchase Partners must establish four elements: (1) the existence of a duty; (2) a breach of that duty; (3) “injury as a result thereof;” and (4) conduct that “evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing,” Farash v. Cont’l Airlines, Inc., 574 F.Supp.2d 356, 367-68 (S.D.N.Y.2008) (quoting AT & T v. City of N.Y., 83 F.3d 549, 556 (2d Cir.1996)). Significantly, the duty giving rise to a gross negligence claim must be independent of the duty arising from a contract. That is, a party cannot sustain a tort claim if it “does no more than assert violations of a duty which is identical to and indivisible from the contract obligations which have allegedly been breached.” Clarendon Nat’l Ins. Co. v. Health Plan Adm’rs, No. 08 Civ. 6279(GBD), 2009 WL 3053736, at *3 (S.D.N.Y. Sept. 24, 2009) (citing Metro. W. Asset Mgmt., No. 03 Civ. 5539(NRB), 2004 WL 1444868, at *9 (S.D.N.Y. June 25, 2004)). Applying these standards here, Purchase Partners’s claim fails because it has not established, or even really alleged, a duty that Carver had independent from its duty arising from the Participation Agreement. Instead, Purchase Partners puts the onus on the Court to assess whether a tort obligation is present by considering “the nature of the injury, the manner in which the injury occurred and the resulting harm.” (PL’s Opp’n Mem. 47 (quoting Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 583 N.Y.S.2d 957, 593 N.E.2d 1365, 1369 (1992))). These are, indeed, among the “guideposts” that the New York Court of Appeals has identified “for separating tort from contract claims.” Id. So, too, is the existence of a special relationship between the parties, as in the case of professionals, common carriers, and bailees, which “may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties. In these instances, it is policy, not the parties’ contract, that gives rise to a duty of due care.” Id. (citations omitted). Here, however, these guideposts point exclusively to a contract claim. First, the nature of Purchase Partners’s injury and the resulting harm caused by the alleged breach of Carver’s tort duty are identical to the injury and harm caused by the alleged breach of contract. Under both causes of action, Purchase Partners alleges loss of rental income, depreciation in the collateral, lost profits, and other consequential damages to be determined at trial. (Compare Compl. ¶ 40, with id. ¶ 50). Similarly, the manner in which the tort injuries allegedly occurred — that is, the grossly negligent behavior of which Purchase Partners complains — is identical to the behavior that grounds Purchase Partners’s breach of contract claim. Indeed, each of the six tort violations identified in Count Four of the Complaint is identical to one of the six breach of contract violations identified in Count Two. (Compare id. ¶¶ 34-39, with id. ¶ 49). Additionally, Purchase Partners has failed to identify a special relationship that, like the relationship between bailor and bailee, would generate an extracontractual obligation on the part of Carver. In fact, the Second Circuit has held that “[generally, banking relationships are not viewed as special relationships giving rise to a heightened duty of care.” Banque Arabe et Internationale D’Investissement v. Md. Nat’l Bank, 57 F.3d 146, 158 (2d Cir.1995) (emphasis added). In Banque Arabe, the Court explicitly noted that in “loan participation agreements, ... there is deemed to be no fiduciary relationship unless expressly and unequivocally created by contract.” Id. (finding that in “the case of arm’s length negotiations or transactions between sophisticated financial institutions, no extra-contractual duty of disclosure exists” (citing Banco Español de Crédito v. Sec. Pac. Nat’l Bank, 763 F.Supp. 36, 44 (S.D.N.Y.1991))). And far from “expressly and unequivocally” creating a fiduciary relationship, the Participation Agreement in this case expressly disclaims any sort of fiduciary or trust relationship. (Agreement § 5 (“The Lender neither is, nor shall be, a fiduciary to the Participant, and does not have a trust relationship to the Participant.”)). Alternatively, Purchase Partners maintains that it should be afforded the opportunity to establish a duty of care at trial “by virtue of the standard in the banking industry.” (Pl.’s Opp’n Mem. 47-48). Even with such an opportunity, however, Purchase Partners could not overcome the fact that the actions it complains of, and the damages resulting therefrom, are the very same actions and damages constituting its breach of contract claim. See N.Y. Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 662 N.E.2d 763, 770 (1995) (dismissing a tort claim as duplicative of a contract claim); see also, e.g., Sommer, 583 N.Y.S.2d 957, 593 N.E.2d at 1369 (“[W]here plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory.”). In any event, Purchase Partners has had ample time to identify the industry standard in question and thereby allege the proper duty of care. The mere assertion (in an opposition brief, no less) that such an extracontractual duty might exist is insufficient to warrant the denial of summary judgment. See Sommer, 79 N.Y.2d at 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 (explaining that “merely alleging that the breach of a contract duty arose from a lack of due care will not transform a simple breach of contract into a tort”). Based on this analysis, Purchase Partners’s gross negligence claim cannot be sustained. See, e.g., Cohen v. Avanade, Inc., 874 F.Supp.2d 315, 326 (S.D.N.Y. 2012) (explaining that “to prevail on a negligence claim, [Plaintiff] must demonstrate that Defendants breached a duty independent from their obligations under the contract”); Clarendon Nat’l Ins. Co., 2009 WL 3053736, at *4 (granting a motion to dismiss negligence claims where they arose “from the same alleged conduct that form[ed] the basis for the breach of contract claims,” where the damages alleged were duplicative of the breach of contract damages, and where plaintiff failed to cite an independent duty separate from the parties’ contractual agreement); Met. W. Asset Mgmt., 2004 WL 1444868, at *9 (dismissing a gross negligence claim because the plaintiff alleged no duty other than that in the indenture); cf. Anunziatta v. Orkin Exterminating Co., 180 F.Supp.2d 353, 358-59 (N.D.N.Y.2001) (finding that a pest control company had a duty of reasonable care giving rise to an action in tort). Thus, Carver’s motion for summary judgment with respect to the gross negligence cause of action (Count Four) is hereby granted. C. Purchase Partners’s Claim for Fraud (Count Five) The fifth claim in Purchase Partners’s Complaint is for fraud. (Compl. ¶¶ 52-60). Specifically, Purchase Partners contends that Carver made material misrepresentations to Mariner’s Bank about Shaker, Nelkenbaum, the loan, and Carver’s relationship with Shaker and Nelkenbaum, and that these misrepresentations induced Mariner’s Bank to enter into the Participation Agreement. (Compl. ¶¶ 53-55). In its proposed Amended Complaint, Purchase Partners elaborates on these allegations (in part to satisfy the heightened pleading standards in Rule 9(b) of the Federal Rule of Civil Procedure), identifying three specific categories of alleged misrepresentations and omissions: (1) Carver’s alleged failure to advise Mariner’s Bank that it was not competent to service the loan and that it intended to contract with DMI for that purpose; (2) Carver’s alleged misrepresentation to Mariner’s Bank that the entities owned by Nelkenbaum with whom Carver had preexisting loans were living up to their payment obligations; and (3) Carver’s alleged misrepresentation to Mariner’s Bank that the purchase price of the property was $7,600,000. (PL’s Opp’n Mem. 49-50; Proposed Am. Compl. ¶ 66 (Docket No. 83-2)). To state a claim of fraud under New York law, “a plaintiff must demonstrate: (1) a misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff.” Wynn v. AC Rochester, 273 F.3d 153, 156 (2d Cir.2001) (per curiam) (citing Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 646 N.Y.S.2d 76, 668 N.E.2d 1370,1373 (1996)); cf. Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 186-87 (2d Cir.2004) (stating the elements of fraud in the particular context of a claim for fraudulent misrepresentation). In general, “a fraud claim may not be used as a means of restating what is, in substance, a claim for breach of contract.” Wall v. CSX Transp., Inc., 471 F.3d 410, 416 (2d Cir.2006) (citation and internal quotation marks omitted). Thus, to maintain claims for both breach of contract and fraud, a plaintiff must “either (i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the con tract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages.” Bridgestone/Firestone v. Recovery Credit Seros., 98 F.3d 13, 20 (2d Cir.1996) (citations omitted). Measured against these standards, Purchase Partners’s fraud claim— whether amended or not — fails as a matter of law. First, as noted above, the Participation Agreement in this case expressly disclaimed any fiduciary or trust relationship between the parties. (Agreement § 5). Even more significant, by signing the Participation Agreement, Mariner’s Bank expressly represented that it had conducted its own independent analysis of the loan, the property, and the lender, and disaffirmed any reliance on Carver. Section 2.1(c) of the Agreement, for example, states that Participant has made, independently, and without reliance on Lender, and based on such documents as the Participant shall have deemed appropriate, its own credit analysis and/or investigation into the Premises, the Loan, the Security, and the financial condition, creditworthiness, affairs, status, and nature of the Borrower and has entered into this Agreement in reliance thereon and not upon any representation made by or on behalf of Lender as to any of the foregoing or any other matter. (Id. § 2.1(c) (emphases added)). Similarly, in Section 7.17 of the Participation Agreement, Mariner’s Bank “represented] and warranted]” as follows: (c) The Participant understands that the Lender makes no representation or warranty, express or implied, with respect to the Premises or any part of the facilities or other assets owned by the Borrower or the Security, or the suitability of the Premises for the Borrower’s purposes or needs. (e) The Participant has not relied upon the Lender’s determination to make the Loan for any purpose, or on the Lender’s evaluation of the Obligor’s financial condition, creditworthiness and competency, or on the integrity of the Obligor’s management, or of the suitability of the Obligor’s business or for any other purpose. (Id. § 7.17) (emphases added). In light of these provisions, Purchase Partners can neither establish that Carver owed Mariner’s Bank a duty independent of the contract or that Mariner’s Bank reasonably relied on the alleged misrepresentations and omissions. See, e.g., Mallis v. Bankers Trust Co., 615 F.2d 68, 81 (2d Cir.1980) (explaining that “[d]ecisions holding that reliance on misrepresentations was not justified are generally cases in which plaintiff was placed on guard or practically faced with the facts”); Warner Theatre Assocs. P’ship v. Metro. Life Ins. Co., 149 F.3d 134, 136 (2d Cir.1998) (holding that “[a] specific disclaimer [in an agreement] destroys the allegations in [a] plaintiffs complaint that the agreement was executed in reliance on ... contrary ... representations” (quoting Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 184 N.Y.S.2d 599, 157 N.E.2d 597, 599 (1959))). Purchase Partners contends that Carver had a duty to disclose despite these contractual provisions because it possessed “superior knowledge, not readily available to [Mariner’s Bank], and [knew] that [Mariner’s Bank was] acting on mistaken knowledge.” (Pl.’s Opp’n Mem. 61-62 (quoting Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, N.A., 731 F.2d 112, 123 (2d Cir.1984))). This contention fails, however, when viewed in light of Purchase Partners’s particular allegations of fraud. Purchase Partners alleges, first, that Carver misrepresented its ability to service the loan and its intention to outsource servicing of the loan to DMI. But the Participation Agreement explicitly provided that Carver retained the right to “sell or delegate servicing rights to any affiliate or third party deemed appropriate by [Carver].” (Agreement § 7.15). Further, Joseph Dubanowitz, Mariner’s Bank’s Senior Vice President and Chief Lending Officer, testified that neither he nor anyone at Mariner’s Bank asked Carver if it had the capacity to service the loan and that, at the time he signed the Participation Agreement, he was aware of the language in the agreement granting Carver the right to have a third party do so. (See Donohue Deck 2 Ex. LL, at 128-30, 132). In light of these facts, Purchase Partners cannot maintain a fraud claim based on the servicing of the loan. Nor is there as basis to maintain a fraud claim based on Purchase Partners’s other allegations — that Carver misrepresented the purchase price of the property and Nelkenbaum’s payment history on the other loans made by Carver. As noted, the Participation Agreement expressly provided that Carver made no warranty or representation as “to other assets owned by the Borrower” (Agreement § 7.17(c)), and that Mariner’s Bank did not rely “upon any representation made by or on behalf of’ Carver as to Shaker’s (and Nelkenbaum’s) “financial condition, creditworthiness, status ... or any other matter” (Agreement § 2.1(c)). In light of these provisions, Mariner’s Bank could have— and plainly should have — asked Nelkenbaum himself for documentation regarding the purchase price of the property and his loan repayment history. Put another way, if the purchase price or Nelkenbaum’s payment history on the other loans had been material to Mariner’s Bank decision to participate in the loan to Shaker — as Purchase Partners alleges now — then it should have investigated them with greater diligence than it did. Cf. Banque Arabe, 57 F.3d at 158 (holding that the plaintiff did not reasonably rely on representations of the defendant because it could have discovered the truth through the exercise of due diligence); Royal Am. Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011, 1016 (2d Cir.1989) (“Where the representation relates to matters that are not peculiarly within the other party’s knowledge and both parties have available the means of ascertaining the truth, New York courts have held that the complaining party should have discovered the facts and that any reliance under such circumstances therefore would be unjustifiable.”). Accordingly, Carver is entitled to summary judgment with respect to Purchase Partners’s fraud claim. And because the proposed amendment of the fraud claim does nothing to salvage it, Purchase Partners’s motion for leave to amend on that ground is denied. D. Purchase Partners’s Motion for Leave to Amend the Complaint Before turning to address Carver’s counterclaims, the Court pauses briefly to address the last component of Purchase Partners’s motion for leave to amend its Complaint — namely, its request for leave to add claims for negligent misrepresentation and grossly negligent misrepresentation. (Docket No. 127). In order to prove either claim under New York law, Purchase Partners would have to establish that “(1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.” Maverick Fund, L.D.C. v. Comverse Tech., Inc., 801 F.Supp.2d 41, 63 (E.D.N.Y.2011) (citing Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir.2000)). Given the Court’s conclusions above, it is plain that Purchase Partners could not establish the first element: the existence of a duty, as a result of a special relationship, to give correct information. (See, e.g., Agreement §§ 5, 7.17). It follows that amendment of the Complaint to add claims for negligent or grossly negligent misrepresentation would be futile. See, e.g., Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir.2002) (stating that, although leave to amend should be “freely given when justice so requires,” if “it appears that granting leave to amend is unlikely to be productive ... it is not an abuse of discretion to deny leave” (quoting Fed.R.Civ.P. 15(a) and Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (per curiam))); Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.2003) (“[I]t is well established that leave to amend a complaint need not be granted when amendment would be futile.”). E. Carver’s Counterclaims That brings the Court to Carver’s nine counterclaims. The counterclaims can be divided into three general categories: (1) claims involving Carver’s advances to Shaker; (2) claims involving the transfer of Mariner’s Bank’s interest in the Participation Agreement to Purchase Partners; and (3) requests for attorneys’ fees. With respect to the first category, Carver seeks money damages from Mariner’s Bank (Counterclaim 1) or, in the alternative, Purchase Partners (Counterclaim 8) for allegedly breaching the Participation Agreement by failing to reimburse Carver for Mariner’s Bank’s share of the advances Carver made on behalf of Shaker. With respect to the second category, Carver seeks (1) money damages from Mariner’s Bank (Counterclaim 2) for allegedly breaching the Participation Agreement by transferring its interest to Purchase Partners; (2) a declaratory judgment directed toward Mariner’s Bank (Counterclaim 3) and Purchase Partners (Counterclaim 6) that the transfer of the Participation Agreement to Purchase Partners is null and void; and (3) an injunction enjoining Mariner’s Bank (Counterclaim 4) and Purchase Partners (Counterclaim 7) from transferring their interests in the Participation Agreement. In the third category of counterclaims, Carver requests reasonable attorneys’ fees and costs from both Mariner’s Bank (Counterclaim 5) and Purchase Partners (Counterclaim 9). The Court will address each category of counterclaims in turn. a. Failure to Contribute to the Advances Carver’s first and eighth counterclaims relate to Mariner’s Bank’s and Purchase Partners’s failure to reimburse Carver for fifty percent of the advances it made to Shaker. (Answer ¶¶ 76-97, 133-39). In Counterclaim One, Carver seeks damages from Mariner’s Bank. In Counterclaim Eight, it seeks a declaratory judgment that Purchase Partners is required to pay its share of the advances in the event it is determined that Mariner’s Bank’s sale, transfer, or conveyance of its interest in the Participation Agreement to Purchase Partners is valid. Both parties move for summary judgment on these counterclaims. Significantly, there is no dispute that Mariner’s Bank (or Purchase Partners), as the Participant, was obligated to pay half of the advances. That is for good reason, as Section 3.8(a) of the Participation Agreement states in relevant part as follows: The Lender may, in its commercially reasonable discretion, make [advances for various reasons].... Upon the making of any such advance ... (an “Advance”) by the Lender, then each Partic ipant shall pay to the Lender an amount equal to the sum of: A) the amount of such Advance multiplied by [its share of the loan], plus B) interest ... unless such payment is received within five business days of written demand, in which event, interest will not be due. (Agreement § 3.8(a)). As Purchase Partners concedes, this provision “creates a contractual obligation on the part of the Participant to pay its share of any advances made by the Lender.” (Pl.’s Mem. Law 22). And although Purchase Partners raises some questions about the amount that Carver claims it advanced (see e.g., Transcript 33:11-34:4), there is no dispute that Carver advanced at least $500,000. (Id. 33:13-15). Instead, the parties’ dispute stems from the remainder of Section 3.8(a), which provides as follows: If any Participant fails to pay ... its Share of any such advance, then such Participant’s Share shall be correspondingly reduced (and the Shares of the Lender paying its respective share of such Advance correspondingly increased) on a proportionate basis. Thereupon, the Lender will issue an additional Participation Certificate reflecting the amount of the additional Advance. If Lender does not receive repayment from Participant of Participant’s Share of any Advance ..., the Lender shall receive interest on each Advance, accruing from the date such Advance was made until each Participant pays, to the Lender: 1) such Participant’s respective Share of such Advance, together with 2) interest on such Share of such Advance. (Agreement § 3.8(a)). Emphasizing the first part of this language, Purchase Partners contends that Carver’s sole remedy for Mariner’s Bank’s failure to pay its share of the advances is “to reduce the participant’s share on a proportionate basis” — and that, because the Agreement provides this as a self-executing remedy, the failure to pay is not a breach, let alone a material breach. (PL’s Mem. Law 23). Not surprisingly, Carver stresses the latter part of the language quoted above, and asserts that it also had the option of suing Mariner’s Bank (and now Purchase Partners) for its share of the advances plus interest. (Def.’s Opp’n Mem. 23-24). The Court is not in a position to choose between these competing interpretations of the contractual language, which confusingly states that two different results “shall” follow from the Participant’s failure to pay its share of the advances. In fact, as the Court posited at oral argument, there is even a third plausible interpretation of the relevant language, according to which, upon non-payment by the Participant, the Lender readjusts the Participant’s share in the loan and interest begins to accrue until such time as the advances are repaid. In light of the inherent ambiguity in the governing provision of the Participation Agreement, both parties’ motions for summary judgment on this issue must be denied. See Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091, 1094 (2d Cir.1993) (“In a contract dispute a motion for summary judgment may be granted only where the agreement’s language is unambiguous and conveys a definite meaning.”). But see Mellon Bank, N.A. v. United Bank Corp., 31 F.3d 113, 116 (2d Cir.1994) (explaining that a court can grant summary judgment on an ambiguous contract if there is no extrinsic evidence). b. Transfer of Mariner’s Bank’s Interest to Purchase Partners Next, Carver moves for summary judgment on its second, third, fourth, sixth, and seventh counterclaims, which allege that Mariner’s Bank breached the Participation Agreement by transferring its interest to Purchase Partners without Carver’s consent. (Answer ¶¶ 98-111, 123-132). Carver seeks money damages from both Mariner’s Bank and Purchase Partners, and it urges the Court to declare the transfer null and void. (Id. ¶¶ 98-109, 123-29). In addition, Carver seeks to enjoin Mariner’s Bank and Purchase Partners from transferring their interests in the future. (Id. ¶¶ 110-111,130-32). On its face, the Participation Agreement certainly barred Mariner’s Bank from transferring its interest in the loan to Purchase Partners without Carver’s consent. It states that “neither the Participant nor its legal representatives nor its successors in interest by operation of law or otherwise may assign or transfer all or any part of its Interest without the prior written consent of the Lender.” (Agreement § 7.15 (emphasis added)). Purchase Partners admits, as it must, that Mariner’s Bank transferred its interest in the loan. (See PL’s Opp’n Mem. 18). And it implicitly admits that it failed to obtain Carver’s consent as Section 7.15 contemplated. (Bee id. (noting that Mariner’s Bank gave Carver notice of its intent to sell its participation interest, but not alleging that it obtained mitten consent)). Nevertheless, it argues that Carver is not entitled to summary judgment on the counterclaims relating to this transfer because there are issues of fact as to whether Mariner’s Bank was relieved of its contractual obligations due to Carver’s material breaches of the Participation Agreement. (PL’s Opp’n Mem. 65). Putting aside the fact that whether Carver breached the Participation Agreement is a question for trial, this argument is without merit. Under New York’s doctrine of election of remedies, if a party to an agreement believes that the agreement has been breached, it “must choose between terminating the contract and continuing performance. If [the] party chooses to continue performance, it must give notice of breach to the other side, or it waives its rights to sue the breaching party.” Hallinan v. Republic Bank & Trust Co., 519 F.Supp.2d 340, 351 (S.D.N.Y.2007) (quoting RBFC One, LLC v. Zeeks, Inc., 367 F.Supp.2d 604, 611 (S.D.N.Y.2005), aff'd, 171 Fed.Appx. 902 (2d Cir.2006)). If timely notice is given, the non-breaching party retains its right to sue for the alleged breach, but “by choosing not to terminate the contract at the time of the breach, the nonbreaching party ‘surrenders [its] right to terminate later based on that breach.’ ” Albany Med. Coll. v. Lobel, 296 A.D.2d 701, 745 N.Y.S.2d 250, 252 (3d Dep’t 2002) (quoting AM Cosmetics Inc. v. Solomon, 67 F.Supp.2d 312, 317 (S.D.N.Y.1999)). Here, there is no allegation or indication that Mariner’s Bank terminated the Participation Agreement upon Carver’s alleged breach or breaches. In fact, as late as November 18, 2009, more than a month and a half after Mariner’s Bank and Purchase Partners entered into the loan purchase agreement, Mariner’s Bank sought Carver’s consent to sell its participation interest in the loan, which had already occurred, subject only to an option to put the participation interest back to Mariner’s Bank should Carver not grant its consent. (See Donohue Decl. 2 Ex. II). Simply put, there would have been no reason for Mariner’s Bank to seek Carver’s consent if it did not consider itself bound by the contract as of that date. The chief, if not only, piece of evidence Purchase Partners proffers to establish that Mariner’s Bank gave notice of breach or notice of termination is an undated letter in which Mariner’s Bank stated that it was not prepared to pay its share of the advances “without a full accounting.” (Pincus Aff. Ex. 38). But that letter actually cuts against Purchase Partners’s argument, as it plainly contemplated that the contractual relationship between Mariner’s Bank and Carver was ongoing. For example, Mariner’s Bank requested confirmation that the advances were “capitalized, not expensed,” and that Carver would issue the appropriate certificate of participation “if/when” it reimbursed Carver. (Id.). Even more significant, Mariner’s Bank requested notification of any future advances “as called for by the ... Participation Agreement” so that it could “administer this loan in a more efficient manner on [its] end, which should benefit Carver as well as Mariner’s [Bank].” (Id.). In short, even if Carver did breach the Participation Agreement—an issue that requires trial—Mariner’s Bank was not entitled to breach Section 7.15 of the Agreement itself because it elected to continue performing under, rather than terminate, the contract. The remedy for Mariner’s Bank’s clear breach, however, is not—as Carver urges—to “declare that the transfer is null, void and unenforceable, that Purchase Partners has no interest in the Participation Agreement and [to] restore Mariner’s [Bank] as the participant.” (Def.’s Supplemental Submission at 2). That is because, “[w]ith limited exception, contractual provisions prohibiting assignments are treated as personal covenants. An assignment made in violation of a personal covenant prohibiting assignments is enforceable, although it does give rise to a damages action against the assignor.” Pro Cardiaco Pronto Socorro Cardiológica S.A. v. Trussell, 863 F.Supp. 135, 137 (S.D.N.Y.1994) (citing Citibank, N.A. v. Tele/Resources, Inc., 724 F.2d 266, 268 (2d Cir.1983)). The limited exception is when the relevant provision of the contract contains “clear, definite, and appropriate” language declaring an assignment invalid. Sullivan v. Int’l Fid. Ins. Co., 96 A.D.2d 555, 465 N.Y.S.2d 235, 237 (2d Dept 1983). In other words, “assignments are enforceable unless expressly made void, and not ... void unless specified otherwise.” Trussell, 863 F.Supp. at 138 (citing Beige v. Aetna Cas. & Sur. Co., 39 A.D.2d 295, 334 N.Y.S.2d 185, 187 (4th Dep’t 1972)). Here, Section 7.15 of the Participation Agreement plainly prohibited transfers and assignments without the written consent of Carver, but it does not state—let alone in “clear, definite, and appropriate” language, Sullivan, 465 N.Y.S.2d at 237—that any such transfer or assignment would be invalid or void. The transfer is therefore valid, and Carver’s remedy for Mariner’s Bank’s breach, if any, is an award of damages. See Trussell, 863 F.Supp. at 137-38 (collecting cases). Accordingly, Carver’s motion for summary judgment on its second counterclaim—seeking money damages for breach of the non-transfer provision of the Participation Agreement—is granted as to liability. On the record before the Court, it is not clear whether Carver suffered any damages as a result of the transfer, but Purchase Partners did not seek dismissal of Carver’s second counterclaim on that basis so the Court leaves the issue of damages resulting from the transfer, if any, for trial. Given the Court’s ruling, there is no legal basis for Carver’s third, fourth, sixth, and seventh counterclaims—seeking declaratory judgments that the transfer is null and void, and injunctive relief barring future transfers. Carver’s motion for summary judgment on these counterclaims is therefore denied and the counterclaims are dismissed. See, e.g., First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 114-15 (2d Cir.1999) (“Where it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court, a sua sponte grant of summary judgment against that party may be appropriate if those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law.” (quoting Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir.1996) (noting that “a district court’s independent raising and granting of summary judgment in favor of the nonmoving party is an accepted method of expediting litigation (internal quotation marks and citation omitted”)))). c. Attorneys’ Fees Finally, Carver moves for summary judgment on its fifth and ninth counterclaims for attorneys’ fees. (Defs Mem. Law 24-25). (Although Purchase Partners also seeks attorneys’ fees (Complaint ¶¶ 61-63), it does not move for summary judgment on that claim.) Section 7.9 of the Participation Agreement states, in relevant part, that if an action is brought to enforce the agreement, “the prevailing party ... shall be entitled to recover its costs and expenses, including, without limitation, reasonable attorneys [sic] fees.” (Agreement § 7.9). In light of the Court’s rulings (most notably, its denial of summary judgment on the bulk of Purchase Partners’s contract claim), however, it is premature to declare either party “the prevailing party” within the meaning of this provision. Accordingly, Carver’s motion for summary judgment on its claim for attorneys’ fees is denied. CONCLUSION The net result of the foregoing rulings is that, of the six counts alleged in the Complaint, only Counts Two (Breach of Contract) and Six (Attorneys’ Fees) survive. Carver’s motion for summary judgment with respect to Count One (Specific Performance), Count Three (Breach of the Implied Covenant of Good Faith and Fair Dealing), Count Four (Gross Negligence), and Count Five (Fraud) is GRANTED, and those counts are hereby DISMISSED. The surviving claim, Count Two (Breach of Contract), is limited in that Carver’s motion for summary judgment is GRANTED as to the breaches Purchase Partners claims were caused by Carver’s alleged failure to obtain consent before pursuing a civil action and its decision to pursue a civil action in the first instance. Carver’s motion on Count Two is otherwise DENIED, as is the entirety of Purchase Partners’s summary judgment motion on Count Two. As to the counterclaims, the parties’ cross-motions for summary judgment are DENIED with respect to Carver’s first and eighth counterclaims (Contribution to Advances), and Carver’s motion is DENIED with respect to its fifth and ninth counterclaims (Attorneys’ Fees). The Court GRANTS Carver summary judgment, however, as to liability on its second counterclaim (Breach of Contract Due to Transfer), but in so doing it DISMISSES Carver’s third, fourth, sixth, and seventh counterclaims (Declarative and Injunctive Relief Regarding the Transfer). The Court GRANTS Purchase Partners’s motion for summary judgment in favor of Paul Schmidt on all counterclaims asserted against him; those counterclaims are hereby DISMISSED. Finally, Purchase Partners’s March 21, 2012, motion for leave to amend the complaint is DENIED as moot, and its September 7, 2012, superseding motion to amend the complaint is GRANTED IN PART and DENIED IN PART. No later than January 11, 2013, Purchase Partners may amend its Complaint to add allegations regarding Carver’s handling of the so-called initial payment defaults, but it does not have leave to amend for any other reason, such as adding claims for negligent misrepresentation or gross negligent representation or revising its fraud claim. The Clerk of Court is ordered to dismiss Schmidt as a party and to close the motions addressed in this Order (Docket Nos. 63, 76, 80, 83, 84,127). SO ORDERED. . It is not clear whether Carver disputes Purchase Partners’s representation of DMI's role, the means through which Carver made the initial loan payments on behalf of Shaker, or both. But Carver does admit that it discovered that the checks were missing “long after Carver transferred the initial three payments to DMI” (Def.’s 56.1 Response No. 12), and that Mariner's Bank had received its share of those payments (Pl.’s 56.1 Resp. No. 83). . For ease of reference, the Court will hereafter refer to the counterclaims and the third-party claims as "counterclaims” collectively. .As a threshold matter, Purchase Partners asserts that Carver's motion for summary judgment should be disregarded because it is founded on "incompetent evidence.” (Pl.'s Opp’n Mem. 22-29). This argument is without merit, however, as courts routinely “allow attorneys to submit declarations in support of a motion for summary judgment as a vehicle to introduce evidence produced in discovery into the record in a cohesive manner,” Genon Mid-Atlantic, LLC v. Stone & Webster, Inc., No. 11 Civ. 1299(HB), 2012 WL 1372150, at *2 (S.D.N.Y. Apr. 18, 2012), and "a corporate representative may testify and submit affidavits based on knowledge gained from a review of corporate books and records,” Hanison-Hoge Indus., Inc. v. Panther Martin S.R.L., 05-CV-2851 (JFB)(ETB), 2008 WL 905892, at *28 (E.D.N.Y. Mar. 31, 2008). That is precisely what Carver submitted here: the affidavit of an attorney, Antonia M. Donahue, Esq., which was primarily used to introduce evidence produced in discovery; and the affidavit of a corporate representative, Augustus Costaldo, which was based on a review of corporate books and records. . The Complaint mistakenly refers to Section 3.5(a)(vi), which relates to the settlement of insurance claims. . Carver contends that Purchase Partners's claim regarding the alleged failure to detect the initial payment defaults is not properly pleaded in the operative Complaint. (Def.’s Opp’n Mem. 5-7). Purchase Partners seeks leave to file an Amended Complaint in part to address that arguable deficiency. (Mem. Law Supp. Mot. To File Am. Compl. 6-15 (Docket No. 129)). Although Purchase Partners could have, and should have, moved to amend the Complaint on this score earlier, Carver has identified no prejudice that would arise from allowing the amendment. Accordingly, the Court grants Purchase Partners leave to amend in this respect and addresses the claim, as amended, in the text below. The remainder of Purchase Partners’s motion for leave to amend is addressed separately below. . Carver makes one other argument in reference to Purchase Partners's contract claims generally: that summary judgment should be granted because Purchase Partners has failed to show non-speculative damages arising from the alleged breaches. (Def.'s Mem. Law 14-15). As the discussion below makes clear, however, Purchase Partners has adequately proved that, if Carver breached the Participation Agreement, it suffered some pecuniary damage. The precise measure of such damages can be determined at trial. See, e.g., Tenor Opportunity Master Fund, Ltd. v. Oxygen Bio therapeutics, Inc., No. 11 Civ. 06067(KBF), 2012 WL 2849384, at *5 (S.D.N.Y. July 11, 2012) ("So long as it is clear that the plaintiff has sustained some damages ... summary judgment may be granted ... with a damages determination to await trial.” (citing U.S. Bank Nat’l Ass’n v. SW Airlines Co., No. 07 Civ. 11131(DLC), 2009 WL 2163594, at *12 (S.D.N.Y. July 20, 2009))). . For convenience, the Court addresses the fraud claim in the operative Complaint and the fraud claim in the proposed Amended Complaint together. . This interpretation is not without its own problems, however. If, for example, the Participant ultimately repaid its share of the advances plus interest, thereby making the Lender whole for the initial non-payment, the Participant would arguably be entitled to the portion of proceeds from the loan that it did not get during the time its proportionate share was reduced.

PER CURIAM. Leroy Bush seeks to appeal the district court’s order denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.2000). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. See United States v. Bush, Nos. CR-99-118; CA-00-4009-1-19 (D.S.C. Feb. 16, 2001). 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.

MEMORANDUM OPINION AND ORDER JOHN R. TUNHEIM, District Judge. This case is one of a series of nearly thirty cases filed in this district where the plaintiffs are represented by William B. Butler — in each, the plaintiffs challenge the validity of their mortgages in an attempt to prevent foreclosure. The matter is before the Court on Plaintiffs’ motion to remand, Plaintiffs’ motion to amend their Complaint, and motions to dismiss brought by Defendants Bank of America, N.A.; Bac Home Loans Servicing, LP; Mortgage Electronic Registration Systems, Inc.; Merscorp, Inc.; Wells Fargo Bank, N.A.; The Bank Of New York Mellon (collectively “Foreclosing Defendants”); and Peterson, Fram & Bergman, P.A (“Peterson”). On July 3, 2012, United States Magistrate Judge Tony N. Leung issued a Report and Recommendation (“R & R”) recommending that the Court deny Plaintiffs’ motions to amend and to remand, and grant the Defendants’ motions to dismiss. (Docket No. 68) Plaintiffs made timely objections to the R & R. Having conducted a de novo review of those portions of the R & R to which Plaintiffs object, see 28 U.S.C. § 636(b)(1)(C), D. Minn. L.R. 72.2(b), and having carefully reviewed the submitted materials, the Court overrules the plaintiffs’ objections and adopts in part the report and adopts in full the recommendation of the R & R. Also before the Court is Plaintiffs’ motion to certify to the Minnesota Supreme Court the question of whether an eviction proceeding is in rem under Minnesota law. Because an eviction proceeding under Minnesota law is in personam, Plaintiffs’ motion to certify question will be denied. BACKGROUND Plaintiffs brought this action in Ramsey County District Court on October 3, 2011. Plaintiffs allege that “Defendants assert invalid and voidable Mortgages” against them. (Compl. ¶ 18, Oct. 3, 2011, Docket No. 1.) Plaintiffs claim that Peterson is “Defendants’ agent for purposes of enforcing falsely declared defaults.... ” (Id. ¶ 16.) Plaintiffs originally brought thirteen claims for relief. Defendants re moved the case to this Court on November 2, 2011, and Peterson and the Foreclosing Defendants separately moved to dismiss. After Defendants filed their motions, Plaintiffs filed a motion to remand (Docket No. 23) and a motion to amend their Complaint (Docket No. 31). Plaintiffs seek to replace all of the previously pled claims with a quiet title claim and declaratory judgment claims against Foreclosing Defendants and a slander-of-tile claim against all Defendants. (See Proposed Amended Complaint, Mar. 2, 2012, Docket No. 31.) Shortly before the hearing date in this matter, another court in this district issued its order in another case in which Butler represented the plaintiffs, Welk v. GMAC Mortg., LLC, 850 F.Supp.2d 976 (D.Minn 2012), and it dismissed the bulk of the plaintiffs’ claims. When directed by the Court to file supplemental briefing addressing the effect of Welk, Plaintiffs conceded that their original Complaint is almost identical to the one at issue in Welk. (See PL’s Supp. Mem. at 3, May 4, 2012, Docket No. 47.) Plaintiffs object to the R & R’s conclusion that this Court has subject matter jurisdiction because, they maintain, the Minnesota state courts had jurisdiction over the res of at least one plaintiffs property. as the result of a pending eviction action. Plaintiffs also move to certify the question of whether an eviction action is in rem, arguing that if an eviction action is in rem, this Court would lack jurisdiction under prior exclusive jurisdiction doctrine. Plaintiffs further object to this Court’s exercise of jurisdiction because they claim the R & R incorrectly concluded that Peterson was fraudulently joined (and therefore Plaintiffs’ remand motion should be denied and Peterson’s motion to dismiss granted). Finally, Plaintiffs object to the R & R’s recommendation to grant the Foreclosing Defendants’ motion to dismiss because Plaintiffs claim the R & R erred in its determination that their amended claims are based on a show-me-the-note theory. ANALYSIS I. SUBJECT MATTER JURISDICTION A. Prior Exclusive Jurisdiction The Plaintiffs argue that this Court lacks jurisdiction because of the doctrine of prior exclusive jurisdiction. Under the doctrine of prior exclusive jurisdiction, “when one court is exercising in rem jurisdiction over a res, a second court will not' assume in rem jurisdiction over the same res.” Marshall v. Marshall, 547 U.S. 293, 311, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006). This Court joins the other courts in this district that have held a state eviction action in Minnesota to be an in personam action. Blaylock v. Wells Fargo Bank, N.A., No. 12-693, 2012 WL 2529197, at *7 (D.Minn. June 29, 2012); Pope v. Wells Fargo Bank, N.A., No. 11-2496, 2012 WL 1886493, *5 (D.Minn. May 23, 2012); Olson v. Bank of Am., N.A., No. 11-3710, 2012 WL 1660615, *3 (D.Minn. Apr. 19, 2012). The doctrine, therefore, is inapplicable, and the Court has jurisdiction over this case. The R & R also found that the prior exclusive jurisdiction doctrine is inapplicable here. (See R & R at 22-24.) Plaintiffs object to the R & R’s conclusion that a state eviction action is not a concurrent proceeding for the purposes of the prior exclusive jurisdiction doctrine. Because the Court finds that a state eviction action is in personam, whether it is a concurrent action is moot, and Plaintiffs’ objections will be overruled. Plaintiffs also move this Court to certify the question of whether an eviction proceeding is in rem to the Minnesota Supreme Court. “Whether a federal court should certify a question to a state court is a matter of discretion.” Johnson v. John Deere Co., 935 F.2d 151,153 (8th Cir.1991). The Court finds that the character of an eviction action has been long-settled under Minnesota law. See, e.g., Curran v. Nash, 224 Minn. 571, 29 N.W.2d 436, 438 (1947); Whalley v. Eldridge, 24 Minn. 358, 361 (1877) (“But an action to foreclose is not an action in rem. It is true the action has specific property for its subject or object. So has the action of ejectment.... But this does not make them actions in rem.”). Because the issue in this case is not close enough to justify certification, Plaintiffs’ motion to certify will be denied. B. Fraudulent Joinder Plaintiffs further object to this Court’s exercise of jurisdiction because they claim the R & R incorrectly concluded that Peterson was fraudulently joined. In general, for a removed action, complete diversity must exist when the state complaint and the petition for removal are filed. See Knudson v. Sys. Painters, Inc., 634 F.3d 968, 975 (8th Cir.2011). Application of this rule here would mean the Court did not have jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) because at the time of filing and removal, Peterson’s citizenship destroyed diversity. The fraudulentjoinder exception, however, prevents a plaintiff from defeating a defendant’s right of removal by fraudulently joining a plaintiff. Knudson, 634 F.3d at 976. “[T]o prove that a plaintiff fraudulently joined a diversity-destroying defendant ... a defendant seeking removal [must] prove that the plaintiffs claim against the diversity-destroying defendant has ‘no reasonable basis in fact and law.’ ” Id. at 977 (citation omitted). “Fraudulent joinder exists if, on the face of plaintiffs state court pleadings, no cause of action lies against the resident defendant.” Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.1983) (emphasis added). The R & R concluded that in their original Complaint Plaintiffs failed to state a cause of action against Peterson because each claim was precluded by applicable state precedent, see Filia v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir.2003), and Plaintiffs did not specifically object to this determination except for the slander of title claim. The Court concludes that Plaintiffs’ slander of title claim against Peterson is futile because it is premised on a show-me-the-note theory. See Blaylock, 2012 WL 2529197, at *6 (noting deficiencies in a similar slander of title claim); see also Dunbar, 853 F.Supp.2d at 847-48; Karnatcheva v. JPMorgan Chase Bank, N.A., 871 F.Supp.2d 834, 840-41 (D.Minn.2012). Because all claims against Peterson have no reasonable basis in fact or law, the Court concludes that Peterson was fraudulently joined. Without Peterson — whose citizenship may be disregarded — the Court has diversity jurisdiction over this action pursuant to § 1332. Because jurisdiction is proper, Plaintiffs’ remand motion will be denied. II. MOTIONS TO DISMISS A. Standard of Review Reviewing a complaint under a Rule 12(b)(6) motion to dismiss, the Court considers all facts alleged in the complaint as true to determine if the complaint states a “claim to relief that is plausible on its face.” See, e.g., Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). To survive a motion to dismiss, a complaint must provide more than “ ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 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. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility,” and therefore must be dismissed. Id. (internal quotation marks omitted). Finally, Rule 12(b)(6) “authorizes a court to dismiss a claim on the basis of a dispositive issue of law.” Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). B. Defendants’ Motion to Dismiss Defendants move to dismiss all of Plaintiffs’ claims against them because Plaintiffs do not state a claim that is plausible on its face. The R & R recommended granting both motions. Plaintiffs specifically object that they have pled a viable slander of title claim against Peterson and quiet title claims against the Foreclosing Defendants. As noted, supra, Plaintiffs have not pled a viable slander of title claim against Peterson, and so Peterson’s motion to dismiss will be granted. Plaintiffs argue that their quiet title claim is adequately pled (because they have pled possession by the plaintiff and a claim adverse to him by the defendants) and is not dependent on a show-me-the-note theory. But Plaintiffs’ claim {see Compl. ¶¶ 58-60) is nothing more than a restatement of the claim that a mortgagee must hold the note for the mortgage to be valid or — to the extent Plaintiffs list reasons the mortgages might be invalid (Compl. ¶ 60) — an unsupported “ ‘shot in the dark’ allegation!)]” See Blaylock, 2012 WL 2529197, at *5; Robinson v. Bank of Am., N.A., No. 11-2284, 2012 WL 2885128, at *9 n. 11 (D.Minn. May 31, 2012) (“Plaintiffs’ assertion that they have stated a claim for quiet title merely by alleging that they are in possession and that the foreclosing party does not have possession of the promissory note or is not entitled to enforce the note is just as frivolous as any other claim that is premised on the show-me-the-note theory.”) (internal quotation marks omitted), report and recommendation adopted, 2012 WL 2885477 (D.Minn. July 13, 2012). The Court adopts the R & R’s analysis (at 26-28) on this point, and the Foreclosing Defendants’ motion to dismiss will be granted. III. PLAINTIFFS’ MOTION TO AMEND The Court finds that the Plaintiffs’ motion to amend should be denied because it is brought in bad faith. Rule 15 allows a party to amend with the Court’s consent, Fed.R.Civ.P. 15(a), and a “court abuses its discretion when it denies a motion to amend a complaint unless there exists ... bad faith ... or futility of amendment.” Popoalii v. Corr. Med. Sens., 512 F.3d 488, 497 (8th Cir.2008). First, Plaintiffs attempt to use their Amended Complaint to state entirely new theories of liability — a practice that is consistent with their attempt to prolong this and related cases as long as possible. Second, to the extent Plaintiffs contend that they needed to amend in order to comply with the holdings in Jackson and Stein, the Court is nonplussed. Plaintiffs are represented by the same counsel — Butler — who represented appellants in Stein v. Chase Home Fin., LLC, 662 F.3d 976, 980 (8th Cir.2011). Given Butler’s experience with this Court, the likely futility of his proposed amendments (discussed in the R & R), and the Court’s inability to identify a good faith reason for the amendment, the Court refuses to needlessly prolong this litigation. Plaintiffs’ motion to amend will be denied. ORDER Based on the foregoing, and all the files, records, and proceedings herein, the Court OVERRULES the plaintiffs’ objections [Docket No. 69] and ADOPTS as modified above the Report and Recommendation of the Magistrate Judge dated July 3, 2012 [Docket No. 68]. Accordingly, IT IS HEREBY ORDERED that: 1. Peterson, Fram & Bergman, P.A.’s Motion to Dismiss [Docket No. 7] is GRANTED, and all claims against them are DISMISSED WITH PREJUDICE. 2. Defendants Bank of America, N.A.; Bac Home Loans Servicing, LP; Mortgage Electronic Registration Systems, Inc.; Merseorp, Inc.; Wells Fargo Bank, N.A.; and The Bank Of New York Mellon’s Motion to Dismiss [Docket No. 12] is GRANTED, and all claims against them are DISMISSED WITH PREJUDICE. 3. Plaintiffs’ Motion to Remand [Docket No. 23] is DENIED. 4. Plaintiffs’ Motion to Amend [Docket No. 31] is DENIED. 5. Peterson, Fram & Bergman, P.A.’s Motion for Joinder in Supplemental Briefing Regarding Multiple Pending Motions [Docket No. 44] is GRANTED. 6. Peterson, Fram & Bergman, P.A.’s Motion for Joinder in Bank Defendants’ Motion to Certify Question [Docket No. 67] is GRANTED. 7. Peterson, Fram & Bergman, P.A.’s Motion for Joinder in Bank Defendants’ Response to Objections [Docket No. 72] is GRANTED. IT IS HEREBY FURTHER ORDERED that Plaintiffs’ Motion to Certify Question [Docket No. 50] is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. REPORT & RECOMMENDATION TONY N. LEUNG, United States Magistrate Judge. I. INTRODUCTION This matter is before the Court, United States Magistrate Judge Tony N. Leung, on the following motions: (1) Defendant Peterson, Fram & Bergman, P.A.’s Motion to Dismiss (Docket No. 7); (2) Defendants Bank of America, N.A., BAC Home Loans Servicing, LP, Mortgage Electronic Registration Systems, Inc., Merseorp, Inc., Wells Fargo Bank, N.A., and The Bank of New York Mellon’s Motion to Dismiss the Complaint (Docket No. 12) (hereinafter “Foreclosing Defendants’ Motion to Dismiss”); (3) Plaintiffs’ Motion to Remand (Docket No. 23); (4) Plaintiffs’ Motion to Amend (Docket No. 31); and (5) Defendant Peterson, Fram & Bergman’s Joinder in Supplemental Briefing Regarding Multiple Pending Motions by Bank of America, N.A., BAC Home Loans Servicing, LP, Mortgage Electronic Registration Sys terns, Inc., Merscorp, Inc., Wells Fargo Bank N.A. and The Bank of New York Mellon F/K/A the Bank of New York (Docket No. 44) (hereinafter “Defendant Law Firm’s Briefing Motion”). The dispositive motions were referred to the undersigned magistrate judge for report and recommendation to the district court under 28 U.S.C. § 636 and Local Rule 72.2(b). See Order, (D. Minn. Dec. 22, 2011) (Docket No. 19). A hearing was held on the motions on May 31, 2012. William B. Butler appeared on behalf of Plaintiffs. Thomas Heffron appeared on behalf of Foreclosing Defendants. Jared M. Goerlitz appeared on behalf of Peterson, Fram & Bergman, P.A. (“Defendant Law Firm”). Because these motions are interrelated, this Court has addressed them all in this Report and Recommendation. For the reasons set forth herein, IT IS HEREBY RECOMMENDED as follows: (1) Defendant Peterson, Fram & Bergman, P.A.’s Motion to Dismiss (Docket No. 7) be GRANTED; (2) Foreclosing Defendants’ Motion to Dismiss (Docket No. 12) be GRANTED; (3) Plaintiffs’ Motion to Remand (Docket No. 23) be DENIED; (4) Plaintiffs’ Motion to Amend (Docket No. 31) be DENIED; and (5) Defendant Law Firm’s Briefing Motion (Docket No. 44) be GRANTED. II. BACKGROUND A. Original Complaint Plaintiffs — who are all Minnesota residents — allege that they executed promissory notes and mortgages in favor of certain Foreclosing Defendants for the purchase of real property located in the State of Minnesota. It is undisputed that the Foreclosing Defendants — i.e., Bank of America, N.A.; BAC Home Loan Servicing LP; Mortgage Electronic Registration Systems, Inc. (MERS); MERSCORP, Inc.; Wells Fargo Bank, N.A.; and The Bank of New York Mellon — are neither incorporated nor headquartered in Minnesota; thus, they are diverse from all Plaintiffs for the purposes of diversity of citizenship jurisdiction. Compl. at ¶¶ 9-14, Oct. 3, 2011 (Docket No. 1). Defendant Law Firm is a Minnesota professional association. Id. at ¶ 16. The crux of Plaintiffs’ Complaint is that Foreclosing Defendants did not have the right to initiate foreclosure proceedings because Foreclosing Defendants do not possess the promissory notes and Foreclosing Defendants are not entitled to en force the promissory notes. Compl. at ¶¶ 18-41. Plaintiffs allege that the promissory notes “were securitized and sold ... into a ‘pooling and serving agreement’” and the rights under the promissory notes were sold to third-party purchasers of mortgage-back securities. Compl. at ¶ 32. This sort of allegation is colloquially termed a “show me the note” claim, in which foreclosures are challenged when the original paperwork evidencing a note and mortgage has been lost due to the widespread practice of reselling and bundling mortgages. A “show me the note” plaintiff ... alleges a foreclosure is invalid unless the foreclosing entity produces the original note.[ ] Stein v. Chase Home Fin., LLG, 662 F.3d 976, 978 (8th Cir.2011). Plaintiffs further allege that, because Foreclosing Defendants did not have a right to foreclosure, Defendant Law Firm wrongfully represented the status of the Foreclosing Defendants’ rights in foreclosure by advertisement proceedings. Id. at ¶ 16. Based upon these allegations, Plaintiffs assert 13 separate claims for relief. Plaintiffs assert the following claims against all Defendants: slander of title (IV), conversion (V), civil conspiracy (VII), negligent misrepresentation (X), and equitable estoppel (XII). Plaintiffs assert the following claims against Foreclosing Defendants: quiet title (I), “Defendants are not real parties in interest” (II), “Lack of Legal Standing to Foreclose” (III), unjust enrichment (VT), breach of fiduciary duty (VIII), fraud (IX), and accounting (XIII). Plaintiffs assert a claim of fraud (“XIV [sic]”) against Defendant Law Firm. B. Procedural Posture 1. Motion Practice before this Court Plaintiffs commenced this action in Ramsey County District Court in October 2011. On November 2, 2011, this matter was removed to the United State District Court for the District of Minnesota. Thereafter, Defendant Law Firm filed its Motion to Dismiss, arguing that it was fraudulently joined as a party. Foreclosing Defendants filed their Motion to Dismiss, arguing Plaintiffs’ lack standing to bring their claims; the Complaint does not satisfy the requirements of Fed.R.Civ.P. 8; and the Complaint fails to state claims upon which relief can be granted. Plaintiffs oppose Defendants’ motions. See generally, Pl.’s Mem. Dec. 19, 2011 (Docket No. 17); PL’s Mem. Dec. 22, 2011 (Docket No. 20). Plaintiffs also filed a Motion to Remand, arguing “the Court does not have subject matter jurisdiction because this is a quasi in rem action over which the Ramsey County District Court first acquired jurisdiction.” PL’s Mem. at 3, Feb. 27, 2012 (Docket No. 25). After Defendants’ motions to dismiss were fully briefed, Plaintiffs filed a Motion to Amend. The contents of the proposed amended complaint will be discussed later. Defendants oppose Plaintiffs’ motions. Foreclosing Defendants also moved for Sanctions (Docket No. 54) under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927, arguing that the filing and continuing prosecution of a meritless complaint warrants sanctions. Foreclosing Def.’s Mem. at 2, May 17, 2012 (Docket No. 56). Defendant Law Firm filed Defendant Peterson, Fram & Bergman’s Joinder in Mo tion for Sanctions by Bank Defendants (Docket No. 59). Plaintiffs oppose the Motion for Sanctions. These motions will be address in a separate order. In addition to the motions before this Court, Plaintiffs filed a Motion to Certify Question (Docket No. 50), seeking direction from the Minnesota Supreme Court as to whether an eviction proceeding is in rem. Plaintiffs contend that if the Minnesota Supreme Court holds that a Minnesota eviction proceeding is in rem, then this Court lacks jurisdiction to consider the present action under the prior-exclusive-jurisdiction doctrine. The Motion to Certify Question will be considered by the Honorable John R. Tunheim, United States District Court Judge for the District of Minnesota. See Docket No. 64. The certification motion pertains to Plaintiffs’ Motion for Remand because, as will be discussed, Plaintiffs contend that Minnesota state courts have prior exclusive jurisdiction over at least one property at issue because both the present action and the eviction proceedings are in rem (or quasi in rem) proceedings. 2. Supplemental Briefing This is not the only case of this kind brought by Plaintiffs’ counsel, William B. Butler, and adjudicated in the United States District Court for the District of Minnesota. Typically, the fact that an attorney has brought multiple actions of a similar nature is neither surprising nor noteworthy. Butler’s cases, however, are exceptional because they have all followed the same unavailing course: Butler brings a complaint on behalf of multiple Minnesota plaintiff mortgagors against jurisdiction-ally diverse foreclosing defendants and a Minnesota law firm. The complaint asserts numerous show-me-the-note claims. The complaint is removed to federal court based upon the fact that the Minnesota law firm defendant was fraudulently joined. The motion to remand is denied. The foreclosing defendants’ motions to dismiss are granted. Days before the hearing date in this matter, another court in this district ruled against Butler in Welk v. GMAC Mortgage, LLC, 850 F.Supp.2d 976 (D.Minn. 2012). After thoroughly vetting the claims brought by Butler, the Welk court denied the motion to remand, granted the foreclosing defendants’ motion to dismiss, and levied a significant sanction against Butler. Plaintiffs concede that the original Complaint before this Court is almost identical to the one at issue in Welk. See Pl.’s Supp. Mem. at 3, May 4, 2012 (Docket No. 47). Recognizing the significance of the Welk sanction order for Butler and the persuasive relevance of the Welk decision, this Court continued the hearing and directed the parties to file supplemental briefs in this matter addressing what effect, if any, the Welk decision had on the issues before this Court. Both parties filed the required supplemental briefs. Defendants argue that this matter is not materially different from any actions brought by Plaintiffs’ counsel and should be dispatched accordingly. Plaintiffs acknowledge that this matter is not materially different from Welk, but Plaintiffs contend that the proposed amended complaint changes the character of this action and warrants a different outcome. III. DISCUSSION: DEFENDANT LAW FIRM “It is axiomatic that a court may not proceed at all in a case unless it has jurisdiction.” Crawford v. F. Floffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir. 2001). In the present action, two jurisdictional issues need to be addressed. First, this Court will consider whether Defendant Law Firm was fraudulently joined. In considering the fraudulent joinder issue, this Court will first consider whether joinder was fraudulent under the original Complaint and then the Court will consider Plaintiffs’ Motion to Amend. Second, after considering the fraudulent joinder issue, this Court will consider Plaintiffs’ Motion for Remand. For the reasons set forth below, this Court recommends as follows: (1) it be held that joinder of Defendant Law Firm in the original Complaint was fraudulent; (2) Defendant Law Firm’s Motion to Dismiss be granted; (3) Plaintiffs’ Motion to Amend be denied as it pertains to Defendant Law Firm; and (4) Plaintiffs’ Motion for Remand be denied. A. Fraudulent Joinder After a case has been removed to federal court, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). This Court must “resolve all doubts about federal jurisdiction in favor of remand.” In re Bus. Men’s Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir.1993). Jurisdiction under 28 U.S.C. § 1332 requires an amount in controversy greater than $75,000 and complete diversity of citizenship. “Where applicable state precedent precludes the existence of a cause of action against a defendant, joinder is fraudulent.” Filia v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir.2003); see also Knudson v. Sys. Painters, Inc., 634 F.3d 968, 977 n. 7 (8th Cir.2011) (stating that “the Filia standard remains good law in this circuit”). “However, if there is a colorable cause of action — that is, if the state law might impose liability on the resident defendant under the facts alleged — then there is no fraudulent joinder.” Filia, 336 F.3d at 810 (quotation omitted). “In order to establish fraudulent joinder, the defendant must ‘do more than merely prove that the plaintiffs claim should be dismissed pursuant to a Rule 12(b)(6) motion.’ ” Block v. Toyota Motor Corp., 665 F.3d 944, 948 (8th Cir.2011). 1. Defendant Law Firm’s Motion to Dismiss (Docket No. 7) In the original Complaint, Plaintiffs assert a claim of slander of title (IV), conversion (V), civil conspiracy (VII), negligent misrepresentation (X), equitable estoppel (XII), and fraud (“XIV [sic]”) against Defendant Law Firm. Plaintiffs allege that Defendant Law Firm pursued foreclosure by advertisement as agents for the Foreclosing Defendants and misrepresented the Foreclosing Defendants’ rights to foreclose in the Notice of Mortgage Foreclosure Sale, Notice of Pendency and Power of Attorney to Foreclose, and Sheriffs Certificate and Foreclosure Record. See Compl. at ¶¶ 43^44, 47, 49-51, and 52-54. Minnesota Statute section 580.02 states that, for any party to foreclose by advertisement, it is requisite: (1) that some default in a condition of such mortgage has occurred, by which the power to sell has become operative; (2) that no action or proceeding has been instituted at law to recover the debt then remaining secured by such mortgage ...; [and] (3) that the mortgage has been recorded and, if it has been assigned, that all assignments thereof have been recorded .... (Emphasis added.). In Jackson v. Mortgage Electronic Registration Systems, Inc., the Minnesota Supreme Court explained that, historically, promissory notes and security instruments (i.e. mortgages) have been treated as two distinct documents that are legally intertwined. 770 N.W.2d 487, 493 (Minn.2009). The Jackson court considered Minn. Stat. § 580.02 and held that “while a promissory note assignment ... constitute^] an equitable assignment of the security instrument, a promissory note assignment is not an assignment affecting legal title, and only assignments of legal title of the security instrument must be recorded in order to commence a foreclosure by advertisement.” Id. at 501. Applying Jackson, the Eighth Circuit Court of Appeals held that the right to enforce a mortgage [in Minnesota] through foreclosure by advertisement lies with the legal, rather than equitable, holder of the mortgage. The assignment of the promissory note to another “operates as an equitable assignment of the underlying [mortgage],” but the right to enforce the mortgage remains with the legal holder of the mortgage. Stein v. Chase Home Finance, LLC, 662 F.3d 976, 980 (8th Cir.2011) (quoting Jackson, 770 N.W.2d at 497). Given Minnesota’s foreclosure by advertisement statutes, as interpreted in Jackson and Stein, there is no basis where Defendant Law Firm might be liable to Plaintiffs for slander of title, conversion, civil conspiracy, negligent misrepresentation, and equitable estoppel, and fraud as asserted in the original Complaint. Plaintiffs’ slander of title, equitable estoppel, civil conspiracy, and fraud claims are all premised upon Plaintiffs’ flawed contention that only the holder of the note can foreclose by advertisement. See Compl. at ¶¶ 70-74 (slander of title), 84-88 (civil conspiracy), 115-119 (fraud), 120-128 (equitable estoppel). For example, Plaintiffs’ fraud claim is premised upon Plaintiffs’ allegation that Defendant Law Firm committed fraud by “falsely representing] that its clients were entitled to enforce promissory notes through foreclosure.” PL’s Mem. at 12, Dec. 19, 2011 (Docket No. 17) (citing Compl. at ¶¶ 41-55). As held by the Minnesota Supreme Court, the Eighth Circuit Court of Appeals, and every court in this district to consider these claims, Plaintiffs’ theory of liability is without merit. Furthexmore, Minnesota does not recognize civil conspiracy as an independent tort, see D.A.B. v. Brown, 570 N.W.2d 168, 172 (Minn.App. 1997), and Plaintiffs’ fraud claim is not pleaded with particularity, as required by Fed.R.Civ.P. 9. See also Minn. R. Civ. P. 9.02. Therefore, Plaintiffs have not alleged colorable claims of slander of title, equitable estoppel, civil conspiracy, or fraud against Defendant Law Firm. Plaintiffs’ conversion claim is based on Plaintiffs’ allegation that Foreclosing Defendants wrongfully received payments from Plaintiffs on the promissory notes. See Compl. ¶ 75-79. Plaintiffs baldly assert that Defendant Law Firm is liable for conversion because it acted as an agent for Foreclosing Defendants. Plaintiffs, however, have made no allegations to support that Defendant Law Firm even so much as opened the envelopes containing the payments to Foreclosing Defendants. Plaintiffs’ allegations concerning Defendant Law Firm in no way pertain to Plaintiffs’ conversion claim. Therefore, this Court concludes that Plaintiffs have not asserted a colorable claim of conversion against Defendant Law Firm. Finally, Defendant Law Finn is immune from negligent misrepresentation claims. Generally, “an attorney acting within the scope of his employment as attorney is immune from liability to third persons for actions arising out of that professional relationship.” McDonald v. Stewart, 289 Minn. 85, 40, 182 N.W.2d 437, 440 (1970). There are dicta by the Minnesota Supreme Court that attorneys can be liable for “fraudulent or unlawful act[s].” McDonald v. Stewart, 289 Minn. 35, 40, 182 N.W.2d 437, 440 (1970); L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380 (Minn.1989) (citing Hoppe v. Klapperich, 224 Minn. 224, 239, 28 N.W.2d 780, 791 (Minn.1947)). But, the Minnesota Supreme Court explicitly declined to impose any duty upon attorneys to their client’s adversary, which forestalls any cause of action premised on negligence brought by a client’s adversary against the client’s attorney. L & H Airco, Inc., 446 N.W.2d at 378-80. Moreover, any claim of fraud must assert “affirmative misrepresentations” or “other active steps to conceal” fraud in order to be actionable. Id. at 380. Thus, Plaintiffs have not asserted a color-able negligent misrepresentation claim against Defendant Law Firm. Plaintiffs originally argued that all of their claims against Defendant Law Firm are valid because Stein and Jackson do not preclude a challenge to the validity of the mortgage or the power to sell. See Pl.’s Mem. at 3, Dec. 19, 2011 (Docket No. 17). Plaintiffs dte In re Banks, 457 B.R. 9 (8th Cir. BAJP 2011), to support this proposition. See id. at 9. Plaintiffs’ argument misses the mark. First, Plaintiffs did not plead this theory of liability. Second, “Plaintiffs misconstrue In re Banks ... [, which] addressed a creditor’s right to enforce a promissory note endorsed in blank; it did not concern foreclosure by advertisement.” Dunbar, 853 F.Supp.2d at 847 n. 6; cf. Welk, 850 F.Supp.2d at 987-88 (interpreting In re Banks and concluding “it is likely that the court was addressing only the claimant’s ability to collect on the note and not the claimant’s ability to foreclose on the mortgage”). Finally, this theory of liability is premised on the flawed belief that the power to foreclose is found, defined, and held exclusively in the promissory note, rather than the mortgage. This theory of liability is contradicted by over 100 years of real property law in the State of Minnesota. Therefore, this Court concludes that jurisdiction is proper because Defendant Law Firm was fraudulently joined in the original Complaint; accordingly, this Court recommends that all claims against Defendant Law Firm within the original Complaint be dismissed with prejudice. 2. Plaintiffs’ Motion to Amend (Docket No. 31) The proposed amended complaint proffers a new styling of the show-me-the-note claim. Plaintiffs allege that the notes and mortgages contractually vest exclusive authority to foreclose in the holders of the notes. See Mutua v. Deutsche Bank Nat. Trust Co., 11-CV-3761 PJS/AJB, 2012 WL 1517241, at *9 (D.Minn. Apr. 30, 2012) (distinguishing a “show-me-the-note statute claim” and a “show-me-the-note contract claim”). Plaintiffs’ allegation consists of three major premises and a conclusion. First, Plaintiffs cite that a “Note Holder” is defined in each promissory note as “[t]he Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note.” Prop. Amend. Compl. at ¶ 29. Second, Plaintiffs cite the following language in the promissory notes: In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the “Security Instrument”) dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. Prop. Amend. Compl. at ¶ 29. Finally, Plaintiffs cite language in the mortgages that states, “[i]f the [borrower’s] default is not cured on or before the date specified in the notice [of default], Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law.” Prop. Amend. Compl. at ¶ 30. Based upon these three quoted passages (or premises), Plaintiffs conclude that the mortgages and notes at issue must be read together to vest exclusive authority to accelerate and foreclose in the Lender. Prop. Amend. Compl. at ¶ 31. Plaintiffs further allege generally that Defendants were not the “Note Holders” because the interests in the notes and mortgages were assigned to third parties. See Pl.’s Supp. Mem. at 8, May 4, 2012 (summarizing their amended theory of liability in their supplemental brief to this Court, and explaining that their claims “are based on Defendants’ failure to comply with Minn. Stat. § 580.02 ... and Defendants breach of the mortgage agreement”). Based upon these allegations, Plaintiffs propose to assert four claims: First, Plaintiffs assert a quiet title claim against the Foreclosing Defendants, asserting that the mortgage liens are invalid. Second, Plaintiffs assert a declaratory judgment claim against the Foreclosing Defendants, seeking an order holding that the assignments of the rights under the notes and mortgages violated the terms of the trust agreements under which the rights to the notes and mortgages were assigned. Third, Plaintiffs assert a second declaratory judgment claim against Foreclosing Defendants, holding that only the “Note Holder” can declare a default. Finally, Plaintiffs propose to assert a slander-of-title claim against all Defendants. See id. at ¶¶ 61-66. “There is no absolute right to amend.” Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908 (8th Cir.1999). “Permission to file a first amended complaint ‘shall be freely given when justice so requires.’ ” U.S. ex rel. Gaudineer & Comito, L.L.P. v. Iowa, 269 F.3d 932, 936 (8th Cir.2001) (quoting Fed.R.Civ.P. 15(a)). But, the district court should deny a motion to amend “in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the non-moving party can be demonstrated.” Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir.2001) (citing Roman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). “Denial of a motion for leave to amend on the basis of futility means the district court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 524, 178 L.Ed.2d 373 (U.S. 2010). This is the standard of review articulated by Plaintiffs in their brief in support of their Motion to Amend. See Pl.’s Mem. 2, Mar. 2, 2012 (Docket No. 33). “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.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 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 pleading that offers ‘labels and conclusions’ or ‘a 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.’” Id. at 678, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955). The court must analyze whether the plaintiff has put forth factual allegations that “raise the right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Twombly, 550 U.S. at 545, 127 S.Ct. at 1959. When considering a motion under Fed. R.Civ.P. 12(b)(6), “the court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint as well as materials that are necessarily embraced by the pleadings.” Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999) (quotations omitted). Amidst the allegations outlined above, Plaintiffs allege that, “[u]pon information and belief, the chain of title to Plaintiffs’ Mortgages is broken and Defendants have no[ ] right, title, or interest in Plaintiffs’ property.” Prop. Amend. Compl. at ¶ 27 (Docket No. 31-5). This is the only allegation pertaining to the slander-of-title claim. Based upon this allegation, Plaintiffs assert their slander-of-title claim as follows: (1) Defendant Law Firm “publicly recorded mortgage deeds in the name of a nominee, which did not have legal title to either the Original Notes or the Mortgages,” id. at ¶ 62; (2) Defendant Law Firm “maliciously published Notices of Foreclosure, Notices of Pendency and Sheriffs Sale Certificates regarding the Plaintiffs’ properties, purporting that Defendants were holders in due course of Plaintiffs’ Original Notes, and falsely indicating that Defendants are entitled to enforce Plaintiffs’ Mortgages and foreclose and take possession of Plaintiffs’ homes,” id. at ¶ 63; (3) Defendant Law Firm “knew or should have known that the statements contained in the publications were false,” id. at ¶ 64; (4) Defendant Law Firm prepared and recorded documents against Plaintiffs’ properties, without verifying certain information, id. at ¶ 65; and (5) Plaintiffs suffered special damages, including but not limited “to payment on non-negotiable Original notes.” Id. at ¶ 66. Plaintiffs’ proposed slander-of-title claim is futile. The elements required for a slander of title claim are: (1) That there was a false statement concerning the real property owned by the plaintiff; (2) That the false statement was published to others; (3) That the false statement was published maliciously; [and] (4) That the publication of the false statement concerning title to the property caused the plaintiff pecuniary loss in the form of special damages. Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn.2000). “The filing of an instrument known to be inoperative is a false statement that, if done maliciously, constitutes slander of title.” Id. at 280. First, to the extent that this claim is premised on the mortgage liens being invalid because the Foreclosing Defendants did not hold the notes, such a claim has no merit for the reasons set forth above. See Kamatcheva, 871 F.Supp.2d at 841-42. Second, Plaintiffs’ assertion that “the chain of title was broken” is a naked assertion, devoid of factual support. Plaintiffs have failed to allege any facts to support that any filed instrument was inoperative. Third, Plaintiffs’ special damages, which purport to include “payment on non-negotiable Original notes,” bear no relation to any element of Plaintiffs’ slander-of-title claim. Cf. Quevli Farms of Lakefield v. Union Sav. Bank & Trust Co. of Davenport, Iowa, 178 Minn. 27, 30, 226 N.W. 191, 192 (1929) (stating “special damages are the gist of the [slander of title] action and without them the action cannot be maintained”); Hayward Farms Co. v. Union Sav. Bank & Trust Co., 194 Minn. 473, 475, 260 N.W. 868, 869 (1935) (stating that special damages must be “properly alleged”). Finally, Plaintiffs’ allegation that recording a mortgage in the name of the nominee slanders a title is forestalled by the Minnesota Supreme Court’s holding in Jackson. Defendant Law Firm argues that Plaintiffs cannot assert a slander-of-title claim against it because Defendant Law Firm relied upon foreclosure related documents provided by the Foreclosing Defendant, which in turn constitute prima facie evidence that the documents were executed and delivered with proper authority under Minn. Stat. § 358.50. See Def.’s Mem. at 8, Mar. 26, 2012 (Docket No. 40). Defendant Law Firm’s argument goes to Plaintiffs’ contention that Defendant Law Firm failed to verify certain facts, but verification is not an element of a slander-of-title claim. Defendants also argue that Plaintiffs’ Motion to Amend evinces bad faith and should be denied accordingly. This Court agrees. Plaintiffs grossly mischaracterize the nature of their proposed amendments. Plaintiffs contend that their motion to amend “seek[s] to remove all unnecessary and duplicative claims and fully plead relevant facts regarding the remaining claims.” Pl.’s Mem. at 1, Mar. 2, 2012 (Docket No. 33). But, their proposed amended complaint purports to assert a new theory of liability. Plaintiffs concede as much when they liken the original Complaint to the one in Welk and distinguish the same from the proposed amended complaint, which Plaintiffs liken to the amended Complaint in Mutua, 2012 WL 1517241 (D.Minn. Apr. 30, 2012). Pl.’s Mem. at 2-3, Mar. 2, 2012. This mischaracterization might be overlooked but for the fact that Plaintiffs state that they “do not waive any of the arguments presented in their Response to Defendants’ motions to dismiss,” id. at 1, at the same time they contend that their motion to amend is for the purpose of “complying] with the holdings in Jackson and Stein.” Id. at 3. These assertions are nattering doublespeak. Moreover, the latter statement lacks all credulity because Butler represented the Plaintiffs in Stein. Therefore, Plaintiffs cannot credibly assert that they could not plead an action that comports with Stein until after the Welk decision and after Defendants moved to dismiss. Dunbar, 853 F.Supp.2d at 845 (denying a motion to amend brought by Butler for bad faith where Butler asserted that the amendment was based upon Stein and it was “new precedent”). Therefore, for the reasons set forth above, this Court recommends that Plaintiffs’ Motion to Amend be denied as it pertains to Defendant Law Firm. B. Plaintiffs’ Motion to Remand (Docket No. 23) Plaintiffs contend that remand is mandated under the prior-exclusive-jurisdiction doctrine because (1) the action commenced by Plaintiffs is a “quasi in rem action over which the Ramsey County District Court first acquired jurisdiction,” PL’s Mem. at 3, Feb. 7, 2012 (Docket No. 25); (2) there is an eviction action against two of the Plaintiffs, PL’s Mem. at 6, Feb. 7, 2012; and (3) there are Torrens properties at issue in this action. PL’s Reply, at 8, Mar. 6, 2012 (Docket No. 35). Foreclosing Defendants oppose the motion, arguing that the prior-exclusive-jurisdiction doctrine is inapplicable. For the reasons set forth below, this Court recommends that the motion for remand be denied. “The prior exclusive jurisdiction doctrine holds that ‘when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res.’” Chapman v. Deutsche Bank Nat. Trust Co., 651 F.3d 1039, 1043 (9th Cir.2011) (quoting Marshall v. Marshall, 547 U.S. 293, 311,126 S.Ct. 1735,164 L.Ed.2d 480 (2006)); see also Penn Gen. Cas. Co. v. Commonwealth of Pennsylvania ex rel. Schnader, 294 U.S. 189, 195, 55 S.Ct. 386, 389, 79 L.Ed. 850 (1935) (holding that “if the two suits are in rem or quasi in rem, requiring that the court or its officer have possession or control of the property which is the subject of the suit in order to proceed with the cause and to grant the relief sought, the jurisdiction of one court must of necessity yield to that of the other”). The prior-exclusive-jurisdiction doctrine is premised on the fact that “[t]he possession of the res vests the court which has first acquired jurisdiction with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of coordinate jurisdiction from exercising a like power.” Farmers’ Loan & Trust Co. v. Lake St. Elevated R. Co., 177 U.S. 51, 61, 20 S.Ct. 564, 568, 44 L.Ed. 667 (1900) (emphasis added). “This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons.” Merritt v. Am. Steel-Barge Co., 79 F. 228, 231 (8th Cir.1897). The prior-exclusive-jurisdiction doctrine is inapplicable here. First, there are not concurrent proceedings as anticipated by the prior-exclusive-jurisdiction doctrine. There is just one proceeding that began in state court and was removed to federal court. See Dunbar, 853 F.Supp.2d at 843-45, as amended (Apr. 12, 2012) (holding that the prior-exelusive-jurisdiction doctrine is inapplicable where only “a single action exists in federal court following removal”). Plaintiffs seem to contend that there are, in fact, concurrent proceedings because this action was commenced in state court, which would be the first proceeding, and was removed to federal court, which would be the second proceeding. This argument is without merit. Welk, 850 F.Supp.2d at 996 (rejecting argument that there are concurrent proceedings barring removal). Second, this Court has been presented with no authority to support that the state courts in any way retained jurisdiction over the properties at issue. Compare with Matter of Trust Created by Hill on Dec. 31, 1917 for Ben. of Schroll, 728 F.Supp. 564, 567 (D.Minn.1990). Contrary to Plaintiffs contention, the fact that state courts have “jurisdiction,” — i.e., the “power to exercise authority over all persons and things within its territory” — does not mean that the state courts have retained jurisdiction over the properties relevant to this litigation. See BLACK’S LAW DICTIONARY 927 (9th ed. 2009). Third, regardless of whether an eviction action under Minnesota law is in rem, quasi in rem, or in personam, the eviction action against Plaintiffs Yang in Ramsey County District Court is neither a concurrent action in state court nor amounts to retained jurisdiction over the res for the purposes of the prior-exclusive-jurisdiction doctrine. The governing statutory chapter for an eviction, or unlawful detainer, action is Minn. Stat. ch. 504B. See Univ. Cmty. Properties, Inc. v. Norton, 311 Minn. 18, 21, 246 N.W.2d 858, 860 (1976) (citing Minn. Stat. ch. 566, successor to Minn. Stat. eh. 504B). Under Minnesota law, an eviction action is “a summary court proceeding to remove a[n] ... occupant from or otherwise recover possession of real property by the process of law.” Minn. Stat. § 504B.001, subd. 4 (emphasis added). Thus, the long held rule in Minnesota is that an eviction action is limited to adjudication of “present possession” only. Keller v. Henvit, 219 Minn. 580, 585, 18 N.W.2d 544, 547 (1945). Counterclaims and equitable defenses are raised directly in a separate proceeding. Id.-, Amresco Residential Mortg. Corp. v. Stange, 631 N.W.2d 444, 445-46 (Minn.App.2001). Once a separate proceeding is commenced, the eviction court has discretion to stay the eviction proceedings. See Bjorklund v. Bjorklund Trucking, Inc., 753 N.W.2d 312, 318-19 (Minn.App.2008) (holding that when a separate proceeding is initiated and “when the counterclaims and defenses are necessary to a fair determination of the eviction action, it is an abuse of discretion [for the court considering the eviction action] not to grant a stay of the eviction proceedings when an alternate civil action that involves those counterclaims and defenses is pending”), rev. denied (Minn. Sept. 23, 2008); Fed. Home Loan Mortg. Corp. v. Nedashkovskiy, 801 N.W.2d 190, 193 (Minn.App.2011) (noting that the eviction court must be provided “a case-specific reason why a stay [is] necessary”). The commencement of a state eviction action against Plaintiffs Yang is not a concurrent proceeding under the prior-exclusive-jurisdiction doctrine because the claims in the instant Complaint and the issue of present possession in the eviction action do not arise out of “like” jurisdiction. Farmers’ Loan & Trust Co., 177 U.S. at 61, 20 S.Ct. at 568. A state eviction court does not require jurisdiction “to hear and determine all controversies relating” to the property, which is a condition precedent to the application of the prior-exclusive-jurisdiction doctrine. Id. at 61, 20 S.Ct. at 568. Thus, the commencement of an eviction action does not preclude an “alternate civil action,” such as the one before this Court. Bjorklund, 753 N.W.2d at 318-19. Just the contrary is true. The eviction statutory chapter expressly anticipates alternate civil actions, such as the present action. Finally, the fact that three of the properties at issue in present case are Torrens properties does not support the proposition that the state courts retained jurisdiction. “Torrens refers to a real estate titling system under which ownership is initially established by registering for a certificate of title through court proceedings,” in contrast to the abstract system. United Fire & Cas. Co. v. Fid. Title Ins. Co., 258 F.3d 714, 716 (8th Cir.2001). Plaintiffs contend that Minn. Stat. § 508.10 dictates that Minnesota state courts have exclusive, continuing jurisdiction over Torrens property. Minn. Stat. § 508.10 states in relevant part as follows: An application for registration shall be addressed to the district court in and for the county wherein the land described therein is situated. The district court shall have original exclusive jurisdiction thereof, and of all proceedings thereunder, and full power to inquire into the title of the land, and any right, title, interest, or estate therein, and any lien, charge, or encumbrance thereon. (Emphasis added.) Plaintiffs’ argument ignores the fact that the present action does not come under Minn. Stat. § 508.10 and Plaintiffs’ expansive reading of Minn. Stat. § 508.10 is forestalled by Minn. Stat. § 508.02. As the Honorable Paul A. Magnuson, United States District Court Judge for the District of Minnesota, concluded in Olson v. Bank of America, N.A., Civil No. 11-3710 (PAM/FLN), Mem. & Order, at 6, 2012 WL 1660615 (Docket No. 33) (D.Minn. Apr. 19, 2012), “[t]his argument is wholly without merit and deserves no discussion.” For the first time, in their supplemental brief, Plaintiffs identified a Torrens proceeding: In re Certificate of Title No. 5664.52, Case No. 62-CV-11-3023 (Ramsey County Minn. Apr. 12, 2011). See Pl.’s Supp. Mem. at 7; see also Aff. Butler, at Ex. 4-5 (Docket Nos. 49-6, 49-7). This Torrens proceeding was commenced on April 12, 2011, prior to the commencement of the present litigation. Nevertheless, this Torrens proceeding was stayed on November 3, 2011, pending completion of the present litigation. Therefore, for the reasons set forth above, this Torrens proceeding neither implicates the prior-exclusive-jurisdiction doctrine nor otherwise warrants remanding this matter. IV. DISCUSSION: FORECLOSING DEFENDANTS A. Foreclosing Defendants’ Motion to Dismiss (Docket No. 12) This Court need only briefly consider Foreclosing Defendants’ arguments on the following claims: quiet title (I), “Defendants are not real parties in interest” (II), “Lack of Legal Standing to Foreclose” (III), slander of title (IV), conversion (V), unjust enrichment (VI), civil conspiracy (VII), breach of fiduciary duty (VIII), fraud (IX), negligent misrepresentation (X), equitable estoppel (XII), and accounting (XIII). For the reasons set forth herein, this Court recommends that Foreclosing Defendants’ Motion to Dismiss be granted and all claims against Foreclosing Defendants be dismissed with prejudice. Most of Plaintiffs’ claims are show-me-the-note claims or claims premised on the show-me-the-note theory of foreclosure law. Specifically, Plaintiffs’ quiet title (I), “Defendants are not real parties in interest” (II), “Lack of Legal Standing to Foreclose” (III), slander of title (IV), civil conspiracy (VII), equitable estoppel (XII), and misrepresentation (IX and X) claims are premised upon this flawed theory and must be dismissed accordingly. Moreover, as stated above, civil conspiracy is not an independent tort, see DAB., 570 N.W.2d at 172, and Plaintiffs’. misrepresentation claims are not pleaded with particularity, as required by Fed.R.Civ.P. 9. In addition, Plaintiffs lack standing to maintain these claims. Although Plaintiffs have alleged that foreclosure proceedings were initiated, Plaintiffs lack standing to assert their “Defendants are not real parties in interest” (II), “Lack of Legal Standing to Foreclose” (III), slander of title (IV), civil conspiracy (VII), equitable estoppel (XII), and misrepresentation (IX and X) claims. Pursuant to Article III of the United States Constitution, “judicial power exists only to redress or otherwise to protect against injury to the complaining party.... A federal court’s jurisdiction therefore can be invoked only when the plaintiff ... has suffered ‘some threatened or actual injury resulting from the putatively illegal action ----’ ” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973)). Plaintiffs’ injury is contingent upon the foreclosure by advertisement proceedings being illegal. Plaintiffs’ allegations, however, do not allege any injury under Minn. Stat. § 580.02: Plaintiffs have made no allegations that a default in a condition of the mortgage has or has not occurred. Plaintiffs have made no allegations that a collateral proceeding to recover the debt has or has not been instituted. Plaintiffs have made no allegations that the mortgage and assignments have not been recorded. Plaintiffs have not even alleged the status of the foreclosure proceedings. See fully v. Bank of Am., N.A., CIV. 10-4734 DWF/JSM, 2011 WL 1882665, *5 (D.Minn. May 17, 2011) (holding that plaintiffs lacked standing where “[the plaintiffs] d[id] not allege when the Notices of Foreclosure were published or when the alleged foreclosure sales are scheduled to occur. Nor d[id] [the plaintiffs] allege facts with respect to whether any of the mortgages have already been foreclosed upon and, if so, whether the redemption period has expired”). Therefore, Plaintiffs have not alleged an injury because Minn. Stat. § 580.02 does not require possession of the note to foreclose by advertisement. Plaintiffs have only alleged the show-me-the-note theory of liability for these claims. Plaintiffs’ conversion (V) and unjust enrichment (VI) claims are premised on Plaintiffs’ allegation that all Foreclosing Defendants wrongfully accepted monthly payments from all Plaintiffs. This is simply not the case and this form of pleading is plainly improper under Fed. R.Civ.P. 8. Welk, 850 F.Supp.2d at 990-91. Plaintiffs’ breach of fiduciary duty (VIII) and accounting (XIII) claims also fail. Plaintiffs have neither alleged nor argued that “special circumstance exist[s]” to overcome the general principle that “that when a bank transacts business with a depositor or other customer, it has no special duty to ... the customer.” See Klein v. First Edina Nat. Bank, 293 Minn. 418, 422, 196 N.W.2d 619, 623 (1972). Plaintiffs have asserted no legal authority to support their accounting claim. B. Plaintiffs’ Motion to Amend (Docket No. 31) Plaintiffs’ Motion to Amend also pertains to Foreclosing Defendants. The proposed allegations and claims against the Foreclosing Defendants are summarized earlier in this Report and Recommendation. See supra § II.A.2. For the reasons set forth below, this Court recommends that Plaintiffs’ Motion to Amend be denied as to Foreclosing .Defendants because Plaintiffs’ claims are futile and Plaintiffs’ motion is brought in bad faith. As a general matter, Plaintiffs’ motion can be denied outright for bad faith for the reasons set forth above. See supra § II.A.2. Moreover, to the extent that any of these claims are premised on the mortgage liens being invalid because the Foreclosing Defendants did not hold the notes, for the reasons set forth above, such claims have no merit. See Karnatcheva, 871 F.Supp.2d at 841-42. Turning to the specific claims against the Foreclosing Defendants, this Court concludes that Plaintiffs propose to assert four futile claims against Foreclosing Defendants. As explained earlier, Plaintiffs proposed slander-of-title claim is futile because Plaintiffs have failed to allege any facts to support how title was broken or what false statements were made. Further, Plaintiffs lack standing to assert their first declaratory judgment claim that the assignments of the rights under the notes and mortgages violate the terms of the trust agreements “because they are not parties or third-party beneficiaries to such agreements.” Karnatcheva, 871 F.Supp.2d at 841-42. Moreover, Plaintiffs allege no facts to support their first declaratory judgment claim. For the purposes of Plaintiffs’ quiet title claim, Plaintiffs have failed to plead any facts to support that the mortgage or any assignment of the mortgage was not properly recorded. Thus, Plaintiffs have alleged no objectively reasonable basis for asserting that Foreclosing Defendants’ mortgages are invalid. Likewise, for the purposes of Plaintiffs’ second declaratory judgment claim, Plaintiffs alleged no facts to support that the wrong party accelerat ed the balances on their notes. Moreover, Plaintiffs’ general allegations that all Foreclosing Defendants clouded the title of all Plaintiffs’ properties and all Foreclosing Defendants were parties to the acceleration of all Plaintiffs’ notes are inaccurate and improper pleading under Fed.R.Civ.P. 8. Plaintiffs make three contentions within their supplemental brief that warrant some address. First, Plaintiffs seem to argue that the assignment of rights pursuant to the trust agreements, or pooling and serving agreements, support that assignments were not recorded. See PL’s Supp. Mem. at 4-6. Neither Plaintiffs’ submissions nor allegations in the original Complaint or proposed amended complaint support that the assignments cited by Plaintiffs were of the type that needed to be recorded under Minnesota law. Second, Plaintiffs cite Gewecke v. U.S. Bank et al., No. 09-1890, 2011 WL 4538088 (D.Minn. Sep. 29, 2011), for the proposition that mortgage assignments must be recorded before the mortgagee can proceed under Minn. Stat. § 580.02. PL’s Supp. Mem. at 8. While Gewecke stands for that uncontroversial proposition, Gewecke does not serve Plaintiffs’ case. In contrast to the present case, Gewecke did not involve mortgages, for the most part, originally executed in favor of MERS as nominal mortgagee. Moreover, the plaintiffs in Gewecke provided a factual basis for such a claim. Id. at *4. There was evidence that the assignments in Gewecke were of the type that needed to be recorded under Minnesota law. Here, Plaintiffs have neither provided evidence nor alleged facts to support the claim that the mortgages were not properly recorded. Finally, Plaintiffs cite Mutua for the proposition that the claims in the proposed amended complaint are not precluded by Jackson and Stein. PL’s Supp. Mem. at 2-3. The Mutua court stated, in a footnote, that the contractual show-me-the-note theory is distinguishable from the statutory show-me-the-note theory rejected by Jackson and Stein. Mutua, 2012 WL 1517241, at *4 n. 5. But, the Mutua court only addressed whether the plaintiffs had asserted a colorable slander-of-title claim against the defendant law firm for the purposes of fraudulent joinder. Mutua, 2012 WL 1517241 (“The Court emphasizes that its holding is very narrow” and “[n]either the Court’s decision to remand this case — nor any comments made by the Court at the hearing — are intended to suggest that Butler’s ‘contractual’ show-me-the-note claims have more merit than his ‘public-law’ show-me-the-note claims”). The scope of the Mutua court’s inquiry did not extend to adjudicating the merits of the contractual show-me-the-note claim. Therefore, the Mutua decision has no bearing on the present action. Thus, for all these reasons, this Court recommends that Plaintiffs’ motion to amend be denied. Y. DEFENDANT LAW FIRM’S BRIEFING MOTION (Docket No. 44) This Court recommends that Defendant Law Firm’s Briefing Motion (Docket No. 44) be granted. Defendant Law Firm moves to join the briefing by Foreclosing Defendants. There has been no objection to Defendant Law Firm’s motion. Moreover, there is good cause to permit Defendant Law Firm to join the briefing by Foreclosing Defendants because Defendant Law Firm shares a common interest with Foreclosing Defendants, and permitting Defendant Law Firm to join the briefing spares the parties and the Court the burden of reviewing and responding to duplicative motion papers. VI. RECOMMENDATION Based upon the record, memoranda, and oral arguments of counsel, IT IS HEREBY RECOMMENDED that: 1. Defendant Peterson, Fram & Bergman, P.A.’s Motion to Dismiss (Docket No. 7) be GRANTED, and all claims against them be DISMISSED WITH PREJUDICE; 2. Foreclosing Defendants’ Motion to Dismiss (Docket No. 12) be GRANTED, and all claims against them be DISMISSED WITH PREJUDICE; 3. Plaintiffs’ Motion to Remand (Docket No. 23) be DENIED; 4. Plaintiffs’ Motion to Amend (Docket No. 31) be DENIED; and 5. Defendant Law Firm’s Briefing Motion (Docket No. 44) be GRANTED. July 3, 2012 . See Dunbar v. Wells Fargo Bank, N.A., No. 11-3683, 2012 WL 1394666, at *1 n. 2 (D.Minn. Apr. 23, 2012) (listing the cases and their status as of April 2012). . The R & R also recommended that Peterson's motion to join Defendant’s Brief (Docket No. 44) be granted. No objection to this recommendation has been made, and the Court will grant the motion. Peterson's other motions to join (Docket Nos. 67 and 72) will also be granted as unopposed. . The Court holds that the prior exclusive jurisdiction doctrine does not apply for different reasons than the R & R; in all other respects, the analysis of the R & R is adopted. . For a more complete recitation of the facts, see the R & R at 3-8. . Each plaintiff is a Minnesota resident. The Court also notes that several of the plaintiffs in this action are also plaintiffs in other similar actions in this district (with the same or identical claims), and they are represented by the same attorney. For example, Dean Welk is also a plaintiff in Cartier v. Wells Fargo Bank, No. 11-2168 (D.Minn.), Larsen v. Bank of America, N.A., No. 11-1775 (D.Minn.), and Robinson v. Bank of America, N.A., No. 11-2285 (D.Minn.). As Judge Schütz has observed, splitting a plaintiff’s claims in this fashion is abusive of the judicial system and violative of the Minnesota Rules of Professional Conduct. See Welk v. GMAC Mortg., LLC, 850 F.Supp.2d 976, 999-1000 (D.Minn.2012). .Plaintiffs brought claims for fraud, slander of title, conversion, civil conspiracy, negligent misrepresentation, and equitable estoppel against all Defendants. Against the Foreclosing Defendants, Plaintiffs asserted claims of quiet title, "Defendants Are Not Real Parties in Interest,” “Defendants Do Not Have Legal Standing to Foreclose Mortgages,” unjust enrichment, breach of fiduciary duty, and accounting. . This show-me-the-note argument is, in short, that a mortgage is not valid (and cannot be foreclosed upon) unless the mortgagee holds the note secured by the mortgage. The argument has been addressed and rejected by the Minnesota Supreme Court, Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 489-90 (Minn.2009), and the United States Court of Appeals for the Eighth Circuit, Stein v. Chase Home Fin., LLC, 662 F.3d 976, 979-81 (8th Cir.2011). . The Court finds that Plaintiffs have failed to make a specific objection to the finding that they did not allege colorable claims of conversion, fraud, misrepresentation, and slander of title. Moreover, the courts of this district have addressed these issues repeatedly, and this Court declines to address them again. . In contrast to Mutua v. Deutsche Bank Nat'l Trust Co., the Court can discern no "unusually problematic chain of title”. No. 11-3761, 2012 WL 1517241, at *7 (D.Minn. Apr. 30, 2012). . Plaintiffs specifically allege as follows: On May 23, 2003, Plaintiffs Randy S. Brinkman and Carol M. Brinkman executed a promissory note in favor of America Wholesale Lender and a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS). Compl. at ¶ 1, Oct. 3, 2011 (Docket No. 1). On June 30, 2003, Plaintiff Dean J. Welle executed a promissory note in favor of America Wholesale Lender and a mortgage in favor of MERS. Id. at ¶ 2. On January 10, 2003, Plaintiffs Janet and James Rice executed a promissory note in favor of Bank of America, N.A. and a mortgage in favor of Bank of America, N.A. Id. at ¶3. On September 20, 2005, Plaintiffs Ge Vang and Melina Yang executed a promissory note in favor of Countrywide Bank, N.A. and a mortgage in favor of MERS. Id. at ¶ 4. On February 23, 2006, Plaintiff Susan Maryann Amadick executed a promissory note in favor of Decision One Mortgage Company, LLC and a mortgage in favor of MERS. Id. at ¶ 5. On December 13, 2005, Plaintiff Susan L. Grady executed a promissory note in favor of Platinum Lending/Servicing Corporation and a mortgage in favor of MERS. Id. at ¶ 6. Plaintiffs Jacob Yang and Kang T. Yang executed a promissory note in favor of First Magnus Financial Corporation and a mortgage in favor of MERS. Id. at V 7. On August 25, 2004, Plaintiffs Mona R. Horejsh and Stephen Henry Quenroe executed a promissory note in favor of Countrywide Bank, a Division of Treasury Bank, N.A., and a mortgage in favor of MERS. Id. at ¶ 8. . Compare with Compl. at ¶31 ("Defendants do not have valid, clear title to the Original Notes. Defendants therefore cannot assert rights to payments on the Original Notes and cannot assert the right to foreclose under the Mortgages. The Mortgages are security for the Original Notes and Defendants have no direct claim to proceeds due on the Original Notes. Because Defendants have no direct right to receive payments due on the Original Notes, Defendants cannot exercise foreclosure rights in the Mortgages.") . The following constitute a sample of the cases filed by Butler: Butler v. Bank of America, N.A., Civil. No. 11-461 (DWF/TNL), 2011 WL 2728321 (D.Minn. July 13, 2011); Jerdev. JPMorgan Chase Bank, N.A., Civil No. 11-2666 (PAM/FLN), 2012 WL 206271 (D.Minn. Jan. 24, 2012); Murphy v. Aurora Loan Services, LLC, Civil No. 11-2750 (ADM/JJK), 2012 WL 104543 (D.Minn. Jan. 12, 2012); Dunbar v. Wells Fargo Bank, N.A., 853 F.Supp.2d 839 (D.Minn.2012); Olson v. Bank of America, N.A., Civil No. 11-3710 (PAM/ FLN), 2012 WL 1660615 (D.Minn. Apr. 20, 2012); Karnatcheva v. JPMorgan Chase Bank, N.A., 871 F.Supp.2d 834 (D.Minn.2012); Pope v. Wells Fargo Bank, N.A., Civil No. 11-2496 (SRN/FLN), 2012 WL 1886493 (D.Minn. May 23, 2012); and Peterson v. Citimortgage, Inc., Civil No. 11-2385 (SRN/JJG) (D.Minn. May 30, 2012). This Court is referencing this sample when this Court refers to Butler’s cases generally. . Since the Welk decision, other courts in this district have also sanctioned Butler. See Dunbar, 2012 WL 1394666 (D.Minn. Apr. 23, 2012); Murphy v. Aurora Loan Services, LLC, 859 F.Supp.2d 1016 (D.Minn.2012); Olson, Civil No. 11-3710 (PAM/FLN) (D. Minn. June 20, 2012). . This Court recognizes that there is conflicting authority for considering a proposed amended complaint filed in opposition to a motion to dismiss for fraudulent joinder. See Kongelf v. Sears Holding Corp., 2010 WL 1977833, at *9 (D.N.D. Apr. 7, 2010) (recognizing that “cases are divided over whether the court should confine its consideration to the claims set forth in the state-court complaint in resolving a claim of fraudulent joinder, or whether it can also consider new claims alleged in a motion to amend made after removal but before the court has had an opportunity to rule on the claim of fraudulent joinder”). Nevertheless, there is extensive authority that fraudulent joinder is determined only on the face of the state court complaint at the time of removal. See, e.g., Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.1983) ("Fraudulent joinder exists if, on the face of plaintiff s state court pleadings, no cause of action lies against the resident defendant.” (Emphasis added.)); Knudson v. Sys. Painters, Inc., 634 F.3d 968, 975 (8th Cir.2011) (holding that "[i]n the case of a removed action, diversity of citizenship must exist both when the state petition is filed and when the petition for removal is filed”). It is the view of this Court that plaintiffs are held to the standard of review for amending a complaint even if an amended complaint is considered on a motion to remand or a motion to dismiss for fraudulent joinder. Switching the order of analysis would permit a plaintiff faced with a meritorious fraudulent joinder argument to plead in the amended complaint fewer facts than would be passable under Fed.R.Civ.P. 12(b)(6) and create a colorable claim that compels remand. Permitting such a practice is nonsensical. Furthermore, there is analogous support for this conclusion in the case law pertaining to Fed. R. Civ. 19. Cf. Bailey v. Bayer CropScience L.P., 563 F.3d 302, 308 (8th Cir.2009) (stating that under Rule 19, a plaintiff is held to showing that "the new parties are necessary to a full resolution of the case”). . Plaintiffs argued in their memoranda in opposition to the motions to dismiss that Foreclosing Defendants cannot enforce the mortgages because of the terms of the mortgages and promissory notes. Pl.'s Mem., at 8-9, Dec. 19, 2011 (Docket No. 17); Pl.'s Mem., at 8-9, Dec. 22, 2011 (Docket No. 20). This allegation is borne out in the proposed amended complaint, but is not asserted in the original Complaint. See Pl.'s Supp. Mem. at 3, May 4, 2012 (Docket No. 47). . See Federal Home Loan Mortgage Corp. v. Yang, Court File No. 62-HG-CV-l 1-2822 (Ramsey County, Minn. Sept. 23, 2011). The record includes documents related to this foreclosure proceeding. See, e.g. Aff. Schroeder, at Ex. C, Apr. 20, 2012 (Docket No. 43-3). . There are some dicta suggesting that Minnesota state district courts could decide title issues within the context of eviction proceedings. See Lilyerd v. Carlson, 499 N.W.2d 803, 812 (Minn.1993) (stating "[wjhile an unlawful detainer action is generally summary in nature, determines only present possessory rights, and usually does not bar subsequent actions involving title or equitable rights of the parties, the counterclaim here could have been tried to a jury” (citations omitted)); Amresco Residential Mortg. Corp. v. Stange, 631 N.W.2d 444, 445 (Minn.App.2001) (noting, in eviction proceeding, that “the Minnesota Supreme Court has suggested in dicta that, even though [unlawful-detainer] proceedings are usually summary in nature, a counterclaim involving title should have been heard in an eviction proceeding to avoid the problems that later arose in a separate title action” (citing Lilyerd)). Nevertheless, this dicta, even if controlling, is inapplicable to the pres ent action because Plaintiffs Yang never asked the eviction court to adjudicate their claims against Defendants. . This recommended conclusion should not be read to suggest that no plaintiff would ever have standing to challenge foreclosure. See, e.g., Stein v. Chase Bank USA, N.A., 10-CV-0203 PJS/JSM, 2011 WL 882088 (D.Minn. Mar. 11, 2011) (discussing direct attacks on foreclosure sales).

MEMORANDUM Appellants Continental Insurance Company, Continental Assurance Company, and Continental Casualty Company (collectively, “CNA”) appeal the District Court’s dismissal of their federal action for failure to timely substitute the real party in interest pursuant to Rule 17(a). Following a tragic accident during a routine operation at Southern Nevada Surgical Center (“SNSC”), a state lawsuit was initiated and, after approximately two years, a settlement was reached. CNA paid $14 million of the settlement on behalf of SNSC, who then filed a claim for Indemnity and Contribution against Drager and Invivo (collectively, the “Appellees”), the manufacturers of some of the operating room equipment. Appellees argued that CNA was the real party in interest, a claim they took to the Nevada Supreme Court and the resolution of which took approximately three years. CNA in the meanwhile filed a protective action in state court preserving its rights. Appellees removed the protective action to federal court. The District Court stayed the case pending resolution of the state proceeding. Shortly after the Nevada Supreme Court ruled that SNSC was the proper party to be pursuing the suit, Appellees moved to dismiss the state action based on Local Rule 41(e), which provides that no action may be pending in state court for more than five years without proceeding to trial. Because the claim for Indemnity and Contribution had been filed within the original malpractice lawsuit, the five-year period had expired. The state case was dismissed without prejudice. At the same time, Appellees also moved to have the federal case dismissed because CNA had failed to timely substitute SNSC as the real party in interest. The District Court granted the dismissal. We reverse. As an initial matter, the doctrine of res judicata does not apply. The state case was dismissed without prejudice for Appellants to pursue their claims in the federal action. A dismissal without prejudice is not an adjudication on the merits and does not have a res judicata effect. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Trustees of Hotel and Restaurant Employees and Bartenders Intern. v. Royco, Inc., 101 Nev. 96, 692 P.2d 1308, 1309 (1985). We review the District Court’s conclusions of law de novo and its discretionary rulings for abuse of discretion. See Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.2000). Federal Rule of Civil Procedure 17(a) provides that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ... substitution.” The District Court held that the objection in this case was the Nevada Supreme Court’s April 26, 1999 decision that SNSC was the proper party in interest rather than Appellee’s June 22, 1999 motion to dismiss for failure to timely substitute. This was incorrect. A motion, either by the parties or by the court, must be made in order to notify the disputed party of the error. See Weissman v. Weener, 12 F.3d 84, 87 (7th Cir.1993) (even where court objects sua sponte, Rule 17(a) requires a reasonable time to cure the defect). An objection is meant to provide notice to the parties that a defect must be corrected. Cf. Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960) (general objection does not suffice to give proper notice of issue); see also Black’s Law Dictionary 1222 (4th ed.1951) (“to object .. is to interpose a declaration to the effect that the particular matter of thing under consideration is not done or admitted with the consent of the party objecting ... ”) The resolution of an issue in another court did not suffice as notice or objection for the purposes of Rule 17(a). The advisory notes to Rule 17(a) make clear that equitable principles should apply to a district court’s decision. See Fed.R.Civ.P. 17 Advis. Com. Notes (stating that the substitution clause “is added simply in the interests of justice”). The District Court erred in failing to consider the prejudice to the parties or the court’s interest in litigating suits on their merits. See Rousseau v. Diemer, 24 F.Supp.2d 137, 143-44 (D.Mass.1998) (considering, inter alia, prejudice to defendant); Conda Partnership, Inc. v. M.D. Construction Co., Inc., 115 Idaho 902, 771 P.2d 920, 922 (Idaho Ct.App.1989) (same); Rinke v. Johns-Manville Corp., 47 Wash.App. 222, 734 P.2d 533, 537 (1987) (same). Cf. Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir.2000) (setting out the equitable considerations for dismissing a case for failure to prosecute); Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir.1981) (setting out the equitable considerations for determining a reasonable time for filing a Rule 60(b) motion to vacate or reconsider the judgment). There is no indication that Appellees were prejudiced by the delay in substituting SNSC as the real party in interest. CNA made the motion on August 13, 1999, less than two months after Appellees’ motion to dismiss served as an objection. This was not an unreasonable delay. Cf. Fed.R.Civ.P. 25 (allowing 90 days to move to substitute a party after one dies) and 60(b) (allowing one year to move for relief from judgment). See also United States v. Dos Cabezas Corp., 995 F.2d 1486, 1491 (9th Cir.1993) (holding that government’s delay of 15 months between a default judgment and demand was reasonable). According to the state court in this case, thousands of hours and millions of dollars have already been spent on this case. There is a strong policy in favor of allowing a case to be heard on its merits. See Russell v. Cunningham, 279 F.2d 797, 804 (9th Cir.1960); see also Torres v. S.S. Pierce Co., 471 F.2d 473, 474 (9th Cir. 1972). The District Court found that CNA was “forum shopping” and acting in bad faith. We have never held that the filing of a protective action constitutes bad faith, even where the protective action is eventually litigated. See Union Pacific R.R. Co. v. Dept. of Revenue, 920 F.2d 581, 584 (9th Cir.1990). We also note that CNA repeatedly attempted to have its federal case remanded and consolidated with the state case. The District Court abused its discretion in labeling CNA’s conduct “forum shopping” in this context. The District Court correctly observed that “Rule 17(a) seeks to prevent forfeiture where ‘determination of the right party to sue is difficult or when an understandable mistake has been made.” ’ United States v. CMA, Inc. 890 F.2d 1070, 1074 (9th Cir.1989). However, the District Court erred in using this rule to determine that it did not have to allow a reasonable time to substitute. The three-year litigation over the proper party in interest in state court demonstrated that the determination of the right party to sue was difficult. Rule 17(a) speaks to parties who file claims knowing that they are not the proper partes to the suit, not to parties who discover in the midst of the litigation that they are not proper parties. Cf. Fed. R.Civ.P. 25 (allowing reasonable time to substitute where party in interest changes during pendency of suit). We find merit in neither of the alternative grounds for affirming that Appellees propose. CNA is not attempting to split a cause of action, and the principles this Court articulated in Wulff v. CMA Inc., 890 F.2d 1070 (9th Cir.1989), are not applicable here. Given the circumstances and equities of this case, we hold that a delay of less than two months in moving to substitute was not unreasonable. The District Court erred in dismissing this case. We REVERSE and REMAND to allow the substitution of the proper party in interest. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

GRUENDER, Circuit Judge. Jordan Rogers repeatedly pointed a laser at a police helicopter, temporarily blinding the pilot, and pleaded guilty to one count of aiming a laser at an aircraft in violation of 18 U.S.C. § 39A. On appeal, Rogers challenges the district court’s application of a nine-level sentencing enhancement for recklessly endangering the safety of an aircraft, pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2A5.2(a)(2). Because the district court did not clearly err in determining that Rogers recklessly endangered the safety of an aircraft, we affirm. At sentencing, the district court heard testimony from FBI Special Agent Karen Jarman. According to Jarman, Rogers initially denied knowing that his laser hit the helicopter. She interviewed him a second time after speaking to the pilot. Rogers then admitted he intentionally pointed his laser at the helicopter. Rogers claimed he did not know that anyone could be hurt, and Jarman explained to him the dangers of pointing a laser at an aircraft. But according to Jarman, Rogers also admitted he knew his conduct was illegal. Moreover, the district court received an exhibit containing police reports with statements from Rogers’s neighbors. One neighbor recalled Rogers shining the laser at him as he drove his car but aiming it away as the car turned and its headlights began to illuminate Rogers. The district court concluded that Rogers “showed that he was aware of the reckless endangerment that his actions caused by shining the laser at the aircraft.” As the court explained, He knew it was illegal. He did it on purpose. He followed the aircraft. He had exhibited his knowledge of the dangerousness by pointing the laser at a car earlier and then interrupting that activity when his presence was discovered or the car was turning toward him. He lied to the police. He did try to conceal himself immediately after the conduct of pointing the laser at the helicopter.... The district court overruled Rogers’s objection and applied the enhancement. Thus, Rogers’s advisory guidelines range was 41 to 51 months, and the district court imposed a sentence of 36 months’ imprisonment. , When reviewing the district court’s determination of the advisory sentencing guidelines range, we review the district court’s factual findings for clear error and its construction and application of the guidelines de novo. United States v. Hagen, 641 F.3d 268, 270 (8th Cir. 2011). In particular, we review a district court’s finding of recklessness for clear error. United States v. Valdez, 146 F.3d 547, 554 (8th Cir. 1998). “[A]s long as the determination is plausible in light of the record as a whole, clear error does not exist.” United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007). Though § 2A5.2 does not define “reckless,” the parties agree that we should use the definition from the application notes for § 2A1.4 cmt. (n.l) (involuntary manslaughter). This provision defines reckless as “a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” U.S.S.G. § 2A1.4 cmt. (n.l). Although it is a close question, we conclude that the district court did not clearly erf in finding that Rogers recklessly endangered the safety of an aircraft. As Rogers’s attorney admitted at oral argument, his earlier behavior in turning away the laser from the automobile established that he was aware of the danger of shining a laser at someone operating a vehicle. In addition, Special Agent Jarman testified that Rogers admitted he knew shining the laser at an aircraft was wrong. In sum, Rogers knew his conduct was wrong and knew it posed a risk to the driver of an automobile. Thus, it was reasonable for the district court to' infer he was aware of the danger of pointing his laser at an aircraft. As a result, the-district court’s finding was “plausible in light of the record as a whole.” See Farrington, 499 F.3d at 859. Rogers warns that applying the enhancement in' this case means that the enhancement must apply to .every violation of Í8 U.S.C. § 39A. We disagree. The record must show, as it did here, that the defendant was aware of the risk to the aircraft and grossly deviated from the standard of cafe in disregarding it. For this reason, this case is distinguishable from the Ninth Circuit’s opinion in United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015). In Gardenhire, the record was “devoid of evidence” that the defendant was .aware of the risk created by his conduct. Id. at 1280. Here, by contrast, evidence supported the district court’s conclusion that Rogers was reckless. Insofar as Gardenhire’s reasoning might forbid a district court to rely on a defendant’s knowledge that a laser beam can blind or endanger a person on the ground to infer knowledge of the risk to a piloted aircraft, we disagree.' For the foregoing reasons, we affirm Rogers’s sentence. . The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.

MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e through 2000e-17, proscribes certain employment practices that have a “disparate impact” on employees — that is, that have a discriminatory effect but for which there is no evidence of the employer’s subjective intent to discriminate. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In these two cases challenging sex and race discrimination in the Police Department of the City of Montgomery, Alabama, the issue before the court is whether new permanent procedures developed by the police department for promotions to the rank of sergeant violate this proscription and thus may not be used. As explained below, the court holds, first, that certain parts of the new permanent procedures survive disparate impact analysis and thus may be used by the department for promotions to sergeant and, second, that the remaining parts of the procedures are not yet ripe for consideration by the court. I. BACKGROUND A. Court Proceedings Leading Up to New Permanent Procedures for Promotion to Sergeant The relevant procedural events leading up to the current issue in these two consolidated cases are long but not complicated. In 1979 in United States v. City of Montgomery, civil action no. 3739-N, in response to a complaint-in-intervention brought by Sidney Williams, an African-American police officer, the court found that a sergeant’s examination used by the Montgomery City Police Department had an impermissible disparate racial impact in violation of Title VII. 19 Empl.Prac.Dec. (CCH) 119239 (M.D.Ala.) (Johnson, J.). The court enjoined the police department from future use of that test, or any other test or procedure for promotion to sergeant which results in a disparate racial impact, unless and until the court found that the test or procedure met the requirements of Title VII. Id. at 7419. The department did not attempt to develop a new test but instead used subjective promotion procedures, which according to periodic reports the department made to the court did not have adverse racial impact. Later, however, in 1986 in Jordan v. Wilson, civil action no. 75-19-N, in response to complaint-in-intervention brought by Sandra Pierce-Hanna, a female officer, challenging the subjective promotion procedures, the court held that the police department had violated Title VII by systematically discriminating against female officers in promotions. 649 F.Supp. 1038 (M.D.Ala.) (Thompson, J.). The court ordered the department to develop both interim and permanent promotion procedures that would not violate Title VIL Id. at 1062. The department employed testing experts to develop the procedures. In 1987, as part of the relief in both United States v. City of Montgomery and Jordan v. Wilson, the court approved and ordered implemented an interim promotion plan for the police department. 667 F.Supp. 772 (M.D.Ala.1987) (Thompson, J.). The interim plan required, among other things, that promotions in the department not have adverse impact on either black or female officers. Id. at 777. Both Officers Sidney Williams and Sandra Pierce-Hanna, along with the United States and the defendants (the City of Montgomery and its mayor and police chief), have continued to participate in this litigation. Williams currently represents a class of all black officers in the department and Pierce-Hanna currently represents a class of all female officers in the department. The court has also allowed Gordon M. Ledbetter and John D. Shumway to intervene in these two cases on behalf .of a class of all white male officers in the department. B. Development of New Permanent Procedures for Promotion to Sergeant In late 1989, the police department submitted to the court a proposed new permanent plan for promotions to the rank of sergeant. In developing the procedures and in anticipation of a Title VII challenge to the “validity,” or job-relatedness, of the procedures, the experts retained by the department followed a “content validity” strategy, one of three test validation strategies recognized by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 (1978) (hereinafter referred to as the “Uniform Guidelines”), and by the more recent Principles for the Validation and Use of Personnel Selection Procedures (3d ed. 1987) issued by the Society for Industrial and Organizational Psychology. The goal of the content-validity approach is to develop selection procedures “representative of important aspects of performance on the job.” Uniform Guidelines, 29 C.F.R. § 1607.5(B). In other words “the test itself [must] closely approximate the tasks to be performed on the job. The classic example of a test having content validity is a typing test for a typist job position.” B. Schlei & P. Grossman, Employment Discrimination Law 114 (2nd ed. 1983). The department’s experts used a two-step process to develop the new procedures under this approach; first, there was an analysis of the job of sergeant, and, second, there was the development of the promotion procedures themselves. The first-step job analysis defined the content of the sergeant’s job by identifying both the work performed in the form of “work behaviors” and the “attributes” of the workers performing that work, that is, their knowledges, skills and abilities. In order to be included in the final definition of the job content, both work behaviors and worker attributes had to meet certain tests or “screens” to assure that they were important to the job and necessary at entry. The latter screens were designed to guard against including worker attributes which could be learned in a brief orientation period. The Uniform Guidelines provide that In general, users should avoid making employment decisions on the basis of measures of knowledges, skills, or abilities which are normally learned in a brief orientation period, and which have an adverse impact. 29 C.F.R. § 1607.5(F). The worker attributes were also rated by incumbent police officers called “subject-matter experts” on the extent to which possession of each worker attribute would distinguish between superior and adequate overall job performance. All of the worker attributes included in the final definition of the job content met a minimum standard. The department’s experts then developed promotion procedures using both a written scored test and a structured oral interview to assess or measure the worker attributes — that is, a worker’s knowledges, skills and abilities — identified by the job analysis. Both devices were used because, according to the department’s experts, While some [worker attributes] could be appropriately sampled by only one measurement strategy (either written examination or structured oral interview), an effort was made to distribute [worker attributes] across both strategies to enhance content validity and reduce potential adverse impact. Past experience in other law enforcement settings suggested that African American candidates would perform better on the [oral interview] than on the written test vis-a-vis white candidates. Whenever the sub-domain within a given [worker attribute] could be measured by the [oral interview], this method was preferred. Weights “were computed for each measurement strategy to reflect the relative difference in the job content domain being sampled by each strategy.” But, as a result of the efforts of the department’s experts to minimize potential adverse impact by relying on the oral interview, the written test constituted only 40% of a candidate’s final score. After selecting appropriate measurement strategies, the department’s experts developed questions for the written test as well as “critical incident and problem scenarios” for the oral interview. The police officers who served as subject-matter experts were selected and represented by race and sex and played an important role in both processes. First, they were used to insure that the test questions were job-related and free from bias. If a subject-matter expert considered a question biased, the question was eliminated. Second, they rated potential test questions on their power to distinguish between adequate and superior levels of performance. Only those questions that passed this hurdle were included on the test. As a further check against the use of unfair questions, a linguist was retained to review test questions to insure that none was written in a way that would be unfair to black test-takers. Finally, as an additional effort to create a level playing field, candidates were given a number of aids, including the following: a description of the examination, a list of study materials, and an opportunity to participate in tutorials to sharpen their test-taking skills conducted by a specialist in preparing minorities for written employment examinations. After the written examination was administered, a sophisticated item analysis was conducted to reduce the number of test questions to be used in computing final scores. “Generally, items within a given content area having greater race and/or gender differences in difficulty were targeted for elimination. At the same time, the reliability of the test as a whole was an important consideration, as well as subtest reliability.” Because of the small number of female test-takers, greater weight was placed on racial differences in identifying items to eliminate. The oral interview was constructed through a similarly exacting process. Each interview panel consisted “of three interviewers, at least one of whom was an African-American and at least one of whom was female.” The scores from the two components of the selection process were then combined, with the written test counting 40% and the oral interview 60%. The department also accepted its experts’ recommendation that, rather than rank the candidates in strict numerical order, they should be grouped within five “bands” to guard against over interpreting small differences and to reflect that the selection procedures that they had designed — like all selection procedures — did not measure everything. Candidates within each band are considered equally qualified. Under this banding approach, each band is to be exhausted in turn, beginning with the band containing the highest scores. The total number of candidates within each band, from the highest scoring to the lowest scoring band, is as follows: Band Candidate Total Black White Male Female A 8 0 8 7 1 B 25 3 22 24 1 C 44 9 35 41 3 D 39 12 27 37 2 E 14 6 8 14 0 Totals 130 30 100 123 7 In late 1990, while the parties were still preparing for a hearing on the sergeant’s procedures, the police department asked to promote 20 officers immediately under the plan. The 20 officers to be promoted were as follows: the eight candidates in Band A (seven white males and one white female) and 12 of the 25 candidates in Band B (eight white males, one white female, and three black males). These 20 officers therefore consisted of 15 white males, two white females, and three black males. By order entered in January 1991, the court allowed the promotions to go forward over an objection filed by the class of black police officers. The court based its holding on the fact that the department desperately needed the promotions and the fact that the court believed that it retained the ability to provide the black officers with full relief should it later determine that the promotions violated Title VII. The court understood that the department intended to make 20 additional promotions; if the court rejected the procedures, the defendants could be required to include a sufficient number of blacks in the 20 additional officers to avoid adverse racial impact for the entire 40 promotions. In July 1991, the court held a hearing on the proposed permanent procedures for promotion to sergeant to determine whether they would result in impermissible disparate impact in violation of Title VII. Counsel for all parties — the United States, the black officers, the female officers, the white male officers, and the defendants— participated. II. DISCUSSION A. The Analytical Framework Title VII prohibits two types of discrimination: “disparate treatment” and “dispar ate impact.” With the former, an employee must prove intentional discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). With the latter, however, the employee challenges “practices that are fair in form, but discriminatory in operation,” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); the employee need not prove intentional discrimination. Id. at 430, 91 S.Ct. at 853. Here, the question for the court is whether the Montgomery Police Department’s proposed permanent promotion procedures for the rank of sergeant would result in an impermissible disparate impact. In assessing whether there is impermissible disparate impact, a court should engage in a three-step process. First, the employee must identify the specific employment practice challenged and, further, must show that the challenged practice falls significantly more harshly on one group than another, that is, that the practice under attack has created “adverse impact.” Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989). If this showing is made, the burden then shifts to the employer to produce evidence of job relatedness for the employment practice. The employer’s burden is one of production not persuasion, for the burden of persuasion always remains with the employee. Finally, if the employer satisfies its burden, the employee may prevail only if he or she shows that the employer’s justification for the practice has no basis in fact or that another practice, without a similarly undesirable adverse effect, would also serve the employer’s legitimate employment interests. Id. at 660, 109 S.Ct. at 2126. “Of course, any alternative practices which [an employee may] offer up in this respect must be equally effective as [the employer’s] chosen ... procedures in achieving [the employer’s] legitimate employment goals.” Id. at 661, 109 S.Ct. at 2127. Furthermore, because “Courts are generally less competent than employers to restructure business practices,” id. (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978)), “the judiciary should proceed with care before mandating that an employer must adopt a plaintiff’s alternative selection ... practice in response to a Title VII suit.” Id. All parties agree that the Montgomery Police Department’s proposed sergeant’s procedures have a significant adverse racial impact on African-American candidates, and no one questions the department’s evidence of an employment justification for the procedures. Still, the parties disagree on three points. First, the black police officers claim that the court should not approve the proposed promotion procedures because there is an alternative selection procedure available that would serve the department’s interest in an effective police force equally as well but with significantly less adverse racial impact. Second, the white male police officers contend that promotions on the basis of the procedures should be made in rank order rather than from bands. Third and finally, both the United States and the white male officers argue that the department should be required to develop procedures for making selections from within bands. The court will consider each of these contentions in turn. B. The African-American Police Officers’ Argument for an Alternative Procedure The black police officers claim that the written test should be used as a “pass/ fail” device with the oral interview scores used to order candidates. The officers argue that this alternative procedure would have less adverse racial impact than the police department’s procedures and yet would serve the department’s interest in an effective police force equally as well. To support this argument, the officers maintain that, because most of the candidates who did fairly well on the oral interview also did fairly well on the written test, their alternative approach would not yield people decidedly less able to meet the demands of the sergeant’s position. The officers further maintain that the defendants’ experts always intended to use the written test solely as a pass/fail procedure. Indeed, according to the black officers’ expert, this approach “carries the strong endorsement” of the Uniform Guidelines. Although the black officers’ position has a certain surface appeal, the court is not persuaded that their alternative would be equally effective in serving the police department’s legitimate interest. First, the manner in which the job analysis was carried out and the test questions prepared reflects that the written test was intended to be used to distinguish among levels of job performance. The Uniform Guidelines recognize that, in such a situation, ranking may be appropriate. They provide that If the user can show, by a job analysis or otherwise, that a higher score on a content valid selection procedure is likely to result in better job performance, the results may be used to rank persons who score above minimum levels. 29 C.F.R. § 1607.14(C)(9). Second, although most of the candidates who did fairly well on the interview also scored 90 or better on the written test, the fact remains that some scored below 90. Similarly and more importantly, scores from 90 to 100 on the written test actually cover a broad range — in statistical terms, four standard errors of measurement, and, in lay terms, a range sufficiently broad to allow for meaningful distinctions among the candidates who scored in the range. To use the test simply on a pass/fail basis would treat the scores within the range as if they were the same and would ignore the distinctions among the candidates that the differences in the scores reflect. The approach would, as a result, undermine the reliability and validity of the proposed promotion procedures and thereby sacrifice, rather than further, the legitimate interests of the police department. Anticipating this conclusion, the black officers argue that any shortcomings in those promoted could be overcome after a brief period of service at the sergeants’ rank. But accepting this argument would place the court in the position of second-guessing, without any basis, the judgment of incumbent police officers. As explained earlier, the proposed promotions procedures measured only those worker attributes — that is, knowledges, skills, and abilities — that police officers rated as necessary at entry to the sergeant’s rank and which could not be learned in a brief orientation period. In addition, adopting this argument would place the court in the position of assuming, without evidence, that differences among candidates in their performance on the test would not translate into differences in their performance on the job once they were promoted. With the public safety of the people of the City of Montgomery at stake, the court cannot make such a critical but unsubstantiated assumption. Before leaving the topic of the black officers’ proposed alternative selection procedure, it is necessary for the court to address one final point. The black officers have noted that the black test-takers’ correlation between the written test and the oral interview appears to be different from the white test takers’ correlation — 0.23 versus 0.01. The officers point to this difference as the primary source of the adverse impact resulting from the department’s selection procedures and as a justification for adopting their proposed alternative. The court’s response to this observation is simple. The black officers appear to be confused by the requirement that they identify the “specific or particular employment practice that has created the disparate impact under attack.” See Wards Cove, 490 U.S. at 656-57, 109 S.Ct. at 2124-25. Admittedly, “Such a showing is an integral part of the plaintiff’s prima facie case in a disparate-impact suit under Title VII.” Id. However, there is no question in this case but that the department’s proposed promotion procedures are the source of the adverse impact against black candidates. Given this point, it is not necessary for the black officers to offer a more elaborate statistical description of the manner in which the adverse impact occurs. Even if the black officers had not called the court’s attention to the apparent difference in correlations, it would have been incumbent on the court to consider their proposed alternative. In any event, the difference to which the black officers refer is more apparent than real. The evidence reflects that, given the small number of black test-takers, the difference between the two correlations, when compared directly, is not statistically significant. Admittedly, the black officers’ expert claimed that the two correlations should not be compared directly. According to their expert, both correlations should first be compared to zero. When this procedure is followed, the correlation for white test-takers, 0.23, is significant, but that for black test-takers, 0.01, is not. The expert then concludes that, because one correlation is statistically significant and one is not, the two are different. But this approach cannot withstand closer analysis. Even if the correlation for black test-takers had been 0.23, the same as that for white test-takers, it would still not have been statistically significant when compared to zero given the small number of black candidates — with the illogical result that the two correlations would have been different even if they had been identical. Moreover, the efforts of the black officers’ expert to salvage his approach with the argument that statistical tests do not apply because the figures were not drawn from a sample, does not wash. Commentators have recognized that “statistical tests can be a useful aid ... in assessing the plausibility of chance patterns” in such circumstances. D. Baldus & J. Cole, Statistical Proof of Discrimination § 9.32 at 316 (1980) (discussing “whole universe” problem). Indeed, the black officers’ expert himself performed statistical tests when comparing the correlations to zero. C. The White Male Police Officers’ Argument for Rank-Ordered Selection The white male officers contend that the scores from the department’s proposed procedures should be used in rank order rather than in bands. According to the officers, rank ordering would maximize organizational efficiency in the long run even if the difference between two scores, say 92 and 93, were not statistically significant. The officers contend that, because the female officer and two of the three black officers promoted from Band B had numerical scores that were lower than those of some of the white males in Band B who were not promoted, a ruling that a rank-ordered use of the procedures was required might entitle the white male officers to relief. Actually, the white male officers make their argument in only a half-hearted fashion. Their expert candidly acknowledged that he is “not opposed to banding,” that the procedure is “an attractive device in terms of administration,” and that the theoretical increase in efficiency from rank ordering is premised on the repeated, long-term use of the same procedures, a premise that is unlikely to hold true here. Moreover, other courts have endorsed a banding approach. See, e.g., Bridgeport Guardians, Inc. v. City of Bridgeport, 735 F.Supp. 1126, 1136-37 (D.Conn.1990) (Daly, J.), aff'd, 933 F.2d 1140 (2nd Cir.1991). It appears as if the white male officers’ real objection concerns the absence of a formalized procedure for making selections within bands, and it is to this objection that the court now turns. D. The United States and the White Male Police Officers’ Argument that There Should Be a Formalized Procedure for “Within Band” Selection The white male officers and the United States complain that the police department has no formalized procedure for making selections from within bands. They contend that the problem will be especially critical if the department reaches Band C, the band that contains 44 candidates. The lack of formalized procedures, according to them, invites arbitrariness. The police department responds that it has asked its experts to develop a training program to help guide the department in making selections from within bands. The training will be designed to help the department avoid common rating biases and focus its attention on those abilities that are important for sergeants but were not capable of being measured by the written test and the oral interview. Furthermore, because these additional guidelines developed for the department will necessarily be subjective ones that would be difficult if not impossible to validate, the department has agreed to avoid adverse impact for selections from within bands. Cf. Local 28 of the Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 421, 450-51, 106 S.Ct. 3019, 3036-37, 92 L.Ed.2d 344 (1986) (numerical goals acceptable when promotions are necessary and nondiscriminatory procedures are not available). The court is of the view that the issue of within-band selections is not ripe for resolution. Because the police department has yet to develop these additional guidelines, neither the parties nor the court can evaluate them. In addition, the department may never make promotions from Band C, the band with 44 remaining candidates. Although it appeared earlier, at the time the court approved the initial promotion of 20 candidates, that the department would promote 20 more persons during the two-year life of the rankings under the proposed promotion procedures, it now appears from the evidence presented at the hearing on the proposed procedures that unanticipated budgetary problems may make it impossible to do so. Given that only white males remain in Band B, the only band from which further promotions are likely, it is unlikely that an issue about promotions from within the bands will arise in the context of this employment discrimination lawsuit. Accordingly, the defendants in this litigation — the City of Mont gomery, Alabama and its mayor and police chief — will be allowed to promote from Band B, but not Band C without further court approval. III. CONCLUSION In a year, this litigation will be 20-years old, and if it continues at the same pace it will be well into the next century before it comes to an end. Indeed, the court today could give only partial approval to the sergeant’s promotion procedures and has yet even to consider promotion procedures for the other ranks. It is therefore evident that the parties and the court must investigate and consider other means for resolution of this litigation. Otherwise, these two cases will give a literal meaning to the figurative comment this court made a number of years ago, in another lawsuit, that “Unlike old soldiers, cases such as the one now before the Court not only never die, they never fade away.” United States v. Frazier, 14 Empl.Prac.Dec. (CCH) ¶17599 at 4929 (M.D.Ala.1976) (Johnson, J.). DECLARATORY JUDGMENT AND INJUNCTION In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court: (1) That the objections to the sergeant’s promotion procedures for the Police Department of the City of Montgomery, made by the United States, the Williams intervenors on behalf of all black police officers, and the Ledbetter intervenors on behalf of all white male police officers, be and they are hereby overruled; (2) That it be and is hereby DECLARED that the sergeant’s promotion procedures for the Police Department of the City of Montgomery are approved and may be used by the defendants — that is, the City of Montgomery and its mayor and police chief — to the extent that they seek to make promotions from ranks A and B; and (3) That the defendants, their officers, agents, servants and employees and those persons in active concert or participation with them who receive actual notice of this order, be and they are each hereby ENJOINED and RESTRAINED from making any promotions from ranks other than ranks A and B without first obtaining approval from the court. The clerk of the court is DIRECTED to issue a writ of injunction. . For a more detailed history of United States v. City of Montgomery and Williams’s participation in it, see Sims v. Montgomery County Commission, 686 F.Supp. 878 (M.D.Ala.1988) (Thompson, J.). . For further discussion of the interim plan, see United States v. City of Montgomery, 731 F.Supp. 436 (M.D.Ala.1989) (Thompson, J.) (promotion of black officer to rank of lieutenant under interim plan); United States v. City of Montgomery, 744 F.Supp. 1089 (M.D.Ala.1990) (Thompson, J.) (promotion of female officer to rank of captain under interim plan). . The other methods of validation are “criterion-related” validation, which is established when "there is a significant positive correlation between comparative success on the test and comparative success on some measure of job performance,” B. Schlei & P. Grossman, Employment Discrimination Law 114 (2nd ed. 1983); and "construct” validation, which is established when "there is a significant relationship between the test and the identification of some trait, such as ‘intelligence’ or ‘leadership,’ which is required in the performance of the job." Id. . Auburn University at Montgomery Job Analysis for the Ranks of Sergeant, Lieutenant, Captain, and Major in the Montgomery Police Department (1989) (hereinafter referred to as “Job Analysis Report”). . Auburn University at Montgomery Content Validation Report Police Sergeant Promotional Procedures for the Montgomery, Alabama Police Department at 5 (1991) (hereinafter referred to as "Content Validity Report”). . Job Analysis Report at 22. . Content Validation Report at 8. . Id. at 12. . Id. . Id. at 12-13, 55. . Id. at 23, 27-29. . Id. at 28-29. . Id. at 27-28. . Id. . Id. at 24. . Id. at 32. . Id. at 34 & App.K. . Id. at 34. . Id., App.K (last page). . Id. at 38-54. . Id. at 49. . Id. at 55. . Id. . For a discussion of the various methods of establishing significant disparate impact, see Richardson v. Lamar County Bd. of Educ., 729 F.Supp. 806, 816 (M.D.Ala.1989) (Thompson, J.), aff'd, 935 F.2d 1240 (11th Cir.1991). . The Uniform Guidelines similarly provide: Consideration of suitable alternative selection procedures. Where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact. 29 C.F.R. § 1607.3(B). . The black police officers' trial brief at 14. . See also Equal Employment Opportunity Commission: Adoption of Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, Q. & A. 62, 44 Fed.Reg. 11,996, 12,005 (1979) (hereinafter referred to as the "EEOC Questions and Answers”). . According to the black officers’ expert, the correlation for black test-takers was 0.10, and, according to one of the police department’s experts, it was 0.01. Because the use of the 0.01 figure would actually make the black officers’ argument stronger by making the difference between the correlations appear to be greater, the court has adopted the department’s figure. . The black officers' expert originally referred to the difference in correlations as an example of "differential validity.” At the start of the July 1991 hearing, however, he acknowledged that his use of the term had been too loose. Differential validity refers to a situation that may occur only in the context of a criterion-related validity study, not a content validity model. See EEOC Questions and Answers, Q. & A. 71. The phenomenon of a difference in correlations for two groups on two different selection devices developed following a content validity model is not a situation that is covered in the Uniform Guidelines or in other relevant professional standards in the field of industrial/organizational psychology. . In choosing an example to illustrate the difference in correlations, the black officers’ expert made an error that resulted in exaggerating the apparent difference. According to their expert, there were four blacks among the top 30 scorers on the written test, and there were five blacks among the top 30 on the oral interview; yet there were only two blacks among the top 30 on the combined results. The expert maintains that the fact that the number of black high scorers is lower on the combined figures than on either component of the process is anomalous. In fact, however, the actual figures are 2.4, five, and two. The fraction results from the fact that there were many tie scores on the written test. Moreover, had the black officers' expert chosen to focus on the top 35 candidates instead of the top 30, the analogous figures would have been 3.5, six, and four. The expert admitted that figures such as 2.4, five, and two or 3.5, six, and four would not have been troublesome. . Content Validity Report, App. T (last page) . Although it argues that the issue is not ripe for resolution, the class of female police officers has stated that it opposes any method of selection from within bands that will leave the police department with any discretion in light of the department's history of retaliation. See United States v. City of Montgomery, 755 F.Supp. 1522 (M.D.Ala.1990) (Thompson, J.) (promotion of Alford to the rank of captain), aff'd, 934 F.2d 1265 (11th Cir.1991) (table); United States v. City of Montgomery, 744 F.Supp. 1074 (M.D.Ala.1989) (Thompson, J.) (selection of deputy chief), aff'd, 911 F.2d 741 (11th Cir.1990) (table); Jordan v. Wilson, 667 F.Supp. 772 (M.D.Ala.1987) (Thompson, J.) (development of interim plan to address retaliation); Jordan v. Wilson, 649 F.Supp. 1038 (M.D.Ala.1986) (Thompson, J.) (promotion of Pierce-Hanna).

MEMORANDUM AND ORDER GLASSER, District Judge: On July 15, 1991 this court by Memorandum and Order granted defendant’s motion for summary judgment dismissing the complaint, and on July 22, 1991 a final judgment was entered. Plaintiff now moves under Rules 52(b) and 59(e), Fed.R.Civ.P., “to set aside and vacate the fact-findings set forth in the Memorandum and Order”; under Rules 60(b)(1), (2), (3), and (6) to set aside and vacate the final judgment; and under Rule 3(j), Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, for reargument of the summary judgment motion. The grounds he alleges are (1) that plaintiff has presented new facts which were not previously set forth; (2) that the omissions were in error but were excusable; and (3) that defendant has misrepresented critical facts to the court in its papers. The New Affidavits Plaintiff filed two affidavits in support of the Rule 52(b), 59(e), and 60(b) motions, the second revising the first. Defendants filed a responsive affidavit. Under Local Rule 3(j), affidavits may not be filed without leave of the court, and following a request by plaintiff I explicitly denied leave by written order on July 22, 1991. As set forth below, the affidavits shall be disregarded in connection with that motion. Their contents is described herein for such application as they have to the other motions. Familiarity with the July 15, 1991 Memorandum and Order here is presumed. By way of summary, however, the undisputed facts presented to the court with the motion for summary judgment were that plaintiff, a successful surgeon in private practice held, in addition to full attending privileges at Lutheran Medical Center (“LMC” or “the Hospital”), the part-time $30,000 per year position of Chief of Ambulatory Surgery at a community clinic run by LMC. Prior to 1986, LMC recruited new doctors through a teaching residency program, many of whom stayed in the community and provided treatment to its patients. In 1986, however, LMC lost its residency program, and, by virtue at least of its location, realized difficulty in attracting new doctors. As a recruiting device, LMC dissolved the position of Chief of Ambulatory Surgery and created in its place three new part-time clinic staff positions paying $10,000 per year. Their hope was that the $10,000 salary would be attractive to new doctors establishing private practices and might encourage some who might not otherwise have considered it to settle in the vicinity. Reference was made in a draft internal Hospital memorandum to the need of a mechanism for attracting “young” surgeons, and a similar reference was made in a letter written by the Hospital’s director of surgery. Plaintiff was terminated and the three positions were filled by doctors aged 38, 40, and 42 who were known to plaintiff through their prior affiliation with LMC and who at the time enjoyed attending privileges at the Hospital. Summary judgment was granted defendant because plaintiff offered no evidence in rebuttal of its nondiscriminatory rationale for the dissolution of plaintiffs position. The basis of plaintiffs current motions is that, born and raised in India, his English language skills are poor and he had difficulty communicating his ideas to his attorney. Had he “underst[ood] the nature of these legal proceeding,” he would have “[brought] to the attention of my attorneys certain important factual matters.” Patel Amended and Restated Aff., ¶ 2. The supposedly new relevant factual matter was that the three surgeons had prior affiliation with the Hospital as attending surgeons, and that no “turnover” in the positions has taken place. In support of the assertion of prior affiliations, plaintiff submits as his Exhibit A a memorandum which indicates the dates at which two of the three new doctors had been appointed to the Hospital staff. That memorandum had been “Exhibit B” to the affidavit of Miles Kucker, M.D. submitted by defendant with the motion for summary judgment. The remainder of plaintiffs affidavit is essentially reargument of the merits of the summary judgment motion. Plaintiff claims that prior to the July 15, 1991 decision he did not understand the nature of defendant’s proffered reason for the dissolution of his position, but that his new affidavit should now effectively demonstrate that it was pretextual, and that summary judgment should have been denied. Defendant, by its President and Chief Executive Officer George Adams, submits an opposing affidavit. He first states that plaintiff has no language problem. Adams Aff. ¶ 2. He then states that the attending surgeons were chosen to fill the three new positions because none were well established and one of them, Dr. Khan, had expressed intention to leave the Hospital and move to a different community. Id. ¶ 6(d). He states that the salaried nature of the clinic positions serves as a significantly stronger incentive than a grant of attending status. Moreover, plaintiff was well aware of the background of these surgeons prior to the motion; in fact, he trained them. Adams also explains that while LMC still does not have a full residency program, in October 1990 by affiliation with Maimonides Medical Center four surgical residents from Maimonides are now being trained at LMC. They have not rotated new surgeons into the three clinic positions because of the difficulty of recruiting new surgeons and because the need has become less urgent. Id. Ml 6(i)- (])• DISCUSSION 1. Propriety of moving under 52(b) and 59(e): Rule 52, Fed.R.Civ.P., provides, in part: Findings By the Court (a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon____ Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41(b). (b) Amendment. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for new trial pursuant to Rule 59. Rule 59(e) reads: Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. Some courts have ruled that Rules 52(b) and 59(e) are not the appropriate mechanism for seeking reconsideration of a determination of a motion for summary judgment. One court wrote: [Rules 52(b) and 59(e)] apply to judgments entered after a trial and do not apply to judgments entered pursuant to a motion for summary judgment, as in the present case. Therefore, I will consider this a Motion for Reconsideration pursuant to Rule 20(g) of the Local Rules of the Eastern District of Pennsylvania. Hill v. Bethlehem Steel Corp., 729 F.Supp. 1071, 1072 n. 1 (E.D.Pa.1989), aff'd, 902 F.2d 1560 (3d Cir.1990). Other courts have rejected such motions to the extent they were brought under Rule 52(b) but not 59(e). See All Hawaii Tours Corp. v. Polynesian Cultural Center, 116 F.R.D. 645 (D.Haw.1987) (determinations of fact on summary judgment “are not findings of fact in the strict sense ... A motion to amend findings under Rule 52(b) does not lie where findings of fact are unnecessary under Rule 52(a).”), rev’d in part on other grounds, aff'd in part without pub’d op., 855 F.2d 860 (9th Cir.1988). Most courts, however, including those in this circuit, allow a motion to amend a grant of summary judgment to be brought under Rule 59(e). We will proceed, therefore, to the merits. See, e.g., Northern Cheyenne Tribe v. Hodel, 842 F.2d 224 (9th Cir.1988) (motion for reconsideration of summary judgment appropriately brought under Rule 59); Kort v. Western Surety Co., 705 F.2d 278, 280-81 (8th Cir.1983) (upholding trial court’s power, under Rule 59(e), to rescind prior grant of summary judgment); Larry Spier, Inc. v. Bourne, Co., No. 90 Civ. 1065, slip op., 1991 WL 51146 (S.D.N.Y. Apr. 3, 1991) (considering defendant’s motion to amend judgment under Rule 59(e) after grant summary judgment even though “there is some force to the suggestion” that “the substance of plaintiff’s motion does not fall within the rule.”); Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F.Supp. 209 (S.D.N.Y.1990) (vacating summary judgment upon motion under Rule 59(e) and Local Rule 3(j)). 2. “Newly Discovered Evidence” Whether moving on the basis of presentation of new evidence under Rule 59(e) or Rule 60(b)(2), the standard for “newly discovered evidence” is the same. C. Wright and A. Miller, 11 Federal Practice and Procedure 182, § 2859 (1973 ed.) (“The same standard applies to motions on the ground of newly discovered evidence whether they are made under Rule 59 or Rule 60(b)(2), and decisions construing Rule 59 in this context are authoritative in construing Rule 60(b)(2).”). Rule 60(b)(2) provides for relief from final judgment on the basis of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” Under Rules 59(e) and 60(b)(2) evidence which was “in the possession of the party before the judgment was rendered ... is not newly discovered and does not entitle him to relief.” Id. at 182-83. See United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir.), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983); Burzynski v. Travers, 111 F.R.D. 15, 17 (E.D.N.Y.1986). The evidence sought to be admitted here is not “newly discovered,” as plaintiff’s counsel acknowledged at oral argument. It was not only within the knowledge of plaintiff prior to the original motion, but documentary support of that evidence, the memorandum submitted with the current motion as plaintiff’s Exh. A, had been served with defendant’s motion papers with the summary judgment motion. This fact renders fulfillment of the “due diligence” component superfluous here, since the evidence was in plaintiff’s possession. However, even if plaintiff’s alleged language barrier somehow prevented the evidence from being presented in what plaintiff would consider a manner most favorable to his case, he has not demonstrated — in light of plaintiff’s continual presence in this country and his 25-year successful career as a private practitioner, teacher, and hospital administrator — that due diligence would not have rendered the evidence available. 3. Local Rule 30) As noted earlier, leave to submit affidavits in support of plaintiffs Rule 3(j) motion was denied. Accordingly, plaintiffs affidavits did not explicitly purport to be offered in support of the Rule 3(j) motion, and they are disregarded in connection with this motion. Motions for reargument under Rule 3(j) are granted only when new facts come to light or when it appears that controlling precedents have been overlooked. McMahan & Co. v. Donaldson Lufkin & Jenrette Security Corp., 727 F.Supp. 833 (S.D.N.Y.1989); Weissman v. Fruchtman, 658 F.Supp. 547 (S.D.N.Y.1987). Plaintiffs have not endeavored to identify controlling precedent which the court overlooked, save an unexplained citation to one case, distinguished in the margin. Nor does plaintiffs affidavit, were it to be considered, identify any new facts which have come to light since the motion was argued. The motion is thus denied. 4. “Mistake, inadvertence, surprise, or excusable neglect” Rule 60(b)(1) provides for relief from judgment on the basis of “mistake, inadvertence, surprise, or excusable neglect.” Plaintiff argues that his neglect was his and his attorney’s failure to mar-shall all the facts within his knowledge in opposing the motion for summary judgment. His excuse is his difficulty expressing himself in English. However, [a] defeated litigant cannot set aside a judgment [under Rule 60(b)(1)] because of his failure to interpose a defense that could have been raised at trial, or because he failed to present on a motion for summary judgment all of the facts known to him that might have been useful to the court. C. Wright and A. Miller, 11 Federal Practice and Procedure 163, 173, § 2858 (1973 ed.). This is exactly what plaintiff is attempting to do now, and the motion necessarily fails. See also Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 29 (1st Cir. 1980) (Rule 60(b)(1) motion denied despite submission of relevant affidavit, since no explanation was given for failure to present facts earlier). 5. Fraud Plaintiff states he is also moving under Rule 60(b)(3), which provides relief from a judgment upon a showing that it was procured by fraud or misrepresentation. No such showing has been made here. In fact, as pointed out earlier, the document plaintiff relies on here to demonstrate the Hospital’s prior association with the three doctors who replaced him was submitted by defendant with its summary judgment motion papers. Relief under this rule is thus denied as well. 6. “Clause (6)” Under 60(b)(6), relief from a judgment is available for “any other reasons justifying relief.” Clause (6) may be relied upon only in exceptional circumstances. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 2204, 100 L.Ed.2d 855 (1988); United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977). Wright and Miller explain: In general, relief is given under clause (6) in cases in which the judgment was obtained by the improper conduct of the party in whose favor it was rendered or the judgment resulted from the excusable default of the party against whom it was directed under the circumstances going beyond the earlier clauses of the rule. The court then considers whether relief under clause (6) will further justice without affecting substantial rights of the parties. * * * 5k Sfc * ... [C]lause (6) and the first five clauses are mutually exclusive and ... relief cannot be had under clause (6) if it would have been available under the earlier clauses. C. Wright and A. Miller, 11 Federal Practice and Procedure 213, § 2858 (1973 ed.). As plaintiff has demonstrated no misconduct or excusable default on the part of defendants, and indeed no exceptional circumstances, relief under clause (6) is not available and is denied. See, e.g., United States v. Cirami, 563 F.2d at. 34 (relief under Rule 60(b)(6) available where attorney neglected case because of psychological disorder); Vindigni v. Meyer, 441 F.2d 376 (2d Cir. 1971) (relief available because of complete disappearance of plaintiff’s attorney). 7. Defendant’s Motion for Fees Defendant has moved for attorney’s fees with citation to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and several cases interpreting provisions in those statutes permitting, under certain circumstances, such an award. Those provisions aside, Rule 11, Fed.R.Civ.P., commands that upon a finding that a pleading was not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,” “sanctions shall be imposed.” O’Malley v. New York City Transit Authority, 896 F.2d 704, 709 (2d Cir.1990); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). A cursory review of so much as a federal procedure treatise would have revealed that this motion was utterly without legal foundation. Plaintiff submitted three memoranda of law with this motion — a Memorandum, a Revised Memorandum, and a Reply Memorandum — presenting some 25 pages of discussion without citation to any authority which would support his motion. The memoranda and affidavits are also devoid of any factual basis to support the present motions, save that rejected above as wholly and patently insufficient. This motion was a clear abuse of the mechanisms by which reconsideration and amendment of judgment may be achieved in appropriate cases. The proponent of such a motion is not supposed to treat the court’s initial decision as the opening of a dialogue in which that party may then use Rule 3(j) to advance new facts and theories in response to the court’s ruling. The purpose of the rule is to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters. McMahan & Co. v. Donaldson Lufkin & Jenrette, 727 F.Supp. 833 (citations and internal quotation marks omitted). An appropriate sanction under Rule 11, Fed. R.Civ.P., shall therefore be awarded. See, e.g., Collins Development Corp. v. Marsh & McLennan, Inc., No. 90 Civ. 4675, slip op., 1991 WL 135605 (S.D.N.Y. July 18, 1991) (awarding Rule 11 sanctions against plaintiff who, warned of the strict requirements of Local Rule 3(j), filed its motion to reargue based on the “discovery” of new evidence which was by plaintiff’s own admission within his possession prior to the filing of the original motion). Defendant shall submit an affidavit setting forth the reasonable expenses incurred because of the filing of this motion, including an up-to-date record of counsel’s hours and rates. Such affidavit shall be filed on or before October 31, 1991. The plaintiff may file and serve a response on or before November 15, 1991, and a hearing, if requested by either party, will be held on November 22, 1991 at 9:30 a.m. SO ORDERED. . It may be noted that an "attending” physician in this context is one who utilizes a hospital’s facilities to treat patients whom he bills directly. He draws no salary, nor necessarily obtains patients, from the hospital. . Indeed, had they been offered to support the Rule 3(j) motion, to that extent they would have been disregarded in any event. See Collins Development Corp. v. Marsh & McLennan, Inc., No. 90 Civ. 4675, slip op., 1991 WL 135605 (S.D.N.Y. July 18, 1991); Chambless v. Masters, Mates & Pilots Pension Plan, 697 F.Supp. 642, 644-45 (S.D.N.Y.1988), aff'd in part, rev'd in part on other grounds, 885 F.2d 1053 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990). . Plaintiff refers the court to Binder v. Long Island Lighting Co., 933 F.2d 187 (2d Cir.1991). The plaintiff in that case worked in various high ranking technical and managerial positions at LILCO from 1955 to 1987. He was forced to retire when his position was eliminated by a new "hands-on” Chairman and Chief Executive Officer one of whose goals was the trimming of LILCO’s "bureaucracy.” Plaintiff advised LILCO's Vice President of Human Resources that he wished to be placed in another position within LILCO. However, no position was ever offered because, while positions for which he was qualified were available, that officer determined that plaintiffs high qualifications and experience rendered them inappropriate for him. The district court granted defendant’s motion for summary judgment. The Second Circuit found that the record showed no reason to doubt defendant’s proffered business justification for the elimination of plaintiffs position. However, plaintiff asserted that he was qualified for many other open positions within LILCO which were filled by younger people and which he was not offered. Citing Taggart v. Time, Inc., 924 F.2d 43, 48 (2d Cir.1991), the court held that an employer’s rebuttal that an applicant is "overqualified” might be considered pretextual by a trier of fact and reversed the district court’s ruling. The only difference between Binder and Taggart, the court said, was that unlike the plaintiff in Taggart, the plaintiff in Binder had made no express statement that he would accept a particular job at a lower salary or grade level. The case at bar fundamentally differs from these cases. First, plaintiff does not claim the Hospital considered him overqualified for the new staff positions. Second, plaintiff himself expressly stated in a deposition that he would not have accepted one of the new staff positions: Q: Did you ever try to obtain a job at LMC as a staff surgeon employee? A: No. Q: Would you take that position if offered to you? A: No. Q: Would you have taken the position if offered to you in 1987? A: No. I’m a full-time surgeon at Lutheran Medical Center and it will be humiliating because of the position I was fired upon. ****** Q: ... Am I correct in assuming that the only job you wanted at LMC was the job of Clinical Supervisor in the family health care center, or something better than that? A: Yes. Patel Depo., July 24, 1990, reproduced in Seminara Reply Aff. in Support of Summary Judgment Motion ¶ 7. Even without this statement, the theory that plaintiff would have accepted such a position would be fundamentally inconsistent with plaintiffs posture throughout this entire dispute. Plaintiff, who derived a salary from his professional corporation of over $250,-000 each year 1985 through 1988, see id. ¶ 15(i), wanted essentially to retain the title of Chief of Ambulatory Surgery or Chief of the Clinic: I did not need to be eliminated. LMC emphasizes that, since I did not want a mere staff job, none was offered to me. But this does not address why LMC did not consider retaining me, along with such staff persons, to perform certain functions associated with being Chief of the Clinic for which I was better suited. I could have kept my title and performed the various non-medical, administrative and medical supervisory functions associated with this position in the Clinic, even if it meant taking a reduction in pay. Although I would have agreed to do this, LMC never offered me this option. Patel Amended and Restated Aff. ¶ 13. LMC never offered him the option because the clinic positions became recruiting devices and plaintiff was a well-established surgeon with strong and long-standing ties to the Hospital. As stated in the court’s July 15, 1991 Memorandum and Order, plaintiff never offered any evidence suggesting that defendant’s explanation was pretextual.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING 17 JUNE 1991 DISGORGEMENT HEARING GADOLA, District Judge. On September 4, 1990, this court entered an order and judgment in the above-refer enced proceeding. That order held that disgorgement was appropriate and ordered an evidentiary hearing be held to determine the appropriate amount. The evidentiary hearing was held on June 17, 1991. During the course of the trial and at all times during the course of this litigation, defendants Sims and GLE either have been represented by counsel or have at times represented themselves. Defendant Kowal appeared pro se at the evidentiary hearing regarding the appropriate amount of disgorgement. Having considered the record herein, the briefs submitted by the parties, the evidence presented at trial and the arguments of counsel, the court makes the following findings of fact and conclusions of law. I. Findings of Fact 1. G. Reynolds Sims is the founder and sole shareholder of Great Lakes Equities, Co. Defendant Sims is also the President of GLE, its only director, and principal decision maker. 2. Prom at least 1988 through 1989, GLE was an illiquid, under-capitalized company which was operating on essentially a break-even basis in 1988 and at a significant loss in 1989. 3. Moreover, GLE’s internal controls were unreliable. Its books were kept on a cash basis and were in such disarray that GLE’s auditor had to employ substantive testing in their audit. 4. Also, as proven at the trial on the merits, defendant Sims used GLE to defraud investors of GAT, MSE and Contach out of hundreds of thousands of dollars, for which he and GLE were found guilty of violating the federal securities laws and enjoined from further violations. 5. From at least 1988 through 1989, defendant Sims caused Sims and Kaplan to pay expenses of GLE. For example, salaries and withholding taxes of employees of GLE, with the exception of the registered representatives, were paid by Sims & Kaplan. 6. Similarly, Sims & Kaplan paid at least $19,500 of GLE’s 1988 audit fees and a portion of GLE’s telephone expenses. 7. Moreover, a check made out to GLE was deposited into the bank account of Sims & Kaplan, and GLE sublet Eric Bryen’s apartment. Finally, hundreds of thousands of dollars were paid by GLE to Sims & Kaplan between 1988 and 1989. 8. From the evidence presented at the lengthy trial on the merits as well as from the evidence presented at this hearing on disgorgement, and being otherwise familiar in the premises, the court finds that defendant Sims dominated and controlled the activities of GLE so completely that the corporation had no separate mind, will, or existence of its own. 9. From the evidence presented at the lengthy trial on the merits as well as from the evidence presented at this hearing on disgorgement, and being otherwise familiar in the premises, the court finds that defendant Sims used his domination and control over GLE to commit fraud and that the fraud resulted from Sims domination and control. 10. In view of the foregoing paragraphs 1-9, defendant Sims is the alter-ego of Great Lakes Equities Co. 11. Moreover, in view of the foregoing paragraphs 1-9, defendant Sims’ activities and those of Great Lakes Equities Co. are inextricably linked. 12. Defendants Sims and Great Lakes Equities Co. are jointly and severally liable for payment of $609,589.10 in disgorgement and prejudgment interest. 13. Defendant Lawrence M. Kowal is liable for payment of $28,335.85 in disgorgement and prejudgment interest. II. CONCLUSIONS OF LAW 1. Defendant Sims is the alter ego of Great Lakes Equities Co. Bucyrus-Erie Co. v. General Products, 643 F.2d 413, 418 (6th Cir.1981) (If a party dominates and controls a corporation and uses the domination and control to commit fraud, the party is an alter ego of the corporation.); Laborers’ Pension Trust Fund v. Weinberger Homes, Inc., 872 F.2d 702 (6th Cir.1988); see also William L. Comer Family Equity Trust v. U.S., 732 F.Supp. 755 (E.D.Mich.1990). 2. Moreover, the activities of defendants Sims and Great Lakes Equities Co. are inextricably linked. Securities and Exchange Commission v. R.J. Allen & Associates, Inc., 386 F.Supp. 866, 881 (S.D.Fla.1974). 3. When addressing the amount of money that a defendant must disgorge, the Sixth Circuit has held, by implication, that the entire amount of profits which were illicitly received must be disgorged. See Securities and Exchange Commission v. Blavin, 760 F.2d 706, 710 (6th Cir.1985), aff'g 557 F.Supp. 1304 (E.D.Mich.1983); see also Securities and Exchange Commission v. Washington County Utility District, 676 F.2d 218, 227 (6th Cir.1982). 4. Defendant Sims is GLE’s alter ego. His actions are inextricably interwoven with those of GLE. Under these circumstances, joint and several liability is appropriate. Securities & Exchange Commission v. R.J. Allen & Associates, Inc., 386 F.Supp. 866, 881 (S.D.Fla.1974); accord Securities and Exchange Commission v. World Gambling Corp., 555 F.Supp. 930, 931 (S.D.N.Y.1983); see also Securities and Exchange Commission v. Novaferon Labs, Inc., et al., 90 CV 1446 (N.D.Ohio December 14, 1990). 5. Moreover, all doubts concerning the determination of disgorgements “are to be resolved against the defrauding party.” Securities and Exchange Commission v. First City Financial, Ltd., 688 F.Supp. 705, 727 (D.D.C.1988), affd, 890 F.2d 1215 (D.C.Cir.1989) (citing Securities and Exchange Commission v. MacDonald, 699 F.2d 47, 55 (1st Cir.1983)). 6. The deductions for overhead, commissions and other expenses are not warranted. The manner in which defendants Sims and Great Lakes Equities Co. chose to spend their misappropriation is irrelevant as to their objection to disgorgement. See Securities and Exchange Commission v. Benson, 657 F.Supp. 1122, 1127 (S.D.N.Y.1987); see also Securities and Exchange Commission v. Dimensional Entertainment Corporation, 493 F.Supp. 1270, 1283 (S.D.N.Y.1980). 7. The defendants in this case misinterpret the terms “profit or benefit” as they are used in cases ordering disgorgement: “[The defendant’s] construction would permit the perpetrator of a successful scheme, who was just as successful at dissipating the ill-gotten gains, to avoid a disgorgement order because at the time of the order, [it] had retained none of the proceeds from the scheme. To state the proposition is to discount he [sic] efficacy of it.” Securities and Exchange Commission v. Jet Travel Services, Inc., (CCH) Fed.Sec.L.Rep. [1975-76 Transfer Binder], 95, 317 at 98,609 (M.D.Fla. Aug. 29, 1975). The benefit or unjust enrichment of a defendant includes not only what it gets to keep in its pocket after the fraud, but also the value of the other benefits the wrongdoer receives through the scheme. Thus, in insider trading cases, a tipper must disgorge not only his own profits but also any profits made by his tippees, even if the tipper did not receive any tangible kickback from those tippees. Securities and Exchange Commission v. Texas Gulf Sulphur, 446 F.2d 1301, 1307-08 (2d Cir.1971), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971); Securities and Exchange Commission v. Tome, 638 F.Supp. 638, 639 (S.D.N.Y.1986) aff'd, 833 F.2d 1086 (2nd Cir.1987) cert. denied, 486 U.S. 1014, 108 S.Ct. 1751, 100 L.Ed.2d 213 (1988). Securities and Exchange Commission v. Clark, Civ. No. C87-7112 (W.D.Wash. May 16, 1989), appeal pending. See also Dirks v. Securities and Exchange Commission, 463 U.S. 646, 664, 103 S.Ct. 3255, 3266, 77 L.Ed.2d 911 (1983). The benefit to the tipper is inferred. Similarly, in this case, the benefit defendants Sims and GLE received from the various payments can also be inferred. Moreover, the specific categories of expenses which are proffered by the defendants are not deductible. For example, where the expenditures are to defray obligations of the wrongdoer, the wrongdoer is benefited by those expenditures. Thus, for example, even under defendants’ theory, there is no basis for deducting the costs of fixed expenses since those expenses would be incurred whether or not the fraud took place. By allowing a deduction for fixed expenses, part of the proceeds of the fraud is being used to defer costs that defendants Sims and GLE had to pay in any event, and they would be unjustly enriched by those payments. Clearly, defendants Sims and GLE should not be allowed to profit by their fraud. Moreover, a substantial portion of those fixed costs consists of rent payments into the pockets of the law firm of Sims & Kaplan, an entity controlled by defendant Sims. In addition, substantial sums were paid to defendant Sims personally. Similarly, where the expenditures are made to maintain a valuable asset of defendants Sims and GLE, they have benefitted from those expenditures, and the amount of those expenditures is not a proper deduction from the amount of unjust enrichment. Finally, as discussed infra, the Commission is required to prove only an amount of disgorgement reasonably approximate of the benefits or profits causally connected to the violation. First City Financial Corp., Ltd., 890 F.2d at 1231. Further, in Commission cases where the amount of unjust enrichment cannot be precisely determined, the Commission, and not the defendants, is entitled to the benefit of the doubt. First City Financial Corp., Ltd., 890 F.2d at 1232. Accordingly, judgment shall enter for plaintiff and against defendants Sims and Great Lakes Equities Co., jointly and severally, for payment of $609,589.10 in disgorgement and prejudgment interest and against defendant Lawrence M. Kowal for payment of $28,335.85 in disgorgement and prejudgment interest. . Securities and Exchange Commission v. Great Lakes Equities Co., et al., [current volume] Fed. Sec.L.Rep. (CCH) 95,685 at 98,203, 1990 WL 260587 (E.D.Mich. September 4, 1990) (hereinafter referred to as Order at_). . The following format will be used in the citation to the record. Citations to the transcripts from the preliminary hearing will reference the witness, volume and page, e.g. Bryen PT V5 p 79; citations to the transcripts from the hearing on the merits will be referenced similarly, e.g. Sims TT VI p 30; exhibits will be referenced to their number or letter and, if appropriate, page, paragraph or sentence, e.g. Ex 31 p 2 3 sen 1; citations to the stipulations entered into between the parties in the Joint Final Pretrial Order will reference the number, e.g. Stip 2; citations to a deposition will reference the witness, the exhibit number, if any, and the page, e.g. Burgess Dep Ex 109 p 20. The following findings of fact and conclusions of law are adopted with some minor redactions from plaintiffs proposed findings of fact and conclusions of law filed with this court. . Order at 98,203. . Id. . Exhibit 70A-B, Bates stamp 000148 (Arthur Andersen & Co. workpapers from the audit of GLE for the year end September 30, 1988); see also Exhibit 7, Bates stamp 00380 (Arthur Andersen & Co. workpapers from the audit of GLE for the year end September 30, 1989). . It is clear from the evidence in the record that all decisions of any import at GLE were either made by defendant Sims or cleared by him prior to implementation. For example, defendant Sims was primarily, among other things, involved in the investment banking relationship with GAT, see Order at 98,207; was principally involved in jointly producing the video with GAT, Order at 98,207-98,208; prepared press releases and sales materials; and dealt with the principals of GAT, MSE and Contach, Order passim. Similarly, defendant Sims reviewed all order tickets, and approved most of them, prior to their entry. See Exhibit 70A-B, Bates stamp 000040. . Exhibit 70A-B, Bates stamp 00025 P. 2, 000031 P. 6 and 000075 and plaintiffs exhibit 7, Bates stamp 00036. . The trial record contains examples of defendant Sims’ attempts at capital infusion. See Reiger testimony TT V XXIV P. 60 (year end 1989 Sims contributed $173,000), Exhibit 70A-B, Bates stamp 000024, P. 2. Despite these attempts at capital infusion, this court, in its order, found that GLE was not in compliance with the net capital provisions at various times during the time period alleged in plaintiffs complaint. . See Reiger testimony TT V XXXIV pp. 23-24, p. 27 (accruals not being made); p. 32 (books in poor shape); pp. 35-36 (GLE had "kind of' a general ledger); and p. 39 (substantive testing employed); see also Exhibit 70A-B, Bates stamp 000075 (books kept on a cash basis), Exhibit 70A-B, Bates stamp 000012 and 000024 and plaintiffs Exhibit 7, see generally Bates stamp 00010, 00032, 00036, 00038 and 00039. . Exhibit 70A-B, Bates stamp 000024 and 000075. The accruals from audits since 1986 had not been recorded. Exhibit 70A-B, Bates stamp 000024; see also Exhibit 7, Bates stamp 00039. . Exhibit 70A-B, Bates stamp 000012; see also Reiger testimony TT V XXIV p. 39; see also Exhibit 7, Bates stamp 00032, 00036 and 00039. . See Exhibit 70A-B, Bates stamp 000167-000168; see also Exhibit 7, Bates stamp 00248-00251. . Exhibit 11. (Sims admissions check number 4345); see also plaintiff Exhibit 7, Bates stamp 00108 and 00352. Sims & Kaplan also paid $3,000 for the compilation prepared for defendant GLE by Cohen, Aramson & Levitt. See Exhibit 7, Bates stamp 00464. . Exhibit 12. (Sims admission check numbers 4349, 4297 and 4251). . Exhibit 12. (Sims admission, Hamilton Miller ... Travel Corporation check number 24234). . Exhibit 70A-B, Bates stamp 000141. . Defendants’ Exhibits 000 and D. . See plaintiffs Exhibits 1-4. . See plaintiffs Exhibits 5 and 6. . Blavin does not explicitly hold that no deductions may be taken for expenses; the issue of expenses is never directly addressed. In Blavin, however, there is no deduction taken for expenses. Moreover, it is clear that it is within the district courts' equitable discretion to disallow expenses incurred in perpetration of the fraud even if there were Sixth Circuit authority for the proposition that expenses may be deducted from disgorgement. . Defendants misconstrue plaintiffs burden of proof in the disgorgement context and the amount of specificity required. Plaintiff is not required to trace every dollar of proceeds misappropriated by the defendants Sims and GLE, nor is plaintiff required to identify misappropriated monies which have been commingled by them. All plaintiff is required to show is that the amount of disgorgement is a "... reasonable] approximation of profits causally connected to the violation ...” Securities and Exchange Commission v. First City Financial Corp., Ltd., 890 F.2d 1215, 1231 (D.C.Cir.1989). Once, as here, plaintiff has proven that, the burden of proof shifts. Id. at 1232. Indeed, since calculating disgorgement may at times be a near-impossible task, the risk of uncertainty should fall on the wrongdoer whose illegal conduct created that uncertainty. First City Financial Corp., Ltd. at 1232. . The case law cited by the defendants is neither binding precedent, nor persuasive. First the defendants' cases are not precedent because none of them are from the Sixth Circuit or Supreme Court. Conversely, plaintiff has cited two Sixth Circuit cases regarding disgorgement. Secondly, the defendants’ cases are not persuasive. With the exception of Securities and Exchange Commission v. Thomas James, Inc., 738 F.Supp. 88 (W.D.N.Y.1990), none of the defendants' cases involve the Securities and Exchange Commission. Yet both First City Financial Corp., 890 F.2d at 1232-33 n. 24, and Litton Industries, Inc. v. Lehman Brothers Kuhn Loeb Inc., 734 F.Supp. 1071, 1076 n. 3 (S.D.N.Y.), recognize that the standard to be applied differs when the commission appears, as here, as "... the statutory guardian charged with safeguarding the public interest in enforcing the securities laws ...” Id. In Estate of Pidcock v. Sunnyland America, 726 F.Supp. 1322 (S.D.Ga.1989), the district court denied deductions of any expenses or costs. In fact, the Eleventh Circuit stated that, contrary to allowing deductions, "... [i]t is more appropriate to give the defrauded party the benefit of even wind-falls than to let the fraudulent party keep them ...” Pidcock v. Sunnyland America, 854 F.2d 443, 446 (11th Cir.1988) (citations omitted). Finally, with regard to Securities and Exchange Commission v. Thomas James, the district court clearly equated disgorgement with restitution, 738 F.Supp. 88, 94 (W.D.N.Y.1990). The Sixth Circuit in Blavin rejected the defendant’s argument that disgorgement was a type of restitution that should be based on investor losses. Instead, the Sixth Circuit stated that once the Commission has established that a defendant has violated the securities laws, the Court possesses the equitable power to grant disgorgement of a sum of money equal to all other "illegal payments received.” 760 F.2d at 713.

ORDER Submission of this case was deferred to allow the parties to consider settlement. Having been advised that the parties were not able to achieve accord, the Court orders this petition for review resubmitted as of the date of the filing of this order. MEMORANDUM Anthony Apasen Mauting and his brother, Remigio Apasen Mauting (“the Mautings”) seek review of a final order of the Board of Immigration Appeals (“BIA”) affirming an immigration judge (“IJ”) decision denying them derivative adjustment of status. We have jurisdiction under 8 U.S.C. § 1105a(a)(l) (1996). Because petitioners have alleged a colorable claim of estoppel against the government, but an insufficient factual record exists for evaluating that claim, we transfer this case to a district court in accordance with 28 U.S.C. § 1631 for further consideration in the form of a habeas action. I Following her engagement to American citizen Allan Cecil, Simona Mauting and her three sons — who were natives and citizens of the Philippines — entered the United States on January 20, 1998, using valid “K-l” and “K-2” nonimmigrant visas pursuant to 8 U.S.C. § 1101(a)(15)(K) (1996); see also 8 U.S.C. § 1184(d) (1996); 8 C.F.R. § 214.2(k). Simona and Allan Cecil married on March 4, 1988, in the state of California. Anthony Mauting was 20 years old at the time of the marriage; Remigio Mauting was 17 years old. On March 23, 1988, Simona sought adjustment of status for herself and her sons and shortly afterwards appeared for an interview before an officer of the Immigra tion and Naturalization Service (“INS”). See 8 U.S.C. § 1255(a), (d); 8 C.F.R. § 214(k)(6)(ii). The INS denied her application on March 27, 1991, after concluding that Simona’s Guamanian divorce in 1987 from her ex-husband was not valid and that her subsequent marriage to Cecil was thereby invalidated. The INS reasoned that the Guamanian divorce was not cognizable under either the laws of the Republic of Philippines or the state of California because neither Simona nor her ex-husband had traveled to Guam to obtain the divorce. The INS also issued an order to show cause charging Simona and the Mautings deportable under 8 U.S.C. § 1255(a)(1)(A) and (B) as having stayed in the United States for a longer time than permitted and as excludable aliens without valid immigrant entry documents. After deportation hearings, an IJ concluded on April 22, 1993, that the Guamanian divorce decree and Simona’s subsequent marriage to Cecil were both valid. The IJ granted Simona adjustment of status. However, the IJ held that the Mautings did not qualify as derivative beneficiaries to their mother’s adjusted status because each was over the age of 21 at the time of the decision and was not a “child” as defined in 8 U.S.C. § 1101(b)(1). Relying on 8 U.S.C. §§ 1153(d) and 1158(c), the IJ noted that the determination of the Mautings’ eligibility for derivative status at the time of adjudication accorded with the “usual practice of the [INA] regarding derivative beneficiaries of immigrant visas or application for adjustment of status.” The IJ declined to entertain the Mautings’ claim that the INS should be estopped from deporting them because of the INS’s affirmative misconduct, holding that he was without power to apply equitable estoppel against the INS. In a summary order issued on December 29, 1998, the BIA affirmed the IJ’s determination, also holding that it was “without authority to apply the doctrines of estoppel and laches” against the INS. This timely petition for review followed. We have jurisdiction over this petition for review under the transitional rules because the decisions of the BIA and IJ were based upon an objective, factual determination of eligibility, rather than as a result of an exercise of discretion. Bemal-Vallejo v. INS, 195 F.3d 56, 62 (1st Cir.1999); cf. Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir.1994). We examine derivative claims for adjustment of status within the context of the strong Congressional preference for maintaining or fostering the unity of immigrant families. See, e.g., S. Rep. No. 1515 at 435, 81st Cong., 2d Sess. (1950). Ill The BIA and the IJ correctly concluded that neither had the authority to consider the Mautings’ equitable estoppel claim during the administrative process. Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir.1996); Matter of Hernandez-Puente, 20 I & N Dec. 335, 338 (BIA 1991). We may consider equitable estoppel on a petition for review from a deportation order. INS v. Miranda, 459 U.S. 14, 18-19, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982); Socop-Gonzalez v. INS, 208 F.3d 838, 842 (9th Cir.2000). District courts also have jurisdiction to consider equitable estoppel claims in a habeas corpus proceeding under 28 U.S.C. § 2241. Sulit v. Schiltgen, 213 F.3d 449, 453 (2000). Estoppel may be applied against the INS where it engages in some “affirmative misconduct” beyond mere negligence. Socop-Gonzalez, 208 F.3d at 842 & n. 4. Mere delay is insufficient to constitute INS affirmative misconduct. INS v. Miranda, 459 U.S. 14, 18-19, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982); Jaa v. INS, 779 F.2d 569, 572 (9th Cir.1986). A party asserting estoppel against the government bears heavy burdens. See, e.g., Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986). Estoppel against the government applies “only where the government’s wrongful act will cause a serious injustice, and the public’s interest will not suffer undue damage by imposition of the liability.” Mukherjee, 793 F.2d at 1006. If an equitable estoppel claim is facially deficient, or cannot be sustained on the undisputed facts, we have denied relief. See, e.g., Sulit, 213 F.3d at 454 (no equitable estoppel from failure to inform individual of legal rights); Socop-Gonzalez, 208 F.3d at 843 (no evidence of a “deliberate lie” or “pattern of false promises”); Mukherjee, 793 F.2d at 1009 (no equitable estoppel based on misinformation). However, in this case, the Mautings have alleged and preserved a color-able claim of equitable estoppel. “To be colorable in this context, the alleged violation need not be substantial, but the claim ‘must have some possible validity.’ ” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001) (internal quotations omitted). The Mautings allege, with record support, that the INS deliberately delayed processing their derivative adjustment of status petition until just prior to Remigio Mauting’s twenty-first birthday in order to preclude the derivative claims; that the INS recklessly and without legal or factual basis asserted that Simona Mauting’s divorce was invalid, despite its knowledge to the contrary; that the INS engaged in a deliberate pattern of deception; and that, as a result, the Mautings were forever prevented from obtaining derivative adjustment of status. These claims have enough “possible validity” to constitute a colorable cause of action for equitable estoppel. However, as we have noted, neither the BIA nor the IJ had jurisdiction to consider the Mautings’ estoppel arguments on the merits, and we find the record insufficient for evaluation of the Mautings’ estoppel claims. Thus, transfer to the district court is appropriate under 28 U.S.C. § 2347(b)(3), see Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 496-97 & n. 3, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (Ginsburg, J., concurring), and 28 U.S.C. § 1631. Cf. Fano v. O’Neill, 806 F.2d 1262, 1265-66 (5th Cir.1987) (remand to district court when petitioner had stated a claim for equitable estoppel against INS on denial of permanent resident status caused by wilful and reckless delay in processing application). By transferring this petition, we are expressing no opinion on the ultimate merits of this case. PETITION TRANSFERRED. . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. . Because deportation proceedings were initiated in 1991 and the BIA's final order of deportation was entered on December 29, 1998, the transitional rules of the Illegal Immigration and Immigrant Responsibility Act of 1996 CTIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656 (1996), apply. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997). . Section 2347(b)(3) authorizes a transfer when an agency has not held a hearing before taking the complained-of action, and "when a hearing is not required by law and a genuine issue of material fact is presented.” . Section 1631 provides: “Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.”

PER CURIAM: Frederick Leto challenges the district court’s order affirming the bankruptcy court’s denying him a discharge under 11 U.S.C. § 727(a)(2)(A). Leto contends that he is entitled to discharge because he did not have fraudulent intent when he transferred several pieces of real estate to a trust. He also contends that he is entitled to discharge because the transfers occurred more than one year before he filed his petition for bankruptcy. We affirm. Under 11 U.S.C. § 727(a)(2), a debtor is not entitled to a discharge where the debt- or transfers property of his estate within one year before filing his bankruptcy petition if the transfer is made “with the intent to hinder, delay, or defraud a creditor.” 11 U.S.C. § 727(a)(2). To successfully object to a discharge under § 727(a)(2)(A), a creditor must establish (1) that the act complained of was done within one year prior to the date the petition was filed, (2) with actual intent to hinder, delay, or defraud a creditor, (3) that the act was that of the debtor, and (4) that the act consisted of transferring, removing, destroying, or concealing any of the debtors property. In re Jennings, 533 F.3d 1333, 1339 (11th Cir.2008) Leto first contends that he did not have fraudulent intent when he transferred four pieces of real estate worth several million dollars into a trust because he did not conceal the transfers. The bankruptcy court was unpersuaded by that contention. It found that Leto transferred the property to the trust with the intent to hinder, delay, or defraud his creditor Cindy Cutro. “We review for clear error the bankruptcy court’s factual determination that a debtor intends to hinder, delay or defraud a creditor.” Id. at 1338. Where, as here, the district court has affirmed the bankruptcy court’s findings, “we will apply the clearly erroneous doctrine with particular rigor.” In re Wines, 997 F.2d 852, 856 (11th Cir.1993) (quotation and citation omitted). There is ample evidence to support the bankruptcy court’s and district court’s determination. Cutro had obtained a $7,000,000 judgment against Leto in late 2005 based on the parties’ former business relationship. From 2004 to 2005, Leto took steps to transfer millions of dollars worth of real estate into a trust, which, in his own words, would allow Leto to “own nothing” but “control everything.” Those transactions reflect several of the “indicia of fraud” that we have identified in considering whether a debtor made a transfer with “actual intent to defraud his creditors.” In re Jennings, 533 F.3d at 1339. For example, Leto transferred the property without receiving any compensation. He also retained possession and control of the property. Further, after transferring the property, he was left with only $820 in assets. Finally, he made the transfers while he was engaged in an ongoing business dispute with Cutro, during which she had threatened to file suit. Cutro eventually followed through on that threat, resulting in a $7,000,000 judgment against Leto. Based on those facts, the bankruptcy court did not clearly err in determining that Leto transferred the real estate with the intent to hinder, delay or defraud Cu-tro. Leto also argues that he is entitled to a discharge because he made the transfers more than a year before he filed his bankruptcy petition. Like the bankruptcy court and district court, we are unconvinced. Florida law requires deeds transferring property to be signed in the presence of two subscribing witnesses. See Fla. Stat. § 689.01. The initial deeds of transfer for two of the four properties at issue failed to comply with that requirement. Under Florida law, “a deed which lacks two subscribing witnesses is insufficient to convey title.” American Gen. Equity, Inc. v. Countrywide Home Loans, Inc., 769 So.2d 508, 509 (Fla. 5th DCA 2000). Therefore, the defective deeds did not result in a transfer of the property. Instead, the transfer became effective when Leto filed corrective deeds, which contained the required witnesses’ signatures, in December of 2005. Leto filed his bankruptcy petition in June 2006, less than one year after he transferred those two properties. As the district court correctly noted, “once those two transfers qualify under § 727(a)(2)(A), challenges to the other two transfers become moot.” Leto transferred property within one year of his bankruptcy petition. The bankruptcy court found that Leto transferred the property with the intent to defraud, hinder, or delay Cutro.- The bankruptcy court’s denial of a discharge to Leto under § 727(a)(2)(A) was proper. AFFIRMED.

MEMORANDUM OPINION AND ORDER BRIAN BARNETT DUFF, District Judge. Benito Gonzalez, an inmate at the Pontiac Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 seeking damages and other relief for alleged violations of his constitutional rights during an interrogation following his arrest and in the course of the trial that resulted in his conviction. In its order of August 8, 1988, the court dismissed all Gonzalez’s claims except his damage claim against Chicago police officer Aubrey O’Quinn. O’Quinn has filed a motion for summary judgment to which Gonzalez has responded with a summary judgment motion of his own. For the reasons that follow, the court grants O’Quinn’s motion and denies that of Gonzalez. Given the liberal construction accorded pro se pleadings under Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), Gonzalez’s complaint can be read to assert two claims against O’Quinn. Gonzalez maintains that O’Quinn violated his rights under the Fourth and Fourteenth Amendments by detaining him for forty-eight hours before providing a judicial determination of probable cause. Gonzalez also complains that O’Quinn’s harsh treatment of him during this period of detention coerced him into giving an inculpatory statement. Facts O’Quinn arrested Gonzalez at 4:00 p.m. on October 29, 1984. He had reason to believe that Gonzalez was responsible for shooting a waitress in a restaurant because an eyewitness to the crime had given police a description that fit Gonzalez and had identified Gonzalez as the assailant from a photo array. Following the arrest, O’Quinn took Gonzalez to the police station where he was cuffed to a wall in an interview room and questioned. Police meanwhile tried to contact the eyewitness and arrange a lineup. The eyewitness, however, could not come to the police station until the following day. Learning this, detective Timothy Nolan submitted a request to the watch commander to hold Gonzalez past the regularly scheduled court call in order to hold the lineup the next morning. The request was approved and Gonzalez was turned over to the lockup keeper somewhere around 5:00 p.m. The lineup was held the next day shortly after noon. The eyewitness identified Gonzalez as the man who shot the waitress. After the lineup, Gonzalez was taken back to the interview room where he again was handcuffed to the wall. O’Quinn had no further contact with Gonzalez until the trial. At approximately 4:00 p.m., assistant state’s attorney Janet Trafelet arrived at the station and began questioning Gonzalez. Shortly thereafter, Gonzalez gave Trafelet a statement regarding the shooting incident. Gonzalez asserts he signed it only because Trafelet misinformed him as to the contents of the statement and told him he could go home once he signed it. Gonzalez also maintains that he did not receive any food between the time of his arrest and the time he gave his statement. After he gave his statement, Gonzalez was returned to the lockup where he remained until the next day when he was taken to court for his preliminary hearing. Although the exact time of the preliminary hearing is not in the record, it appears that it was held in the late afternoon. A jury convicted Gonzalez of aggravated battery, armed violence, and attempt murder. The appellate court vacated the conviction for aggravated robbery and armed violence and affirmed the conviction for attempt murder. That conviction has withstood several collateral challenges in both state and federal court. Discussion Standard of Review Summary judgment is appropriate if there is 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). The moving party has the initial burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has pointed out the lack of a genuine issue of material fact, a non-moving party who bears the burden of proof on an issue may not rest on the pleadings. He instead must come forth with specific facts through affidavits or other materials showing that a genuine issue of material fact exists and requires trial. Id. at 324, 106 S.Ct. at 2553; Morgan v. Harris Trust and Savings Bank, 867 F.2d 1023,1026 (7th Cir.1989). A genuine issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Exhaustion of Habeas Corpus Remedies O’Quinn advances several grounds in support of his motion for summary judgment. He first asserts that Gonzalez’s challenge to the conditions of his detention is essentially a challenge to the fairness of his trial which can only be made in a habeas corpus petition because it amounts to a constitutional challenge to his conviction. Accordingly, O’Quinn, citing Hernandez v. Spencer, 780 F.2d 504 (5th Cir.1986), contends that Gonzalez cannot bring his § 1983 claim until after he has exhausted the remedies available to him under the habeas corpus statutes. Although it is true that an imprisoned § 1983 plaintiff must first exhaust his habeas remedies before pursuing his civil rights claims, see Hanson v. Heckel, 791 F.2d 93 (7th Cir. 1986), that requirement does not preclude this action. This action would not interfere with ongoing state proceedings, undermine the validity of a criminal conviction or facilitate the circumvention of the federal habeas corpus statutes, the rationales for requiring the exhaustion of post-conviction remedies. See Scruggs v. Moellering, 870 F.2d 376, 378-379 (7th Cir.1989); see also Johnson v. Chicago, 712 F.Supp. 1311, 1316-17 (N.D.Ill.1989). In Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991), the Supreme Court stated that admission at trial of a coerced confession is “simply an error in the trial process itself” rather than a “structural defect” in the constitution of the trial. Relying on that distinction, the Court then ruled that the admission of a coerced statement will not render a conviction invalid if it was harmless beyond a reasonable doubt. In light of Fulminante, a finding that Gonzalez’s statement was a product of state coercion would not necessarily, and in fact would almost certainly not, undermine his conviction. Judge Prentice Marshall dismissed Gonzalez’s federal habeas corpus petition finding the evidence of his guilt “overwhelming.” United States ex rel. Gonzalez v. Chrans, 87 C 10372 (N.D.Ill. June 27, 1988). That dismissal was affirmed on appeal after the close of briefing on O’Quinn’s summary judgment motion. No. 88-2468 (7th Cir. Apr. 17, 1990). More to the point, however, this § 1983 claim is not precluded because Gonzalez has in fact exhausted his habeas remedies. He has no further avenues of relief to challenge the fact of his conviction. Gonzalez was unsuccessful before the state postconviction court which found that he had waived his claim regarding his allegedly coerced statement by failing to raise it on direct appeal. In addition, as mentioned above, Judge Marshall’s dismissal of Gon zalez’s federal habeas corpus petition was affirmed by the Seventh Circuit after the close of briefing in this motion. Conditions of Detention/Coerced Statement The crux of Gonzalez’s suit against O’Quinn goes not to the fairness of the criminal trial (hence the concern over exhaustion of habeas remedies) but rather to the alleged acts of coercion themselves. At the outset, it must be remembered that a police officer who takes a statement from a suspect is not responsible for determining whether that statement was sufficiently voluntary to be admitted into evidence. The mere fact that an involuntary statement was introduced at trial therefore is not be enough to subject him to § 1983 liability. See Duncan v. Nelson, 466 F.2d 939, 942 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 175, 34 L.Ed.2d 152 (1972) (police officers who coerced defendant’s confession were not proximate cause of the confession’s introduction in evidence at trial) (untenable to conclude that police officers would foresee that trial judge would erroneously admit unlawful confession); cf. Hensley v. Carey, 818 F.2d 646 (7th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 395 (1987) (police officer conducting lineup not liable because defendant has no right to be free from an unduly suggestive lineup separate and apart from his right to fair trial). After all, Gonzalez had available procedures to protect his right to a fair trial independent and apart from any role O’Quinn may have played in the taking of his statement. For example, if the statement were coerced as he alleges, he could have moved to have the statement suppressed. The concern here thus is not with the admission of the statement at Gonzalez’s trial. The concern is over the means employed to extract it. Although those who take a statement from a suspect may not be responsible for determining whether that statement is voluntary and therefore admissible at trial, they are responsible for their treatment of the suspect. The relevant legal question then is not whether Gonzalez gave a voluntary statement, but whether O’Quinn violated any of Gonzalez’s constitutionally protected rights by compelling Gonzalez to incriminate himself “by fear of hurt, torture, exhaustion, or any other type of coercion____” Duncan, 466 F.2d at 944. The court then must examine the O’Quinn’s acts to see whether they caused an infringement of constitutionally protected rights. Gonzalez gave his statement approximately twenty-four hours after his arrest. The act of coercion Gonzalez singles out in the complaint as unconstitutional is the deprivation of food between his arrest and the giving of his statement. Under the facts here, however, O’Quinn had Gonzalez in custody for only two relatively brief periods during those twenty-four hours. He had custody of Gonzalez for an hour or two following Gonzalez’s arrest at 4:00 p.m. and then again the next morning between 10 o’clock and the completion of the lineup sometime that afternoon. Altogether, Gonzalez was in O’Quinn's custody for at most eight hours. The issue therefore is whether O’Quinn’s failure to feed Gonzalez during those eight hours violated Gonzalez’s constitutional rights. Before addressing this issue, it is necessary to identify exactly which constitutional right is involved in Gonzalez’s claim. The Fourth Amendment protects arrestees while the Fourteenth Amendment is the principal source of protection for pretrial detainees (i.e., suspects who have been charged). Courts have had some difficulty, however, in determining when Fourth Amendment protection ends and when Fourteenth Amendment protection takes over in claims arising from acts occurring between the time of a suspect’s arrest and the time he is charged. See Jones v. Chicago, 856 F.2d 985, 994 (7th Cir.1988). In Jones v. County of DuPage, 700 F.Supp. 965, 972 (N.D.Ill.1988), this court held that an individual arrested without a warrant remains an arrestee until he is brought before a judicial officer for a probable cause determination. Under this analysis, claims regarding the conditions of detention prior to the probable cause hearing are judged by the reasonableness standard of the Fourth Amendment. The Seventh Circuit, however, implicitly rejected this view in Wilkins v. May, 872 F.2d 190 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990), a case involving a show of force to extract a confession. Wilkins held that the Fourth Amendment protection against unreasonable seizures lasts only until such time as the arrestee “has been securely placed in custody.” Id. at 193. Thus, under Wilkins, use of force during an interrogation is analyzed as a question of substantive due process under the Fourteenth Amendment. The relevant liberty is not freedom from unlawful interrogations but freedom from severe bodily or mental harm inflicted in the course of an interrogation. We do not undertake to specify a particular threshold, a task that may well exceed our powers of articulation. But it is a high threshold, and to cross it Wilkins and plaintiffs like him must show misconduct that a reasonable person would find so beyond the norm of proper police procedure as to shock the conscience, and that is calculated to induce not merely momentary fear or anxiety, but severe mental suffering. Id. at 195. Subsequent to Wilkins, the Supreme Court decided Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Expressing reluctance to apply a substantive due process analysis when the right allegedly infringed is covered by “an explicit textual source of constitutional protection,” Graham rejected use of the “shock the conscience” test in cases alleging excessive use of force by police. Id. at 395,109 S.Ct. at 1871. The Court held that “all claims that law enforcement officers have used excessive force — deadly or not— in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard____” Id. (emphasis in original). Whether the Fourth Amendment protection extended to the period between arrest and pretrial detention was, however, expressly left open. Id. at 395 n. 10, 109 S.Ct. at 1871 n. 10. The question posed here therefore was not decided. Although Graham’s pretermission of the question formally left Wilkins standing, the Graham decision actually east significant doubt on Wilkins’s continuing validity. In Henson v. Thezan, 717 F.Supp. 1330 (N.D.Ill.1989), this court had occasion once again to explore the reach of the Fourth Amendment in the context of a § 1983 claim challenging the use of force to extract a confession prior to a judicial determination of probable cause. Examining Wilkins in light of Graham, this court in Henson observed that the § 1983 plaintiff in Graham was “securely in custody” yet the Supreme Court analyzed his claim under the Fourth rather than the Fourteenth Amendment. That observation led to a conclusion that Wilkins was so severely undermined that, absent a further contrary ruling from the Seventh Circuit, this court’s holding in Jones v. County of DuPage (conditions of detention prior to probable cause hearing judged by Fourth Amendment’s reasonableness standard) could still be considered a valid statement of the law. 717 F.Supp. at 1336. The Seventh Circuit has not spoken further on the issue since the Supreme Court’s ruling in Graham. Consequently, following Henson, the court will review Gonzalez’s claim within the framework of the Fourth Amendment’s reasonableness test. Graham set out the guidelines for applying the Fourth Amendment’s reasonableness test. The test is an objective one. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” 490 U.S. at 397, 109 S.Ct. at 1872. The court must put itself in the shoes of the officer and judge whether his actions were reasonable under the circumstances of the particular case. Id. at 396, 109 S.Ct. at 1872. Graham made clear that certain circumstances could call for the use of some force without violating the Fourth Amendment. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chamber,” violates the Fourth Amendment. Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the ‘nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8,105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985)). Thus, in determining whether application of a particular use of force is objectively reasonable, the court must weigh the individual’s Fourth Amendment privacy interests against the need for the type of force the police used. The coercive force in this case was more psychological than physical. Gonzalez asserts that O’Quinn denied him food. While the court does not rule out the possibility that use of psychological force would in certain circumstances be constitutionally unreasonable, the denial of food alleged in this case certainly did not amount to a violation of Gonzalez’s Fourth Amendment rights. Moreover, under the facts of this case, O’Quinn had control of Gonzalez for only a limited time. With exception of lunchtime on the day following his arrest, Gonzalez was not in O’Quinn’s custody dur ing a time normally associated with eating. Given the press of time and the need for arranging the lineup at an hour convenient to the man who witnessed the crime, it would not be objectively unreasonable for O’Quinn to require Gonzalez to forego his lunch. As Gonzalez does not assert that he ever complained to O’Quinn about missing meals or being hungry, O’Quinn cannot be faulted for Gonzalez’s failure to receive food for the twenty-four hour period leading to the taking of his statement. Consequently, the court finds that O’Quinn did not use unreasonable force to coerce an involuntary statement from Gonzalez. Cooper v. Dupnik, supra at n. 5, supports dismissal of Gonzalez’s claim. The psychological intimidation used by the police in that case was far more severe than that purportedly experienced by Gonzalez. The plaintiff in Cooper was held incommunicado for twenty-four hours. Police intensely interrogated him for four hours using psychological pressure to browbeat him into confessing to a crime he did not commit. Although the court held that the conduct surrounding the interrogation did not violate plaintiff’s substantive due process rights, it noted that it would have reached the same result had it employed the reasonableness analysis under Graham. 924 F.2d at 1530, n. 19. Given that O’Quinn had reason to require Gonzalez to miss lunch and that his actions barely intruded upon Gonzalez’s right to be free from a seizure that abused his interests in privacy and dignity, the court concludes as a matter of law that his conduct was reasonable under the Fourth Amendment. Accordingly, it grants his motion for summary judgment as to Gonzalez’s coerced statement claim. Extended Detention Gonzalez’s claim that O’Quinn violated his right to a prompt judicial determination of probable cause remains. O’Quinn responds to Gonzalez’s extended detention claim by invoking a qualified immunity defense. He maintains the law in effect in October 1984 did not clearly establish a suspect’s constitutional right to appear before a judge or magistrate within 48 hours of his arrest. Under the qualified immunity standard established in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), a government official who violates an individual’s constitutional rights may still escape damage liability. The test for determining whether to extend qualified immunity to a § 1983 defendant is purely objective. “[GJovernment officials performing discretionary functions, generally are shielded 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.” Id. at 818, 102 S.Ct. at 2738. A right is not clearly established unless the contours of the right are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). To determine whether a right was clearly established, the court looks to closely analogous cases decided prior to the time defendant took the action challenged in the complaint. Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). A reasonable police officer cannot be expected to be aware of a right unless it is sufficiently particularized to put him on notice that his conduct probably is unlawful. Klein v. Ryan, 847 F.2d 368, 371 (7th Cir.1988). “Qualified immunity implements two mutually dependent rationales, the need to encourage the vigorous exercise of official authority as required by the public good and the need to avoid unfairly subjecting the official to liability for the good faith exercise of discretion pursuant to a legal obligation.” Coleman v. Frantz, 754 F.2d 719, 727-28 (7th Cir.1985) (citations omitted). To further these rationales, qualified immunity protects from liability “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Thus, a police officer is entitled to qualified immunity “if officers of reasonable competence could disagree” on whether the disputed action was constitutionally forbidden. Id. Finding that the law in 1984 was not sufficiently clear to preclude detaining a suspect overnight in the circumstances of this case, the court agrees that O’Quinn is entitled to qualified immunity. Gerstein v. Pugh, 420 U.S. 103, 114, 95 5. Ct. 854, 863, 43 L.Ed.2d 54 (1975) is the seminal case establishing an arrestee’s right under the Fourth Amendment to “a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” The precise parameters of Gerstein, however, were purposely left undefined. Schall v. Martin, 467 U.S. 253, 275, 104 S.Ct. 2403, 2415, 81 L.Ed.2d 207 (1984). The Court did not spell out what it meant by “extended” pretrial restraint. It gave some guidance in its observation that an officer who had probable cause for an arrest could retain custody of the suspect “for a brief period of detention to take the administrative steps incident to arrest.” Id. at 114, 95 S.Ct. at 863. But it was left to later decisions to give further definition to the right. Gonzalez cites no pre-1984 excessive detention cases interpreting Gerstein that involved facts similar to his. This court’s research has revealed one such case from our court of appeals, Llaguno v. Mingey, 739 F.2d 1186 (7th Cir.1984), en banc, 763 F.2d 1560 (7th Cir.1985). Police held plaintiff in Llaguno for forty-two hours without charging him even though the state’s attorney twice had told them that he could not approve charges against the plaintiff due to a lack of sufficient evidence. Police continued to hold plaintiff for twenty-four hours after prosecutors told them that no charges would be filed. A magistrate was available at all times that plaintiff was in custody. The officers explained that they were holding plaintiff to ensure that he had no complicity in the crime for which he had been arrested. The court held that the extended detention without a judicial determination of probable cause violated the Fourth Amendment and had little difficulty in finding that the police, given the circumstances of the detention and their “clearly unacceptable reason for the delay” in releasing plaintiff, acted so far beyond the pale of what was reasonable under Ger-stein as to defeat any qualified immunity defense. Id. at 1197. But the facts in this case are nowhere near as egregious as those that confronted the court in Llaguno, and the specific facts of the case are crucial to a determination of whether the right at issue was clearly established. Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039. The procedure that O’Quinn followed in this case is more akin to the Houston Police Department procedure reviewed in Sanders v. City of Houston, 543 F.Supp. 694 (S.D.Tex.1982), aff'd without published opinion, 741 F.2d 1379 (5th Cir.1984), a case cited approvingly in Llaguno. 739 F.2d at 1196. Plaintiffs in Sanders challenged a police policy that permitted extended detention on an “investigative hold.” Finding that the policy had violated the plaintiffs’ Fourth Amendment rights, Sanders held that police could not detain an individual arrested without warrant for more than twenty-four hours without a judicial determination of probable cause. Id. at 705. Nonetheless, the court recognized that, within that twenty-four hour time limit, police could delay presentment in order to stage a lineup. Id. at 700-01. The court noted that Gerstein expressly allowed police to complete certain administrative steps incident to an arrest before taking the arrestee before a judicial officer for a probable cause determination. It concluded that investigative detention for purposes of interrogation or allowing a witness to view a defendant prior to his presentment to a judicial officer was a salutary procedure that could properly be considered a permissible administrative step under Ger-stein. Id. O’Quinn sought to keep Gonzalez overnight primarily so that police could arrange a lineup. Unlike the suspect in Llaguno, Gonzalez was not kept in custody against the advice of the prosecutor solely in the hopes of developing a case. Although Gonzalez remained in custody for more than two days, only the first twenty-four hours are attributable to O’Quinn since he relinquished custody of Gonzalez at the lineup. O’Quinn thus cannot be held responsible for Gonzalez’s detention for an additional day after the lineup. See Hickombottom, 765 F.Supp. at 953-54. In any event, after County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the detention of Gonzalez for a day following the lineup adds little of material significance to Gonzalez’s claim. In McLaughlin the Supreme Court revisited Gerstein. The Court found it necessary to elaborate on the Gerstein standard in part because it was not sufficiently clear. “Unfortunately, as lower court decisions applying Gerstein have demonstrated, it is not enough to say that probable cause determinations must be ‘prompt.’ This vague standard simply has not provided sufficient guidance.” 111 S.Ct. 1661. In fashioning a more specific promptness requirement, McLaughlin established forty-eight hours as the line of demarcation for a claim of extended detention. If an arrestee is provided with a probable cause hearing within forty-eight hours of his arrest, the presumption is that it was sufficiently prompt to comply with the Fourth Amendment. Id. at 1670. After two days of detention, the burden shifts to the government “to demonstrate the existence of a bona fide emergency or other extraordinary circumstances” justifying the delay in presentment of the arrestee to a judicial officer. Id. The Court made it clear, however, that the forty-eight hours period was only an outer limit and that each delay had to be examined in light of the individual circumstances of the case. The Court noted that lesser delays might be unreasonable if induced by such improper purposes as “gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.” Id. McLaughlin thus recognized the vagueness of the Gerstein guidelines. If Gerstein was too vague to give sufficient guidance to the courts, a police officer acting in 1984 could hardly be expected to fathom its fine constitutional nuances. That is not to say that any officer who detained an arrestee for a prolonged .eriod without a reasonable justification could evade liability on grounds of qualified immunity. As the Seventh Circuit noted in Patrick v. Jasper County, 901 F.2d 561, 567 (7th Cir.1990), whether a period of detention is reasonable must be analyzed “in light of the all the circumstances accompanying the detainees’ arrest, including transportation, booking, filing, photographing, fingerprinting, identity verification and criminal record ‘wanted’ checks, as well as the number of individuals to be processed with the detainee in question.” Certain actions, such as a detention for one of the improper purposes cited in McLaughlin, clearly were unreasonable even under Ger-stein. Thus, an officer who detained a suspect for nearly two days merely for the purposes of investigating a crime still could be held answerable in damages in 1984. Cf. Llaguno v. Mingey, 763 F.2d 1560, 1570 (7th Cir.1985) (en banc) (reversing and remanding extended detention claim for trial on damages). But the record here contains no evidence of any improper motivation on the part of O’Quinn. Indeed, an official city policy in force at the time countenanced the overnight detention of Gonzalez. At the time relevant to this case, the City of Chicago had in effect a general order that embodied a “hold past court call” policy. Under General Order 78-1, ¶ 6(C)(2) of the Chicago Police Department, a police officer could apply to the watch commander to hold an arrestee past court call if the officer ascertained there was a need for further investigation. O’Quinn followed this procedure in requesting that Gonzalez be held overnight in order to conduct a lineup. Although a federal judge declared the policy unconstitutional in 1986, Robinson v. Chicago, 638 F.Supp. 186 (N.D.Ill.1986), rev’d on other grounds, 868 F.2d 959 (7th Cir.1989), it was standard authorized practice in 1984. An officer who is following a statute or administrative rule should generally be accorded qualified immunity for his actions unless a reasonable officer should have known that the law or rule in question was unconstitutional. See Richardson v. Bonds, 860 F.2d 1427, 1432 (7th Cir.1988); see also Gittens v. Le Fevre, 891 F.2d 38, 42-43 (2d Cir.1989). But at the time of Gonzalez’s detention, there had been no judicial determination of the constitutional validity of the City’s “hold past court call” policy and Gerstein could reasonably be understood to permit a twenty-four hour detention for purely administrative purposes like arranging a lineup. In these circumstances, O’Quinn could reasonably rely on the City’s order for continuing Gonzalez’s detention. See Richardson, 860 F.2d at 1434; cf. Woods v. City of Michigan City, 940 F.2d 275, 281 (7th Cir.1991) (police granted qualified immunity because reliance on judicially promulgated policy objectively reasonable). Accordingly, the court finds that he is entitled to qualified immunity on Gonzalez’s extended detention claim. Conclusion Gonzalez’s motion for summary judgment is denied and O’Quinn’s motion for summary judgment is granted. With Gonzalez entitled to no relief on his complaint, the clerk is directed to enter judgment dismissing this case in its entirety. . Gonzalez appears to assert a third claim in his cross-motion for summary judgment. He maintains that O'Quinn gave false testimony against him at his trial. A police officer, however, is absolutely immune from damages under § 1983 for testimony given during a trial. Briscoe v. La Hue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Because Gonzalez’ belated claim challenging the truthfulness of O'Quinn’s trial testimony is so clearly without merit, the court will not read it into the complaint. . The facts in this opinion are construed in the light most favorable to Gonzalez, consistent with this court’s ruling in favor of O’Quinn. . O’Quinn avers that Gonzalez was fed during his detention at the police station. The account of events in Gonzalez’ affidavit also contradicts the facts he set out in the signed statement he gave to police. Gonzalez declared in his statement both that the police had fed him and that the state’s attorney had bought him a hamburger. . Allowing Gonzalez to proceed with his claim is consistent with this court's recent decision in Hickombottom v. McGuire, 765 F.Supp. 950 (N.D.Ill.1991). Hickombottom held that plaintiff could not proceed with his § 1983 coerced confession claim because it sounded in habeas corpus. But Hickombottom is distinguishable from this case. Unlike the plaintiff there, Gonzalez has exhausted all his remedies and can no longer use his coerced confession claim to challenge his conviction in either state or federal court. In Hickombottom, however, plaintiff failed to demonstrate a lack of an available state remedy. Furthermore, principles of issue preclusion barred Hickombottom from pursuing his § 1983 claim because the state court had already explicitly found the confession to be voluntary in a pretrial suppression hearing. . Two circuits appear to have addressed the issue since Graham was decided. In Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.1989), the Second Circuit followed the approach suggested by this court. It extended Graham into the police station, holding the Fourth Amendment standard governed “at least to the period prior to the time when the person arrested is arraigned or formally charged, and remains in the custody (sole or joint) of the arresting officer.” A district court in that circuit has gone further and used the Fourth Amendment to judge the claim of an arrestee who did not remain in the custody of the arresting officer throughout the period of his pre-arraignment detention. Freece v. Young, 756 F.Supp. 699, 703-04 (W.D.N.Y.1991). The Ninth Circuit has reached somewhat conflicting results in two cases. In Hammer v. Gross, 932 F.2d 842, 845 n. 1 (9th Cir.1991) (en banc), the court followed Graham and applied the Fourth Amendment to a claim contesting the use of force to extract a blood sample at a hospital where police had taken plaintiff following his arrest on charges of driving under the influence of alcohol. The court based its decision on the ground that an attempt to secure a blood sample for evidence of blood-alcohol content was a seizure incident to arrest. In Cooper v. Dupnik, 924 F.2d 1520 (9th Cir.), rehearing en banc granted, 933 F.2d 798 (9th Cir.1991), however, the court applied a substantive due process analysis to a claim that police used coercion in an unsuccessful attempt to elicit a confession from a suspect whom they later released without charges. The court did not view the claim as governed by Graham because "little physical force was employed against Cooper in his arrest.” Id. at 1530 n. 19, Cooper appears to miss the point of Graham. Graham does not look to the extent of force used in determining whether to judge a claim under the Fourth Amendment or substantive due process. Instead, it expresses a decided preference for looking to a particular constitutional provision that by its terms protects against the abuse alleged. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures____” "The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966). Use of excessive force to extract information from a suspect who has been seized and interrogated before being formally charged with a crime is as much an affront to personal privacy and dignity as use of force to effect the initial seizure or to extract blood in the immediate aftermath of the seizure. This court thus finds Hammer to be the more persuasive of the two opinions. . The court recognizes that Gonzalez bears the burden of providing caselaw to establish that O'Quinn violated a clearly established constitutional right, Klein, 847 F.2d at 371. Nonetheless, because Gonzalez is a pro se prisoner with limited legal research skills, the court has independently reviewed the cases to determine the state of the law in 1984.

MEMORANDUM ORDER JOHN GARRETT PENN, District Judge. On March 7, 1991, the Grand Jury returned an indictment charging the defendants with unlawful possession of a firearm with an obliterated or altered serial number, 18 U.S.C. § 922(k), unlawful possession of a firearm not registered in the National Firearms Registration and Transfer Record, 26 U.S.C. § 5861(d), and unlawful possession of a firearm not identified by serial number, 26 U.S.C. § 5861(i). On July 16, 1991, the Grand Jury returned a superseding indictment purportedly correcting Count 1, however, the new indictment also contained an error. The Court began the motions hearing on July 18, 1991. On July 18, 1991, the Grand Jury returned a second superseding indictment that was filed in open court. The defendants were arraigned on the July 18th superseding indictment on July 19, 1991. The case is now before the Court on the McNab’s Motion To Suppress Statements and Motion To Suppress Evidence, and Allen’s Motion To Suppress Statement and Motion to Suppress Evidence. A hearing was held on July 18 and 19, 1991. After giving careful consideration to the motions and the opposition thereto, together with the record in this case, the Court concludes that Allen’s motion to suppress evidence should be granted and all other motions should be denied. I Briefly, the facts as found by the Court are as follows: On February 6, 1991, officers of the Metropolitan Police Department received a report of “suspicious” activity relating to two cars parked in the area of the 1400 block of Whittier Place, N.W., in the District of Columbia. The citizen making the call thought that the occupants of the cars were selling drugs. The radio run referred to a “red sports car” and a “blue” car. Officer Dixon and his rookie partner, Officer Rosenburg, responded to the area and while proceeding east on Whittier Place observed a red two door Chevette with the defendants seated inside. The officers also observed an empty red Mazda sports car parked diagonally across the street from the Chevette. Apparently they did not observe the blue car. The officers approached from the rear and stopped approximately five feet behind the Chevette. Both officers stepped out and Dixon approached the Chevette on the driver’s side while Rosenburg approached on the passenger side. Up to this time the officers had observed nothing outwardly suspicious; the defendants appeared to be having a conversation. Both men were seated on the front seat with Allen on the driver’s side. As Dixon approached Allen’s door he observed a shotgun shell in Allen’s lap and he immediately drew his gun. When Rosenburg saw Dixon draw his gun, she drew her gun. The defendants were asked to step from the automobile and both were required to place their hands on the roof while Dixon conducted a search of the inside of the car, which was a two door hatchback. Dixon testified that at this point he arrested Allen and orally advised him of his rights but that he did not arrest McNab since it was Allen who had the shotgun shell. Dixon explained that he arrested Allen on a charge of “unlicensed ammunition.” The Court finds that neither Dixon nor Rosenburg placed either Allen or McNab under arrest at this time. The officers observed a closed “buck” knife on the floor behind the front seat. Neither Dixon nor Rosenburg removed the knife from the automobile. At this time both defendants were attempting to explain why they were in Washington and McNab was “praying and crying and rambling” in attempting to tell the officers that he was not involved in anything. McNab referred to two men who had been in the Mazda and shortly thereafter pointed to the men as they came around a corner. Dixon observed the two men and noted that one appeared to have a pistol in his belt. Dixon started after the men, who were now fleeing, then stopped remembering that his partner had only been on the street for two days and was inexperienced. He called for backup help and then began to search the automobile starting with the area near the front seat and behind the front seat. He obtained the key, opened the hatchback and removed a phonograph speaker. He was beginning to unroll a blanket when Officer Delise, who was chasing the two men from the Mazda, called for backup. By this time, Dixon and Rosenburg had been joined by other officers. Dixon left one officer in charge of the defendants and he and Rosenburg went to assist Delise. When two other officers, one of whom was Officer Ingram, arrived on the scene, they observed the defendants seated in the Chevette without handcuffs and another officer seated in a police vehicle across the street from the defendants’ car. At the hearing, Ingram expressed surprise that there was not greater security over the defendants although he did not understand the exact status of the defendants. At some point, and before Ingram and his partner knew whether the defendants had been arrested, they had the defendants step out of the car and then they began to search the Chevette. It was during this search that they found the shotgun and pistol rolled up in the blanket in the hatchback portion of the Chevette. They then told the defendants that they were going to jail, placed handcuffs on them and sometime later, transported them to the police station. At the police station the defendants were given P.D. 47 Rights Cards. McNab signed his card and indicated that he was willing to answer questions. Allen answered that he understood his rights but he refused to sign the card or answer any questions. II A. Standing of the defendants to pursue the motion to suppress evidence. The government argues that the Court should not entertain the motions to suppress because neither Allen nor McNab have standing to complain about a Fourth Amendment violation. In making this argument, the government relies on the decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Rakas, the Supreme Court held that passengers in an automobile, stopped during the investigation of an armed robbery, did not have standing to challenge the search of the automobile, in which the police found a shotgun and rifle because the passenger asserted no possessory interest in the automobile or the guns found therein. The Court heard the motions to suppress notwithstanding the government’s argument but preserved the government’s standing argument. Allen testified that the automobile belongs to his brother and he so advised the officers at the time of the search. He further testified that on or before the morning of February 6, 1991, a friend of his brother advised Allen that he and two other persons were driving to Washington and that they needed another car. Apparently, the three men including McNab were driving to Washington in the Mazda sports car which has room only for two persons. Allen agreed to drive to Washington after being offered $50.00 for making the trip. The government does not dispute that the Chevette is owned by Allen’s brother and the Court has no reason to believe that Allen was driving the car without the permission of his brother. Moreover, while Allen did not have his own driver’s permit, he did have the automobile registration and his brother’s driver’s permit in the car. Based upon these facts, which are undisputed, the Court concludes that Allen has standing to challenge the search of the automobile. The Court does not read Rakas as requiring that only the owner of the automobile may complain about a search. With respect to McNab, the Court must reach a different result. Allen testified that he only met McNab on the morning of February 6, 1991 and that he had no other connection with McNab. Moreover, there is no evidence that McNab has any interest in the Chevette or that he claims any interest in the two guns found in the hatchback portion of the Chevette. Under those facts, McNab is in no better position than the petitioners in Rakas. He was nothing more than a passenger in the Chevette and as such cannot be heard to complain of the alleged illegal search of the automobile. Allen did testify that he was to be paid $50.00 for taking a passenger, presumably McNab, to Washington but those additional facts will not support a finding of standing for McNab. Indeed, while McNab might attempt to argue that he was a paying guest of Allen’s, that factor is not controlling. In Rakas, the Supreme Court stated: We think that Jones [Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (I960)] on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable intrusion into that place. In defining the scope of that interest, we adhere to the view expressed in Jones and echoed in later cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not control. 439 U.S. at 142-43, 99 S.Ct. at 430 (citations omitted). The Court concludes that McNab lacks standing to pursue the motion to suppress evidence. B. The purported search incident to Allen’s arrest. The government does not seek to justify the challenged search as a Terry type search. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Rather, it argues that this was a search incident to the arrest of Allen. It contends that Officer Dixon observed Allen with the shotgun shell, that he seized the shell and then instructed both defendants to step out of the automobile where he arrested Allen but not McNab. His explanation for not arresting McNab is that he did not see McNab holding the shell. He testified that he arrested Allen on a charge of “unlicensed ammunition.” He states that once he arrested Allen he gave him his rights but he did not read from the standard P.D. 47 Rights Card. Allen tells a different story. According to him, when Dixon removed the shell from the floor , he said something to the effect that “you can go to jail for this” and that when the officer saw the knife he again mentioned jail. But after having the defendants step from the car, the officer took no action to restrain Allen; rather, he began to search the car for the shotgun, according to Dixon and, for drugs according to Allen. While Dixon may have been concerned about a shotgun, it seems likely that he was also interested in finding drugs in the car. The radio run contained a reference to men selling drugs from the car and when other officers searched the Mazda parked across the street, they pulled out the glove compartment, and removed some of the panelling. See Defendant Allen Exhibits 5, 6, and 7. When Dixon observed the other two men running around the corner and initially started to give chase, neither Allen nor McNab was in handcuffs. Dixon then remembered his rookie partner, called for a backup to find the two other men and then returned to the Chevette to continue his search. He began to search the hatchback area of the car and was about to remove the blanket when he received a call for assistance from the officers chasing the two other men. He returned some of the items to the Chevette and he and Rosenburg went to assist the officers, leaving a another rookie officer in charge of the defendants. When Officer Ingram came upon the scene, he did not know whether the defendants had been arrested. He testified that he found the defendants seated in the Chevette with the motor running and yet another officer, identified as Officer Wilson, seated in his squad car across the street. It appears that Wilson observed that the defendants were cold and allowed them to reenter their automobile. Ingram, concerned for the safety of the officers, had both defendants step out of the automobile and place their hands on the car while he began a new search of the automobile. It was after he found the guns that he told then they would be locked up and placed handcuffs on both men. He did not advise them of their rights. The defendants were not read their rights or asked to sign the Rights Card until after they were taken to the police precinct. The Court finds that Officer Dixon did not arrest Allen after he observed the shell, or after he saw the knife. In fact, the officers did not remove the knife from the Allen’s automobile until after both defendants were handcuffed by Officer Ingram. Ingram did not place the handcuffs on them until he found the guns. Thus, it seems clear that the search of the automobile was not a search incident to arrest because Allen had not been arrested prior to the search. As was noted above, the government does not argue that the search for the gun was a Terry search. For these reasons the Court concludes that the search was not a search incident to arrest and that the government cannot rely upon that theory to sustain the search and seizure of the weapons. C. Assuming that Allen had been arrested, was the search of the hatchback area of the automobile valid. The Court finds that Allen had not been placed under arrest and that accordingly, there could not have been a search incident to Allen’s arrest. Assuming for the moment that Allen had been arrested, which is not the case, the search of the hatchback area of the automobile would have been invalid in any event. The government argues that the search of the hatchback was valid in view of the holdings in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) and United States v. Russell, 216 U.S.App.D.C. 165, 670 F.2d 323, cert. denied, 457 U.S. 1108, 102 S.Ct. 2909, 73 L.Ed.2d 1317 (1982). In Belton, a state trooper arrested Belton and then searched the interior of the defendant’s automobile and discovered cocaine in the defendant’s leather jacket which was on the back seat. The Supreme Court held that: [Wjhen a policemen has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. 453 U.S. at 460, 101 S.Ct. at 2864 (citations and footnotes omitted, emphasis this Court’s). The Supreme Court added that: “Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.” 453 U.S. at 461, n. 4, 101 S.Ct. at 2864, n. 4 (emphasis the Court’s). In Russell, our Court of Appeals had occasion to decide whether heroin seized from the hatchback portion of a 1979 Mustang was a part of the interior of the automobile; the Court of Appeals held that the search was valid citing to the decision in Belton, but observed that: “Our decision is focused narrowly and specifically on the precise question whether Belton’s rule and rationale encompass the hatchback in this case. No other question is framed or answered by the decision.” 216 U.S.App.D.C. at 167, n. 9, 670 F.2d at 325, n. 9 (emphasis this Court’s). The Court of Appeals went on to note the “still evolving area of law” and waiting for “further enlightenment from Higher Authority.” Id. This Court does not read either Belton or Russell as laying down a hard and fast rule; rather, each case must be judged on its particular facts. The key appears to be whether the object within the hatchback is reachable. Here, it seems clear that the guns simply where not within reach and that they might as well have been in a trunk. Moreover, Officer Dixon opened the hatchback and removed some items and never saw the guns. Officer Ingram also searched the hatchback and removed several items and did not see the guns. He only located the guns after he attempted to remove the blanket. D. The motions to suppress statements must be denied. The defendants also move for the suppression of statements. The government represents that it will only seek to use one statement made by Allen and none made by McNab, thus McNab’s motion is denied as moot. With respect to Allen’s statement, while Ingram was standing next to Allen near the Chevette, he looked at the “junk” inside and observed that the car was a junk or words to that effect to which Allen responded, “it’s my brother’s car.” The government argues that the statement did not result from a question asked by the officer and that the statement was spontaneous. The Court agrees. Allen’s motion to suppress the statement is denied. Ill In sum, the Court concludes that McNab’s motion to suppress evidence must be denied because McNab lacks standing. See Part A, supra. The Court holds that Allen has standing and that his motion to suppress the evidence removed from the car must be granted for the reasons set forth in Parts B and C, supra. Finally, the motions to suppress statements are denied. It is hereby ORDERED that McNab’s motion to suppress evidence is denied, and it is further ORDERED that McNab’s motion to suppress statements is denied, and it is further ORDERED that Allen’s motion to suppress evidence is granted, and it is further ORDERED that Allen’s motion to suppress statements is denied. . Actually, the language of Count 1 of the indictment charged the defendants with transporting one of the guns seized in interstate commerce. . Allen testified that he observed the officers approaching from the rear when ho looked in his rear view mirror and that at that time McNab was holding the shotgun shell. Allen states that he took the shotgun shell from McNab and placed it on the floor under his seat. He contends that the officer could not have seen the shell. After considering the testimony of Allen, Dixon and Rosenburg, the Court accepts the testimony of the police officers. While Allen may have thought that the Dixon could not have seen the shell, he testified that he took the shell from McNab because he saw the officers approaching and he attempted to hide the shell because he did not want to get into trouble. During this brief period the officer could have seen the shell. The testimony of Rosenburg supports that of Dixon. She testified that as the officers approached the rear of the automobile their guns were not drawn. When she saw Dixon suddenly draw his gun, she drew her gun. . Allen testified that he was never told at the srene that he was under arrest and that Dixon did not tell him he was under arrest. Rosenburg did not hear Dixon advise Allen that he was under arrest and she did not place him under arrest. Moreover, subsequent events reflect that when McNab pointed out the two other men who had been in the Mazda, Dixon left to chase them and never placed handcuffs on Allen or McNab. Finally, when backup officers arrived, they were not advised that either Allen or McNab had been placed under arrest. Indeed, one officer who arrived at the scene advised the defendants that they could sit in the Chevette because it was cold outside. At this time, neither Allen nor McNab had been placed in handcuffs. Handcuffs were placed on the defendants only after the shotgun and pistol were found in the hatchback area of the Chevette. . The defendants had driven to Washington from Baltimore that morning. . Allen testified that when Dixon and Rosenburg left, another female officer (Rosenburg is also a female) stood guard by holding a gun on them. Officer Ingram did not refer to the second female officer in his testimony. . Allen was not charged with driving without a permit and the government has not offered evidence that he does not have a permit. . See n. 2, supra.

MEMORANDUM AND ORDER HATFIELD, Chief Judge. BACKGROUND From 1946 through 1984, Montana Pole & Treating Plant (“Montana Pole”) owned and operated a wood-treating facility in Butte, Montana. Montana Pole’s wood-treating process utilized the preservative pentachlorophenol (“penta”), which was mixed with various petroleum products. The process generated waste penta, which Montana Pole disposed of in a manner that ultimately contaminated the real property on and near the treatment facility. In June, 1985, the United States Environmental Protection Agency (“EPA”) declared Montana Pole’s facility a “Superfund Site” and initiated an emergency cleanup operation. The EPA also notified Montana Pole of its responsibility, under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-9675 (1987), for the cleanup costs. On November 15, 1986, Montana Pole and its principal stockholder, Torger L. Oaas, instituted the above-entitled action against the suppliers of the penta utilized in the treatment process, seeking indemnity for the cleanup costs, as well as compensatory damages, under the following causes of action: negligence, breach of express and implied warranties, nuisance and strict products liability. Additionally, Torger Oaas seeks compensatory damages, in his individual capacity, for alleged “depression, anger, anxiety, outrage and embarrassment” as a result of the EPA’s seizure of the treating site. Following lengthy discovery, defendants moved for summary judgment, pursuant to Fed.R.Civ.P. 56, asserting, inter alia, (1) plaintiffs’ “failure to warn” claims were preempted by federal law; and (2) plaintiffs’ claims for property damage were barred by the applicable statute of limitations. Defendants also moved for summary judgment on plaintiffs’ claims for indemnity, nuisance and breach of warranty, as well as Torger Oaas’ individual claim. The referenced motions were referred to the Magistrate Judge for the District of Montana, the Honorable Robert M. Holter, for findings and recommendations, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 400-4 of the Rules of Procedure of the United States District Court for the District of Montana. The Magistrate Judge filed his report with the court, recommending summary judgment be entered in defendants’ favor. The Magistrate Judge concluded (1) plaintiffs’ claims for indemnity, nuisance and breach of warranty failed as a matter of law; (2) plaintiffs’ property damage claims were time-barred; and (3) Torger Oaas’ emotional injury claim lacked any legal or factual basis. The Magistrate Judge also recommended the court deny defendants’ summary judgment motion asserting federal preemption of plaintiffs’ “failure to warn” claims. In accordance with 28 U.S.C. § 636(b), the parties were afforded the opportunity to file written objections to the Magistrate Judge’s report. Plaintiffs filed objections, taking issue with the Magistrate Judge’s conclusions regarding (1) the statute of limitations issue; and (2) the viability of Torger Oaas’ individual claim. The defendants in turn challenge the Magistrate Judge’s recommendation regarding the federal preemption issue. Having conducted a de novo review of the record, and considering the objections presented by the parties, the court is prepared to rule. DISCUSSION A. Preemption In moving for summary judgment, defendants Reichhold Chemicals, Inc. and Dow Chemical Company assert the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136 et seq., preempts state law tort recovery based on a failure to warn theory. Accordingly, defendants maintain plaintiffs’ claims premised upon defendants’ alleged breach of a purported duty to warn plaintiffs of the proper methods for disposing of penta waste fail as a matter of law. For the reasons discussed below, the court will DENY defendants’ motion. Federal preemption of state law is based on the supremacy clause of the United States Constitution, article VI, clause 2. Preemption can be either express or implied; it “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Papas v. Upjohn Co., 926 F.2d 1019, 1021 (11th Cir.1991), quoting, Fidelity Federal Savings & Loan Ass’n v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Preemption can occur in a number of ways: Preemption occurs when Congress, in enacting a federal statute, expresses a clear intent to preempt state law, when there is outright or actual conflict between state and federal law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Roberts v. Dow Chemical Co., 702 F.Supp. 195, 196 (N.D.Ill.1988), quoting, Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). There is, however, a presumption that “Congress did not intend to displace state law.” Id., quoting, Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). This presumption is heightened where the federal law would have the effect of barring a state from exercising its traditional police powers. Riden v. ICI Americas, Inc., 763 F.Supp. 1500, 1503 (W.D.Mo.1991). Preemption analysis is largely a matter of statutory construction. Roberts, supra, 702 F.Supp. at 196. The statute at issue, FIFRA, provides a comprehensive system for the registration and labeling of pesticides. Fisher v. Chevron Chemical Co., 716 F.Supp. 1283, 1286 (W.D.Mo.1989). Under FIFRA, the EPA is required to register a pesticide if it determines (1) the pesticide’s labeling and other materials comply with FIFRA’s requirements; and (2) the pesticide, when used properly, will perform its intended purpose without unreasonable adverse effects on the environment. Papas, supra, 926 F.2d at 1023, citing, 7 U.S.C. § 136a(c)(5). When a pesticide is registered, the manufacturer must submit the proposed label to the EPA for approval; any changes in the label must also be approved by the EPA. Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404, 406 (E.D.Mich.1987). At the outset, this court joins the majority of federal courts in holding state common law remedies are not expressly preempted by FIFRA. Riden v. ICI Americas, Inc., supra, 763 F.Supp. at 1505 (citations omitted). The question before this court, therefore, is whether FIFRA and the labeling regulations promulgated thereunder impliedly preempt state common law tort claims based on labeling deficiencies. Although the issue has not been addressed by the court of appeals for this circuit, it has been the subject of two contradictory appellate decisions, Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.1984), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985); and Papas v. Upjohn Co., 926 F.2d 1019, 1021 (11th Cir. 1991). In Ferebee, the court upheld a jury verdict in favor of an agricultural worker who died from pulmonary fibrosis contracted from a long-term skin exposure to paraquat. The court found plaintiff’s claims were not impliedly preempted by FIFRA because the manufacturer could comply with both the federal and state (common law) requirements. 736 F.2d at 1542. The court explained that a state court jury verdict would not automatically “require” a manufacturer to change its labels, but rath er, would leave the manufacturer with the “choice of how to react” to the jury verdict. Kennan v. Dow Chemical Co., supra, 717 F.Supp. at 806 (“Chevron can continue to use the EPA-approved label and can at the same time pay damages to successful tort plaintiffs such as Mr. Ferebee; alternatively, Chevron can petition the EPA to allow the label to be made more comprehensive.”) The Eleventh Circuit Court of Appeals, in Papas v. Upjohn Co., supra, concluded plaintiffs claims for personal injuries, based on theories of negligent labeling and failure to warn, were preempted by FI-FRA. The court held “the federal government has occupied the entire field of labeling regulation, leaving no room for the states to supplement federal law, even by means of state common law tort actions.” 926 F.2d at 1025. The court added that a jury determination that a pesticide’s label was inadequate would (1) directly conflict with the EPA’s prior affirmation of the label’s adequacy; and (2) force the manufacturer to alter the label or risk further lawsuits. 926 F.2d at 1025-26. A jury’s imposition of damages in a state tort suit premised on labeling claims would disrupt the methods by which FI-FRA protects man and the environment because it would inject irrelevant considerations into the EPA’s evaluation of a pesticide and its labeling and would second guess the EPA’s conclusions. Papas v. Upjohn Co., supra, 926 F.2d at 1026. After careful consideration, the court is unpersuaded by the reasoning set forth in Papas. Rather, the court adopts Ferebee and the line of cases holding FIFRA does not impliedly preempt state common law tort claims against manufacturers of EPA-registered pesticides. The United States Supreme Court, in Wisconsin Public Intervenor v. Mortier, — U.S.-, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), rejected the argument that FI-FRA occupies the entire field of pesticide regulation, thereby precluding state or local regulation of pesticide use. The Court, in reversing the Wisconsin Supreme Court, held a local ordinance requiring, inter alia, a permit for applying pesticides to private land, was not preempted by FIFRA. In so holding, the Court noted FIFRA did not, either expressly or impliedly, indicate that Congress sought to supplant local authority over pesticide regulation. — U.S. at ---, 111 S.Ct. at 2483-86. In contrast to other implicitly preempted fields, the 1972 enhancement of FIFRA does not mean that the use of pesticides can occur “only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands.” City of Burbank v. Lockheed Air Terminal, 411 U.S. [624] at 634 [93 S.Ct. 1854, 1860, 36 L.Ed.2d 547], quoting, Northwest Airlines v. Minnesota, 322 U.S. 292, 303 [64 S.Ct. 950, 956, 88 L.Ed. 1283] (1944) (Jackson, J., concurring). The specific grant of authority in § 136v(a) consequently does not serve to hand back to the States powers that the statute had impliedly usurped. Rather, it acts to ensure that the States could continue to regulate use and sales even where, such as with regard to the banning of mislabeled products, a narrow pre-emptive overlap might occur. Mortier, — U.S. at---, 111 S.Ct. at 2486. Accordingly, this court concludes states are free to regulate, through common law remedies, the use and sale of pesticides. The EPA’s conclusion that a pesticide’s label meets FIFRA requirements “does not compel a jury to find that a label is also adequate for purposes of state tort law as well. The purposes of FIFRA and state tort law may be quite distinct.” 736 F.2d at 1540 (emphasis in original). FIFRA attempts to ensure, based on a cost-benefit analysis that [the product], as labeled, does not “generally cause unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(D). “State tort law, in contrast, may have broader compensatory goals; conceivably, a label may be inadequate under state law if that label, while sufficient under a cost-benefit standard, nonetheless fails to warn against any significant risk.” Roberts, supra, 702 F.Supp. at 199, quoting, Ferebee, 736 F.2d at 1540. Furthermore, the court rejects defendants’ contention that a state court jury verdict would have the effect of “regulating” the content of a warning label. See, Kennan, supra, 717 F.Supp. at 806-07. A manufacturer is not “compelled” to alter a product label in response to a jury award in the same way that it is “compelled” to comply with a state law or regulation. Riden, supra, 763 F.Supp. at 1507. For instance, where a manufacturer is faced with an isolated jury verdict, it may dismiss the action as an aberration, pay the judgment and choose not to alter the label. Id. In addition, a manufacturer may petition the EPA for a change in the content of their labels. Roberts, supra, 702 F.Supp. at 198. FIFRA’s labeling scheme was created to help minimize the risks associated with pesticide use by requiring all pesticide labels to contain certain essential information. Riden, supra, 763 F.Supp. at 1509. Accordingly, when an individual is injured while using an EPA-approved pesticide, the adequacy of the pesticide’s label is necessarily called into question. Id. at 1508. Resolution of such a question presents a factual issue for the jury to determine. Consequently, for the reasons set forth herein, the court concludes defendants’ motion for summary judgment asserting federal preemption of plaintiffs’ failure to warn claims be, and the same hereby is, DENIED. B. Statute of Limitations Plaintiffs’ property damage claims are governed by Montana’s two-year statute of limitations found at Mont.Code Ann. § 27-2-207. The Magistrate Judge, in holding plaintiffs’ claims time-barred, concluded plaintiffs, as early as 1969, were aware of penta’s dangerous propensities and the resultant contamination of the treating site. That knowledge [of penta contamination in 1969], coupled with the actions by the State of Montana in contacting the plaintiffs about oily seep along Silver Bow Creek, and the State’s agents telling the plaintiffs on February 16, 1983, that they must undertake cleanup is sufficient notice to plaintiffs that (1) contamination existed, and (2) that the chief contaminant was penta. Accordingly, the Magistrate Judge held plaintiffs’ property damage claims accrued prior to November 15, 1984 (two years before the filing of the present action), making plaintiffs’ complaint untimely. Plaintiffs assert the statutory period commenced on June 13, 1985, when the EPA took over the treating site and in formed plaintiffs of their potential liability for cleanup costs. Plaintiffs contend that prior to that point in time, they had not suffered any compensable injury because they retained the full use and enjoyment of their property. The time at which a right of action in tort accrues is not defined by Montana statute. Nevertheless, this court, in applying Montana law, has held that a right of action in tort accrues upon injury. See, Buhl v. Biosearch Medical Products, 635 F.Supp. 956, 959 (D.Mont.1985); Much v. Sturm, Ruger & Co., Inc., 502 F.Supp. 743, 744 (D.Mont.1980), aff'd. 685 F.2d 444 (9th Cir.1982). Furthermore, the fact that a party with a cause of action has no knowledge of his rights, or even the facts out of which the cause arises, does not delay the running of the statute of limitations. Bennett v. Dow Chemical Co., 220 Mont. 117, 713 P.2d 992, 994-95 (1986) (cause of action accrues from the date of discovery of the facts which would give rise to a cause of action). See also, Major v. North Valley Hospital, 233 Mont. 25, 759 P.2d 153 (1988). Consequently, the critical determination as to when a cause of action accrues is knowledge of the facts essential to the cause of action. See, Burgett v. Flaherty, 204 Mont. 169, 663 P.2d 332, 334 (1983). The issue of when a particular plaintiff’s cause of action in tort accrued is ordinarily a question of fact for the jury to determine with the defendant bearing the burden to prove this affirmative defense. See, Thompson v. Nebraska Mobile Homes Corp., 198 Mont. 461, 647 P.2d 334 (1982); see also, Hill v. Squibb & Sons, B.R., 181 Mont. 199, 592 P.2d 1383 (1979). In the case sub judice, the court concludes no material factual issues exist as to when plaintiffs’ cause of action accrued. The record is replete with evidence that plaintiffs knew, prior to November 15, 1984, that the waste penta had caused environmental damage to the treating site. Consequently, plaintiffs’ property damages claims accrued prior to November 15, 1984, and, as a result, plaintiffs are precluded from pursuing said claims since they failed to commence the present action within the two year period of limitations prescribed by MontCode Ann. § 27-2-207. Plaintiffs’ failure to understand the causal relationship between their injury and the defendants’ alleged wrongful acts will not resuscitate a claim on which the statute of limitations has run. See, E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817, 820 (1988). Plaintiffs may not avoid application of § 27-2-207 MCA by asserting the EPA’s seizure of the treating site on June 13, 1985, was the injury-producing event upon which their claims are based. Contrary to plaintiffs’ assertion, the complete loss of the use and enjoyment of the property is not a prerequisite for stating a viable property damage claim. See, Spackman v. Ralph M. Parsons Company, 147 Mont. 500, 414 P.2d 918 (1966) (plaintiffs entitled to recover damages for flooded basement even though basement was only flooded for two days and absent any evidence that plaintiff lacked the “full use and enjoyment” of the property). Plaintiffs knew, prior to November 15, 1984, their property had been contaminated by the discharge of waste penta. They also realized that the contamination would continue until the soil and groundwater were cleaned up. The mere fact the extent of plaintiffs’ ultimate damages were unknown is irrelevant. “[I]t is not necessary to know the total extent of damages that an act causes to begin the running of the statute of limitations.” E.W. v. D.C.H., supra, 754 P.2d at 820, quoting, Raymond v. Ingram, 47 Wash.App. 781, 737 P.2d 314, 317 (1987). “Few are the injuries that could not someday develop additional consequences. To adopt the theory advocated by EW would again postpone the statutory period indefinitely. Section 27-1-203, MCA, provides that “damages may be awarded ... for detriment ... certain to result in the future.” In Frisnegger v. Gibson (1979), 183 Mont. 57, 598 P.2d 574, we construed § 27-1-203 consistent with the Montana practice of instructing juries that damages need only be reasonably certain. 183 Mont, at 71, 598 P.2d at 582. Under the Frisnegger rationale, EW could have presented evidence of, and received damages for, future harm, if any. E.W. v. D.C.H., supra, 754 P.2d at 820-21. The plaintiffs next suggest the period of limitations should be tolled. Plaintiffs stress the continuing nature of the contamination warrants tolling the statutory period until the point in time the damage to their property stabilized. Plaintiffs predicate their position on the “discovery doctrine”, as well as the concepts of “continuing injury”, “continuing tort” and “continuing nuisance.” See, Gravely Ranch v. Scherping, 240 Mont. 20, 782 P.2d 371 (1989); Blasdel v. Montana Power Co., 196 Mont. 417, 640 P.2d 889 (1982); and Shors v. Branch, 221 Mont. 390, 720 P.2d 239 (1986). The “discovery doctrine” has been judicially applied to toll the statute of limitations in cases where, in light of the nature of the injury or the party’s relationship, it is virtually impossible for the plaintiff to realize he has a cause of action. See, Johnson v. St. Patrick’s Hospital, 148 Mont. 125, 417 P.2d 469 (1966); Keneco & Kenik v. Cantrell, 174 Mont. 130, 568 P.2d 1225 (1977). The “discovery doctrine” has most often been applied in cases involving latent injuries. See, Monroe v. Harper, 164 Mont. 23, 518 P.2d 788 (1974); Hornung v. Richardson-Marrill, Inc., 317 F.Supp. 183 (D.Mont.1970). The “discovery doctrine” may not, however, be utilized to toll the statute of limitations until a plaintiff discovers his legal right to bring an action for known injuries. Bennett v. Dow Chemical Co., supra, 713 P.2d at 995. As stated previously, plaintiffs knew, prior to November 15, 1984, that their property had been damaged by the defendants’ product. Consequently, plaintiffs may not rely on the “discovery doctrine” to toll the statute of limitations upon their claims until the damages to their property “stabilized.” Finally, plaintiffs have failed to present a persuasive argument for extending the “continuing injury” and “continuing nuisance” rationale to toll the statute of limitations as to the products liability, negligence and warranty claims advanced in the instant action. The decisions upon which plaintiffs rely, Gravely Ranch, supra, and Blasdel, supra, are distinguishable from the present action and, therefore, unpersuasive. In Gravely Ranch, the Montana Supreme Court held the presence of lead acid batteries on an adjoining landowner’s property was a continuous nuisance that tolled the statute of limitations period applicable to plaintiff’s claims seeking damages for the loss of his cattle due to lead poisoning. Specifically, the court held the statute of limitations would not begin to run until the nuisance was abated. Furthermore, once the nuisance was removed, the statute of limitations would bar any actions commenced more than two years after the abatement of the nuisance, or discovery of the cause of injury, whichever occurred later. 782 P.2d at 375. In Blasdel, plaintiffs sued for damages to their real property resulting from the rising water table caused by the construction and operation of Kerr Dam. The court held plaintiffs’ claims were not barred by the statute of limitations, despite the fact their complaint was filed in 1960, approximately nineteen years after the damage first occurred. The court held plaintiffs’ cause of action accrued in 1960, when their damages stabilized and became permanent. 640 P.2d at 894. In the case sub judice, plaintiffs’ claims sound in negligence, products liability and breach of warranty. Plaintiffs have failed to present a cogent argument for extending the continuing nuisance principles discussed in Gravely Ranch and Biasdel to the present action. Accordingly, the court concludes defendants have made the requisite showing, based upon the facts and evidence of record, to establish their entitlement to summary judgment, under Fed.R.Civ.P. 56, on the statute of limitations issue. In this court’s opinion, no reasonable jury could find plaintiffs were not on notice, well before November 15, 1984, that their property was contaminated and that a causal relationship existed between the defendants’ penta and that damage. Consequently, the court concludes defendants’ motion is well taken. C. forger Oaas’ Individual Claim Torger Oaas asserts material factual issues preclude entry of summary judgment with respect to his individual claim for emotional injury. The court is unconvinced, however, that Oaas has sufficiently established the existence of the factual predicate essential to a claim for emotional injury. Although Montana has not yet recognized the tort of intentional infliction of emotional distress, the Montana Supreme Court has indicated that “where [defendant’s] conduct has been so outrageous, 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 community ...” that it may allow recovery for the same. Day v. Montana Power Company, 242 Mont. 195, 789 P.2d 1224, 1226 (1990), quoting, Frigon v. Morrison-Maierle, Inc., 233 Mont. 113, 123, 760 P.2d 57, 63-64 (1988), (quoting Restatement (Second) of Torts § 46, Comment d (1965)). It is a question of law whether a plaintiff has introduced sufficient evidence to support a prima facie case for intentional infliction of emotional distress. Doohan v. Bigfork School District No. 38, 247 Mont. 125, 805 P.2d 1354, 1365 (1991), citing, Philip R. Morrow, Inc. v. FBS Ins. Montana-Hoiness Labor, Inc., 236 Mont. 394, 403, 770 P.2d 859, 864 (1989). In the case sub judice, Oaas has failed to establish the conduct of the defendants in marketing penta met the threshold level of “outrageousness” contemplated by the Day decision. As a result, Oaas is unable to establish the factual predicate required under Montana law to sustain a claim for intentional infliction of emotional distress. See, Doohan, 805 P.2d at 1365. More importantly, Oaas has failed to present any basis upon which to impose liability on the named defendants for his alleged emotional injury. The Montana Supreme Court has permitted plaintiffs to recover for their emotional distress as an element of damages in actions for: (1) private nuisance {French v. Ralph E. Moore, Inc. (1983), 203 Mont. 327, 661 P.2d 844); (2) violation of certain constitutional rights (Stensvad v. Towe (1988), 232 Mont. 378, 759 P.2d 138); and (3) breach of the covenant of good faith and fair dealing (Gibson v. Western Fire Ins. Co. (1984), 210 Mont. 267, 682 P.2d 725; Dunfee v. Baskin-Robbins, Inc. (1986), 221 Mont. 447, 720 P.2d 1148; Safeco Ins. Co. v. Ellinghouse (1986), 223 Mont. 239, 725 P.2d 217). Day, supra, 789 P.2d at 1227. The court has declined, however, to extend recovery for emotional distress damages to cases where a defendant negligently damages or destroys real property and the plaintiff suffers no physical injury. Id. Oaas has failed to present a legal basis upon which to base an award of damages for his purported emotional distress. Furthermore, Oaas has failed to establish the defendants’ conduct resulted “in a substantial invasion of a legally protected interest” causing “a significant impact upon the person of the plaintiff,” Johnson v. Supersave Markets, Inc., 211 Mont. 465, 686 P.2d 209 (1984) (emphasis in original); the factual predicate required under Montana law to sustain a claim for emotional distress damages. See, First Bank (N.A.) — Billings v. Russell Clark, 236 Mont. 195, 771 P.2d 84, 91 (1989); Johnson, supra. Consequently, the court concludes defendants’ summary judgment motion is well taken as to Torger Oaas’ individual claim. D. Indemnity Any party potentially liable for the costs of cleaning up hazardous substances may seek contribution from other potentially responsible entities, pursuant to Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1). Any person may seek contribution from any other person who is liable or potentially liable under section 107(a) [42 U.S. C. § 9607(a)]---- In resolving contribution claims, the court may allocate response [i.e., cleanup] costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 106 or 107 [42 U.S.C. § 9606 or 9607]. 42 U.S.C. § 9613(f)(1) (emphasis added). In the case sub judice, the Magistrate Judge noted the owners and operators of the Montana Pole facility, and not the named defendants, were responsible for disposing of the penta waste generated by the treating process. As a result, the Magistrate Judge concluded plaintiffs had failed to establish the defendants were “liable or potentially liable,” under 42 U.S.C. § 9607(a), for the cleanup costs and, therefore, plaintiffs’ indemnity claims failed as a matter of law. Plaintiffs have not raised any objections to the Magistrate Judge’s recommended decision. Accordingly, the court concludes defendants’ motion for summary judgment is well taken with respect to plaintiffs’ indemnity claims. CONCLUSION For the reasons set forth herein, the court, after conducting a de novo review of the record, holds as follows: (1) the motion for summary judgment on behalf of defendants Reichhold Chemicals, Inc. and The Dow Chemical Company asserting plaintiffs’ “failure to warn” claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 et seq. is hereby DENIED; (2) defendants’ motions for summary judgment are hereby GRANTED as to: (a) Plaintiffs’ property damage claims, i.e., Counts I-IV of plaintiffs amended complaint; and (b) Plaintiffs’ claims for indemnity, nuisance, breach of express and implied warranties, as well as Torger Oaas’ emotional injury claim. IT IS SO ORDERED. . Plaintiffs initially filed suit in the District Court of the Second Judicial District of the State of Montana. Defendant Monsanto Company removed the action to this court on December 10, 1986, pursuant to 28 U.S.C. § 1441, invoking this court’s diversity jurisdiction under 28 U.S.C. § 1332. . The named defendants include I.F. Laucks and Company, Monsanto Company, Reichold Chemicals, Inc., Dow Chemical Company and Chapman Chemical Company. . Defendants have provided the court with affidavits establishing the penta products manufactured and sold by the defendants were registered with the EPA, pursuant to FIFRA’s labeling and packaging requirements. Plaintiffs have not presented any evidence or arguments to the contrary. . State common law tort remedies traditionally have been regarded as within "the scope of state superintendence.” Riden, supra, 763 F.Supp. at 1503, n. 4, quoting, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248 (1963). . District courts are also split on the issue. Papas, supra, 926 F.2d at 1021, n. 1. Cases finding preemption include Hurt v. Dow Chemical Co., 759 F.Supp. 556 (E.D.Mo.1990); Kennan v. Dow Chemical Co., 717 F.Supp. 799 (M.D.Fla.1989); Fisher v. Chevron Chemical Co., 716 F.Supp. 1283 (W.D.Mo.1989); Herr v. Carolina Log Bldgs., Inc., 771 F.Supp. 958 (S.D.Ind.1989); Watson v. Orkin Exterminating Co., No. JFM-88-2427, 1988 WL 235673 (D.Md. Nov. 8, 1988); and Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404 (E.D.Mich.1987). Cases in which district courts found no preemption include Riden v. ICI Americas, Inc., 763 F.Supp. 1500 (W.D.Mo.1991); Arkansas Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 748 F.Supp. 1474 (D.Colo. 1990); Evenson v. Osmose Wood Preserving Inc., 760 F.Supp. 1345 (S.D.Ind.1990); Stewart v. Ortho Consumer Products, 1990 WL 36129 (E.D.La.1990); Cox v. Velsicol Chem. Corp., 704 F.Supp. 85 (E.D.Pa.1989); Whitenerv. Reilly Indus., Inc., No. 87-5224 (S.D.Ill.1989); Roberts v. Dow Chem. Co., 702 F.Supp. 195 (N.D.Ill.1988); and Wilson v. Chevron Chem. Co., 1986 WL 14925 (S.D.N.Y.1986). . The verdict was based on the theory that the defendant’s failure to label paraquat in a manner which adequately warned that long-term skin exposure to paraquat could cause serious lung disease made the defendant strictly liable for plaintiffs injuries. 736 F.2d at 1532. . The Ferebee court based its finding on two alternative rationales: 1) compliance with both federal and state law cannot be said to be impossible because the defendant can petition the EPA to allow the label to be more comprehensive; and 2) state common law damages would not serve as an obstacle to the accomplishment of FIFRA’s purpose. "Such a conflict would exist only if FIFRA were viewed not as a regulatory statute aimed at protecting citizens from the hazards of modern pesticides, but rather as an affirmative subsidization of the pesticide industry that commanded states to accept the use of EPA-approved pesticides." Ridert, supra, 763 F.Supp. at 1506, n. 12, quoting, Ferebee, 736 F.2d at 1542-43. . The Ferebee court explained: Maryland can be conceived of as having decided that, if it must abide by EPA’s determination that a label is adequate, Maryland will nonetheless require manufacturers to bear the risk of any injuries that could have been prevented had Maryland been allowed to require a more detailed label or had Chevron persuaded EPA that a more comprehensive label was needed. The verdict itself [compensating Ferebee for injuries] does not command Chevron to alter its label — the verdict merely tells Chevron that, if it chooses to continue selling paraquat in Maryland, it may have to compensate for some of the resulting injuries. That may in some sense impose a burden on the sale of paraquat in Maryland, but it is not the equivalent to a direct regulatory command that Chevron change its label. Chevron can comply with both federal and state law by continuing to use the EPA-approved label and by simultaneously paying damages to successful plaintiffs such as Mr. Ferebee. Roberts, supra, 702 F.Supp. at 198, n. 5, quoting, Ferebee, 736 F.2d at 1541. . The court is also unpersuaded fay plaintiffs' "continuing tort” argument premised on Shors v. Branch, 221 Mont. 390, 720 P.2d 239 (1986). In Shors, the court held the presence of a gate blocking access to a river constituted a continuing tort and, as a result, plaintiffs had a cause of action each day the gate obstructed the free use of their easement and could recover damages for the two years preceding filing of their complaint. In the present action, however, defendants’ relationship with the plaintiffs ended more than two years prior to the filing of this action and, as a result, there is no on-going conduct of the defendants that can be abated to end a continuous tort. . Plaintiffs' nuisance claim fails as a matter of law. The Magistrate Judge recommended plaintiffs' nuisance claim be dismissed, given the fact that the defendants, as suppliers of penta, lacked any ownership interest in the treating facility, nor did they possess any right or ability to remedy the nuisance creating activity thereon. See, Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d 155 (7th Cir.1988). See abo, City of Manchester v. National Gypsum Co., 637 F.Supp. 646 (D.R.I.1986); Town of Hooksett School District v. W.R. Grace & Co., 617 F.Supp. 126 (D.N.H.1984) (nuisance claim may not be maintained against defendants who merely manufacture a product which, subsequent to its sale, allegedly causes damage to property). Plaintiffs have failed to present any argument in opposition to the Magistrate Judge’s recommendation. . The party moving for summary judgment, pursuant to Fed.R.Civ.P. 56, bears the initial burden of proving that no genuine issue of material fact exists. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); California Pacific Bank v. Small Business Adminbtration, 557 F.2d 218, 220 (9th Cir.1977). In meeting that burden, the moving party may rely on the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, to show there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Once the moving party’s burden is met, the burden of proof shifts to the opposing party to demonstrate the existence of a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Turner v. International Brotherhood of Teamsters, 604 F.2d 1219, 1228 (9th Cir.1979). The party opposing a motion for summary judgment "may not rest upon the mere allegations ... of his pleading,” but must, by affidavit or otherwise, "set forth specific facts showing that there is a genuine issue for trial.” Turner v. International Brotherhood of Teamsters, supra, 604 F.2d at 1228. The issue must be one raising a factual dispute that will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . The Montana Supreme Court has also narrowly construed the tort of negligent infliction of emotional distress. Day, supra, 789 P.2d at 1226, citing, Versland v. Caron Transport, 206 Mont. 313, 322-23, 671 P.2d 583, 588 (1983). . “Emotional distress under Montana law has been and remains primarily an element of damages rather than a distinct cause of action.” Day, supra, 789 P.2d at 1226, quoting, Frigon, 760 P.2d at 63. . 42 U.S.C. § 9607(a) provides that, subject to certain defenses and exception, liability for the costs of cleaning up hazardous substances may be imposed upon "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d 155, 156 (7th Cir.1988).

ORDER ON MOTION FOR FINAL JUDGMENT KOVACHEVICH, District Judge. This cause of action is before the Court on Plaintiff Action Orthopedics, Inc.’s (hereafter “AOI”) motion for final judgment filed on August 6, 1991, and amended response thereto, filed August 30, 1991. FACTS On August 25, 1989, AOI filed a complaint against Defendant Techmedica, Inc. (hereafter “Techmedica”), alleging breach of contract, breach of the covenant of good faith and fair dealing, and interference with business relations. Techmedica answered the complaint and filed a counterclaim against AOI for collection of payments for goods received. Eventually, this action was referred to Court Annexed Arbitration pursuant to the Local Rules of the Middle District of Florida. On May 31, 1991, arbitration proceedings were held. The arbitrators awarded AOI $50,000.00 on its complaint, and awarded Techmedica $13,000.00 on its counterclaim. No attorney’s fees were allowed. On June 28, 1991, pursuant to Rule 8.06 of the Rules of the United States District Court for the Middle District of Florida, AOI filed a demand for a trial de novo. This motion applied solely to the arbitration award regarding AOI’s original complaint and the arbitrators’ denial of attorney’s fees. The motion specifically excluded a request for trial de novo on the arbitration award regarding Techmedica’s counterclaim. Techmedica did not file a demand for trial de novo. However, on July 16, 1991, Techmedica filed an objection to AOI’s demand for trial de novo. Techmedica claimed that AOFs demand was improper because it challenged only a portion of the arbitration award rather than the entire award. On July 26, 1991, AOI filed a response to Techmedica’s objection. On August 6, 1991, AOI filed its motion for final judgment pursuant to Local Rule 8.05(b). AOI contends that because neither party filed a demand for trial de novo as to Techmedica’s counterclaim, final judgment should be entered as to that claim only. DISCUSSION The issue before the Court is whether a party is entitled to demand trial de novo as to a portion of an arbitration award under the Local Rules for Court Annexed Arbitration in the Middle District of Florida. In answering this question in the negative, the Court first looks at the language of the local rules. Rule 8.06(b) provides: Upon a demand for trial de novo the action shall be placed on the calendar of the Court and treated for all purposes as if it had not been referred to arbitration, and any right of trial by jury shall be preserved inviolate. (Emphasis added.) The rules do not provide for a partial demand for trial de novo of an arbitration award. In fact, the wording of the rules suggest that upon any demand for trial de novo, the entire “action” is placed back on to the calendar of the Court as if it never went to arbitration in the first place. A contrary result is not supported by the language of the rule. Allowing demand for trial de novo only as to a portion of an arbitration award would greatly weaken the Court Annexed Arbitration Program. First, the Court would be required to analyze the entire arbitration proceeding to determine whether the contested issues were decided based upon their own merits. This would lead to the parties bringing the arbitrators into court to explain their decision making process. Arbitration would no longer be an efficient means of settling disputes. Matters referred to arbitration would eventually fill the court’s calendar rather than alleviate the overcrowding problem. Second, and more importantly, parties would not be able to rely on an arbitration award as the final word in their litigation with another party. Often, a party is willing to accept an arbitration award as to the entire conflict with another party as long as the whole matter is resolved. However, allowing partial demands for trial de novo would encourage lawyers to wait until the last hour to file a demand for trial de novo as to a portion of the arbitration award in order to gain a strategic advantage. Allowing such a demand places the party, who is willing to accept the arbitration award as to the entire action, at a disadvantage. They would be time barred from filing a demand for trial de novo as to the rest of the arbitration award that is not beneficial to their interests. This clearly creates an unjust result, and would likely lead to all parties filing a demand for trial de novo when they are only slightly dissatisfied with the arbitration results. The benefits of arbitration would be nonexistent. For the foregoing reasons, a demand for trial de novo only as to a portion of an arbitration award is not permitted under the Local Rules for Court Annexed Arbitration in the Middle District of Florida. ORDERED that the motion for final judgment as to Defendant’s Counterclaim be denied, and that the Plaintiff’s demand for trial de novo be treated as a demand for trial de novo of the entire action. DONE and ORDERED.

RULING ON RESPONDENT’S MOTION FOR CLARIFICATION OR RECONSIDERATION EGINTON, District Judge. Petitioners are alleged “Mariel” Cuban detainees challenging the legality of their prolonged custody as excludable aliens. This court ordered the consolidation of these cases and appointed the Federal Public Defender as counsel for the petitioners. Respondents filed the instant motion for reconsideration of this court’s order appointing counsel. For the reasons stated below, respondents’ motion for reconsideration is granted and upon reconsideration, the court’s order of February 8, 1991 will be affirmed. The Government presents the following three grounds in support of its motion: 1) the Criminal Justice Act (CJA or Act), 18 U.S.C. § 3006A, does not provide counsel in civil immigration proceedings; 2) the appointment of counsel conflicts with the Immigration and Nationality Act (INA); and, 3) appointment of counsel at government expense is not warranted in these cases. Petitioners, through their appointed counsel, object to respondents’ motion. Discussion Section 3006A(a)(2) of the CJA, as amended, states the following: “Whenever the United States magistrate or the court determines that the interest of justice so requires, representation may be provided for any financially eligible person who— ... (B) is seeking relief under section 2241, 2254, 2255 of title 28.” The clear construction of this statute is that any indigent person seeking habeas corpus relief under the provisions of Title 28 is entitled to CJA representation when the interest of justice so requires. This statute is not ambiguous, vague, or confusing. Petitioners are seeking relief under 28 U.S.C. § 2241 and fall within the plain meaning of the language of this statute. Section 2241 provides relief for prisoners in custody of the authority of the United States “in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241(c). This remedy has never been viewed as available only to challenge criminal convictions. The canon of statutory construction is that Congress is presumed to understand the judicial background against which it legislates. Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979). Respondents do not dispute that petitioners’ claims are actionable under § 2241. Nor do they argue that § 2241 relief is available only to challenge criminal convictions. Instead, they maintain that 18 U.S.C. § 3006A is narrower in scope than the habeas corpus statutes and applies only to criminal proceedings or actions arising directly or collaterally from such proceedings. According to the Government, “purely civil” matters such as immigration proceedings, are not embraced by the Act. In support of this interpretation the Government relies on Perez-Perez v. Hanberry, 781 F.2d 1477 (11th Cir.1986) {Perez). The Perez court relied on essentially the same three grounds raised herein to reverse a district court’s appointment of counsel under § 3006A(a) for a Mariel Cuban detainee. Although 18 U.S.C. § 3006A(a) has been amended since Perez, respondents maintain that the amendment does not extend coverage of the Act to civil proceedings and does not affect the analysis of the Perez court. This court disagrees and declines to follow the Eleventh Circuit’s narrow reading of § 3006A(a). At the time Perez was decided, § 3006A(a) provided in pertinent part: (a) Choice of Plan. — Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan for furnishing representation for any person financially unable to obtain adequate representation ... (3) who is subject to revocation of parole, in custody as a material witness, or seeking collateral relief, as provided in subsection (g) ••• Subsection (g) provided as follows: (g) Discretionary appointments. — Any person subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 may be furnished representation pursuant to the plan whenever the United States magistrate or the court determines that the interests of justice so require and such person is financially unable to obtain representation. The Perez court found that habeas proceedings brought by excludable aliens are not within the scope of the CJA because they are not collateral within the meaning of the Act. Instead, the court characterized them as direct attacks on the denial of parole in an administrative proceeding. The court then defined a “truly collateral attack” as a habeas corpus challenge to a criminal conviction after the defendant’s right to direct appeal is exhausted. Neither respondents nor the Perez court provide authority for this restrictive interpretation of the word “collateral.” The Perez court’s construction of § 3006A(a) is problematic on several levels. First, it relies heavily on a narrow definition of a term that is no longer in the statute. The Perez court relied specifically on the word “collateral” when determining whether challenges by Cuban nationals came under the scope of the Act. The court quoted § 3006A(a), supplying emphasis to the word “collateral,” and concluded that “[tjhese subsections do not provide for the appointment of counsel for excludable aliens challenging the denial of parole through habeas corpus petitions because these challenges are not collateral in nature.” Perez, 781 F.2d at 1480 (emphasis in original). Clearly, the Eleventh Circuit’s analysis of § 3006A(a) rested in large part on its interpretation of the term “collateral.” Thus, contrary to the Government’s assertion, the removal of this term does suggest a change in the analysis employed by the Eleventh Circuit and logically restricts application of Perez to cases brought under the amended CJA. Additionally, the Perez court looked to the legislative history of the Act in order to interpret the proper scope of the CJA. Quoting from the legislative history of the 1970 amendment, the Perez court stated that the authority to appoint counsel is provided in criminal proceedings or in those proceedings “intimately related to the criminal process.” Once again, the Perez court’s singular reliance on a sentence fragment results in an overly restrictive interpretation. An equally plausible reading of this passage of legislative history is that Congress decided to provide court appointed counsel in certain civil proceedings which involve “the deprivation of personal liberty.” Thus, even though such proceedings are civil in nature and do not invoke sixth amendment rights to counsel, appointment of counsel is appropriate due to the loss of an important fundamental interest. The Perez court apparently understands “deprivation of liberty” to mean only the loss incurred after a criminal conviction has been entered. The legislative history of § 3006A(a) does not support this conclusion. Immediately preceding the sentence relied on by Perez, the legislative history cites two cases: In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (Gault) and Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (Johnson). Neither case involved the appointment of counsel to challenge a criminal conviction. In Gault, a juvenile filed a habeas corpus petition challenging his confinement in a state industrial school. The Court noted the limited panoply of rights afforded juveniles and the civil nature of delinquency hearings. It nevertheless held that counsel should have been appointed at the hearing due to the consequences of the proceeding, that is, the “commitment to an institution in which the juvenile’s freedom is curtailed.” Gault, 387 U.S. at 14, 87 S.Ct. at 1436-37. Johnson discussed the importance of providing legal assistance to prisoners who are attempting to file federal habeas corpus actions. The Court framed this problem as involving “access to the courts,” and held that the State must permit fellow inmates to assist each other or provide trained assistance to prisoners in order to protect their “access to the constitutionally and statutorily protected availability of the writ of habeas corpus.” Johnson, 393 U.S. at 489, 89 S.Ct. at 750-51. Both cases recognized the need to assist individuals facing a loss of liberty even where the loss was not necessarily the result of a criminal proceeding. By citing these cases, Congress recognized the breadth of situations which might require court appointed counsel. The broad remedy of habeas corpus was therefore included in the CJA so that district judges would have the flexibility needed to appoint counsel in cases similar to Gault and Johnson. The court does not imply that the 1986 amendment represents a substantive change or in any way broadens the scope of the CJA. As the Government points out, § 3006A(a) was restructured for “purposes of clarity only.” Possibly, Congress felt it necessary to clarify any conflicting interpretations of the phrase “collateral relief.” By removing the phrase without substituting language restricting the appointment of counsel in habeas proceedings, one might infer that the Perez interpretation was not the victorious version. Alternatively, it is possible that the amendment was purely technical in nature, in which case, Congress, in direct contrast to the Perez court’s analysis, obviously placed little or no significance on the phrase “collateral relief.” Either way, the court finds that the amendment does not alter the application of the Act. It is more the case that the Perez interpretation was never in line with the original intent of the statute. Aside from Perez, the Government insists that petitioners' detention simply “does not implicate the constitutional or statutory rights the CJA seeks to protect.” These rights are identified by the Government as the right to counsel when the Sixth Amendment requires appointment of counsel, or the right to counsel when any Federal law requires the appointment of counsel in a case involving the loss of liberty. In respondents’ view, petitioners are not entitled to these rights because they are not facing a “loss of liberty” within the meaning of the Act. This remarkable conclusion is reached based on the administrative nature of petitioners’ detention and the fact that discretionary parole is a privilege, not an enforceable liberty interest. The court finds this argument to be utterly specious. Petitioners are seeking freedom from confinement; they are not seeking the “privilege” of being placed on parole. To that extent, they have the same enforceable interest in life, liberty and property as any citizen of the United States. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896). While petitioners’ detention is technically administrative and their confinement in federal prisons may be a matter of convenience rather than punishment, it is also true that even administrative detention becomes “imprisonment” over a period of time. Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1386 (10th Cir.1981), quoting Petition of Brooks, 5 F.2d 238 (D.Mass.1925). See also, Doherty v. Thornburgh, 750 F.Supp. 131, 137 (S.D.N.Y.1990) (“If at some point detention ceases to serve the Government’s legitimate regulatory purpose, continued detention becomes punitive and unconstitutional.”). Thus, the scope of the great writ cannot be narrowed by the Government’s disingenuous attempt to redefine “liberty.” Petitioners’ continued and indefinite confinement is clearly a loss of liberty within the meaning of the CJA. The Supreme Court has described habeas corpus as “perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement.” Fay v. Noia, 372 U.S. 391, 400, 83 S.Ct. 822, 828, 9 L.Ed.2d 837 (1963), overruled on other grounds, Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Court described the essence of habeas corpus as “an attack by a person in custody upon the legality of that custody.” Preiser v. Rodriquez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973). That custody may be judicially imposed or not. It may be the result of an Executive order, an order of the court, or even the act of private parties. The notion of the “great writ” as a means to challenge illegal confinement has been an integral part of our commonlaw heritage at least since the American Colonies achieved independence. Id. at 484-85, 93 S.Ct. at 1833-34. Likewise, the availability of habeas review in immigration cases is equally well established. See e.g., Chin Yow v. United States, 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369 (1908); Bertrand v. Sava, 684 F.2d 204, 210 (2d Cir.1982). Where, as here, petitioners are attempting to avail themselves of the broad remedy provided by the great writ, their status as administrative detainees is irrelevant. The Government argues in the alternative that appointment of CJA counsel is in direct conflict with the INA § 292, 8 U.S.C. § 1362. This section permits attorney representation of aliens at exclusion or deportation proceedings so long as counsel is not provided at government expense. Respondents hypothesize that it is unlikely Congress would deny government-paid counsel at administrative hearings but then pay for such representation at habeas corpus proceedings. The Government maintains that Congress would have noted a “profound fiscal impact” where potentially tens of thousands of aliens could be effected. Juxtaposing § 3006A(a) and § 1362 presents no inconsistency when one considers the discretionary nature of the court’s ability to appoint counsel in habeas proceedings. In this circuit, appointment is not made without consideration of the merits of the case, the complexity of the legal issues raised, and the ability of the petitioner to investigate and present the case. Shaird v. Scully, 610 F.Supp. 442, 444 (S.D.N.Y.1985). Because petitioners have no right to counsel in these cases, there is no cause for speculation as to the calamitous results which might occur if all aliens were to receive CJA counsel. Moreover, this alleged inconsistency is not as unlikely as respondents contend. In many instances, complainants have the right to counsel, at their own expense, at administrative proceedings, and may also pursue legal actions where counsel may be statutorily reimbursed by the Government. As an example, individuals seeking social security benefits have a right to counsel when appearing before an administrative law judge. See 42 U.S.C. § 406. A lawyer or counsel is considered helpful at such hearings, but they are not required or necessary because administrative hearings are non-adversarial proceedings. When judicial review is sought, an indigent complainant may request pro bono counsel under 28 U.S.C. § 1915(d). Any such appointment is made at the discretion of the court. If counsel is appointed and is successful, attorneys fees may be awarded under the Equal Access to Justice Act; 28 U.S.C. § 2412(d). Wells v. Bowen, 855 F.2d 37 (2d Cir.1988). This statutory scheme also denies government-paid counsel at the administrative level while providing payment from the public treasury for an attorney at the judicial level. Apparently, this is an inconsistency which Congress is willing to tolerate. Lastly, respondents maintain that the appointment of counsel is not warranted in these cases. The Government concludes that the ultimate issue raised in these cases is no different from the claims of other Cuban detainees who have been denied relief in a number of circuits. In support of this claim, respondents cite recent decisions from other circuits which denied identical versions of the petition submitted by Petitioner Alberto Saldina. Without further reference to the facts of petitioners’ cases, respondents conclude that the Attorney General advanced a facially legitimate and bona fide reason to deny parole to both petitioners. The present record does not provide a sufficient basis upon which to determine the merits of these claims. While the issues raised in these “fill-in-the-blank” petitions may have been previously decided in other circuits, they have not been reviewed by this circuit. Moreover, the circuits are not in agreement as to the constitutionality of indefinite imprisonment. Cf, Perez, 781 F.2d 1477 (11th Cir.1986) and Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981). More than likely, petitioners’ “form petitions” do not allege adequately the appropriate legal or factual bases for challenging their continued and indefinite detention. Further investigation by petitioners’ counsel may very well necessitate amending the petitions. The cases cited by respondent involved petitioners who filed form petitions and attempted to litigate their actions pro se. Under these circumstances, it is hardly noteworthy that the photocopied petitions were uniformly rejected. The issues raised in these cases involve complicated questions of law and fact and require legal expertise. The very fact that the petitioners in the cases cited by respondents submitted form petitions and acted pro se suggests to this court that their legal challenges may not have been fully explored or advocated. Because the interest of justice requires the appointment of counsel in these cases, the court’s order appointing counsel under the CJA shall stand. Conclusion Respondents’ request for an order appointing pro bono counsel in this matter is DENIED. Respondents are directed to report to the court concerning the status of the petitioners and the results of any recent personal interviews conducted by the Immigration and Naturalization Service with respect to both petitioners. Counsel for petitioners is directed to file any amended petition on or before September 13, 1991. SO ORDERED. . To the court’s knowledge, Perez is the only published decision holding that the authority to appoint counsel in this type of case is lacking under the CJA. At least one other district court denied a similar challenge by the Government in a case involving Mariel Cuban detainees. See Barro-Morales v. Thornburgh, Civil Action No. 90-422, Memorandum Opinion And Order (E.D.Ky. February 11, 1991). . The Perez court quotes the following provision of legislative history: Section 1(a)(3) requires that each plan provide for the appointment of counsel, pursuant to the provisions of section 1(g), for individu als financially unable to secure adequate representation who are subject to revocation of parole, who are material witnesses in custody, or who are seeking collateral relief. Inasmuch as these proceedings have traditionally been regarded as technically civil in nature rather than criminal, no right to appointed counsel has as yet been recognized under the sixth amendment. The distinction between civil and criminal matters, however, has become increasingly obscure where deprivation of personal liberty is involved ... The proceedings listed in subsection 1(a)(3) and 1(g) are intimately related to the criminal process. Perez, 781 F.2d at 1480 n. 4, quoting, H.R.Rep. No. 1546, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Ad.News 3982, 3987-88. . There is no indication that financially ruinous consequences have materialized in the Eastern District of Kentucky or the Southern District of Missouri where CJA counsel have been appointed to represent Mariel Cuban detainees.

TORRUELLA, Circuit Judge. Appellant Pierre Azor (“Appellant”) appeals the district court’s denials of his motions for suppression and severance, and claims that his sentence of thirty-six months of imprisonment is substantively unreasonable. After review, we find that the district court properly denied his motion to suppress and did not abuse its discretion in denying his motion to sever. Additionally, Appellant’s sentence is substantively reasonable. Seeing no reason to vacate Appellant’s conviction or sentence on the grounds that he has presented, we affirm. I. BACKGROUND A. Factual Background 1. Intercepted Phone Calls In March 2014, pursuant to a wiretap order authorized by the United States District Court for the District of Maine, Unit ed States Drug Enforcement Agency Task Force agents (the “Agents”) intercepted phone calls and electronic communications in connection with a suspected drug trafficking conspiracy based out of Lewiston, Maine. See 18 U.S.C. §§ 2510-2522. From March 19 to March 21, 2014, Agents intercepted several phone conversations between Romelly Dastinot (“Dastinot”) and an unidentified person known only as “Cash.” During these conversations, Dasti-not and Cash discussed a plan in which Cash would take a bus to Boston, Massachusetts, and purchase approximately one thousand “blues,” which the Agents knew to mean thirty-milligram pills of Oxyco-done. The pair planned to split the pills so that each had an inventory of five hundred to sell. Cash also commented that he could possibly sell “brown” (heroin) or “white stuff’ (cocaine), but preferred dealing with Oxycodone. On March 21, 2014, the Agents intercepted another call between Dastinot and Cash in which they discussed Cash’s travel plans. Cash informed Dastinot that he would take the 1:50 p.m. bus from Lewi-ston to Boston, but would return instead to Portland, Maine, so that he would not appear at the Lewiston bus station twice in one day. In another call intercepted on the same day, the Agents heard Cash refuse to go to an apartment on Knox Street (in Lewiston) to collect money from Dastinot because Cash believed that the area was “too hot,” and that possessing such a large amount of money would be suspicious and risky. Instead, the two confederates agreed that Dastinot, accompanied by an “elderly,” would take Cash to the Lewiston bus station. After hearing this conversation, the Agents contacted Maine State Police Trooper Tom Pappas (“Pappas”), who was assigned to the High Intensity Drug Trafficking Area program through the Drug Enforcement Agency. The Agents informed Pappas what they had heard over the wiretap and requested that he conduct surveillance at the Lewiston bus station to watch for Cash. Pappas made his way to the top of a parking garage near the bus stop, where he could see the 1:50 p.m. Greyhound bus parked on the street. Pap-pas saw a red truck behind the bus that he recognized as belonging to Carrie Bun-trock (“Buntrock”), a woman Pappas knew to be connected to Dastinot and whose age was in the early sixties. Pappas saw a man whom he did not recognize exit the vehicle and enter the Boston-bound bus. Pappas noticed that the man was wearing a blue jacket and black hat. Pappas watched as the bus departed the bus station without the man getting off of it. Pappas relayed his observations to the Agents monitoring the wiretap, who informed him that the man who boarded the bus could be returning from Boston that same day with a load of drugs. Around 10:05 p.m. that same night, the Agents intercepted a call between Dastinot and Pierre Dubois (“Dubois”), a man who was primarily located in Boston. Dubois told Dastinot that he had dropped off a man at South Station, a bus and train terminal in Boston. The Agents informed Pappas of this call, and that the suspect could be on a bus destined for Portland. After reviewing the schedule to see when the bus from Boston was scheduled to arrive in Portland, Pappas drove to the Portland bus station to conduct surveillance. He observed a bus arrive at the station and, although he was not able to see the passengers disembarking from the bus itself, he was able to see the passengers as they left the bus terminal. As he watched, Pap-pas saw the same man whom he had seen in Lewiston exit the bus terminal and get into a taxi. The man was wearing the same clothing that Pappas observed him wearing earlier that day. Pappas followed the taxi as it drove from the bus station, onto 1-295, and then northbound on 1-96 towards Lewiston. Because Pappas was- not wearing a uniform and was driving an unmarked cruiser, he asked Maine State Police Trooper Robert Cejka (“Cejka,” or, collectively with Pap-pas and'others, the “Officers”), who Was in uniform and was driving a marked police cruiser, for assistance. Pappas had previously explained the. developing situation to Cejka, and had' asked him to remain stationed along the Maine Turnpike in case the man headed northbound from Portland towards Lewiston. As he followed the taxi, Pappas relayed the taxi’s location to Cejka. Once the taxi passed the location where Cejka was parked, Cejka followed the vehicle for over ten miles, waiting for it to commit a traffic violation. 2. The Stop Shortly after midnight on March 22, 2014, Cejka observed the taxi going 41 m.p.h. as it approached the Gray-New Gloucester toil booth, where the speed limit drops from 65 or 70 m.p.h. to 35 m.p.h. After the taxi drove through the toll booth, Cejka pulled the taxi over. By this time, Cejka was aware that Pappas had called Maine State Police Trooper Jerome Carr-(“Carr”), a certified dog handler, to help with the investigation. Pappas had asked Carr to be ready to bring his drug-sniffing dog, Zarro, to help investigate the suspected drug smuggling. Cejka informed the driver that he had pulled the taxi over for exceeding the speed limit. After requesting and receiving-a driver’s license -from the passenger, later identified as Appellant, Cejka discovered that the license had been suspended. Appellant, who acknowledged being aware of the license suspension, told Cejka that he had spent the night in Portland and was now going to Lewiston. • Carr arrived at the scene approximately twenty minutes later. Zarro sniffed intently along-the car doors until he reached the passenger-side front door, where Appellant was seated. Zarro lifted himself up to the windowsill of the open passenger-side window, put his nose directly on Appellant’s jacket sleeve, and then- immediately sat down. According to both Carr and Cej-ka, drug dogs are trained to sit when they detect the presence of narcotics. Carr ordered the two occupants out of the taxi and asked Cejka to pat-frisk Appellant. The pat-frisk revealed a bus ticket showing that Appellant had gone from Boston to Portland only a few hours earlier. Appellant was not able to explain why he had lied about his trip. Zarro continued to search the vehicle, leading to Carr’s discovery of a baseball-sized plastic bag underneath the passenger seat. The bag was filled with 1,075 blue pills, later identified as Oxycodone. Cejka arrested Appellant and.booked him in the Cumberland County Jail, where Appellant confessed that the driver’s license was not his, and that his real name was Pierre Azor. 3. After the Stop Two days later, while Appellant was no longer in custody, law enforcement intercepted another call between Cash—whom they now identified as Appellant—and Dastinot in which Appellant thanked Das-tinot for “bailing him out,” and told Dasti-not that Appellant would repay him. In another call on March 31, 2014, Appellant inquired whether Dastinot had “Molly,” and the two discussed' drug sales and prices for “the blues.” During the following month, Appellant and Dastinot continued to set up sales of drugs over the telephone, with Appellant often asking Dastinot for “blues.” On May 22, 2014, Agents executed an arrest warrant at Appellant’s residence and seized drugs, a cell phone with the phone number matching Cash’s, a heavily used scale, and approximately $4,000.- ■ B. Procedural History In a nine-count second superseding indictment, the government charged twelve defendants, including Appellant, Dastinot, Dmitry Gordon, and Buntrock, with crimes related to the distribution of drugs in Lewiston between early 2012 and May 2014. Appellant was- charged only in Count Five of the second superseding indictment, for possession with intent to distribute a substance containing Oxycodone, and aiding and abetting the same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count One charged Dastinot and four others with conspiracy to distribute and possess with intent to distribute mixtures containing heroin, cocaine base, and Oxy-codone, in violation of 21 U.S.C. §§ 841(a) (1), 846. Appellant was not named in this conspiracy charge. Appellant filed a motion to suppress the evidence seized as a result of the stop and search of the taxi. In addition, Appellant filed a motion to sever and for relief from prejudicial joinder. After hearings, the district court denied both motions on March 23, 2015. On April 17, 2015, Appellant pled guilty while reserving his right to appeal the denial of both motions. Appellant’s pre-sentence investigation report (“PSR”) contained a guidelines sentencing range of forty-one to fifty-one months. At the sentencing hearing, during which both Appellant and his girlfriend gave statements, the district court adopted the guidelines range of the PSR, but concluded that a downward variance was warranted. The sentencing judge sentenced him to a term of imprisonment of thirty-six months, followed by thirty-six months of supervised release. The district court told Appellant that it considered his and his girlfriend’s statements, the seriousness of the offense, his history and characteristics, and “the need to avoid ... unwarranted disparities in sentencing between different ■ defendants,” and concluded that a downward variance was warranted. Judgment was entered on September 10, 2015. Appellant filed this timely appeal. II. ANALYSIS A. Motion to Suppress In his suppression motion and at the subsequent hearing, Appellant argued that the' stop in' this case was pretextual, and that, the police possessed neither .reasonable suspicion nor probable cause to stop and search .the taxi. Appellant reasoned that the information that the police obtained prior to the stop was insufficient t.o corroborate the information from the wiretap and other sources, and that the police needed additional evidence of Cash’s identity before they could determine that the man that they saw getting on to the bus was the same person that was on the telephone calls. The district court found that the information obtained via the wiretap, along with the personal observations of Pappas, amounted to probable cause to stop and search both Appellant and the taxi. Further, the district court found that the existence of probable cause to search was solidified by thé information that the police obtained as a result of the stop, including the alert by the drug-sniffing dog. On appeal, Appellant asks this court, to find that the district court’s conclusion that the Officers had probable cause to search the taxi was incorrect. Specifically, Appellant argues that, at the time of the search, law enforcement’s observations were insufficient to corroborate the information gathered over the wiretap, and therefore did not establish probable cause to stop and search. The only corroboration that law enforcement had, according to Appellant, was Pappas’s observations of a man getting out of a red truck belonging to someone who Pappas recognized as part of an investigation, boarding a bus in Lewiston, and later getting into a taxi in Portland that headed towards Lewiston. In Appellant’s view, the information from the wiretap was left largely uncorroborated, and nothing about the information obtained by law enforcement allowed them to identify the man on the bus as Cash. When reviewing the district court’s ruling on a motion to suppress, we review its findings of fact for clear error and its legal conclusions de novo. United States v. Ponzo, 853 F.3d 558, 572 (1st Cir. 2017). Additionally, we review its application of the law to the facts de novo. United States v. Dent, 867 F.3d 37, 40 (1st Cir. 2017). Appellant does not direct our attention to any facts that he believes are clearly erroneous, nor do we discern any after our review of the transcript. A search of a vehicle does not violate the Fourth Amendment’s protections against unreasonable search and seizure “if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). “Probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts.” United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir. 1995) (alteration omitted) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Police have probable cause to search “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We apply the “collective knowledge” principle when reviewing the existence of probable cause. That is, we look to the collective information known to the law enforcement officers participating in the investigation rather than isolate the information known by the individual arresting officer. See Illinois v. Andreas, 463 U.S. 765, 772 n.5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (“[Wjhere law enforcement authorities are cooperating in an investigation, as here, the knowledge of one is presumed shared by all.” (emphasis added)); United States v. Fiasconaro, 315 F.3d 28, 36 (1st Cir. 2002) (same). In the instant case, we agree with the district court that the collective knowledge of law enforcement officers involved in the investigation, viewed objectively, established probable cause to stop the taxi, search Appellant’s person, and search the vehicle. Armed with knowledge of the sex and likely race of the suspect, the purpose of the trip, and a detailed and unique itinerary, law enforcement sought to corroborate this information. The intercepted phone calls revealed that Cash would be leaving Lewiston on a bus bound for Boston at approximately 1:50 p.m. Cash would return later that same night on a bus to Portland. Before going to the bus station in Lewiston, Cash would meet Dastinot, who would be accompanied by an “elderly,” and would give Cash a ride to the bus station. At the bus station, Pappas witnessed Appellant, a black male, exit Bun-trock’s truck. Buntrock is a woman in her sixties known to be associated with Dasti- not. Pappas then witnessed the man get on to the Greyhound bus headed to Boston just prior to the 1:50 p.m. departure, and watched the bus depart without the man getting off. This corroborated almost all of the information pertaining to Cash’s departure. Later that same night, around 10:05 p.m., the Agents intercepted another call between Dastinot and Dubois, who was located in Boston, during which Dubois told Dastinot that he took the man to South Station, corroborating the information gleaned from the wiretap that Cash would be returning the same night. Given this information, Pappas reviewed the schedule of buses arriving in Portland from Boston that night and waited at the bus terminal. Sure enough, Pappas witnessed the same man, wearing the same clothes, exit the Portland bus terminal soon after the bus from Boston was scheduled to arrive. Appellant’s presence in both of the exact places where Cash stated that he would be, especially in light of the nature of the intercepted itinerary, provided further corroboration that this man was indeed the same man as on the telephone. The wiretap information was further corroborated when Pappas witnessed Appellant get into a taxi, and then followed that taxi as it headed for Lewiston, a trip that even Appellant admits was unusual. Appellant urges this Court to find that the district court was “too quick to find corroboration for purposes of probable cause,” and that, “[w]hile it may have been possible to corroborate the information intercepted from the wiretap, [law enforcement] simply did not do the investigative work necessary.” We are unpersuaded. Rather, as noted above, the record shows that law enforcement corroborated much of the information pertaining to Cash’s identity and itinerary that it gathered from the wiretap. Given this level of corroboration, we find that law enforcement had probable cause to stop and search Appellant and any vehicle in which he was trav-elling. Equally unavailing is Appellant’s contention that the timing of the stop, and the behavior of the Officers, indicate that probable cause to search did not exist. Appellant contends that Pappas did not act as if he had probable cause when he did not detain Appellant at the Portland bus station, and did not instruct Cejka to detain Appellant. On a similar note, Appellant remarks that Cejka also did not act as if he had probable cause because he did not immediately arrest Appellant, but instead waited to arrest him until after Zar-ro arrived. Our case law makes clear that law enforcement is not required to arrest a suspect immediately upon development of probable cause. United States v. Winchenbach, 197 F.3d 548, 554 (1st Cir. 1999). Rather, “when probable cause exists, the timing of an arrest is a matter that the Constitution almost invariably leaves to police discretion.” Id. The officer’s decision to obtain additional information to bolster his probable cause determination after this legally justified stop does not negate the probable cause that already existed.. See id. Pappas explained during the suppression hearing that he did not immediately stop the taxi because, he was working in an unmarked capacity, and did not want to compromise the wiretap and ongoing investigation. And, contrary to Appellant’s assertion that Pappas did not instruct Cej-ka to detain Appellant, Cejka’s testimony shows that Pappas did ask him to conduct a traffic stop of the taxi. While the true purpose of the stop may have been to further investigate a suspected drug offense, the officer’s reliance on a traffic offense to make the stop is irrelevant as there was plenty of cause to conclude that a crime was in process. See United States v. White, 804 F.3d 132, 138 (1st Cir. 2015) •(“But, ultimately, neither the pretextual traffic stop nor the ■ canine sniff search undermine the basic finding that, at the time-that these events transpired, officers had adequate probable cause to stop [the defendant’s] vehicle and to search it for evidence of drug dealing activity.”). As the stop and subsequent search of the taxi were both supported by probable cause, we affirm the district court’s denial of Appellant’s motion to suppress. B. Joinder and Motion to Sever Appellant’s appeal of the district court’s denial of his “motion to challenge joinder under Federal Rule of Criminal Procedure 8 and request for relief from prejudicial joinder under Federal Rule of Criminal Procedure 14” suffers the same fate. As he did below, Appellant argues that: 1) the government did not have a basis to join him in' a single indictment with the other defendants, and 2) he was “entitled to severance” based on the prejudicial spillover effect of the overwhelming evidence against the other defendants. The district court concluded that Count Five was properly joined in a single indictment with Count One because the evidence linked Appellant to at least two other defendants, and that Appellant had not demonstrated that the prejudice he faced was likely to create a miscarriage of justice. We agree. This Court reviews the joinder issue de. novo and the denial of a motion to sever for an abuse of discretion. Ponzo, 853 F.3d at 568. The distinction is as follows: Rule 8 of the Federal Rules of Criminal Procedure governs joinder of offenses or defendants, and is primarily an issue of law warranting de novo review; however, Rule 14, which governs relief from prejudicial joinder, involves the application of a guiding standard to a set of facts, rendering a higher degree of deference appropriate. United States v. Meléndez, 301 F.3d 27, 35 (1st Cir. 2002). We address each in turn. 1. Joinder Rule 8(b) provides that The indictment ....may charge,2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses, The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. Fed. R. Crim. P. 8(b). The government can indict jointly based on “what it reasonably anticipates being able to prove against the defendants” at the time of indictment. United States v. Natanel, 938 F.2d 302, 306 (1st Cir. 1991). “In the ordinary case, a rational basis for joinder of multiple counts should be discernible from the face of the indictment.” Id. Without a sufficient connection between the defendants charged with the crimes in an indictment, joinder is improper. A strong preference exists for trying defendants together when defendants have been properly joined. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Joinder is warranted under Rule 8(b) “as long as there is some common activity binding the objecting defendant with all the other in-dictees and that common activity encompasses all the charged offenses.” Natanel, 938 F.2d at 307. The burden of persuasion in a claim of misjoinder rests with the defendant. Id. at 306; United States v. Luna, 585 F.2d 1, 4 (1st Cir. 1978). We will vacate a conviction only if we find both misjoinder and actual prejudice. Ponzo, 853 F.3d at 568. Appellant asserts that the intercepted telephone calls do not reveal a connection between him and any of the other defendants besides Dastinot. We are mindful that “mere similarity of acts ... cannot justify joinder.” Natanel, 938 F.2d at 307. In order for joinder to be proper, there must be some common “mucilage” or activity between an objecting defendant and the other indictees, such as participation in a common drug distribution scheme. Id.; see also United States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987). Join-der is proper, however, even when the objecting defendant is only connected .to one part of that scheme. See Natanel, 938 F.2d at 307; see also Porter, 821 F.2d at 971. Here, the Government correctly notes that the allegations of Appellant’s drug dealings were not confined in the manner that Appellant contends. As described above,' law enforcement' had learned and corroborated information through intercepted telephone calls that Appellant was assisted during his voyage to Boston by Dubois, who pled guilty to Count One. Further, Pappas witnessed Appellant getting out of co-defendant Bun-trock’s truck at the Lewiston bus station just prior to getting on the bus to Boston. In addition, during the intercepted' telephone calls, Appellant and Dastinot discussed the drug sales of “Jimmy,” a reference to co-defendant Dmitry Gordon. This evidence clearly establishes Appellant’s connections to individuals other than Das-tinot involved in this distribution conspiracy. While Appellant claims that he had no role in the conspiracy to distribute cocaine and heroin, the wiretap revealed Appellant speaking to Dastinot about the possibility of obtaining these drugs alleged in Count One, including “brown” (heroin) and “white stuff’ (cocaine). For support, Appellant points to the government’s decision not to charge him in the conspiracy count, claiming that this highlights the lack of evidence to support joinder. But, the government’s decision not to charge Appellant as a co-conspirator in Count One does not evidence misjoinder. While a'conspiraey charge may provide the required link to render joinder proper, a particular defendant need not be charged with all crimes alleged in an indictment for the criminal matters to be properly joined. Natanel, 938 F.2d at 307; accord Pacelli v. United States, 588 F.2d 360, 367 (2d. Cir. 1978) (holding that join-der is proper when evidence exists of conspiratorial activity, even if the conspiracy is not charged in the indictment); United States v. Scott, 413 F.2d 932, 934-35 (7th Cir. 1969) (“[I]t is not necessary under Rule 8(b) that all the defendants need to be charged in the same count nor need the evidence [to] show that each defendant participated in the same act or transaction.”). Given that the government alleged a sufficient connection between Appellant and several of the co-defendants, as well as between Appellant and .the drugs charged in the conspiracy, we find that the district court correctly concluded that Appellant was properly joined. 2. Severance Even when a case is properly joined, Rule 14 allows a court to sever counts or defendants for separate trials if that joinder would prejudice a defendant. Fed. R. Crim. P. 14. When joinder is proper, as it was here, a defendant must make a “ ‘strong showing of prejudice’ likely to result from a joint trial.” Luna, 585 F.2d at 4 (quoting Sagansky v. United States, 358 F.2d 195, 199 (1st Cir. 1966)); see also United States v. Richardson, 515 F.3d 74, 81 (1st Cir. 2008) (“We must affirm the district court’s denial of a motion to sever unless the defendant makes a strong, and convincing, showing of prejudice.” (internal citations omitted)). “Garden variety prejudice, however, will not, in and of itself, warrant severance.” Richardson, 515 F.3d at 81. A district court should only order severance “if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933. “Even where large amounts of testimony are irrelevant to one defendant, or where one defendant’s involvement in an overall agreement is far less than the involvement of others, we have been reluctant to secondguess severance denials.” United States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990). Our review is highly deferential, affording discretion to the trial court and only reversing for an abuse of that discretion. Luna, 585 F.2d at 4-5. As we have long noted, some level of prejudice is inherent in trying two or more defendants together. King v. United States, 355 F.2d 700, 704 (1st Cir. 1966). But, where the evidence against a defendant might show a defendant’s association with his co-defendants even if he were tried alone, the argument for prejudice becomes much weaker. Id. The “spillover effect,” whereby evidence against co-defendants may inspire a “transference of guilt from one [defendant] to another,” rarely constitutes sufficient prejudice to warrant severance. Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). But see United States v. Baker, 98 F.3d 330, 335 (8th Cir. 1996) (finding the risk of prejudice of a joint trial “too high” in light of an extremely serious and sensational crime). As the district court acknowledged, there can be no doubt that here, given the number of defendants and charges, the risk of prejudice from the spillover effect clearly existed. However, this risk exists in every case involving co-defendants, and Appellant has failed to show that the district court abused its discretion in finding that this case lacked a heightened level of prejudice. It is up to a defendant to show “prejudice so pervasive that a miscarriage of justice looms.” United States v. Trainor, 477 F.3d 24, 36 (1st Cir. 2007) (citation omitted). The district court found that adequate safeguards, such as clear limiting instructions to the jury, could successfully limit the spillover effect, and Appellant has failed to explain why these safeguards do not suffice. We discern no error in the district court’s conclusion that Appellant has failed to make the required showing. C. Substantive Reasonableness Finally, we address Appellant’s claim that the sentence imposed by the district court was substantively unreasonable. Appellant received a sentence of imprisonment for thirty-six months, below the guidelines sentencing range of forty-one to fifty-one months, but argues that this sentence was significantly longer than those of other co-defendants with similar criminal records who served in the same role within the criminal enterprise. A reasonable sentence, which he argues would be eighteen months’ imprisonment, would have rectified this disparity. When sentencing a criminal defendant, the district court must consider a number of factors in order to “impose a sentence [that is] sufficient, but not greater than necessary....” 18 U.S.C. § 3553(a). These considerations include, in ter alia, the nature and circumstances of the crime, the history and characteristics of the defendant, the sentencing guidelines, and the need to avoid unwarranted sentencing disparities among similarly situated defendants. Id. Reasonableness “is not a static concept” as there exists a wide range of appropriately reasonable sentences. United States v. Ubiles-Rosario, 867 F.3d 277, 294 (1st Cir. 2017). As a sentence that falls within the guidelines range is presumed reasonable, Appellant faces an uphill battle to convince the Court that his below-guidelines sentence was substantively unreasonable. See United States v. Angiolillo, 864 F.3d 30, 35 (1st Cir. 2017) (citing Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); see also United States v. Coombs, 857 F.3d 439, 452 (1st Cir. 2017). When an objection to substantive reasonableness was not raised below, as in the case before us, our standard of review is unsettled. Coombs, 857 F.3d at 451. But, even under the more favorable standard of review to Appellant—review for an abuse of discretion, as opposed to plain error— Appellant’s claim fails. See id. A sentence is substantively reasonable if, couched in the § 3553 sentencing factors, it is supported by “a plausible sentencing rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). Both the court’s rationale and the result support the reasonableness of the district court’s downwardly-variant sentence in this case. The record reflects that the sentencing judge carefully and meticulously considered each of the sentencing factors in crafting the appropriate sentence for Appellant, with a particular emphasis on preventing unwarranted sentencing disparities. In concluding that the guidelines range called for a prison sentence greater than necessary, the court highlighted Appellant’s age, family, abusive upbringing, lack of prior opportunity to obtain substance abuse treatment and vocational skills training, and behavior between arraignment and sentencing. These factors, the court concluded, suggested that, with the proper direction, Appellant is capable of being rehabilitated. Weighing against Appellant, as the court noted, was that his prior conviction, for which he served a two-year term of imprisonment, did not provide adequate incentive for him to change his behavior. The court found it quite compelling that Appellant returned to dealing drugs for financial support upon release following his initial arrest in this case. Articulating its intention to impress upon Appellant that his behavior will no longer be tolerated, and to allow him to obtain educational, vocational, and other correctional treatment, the sentencing judge found the thirty-six month sentence to be sufficient but not greater than necessary. The rationale that an increasingly harsh sentence is appropriate to deter further misdoings, while leaving available the opportunity for rehabilitation, is clearly a plausible one. See Martin, 520 F.3d at 96. Further, the district court’s careful balancing of the sentencing factors surely achieved a defensible result. Not only did the district court’s consideration of the sentencing factors result in a below-guidelines sentence, it also explicitly accounted for the avoidance of unwarranted disparities. While explaining the sentence to be imposed, the sentencing judge explicitly addressed Appellant’s argument: I take very seriously the argument that was made with respect to avoiding unwarranted disparities with respect to sentence, particularly as pertains to other defendants that are part of the indictment to which Mr. Azor is subject in this case. And suffice it to say that I have given careful consideration to that and have of course sought to try and individualize the sentence-in this case, taking into account among other things the pri- or conviction record and also the individual circumstances of each defendant. While Appellant may not have liked the result of the court’s balancing, “[t]hat it did not weigh the factors as the appellant would have liked does not undermine the plausibility of this rationale.” Coombs, 857 F.3d at 452. The district court achieved a defensible and fair result well within the universe of reasonable sentences for Appellant. III. CONCLUSION Finding no discernible error in the district court’s denial of Appellant’s motion to suppress and motion to sever, and finding Appellant’s sentence' to be substantively reasonable, the judgment and sentence of the district court are affirmed. Affirmed. . While not necessarily determinative of his race, Cash and Dastinot spoke to each other in Haitian Creole. It was thus reasonable for the Officers to infer that Cash was likely of Haitian descent. . This Court makes no suggestion as to the age at which one may be considered "elder ly.” However, it was reasonable for the Officers to infer that, in this situation, Buntrock was the "elderly” to whom they heard Dasti-not refer.

SHEPHERD, Circuit Judge. After Donald Morgan ran against his' boss Michael Robinson, the incumbent sheriff, in a primaiy election, Robinson terminated Morgan’s employment as a deputy with the Washington County, Nebraska Sheriffs Office for statements Morgan made during the campaign. Morgan' then brought this First Amendment retaliation action under 42 TJ.S.C. § 1983, and Robinson moved for summary judgment on the basis of qualified immunity. The district court denied Robinson’s motion, and he appealed, We affirm. I. Background Morgan is a deputy in the Washington County, Nebraska Sheriffs Department. Robinson is the elected sheriff for that county. In July of 2013, Morgan notified Robinson of his intentions to run against Robinson in the 2014 primary election. Throughout his campaign, Morgan made. public statements concerning the opera-, tions of the sheriffs department and his plans to improve them. Robinson won the election, and he terminated Morgan’s employment six days later, claiming that these statements violated the department’s rules of conduct. In Morgan’s termination-letter, Robinson cited the following statements as the reasons for the disciplinary action: 1. You continued to state that the communications system was not completed after 10 years of construction ■ although the record reflects it was completed on time and under budget in 2006[J 2. You stated the Fire and Rescue agencies could not communicate and stated someone would be hurt or killed if it was not fixed although the Fire Chiefs submitted a letter to the local paper saying your comments were false. • • 3. You continued to- tell the public that morale at the Sheriffs Office was bad and that “all the employees were waiting for the day after I lost to see me walk -out of the office”-. ' [sic] You also stated several deputies were actively looking for employment. This was proven false when several of the Deputies were consulted and none were looking and did not know of any deputy looking for employment and I was overwhelmingly supportéd by the eni-' ployees of the Sheriffs Office. 4. You stated the K-9 had been taken from you for retribution when in fact you demanded the K-9 be taken because it “hindered your ability to do your job”, [sic] 5. You stated portable radio coverage was poor and continued to state the coverage was poor even after being shown the system coverage for portable radios was 99.2% county wide. R. at 261. Morgan initially filed a grievance under a labor contract that applied to his position, which he lost. He then filed this suit, in district court alleging claims of retaliation, deprivation of due process, . and breach of the labor contract. Applying the terms of the contract, the district court compelled arbitration of the breach of contract claim. The arbitrator ruled in Morgan’s favor and reinstated his employment with the sheriffs department. After returning to district court, Robinson filed the current motion for summary judgment, claiming that he was entitled to qualified immunity on Morgan’s retaliation claim. The court denied the motion, ruling that Robinson was not entitled to qualified immunity because there were genuine disputes of material fact concerning the public value . of Morgan’s statements and whether the statements caused disruption in the operation of the sheriffs department. Because of these factual disputes, the court denied.qualified immunity, concluding a jury could find that Morgan established a violation of his constitutional rights, that was clearly established at the time of the incidents in question. Robinson appeals this decision. II. Discussion On appeal, Robinson focuses the vast majority of his briefing on arguments related to the proper form of the qualified immunity analysis. In so doing, however, he neglects to realize..that the Supreme Court has ascribed a unique test applicable to cases where a government employee alleges that his employer retaliated against the employee for exercising his First Amendment rights. In the first part of this" test, we must discern whether the employee’s speech is protected by the First Amendment: an inquiry that entails balancing the respective interests of the employee and the employer. See Lane v. Franks, — U.S. —, 134 S.Ct. 2369, 2380-81, 189 L.Ed.2d 312 (2014). Next, because Robinson claims he is protected by qualified immunity, we apply the standard inquiry asking whether “the official violated a statutory or constitutional right, and [whether] the right was clearly established at the time of the challenged conduct.” Id. at 2381 (internal quotation marks omitted); see also id. at 2383 (concluding that although the speech was protected, the employee’s First Amendment rights were not violated “because the question was not ‘beyond debate’ at the time” the official took action (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011))). A. Standard .of Review “Á party is entitled to summary judgment only when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Div. of Emp’t Sec. v. Bd. of Police Comm’rs, 864 F.3d 974, 977-78 (8th Cir. 2017) (quoting Fed. R, Civ. P. 56(a)), “[I]n ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’ ” Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (second alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Ordinarily, we lack jurisdiction to hear an immediate appeal from a district court’s order denying summary judgment, because such an order is not a final decision.” Div. of Emp’t Sec., 864 F.3d at 978 (internal quotation marks omitted). Where the moving party claims entitlement to qualified immunity, however, an appeal may be taken “because immunity is effectively lost if a case is erroneously permitted to go to .trial,” Id. (internal quotation marks- omitted). “The scope of our review is limited to issues of law, so we apply a de novo standard.” Id. B. Whether Morgan’s Speech is Protected “The Supreme Court has developed two lines of cases that assess how to balance the First Amendment' rights of government employees with the need of government. employers to operate efficiently,” Thompson v. Shock, 852 F.3d 786, 791 (8th Cir. 2017). Where, as here, a case involves “overt expressive conduct,” our court applies “the balancing test as found in the line of cases following Pickering and Con- nick. The typical Pickering-Connick case involves- a government employee causing workplace disruption by speaking as a citizen on a matter of public concern, followed by government action adversely affecting the employee’s job.” Jd. (internal citation omitted). The first question in this analysis asks whether the employee’s speech was made as a citizen on a matter of public concern. Lane, 134 S.Ct. at 2378; accord Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 833 (8th Cir. 2015). Where this question is answered in the affirmative, the court next asks whether the employer “had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti v, Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); accord Anzaldua, 793 F.3d at 833 (“[I]f the possibility of a First Amendment claim has arisen, then our second inquiry is to ask whether [the employer] has produced evidence to indicate the speech had an adverse impact on the efficiency of the [employer’s] operations.” (alterations in original) (internal quotation marks omitted) ). Finally, if each party has met their burden, the court applies the Pickering-Connick test to balance the competing interests. Anzaldua, 793 F.3d at 835. 1. Whether the speech was made as a citizen on a matter of public concern. “Speech by citizens on matters of public concern lies at the heart of the First Amendment, ... [and] [t]his remains true when speech concerns information related to or learned through public employment.” Lane, 134 S.Ct. at 2377. Indeed, “[t]here is considerable value ... in encouraging, rather than inhibiting, speech by public employees [because] ‘[government employees are often in the best position to know what ails the agencies for which they work.’” Id. (third alteration in original) (quoting Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)). If the employee was not speaking as a citizen on a matter of public concern, he or she “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. On the other hand, if this preliminary question is answered in the affirmative, “then the possibility of a First Amendment claim arises.” Id. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (internal citations omitted) (internal quotation marks omitted). By contrast, where speech primarily serves the personal interests of the speaker, it warrants no protection because it has little value to the public at large. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762, 106 S.Ct. 2939, 86 L.Ed.2d 593 (1985). More specifically, a statement is personal where it does “nothing to inform the public about any aspect of the [government entity’s] functioning or operation.” City of San Diego v. Roe, 543 U.S. 77, 84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004). We spend little time on this part of the test because Robinson’s counsel conceded in his brief and during argument that the speech was made as a citizen on matters of public concern. For reasons that will become clear later in this opinion, we pause only long enough to verify that this is a legally sound concession. First and foremost, “the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (internal quotation marks omitted). Thus, proceeding from Connick, the context in which Morgan made these statements—his political campaign—supports the view that they pertained to matters of public concern. Next, the content of the statements shows their import to the community as a whole. Of the statements, at least three concerned the communications and radio systems that emergency personnel used in Washington County. While one could conceivably argue that the statements expressed Morgan’s personal dissatisfaction with Robinson, these comments did not involve a “personal conflict,” Bailey v. Dep’t of Elementary & Secondary Ed., 451 F.3d 514, 520 (8th Cir. 2006), nor were they the result of “an already strained relationship” with Robinson, Anzaldua, 793 F.3d at 833 (internal quotation marks omitted); cf. Connick, 461 U.S. at 148, 103 S.Ct. 1684 (finding statements to concern private matters where made “to gather ammunition for another round of controversy with [the employee’s] superiors”). At most, the statements were critical of the manner in which Robinson performed his duties as county sheriff, and “[s]peech that criticizes a public employer in his capacity as a public official ... addresses matters of public concern.” Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000). Therefore, the content of the statements supports the conclusion that they were' matters of public concern. Finally, the form of these statements demonstrates their public import. Many of these statements were made to a group of attendees during a forum held at a local high school. Other statements were made on Morgan’s website, which was obviously open to the public. Still others were published in a local newspaper. None of them, however, were disseminated to a closed audience or reported as part of Morgan’s official job duties. Cf. Dun & Bradstreet, 472 U.S. at 762, 105 S.Ct. 2939; Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Accordingly, Morgan’s statements were made as a citizen on matters of public concern. 2. Whether Robinson has shown justification for Morgan’s termination. Because Morgan’s statements were on matters of public concern, “the possibility of a First Amendment claim arises,” and the court must turn to the question of whether Robinson “had an adequate justification for treating [Morgan] differently from any other member of the general public.” Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. No one disputes that Robinson has an interest in maintaining the efficient operation of the Washington County Sheriffs Office. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Indeed, just like their private counterparts, government employers “need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Lane, 134 S.Ct. at 2377 (internal .quotation marks omitted). Importantly, there is no “necessity for an employer to allow events to unfold to- the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Connick, 461 U.S. at 152, 103 S.Ct. 1684. But “a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern.” Id. Our precedent has been inconsistent on the level of evidence of disruption an employer' must' present to satisfy its burden. See Anzaldua, 793 F.3d at 834 & n.3. For many years, the court regularly denied qualified immunity prior to applying- the Pickering-Connick test where the employer failed to present sufficient evidence of actual workplace disruption. See, e.g., Burnham v. Ianni, 119 F.3d 668, 680 (8th Cir, 1997) (en banc) (“The government employer must make a substantial showing that the speech is, in fact, disruptive before the speech may be punished.... [W]e have never granted any deference to a government supervisor’s bald assertions of harm based on conclusory hearsay and rank speculation.”); Belk, 228 F.3d at 881 (“Where-there is no evidence of disruption, resort to the Pickering factors is unnecessary because there are no government interests in efficiency to weigh against First Amendment interests.”). More recently, however, we have relied on Connick’s statement that it is not necessary “for an employer to allow , events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action,” 461 U.S. at 152, 103 S.Ct. 1684, to hold that “ ‘[evidence of actual disruption ... is not required in all cases.’ ” Anzaldua, 793 F.3d at 833 (alterations in original) (quoting Bailey, 451 F.3d at 521); see also Nord, 757 F.3d at 743. But no case questions Connick’s proclamation that “a stronger showing [of disruption] may be necessary if the employee’s speech more substantially involved matters of public concern,” 461 U.S. at 152, 103 S.Ct. 1684; see also Hemminghaus v. Missouri, 756 F.3d 1100, 1113 n.11 (8th Cir. 2014) (f‘We also note the record indicates the majority of Hemminghaus’s blog posts related to her personal dispute with the nanny and did not focus on child abuse as a public problem, lessening the burden on defendants.”). Indeed, save for Nord, in every case in which we have noted that evidence of actual disruption is not necessary,- we have gone on to find sufficient evidence of such disruption. See, e.g., Anzaldua, 793 F.3d at 834 (“[Although we do not require actual evidence of disruption in all cases, it exists here.”); Hemminghaus, 756 F.3d at 1113 (“Hemminghaus’s actions are sufficient evidence of disruption.” (internal quotation marks omitted)); Bailey, 451 F.3d at 521 (“Although such evidence is not required, sufficient evidence of disruption exists in this case.”). Given- the relative strength' of Morgan’s showing that the statements were made in the public interest, see Burson, 504 U.S. at 196, 112 S.Ct. 1846, Robinson faces a higher burden to justify Morgan’s termination, see- Connick, 461 U.S. at 152, 103 S.Ct. 1684, Understandably, much of Robinson’s argument is devoted to factually analogizing the present case to Nord in an attempt to show that he “could have reasonably believed that the speech would be at least potentially damaging to and disruptive of the discipline and harmony of and among co-workers in the sheriffs office and detrimental to the close working relationships and personal loyalties necessary for an effective and trusted local policing operation.” Nord, 757 F.3d at 743. To be sure, there are similarities between this case and the facts that were before us in Nord. There, deputy sheriff Ron Nord ran against the incumbent sheriff, Lauren Wild, in an election. Id at 737. After Nord lost, Wild terminated Nord on the basis of comments Nord made during the election, and Nord then filed suit under § 1983, asserting a First Amendment retaliation claim. Id. at 738. . There are, however, critical distinctions between Nord and the present- ease: the campaign statements at issue there concerned the sheriffs personal affairs. Id. at 742. As we stated: Nord had indicated to voters that Wild’s health was bad and that he should not be running for office because his health was so bad. And, Wild stated that he heard “[o]ne report ... that my wife didn’t even want me to run.” Wild also stated that another report indicated that he had said “[he] was going to resign as sheriff in two years and run for [a state senator’s] position as senator.” Id. (first, second, and third alterations in original). As a result, we concluded “that at least some of Nord’s campaign speech does not merit First Amendment protection.” Id. at 743. Nord is therefore consistent with Connick insofar as Nord required a lesser showing of disruption, because the speech at issue was, at most, only tangentially related to public concern. Cf. Connick, 461 U.S. at 152, 103 S.Ct. 1684. Here, by contrast, Morgan’s campaign statements were all matters of public concern, and Robinson has made an extremely minimal showing of actual or potential disruption. As evidence, Robinson presented the following: 1. Ron Bellamy’s arbitration testimony that Morgan’s statements had created “uneasiness” and that some employees mentioned- “they felt like [Morgan] was putting them in a position that they didn’t want to be in.” R. at 235. 2. Phil Brazleton’s arbitration testimony that Morgan was terminated be- ■ cause of “the general lack of morale that was being spread due to-a difference of opinion on how business should run.” R. at 245. 3. Kevin Willis’s arbitration testimony that Morgan was terminated be-'eause' Willis “felt that Mr. Morgan undermined the ... public trust and faith.” R. at 248. And, ■ 4. Shawn Thallas’s arbitration testimony that Morgan was terminated because of “turmoil ... being uncomfortable ... with everything that’s been going on ... there’s uneasiness in all areas at all times.” R. at 252. Absent from this evidence is any concrete showing ‘of the' actual impact of Morgan’s speech on the efficiency of the sheriffs office. Cf. Shockency v. Ramsey Cnty., 493 F.3d 941, 949-50 (8th Cir. 2007) (“Qualified immunity cannot be based on a simple assertion by the employer ... without supporting evidence of the adverse effect of the speech on workplace efficiency.” (alteration in original) (internal quotation marks omitted)). For example, in Anzaldua, we found sufficient evidence of disruption where coworker declarations specifically demonstrated the employees’ reactions and how the statements affected the operation of the fire department. 793 F.3d at 834-35. Likewise, in Hemminghaus, the employee herself proffered evidence of how her statements impacted her relationship with her employer. 756 F.3d at 1113. Here, by contrast, the cited statements are extremely general in nature, and none of them point to a single concrete incident of disruption. See Sexton v. Martin, 210 F.3d 905, 912 (8th Cir. 2000) (“Mere allegations of disruption are insufficient to put the Pickering balance at issue.”). Additionally, as noted by the district court, several of Morgan’s statements were made a number of months prior to the election. When combined with Robinson’s testimony that Morgan’s performance has, at all relevant times, been satisfactory, Robinson’s failure to produce evidence of a discrete incident of disruption due to Morgan’s campaign statements is significant. Cf. Burnham, 119 F.3d at 680 (noting that plaintiffs own admissions refuted its allegations of workplace disruption). Finally, we note in passing that intra-office comments about “turmoil” and “difference[s] of opinion on how business should run” seem likely to be made any time an employee runs against his or her employer in an election. Other employees in the office may inevitably feel torn between the incumbent and the challenging employee given their personal relationships with each other. And this is especially true in a smaller county. Accordingly, these comments provide no “adequate justification for treating the employee differently from any other member of the general public.” See Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. Because Robinson has failed to show an adequate justification for his actions, we hold that Morgan’s speech is protected by the First Amendment and there is no need to resort to the Pickering-Connick balancing test. See Lane, 134 S.Ct. at 2381. C. Qualified Immunity We now turn to the question of whether Morgan is entitled to qualified immunity, which requires us to determine whether Robinson’s termination of Morgan violated a right secured by the First Amendment and whether that right was clearly established at the time of the termination. See id. Since we have determined that Morgan’s speech was protected, his termination was an adverse employment action sufficient to violate his First Amendment rights. See Heffernan v. City of Paterson, — U.S. —, 136 S.Ct 1412, 1416, 194 L.Ed.2d 508 (2016) (“The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity.”). We therefore turn to the second inquiry, under which “[t]he relevant question ... is this: Could [Robinson] reasonably have believed, at the time he fired [Morgan], that a government employer could fire an employee on account of’ the employee exercising his First Amendment right to free speech during a run for political office, where that speech had no disruptive impact on office functioning? Lane, 134 S.Ct. at 2381. The answer to this question is an unequivocal “no.” In Bearden v. Lemon—a case we ultimately decided on jurisdictional grounds— we commented that “[t]he right not to be terminated for [exercising one’s right to free] speech has been clearly established for some time.” 475 F.3d 926, 929 (8th Cir. 2007). In support of this statement, we cited to Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out....”), and Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (“It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.”). Taken alone, Bearden may be insufficient to define the contours of a constitutional right and alert a reasonable official that a termination violates that right. See Nord, 757 F.3d at 740. This is especially true considering intervening Supreme Court precedent directing lower courts “not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). But general statements of the law may, in some circumstances, “giv[e] fair and clear warning” to. government officials where the unlawfulness of the challenged action, is readily apparent in light of pre-existing law. White v. Pauly, — U.S. —, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017). No one disputes that “political speech ... is central to the meaning and purpose of the First Amendment,” Citizens United v. F.E.C., 558 U.S. 310, 329, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), or that “the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office,” Burson, 504 U.S. at 196, 112 S.Ct. 1846 (internal quotation marks omitted). For this reason, “the [Supreme] Court has frequently reaffirmed that speech on public issues occupies the ‘highest rung of the h[ie]rarchy of First Amendment values,’ and is entitled to special protection.” Connick, 461 U.S. at 145, 103 S.Ct. 1684 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982)). Indeed, this is the very foundation upon which the Supreme Court decided Pickering: What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. 391 U.S. at 572-73, 88 S.Ct. 1731. Therefore, public officials have been on notice since the Court decided Pickering in 1968 that they may not sanction an employee for uttering protected speech when that speech neither impacts the employee’s official duties nor detracts from office efficiency. This is all the more true given the context in which Morgan spoke here: a political campaign, where “the First Amendment has its fullest and most urgent application.” Burson, 504 U.S. at 196, 112 S.Ct. 1846. To the extent that there remains any ambiguity, we hold that a public employee cannot be terminated for making protected statements during a campaign for public office where that speech has no demonstrated impact on the efficiency of office operations. Cf. Smith v. Gilchrist, 749 F.3d 302, 313 (4th Cir. 2014) (“In sum, a reasonable DA in Gilchrist’s position would have known that he could not fire an ADA running for public office for speaking publicly in his capacity as a candidate on matters of public concern.”). III. Conclusion For the above reasons, the district court correctly denied Robinson’s motion for summary judgment. . The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska. . The ultímate goal of this test is to balance the employee’s First Amendment rights with the employer’s corresponding right to control office affairs. See Pickering v. Bd. of Ed., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). To that end, we have stated that "under Pickering[-]Connick, this court's task involves an analysis of (1) the general authority and responsibilities of the employing government entity, (2) the nature and character of the specific employer-employee relationship, (3) the speech involved and (4) evidence tending to establish the speech’s impact on the efficient operation of the government entity.” Nord v. Walsh Cnty., 757 F.3d 734, 740 (8th Cir. 2014).

MEMORANDUM Coleen Clemente appeals the district court’s grant of summary judgment to Defendant Oregon Department of Corrections (“ODOC”) on her pay discrimination and retaliation claims under the Equal Pay Act (“EPA”) and Title VII. We review a district court’s grant of summary judgment de novo. Lukovsky v. City and County of San Francisco, 535 F.3d 1044 (9th Cir.2008). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1. The ODOC rebutted Clemente’s pri-ma facie case of pay discrimination by offering undisputed evidence that the only male hired at a higher starting salary than Clemente had experience as a correctional hearings officer and was earning more as a county correctional hearing officer than he would as a state correctional hearing officer if hired at the “Step 1” salary level. In order to survive summary judgment on her pay discrimination claim, Clemente must therefore offer sufficient evidence to create a triable issue of fact as to whether the ODOC’s proffered nondiseriminatory reasons for the disparity between her starting salary and that of her male coworker, Sam Nagy, are pretextual. Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1076 (9th Cir.1999); Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir.1986). Clemente first argues that Nagy’s experience is not superior to her own, and thus cannot justify the salary differential. However, it is undisputed that the ODOC preferred applicants with correctional hearing experience, and that Nagy had such experience and Clemente did not. Moreover, another male hired during the same period who, like Clemente, had significant experience as an attorney but no correctional experience, started at the same “Step 1” salary as Clemente. Clem-ente next argues that variations in the ODOC’s proffered explanations for the salary differential demonstrate pretext. See Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 569 (9th Cir.2004). The variations, however, were minor, and the explanations offered were never inconsistent; the district court thus properly considered this evidence insufficient to create a genuine issue of fact as to pretext. See id.; Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 661 (9th Cir.2002). Finally, although Clemente has offered some evidence that her ODOC supervisor later discriminated against her on the basis of gender, she fails to present sufficient evidence linking any discriminatory animus to her salary offer. The district court’s grant of summary judgment was therefore proper. 2. To establish a prima facie case of Title VII retaliation, a plaintiff must demonstrate that: (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action. Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir.2008). An employment action is adverse if it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotations omitted). Because none of the four actions that Clemente alleges were retaliatory would have dissuaded a reasonable worker from making a charge of discrimination, Clemente has failed to demonstrate that she suffered an adverse employment action, and summary judgment was thus appropriate on her retaliation claim. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. RAWLINSON, Circuit Judge, concurring: I concur in the result.

Defendant-appellee First Reliance Standard Life Insurance Co. (“First Reliance”) appeals from the July 12, 2000, amended and final judgment of the United States District Court for the Southern District of New York (Louis L. Stanton, J.) granting summary judgment and awarding attorney’s fees to plaintiff-appellant Anthony Sueco in this lawsuit under the Employee Retirement Income Security Act (“ERISA”). Between 1962 and 1988, Sueco worked for Staten Island University Hospital or its predecessors. In 1988, Sueco became totally disabled due to polio complications and stopped working. Sueco was covered by a long term disability (“LTD”) policy that First Reliance sold to the hospital. In a memorandum dated September 13, 1988, hospital executives agreed that once he left work, Sueco would be entitled to his full disability benefits plus an additional $17,000 payment as a consultant. In October 1988, Sueco applied for benefits under the LTD policy, and First Reliance granted the claim. After paying Sueco benefits for more than seven years, First Reliance in August 1996 began withholding Succo’s benefits. The insurance company claimed that it had overpaid Sueco $159,747 because it was entitled to offset as wages the money that the hospital continued to pay Sueco even after he became disabled. The insurance company relied on a clause in the LTD policy that permitted First Reliance to subtract from the benefit amount “Other Income Benefits,” which is defined to include “wages.” Plaintiff challenged this determination through administrative proceedings and then filed a lawsuit against First Reliance in federal court in March 1998. The parties cross-moved for summary judgment. In a Memorandum and Order dated March 6, 2000, the district court granted summary judgment to plaintiff. First Reliance now appeals. We review the district court’s grant of summary judgment de novo. See Kalwasinski v. Morse, 201 F.3d 103, 105 (2d Cir.1999). First Reliance contends principally that wages is a broad term that includes the $17,000 payments to Sueco pursuant to the September 1988 memo because the money reflected a continuation of the employer-employee relationship between Sue-co and the hospital. The district court held that Sueco was an independent contractor, interpreted the word wages in the LTD insurance policy and held that because Sueco was not an employee of the hospital, the money he received pursuant to the September 1988 memo was not wages and set-off was inappropriate. We affirm the district court largely for the reasons stated in its opinion. Generally, “unambiguous language in an ERISA plan must be interpreted and enforced in accordance with its plain meaning.” Aramony v. United Way Replacement Benefit Plan, 191 F.3d 140, 149 (2d Cir.1999). Contract language is ambiguous only when it is “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.” Id. A non-legal dictionary can supply the everyday, common meaning. See, e.g., United States v. Dauray, 215 F.3d 257, 260 (2d Cir.2000) (in non-ERISA context, court used Webster’s Third New International Dictionary for definitions to help find “ordinary, common-sense meaning of the words”). The district court held that Sueco was an independent contractor rather than an employee of the hospital based on the undisputed circumstances of his post-disability relationship with the hospital. The district court then looked to the definition of wage in Webster’s Third New International Dictionary to determine the nature of the payment that Sueco received. The court relied in part on the distinction among synonyms such as wage, salary and fee and their respective definitions to hold that wage “is a term associated with manual labor, done on an hourly, daily, or piecework basis.” Because Succo’s work did not fall within this description, Judge Stanton correctly held that the money Sueco received was not wages. The term wages is unambiguous, and because the payments were not wages, First Reliance was not entitled to the offset. First Reliance also argues that the district court abused its discretion in awarding $98,000 in attorney’s fees to plaintiffs counsel pursuant to 29 U.S.C. § 1132(g). Defendant argues that its investigation into the payments Sueco received from the hospital did not amount to bad faith, and it disputes the time and rates that plaintiffs attorney charged. There is no question that ERISA provides for the award of attorney’s fees. See Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987). The district court has discretion in deciding whether to award fees and generally considers five factors: “(1) the degree of the offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney’s fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of pension plan participants.” Id. Based on our review of the record, we see no abuse of discretion in the court’s award of attorney’s fees. We have considered all of defendant-appellant’s remaining arguments and find them to be without merit. Because we affirm the judgment below, we need not consider the arguments raised in plaintiffappellee’s cross-appeal, which we accordingly dismiss.

ON MOTION ORDER The court treats Basil N. Stephanatos’s letter submitting the docketing fee as a motion to reinstate his appeal. Upon consideration thereof, IT IS ORDERED THAT: (1) The motion is granted. The mandate is recalled, the court’s dismissal order is vacated, and the appeal is reinstated. (2) Stephanatos’s brief (form enclosed) is due within 30 days of the date of filing of this order.

OPINION OF THE COURT SCIRICA, Chief Judge. Wade Knight appeals a March 20, 2008, 2008 WL 763305, Order of the District Court, denying his request for relief from a criminal restitution obligation while incarcerated, but establishing a schedule of payments for Knight to make while in prison. Knight was convicted in September 1994 of Hobbs Act robbery and related offenses. He was sentenced to seventy-two months imprisonment, three years of supervised release, and was directed to pay $100,963.41 in restitution immediately. Knight did not appeal the conviction or sentence. Six years later, in September 2000, Knight was again convicted of Hobbs Act robbery and related crimes, sentenced to 235 months imprisonment, and ordered to pay $567,605.00 in restitution. Knight’s 2000 sentence relieved him of the obligation to pay restitution while incarcerated, but the earlier 1994 sentence did not provide such relief. Knight has paid only about $400 of the 1994 restitution, and the Inmate Financial Responsibility Program removes twenty-five dollars irom Knight’s prison account every three months toward its satisfaction. Knight filed several pro se motions seeking modification of the 1994 restitution order under .18 U.S.C. §§ 3613(b), 3664(k), and Federal Rule of Civil Procedure 60(b), including seeking complete relief from making payments while incarcerated. In response, the Government requested the District Court order a schedule of payments to clarify Knight’s obligations during his term of imprisonment. The court denied Knight’s motions, but it modified the restitution order to set a schedule of payments. The court ordered Knight to pay twenty-five dollars every three months if he either does not work in a UNICOR job or if he works in a UNICOR Grade 5 position, and it ordered him to pay not less than 50 percent of his monthly wages if he works in any other UNICOR job. We have jurisdiction over the final decision of the District Court under 28 U.S.C. § 1291, and we review restitution awards for abuse of discretion, United States v. Graham, 72 F.3d 352, 355 (3d Cir.1995). We will affirm. Section 3664(k) allows modification of a restitution order. Upon notification of a “material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay,” the statute permits the court to “adjust the payment schedule, or require immediate payment in full, as the interests of justice require.” 18 U.S.C. § 3664(k). In its March 20, 2008, Memorandum and Order, the District Court determined Knight had failed to show a material change in circumstances, finding neither Knight’s long prison term nor his limited prison earnings are changed circumstances justifying a reduction. His participation in the Inmate Financial Responsibility Program and penalties imposed under the program also do not establish changed circumstances justifying the relief sought. These conclusions are within the District Court’s sound discretion. The schedule of payments set by the court is permitted by § 3664(k). If Knight works in a UNICOR Grade 5 position or does not work in a UNICOR job, the schedule leaves unchanged the twenty-five dollar obligation every three months. This is consistent with the court’s conclusion that Knight’s circumstances are not materially changed. If Knight works in a UNI-COR job, the modification tailors Knight’s obligations to his economic circumstances by varying his payments with his earnings. These modifications also fall within the discretion § 3664(k) grants the District Court. Additionally, Knight seeks modification of the restitution order under 18 U.S.C. § 3613(b) and Federal Rule of Civil Procedure 60(b). Section 3613(b) provides for the termination of liability to pay a restitution award at the conclusion of a certain time period — “the later of 20 years from the entry of judgment or 20 years after the release from imprisonment, or upon the death of the individual fined.” 18 U.S.C. § 3613(b); id. § 3613(f). Knight does not contend this time period has passed, and accordingly there was no error in denying the motion under § 3613(b). The Federal Rules of Civil Procedure are not applicable to criminal cases, and the District Court’s denial of Knight’s motion under Rule 60(b) was proper. Accordingly, we will affirm the judgment of the District Court. . Knight also contends the obligation to pay certain medical costs under the Federal Prisoner Health Care Copayment Act of 2000, 18 U.S.C. § 4048, creates a material change in his economic circumstances. The statute, however, prohibits the prison from refusing medical services on account of inability to pay. Id. § 4048(0. Moreover, for prisoners who owe restitution, medical fees collected under the Act are paid as restitution. Id. § 4048(g)(1). Accordingly, the application of the statute does not affect Knight’s ability to make restitution payments.

ORDER AND JUDGMENT TIMOTHY M. TYMKOVICH, Circuit Judge. Richard A. Nichols, appearing pro se, appeals the district court’s dismissal of his § 1983 suit against Utah state officials Mark Baer, Colin Winchester, and Bryce Greer alleging that these defendants violated his constitutional rights. Taking jurisdiction under 28 U.S.C. § 1291, we affirm. Background The parties are familiar with the facts and procedural history, so we provide only the highlights. In 2002, after a three-day bench trial, Nichols was convicted of five felony counts of communication fraud and one count of racketeering relating to his conduct while employed at a used-car dealership. See Utah v. Nichols, 76 P.3d 1173, 1175 (Utah App.2003). He was sentenced to 365 days in jail and required to pay $42,400 in restitution. His probation con ditions included the timely payment of restitution. The Utah Court of Appeals affirmed Nichols’s convictions. Nichols, 76 P.3d at 1182. On December 10, 2003, the Utah Supreme Court denied certiorari. See Utah v. Nichols, 84 P.3d 239 (Utah 2003). Subsequently, Nichols failed to appear at a review hearing regarding his progress towards making restitution, and the state court issued an arrest warrant on December 23, 2003. On May 23, 2007, Nichols was arrested pursuant to the 2003 warrant, but he claimed to have medical problems and was not booked into jail. He was instead taken to a hospital and released. On May 29, 2007, Assistant Utah Attorney General Baer requested an order to show cause hearing in state court. The hearing was scheduled for June 4, 2007, but Nichols failed to appear, and instead filed a request for continuance. The court denied the request and issued a new arrest warrant. On June 6, 2007, Nichols filed a motion to dismiss the order. Throughout June 2007, Nichols filed numerous documents in state court, culminating in a Notice of Removal to federal district court. The federal district court, however, remanded the case back to state court. The federal district court informed Nichols that the case was closed and no further filings would be accepted; the court also indicated that if Nichols wished to bring a civil action he must initiate a new action by filing and serving a complaint. Then, on February 4, 2008, Nichols filed a verified complaint alleging a violation of his constitutional rights by his convictions in state court and by attempts to enforce the restitution order issued as part of his sentence. This verified complaint is at issue in this appeal. In it, Nichols cited the 14th Amendment and the Utah constitution as the bases for his claims. He sought a declaration that the defendants violated his constitutional rights by prosecuting him, and sought an order enjoining the defendants from additional legal proceedings relating to his state court criminal case. The district court dismissed the case, finding that the case was time-barred, and that the Rooker-Feldman and Younger abstention doctrines applied, as did Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The district court also found that the defendants would be entitled to absolute prosecutorial or qualified immunity. Analysis Although we construe Nichols’s pro se filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.1991), we affirm the dismissal of Nichols’s claims. While the vast majority of his claims are time-barred, his entire case in barred under the teaching of Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. 2364. In Heck, the Supreme Court explained that a § 1983 action that would impugn the validity of a plaintiffs underlying conviction cannot be maintained unless the conviction has been reversed on direct appeal or impaired by collateral proceedings. Id. The purpose behind Heck is “to prevent litigants from using a § 1983 action, with its more lenient pleading rules, to challenge their conviction or sentence without complying with the more stringent exhaustion requirements for habeas actions.” Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir.2007) (citation omitted). Heck was clear that “civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” 512 U.S. at 486, 114 S.Ct. 2364. Nichols’s complaint alleges civil rights violations based on his 2002 criminal convictions and the state’s attempts to enforce the restitution order issued as part of the sentence. Nichols’s complaint — including his allegations concerning the 2007 warrants for his arrest based on his failure to comply with the restitution order — challenges his underlying convictions and sentence. He contends that the original court order was illegal, and that he had no legal obligation to pay restitution. As we interpret his assertions, Nichols is in essence arguing that the trial court improperly ordered restitution. Based on this argument, he contends that officials have falsely arrested him and engaged in a scheme to defraud him in their efforts to ensure he pays this court-ordered restitution. This argument attacks Nichols’s underlying convictions and sentence. Heck mandates that when a litigant seeks damages in a § 1983 suit, the district court must consider whether a judgment in his favor would necessarily imply the invalidity of his conviction or sentence. 512 U.S. at 487, 114 S.Ct. 2364. Here, it would. If a court were to find that Nichols did not owe restitution — that the restitution order was improper — that finding would imply the invalidity of Nichols’s conviction or sentence. Thus, “the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. Nichols cannot make such a showing, as Utah courts have affirmed his convictions. See Nichols, 76 P.3d at 1182. The district court therefore properly dismissed Nichols’s complaint. Conclusion For the foregoing reasons, we AFFIRM the dismissal of Nichols’s verified complaint. We also DENY his requests to proceed in forma pauperis. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.

PER CURIAM. The United States Court of Appeals for Veterans Claims (Veterans Court) upheld the denial of an effective date earlier than December 23,1998, for Mr. Woodard’s service connected psychiatric disability. The Veterans Court further held that Mr. Woodard had been afforded sufficient due process when he was put on notice of his right to a hearing. Because Mr. Woodard received notice of his right to a hearing, this court affims-in-parb. To the extent Mr. Woodard seeks review of the effective date for his disability benefits, his appeal falls outside this court’s jurisdiction. This court therefore dismisses-in-part I Mr. Woodard served in active duty in the U.S. Air Force from June 1973 to January 1975. In October 1981, he submitted an application for veterans benefits for service-connected manic depressive order with an effective date of June 1980. The Veterans Affairs regional office (RO) denied his application in December of 1981. Mr. Woodard did not appeal that decision. In September 1993, Mr. Woodard filed another application for service connection for a psychiatric disability. The RO denied this claim in January 1994. Mr. Woodard appealed. In April 1997, the Board of Veterans’ Appeals (Board) upheld the RO’s denial. Mr. Woodard did not appeal that decision. In September 1997, Mr. Woodard requested a copy of his entire claims file. The Board found that this letter did not amount to a request to reopen his case. On December 23, 1998, Mr. Woodard sent a letter requesting that his claims be reopened based on new and material evidence. That evidence included a May 1998 medical opinion by Dr. Jay Patel suggesting a possible service connection for Mr. Woodard’s psychiatric disorder. The RO denied the request to reopen for lack of adequate evidence. Mr. Woodard filed a notice of disagreement. In April of 2002, the Board determined that Mr. Woodard had presented new and material evidence. On the basis of this evidence, the Board granted a service connection for Mr. Woodard’s psychiatric disorder. On remand, the RO assigned a disability rating of 70% effective December 23, 1998 — the date that the RO received the new and material evidence. In October 2002, Mr. Woodard’s counsel sent a letter to the RO challenging the December 23,1998 effective date. The RO nonetheless retained the December 1998 effective date. Mr. Woodard appealed to the Board. In May 2004, Mr. Woodard’s counsel sent a letter to the RO indicating that Mr. Woodard “has no further infor mation to submit in support of his claim for an earlier date; his claim is based on the records in the file.” On September 28, 2005, the Board again denied Mr. Woodard’s claim for an earlier effective date. Mr. Woodard appealed the Board’s decision to the Veterans Court. Before the Veterans Court, Mr. Woodard asserted a denial of due process because he did not receive a hearing before the Board. The Veterans Court found that the VA had apprised Mr. Woodard of his right to a hearing, but Mr. Woodard had not requested this additional procedure. Mr. Woodard timely appealed to this court. II This court has limited jurisdiction to review the decisions of the Veterans Court. See 38 U.S.C. § 7292. As proscribed by 38 U.S.C. § 7292(d)(2), except for constitutional issues, this court “may not review any challenge to a factual determination or any challenge to a law or regulation as applied to the facts of a particular case.” Buchanan v. Nicholson, 451 F.3d 1331, 1334 (Fed.Cir.2006). On appeal, Mr. Woodard argues that he was denied procedural due process because he was not allowed to address the Veterans Court. He further submits that the denial of benefits was a violation of his constitutional rights. In order to succeed on a claim for violation of due process rights, Mr. Woodard must identify a protected interest in life, liberty, or property. Procedural due process requires notice and an opportunity to be heard before deprivation of any protected interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Moreover, the mere filing of an application for benefits does not establish a protected property interest. Stearn v. Dep’t of Navy, 280 F.3d 1376, 1384 (Fed.Cir.2002). In this case, the Veterans Court found that the appellant was afforded his due process rights. Mr. Woodard was placed on notice of his right to a hearing before the Board. Mr. Woodard chose not to request a hearing. Thus, the Veterans Court afforded Mr. Woodard with adequate procedural due process. Mr. Woodard also challenges the effective date assigned by the RO and upheld by the Board and Veterans Court. In his reply brief, Mr. Woodard disputes the Board’s reliance on the evaluation of Dr. Patel over his treating physician. However, that challenge presents a factual dispute that falls outside this court’s jurisdiction. See 38 U.S.C. § 7292(d)(2). Because Mr. Woodard’s challenge with respect to the effective date is factual in nature, this court dismisses for lack of jurisdiction. For these reasons, this appeal is affirmed-in-part and dismissed-in-part. AFFIRMED-IN-PART AND DISMISSED-IN-PART COSTS Each party shall bear its own costs.

MEMORANDUM DECISION DETERMINING THAT UPSTREAM ENERGY SERVICES IS NOT ENTITLED TO A SECURITY INTEREST UNDER TEXAS LAW AS AGENT FOR CERTAIN TEXAS PRODUCERS ARTHUR J. GONZALEZ, Bankruptcy Judge. Before the Court is a motion by Upstream Energy Services (“UES”), as agent for certain Texas oil and gas producers (“Texas Producers”), for summary judgment (“Motion”) against Enron North America Corp. (“ENA”). For the reasons that follow, the Court denies the Motion and grants summary judgment in ENA’s favor. I. Jurisdiction The Court has subject matter jurisdiction under 28 U.S.C. §§ 1334(b) and 157(a) and the “Standing Order of Referral of Cases to Bankruptcy Judges” of the United States District Court, dated July 10, 1984 (Ward, Acting C.J.). This is a core proceeding as that term is defined by 28 U.S.C. § 157(b)(2). II. Background Except where it may be noted, the parties do not dispute the following material facts. In October 2001, ENA and UES executed a series of agreements (the “Spot Confirmations”) for the delivery of natural gas (the “November 2001 Gas”) to ENA during' November 2001. The Spot Confirmations were each subject to Em-on’s general terms and conditions (the “GT & C” and, together with the Spot Confirmations, the “ENA/UES Contracts”), which were specifically incorporated into the Spot Confirmations. Each of these transactions were completed through ENA’s internet-based online energy trading system known as Enron Online. UES executed the Spot Confirmations subject to the standard GT & C terms. In pertinent part, the GT & C provides that: Title to gas scheduled hereunder shall pass from Seller [UES] to Buyer [ENA] at the Delivery Point(s). Each party assumes all liability for and shall indemnify, defend and hold harmless the other party from any claims, including death of persons, rising from any act or incident occurring when title to gas is vested in the indemnifying party. (GT & C ¶ 6.) Pursuant to the ENA/UES Contracts, ENA received shipments of natural gas from UES in November 2001. ENA was unable to pay for those shipments in December 2001. ENA attributes its failure to pay UES to the commencement of ENA’s chapter 11 case. UES asserts, as agent for Texas Producers, that it is entitled to a secured claim against ENA’s chapter 11 estate by virtue of a Texas statute, which provides, in part: a security interest in favor of interest owners as secured parties, to secure the obligations of the first purchaser of oil and gas production, as debtor, to pay the purchase price. Tex. Bus. & Com. Code, Art. 9.343(a). UES asserts a secured claim in excess of $2,000,000.00, plus interest and attorneys fees. In entering into the ENA/UES Contracts, UES was operating as an agent for the Texas Producers. The ENA/UES Contracts do not indicate that UES was operating as agent for the Texas Producers or that the November 2001 Gas may be subject to a security interest or lien by virtue of Section 9.843. UES does not dispute that the ENA/UES Contracts were executed on behalf of undisclosed principals. UES supports its assertion that UES acted as agent for Texas Producers based upon certain contracts between UES and Texas Producers (“Producer Agreements”). The Producer Agreements are appended to the UES proof of claim. In March 2002, UES filed a motion under section 363 of the Bankruptcy Code for adequate protection of its asserted security interest in cash collateral. At the hearing on UES’s motion, the Court ordered ENA to provide UES with advance notice in the event that ENA’s cash on hand decreased to a level that jeopardized UES’s asserted claim. To date, no such notice has been provided to UES because ENA’s cash position has not decreased to a level that would jeopardize UES’s asserted claim. Thereafter, UES filed a second motion requesting, among other things, that the Court modify the automatic stay under section 362(d)(1) & (2). In response, ENA argued that UES’s asserted security interest had not yet been proven. In addition, ENA filed an objection to the UES proof of claim. At the hearing to consider the motion to modify the automatic stay, the Court set a discovery schedule and a deadline for dispositive motions. In turn, UES filed a motion for summary judgment requesting, among other things, that the Court enter an order allowing UES’s claim as a secured claim. The Court held hearings on UES’s motion for relief from the automatic stay and motion for summary judgment on February 21, 2003 and September 3, 2003. On September 3, 2003 the Court held an evidentiary hearing to address the applicability of certain “safe harbors” under Section 9.343. The safe harbor issues were addressed in the event that the Court ultimately concluded that UES was a first purchaser as that term is defined under Texas law (described below). The record was fully submitted for decision in October 2003. III. Discussion Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Bankr.P. 7056(c). The court’s responsibility is not to decide issues of fact, but rather to determine whether factual issues exist to be tried, LaFond v. General Physics Services Corp., 50 F.3d 165, 171 (2d Cir.1995), resolving all ambiguities in favor of the party against whom summary judgment is sought. See United States v. Rem, 38 F.3d 634, 643 (2d Cir.1994). Here, both parties agree that there are no genuine issues of material fact to forestall summary judgment on the issue of whether ENA is a “first purchaser” as that term is defined under Texas law. The resolution of this issue requires an examination of Section 9.343 of the Texas Business and Commerce Code. Section 9.343 provides, in pertinent part, that: This section provides a security interest in favor of interest owners, as secured parties, to secure the obligations of the first purchaser of oil and gas production, as debtor, to pay the purchase price. An authenticated record giving the interest owner a right under real property law operates as a security agreement created under this chapter. The act of the first purchaser in signing an agreement to purchase oil or gas production, in issuing a division order, or in making any other voluntary communication to the interest owner or any governmental agency recognizing the interest owner’s right operates as an authentication of a security agreement.... Tex. Bus. & Com. Code, Art. 9.343(a) (hereafter “Section 9.343(x)”). Section 9.343 is a non-uniform provision of the Uniform Commercial Code designed to improve the creditor position of interest owners in bankruptcy cases. See Cynthia C. Grinstead, Note, The Effect Of Texas U.C.C. Section 9.319 On Oil And Gas Secured Transactions, 63 Tex. L.Rev. 311, 311 (1984) (“Grinstead”) (analyzing substantively identical predecessor to Section 9.343); see also In re Tri-Union Dev. Corp., 253 B.R. 808, 811 (Bankr.S.D.Tex.2000) (characterizing statute as “non-standard”). An interest owner, in relevant part, is a person owning an entire or fractional interest of any kind or nature in oil or gas production at the time of severance. Section 9.343(r)(2). As originally promulgated under Section 9.319, the Texas statute was enacted in the wake of several bankruptcies by crude oil purchasers in which interest owners were treated as general unsecured creditors. See In re Tri-Union Dev. Corp., 253 B.R. at 811 (examining reasons for the enactment of section 9.319); Terry I. Cross & Jason T. Barnes, Oil And Gas Liens & Foreclosures — A Multi-State Perspective, 51 Okla. L.Rev. 175, 206 (1998) (“Cross & Barnes”) (naming the failed crude oil purchasers that precipitated the legislative response in Texas). In order to protect interest owners in the event of a bankruptcy filing by an oil or gas purchaser, Section 9.343 provides interest owners a security interest in oil and gas production as security for the payment of the purchase price. In re Tri-Union Dev. Corp., 253 B.R. at 811; see also In re Prudential Energy Co., 58 B.R. 857, 862 (Bankr.S.D.N.Y.1986) (“[Section [9.343] generally provides a security interest in favor of interest holders to secure the obligation of the first purchaser of oil and gas production to pay the purchase price.”). Section 9.343 mirrors the creation of a consensual contractual security interest by deeming that certain standard conveyancing and marketing instruments fulfill the documentation requirements imposed by article 9. See Cross & Barnes, 51 Okla. L.Rev. at 207 (“The Texas statute ... attempted to conjure a consensual, contractual security interest from the typical production marketing transaction by ‘deeming’ standard conveyancing and marketing instruments to fulfill the documentation requirements imposed by article 9 of the U.C.C.”); see also Terry I. Cross, Oil And Gas Product Liens-Statutory Security Interests For Producers And Royalty Owners Under The Statutes Of Kansas, New Mexico, Oklahoma, Texas And Wyoming, 50 Consumer Fin. L.Q. Rep. 418, 418-19 (1996) (“Cross”) (same). In general under Texas law, a security interest attaches when the debtor signs a security agreement with a description of the collateral, the secured party gives value, and the debtor acquires rights in the collateral. See Tex. Bus. & Com.Code ANN. § 9.203(b); see also Grinstead, 63 Tex. L.Rev. at 323-24 (analyzing attachment of security interests under Texas law). Section 9.343(a), in contrast, provides that “[a]n authenticated record giving the interest owner a right under real property law operates as a security agreement. ...” Under Section 9.343(a), the party providing the security interest (first purchaser) will not be a party to the authenticated record that serves as the security agreement but will be deemed to have authenticated and adopted the security agreement by “signing an agreement to purchase oil or gas production, in issuing a division order, or in making any other voluntary communication to the interest owner or any governmental agency recognizing the interest owner’s right.... ” See Section 9.343(a) (emphasis added); Cross, 50 Consumer Fin. L.Q. Rep. at 421 (citing former Section 9.319(a)). In the event that there is no writing which gives the interest holder a right under real estate law or the first purchaser does not make a voluntary communication to the interest owner acknowledging his or her rights to the oil and/or gas property or its proceeds, then an interest owner may still be entitled to a statutory Ken. See Section 9.343(d) ; 66 Tex. Jur.3d Secured Transactions § 140 (2003) (“[A] lien is created by Revised Article 9 that secures the rights of any person who would be entitled to a security interest under this provision, except for lack of any adoption of a security agreement by the first purchaser or a lack of possession or record as otherwise required for the security interest to be enforceable.”); Cross, 50 Consumer Fin. L.Q. Rep. at 421 (“[E]ven if there is no ‘signed writing’ evidencing the interest owner’s rights, or the signed writing is not ‘adopted’ by the first purchaser, interest owners still have recourse in that section [9.343(d) ] creates a special statutory lien for any interest owner who does not claim under a signed writing or whose ‘security agreement’ is not ‘adopted’ by the first purchaser.”); see also Grinstead, 63 Tex. L.Rev. at 311 n. 3 (noting same). The parties do not dispute that the Texas Producers are interest owners under Section 9.343. Further, no party disputes that there is a writing which gives the Texas Producers a right under real estate law such as by deed, oil and gas lease or mineral assignment to the November 2001 Gas. The parties do dispute whether ENA is a first purchaser as defined in Section 9.343(r)(3) and ultimately whether the Texas Producers have a secured claim under Section 9.343(a). Section 9.343(r)(3) defines, in pertinent part, “first purchaser” to mean “the first person that purchases oil and gas production from an operator or interest owner after the production is severed.... ” Absent ambiguity, Texas law provides that a statute should be interpreted in accordance with its ordinary and plain meaning. See Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994) (“If language in a statute is unambiguous, this court must seek the intent of the legislature as found in the plain and common meaning of the words and terms used.”). Where the statute does not define a particular term, courts are to apply such terms ordinary meaning. See Texas v. Public Utility Comm’n of Texas, 883 S.W.2d 190, 200 (Tex.1994) (“In construing a statute, if the legislature does not define a term, its ordinary meaning will be applied.”) (applying Black’s Law Dictionary definition). Neither party argues that Section 9.343(r) is ambiguous. In defining the term of art “first purchaser,” the Texas legislature did not define the meaning of the word purchase. The Court will apply the ordinary definition of the word purchase. In pertinent part, “purchase” is “[t]he act or an instance of buying.” Black’s Law Dictionary (7th ed.1999). ENA argues that the ENA/UES Contracts are not “first purchaser” transactions and therefore ENA is not a first purchaser as defined by Texas law. ENA asks the Court to consider the terms of the ENA/UES Contracts that document each of these transactions. According to ENA, the ENA/UES Contracts are clear and unambiguous in providing that UES had title to the November 2001 Gas and that title would transfer from UES to ENA and ENA’s specified delivery points. Because it is undisputed that UES is not a producer, ENA argues that UES’s representation that it held title indicates that UES had title from some third party. ENA contends that by agreeing to these unambiguous terms, UES should be precluded from arguing otherwise and for that reason the November 2001 Gas transactions were not first purchaser transactions under Texas law. There are fundamental problems with ENA’s interpretation of the statute. ENA’s assertion that title may have been vested in UES is not responsive to the question of whether ENA is a “first purchaser” under Texas law. Section 9.343(r)(3) does not define a first purchaser in terms of title. Rather, the statute, in relevant part, defines a first purchaser in terms of whether a person buys the oil or gas production from a statutorily protected party (e.g., an interest owner). ENA’s theory relies on the premise that if UES had title, then UES (or perhaps some other party) must have been the first buyer of the November 2001 Gas. The Producer Agreements do not support this assertion. The Producer Agreements do not embody any type of buying or selling of gas or oil production between UES and any of the Texas Producers. The Producer Agreements are agency agreements whereby UES agreed to market and sell the Texas Producers’ natural gas for the Texas Producers’ benefit. Although UES may have at one time possessed the November 2001 Gas in order to facilitate the transaction with ENA, there is no indication that UES bought or purchased the gas in order to qualify as a first purchaser. Accordingly, UES cannot be, as a matter of law, a first purchaser under Texas law because UES never bought the November 2001 Gas that was subject to the ENA/ UES Contracts. In contrast, the ENA/UES Contracts do indicate a sale of the November 2001 Gas. The ENA/UES Contracts clearly provide for the sale of gas between ENA and UES. Because the parties do not contend that there was any other transaction involving the November 2001 Gas, ENA is clearly the first entity to have actually purchased the November 2001 Gas. Thus, the fact that the ENA/UES Contracts indicate that UES may have been transferring title to ENA for the November 2001 Gas does not necessarily mean that ENA would not qualify as a first purchaser under Texas law. The Court, however, does not need to reach the issue because even assuming, arguendo, that ENA was the first purchaser of the November 2001 Gas, there is no indication that ENA assented to or adopted the security agreement as required under Texas law. Accordingly, the Texas Producers do not have secured claims under Section 9.348(a). The elements for the creation of a security interest under Section 9.343(a) are as follows: 1) a writing which gives the interest holder a right under real estate law (i.e. a deed, oil and gas lease, mineral assignment, etc.); and 2) the act of the first purchaser making a voluntary communication to the interest owner acknowledging his or her rights to the oil and/or gas property or its proceeds. In re Tri-Union Development Corp., 253 B.R. at 811. The parties do not dispute the first element, therefore, the Texas Producers do have rights under real estate law. As a matter of law, however, the ENA/UES Contracts fail to comply with the second element. Specifically, nothing in the ENA/UES Contracts can be interpreted or construed to indicate a voluntary communication from ENA acknowledging the Texas Producers rights under real estate law to the November 2001 Gas and/or its proceeds. The Spot Confirmations ENA delivered to UES only indicate, in pertinent part, the period of delivery, the tier of gas, the daily contract quantity, the delivery point(s) and the contract price. Likewise, the GT & C (as incorporated into the Spot Confirmations) contain no express terms recognizing an interest owners’ rights under real estate law to the November 2001 Gas or even that an interest owner may be involved in the transaction. Indeed, UES points out that the ENA/ UES Contracts contain no express warranties concerning title to the November 2001 Gas. Even though the ENA/UES Contracts did not expressly exclude or condition the transaction upon the Seller not being an interest owner or upon the November 2001 Gas being free of all liens and encumbrances, in the Court’s view, the risk that the standard terms of the Spot Confirmations and GT & C were insufficient to create a security interest fell squarely upon the Texas Producers. The Court therefore denies UES’s motion for summary judgment on the issue that the Texas Producers have security interests. The terms of the ENA/UES Contracts are insufficient to create security interest under Section 9.343(a). The Court will enter summary judgment in ENA’s favor sua sponte without requiring ENA to file a formal motion. Although the practice of granting summary judgment sua sponte without notice is generally discouraged in this circuit, a court may enter summary judgment where the moving party would not be procedurally prejudiced. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 139 (2d Cir.2000). The inquiry concerning procedural prejudice examines whether the moving party would be surprised by the court’s action and whether that surprise results in the party failing to present evidence in supports of its position. See Bridgeway Corp. v. Citibank, 201 F.3d at 139. The likelihood of procedural prejudice is diminished if the court grants summary judgment on issues identical to the issues raised by the moving party. See id. at 140. Notwithstanding the basis for granting summary judgement, however, “where it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court, a sua sponte grant of summary judgment against that party may be appropriate if those materials show that no material dispute of fact exists and that the other party is entitled to judgement as a matter of law.” Id. (emphasis in original) (citing Ramsey v. Coughlin, 94 F.3d 71, 73-4 (2d Cir.1996)). Here, summary judgment is appropriate because UES is not procedurally prejudiced. It appears that all of the evidentiary materials that UES might submit in response to a motion for summary judgment are before the court and that those materials show that no material dispute of fact exists and that ENA is entitled to judgement as a matter of law. Therefore, the Court will enter summary judgment in ENA’s favor sua sponte. IV. Conclusion For the foregoing reasons, the Court denies the Motion and summary judgment will be entered in ENA’s favor. ENA should settle an order on five days’ notice. . The parties agree that Texas law applies here. See generally Butner v. United States, 440 U.S. 48. 99 S.Ct. 914. 59 L.Ed.2d 136 (1979) ("Property interests are created and defined by state law.”) . Section 9.343(d) provides: This section creates a lien that secures the payment of all taxes that are or should be withheld or paid by the first purchaser and a lien that secures the rights of any person who would be entitled to a security interest under Subsection (a) except for lack of any adoption of a security agreement by the first purchaser or a lack of possession or record required by Section 9.203 for the security interest to be enforceable. . Although ENA has suggested that UES misrepresented the transaction and that UES should be precluded from arguing that the ENA/UES Contracts are first purchaser transactions, the Court does not reach the issue of what, if any, equitable considerations might warrant deeming UES the first purchaser under Texas law. . Because of the Court’s ultimate conclusion that the Texas Producers are not entitled to a security interest under Section 9.343(a), the Court does not reach the issue of whether ENA can qualify as a first purchaser under the facts presented here. . In contrast, Section 9.343(r)(3) does not require a buyer of oil and gas production to acknowledge anything in particular in order to qualify as a first purchaser. . The Court expresses no opinion whether UES is entitled to a statutory lien under Section 9.343(d), and if so, whether such lien may be avoidable under section 545 of the Bankruptcy Code. Moreover, without reaching the issue, it appears that a statutory lien would not continue in the proceeds of any sale by the first purchaser. See Section 9.343(e) ("The security interests and liens created by this section have priority over any purchaser who is not a buyer in the ordinary course of the first purchaser’s business, but are cut off by the sale to a buyer from (he first purchaser who is in the ordinary course of the first purchaser’s business under Section 9.320(a). But in either case, whether or not the buyer from the first purchaser is in ordinary course, a security interest will continue in the proceeds of the sale by the first purchaser as provided in Subsection [9.343](c).”). A plain reading of the statute would suggest that only a security interest survives a sale of the oil and gas production and not a statutory lien. Furthermore, even if a claimant fell within the auspices of the statute, some commentators have questioned whether the protections created under Section 9.343 would qualify as a statutory lien under section 101(53) of the Bankruptcy Code. See, e.g., Cross & Barnes, 51 Okla. L.Rev. at 207. (“Because the section [9.343] liens in fact arise through the operation of the statute rather than as a consequence of consensual agreement, there is some risk that the various statutory provisions that distinguish between statutory liens and consensual liens could still be construed to apply to the section [9.343] liens as if they were statutory liens.... In bankruptcy, the resolution of whether the section [9.343] liens [fall within the definition of statutory lien under the Bankruptcy Code] will determine whether the drafters succeeded in legislating a nonstatutory lien.’’).

Concurrence by Judge Friedland OPINION M. SMITH, Circuit Judge: JPMCC 2007-C1 Grasslawn Lodging, LLC (Lender) objected to the Chapter 11 plan of five related entities (collectively, Debtors) who previously acquired two hotels. Despite these objections, the bankruptcy court approved a “cramdown” reorganization plan. The Lender appealed to the district court, but the district court concluded that the Lender’s appeal was equitably moot. In 2015, we reversed the district court’s equitable mootness determination, and remanded to the district court for consideration of the Lender’s appeal on the merits. See In re Transwest Resort Props., Inc., 801 F.3d 1161 (9th Cir. 2015) (Transwest I). On remand, the district court evaluated the merits of the Lender’s appeal, and concluded that (1) an election under 11 U.S.C. § 1111(b)(2) does not require that a Chapter 11 plan contain a due-on-sale clause; and (2) 11 U.S.C. § 1129(a)(10) applies on a “per plan,” not a “per debtor,” basis. This appeal is limited to the construction of 11 U.S.C. § 1111(b)(2) and 11 U.S.C. § 1129(a)(10). Based on the plain language of both statutory sections, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2007, the Debtors acquired the Wes-tih Hilton Head Resort and Spa and the Westin La Paloma Resort and Country Club (collectively, the Resorts). The Debtors were composed of: Transwest Hilton Head Property, LLC, and Transwest Tucson Property, LLC (Operating Debtors); Transwest Hilton Head II, LLC, and Transwest Tucson II, LLC (Mezzanine Debtors); and Transwest Resort Properties, Inc. (Holding Company Debtor). The Holding Company Debtor was the sole owner of the Mezzanine Debtors. The Mezzanine Debtors were, in turn, the sole owners of the two Operating Debtors, who owned and operated the Resorts. The acquisitions were financed by (1) a $209 million mortgage loan to the Operating Debtors from the Lender, secured by the Resorts (the Operating' Loan); and (2) a $21.5 million loan from Ashford Hospitality Finance, LP (Mezzanine Lender), secured by the Mezzanine Debtors’ interests in the Operating Debtors (the Mezzanine Loan). In 2010, the Debtors filed for Chapter Ü bankruptcy. The five cases involved were jointly administered, but not substantively consolidated. The Lender filed a claim in the bankruptcy proceeding for $298 million, based on the Operating Loan. The Mezzanine Lender filed a $39 million claim based on the Mezzanine Loan. The Lender subsequently acquired this claim from the Mezzanine Lender. ’ The Debtors filed a joint Chapter 11 reorganization plan (the Plan), whereby third-party investor Southwest Value Partners would acquire the Operating Debtors for $30 million, thereby extinguishing the Mezzanine Debtors’ ownership interest in the Operating Debtors. ■ The Lender, whose cláim was underse-cured, elected to have' its entire claim treated as secured pursuant to 11 U.S.C. § 1111(b)(2). The Plan restructured the Lender’s loan to a term of 21 years, and required monthly interest payments, and a balloon principal payment at the end of the term. The Plan included a due-on-sale clause requiring the Debtors to pay the Lender the outstanding balance of the restructured loan in the event the • Resorts were sold. However, the due-on-sale clause did not apply if the Debtors were to sell the Resorts between Plan years five and fifteen. The Lender .voted against the Plan. Several other impaired classes voted to approve the Plan. The Lender objected to two aspects of the Plan. - First, the Lender objected to the ten-year exception in the due-on-sale clause. It contended that the exception in the due-on-sale clause would allow the Debtors to partially negate the benefit of the Lender’s section .1111(b)(2) election. Second, the Lender asserted that section 1129(a)(10), which requires that at least one impaired class accept the Plan, applies on a “per debtor,” not a “per plan,” basis. Because the Lender is the only class member for the Mezzanine Debtors and did not vote to approve the Plan, the Lender argued that the Plan did not satisfy section 1129(a)(10). Despite the Lender’s objections, the bankruptcy court approved the Plan. Following an unsuccessful emergency motion for a stay pending appeal, the district court dismissed the Lender’s appeal as equitably moot. In 2015, we reversed this dismissal and remanded to the district court with instructions to evaluate the Lender’s objections on the merits. Tran-swest I, 801 F..3d at 1173. On remand, the district court ruled that an election under section 1111(b)(2) does not require that a due-on-sale clause be included in.the Plan, and that section 1129(a)(10) applies on a “per plan” basis. The district court thereby affirmed the bankruptcy court’s confirmation of thje Plan. The Lender timely.appealed to our court. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction over this appeal pursuant to 28 U.S.C. § 158(d)(1). Because the Lender appeals from the district court’s conclusions of law and interpretations of the Bankruptcy Code, we review de novo. See Smith v. Arthur Andersen LLP, 421 F.3d 989, 1006 (9th Cir. 2005); In re Barakat, 99 F.3d 1520, 1523 (9th Cir. 1996). ANALYSIS I. 11 U.S.C. § 1111(b) The Lender first challenges the district court’s conclusion that a due-on-sale clause need not be included in the Plan when an undersecured creditor elects to have its claim treated as secured pursuant to section 1111(b)(2). This section must be read in context. Pursuant to Section 506(a), an undersecured creditor’s claim is bifurcated into: (1) “a secured claim equal to the value of the collateral” and (2) “an unsecured claim equal-to the remainder of the obligation owing to the creditor as of the petition date.” In re Weinstein, 227 B.R. 284, 291-92 (9th Cir. B.A.P. 1998). The undersecured creditor may- elect to have its entire claim treated as secured pursuant to section 1111(b)(2). Id. at 293; see 11 U.S.C. § 1111(b)(2). The effect of such an election is that the undersecured creditor obtains certain benefits reserved for secured, but not unsecured, creditors. See, e.g„ 11 U.S.C. § 1129(b)(2)(A)-(B) (distinguishing between the “fair and equitable” requirements for secured and unsecured claims). The Lender contends that the absence of a due-on-sale clause covering sales of the Resorts occurring between years five- and fifteen of the loan term partially diminishes the benefits of its section 1111(b)(2) election, thereby violating section 1111(b)(2). “The starting point for our interpretation of a statute is always its language.” United States v. Fei Ye, 436 F.3d 1117, 1120 (9th Cir. 2006) (quoting Cmty. for .Creative, Non-Violence v. Reid, 490 U.S. 730, 739, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)), We must consider “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); see also King v. Burnell, — U.S. —, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (“[Wlhen deciding whether the language is plain, we must read the words ‘in, then-context and with a view to their place in the overall statutory scheme.’ ” (citation omitted)). Only where the statqtory text is ambiguous do we “look to other interpretive tools, including the legislative history,” in order to determine the statute’s mean--ing. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 567, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). Section 1111(b) provides, in pertinent part: (1)(A) A claim secured by a -lien on property of the estate shall be allowed or disallowed under section 502 of this title the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse, unless— (i) the class of which such claim is a party elects, by at least two-thirds in amount and more than half in number of allowed claims of such class, application of paragraph (2) of this subsection; (2) If such an election is made, then notwithstanding section 506(a) of this title, such claim is a secured claim to the extent that such claim is allowed. 11 U.S.C. § 1111(b). The Lender’s position that section 1111(b)(2) requires a due-on-sale clause to be included in the Plan finds no support in the text of the statute, nor does the language of the statute implicitly require the inclusion of such a clause. The broader statutory context of Chapter 11 further undermines the Lender’s position. Section 1123 describes the required contents of a Chapter 11 plan. See 11 U.S.C. § 1123. Nothing in section 1123 requires the inclusion of a due-on-sale clause in a plan, let alone following a section 1111(b)(2) election. Instead, section 1123(b)(5) indicates that a plan may “modify the rights of holders of secured claims.” This would include the ability to determine whether to include a due-on-sale clause in the documentation of any secured creditors’ claims. Further, section 1129(b)(2)(A)(i)(I) requires that in order for a plan to be fair and equitable, the holder of a claim must retain the lien securing that claim even when “the property subject to such liens is ... transferred to another entity.” Thus, the statute expressly allows a debtor to sell the collateral to another entity so long as the creditor retains the lien securing its claim, yet the statute does not mention any due-on-sale requirement, further undermining the Lender’s position that a due-on-sale clause must be included in the Plan. Our conclusion is consistent with the reasoning of the Seventh Circuit in In re Airadigm Commc’ns, Inc., 519 F.3d 640 (7th Cir. 2008). There, FCC regulations required that, under certain circumstances, a due-on-sale clause be included in the documentation when a licensee transfers a license to a non-qualifying entity. Id. at 653. A licensee filed a reorganization plan, which a bankruptcy court approved even though it did not contain a due-on-sale clause. Id. at 646. The FCC objected to the plan because it “did not keep the FCC’s due-on-sale rights.” Id. at 646, 653. While the FCC did not make an election under section 1111(b), the Seventh Circuit concluded that a due-on-sale provision was not a “lien that the bankruptcy court had to ‘retain’ in order to approve the plan pursuant to § 1129.” Id. at 654. Instead, the provision is merely a mechanism “regarding the terms of payment for the debt.” Id. at 655. The same reasoning applies in this case—a due-on-sale clause is a mechanism regarding the terms of payment of a debt, not a substantive right of creditors making an election pursuant to section 1111(b)(2). Neither the plain language of section 1111(b)(2) nor the broader context of Chapter 11 requires that a plan involving an electing creditor contain a due-on-sale clause. We need not address the Lender’s remaining arguments because the statutory text renders the Lender’s other arguments meritless. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009). We therefore hold that section 1111(b)(2) does not require that a plan involving an electing creditor contain a due-on-sale clause. II. 11 U.S.C. § 1129(a)(10) The Lender next challenges the district court’s conclusion that section 1129(a)(10) applies on a “per plan” basis. Generally, a bankruptcy court may confirm a plan only if each class of impaired creditors consents. 11 U.S.C. § 1129(a)(8). However, in certain instances, a plan proponent can confirm a “cramdown” Chapter 11 plan' over the objections of one or more of the creditors. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 641-42, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012); see 11 U.S.C. § 1129(b). Section 1129 lists the requirements for approval of a cramdown plan, and “contains a number of safeguards for secured creditors who could be negatively impacted by a debtor’s reorganization plan.” In re The Vill. at Lakeridge, LLC, 814 F.3d 993, 1000 (9th Cir. 2016). One such safeguard is in section 1129(a)(10), which requires that at least one impaired creditor has accepted the plan. See 11 U.S.C. § 1129(a)(10). According to the Lender, a complication arises when there is a jointly administered plan consisting of multiple debtors. The Lender argues that in such a situation, a “per debtor” approach that requires plan approval from at least one impaired creditor for each debtor involved in the plan is necessary. In contrast, the Debtors argue that the plain language of the statute contemplates a “per plan” approach in which a plan only requires approval from one impaired creditor for any debtor involved. As a matter of first impression among the circuit courts, we hold that section 1129(a)(10) applies on a “per plan” basis. As with section 1111(b)(2), we begin our analysis of section 1129(a)(10) with its plain language. See In re HP Inkjet Printer Litig., 716 F.3d 1173, 1180 (9th Cir. 2013). Section 1129(a) provides that a court may confirm a plan only if a number of requirements are met. Section 1129(a)(10) details one such requirement: “If a class of claims is impaired under the plan, at least one class of claims that is impaired under the plan has accepted the plan, determined without including any acceptance of the plan by any insider.” 11 U.S.C. § 1129(a)(10). The plain language of the statute supports the “per plan” approach. Section 1129(a)(10) requires that one impaired class “under the plan” approve “the plan.” It makes no distinction concerning or reference to the creditors of different debtors under “the plan,” nor does it distinguish between single-debtor and multi-debtor plans. Under its plain language, once a single impaired class accepts a plan, section 1129(a)(10) is satisfied as to the entire plan. Obviously, Congress could have required plan approval from an impaired class for each debtor involved in a plan, but it did not do so, It is not our role to modify the plain language of a statute by interpretation. See King, 135 S.Ct. at 2489 (“If the statutory language is plain, we must enforce it according to its terms.”). The statutory context of section 1129(a)(10) does not aid the Lender’s argument. The Lender, citing the only court that has applied the “per debtor” approach, argues that section 102(7) requires that section 1129(a)(10) apply on a “per debtor” basis. See In re Tribune Co., 464 B.R. 126, 182-83 (Bankr. D. Del. 2011). We disagree. Section 102(7), a rule of statutory construction, provides that “the singular includes the plural.” 11 U.S.C. § 102(7). This rule of construction does not change our analysis. Section 102(7) effectively amends section 1129(a)(10) to read: “at least one class of claims that is impaired. under the plans has accepted the plans.” The “per plan” approach is still consistent with this reading. Therefore, section 102(7) does not undermine our view that section 1129(a)(10) applies on a “per plan” basis.' Nor do other subsections in section 1129(a) indicate that section 1129(a)(10) must apply on a “per debtor” basis. The court .in Tribune concluded that section 1129(a)(10) must apply on a “per debtor” basis because other subsections apply on a “per debtor” basis. 464 B.R. at 182-83. For example, section 1129(a)(3) requires that “[t]he plan has been proposed in good faith.” 11 U.S.C. § 1129(a)(3). This argument fails for two' reasons. First, as with subsection ten, nothing in the plain text of subsection three indicates that it applies on a “per debtor” basis. See BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (holding a court presumes that Congress says in the statute what it means). Second, while a statute must be “read as a whole,” King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991), the Lender provides no support for its position that all subsections must uniformly apply on a “per debtor” basis, especially when the Bankruptcy Code phrases each subsection differently. Instead, the Lender’s argument is essentially a regurgitation of a summary of the Tribune decision unsupported by argument or other case law. These deficiencies defeat the Lender’s argument that section 1129(a)(10) unambiguously applies on a “per debtor” basis based on other subsections in section 1129(a). The Lender also argues that while the Plan states it is a jointly administered plan, it was, in effect, a substantive consolidation. The Lender’s argument faces two hurdles. First, the Lender never objected to the Plan on this basis. As the Lender’s counsel concedes, the only issue before us is the construction of sections 1111(b)(2) and 1129(a)(10). These are the objections the Lender raised before the bankruptcy court, the objections it appealed to the district court, and the issues we previously identified. See Transwest I, 801 F.3d at 1166-67. Therefore, whether the parties and the bankruptcy court dealt with the Plan approval as if it were a substantive consolidation is not properly before us on appeal. Second, to the extent the Lender argues that the “per plan” approach would result in a parade of horribles for mezzanine lenders, such hypothetical concerns are policy considerations best left for Congress to resolve. See Henson v. Santander Consumer USA Inc., — U.S. —, 137 S.Ct. 1718, 1726, 198 L.Ed.2d 177 (2017) (stating that “the proper role of the judiciary” in statutozy interpretation is “to apply, not amend, the work of the People’s representatives”). Because the plain language of section 1129(a)(10) indicates that Congress intended a “per plan” approach, we need not to look to the statute’s legislative history or address the Lender’s remaining policy concerns. See Tahara v. Matson Terminals, Inc., 511 F.3d 950, 953 (9th Cir. 2007) (citing SEC v. McCarthy, 322 F.3d 650, 655 (9th Cir. 2003)). We therefore hold that section 1129(a)(10) applies on a “per plan” basis. CONCLUSION For the foregoing reasons, we affirm the district court’s conclusions that 11 U.S.C. § 1111(b) does not require the inclusion of a due-on-sale clause in the Plan, and that 11 U.S.C. § 1129(a)(10) applies on a “per plan” basis. AFFIRMED. . Unless otherwise noted, subsequent statutory references are to Title 11 of the United States Code. . The Lender never objected to or argued that the bankruptcy court was treating the case as if substantive consolidation had occurred. . The Lender raised other objections to the Plan, but the parties previously resolved those objections. . This holding does not imply that "due-on-sale” protection is irrelevant to whether a plan is "fair and equitable” under section 1129(b). Although the Lender here waived any argument that the Plan was not "fair and equitable,” the availability of due-on-sale protection may inform whether a plan is confirm-able in other reorganizations. Cf. In re Monarch Beach Venture, Ltd., 166 B.R. 428, 436 (Bankr. C.D. Cal. 1993) ("[T]o be fair and equitable, a plan of reorganization cannot unfairly shift the risk of a plan’s failure to the creditor.”). FRIEDLAND, Circuit Judge, concurring: I agree that 11 U.S.C. § 1111(b)(2) does not require that a bankruptcy plan include complete due-on-sale protection for the creditor. And although I think the statutory language is somewhat ambiguous, I further agree that the better reading of 11 U.S.C. § 1129(a)(10) is that it applies on a “per plan,” rather than “per debtor,” basis. I write separately, however, to acknowledge the argument advanced by JPMCC 2007-C1 Grasslawn Lodging, LLC (“Lender”) that it was unfairly deprived of the ability to object effectively to reorganization of the Mezzanine Debtors, despite being their only creditor. While Lender’s concern is not unfounded, I believe any unfairness resulted not from the interpretation of § 1129 that Lender challenged in this appeal, but instead from the fact that this particular reorganization treated the five Debtor entities as if they had been substantively consolidated—something Lender did not object to in the bankruptcy court. Joint administration and substantive consolidation are both mechanisms to facilitate multi-debtor reorganizations. Joint administration is a tool of convenience; “[tjhere is no merging of assets and liabilities of the debtors,” and “[creditors of each debtor continue to look to that debtor for payment of their claims.” In re Parkway Calabasas Ltd., 89 B.R. 832, 836 (Bankr. C.D. Cal. 1988). By contrast, substantive consolidation replaces “two or more debtors, each with its own estate and body of creditors,” with “a single debtor, a single estate with a common fund of assets, and a single body of creditors.” Id. at 836-37; see also In re Bonham, 229 F.3d 750, 764 (9th Cir. 2000). Accordingly, “consolidation depends on substantive considerations and affects the substantive rights of the creditors of the different estates.” In re Bonham, 229 F,3d at 762 (quoting Fed. R. Bankr. P. 1015 advisory committee’s note). Here, the • cases of the five Debtors were jointly administered pursuant to Federal Rule of Bankruptcy Procedure 1015, but neither party moved for substantive consolidation. Nevertheless, I think Lender is correct that the- distribution scheme adopted by the Plan involved a degree of substantive consolidation. Debtors’ respective bankruptcy estates may technically have remained separate, but the Plan treated Debtors as a single entity.- Specifically, by subordinating the Mezzanine Loan claims to the Operating Loan claims, the creditors for different Debtors all drew from the same pool of assets. And had the Mezzanine Lender voted to accept the Plan, its claims would have been paid from the assets of the reorganized Operating Debtors, demonstrating that the Plan did not differentiate based on the recipient of a particular creditor’s loan. As the bankruptcy court- itself explained, this arrangement treated the Mezzanine Lender’s claims as if the cases had been substantively consolidated. In many cases involving a reorganization plan'that effectively merges’the assets and liabilities of multiple debtors, “the constituents in the chapter 11 proceeding either reach this result by consensus, or, no objection is made by any creditor or party in interest.” In re Tribune, 464 B.R. 126, 183 (Bankr. D. Del. 2011). The plan can thus proceed under- a “de facto” substantive consolidation, absent a formal assessment of whether substantive consolidation is appropriate. Here, however, two classes of creditors objected to the Plan: (1) the class consisting of Lender’s .secured claim, which arose from the mortgage loan secured by the resorts, and (2) the class consisting of the secured and unsecured mezzanine claims, which arose from the mezzanine loan originally provided by Ash-ford Hospitality Finance, LP, and subsequently purchased by Lender. Because there was no consensus over these bankruptcy proceedings, there should have been an evaluation of whether substantive consolidation was appropriate before it (effectively) occurred. To determine whether substantive consolidation is appropriate, a bankruptcy court evaluates “(i) whether creditors dealt with the entities as a single economic unit and did not rely on their separate identity in extending credit; or (ii) whether the affairs of the debtors are so entangled that consolidation will benefit all creditors.” FDIC v. Colonial Realty Co., 966 F.2d 57, 61 (2d Cir. 1992) (quoting In re Augie/Restivo Baking Co., Ltd., 860 F.2d 515, 518 (2d Cir. 1988)) (internal quotation marks omitted); see also In re Bonham, 229 F.3d at 766 (adopting the Second Circuit’s test for substantive consolidation). The “sole aim” of this analysis is “fairness to all creditors.” In re Bonham, 229 F.3d at 765 (quoting Colonial Realty, 966 F.2d at 61). Assessing whether substantive consolidation was appropriate here would thus have required the bankruptcy court to consider whether consolidation was fair to Lender, among other creditors. According to Lender, its treatment under the Plan was unfair, and the root of the potential unfairness is that § 1129(a)(10) was interpreted as applying on a “per plan,” rather than a “per debt- or,” basis. Section 1129(a)(10) requires that at least one impaired class of creditors accept a plan in order for it to be confirmed. Under the “per plan” approach, this provision was satisfied here as soon as any one impaired class from any of the five Debtors accepted the Plan. But if this provision had been applied on a “per debt- or” basis, then one impaired class for each of the five Debtors would have had to accept the Plan. Because Lender was the only creditor for the Mezzanine Debtors following its purchase of the mezzanine claims, under the “per debtor” interpretation of § 1129(a)(10) Lender’s objection would have prevented the Plan from being confirmed. Lender argues that use of the “per plan” approach had the same effect as substantive consolidation because one impaired class of creditors for one Debtor was able to bind all of the involved creditors, nullifying the leverage Lender would have otherwise had in the confirmation process under the “per debtor” approach. Lender thus characterizes the “per plan” approach as “de facto” substantive consolidation. But this characterization is correct only to the extent that the “per plan” approach allowed for confirmation of a Plan that effectively merged the Debtor entities. The root of Lender’s objection is that the reorganization here was governed by a single plan that did not delineate among separate debtor-creditor relationships. Had the Debtors—and thus their reorganization plans—remained separate, there would have been no need to invoke the “per debtor” approach to preserve the effectiveness of any objection Lender had. Although Lender’s “per debtor” interpretation would have allowed Lender to object and thereby block confirmation of the Plan, the problem in my view is not the interpretation of the statute, but rather that the Plan effectively merged the Debtors without an assessment of whether consolidation was appropriate. Such an assessment would have required the bankruptcy court to evaluate whether it was fair to proceed on a consolidated basis. In re Bonham, 229 F.3d at 765. Had the court taken this step of “balanc[ing] the benefits that substantive consolidation would bring against the harms that it would cause,” id., it might have alleviated concerns about whether consolidation of the proceedings was in fact unfair. Given that Lender asserts now that de facto substantive consolidation was inappropriate, it is unclear why Lender did not challenge the Plan on that basis prior to confirmation. It is possible that, if there had been an objection raising the question, Debtors’, single-purpose entity structure would have defeated any request for substantive consolidation. The original loan documents required maintaining the Operating Debtors and the Mezzanine Debtors as separate entities. As a result, the bankruptcy court might have concluded that creditors treated Debtors as separate entities, and further that the special-purpose entity structure prevented their assets from becoming entangled—thus rendering substantive consolidation unavailable under this circuit’s test. See id. at 765-66. If so, the court could have required altering the distribution scheme to maintain entity separateness, thus preserving Lender’s leverage over the Plan. If, however, the bankruptcy court had instead determined that this case was a candidate for substantive consolidation, then an appeal of that determination would have involved an evaluation of this particular Plan on its facts and resulting equities—rather than a challenge to the interpretation of a statute that governs all Chapter 11 reorganizations. But because Lender focused solely on the statute, the substantive consolidation objection is now waived. In sum, I am not unsympathetic to Lender’s argument that it was deprived of an opportunity to object to confirmation of the Plan, and I have concerns that entangling various estates in a complex, multi-debtor reorganization diminishes the protections afforded to creditors by the Bankruptcy Code. But I do not believe bolstering these protections requires the blanket statutory solution that Lender proposes. Rather, if a creditor believes that a reorganization improperly intermingles different estates, the creditor can and should object that the plan—rather than the requirements for confirming the plan—results in de facto substantive consolidation. Such an approach would allow this issue to be assessed on a case-by-case basis, which would be appropriate given the fact-intensive nature of the substantive consolidation inquiry. See In re Bonham, 229 F.3d at 765 (“[O]nly through a searching review of the record, on a case-by-case basis, can a court ensure that substantive consolidation effects its sole aim: fairness to all creditors.” (quoting Colonial Realty, 966 F.2d at 61)).

ORDER AND JUDGMENT BOBBY R. BALDOCK, Circuit Judge. Christopher Chase Spencer appeals from the district court’s order granting summary judgment in favor of the City of Mustang, Oklahoma; various City officials and officers (the City defendants); and a local private resident on his federal claim under 42 U.S.C. § 1983 and dismissing without prejudice his state-law claims. We affirm. BACKGROUND Factual Basis On May 17, 2004, seventeen-year-old Chase Spencer and a friend spent time together in Edmond, Oklahoma. Their activities included drinking beer. Mr. Spencer then drove to Mustang, where the friend lived. While Mr. Spencer was driving his truck around Mustang, the friend threw two beer bottles onto the lawn of defendant Terry Dwyane Taylor. In his car, Mr. Taylor chased Mr. Spencer’s truck, catching up with him outside the friend’s home. Mr. Spencer dropped off the friend and, alone in the truck, he attempted to elude Mr. Taylor. Notwithstanding Mr. Spencer’s driving efforts, Mr. Taylor passed the truck and forced it off the road. He broke the truck window, grabbed Mr. Spencer, put him into the car, and sped back to his house. There, Mr. Taylor placed Mr. Spencer under a self-described “citizen’s arrest.” In the process, he handcuffed him, knocked him to the ground, punched him in the head, dragged him across a driveway, and planted a foot on his neck. On Mr. Taylor’s instructions, the Mustang police were called. Defendants Da-cus and Dickerson, who were familiar with Mr. Taylor from previous domestic-disturbance incidents, arrived at Mr. Taylor’s front lawn. After removing Mr. Taylor’s handcuffs from Mr. Spencer’s wrists, an officer walked Mr. Spencer toward his patrol car. Noticing the smell of alcohol and observing that Mr. Spencer was unsteady on his feet, with glassy eyes, Officer Dacus administered a roadside sobriety test. He determined that Mr. Spencer’s responses indicated intoxication. Officer Dacus handcuffed Mr. Spencer and placed him in a patrol vehicle. Attempting to sort out the situation, the officers interviewed Mr. Taylor, who contended that he had placed Mr. Spencer under citizen’s arrest for Driving Under the Influence (DUI). Mr. Spencer, however, declined to provide any information other than his name. Officer Dacus took Mr. Spencer into custody, based on a citizen’s arrest. At the police station, Officer Dacus administered a breathalizer test. The results indicated that Mr. Spencer’s blood alcohol level was .01, which meant he was not legally intoxicated under Oklahoma’s general DUI rules. Within two hours after his seizure by Mr. Taylor, Mr. Spencer was released to his father. The next morning he sought medical care for contusions, abrasions, and cervical strain received during the citizen’s arrest. His physician prescribed rest, an anti-inflammatory, and a painkiller. The City of Mustang did not charge Mr. Spencer with any criminal conduct arising from the incident, although it cited his friend for throwing the bottles. In a subsequent inquiry, Defendant McNeil, a police investigator, determined that Mr. Taylor’s manhandling of Mr. Spencer did not occur in the context of a proper citizen’s arrest. Mr. Taylor was ultimately convicted of misdemeanor destruction of property and assault and battery. Later, Mr. Spencer filed suit seeking redress under several Oklahoma tort provisions and 42 U.S.C. § 1983. His complaint named as defendants the mayor of Mustang, the chief of police, the two police officers present at the Taylor home, the police investigator, and Mr. Taylor. The complaint asserted claims for negligent hiring, retention, and supervision; false arrest; abuse of process; libel and slander; assault and battery; intentional or negligent infliction of emotional distress; false imprisonment; and constitutional torts. The City defendants sought summary judgment. For his part, Mr. Spencer filed a partial summary-judgment motion. Defendant Taylor did not respond to the other parties’ filings. Basis of District Court’s Ruling In a thoughtful Memorandum Opinion and Order, the district court acknowledged that the parties had presented “voluminous, mostly disputed facts regarding many tangential aspects of [the] case,” but also recognized that factual disputes preclude the granting of summary judgment only if they pertain to material facts. Aplt.App., Vol. 4, Tab 2 at 891. See Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) (stating that only a “ ‘genuine issue of material fact’ ” can “ ‘defeat an otherwise properly supported motion for summary judgment’ ”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court therefore distilled the record to uncontested facts, then analyzed the issues in light of the applicable law. For several reasons, the court determined that all defendants were entitled to summary judgment on Mr. Spencer’s federal false-arrest claim. First, the mayor, police chief, and investigator were not liable under any theory. Because they did not personally participate in the event, they could not be held accountable in their individual capacities. See Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”). To the extent Mr. Spencer was attempting to hold the mayor and police chief liable as supervisors, this claim also fails. The theory of negligent supervision cannot provide a basis for liability under § 1983. See Darr v. Town of Telluride, 495 F.3d 1243, 1256 (10th Cir.2007). Moreover, “there is no concept of strict supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir.1996) (quotation and citation omitted). “[I]t is not enough for a plaintiff merely to show a defendant was in charge of other state actors who actually committed the violation.” Id. Rather, “the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.” Id. at 994-95 (quotations and citations omitted). Mr. Spencer’s filings do not provide a basis for the imposition of supervisor liability. And in the supervisors’ official capacities, Mr. Spencer was required to demonstrate that his injuries were the result of a municipal “policy or custom.” Novitsky v. City of Aurora, 491 F.3d 1244, 1259 (10th Cir.2007) (“A municipality cannot be held liable for its officers’ actions under § 1983 unless those actions were caused by a policy or custom of the municipality.”); Myers v. Okla. County Bd. of County Comm’rs, 151 F.3d 1313, 1316 n. 2 (10th Cir.1998) (recognizing that suits against municipal officers acting in an official capacity are treated the same as those against a municipality). A “ ‘custom’ ... mean[s] an act that, although not formally approved by an appropriate decision maker, has such widespread practice as to have the force of law.” Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1177 (10th Cir.2003). Mr. Spencer’s assertions that the Mustang Police Department had been complacent in responding to earlier problems with Mr. Taylor did not add up to a municipal custom. And his further allegations that Mr. Taylor’s sister is a former dispatcher for Mustang and her husband is an Oklahoma City police officer added no weight to his case. Mr. Spencer’s evidence did “not show that the City of Mustang had an unlawful custom regarding Taylor or that such a custom resulted in Plaintiffs alleged constitutional violations.” Aplt.App., Vol. 4, Tab 2 at 892. Second, the officers on the scene had independent reasons for their determination that probable cause existed to continue the arrest begun by Mr. Taylor. In particular, Officer Dacus observed Mr. Spencer with classic signs of intoxication, indicating that he had committed the crime of DUI. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1256 (10th Cir.1998) (stating that “[e]ven law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity” in a § 1983 warrantless-arrest case “if a reasonable officer could have believed that probable cause existed to arrest the plaintiff’) quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995) (further quotation omitted). “[A] reasonable officer would have believed that probable cause existed for [Mr. Spencer’s] arrest.” ApltApp., Vol. 4, Tab 2 at 896. Third, the undisputed facts did not demonstrate that City defendants were responsible for Mr. Taylor’s conduct under the theory of “danger creation.” Id. at 899-900. “In general, state actors may only be held liable under § 1983 for them own acts, not the acts of third parties.” Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir.2008). The “danger creation” exception to this rule, proposed by Mr. Spencer, applies to instances “when a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.” Id. (quotation omitted). To qualify for this exception, [a] plaintiff must show that (1) state actors created the danger or increased the plaintiffs vulnerability to the danger in some way, (2) the plaintiff was a member of a limited and specifically definable group, (3) the defendants’ conduct put the plaintiff at substantial risk of serious, immediate, and proximate harm, (4) the risk was obvious or known, (5) the defendants acted recklessly in conscious disregard of that risk, and (6) the conduct, when viewed in total, shocks the conscience. Id. Plaintiffs case satisfied none of these requirements, as “the evidence ... clearly demonstrate^] that Taylor’s pursuit, arrest, and detention of Plaintiff were factually and legally independent of any state action.... ” R., Vol. 4, Tab 2 at 899-900. Fourth, Mr. Taylor was not “a proper defendant for [a] federal constitutional claim.” Id. at 899. “[T]he only proper defendants in a Section 1983 claim are those who represent the state in some capacity, whether they act in accordance with their authority or misuse it.” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995) (footnotes and brackets omitted). Thus, Mr. Spencer was required to come forward with facts demonstrating that Mr. Taylor can “fairly be said to be a state actor.” Anderson v. Suiters, 499 F.3d 1228, 1233 (10th Cir.2007) (quotations omitted). To satisfy this standard, Mr. Spencer relied on three of the four tests outlined by the Supreme Court: the nexus test, the symbiotic relationship test, and the joint action test. Aplt.App., Vol. 4, Tab 2 at 899. See also Anderson, 499 F.3d at 1233. Mr. Spencer’s evidence did not demonstrate a nexus between the City’s purposes and Mr. Taylor’s conduct, a long-term symbiotic interdependence between the City and Mr. Taylor, or concerted action undertaken by the City and Mr. Taylor to deprive Mr. Spencer of his rights. See Gallagher, 49 F.3d at 1448-56 (describing and applying each of the tests). The district court concluded that Mr. Spencer “may have remaining grounds for relief against Taylor,” but he had not asserted the material facts essential to a § 1983 claim. Aplt.App., Vol. 4, Tab 2 at 899. Accordingly, it granted the City defendants’ motion for summary judgment as to the federal-law claims and sua sponte granted summary judgment to Mr. Taylor. It also dismissed his state-law claims without prejudice. Id. at 901. Mr. Spencer has appealed, asserting seven issues for this court’s review. DISCUSSION “We review a district court’s grant of summary judgment de novo, applying the same standard as the district court.” Thomas v. City of Blanchard, 548 F.3d 1317, 1322 (10th Cir.2008) (quotation omitted). Summary judgment is appropriate only “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). Five of Mr. Spencer’s overlapping appellate issues were addressed in the district court’s order. He argues that (1) there were genuine issues of material fact that precluded summary judgment; (2) the district court improperly engaged in credibility determinations; (3) there was “a genuine issue of material fact to support the claim that Taylor was acting under color of law when he executed a citizen’s arrest;” (4) there was a genuine issue of material fact concerning his claim that the Mustang Police Department’s “custom or policy of complacency regarding the actions of Taylor ... resulted in a violation of [Mr. Spencer’s] constitutional rights;” and (5) there was a genuine issue of fact to support his claim that the City defendants “were acting jointly with Taylor.” Aplt. Br. at 1-2. Upon our review of the record and the parties’ arguments, we conclude that the district court properly analyzed and resolved Mr. Spencer’s federal claims against the City defendants. Accordingly, we affirm the entry of summary judgment in favor of the City defendants for substantially the same reasons set forth in the district court’s memorandum and order of August 8, 2007. Mr. Spencer also argues that the district court erred in granting summary judgment in favor of Mr. Taylor on the § 1983 claim. Id. at 2. “[A] sua sponte grant of summary judgment although not encouraged, is permissible, provided that the losing party was put on notice to come forward with all its evidence.” Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d 1057, 1067 (10th Cir.2007). Mr. Spencer’s arguments concerning the § 1983 liability of the City defendants and Mr. Taylor were intertwined. He was therefore on notice of the need to come forward with all evidence indicating Mr. Taylor’s accountability for a federal constitutional violation. We reject Mr. Spencer’s contentions on this issue and affirm the district court’s grant of summary judgment to Mr. Taylor. Finally, Mr. Spencer asserts that there were genuine issues of material fact supporting his claims under the Oklahoma Government Tort Claims Act. Aplt. Br. at 2. The implication is that the district court wrongly entered summary judgment on certain of his state claims. The district court’s order, however, stated that it “decline[d] to exercise supplemental jurisdiction over Plaintiffs state law claims,” and therefore dismissed them without prejudice. Aplt.App., Vol. 4, Tab 2 at 900. In accordance with 28 U.S.C. § 1367(c)(3), a district court has the discretion to decline to exercise supplemental jurisdiction over a state-law claim if “the district court has dismissed all claims over which it has original jurisdiction.” See also Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir.1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”). This issue is without merit. The judgment of the district court is AFFIRMED. 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . In its memorandum and order, the district court noted that, ‘‘[a]s a minor ... it would have been unlawful for Plaintiff to have been driving with 'any measurable quantity of alcohol on his breath.' ” Aplt.App., Vol. 4, Tab 2 at 895 (quoting 47 Okla. Stat. § 11-906.4(A)(1)). Although he does not list it as an issue presented for review, Mr. Spencer argues on appeal that the district court should have certified the question of whether .01 is a measurable quantity of alcohol under state law. Aplt. Br. at 15-17. Because Mr. Spencer did not ask the district court to certify the issue, we will not consider this contention. See Stewart v. Kempthorne, 554 F.3d 1245, 1252-53 (10th Cir.2009) (declining to consider arguments raised for the first time on appeal). . In district court, Mr. Spencer claimed that the City defendants deprived him of medical care while in custody. Because he does not pursue this issue on appeal, the facts related to his physical condition illustrate the nature of his confrontation with Mr. Taylor, but are not directly relevant to this court's resolution of his case.

ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY M. TYMKOVICH, Circuit Judge. Richard A. Nichols, appearing pro se, seeks separate certificates of appealability (COA) to appeal the district court’s denials of two petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We decline to grant a COA on either petition. Background The parties are familiar with the facts so we need not repeat them here. In Nichols’s petitions for writ of habeas corpus, he challenges his 2002 Utah criminal convictions stemming from his conduct during his employment as a sales manager at Remember When, a car dealership selling classic cars on consignment. His conviction was affirmed on direct appeal in 2003. te State v. Nichols, 76 P.3d 1173, 1175 (Utah App.2003). Nichols has brought numerous actions in federal court relating to his employment at Remember When and his subsequent fraud and racketeering convictions. All of these cases have been dismissed. Before us now is Nichols’s appeal of the district court’s dismissal of two petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed both of these petitions for lack of jurisdiction. Specifically, the district court dismissed Nichols’s first habeas petition (at issue in case number 08-4160 here) concluding that because Nichols was not “in custody,” the court lacked jurisdiction over Nichols’s ha-beas petition. The court also explained that even if it had jurisdiction, Nichols’s petition was not timely under § 2244(d)(1)(A). As to Nichols’s second petition (at issue in case number 08-4159 here), the district court determined that Nichols had not first obtained an order from the appropriate court of appeals authorizing the district court to consider the petition, as required for a second or successive habeas petition. See §§ 2244(b)(3)(A) and 2255(h). The court explained that when a second or successive habeas claim is filed in district court without the required authorization from the circuit court, the district court may transfer the matter to the circuit court if it determines it is in the interest of justice to do so, or it may dismiss the petition for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251-53 (10th Cir.2008). The district court concluded it was not in the interest of justice to transfer the petition, given that it failed because Nichols was not “in custody” and because it was time-barred. The district court declined to grant a COA on either petition and Nichols now seeks COAs from us. Analysis Although we view Nichols’s pro se filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.1991), we decline to grant a COA on either of his petitions and dismiss the appeals. As a preliminary matter, we note that federal courts have jurisdiction to review habeas petitions from state court prisoners only when the petitioner is “in custody.” § 2254(a) (“The Supreme Court, ... a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”) (emphasis added). Moreover, a one-year limitation applies to an application for a writ of habe-as corpus by a person in custody pursuant to the judgment of a state court. § 2244(d). Finally, when a petitioner seeks to file a successive or second motion for habeas relief in district court, the petitioner is required to first obtain authorization from the applicable appellate court. See §§ 2255(h) and 2244(b)(3). For an appeal of a district court’s order disposing of a habeas petition to move forward, this court must grant the petitioner a COA. See § 2253(c)(1)(A). This court may issue a COA only if the petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, though, the district court denies a habeas petition on procedural grounds, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Thus, where the district court denies a habeas petition on procedural grounds, a petitioner must show that reasonable jurists would find debatable both (1) whether the petition states a valid claim of the denial of a constitutional right, and (2) whether the district court was correct in its procedural ruling. Id. Having reviewed these standards and the district court’s orders, along with the entire record, we deny Nichols’s requests for a COA on either petition and dismiss the appeals. A. The First Petition, 08-1160 Because the record does not demonstrate that Nichols was “in custody” at the time he filed his petition, there is no federal jurisdiction over his claims. As explained above, the writ of habeas corpus is limited to persons “in custody in violation of the Constitution or laws or treaties of the United States.” § 2254(a). This requirement is jurisdictional. See Foster v. Booher, 296 F.3d 947, 949 (10th Cir.2002). It “is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v. Mun. Ct., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). To meet § 2254’s requirements, Nichols must have been ‘“in custody’ under the conviction or sentence under attack at the time his petition [wa]s filed.” Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). The custody requirement has been construed liberally. See id. at 492, 109 S.Ct. 1923. Indeed, the Supreme Court’s interpretation of the “in custody” language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus. Id. at 491, 109 S.Ct. 1923. In Jones v. Cunningham, for example, the Court held that a petitioner who had been placed on parole was still “in custody” under his unexpired sentence, in light of the restraints and conditions of the parole order. 371 U.S. 236, 241-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The Court reasoned that the petitioner’s release from physical confinement was not unconditional; instead, it was conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities. Id. at 242, 83 S.Ct. 373. In this case, the district court found that “Nichols is not in custody” and that Nichols’s current address demonstrated that he was not in custody. R. Vol. 1, Doc. 3, at 2. The judge explained that “there is no indication whatsoever that Mr. Nichols has been in custody other than for five days in 2002.” Id. To the extent the judge’s determination that Nichols was not “in custody” constituted a finding of fact, we review it for clear error, see Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir.2006), and we see no clear error in the judge’s finding. We also see no legal error in the determination. We need not reach the issue of whether the petition alleges a debatable constitu tional question because the district court was correct in its procedural ruling, and reasonable jurists would not find debatable whether the procedural ruling was correct. Slack, 529 U.S. at 484, 120 S.Ct. 1595. In any event, the petition would be barred as untimely. The Utah Supreme Court denied certiorari on Nichols’s case in December 2003. See Utah v. Nichols, 84 P.3d 239 (Utah 2003). It does not appear from the record that Nichols sought certiorari in the United States Supreme Court. Assuming he did not, his conviction became final when the time to seek certiorari expired, 90 days after the entry of judgment in Utah in December 2003. See Rule 13. 1, Rules of the Supreme Court. Nichols filed his habeas petitions, however, in December 2007 and February 2008. Nichols thus filed his ha-beas petitions long after a year from the date his conviction became final. See § 2244(d)(1). Nichols argues that the judgment in his case was not final: he contends the case is still ongoing. However, a conviction becomes final for these purposes upon the completion of “direct review.” Cf. United States v. Burch, 202 F.3d 1274, 1277 (10th Cir.2000) (“[I]n the context of the AEDPA, § 2255’s use of ‘final’ plainly means ‘a decision from which no appeal or writ of error can be taken.’ ”) (citation omitted). Here, a year from the date direct review was completed had expired by December 2007. Finally, Nichols argues that the statute of limitations should have been tolled under the “Doctrine of Fraudulent Concealment.” R. Vol. 1, Doc. 5. But he does not support his argument, and there is no evidence in the record to support an argument that he is raising a' claim concerning which “the factual predicate” could not have been discovered “through the exercise of due diligence” within the time limitation, see § 2244(d)(1)(D), or that the government impeded him from filing an application. See § 2244(d)(1)(B). We thus deny the request for a COA. B. The Second Petition, 08-1-159 Where a petitioner files a successive ha-beas petition in district court without first seeking authorization in the appellate court, the petition filed in district court is unauthorized. See, e.g., In re Cline, 531 F.3d at 1251-52. Once a district court determines that a petition is unauthorized, the court is faced with two options. First, if the court determines it is in the interest of justice to do so, it is entitled to transfer the matter to us for a determination of whether to permit successive habeas proceedings. See id. at 1252. Otherwise, the district court must dismiss the petition for lack of jurisdiction because the court has no authority to entertain an unauthorized second or successive habeas motion. See id. We find that reasonable jurists would not debate whether the district court’s dismissal of Nichols’s second petition was a correct procedural ruling. It is clear that Nichols’s filing was a habeas petition: it is styled as such, and in it Nichols urges the court to vacate convictions that, according to him, were illegally obtained. Additionally, it is clear that this filing constituted Nichols’s second or successive habeas petition. Nichols argues that he “did not file a successive writ in Feb[ruary] on these issues presented to the district court for review. Petitioner filed one writ and that was in Feb[ruary] 2008 not in 2007.” Aplt. Br. at 10. However, we have before us two habeas filings by Nichols: he filed the first in December of 2007 and the second in February of 2008. Thus, it is clear that Nichols’s 2008 petition, at issue in case No. 08-1459, was a second or successive habe-as petition. Accordingly, we DENY Nichols’s application for a COA. Conclusion For the foregoing reasons, we DENY Nichols’s applications for COAs and dismiss the appeals. We also DENY his requests to proceed in forma pauperis. This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . See State v. Nichols, 76 P.3d 1173, 1175 (Utah App.2003). See, e.g., Nichols v. Baer, No. 08-CV-89 (D.Utah July 30, 2008); Utah v. Nichols, No. 07-CV-419 (D.Utah July 9, 2007); Nichols v. Fletcher, No. 03-CV-868, 2007 WL 1795765 (D. Utah, June 20, 2007); Nichols v. Utah, No. 03-CV-1132 (D. Utah June 15, 2006); Nichols v. Utah, No. 03-CV-1095 (D. Utah June 24, 2004). . In the § 2254 context, where a state court has considered a claim on the merits, the federal court must affirm unless the state court's decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(1) & (2). . Nichols contends that warrants for his arrest were issued in 2003, 2007 and 2008 for failure to appear at review hearings regarding his progress towards making restitution. These arrests do not establish that Nichols was "in custody,” however, and Nichols does not provide evidence in this record — concerning these arrests or otherwise — to demonstrate the district court erred in finding that he was not "in custody” for habeas purposes when he filed his habeas petitions. Indeed, Nichols argues that he was not on probation in 2007 and 2008: for example, he asserts that in June 2007 he was sent a notice by the Third District Court of Utah instructing him to answer to charges of failure to pay restitution in violation of probation, and, he argues, he did not do so "because [he] was not on probation.” Aplt. Br. at 7 (No. OS-4160). The arrests could demonstrate that Nichols still had an outstanding monetary obligation. However, "the payment of restitution or a fine, absent more, is not the sort of 'significant restraint on liberty’ contemplated in the ‘custody’ requirement.” Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir.2008) (citing Obado v. New Jersey, 328 F.3d 716, 717-18 (3d Cir.2003) (holding that restitutionary payments being made by a petitioner after he completed his state prison sentence did not satisfy the custody requirement of tire federal habeas corpus statute when he was no longer subject to the terms of his probation)). . If Nichols had actually filed only one writ, and it was not a second or successive habeas petition, then it was still properly dismissed for the reasons discussed above concerning the earlier 2007 petition.

MEMORANDUM Arizona state prisoner Donald D. Giber-son appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 ha-beas petition and the district court’s order denying his motion to vacate the judgment. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. Giberson contends that his trial counsel was ineffective for failing to object to unsolicited testimony from a witness that she had taken a polygraph exam, and to the prosecutor’s vouching for her testimony during closing argument. Giberson has not demonstrated that his counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We conclude that the state court’s decision rejecting Giberson’s ineffective assistance of counsel claim was neither contrary to, nor an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). Giberson also contends that the prosecution improperly vouched for the testimony of a co-conspirator when it referenced on direct examination an addendum to the co-conspirator’s plea agreement requiring the co-conspirator to testify truthfully. Giberson contends that this violated his constitutional rights to due process, confrontation, and a fair trial. We conclude that the state court’s decision rejecting this claim was neither contrary to, nor an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1); see also Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We construe the uncertified issue raised by Giberson as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.1999) (per curiam). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

ON MOTION ORDER Upon consideration of the parties’ joint motion to remand this case, Dubliner v. Irish Dairy Board, to the United States Patent and Trademark Office, Trademark Trial and Appeal Board, Opposition No. 91/164,315 and Cancellation No. 92/044,189, for further proceedings consistent with the settlement agreement reached by the parties and, specifically, to allow the parties to jointly move the Board for vacatur of its decision on appeal, IT IS ORDERED THAT: (1) The motion is granted. (2) All remaining motions are moot. (3) Each side shall bear its own costs.

Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marty Lorenzo Wright appeals the district court’s order denying relief on his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wright, No. 4:95-cr-00039-RAJ-1; 4:95-cr-00044-RAJ-1 (E.D.Va. Sept. 18, 2008) We deny the Wright’s motion to place the appeal in abeyance for United States Dunphy, as moot, because that opinion has now issued see United States v. Dunphy, 551 F.3d 247 (4th Cir.2009), and grant his motion 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. AFFIRMED.

PER CURIAM: Amzad Lalani and Wendy Lalani (collectively “the Petitioners”), proceeding with separate counsel in this consolidated appeal, challenge the district court’s denial of their motions to vacate their sentences, pursuant to 28 U.S.C. § 2255. The Petitioners alleged that their shared trial counsel was constitutionally ineffective because, after they instructed him to pursue a plea agreement, he erroneously advised them that a plea agreement was not in their best interests. The Petitioners further alleged that had their counsel pursued a plea agreement, they would have obtained a plea offer from the government, and they would have pled guilty and received a lesser sentence, as did other co-defendants. The district court found that because the Petitioners maintained their innocence after being convicted, they could not show prejudice, i.e., that they would have pled guilty but for counsel’s advice. I. Factual Background and Procedural History After a jury trial, the Petitioners were convicted of one count of conspiring to the interstate transport of stolen goods, in violation of 18 U.S.C. § 371, and 137 counts of the interstate transportation of stolen goods, in violation of 18 U.S.C. § 2314. Amzad was sentenced to 121 months’, and Wendy was sentenced to 63 months’ imprisonment. Early on in his case, Amzad Lalani instructed trial counsel to pursue a plea agreement for himself and his wife Wendy Lalani. Amzad also requested that trial counsel inform him of the exposure he faced by proceeding to trial. In response, trial counsel told Amzad a plea agreement was “not necessary because he was going to win the case.” A plea agreement ostensibly may have been an option for them-other co-conspirators entered into plea agreements, although it is not clear by how much their sentences would have been reduced. Amzad Lalani and Wendy Lalani filed separate motions to vacate their sentences, pursuant to 28 U.S.C. § 2255. The district court issued separate orders addressing their motions. For both Amzad and Wen dy, the district court assumed that they instructed counsel to pursue a plea agreement and that counsel advised them that a plea was unnecessary because they would win at trial. Nevertheless, the district court found that neither could show prejudice because their “posteonviction-stancefs]” that they were innocent showed that neither could demonstrate that there was a reasonable probability he or she would have pled guilty. Both Petitioners filed notices of appeal and motions for certificates of appealability (“COA”). The district court denied their motions in a single order. We issued a certificate of appealability on the following issue: “Whether the district court erred in finding that trial counsel was not ineffective for failing to pursue a plea agreement after the appellants requested that counsel do so, in light of the fact that no evidentiary hearing was held. See Finch v. Vaughn, 67 F.3d 909, 916 (11th Cir.1995).” II. Standard of Review In a 28 U.S.C. § 2255 proceeding, we review the district court’s findings of fact for clear error and its legal conclusions de novo. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.2008). “A claim of ineffective assistance of counsel is a mixed question of law and fact that we review de novo.” Id. Denial of an evidentiary hearing is reviewed for abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n. 5 (11th Cir.2002). Furthermore, we may affirm on alternative grounds. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001). The district court “shall” hold an eviden-tiary hearing on a habeas petition “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.” Aron, 291 F.3d at 714-15 (quotation omitted). Yet the “district court is not required to hold an evidentiary hearing where the petitioner’s allegations are affirmatively contradicted by the record, or the claims are patently frivolous.” Id. at 715. III. Ineffective Assistance of Counsel “To prevail on a claim of ineffective assistance, a defendant must establish two things: (1) ‘counsel’s performance was deficient,’ meaning it ‘fell below an objective standard of reasonableness’; and (2) ‘the deficient performance prejudiced the defendant.’ ” Gordon v. United States, 518 F.3d 1291, 1297 (11th Cir.2008) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). If a petitioner fails to show deficient performance, the court need not go on to determine whether there was prejudice, and vice-versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.2000). The Supreme Court has held that “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). “The failure of an attorney to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis as such an omission cannot be said to fall within the wide range of professionally competent assistance demanded by the Sixth Amendment.” Finch v. Vaughn, 67 F.3d 909, 916 (11th Cir.1995) (quotations and ellipses omitted). The prejudice inquiry in the context of guilty pleas, “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. at 370. To show prejudice after a rejected plea, an individual must “establish a reasonable probability that, absent counsel’s alleged ineffective assistance, he would have accepted the plea agreement.” Diaz v. United States, 930 F.2d 832, 835 (11th Cir.1991); accord Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir.1995). IV. Discussion The district court stated that the Petitioners could not show that they would have pled guilty because they asserted post-conviction arguments that they were innocent and that the evidence in their trial was insufficient to convict them. The Sixth Circuit has specifically addressed whether a petitioner maintaining his innocence prevents him from showing that there was a reasonable probability that he would have pled guilty if informed of the government’s plea offer. Griffin v. United States, 330 F.3d 733, 738 (6th Cir.2003). In Griffin, the petitioner alleged that his counsel was ineffective for not informing him of the government’s plea offer. Id. at 734. The government argued that the record showed that the petitioner would not have pled guilty if he had known about the offer because he maintained his innocence throughout the trial and sentencing. Id. at 738. The Sixth Circuit held that the petitioner’s “repeated declarations of innocence do not prove, as the government claims, that he would not have accepted a guilty plea.” Id. (citing North Carolina v. Alford, 400 U.S. 25, 33, 91 S.Ct. 160, 165, 27 L.Ed.2d 162 (1970) (“reasons other than the fact that he is guilty may induce a defendant to so plead, ... and he must be permitted to judge for himself in this respect” (quotation omitted))). The court went on to state the following: Defendants must claim innocence right up to the point of accepting a guilty plea, or they would lose their ability to make any deal with the government. It does not make sense to say that a defendant must admit guilt prior to accepting a deal on a guilty plea. It therefore does not make sense to say that a defendant’s protestations of innocence belie his later claim that he would have accepted a guilty plea. Furthermore, a defendant must be entitled to maintain his innocence throughout trial under the Fifth Amendment. Finally, Griffin could have possibly entered an Alford plea even while protesting his innocence. These declarations of innocence are therefore not dispositive on the question of whether Griffin would have accepted the government’s plea offer. Id. In this case, the Petitioners challenged their convictions, in part, on the basis that they were innocent. The district court held that because they maintained their innocence after their trial they could not show prejudice. We find the Sixth Circuit’s opinion in Griffin persuasive with respect to the prejudice prong of Strickland. Furthermore, because the Petitioner’s protestations of innocence after their trial do not prevent the Petitioners from showing prejudice, as was held in Griffin, there is sufficient subjective evidence in the record to warrant an evidentiary hearing to determine whether there is a reasonable probability that the Petitioners would have accepted a plea offer had their counsel successfully pursued a plea offer from the government. Also, the petitioners, like Griffin, have presented a potentially meritorious claim on the deficient performance prong of Strickland, but the district court did not address the deficiency prong and we leave it to the district court in the first instance to decide the utility of hearing evidence on that issue. V. Conclusion For the foregoing reasons, the decision of the district court is VACATED and the case is REMANDED for an evidentiary hearing to determine whether the Strickland test is met in light of Griffin. VACATED AND REMANDED . Six of the Movants' co-conspirators pled guilty with the benefit of a plea agreement. (CM/ECF for the U.S. District Ct. for the N.D. of Georgia, No. l:02-cr-00155, docket entries 231, 235, 236, 259, 313, 315).

MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT JIM D. PAPPAS, Chief Judge. In this adversary proceeding, Plaintiff Scott Dominguez, acting through his conservator and legal guardian Jackie Hamp, requests that the Court determine that certain debts owed to him by Defendant Alan Elias are excepted from discharge in Defendant’s Chapter 7 bankruptcy case. Plaintiff alleges that the debts resulted from Defendant’s willful and malicious conduct in injuring him, and therefore, that his damage claims against Defendant are nondischargeable under 11 U.S.C. § 523(a)(6). Plaintiff filed a motion for summary judgment, arguing that the Court should conclude that both Defendant’s conviction on federal criminal charges stemming from Plaintiffs injuries, and a $23,400,000 state court money judgment entered in favor of Plaintiff against Defendant, preclusively establish that the debts are nondischargeable. Defendant argues the judgments are not entitled to preclusive effect in this action. The Court concludes that while the federal criminal conviction fails to establish all the necessary elements of Plaintiffs claim, the state court money judgment does satisfy all the elements of § 523(a)(6). I. Background and Undisputed Facts. A. The Incident. On August 27, 1996, Plaintiff, a twenty-seven year old father of one child, worked for Evergreen Resources, Inc. at that company’s fertilizer operation in Soda Springs, Idaho. Defendant owned and operated Evergreen Resources and was Plaintiffs supervisor. On that day, Plaintiff suffered severe and permanent injuries on the job. The day before, at Defendant’s direction, Plaintiff had been inside a railroad tank car cleaning out a form of “sludge” that contained significant levels of cyanide. Defendant was aware that the tank car contained harmful chemicals, but did not provide Plaintiff with any safety equipment. By the end of the day, Plaintiff was experiencing a sore throat and irritated nasal passages. On August 27, Plaintiff was again instructed to enter the tank car to continue removing the sludge. After about an hour inside the car, Plaintiff collapsed. Plaintiffs co-workers tried to rescue him from the tank car, but they were unable to do so. After a considerable time, emergency personnel arrived and were finally able to remove Plaintiff from the tank car and transport him to a local hospital. The doctor that cared for Plaintiff initiated treatment for cyanide poisoning, to which Plaintiff initially responded favorably. Despite his initial response to early treatments, Plaintiff ultimately sustained significant brain damage, which substantially impaired both his cognitive abilities and motor skills. As a result of his injuries, Plaintiff was rendered unable to provide or care for his young daughter, yet alone himself. He has difficulty speaking, walking, and feeding himself, and his body frequently “locks up,” requiring someone to help him move again. B. The Legal Proceedings. 1. The civil action. On July 13, 1998, Plaintiff, through his legal guardian, filed a civil action against Defendant in Idaho state court. Aff. of Roche, Ex. 6, Docket No. 9. Plaintiffs complaint sought money damages from Defendant. By that time, the Idaho Industrial Commission had made an award to Plaintiff under Idaho’s Worker Compensation Law, Idaho Code § 72-101 et seq. While the Worker Compensation Law is generally intended to provide the exclusive remedy for an injured worker, see Idaho Code §§ 72-211; 72-209(1), in the civil action, Plaintiff argued that an exception to those statutes allowed him to seek compensation from Defendant in addition to the award made by the Industrial Commission because, as an employee, Plaintiff had allegedly been injured by the “wilful or unprovoked physical aggression of the employer .... ” Idaho Code § 72-209(3). Defendant, through counsel, filed an answer to Plaintiffs complaint, denying most of the allegations. Aff. of Roche, Ex. 7, Docket No. 9. Plaintiffs original complaint reserved the right to add a claim for punitive damages. Aff. of Roche, Ex. 6 at ¶ 20, Docket No. 9. Although the exact date is unclear, during the course of litigation, Plaintiff filed a motion to amend his complaint to add a claim for punitive damages. Defendant opposed Plaintiffs motion, but on July 20, 2000, the state court granted Plaintiffs motion to amend. Aff. of Roche, Ex. 14, Docket No. 9. In granting Plaintiffs motion, the state court acknowledged that punitive damages are only available under Idaho law when a plaintiff proves “that the defendant acted in a manner that was ‘an extreme deviation from reasonable standards of conduct, and that the act was performed by the defendant with an understanding of or disregard for its likely consequences.’ ” Aff. of Roche, Ex. 14 at 3, Docket No. 9 (quoting Magic Valley Radiology Assocs., P.A. v. Prof'l Bus. Servs., Inc., 119 Idaho 558, 808 P.2d 1303, 1306 (1991) (citing Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661, 669 (1983))). The state court also recognized that “[t]he justification for punitive damages must be that the defendant acted with an extremely harmful state of mind, whether that state be termed ‘malice, oppression, fraud or gross negligence ....’” Aff. of Roche, Ex. 14 at 3, Docket No. 9 (quoting from Magic Valley Radiology, 808 P.2d at 1306; Cheney, 665 P.2d at 669). See also Payne v. Wallace, 136 Idaho 303, 32 P.3d 695, 699 (2001) (citing the same language). Based upon the record before it, the state court allowed Plaintiff to amend his complaint to include a prayer for punitive damages because there was evidence that Defendant had engaged in the kind of “oppressive, fraudulent, wanton, malicious or outrageous conduct ...” required by Idaho Code § 6-1604(1) (2000) (amended 2003). While the litigation was apparently contentious, Plaintiffs claim against Defendant was realized when, on March 4, 2003, the state court entered a default judgment against Defendant in the amount of $23,400,000, consisting of $16,900,000 in compensatory damages and $6,500,000 in punitive damages. Aff. of Roche, Ex. 5, Docket No. 9. The court entered a default judgment because Defendant’s counsel had withdrawn, and Defendant failed to appoint new counsel or appear on his own. See I.R.C.P. 11(b)(3); Aff. of Roche, Ex. 25, Docket No. 9. 2. The criminal proceedings. As noted above, the Federal Government also prosecuted Defendant in U.S. District Court for his conduct in connection with Plaintiffs injuries and Defendant’s fertilizer operations. On May 7, 1999, after a three week trial, a jury convicted Defendant on four separate criminal counts. In particular, Defendant was found guilty of violating a federal statute dealing with solid waste disposal, which provides: Knowing endangerment Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste identified or listed under this subchapter or used oil not identified or listed as a hazardous waste under this subchapter in violation of paragraph (1), (2), (3), (4), (5), (6), or (7) of subsection (d) of this section who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall upon conviction, be subject to a fine of not more than $250,000 or imprisonment for not more than fifteen years, or both. A defendant that is an organization shall, upon conviction of violating this subsection, be subject to a fine of not more than $1,000,000. 42 U.S.C. § 6928(e). At trial, the district court instructed the jury concerning the elements of this offense. It explained to the jury that in order to find Defendant guilty under this statute, the jury must unanimously agree that, among other things, “the Defendant at the time of the violation knowingly placed another person in imminent danger of death or serious bodily injury.” Supp. Aff. of Roche, Ex. 1, Docket No. 11. However, the court also gave the jury the following instruction: In determining whether the defendant knew that his conduct placed another person in imminent danger of death or serious bodily injury, you are instructed that a person’s state of mind is knowing with respect to (A) his conduct, if he is aware of the nature of his conduct; (B) an existing circumstance, if he is aware or believes that the circumstance exists; or (C) a result of his conduct, if he is aware or believes that his conduct is substantially certain to cause danger of death or serious bodily injury. The government does not need to show that the defendant actually intended to harm or endanger any person. Id. (emphasis added). Defendant appealed his conviction. The Ninth Circuit Court of Appeals upheld the jury’s verdict on all counts, but remanded the action to the district court to correct an error in sentencing. United States v. Elias, 269 F.3d 1003, 1022 (9th Cir.2001), cert. denied, 537 U.S. 812, 123 S.Ct. 72, 154 L.Ed.2d 14 (2002). In affirming Defendant’s conviction, the court rejected Defendant’s challenge to the jury instruction quoted above, and found that the instruction properly restated the law. The court explained that: The first part [of the instruction] set the bar. The jury had to find that Elias believed his conduct was “substantially certain to cause danger or death or serious bodily injury.” The second part told the jury that Elias didn’t have to have ordered his workers into the tank for the “design or purpose” of hurting them. In other words, harming the workers did not have to have been Elias’s objective in order for him to be guilty as charged. Id. at 1018-19. 3. The bankruptcy case. Defendant filed a Chapter 11 bankruptcy case on August 24, 2002. When no confirmable plan of reorganization was proposed, on November 4, 2002, this Court granted the United States Trustee’s motion and ordered that Defendant’s case be converted to Chapter 7. Case No. 02-41640, Docket No. 24. At their request, both Plaintiff and the corporation that owned the tank car, which was involved in an indemnification dispute with Defendant, were granted relief from the automatic stay so that they could continue to prosecute the state court action. Case No. 02-41640, Docket Nos. 37, 38. Plaintiff commenced this adversary proceeding on February 18, 2003. Docket No. 1.His motion for summary judgment was filed on September 19, and the Court conducted a hearing concerning the motion on October 22, 2003. At the hearing, both parties appeared through counsel and made extensive arguments. The arguments were supplemented with additional briefing and affidavits after the hearing. Docket Nos. 13,14. After due consideration of the record, the arguments of the parties and the applicable law, the Court now disposes of the motion. II.The Summary Judgment Standard. The procedural rule applicable to motions for summary judgment instructs that: [Summary judgment] shall be rendered forthwith 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 a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Fed.R.Civ.P. 56(c); Fed R. Bankr.P. 7056 (making Fed.R.Civ.P. 56 applicable in adversary proceedings). In the context of a motion for summary judgment, the court may not weigh the evidence or draw inferences from the record. Rather, the court should decide only whether there are any material facts in dispute, and whether the moving party is entitled to a judgment as a matter of law. Perry v. U.S. Bank Nat’l Ass’n ND (In re Perry), 03.2 I.B.C.R. 128, 129 (Bankr.D.Idaho 2003) (internal citations omitted). III.Discussion and Analysis. A. The elements of a § 523(a)(6) claim. Section 523 provides that “[a] discharge under section 727 [of title 11] ... does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity .... ” 11 U.S.C. § 523(a)(6). In this Circuit, this language has been interpreted to require that the court apply a two-pronged test in determining the dischargeability of a debt. The first prong requires a creditor to prove that a debtor’s conduct in causing the claimant’s injuries was willful. The second prong requires a creditor to prove the debtor’s conduct was malicious. Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th Cir.2002). To satisfy the willfulness prong, the creditor must prove that the debtor deliberately or intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. See Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Elaborating on the debtor’s state of mind required by the statute, the Ninth Circuit has explained that a debtor must possess a subjective motive to inflict injury, or believe that injury is substantially certain to result from his conduct. In re Su, 290 F.3d at 1143. Thus, a creditor cannot prevail in an action brought under § 523(a)(6) unless it is shown that the debtor had actual knowledge that harm to the creditor was substantially certain to occur from the debt- or’s acts. Id. at 1145-46. However, actual knowledge may be shown through circumstantial evidence of “what the debtor must have actually known when taking the injury-producing action ....” Id. at 1146 n. 6. To satisfy the malicious prong, the creditor must prove that the debtor’s conduct involved: (1) a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) is done without just cause or excuse. Id. at 1146-47. B. Issue preclusion in general. Plaintiff originally argued in his brief, Docket No. 8, that both claim preclusion and issue preclusion support the entry of summary judgment in Plaintiffs favor. Then, at the hearing on the motion, Plaintiffs counsel explained that, upon further reflection, only issue preclusion was applicable in Plaintiffs case. The Court agrees. As a result, only issue preclusion is examined here. The doctrine of issue preclusion “protects] the finality of decisions and prevent[s] the proliferation of litigation.” Littlejohn v. United States, 321 F.3d 915, 919 (9th Cir.2003). Simply put, issue preclusion prevents “the relitigation of issues actually adjudicated in previous litigation between the same parties.” Id. at 923. The Supreme Court has specifically held that “[issue preclusion] principles do indeed apply in discharge exception proceedings pursuant to § 523(a).” Grogan v. Garner, 498 U.S. 279, 284-85 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The Court must apply federal law to determine the preclusive effect of a prior federal judgment. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Berr v. Fed. Deposit Ins. Corp. (In re Berr), 172 B.R. 299, 305-06 (9th Cir. BAP 1994) (applying federal issue preclusion law to a prior federal diversity judgment). However, a bankruptcy court must give a state court judgment the same preclusive effect that other courts of that state would give to the judgment. 28 U.S.C. § 1738 (mandating that state court judgments “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.”); Allen, 449 U.S. at 96, 101 S.Ct. 411; In re Cantrell, 329 F.3d 1119, 1123 (9th Cir.2003); Gay-den v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir.1995) (applying Florida issue preclusion law to a Florida judgment). C. Issue preclusion and the federal criminal conviction. Plaintiff argues his claim against Defendant is excepted from discharge in this action under § 523(a)(6) based upon the judgment of conviction entered by the U.S. District Court in the federal criminal proceedings. Therefore, the Court must apply federal issue preclusion law to determine the preclusive effects of Defendant’s conviction. For issue preclusion to apply, Plaintiff must show: (1) the issue at stake is identical to an issue raised in the prior litigation; (2) the issue was actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action. Littlejohn, 321 F.3d at 923. Based on the language of the statute that Defendant was adjudged guilty of violating, the trial court’s instructions to the jury, and the Ninth Circuit’s definitive explanation of what the jury must have found to convict Defendant, it is clear the judgment of conviction establishes that Defendant knowingly and intentionally subjected Plaintiff to a dangerous situation that resulted in his injuries. However, the district court’s judgment entered in connection with the jury’s verdict does not necessarily establish that Defendant knowingly and intentionally injured Plaintiff. While the distinction is admittedly subtle, it is exceedingly important in the context of this adversary proceeding. The difference is perhaps best explained by the Ninth Circuit in In re Su. In Su, the debtor, driving a fourteen-passenger van in rush-hour traffic in downtown San Francisco, “sped into [an] intersection against a red light, traveling 37 miles per hour in a 25 mile-per-hour zone, nearly five seconds after the light had turned red.” In re Su, 290 F.3d at 1141. The debtor collided with one car, then ricocheted into a pedestrian, who was severely injured. Id. The pedestrian obtained a state court money judgment against the debtor after a jury found the debtor guilty of negligence and malice. Id. at 1141^42. The debtor then filed for bankruptcy and the pedestrian sought an exception from discharge under § 523(a)(6). The Ninth Circuit refused to conclude that the state court judgment preclusively established that the debt should be held nondischargeable. The court explained that while the debtor’s decision to run the red light was, from an objective perspective, substantially certain to cause an injury, it was highly unlikely at the time of the accident that the debtor possessed a subjective belief that he would harm anyone. The court noted that if the debtor did hold such a belief, he presumably would not have entered the intersection, risking injury to himself as well as others. Id. at 1145-46 n. 4. To further illustrate the importance of a debtor’s subjective intent under § 523(a)(6), the court in Su cited Alexander v. Donnelly (In re Donnelly), 6 B.R. 19, 23 (Bankr.D.Or.1980). The bankruptcy court in that case held that a reckless driver could not have intended to harm her passenger because doing so would have caused her harm as well. According to the Ninth Circuit, in the case of reckless acts such as these, while obviously involving a high degree of risk of injury to others, the debtor believes he or she can manage the risk. In other words, such acts do not, for purposes of § 523(a)(6), demonstrate a subjective intent to injure the creditor. 290 F.3d at 1145^46 n. 4. The court cites a number of cases involving automobile accidents for the proposition that even when the debtor-driver’s actions are extremely reckless, absent some evidence of an intent to crash into another car, debts arising out of an accident are not excepted from discharge under § 523(a)(6). Id. at 1146 n. 6. Of course, the facts in the auto accident cases discussed above are somewhat different than those presented here. Defendant, in sending Plaintiff into a tank car containing poison chemicals, did not risk bodily injury to himself in the same fashion that a reckless driver is exposed to danger by speeding through a red light in rush-hour traffic. But this factual difference should not obscure the analytical approach required by In re Su. The Ninth Circuit decision highlights the critical difference between a debtor’s intentionally risky behavior, even when that conduct may be substantially certain to cause injury to another when viewed objectively, and a debtor who harbors the subjective intent to injure another, or at least the subjective belief that injury is substantially certain. Under the policies embodied in the Bankruptcy Code as interpreted by the Supreme Court and Ninth Circuit, while it may sometimes be difficult, a creditor must show by direct or circumstantial evidence that the debtor acted with the requisite subjective intent to support a claim under § 523(a)(6). Given this requirement, in this case the criminal judgment standing alone does not establish that Defendant acted willfully for purposes of § 523(a)(6). At most, Defendant’s conviction establishes that he undertook a calculated risk in sending Plaintiff into the potentially noxious atmosphere of the tank car. Significantly, no element of the offense Defendant was convicted of committing required the jury to find that Defendant subjectively intended to harm Plaintiff. Indeed, the trial court expressly instructed the jury that it need not conclude “that the defendant actually intended to harm or endanger any person” in order to find him guilty under the statute. By convicting Defendant, all that can be assumed is that the jury found that Defendant knowingly put Plaintiff in imminent danger. In this sense, Defendant’s acts resemble those of the debtor in In re Su where the driver obviously put pedestrians and other motorists in danger by speeding through the busy intersection, but was not shown to have subjectively intended to harm them. Consequently, Defendant’s conviction falls short of establishing, for purposes of issue preclusion, that Defendant possessed the requisite subjective intent to harm Plaintiff by sending him into the tank car, or that Defendant subjectively believed that harm to Plaintiff was substantially certain to occur. The criminal conviction also fails to establish a necessary component of the “malicious” prong of § 523(a)(6). While the conviction does demonstrate that Defendant’s conduct was wrongful and that it was done without just cause or excuse, no element of the criminal offense required the jury to find that Defendant’s knowing endangerment of Plaintiff would necessarily cause injury. Rather, as stated above, the conviction only established that Defendant put Plaintiff in an imminently dangerous situation, which is not the same as putting someone is a situation that will, as a matter of necessity, cause injury. To some, it may seem peculiar that while Defendant was convicted of a federal crime and imprisoned, his conduct toward Plaintiff would not amount to a “willful and malicious” act for purposes of Plaintiffs nondischargeability action. However, any disparity in outcomes results because the two relevant statutes were designed by Congress to accomplish wholly different ends. The criminal statute is intended to impose a penalty on those who endanger others in the use of hazardous chemicals. For example, on its face, the statute appears to criminalize “knowing endangerment” even where no one was injured as a result of that endangerment. Obviously, Congress appreciated the special context and range of behaviors where the statute would apply when it crafted 42 U.S.C. § 6928(e). Federal bankruptcy laws have been in place for centuries. Separate and apart from the considerations of Congress in enacting the relatively new laws concerning how hazardous chemicals are used, the Bankruptcy Code is interpreted in a very broad, yet distinct context. The exceptions to discharge under the Code are neither more exacting nor punitive in design and implementation than federal criminal statutes. But the Code is different and it must be interpreted and applied to reflect its specific and unique goals. Put another way, Congress intended to deny discharge of a debt arising from an extremely narrow range of conduct, that is, only where there was a willful and malicious act, performed with the subjective intent to harm another, which results in actual injury to that person. Considering these goals, the Court must conclude that Defendant’s criminal conviction does not, as a matter of law, establish that Defendant was “willful and malicious” for nondischargeability purposes. In sum, while Defendant’s criminal conviction could be entitled to preclusive effect in this action, there is no indication that the district court’s judgment established that Defendant acted willfully or maliciously for purposes of § 523(a)(6). Thus, Plaintiff has failed to establish, on this record, the essential elements of his claim. D. Issue preclusion and the state court default judgment. The Court applies Idaho law in determining the preclusive effect of the state court judgment. Five factors must be shown for issue preclusion to apply according to the Idaho case law: (1) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue decided in the earlier case; (2) the issue decided in the prior litigation was identical to the issue presented in the present action; (3) the issue sought to be precluded was actually decided in the prior litigation; (4) there was a final judgment on the merits in the prior litigation; and (5) the party against whom the issue is asserted was a party or in privity with a party to the litigation. Rodriguez v. Dep’t of Correction, 136 Idaho 90, 29 P.3d 401, 404 (2001). The Court concludes without hesitation that the state court default judgment establishes factors (1), (4), and (5) in this instance. Obviously, Defendant was a party to the state action. While judgment was ultimately entered against him by the state court by default, Defendant appeared through counsel and participated extensively in the litigation up to that point. Clearly, Defendant had a full and fair opportunity to litigate in state court. Factors (1) and (5) and therefore satisfied. In Rodriguez, the Idaho Supreme Court, addressing factor (4), reiterated that for purposes of issue preclusion, a final judgment “includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.” 29 P.3d at 401 (internal quotations and citations omitted); see also Robertson Supply, Inc. v. Nicholls, 131 Idaho 99, 952 P.2d 914, 918 (1998) (intimating that a default judgment could be used for issue preclusion purposes if the issues raised in the first action were the same as those raised in the second action); United Servs. Auto. Ass’n v. Pair (In re Pair), 01.3 I.B.C.R. 99, 99 (Bankr.D.Idaho 2001) (concluding that an Idaho state court default judgment was a final judgment on the merits); In re Coryell, 97.1 I.B.C.R. 11, 12-13 (Bankr.D.Idaho 1997) (holding that under Idaho law a default judgment was a final judgment on the merits if the party against whom issue preclusion is asserted “participate^ actively in the resolution of factual issues through normal adjudicative procedures.”). Here, Defendant has not argued that the state court default judg ment is not final. In addition, Defendant has not sought relief from the default judgment, and the record reflects that the only activity to occur after entry of the default judgment against Defendant relates to the cross-claim for indemnification asserted by the tank car’s owner against Defendant. Plaintiffs Post-Hearing Mem. at 7-8, Docket No. 14. Moreover, Defendant has apparently not appealed the default judgment, and the time for doing so has long since expired. See Rodriguez, 29 P.3d at 405 (suggesting courts should consider whether a judgment is somehow tentative or subject to appeal when addressing issue preclusion). Thus, the default judgment represents a final judgment on the merits, and factor (4) is satisfied as well. Factors (2) and (3) require careful consideration. Even so, upon review of the record, the Court concludes that the default judgment actually decided the issues raised by Plaintiffs complaint in the state court action, because “[u]pon default, the allegations of the complaint are taken as true.” Olson v. Kirkham, 111 Idaho 34, 720 P.2d 217, 220 (1986) (quoting United Nuclear Corp. v. Gen. Atomic Co., 96 N.M. 155, 629 P.2d 231, 316 (1980)). In particular, as alleged in the complaint, the default judgment determined that Defendant committed an act of “wilful or unprovoked physical aggression upon [Plaintiff]” by sending him into the tank car without providing adequate safety equipment or taking appropriate safety precautions. Aff. of Roche, Ex. 6 at 3, Docket No. 9. In the deciding to enter the default judgment, by virtue of the punitive damages award, the state court must have concluded that Defendant acted with “an extremely harmful state of mind.” The pivotal question therefore becomes whether the allegations of Plaintiffs state court complaint address the “willful and malicious” elements of § 523(a)(6). Regarding the “willful” element, the Court concludes that Plaintiffs state court complaint establishes that Defendant acted with the requisite subjective intent in sending Defendant into the toxic environment of the tank car. In addressing the meaning of the phrase “wilful or unprovoked physical aggression” in the state statute, the Idaho Supreme Court has explained: The word “aggression” connotes “an offensive action” such as an “overt hostile attack.” Webster’s Third New International Dictionary 41 (1969). To prove aggression there must be evidence of some offensive action or hostile attack. It is not sufficient to prove that the alleged aggressor committed negligent acts that made it substantially certain that injury would occur. Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171, 1173 (1988). Effectively, to recover outside the Worker’s Compensation system, a claimant must prove that the employer committed an intentional act of aggression against the claimant which caused an injury. And as mentioned above, to recover an award of punitive damages, the state court must conclude that the defendant possessed an extremely harmful state of mind and have acted with an understanding of, or disregard for, the likely consequences of his or her acts. Cheney, 665 P.2d at 669. In this case the default judgment against Defendant can be fairly read as establishing that when Defendant sent Plaintiff into the tank car, he acted with a harmful state of mind and that in doing so, Defendant either understood, or knowingly disregarded, the likely consequences of Plaintiffs entry into a confined space containing harmful chemicals, with little or no ventilation and no safety equipment. Stated differently, the state court judgment, although employing somewhat different language, preclusively establishes that the allegations of the complaint are true, and that Defendant acted with a subjective intent to harm Plaintiff, or that he believed that harm was substantially certain to occur. Any semantic differences notwithstanding, considering the Idaho courts’ interpretation of the phrase “wilful act of physical aggression,” together with its rulings concerning the mental state necessary to support an award of punitive damages, the state court’s default judgment conclusively establishes that Defendant, while harboring an extremely harmful state of mind, committed an act of wilful physical aggression against Plaintiff. As a result, the judgment preclusively establishes that Defendant acted “willfully” for purposes of § 523(a)(6). With respect to whether Plaintiffs complaint alleges facts that satisfy the “malicious” element of Plaintiffs nondischarge-ability claim, the Court concludes that it does. Clearly, the state court judgment establishes that Defendant acted wrongfully and without just cause or excuse. Furthermore, the Idaho Supreme Court has construed Idaho Code § 72-209(3) to require an intentional act, not merely a negligent one. Therefore, the state court judgment establishes that Defendant acted intentionally as well. Finally, an act of “wilful or unprovoked physical aggression” (i.e., a battery), presumably will result in injury, although the extent of that injury may vary. Thus, the state court judgment preclusively establishes that Defendant’s conduct was malicious. IV. Conclusion. Both Defendant’s federal criminal conviction and the state court judgment entered against Defendant could be given preclusive effect for purposes of Plaintiffs § 523(a)(6) claim. However, under federal issue preclusion law, the criminal conviction did not establish that Defendant, when he directed Plaintiff to go into the rail car, subjectively intended to harm Plaintiff or that Defendant subjectively believed that harm to Plaintiff was substantially certain occur. Thus, the conviction does not establish that Defendant acted willfully and maliciously for purposes of the Bankruptcy Code. By contrast, the state civil default judgment does establish, as a matter of law, that Defendant willfully and maliciously injured Plaintiff, and that Plaintiff has suffered damages on account of his injury in the amount of $23,400,000. The debt evidenced by that state court judgment is therefore excepted from discharge in bankruptcy under § 523(a)(6). Plaintiffs motion for summary judgment will be granted by separate order. ORDER RE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT For the reasons set forth in the Court’s Memorandum of Decision filed herein, and for other good cause, IT IS HEREBY ORDERED THAT Plaintiffs Motion for Summary Judgment, Docket No. 7, be and is hereby GRANTED. Counsel for Plaintiff shall submit an appropriate form of judgment consistent with the decision for entry by the Court. . Recent case law in this Circuit encourages the use of the terms "claim preclusion” in place of "res judicata” and "issue preclusion” in place of “collateral estoppel” when examining the legal effect to be given to judgments in this context. See, e.g., Littlejohn v. United States, 321 F.3d 915, 920 n. 2, 923 n. 10 (9th Cir.2003); InreDiSalvo, 219 F.3d 1035, 1038 n. 4 (9th Cir.2000); In re Associated Vintage Group, Inc., 283 B.R. 549, 554-55 (9th Cir. BAP 2002); In re Paine, 283 B.R. 33, 38-39 (9th Cir. BAP 2002). Despite the parties' use of all four terms in their submissions, in the interest of clarity and consistency, the Court will refer to the relevant doctrines as "claim preclusion” and "issue preclusion.” . Al the hearing, Defendant's attorney, who also represented Defendant in the state court action, indicated that his decision to withdraw was based in part on the Defendant’s lack of resources to pay legal fees and costs, but also because Defendant decided he could better protect his interests by filing for bankruptcy. The Court interprets this comment to mean, in effect, than rather than try to further defend against Plaintiff's claims in state court, Defendant would devote his limited resources to filing for bankruptcy protection, and to defense of the dischargeability litigation that was almost certain to follow. In other words, Defendant’s decision to allow the default judgment to be entered against him in state court was, in part, a strategic one. . Defendant was also convicted on two other counts relating to hazardous waste disposal, but those counts dealt with his actions after Plaintiff was injured. In addition, Defendant was convicted on one count of knowingly and willfully making a false statement under 18 U.S.C. § 1001. Defendant's conviction on these charges is not implicated in this action. . Specifically, the court found no error in the portion of the sentence requiring Defendant to serve 204 months in prison, but concluded the trial court had improperly entered a $6.3 million restitution order against Defendant. Elias, 269 F.3d at 1021-22. . The Court takes judicial notice of its own files and records in Defendant's bankruptcy case, Case No. 02-41640. Fed.R.Evid. 201. . The state court originally entered a default judgment against Defendant on August 27, 2002, three days after Defendant filed for bankruptcy protection and the automatic stay took effect. Aff. of Roche, Ex. 27, Docket No. 9. Plaintiff thereafter requested relief from the automatic stay from this Court, Case No. 02-41640, Docket No. 9, and after that relief was granted, the state court entered a second default judgment. Aff. of Roche, Ex. 5, Docket No. 9. Defendant has not challenged the validity of the second judgment. . As Plaintiff's counsel apparently realized, case law would not support the application of claim preclusion here. Defendant’s criminal conviction did not in any fashion determine whether Plaintiff’s claims against Defendant are dischargeable in bankruptcy, and Plaintiff was neither a named party, nor were his interests in this case closely aligned with those of the Government, so as to support claim preclusion. See Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 964 (9th Cir.2002) (explaining claim preclusion requires: (1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties); United States v. Schimmels (In re Schimmels), 127 F.3d 875, 881-82 (9th Cir.1997) (noting privity can exist when a nonparty’s interests were closely aligned with a named party). Nor would case law support the application of claim preclusion with respect to the state court judgment. In Idaho, ”[u]nder principles of claim preclusion, a valid final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties upon the same claim.” Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035, 1044 (2003). Bankruptcy courts are granted exclusive jurisdiction over nondischargeability claims brought under § 523(a)(6). See § 523(c); Rein v. Providian Fin. Corp., 270 F.3d 895, 904 (9th Cir.2001). Because of this, the state court was not a “court of competent jurisdiction” to determine the dis-chargeability of Plaintiff’s claims. Plaintiff's tort action also fails to satisfy the “same claim” requirement. Again, the question of dischargeability fell outside the scope of the litigation in state court, so claim preclusion does not apply. See, e.g., State v. LePage, [138 Idaho 803,] 69 P.3d 1064, 1072 (Idaho 2003) (explaining claim preclusion would apply only to the extent a party is raising the same claim for a second time). . Other cases also highlight how some illegal conduct may not be willful under § 523(a)(6) because of a lack of subjective intent. See, e.g., In re Thiara, 285 B.R. 420, 429-34 (9th Cir. BAP 2002) (discussing how not every act of conversion results in a nondischargeable debt because not every such act is committed with the necessary subjective intent to harm); In re Jacks, 266 B.R. 728, 741-43 (9th Cir. BAP 2001) (discussing the need to show a debtor's subjective intent to harm a creditor in addition to proof that the debtor/director used corporate funds to his personal advantage and to the detriment of creditors). . Admittedly, the record is pregnant with potential inferences relevant to ultimately deciding whether Defendant acted willfully and maliciously. But basing a decision upon such inferences would be improper in the context of a motion for summary judgment, particularly when the motion is premised on the notion that the judgments of the federal district or state court should be given preclusive effect. . Defendant’s counsel repeatedly argues that the state trial court lacked jurisdiction to enter the default judgment because, under Idaho’s Worker Compensation Law, Plaintiff’s exclusive remedy was his claim before the Idaho Industrial Commission. Case law suggests otherwise. See DeMoss v. City of Coeur D’Alene, 118 Idaho 176, 795 P.2d 875, 878 (1990) (indicating an employee may maintain a claim against an employer for “wilful or unprovoked physical aggression” in addition to making a claim to the Industrial Commission); Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171, (1988) ("There is an exception from this exclusivity in any case where the injury or death is proximately caused by the willful or unprovoked physical aggression of the employer ....”) (internal quotations and citations omitted). Defendant's argument may have been proper in state court, but it is inappropriate in this action. Even assuming for argument's sake Defendant’s position is correct, the Idaho cases on issue preclusion, in contrast to those applying claim preclusion, do not require that a judgment, to be afforded preclusive effect, be rendered by a court of competent jurisdiction. This Court’s issue preclusion inquiry is therefore limited to the factors articulated by the Idaho Supreme Court.

MEMORANDUM AND ORDER RE: MOTION FOR PARTIAL SUMMARY JUDGMENT FOR FAILURE TO PROVE PROXIMATE CAUSATION (DOCKET ENTRY # 324); MOTION TO STRIKE EXHIBITS TO PLAINTIFFS’ OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT FOR FAILURE TO PROVE PROXIMATE CAUSATION (DOCKET ENTRY # 337) BOWLER, United States Magistrate Judge. Defendant Eli Lilly and Company (“Lilly”) moves for summary judgment on a negligent failure to warn claim in the second amended complaint (Count I). (Docket Entry # 324). Lilly submits there is an absence of admissible evidence that the breast cancer experienced by plaintiffs Andrea Andrews (“Andrews”), Michele Fecho (“Fecho”), Donna McNeely (“McNeely”) and Francine Melnick (collectively: “plaintiffs”) was proximately caused by Lilly’s failure to warn that maternal ingestion of Diethylstilbestrol (“DES”) increases the risk of breast cancer in the mother’s female offspring. (Docket Entry # 324). Lilly separately moves to strike three affidavits (Docket Entry ##331^4, 331-5 & 331-6) filed by plaintiffs to support their opposition to the partial summary judgment motion (Docket Entry # 337). After conducting a hearing on November 19, 2012, this court took the motions (Docket Entry ##324 & 337) under advisement. Because the content of the summary judgment record depends upon whether to include the three affidavits, this court initially turns to the motion to strike. I. MOTION TO STRIKE Lilly seeks to strike the affidavits of: (1) Victor Greco, M.D. (“Dr. Greco”), a board certified physician in the specialty of general surgery; (2) Irene Makowiec (“Makowiec”), a former patient of the late Richard Bonacci, M.D. (“Dr. Bonacci”); and (3) Clare Ritz (“Ritz”), another former patient of Dr. Bonacci. Dr. Bonacci was a general practitioner with an office located in Tresckow, Pennsylvania. Plaintiffs’ mother, the late Frances Melnick (“Melnick” or “plaintiffs’ mother”), was under Dr. Bonacci’s care during the pregnancies of her five children. For purposes of the partial summary judgment motion, Lilly acknowledges that Melnick ingested Lilly’s DES. (Docket Entry # 325, n. 2). Plaintiffs offer the affidavits to show that Dr. Bonacci’s routine prescribing practice was to read and heed warnings from drug manufacturers and to share the information with his patients. (Docket Entry ##333 & 350). Lilly maintains that Dr. Greco’s testimony is hearsay because he lacks personal knowledge of Dr. Bonacci’s practice and is not testifying as an expert. (Docket Entry # 325, n. 9; Docket Entry # 338). Lilly further posits that the testimony is not admissible to show Dr. Bonacei’s character or his “habit” of heeding drug manufacturers’ warnings and advising his patients of such warnings. Lilly seeks to strike the remaining two affidavits as inadmissible habit evidence for the same reasons. As with Dr. Greco’s testimony, Lilly argues that Ritz’s and Makowiec’s testimony constitutes inadmissible character evidence under Rule 404, F.R.E. (“Rule 404”). Lilly’s additional argument that the subject matter of the witnesses’ testimony (Dr. Bonacci’s practices regarding warnings) constitutes a new statement is unavailing. The identity of these individuals is not a surprise. Plaintiffs filed previous statements on July 6, 2012, identifying them as former patients of Dr. Bonacei. The change in the import of their testimony does not warrant striking it from the summary judgment record. BACKGROUND As set forth in Dr. Greco’s deposition, he graduated from Jefferson Medical College in Philadelphia, Pennsylvania in 1951. After graduation, he remained in Philadelphia where he served his surgical residency at the Jefferson Medical College Hospital. After completing his residency, he moved to Drums, Pennsylvania in 1956. McNeely, Andrews, Fecho and Francine Melnick were born in 1952, 1953, 1955 and 1958. Dr. Greco therefore moved to the area after the births of three of the four plaintiffs. Drums, Tresckow and Hazleton, Pennsylvania are located in the same general area. Dr. Greco began practicing surgery in the Hazleton area in 1956. The nature of his practice covered “everything from removing] toenails to operating on hearts.” (Docket Entry # 327-8). At the outset of his practice, he had “free time” and, in an attempt to build his practice, he made one or two social visits to Dr. Bonacci’s office in 1956 or 1957 to introduce himself. (Docket Entry # 327-8). Dr. Greco did not have the opportunity “to see” Dr. Bonacci during these social visits because “he was always very busy.” (Docket Entry # 327-8). Dr. Greco became more familiar with Dr. Bonacci during monthly staff meetings at the two local hospitals, “St. Joseph’s and Hazleton General.” (Docket Entry # 327-8). The discussion at these educational staff meetings among the small community of local doctors covered “anything and everything.” (Docket Entry #327-8). Dr. Greco remembers discussing “mutual problems” as well as advances in surgery, medical treatment for hypertension and antibiotics with Dr. Bonacci. (Docket Entry # 327-8). In addition to seeing Dr. Bonacci twice a month at these staff meetings, Dr. Greco saw him at the hospitals. Dr. Greco customarily did his rounds at 6:00 a.m. and 6:00 p.m. A family physician such as Dr. Bonacci would also conduct rounds when he had patients at one of the hospitals. In addition, Dr. Greco estimated that he received “anywhere from one to four surgical referrals” from Dr. Bonacci per month. (Docket Entry # 327-8). Dr. Greco usually consulted with Dr. Bonacci about all of the patients he referred. The two also discussed “advances in surgery” and in antibiotics. (Docket Entry # 327-8). Dr. Greco did not treat patients in Dr. Bonacci’s office. He never attended any of the house calls Dr. Bonacci made and he never shared an office with Dr. Bonacci. Dr. Greco, a general surgeon, did not practice medicine with Dr. Bonacci, a family practitioner. The relevant portion of the deposition testimony reads: Q. ... Dr. Bonacci made house calls did he not? A. Yes he did. Q. Did you ever go on any house calls with him? A. No, I didn’t. If you’re going to ask me what is Dr. Bonacci’s practice, I don’t know, I didn’t practice with him. I know the type of physician he was, if you want to ask me that. (Docket Entry # 327-8, pp. 101-102). Dr. Greco is, however, familiar with Dr. Bonacci’s character. He depicts: Dr. Bonacci’s character as being conservative, very compassionate and almost anal retentive as far as the care of his patients was concerned. And his patients always came first. And I am sure that if he read any warning on any drug, if he thought it was bad enough, he certainly would not dispense it, because that’s the type of individual he was. (Docket Entry # 327-8). Dr. Greco does not recall talking to Dr. Bonacci about DES. He does remember seeing “a prescription” for DES written by Dr. Bonacci. In addition, he “would imagine” that Dr. Bonacci wrote prescriptions for antibiotics because “very few doctors stocked antibiotics in their office[s].” (Docket Entry #327-8). “[T]he common drugs that most doctors stocked” in their offices included sedatives, sleeping cap sules, aspirin and codeine because they “treat[ed] the most common complaints that people coming into a family doctor had.” (Docket Entry # 331-7). Like Dr. Bonacci, Dr. Greco prescribed drugs from his office. Consistent or, at a minimum, not inconsistent with Dr. Greco’s clear answers at the deposition, he attests to the following in the subsequent affidavit: “[I]t was common for me to discuss issues relating to the practice of medicine with Dr. Bonacci half a dozen times a month, in either patient referrals, hospital rounds, or association meetings.” (Docket Entry #331^4). He describes his relationship with Dr. Bonacci as “both personal and professional.” (Docket Entry # 331-4). The two “often discuss[ed] treatment options” for the patients Dr. Bonacci referred and whether “medication alone, or surgery, would be most beneficial, and what were the side effects and risks of the various modalities.” (Docket Entry # 331-4). It was “impossible” for Dr. Greco to specify the number of conversations he had with Dr. Bonacci about “drug side effects” but he believed “it was enough” for him to know “the nature of [Dr. Bonacci’s] practice.” (Docket Entry # 331-4). Dr. Greco does recall discussing the risks and side effects of antibiotics with Dr. Bonacci and the information in the manufacturer’s labeling. Dr. Greco also averred that Dr. Bonacci’s “custom and habit” was not to “prescribe any drug if it came with a warning similar to” the warning attached to the affidavit. (Docket Entry # 331-4, ¶ 8). In the affidavit, he further states: that the standard medical practice in Hazleton was, and is, to pass warnings on to our patients. In fact, to do any less would amount to a departure from accepted practice. Dr. Bonacci was regarded by myself, and other physicians, as one of the best and most caring doctors in the area. That he would prescribe DES, without discussing a warning like this with his patients, would be a departure from his routine and habitual practice. In the entire course of my familiarity with Dr. Bonacci, for him to ignore a manufacturer’s warning would be unthinkable. (Docket Entry # 331-4, ¶ 9). In sum, beginning in and around 1956 or 1957, Dr. Greco became acquainted with Dr. Bonacci. The two physicians developed a personal and professional relationship. Dr. Greco was not part of Dr. Bonacci’s practice. They did not discuss DES although Dr. Greco does remember seeing a prescription for DES written by Dr. Bonacci. Dr. Greco never witnessed Dr. Bonacci warn a patient about side effects of a medication let alone the side effects of DES. He never saw Dr. Bonacci inform a patient of risks or side effects contained in a manufacturer’s label for a drug. He therefore did not have first hand knowledge of Dr. Bonacci’s prescribing practices of heeding a manufacturer’s negative warnings and not prescribing a medication or informing a patient of side effects, if any, of a medication he was prescribing. Dr. Greco has, however, spoken with Dr. Bonacci numerous times about patients that they shared. They saw each other frequently including at monthly staff meetings and during hospital rounds. From 1956 until at least 1980, they both practiced medicine in the Hazleton community. They discussed inter aha advances in medicine and mutual problems. They also had conferences about a particular patient’s concerns about drug side effects and that such side effects should be discussed with the patient. Dr. Greco is also familiar with the standard medical practice in the Hazleton area. He moved to Drums in or around July 1956 and established a surgical practice covering a wide range of medical conditions. He retired in 1986. Monthly staff meetings at the two hospitals allowed Dr. Greco to “get[ ] the feel of what the practice was in the area.” (Docket Entry #327-8). The community of doctors in the area was small. DISCUSSION Lilly maintains that Dr. Greco’s testimony is hearsay, does not constitute a “habit” under Rule 406, F.R.E. (“Rule 406”), and is inadmissible character evidence under Rule 404. (Docket Entry # 338). Plaintiffs submit that Dr. Greco may testify about Dr. Bonacci’s custom and prescribing practices under Rule 406. According to plaintiffs, Dr. Greco’s familiarity with Dr. Bonacci’s practices allows him to testify about the latter’s habit of passing manufacturer’s warnings about the drugs he prescribed to his patients as well as his practice not to prescribe drugs that carry a warning such as the one attached to his affidavit. (Docket Entry ##333 & 331-4). Dr. Greco’s affidavit also opines about the standard medical practice in Hazleton. The standard practice encompassed passing warnings to patients. The Federal Rules of Evidence distinguish between character evidence in Rule 404 and Rule 405, F.R.E., and habit evidence in Rule 406. Because different rules apply to each category, it is important to clarify the distinctions as applied to Dr. Greco’s statements. A habit “describes one’s regular response to a repeated specific situation.” Rule 406, F.R.E., Advisory Committee Notes; Weissenberger’s Federal Evidence Courtroom Manual, § 406 (7th ed. 2011) (“concept” of a habit “is best understood as a person’s regular practice of meeting a particular kind of situation with a specific type of responsive conduct”). Habit evidence “may be probative of ‘ “the regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn.” ’ ” United States v. Newman, 982 F.2d 665, 668 (1st Cir.1992) (quoting Advisory Committee Notes of Rule 406, quoting McCormick, Evidence § 195 at 826). In contrast, “Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness.” Rule 406, F.R.E., Advisory Committee Notes. Dr. Greco’s statement that, “Dr. Bonacci was regarded by myself, and other physi cians, as one of the best and most caring doctors in the area” (Docket Entry # 331-4, ¶ 9, sent. 3-5) is a statement about his character. Likewise, Dr. Greco’s deposition testimony describing “Dr. Bonacci’s character as being conservative, very compassionate and almost anal retentive” or his dedication to his patients (Docket Entry # 327-8, pp. 132-133 & 135-136) constitutes character evidence. Insofar as plaintiffs seek to rely on this evidence to establish Dr. Bonacci’s conduct on the particular occasions that he prescribed DES to plaintiffs’ mother, Rule 404(a) does not permit it. Subject to certain exceptions that do not apply to Dr. Greco’s statements, Rule 404(a) prohibits the admission into evidence “of a person’s character or character trait ... to prove that on a particular occasion the person acted in accordance with the character or trait.” Rule 404(a), F.R.E. Turning to the proposed habit evidence, Dr. Greco’s statements fall into the following categories: (1) statements of specific conduct that Dr. Bonacci dispensed DES and that he saw a prescription for DES written by Dr. Bonacci (Docket Entry # 331-7, pp. 110 & 131); (2) statements about his discussions with Dr. Bonacci about the risks and side effects of antibiotics or advances in antibiotics (Docket Entry # 331-4, ¶ 7; Docket Entry # 327-8, p. 107, In. 2-15); (3) statements about his discussions with Dr. Bonacci regarding unidentified patients’ concerns about the risks and side effects of medication (Docket Entry # 331^4, ¶¶ 4 & 6); (4) statements about his discussions with Dr. Bonacci concerning advances in medicine, “mutual problems,” an unidentified shared patient or the practice of medicine in general (Docket Entry # 331^4, ¶ 3, sent. 1) (Docket Entry # 327-8, p. 104, In. 3-7; p. 105, In. 20-24; p. 106, In. 20-24; p. 107, In. 1 & 16-24; p. 108, In. 1-18); and (5) opinions about Dr. Bonacci’s prescribing practices (Docket Entry # 331-4, ¶¶ 2 & 8; Docket Entry #327-8, pp. 133-135) and the standard medical practice in Hazleton (Docket Entry # 331-4, ¶ 9, sent. 1-2). These statements either attempt to provide evidence of Dr. Bonacci’s prescribing habits, opinions about the practice of medicine in Hazleton or Dr. Bonacci’s practices in particular and/or background or foundational evidence to support admission of such evidence. Plaintiffs also seek admission of the aforementioned testimony by two of Dr. Bonacci’s patients. Plaintiffs, as the parties offering the Rule 406 evidence, bear the burden of establishing the habitual nature of the practice. See United, States v. Newman, 982 F.2d at 668; Weil v. Seltzer, 873 F.2d 1453,1461 (D.C.Cir.1989). The two factors considered controlling in determining whether an individual’s behavior pattern “has matured into a habit” are the “ ‘adequacy of sampling and uniformity of response.’ ” United States v. Newman, 982 F.2d at 668 (quoting Rule 406 Advisory Committee Notes). Both “factors focus on whether the behavior at issue ‘occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances.’” Id. (quoting Weil v. Seltzer, 873 F.2d at 1460). “The requisite regularity is tested by the ‘ “ratio of reaction to situations.” ’ ” Id. (quoting Wilson v. Volks wagen of America, Inc., 561 F.2d 494, 512 (4th Cir.1977), and citing Weil v. Seltzer, 873 F.2d at 1461). Plaintiffs must therefore provide a sufficient foundation to assess the adequacy of the sampling. See id. (“[a]ppellant’s proffer failed to demonstrate the admissibility of the MacDonald testimony under Rule 406” and “provided no foundation for assessing the adequacy of the sampling”). “[T]he regularity of the conduct alleged to be habitual” or routine, here, Dr. Bonacci’s prescribing practices or the standard medical practices in Hazleton of sharing warnings with patients, must “rest on an analysis of instances numerous enough to support an inference of systematic conduct and to establish one’s regular response to a repeated specific situation.” Id. (internal quotation marks and brackets omitted). The testimony of two of Dr. Bonacci’s former patients (Docket Entry ## 331-5 & 331-6) falls significantly short of the requisite number of instances and uniformity of response from which to establish Dr. Bonacci’s prescribing practices. Ritz and Makowiec were Dr. Bonacci’s patients for a lengthy period of time. Dr. Bonacci, who was too busy to see Dr. Greco during the latter’s social visitfs] to his office, had significantly more than two patients to whom he prescribed medication. The instances of prescribing medications to Ritz and Makowiec are therefore not numerous enough to support a finding of habitual conduct. See id. at 669 (quoting G.M. Brod & Co. v. U.S. Home Corporation, 759 F.2d 1526, 1533 (11th Cir.1985), rejecting Rule 406 evidence because the “specific instances within experience of witness, when considered in light of thousands of unobserved similar instances, ‘falls far short of the adequacy of sampling and uniformity of response which are the controlling considerations governing admissibility’ ”). Turning to Dr. Greco’s testimony, plaintiffs wish to use his testimony to show that Dr. Bonacci would have heeded a manufacturer’s warning and not prescribed DES if the drug carried a warning similar to the one attached to Dr. Greco’s affidavit. According to plaintiffs, when faced with the situation of prescribing medication to his patients, Dr. Bonacci had a regular practice or habit of heeding a manufacturer’s warnings and either not prescribing the medication or sharing the negative warnings with his patients. Dr. Greco, however, has never seen or observed Dr. Bonacci prescribe medication. He lacks personal knowledge of Dr. Bonacci’s particular prescribing behavior of heeding a manufacturer’s negative warning. Dr. Greco never saw or witnessed Dr. Bonacci prescribe medication to a patient let alone see him prescribe DES. Dr. Greco is not a member of Dr. Bonacci’s staff and was not in a position to observe Dr. Bonacci prescribe medication. The statements in categories two through four do not adequately or sufficiently show similar instances of the behavior or practice at issue. Discussions about medical advances or the side effects of antibiotics between two physicians (as opposed to a physician and a patient) or about a shared patient are not evidence of similar instances let alone instances numerous enough to warrant the inference of Dr. Bonacci’s habitual conduct of not prescribing medications that carried negative warnings. See also G.M. Brod & Co., Inc. v. U.S. Home Corporation, 759 F.2d at 1533 (“Sierra’s testimony of specific instances of Home’s operation within his personal experience, when considered in the light of ... the significant differences between the types of contracts involved” and course of dealing “falls short of the adequacy of sampling and uniformity of response”); accord United States v. New man, 982 F.2d at 669 (quoting G.M. Brod & Co., Inc. v. U.S. Home Corporation, 759 F.2d at 1533). As direct instances of habit evidence, the testimony in categories two through four does not constitute part of the summary judgment record. The statements in category one that Dr. Greco saw “a prescription written by Dr. Bonacci for DES” and his professed knowledge that Dr. Bonacci dispensed DES (Docket Entry # 331-7, pp. 110 & 131) also fail to establish that the behavior occurred with sufficient regularity. As specific instances of conduct, these instances are not numerous enough, even including the two affidavits from Dr. Bonacci’s former patients, to support an inference of systemic conduct on the part of Dr. Bonacci in not prescribing medication with negative warnings. See United States v. Newman, 982 F.2d at 668. Lilly also argues that Dr. Greco’s testimony amounts to hearsay. The argument is well taken insofar as it applies to Dr. Greco’s testimony about Dr. Bonacci’s prescribing practices. Dr. Greco’s recitations of what Dr. Bonacci said to him are hearsay. Dr. Bonacci is not a party and, accordingly, his statements to Dr. Greco do not constitute party admissions. Dr. Greco has no firsthand knowledge of the prescribing practices of Dr. Bonacci. See, e.g., Weil v. Seltzer, 873 F.2d at 1461. Categories one and four, however, provide a foundational basis to support admissible evidence in the form of Dr. Greco’s lay opinion on the standard medical practice in Hazleton. Rule 406 is silent with respect to the method of proof to establish habit. The rule simply states that: Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Rule 406, F.R.E. Here, the proponents of the evidence do not rely on expert testimony as a means to prove habit. They do, however, proffer Dr. Greco’s lay opinions subdivided as: (1) statements of his opinion that Dr. Bonacci would not have prescribed DES or any medication if it contained certain negative warnings (Docket Entry # 331-4, ¶¶ 2 & 8) (Docket Entry # 327-8, pp. 133-135); and (2) statements of Dr. Greco’s opinion about “the standard medical practice” in Hazleton (Docket Entry # 331^4, ¶ 9, sent. 1-2). Rule 406 case law exemplifies a preference for proof of specific instances of conduct based on the witnesses direct observations. See Hall v. Arthur, 141 F.3d 844, 849 (8th Cir.1998) (affirming Rule 406 admission of testimony from dentist’s other patients who had personal knowledge of what the dentist told or did not tell them about risks for the same procedure the dentist performed on the plaintiff); Meyer v. United States, 638 F.2d 155, 156 (10th Cir.1980) (affirming Rule 406 admission of dentist’s own testimony of what he did to advise patients of risk); Weil v. Seltzer, 873 F.2d at 1460-1461 (unsuccessful attempt to introduce testimony of five former patients who had personal knowledge of how the defendant treated their allergies but no personal knowledge of how the defendant treated other patients). Rule 406 does not, however, exclude lay opinion evidence. As explained by one commentator: Rules 602 and 701 in combination provide that an opinion of a nonexpert witness is admissible if based upon personal knowledge and helpful to the trier of fact in determining a fact of consequence. Opinions of witnesses as to the routine practice of an organization or habit of an individual based upon personal knowledge of the witness should normally be permitted on such grounds. If undisputed, opinion testimony would avoid wasting time. Where in controversy, specific instances of conduct may in the discretion of the court be required to be disclosed as part of development of the witness’ basis for his opinion. Specific instances forming the basis of the witness’ opinion may of course be developed on cross-examination. Michael H. Graham, Handbook of Federal Evidence § 406:4 (6th ed. 2006). Exercising this court’s discretion, see generally 2 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 406.06[2] (2nd ed. 2012), Dr. Greco’s lay opinions may provide a proper means to establish habit or routine practice if they satisfy the requirements of Rule 701. Rule 701 governs the admission into evidence of a lay opinion. The lay opinion witness remains a fact witness as opposed to an expert witness. See Weissenberger’s Federal Evidence Courtroom Manual, § 701 (7th ed. 2011) (“Rule 701 governs the admissibility of opinion testimony by lay witnesses, more commonly referred to as ‘fact’ witnesses”). Unlike an expert’s opinion, a layman’s opinion must be “rationally based on the witness’s perception.” Rule 701(a), F.R.E.; see Rule 602, F.R.E.; 23 Charles Alan Wright & Kenneth W. Graham, Jr. Federal Practice and Procedure § 5276 (1980) (noting need to “show that his opinion or generalization is based on his personal knowledge”). The rule imposes additional conditions that the opinion testimony is helpful to determine a fact or clearly understand the witness’s testimony and is not based on scientific, technical or other specialized knowledge under Rule 702. Under the rule, courts allow “lay witnesses to express opinions about a business ‘based on the witness’s own perceptions and “knowledge and participation in the day-to-day affairs of the business.”’” United States v. Munoz-Franco, 487 F.3d 25, 35-36 (1st Cir.2007) (quoting United States v. Polishan, 336 F.3d 234, 242 (3rd Cir.2003), with internal brackets omitted); see United States v. Valdivia, 680 F.3d 33, 50-51 (1st Cir.2012) (drug enforcement agent allowed to give lay opinion about telephone account at issue based on his prior drug investigations and experience “that traffickers often list unrelated third parties as their telephones’ subscribers”). For previously stated reasons, Dr. Greco lacks firsthand knowledge of Dr. Bonacci’s prescribing practices. Accordingly, there is an inadequate foundation under Rule 701(a) to consider Dr. Greco’s opinion that Dr. Bonacci would not have prescribed DES if it contained a warning similar to the one attached to Dr. Greco’s affidavit. (Docket Entry # 331^4, ¶ 2). Turning to the existence of the requisite knowledge under Rule 701(a) as a basis to consider Dr. Greco’s opinion about standard medical practice in the Hazleton area, he practiced medicine as a surgeon in the area from 1956 to 1986. He is intimately familiar with the small community of doctors having attended monthly staff meetings and conducted rounds at the two hospitals. He therefore has the requisite knowledge within the meaning of Rule 701(a). The opinion is helpful to determine the proximate cause issue in Count I. Routine medical practice in the mid to late 1950s in Hazleton is decidedly less complex than it is today. (Docket Entry # 327-8, p. 103). As such, it is not based on knowledge within the scope of Rule 702. As evidence of habit, although a patient’s medical history is not routine, a manufacturer’s warnings about a medication are established by product literature disclosed and communicated by the manufacturer or contained in established authorities such as the Physicians’ Desk Reference to Pharmaceutical Specialities and Biologicals (1952) (Docket Entry # 331-3) or the American Druggist Blue Book (1952) (Docket Entry # 327-4). The opinion could therefore be admissible to show the practice of the small group of doctors in the local community allowing the jury to infer the practice of Dr. Bonacci. Finally, this determination to include Dr. Greco’s lay opinion on the standard medical practice in Hazleton as habit evidence under Rule 406 as part of the summary judgment record or that such a practice in the Hazleton community exists and qualifies as Rule 406 habit evidence is not the law of this case with respect to the proceedings at trial based on a different record. See Fisher v. Trainor, 242 F.3d 24, 29 n. 4 (1st Cir.2001) (“ ‘initial denial of summary judgment does not foreclose, as the law of the case, a subsequent grant of summary judgment on an amplified record’ ”). The ruling also does not foreclose the possibility of admitting Dr. Greco’s lay opinion testimony for purposes other than to show the routine practice of medicine in the Hazleton under Rule 406. See generally United States v. Valdivia, 680 F.3d at 50-51 (discussing lay opinion of drug enforcement agent without referring to Rule 406). As a final matter, at the November 2012 hearing, plaintiffs opposed the motion to strike as outside the parameters of a procedural order. The order limited the number of pages of the memorandum in support of summary judgment, the LR. 56.1 statement and the “[sjupporting exhibits and affidavits.” (Docket Entry # 319). It did not limit Lilly’s ability to file a motion to strike exhibits filed by plaintiffs to support their opposition. See generally Iacobucci v. Boulter, 193 F.3d 14, 19 (1st Cir. 1999) (“[a] trial court ordinarily is the best expositor of its own orders”). II. MOTION FOR PARTIAL SUMMARY JUDGMENT Lilly seeks partial summary judgment on the duty to warn negligence count due to the absence of evidence that Lilly’s failure to warn that DES increases the risk of breast cancer in a patient’s female offspring proximately caused plaintiffs’ breast cancer. Under the “learned intermediary” rule, plaintiffs must show “that if Lilly had warned Dr. Bonacci that DES increased the risk of breast cancer in a patient’s female offspring, then Dr. Bonacci would not have prescribed the drug,” according to Lilly. (Docket Entry # 325). Plaintiffs assert that Pennsylvania law applies a rebuttable “heeding presumption” because they were exposed to DES without their consent, there is no evidence that Dr. Bonacci ignored Lilly’s warnings and there is evidence that he deferred to manufacturers’ warnings. Plaintiffs submit it is a question for the jury as to whether Dr. Bonacci had a habit, custom or practice of reading and heeding warnings for drugs he prescribed and whether Dr. Bonacci would not have prescribed DES to plaintiffs’ mother if he was given a proper warning. It is also a jury question whether, if Dr. Bonacci shared an adequate warning with plaintiffs’ mother, she would have refused to take the drug, according to plaintiffs. (Docket Entry # 333). STANDARD OF REVIEW Summary judgment is designed “ ‘to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.’ ” Davila v. Corporación De Puerto Rico Para La Difusión Publico, 498 F.3d 9, 12 (1st Cir.2007). It is appropriate when the summary judgment record shows “there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” American Steel Erectors, Inc. v. Local Union No. 7, International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir.2008). “ ‘A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.’ ” OneBeacon America Insurance Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir .2012). Facts are viewed in favor of the nonmovants, i.e., plaintiffs. Noonan v. Staples, Inc., 556 F.3d 20, 23 (1st Cir.2009). “Where, as here, the nonmovant has the burden of proof and the evidence on one or more of the critical issues in the case is not significantly probative, summary judgment may be granted.” Davila v. Corporación De Puerto Rico Para La Difusión Publica, 498 F.3d at 12 (internal quotation marks, citation and ellipses omitted); accord OneBeacon America Insurance Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d at 241 (on issues where movant does not have burden of proof, movant can obtain summary judgment by showing “ ‘an absence of evidence to support the nonmoving party’s case’ ”); Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006) (if moving party makes preliminary showing, nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trial-worthy issue” with respect to each element on which he “would bear the burden of proof at trial”) (internal quotation marks and citations omitted). Nonmovants such as plaintiffs “ ‘may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.’ ” Rockwood v. SKF USA Inc., 687 F.3d 1, 9 (1st Cir.2012). “[Cjonclusory allegations, improbable inferences, and unsupported speculation” however are “insufficient to discharge the nonmovant’s burden.” Id. (internal brackets supplied and internal quotation marks omitted); see Chiang v. Verizon New England Inc., 595 F.3d 26, 30 (1st Cir.2010) (noting requirement to ignore “ ‘conclusory allegations, improbable inferences, and unsupported speculation’ ” on summary judgment). Finally, uncontroverted statements of fact in a LR. 56.1 statement comprise part of the summary judgment record. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir.2003) (the plaintiffs failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment). FACTUAL BACKGROUND In addition to Dr. Greco’s lay opinion, the summary judgment record shows the following. Plaintiffs’ mother suffered a miscarriage in 1949. She gave birth to Mary Ann Killian (“Killian”) in 1950. In 1951, she experienced a second miscarriage. Thereafter, she gave birth to McNeely, Andrews, Fecho and Francine Melnick in 1952, 1953, 1955 and 1958. Plaintiffs’ mother was a patient of Dr. Bonacci’s throughout this time period. Dr. Bonacci did not prescribe DES to plaintiffs’ mother during her first pregnancy. For purposes of the present motion, she did ingest Lilly’s DES during the pregnancies of each of the four plaintiffs. Dr. Bonacci is deceased and has not provided any testimony or documentation relative to his treatment of plaintiffs’ mother. During the 1950s, Lilly recommended DES treatment for threatened abortion as well as repeated or habitual abortion. (Docket Entry # 327-6). The phrase “habitual abortion” denotes three or more consecutive abortions. Lilly also recommended DES therapy “to prevent accidents of pregnancy.” (Docket Entry # 331-3). Lilly’s literature supplied to physicians did not include any warning about the risk that DES could cross the placenta and affect a baby in útero. (Docket Entry ## 331-2, 327-5 & 327-6). Lilly’s literature provided to physicians also noted that, “In the absence of hypothyroidism, probably the most effective agent” for treating habitual abortion is DES. (Docket Entry # 331-2). DISCUSSION Count I raises a negligent duty to warn claim against Lilly as the manufae turer of DES. As a federal court sitting in diversity and adjudicating a state law claim, this court is bound by the state’s substantive law as pronounced by the state’s highest court. See Barton v. Clancy, 632 F.3d 9, 17 (1st Cir.2011). Turning to the pronouncements of the Pennsylvania Supreme Court, section 388 of the Restatement (Second) of Torts (“the Restatement”) provides the applicable standard of care in a negligent failure to warn claim against the manufacturer of a prescription drug. Hahn v. Richter, 543 Pa. 558, 673 A.2d 888, 890 (1996) (product liability action against manufacturer of prescription drug); accord Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206, 220 n. 8 (1971) (action against pediatrician and osteopath for negligently prescribing drug and against manufacturer for negligent failure to warn). Under section 388, “the supplier has a duty to exercise reasonable care to inform those for whose use the article is supplied of the facts which make it likely to be dangerous.” Incollingo v. Ewing, 282 A.2d at 220 n. 8. Lilly seeks to apply the learned intermediary doctrine first adopted in Incollingo v. Ewing, 282 A.2d at 206. See Mazur v. Merck & Co., Inc., 964 F.2d 1348, 1356 (3rd Cir.1992) (“learned intermediary rule was first adopted by the Pennsylvania Supreme Court in Incollingo v. Ewing, 282 A.2d at 206”). As set forth in Incollingo, the rule instructs that when a drug is “available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.” Incollingo v. Ewing, 282 A.2d at 220. Two decades after Incollingo, the Pennsylvania Supreme Court reiterated the rule that a manufacturer’s warning for a prescription drug runs to the prescribing doctor as opposed to the patient. Coyle by Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383, 1385-1386 (1991) (citing Incollingo v. Ewing, 282 A.2d at 220). The Coyle court elaborated upon the rule in the following manner: “it is the duty of the prescribing physician to be fully aware of (1) the characteristics of the drug he is prescribing, (2) the amount of the drug which can be safely administered, and (3) the different medications the patient is taking. It is also the duty of the physician to advise the patient of any dangers or side effects associated with the use of the drug as well as how and when to take the drug. The warnings which must accompany such drugs are directed to the physician rather than to the patient-consumer as ‘[i]t is for the prescribing physician to use his independent medical judgment, taking into account the data supplied to him by the manufacturer, other medical literature, and any other source available to him, and weighing that knowledge against the personal medical history of his patient, whether to prescribe a given drug.’ ” Id. at 1385-1386 (quoting with approval Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 523 A.2d 374, 378 (Pa.Super.1987), quoting Leibowitz v. Ortho Pharmaceutical Corporation, 224 Pa.Super. 418, 307 A.2d 449, 457 (1973)). The learned intermediary doctrine undeniably poses an obstacle to plaintiffs in estabhshing causation. Plaintiffs do not dispute that proximate cause is a required element in a negligent failure to warn claim against a manufacturer. See Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d 356, 368 (Pa.Super.2009) (“[pjroximate cause is an essential element in failure-to- warn cases involving prescription medications”); accord Cochran v. Wyeth, Inc., 3 A.3d 673, 676 (Pa.Super.2010) (same); Owens v. Wyeth, 2010 WL 2965014, at *2 (Pa.Super. July 26, 2010) (same) (unpublished); Lineberger v. Wyeth, 894 A.2d 141, 150 (Pa.Super.2006) (same). Instead, they seek to impose the rebuttable heeding presumption primarily based on a number of asbestos cases. These cases do not involve a manufacturer’s alleged failure to issue proper warnings for prescription drugs. Rather, they involve strict liability causes of action under section 402A of the Restatement against manufacturers based on an inadequate warning. The leading asbestos case plaintiffs cite that applies the rebuttable heeding presumption, Coward, 729 A.2d at 621, holds that: [I]n cases where warnings or instructions are required to make a product non-defective and a warning has not been given, the plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning, and that the defendant, in order to rebut that presumption, must produce evidence that such a warning would not have been heeded. Id. Because the plaintiffs in Coward had little choice but to confront the known risk of asbestos exposure in their places of employment, the court imposed a rebuttable presumption that they would have followed an adequate warning. Id. at 620-621. The other asbestos cases plaintiffs cite, all decisions by lower courts, adhere to Coward and apply the rebuttable heeding preemption in strict liability failure to warn cases against the manufacturer. See Lonasco v. A-Best Products Co., 757 A.2d at 377 (quoting and applying holding in Coward, 729 A.2d at 621, in strict liability asbestos failure to warn case against manufacturer); Chicano v. General Electric Co., 2004 WL 2250990, at *5-6 & *11 (quoting and applying holding in Coward, 729 A.2d at 621, in asbestos strict liability case against manufacturer). Plaintiffs reason that the lack of choice that applied to the toxic, asbestos exposures to the plaintiffs in Coward, Chicano and Lonasco applies to plaintiffs’ involuntary exposure to DES in útero. (Docket Entry # 333, pp. 5-8). Plaintiffs also rely on Viguers v. Philip Morris USA, Inc., 837 A.2d 534 (Pa.Super.2003). Viguers holds “that the heeding presumption does not apply where the plaintiff, a smoker, made “the voluntary choice ... to begin and continue smoking tobacco” despite the existence of federally-mandated warnings on cigarette packages. Id. at 538 (emphasis added). Plaintiffs’ reasoning is misplaced because in prescription drug cases the manufacturer’s duty to warn goes to the learned intermediary, the physician, not to the patient. The physician has the choice of whether to prescribe a drug after weighing the data and warnings supplied by the manufacturer against his patient’s medical history and taking into account other relevant concerns. See Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d at 368-369. In asbestos failure to warn cases, there is no learned intermediary exercising his independent medical judgment. Furthermore, strict liability applies as opposed to negligence under section 388. See Anderson v. Wyeth, 2005 WL 1383174, at *4 (Pa.Com. PI. June 7, 2005). Plaintiffs also point out that the Third Circuit in Pavlik v. Lane Ltd/Tobacco Ex porters International, 135 F.3d 876 (3rd Cir.1998), “predict[s] that Pennsylvania would adopt a rebuttable heeding presumption as a logical corollary to comment j” to section 402A of the Restatement. Id. at 883. Comment j states that, “Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Restatement (Second) of Torts, § 402A, cmt. j. The corollary to this rule “presume[s] that, when no warning or an inadequate warning is provided, the end-user would have read and heeded an adequate warning had one been given by the manufacturer.” Pavlik v. Lane Ltd/Tobacco Exporters International, 135 F.3d at 883. Pavlik does not require applying a heeding presumption in the case at bar because the court made a prediction in a strict liability case against a distributer and manufacturer of a brand of butane fuel. Here again, this case involves a negligent failure to warn claim under section 388 against the manufacturer of a prescription drug in which the learned intermediary customarily exercises “ ‘independent medical judgment,’ ” Coyle by Coyle v. Richardson-Merrell, Inc., 584 A.2d at 1386. Plaintiffs additionally discount the reach of a series of cases cited by Lilly. See Gronniger v. American Home Products Corporation, 2005 WL 3766685, at *5 (Pa. Com.Pl. Oct. 21, 2005) (rejecting heeding presumption as applied to manufacturer of prescription diet drugs in negligent failure to warn action); Leffler v. American Home Products, 2005 WL 2999712, at *5 (Pa.Com.Pl. Oct. 20, 2005) (same); Adams v. Wyeth, 2005 WL 1528656, at *1 (Pa. Com.Pl. June 13, 2005) (rejecting heeding preemption in negligent failure to warn claim against manufacturer of prescription diet drug, Pondimin); Anderson v. Wyeth, 2005 WL 1383174, at *6 (Pa.Com.Pl. June 7, 2005) (rejecting application of heeding presumption to negligent failure to warn claim against manufacturer of Redux and other diet drugs). Leffler as well as Gronniger accurately explain that, “Pennsylvania courts have consistently declined to apply any heeding presumption in pharmaceutical and most other product liability cases, strictly limiting the application of any such presumption to claims arising from involuntary workplace exposure to asbestos.” Leffler v. American Home Products, 2005 WL 2999712, at *5 (emphasis omitted); accord Gronniger v. American Home Products Corporation, 2005 WL 3766685, at *5 (same). Plaintiffs correctly point out that the same judge decided all four cases in the course of a six month time period involving the same or similar prescription diet drugs. Accepting the resulting limitation on the precedential reach of these decisions, proximate cause remains “an essential element in failure to warn cases involving prescription medications.” Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909, 923 (Pa.Super.2011); Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d at 368. As stated in both these Pennsylvania appellate court cases adjudicating negligent failure to warn cases against prescription drug manufacturers, “Pennsylvania law requires that ‘there must be some reasonable connection between the act or omission of the defendant and the injury suffered by the plaintiff.’ ” Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d at 924 (quoting Demmler v. SmithKline Beec ham, Corp., 448 Pa.Super. 425, 671 A.2d 1151, 1155 (1996), which involved strict liability defective warning claim against prescription drug manufacturer); Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d at 368 (same). More specifically, in the context of a negligence duty to warn claim, “ ‘plaintiffs must further establish proximate causation by showing that had defendant issued a proper warning to the learned intermediary, he would have altered his behavior and the injury would have been avoided.’ ” Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d at 368 (quoting Demmler, 671 A.2d at 1155); accord Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d at 924 (“the plaintiff must establish that if defendant ‘had issued a proper warning to the learned intermediary, he would have altered his behavior and the injury would have been avoided’ ”) (quoting Demmler, 671 A.2d at 1155); Cochran v. Wyeth, Inc., 3 A.3d at 676-677. In the case at bar, plaintiffs must provide sufficient facts in suitable evidentiary form with respect to proximate causation to allow a jury to find in their favor. Construing the record in plaintiffs’ favor, including reasonable inferences, Dr. Greco, a lay witness, opines that the standard medical practice in Hazleton in and around the mid to late 1950s was for doctors to pass warnings from manufacturers of prescription drugs to their patients. Drawing reasonable inferences, Dr. Bonacci, a busy and therefore well known family physician in the area, adhered to this standard medical practice in Hazleton. Plaintiffs’ mother, having experienced two miscarriages, sought therapeutic treatment from Dr. Bonacci. Again drawing reasonable inferences in plaintiffs’ favor, Dr. Bonacci prescribed Lilly’s DES which plaintiffs’ mother ingested. Lacking information about DES, Dr. Bonacci did not warn plaintiffs’ mother of the risk. In accordance with the standard medical practice in Hazleton, the jury can reasonably infer that Dr. Bonacci would have shared the warning with plaintiffs’ mother. It is also reasonable to infer that plaintiffs’ mother would have deferred to the warning Dr. Bonacci presented and, having successfully conceived Killian, would not have ingested the DES. CONCLUSION In accordance with the foregoing discussion, the motion to strike (Docket Entry #337) is ALLOWED in part and DENIED in part. The motion for partial summary judgment (Docket Entry # 324) is DENIED. . Plaintiffs’ pretrial memorandum does not designate Dr. Greco as an expert witness. (Docket Entry #350, p. 31). At the December 12 and 13, 2012 conferences, plaintiffs' counsel represented that Dr. Greco was a fact witness. This court stated its agreement from the bench during the December 13, 2012 conference. .Lilly’s additional argument that the affidavit testimony (Docket Entry # 331-4) contradicts Dr. Greco’s prior deposition testimony is not well taken. It is true that where a party gives "clear answers to unambiguous deposition questions, he or she cannot raise an issue of fact by submitting a subsequent affidavit that merely contradicts the deposition testimony.” Lowery v. AIRCO, Inc., 725 F.Supp. 82, 85-86 (D.Mass.1989); accord Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.1994); Chapman Ex Rel. Estate of Chapman v. Bernard’s, Inc., 167 F.Supp.2d 406, 419 (D.Mass.2001). "Variations in a witness’s testimony and any failure of memory throughout the course of discovery create an issue of credibility” which is properly resolved by the finder of fact. Tippens v. Celotex Corporation, 805 F.2d 949, 954 (11th Cir. 1986) (reversing allowance of summary judgment and finding that affidavit was not inherently inconsistent with deposition testimony and should have been considered). Whereas certain portions of the deposition testimony (Docket Entry # 327-8, pp. 50-51 & 100-102) vary from the affidavit, other portions (Docket Entry #327-8, pp. 103-108 & 131-133) coincide with the affidavit. . Moreover, during a December 13, 2012 conference, plaintiffs’ counsel represented that she first disclosed these two individuals to Lilly in May or June 2012. . This court takes judicial notice of the locations of Drums, Tresckow and Hazleton, Pennsylvania. See United States v. Bello, 194 F.3d 18, 23 (1st Cir.1999) ("[gjeography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial”). . The relevant portion of the deposition testimony reads: Q. Do you know, as you sit here today, what specific medicines [Dr. Bonacci] dispensed? A. I know one of the medicines he dispensed was DES, diethylstilbestrol, I know that as a matter of fact. (Docket Entry # 331-7, p. 110). At a later point during the deposition, Dr. Greco testified as follows: Q. Did you have the opportunity to ever actually see a prescription written by Dr. Bonacci for DES? A. Yes, I testified to that. (Docket Entry # 327-8, p. 130). . In the 1950s, Pennsylvania law allowed licensed physicians to dispense medication. (Docket Entry # 327-8). . The attached hypothetical warning reads: The safety and efficacy of DES is still under investigation. Although there are reports that DES may be helpful in maintaining a pregnancy, other reports question its efficacy. Both human and animal studies report that natural as well as synthetic estrogens (1) cross the placenta, (2) cause anomalies in the sexual tissue of a developing fetus, [and] (3) affect the breast of the newborn, presenting an increased risk of vaginal or breast neoplasm. Synthetic and natural estrogens are a known cause of cancer. Further investigation is warranted. There are no controlled studies which support either efficacy or safety. (Docket Entry # 331-4). . Dr. Bonacci died in the 1980s. Dr. Greco retired in 1986. . As discussed infra, such first hand knowledge about the practice of medicine in the Hazleton area provides an adequate foundation from which to provide a lay opinion about the standard medical practice in Hazleton in and around the mid to late 1950s. . Dr. Greco’s averment that "one of Dr. Bonacci's greatest concerns was ensuring that his patients and [Dr. Greco’s] patients were well informed of the risks and benefits of their medications” (Docket Entry #331-4, ¶ 5) falls into a grey area between character and habit evidence. If construed as character evidence, it is not admissible under Rule 404. It is likewise inadmissible as habit evidence for reasons discussed infra. (Docket Entry # 331-4, ¶ 9). . The latter sentence specifies that admissibility does not require corroborating evidence or an eyewitness. Rule 406 therefore "abrogated older authority that habit evidence was not admissible in certain cases if there was an eyewitness to the event.” 2 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 406.05 (2nd ed. 2012). . Dr. Greco provides additional descriptions of the medical practice in the Hazleton area (Docket Entry # 327-8, pp. 103 & 106) which, together with other evidence in the record, provides sufficient foundation for the aforementioned lay opinion regarding standard medical practice of local doctors practicing in the Hazleton area. . Although the testimony of the habit bearer would also suffice, see, e.g., United States v. Arredondo, 349 F.3d 310, 315 (6th Cir.2003), Dr. Bonacci died in the mid-1980s. . With respect to the lay opinion of the standard medical practice in Hazleton (Docket Entry # 331-4, ¶ 9), the Hazleton community of doctors must constitute an organization or group within the meaning of Rule 406. See 2 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 406.03[2] (2nd ed. 2012) (entity must be cohesive organization to admit routine practice under Rule 406); Rule 406, F.R.E., Advisory Committee Notes ("[ejquivalent behavior on the part of a group is designated ‘routine practice of an organization' in the rule”); see also United States v. Rangel-Arreola, 991 F.2d 1519, 1523 (10th Cir.1993) ("loose-knit group” of truck drivers "with no apparent structure or routine” was not an organization or group within the meaning of Rule 406). More specifically, the entity in question "must be a cohesive organization marked by structure and routine.” 2 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 406.03[2] (2nd ed. 2012) (citing United States v. Rangel-Arreola, 991 F.2d at 1523); see generally Elias v. Suran, 35 Mass.App.Ct. 7, 616 N.E.2d 134, 137 (1993) (applying Massachusetts law). Here, the practice in the Hazleton community of local doctors differed from the practice in “big cities.” (Docket Entry #327-8, p. 103). Doctors followed their patients in the hospital. It was a rule in the two local hospitals to attend monthly staff meetings. (Docket Entry # 327-8, p. 105). Dr. Greco and Dr. Bonacci were members of that group inasmuch as they saw each other at these meetings. “It was a small community.” (Docket Entry #327-8, pp. 106-107). For purposes of summary judgment only, this court finds that the group qualifies as an organization. . The rule reads as follows: Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a)rationally based on the witness’s perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Rule 701, F.R.E. . The parties correctly agree that Pennsylvania law applies to Count I. . The Coyle court refused to extend strict liability under section 402A of the Restatement to pharmacists dispensing prescription drugs. Id. at 1386 n. 1 & 1387. . Coward v. Owens-Coming Fiberglas Corporation, 729 A.2d 614 (Pa.Super.1999); Lonasco v. A-Best Products Co., 757 A.2d 367 (Pa.Super.2000); Chicano v. General Electric Co., 2004 WL 2250990 (E.D.Pa. Oct. 5, 2004). . The Pennsylvania Supreme Court granted an appeal in part in Daniel limited to a separate issue. Daniel v. Wyeth Pharmaceuticals, Inc., 32 A.3d 1260 (Pa.2011) (Nos. 318 EAL 2011, 319 EAL 2011).

ORDER ON PLAINTIFF’S MOTIONS TO COMPEL PAUL W. BONAPFEL, Bankruptcy Judge. The Chapter 7 Trustee in this adversary proceeding asserts that the Debtor, Frances Foster Parker, owned real estate that the Defendants, the Debtor’s son and daughter-in-law, leased from her for 60 months under a written lease dated February 9, 2007, for use in their business known as Executive Auto. The lease provided for payment of monthly rent of $5,800 plus taxes and insurance. (Complaint, Exhibit “A”). The Trustee contends that the parties executed a modification to the lease dated October 7, 2008. (Complaint ¶ 16). The modification provided for the tenant to pay, in lieu of rent as set forth in the original lease, loan payments on the debt secured by the property directly to the lender, insurance, taxes, and maintenance on the building. (Complaint, Exhibit “F”). The Trustee asserts that the modification effected a prepetition transfer of property of the Debtor to the Defendants. Counts I and II of the complaint seek avoidance of the modification as an actually or constructively fraudulent transfer under Georgia law, O.C.G.A. §§ 18-2-74 and 18-2-75, under the provisions of 11 U.S.C. § 544 (Count I) or under 11 U.S.C. § 548 (Count II). Alternatively, Count III alleges that the Defendants created the modification document after he made demand for payment of rent under the original lease in a conspiracy to defraud the Trustee and the Debtor’s creditors by avoiding the payment of rent due. (Complaint ¶¶ 33). The Trustee also seeks recovery of punitive damages (Count IV) and attorney’s fees (Count V). The Trustee requested that the Defendants produce their federal tax returns for the years 2007 through 2011. These returns are relevant to the issues here, the Trustee asserts, because they would presumably show any deductions that the Defendants took on account of payment of rent under the lease and, therefore, provide proof of payments the Defendants actually made. In response to the Trustee’s motion to compel the production of their federal tax returns, the Defendants state that they have not filed the returns for the years in question. (Docket No. 47 at 2). The Defendants’ position contradicts the deposition testimony of Mr. Parker that he and his wife had filed joint tax returns for the years in question and had not taken any deductions with regard to payments on the mortgage loan, insurance, or taxes. (Docket No. 50 at 7-8). The Defendants obviously cannot produce tax returns if they do not have them; if they did not file them, they obviously do not have them. In these circumstances, the Trustee seeks an order compelling the Defendants to execute and deliver to the Internal Revenue Service a Form 4506, which would grant permission to the Internal Revenue Service to release to them copies of the tax returns. (Docket Nos. 39, 40). The Defendants oppose this requirement because submission of Form 4506 would alert the IRS to their failure to file returns and could subject them to potential civil and criminal consequences. (Docket No. 47 at 5-6). The Court must address two questions. First, it must determine whether the tax returns, assuming they exist, are discoverable. If so, the Court must then determine whether it may compel the Defendants to execute Form 4506 to obtain copies of them, if they exist. I. Discovery of Tax Returns Courts are understandably reluctant to permit the discovery of federal tax returns as a routine matter. Because tax returns contain highly sensitive information, compelled disclosure intrudes on the taxpayer’s privacy concerns and may threaten “the effective administration of our federal tax laws given the self-reporting, self-assessing character of the income tax system.” Nevertheless, a federal tax return is discoverable if it contains information relevant to the issues and the information in the returns is not otherwise readily obtainable. The relevance of the tax returns, if filed, is that they would show the amounts, if any, of the deductions that the Defendants took for rent as a business expense. As such, the returns are relevant to the issues here because they could provide evidence of what the defendants actually paid. Under the theories of the Trustee’s complaint, however, the amount of rent actually paid is relevant only for the years 2007 and 2008. In this regard, the Trustee alleges that the Defendants did not pay rent due under the terms of the lease after the date of the modification. (Complaint ¶¶ 16). The Trustee also alleges that the Defendants created the modification after he made demand for the rent due under the original lease to defraud the Trustee and the Debtor’s creditors by avoiding the payment of the rent. (Complaint ¶¶ 33-35). Both theories thus assert that, after the date of the modification, the Defendants did not pay rent as the original lease required. This is the same position the Defendants take. Consequently, whether the Defendants actually paid rent as the original lease requires during the years 2009 through 2011 is not an issue in this proceeding. It follows that the tax returns for those years can lead to no relevant evidence on this issue and are not subject to discovery unless they are relevant to some other issue. Although the Trustee has not identified any other basis on which information in the returns is relevant to a disputed issue, the Trustee contends that the nonexistence of the tax returns is relevant to the question of whether actual fraud occurred. The Trustee’s theory is that proof of the nonexistence of the returns bears on the credibility of Mr. Parker in view of his deposition testimony that he and his wife had filed joint returns. As an initial matter, whether the Defendants did or did not file tax returns is not material to any substantive issue in this proceeding. The questions are what payments the Defendants made and when they executed the modification, not whether or how they reported any payments they did make to the Internal Revenue Service. Because it does not matter how the Defendants reported any payments they made, the nonexistence of the returns does not prove or disprove any material fact at issue in this proceeding. The credibility of a witness, of course, is always a relevant question in an adversary proceeding. But confirming the nonexistence of the tax returns does not add anything to the credibility issue here in view of the fact that Mr. Parker has already taken contradictory positions as to their filing. A party may impeach a witness with a prior inconsistent statement, but not by attempting to prove that a witness’ statement with regard to a non-material matter is not true through other evidence. Thus, the tax returns are not relevant under the theory that their nonexistence would lead to the discovery of admissible evidence in this proceeding. The second requirement for the discovery of federal tax returns is a showing that the information in the returns is not otherwise readily obtainable. The Trustee seeks the returns here to obtain evidence with regard to whether the Defendants made payments in accordance with the terms of the original lease prior to the date of its modification. What their tax returns show as deductions for rent as a business expense for the years in question may tend to prove what they did pay. The Trustee might, of course, obtain evidence of payments through the testimony of the Defendants who made them and the Debtor who received them. Further evidence with regard to rental payments in 2007 and 2008 could also exist in properly maintained and fully accurate records of the Defendants and of the Debtor. Presumably, such evidence does not establish that the Defendants made the payments, and they contend that they did not. Otherwise, the Defendants could avoid this discovery dispute by conceding that they made payments as the Trustee asserts or producing documentary evidence to that effect. These alternative sources of evidence, of course, are peculiarly within the knowledge and control of the Defendants and the Debtor, Mr. Parker’s mother. Tax returns for 2007 and 2008 provide a readily available way for the Trustee to obtain evidence to confirm or refute the position of the Defendants. On the other hand, it appears that the information in the tax returns is not “readily obtainable” through any alternative source in view of the relationships among the Defendants and the Debtor and the interests of the parties. In the circumstances of this proceeding, the Court concludes that the 2007 and 2008 tax returns contain relevant information that is not otherwise readily obtainable. As such, the returns are discoverable. II. Execution of Form 4506 Rule 34 of the Federal Rules of Civil Procedure, applicable under Fed. R. Bankr.P. 7034, requires the production of discoverable documents that are in a party’s “possession, custody, or control.” A document is in the possession, custody, or control of a party not only when a party has actual possession, but also when it has the legal right to obtain the documents on demand. Rule 34 requires a party to make a good faith effort to obtain responsive documents that it has the legal right to obtain and to produce any documents that it acquires as a result of that effort. In accordance with these principles, courts have consistently ruled that Rule 34 imposes a duty on a party to execute a Form 4506 to obtain discoverable tax returns and to produce them when the taxpayer does not have possession of them. The situation here, however, is somewhat different because the Defendants resist execution of a Form 4506 on the ground that they did not file the tax returns. If the Court accepted the Defendants’ factual position, the Court would be faced with an apparently novel legal question: whether Rule 34 requires a party to execute a Form 4506 with regard to tax returns that are not in existence. The parties have cited no cases addressing this issue, and the Court’s independent research has not found any, either. But the Court need not consider that issue here in view of Mr. Parker’s deposition testimony that he and his wife had filed joint returns for the years in question. Mr. Parker can hardly expect the Court to resolve the factual question of whether he filed the returns when the evidence consists of his own conflicting statements. Rather, the appropriate way to determine whether he and his wife filed the returns is for him to exercise the control he has to request copies of them from the Internal Revenue Service. The Court will, therefore, grant the Trustee’s motions to compel the Parkers to produce their tax returns for the years 2007 and 2008. If, as Mr. Parker now asserts, the returns do not exist because the did not file them, they may meet their obligations under Rule 34 by providing appropriate documentary evidence to the Trustee that they have submitted a Form 4506 to the Internal Revenue Service for each of the years 2007 and 2008 and that the IRS has reported that it has no record of the returns. The Parkers shall comply with this Order within 30 days from the date of this Order, subject to extension upon his showing that they promptly and properly submitted Form 4506 but have not yet received a response from the IRS. If the Parkers declines to comply with this Order, the Court will consider the imposition of appropriate sanctions. Sanctions may include evidentiary determinations that the Parkers filed federal income tax returns for the years 2007 and 2008 and that the tax returns reflected deductions from income for business expenses in the amount of the rent set forth in the original lease dated February 9, 2007, through the date of the modification. IT IS ORDERED. . The Trustee does not seek to avoid the modification as a postpetition transfer under 11 U.S.C. § 549 to the extent that the parties executed it after the filing of the Debtor’s bankruptcy petition. . See, e.g., Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397, 1411 (5th Cir.1993), citing Commodity Futures Trading Commission v. Collins, 997 F.2d 1230, 1233 (7th Cir.1993). . See, e.g., F.D.I.C. v. LeGrand, 43 F.3d 163, 172 (5th Cir.1995); Scott v. Arex, Inc., 124 F.R.D. 39, 41 (D.Conn.1989) United States v. Bonanno Organized Crime Family of La Cosa Nostra, 119 F.R.D. 625, 627 (E.D.N.Y.1988); S.E.C. v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y.1985). See also St. Regis Paper Co. v. United States, 368 U.S. 208, 218-219, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (noting in dicta that tax returns are discoverable). . See, e.g., F.D.I.C. v. LeGrand, 43 F.3d 163, 172 (5th Cir.1995); United States v. Bonanno Organized Crime Family of La Cosa Nostra, 119 F.R.D. 625, 627 (E.D.N.Y.1988); S.E.C. v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y.1985). . Searock v. Stripling, 736 F.2d 650, 653-54 (11th Cir.1984); accord, e.g., In re Citric Acid Litigation, 191 F.3d 1090, 1107 (9th Cir.1999); In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995) (citing Resolution Trust Corp. v. Deloitte & Touche, 145 F.R.D. 108, 110 (D.Colo.1992)); Scott v. Arex, Inc., 124 F.R.D. 39, 41 (D.Conn.1989); In re Wright, 2005 WL 6488101, *2-3 (Bankr.N.D.Ga.2005) (Drake, J.). . Searock v. Stripling, 736 F.2d 650, 654 (11th Cir.1984); accord, Sciele Pharma, Inc. v. Brookstone Pharmaceuticals, L.L.C., 2011 WL 3844891, *4 (N.D.Ga.2011) (Carnes, J.). . Smith v. Mpire Holdings, LLC, 2010 WL 711797 (M.D.Tenn.2010); Butler v. Exxon Mobil Ref. and Supply Co., 2008 WL 4059867 (M.D.La.2008); Thai v. Miller Truck Lines, Inc., 2006 WL 2349605 (W.D.La.2006); In re Wright, 2005 WL 6488101, *3 (Bankr.N.D.Ga. 2005) (Drake, L).

GRIFFIN, Circuit Judge. Petitioner appeals the district court’s dismissal of his habeas corpus petition and denial of his request for an evidentiary hearing. We affirm. In doing so, we hold that Javaherpour waived his “opportunity-to-plea” ineffective assistance of counsel claim under the “waiver rule” by failing to challenge that claim’s dismissal in his objections to the magistrate’s report and recommendation. I. A federal jury convicted Javaherpour of one count of conspiracy to manufacture less than fifty grams of methamphetamine in violation of 21 U.S.C. § 846 and two counts of distribution of a list I chemical, pseudoephedrine, for use in manufacturing, in violation of 21 U.S.C. § 841(c)(2). The district court sentenced Javaherpour to 151 months of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(C) and ordered Javaherpour to forfeit up to $226,000. Ja-vaherpour’s 2001 convictions stemmed from his ownership and operation of the Par 4 Market in Summersville, Tennessee, where he sold large quantities of pseu-doephedrine pills and other items used to manufacture methamphetamine. On direct appeal, we affirmed Javaherp-our’s conviction and sentence. United States v. Javaherpour, 78 Fed.Appx. 452 (6th Cir.2003) (unpublished). On May 5, 2004, Javaherpour filed a habeas petition for post-conviction relief pursuant to 28 U.S.C. § 2255. Pursuant to 28 U.S.C. § 636(b)(1)(B), Javaherpour’s § 2255 petition was referred to a magistrate judge for a report and recommendation (“R & R”). The magistrate judge entered an R & R recommending the dismissal of Ja-vaherpour’s § 2255 petition and denying his request for an evidentiary hearing. Javaherpour filed timely objections to the magistrate’s R & R. After reviewing Ja-vaherpour’s objections, the district court adopted the R & R and dismissed Javah-erpour’s § 2255 petition with prejudice. Javaherpour filed a timely notice of appeal, which we granted after construing it as a certificate of appealability under Fed. R.App. P. 22(b). This appeal followed. II. When a prisoner seeks relief under § 2255, the district court must assess the sufficiency of his constitutional claims and determine whether he is entitled to an evidentiary hearing: Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. 28 U.S.C. § 2255(b). “To warrant relief under section 2255, a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury’s verdict.” Griffin v. United States, 330 F.3d 733, 737 (6th Cir.2003) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). “In reviewing the denial of a 28 U.S.C. § 2255 petition, this court ‘applies a de novo standard of review of the legal issues and will uphold the factual findings of the district court unless they are clearly erroneous.’ ” Peveler v. United States, 269 F.3d 693, 698 (6th Cir.2001) (quoting Hilliard v. United States, 157 F.3d 444, 447 (6th Cir.1998)). “Relief is warranted only where a petitioner has shown ‘a fundamental defect which inherently results in a complete miscarriage of justice.’ ” Griffin, 330 F.3d at 737 (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). “Claims of ineffective assistance of counsel are appropriately brought by filing a motion under section 2255.” Griffin, 330 F.3d at 736. A habeas petitioner must demonstrate two elements to prevail on a claim of ineffective assistance of counsel: (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the deficiency, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The Strickland standard applies to ineffective assistance of counsel claims involving guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Goldsby v. United States, 152 Fed.Appx. 431, 437 (6th Cir.2005) (unpublished). Javaherpour asserts that the district court erred when it dismissed his ineffec tive assistance of counsel claim based upon his assertion that his trial counsel misinformed him that he faced “no more than 27 months imprisonment even if he went to trial and was convicted.” Javaherpour argues that if his attorney had conveyed to him that proceeding to trial could expose him to a longer prison sentence, he would have negotiated a plea agreement with the Government or pleaded guilty “without a plea agreement” (hereinafter referred to as his “opportunity-to-plea” claim). A. By operation of 28 U.S.C. § 636(b)(1), any party that disagrees with a magistrate’s R & R “may serve and file written objections” to the magistrate’s report, and thereby obtain de novo review by the district court judge of those portions of the report to which objections are made. In United States v. Walters, 638 F.2d 947 (6th Cir.1981), we held that a party must file timely objections with the district court to avoid waiving appellate review. Id. at 949-50; see also Smith v. Detroit Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff'd, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The Government argues that Javaherp-our’s “opportunity-to-plea” claim is not properly before this court because he failed to object to that portion of the magistrate’s R & R that addressed and recommended its dismissal. Javaherpour responds that waiver is inappropriate under these facts because the magistrate did not understand the gravamen of his “opportunity-to-plea” claim. In the alternative, Javaherpour argues that his failure to specifically object to the dismissal of his “opportunity-to-plea” claim can be excused in the interests of justice. He further asserts that the Government is prohibited from pursuing a waiver argument unless it obtains an amended judgment from the district court or files a cross-appeal. Under the “waiver rule,” only specific objections to the magistrate’s R & R “will be preserved for appellate review; making some objections but failing to raise others will not preserve [every] objection! ] a party may have.” Frontier Ins. Co. v. Blaty, 454 F.3d 590, 597 (6th Cir.2006) (quoting Smith, 829 F.2d at 1373). In Wells v. Morgan, 173 F.3d 857 (6th Cir.1999) (unpublished), we held that a pro se plaintiff waived any issue to which he did not specifically object on appeal. In so holding, we stated: [P]laintiff waived his remaining claims on appeal.... Here, plaintiff objected to the magistrate judge’s recommendation only on three grounds: (1) that he was proceeding pro se and should have been given an opportunity to amend his complaint; (2) that he exhausted his administrative remedies regarding his claims; and (3) that he had no opportunity to conduct discovery. Because he did not file specific objections to the magistrate judge’s conclusion that he failed to state a claim upon which relief can be granted, plaintiff has waived appellate review of the disposition of [those] claims. Wells, 173 F.3d at 857. In the present case, the R & R recommended dismissal of the “opportunity-to-plea” claim because Javaherpour failed to assert (and there was no evidence to suggest) that the parties negotiated or discussed a plea agreement. Specifically, the R & R states “Javaherpour has not asserted ... that his counsel failed to communicate a proposed plea agreement.... Rather, Javaherpour questions his own decision to go to trial and not seek a plea agreement ... claiming] ... he would have decided to not go to trial” had he known the trial judge could impose a prison sen tence greater than 27 months. (Emphasis in original.) Thus, despite Javaherpour’s contrary assertion, the R & R reveals that the magistrate judge sufficiently understood the gravamen of his “opportunity-to-plea” claim and simply concluded that it lacked merit. Javaherpour’s objections to the R & R are lengthy and well organized. He disputed the R & R’s disposition of two of his ineffective assistance of counsel claims, namely, his trial counsel’s failure to subpoena certain witnesses and to request exculpatory evidence. Javaherpour also objected to the R & R regarding the unconstitutionality of his sentence because the district court enhanced his penalty based “on a drug quantity that was not found by a jury.” Javaherpour did not object, however, to the magistrate’s discussion or ruling regarding his “opportunity-to-plea” claim, which comprised nearly three pages of the R & R. Accordingly, the district court addressed only the contested issues during its review of the R & R. In this regard, the Supreme Court has stated: The filing of objections to a magistrate’s report enables the district judge to focus attention on those issues — actual and legal — that are at the heart of the parties’ dispute. The Sixth Circuit’s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from “sandbagging” the district judge by failing to object and then appealing. Absent such a rule, any issue before the magistrate would be a proper subject for appellate review. This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case, no matter how thorough the magistrate’s analysis and even if both parties were satisfied with the magistrate’s report. Either result would be an inefficient use of judicial resources. Thomas v. Arn, 474 U.S. 140, 147-48, 106 S.Ct. 466, 88 L.Ed.2d 485 (1985) (emphasis added) (footnote omitted). Despite Javaherpour’s assertions to the contrary, we have applied the waiver rule to pro se defendants. See United States v. Campbell, 261 F.3d 628, 682 (6th Cir.2001) (holding the defendant waived a third-party issue on appeal because he failed to object to that portion of the R & R regarding the third-party issue). Javaherpour relies on Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir.1996) to argue that we should exercise caution when applying the waiver rule to pro se parties. However, this non-binding authority conflicts with our decisions in Smith and Campbell and the Supreme Court’s decision in Thomas. In addition, the R & R in this case unambiguously warned Javaherpour that “only specific objections are reserved for appellate review.” Javaherpour fails to cite to any authority that would require the Government to file a cross-appeal to pursue its waiver argument. A cross-appeal is not required where a party does not seek to expand the rights conferred by a favorable judgment, even if the party’s argument involves an attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored by it. Olympic Fastening Sys., Inc. v. Textron Inc., 504 F.2d 609, 617 (6th Cir.1974). Likewise, Javaherpour cites to no authority supporting his proposition that the Government was required to seek an amended judgment from the district court to pursue a waiver argument. In fact, Javaherpour’s contention that the Government was required to file a cross-appeal or obtain an amended judgment to advance its waiver argument con flicts with the Thomas decision’s discussion regarding the efficient use of judicial resources. The district court was not required to address an issue that Javaherp-our did not contest in his objections to the R & R. A contrary result would force the “district court to review every issue in every case, no matter how thorough the magistrate’s analysis.... ” Thomas, 474 U.S. at 148, 106 S.Ct. 466. Next, Javaherpour argues that we should “waive [his] failure to object in the interest of justice.” “This court may choose not to apply the [waiver] rule if exceptional circumstances are present that justify disregarding the rule in the interests of justice.” Stockard v. Astrue, 293 Fed.Appx. 393, 394 (6th Cir.2008) (unpublished) (citing Thomas, 474 U.S. at 155 & n. 15, 106 S.Ct. 466). Javaherpour fails to identify any exceptional circumstances in this case. His assertions that his pro se status and native Iranian language should excuse his failure to object are self-defeating because he filed numerous and lucid objections to other sections of the magistrate’s R & R. We hold that Javaherpour waived his “opportunity-to-plea” ineffective assistance of counsel claim by failing to challenge that claim’s recommended dismissal in his objections to the magistrate’s R & R. Because this claim is waived, we need not address its merit. B. Finally, Javaherpour asserts a perfunctory argument that his due process rights were violated during his trial because the prosecution withheld exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Javaherpour concedes that he did not raise this issue on direct appeal. When a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can demonstrate either “cause” and actual “prejudice,” Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or that he is “actually innocent.” Id. at 496, 106 S.Ct. 2639. Javaherpour makes no argument to support either exception. Because Javaherpour fails to substantively address the merits of his Brady claim, the issue is deemed waived on appeal. United States v. Phinazee, 515 F.3d 511, 520 (6th Cir.2008) (issues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived). III. For these reasons, we affirm the judgment of the district court.

PER CURIAM: Before this Court is a petition for review of a final order of the United States Drug Enforcement Administration (“DEA”) revoking Jones Total Health Care Pharmacy, LLC’s (“Jones Pharmacy”) certifícate of registration under the Controlled Substances Act (“CSA”) to dispense controlled substances and denying SND Healthcare, LLC’s (“SND Healthcare”) application for a certificate of registration to dispense controlled substances. The DEA Acting Administrator revoked Jones Pharmacy’s registration after determining that it unlawfully dispensed controlled substances and that Cherese Jones, the pharmacy’s owner and operator,, failed to accept full responsibility for the misconduct. Because Jones also owned and operated SND Healthcare, the Acting Administrator denied SND Healthcare’s pending application for the same reasons. Jones Pharmacy and SND Healthcare (“Petitioners”) then filed this petition for review, arguing that the DEA’s decision is arbitrary and capricious. We disagree, so we deny.the petition for review. I. Jones Pharmacy-is a community pharmacy started by Jones in Fort Lauderdale. Jones graduated from Texas A & M University with a Doctor of Pharmacy degree in 2000 and worked in clinical and retail pharmacy positions before opening Jones Pharmacy in February 2010. Jones Pharmacy was registered with the DEA to dispense substances controlled by the CSA, 21 U.S.C. § 801, et seq. In 2013, Jones sought to open SND Healthcare and submitted an application for registration to dispensé controlled substances through that entity. The CSA creates “a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA.” See Gonzales v. Raich, 545 U.S. 1, 13, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). Pharmacies that dispense prescription medications that are controlled substances are required to obtain proper registration from the Attorney General. See 21 U.S.C. §§ 822(a), 823(f); Gonzales v. Oregon, 546 U.S. 243, 250-51, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006). Under the CSA, the responsibility for the proper prescribing and dispensing of. controlled substances, which must be for “a legitimate medical purpose,” is on the prescribing practitioner, “but a corresponding responsibility rests with the pharmacist who fills the prescription.” 21 C.F.R. § 1306.04(a). Thus, pharmacists have a “corresponding responsibility” to refuse to fill prescriptions that are not issued for a legitimate, medical purpose. See id. The Attorney General has the authority to deny, revoke, or suspend registrations. See 21 U.S.C. §§ 823(f), 824(a). The Attorney General has delegated this authority to the DEA. See United States v. Lippner, 676 F.2d 456, 460 (11th Cir, 1982) (holding that the functions vested in the Attorney General by the Comprehensive Drug Abuse Prevention Act were properly delegated to the DEA). When an existing registration is proposed for revocation, the DEA must serve an “order to show cause” on the registrant and give the registrant an opportunity for a hearing before an Administrative Law Judge (“ALJ”) in order to contest the proposed action. See 21 U.S.C. § 824(c). ' On October 6, 2014, the DEA issued an order to show cause proposing to revoke Jones Pharmacy’s existing registration and to deny SND Héalthcare’s application for registration.- In the order,‘the DEA alleged that, from February 2010 to July 2012, Jones Pharmacy “repeatedly failed to ensure that it filled only prescriptions issued for legitimate medical purposes within the usual course of professional practice.” Jones Pharmacy, according to the order, repeatedly ignored “obvious and unresolvable red flags of diversion.” The order also alleged record-keeping violations. According to the order, Jones Pharmacy’s practices warranted denial of SND Healthcare’s application because Jones was the owner and operator of both entities and they were one integrated enterprise. Petitioners requested a hearing, which was held before an ALJ in March 2015. At the hearing, the ALJ heard testimony from several persons, including Domingo Gonzales (a DEA diversion investigator), Mary, Crane (a Pharmacy Inspector for the Florida Department of Health), Dr. Tracy Gordon (the government’s expert), Donna Horn (Jones Pharmacy’s expert), and Jones. . . - After the hearing,- the ALJ issued her findings of fact, conclusions of law, and recommendations that the DEA Acting Administrator revoke Jones Pharmacy’s registration and- deny SND Healthcare’s application for registration. The ALJ credited the testimony of Gordon, who reviewed over one-hundred prescriptions filled by- Jones Pharmacy between February 2010 -and July 2012 and found that they had one or more “red flags”—indicia that the prescriptions were not issued for a legitimate medical purpose—and should not have been filled. According to Gordon, these red flags included the following: (1) individuals traveling long distances to fill prescriptions; (2) prescriptions for drug “cocktails,” known for their abuse potential, such as oxycodone and Xanax; (3) individuals who arrived together with identical or nearly identical prescriptions; (4) purported pain patients with prescriptions for immediate-release rather than long-acting narcotics; (5) cash purchases; and (6) doctors prescribing outside the scope of their usual practice. The ALJ credited Gordon’s testimony that many of these red flags could not have been resolved by the pharmacists. Accordingly, the ALJ determined that Jones Pharmacy violated its “corresponding responsibility” by filling controlled-substances prescriptions with unresolved red flags. Crediting Gonzales’s testimony and other evidence submitted by the government, the ALJ also found additional indicators that Jones Pharmacy dispensed controlled substances unlawfully. The ALJ cited statistics showing that, from February 2010 to July 2012, Jones Pharmacy’s business was based primarily on sales of controlled substances. In addition, of the more than 3,000 controlled-substance prescriptions filled, 99% were for immediate-release drugs, 89% were for “cocktail” drugs, and ■ 93% were paid for in cash. The ALJ noted that these statistics were “unusually high compared to national averages.” For instance, according to a report from the IMS Institute of Healthcare Informatics, the national average for cash sales between 2007 and 2011 was 6%. The ALJ also found that Jones Pharmacy’s high markup on the price per pill—including 415 instances where the markup on the price per pill was over 1,000%—combined with the high rate of cash-based customers indicated diversion because “it elucidates a customer base willing to pay exorbitant prices for a drug the customer could otherwise purchase at a nearby pharmacy for much less.” The ALJ rejected Petitioners’ contentions that Jones was unaware of the concept of “red flags” and that she did not know or have reason to know that the prescriptions filled by Jones Pharmacy were not written for a legitimate medical purpose. The ALJ was unpersuaded by testimony offered by Jones Pharmacy’s expert Horn, who stated that pharmacists were generally unaware of the concept of red flags during the relevant time period. Instead, the ALJ credited the contrary testimony of the government’s expert, Gordon, and concluded that “the concept of red flags has long been recognized as a reflection of the norms of the pharmacy profession,” so Jones Pharmacy’s purported ignorance was not a credible defense. Having found that the government met its burden of establishing a prima facie case that revocation of Jones Pharmacy’s registration was in the public interest, the ALJ then addressed whether Jones Pharmacy put forward sufficient evidence to show that it could be trusted with a registration going forward. The ALJ explained that a registrant must establish two things to rebut the government’s prima facie face: (1) full acceptance of responsibility and (2) remedial measures so that such violations will not happen in the future. Based on Jones’s testimony at the hearing, the ALJ detennined that she had not fully accepted responsibility for Jones Pharmacy’s unlawful dispensing of controlled substances. Citing agency precedent holding that acceptance of responsibility is an independent and essential requirement for rebutting the government’s prima facie case, the ALJ declined to address Jones Pharmacy’s remedial efforts. See, e.g., Holiday CVS, L.L.C., 77 Fed. Reg. 62316, 62323, 2012 WL 4832770 (Oct. 12, 2012). Petitioners filed exceptions in May 2015, which the Acting Administrator overruled in a 54-page final order issued on October 31, 2016. Addressing and rejecting many of the arguments we are faced with here, and which we address in more detail below, the Acting Administrator adopted the ALJ’s recommendations. This petition for review followed. See 21 U.S.C. § 877. II. We may set aside the Acting Administrator’s final decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). “The arbitrary and capricious standard is exceedingly deferential.” Defs. of Wildlife v. U.S. Dep’t of Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (internal quotation marks omitted). We may not substitute our judgment for that of the agency so long as its conclusions are rational and based on the evidence before it. Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). Nevertheless, we may set aside a decision as “arbitrary and capricious when, among other flaws, the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency.” High Point, LLLP v. Nat’l Park Serv., 850 F.3d 1185, 1193-94 (11th Cir. 2017) (internal quotation marks omitted). The Acting Administrator’s factual findings are conclusive if supported by substantial evidence. 21 U.S.C. § 877. Substantial evidence is less than a preponderance of the evidence, but rather such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 619-90, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). An administrative agency’s finding is supported by substantial evidence even if “two inconsistent conclusions [could be drawn] from the evidence.” Id. III. The DEA may revoke registration to dispense controlled substances upon a finding that the registrant “has committed such acts as would render his registration ... iriconsistent with the public interest.” 21 U.S.C. § 824(a)(4). Likewise, the DEA may deny registration to dispense controlled substances if such registration is “inconsistent with the public interest.” 21 U.S.C. § 823(f). Section 823 lists five factors that “shal| be considered” in determining the publif interest. 21 U.S.C. § 823(f). These factors include “[t]he applicant’s experience in dispensing, or conducting research with [respect to controlled substances,” as well &s “Compliance with applicable State, Federal, or local laws relating to controlled substances.” Id. § 823(f)(2), (4). The Act ing “Administrator must consider each factor, though he need not make explicit findings as to each one and can give each factor the weight [he] determines is appropriate.” Akhtar-Zaidi v. Drug Enf't Admin., 841 F.3d 707, 711 (6th Cir. 2016). The government bears the initial burden of proving that registration is inconsistent with the public interest. 21 C.F.R. § 1301.44(d), (e). If the government proves its prima fade case, the burden of proof shifts to the registrant to show why it can be trusted with a registration. Morall v. Drug Enf't Admin., 412 F.3d 165, 174 (D.C. Cir. 2005). Here, Petitioners do not dispute that the government met its initial burden of proving that Jones Pharmacy’s registration was inconsistent with the public interest. The record supports the agency’s determination that Jones Pharmacy unlawfully filled numerous controlled substance prescriptions that were not issued, for a legitimate medical purpose. See 21 C.F.R. § 1306.04(a). As discussed above, the evidence showed that Jones Pharmacy from February 2010 through July 2012' filled over one-hundred prescriptions that had at least one red flag that Jones Pharmacy did not attempt to resolve and that could not have been resolved. The government also put forward other substantial evidence indicating that the controlled substances dispensed by Jones Pharmacy were being diverted for improper use. Accordingly, the agency reasonably determined that revocation of Jones Pharmacy’s registration was in the public interest because of Jones Pharmacy’s failure to comply with federal laws relating to controlled substances. See 21 U.S.C. § 823(f)(4). .Petitioners instead challenge, as arbitrary and capricious the DEA’s determination that Jones Pharmacy did not prove that' it could be trusted with a registration notwithstanding the prior misconduct. In particular, Petitioners argue that the agency’s finding that Jones, the owner and operator of Jones Pharmacy, did not credibly accept full responsibility is fatally flawed for a number , of reasons. The agency, according to Petitioners, misconstrued Jones’s testimony, relied too heavily on the severity of the misconduct, and unreasonably refused to consider the remedial measures Jones Pharmacy put in place after the time period at issue. Petitioners also contend that the agency’s choice of the most severe sanction—revocation— was inconsistent with prior agency decisions that either suspended or continued registrations despite more egregious misconduct. We address Petitioners’ arguments in three parts. First, we conclude that substantial evidence supports the agency’s determination that Jones did not credibly accept full responsibility. Second, we hold that the agency’s refusal to consider Jones Pharmacy’s remedial measures does not render its decision arbitrary or capricious in'the circumstances of this case. Finally, we find that the chosen sanction was not arbitrary or capricious. A. , Acceptance of Responsibility At the outset, we agree with the other circuits that have addressed this issue that the DEA may properly .consider a registrant’s acceptance of responsibility in determining if registration should be revoked. See MacKay v. Drug Enf't Admin., 664 F.3d 808, 820 (10th Cir. 2011) (“The DEA may properly consider whether a physician admits fault in determining if the physician’s registration should be revoked.”); Hoxie v. Drug Enf't Admin., 419 F.3d 477, 483 (6th Cir. 2005) (“The DEA properly considers the candor of the physician and his forthrightness in assisting in the investigation and admitting fault important factors in determining whether the physician’s registration should be- revoked”). If a pharmacy has failed to comply with its responsibilities in the past, it makes sense for the agency to consider whether the pharmacy will change its behavior in the future. MacKay, 664 F.3d at 820; Alra Labs., Inc. v. Drag Enf't Admin., 64 F.3d 460, 462 (7th Cir. 1996) (“An agency rationally may conclude that past performance is the best predictor of future performance.”). “[T]hat consideration is vital to whether continued registration is in the public interest.” MacKay, 664 F.3d at 820. Turning to the facts at hand, substantial evidence supports the DEA’s determination that Jones did not fully accept responsibility for Jones Pharmacy’s unlawful dispensing practices.' The ALJ, who heard Jones testify in person and was therefore in the best position to assess Jones’s credibility, extensively -reviewed Jones’s testimony and found her admission of fault to be equivocal at best. In relevant part, the ALJ summarized Jonés’s testimony as follows: Ms. Jones claimed that she was following her corresponding responsibility [to fill only legitimate prescriptions] as she understood it from 2010-2012 when over a hundred prescriptions that were presented with multiple unresolved red flags were dispensed at Jones Pharmacy. Ms. Jones purported to accept responsibility for Jonés Pharmacy’s dispensing practices "by repeatedly asserting that she did what she knew at the' time, but now she knows she could have done more. The ALJ found, however, that Jones made other statements that demonstrated she “does not fully understand her corresponding responsibility even yet today.” For example, Jones indicated on cross-examination that she did not understand that the law required her to make sure that prescriptions were issued for legitimate medical-purposes before filling them. And, significantly, she did not admit that Jones Pharmacy’s past dispensing practices failed to comply with its legal obligations. Thus, the ALJ concluded that Jones did not accept responsibility and that her claimed ignorance about her legal responsibilities, particularly her continued lack of understanding of those responsibilities, was no excuse. The Acting Administrator agreed with the ALJ’s findings after conducting his own review of Jones’s testimony. - Petitioners maintain that the agency’s assessment of whether Jones áccepted responsibility is fatally flawed for a number of reasons. They insist that Jones accepted responsibility by acknowledging and correcting her mistakes, arid that the ÁLJ’s interpretation of her testimony ' was strained and unreasonable. The ALJ, according to' Petitioners, failed to properly consider Jones’s explanation that her misunderstanding of her responsibilities was based in part on what she learned while working at other pharmacies earlier in her career. Petitioners also contend that the ALJ, by drawing a negative inference from Jones’s attempt to explain why she failed to comply with' her corresponding responsibility in the past, imposed a test for acceptance of responsibility “that can only be met by the most blatant offenders” who knowingly violate their responsibilities. Petitioners’ arguments are unpersuasive. To begin with, both the ALJ and the Acting Administrator considered Jones’s explanation of her conduct and reasonably concluded that her' purported confusion or ignorance was not a valid excuse, Jones believed that it was the prescribing physi- dan’s responsibility to issue medically legitimate prescriptions. That may be true, but as a pharmacist registered with the DEA, Jones had a “corresponding responsibility” not to fill prescriptions that were not issued for a medically legitimate purpose. 21 C.P.R. § 1306.04(a). The “corresponding responsibility” rule is not new, see United States v. Hayes, 595 F.2d 258, 261 & n.6 (5th Cir. 1979) (holding that pharmacists have an obligation “not to fill an order that purports to be a prescription but is not a prescription within the meaning of the statute”), nor is it unreasonable for the DEA to expect a pharmacist entrusted with dispensing highly regulated, addictive, and potentially destructive substances to fully understand her obligations under the law, regardless of prior work experience. Moreover, the ALJ credited the government’s evidence that a pharmacist who exercised her corresponding responsibility would not have filled the prescriptions that Jones Pharmacy did from February 2010 to July 2012. The government’s • evidence reflected that Jones Pharmacy from February 2010 to July 2012 filled at least one-hundred prescriptions with one or more unresolved red flags. In addition, Jones Pharmacy’s business during that time was based substantially on immediate-release “cocktail” pain medications purchased with cash at a high markup on the price per pill. As the Acting Administrator stated, however, “notwithstanding the obvious and compelling evidence that the prescriptions lacked a legitimate medical purpose, [Jones] continued to deny that the prescriptions were unlawfully dispensed.” To be sure, Jones indicated in her testimony that she was naive, made mistakes, and could and should have done “more digging” to verify prescriptions. But Petitioners have not identified any clear admission by Jones—regardless of whether she acted knowingly or not—that she understood Jones Pharmacy violated its obligations under the CSA. Instead, Jones reiterated her belief that Jones Pharmacy was fulfilling its responsibilities as she understood them at the time. Jones’s refusal to admit that Jones Pharmacy’s dispensing practices violated its obligations under federal law reflects that she did not “reeognize[ ] the extent of [the] misconduct.” MacKay, 664 F.3d at 820. It also supports the factual finding, critical to both the ALJ’s and the Acting Administrator’s decisions, that Jones did not fully understand her legal obligations as a pharmacist. Nor was the finding that Jones did not fully understand her obligations under 21 C.F.R. § 1306.04(a) based on some strained interpretation of her testimony. Jones’s statements at the hearing show that she continued to struggle with the idea that pharmacists have an independent duty, apart from the prescribing physician, to ensure that prescriptions are issued for medically legitimate purposes before filling them. For instance, when asked on cross-examination whether she knew “one way or another” if she had a corresponding responsibility, Jones answered, “I did not know that the law said that I had to make sure that prescriptions said it was legitimate, medically legitimate[,]” even “sitting here today.” And despite Jones’s assertions to the contrary, pharmacists do not need to practice medicine or independently examine a patient in order to determine in certain cases that a prescription was not issued for a legitimate medical purpose. See Hayes, 595 F.2d at 261 & n.6 (“[A] pharmacist can know that prescriptions are issued for no legitimate medical purpose without his needing to know anything about medical science.”). Finally, we reject Petitioners’ argument that the ALJ impermissibly required Jones to admit to knowing misconduct in order to accept responsibility. For starters, the record supports an inference of knowing misconduct, even though Jones maintained that the misconduct was not intentional. More significantly, however, Jones could have maintained that the misconduct was not intentional while, at the same time, recognizing at the Rearing that it nonetheless violated the pharmacy’s obligations under the CSA. We do not know whether the agency would have credited that testimony, of course, but it was reasonable for the agency to conclude that her failure to clearly acknowledge even unintentional misconduct demonstrated a lack of understanding of her legal obligations. Because the record supports the Acting Administrator’s findings that Jones did not acknowledge the prior misconduct and still did not understand the scope of her responsibilities under the CSA, we conclude that the determination that Jones did not fully accept responsibility for Jones Pharmacy’s misconduct was rational and supported by substantial evidence. See Miccosukee Tribe, 566 F.3d at 1264; Consolo, 383 U.S. at 619-90, 86 S.Ct. 1018. B. Remedial Measures We acknowledge that Jones Pharmacy appears to have implemented policies to address the misconduct at issue here. According to Petitioners, these remedial efforts'are evidence that they can be trusted with registrations going forward, so it was unreasonable for the DEA to ignore that evidence even if Jones did not unequivocally admit fault; ' Of course, corrective measures undertaken by a pharmacy -are certainly relevant to whether it can be trusted with a registration to dispense controlled substances. At the same-time, though, the DEA must have confidence that, if the registration is continued, the pharmacy will faithfully comply with its obligations under the CSA. See 21 U.S.C. § 823(f)(4); Holiday CVS, 77 Fed. Reg. at 62345-46. If a pharmacy shows that it does not understand the extent of the past misconduct or its current responsibilities under the law, the DEA rationally could doubt that the pharmacy would faithfully comply in the future with its obligations under the CSA. Here, the DEA’s refusal to consider Jones Pharmacy’s remedial measures does not render the decision to revoke its registration arbitrary and-capricious. -The Acting Administrator explained that, based on the scope and duration of misconduct, Jones’s failure to acknowledge that misconduct, and her testimony that she still does not understand the scope of a pharmacist’s obligations under the CSA, he. had no confidence that either entity owned or operated by Jones (Jones Pharmacy and SND Healthcare) would faithfully comply with the CSA. We conclude that the Acting Administrator’s determination was rational and supported by substantial evidence in the record. See Miccosukee Tribe, 566 F.3d at 1264. Accordingly, the Acting Administrator’s decision to revoke Jones Pharmacy’s registration as inconsistent with the public interest was not arbitrary, capricious, or an abuse of discretion. C. Choice of Sanction Petitioners contend that the Acting Administrator unreasonably recommended the severe sanction of revocation when the DEA has imposed lesser sanctions under equal or more egregious. circumstances.We disagree. Under the APA, the agency’s “choice of sanction is entitled to substantial deference.” MacKay, 664 F.3d at 820. It is not to be overturned unless it' is “unwarranted in law or without justification in fact.” Butz v. Glover Livestock Comm’n Co., Inc., 411 U.S. 182, 186, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973) (internal quotation marks omitted); MacKay, 664 F.3d at 820; Morall, 412 F.3d at 181. Where, as here, Congress intended to grant the agency significant discretion, “mere unevenness in the application of the sanction does not render its application in a particular case ‘unwarranted in law.’” Butz, 411 U.S. at 186, 93 S.Ct. 1455; see 21 U.S.C. § 823(f) (directing the DEA to-make registration decisions based on the “public interest”). - The agency’s sanction may be set aside, however, if it represents a “flagrant departure” from agency policy and practice. See Chein v. Drug Enf't. Admin., 533 F.3d 828, 835 (D.C. Cir. 2008). Here, Petitioners have not shown that the agency’s choice of sanction was unwarranted in law or without justification in fact. The DEA decisions Petitioners rely on are distinguishable because, in each of the decisions, the agency found that the •registrant had rebutted the government’s case by, among other things, admitting fault or expressing remorse. The general pattern of the cited decisions is that a physician engaged in misconduct - attributable in part to alcoholism or drug abuse, sought treatment, did not engage in other misconduct since obtaining treatment, and expressed remorse or otherwise accepted responsibility for the misconduct. See Karen A. Kruger, M.D., 69 Fed. Reg. 7016, 7017-18, 2004 WL 250335 (Feb. 12, 2004); Theodore Neujahr, D.V.M., 65 Fed. Reg. 5680, 5682, 2000 WL 126521 (Feb. 4, 2000); Jimmy H. Conway, Jr., M.D., 64 Fed. Reg. 32271, 32274, 1999 WL 389996 (June 16, 1999); Robert G. Hallermeier, M.D., 62 Fed. Reg. 26818, 26821, 1997 WL 249912 (May 15, 1997). Petitioners focus on the past misconduct in these cases, but they do not cite any decision in which the DEA has continued a registration despite finding that the registrant did not fully accept responsibility. Because substantial evidence supports the DEA’s finding that Jones did not accept responsibility for the misconduct in this case, Petitioners have not shown that the agency’s choice of sanction represented a flagrant départure from prior practice. See Chein, 533 -F.3d at 835. Therefore, the agency’s decision to revoke Jones Pharmacy’s registration was not arbitrary or capricious. IV. Finally, Petitioners argue that the ALJ violated their due-process rights by denying discovery of a report prepared by the government’s expert, Tracy Gordon. Petitioners contend that, without the report, they were unable to challenge the expert’s credibility, and the basis of her opinions. As a general matter, a party’s entitlement to discovery in an administrative proceeding is governed by the agency’s own rules. See, e.g., McClelland v. Andrus, 606 F.2d 1278, 1285 (D.C. Cir. 1979). Nevertheless, the agency is bound to ensure that its procedures meet basic due process requirements. Id. at 1285-86. “Therefore, discovery must be granted if m the particular situation a refusal to do so would so prejudice a party as to deny him due process.” Id. at 1286. The Acting Administrator found that Petitioners were not prejudiced because they were “fully apprised of the Government’s theory of the case and the evidence it intended to rely on and [they] had ample opportunity to prepare a defense.” The Acting Administrator further noted that the report was not offered as evidence and that Petitioners were able to fully cross-examine the expert about her testimony and the basis of her opinions at the hearing. Finding Petitioners’ claim of prejudice purely speculative, the Acting Administrator concluded that the ALJ properly denied discovery of the expert’s report. Here, we agree with the Acting Administrator that Petitioners have not shown prejudice flowing from the denial of discovery of the expert report. Petitioners claim that they needed the report because it “formed the basis of the DEA’s case,” but as the Acting Administrator found, Petitioners were fully informed of the government’s theory of the case and the evidence that it intended to rely on. Any suggestion that they were unable to dispute the government expert’s findings or her credibility is purely speculative. Accordingly, the agency did not violate Petitioners’ due-process rights by denying discovery of the expert’s report. V. For the reasons stated, the DEA Acting Administrator’s decision to revoke Jones Pharmacy’s registration to dispense controlled substance was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” See 5 U.S.C. § 706(2)(A). The factual findings underlying that decision were supported by substantial evidence, and Petitioners have demonstrated no fatal flaw in the proceedings or- reasoning leading to the revocation decision. See High Point, 850 F.3d at 1193-94. Finally, Petitioners do' not challenge the DEA’s determination that Jones Pharmacy’s practices are an appropriate basis to deny SND Healthcare’s application for registration. Accordingly, we deny Petitioners’" petition for review. PETITION DENIED. . In full, the statute directs that the following five factors shall be considered in determining the public interest: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority, (2) The applicant’s experience in dispensing, or conducting research with respect to controlled substances. (3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety. 21 U.S.C. § 823(f), . This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). . Indeed, the Acting Administrator determined that Jones Pharmacy's “pharmacists either knew or were willfully blind to the fact that the prescriptions were issued in violation of 21 C.F.R. § 1306.04(a)." . We also note that the Acting Administrator found that, even if Jones had credibly accepted full responsibility, he still would have revoked Jones Pharmacy’s- registration because the "proven misconduct [was] so extensive and egregious.”

Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marion Leon Bea seeks to appeal the district court’s order denying his motion for reconsideration of the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). 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 dispositive 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 Bea 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.

MEMORANDUM GUNN, District Judge. This matter is before the Court on two motions to dismiss the complaint for failure to state a claim. Plaintiff, a Missouri state prisoner, filed this action under 42 U.S.C. § 1983. He alleges that while at a K-Mart store in Bridgeton, Missouri, he was detained, questioned, searched and arrested by Bridgeton police officers who had been called by K-Mart employees. Plaintiff alleges that the officers threatened him and made derogatory remarks about him because he was a member of the Moorish Science Temple. He also alleges that the officers forced him to make an incriminating statement. Plaintiff asserts claims of false arrest, defamation, religious discrimination and conspiracy, naming as defendants the Bridgeton Police Department, three Bridgeton police officers and three K-Mart employees. He seeks damages and release from prison. In their motion to dismiss, the Bridgeton defendants state that plaintiff pleaded guilty to stealing and was sentenced to four years imprisonment as a result of the incident underlying the complaint. Plaintiffs false arrest claim is thereby defeated. See Malady v. Crunk, 902 F.2d 10 (8th Cir.1990) (arrestee’s conviction for underlying offense is complete defense to civil rights claim that arrest was without probable cause). Plaintiff also fails to state a due process or equal protection claim based upon the officers’ alleged threats, derogatory remarks and conduct in effecting the arrest. See Burton v. Livingston, 791 F.2d 97, 99 (8th Cir.1986) (generally threats, defamation and simple assault are not actionable under section 1983). The conspiracy claim against the Bridgeton defendants is not supported by sufficient facts, see Smith v. Bacon, 699 F.2d 434, 436 (8th Cir.1983) (per curiam) (allegations of conspiracy must be pleaded with sufficient specificity and factual support to suggest meeting of minds), and a violation of one’s Miranda rights does not give rise to a section 1983 claim, Warren v. City of Lincoln, Neb., 864 F.2d 1436, 1442 (8th Cir.), cert. denied, 490 U.S. 1091, 109 S.Ct. 2431,104 L.Ed.2d 988 (1989). Accordingly, the Bridgeton defendants’ motion to dismiss will be granted. The K-Mart defendants’ motion to dismiss will also be granted. They are not state actors for purposes of section 1983, and the allegations of a conspiracy between them and the state police officers are not sufficient to state a claim. See Smith v. Bacon, 699 F.2d at 436. . Although plaintiff refers in his narration to "police brutality,” he does not allege any physical injury, and does not assert such a violation of his fourth and fourteenth amendment rights as a separate claim. . Plaintiff also named a captain of the Bridge-ton Police Department as a defendant, but voluntarily dismissed this party. . This dismissal is without prejudice to plaintiffs right to bring a habeas corpus action against his custodian based upon the alleged violation of his Miranda rights. The Court also notes that new matters raised in plaintiffs response to the motions to dismiss, regarding monies available to him in prison and owed by him, are not properly before this Court.

Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Rawlinson. OPINION BENNETT, District Judge: Plaintiffs seek damages from the United States for injuries to a child allegedly caused by exposure to the toxic heavy metal thallium from soil dumped into a landfill adjacent to the child’s residence and school. The child, by her guardian ad litem, appeals a decision of the district court finding that the United States acted “reasonably” and did not breach any duty in conducting the soil remediation project. The district court also found that it did not have subject matter jurisdiction, because the “discretionary function” exception to tort liability of the United States applies in this case. We reverse and remand for further proceedings. I. BACKGROUND A. Factual Background Whether or not the district court’s findings of fact are clearly erroneous depends upon “the entire evidence” in the record. See United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir.2009) (en banc). Therefore, this statement of the factual background identifies both the district court’s findings and other evidence in the record that is relevant to the review of the district court’s findings. As the district court found, in 1989, the Environmental Protection Agency (EPA) placed the United States Marine Corps Base at Camp Pendleton on the “National Priorities List” of sites requiring environmental cleanup. The Department of the Navy entered into a comprehensive environmental cleanup plan for Camp Pendleton, known as a Federal Facility Agreement (FFA), with the concurrence of the EPA, the California Department of Toxic Substances Control (DTSC), and the San Diego Regional Water Quality Control Board (RWQCB). Although the district court did not refer to such a provision in its findings, the FFA required, among other things, that the Navy, as the party responsible for the cleanup, designate a Quality Assurance Officer (QAO) as follows: 20.1 In order to provide quality assurance and maintain quality control regarding all field work and sample collection performed pursuant to this Agreement, the Marine Corps agrees to designate a Quality Control Officer (QAO) who will ensure that all work is performed in accordance with approved work plans, sampling plans and QAPPS [Quality Assurance Project Plans]. The QAO shall maintain for inspection a log of quality assurance field activities and provide a copy to the Parties upon request. FFA, ¶ 20.1. The district court did not note in its findings that the Naval Facilities Engineering Command (NAVFA-CENGCOM) also uses a Safety and Health Program Manual (the Manual) for all environmental cleanup operations. The Manual specified, in pertinent part, that “[e]ach NAVFACENGCOM activity shall ensure that plans are reviewed and accepted prior to issuing the Notice to Proceed.” Manual, ¶ 0407.b. The Manual also provided as follows: c. Reviews. All HASPs [ (health and safety plans) ] shall be reviewed prior to initiating site work by a competent person. Competent person shall mean a certified industrial hygienist [ (CIH) ] or equivalent by training and/or experience. In addition, an EFD/EFA Construction Safety Manager or designated representative who has sufficient knowledge and authority to review and accept construction safety procedures shall review HASPs for construction safety requirements. Manual, ¶ 0407.C. Sites at Camp Pendleton requiring cleanup were divided into “operable units.” “Operable Unit 3” (OU-3) consisted of five contaminated areas where wastes had been burned. Tests of the soil in all five areas indicated contamination with toxic substances, but two, known as Sites 1A and 2A, showed elevated levels of thallium. As to the sites showing elevated levels of thallium, the district court found as follows: Of the 154 samples [taken at Site 1A], only one sample exceeded the safe standard for thallium — and not by much. At Site 2A, 99 soil samples were taken. ... Of the samples, only two samples exceeded] the safe standard for thallium. One sample was only a little high. The other sample was high, but appeared to be an unreliable test result. The Defendant’s contractor used the Inductively Couple Plasma — Atomic Emission Spectroscopy method to identify thallium in the soil samples. That method sometimes produces false positives where there are metals in the sample. In the soil at site 2A, there were high concentrations of other metals such as zinc and manganese, which likely caused the false positive test for thallium. Lead was much more prevalent than thallium in the soil moved to Box Canyon and was considered to be the primary risk to human health. Although the district court found that lead was the primary risk to human health, the Navy’s “Record of Decision” (ROD), which set forth its plan to clean up or “remediate” the sites in OU-3, actually states, “[t]he primary contributors to the HI [hazard index] [for Site 1A] are arsenic, copper.” Lead is not mentioned in that list, although concentrations of lead above established safety levels were also noted. Similarly, the ROD actually states, “The primary hazard contributors [for Site 2A] are manganese, thallium, and zinc.” Again, lead is not mentioned in that list, although concentrations of lead above established safety levels were again noted. The HI for both Site 1A and Site 2A indicated that there was a potentially “unacceptable” risk to human health requiring cleanup. However, the district court found that the thallium at these sites was believed to be in low concentrations in the contaminated soil. The Navy’s plan to clean up or “remediate” the sites in OU-3 involved excavation of contaminated soils from the OU-3 sites, transportation of those soils across the base by dump truck, and dumping of those soils into a landfill known as Box Canyon Landfill or Site 7. The Box Canyon Landfill was adjacent to the Wire Mountain Family Housing area of the Marine Corps base at Camp Pendleton and near an elementary school. The Navy contracted with IT/OHM to perform much of the work on the OU-3 project. The Navy’s contract with IT/ OHM required IT/OHM to prepare a HASP (referred to in the contract as a “Site Health and Safety Plan” or SHSP), and IT/OHM did so. Under the HASP, IT/OHM’s industrial hygienist (or “Health and Safety Officer”) had on-site responsibility and authority to modify or stop work if working conditions presented a risk to health and safety. The HASP included requirements for monitoring ambient air and airborne contaminants, including levels for “total dust” that should have required work stoppages. If dust levels from monitors placed near the housing area or the school exceeded a certain level, then the contractor was to determine the source of the dust, increase the dust control efforts in the landfill, and if increased dust control measures were “ineffective,” stop soil moving activities in the landfill. The district court found that the air monitors employed by IT/OHM were appropriate for the task. However, the district court failed to note that the air monitoring device specified did not monitor “total dust,” but only dust particles smaller than a certain size. In addition to air monitoring requirements, the HASP required wetting of newly dumped soil to suppress dust and covering of contaminated soil with layers of uncontaminated soil. The Manual, ¶ 0407.C, required the Navy to approve the HASP before work was to begin. Nevertheless, there is no evidence that either of the Navy’s CIHs ever approved the HASP for the OU-3 project. One of the Navy’s CIHs, Janet Corbett, testified that she did not review the HASP. The Navy’s other CIH, Andrew Bryson, testified that he had no record showing that he had reviewed the HASP for the OU-3 project and that he did not recall doing so. During the summer and early fall of 1999, in the course of executing the OU-3 soil remediation plan, 240,000 cubic yards of contaminated soil from four polluted sites were transported to and disposed of in the Box Canyon Landfill, including soil from the two sites contaminated with thallium. During the project, Navy personnel monitoring the project met regularly with personnel from IT/OHM. The district court found that there were “occasions” in the course of the project when the air monitoring equipment registered dust levels in excess of the levels that were supposed to require work stoppages (called “exceedences” by the parties), but did not note that record evidence showed that such exceedences occurred more than 200 times. The district court found that action levels were set so low that there “were exceedences where there was no visible dust.” It is undisputed that the work was never stopped because of these exceedences. The district court did not find, but the undisputed record evidence shows, that the Navy’s QAO for the project, Nars Ancog, never looked at the air monitoring data collected by IT/OHM, nor did anyone else from the Navy. Residents in the nearby Wire Mountain Family Housing area testified that, at times during the remediation project in 1999, visible clouds of dust blew from the landfill. The district court found that “[a]ny visible dust was likely from uncontaminated soil.” Myers’s house in the family housing area of Camp Pendleton was adjacent to the Box Canyon Landfill. Indeed, the fence line for and access road to the landfill were only about 50 feet from her backyard, where Myers often played. The landfill was also only about 200 feet from an elementary school, where Myers played and later attended school. Soon after the dumping of contaminated soil into the adjacent landfill, Myers became ill. She suffered, and she continues to suffer, from gastrointestinal distress, peripheral neuropathy (a kind of nerve damage), cognitive deficits, and alopecia (loss of body hair), all of which are known side-effects of exposure to thallium. Some analyses of Myers’s urine in March 2000 indicated concentrations of thallium well in excess of (as much as ten times) those expected in the urine of persons who had not been exposed to thallium. Subsequent tests purportedly showed no concentrations of thallium in excess of those expected in a non-exposed person. The raw data for those later tests was destroyed after this litigation commenced, however, so that there is no way to determine the reliability of those tests. The district court described the evidence about whether Myers’s urine samples revealed normal thallium levels for humans as “mixed.” District Court Decision at 8. The district court found that, even if one assumed that exposure to thallium caused Myers’s medical condition, it was not obvious how or when she was exposed to the toxic metal. The Navy or its contractors collected post-project samples in 2000, consisting of over 100 site soil samples, 30 wipe or “swipe” (dust) samples, ten bulk samples, and even hair samples from Myers’s dog. Consistent with the district court’s find ings, the Navy asserts that only one of these samples, taken from the elementary school, showed thallium, but the level shown was actually below the naturally-occurring background level. In contrast, Myers asserts that these samples were taken months after the end of the OU-3 project and after an intervening winter of wind and rain. She also contends that, contrary to the Navy’s assertion, while the final report of sampling showed results of less than one microgram of thallium in some of the samples (identified as a “non-detect”), the raw data actually indicated results that exceeded one microgram, the detection limit used for the tests, so that they should have been construed as “positives.” Myers also contends that her expert’s review of the raw data and actual test results indicated that eight wipe or “swipe” samples from air conditioning ducts in Myers’s house and other adjacent houses were positive for thallium. B. Procedural Background On July 10, 2002, Myers’s guardian ad litem filed suit pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., against the United States, as the appropriate party in a FTCA case for claims against the Navy. Myers’s claims were for negligence, nuisance, trespass, strict liability for ultra-hazardous activity, and battery. The trial judge trifurcated the bench trial into “breach of duty,” “actual and proximate causation,” and “damages” phases. During the first phase of the trial, Myers presented evidence in support of her allegations that the Navy breached its duty of care in the following ways: (1) the Navy violated its own established policies set forth in the Manual by failing to have a CIH review the HASP for the Camp Pendleton project before the work of disposing of contaminated soils in the landfill began; and (2) the Navy’s designated QAO acted negligently by failing to oversee the air (dust) monitoring plan carried out by IT/ OHM. Post-trial briefs were submitted in May 2006. The case then languished for the next three years. When the district court finally entered its Decision with Findings of Fact and Conclusions of Law (Decision) on the first phase of the bench trial, it offered no explanation for the long delay. The Decision did, however, state that the court found “that the Government did act reasonably,” leading the court to find in favor of the Navy and against the plaintiff. In reaching this conclusion, however, the district court relied, in part, on the determination of a “causation” issue — whether Myers was exposed to thallium from the OU-3 project, a question on which Myers had not been fully heard — in what was supposed to be the “breach of duty” phase of the trial. The Decision also stated that, “[mjoreover, Defendant’s actions fall within the discretionary function exception.” This ruling was a reversal, without explanation, of the district court’s denial of the Navy’s motion to dismiss, which had raised the “discretionary function” exception as a bar to Myers’s suit. The district court’s Decision on phase one of the bench trial obviated the need for phases two and three. This appeal followed. II. LEGAL ANALYSIS This appeal presents two primary issues: (1) Did the district court commit reversible error in finding that Myers’s claims were barred by the “discretionary function” ex ception? and (2) Did the district court commit reversible error in finding that the United States acted “reasonably” in fulfilling its duty to ensure that IT/OHM used proper safety precautions during the soil remediation project? A. Applicability Of The “Discretionary Function” Exception 1. Standard of review We review de novo the dismissal of a FTCA suit for lack of subject matter jurisdiction under the “discretionary function” exception. See Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir.2008). We review determinations of underlying facts for clear error. Autery v. United States, 424 F.3d 944, 956 (9th Cir.2005). 2. The “discretionary function” exception The FTCA waives the government’s sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment. Among the exceptions to that waiver is the “discretionary function exception,” which provides immunity from suit for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The “discretionary function” exception insulates certain governmental decisionmaking from “‘judicial “second guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ ” Terbush, 516 F.3d at 1129 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). “The government bears the burden of proving that the discretionary function exception applies.” GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir.2002); see also Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir.2005) (same). The two-prong test to determine the applicability of the exception requires the court to determine (1) whether challenged actions involve an element of judgment or choice; and (2) if a specific course of action is not specified, whether the discretion left to the government is of the kind that the discretionary function exception was designed to shield, namely, actions and decisions based on considerations of public policy. Terbush, 516 F.3d at 1129 (citing Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). The first-prong inquiry “looks at the ‘nature of the conduct, rather than the status of the actor’ and the discretionary element is not met where ‘a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.’ ” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). “If there is such a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee ‘has no rightful option but to adhere to the directive.’ ” Id. On the other hand, if there is no statute or policy directing mandatory and specific action, the court must continue to the second prong of the analysis. Id. The second prong requires the court to determine whether the discretion left to the government is the kind of discretion protected by “public policy,” which is “understood to include decisions grounded in social, economic, or political policy.” Id. (internal quotation marks omitted). “Even if the decision is an abuse of the discretion granted, the exception will apply.” Id. 3. Analysis a. Direction of “mandatory and specific” action Myers argues that there are two sources of mandatory and specific action in this case: The Manual provision requiring the Navy to review HASPs and the FFA provision requiring the project QAO to ensure that all work is performed in accordance with approved work plans, sampling plans, and QAPPS. The Navy argues that neither source imposed sufficiently specific requirements to divest the Navy of its discretion. i. Manual provisions. On appeal, Myers asserts that the Manual required that the HASP be reviewed by the Navy’s CIH or similar competent person, not just by an employee of the contractor. The Navy argues that the provision of the Manual on which Myers relies does not specify how any review of the HASP was to be conducted and was not specific enough to remove discretion. The Navy also contends that the HASP was reviewed by the contractor’s CIH. The district court made no findings on this issue. The relevant provision in the Manual, ¶ 0407.C, uses the unambiguously mandatory “shall” in stating the requirement for review of HASPs “by a competent person.” A competent person is defined as a CIH or “equivalent by training and/or experience.” The preceding provision in the Manual specifies that “[e]ach NAVFACENGCOM activity shall ensure that plans are reviewed and accepted prior to issuing the Notice to Proceed.” Manual, ¶ 0407.b. Because the NAVFACENGCOM is the Naval Facilities Engineering Command, and this provision is also cast in the unambiguously mandatory terms “shall ensure,” this provision imposed upon the Navy itself a “mandatory and specific” duty to ensure that plans were reviewed and accepted. See Terbush, 516 F.3d at 1129. In short, read in conjunction, paragraphs 0407.b and 0407.C of the Manual required review of HASPs by the Navy’s “competent person.” No meaningful review — and certainly no meaningful review by the Navy — would be accomplished by having a contractor’s CIH review the contractor’s own HASP, particularly if the contractor’s CIH is also the author of the contractor’s HASP, as is the case here. This “federal ... policy specifically prescribes a course of action for an employee to follow,” review by the Navy of a contractor’s HASP by a competent person, such that “the employee has no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Thus, the Manual “specifically prescribes a course of conduct,” leaving nothing to the Navy’s discretion. See Kelly v. United States, 241 F.3d 755, 761 (9th Cir.2001). The provision is not so uncertain in its definition of the requisite training of the person conducting the review that it is “discretionary.” Rather, the provision expressly requires review by “a certified industrial hygienist [(CIH)] or equivalent by training and/or experience.” Manual, ¶ 0407.C. (emphasis added). This specification of “equivalence” to a CIH “by training and/or experience” is sufficiently specific to define the requisite training of the person conducting the review. Although some professional judgment might be involved in deciding whether or not a particular person actually is the “equivalent” of a CIH by training and/or experience, that professional judgment is not the same as “discretion.” Moreover, in Bolt v. United States, 509 F.3d 1028 (9th Cir.2007), this court found that a comparable policy provision was sufficiently mandatory and specific to make the “discretionary function” exception inapplicable. In Bolt, this court held that the Army’s Snow Removal Policy was sufficiently “specific and mandatory” to avoid application of the “discretionary function” exception, where it required that snow be removed from family housing parking areas “once per year in late February or March.” Bolt, 509 F.3d at 1032-33. This court found that this provision “expressly impose[d] a specific and mandatory duty to clear Family Housing Parking Areas of snow and ice once a year, before the end of March,” so that the Army had failed its burden under the first prong of the “discretionary function” analysis. Id at 1033. This was so, even though the policy did not specify how the snow was to be removed or the training or qualifications of the person to perform the snow removal. See also Vickers v. United States, 228 F.3d 944 (9th Cir.2000). Even supposing that the Navy had some discretion in the fulfillment of its duty to review HASPs, it had no discretion under the policy expressed in the Manual about whether or not to review the HASP at all and no discretion for such a review to be performed by anyone other than a Navy CIH or other competent person. Therefore, upon de novo review, we hold that the district court erred in determining that the Navy had met its burden on the first prong of the “discretionary function” analysis, because the Manual did impose “mandatory and specific” requirements for review by the Navy of the contractor’s HASP. Terbush, 516 F.3d at 1129. Because the Manual directed mandatory and specific action, “the inquiry comes to an end because there can be no element of discretion when an employee ‘has no rightful option but to adhere to the directive,’ ” and the “discretionary function” exception is inapplicable. Id (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). ii. FFA provisions. Myers also argues that the FFA included mandatory and specific provisions regarding the Navy’s obligation to ensure that safety procedures were followed. Specifically, she relies on the provision of the FFA requiring the Navy to designate a QAO to oversee field work and to ensure compliance with work plans and sampling plans. FFA, ¶ 20.1. The Navy contends that this provision did not specifically describe how the QAO was to ensure compliance with work or safety plans, nor did it remove discretion to delegate certain functions to the contractor. The district court did address this dispute, at least in its 2004 ruling on the Navy’s motion to dismiss: The district court held that the FFA did not create any mandatory duty, because it did not specify how the Navy would carry out its duty to supervise. In its ruling on the first phase of the bench trial, the district court did not specifically address the FFA provisions at issue. The district court did conclude, however, that “the evidence showed that Defendant made policy-based decisions regarding discretionary questions of whether to do the remediation work at all, and whether to do the work itself — or select a contractor.” The FFA provision at issue, like the Manual provision discussed above, uses mandatory language: The QAO “will era sure that all work is performed in accordance with approved work plans, sampling plans and QAPPS” and “shall maintain for inspection a log of quality assurance field activities and provide a copy to the Parties upon request.” FFA, ¶ 20.1 (emphasis added). Again, these provisions “specifically prescribe[ ] a course of action for an employee [the QAO] to follow,” such that “the employee [the QAO] has no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 586, 108 S.Ct. 1954. Unlike the provisions of the Manual discussed above, however, the first provision, at least, does not “indicate what the [Navy] must do to comply” with the QAO’s duty to “ensure” that all work is performed in accordance with work and sampling plans. Thus, it does leave that aspect to the government’s discretion. The second provision, which undisputably requires that the QAO “maintain” a log, also is not sufficiently specific as to what must be logged as a “quality assurance field activity.” We affirm the district court’s conclusion that the cited provisions of the FFA are “discretionary.” Thus, at least as to the FFA provisions upon which Myers relies, the court must proceed to the second prong of the “discretionary function” inquiry. Terbush, 516 F.3d at 1129. b. Decisions based on public policy Even if neither the Manual provisions or the FFA provisions on which Myers relies mandates a specific course of action, that is not the end of the “discretionary function” analysis. Instead, the court must then consider, in the second prong of the “discretionary function” inquiry, whether the judgment left to the agency is of the kind that the “discretionary function” exception was designed to shield, that is, governmental actions and decisions based on considerations of public policy. Terbush, 516 F.3d at 1129. The district court held that “the evidence showed that Defendant made policy-based decisions regarding discretionary questions of whether to do the remediation work at all, and whether to do the work itself — or select a contractor.” The district court apparently also concluded that the Navy made policy-based decisions about requirements for experience and training of key employees of the contractor, the frequency and degree of oversight by Navy employees, and the involvement of other federal agencies. Myers argues that, once the Navy undertook responsibility for the safety of the project, the execution of that responsibility was not subject to the “discretionary function” exception, because execution of safety standards is not susceptible to a policy analysis. The Navy argues that the government’s discretionary oversight of a contractor, even of the contractor’s compliance with safety standards, is immune from tort suit by virtue of the “discretionary function” exception and that the Navy never took on the responsibility of approving every step of every action of its remediation contractor, but instead relied on its contractor’s expertise. This court must determine whether the work of remediation of contaminated soil would involve protected policy judgments. Terbush, 516 F.3d at 1133. Specifically, “[t]he focus of our inquiry is ‘on the nature of the actions taken and on whether they are susceptible to policy analysis.’” Id. (quoting United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). “[I]t is therefore ‘insufficient for the government to show merely that some choice was involved in the decision-making process. The balancing of policy considerations is a necessary prerequisite.’” Bolt, 509 F.3d at 1033 (quoting ARA Leisure Servs. v. United States, 831 F.2d 193, 194 (9th Cir.1987), with alterations and internal quotation marks omitted by the Bolt court). As explained in Terbush, “[t]he decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not....” Terbush, 516 F.3d at 1133 (internal quotation marks omitted). There is a recognized exception: “The implementation of a government policy is shielded where the implementation itself implicates policy concerns, such as where government officials must consider competing firefighter safety and public safety considerations in deciding how to fight a forest fire.” Id. (internal quotation marks omitted). This case falls within the general rule, not the exception. The district court’s conclusion that the Navy’s decision about whether or not to pursue the remediation project at all was a discretionary one informed by public policy considerations misses the point, even if it were correct, where Camp Pendleton was on the EPA’s “National Priorities List” of sites requiring environmental cleanup. Because “[t]he focus of our inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis,” id. at 1133 (internal quotation marks omitted), we look at the nature of the actions in conducting the remediation project, not the decision to undertake the remediation project. With the focus properly on the conduct of the remediation project, it is well to remember that “matters of scientific and professional judgment — particularly judgments concerning safety — are rarely considered to be susceptible to social, economic, or political policy.” Whisnant, 400 F.3d at 1181; Bear Medicine, 241 F.3d at 1214. More specifically, this court has held that “implementation” of a course of action is not a discretionary function. Id. Thus, while the Navy contends that its determinations about how much safety oversight was required were susceptible to policy considerations, those determinations properly fell within the scope of professional judgments about implementation of the safety plan that were not susceptible to public policy considerations. This case is similar in all important respects to Bear Medicine. What is at issue here, as in Bear Medicine, is not just a general statutory obligation to promote safety, but “a failure to effectuate policy choices already made” that are not protected under the discretionary function exception. See Bear Medicine, 241 F.3d at 1215 (quoting Camozzi v. Roland/Miller and Hope Consulting Group, 866 F.2d 287, 290 (9th Cir.1989)). Even if the Navy did have discretion in its monitoring of IT/ OHM’s actions, the Navy’s actions in carrying out its responsibilities were not protected policy judgments. Id. In other words, “once the[Navy] ha[d] undertaken responsibility for the safety of [the OU-3] project, the execution of that responsibility [wa]s not subject to the discretionary function exception,” and “[t]he decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not.” Id. Like the government’s argument in Bear Medicine, the Navy’s argument here “ ‘would essentially allow the Government to “administratively immunize itself from tort liability under applicable state law as a matter of ‘policy.’ ” ’ ” Id. (quoting McGarry v. United States, 549 F.2d 587, 591 (9th Cir.1976)). The Navy’s attempts to distinguish Bear Medicine are unavailing. First, the Navy asserts that Bear Medicine is distinguishable, because the agency in that case retained for itself the responsibility to regularly inspect the work (the logging) to ensure adherence to basic safety practices, but the Navy did not do so here. This assertion is simply wrong, and any such finding is clearly erroneous, because it is without “support in inferences that may be drawn from the facts in the record.” Hinkson, 585 F.3d at 1262 (citations and internal quotation marks omitted). The Manual retained the Navy’s responsibility to review HASPs, and the FFA required the Navy’s QAO to ensure that all work was performed in accordance with approved work and sampling plans and to maintain for inspection a log of quality assurance field activities. Thus, in this case, as in Bear Medicine, the Navy was required to ensure that the contractor complied with the safety provisions of the contract. Bear Medicine, 241 F.3d at 1217. Like the BIA’s failure in Bear Medicine, the Navy’s failure to have IT/OHM’s HASP reviewed by the Navy’s own CIH or other competent person and the failure of the Navy’s QAO to inspect any air monitoring were not policy judgments that Congress intended to protect from FTCA liability. Id. The Navy also contends that Bear Medicine is distinguishable, because here, unlike the BIA in that case, the Navy presented evidence that policy factors influenced its conduct, including the efficient allocation of agency resources and the need to rely on the contractor’s expertise, because the Navy was not the organization with the required expertise. That argument is also unavailing, however. This court in Bear Medicine in fact rejected a contention that “limited resources” was a policy-based excuse for failure to adhere to accepted professional standards, id. at 1216-17, and it is no better as a policy-based excuse for failure to adhere to policy manual and contractual requirements. Thus, the Navy has also failed to carry its burden on the second prong of the “discretionary function” analysis. 4. Summary Upon de novo review, we find that the Navy failed to establish either prong of the “discretionary function” exception. Therefore, we reverse the district court’s determinations that Myers’s FTCA claim against the Navy is barred by the “discretionary function” exception and that the court lacked subject matter jurisdiction over that claim. B. Reasonableness Of The Navy’s Conduct Because we hold that Myers’s FTCA claims are not barred by the “discretionary function” exception, we must also consider whether the district court erred in holding that the Navy acted “reasonably.” Again, we reverse. We review the district court’s decision as to the reasonableness of the Navy’s conduct for clear error. Hinkson, 585 F.3d at 1262. “The government can be sued ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ ” Terbush, 516 F.3d at 1128-29 (quoting 28 U.S.C. § 1346(b)(1)). California law is applicable to Myers’s claim against the Navy, as California is “the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In FTCA cases, we have recognized that California’s “peculiar risk” doctrine, described in Restatement (Second) of Torts §§ 413 and 416, is an exception to the general rule that a principal is not liable for torts committed by an independent contractor. Yanez v. United States, 63 F.3d 870, 872 (9th Cir.1995). “[Section 416 liability has been construed as creating direct liability for the government’s nondelegable duty to ensure that the contractor employs proper safety procedures.” Id. at 873 n. 1. Thus, “under California’s nondelegable duty doctrine, the United States is directly liable for its own negligence when it fails to ensure that an independent contractor takes adequate safety precautions and the work to be performed involves special dangers.” Gardner v. United States, 780 F.2d 835, 838 (9th Cir.1986); McGarry v. United States, 549 F.2d 587, 590 (9th Cir.1976), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977); Thorne v. United States, 479 F.2d 804, 808-09 (9th Cir.1973). This nondelegable duty is one of “reasonable care.” Restatement (Second) of Torts §§ 413 and 416. The district court stated, “Under California law, the foreseeability of harm and thus the necessary safety precautions to prevent the foreseeable harm is key to understanding Defendant’s duty.” The district court cited no authority for this “key” proposition, however. The district court found that the risk that Myers or anyone else would be exposed to thallium from the landfill project was not foreseeable. The California Supreme Court has defined “peculiar risk” as a risk “that is peculiar to the work to be done, arising either from the nature or the location of the work and against which a reasonable person would recognize the necessity of taking special precautions.” Privette v. Superior Court, 5 Cal.4th 689, 695, 21 Cal.Rptr.2d 72, 854 P.2d 721 (1993) (internal quotation marks omitted). Indeed, “[i]t is the foreseeability of that special risk which justifies the imposition of liability.” Holman v. State of California, 53 Cal.App.3d 317, 124 Cal.Rptr. 773, 781 (1975). The district court was correct that “foreseeability” figures in both the determination of the alleged tortfeasor’s duty and whether the tortfeasor breached that duty, that is, acted unreasonably. California courts have explained the distinction between “foreseeability” in the “duty” context and “foreseeability” in the “breach” context, as follows: “[W]hile foreseeability with respect to duty is determined by focusing on the general character of the event and inquiring whether such event is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct, foreseeability in evaluating negligence and causation requires a more focused, fact-specific inquiry that takes into account a particular plaintiffs injuries and the particular defendant’s conduct.” Laabs v. S. Cal. Edison Co., 175 Cal.App.4th 1260, 97 Cal.Rptr.3d 241, 251-52 (2009) (internal citations omitted). Here, prior to the bench trial, in response to Myers’s motion in limine, the Navy had already conceded that the OU-3 project involved “peculiar risk.” Thus, “foreseeability” in the context of a determination of “duty” was no longer an issue. On the other hand, because the first phase of the bench trial was to determine whether the Navy breached its duty, it was appropriate for the district court to consider the “fact-specific” aspect of “foreseeability,” which “takes into account a particular plaintiffs injuries and the particular defendant’s conduct.” Id. The district court’s clear error here, in the context of “breach of duty,” was in relying on what it perceived to be a lack of proof of causation as determinative of the foreseeability of Myers’s injuries. The district court determined that it was not foreseeable that Myers would be exposed to thallium from the OU-3 project. This conclusion was based on its finding that there was no showing that thallium somehow migrated to Myers’s yard or school, because tests purportedly showed an “absence” of thallium in her home, her school, and her parents’ bodies. The district court also relied on its finding that Myers had not shown that any thallium that harmed her came from the Navy’s Box Canyon operations, because experts purportedly doubted that thallium could be transported in fugitive dust, and there had been only minimal levels of thallium in the contaminated soil to start with. The proper question in the “foreseeability” inquiry for purposes of determining whether the Navy breached its duty, however, was not whether Myers was exposed to thallium from the OU-3 project — a “causation” question that was properly reserved for a later phase of the trial, and on which Myers had not been fully heard at the time that the district court made its findings— but whether it was foreseeable that a person exposed to thallium would suffer the kinds of injury that Myers suffered. Id. (“foreseeability” in the context of “breach of duty” “takes into account a particular plaintiffs injuries”). Thus, the district court clearly erred by applying the wrong legal standard in its determination of “foreseeability.” Hinkson, 585 F.3d at 1262. The district court also found that it was not foreseeable that thallium would become windborne in fugitive dust or that dangerous levels of thallium would be present in migrating dust, because of the low concentration of thallium in the contaminated soil in the first place, so that there was “no [foreseeable] danger to be prevented.” Even if this “foreseeability” finding involved application of the correct legal standard, it was implausible and without support in inferences that may be drawn from the facts in the record, in light of evidence of the extreme toxicity of thallium and the provisions of the FFA and ROD establishing safety precautions, including dust suppression measures, to prevent exposure to “nearby receptors.” See ROD ¶2.5.8.1. The Navy’s argument that this provision of the ROD was not applicable to the 1999 soil removal and dumping project, but only applicable to the later “capping” project for the landfill in 2000, is illogical and implausible. It would be illogical to be concerned with dust suppression only during a capping project, but not while contaminated soil was actually being dumped into the landfill. The provision of the ROD that the Navy contends was applicable to the 1999 soil removal and dumping project, ROD ¶2.4.6.1, which mentions only “potential risk for workers,” but not for “nearby receptors,” expressly applied only to removal of contaminated soil from the-five contaminated sites in OU-3, not to dumping of the contaminated soil in the landfill. See ROD¶ 2.4.5. The district court relied on its findings that the Navy took care to prevent dangerous migration of thallium by having in place adequate safety measures and ensuring that the contractor was actually taking those safety measures, including regular safety meetings and site visits, selecting an experienced remediation contractor, requiring highly qualified people at important positions, and allowing other agencies to participate in the oversight and design of safety precautions. These findings of lack of foreseeability of harm and reasonableness of the Navy’s conduct, however, are clearly erroneous, in light of evidence of glaring omissions in the Navy’s safety oversight for the OU-3 project, which the district court simply ignored. First, the district court could not have found on this record that the Navy complied with the requirements in the Manual to have the HASP for the OU-3 project reviewed by a Navy CIH or equivalent person. As this court held above, the Manual required review by a Navy CIH or equivalent person, not just by the contractor’s CIH, and there is no evidence that either of the Navy’s CIHs or any other equivalent person from the Navy ever reviewed the HASP. Indeed, Mr. Bryson, one of the Navy’s CIHs, testified that, if the HASP had been reviewed by the Navy, a record of that review would exist on the computer database that Ms. Corbett maintained, but there is no such record. Certainly, the Navy has not asserted that there is any evidence demonstrating that Navy personnel reviewed the HASP. Evidence that the personnel in question did not recall reviewing the HASP and the lack of evidence that would ordinarily indicate that the Navy had reviewed the HASP lead to no logical or reasonable inference that Navy personnel did, in fact, review the HASP. Rather, the only reasonable inference from such evidence and the lack of any other evidence that one or both of the Navy’s CIHs reviewed the HASP is that the HASP was never reviewed. Violation of the mandatory duty to review the HASP is plainly a breach of the duty to exercise reasonable care to ensure that the contractor took reasonable care to follow required safety precautions. Restatement (Second) of Torts § 416. Second, there is no evidence that the Navy’s QAO ever took any steps to ensure that air monitoring samples were reviewed or that work was stopped if dust thresholds were exceeded, as required by the provision of the FFA stating that the QAO must “ensure that all work is performed in accordance with approved work plans, sampling plans and QAPPS [Quality Assurance Project Plans].” FFA, ¶20.1. Such a failing was unreasonable, even if the Navy could delegate air monitoring and responses to excessive dust levels to the contractor. In fact, the record evidence suggests that the contractor took advantage of the lack of oversight, because the contractor never stopped work, even when its own dust detection levels were exceeded. Furthermore, Myers has pointed to evidence that the contractor’s employee responsible for air monitoring was instructed not to stop work when “exceedences” occurred. Again, violation of the mandatory duty to ensure adherence to the safety plans is plainly a breach of the duty to exercise reasonable care to ensure that the contractor took reasonable care to follow required safety precautions. Restatement (Second) of Torts § 416. The district court’s finding that the Navy acted “reasonably” was clearly erroneous and is reversed. This matter must be remanded for phases two and three of the bench trial, “actual and proximate causation” and “damages,” respectively. C. Reassignment On Remand In the event that she obtains a reversal, Myers asserts that this matter should be remanded for further proceedings before a different judge, pursuant to 28 U.S.C. § 2106. The Navy did not address this issue in its briefing. We decline the invitation to reassign the case to a different judge on remand. The factors that we consider to determine whether reassignment is appropriate are the following: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously [] expressed views or findings determined to be erroneous based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1133 (9th Cir.2008) (quoting United States v. Sears, Roebuck & Co. Inc., 785 F.2d 777, 779 (9th Cir.1986)). We may direct reassignment of the case, even if we do not question the impartiality of the judge, in light of unusual factors indicating that a reassignment is advisable to preserve the appearance of justice. Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 373 (9th Cir.2005) Here, there is no real reason to question the impartiality of the trial judge, notwithstanding what we have found were numerous errors in his disposition of the case. Nor are we convinced that the errors we find are such that the trial judge would have substantial difficulty in putting out of his mind his previous findings. We are troubled by the undue — and unexplained— three-year delay between the conclusion of the first phase of the bench trial and the issuance of an opinion. We are not convinced, however, that this is of such gravity as to warrant reassignment of the case to preserve the appearance of justice. We conclude that it is not necessary to direct that this case be reassigned to another judge upon remand. Nevertheless, we trust that proceedings on remand will proceed expeditiously. Ill CONCLUSION Because the district court erred in holding that the “discretionary function” exception barred the Navy’s liability on and the court’s subject matter jurisdiction over Myers’s claim, and clearly erred in finding that the Navy acted “reasonably” and not in breach of its duty in conducting the remediation of contaminated soil in the project at issue here, we reverse and remand this action for further proceedings. Nevertheless, we find it unnecessary to reassign the case to a different judge on remand. REVERSED AND REMANDED. . Unless specific circumstances require otherwise, this opinion refers to the Navy, the United States Marine Corps, which is part of the Navy, and the United States, the defendant-appellee in this action, collectively as "the Navy.” . There is no question that thallium is highly toxic. According to a World Health Organization report from 1996, cited in the record, no study has determined a "no-observed-effect level” for exposure to thallium. World Health Organization, Environmental Health Criteria 182: Thallium 204-05 (1996). ThalHum is designated a "toxic pollutant” pursuant to § 307(a)(1) of the Clean Water Act, 40 C.F.R. § 401.15; 33 U.S.C. § 1317(a), and is, therefore, designated a CERCLA "hazardous substance” under 42 U.S.C. § 9601(14). Interestingly, Wikipedia notes, "Because of its use for murder, thallium has gained the nicknames ‘The Poisoner’s Poison’ and 'Inheritance Powder’ (alongside arsenic).” http://en. wikipedia.org/wiki/Thallium. It is not surprising, therefore, that thallium has been the weapon of choice for various fictional murderers. See, e.g., Agatha Christie, The Pale Horse (1961); Nigel Williams, The Wimble don Poisoner (1990); CSI: NY, “Page Turner” (first aired Oct. 1, 2008). . Myers’s suit also included state tort law claims against IT/OHM and another contractor, the Shaw Group. The Shaw Group filed a suggestion of bankruptcy and was dismissed. IT/OHM eventually settled the claims against it and was also dismissed. . The Navy argues that the evidence at trial showed that it adhered to this requirement, but the Navy has not cited, and this court has not found, any authority suggesting that whether or not the Navy adhered to the requirement is relevant to whether or not the “discretionary function" exception applies. . The dissent takes the position that we must remand for the district court to resolve factual issues before a legal ruling can be made on whether the Navy’s Manual provisions imposed a mandatory duty on the government. In our view, whether or not the Navy’s Manual provisions imposed a mandatory duty on the government is not primarily a factual inquiry, but a legal one, subject to de novo review. . Myers asserts that the district court's decision is not entitled to "clearly erroneous” review, as provided in Rule 52(a)(6) of the Federal Rules of Civil Procedure, because the district court failed to find facts "specially,” on various key factual disputes, as required by Rule 52(a)(1). The requirement to find facts "specially” when the action is tried without a jury or with an advisory jury is undoubtedly to facilitate appellate review. See Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1090 (9th Cir.2002). Even so, Myers has cited no authority for the proposition that the “clearly erroneous” standard of Rule 52(a)(6) is inapplicable if the requirements of Rule 52(a)(1) are not met. At best, the authority she cites, Gardner v. United States, 780 F.2d 835, 838 (9th Cir.1986), stands for the proposition that the appropriate remedy for such a failing is to remand the case for amplification of the district court's findings. We conclude that, if the trial court apparently ignored relevant evidence or failed to make necessary factual findings, then this court can find that "the trial court’s application of the correct legal standard was (1) 'illogical,' (2) 'implausible,' or (3) without 'support in inferences that may be drawn from the facts in the record.' ” Hinkson, 585 F.3d at 1262. In such circumstances, remand for amplification of the trial court's findings would not be necessary. . This duty does not survive as to a contractor’s employees, but does survive as to others, such as neighboring property owners or innocent bystanders, after the decision in Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (1993). See Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 (1998). . Myers notes that, notwithstanding the Navy’s concession, the district court stated in its Decision after the first phase of the bench trial that "the excavation, transportation, and deposition of soils contaminated with hazardous substances such as lead, manganese, or thallium is not necessarily an inherently dangerous activity.” Notwithstanding this observation, the district court assumed that the project involved inherently dangerous work, so that the district court did not clearly err by failing to apply the "peculiar risk” doctrine. . The district court’s finding that thallium was "absent” from Myers’s environment and its conclusion that, consequently, she had failed to show “causation,” was at best premature, when "causation” was an issue reserved for a later phase of the bench trial and an issue on which Myers had not been fully heard, and was at worst "without support in inferences that may be drawn from the facts in the record,” Hinkson, 585 F.3d at 1262, where it mischaracterizes the test results. Some of the test results did show thallium, and the parties disputed whether or not those results were within the error tolerance of the tests or the result of proper or improper interpretation of raw results. RAWLINSON, Circuit Judge, concurring in part, and dissenting in part: My most fundamental objection to the majority opinion is that the facts set forth in the opinion bear little resemblance to the findings of fact made by the district court following a bench trial. Rather than adopting the findings of fact made by the district court, as we are mandated to do absent a showing of clear error, see Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002), the majority completely rewrites the facts to such an extent that it decides a different case on different facts than that decided by the district court. Our precedent is to the contrary — the clear error standard of review “is significantly deferential, and we will accept the lower court’s findings of fact unless we are left with a definite and firm conviction that a mistake has been committed.” Lentini v. California Center for the Arts, 370 F.3d 837, 843 (9th Cir.2004) (citation and internal quotation marks omitted). A few examples will illustrate my point: • The district court found that at Site 1A, 154 soil samples were taken and only one sample exceeded the safe standard for thallium. Similarly, of the 99 soil samples taken from Site 2A, only two exceeded the safe standard for thallium. The district court found that two of the exceedences were slight and one appeared to be due to an unreliable test result. The district court specifically found that lead was of greater prevalence “and was considered to be the primary risk to health.” District Court Opinion, p. 4. The majority opinion translates the district court’s finding into a histrionic description of the poisonous nature of thallium and a reference to the Navy’s Record of Decision (ROD) to disregard the district court’s finding. Majority Opinion, pp. 1024-25 and n. 2. This approach is the antithesis of our charge. Indeed, if there is “suppoH in inferences that may be drawn from facts in the record,” the district court’s finding cannot be clearly erroneous. USAA Federal Savings Bank v. Thacker (In Re Taylor), 599 F.3d 880, 888 (9th Cir.2010). The district court was not required to parrot the ROD or any other document or testimony that was part of the evidence presented. Rather, the district court, after considering all the evidence, made its ftndings. The district court specifically relied on evidence that “[sjampling data revealed few concentrations of thallium at very low levels.” District Court Opinion, p. 4. That finding was supported by the testimony of the industrial hygienist assigned to the project by the contractor. • The district court found that the air monitors used by the contractor “were appropriate for the task.” District Court Opinion, p. 7. The majority opinion makes what can only be characterized as an inappropriate contrary finding that “the air monitoring device specified did not monitor ‘total dust’ but only dust particles smaller than a certain size.” Majority Opinion, pp. 1025. However, the majority’s finding on appeal is contrary to the explicit testimony of the assigned industrial hygienist that total dust was measured. The district court acted completely within its dis cretion as the factfinder to credit this testimony rather than the testimony offered on behalf of the Plaintiffs. • The district court found that the contractor’s industrial hygienist “had on-site responsibility and authority to stop work if working conditions presented a risk to health and safety.” District Court Opinion, p. 4. The majority opinion concludes that because neither of the Navy’s industrial hygienists reviewed the health and safety plan, the Navy failed to meet its obligations under the governing agreement. See Majority Opinion, p. 1025-26. However, nothing in the governing agreement required the industrial hygienist to be a Navy employee. • The district court found that: [t]he Defendant never received any complaints in 1999 from residents of the adjacent housing complex or the elementary school about blowing dust from Box Canyon. Of the various health and safety officials that routinely visited the site, none observed conditions causing concerns. A teacher at the elementary school testified that her classroom faced the landfill. Daily, the teacher was in a position to notice whether dust was spreading towards either the school grounds or farther to the school buildings. The school teacher testified that over the life of the Box Canyon project, she observed dust coming over the fence onto the school grounds on only two or three occasions, and that each time the dust came over the perimeter fence, it did not approach the school District Court Opinion, p. 7. The district court credited the Navy’s proffered testimony regarding the measures taken to prevent dust on the site, and specifically credited the testimony of the assigned industrial hygienist in finding that “[a]ny visible dust was likely from uncontaminated soil.” Id. The district court acknowledged that “there were occasions where the action level for airborne dust was exceeded ...” Id., pp. 7-8. However, the district court attributed that to the fact that the “action level” set by the contractor was so low that there were exceedences where there was no visible dust.” Id., p. 8. The majority’s version reads: “The district court found that there were ‘occasions’ in the course of the project when the air monitoring equipment registered dust levels in excess of the levels that were supposed to require work stoppages (called “exceedences” by the parties) but did not note that record evidence showed that such exceedences occurred more than two hundred times.... It is undisputed that the work was never stopped because of these exceedences.... [T]he Navy’s QAO for the project, Nars Ancog, never looked at the air monitoring data collected by [the contractor] nor did anyone else from the Navy. Residents in the nearby Wire Mountain Family Housing area testified that, at times during the remediation project in 1999, visible clouds of dust blew from the landfill ...” Majority Opinion, p. 1026. This unmitigated and unauthorized appellate factfinding flies directly in the face of testimony from the assigned hygienist that the exceedences required work stoppage only if the dust could not be controlled. The district court’s acceptance of that testimony was completely consistent with its factfinding function. • As to the Plaintiffs specific allegations, the district court found that tests conducted in 2000 at Box Canyon, and at the adjacent housing com plex and school revealed “no elevated levels of thallium.” Soil samples from Plaintiffs residence and “swipe samples” from inside the residence contained no thallium. The district court noted that there was “mixed testimony” about the results of the urine samples, but found that the evidence failed to connect any exposure to “the Government’s negligence in employing and supervising its contractor.” District Court Opinion, p. 8. The majority opinion contrasts the following “assertions” by the Navy and “contentions” by the Plaintiffs: 1) the samples were taken months after the project and following a windy, rainy winter; 2) the Navy’s report was inconsistent with the raw data; and 3) Plaintiffs’ expert’s opinion was that thallium was present in Plaintiffs’ residence and adjacent homes. Majority Opinion, p. 1026-27. The existence of counter assertions and contentions between the parties invokes the quintessential factfinding function of a trial judge, which we review for clear error. See Zivkovic, 302 F.3d at 1088. Rather than doing so, the majority completely disregards the district court’s findings, conducts a retrial on appeal and finds for the Plaintiffs on the bases that the discretionary function exception did not apply and that the Navy acted unreasonably during the project. I disagree on both counts. 1. The Discretionary Function Exception a. The Manual Provisions The majority opinion’s analysis falters with its acknowledgment that the district court failed to make findings regarding whether the provision in the Manual was mandatory or whether it required review of the safety plans by Navy personnel. See Majority Opinion, p. 1029. Following a bench trial, if the findings are inadequate on a contested issue, it is our obligation to remand the issue to the district court to resolve the factual dispute. See Zivkovic, 302 F.3d at 1090-91. Rather than adhering to this basic precept of appellate review, the majority opinion completely usurps the function of the district court. See Fisher v. Roe, 263 F.3d 906, 912 (9th Cir.2001), abrogated on other grounds in Mancuso v. Olivarez, 292 F.3d 939, 944 n. 1 (9th Cir.2002) (“This case graphically illustrates one of the bread and butter principles of appellate review that governs the manner in which we measure the work of a trial court. Trial courts find facts. We do not.”) The majority professes to make a legal conclusion that the Safety and Health Program Manual required review of the health and safety plan by a Navy hygienist. See Majority Opinion, p. 1030 n. 5. However, in truth no provision of the manual mandates use of a Navy hygienist. And the district court judge credited express testimony from the author of the Manual that there was never any intent to utilize a Navy hygienist. Once again, the majority completely usurps the factfinding function of the trial judge, disregards the evidence and retries the case. Because I would remand for the district court to resolve the factual issue that must be resolved before a legal ruling can be made, I dissent from the majority’s conclusion that the Navy Manual provisions imposed a mandatory duty on the government. b. The Federal Facility Agreement Provisions The majority opinion concludes, and I agree, that the provisions in the agreement were not sufficiently specific to render them mandatory requirements. See Majority Opinion, p. 1030-31. The majority then proceeds to consider whether the discretion conferred upon the Navy was based on considerations of public policy. See id., p. 1030, citing Terbush v.United States, 516 F.3d 1125, 1129 (9th Cir.2008). In Terbush, we recognized a clear distinction between decisions involving routine maintenance, that do not involve policy considerations and more extensive undertakings that do implicate policy considerations. See id. at 1133-34. We cited as examples of routine maintenance snow removal and removing mold from a commissary meat department. See id. In contrast, we observed that “repairing [a] roadside wall involved balancing several policy considerations.” Id. at 1134. The majority opinion concludes that the outcome of this case is dictated by Marlys Bear Medicine v. United States, 241 F.3d 1208 (9th Cir.2001). See Majority Opinion, pp. 1032-33. However, the majority’s conclusion is irretrievably tainted by the impermissible factfinding reflected in its statement of facts. To support its conclusion, the majority opinion relies on “the Navy’s failure to have [the contractor’s health and safety plan] reviewed by the Navy’s own [industrial hygienist] or other competent person and the failure of the Navy’s [Quality Assurance Officer] to inspect any ah’ monitoring ...” Majority Opinion, p. 1033. However, as the majority previously noted, the district court made no findings regarding whether the Navy Manual required use of a Navy hygienist or whether use of the contractor’s hygienist would satisfy the requirement. Rather than acknowledging that the lack of findings precludes appellate review, and remanding for appropriate findings, the majority engages in appellate factfinding to conclude that the Navy failed to meet its obligations to review the contractor’s health and safety plan. See Majority Opinion, pp. 1029-30. I cannot co-sign this blatant departure from the confines of appropriate appellate review. 2. Reasonableness of the Navy’s Conduct As an initial matter, the majority concludes that failure by the district court to make adequate findings on this issue would support a finding of clear error. See Majority Opinion, p. 1033 n. 6. Although the majority cites United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) to support this conclusion, Hinkson says no such thing. Rather, Hinkson reiterates that on appeal the factual findings of the district court are reviewed. See id. at 1263 (“[W]e look to whether the trial court’s resolution ... resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.”). This test presupposes the existence of reviewable factual findings. In the absence of adequate factual findings, Zivkovic instructs us to remand to the district court. Having cleared the way by misplaced reliance on Hinkson, the majority then unabashedly retries the case. For example, the majority opinion accuses the district court of “mischaracteriz[ing] the test results regarding the presence of thallium.” Majority Opinion, pp. 1036-34. However, the record reflects that the district court credited the testimony of the Navy’s experts over that of the Plaintiffs’ experts. See District Court Opinion, p. 8. In fact, the majority concedes that there was a dispute between the parties on this point. See Majority Opinion, p. 1035 n. 9. When a trier of fact resolves such a dispute, no clear error occurs. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”) (citations omitted). The other two bases supporting the majority’s conclusion are similarly deficient. See Majority Opinion, pp. 1036-37. As previously discussed, because the majority recognizes that there were not adequate findings made regarding the industrial hygienist requirement, the matter should be remanded. The discussion regarding the air monitoring samples is simply a reiteration of the impermissible reweighing of the facts described above. In sum, the majority opinion’s analysis and final conclusions are irreversibly tainted by its failure to adhere to the fundamental precepts of appellate review. Although I agree that additional factfinding is warranted, it should be done by the district court and not by this panel. Accordingly, I concur in that portion of the majority opinion concluding that additional factfinding is warranted. However, I would remand the case to the district court for that additional factfinding rather than direct a verdict for Plaintiffs as the majority has done. I also agree that there is no need to assign the case to a different judge on remand. For the reasons discussed, I respectfully dissent from the balance of the majority opinion. . I also disagree profoundly with the majority’s discussion of foreseeability. However, I will not unnecessarily lengthen my dissent by detailing my different view on this point because the majority’s wholesale disregard of the district court's factual findings (and lack of findings where applicable) sufficiently call into question the analysis employed by the majority.

SILER, Circuit Judge. Plaintiffs Zide Sport Shop of Ohio, Inc., Robert M. Zide (“Zide”), Rodney M. Zide (“Rodney”) and Pro-Line, Inc. (“Pro-Line”) filed a declaratory judgment action against defendants Ed Tobergte Associates, Inc. (“ETA”) and Edward Tobergte in the Southern District of Ohio. Subsequent to the plaintiffs’ filing but before being served with the complaint, the defendants filed suit against the plaintiffs in the District of Kansas. Upon defendants’ motion, the Southern District of Ohio dismissed plaintiffs’ declaratory judgment action. We affirm. I. Background This case arises from various business dealings among the plaintiffs and defendants. Prior to its dissolution in December 1996, Gear 2000, Ltd. (“Gear 2000”) purchased all rights to the Air Release shoulder pad from Zide, James Rector, and Pro-Line. Gear 2000 also purchased assets in Athletic Technologies, Inc. (“ATI”), a corporation that was chaired by Zide. Gear 2000 and ATI entered into a noncompetition agreement, which limited ATI’s rights. Furthermore, Pro-Line and Zide each entered into an agreement to provide various professional services to Gear 2000. In December 1996, Gear 2000 dissolved, entering into an asset purchase agreement with ETA Pursuant to that agreement. ETA purchased Gear 2000 assets and continued to conduct business under the name Gear 2000. Zide, Rector, Pro-Line, and ATI were accused of violating various agreements that they had with Gear 2000. In November 1998, Robert Zide received a letter from counsel representing “Gear 2000”— counsel really represented ETA and Ed Tobergte as successors in interest to Gear 2000 — that accused him of trademark infringement and breaching agreements made with Gear 2000. The letter stated that Gear 2000 would pursue a legal remedy if necessary, but that it would be willing to settle. Over the next few months, the parties made various settlement demands and offers. No settlement offers were made after February 25, 1999. On that date, Gear 2000 sent a letter to Zide’s counsel stating that “it would file suit if [it] did not receive a serious settlement offer within seven days____” Zide then obtained new counsel and, on March 3, 1999, that new counsel requested a twenty-five day extension so that he could review the matter and respond to Gear 2000’s previous letter. “[I]n the spirit of settlement,” Gear 2000 granted Zide a “final extension” until March 26,1999. On March 25, 1999, one day before the extension expired, the plaintiffs filed an action against the defendants in the Southern District of Ohio seeking trademark cancellation and declaratory relief. Rather than serving the defendants, Zide’s counsel sent them a letter listing six reasons why his clients possessed no liability. The letter was drafted on March 26, 1999, and it did not inform the defendants of the federal action filed against them a day earlier. No further communication took place among the parties until May 11, 1999. On May 11, 1999, ETA filed suit against the plaintiffs and others in the District of Kansas. ETA alleged federal and common law trademark infringement, unfair compe tition, breach of contract, tortious interference with contract, and interference with prospective business advantage. That same day, the plaintiffs were served with ETA’s complaint. So that they could obtain Kansas counsel, the plaintiffs were given an extension of time, until July 2, 1999, to answer ETA’s complaint. On July 1, 1999, Zide filed an amended complaint in the Southern District of Ohio. The amended complaint added Rodney and Pro-Line, parties named in the Kansas action, as plaintiffs. ETA. d/b/a Gear 2000 and Edward Tobergte remained the defendants. The amended complaint sought cancellation of the AIR RELEASE® trademark and declaratory relief pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201. On July 2, 1999, defendants were served with the both the original March 25, 1999 and the amended July 1,1999 complaints. Defendants filed a motion asking the Southern District of Ohio to exercise its discretion not to hear plaintiffs’ declaratory judgment action by either dismissing or, in the alternative, transferring that action. The Southern District of Ohio granted the motion and dismissed the action. II. Standard of Review Prior to the Supreme Court’s decision in Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), this court “held that entertainment of a declaratory judgment action is discretionary with the trial court, but that that discretion is reviewable on a de novo basis by the Court of Appeals.... ” American Home Assurance Co. v. Evans, 791 F.2d 61 (6th Cir.1986). But in Wilton, a declaratory judgment case where a parallel state proceeding existed, the Supreme Court stated: [District courts’ decisions about the propriety of hearing declaratory judgment actions, which are necessarily bound up with their decisions about the propriety of granting declaratory relief, should be reviewed for abuse of discretion. We do not attempt at this time to delineate the outer boundaries of that discretion in other cases, for example, cases raising issues of federal law or cases in which there are no parallel state proceedings. 515 U.S. at 289-90, 115 S.Ct. 2137. Plaintiffs argue that Wilton establishes an abuse of discretion standard for declaratory judgment actions only where a parallel state proceeding exists. In cases where no parallel state proceeding exists, such as this case, they contend that this court should still apply de novo review. We reject plaintiffs’ position that de novo review is still appropriate in cases where no parallel state proceeding exists. Since Wilton, we have applied the abuse of discretion standard in all cases where district courts have decided whether to entertain declaratory judgment actions. See, e.g., Foundation for Interior Design Educ. Research v. Savannah Coll of Art & Design, 244 F.3d 521, 526 (6th Cir.2001) (applying the abuse of discretion standard where no parallel state proceeding existed); Scottsdale Ins. Co. v.. Roumph, 211 F.3d 964, 967 (6th Cir.2000) (applying the abuse of discretion standard where a parallel state proceeding existed). Therefore, we will review for abuse of discretion here. III. Discussion Plaintiffs contend that the Southern District of Ohio abused its discretion by dismissing their declaratory judgment action. They argue that a) the first-to-file rule precluded dismissal and b) the district court misapplied the standard used to determine whether it should entertain a declaratory judgment action. a. First-To-File Rule A plaintiff has 120 days after he files his complaint with the court to effect service of the summons and complaint upon a defendant. See Fed.R.Civ.P. 4(m). For purposes of first-to-file chronology, the date that an original complaint is filed controls. See Plating Res., Inc. v. UTI Corp., 47 F.Supp.2d 899, 904 (N.D.Ohio 1999). The first-to-file rule is a well-established doctrine that encourages comity among federal courts of equal rank. The rule provides that when actions involving nearly identical parties and issues have been filed in two different district courts, “the court in which the first suit was filed should generally proceed to judgment.” In re Burley, 738 F.2d 981, 988 (9th Cir. 1984). The Sixth Circuit has referenced the rule without discussing it by name, see In re American Med. Sys., Inc., 75 F.3d 1069, 1088 (6th Cir.1996); Barber-Greene v. Blaw-Knox Co., 239 F.2d 774, 778 (6th Cir.1957), while other circuits have explicitly applied it. See, e.g., Boatmen’s First Nat. Bank of Kansas City v. Kansas Pub. Employees Ret. Sys., 57 F.3d 638 (8th Cir.1995); E.E.O.C. v. University of Pennsylvania, 850 F.2d 969 (3d Cir.1988); In re Burley, 738 F.2d at 981. District courts have the discretion to dispense with the first-to-file rule where equity so demands. A plaintiff, even one who files first, does not have a right to bring a declaratory judgment action in the forum of his choosing. See, e.g., Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 749-50 (7th Cir. 1987) ((“[T]he mere fact that [plaintiff] filed its declaratory judgment action first does not give it a ‘right’ to choose a forum. This circuit has never adhered to a rigid ‘first to file’ rule. We decline [Plaintiffs] invitation ... to adopt such a rule here.”) (internal citations omitted)). Factors that weigh against enforcement of the first-to-file rule include extraordinary circumstances, inequitable conduct, bad faith, anticipatory suits, and forum shopping. See Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 628 (9th Cir.1991); University of Pennsylvania, 850 F.2d at 972. b. Declaratory Judgment Standard The Declaratory Judgment Act empowers the district court to entertain certain actions, but it does not compel it to exercise the jurisdiction thus granted to it. See 28 U.S.C. § 2201(a); Wilton, 515 U.S. at 282, 115 S.Ct. 2137. Discretion not to hear a declaratory judgment action, even where jurisdiction exists, is undisputed. See Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). The Sixth Circuit applies the following criteria to determine whether it is appropriate for a district court to issue a declaratory ruling: (1) when the judgment will serve a useful purpose in clarifying and settling the legal relationship in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. It follows that when neither of these results can be accomplished, the court should decline to render the declarations prayed. Grand Trunk Western R.R. Co. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir.1984) (quoting E. Borchard, Declaratory Judgments 299 (2d ed.1941)). In assessing whether to exercise its discretion to accept jurisdiction in a declaratory judgment action, a district court considers five specific factors: (1) whether the judgment would settle the controversy; (2) whether the declaratory judgment action would serve a useful purpose in clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata”; (4) whether the use of a declaratory action would increase the friction between our federal and state courts and improperly encroach on state jurisdiction; and (5) whether there is an alternative remedy that is better or more effective. Scottsdale, 211 F.3d at 968 (quoting Omaha Property & Cas. Ins. Co. v. Johnson, 923 F.2d 446, 447-48 (6th Cir.1991)). c. Analysis The Ohio district court reconciled the fírst-to-fíle rule and the declaratory judgment standard with the facts of this case. Even though it recognized that the plaintiffs were eligible for the fírst-to-fíle rule since their original complaint was filed on March 25, 1999, well before the defendants’ Kansas complaint was filed on May 11, 1999, the court exercised its discretion and declined to enforce the rule. Likewise, it exercised its discretion not to entertain the plaintiffs’ declaratory judgment action at all. In reaching its conclusions, the court found that the plaintiffs’ original complaint was filed in bad faith, and that the plaintiffs had engaged in procedural fencing. A finding of bad faith is overwhelmingly supported in the record. The plaintiffs misled the defendants by going along with written correspondence regarding settlement while, in fact, the plaintiffs had already filed but not served an anticipatory federal action. The plaintiffs knew that if a settlement was not reached, the defendants would seek legal recourse. Thus, they filed their federal action on March 25, 1999, the day before a negotiation extension period granted to them by the defendants expired. In a March 26, 1999 letter, plaintiffs’ counsel merely listed six reasons that his clients faced no liability — he did not inform defendants that a federal action had been filed against them in Ohio. As the district court stated: If Plaintiffs’ conduct was not mere deceptive gamesmanship, then they would have informed Defendants that they did not intend to make another settlement offer and would prefer to seek a judicial resolution. If it was not gamesmanship. Plaintiffs would not have filed suit in this Court during the extension period they requested for their new counsel. If it was not gamesmanship, they would have informed Defendants in the March 26, 1999 letter that they had filed suit. The court also found that the “[defendants likely would have filed the Kansas action in early March 1999 and not waited until May 1999” had the plaintiffs not requested the extension period. While Fed.R.Civ.P. 4(m) gives a plaintiff 120 days to serve a defendant before an action will be dismissed for lack of service, the rule does not state that a plaintiffs action cannot be dismissed during that 120 day period for other reasons. Here, the district court considered lack of service to be evidence of gamesmanship and procedural fencing, factors that also weigh in favor of dismissing a declaratory action. The plaintiffs did not serve defendants until July 2, 1999, after the plaintiffs had time to review the Kansas complaint. On July 1, 1999, in order to qualify for the first-to-file rule, the plaintiffs filed an amended complaint that incorporated parties and allegations first raised in the defendants’ Kansas action. Because the plaintiffs filed their complaint in bad faith and engaged in procedural fencing, the district court did not abuse its discretion by dismissing the plaintiffs’ action. AFFIRMED.

MEMORANDUM & ORDER GORTON, District Judge. This case arises from the alleged assault of Robert Sonia (“plaintiff’ or “Sonia”) by off-duty police officers at a bachelor party of police officer Daniel Avila (“Officer Avila”). Sonia brings claims for federal and state civil rights violations against defendant police officers David Hill (“Officer Hill”), Brendan Kelleher (“Officer Kelleher”), Yu Kajita (“Officer Kajita”) and Officer Avila (collectively, “Officers”). Sonia also asserts a claim against the Town of Brookline for failure to train and supervise the Officers, in violation of 42 U.S.C. § 1983. I. Factual Background The following facts are drawn from the Complaint and accepted as true for purposes of resolving the motion for judgment on the pleadings. Robert Sonia is employed as a driver for an adult entertainment company. On March 28, 2010, he was dispatched by his employer to transport an exotic dancer to a private party at 1774 Beacon Street in Brookline, Massachusetts. Upon their arrival at approximately 4:30 a.m., the party appeared to be over: only two men were present and both appeared to be intoxicated. One of the men informed Sonia that “the bachelor” had already left and the services of the dancer were no longer needed. The men then identified themselves as police officers and warned Sonia and the dancer to “get the f ... out” of the apartment. They complied. As plaintiff got into his car, another vehicle pulled up. Two men got out and entered the apartment. Before leaving, plaintiff called to inform his employer that the men had cancelled the session and refused to pay. During the call, the dancer noticed someone photographing their car. She informed the plaintiff and he got out of the car to investigate. Suddenly, out of the corner of his eye, he saw someone charging at him. The defendants converged and began punching and kicking him. The plaintiff staggered into the middle of the road, where the defendants forced him to the ground and handcuffed him with his hands behind his back. At least one neighbor witnessed the commotion and called 911. At some point thereafter, an ambulance and other police cruisers arrived. Emergency medical technicians placed the plaintiff on a stretcher and prepared to transport him to the hospital. A police sergeant who had arrived at the scene prevented the ambulance from leaving before the officers could discuss what happened. Plaintiff was eventually taken to the hospital, where he was diagnosed with a broken eye socket and broken ribs. II. Procedural History On April 18, 2011, Sonia filed a four-count Complaint in this Court. The first three claims were brought pursuant to 42 U.S.C. § 1983. Count I alleges that the Officers used excessive force in violation of his more general Fourth Amendment right to be free from unreasonable seizures. Count II alleges that the Officers conspired to deprive plaintiff of his constitutional rights by plotting to assault him and concocting a story they hoped would result in plaintiffs arrest and their exoneration. Count III alleges that the Town of Brook-line had a custom, policy or practice of failing to investigate, discipline, supervise or train its officers, which demonstrated a deliberate indifference to the plaintiffs rights and directly caused the constitutional violations alleged in Count I. Count IV is a state-law claim against the Officers for violation of the Massachusetts Civil Rights Act (“MCRA”). Plaintiff has since amended the Complaint to add state-law claims for battery (“Count V”), abuse of process (“Count VI”) and malicious prosecution (“Count VII”). In its Answer, the Town of Brookline filed cross-claims against the Officers for contribution and indemnification. On December 21, 2011, the Town of Brookline moved, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings on Count III of the Amended Complaint, the sole claim brought against the Town. That motion was opposed by the plaintiff and, in an unusual twist, was also opposed by the Officers. Neither the Officers nor the plaintiff have moved for judgment on the pleadings. III. Analysis A. Legal Standard While it differs from a Rule 12(b)(6) motion to dismiss in that it is filed after the close of pleadings and “implicates the pleadings as a whole,” a Rule 12(c) motion for judgment on the pleadings is governed by the same standard. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir.2008). To survive a motion for judgment on the pleadings, a complaint must contain sufficient factual matter to state a claim for relief that is actionable as a matter of law and “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 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)). Assessing plausibility is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense” to determine whether the well-pled facts alleged in the complaint are sufficient to “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950. In considering the merits of a Rule 12(c) motion to dismiss, a court accepts all factual allegations in the complaint as true and draws all reasonable inferences in the plaintiffs favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir.2000). The Court should treat “any allegations in the answer that contradict the complaint as false.” Santiago v. Bloise, 741 F.Supp.2d 357, 360 (D.Mass. 2010). In addition to the complaint and the answer, a court may also consider documents “the authenticity of which are not disputed by the parties” or those documents that are “central to the plaintiffs’ claim” or “sufficiently referred to in the complaint.” Id. at 361 (citing Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.2007)). B. Application The Town of Brookline asserts that the Amended Complaint 1) does not allege facts sufficient to support the claim that the Officers acted under color of state law and 2) fails to state a claim for municipal liability. The Court begins by considering the former assertion. 1. Under Color of Law A police officer who violates the constitutional rights of another is not subject to civil liability under 42 U.S.C. § 1983 unless he does so “under color of law,” which is a formal way of saying that he acted in his capacity as a police officer, not as a private citizen. See Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.1999) (explaining color of law requirement). Resolving whether the actions of a police officer were made “under color of law” requires a court to make a sophisticated assessment of “the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.” Id. at 46. Objective factors such as “a police officer’s garb, an officer’s duty status, the officer’s use of a service revolver, and the location of the incident” are pertinent to the analysis. Id. at 45. Less probative but also relevant are the subjective perceptions of the participants. Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 126 (1st Cir. 1999). The factors “must not be assessed mechanically” but are to be weighed carefully in light of prior precedent and the totality of the circumstances. Barreto-Rivera, 168 F.3d at 45-46. A survey of the case law elucidates the line between acting as a police officer and acting as a private citizen. In Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445 (1st Cir.1997), the First Circuit concluded that an off-duty officer who shot and killed a man outside a bar was not acting under color of law. At the time of the incident, the officer was on medical leave and, although he was not in uniform, he was carrying his police identification and service revolver. Id. at 446. The record is silent on what prompted the altercation but at some point the officer announced that he was a “cop” and displayed his identification. Id. at 447. The decedent then challenged the officer to “step outside” but told him to “leave the gun.” Id. The men stepped outside but the officer brought his gun. Id. When they began to fight, the officer pulled out his weapon and shot the decedent six times. Id. On the basis of those facts, the First Circuit concluded that even though some factors indicated that the officer was purporting to act in his official capacity, i.e., his statement of authority and display of identification, most of the officer’s conduct demonstrated that he was acting in a private capacity. Id. at 450-51. In affirming the district court’s grant of summary judgment in favor of the defendant, the Court placed particular emphasis on the officer’s acceptance of the decedent’s invitation to engage in a private brawl. Id. at 451. The episode giving rise to the claim in Barreto-Rivera v. Medina-Vargas, 168 F.3d 42 (1st Cir.1999) began when the defendant officer, driving in his cruiser, pulled over the decedent and demanded to see the his license and registration. Id. at 44. The decedent refused and accused the officer of making a pass at his wife. Id. The two men exchanged punches but were separated by onlookers. Id. At some later point, the decedent picked up a pipe and approached the officer. Id. Even though onlookers took the pipe from the decedent, the officer still radioed for back-up, stating: “10-50, I have been attacked. Hurry up, this guy is acting tough and I am going to have to shoot him.” Id. When the decedent did not back down, the officer made good on his promise. Id. On those facts, the district court granted summary judgment for the defendants, likening the case to the private brawl in Parrilla-Burgos. See id. at 46-47. The First Circuit reversed, emphasizing the many indicators of official action, e.g., the officer was on duty, in uniform, patrolling in his cruiser; he relied on his authority as a police officer; he used his nightstick, “a police-issued weapon and a potent symbol of police authority”; he summoned help on his police radio; and he ultimately shot and killed the decedent with his service revolver. Barreto-Rivera, 168 F.3d at 47-48. In light of those facts, the First Circuit was “unwilling to say that [the officer’s] conduct was so clearly personal in nature that a jury could reach only one outcome.” Id. In Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122 (1st Cir.1999), two off-duty police officers intervened in a fight between the bar’s owner and a patron. Id. at 123-24. Having ended their shift earlier that evening, the officers remained armed and in uniform. Id. at 124. After the officers pulled the men apart, one of the officers began beating the bar patron with a pool cue, a billiard ball, his boots and his service revolver. Id. By all accounts, the beating was vicious and unnecessary. Id. The officers then announced their status as police officers, handcuffed the patron, threw him out of the bar, searched his person, stole his wallet and cocaine and left the scene. Id. The patron later died of internal injuries. Id. Highlighting the brutality of the beating and the theft of the victim’s wallet, the district court concluded as a matter of law that the defendants were not acting as police officers. Id. at 128. Again the First Circuit disagreed. The Court noted that the officers “entered an already developed dispute between two private individuals, and their action in helping to pull [them] apart was consistent with the responsibility of police officers to defuse violent situations.” Id. The Court also found relevant the defendants’ announcement of their status as police officers, their use of handcuffs and a service weapon and the subsequent search and seizure. Id. From the First Circuit’s perspective, the circumstances permitted a jury finding that the officers were acting under color of law. Id. Against that backdrop, this Court turns to the present case. A procedural irregularity is worth noting at the outset. Most challenges to the color-of-law ele ment in § 1983 cases are raised jointly by the defendant officers and municipalities and opposed by the plaintiffs. Here, the Officers join the plaintiff in opposing the Town of Brookline’s contention that they did not act under color of law. In effect, the officers “admit” that they were acting under color of law. Whether or not the Officers are overcome by honesty or, more likely, are seeking to buttress their cross-claims against the Town of Brookline for contribution and indemnification, their admission does not control the analysis. An officer cannot consent to have acted “under color of law.” See Barreto-Rivera, 168 F.3d at 46 (explaining color of law analysis depends upon totality of circumstances but particularly upon officer’s purpose at time of the act). It also warrants mention at the outset that this case is in a different procedural posture than those described above. The district courts in those cases were called upon to examine the factual record to decide whether there were sufficient indicia of public action to support a jury finding in favor of the plaintiff on the color-of-law issue. This Court’s task is simpler. It need not weigh the evidence or take a position on which party’s version of the events is more credible. In considering a motion to dismiss, this Court must simply decide whether the facts alleged in the complaint, if proven, are sufficient to support a finding that the officers acted under color of state law. The color-of-law issue is a close one. On the one hand, a number of factors support a finding that the Officers were not acting under color of law. The dispute was at a private residence. The Officers were off duty and out of uniform. They were highly intoxicated. They were not responding to an unruly bachelor party; they were the unruly bachelor party. Compare Zambrana-Marrero, 172 F.3d at 124 (officers acted under color of law by responding to “an already developed dispute between two private individuals”), with Parrilla-Burgos, 108 F.3d at 451 (officer did not act under color of law when his actions precipitated a private dispute). Neighbors who witnessed the brawl called the police, apparently unaware that the police were the ones allegedly doing the beating. On the other hand, there are multiple indicia of state action that support a finding in favor of the plaintiff. The Officers identified themselves as police. They photographed the plaintiffs license plate, handcuffed the plaintiff during the altercation and informed him that he was under arrest, all forms of police techniques and functions. Finally, the plaintiff reasonably perceived that the Officers were acting as police officers. It is the combination of these factors that persuades the Court that it is premature to rule that none of the Officers was acting under color of law at any point during the incident. While the Officers allegedly precipitated the dispute, as did the police in Barreto-Rivera and Zambrana-Marrero, they employed a “symbol of police authority” when they placed plaintiff under arrest. In contrast to the officer’s actions in Parrilla-Burgos, shooting someone does not project police authority as uniquely as does the act of detaining someone in the name of the sovereign. Accordingly, the Court finds that plaintiff has pled sufficient facts to claim that the Officers acted under color of law. 2. Municipal Liability A municipality may not be held vicariously liable under 42 U.S.C. § 1983 on account of their employees’ unlawful conduct. Connick v. Thompson, — U.S. -, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011). Rather, municipalities are held responsible under § 1983 only for their own illegal acts. Id. To succeed on a § 1983 claim against a municipality, the plaintiff must show that “action pursuant to official municipal policy” caused the plaintiffs injury. Id. “Official municipal policy” includes the decisions of a government’s lawmakers, the acts of its policy-making officials and practices “so persistent and widespread as to practically have the force of law.” Id. In limited circumstances, a § 1983 claim against a municipality will lie where a municipality’s failure to train certain employees regarding their legal duties manifests “deliberate indifference” toward the constitutional rights of its citizens. Id. In order to prove that a municipality acted with deliberate indifference (or failed to act at all), a plaintiff must show that the municipality “disregarded a known or obvious” risk, which is ordinarily demonstrated by adducing a pattern of similar constitutional violations by untrained employees. Id. at 1360. In such cases, a municipality’s inaction is the functional equivalent of an actual decision to violate the Constitution. Id. In an even narrower range of circumstances a plaintiff may establish “deliberate indifference” based upon a single incident of misconduct, where the municipality’s failure could have avoided a “highly predictable consequence” that was “so patently obvious” that it could be liable without proof of a preexisting pattern of violations. Id. at 1360. However, in most cases a claim of failure to train based on a single incident will not succeed. See Calvi v. Knox County, 470 F.3d 422, 429 (1st Cir.2006) (showing one individual inadequately trained “insufficient” because “training program as a whole must be found faulty”). Plaintiff alleges in Count III of his Amended Complaint that the Brookline Police Department has an “always on duty” policy, pursuant to which an off-duty officer may activate himself to on-duty status if he wishes to use his police powers. On plaintiffs information and belief, the Town of Brookline has no training program to teach its officers as to the circumstances under which activation is authorized and appropriate. Based on these allegations, plaintiff claims that the Town of Brookline caused the plaintiffs injury by enacting the deficient “always on duty” policy and then tolerating a custom of poor implementation. Plaintiff also claims that the Town failed to train its officers on the policy. That failure purportedly evinces the Town’s deliberate indifference to the constitutional rights of its citizens by creating situations where officers activate themselves to on-duty status in inappropriate circumstances, such as when officers are intoxicated or involved in personal disputes. Finally, the plaintiff claims that the Town’s failure to supervise and discipline its police officers directly precipitated the constitutional violations at issue. The Town of Brookline argues that Count III should nonetheless be dismissed for two reasons: 1) because it states bare legal conclusions unsupported by reference to any discrete policy or decision sufficient to show that the Town caused plaintiffs injury, and 2) because the allegations regarding the Town’s failure to train police officers with respect to the “always on duty” policy are insufficient to demonstrate that the Town acted with deliberate indifference. The Court addresses the arguments seriatum. a. Existence of a policy or custom As a duly enacted regulation of the Town’s Board of Selectmen, the “always on duty” policy qualifies as an “official municipal action” for purposes of a § 1983 claim. However, the “always on duty” policy could not have caused the plaintiffs injury because the policy forbids the actions of the individual defendants as alleged in the Amended Complaint. The plaintiff alleges that the Officers assaulted and arrested him after they refused to pay his company for services that they had requested for a bachelor party. The Officers activated themselves pursuant to the “always on duty” policy at “some point” prior to their alleged assault of the plaintiff, while they were intoxicated. The first claim, then, is that the Town’s enactment of the “always on duty” policy caused the plaintiffs injuries because the officers activated themselves pursuant to it during the assault. The Town has attached a copy of the “always on duty” policy to the instant motion. Because the policy is referred to in the plaintiffs Amended Complaint and its authenticity is not disputed, the Court will treat its contents as part of the allegations for purposes of resolving the motion to dismiss. The “always on duty” policy explicitly prohibits officers from making an off-duty arrest when the arresting officer is “personally involved” in the incident and excepts from permitted arrests any arrests in which the officer is “personally involved.” According to the policy, off-duty officers are “personally involved” whenever they (or their friends or relatives) are engaged in the incident prior to the arrest, unless those off-duty officers are the victims of a crime. Here, the Officers themselves were engaged in a dispute with the plaintiff prior to arresting him. Accepting the plaintiffs allegations as true, the plaintiff took no action that could have made any of the defendants the victim of a crime. The Officers could not have been more “personally involved” in the dispute, and therefore, acted in plain violation of the “always on duty” policy enacted by the Town. Because their actions were not authorized by the “always on duty” policy, the policy could not have caused the plaintiffs injury. The plaintiff also argues that the policy is deficient because it does not prohibit off-duty officers from activating after they have been drinking. Because the Officers would still be “personally involved” in the incident regardless of whether they had had a single drink, and thus would still be in violation of the Town policy, the Court need not address this aspect of the plaintiffs claim. Alternatively, plaintiff alleges that the Town tolerated a custom of, among other things, officers activating themselves to on-duty status in inappropriate circumstances, and that this custom caused the plaintiffs injury. As discussed further below, plaintiff does not allege any further incidents involving inappropriate activation beyond the incident in question, let alone practices “so persistent and widespread” so as to have the de facto force of law. Therefore, the plaintiff fails to allege a custom that could have caused the plaintiffs injury. b. Failure to train, supervise, and discipline The Supreme Court has recently stated that failure to train claims present the “most tenuous” form of claims brought under § 1983 because the municipality’s culpability is at its lowest. See Connick, 131 S.Ct. at 1359. Taken in this light, the plaintiffs claim for relief based upon a failure to train the Officers clearly fails because the allegations lack either a pattern of similar constitutional violations or a “patently obvious” risk created by the “always on duty” policy that would transform the Town’s inaction into deliberate indifference. First, the plaintiff makes no reference to any incidents beyond the one at issue in this case. There is no suggestion in the pleadings that there has been a rash of incidents of personally involved or intoxicated off-duty cops making unlawful arrests or using excessive force. Even assuming that the Town has no training program to teach its officers as to the circumstances under which they may activate themselves from off-duty to on-duty, the Town cannot be held responsible for the Officers’ actions absent a pattern of constitutional violations putting them on notice of the problem. Second, absent a pattern of similar incidents, the plaintiffs claim rests upon a “single incident” theory of municipal liability. Plaintiff alleges that the Town’s failure to train officers regarding the “always on duty” policy created a risk of constitutional violation so patently obvious that the Town should have known that an incident like the one at issue here would occur. As discussed supra, it is extremely difficult to sustain a failure to train claim based upon a single incident of misconduct and the instant case does not rise to that level. The Supreme Court case that generated the “single incident” theory envisioned consequences more probable and more dire than even a simple assault. In City of Canton v. Harris, the Supreme Court gave the example of a city that armed its police force with firearms and deployed them into the public to capture fleeing felons without training the officers in the constitutional limitations on the use of deadly force. See 489 U.S. 378, 390 n. 10, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Commenting in a more recent case, the Supreme Court acknowledged that under those circumstances, the municipality could be found to be deliberately indifferent on account of both the known frequency of the situation the hypothetical officers confronted and the predictability that the officers would lack the tools that they needed, absent proper training. Id. The law in this circuit accords with this skeptical view. In Young v. City of Providence, the First Circuit reversed a district court’s order granting summary judgment on a failure to train claim in the context of a friendly fire incident. 404 F.3d 4 (1st Cir.2005). Young was a Providence police officer, and his mother brought suit when he was killed by two fellow officers who mistook him for a suspect while responding to a call. Id. at 9. Among other claims, Young alleged that the city was liable for failing to train its officers on Providence’s always on duty policy. Id. After discussing Canton, the First Circuit concluded that a jury could find Providence liable based upon a single incident because departmental policy literally required officers to respond to incidents while off-duty and to always carry a firearm. Id. at 28-29. Under such circumstances, the jury could find that “friendly fire shootings were likely to occur” and that the department should have acted upon the risk, in spite of the rarity of such incidents, because of the “severity of the consequences.” Id. at 29. The instant case does not present the risk of such predictable or egregious consequences identified in Canton or confronted in Young. While there is no reason to assume that police academy applicants are familiar with the constitutional constraints on the use of deadly force, Connick, 131 S.Ct. at 1361, the failure to train Brookline cadets concerning the meaning of “personally involved” does not predict constitutional violations because cadets possess the tools to determine when they are off-duty and when they are engaged in a dispute. Nor does it predict that cadets who are personally involved in a dispute will then assault those individuals who the conflicted police officer wrongfully arrested. Unlike the policy at issue in Young, the Town’s “always on duty” policy permits intervention by off-duty police but does not mandate it, and, far from requiring officers to carry their firearms, states that officers will never be disciplined for declining to intervene in a situation because they are not armed. While the plaintiff argues that the Town’s policy is problematic because it allows activation under certain circumstances or does not expressly prohibit any activation when an off-duty officer has been drinking, “the fact that training is imperfect or not in the precise form a plaintiff would prefer is insufficient” to establish deliberate indifference. Young, 404 F.3d at 27. Accordingly, plaintiffs allegations fail to establish that the Town’s inaction amounted to deliberate indifference toward the rights of its citizens and cannot render it liable for the Officers’ actions. The same analysis disposes of the plaintiffs claims of failure to supervise and failure to discipline brought against the Town because both claims require a showing of deliberate indifference and causation. See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 93-94 (1st Cir.1994). Even if other on-duty officers acted in concert with the off-duty defendants to cover — up this incident, and were not subsequently disciplined, the Town cannot be liable for that oversight because it does not establish that the Town was on notice or that its failure caused the plaintiffs injury in this case. ORDER In accordance with the foregoing, 1) the Court finds that plaintiff has alleged sufficient facts to demonstrate that the defendant officers acted under color of law, but 2) because the plaintiffs injury was not caused by a municipal policy, custom or failure to train defendant officers, the Town of Brookline’s motion for judgment on the pleadings (Docket No. 36) is ALLOWED, and 3) Count III of the Amended Complaint is DISMISSED. So ordered. . The individual defendants contest the plaintiff's version of the events in their response to the instant motion but the Court is limited to the pleadings contained in the complaint, the answer and certain documents referred to therein, and it may not consider factual allegations that contradict the plaintiff's allegations át this stage. See Santiago, 741 F.Supp.2d at 360.

OPINION AND ORDER FREEH, District Judge. In June 1991, the Department of Labor (“DOL”) instituted this action against the Consolidated Welfare Fund (the “Fund”) sponsored by the Consolidated Local Union # 867 (the “Union”), past and current Fund trustees, the Union, and certain insurance agencies, which the DOL alleges are wholly owned by Fund trustees. The DOL alleges that the defendants violated the Employee Retirement Income Security Act (“ERISA”) and the Taft-Hartley Labor-Management Relations Act by, among other things, self-insuring the Fund and setting premium rates without obtaining a financial audit or actuarial analysis of the Fund’s ability to pay claims. In June 1991, the DOL and a number of defendants (the “Consenting Defendants”) signed a Partial Consent Agreement for the appointment of an Independent Fiduciary, Mr. Anthony Bergamo. The Fiduciary’s limited purpose was to assess the Fund’s financial status and to determine whether and under what conditions, if any, the Fund could continue. With the assistance of Price Waterhouse, the Fiduciary conducted that review and issued a final report and recommendation on July 31, 1991. The Fiduciary has recommended that, subject to a number of conditions, the Fund be allowed to continue under the terms of a Business Plan developed by the Fund’s Trustees. The DOL has objected to the Fiduciary’s finding and requested that the Fund be terminated immediately. Because the Court finds that current members of the Fund will suffer substantial harm should the Fund be terminated, and for the reasons stated by the Court at the conclusion of oral argument, it is ORDERED that the recommendation of the Fiduciary is adopted and that the Business Plan may be implemented, subject to the following conditions: (1) Mr. Bergamo, or another party to be appointed by the Court, shall act as Manager of the Fund and Fiduciary, with full power and authority to manage all aspects of the day-to-day operations of the Fund. The Fiduciary’s duties shall include, but not be limited to, selecting and retaining all service providers for the Fund, and hiring, dismissing and determining the rates of compensation of employees of the Fund. The Court anticipates that the Fiduciary will continue in effect the current freeze on payment of past claims against the Fund. Should the Fiduciary determine that payment of any existing claims is appropriate, however, the Fiduciary shall have the discretion to direct such payment. In addition, the Fiduciary has full power and authority to determine which new claims and liabilities of the Fund, if any, shall be paid and the priority and amounts of such payments. (2) The Fiduciary shall draft disclosure letters to both existing and prospective participants in the Fund and submit those letters for the Court’s review no later than October 18, 1991. Upon approval of the Court, the Fiduciary shall send the letters, along with a copy of his final report and recommendation, to all current and prospective Fund members. Once the Court has approved the disclosure letters, the Business Plan may be implemented for sixty days, during which time the Fiduciary is to make every effort to solicit the new members required under the terms of the Business Plan. (3) The Fiduciary is to recommend to the Court, no later than October 25, 1991, individuals to serve as Trustees for the Fund. (4) In consultation with the experts retained by the various parties, the Fiduciary is to determine a reasonable contribution rate for all new participants in the Fund. That suggested contribution rate is also to be submitted for the Court’s approval no later than October 25, 1991. The parties are ordered to submit briefs, no later than November 1, 1991, on the question of this Court’s power to stay all pending claims against the Fund, should the Panel on Multidistrict Litigation grant the Consenting Defendants’ Motion and order that all such cases be consolidated in this Court. SO ORDERED. . The Partial Consent Order also froze claim payments against the Fund. Apparently as a result of that freeze, numerous members have abandoned the Fund, reducing the total number of Fund participants to its current level of approximately one thousand. . Numerous claims have been filed against the Fund in other courts across the country. The Consenting Defendants have moved the Panel on Multidistrict Litigation to consolidate those cases with this action, and the Panel heard argument on that motion on September 27, 1991. According to counsel, a ruling on the consolida tion motion may not be issued for four to six weeks.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO Fed.R.Civ.P. 56(c) (ECF No. 79) BARRY TED MOSKOWITZ, Chief Judge. I. Procedural Background Dontay Hayes (“Plaintiff’), a state prisoner incarcerated at Calipatria State Prison (“CAL”), is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff claims J.G. Giurbino, M.E. Bourland, and G.J. Janda, CAL’s former Warden, Chief Deputy Warden, and Associate Warden, respectively, deprived him of outdoor exercise for approximately nine months in violation of the Eighth Amendment while the institution was on lockdown from August 2005 through May 2006 (ECF No. 42). Bourland, Janda and Giurbino (“Defendants”) now seek summary judgment pursuant to FED.R.Crv.P. 56 (ECF No. 76). Defendants and the Court have provided Plaintiff with notice of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir.1998) (en banc) (ECF Nos. 79-2, 80). Plaintiff has since filed a Response in Opposition (ECF No. 84), Declarations in Support of his Opposition (ECF No. 85), a Separate Statement of Undisputed Facts (ECF No. 88), and a Supplemental Opposition (ECF No. 97). Defendants have filed a Reply (ECF No. 90) as well as a Notice alerting the Court of an unpublished Ninth Circuit’s opinion in Franklin v. Scribner, 07cv0438 WVG (RBB), a case involving similar Eighth Amendment claims raised by another prisoner related to the same lockdown at issue in this case (ECF No. 94). While this ease was randomly referred to the Honorable Ruben B. Brooks pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation regarding the disposition of Defendants’ Motion, nor oral argument is necessary. See S.D. Cal. CivLR 72.3(a); 5.D. Cal. CrvLR 7.1.d. Having carefully considered the record as submitted, the Court now GRANTS Defendants’ Motion for Summary Judgment because it finds they are entitled to judgment as a matter of law pursuant to Fed.R.Civ.P. 56(a). II. Factual Background A. Undisputed Facts During the entire period which is the subject of his suit, Plaintiff was assigned to CAL’s Facility A. See Pl.’s Decl. in Supp. of Opp’n (ECF No. 85) at 1 ¶2; Borg Decl. Ex. A (ECF No. 79-5) at 13. On August 18, 2005, a “riot against staff’ broke out in three separate sections of Facility C between Hispanic inmates and prison officials. See Builteman Decl. (ECF No. 79-10), Ex. A [CDC 837-A “Amended Crime/Incident Report” Log No. CAL-FCY-05-08-0455 at 5-11]. The incident began at 2:55 p.m. in the Facility C Gym area when Correctional Officer Harbert discovered what he believed to be a weapon while conducting a clothed body search of an inmate named Gracia. Id. at 6. Harbert ordered the yard down, but Gracia began to struggle, and he struck Harbert in on the right side of the head. Approximately 10 to 20 Hispanic inmates then ran towards Officer Harbert and “began battering him, kicking and beating him with their hands and feet.” Id. When another officer named Mosely saw Gracia strike Harbert, he began to assist, but was chased by 4 Hispanic inmates, one of whom he observed carrying an inmate-manufactured weapon. Id. Mosely retreated, but drew his state-issued expandable baton and struck the inmate who possessed the weapon. Id. When Officer Manning also attempted to assist, he too was chased by 4 Hispanic inmates, one of whom was also “brandishing a weapon.” Id. Officer Manning was forced to retreat to a basketball court for his own safety, but Officer Harbert “received numerous injuries to his head and upper torso, was transported to Pioneer’s Memorial Hospital and received “40 plus” stitches to his head. Officer Mosely also sustained injuries to his head, neck and torso and was treated at an outside facility. Id. at 6, 8. After ordering all inmates down over the public address system without results, Officer Vargas launched three “2655 Skat Rounds” in the direction of the incident, but to no avail. Id. at 6. At approximately 2:57 p.m., Lieutenant Gonzalez contacted Central Control and requested a “Code 3 Response.” Responding staff arrived, all inmates were directed in a “yard down” position, and restrained while staff attempted to identify the inmates involved and secure the area. Id. Approximately 30 minutes later, at 3:30 p.m., Officer Melendrez radioed for assistance from the Facility C Dining Hall when four Hispanic inmates followed her onto a roadway, one struck her in the face and another “picked her up and slammed her to the ground.” Id. The same four inmates also “began battering responding staff’ until staff was able to quell the second incident by using a 37 mm wood round, OC spray and an expandable baton. Id. Melendrez sustained bruises to her back and mid-section as a result of the attack. Id. at 8. While prison officials were responding to the attack on Officer Melendrez near the Dining Hall, Officer Montano, the Control Booth Officer in Facility C’s Housing Unit 5, observed 20-30 Hispanic inmates refusing to return to their cells. Montano watched an inmate named Rivera break a broom handle on the second tier adjacent to cell 231, and ordered him to “cease and drop the suspected weapon.” When Rivera failed to comply, Montano discharged two 40 mm rounds and aimed toward Rivera, but instead struck the railing of the second tier. Rivera continued to “disperse the suspected makeshift weapons (broom and mop handles) to Hispanic inmates on the lower tier.” Id. at 6. At approximately 3:41 p.m., Montano activated his personal alarm, and responding staff found “approximately 20 to 30 Hispanic inmates ... laying in wait.” Id. at 7. These inmates “began assaulting responding staff’ with weapons, fists and feet. Staff used physical force in response, including expandable batons and OC spray, but “due to the magnitude of the attacks” and the “likelihood of great bodily injury,” Officer Montano also “retrieved his [Rug-er] mini 14 (.233) rifle,” chambered a round, and again gave an order to inmates to stop. Id. at 7, 9. When Montano observed an inmate named Zamora “striking an unidentified defenseless officer with a broken broomstick, making stabbing motions while the officer was lying on the floor,” Montano “discharged the weapon at Zamora,” who fell to the floor. Id. at 7. All inmates then “complied with orders to assume a prone position,” and staff immediately requested medical assistance. Id. Inmate Zamora, however, was pronounced dead by outside paramedics at approximately 4:14 p.m. Id. After additional responding staff regained control of the Facility exercise yard and housing units, all Hispanic inmates were placed in restraints and moved to the Facility C gym for security purposes. Id. All non-involved inmates, described as “Blacks, Whites and Others,” were given clothed body searches and returned to their cells, with the exception of those housed in Facility C, Building 5, which was temporarily declared a “crime scene.” Id. With the exception of inmates Zamora and Jacobo, who required immediate emergency medical transport, all inmates “identified as being involved in the incident were given clothed and unclothed body search[es].” Id. at 8. Thirty-seven inmates were immediately identified as possible “suspects,” eleven individual correctional officers were identified as “victims” requiring medical attention, while “numerous other staff received less severe injuries,” and twenty-two inmates, excluding Zamora and Jacobo, were decontaminated for O/C spray exposure and treated for various injuries including complaints of swelling, cuts, bruising, abrasions, lacerations, and pain. Id. 9-10. Twenty-seven correctional officers reported having used multiple other instances of force, including O/C spray, expandable batons, 37mm (wood) and “Skat” rounds, 40 mm, an MK-46 and Montano’s Ruger mini 14 (.223) rifle to “quell the assault of inmates.” Id. at 9. As a result of the August 18, 2005 attacks, then Acting Warden Ryan declared a “State of Emergency” at CAL. See Deck of Robert Borg in Supp. of Defs.’ Mot. for Summ. J. (ECF No. 79-5) (hereafter “Borg Deck”) ¶ 5. Because the State of Emergency declaration modified “all level four programs” for a period set to exceed 24 hours, the State of Emergency was “approved in Sacramento.” Borg. Decl. ¶ 5; see also Cal. Code Regs., tit. 15 § 3383(b)(1). “The purpose of a State of Emergency, lockdown, and modified program at a prison is to safely control inmate movement, restrict potentially volatile inmates or groups, and afford time to evaluate overall operations in order to regain control of the prison population and establish order for the safety of staff, inmates, and visitors.” Borg Decl. ¶ 5. On the following day, August 19, 2005, Defendant Giurbino was named interim Warden at CAL. See Decl. of G. Giurbino in Supp. of Defs.’ Mot. for Summ. J. (ECF No. 79-8) (hereafter “Giurbino Decl”) ¶3. B. Plaintiffs Allegations In his Amended Complaint, Plaintiff contends that during the lockdown and modified program restrictions imposed, he was “confined to a double bunk cell twenty-four (24) hours a day, seven days a week,” from August 2005 through May 2006. FAC at 4, 6, 10. Plaintiff contends he was permitted outside his cell during that time only to shower, “98% of the time in restraints,” or for approved medical, dental or mental health care or law library access. Id. at 4. Plaintiff admits there “was a period in March when [he] was allowed to exercise outdoors once,” but that as a result of being deprived of outdoor exercise for nearly nine months, he “suffered headaches, muscle cramps, stress, anxiety and depression.” Id. Plaintiff further contends the “disturbance” which prompted the lockdown was “contained and controlled by October 10, 2005,” and as a result, “the administration ... beg[a]n to ease restrictions.” Id. at 6. For example, Plaintiff claims by November 5, 2005, “interviews had already been conducted,” he and other critical workers were permitted to report to their assignments, and canteen and quarterly package privileges were resumed. Id. However, outdoor exercise continued to be denied Plaintiff and others even though they were “not part of the investigation” and “deemed [members of] a ‘non-[a]ffected’ race.” Id. Plaintiff concludes that Defendants continued the deprivation of outdoor exercise for a prolonged period “in bad faith” and “not to prevent a disturbance,” but instead, “as a means to punish” and “deter[ ] future staff assaults by subjecting inmates to such extreme suffering that they would not want another period of lockdown.” Id. at 6, 7,10. C. Defendants’ Responses As Warden, Defendant Giurbino asserts he “was the person responsible for making decisions” regarding both the lockdown and “the framework for the modified program,” which included no outdoor exercise. Id. ¶¶ 5, 6. In making these decisions, Giurbino alleges to have considered “not only the August 18, 2005 attempted murder of staff, but also the degree of organization that went into the widespread assaults, the violence at CAL which had been ongoing and escalating over the preceding two years,” “day-to-day circum stances,” “continuing violence or potential violence,” the “intelligence gathered from inmate interviews,” and “outside influences which could affect the prison population.” Id. ¶ 7. The initial Program Status Report (“PSR”) issued to all CAL staff and inmates describes the Plan of Operation (“PO”) which went into effect as a result of the State of Emergency declared on August 18, 2005, and outlines the “modified program” immediately ordered for all inmates at CAL Facilities A, B, C, and D, including Plaintiff, who was housed on Facility A. See Borg Decl., Ex. C (ECF No. 79-10) at 97; PL’s Decl. in Supp. of Opp’n (ECF No. 85) ¶ 2. The initial August 18, 2005 PSR required 2-mari correctional officer escorts and restraints for all inmate movement, unclothed body searches prior to escort, in-cell feeding, and prohibited all visiting, canteen, packages, phone calls, dayroom activity, and recreational activities. Borg Decl., Ex. C at 97. Existing medical, dental and mental health ducats were honored, a medical technical assistant (MTA) was authorized to conduct rounds in-unit, religious services were limited to “in cell,” library access was permitted “in restraints,” and only “critical” minimum custody inmates were allowed out of cell to report to work assignments. Id. This PO remained relatively unchanged from August 19, 2005 through August 26, 2005. Id. at 97-102. Starting shortly after August 19, 2005, staff at CAL “conducted exhaustive searches of all cells and all areas accessible to inmates in Facilities A, B, C, and D.” Giurbino Deck ¶ 9. By September 1, 2005, the searches were “50% complete,” and by September 15, 2005, they were concluded. Borg Decl., Ex. B (ECF No. 79-10) at 112; Giurbino Decl. ¶ 9. By August 26, 2005 “[ijnmates involved in the riot were placed in Administrative Segregation (“Ad-Seg”) and their property [was] relocated.” Builteman Decl. Ex. C (ECF No. 79-10) at 112. Beginning on September 2, 2005, “limited” access to the canteen was made available to general population inmates on Facilities A, B, C, and D. Id. at 121. On September 6, 2005, an inmate in Facility B became disruptive and was forcibly removed from his cell. An officer was injured while trying to “gain control of the inmate.” Id. at 122. On September 7, 2005, “some disturbances were reported on A3. Inmates in 43 cells ha[d] covered their windows as a protest [against] cell searches.” Id. at 125. In addition, officials received an anonymous “kite” which indicated “some inmates [were] exhorting others to resist ... searches on Facility D.” Id. On September 8, 2005, 11 of the 43 Hispanic inmates in A3 who were “covering their doors and refusing to cooperate with facility searches” were forcibly extracted. Id. at 129. On September 12, 2005, a Facility A inmate threw cleaning solution on an officer, a Facility C inmate made threats to staff, an inmate letter was intercepted “regarding additional staff assaults,” and an Ad-Seg inmate was battered by an unknown assailant. Id. at 135, 138. In Program Meeting Notes dated September 13, 2005, however, the “[m]ain complaint” by inmates on Facility A where Plaintiff was housed was related to in-cell feeding on paper plates. Id. at 139. Despite these incidents, and the fact that CAL’s Investigative Service Unit (“ISU”) was “[s]till interviewing and gathering in-tel” related to the August 15, 2005 riot, on September 13, 2005, Defendant Giurbino’s announced his goal was “to remove State of Emergency by ... September 16, 2005.” Id. at 140. On September 15, 2005, family visits were restored “for non-Hispanics housed in Facilities A, B, C, and D.” Id. at 146. On September 16, 2005, Warden Giurbino requested and was granted approval from the CDCR’s Director of the Division of Adult Institutions “to conclude the declared State of Emergency” and commence transition to a modified program in Facilities A, B, C, and D, “which would initially exclude outdoor exercise.” Giurbino Decl. ¶ 11. Giurbino asserts his “goal was to bring institution activities back to normal ... as soon as possible without sacrificing safety or security.” Id. ¶ 15. To this end, beginning on August 26, 2005, and continuing until the first week of January 2006, when he was replaced by Warden Scribner, Defendant Giurbino conducted “lockdown meetings” on an almost daily basis to “review the modified program, and to evaluate intelligence gathered as a result of searches and inmate interviews.” Giurbino Decl. ¶¶ 13, 26; Scribner Decl. (ECF No. 79-9) ¶ 4. Defendant Janda, as CAL’s Associate Warden, and Defendant Bourland, who served as both CAL’s Associate Warden of Housing, and later as acting Chief Deputy Warden, attended Giurbino’s (and later Scribner’s) lockdown and modified program meetings. See Decl. of G. Janda in Supp. of Mot. for Summ. J. (ECF No. 79-7) (hereafter “Janda Decl.”) ¶ 3; Decl. of M. Bourland in Supp. of Mot. for Summ. J. (ECF No. 79-6) (hereafter “Bourland Decl.”) ¶ 3; Decl. of L.E. Scribner in Supp. of Mot. for Summ. J. (ECF No. 79-9) (hereafter “Scribner Decl.”) ¶ 9. However, both Giurbino and Scribner claim that in this capacity, Bourland and Janda “at most ... could make recommendations ... regarding current prison conditions and current intelligence regarding when the modified program would be lifted, and outdoor exercise permitted.” However, all “ultimate decisions” were reserved for the Wardens, “with approval” from CDCR headquarters. Giurbino Decl. ¶ 12; Scribner Decl. ¶ 6. During these meetings, Warden Giurbino received and evaluated some recommendations for “physical plant changes ... from various staff classifications” and undertook projects including the “relocation of tables,” window frosting, addition or modification of “security access gates inside the secured perimeter,” and the “reattach[ment] [of] all electrical outlets and light fixtures with pop-up rivets to eliminate those areas as hiding places for weapons and other contraband.” Giurbino Decl. ¶ 22. Giurbino also continued to receive reports of “ongoing incidents of violence” and threats to the institution, including: intelligence from Facility A, where Plaintiff was housed on October 26, 2005, that “staff might be assaulted or killed once the institution resumed normal programming,” Id. ¶ 26; Ex. C (ECF No. 79-10) at 251; found weapons, escape paraphernalia and the discovery of an “escape plot”; a missing screwdriver, and several instances of inmates threatening, assaulting, and battering staff, throughout the months of Oc tober, November and December 2005. Giurbino Decl. ¶ 26. Nevertheless, “by November 8, 2005, [Giurbino] had taken steps toward normal programming by allowing inmates who ... passed a risk assessment to have unrestrained interaction with staff, easing restrictions on canteen, vendor packages and allowing ... visitation.” Id. ¶ 23. Critical workers were permitted to “return to critical job functions between September and November 2005,” medical personnel “walked the cell blocks to identify and address medical needs,” inmates who required them were permitted to attend medical, dental and mental health appointments, inmates with legal deadlines were permitted library access, and chaplains and religious volunteers were “allowed to walk the tiers.” Id. Giurbino claims because the inmate who was shot and killed on August 18, 2005, “was a known gang member,” he was especially “concerned about the potential for further violence and retaliation against staff,” and felt it would have been “unsafe to expose staff to unrestrained general population inmates until those who were planning future assaults” and others designated as a result of the August 18, 2005 incident as “180-design inmates” could be “identified and removed from the general population.” Id. ¶¶ 20, 21, 27. “140 inmates had been transferred by November 14, 2005, and another 140 were endorsed and awaiting transfer. By December 2, 2005, 236 inmates had been transferred, and by December 29, 2005, a total of 297 inmates had been transferred.” Borg Decl. ¶ 9. However, this interview, file-review, administrative hearing and transfer process “was still ongoing when [Giurbino] left Calipatria in early January 2006.” Giurbino Decl. ¶ 20. ' Because of the “large number of 180-design inmates at [CAL], there was not enough room to place all the high-violence 180-design inmates in [the] Ad-Seg Unit while they awaited transfer.” Giurbino Decl. ¶ 21. Therefore, many, including Plaintiff, remained in general population, but subject to a modified program schedule, which did not provide for “unrestrained movement within the housing units” or access to outdoor exercise until sometime in March 2006. Scribner Decl. ¶ 13. Giurbino claims that he “did not believe it was safe for inmates to be released unrestrained among staff’ before he left CAL in January and “was not trying to harm [Plaintiff] or other general population inmates.” Giurbino Decl. ¶ 29. Instead, Giurbino claims exercise remained restricted because of “ongoing interviews and identification of additional inmates involved in the [August 18, 2005] incident itself or in planning future violence,” “ongoing identification and transfer of 180-design inmates from the general population,” “ongoing violence,” “intelligence showing that further attacks were being planned,” the “potential for retaliation [against] staff for having shot and killed a gang member,” and “the potential for vio lence associated with the execution of a well-known gang founder.” Id. After Giurbino’s departure in January 2006, Warden Scribner assumed responsibility for “comprehensively evaluating and establishing appropriate prison programming with the purpose of restoring long-term safety and security.” Scribner Decl. ¶¶4-5. Like Giurbino before him, Scribner “conducted regular meetings to review the modified program,” and to “evaluate intelligence,” with the “goal [of] bringing] institutional activities back to normal programming without sacrificing safety or security.” Id. ¶¶ 9,11. To this end, on February 2, 2006, Warden Scribner held a meeting to “discuss a comprehensive five-phase plan to ... resume normal programs over a five-week period starting on February 6, 2006.” Id. ¶ 13. “Under this plan, inmates in Facilities A, B, and C, including [Plaintiff], were allowed exercise yard on a modified schedule beginning March 13, 2006,” which “allowed each building a half-day of yard one day a week.” Id.; see also Builteman Deck Ex. C (ECF 79-12) at 299-300, 307-317. This plan was “interrupted on March 20, 2006,” however, after “a homicide attempt against staff [occurred] in Facility B.” Scribner Deck ¶ 14. “Effective March 20, 2006, the entire institution was again placed on modified program.” Builteman Deck Ex. C (ECF No. 79-12) at 10. Once searches were conducted in all housing units, non-contact visiting was resumed as soon as March 29, 2006, and “normal” visiting was resumed for Plaintiff in Facility A by April 22, 2006. Scribner Deck ¶ 15. While he “attempted to return the prison to normal programming,” “31 violent incidents” occurred in April 2006, and Scribner concluded “it was too early to return outdoor recreation and dining to normal.” Id. at ¶¶ 15, 16. On May 15, 2006, however, “Black inmates in Facility A, where [Plaintiff] was housed, were again allowed to resume exercise yard on a modified schedule of one half day on the yard one day per week.” Id. Prior to that time, and based on “ongoing interviews and identification of additional inmates involved in the incident itself or planning future violence, the continued violence,” and “rumors that further attacks were being planned,” Scribner “did not believe it was safe for inmates to be released unrestrained among staff,” and “neither [he] nor the administration were trying to harm [Plaintiff] or other general population inmates.” Id. ¶ 18. III. Defendants’ Motion For Summary Judgment A. Fed.R.Civ.P. 56 Standard of Review Rule 56(a) provides that a 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.” Nat’lAss’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir.2012) (No. 10-16233) (quoting Fed.R.Civ.P. 56(a)); see also Bias v. Moynihan, 508 F.3d 1212,1218 (9th Cir.2007). Under summary judgment practice, the moving party 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(e)); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). 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 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). If the moving party meets its initial responsibility, .the burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Bias, 508 F.3d at 1218. To avoid summary judgment, the non-moving party is “required to present significant, probative evidence tending to support h[is] allegations,” Bias, 508 F.3d at 1218 (citations omitted), and must point to some evidence in the record that demonstrates “a genuine issue of material fact [which], with all reasonable inferences made in the plaintifff ]’s favor, could convince a reasonable jury to find for the plaintiff[ ].” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir.2000) (citing Fed.R.Civ.P. 56; Celotex, 477 U.S. at 323, 106 S.Ct. 2548). “The substantive law determines which facts are material; only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Nat’l Ass’n of Optometrists, 682 F.3d at 1147 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The opposing party cannot rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). Instead, to demonstrate a genuine issue requiring trial, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898, 902 (9th Cir.1987). Because it is relevant in this case, the Court also notes it “does not have a duty to search for evidence that would create a factual dispute.” Bias, 508 F.3d at 1219 (citing Carmen v. Unified School Dist., 237 F.3d 1026, 1031 (9th Cir.2001)). In Carmen, the Ninth Circuit found it “unfair” to the require the district court to “examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the moving papers with adequate references so that it could be conveniently found.” Id.; see also Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir.1988) (district court is “not required to comb the record to find some reason to deny a motion for summary judgment”). This is true even where the non-moving party is proceeding in pro se. See Bias, 508 F.3d at 1219 (affirming summary judgment for defendants where pro se plaintiff “failed to present any evidence in opposition” and expressly rejecting pro se litigant’s argument that the district court “should have searched the entire record to discover whether there was any evidence [to] support] her claims” because she was proceeding without counsel). “A district court lacks the power to act as a party’s lawyer, even for pro se litigants.” Bias, 508 F.3d at 1219. B. Defendants’ Arguments Defendants seek summary judgment on the following grounds: (1) no genuine issues of material fact exist to show Plaintiffs Eighth Amendment rights were vio lated, see Defs.’ Mem. of P & As in Supp. of Mot. for Summ. J. (ECF No. 79-1) at 25-32; (2) neither Defendant Bourland nor Janda may be held liable because no evidence in the record shows either of them had the authority to override the Warden’s modified program following the initial State of Emergency and independently provide Plaintiff with outdoor exercise opportunities, id. at 32-34; and (3) they are all entitled to qualified immunity. Id. at 34-38. Plaintiff opposes, arguing Defendants violated his Eighth Amendment rights by “depriv[ing] him of outdoor exercise opportunities for a 10-month period in bad faith and as a means to punish.” Pl.’s P & A’s in Supp. of Opp’n (ECF No. 84) (hereafter “PL’s Opp’n”) at 1. In support, Plaintiff points to the evidence in the record which shows that Defendants began to “ease” lockdown restrictions as early as August 26, 2005, including those related to critical workers, escort ratios, canteen, visitation, in-cell feeding, package, phone calls, and shower privileges, but did not begin to ease any restrictions on outdoor recreation until March 2006, even though Defendants themselves noted at various lockdown meetings that “the institution’s facilities were ‘relatively quiet’ and there were ‘no major incidents to report.’ ” Id. at 2-11. Plaintiff contends summary judgment is inappropriate because it is permissible to infer Defendants’ failure “to consider a means to provide ... outdoor exercise” as part of their “disturbance control plan,” before March 2006 is evidence of their deliberate indifference and an “intent to punish” Plaintiff and others because it came “on the heels of so many [of their] coworkers being injured” during the August 18, 2005 attacks. Id. at 13-15. C. Eighth Amendment Deprivation of Exercise Prison officials may violate the Eight Amendment’s prohibition on cruel and unusual punishments if they deprive the inmate of “a single, identifiable human need such as food, warmth or exercise.” Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (emphasis added); Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir.2010) (“[E]xercise if one of the most basic human necessities protected by the Eighth Amendment.”). To prove an Eighth Amendment violation, however, the prisoner must “objectively show that he was deprived of something ‘sufficiently serious,’ ” and “make a subjective showing that the deprivation occurred with deliberate indifference to [his] health or safety.” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.2009) (quoting Fanner v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). “[0]rdinarily the lack of outside exercise for extended periods is a sufficiently serious deprivation” for Eighth Amendment purposes. LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993). A prohibition on outdoor exercise of six weeks is a “sufficiently serious” deprivation to support an Eighth Amendment claim. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir.2000) (en banc); Allen v. Sakai, 48 F.3d 1082, 1086 (1994). If the prisoner can show his deprivation was objectively sufficiently serious, he must next “make a subjective showing that the deprivation occurred with deliberate indifference to [his] health or safety.” Foster, 554 F.3d at 812 (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). Deliberate indifference involves a two part inquiry. First, the prisoner must show that prison officials were aware of a “substantial risk of serious harm.” Thomas, 611 F.3d at 1150 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). This part of the inquiry may be satisfied if the prisoner “shows that the risk posed by the deprivation is obvious.” Id. Second, the prisoner must “show that the prison officials had no ‘reasonable’ justification for the deprivation, in spite of that risk.” Id. (quoting Farmer, 511 U.S. at 844, 114 S.Ct. 1970). Thus, the Ninth Circuit has specifically identified these types of conditions claims as “context-sensitive,” Richardson v. Runnels, 594 F.3d 666, 673 (9th Cir. 2010), for they require consideration of the “individual facts of each case,” id., including the length and severity of the deprivation, the circumstances giving rise to it, and the deference owed to prison officials charged with both a “duty to keep inmates safe” and the need to establish order and security, which must be “balance[d] ... against other obligations that our laws impose.” See Norwood v. Vance, 591 F.3d 1062, 1068-1070 (9th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1465, 179 L.Ed.2d 299 (2011) (No. 09-1215) (hereafter “Norwood”). In short, because “a prisoner’s right to outdoor exercise is [not] absolute and indefeasible, [nor does] it trump all other considerations,” id. at 1068, it usually “requirefs] a full consideration of context, and thus, a fully developed record.” Richardson, 594 F.3d at 672 (citing Norwood, 591 F.3d 1062). 1. Defendants Bourland and Janda Defendants Bourland and Janda first seek summary judgment on grounds arguing that neither of them may be held liable for any violation of Plaintiffs Eighth Amendment rights because no evidence in the record shows they had the authority to override the Warden’s modified program following the initial State of Emergency and independently provide Plaintiff with outdoor exercise opportunities. See Defs.’ P & As in Supp. of Summ. J. (ECF No. 79-1) at 32-34. Plaintiff contends Bourland and Janda “clearly influence[d] the determination to deprive [him] of outdoor exercise,” because Defendants’ own exhibits show they “had the ability to approve [PSRs],” attended lockdown meetings, and made “recommendations” to Wardens Giurbino and Scribner that “would” or could have provided outdoor exercise. See Pl.’s P & As in Supp. of Opp’n (ECF No. 84) at 14-15. Defendants do not deny Bourland and Janda made recommendations; however, they claim all ultimate decisions to impose, modify or lift any programming restriction are nevertheless reserved “under California regulations,” to the Warden “with approval from the Director or Associate Director at CDCR Headquarters in Sacramento.” Giurbino Deck ¶ 6; Scribner Deck ¶ 6; Bourland Deck ¶¶ 3-5; Janda Deck ¶¶ 3-5. Defendants do not cite which regulations so specify, however; and Cal. Code Regs., tit. 15 § 3383, which is cited by Plaintiff and governs “Statefs] of Emergency” is ambiguous as to ultimate decision-making authority once a declared “State of Emergency” has been officially “concluded” as Defendant Giurbino claims occurred in this case on September 16, 2005, but the institution remains in an “institution wide Modified Program” while it transitions back to a “normal” one. See Giurbino Deck ¶¶ 11, 12; Builteman Deck Ex. C at 152; Cal. Code Regs., tit. 15 § 3383(d) (providing that “[d]uring a state of emergency, the cause and effect shall be constantly reviewed and evaluated by the institution head ..., through appropriate staff.”). Regardless of who had the ultimate authority to impose, modify, or lift the restrictions on Plaintiffs exercise from August 2005 through May 2006, Plaintiff claims, and the voluminous daily progress report meeting notes kept during this period of time reveal, that both Defendants Bourland and Janda, in their capacities as Associate and Chief Deputy Wardens, had the power to collect information and intelligence, discuss conditions affecting security, consider a myriad of circumstances affecting security in all CAL Facilities, attend lockdown meetings, and the authority to make recommendations to the Wardens as to whether and when all sorts of restrictions, including exercise on Facility A, might be eased. See Bourland Decl. 113; Janda Decl. ¶ 3. In fact, while many of the PSRs and Loekdown/Modified Program Meeting Memoranda in the record dating from October 17, 2005 through May 16, 2006 are signed as “approved” by Wardens Giurbino and Scribner, many dozens more are “prepared by” as well as “approved” by M. Bourland, Chief Deputy Warden. See Builteman Decl. Ex. C (ECF No. 79-10) at 228-235; 255-262; (ECF No. 79-11) at 7-16; 21-37; 42-58; 63-69; 73-74; 79-80; 84-85; 89-95; 101-102; 106-107; 112-113; 117-128; 133-134; 139-140; 144-145; 159-165; 169-199; 204-205; 210-211; 216-217; 22-223; 228-233; 237-240; 244-260; 263-298; 301-302; 304-305; (ECF No. 79-12) 7, 10-13; 18; 22-25; 27-31; 43-44. Evidence in the record further shows that as Associate Warden of Housing and later as Chief Deputy Warden, Defendant Janda also reviewed, submitted and approved a PSR and “Proposed Unlock Action Plans” on February 2, 2006 and February 17, 2006. Id. (ECF No. 79-11) at 299-300; 310-312. Thus, under these circumstances, the Court finds genuine issues of material facts exist as to whether Defendants Bourland and Janda may be held liable for personally causing a violation of Plaintiffs Eighth Amendment rights by failing to suggest or consider the reintroduction of outdoor exercise for general population prisoners, like Plaintiff, who were not implicated in the August 18, 2005, riot and who were already cleared for other eased restrictions, prior to March 2006. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505; see also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988) (“The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.”) (emphasis added); see also Farmer, 511 U.S. at 841, 114 S.Ct. 1970 (Eighth Amendment’s deliberate indifference requirements may be satisfied if prison officials “acted or failed to act despite ... knowledge of a substantial risk of serious harm.”) (emphasis added). 2. Objective Component Defendants next argue that Plaintiff “has failed to satisfy the objective component of an Eighth Amendment claim for denial of outdoor exercise,” because “he was not locked in his prison cell seven days a week, 24 hours a day, as alleged in his First Amended Complaint.” Defs.’ P & As in Supp. of Summ. J. (ECF No. 79-1) at 27. Defendants claim that because Plaintiff admitted during his deposition to have served as an inmate clerk in the program office for approximately 30 hours per week, he was permitted “out of [his] cell regularly for [his] job assignment” sometime after the state of emergency was lifted in September 2005,” and was “given a half day of yard one day per week beginning March 13, 2006,” his deprivation was not “sufficiently serious” to warrant Eighth Amendment protection. Id.; see also Decl. of Stephen Aronis in Supp. of Summ. J. (ECF No. 79-4), Ex. B at 16-18. Plaintiff contends that even if he “could have been escorted to medical” or the library, or could “walk to and from the shower” or to his job as a “critical worker” in the program office, from August 19, 2005 through March 13, 2006, he was nevertheless denied a “sufficient source” of exercise for more than 7 months, and that as a result, he suffered “headaches, muscle cramps, leg cramps,” “stress” and depression, for which he required medication. PL’s Opp’n at 16. There is no “bright-line” rule setting forth the amount of time or circumstances under which prisoners may be denied out-of-cell exercise before the deprivation is considered “sufficiently serious” to invoke Eighth Amendment protection. However, the Ninth Circuit has consistently held the “long-term” denial of outdoor exercise may violate the Eighth Amendment. See Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc) (holding 61/2 week denial sufficient to satisfy the objective component of an Eighth Amendment violation); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.1996), as amended 135 F.3d 1318 (9th Cir.1998) (finding triable issues of fact regarding 6-month deprivation of outdoor exercise); Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir.2010) (finding “undisputed fact” that prisoner was denied outdoor exercise for 13 months and 25 days sufficient to show a “substantial deprivation” sufficient to survive summary judgment). Based on these precedents and the record before it, this Court finds Defendants have failed to show that the prohibition on Plaintiffs access to outdoor exercise from August 19, 2005 through March 13, 2006, and again from March 20, 2006 through May 15, 2006, was not “sufficiently serious” as a matter of law. Lopez, 203 F.3d at 1132-33; Scribner Decl. ¶¶ 13-15. Because triable issues of material fact exist as to the objective component of Plaintiffs Eighth Amendment claims, summary judgment is not warranted on this basis. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Keenan, 83 F.3d at 1089. 3. Subjective Component However, Defendants further argue “even if a genuine issue of material fact exists regarding the objective component of [Plaintiffs] Eighth Amendment claim,” there is “no genuine issue of material fact to support the subjective component,” because the evidence “overwhelming demonstrates that the restrictions on outdoor exercise were instituted for the primary purpose of responding to, investigating, and preventing further potentially deadly violence at CAL.” Defs.’ Mem. of P & A’s in Supp. of Summ. J. (ECF No. 79-1) at 30. Defendants point to the almost daily lockdown meeting minutes lodged in support of their Motion to show that “from August 18, 2005 onward,” in the aftermath of an “organized, coordinated effort by numerous inmates to murder staff,” Defendants “made a good faith effort to restore order and security to the prison,” and “gradually restored various aspects of normal programming as it was safe to do so.” Id. In support, Defendants also offer the testimony of Robert Borg, a former CDCR official with fifty-one years of experience in corrections, who reviewed the record of the lockdown at issue in this case. Decl. of Robert Borg in Supp. of Summ. J. (ECF No. 75-5) (hereafter “Borg Deck”). Ac cording to Borg, “[t]he level of violence prevalent at CAL between August 2005 and May 2006 did ... require that a considerable period of time be spent to make sure the prison was safe before normal programming was resumed.” Borg Deck ¶ 5. “Activities such as open yard (where outdoor exercise is available) and meals in the dining rooms create the most obvious and severe threat to safety and will be the last activities restored to normalcy. That is because these activities allow large numbers of unrestrained inmates to be in close proximity to each other and staff, in numbers that far outnumber staff, and give inmates greater access to items that could be used as weapons.” Id. ¶ 6. For his part, Plaintiff claims that Defendants “know outdoor exercise is a constitutional requirement,” but that they exhibited deliberate indifference to his rights by failing to “make outdoor exercise a part of the disturbance control plan” before March 2006. Pl.’s Opp’n (ECF No. 84) at 10-11, 13. Plaintiff contends that because Defendants considered and were able to successfully ease other types of lockdown restrictions, but did not do the same regarding outdoor exercise for more than 7 months after the August 18, 2005 incident even though their program notes show there were “no major incidents” and the facilities were “relatively quiet,” it is permissible to infer they refused to lift exercise restrictions “as a means to punish” “those inmates directly involved” and as a “means to deter those uninvolved” because the deprivation followed “on the heels of so many [of their] co-workers being injured.” Id. at 11, 14-15. Plaintiff then points to a rules violation report he was issued sometime in May 2006, for which he was assessed “10 days loss of yard,” as proof that prison officials “see outdoor exercise as a privilege and use it to punish inmates.” See Pl.’s Deck in Supp. of Opp’n (ECF No. 85) ¶ 24 at 3 & Pk’s Ex. M at 62-63. Defendants reply that Plaintiff is “comparing apples to oranges” and accuse him of “cherry picking documents” related to both the August 18, 2005 through May 2006 lockdown and other unrelated modified programs “to distort and misrepresent” the seriousness of the security issues which prompted the August 18th lockdown and which continued throughout their efforts afterward to restore CAL to a normal program. Defs.’ Reply (ECF No. 90) at 2-5. Prison officials may be found to have acted with “deliberate indifference” only if they “know[ ] that inmates face a substantial risk of serious harm and disregard[ ] that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 825, 114 S.Ct. 1970. In the context of an outdoor exercise claim, specifically, the Ninth Circuit has noted that the prisoner’s rights are not “absolute” or “indefeasible” and do not “trump all other considerations.” Norwood, 591 F.3d at 1068. Deference must be paid to prison officials who “have a right and a duty to take the necessary steps to reestablish order in a prison when such order is lost,” as this is “for the benefit of the prisoners as much as for the benefit of the prison officials,” who have a “duty to keep inmates safe.” Id. (citing Hoptomt v. Ray, 682 F.2d 1237, 1259 (9th Cir.1982); Farmer, 511 U.S. at 832-33, 114 S.Ct. 1970). Accordingly, when deciding whether prison officials have acted with deliberate indifference in denying outdoor exercise, courts show “wide-ranging deference” to “prison officials’ judgment so long as that judgment does not manifest either deliberate indifference or an intent to inflict harm.” Noble v. Adams, 646 F.3d 1138, 1143 (9th Cir.2011). This inquiry has traditionally looked to whether Defendants’ justify their actions based on “vague” or “inconsequential logistical concerns” that “might be no more than a matter of convenience,” or whether evidence exists to show the denial of exercise “was meant to be punitive” or was “implemented in bad faith.” Norwood, 591 F.3d at 1068-69; Allen, 48 F.3d at 1088. In support of their Motion, Defendants have submitted reams of prison records related to the August 18, 2005 riot, and virtually day-by-day lockdown meeting minutes which corroborate their initial decision to impose a state-of-emergency after numerous inmates carried out a concerted and organized attack against them, their attempts to quell it, and thereafter investigate its causes; their efforts to identify, discipline and transfer the riot’s instigators and other inmates found unsuitable for CAL’s 270-design and instead requiring 180-design placement, confíscate contraband and weapons, conduct inmate interviews, repair damage to the facilities, and renovate those areas which suggested vulnerability, all while monitoring and attempting to prevent or at least limit continued instances of violence. See Giurbino Decl. ¶¶ 7, 17-29; Scribner Deck ¶¶ 7-17; Borg Deck ¶¶ 7-10; 15-19; Builteman Deck, Exs., A-C. The evidence further shows that even despite the lockdown and exercise restrictions imposed from August 18, 2005 through May 2006 (with the exception of temporarily restored yard privileges from March 13-20, 2006), “there were two incidents of attempted murder on a peace officer, twenty incidents of battery on a peace officer/staff, fourteen incidents of threats toward peace officers/staff, three instances of attempted battery on a peace officer,” and “ten incidents of resisting an officer, requiring the use of force.” Borg Deck ¶ 18 & Ex. A. In addition, CAL officials found forty-six instances of inmates “in possession of weapons or metal stock,” and various instances of inmate-on-inmate violence, including one attempt to murder, two threats to kill or assault, sixty-four incidents of battery of an inmate, battery with a weapon, mutual combat and mutual combat requiring the use of force. Id. In the face of this overwhelming evidence, and when considered in the context of the fully developed record, Richardson, 594 F.3d at 672, the Court easily finds no support for Plaintiffs claims that exercise should have been restored sooner because individual facilities were “relatively quiet” on certain days. Pk’s Opp’n at 11. The Court further finds no evidentiary support in the record to show that Defendants’ decisions to lift some restrictions but not others was the result of any “bad faith” or intent to “punish” him for the August 18, 2005 attacks. Pi’s Opp’n at 13; Norwood, 591 F.3d. at 1068-69; Allen, 48 F.3d at 1088. The Court similarly rejects Plaintiffs claims that “Defendants knew information they received (presumably related to threats of ongoing violence in the facility) from inmate sources were false,” and that other unspecified “reports by their officers were false and/or exaggerated.” Pk’s Deck in Supp. of Opp’n (ECF No. 85) at 1-2, ¶¶ 5-6. While reasonable inferences must be drawn in his favor, it is Plaintiffs obligation to produce a factual predicate and point to actual evidence in the record from which these inferences may be drawn. Richards, 602 F.Supp. at 1244-45. Without more, and in light of a record which is replete with evidence to show the contrary, Plaintiffs speculations of bad faith are not by themselves sufficient to create a genuine issue of material fact to support a showing of deliberate indifference. Norwood, 591 F.3d. at 1068- 69; Allen, 48 F.3d at 1088; Farmer, 511 U.S. at 837, 114 S.Ct. 1970. In conclusion, in light of the record before it and affording the deference which is due to Defendants’ judgments under the circumstances, Noble, 646 F.3d at 1143, this Court, like the Ninth Circuit in Nor-wood, “decline[s] [Plaintiffs] invitation to micro-manage officials whose expertise in prison administration,” especially in regard to the safety and security, “far exceeds [its] own,” 591 F.3d at 1070, and finds no reasonable trier of fact could conclude that Defendants acted with deliberate indifference to Plaintiffs Eighth Amendment rights. Accordingly, Defendants’ Motion for Summary Judgment is GRANTED pursuant to Fed.R.CivP. 56(c). D. Qualified Immunity Finally, Defendants argue even if genuine issues of material fact exist to show Plaintiffs Eighth Amendment rights were violated, they are nevertheless entitled to qualified immunity. Defs.’ P & A’s in Supp. of Summ. J. (ECF No. 79-1) at 34-38. Plaintiff claims Defendants “know outdoor exercise is a constitutional requirement,” and that their conduct was “unlawful.” PL’s Opp’n at 18. “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093,182 L.Ed.2d 985 (U.S.2012) (No. 11-262) (citing Ashcroft v. al-Kidd, 563 U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)). Traditionally, “[t]he qualified immunity analysis breaks down into a two-part inquiry.” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.2009) (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). First, the Court determines if the facts as alleged state a violation of a constitutional right. Id. “If the allegations establish that a constitutional right has been violated, the next question is whether the right was ‘clearly established.’” Id. To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’ ” al-Kidd, 131 S.Ct. at 2078 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 2083. The “clearly established” standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can “ ‘reasonably ... anticipate when their conduct may give rise to liability for damages.’ ” Anderson, 483 U.S. at 639, 107 S.Ct. 3034 (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). A district court is “permitted to exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236,129 S.Ct. 808,172 L.Ed.2d 565 (2009). “[Although the first Saucier prong calls for a factual inquiry, ... the second prong of the Saucier analysis is ‘solely a question of law for the judge.’ ” Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir.2010) (quoting Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th Cir.2009)). In Noble, the Ninth Circuit was confronted with Eighth Amendment claims almost identical to those at issue here. 646 F.3d at 1138. There, an inmate at the Substance Abuse Treatment Facility in Corcoran claimed prison officials violated his Eighth Amendment right to outdoor exercise as a result of a 7-month post-riot lockdown. Id. at 1139. The riot, started by a Crips gang member on January 9, 2002, “included an attempt by prisoners to kill one of the corrections officers and resulted in injuries to 21 staff.” Id. at 1140. The assault was considered “unusual” because “normally antagonistic gangs act[ed] together,” and it “occurred one day after a previous prison-wide lockdown had been lifted.” Id. Like the record shows in this case, Defendants “gradually and in measured stages began to resume normalcy,” by slowly providing inmates with visitation and modified day-room privileges, but inmates were not provided access to outdoor exercise until August 1, 2002. Id. at 1141—46. “Because the inmates had directed their attacks against staff, increased tension between inmates and staff was a serious concern to those responsible for the safety and security of the prison.” Id. at 1140. Following a detailed review of the record, the Ninth Circuit concluded that: ... it was not clearly established in 2002 — nor is it established yet — precisely how, according to the Constitution, or when a prison facility housing problem inmates must return to normal operations, including outside exercise, during and after a state of emergency called in response to a major riot, here one in which inmates attempted to murder staff. Id. at 1143 (emphasis added); see also Norwood, 591 F.3d at 1070 (rejecting claims that prison officials had no need to continue exercise restrictions after initial investigation of assaults were completed and finding defendants entitled to qualified immunity). Thus, in light of the undisputed evidence which provides the reasons for Defendants’ August 18, 2005 lockdown and subsequent modified programs, the investigatory steps undertaken in responding to the events, Defendants’ attempts to ease restricted programs in stages depending upon the results of their investigations, and repeated ongoing instances of violence despite the lockdown, this Court finds it would not have been clear to a reasonable officer in Defendants’ positions that restricting Plaintiffs outdoor exercise from August 18, 2005 through May 2006 was unlawful. Noble, 646 F.3d at 1143, 1148. As in Noble, the record before this Court “demonstrates that officials were continuously, prudently, and successfully looking out for the safety, security, and welfare of all involved, staff and prisoners alike. This scenario is precisely what the doctrine of qualified immunity is designed to cover.” Id. at 1148. Accordingly, Defendants’ Motion for Summary Judgment is also GRANTED on the alternative basis of qualified immunity. IV. Conclusion and Order For all the reasons set forth above, the Court hereby GRANTS Defendants’ Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56(c) (ECF No. 79). The Clerk shall enter judgment for Defendants and shall close the file. IT IS SO ORDERED. . All other claims previously alleged against additional parties have been dismissed. See April 22, 2010 Order, 2010 WL 1643586 (ECF No. 39) (dismissing Defendants Dovey, Still, and Woodford); March 28, 2011 Order, 2011 WL 1157532 (ECF No. 57) (dismissing Defendant Tilton), and December 8, 2011 Order (ECF No. 75) (dismissing Defendant Wood-ford). . Pursuant to Cal. COde Regs., tit. 15 § 3383(a), "[a] state of emergency shall exist when the institution head ... temporarily suspends any nonessential operation, procedure, service or function, and the normal time-limits or schedules for such activity, in order to prevent, contain, or control a disturbance.” . Giurbino claims that as his subordinates, neither Defendant Janda nor Bourland had "the authority to deviate from the restrictions imposed as set forth in [the] program status report [PSR] matrix.” Giurbino Decl. ¶ 12; see also Borg Decl. ¶ 12 (citing Cal. Code Regs., tit. 15 § 3383); Scribner Decl. ¶ 6 "(They [Bourland and Janda] could not allow outdoor exercise for general population inmates, such as Mr. Hayes, without my authorization. Under California regulations, the ultimate decisions regarding when the modified program would be lifted, and outdoor exercise permitted, were reserved for me as the Warden, with approval from the Director or Associate Director at CDCR headquarters in Sacramento.”). . "[D]uring the week preceding the August 18, 2005 major assault on staff,” "there were eleven serious, violent incidents between Au gust 11, 2005 and August 17, 2005,” at "all” CAL facilities except Facility D. See Borg Decl. ¶ 4. These included "two staff assaults, a battery on a peace officer, one incident of threatening staff, discovery of a live round of ammunition, two incidents of inmates in possession of weapons, a battery on an inmate, and attempted battery on an inmate, and two mutual combat incidents.” Id. . Weapons were specifically discovered in Facility A, where Plaintiff was housed, on November 9 and/or 10, 2005. Builteman Decl., Ex. C at 33, 39. On November 17, 2005, a confidential letter was intercepted in Facility A, id. at 60, and an Investigative Lieutenant advised Giurbino that “safety and security might be affected by the African-American population.” Giurbino Decl. ¶ 26. . In this regard, Giurbino was also "concerned about violence in connection with the upcoming, and well-publicized execution of Stanley Williams, the founder of the Crips gang,” as it approached and was carried out on December 13, 2005. Giurbino Decl. ¶ 28; Builteman Decl. Ex. C at 146. . According to Giurbino, CAL is a "270-de-sign prison, which is not as high-security as a 180-design prison.” Giurbino Decl. ¶ 18. "[I]nmates who commit serious offenses while in lower-security prisons become classified as 180-design ... inmates.” Id. "Because a number of the inmates involved in the August 18, 2005 assaults were 180-design inmates,” and "based on a recent prior institutional review of CAL making this recommendation, all 180-design inmates ... housed at CAL’s general population needed to be identified and transferred to 180-design prisons,” or transferred to CAL’s Ad-Seg Unit. Id. ¶ 19. . Title 15 refers only to times "[d]uring a state of emergency” and "[u]pon termination of a state of emergency,” when "the normal schedules and time frames for administrative decisions and actions pertaining to affected inmates will resume.” CAL. CODE REGS., tit. 15 § 3383(d). It appears that "modified programs” which continue lockdown restrictions after a "disturbance” has been "contain[ed]” or “controlled” may still be governed by § 3383, but nothing in the plain language of this regulation clearly disempow ers other “appropriate staff” who are explicitly charged with "constantly reviewing] and "evaluat[ing]” the “cause and effect” of the state of emergency and reporting to the "institution head,” from making recommendations regarding the restoration of privileges as circumstances warrant. . In Norwood, the Ninth Circuit noted that "[ajttacks on staff,” like those which prompted the lockdown in this case, “are, by their nature, more serious challenges to prison authority than attacks on other inmates.” 591 F.3d at 1070.

MEMORANDUM OPINION FARNAN, District Judge. Presently before the Court is an appeal by Appellant, International Finance Corporation (“IFC”) from the December 9, 2002 Order (the “Order”) of the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) denying Appellant International Finance Corporation’s Motion To Dismiss For Lack Of Subject Matter Jurisdiction Based On Immunity. For the reasons set forth below, the Court will affirm that portion of the Bankruptcy Court’s December 9, 2002 Order concluding that IFC waived its immunity under Section 106(b) of the Bankruptcy Code by filing a proof of claim because it is a “governmental unit.” The Court will order supplemental briefing on the issue of whether the Debtors’ claims are outside the scope of IFC’s waiver of immunity and reserve judgment on this issue until the supplemental briefing is completed. I. The Parties’ Contentions IFC is an international organization established by Articles of Agreement among its member countries, including the United States, the Czech Republic and others. According to its charter, IFC’s mission is to “further economic development by encouraging the growth of productive private enterprise in member countries, particularly in less developed areas ...” (D.I.ll, Ex. A, art. 1). The Debtors’ subsidiary Kaiser Netherlands, B.V. (“Kaiser Netherlands”), who is not a debtor in this action or a party to the bankruptcy or underlying adversary proceeding, entered into a contract with Nova Hut, a steel manufacturer, to construct a steel mill in the Czech Republic. At the time that Kaiser Netherlands and Nova Hut executed Phase 1 of the contract, the Debtor Kaiser International executed a “Guaranty of the Performance of Kaiser Netherlands B.V.” guaranteeing the performance of Kaiser Netherlands under Phase 1. Phase 1 also required Kaiser Netherlands to submit a performance letter of credit in the amount of $11.1 million. The bank that issued the letter of credit, First Union Bank, required Kaiser Netherlands to post collater al as security. To meet this requirement, Debtor Kaiser International deposited $11.1 million in cash with First Union. After entering into the contract with Kaiser Netherlands, Nova Hut assigned its rights and title to the steel mill to IFC as security for a loan from IFC. This appeal arises out of litigation stemming from alleged breaches of the underlying contract for the construction of the steel mill, as well as allegedly improper draws on the letter of credit by Nova Hut with the alleged consent and cooperation of IFC. By its appeal, IFC raises two issues. First, IFC contends that the Bankruptcy Court erred in holding that IFC’s contingent proof of claim constituted an express waiver of its immunity from suit. Second, IFC contends that the Bankruptcy Court erred in failing to conclude that the Debtors’ counterclaims are beyond the scope of any such waiver. IFC contends that the Bankruptcy Court should have granted its Motion To Dismiss, because IFC is immune from suit under the International Organizations Immunity Act (the “IOIA”). IFC contends that its immunity cannot be waived under Section 106(b) of the Bankruptcy Code because: (1) it is not a governmental unit or an instrumentality of any of its member states; (2) it does not enjoy “sovereign immunity” because it is not a sovereign and its immunity is an “international immunity;” and (3) even if it is a governmental unit subject to sovereign immunity, its proof of claim did not expressly waive immunity, because the proof of claim asserted IFC’s immunity on its face. In the alternative, IFC contends that even if can be said to have waived its sovereign immunity, the Bankruptcy Court erred in failing to conclude that the Debtors’ claims are beyond the scope of such a waiver. Specifically, IFC contends that the Bankruptcy Court should have concluded that the Debtors’ counterclaims are not property of the estate and do not arise from the same transaction or occurrence as IFC’s proof of claim, and therefore, they are not within the scope of a waiver of sovereign immunity under Section 106(b) of the Bankruptcy Code. In response, the Debtors contend that IFC has waived a number of its arguments because it failed to raise those issues before the Bankruptcy Court, including its argument that it is a distinct legal entity and not an instrumentality of its members and its argument that it does not enjoy sovereign immunity. In addition, the Debtors contend that the Bankruptcy Court correctly concluded that IFC is a governmental unit within the meaning of Section 106(b) and the filing of its proof of claim constituted a waiver of immunity despite any express language reserving immunity of the face of the claim. As for IFC’s alternative argument, the Debtors contend that IFC waived its argument concerning the property of the estate and same transaction requirements of Section 106(b), because it did not raise those issues before the Bankruptcy Court. The Debtors also contend that even if those arguments are not waived, the Debtors’ claims arise out of the same transaction as the claims stated in IFC’s proof of claim and are property of the estate. II. Standard Of Review The Court has jurisdiction to hear an appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a). In undertaking a review of the issues on appeal, the Court applies a clearly erroneous standard to the Bankruptcy Court’s findings of fact and a plenary standard to its legal conclusions. See Am. Flint Glass Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir.1999). With mixed questions of law and fact, the Court must accept the Bankruptcy Court’s finding of “historical or narrative facts unless clearly erroneous, but exercisers] ‘plenary review of the trial court’s choice and interpretation of legal precepts and its application of those precepts to the historical facts.’ ” Mellon Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 642 (3d Cir.1991) (citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981)). The appellate responsibilities of the Court are further understood by the jurisdiction exercised by the Third Circuit, which focuses and reviews the Bankruptcy Court decision on a de novo basis in the first instance. In re Telegroup, 281 F.3d 133, 136 (3d Cir.2002). III. Discussion A. Whether The Bankruptcy Court Erred In Concluding That IFC Is A Governmental Unit For Purposes Of Immunity Under Section 106(b) of the Bankruptcy Code Reviewing the decision of the Bankruptcy Court under a plenary standard of review, the Court concludes that the Bankruptcy Court correctly concluded that IFC is a governmental unit under Section 106(b) of the Bankruptcy Code. In pertinent part, Section 106(b) provides: [a] governmental unit that has filed a proof of claim in the case is deemed to have waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the claim of such governmental unit arose. 11 U.S.C. § 106(b). The Bankruptcy Code further defines “governmental unit” as “the United States”; State; Commonwealth, District, Territory, municipality; foreign state; department; agency; or instrumentality of the United States, a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state, or other foreign or domestic government. 11 U.S.C. § 101(27). The Bankruptcy Court concluded that IFC was a “governmental unit” based on legislative history requiring the phrase “governmental unit” to be interpreted broadly and based on an analogy to In re Trusko, 212 B.R. 819 (Bankr.D.Md.1997), a case in which the court concluded that federal credit units fell within the definition of “governmental units.” In this regard, the Bankruptcy Court stated: With respect to the question of whether or not they are an instrumentality of a governmental unit, I am instructed by the legislative history that Section 106 is meant to be interpreted broadly, specifically with respect to what an instrumentality is, what a governmental unit is. And like Trusco[Trusko], I am persuaded that simply because an entity has a commercial purpose, what is typically a commercial purpose does not in and of itself eliminate the possibility that it is performing a governmental function. And I think from my understanding of the World Bank and IFC’s function in the world economy, that it is easily perceived to be, certainly by its members states, to be fulfilling their governmental function, one of which is to encourage economic development in under-developed countries which many of the developed countries feel will eliminate world conflict. (Ex. V at 49-50). The Court is persuaded by the reasoning of the Bankruptcy Court and agrees with its analysis of this issue. The Court is also not persuaded by IFC’s argument that it cannot be an “instrumentality” of a government, because it is a separate legal entity. See 28 U.S.C. § 1603(b) (recognizing that governmental instrumentalities are separate legal entities). Further, the Court is not persuaded that the immunity enjoyed by IFC is substantially different from “sovereign immunity” for the purposes of Section 106(b). IFC’s immunity flows from the IOIA which states that “[i]nternational organizations ... shah enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purposes of any proceeding or by the terms of any contract.” 22 U.S.C. § 288a(b). Because foreign governments enjoy sovereign immunity, the Court concludes that IFC also enjoys sovereign immunity for purposes of Section 106(b). See e.g. Bro Tech v. European Bank for Reconstruction and Dev., 2000 WL 1751094, *3 (E.D.Pa. Nov.29, 2000); Atkinson v. Inter-American Dev., 156 F.3d 1335 (D.C.Cir.1998). B. Whether The Bankruptcy Court Correctly Concluded That IFC Waived Its Immunity By Filing A Proof Of Claim As for the Bankruptcy Court’s conclusion that IFC waived its immunity by filing a proof of claim, the Court likewise concludes that the Bankruptcy Court’s conclusion and analysis was correct. As the Bankruptcy Court stated: I think that the filing of the proof of claim was the express waiver of sovereign immunity, and as I said in argument, I don’t think that in the face of Section 106, inclusion of language that seeks to eliminate the effect of Section 106 can do the trick, and the affirmative act of filing a proof of claim is an express waiver of sovereign immunity. (D.1.11, Ex. V at 49-50). The filing of a proof of claim in bankruptcy generally constitutes a waiver of sovereign immunity. See In re White, 139 F.3d 1268, 1271 (9th Cir.1998). In the Court’s view, to allow a disclaimer to save the waiver of immunity would contradict the intent of Section 106(b) and unfairly permit a governmental unit to litigate a proof of claim to judgment without ever waiving its immunity. See In re Davis, 282 B.R. 674, 686 & n. 5 (D.Ariz.2002). IFC interjected itself into the Debtor’s bankruptcy case by filing its proof of claim and continued to litigate in the Debtor’s bankruptcy case by filing an Objection to the Debtors’ Amended Plan of Reorganization and a Response to Objections to Proof of Claim, both of which did not contain any language claiming immunity. Therefore, the Court concludes that the Bankruptcy Court correctly concluded that IFC waived its immunity by filing its proof of claim and participating in the Debtor’s bankruptcy. C. Whether The Bankruptcy Court Erred In Failing To Conclude That The Debtors’ Claims Were Beyond The Scope Of Any Waiver Of Immunity By IFC In the alternative, IFC contends that the Bankruptcy Court erred in failing to conclude that the Debtors’ claims are beyond the scope of any waiver of immunity by IFC. Specifically, IFC contends that the Debtors’ claims are not property of the estate because they are either (1) claims of the non-debtor subsidiary Kaiser Netherlands, or (2) claims of the Debtor Kaiser International which are based on funds that were allegedly improperly draw under a letter of credit and such claims are not considered “property of the estate.” IFC also contends that the Debtors claims do not arise out of the same transaction or occurrence as required by Section 106(b) of the Bankruptcy Code. The Debtors contend that this issue was not brought before the Bankruptcy Court and it involves factual issues which are not appropriate for resolution on appeal. In the alternative, the Debtors contend that Debtor Kaiser International has suffered $11.1 million damages based upon IFC’s improper conduct related to the draw on the letter of credit, as well as $510,000 for unjust enrichment as a result of a benefit that IFC received from the Debtor Kaiser Engineers. By separate Order, the Court has requested supplemental briefing on these issues. Accordingly, the Court will reserve decision on whether the Debtors’ claims fall within the scope of IFC’s waiver of immunity. CONCLUSION For the reasons discussed, the Court will affirm that portion of the Bankruptcy Court’s Order concluding that IFC waived its sovereign immunity by filing a proof of claim under Section 106(b) of the Bankruptcy Code, because it is a “governmental unit.” The Court will order supplemental briefing on the compulsory counterclaim requirements of Section 106(b) and will reserve judgment on this issue until the supplemental briefing is completed. An appropriate Order will be entered. ORDER At Wilmington, this 30th day of September 2003, for the reasons set forth in the Memorandum Opinion issued this date; IT IS HEREBY ORDERED that: 1. The portion of the Bankruptcy Court’s Order dated December 9, 2002 concluding that Appellant, International Finance Corporation waived its sovereign immunity by filing a proof of claim under Section 106(b) of the Bankruptcy Code, because it is a “governmental unit” is AFFIRMED. 2. The Court will order supplemental briefing on the compulsory counterclaim requirements of Section 106(b) and will reserve judgment on this issue until the supplemental briefing is completed.

DECISION AND ORDER RICHARD L. SPEER, Bankruptcy Judge. The instant action is brought before the Court pursuant to the Motion of the Debt- or-in-Possession to Void an Arbitration Award as a Violation of the Automatic Stay of 11 U.S.C. § 362(a). The United Auto Workers (hereinafter referred to as the “UAW”) has filed an objection thereto, arguing that § 1113(f) of the Bankruptcy Code operates in this case so as to exclude the arbitration agreement from the scope of the automatic stay. On May 16, 2003, the Court held a hearing on this matter at which time the Parties were afforded the opportunity to make arguments in support of their respective positions. The Court has now had the opportunity to consider the arguments raised by the Parties, including those arguments submitted in the Post-Hearing Briefs allowed by the Court. After considering these arguments, in conjuncture with all of the evidence presented in this matter, the Court finds that the Motion of the Debtor-in-Possession should be Denied. Beginning with the relevant facts, the following sets forth the basis for this Decision. The Debtor-in-Possession, Bunting Bearings Corporation (hereinafter referred to as the “DIP”), is in the business of manufacturing bronze castings and other finished parts. As a part of its business operations, the DIP and the Objector, the UAW, have been parties to a series of collective bargaining agreements. As a part of these agreements, the DIP agreed to provide and maintain a pension plan for its employees. The collective bargaining agreement and the pension plan, which is incorporated by reference into the collective bargaining agreement, both provide that arbitration is to be used in the event of a dispute over the terms of the Pension Plan: (Ex. A). Pursuant to this provision, the UAW, on April 10, 2002, requested arbitration concerning the interpretation of a provision of the Pension Plan on behalf of one of the DIP’s former employees. The issue presented by the UAW’s request for arbitration potentially affects 85 other employees and former employees of the DIP. (Post-Hearing Brief, at pg. 2). On April 22, 2002, the DIP filed a petition in this Court for relief under Chapter 11 of the United States Bankruptcy Code. Less than a month later, the arbitrator employed to hear the pension issue conducted a hearing on the matter, thereafter releasing his decision on July 1, 2002. In this decision, the arbitrator ruled against the DIP. On March 21, 2003, the DIP filed the instant Motion seeking a declaration that the arbitrator’s decision, having occurred while the automatic stay of § 362(a) was in effect, is void. As it relates to this matter, it is not disputed that both the arbitrator and the UAW received timely notice that the DIP had sought relief in this Court. (Doc. 333, Ex.# 1). DISCUSSION The sole issue presented in this case, concerns whether the automatic stay operates so as to enjoin a party from enforcing their right, as set forth in a collective bargaining agreement, to arbitrate a dispute with a debtor-in-possession. As such a determination concerns whether the automatic stay has been violated, this is a core proceedings over which this Court has the jurisdictional authority to enter final orders. 28 U.S.C. § 157(b)(2). Davis v. Conrad Family Ltd. Partnership, (In re Davis), 247 B.R. 690, 694 (Bankr.N.D.Ohio1999). The automatic stay of § 362(a) operates so as to enjoin most types of actions taken against the debtor to collect on a prepetition debt. Id. The purpose of the stay is twofold: (1) to give the debtor breathing space; and (2) to ensure the equal treatment of similarly situated creditors by preventing creditors, without the permission of the bankruptcy court, from pursuing claims against the debtor during the administration of the estate. In re Siciliano, 13 F.3d 748 (3rd Cir.1994). Given these dual purposes, which lay at the heart of bankruptcy jurisprudence, the stay is given a broad interpretation. See, e.g., U.S.A. v. Ruff (In re Rush-Hampton Indust. Inc.), 98 F.3d 614, 617 (11th Cir. 1996). Thus, as pointed out by the DIP, the scope of the automatic stay has been held to encompass postpetition proceedings conducted pursuant to an arbitration clause. Savers Fed. Sav. & Loan Assoc, v. McCarthy Constr. Co. (In re Knights-bridge Devel. Co.), 884 F.2d 145, 148 (4th Cir.1989) (postpetition entry of arbitration award violates the automatic stay); see also FAA v. Gull Air, Inc., 890 F.2d 1255, 1262 (1st Cir.1989). The automatic stay, however, is subject to certain exceptions. In this regard, it is the UAW’s contention that § 1113(f) of the Bankruptcy Code operates so as to exclude from the reach of the automatic stay, any arbitration provision which is set forth in a collective bargaining agreement. (Doc. No. 351). The language of § 1113(f) provides: No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section. The DIP, however, argues that this section is not implicated since it is not actually seeking to alter or modify the collective bargaining agreement between the Parties, but is rather only seeking to impose the automatic stay upon the functioning of the arbitration agreement. (Doc. No. 400, at pg. 1). Stated differently, it is the DIP’S position that a party’s rights under an arbitration agreement will not, in violation of § 1113(f), be altered or modified by the automatic stay, but instead will only be postponed. The seminal case interpreting § 1113(f) as it relates to an arbitration provision in a collective bargaining agreement is In re Ionosphere Clubs, Inc., 922 F.2d 984 (2nd Cir.1990). In In re Ionosphere Clubs, the question addressed by the Court was framed as this: “This appeal raises the question of the effect of § 1113 of the Bankruptcy Code on the application of the automatic stay provisions of § 362 of the Bankruptcy Code to non-bankruptcy proceedings to enforce a collective bargaining agreement.” Id. at 989. After conducting a thorough analysis of § 1113, the Court concluded that the automatic stay, when in conflict with § 1113(f), was subject to the protections provided by this Chapter 11 provision. Id. at 990-91. From a statutory interpretation standpoint this holding is coherent, and thus will be followed. This coherency is derived from the fact that a fundamental canon of statutory interpretation holds that when there is an apparent conflict between a later, more specific statute— here § 1113(f) — and an earlier, more general statute, — here § 362 — the later, more specific statute governs. Id. at 991; United States v. Castro-Rocha, 323 F.3d 846, 851-52 (10th Cir.2003). Additionally, it is observed that the In re Ionosphere Clubs holding generally conforms with the Sixth Circuit’s decision in In re Unimet Corp., where the Court held that § 1113(f) can trump general Bankruptcy Code provisions. Specifically, the Sixth Circuit ruled that § 1113(f) acted so as to modify the Bankruptcy Code’s priority scheme by permitting retiree benefits due an under collective bargaining agreement to be accorded with essentially the status of an administrative expense even though it does not strictly meet the definition of such an expense under § 503. 842 F.2d 879 (6th Cir.1988), cert. denied, 488 U.S. 828, 109 S.Ct. 81, 102 L.Ed.2d 57 (1988). However, in holding that the automatic stay was subject to § 1113(f), the Court in In re Ionosphere Clubs declined to adopt an absolute approach, whereby in every instance the terms of a collective bargaining agreement would be excluded from the scope of § 362(a). Instead, the Court In re Ionosphere Clubs adopted a case-by-case approach stating that: a bright line rule precluding the application of the automatic stay to any situation involving a collective bargaining agreement was not intended by Congress. Rather we believe that a case by case adjudication is preferable. We will give effect to the automatic stay to the extent that its application is not in irreconcilable conflict with § 1113. We hold, therefore, that § 1113(f) precludes application of the automatic stay to dispute involving a collective bargaining agreement only when its application allows a debtor unilaterally to terminate or alter any provision of a collective bargaining agreement. Id. at 992. In determining on a case-by-case basis whether the application of the automatic stay would allow a debtor to unilaterally terminate or alter a provision of a collective bargaining agreement, the focus of the Court in In re Ionosphere was on whether the dispute could be adjudicated in the bankruptcy court. Id. at 993. If it could be, then it was reasoned that no harm would be imposed upon the union and its members by enforcing the automatic stay. On the other hand, if the dispute involving the collective bargaining agreement could not be adjudicated in the bankruptcy court, then the application of the stay would render the protections of § 1113 “illusory,” because with the automatic stay in effect, the utilization of any enforcement mechanism contained in the collective bargaining agreement would be foreclosed. Id. To ascertain whether a dispute could be adjudicated in bankruptcy court, the Court in In re Ionosphere stated, “if a union has a procedural mechanism to place the dispute before the bankruptcy court and the bankruptcy court has jurisdiction to resolve the dispute, enforcement of the collective bargaining agreement is not foreclosed and application of the automatic stay does not permit a debtor unilaterally to alter its collective bargaining agreement.” Id. at 993. Again, this Court agrees with the reasoning of the In re Ionosphere decision. This is due to the fact that fundamentally arbitration is based upon the notion of resolving disputes in a timely and efficient manner. As a consequence, a party who, on account of § 362(a), is denied their right to arbitrate for an extended period of time has clearly had, in violation of § 1113(f), their right to arbitrate altered, instead of merely postponed as the DIP argues. In this regard, it is noted that in a Chapter 11 case, it is not uncommon for the automatic stay to be in effect for an extended period of time given that it takes some debtors months, if not years to put forth a viable plan of reorganization. As pointed out in In re Ionosphere, however, if a matter is capable of being adjudicated in bankruptcy court, then the application of the automatic stay to a collective bargaining agreement will not result in a unilateral modification of the agreement, and therefore will not invoke the protections of § 1113(f). By way of an illustration, in In re Ionosphere it was held that the rejection of a lease— which this Court’s notes is a core proceeding and thus particularly suited for adjudication in bankruptcy court — was subject to the automatic stay. On the other hand, In re Ionosphere, a party’s right to arbitrate under a collective bargaining agreement was not subject to the automatic stay because such an action was incapable of being brought before the bankruptcy court. Id. at 992. Similarly, with a right to arbitrate under a collective bargaining agreement at issue in this case, there appears to be neither a procedural mechanism to bring the pension matter before the bankruptcy court nor a basis to invoke the jurisdiction of the Court. A couple of observations support this supposition. First, the Parties’ arbitration agreement provides, in no uncertain terms, that both the UAW and the DIP are to select an arbitrator. (Ex. A, at pg. 57). Thus, in the absence of consent by both of the Parties (which given the UAW’s stance in this case is clearly lacking), there exists no procedural mechanism to bring the Parties’ arbitration matter before this Court. Secondly, any decision entered by the Court concerning the UAW’s Pension Plan would, in all likelihood, have been issued against the Plan itself, which is a distinct entity, and not the DIP. As a result, the jurisdiction of this Court is tenuous, at best, given that any decision rendered, although certainly affecting the DIP at least indirectly, would not necessarily directly involve the administration of the DIP’s estate. Accordingly, for these reasons, and in accordance with the Court’s ruling in In re Ionosphere, it is the decision of this Court that any award made under the Parties’ collective bargaining, being subject to the protections of § 1113(f), is not subject to the automatic stay of § 362(a). Notwithstanding, the DIP asserts that even if § 1113(f) nullifies the application of the automatic stay for arbitrations awards made under the Parties’ collective bargaining agreement, such a holding is not applicable in this case on account of the fact that at issue in this case is the UAW’s Pension Plan which is a separate and distinct entity from the Parties’ collective bargaining agreement. In support of this position, the DIP raised a number of specific points, including, but not limited to: (1) the UAW’s request for arbitration was made under the Pension Plan, not the Collective Bargaining Agreement; (2) the calculation of benefits is exclusively detailed in the Pension Plan; (3) provisions of the Pension Plan were not negotiated by the UAW; and (4) the Pension Plan is administered by a separate entity. However, while not necessarily disagreeing with the above statements, from a strictly contractual interpretation standpoint, the DIP’s argument lacks merit. This is because the Pension Plan at issue in this case is, in unequivocal terms, incorporated into the UAW’s Collective Bargaining Agreement. Specifically, the collective bargaining agreement states: Establishment of the Plan. The Company shall establish a con-contributory pension plan which shall be known as the “BUNTING BEARINGS CORP. DELTA — LOCA 877 UAW PENSION PLAN” (hereinafter referred to as the “Plan”), a copy of which is attached hereto as Exhibit A and made a part of this Agreement. (Emphasis added) (Ex. A, at pg. 56). Thus, regardless of whether the pension plan and the collective bargaining agreement are distinct entities, there clearly existed an intent, manifested by the above language, to make any dispute with respect to the Pension Plan subject to the terms of the collective bargaining agreement. Taking a different approach, the DIP also raised legal arguments in support of its position that the Parties’ collective bargaining agreement and the UAW’s Pension Plan are separate and distinct entities. First, in the words of the DIP, it is asserted that to include a pension plan within the ambit of a collective bargaining agreement, “would negate the entire body of Employee Retirement Income Security Act (ERISA) law, since including pension plans in the definition of collective bargaining agreements would require that the National Labor Relations and the LMRA exclusively govern their interpretation and there would thus be no need for ERISA.” (Doc. 355, at pg. 3). Put differently, it is the DIP’S position that since separate (and in many instances incompatible) statutory schemes govern pension plans and collective bargaining agreements, the two cannot be interpreted together. This argument, however, overlooks one very important point: For purposes of § 1113, bankruptcy law, not ERISA or the LMRA, controls the issue of whether a pension plan qualifies as a collective bargaining agreement under § 1113(f). The DIP’S second argument, however, takes this tenet into account, asserting that even though a pension plan may be incorporated by reference into a collective bargaining agreement, such a plan is not legally capable of being subject to the restrictions of § 1113, since this section is limited to “collective bargaining agreements.” The term “collective bargaining agreement,” is neither defined in § 1113, nor is there any case law on point. After considering the matter, however, the Court could not surmise any reason why a pension plan, which is incorporated by reference into a collective bargaining agreement, should be excluded from the scope of § 1113. To the contrary, and as will now be explained, the context in which § 1113 was enacted, together with public policy considerations and the broad statutory language of the statute, demonstrate that § 1113(f) was meant to be read expansively. First, § 1113 was enacted in direct response and was specifically meant to overturn the Supreme Court’s decision in Nat’l Labor Relations Bd. v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984), where it was held that a collective bargaining agreement was simply an executory contract, and thus subject to rejection under § 365. In Bildisco the collective bargaining agreement provided, among other things, that the debtor-in-possession contribute to an employee’s pension plan. Given therefore this fact, together with the principle that Congress is presumed to know the attendant circumstances (such as existing case law) pertinent to any legislation it enacts, it would then follow that since a pension plan was at issue in Bildisco, any exclusion of this type of contractual arrangement from the scope of § 1113 would have been specifically stated. The expansive nature of § 1113(f) is also illustrated by the all-inclusive language of the statute which provides for its applicability whenever a debtor-in-possession seeks to “unilaterally terminate or alter any provisions of a collective bargaining agreement ...” (Emphasis supplied). Also of noteworthiness, Black’s Law Dictionary defines a “collective bargaining agreement,” as being composed of more than one agreement; namely, the “[t]he joint and several contracts of members of a union ... establishing, in a general way, the reciprocal rights and responsibilities of employer, employees and union” Blace’s Law DictionaRY, 263 (6th Ed.1990). Finally, the expansive nature of § 1113(f) is supported by the Supreme Court’s repeated reiteration that under Federal Labor Relations Law there exists a federal policy in favor of enforcing labor contracts. Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957) (holding that LMRA expresses a federal policy in favor of the enforceability of labor contracts); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 509, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962) (LMRA reflects congressional recognition of the vital importance of assuring the enforceability of collective bargaining agreements). Therefore, given that all of the above considerations favor an expansive reading of § 1113(f), the Court will not limit the protections of this section to solely those terms which are specifically set forth in an agreement labeled by the parties as a collective bargaining agreement. Rather, if there exists a clear intent on the part of the parties to incorporate into a collective bargaining agreement other appurtenant agreements, those other agreements, subject to the limitation set forth in In re Ionosphere, will also be accorded with the protections provided for by § 1113. Accordingly, as there existed a clear intent, as discussed earlier, on the part of the Parties to include within the scope of their collective bargaining agreement the terms set forth in the UAW’s Pension Plan, this Plan will be afforded the protections of § 1113(f). To thus summarize, based upon the language of the agreements, the UAW’s Pension Plan will be deemed to be incorporated into the Parties’ collective bargaining agreement for purposes of § 1113(f). Additionally, the Court will follow the decision made by the Second Circuit Court of Appeals in In re Ionosphere Clubs, Inc., 922 F.2d 984 (2nd Cir.1990). Consequently, since the automatic stay of § 362(a) would have effectively altered the UAW’s right to arbitrate issues concerning its Pension Plan, the protections afforded to the DIP by § 362(a) must be subordinated to those protections afforded to the UAW under § 1113(f). In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision. Accordingly, it is ORDERED that the Motion of the Debtor-in-Possession, Bunting Bearings Corporation, to Void an Arbitration Award as a Violation of the Automatic Stay of 11 U.S.C. § 362(a), be, and is hereby, DENIED. . See, L.T. Ruth Coal Co. v. Big Sandy Coal and Coke Co., 66 B.R. 753 (Bankr.E.D.Ky.1986). . The lease agreement at issue in In re Ionosphere involved what is known in the industry as a "wet-leasing” agreement whereby one airline leases aircraft and crews to another airline. In In re Ionosphere the collective bargaining agreement prohibited this practice. .At issue here was whether arbitration, as allowed under the collective bargaining agreement, could be used to determine whether labor protective provisions in the collective bargaining agreement had been triggered by the debtor’s merger with another company. . Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185, 108 S.Ct 1704, 1712, 100 L.Ed.2d 158 (1988) (Congress is presumed to know about existing law pertinent to the legislation it enacts); United States v. Phillips, 19 F.3d 1565, 1581 (11th Cir.1994) (Congress is presumed to be knowledgeable about existing case law pertinent to any legislation it enacts, and about the basic rules of statutory construction.).

MEMORANDUM John and Catherine Wildman appeal the district court’s confirmation of an arbitration award issued by a panel of arbitrators of the National Association of Securities Dealers (“NASD”) in favor of Pacific Coast Independent Brokerage, Inc. (“Pacific Coast”) and Davies Wu. The NASD arbitration panel dismissed all of the Wild-mans’ claims against Pacific Coast and Mr. Wu for violations of the Securities Exchange Act of 1934, civil RICO, and California state law violations. These claims arose from the opening of securities accounts by the Wildmans with Pacific Coast between 1993 and 1995. In addition, the NASD panel found that the Wildmans were hable to Pacific Coast for money due on trades ordered by the Wildmans. The Wildmans seek to vacate the award on the grounds that the district court erred when it assigned the matter to arbitration, and when it confirmed the arbitration award. Our jurisdiction rests on 18 U.S.C. § 1291, and we review de novo the district court’s decision to compel arbitration. Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir.2000). We affirm. Between 1993 and 1995, John Wildman opened four accounts at Pacific Coast with investment objectives of “trading,” “speculation,” and “growth.” Two of these accounts were joint accounts with his mother, Catherine Wildman. In the forms that Mr. Wildman completed at the time he opened the accounts, he stated that he possessed extensive investment experience and that his net worth was $2 million. In the course of opening the accounts, both John and Catherine Wildman signed four standard contracts containing arbitration clauses in large, bold print directly over the signature line. These arbitration clauses provided that any disputes between the Wildmans and Pacific Coast would be referred to final and binding arbitration at the NASD. An agreement to arbitrate a dispute is a matter of contract. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). California contract law applies in the determination of whether the Wild-mans and Pacific Coast agreed to arbitrate. See Wagner v. Stratton Oakmont Inc., 83 F.3d 1046, 1049 (9th Cir.1996). Under California law, a claim that an arbitration clause is unenforceable because of fraud is for the court to decide if the fraud was specifically directed at the arbitration clause. Hayes Children Leasing Co. v. NCR Corp., 37 Cal.App.4th 775, 782-83, 43 Cal.Rptr.2d 650 (1995). Although the Wildmans do not deny signing the various agreements containing the arbitration provisions, they state that they did not read any of the documents they signed. They chose not to do so because Davies Wu advised them when they opened the accounts that any disputes would be simply “settled between them.” Their failure to read the documents, they argue, is excused by virtue of their reliance on Mr. Wu’s alleged statement. We construe the Wildmans’ argument as one alleging fraud in the inception of a contract. To succeed on a claim of fraud in the inception, “plaintiffs must show their apparent assent to the contracts — their signatures on [the] agreements — is negated by fraud so fundamental that they were deceived as to the basic character of the documents they signed and had no reasonable opportunity to learn the truth.” Rosenthal v. Great Western Fin. Sec. Corp., 14 Cal.4th 394, 425, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (1996). A misrepresentation of the contract’s contents alone does not render a contract’s contents void “where the defrauded party had a reasonable opportunity to discover the real terms of the contract.” Id. at 419-20, 58 Cal.Rptr.2d 875, 926 P.2d 1061. Mr. Wildman had ample opportunity to review the account agreements containing the arbitration clauses. When he signed the account agreements in 1993 and 1995, he was a self-declared day trader with a high net worth. The language of each of the contracts clearly and explicitly provided for arbitration of disputes arising out of the contractual relationship. Therefore, Mr. Wu’s alleged misrepresentations did not rise to the level of fraud in the inception, and an agreement to arbitrate existed between the Wildmans and Pacific Coast. The district court did not err in compelling arbitration. The Wildmans also ask us to throw out the arbitration award itself. However, the scope of judicial review of an arbitrator’s award is extremely narrow. See SFIC Properties, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, 103 F.3d 923, 924 (9th Cir.1996). Long-standing precedent of this Circuit and the California courts prevents us from reviewing the merits of the arbitrators’ findings. See Line Drivers, Pickup & Delivery Local Union No. 81 v. Roadway Express, Inc., 152 F.3d 1098, 1099 (9th Cir.1998). Because the Wildmans fail to show that the award manifestly disregards California law or public policy, the district court’s confirmation of the arbitration award must be upheld. Todd Shipyards Corp. v. Cunard Line, Ltd., 943 F.2d 1056 (9th Cir.1991). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3. . Mr. Wu adamantly disputes having made any such statement to Mr. Wildman. The district court did not make a finding on this question, nor are we aware of the arbitrators' finding on this question.

OPINION OF THE COURT PER CURIAM. Appellant Philip Johnson appeals from an order of the District Court entered July 8, 2008, dismissing his complaint sua sponte for lack of subject matter jurisdiction. For the reasons that follow, we will vacate the order and remand the matter for further proceedings. I. Background, In January 2008, Johnson submitted a pro se complaint purporting to bring a civil action against the State of New York, the City of New York, and various New York city and state agencies and employees. Johnson attempted to invoke the court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. Johnson included as his address only a post office box. Concluding that a post office box does not establish domicile or residence for diversity jurisdiction purposes, the District Court entered a sua sponte order dismissing the complaint for lack of subject matter jurisdiction. Johnson now pursues a timely appeal to this Court. II. Analysis According to 28 U.S.C. § 1332(a)(1), “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.” We exercise plenary review over the District Court’s sua sponte dismissal of the complaint for lack of subject matter jurisdiction. See SEC v. Infinity Group Co., 212 F.3d 180, 186 (3d Cir.2000). To invoke diversity jurisdiction, Johnson was required to plead that he is a citizen of a particular state and that the defendants are citizens of a different state or states. See 5 Wright & Miller, Fed. Prac. & Proc. Civ.3d § 1208; see also, e.g., Schultz v. Cally, 528 F.2d 470, 472-73 (3d Cir.1975). Here, the District Court concluded that Johnson’s complaint was insufficient because he cited a Post Office Box “as the sole basis of Petitioner’s domicile or residence in this matter.” However, requiring Johnson to provide the “basis” of his domicile or residence holds Johnson to an unnecessarily high pleading standard. Johnson indicated on both the civil cover sheet and in the first paragraph of his complaint that he is a citizen of the State of New Jersey. The liberal notice pleading standard of Federal Rule of Civil Procedure 8(a)(1) requires only “a short and plain statement of the grounds for the court’s jurisdiction,” and as a pro se plaintiff, Johnson was entitled to liberal construction of his pleading. See Alston v. Parker, 363 F.3d 229, 234 (3d Cir.2004). His allegation of New Jersey citizenship appears sufficient to survive sua sponte dismissal prior to 'service. Moreover, a District Court generally should permit amendment of a complaint that is vulnerable to dismissal where a responsive pleading has not yet been filed. See Alston, 363 F.3d at 235-36; 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”); Moore v. Coats Co., 270 F.2d 410, 412 (3d Cir.1959) (“There is ample authority to support the proposition that a complaint may be amended pursuant to Section 1653 in order to supply allegations necessary to sustain jurisdiction.”). Indeed, we have indicated that federal courts have a duty to consider whether a defective jurisdictional allegation may be remedied through amendment. See Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Surety Co., 177 F.3d 210, 222 n. 13 (3d Cir.1999); Kiser v. Gen. Elec. Corp., 831 F.2d 423, 427 (3d Cir.1987). Thus, to the extent the District Court believed that Johnson should have provided additional factual support for his claim of New Jersey citizenship, at a minimum, it should have permitted him leave to amend the complaint. III. Conclusion We will vacate the District Court’s order and remand the matter for further proceedings consistent with this opinion. We express no opinion as to whether subject matter jurisdiction exists in this case, based on diversity of citizenship or otherwise.

PER CURIAM: Roman Valadez and Edgar Martinez (together, “Appellants”) appeal them convictions for conspiracy to possess with intent to distribute, and attempt to possess with intent to distribute, five kilograms or more of a mixture containing cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), respectively. On March 27, 2007, federal drug enforcement agents employing a confidential informant (“Cl”) posing as a drug dealer, who initially met with the Appellants on the previous day, arrested them while attempting to purchase ten kilograms of cocaine. On June 13, 2007, a jury found them guilty on both counts. The Appellants each argue three issues on appeal, one of which overlaps between them. We will first consider the arguments unique to each Appellant and then address the one common argument between them. I. Martinez’s Arguments Martinez argues that his convictions were not supported by sufficient evidence and that the district court erred in denying his motion to sever the trial. A. Sufficiency of the evidence Martinez argues that his convictions were not supported by sufficient evidence because (1) as to conspiracy, his mere presence at the scene of the transaction falls short, and (2) as to attempt, he did not take a substantial step towards possessing the cocaine. A claim of insufficient evidence to convict is reviewed de novo. United States v. Nolan, 223 F.3d 1311, 1314 (11th Cir.2000) (per curiam). On appeal, we view the evidence in the light most favorable to the government and affirm the conviction if, based on this evidence, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation and citation omitted). We will address the sufficiency of Martinez’s convictions for conspiracy and attempt in turn. 1. Conspiracy To obtain a conviction for conspiracy under 21 U.S.C. § 846, “the government must prove that there is an agreement by two or more persons to violate the narcotics laws.” United States v. Parrado, 911 F.2d 1567, 1570 (11th Cir.1990). Thus, “the government must prove beyond a reasonable doubt that: (1) a conspiracy existed; (2) appellants knew of the essential objectives of the conspiracy; and (3) appellants knowingly and voluntarily participated in the conspiracy.” United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir.1997) (quotation and citation omitted). “[Repeated presence at the scene of the drug trafficking ... can give rise to a permissible inference of participation in the conspiracy.” Id. “Although mere presence is inadequate to establish guilt, we have held it is material, highly probative, and not to be discounted.” United States v. Gamboa, 166 F.3d 1327, 1332 (11th Cir.1999) (citation and internal quotation omitted). In United States v. Hernandez, 896 F.2d 513 (11th Cir.1990), we held that the government presented insufficient evidence to convict one of the defendants of conspiracy, where “[a]ll the facts presented involving [that defendant] took place in the few minutes” immediately preceding the arrest. Id. at 519. There, the defendant rode in his codefendant’s car, stood at the trunk while the codefendant delivered a package of cocaine to the undercover agent, and then “picked up on something” and fled. Id. at 516-17. On the contrary here, Martinez’s connection to the conspiracy spanned two days as opposed to a “few minutes” preceding his arrest. On March 26, 2007 (the day before his arrest), Martinez accompanied Valadez to the restaurant meeting where, viewing the facts in the light most favorable to the government, he remained in the car to act as a lookout while Valadez and the Cl finalized the deal and discussed future transactions. On March 27, 2007 (the day of his arrest), Martinez again accompanied Valadez to a parking lot to finalize the drug transaction, during which Martinez handed a bundle of cash to Vala-dez and he assisted in retrieving another bundle of cash from the trailer’s hidden compartment. In addition to his presence at two separate meetings and serving the function of a look-out, Martinez participated in the conspiracy (on the day of his arrest) by handing the bundle of cash to Valadez and assisting Valadez in retrieving more cash from the trailer. Considering these facts in the light most favorable to the government, a reasonable juror could find that Martinez knowingly and voluntarily participated in an agreement to possess and distribute cocaine, in violation of § 846. 2. Attempt to possess with intent to distribute To obtain a conviction for attempt under 21 U.S.C. § 841, “the government must prove: (1) the defendant was acting with the kind of culpability otherwise required for the commission of the crime for which he is charged with attempting; and (2) the defendant was engaged in conduct that constitutes a substantial step toward the commission of the crime.” United States v. Carothers, 121 F.3d 659, 661 (11th Cir.1997) (per curiam). “In other words, the defendant’s acts, taken as a whole, must strongly corroborate the required culpability; they must not be equivocal.” Id. (citation omitted). Here, after Valadez made arrangements to purchase 10 kilograms of cocaine from the Cl, Martinez joined Valadez to meet the Cl at the appointed time and place to finalize the drug transaction. While there and without equivocation, Martinez handed cash to Valadez, Valadez handed that cash to the Cl, and Valadez inspected the 10 kilograms of cocaine. Again, considering these facts in the light most favorable to the government, a reasonable juror could find that Martinez’s actions constituted a substantial step towards possession with the intent to distribute cocaine. B. Motion to sever trial Martinez argues that the district court should have severed the trial to allow him to call Valadez as a witness on his behalf. According to Martinez, Valadez would have testified, inter alia, that he never told Martinez about the drugs and that Martinez thought the purpose of the trip was to move cars from Florida to Mexico. “It is well settled that defendants who are indicted together are usually tried together,” which is “particularly true in conspiracy cases.” United States v. Browne, 505 F.3d 1229, 1268 (11th Cir.2007). We review the denial of a Rule 14 motion for severance under an abuse of discretion standard. Id. This standard requires an appellant to meet the “heavy burden of demonstrating compelling prejudice from the joinder.” Id. (citation and internal quotation omitted). To show that he is entitled to a new trial, an appellant first must “demonstrate that the joint trial resulted in prejudice to him; and second, must show that severance is the proper remedy for that prejudice.” Id. Where, as here, the motion for severance is based on the defendant’s desire for a codefendant’s testimony, the “defendant must demonstrate [to the district court]: (1) a bona fide need for the codefendant’s testimony; (2) the substance of the testimony; (3) the exculpatory nature and effect of the testimony; and (4) that the codefendant will actually testify.” United States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir.1989). “If a showing is made, the district court must then consider the significance of the testimony, the prejudice caused by the absence of the testimony, the timeliness of the motion and the effect on judicial administration and economy of resources.” Id. In Browne, the defendants were charged with embezzlement and fraud by abusing their positions in a labor union. Browne, 505 F.3d at 1241. Browne moved to sever the trial so that his codefendant could testify that she: “never discussed the submission of false expense vouchers” with Browne; “told Browne that her New York trips were related to union business”; “did not conspire in any manner with Browne”; and “ha[d] no evidence or reason to believe that Browne knew she was victimizing the union.” Id. at 1269. The district court found “that the proffered testimony contained] few specific exonerative facts and consisted] of undocumented conclusory allegations[,] which mitigate[d] against Browne’s severance motion.” Id. We affirmed, noting that the codefendant’s “proffered testimony was in no way contrary to her own interests.” Id. at 1270. Here, Valadez’s proposed testimony appears analogous to, and no less self-serving than, the testimony offered in Browne. By testifying that Martinez had no knowledge of the drug transaction and that he told Martinez that they were merely buying cars for resale in Mexico, Vala-dez would have served his own interest by disapproving the conspiracy charge. See United States v. Pepe, 747 F.2d 632, 651 (11th Cir.1984) (affirming denial of motion to sever where the proffered testimony “was of dubious credibility because it was in no way contrary to [testifying co-defendants’] own interests”). Valadez’s affidavit (providing a glimpse into his anticipated testimony), moreover, contained concluso-ry statements claiming innocence and lacked any specific and exonerative facts as to Martinez. See Brownie, 505 F.3d at 1269. Given the usual practice of trying indicted defendants together, especially in conspiracy cases, and a district court’s discretion to decide if severance is appropriate, we find no error. II. Valadez’s Arguments Valadez proffers two arguments unique to his conviction: (1) the district court erred by permitting the government to question his witness regarding the general reputation for truthfulness of used car salesmen and (2) the government improperly elicited testimony concerning his invocation of his right to an attorney under the Fifth Amendment to the United States Constitution, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and its progeny. A. Testimony on the reputation of a used car salesmen Valadez argues that the district court erred by allowing the government to question one of his witnesses, who worked for a used car dealer, on car salesmen’s general reputation for truthfulness. Valadez further asserts that because he as well as two other witnesses all worked as used car salesmen, the government effectively impeached them all. We review a trial court’s evidentiary rulings for abuse of discretion, and will not reverse a conviction for evidentiary errors “unless there is a reasonable likelihood that they affected the defendant’s substantial rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). Thus, “an erroneous evidentiary ruling is a basis for reversal only if the defendant can demonstrate that the error probably had a ‘substantial influence’ on the jury’s verdict.” United States v. Stephens, 365 F.3d 967, 977 (11th Cir.2004). Pursuant to Federal Rule of Evidence 404, in a criminal case, the defendant may offer evidence of his good character, if pertinent, and the prosecution may then offer character evidence in rebuttal. Fed. R.Evid. 404(a)(1). Evidence of a witness’s character for truthfulness may also be offered in the form of opinion or reputation. Fed.R.Evid. 404(a)(3), 608(a). “A proper foundation must be laid before the admission of reputation testimony.” United States v. Watson, 669 F.2d 1374, 1381 (11th Cir.1982). Because this witness testified on direct examination that Valadez was “very honest,” Rule 404(a)(1) allowed the government to rebut that assertion. Nonetheless, even if this testimony was inadmissible, it did not affect Valadez’s substantial rights insofar as the witness testified regarding a common cliché and Valadez has failed to demonstrate that it had a substantial influence on the jury’s verdict. B. Post-Miranda Statement Valadez argues that his trial was not fair because the government elicited testimony showing that he asked for counsel after his arrest. Because Valadez did not raise the Doyle violation before the district court, we review for plain error. United States v. O’Keefe, 461 F.3d 1338, 1348 n. 10 (11th Cir.2006); Fed.R.CRim.P. 52(b). Under this standard, an appellant must show “(1) an error, (2) that is plain, and (3) that affects substantial rights”. United States v. Campbell, 223 F.3d 1286, 1288 (11th Cir.2000) (per curiam). See also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (citation and quotations omitted) (providing that “Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”). “In order to ‘affect substantial rights,’ in most cases, the error must ‘have been prejudicial: It must have affected the outcome of the district court proceedings.’” Campbell, 223 F.3d at 1288 (quoting Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78). Because Miranda warnings carry an implicit assurance that silence will carry no penalty, it is fundamentally unfair, and a violation of Due Process, to use a defendant’s post-Miranda silence to impeach him. Wainwright v. Greenfield, 474 U.S. 284, 289-91 & n. 5, 106 S.Ct. 634, 637-39 & n. 5, 88 L.Ed.2d 623 (1986) (citing Doyle, 426 U.S. at 618-19, 96 S.Ct. at 2245). This protection extends to post-Miranda requests for counsel as well. Id. at 295 & n. 13, 106 S.Ct. at 640 & n. 13. Assuming arguendo that the testimony regarding Valadez’s post-Miranda statement in which he requested counsel constituted a Doyle violation, said violation did not affect his substantial rights. In light of the evidence against Valadez, spe- eifícally that he arranged to purchase large amounts of cocaine, retrieved a bundle of cash from a hidden compartment in his trailer, and had $60,000 cash in his car, some of which was coated in mustard to prevent detection by drug dogs, the jury’s knowledge that he requested an attorney did not affect its verdict. III. Valadez’s and Martinez’s argument Both Appellants Valadez and Martinez argue that the district court abused its discretion by refusing their requests to depose two witnesses in Mexico. According to Appellants, these individuals would have testified that they worked with Vala-dez in reselling cars that he brought from the United States to Mexico. We review the district court’s denial of a motion to conduct a deposition for abuse of discretion. United States v. Ramos, 45 F.3d 1519, 1522 (11th Cir.1995). Under Federal Rule of Criminal Procedure 15, a district court may grant a motion to take a deposition “because of exceptional circumstances and in the interest of justice.” Fed.R.CrimP. 15(a)(1). “[Tjhree factors guide the exceptional circumstances analysis: whether (1) the witness is unavailable to testify at trial; (2) injustice will result because testimony material to the movant’s case will be absent; and (3) countervailing factors render taking the deposition unjust to the nonmoving party.” Ramos, 45 F.3d at 1522-23 (citing United States v. Drogoul, 1 F.3d 1546, 1554 (11th Cir.1993)) (emphases omitted). The Government concedes the first prong and glosses over the third prong in a footnote, leaving the second prong at issue. No injustice resulted because the record included uncontroverted evidence that Va-ladez had a business selling cars in Mexico, the substance of the very same testimony that Valadez and Martinez sought to introduce by way of the foreign depositions. In other words, the testimony was not absent but merely cumulative. Accordingly, the Appellants did not suffer an injustice when the district court denied their motion and the district court did not abuse its discretion by doing so. IV. Conclusion Upon review of the record and consideration of the parties’ briefs, we discern no reversible error. Accordingly, we affirm. AFFIRMED. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

COLLOTON, Circuit Judge. After he was convicted of two counts of involuntary manslaughter, Donovan New filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court denied the motion, and we affirm. New is a member of the Oglala Sioux Indian tribe. On June 17, 2005, New was traveling in a vehicle with his father and cousin on a highway within the Pine Ridge Indian Reservation in South Dakota. New and his cousin had been drinking heavily that day. The driver lost control of the vehicle while it was moving at approximately 89 miles per hour — 24 miles per hour above the posted speed limit — and the car went into a ditch, rolled twice, and landed in a field. The impact of the crash threw New and his cousin from the vehicle and trapped New’s father in the back seat. New’s father and cousin died as a result of the accident. An ambulance transported New to a local hospital, where he informed a police officer that his cousin was driving at the time of the crash. New was flown by helicopter to the Rapid City Regional Hospital, where a blood test indicated that New had marijuana in his system and a blood alcohol level of .320, well above the legal limit for motor vehicle operators in South Dakota. Later that day, hospital personnel gave New a variety of medications due to his spinal injuries, difficulty breathing, and chest and shoulder pain. Special Agent Charles Cresalia of the Federal Bureau of Investigation interviewed New in his hospital room the following afternoon. New admitted to Cresalia that he had been driving at the time of the crash and had consumed alcohol earlier that day. Several weeks later, New traveled to the Bureau of Indian Affairs (“BIA”) building in Pine Ridge, South Dakota, to reclaim property that he had left at the accident scene. While he was there, New told BIA Special Agent Fred Bennett that he was driving at the time of the crash, although he also said that others were telling him that he was not the driver. In late July 2005, a federal grand jury charged New with two counts of involuntary manslaughter, in violation of 18 U.S.C. §§ 1112 and 1153. New moved to suppress his statements to Special Agent Cresalia on the basis that they were involuntary and obtained in violation of the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court denied the motion. At trial, a jury heard evidence from various lay witnesses, law enforcement personnel, doctors, arid experts in accident reconstruction. New testified that he had been drinking prior to the accident on June 17, but had no recollection of the accident itself and could not recall whether he was driving at the time of the crash. The jury found New guilty on both counts of involuntary manslaughter, and the district court sentenced him to consecutive terms of 72 months’ imprisonment on each count. New raised several challenges to his convictions and sentence on direct appeal, and this court affirmed. United States v. New, 491 F.3d 369 (8th Cir.2007). New filed his motion pursuant to 28 U.S.C. § 2255 in August 2008, arguing that his trial and appellate counsel had been constitutionally ineffective in six respects. The district court denied New’s motion with regard to five of his claims and referred the sixth claim to a magistrate judge for an evidentiary hearing. That claim concerned the failure of New’s trial counsel to obtain an audio expert to examine the authenticity of the tape recording of New’s interview with Special Agent Cresalia. The magistrate conducted a hearing and recommended that the district court deny New’s motion. The district court agreed, and thus denied New’s § 2255 motion in its entirety. The court granted New a certificate of appealability with respect to four issues. See 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1). We review the district court’s legal conclusions de novo and its findings of fact for clear error. United States v. Davis, 406 F.3d 505, 508 (8th Cir.2005). First, New contends that he was deprived of his Sixth Amendment right to effective assistance of counsel because his trial counsel failed to litigate properly his motion to suppress the statements he made to Special Agent Cresalia. Whether a defendant was deprived of effective assistance of counsel is a mixed question of law and fact that we review de novo. Id. We review a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must make two showings to obtain relief: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. 2052. Our scrutiny of counsel’s performance must be “highly deferential.” Id. at 690, 104 S.Ct. 2052. New asserts that his trial counsel should have argued that Special Agent Cresalia’s warrantless entry into New’s hospital room constituted a “search” within the meaning of the Fourth Amendment, and was therefore a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. Whether the entry was a Fourth Amendment “search” depends upon whether New had a reasonable expectation of privacy in the room. See Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). New acknowledges a split of authority on the question whether a patient has a reasonable expectation of privacy in a hospital room, and this court has not specifically addressed the issue. See New, 491 F.3d at 374 n. 3. Compare, e.g., People v. Courts, 205 Mich.App. 326, 517 N.W.2d 785, 786 (1994), with State v. Stott, 171 N.J. 343, 794 A.2d 120, 127-28 (2002), and People v. Brown, 88 Cal.App.3d 283, 151 Cal.Rptr. 749, 754 (1979). A failure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer’s services “outside the wide range of professionally competent assistance” sufficient to satisfy the Sixth Amendment. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. This court has held that an attorney’s failure to anticipate changes in the law does not constitute constitutionally ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir.1999). Then in Fields v. United States, 201 F.3d 1025 (8th Cir.2000), this court reached the same conclusion about unsettled issues. We denied relief to a § 2255 movant who argued that his attorney’s failure to object to the district court’s jury instructions deprived him of effective assistance of counsel. See id. at 1026. We noted that neither the Eighth Circuit nor the Supreme Court had decided whether the jury instructions at issue were adequate, and that two other courts of appeals had addressed the issue and come to contrary conclusions. We then said the following: Given this split of authority at the time Fields was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject, it must be said that counsel’s performance fell within the wide range of professionally competent assistance.... If counsel’s failure to anticipate a change in the law will not establish that counsel performed below professional standards, then counsel’s failure to anticipate a rule of law that has yet to be articulated by the governing courts surely cannot render counsel’s performance professionally unreasonable. Moreover, Fields has not directed our attention to Supreme Court or Eighth Circuit precedent (and our research has located none) that can be said to clearly portend the law ... as Fields would have us state it. Id. at 1027-28 (emphasis added) (internal quotation and citations omitted); see also Givens v. Cockrell, 265 F.3d 306, 309-10 (5th Cir.2001); Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir.1999); Dutton v. Brown, 812 F.2d 593, 598 & n. 4 (10th Cir.1987) (en banc). New has not identified any controlling legal authority that directly supported his Fourth Amendment argument, or any controlling authority that “clearly portend[s]” that such an argument would have been successful. Fields, 201 F.3d at 1028. We therefore conclude that New has not made a showing that his trial counsel’s performance was deficient. New also argues that his trial counsel was ineffective because he failed to argue that Special Agent Cresalia violated New’s Sixth Amendment right to counsel by interviewing him without an attorney present. The Sixth Amendment right to counsel does not attach, however, until the government commences adversary judicial criminal proceedings against a defendant. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). There is no assertion here that such proceedings were underway at the time of New’s conversation with Special Agent Cresalia. Because New could not have been prejudiced by his attorney’s failure to make a meritless argument, we reject the contention. The second issue New raises on appeal is that he was denied effective assistance of appellate counsel because his attorney failed to argue that the evidence was insufficient to support his convictions. The Sixth Amendment does not require that counsel raise every colorable or non-frivolous claim on appeal. Roe v. Delo, 160 F.3d 416, 418 (8th Cir.1998). “[AJbsent contrary evidence, we assume that appellate counsel’s failure to raise a claim was an exercise of sound appellate strategy.” United States v. Brown, 528 F.3d 1030, 1033 (8th Cir.2008) (internal quotation omitted). There were sound reasons for New’s attorney to omit a challenge to the sufficiency of the evidence. A defendant challenging the sufficiency of the. evidence supporting his convictions faces a high bar. We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the jury’s verdict, and we will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United, States v. Birdine, 515 F.3d 842, 844 (8th Cir.2008). There was substantial evidence of New’s guilt in this case, including his statements to Special Agents Cresalia and Bennett, and testimony by an expert in accident reconstruction. New acknowledges this evidence, but argues that no reasonable jury could have believed that his statements to the agents were reliable or that the government’s accident reconstruction expert was more credible than the defense’s accident reconstruction expert. This contention is underwhelming: questions of credibility are reserved for the jury, which is “free to believe the testimony of any witness in its entirety, or to reject that testimony as untrustworthy.” United States v. Montano, 506 F.3d 1128, 1133 (8th Cir.2007) (internal quotation omitted). New’s appellate counsel did not act deficiently by failing to include a weak challenge to the sufficiency of the evidence among the seven other claims he raised on direct appeal. See Brown, 528 F.3d at 1033 (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal”) (internal quotation omitted). Third, New argues that the district court violated his right to due process of law by declining to order an evidentiary hearing on four of the six ineffective assistance claims raised in his § 2255 motion. Of the four claims identified, the district court did order an evidentiary hearing on one — trial counsel’s failure to obtain an expert opinion regarding the authenticity of the audiotape recording of New’s conversation with Special Agent Cresalia. We review the district court’s decision to refuse an evidentiary hearing on the other three claims for abuse of discretion, although “review of the determination that no hearing was required obligates us to look behind that discretionary decision to the court’s rejection of the claim on its merits, which is a legal conclusion that we review de novo.” United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir.2005) (internal quotation omitted). While “[a] petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the motion and the files and the records of the case conclusively show that [he] is entitled to no relief,” no hearing is required “where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir.2008) (second alteration in original) (internal quotations omitted). New does not specify why the district court should have held evidentiary hearings on these three claims, and our review of the record satisfies us that the record established conclusively as a matter of law that he was not entitled to relief. The judgment of the district court is affirmed. . The Honorable Karen E. Schreier, Chief Judge, United States District Court for the District of South Dakota. . New also asserts that his trial counsel was ineffective because he failed to investigate whether New had requested the presence of counsel during his conversation with Special Agent Cresalia, and failed to hire an expert audio technician to determine whether Cresalia had tampered with the recording. New did not obtain a certificate of appealability on these issues, and we therefore decline to address them. Pruitt v. United States, 233 F.3d 570, 572-73 (8th Cir.2000). . New obtained a certificate of appealability on a claim that he was denied effective assistance of counsel because his trial counsel failed to request a special jury instruction concerning diminished mental capacity. But New acknowledges in his brief on appeal that this claim lacks merit, and we agree. See United States v. McMillan, 820 F.2d 251, 258 (8th Cir.1987) (noting that voluntary intoxication is not a defense to general intent crimes, including the involuntary manslaughter offense codified at 18 U.S.C. § 1112).

DAMON J. KEITH, Circuit Judge. This is an appeal from re-sentencing on remand. A jury convicted David A. Go-ward (“Goward”) of various counts arising from a drug conspiracy, including conspiracy to possess with intent to distribute marijuana, possession with an intent to distribute marijuana, distribution of marijuana, being a felon in possession of a firearm, and embezzlement of U.S. mail by a postal employee, pursuant to 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. §§ 922(g)(1) and 1709. The jury acquitted Goward of a greater possession charge, and possession of a firearm in furtherance of a drug trafficking offense, pursuant to 18 U.S.C. § 924(c). After determining the applicable advisory Sentencing Guidelines range was 121-151 months imprisonment, the district court sentenced Goward to 110 months imprisonment. On appeal, Goward argues that the district court erred in: (1) imposing a two-level firearms enhancement pursuant to U.S.S.G. § .2D1.1(b)(1); (2) applying a two-level enhancement for obstruction of justice pursuant to § 3C1.1; and (3) calculating his criminal history category, resulting in an unreasonable sentence. For the reasons set forth below, we VACATE Goward’s sentence and REMAND for re-sentencing. I. BACKGROUND A. Factual Goward’s conviction and sentence arise from an investigation conducted by the Bay Area Narcotics Enforcement Team (“BAYANET”). In the summer of 2002, BAYANET Officers Taylor and Mainprize went to the residence of Dan Novak (“No-vak”) based on information they received about possible marijuana trafficking. After being questioned by the officers, No-vak agreed to serve as an informant on the marijuana trafficking operation run by Ar-mondo Contreras (“Contreras”) and Go-ward. Novak informed detectives that Contreras and Goward arranged for truck loads of marijuana to be shipped from Texas to Michigan. On at least two occasions, No-vak allowed Contreras to deliver the truck loads of marijuana to Novak’s place of employment in Saginaw, Michigan. According to Novak, Goward was present to help unload the marijuana on the second delivery. Novak subsequently helped BAYANET officers make controlled buys of marijuana from Goward and Contreras. Following these controlled purchases, Novak told officers that Contreras and Goward were planning another delivery of a large truck load of marijuana from Texas to Novak’s place of employment in Saginaw. BAYANET officers set up video surveillance, and on August 14, 2002, observed a truck arriving at Novak’s workplace. The officers arrested Contreras and another co-defendant as they were unloading bricks of marijuana. Goward, who was employed as a part-time mail carrier, was arrested while on his mail route later that day. Soon after Goward’s arrest, officers obtained a search warrant from the Saginaw County Prosecutor’s office for Goward’s residence in Burt, Michigan. On the same day, officers conducted a search of Go-ward’s home and found thirteen pounds of marijuana, $60,000 in cash, firearms, and over 400 pieces of undelivered mail. Approximately two weeks later, on August 28, 2002, federal authorities issued a warrant for Goward’s arrest. B. Procedural On September 25, 2002, a seven-count indictment was filed against Goward in the United States District Court for the Eastern District of Michigan. Goward was charged with (1) conspiracy to distribute 1000 kilograms or more of marijuana (21 U.S.C. § 846); (2) possession of 100 kilograms or more of marijuana with intent to distribute; (3) distribution of marijuana (21 U.S.C. § 841(a)(1)); (4) possession of marijuana with intent to distribute (21 U.S.C. § 841(a)(1)); (5) possession of a firearm during a drug trafficking crime (18 U.S.C. § 924(c)); (6) being a felon in pos session of firearms (18 U.S.C. § 922(g)(1)); and (7) embezzlement of U.S. mail by a postal employee (18 U.S.C. § 1709). In April 2004, a jury trial convicted Go-ward of (1) conspiracy to distribute 100 or more but less than 1000 kilograms of marijuana; (2) distribution of marijuana (on or about July 12, 2002); (3) possession of marijuana with intent to distribute (on or about August 14, 2002); (4) being a felon in possession of firearms; and (5) embezzlement of U.S. mail by a postal employee. Thus, the jury convicted Goward of a lesser included conspiracy offense than charged, and acquitted him of a possession charge and the charge of possession of a firearm in furtherance of a drug trafficking offense. On December 15, 2004, at Goward’s first sentencing, the district court agreed with the jury’s assessment of the credibility of the witnesses concerning the drug quantities and Goward’s involvement. But, while the jury acquitted Goward of possessing a firearm in connection with a drug offense, the district court enhanced Goward’s score under the Sentencing Guidelines, pursuant to U.S.S.G. § 2Dl.l(b)(l), with a 2-level increase for possession of a dangerous weapon. The court noted, however, that “if bound by Blakely, [the court] likely would not impose the enhancement in this case because of the fact that the jury’s acquittal on the 924(c) counted to negate by proof beyond a reasonable doubt the element of connection.” (Sentencing Tr. 27, Dec. 15, 2004.) In addition to the acquitted conduct enhancement, the court enhanced Goward’s guideline range for obstruction of justice (pursuant to U.S.S.G. § 3C1.1) — a crime for which Goward was not charged. Ultimately, the district court determined that Goward’s base offense level was twenty-six, that a two-level enhancement would be added pursuant to § 2D 1.1(b)(1), and that another two-level enhancement would be added pursuant to § 3C1.1, for a total offense level of thirty. The district court further determined that Goward’s criminal history category was III, and that the applicable Sentencing Guidelines range for Goward was 121-151 months imprisonment. The court sentenced Goward to serve 121 months imprisonment, and he filed a timely notice of appeal. On appeal to this Court, Goward argued that the district court erred when it denied his motion to suppress evidence and that his case should be remanded for re-sentencing because of the intervening Supreme Court decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On July 13, 2006, this Court affirmed Goward’s conviction, but vacated his sentence and remanded for re-sentencing consistent with Booker. See United States v. Goward, 188 Fed.Appx. 355 (6th Cir.2006). On November 30, 2006, at Goward’s re-sentencing, the district court acknowledged that the Sentencing Guidelines were now advisory, but determined it need not revisit Goward’s original guideline computation. Thus, the court relied on its pre-Blakely and Booker computation. (Sentencing Tr. 4, 11-12, Nov. 30, 2006.) Go-ward objected to the two-level firearm enhancement, the two-level enhancement for obstruction of justice, and the categorization of his criminal history. His objections were overruled, and the court determined that the applicable Sentencing Guidelines range for Goward was unchanged. The district court, noting that parts of Go-ward’s pre-sentencing report (“PSR”) “might tend to overstate his criminal history,” imposed a sentence of 110 months imprisonment. (Sentencing Tr. 29-30, Nov. 30, 2006.) Goward filed a timely notice of appeal. II. ANALYSIS A. Standards of Review We review challenges to the constitutionality of the district court’s interpretation and application of the Sentencing Guidelines de novo, and its factual findings regarding enhancements for clear error. United States v. Gates, 461 F.3d 703, 708 (6th Cir.2006); United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir.2005). Once the Court establishes that the district court properly calculated the Sentencing Guidelines, we review the sentence for reasonableness. United States v. Booker, 543 U.S. 220, 259-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Where an appellant fails to raise specific objections before the sentencing court, we review the sentence only for plain error. United States v. Bailey, 488 F.3d 363, 367-68 (6th Cir.2007). For this Court to find plain error, the appellant must show (1) an error, (2) that is obvious or clear, (3) that affected defendant’s substantial rights, and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Bostic, 371 F.3d 865, 873, 876 (6th Cir.2004). B. The Use of Acquitted Conduct Goward argues that the district court’s use of the preponderance of the evidence burden of proof standard to enhance his sentence range based on conduct the jury disavowed through its finding of “not guilty” is improper, and violates his constitutional right to a trial by jury. Pursuant to U.S.S.G. § 2Dl.l(b)(l), a trial court should increase the offense score by two “if a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2Dl.l(b)(l). The application note to the Guidelines explains that “the enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” § 2D1.1(b)(1), comment n. 3. At Goward’s trial, the jury was presented with evidence that a search of Goward’s home turned up “seven or eight” guns (some in cases), including an unloaded rifle found behind Goward’s bedroom door, which was the subject gun for the 18 U.S.C. § 924(c) offense. The jury was also presented with evidence that Goward was an avid hunter, and that, in separate locations, drugs and cash were also found. The jury found the evidence sufficient to convict Goward of being a felon in possession of a firearm but rejected the government’s argument that Goward used a firearm in connection with drug trafficking. In addition, the record does not reflect any such testimony from trial witnesses. Nevertheless, in revisiting the issue of Go-ward’s possession of a firearm in furtherance of a drug offense at sentencing, the district court determined the enhancement was warranted because the court did not “believe that the defendant has offered any credible evidence of a clear improbability of connection — or probability of non-connection [between the guns Goward possessed and drug trafficking].” (Sentencing Tr. 28, Dec. 15, 2004 (referenced by the court in Sentencing Tr. 11, Nov. 30, 2006).) As it stands now, the law in this Circuit is that at sentencing, the court may disregard a jury’s verdict of acquittal in calculating the advisory Sentencing Guidelines range, and enhance a defendant’s offense level under the Guidelines based on conduct underlying offenses for which the defendant was acquitted. United States v. White, 551 F.3d 381, 384 (6th Cir.2008) (en banc) (“So long as the defendant receives a sentence at or below the statutory ceiling set by the jury’s verdict, the district court does not abridge the defendant’s right to a jury trial by looking to other facts, including acquitted conduct, when selecting a sentence within that statutory range.”); United States v. Mendez, 498 F.3d 423, 427 (6th Cir.2007) (“a post-Booker sentencing court may consider even ‘acquitted conduct’ if it finds facts supporting that conduct by a preponderance of the evidence”). But see White, at 391 (Merritt, Martin, Daughtrey, Moore, Cole, and Clay, JJ., dissenting) (“the use of acquitted conduct at sentencing defies the Constitution, our common law heritage, the Sentencing Reform Act, and common sense”). Thus, bound by Circuit precedent, we must find that the trial court did not clearly err in enhancing Goward’s sentence based on its determination that the unloaded rifle found behind Goward’s bedroom door was connected to the drug offenses for which he was convicted. C. Obstruction of Justice Goward next argues that it was unconstitutional for the district court to enhance his Sentencing Guidelines range for obstruction of justice, a crime for which he was not charged, based on facts established by a preponderance of the evidence. The court enhanced Goward’s guideline range for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, based on letters Go-ward sent to his mother and sisters after his August, 14, 2002 state arrest, but before his August 29, 2002 federal arrest. The relevant Guidelines provision calls for a two-level enhancement if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Goward contends the letters did not obstruct, and were not meant to obstruct justice, as they were written before federal involvement, and were, at most, an effort to try to defend civil forfeiture of his property. The government argues that “whether it was a federal investigation at that point in time or a state investigation ... is [irrelevant to the spirit of this particular section of the guidelines.” At Goward’s first sentencing, the district court rejected his argument and concluded that after Goward’s state arrest, facts supporting the enhancement were proved by a preponderance of the evidence. However, the court noted that if it were applying Blakely it: would not apply this enhancement because of the exact provision in the footnote in the Blakely decision; that an enhancement of this nature was based on evidence that was clearly known to the government before trial and that could have been presented to the grand jury and included in the indictment but wasn’t. And the jury did not make a finding on this enhancement itself. (Sentencing Tr. 28, Dec. 15, 2004 (referenced by the court in Sentencing Tr. 11, Nov. 30, 2006).) Nevertheless, on remand the district court enhanced Goward’s sentencing range for obstruction of justice. The law in this Circuit, as it now stands, does not preclude sentencing courts from finding facts using the preponderance of the evidence standard. See Mendez, 498 F.3d at 426 (noting that “this court has repeatedly held since Booker that sentencing courts may still find facts using the preponderance-of-the-evidenee standard”). Moreover, as discussed above, this Circuit holds that such judicial fact-finding does not implicate the Sixth Amendment so long as the sentence meted out is within the legislatively-mandated range. White, 551 F.3d 381, 384; see also United States v. Bustos, 186 Fed.Appx. 551, 553 (6th Cir.2006) (affirming district court’s two-point enhancement under U.S.S.G. § 3C1.1 on judicial fact-finding). Thus, bound by Circuit precedent, we must find that the trial court did not clearly err in enhancing Goward’s guideline sentence range for obstruction of justice, a crime which the government chose not to put before a jury. D. Reasonableness of Goward’s Sentence Goward challenges the procedural reasonableness of his sentence. Specifically, Goward contends the district court posed an unreasonable sentence on him because the court did not expressly respond to each of the criminal history guideline scoring arguments raised in his sentencing memorandum, or articulate why Go-ward’s relationship with his son and his post-offense rehabilitation did not warrant a lower sentence. Additionally, Goward argues on appeal that the district court committed plain error in calculating his Sentencing Guidelines range by including convictions for operating while impaired (OWI) and conspiracy to possess counterfeit currency that took place outside of the relevant ten year period. The points added for the convictions moved Goward from criminal history category II to category III, resulting in a two-point increase. At sentencing, a district court is tasked with imposing “a sentence sufficient, but not greater than necessary, to comply with the purposes” of 18 U.S.C. § 3553(a)(2). United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006). Where the district court applies advisory guidelines at sentencing, the defendant contests the manner in which the court applied the consulted guideline, and objections are properly reserved, we review the selection of a sentence for reasonableness. Foreman, 436 F.3d at 644; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). A sentence may be procedurally unreasonable if the district court failed to consider the applicable guidelines range, or neglects to consider the other factors listed in 18 U.S.C. § 3553(a). United States v. Brika, 487 F.3d 450, 462 (6th Cir.2007). Goward’s sentencing transcript, including a detailed exchange with Goward regarding his criminal history, the court’s goals of sentencing, the need for deterrence, the societal problems caused by illegal drugs, the observation that the need to incapacitate Goward was “not a principal factor here,” and agreement that Go-ward’s criminal history score may have been “slightly overstated” before imposing Goward’s sentence, reflects the court’s consideration of the pertinent § 3553(a) factors. The court was not required to provide specific reasons for rejecting “any and all arguments by the parties for alternative sentences.” United States v. Vonner, 516 F.3d 382, 387 (6th Cir.2008). Nor was the court required to address Goward’s post-sentencing rehabilitation. United States v. Worley, 453 F.3d 706, 709 (6th Cir.2006). Thus, we find Goward’s contention that the district court erred by not articulating why Goward’s relationship with his son and his post-offense rehabilitation did not warrant a lower sentence is without merit. Goward concedes that although he challenged his criminal history scoring in the PSR and in a sentencing memorandum filed for consideration at his re-sentencing, he did not “present the precise argument before the trial court that he raised on appeal concerning the timing of his felony conviction.” Accordingly, the plain error standard is the applicable standard of review. United States v. Gardiner, 463 F.3d 445, 460 (6th Cir.2006). At trial, the government’s informant, David Novak, testified that Goward had been involved with drug trafficking “since the early 1990s.” However, at Goward’s original sentencing hearing, the court noted that it was clear “that the jury did not accept the testimony of ... Mr. Novak concerning the involvement of Mr. Go-ward,” and that “like the jury, the court ... will reject that testimony.” In an exchange with the court at his re-sentencing hearing, where Goward generally objected that the criminal history categorization overstated his true criminal past, the court acknowledged that Goward’s criminal history might have been overstated, expressly pointing to “the impaired driving conviction when [Goward] was 21 years old.” However, the district court did not make a specific finding regarding when Goward began his criminal enterprise, nor did the court state that it changed its feelings toward the weight to be given to the trial testimony. The offenses for which the jury convicted Goward occurred in 2002. Goward’s PSR added one point to his criminal history for a May 10, 1991 OWI conviction,- and two points for a March 13, 1990 conviction to possess counterfeit currency. Thus, both fell outside of the relevant ten year period. U.S.S.G. § 4A1.2(e)(2) (prior sentences within ten years of commencement of the instant offense are counted in calculation defendant’s criminal history). Based upon oral argument and a thorough review of Goward’s sentencing and re-sentencing hearing transcripts, we find that the district court committed plain error in adding points to Goward’s sentence for his OWI and counterfeit convictions, which clearly affected Goward’s substantial rights by increasing his criminal history category and subjecting him to a higher sentencing range. The district court’s failure to explain its factual determinations on Goward’s prior convictions requires us to remand the case for re-sentencing. Accordingly, we vacate Goward’s sentence and remand the case for re-sentencing. III. CONCLUSION For the foregoing reasons, we VACATE Goward’s sentence, and REMAND the case for re-sentencing. JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in the result and make two points. First, because I agree with the reasoning of Mendez and joined the majority opinion in White, I do not share the majority’s reluctance in following our circuit precedent. Second, while I agree that we must vacate Goward’s sentence and remand for resentencing, I disagree with the majority’s unequivocal statement that the 1991 OWI conviction and the 1990 possession of counterfeit currency conviction fell outside the relevant ten-year period and may not be used to calculate the criminal history score. This may indeed be the case, but it is not necessarily so. Count 1 of the amended superseding indictment alleged a conspiracy ending on December 31, 2002, and beginning at some unknown time. Because Goward did not argue in the district court that the convictions were outside the ten-year period, the district court did not make any factual findings about the beginning date of the conspiracy. For the same reason, the government found it unnecessary to point to any evidence at trial that might support a beginning date within ten years of the 1990 and 1991 convictions or to present any such evidence at sentencing. The remand should permit the district court to decide when the conspiracy began so that it can then determine whether its award of points for the earlier convictions was correct. . Although other circuit courts that have addressed this issue have determined that the district court’s consideration of acquitted conduct in sentences passes constitutional muster in light of the Supreme Court’s 1997 decision in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), several federal judges have decried reliance on Watts as controlling in the outcome of challenges to the use of acquitted conduct under both the Fifth and Sixth Amendments. White, at 392 (Merritt, J., dissenting) (“The majority's simple and single-minded reliance on Watts as authority for enhancements based on acquitted conduct is obviously a mistake."); see also United States v. Canania, 532 F.3d 764, 776 (8th Cir.2008) (Bright, J., concurring) ("reluctantly" concurring because of circuit precedent and "urg[ing]the Supreme Court to reexamine [the use of acquitted conduct to enhance a sentence] forthwith.” Judge Bright further opined that ”[p]ermitting a judge to impose a sentence that reflects conduct the jury expressly disavowed through a finding of ‘not guilty’ amounts to more than mere second-guessing the jury — it entirely trivializes its principal fact-finding function____ [and] deprives a defendant of adequate notice as to his or her possible sentence."); United States v. Mercado, 474 F.3d 654, 658 (9th Cir.2007) (Fletcher, J., dissenting) ("Despite [the] clear limitation of Watts’ holding, the majority here applies Watts to the Sixth Amendment issue before us, ignoring Booker’s requirement that the jury's verdict alone must authorize a defendant's sentence. This application defies logic."); United States v. Faust, 456 F.3d 1342, 1349 (11th Cir.2006) (Barkett, J., concurring) (“only because [he is) bound by Circuit precedent,” concurring in the court's sentencing decision and noting that "the holding of Watts, explicitly disavowed by the Supreme Court as a matter of Sixth Amendment law, has no bearing on [sentence enhancements based on acquitted conduct] in light of the Court’s more recent and relevant rulings in Apprendi, Blakely, and Booker. ”). See generally United States v. Booker, 543 U.S. 220, 240, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (noting that the holding in Watts has no bearing on the issue of the use of acquitted conduct under the Sixth Amendment because there was "no contention [in Watts] that the sentence enhancement had exceeded the sentence authorized by the jury verdict in violation of the Sixth Amendment. The issue ... simply was not presented.”) . As noted above, at Goward’s re-sentencing the court adopted by reference its original guideline computation, after acknowledging that the Sentencing Guidelines were now advisory. . Notably, the instant matter is distinguishable from White and Mendez on this issue because those cases dealt with “acquitted conduct,” whereas here, Goward's sentence was enhanced based on conduct that was never presented to the jury even though it was "clearly known” and “could have been.” The matter is also distinguishable from Bustos in that there, defendant was sentenced after entering a guilty plea. Bustos, 186 Fed.Appx. at 553. Nevertheless, in light of this Circuit's clear holding permitting judicial fact-finding at sentencing under the preponderance of the evidence standard, we cannot find the district court committed clear error.

OPINION & ORDER PAUL A. ENGELMAYER, District Judge. Plaintiff Francine Lioi, a former employee in New York City’s Department of Health and Mental Hygiene (“DOHMH”), brings several claims of employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101, et seq. (“NYCHRL”). Lioi alleges that she was discriminated against on the basis of her gender, and that she was subjected to a hostile work environment and retaliation. Defendant DOHMH is Lioi’s former employer. Defendants Martin Evans and David Haddow are DOHMH employees who served in supervisory positions during Lioi’s term of employment. Defendants deny each of Lioi’s claims, and now move for summary judgment under Federal Rule of Civil Procedure 56(a). For the reasons that follow, the Court grants defendants’ motion as to Lioi’s Title VII claims and declines to exercise supplemental jurisdiction over Lioi’s NYSHRL and NYCHRL claims. I. Background and Undisputed Facts A. Key Persons, Entities, and Terms Lioi was employed as an Associate Staff Analyst (“ASA”) in DOHMH’s Public Health Laboratory (“PHL”) from December 2005 until April 2009, when she was terminated. PHL provides a variety of clinical and laboratory testing services for the DOHMH and is comprised of several departments. While employed at PHL, Lioi worked in the Laboratory Information Management System Department (“LIMS Department”), a unit within PHL that provides technical and systems support to the departments that perform actual specimen testing. Def. 56.1 ¶ 11; PI. 56.1 ¶ 11. The Laboratory Information Management System (“LIMS”) “is the ‘clinical [computer] system that is used to record all the specimens that are processed in the lab and [the end] results.’ ” Def. 56.1 ¶ 11; PI. 56.1 ¶ 11 (quoting Lioi Dep. 59). John Somma is the former Director of PHL, and served as Lioi’,s direct supervisor from the time of her hire until about January 2008. Def. 56.1 ¶ 36; Pl. 56.1 ¶ 36. In or around January 2008, defendant Martin Evans replaced Somma as Lioi’s direct supervisor; Evans is the Director of Technical Affairs and the Associate Director of the PHL. Def. 56.1 ¶ 36; Pl. 56.1 ¶ 36. Defendant David Haddow has served as the PHL’s Director of Administration and Human Resources since March 24, 2008. Def. 56.1 ¶59; Pl. 56.1 ¶59. B. Events Relevant to Lioi’s Claims 1. Lioi’s Employment On February 18, 2005, DOHMH posted a job vacancy notice for an ASA position at PHL. Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13. The vacancy notice contained the following job description for the ASA position: Participate in the design and implementation of the Laboratory Information System (“LIS”) for the PHL. Interface with program level staff to ensure user needs are met and vendor is on schedule and receiving adequate feedback from users. Document business requirements and deliverables throughout the application development process. Monitor implementation of system, conducting QA on system and providing training of users. Maintain integrity of data collected and stored. Perform daily back up of database using Windows 2003 Server software. Assist program and scientific personnel in the design and use of software applications and maintain necessary documentation. Minnah-Donkoh Decl. Ex. G. On or about July 7, 2005, Lioi submitted a pre-employment application to DOHMH, indicating that she was seeking a position as a “LIS Specialist.” See id. Ex. D. Lioi was interviewed along with five other candidates for the ASA position — three candidates were male, and three, including Lioi, were female. Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17; see also Minnah-Donkoh Decl. Ex. H. Lioi was ultimately selected by Somma to fill the vacant ASA position. Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17. Lioi began her employment with DOHMH on December 5, 2005. Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20. At her deposition, Lioi testified that during the interview process she was not made aware that she was being interviewed for the ASA position. Lioi Dep. 43. Rather, Lioi testified that the first time she became aware that she was being considered for an ASA position was when she went to fill out the employment paperwork on the date of her hire. Id. at 44. Lioi testified that she initially refused to sign the employment paperwork indicating that she was being hired as an ASA, stating that she “would not have taken a job if [she] had known it was an [ASA] position.” Id. at 44-45. Nevertheless, Lioi signed the employment paperwork and confirmed her appointment as a provisional ASA with a starting salary of $65,000 per year. See Lioi' Dep. 46; Min-nah-Donkoh Decl. Ex. I. 2. Lioi’s Alleged “Blocked” Transfer to DIIT and Gender-Related Comments Lioi alleges that in January 2007, she was offered an opportunity to transfer to a position as a Computer Systems Manager in the Division of Informatics and Information Technology (“DIIT”), which paid a higher salary. However, she alleges, that transfer was blocked by Somma due to her gender. Am. Compl. ¶¶ 22-23. Lioi testified that this transfer opportunity was the result of a series of meetings she had with Hadi Makki, a former Assistant Commissioner of DIIT. Lioi Dep. 76. According to Lioi, at her third meeting with Makki she was informed by Makki that “Somma had contacted him and had put a stop to the transfer. [Somma] essentially blocked the transfer[.]” Id. at 79. Lioi testified that Makki informed her that the reason Somma “blocked” the transfer was that PHL wanted to keep her, and that PHL intended to match any offer DIIT was going to make. Id. Lioi further testified that no firm offer to transfer to DIIT was ever made. Id. at 79-80. Lioi testified that sometime after the alleged blocked transfer, in January or February 2007, she confronted Somma about the transfer to DIIT. Id. at 112. According to Lioi, in response to her questions about the transfer, Somma responded by saying, “[t]his is an old boy’s school.” Id. at 112. Lioi testified that she had a second verbal exchange with Somma a few weeks after Somma’s “old boy’s school” comment, in which she again questioned him about the transfer and her pay. Id. at 118. In response to these questions, Somma allegedly responded by saying, “[t]his is a man’s world. Stop rocking the boat.” Id. at 113-114. In or around January 2008, Evans replaced Somma as Lioi’s direct supervisor. Def. 56.1 ¶ 36; PL 56.1 ¶ 36. Somma left his position as the Director of PHL and began working in DOHMH’s Department of TB Control. Def. 56.1 ¶37; Pl. 56.1 ¶ 37. Lioi asserts that although Somma was “allowed to transfer” to the Department of TB Control, she “was not afforded similar privileges and opportunities.” Am. Compl. ¶ 25. At her deposition, Lioi testified that she does not know whether Somma had to apply for the position at the Department of TB Control along with other applicants. Lioi Dep. 100. 3. Lioi’s Rejection of a $10,000 Raise and Initial Visit to the DOHMH Equal Employment Office In December 2007, around the same time Evans replaced Somma, the Assistant Commissioner of PHL, Dr. Sara Beatrice, sought approval to grant Lioi a pay raise, from $65,000 to $75,000 per year. Def. 56.1 ¶ 35; Pl. 56.1 f 35. In early January 2008, that request was approved, and the raise was subsequently communicated to Lioi. See Minnah-Donkoh Deel. Ex. K. Despite the offered raise, on January 8, 2008, Lioi sent an email to Beatrice, Peter Bach-man (then Vice President of PHL), and Somma, to decline the raise. Id. Ex. M. In declining the raise, Lioi stated that even with a salary increase up to $80,000, she “would still be the lowest paid person in the department.” Id. Lioi testified that, in making this comment, she was comparing her salary to the salaries of Jack Deutsch and Hang Lam. Lioi Dep. 87. Deutsch was the Director of PHL’s Lead Department and had been working at PHL and the LIMS Department since before Lioi’s employment with PHL. Def. 56.1 ¶ 40; Pl. 56.1 ¶ 40. Lam was a Computer Specialist and had also been working at both PHL and the LIMS Department since before Lioi’s employment there. Def. 56.1 ¶ 40; PL 56.1 ¶ 40. Lioi testified that in or about January 2008, she met with a DOHMH Equal Employment Office (“EEO”) representative because she was “concerned about the hostile work environment [she] was working in at the time,” and to discuss her dissatisfaction with her current pay and job title. Lioi Dep. 136-137. Lioi testified that at this meeting the EEO representative advised her that she should seek assistance from the New York Human Rights Office or the U.S. Equal Employment Opportunity Commission (“EEOC”). Lioi did not file a complaint following this meeting; the first complaint she filed with the DOHMH EEO was in December 2008, following her suspension by DOHMH. Id. at 135. 4. Lioi’s Allegations Against Peter Mura and Complaints of Unequal Pay Lioi alleges that, sometime after receiving complaint forms from the EEOC and placing them in her locker, Peter Mura, a DIIT Computer Systems Manager who worked at PHL, broke into her locker and removed these forms. Am. Compl. ¶¶ 28-29; Lioi Dep. 117. Mura testified that he never broke into Lioi’s locker. See Min-nah-Donkoh Decl. Ex. N; Zabell Decl. Ex. P (Deposition of Peter Mura) (“Mura Dep.”) at 8-9. Lioi alleges that she “was repeatedly overlooked for promotions within her [d]epartment, while less experienced, less qualified máles were hired at increased salaries and more significant titles.” Am. Compl. ¶ 24. At her deposition, Lioi identified Altai Shaikh and Kevin Ward as the “less experienced, less qualified males” that she was referring to. Lioi Dep. 96. Altai Shaikh was hired by DIIT in March 2008 as a Computer Systems Manager with a starting salary of $75,000. Minnah-Donkoh Decl. Ex. O (Deposition of Altai Shaikh) (“Shaikh Dep.”) at 14. Shaikh’s salary was paid by DIIT and not PHL. Def. 56.1 ¶ 55; PI. 56.1 ¶ 55. Upon beginning his employment, Skaikh was assigned to work at PHL. Shaikh Dep. 13-14. Towards the beginning of Skaikh’s time at PHL, Lioi was asked by Evans to assist in training Shaikh on the microbiology component of LIMS. Lioi Dep. 104-105; see also Minnah-Donkoh Decl. Ex. L; Zabell Decl. Ex. L (Deposition of Martin Evans) (“Evans Dep.”) at 22-23. With respect to Kevin Ward, Lioi testified that she was unsure how long he had been working at PHL, or what his official title was. Lioi Dep. 56, 96-97. Lioi testified that at some point there was a vacancy posting for a LIS manager position for which she was qualified, and that she had intended to apply for it, but that she was advised by a co-worker, at the direction of Somma, not to apply. Id. at 98-99. Apparently, the co-worker advised Lioi that the position was “created” by Somma for Ward. Id. at 99. Lioi never spoke to Somma directly about the LIS manager position. Id. Lioi alleges that in or about April 2008, she complained to Evans and Haddow, the latter of whom was serving in the capacity as Director of Administration and Human Resources, “about the escalating discriminatory treatment and harassment to which she was subjected.” Am. Compl. ¶ 30. Lioi alleges that no action was taken in response to this complaint. Id. Evans testified that Lioi had complained to him about her pay at some point during her time under his supervision, and that he had attempted to remedy to situation. Evans Dep. 25-26. Haddow similarly testified that Lioi had gone to him on several occasions with complaints about her pay and job title. See Minnah-Donkoh Decl. Ex. P; Zabell Decl. Ex. M (Deposition of David Haddow) (“Haddow Dep.”) at 19-21. On May 13, 2008, Lioi sent an email to Evans asking if Evans would, as her supervisor, provide her with a letter of recommendation for a graduate scholarship. Minnah-Donkoh Decl. Ex. Q. Evans assented to the request and on May 15, 2008, Evans provided a letter of recommendation, supporting Lioi for the scholarship. Minnah-Donkoh Decl. Ex. R. Evans testified that he had also “recommended” Lioi on a separate occasion, in connection with an attempt to obtain a pay raise for Lioi. Evans Dep. 17. Lioi alleges that in or about September 2008, she “reported to David Haddow and Martin Evans that the computer she was assigned ha[d] been breached by DIIT em ployee Peter Mura, as part of an ongoing campaign of harassment.” Am. Compl. ¶ 31. When asked why she believed it was Mura who had breached her computer workstation, Lioi testified: “Because Peter Mura was constantly trying to get the information from me and when I stopped providing the information that he wanted, that’s when I started noticing [the breaches] and I confronted him, and I asked him flat out and he denied it and I informed him that I didn’t believe him, because prior to him being there, I never had issues like that.” Lioi Dep. 132. Lioi testified that she had never viewed Mura’s log-in information on her computer, and that the automated messages she had received of attempted log-ins did not indicate that it was Mura who attempted to log in. Id. at 133. Mura testified that he has never accessed anything of Lioi’s — including her computer. Mura Dep. 9. 5. Lioi’s Allegations of Additional Discriminatory Comments In addition to the alleged gender-related comments made by Somma in 2007, Lioi alleges that she was referred to as “a man.” Am. Compl. ¶ 20. Specifically, Lioi testified that on a “couple” of occasions in or around October or November 2008, Evans would use the word “man” in front of a group of employees, and then “[h]e would look over in my direction and he would stand there and address the group. Whenever he said it, he would look in my direction and just smirk at me and I would just shrug it off.” Lioi Dep. 114-116. Lioi testified that the comments allegedly made to her by Somma in 2007, and the “couple of times” Evans allegedly referred to her as a “man,” were the only discriminatory comments she could recall. Id. at 116. 6. Lioi’s Alleged Misuse of Her Work Email Between October 24 and 29, 2008, a number of emails were exchanged between Lioi, her co-workers, and supervisors. See Minnah-Donkoh Decl. Ex. T. In one email, Lioi wrote to a number of her co-workers: Someone caused YET another incident on Friday but was probably unable to fix it (a common occurrence these days in LIMS). With that said, if someone needs to be given step-by-step instruction how to fix some of these issues, then obviously that person(s) should NOT be given free liberty to keep causing these types of problems. There is a certain expectation of competency based on a person’s title and level of responsibility. Id. at 0695-96. After one of Lioi’s co-workers responded to Lioi’s email, and a subsequent “reply all” by Lioi, Evans replied to all, stating that “[e]mails like this have no place in a professional workplace and this needs to end immediately.” Id. Lioi then forwarded the chain of emails to co-worker Hang Lam, stating: “Like I said, Joe has turned into a major jerk since you’ve been gone! With you gone, I guess they feel like they can attack me since they have [E]van’s support.” Id. Evans testified that “[Lioi] became very divisive, and being very competent, she thought everybody else was incompetent. She vocalized that, and that upset people; to have somebody who is very good, denigrate you in that manner, so that caused issues and divisiveness in the unit.” Evans Dep. 53. Lioi testified that in or around October or November 2008, she was “instructed” by Evans to work with Hang Lam, a coworker who was out on medical leave. Lioi Dep. 152. Evans testified that there was an issue with “one of the reports that we needed,” and that, because Lam would have been the point person on this report, Evans asked Lioi to work with Lam on it. Evans Dep. 37-38. Once the issue arose with accessing Lam’s part of the system, Evans further testified, “[Lioi] was good enough to volunteer that, [’]I’m in contact with him, and maybe he can help me so we can resolve the problem.[’]” Id. at 38. On October 29, 2008, Lioi sent an email from her work email address to Lam’s personal Yahoo email account. See Min-nah-Donkoh Decl. Ex. U. The subject line of the email was “FW: today’s STD list” and contained two file attachments. Id. The City asserts that these two attachments contained several pages of data which included “patient specific identifiers for specimens requested to be tested by several STD [sexually transmitted disease] clinics throughout the City of New York.” Def. 56.1 ¶ 72. Lioi disputes that the email in question contained any patient-specific identifiers. PI. 56.1 ¶72. When asked if she did in fact send this email, Lioi testified: A: I was told that I did. Q: You are not aware that you did? A: I was not aware that I did. Q: Have you since become aware that you did? A: Yes. I was told that I did. Lioi Dep. 150. On October 30, 2008, Lioi sent a series of emails from her work email account to Lam’s Yahoo address. The first email stated, inter alia, that “... [y]esterday bald head called and spoke with the evil dumb one, Alf[.]” Minnah-Donkoh Decl. Ex. V. Lioi testified that “bald head” was a reference to Peter Mura, and that “evil dumb one” was a reference to Altai Shaikh. Lioi Dep. 156. A couple of minutes later, Lioi sent a second email to Lam, entitled “FW: Today’s List.” Minnah-Donkoh Decl. Ex. W. This email contained one attachment, which also contained several pages of data, including, the City asserts, more patient specific identifiers for specimens to be tested by STD clinics. Def. 56.1 ¶74. Lioi also disputes that this email contained any patient-specific identifiers. PI. 56.1 ¶ 74. For her part, Lioi argues that “she was never instructed not to work on patient files by Mr. Evans,” and further, that she kept Evans and Beatrice “apprised of the status of her work with Mr. Lam.” PL 56.1 ¶ 75. However, Lioi admits that Evans never told her that it was okay to send confidential patient information to Lam’s personal Yahoo account. Lioi Dep. 153. On December 6, 2006, Lioi had signed PHL’s Employee Confidentiality Statement. See Minnah-Donkoh Deck Ex. X. The confidentiality statement provides, in relevant part: Unauthorized disclosure of confidential information is a violation of New York City Health Code 11.07 and may also violate applicable State and Federal laws for which you as an individual may be subjected to civil and/or criminal penalties, forfeitures and appropriate disciplinary action, including termination of your employment with the New York City DOHMH. Id. (emphasis added). Below the confidentiality statement, there was an Employee Confidentiality Agreement, which Lioi signed. Id. DOHMH also had an Acceptable Use Policy (“the Policy”) in place, effective as of March 2007, which outlined the acceptable uses of DOHMH office and technology resources. See Minnah-Donkoh Decl. Ex. Y; see also Def. 56.1 ¶ 78; Pl. 56.1 ¶ 78. Section VI of the Policy “provides guidelines regarding the appropriate and inappropriate use of Agency email, and also defines rules for the protection of confidential data distributed via e-mail.” See Minnah-Donkoh Decl. Ex. Y at 0743. Section VI(B), ‘Webmail,” provides, “Disciplinary action may taken if it is found that: ... An employee is sending confidential or sensitive Agency data to any webmail or personal e-mail account.” Id. at 0744. Yahoo is specifically listed as an example of “webmail.” Id. The Policy defines “confidential data” as: ... [A]ny combination of medical, demographic, financial, or other information that can personally identify, or for which there is a reasonable basis to believe can be used to identify, Agency employees or members of the populations they serve. Examples of this include, but are not limited to, a person’s medical record number, diagnosis, Social Security Number, date of birth, full name, street address, telephone number, personal email address, or other information that could uniquely identify individuals. Id. at 0740-41. The Policy also makes clear that employees do not have a right of privacy while using DOHMH technology resources, “whether for business or personal purposes, at any time, including accessing the Internet or using e-mail.” Id. at 0744. Finally, Section IX of the Policy provides for enforcement tools and sanctions to carry out the policy. Id. at 0745. For example, Section IX states: “Unauthorized use of the Agency’s office and technology resources may result in ... disciplinary or other adverse personnel actions, up to and including dismissal!.]” Id. 7. Lioi’s Suspension and Termination On November 20, 2008, Lioi was interviewed by Stephan Zander, the Deputy Inspector General of the DOHMH. See Minnah-Donkoh Decl. Ex. Z. At the interview, Lioi admitted that she had sent a number of emails to Lam’s personal email account. See id. at 14-16. At the conclusion of the meeting, Zander notified Lioi that she was being suspended, and provided her with a letter of suspension signed by Rose Tessler, Director of DOHMH’s Employment Law Unit. See id. at 31-32. Zander also notified Lioi that the Employment Law Unit would contact her to serve her with formal charges. Id. at 33-34. On December 9, 2008, Lioi filed gender discrimination complaints against Evans and Haddow with DOHMH’s EEO. See Minnah-Donkoh Decl. Ex. CC-DD. In a letter dated December 31, 2008, Haddow responded to the allegations in Lioi’s complaint, calling the allegations “not only baseless but ... false!.]” Minnah-Donkoh Decl. Ex. EE. On February 27, 2009, Evans responded to the allegations by letter, and similarly categorized Lioi’s claims as false. See Minnah-Donkoh Deck Ex. FF. On or about January 15, 2009, Lioi was served with a Notice and Statement of Charges. Minnah-Donkoh Deck Ex. GG. The Notice charged Lioi with three separate violations of the Standards of Conduct Rules, including violations of the department’s Confidentiality Agreement and the federal Health Insurance Portability and Accountability Act (“HIPAA”). Id. The Notice informed Lioi that per the grievance procedures set forth in her union’s contract with the City, there would be an informal conference held on January 29, 2009. Id. Michael Aragon was the Informal Conference Leader. Id. On January 29, 2009, the conference was held, and on February 10, 2009, Aragon informed Lioi, by letter, that after reviewing the evidence presented at the conference, he was recommending that she be terminated by DOHMH. See Minnah-Donkoh Deck Ex. HH. On February 13, 2009, Lioi waived her rights to a disciplinary hearing pursuant to Section 75 of the Civil Service Law. See Minnah-Donkoh Decl. Ex. II. Following a “Step II” disciplinary hearing on March 10, 2009, Labor Relations Officer Nellie Mitchell notified Lioi’s union representative that Lioi was to be terminated from her job as a DOHMH employee effective April 2, 2009. See Minnah-Donkoh Decl. Ex. JJ. The letter stated that it had been determined that Lioi violated the Confidentiality Agreement by (a) sending emails with patient specific identifiers to Lam on October 29 and October 30, and (b) storing confidential data on the unencrypted local hard • drive of her work computer. Id. In a letter dated April 3, 2009, Lioi was notified by Brenda McIntyre, Assistant Commissioner of DOHMH’s Bureau of Human Resources, that she was terminated effective as of that date. See Minnah-Donkoh Decl. Ex. KK. On August 31, 2009, Lioi filed a complaint with the EEOC alleging that she was (a) discriminated against on the basis of her sex and race, and (b) the subject of retaliation. See Minnah-Donkoh Decl. Ex. LL. On March 30, 2010, Lioi filed a formal charge of discrimination against DOHMH PHL with the New York State Division of Human Rights. See Minnah-Donkoh Decl. Ex. NN. On May 11, 2010, the EEOC notified DOHMH that Lioi had filed a charge of employment discrimination against them, and that no action was required of DOHMH at that time. See Minnah-Donkoh Decl. Ex. OO. On June 10, 2010, EEOC notified Lioi that it had determined that “it is highly unlikely that subsequent investigation or investment of further resources would result in a finding under the Federal laws that we enforce.” See Minnah-Donkoh Decl. Ex. QQ. EEOC provided Lioi with a Notice of Right to Sue. Id. II. Procedural History On August 30, 2010, Lioi filed the Complaint in this case. Dkt. 1. On April 13, 2011, Lioi filed an Amended Complaint. Dkt. 10. On July 12, 2012, defendants filed a motion for summary judgment. Dkt. 20-23. On July 26, 2012, Lioi filed her opposition to the motion. Dkt. 24-27. On August 2, 2012, defendants filed a reply. Dkt. 28. On November 28, 2012, the Court heard oral argument on the motion. III. Legal Standard To prevail on a motion for summary judgment, the movant must “show[] 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 bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed. R.Civ.P. 56(c)(1); see also Wright v. Coord, 554 F.3d 255, 266 (2d Cir.2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citation omitted). Only disputes over “facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are 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.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003)). IV. Discussion Lioi brings claims under Title VII for gender discrimination, hostile work environment, and unlawful retaliation, as well as claims under New York State and New York City Human Rights Laws. The Court addresses each, in turn. A. Gender Discrimination Under Title VII When there is no direct evidence of discrimination, discrimination claims under Title VII are guided by the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this analysis, the plaintiff bears the initial burden of establishing a prima facie ease of discrimination. To do so, Lioi must show “(1) that she was within the protected [class], (2) that she was qualified for the position, (3) that she experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination.” See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir.2010). “This burden is not a heavy one.” Id. However, a plaintiff cannot establish a prima facie case based on “purely conclusory allegations of discrimination, absent any concrete particulars.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). If the plaintiff can demonstrate a prima facie case, “the burden of production shifts to the employer to articulate a legitimate, clear, specific and non-discriminatory reason” for having undertaken the adverse action. Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir.1996). “[I]f the defendant satisfies this burden of production, the plaintiff has the ultimate burden to prove that the employer’s reason was merely a pretext for discrimination.” Id. A plaintiff is not “required to prove the prohibited motivation was the sole or even the principal factor in the decision, or that the employer’s proffered reasons played no role in the employment decision.” Finn v. N.Y. State Office of Mental Health-Rockland Psychiatric Ctr., No. 08 Civ. 5142, 2011 WL 4639827, at *11 (S.D.N.Y. Oct. 6, 2011) (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 78 (2d Cir.2001)). Instead, the plaintiff “must show that those were not the only reasons and that plaintiffs protected status contributed to the employer’s decision.” Id. 1. Lioi has failed to establish a prima facie case of gender discrimination The City concedes that Lioi is a member of a protected class and that she was qualified for her position as an ASA. Thus, to make out a prima facie case, Lioi must establish that she was subject to an adverse employment action, and that the adverse employment action took place under circumstances giving rise to an inference of discrimination. An adverse employment action is a “materially adverse change in the terms and conditions of employment.” Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.2004) (citation omitted). “To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.2008) (quoting Sanders, 361 F.3d at 755). “Examples of such a change include 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 unique to a particular situation.” Id. Lioi argues that she was the target of numerous adverse employment actions, including (1) working under an inferior job title with an inferior salary; (2) the blocked transfer to DIIT; (3) her suspension; and (4) her termination. PI. Br. 7-9. This Court addresses each, in turn. First, Lioi asserts that during her entire tenure at PHL, she worked under a less distinguished job title, and at a lower salary, than similarly situated male co-workers. Even assuming that this constitutes an adverse employment action—which the City disputes, see Def. Br. 2—Lioi has failed to establish the fourth element of a prima facie case of discrimination. To established an inference of discrimination based on a showing of disparate treatment, Lioi “must show that she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000) (citation omitted). What constitutes “all material respects” varies from case to case, but “must be judged based on [] whether the plaintiff and those [s]he maintains were similarly situated were subject to the same workplace standards.” Id. at 40. “[W]here a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiffs to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001). Here, none of the co-workers that Lioi points to were similarly situated in all material respects. Lioi testified that she received a smaller salary than those of Jack Deutsch and Hang Lam. Lioi Dep. 87. But neither Deutsch nor Lam was similarly situated. Deutsch was the Director of PHL’s Lead Department and had been working at PHL prior to Lioi’s employment there. Lam was a Computer Specialist, rather than an Associate Staff Analyst, and had also been working at PHL for longer than Lioi. Lioi also compares herself to Altai Shaikh and Kevin Ward, Lioi Dep. 96, but neither of these individuals is a proper comparator, either. Although Shaikh’s annual salary was $10,000 more than Lioi’s, Lioi turned down a $10,000 raise offered to her in January 2008. Moreover, Shaikh was employed by DIIT, not PHL. As for Ward, Lioi testified that she did not know what his job title was, nor how long he had been working at PHL. Id. 56, 96-97. Such speculation is insufficient to raise an inference of discrimination. See Sharpe v. MCI Commc’ns Sews., Inc., 684 F.Supp.2d 394, 405 (S.D.N.Y.2010) (plaintiffs speculation about colleagues’ qualifications insufficient to raise inference of discrimination). In sum, although Lioi points to a number of male co-workers who performed somewhat similar work, there are important distinctions between each of these individuals and Lioi. Therefore, to the extent Lioi’s discrimination claim is based on her allegations of working out of title for an inferior salary, she has failed to establish circumstances giving rise to an inference of discrimination. Second, Lioi alleges that she suffered an adverse employment action when Somma blocked her transfer to DIIT in January 2007. This allegation, even if true, is untimely. For a Title VII claim to be timely, “a claimant [must] file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action.” Van Zant v. ELM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996); see 42 U.S.C. § 2000e-5(e). Lioi filed an Intake Questionnaire with the EEOC on August 31, 2009. Thus, events occurring before November 4, 2008 are time-barred, as Lioi conceded at oral argument. Tr. 37. Discrete discriminatory acts, such as a denial of transfer, “are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Therefore, even if there were evidence, which there is not, that the denial of transfer was somehow related to Lioi’s gender, it would be, at most, “background evidence in support of a timely claim.” Petrosino v. Bell All., 385 F.3d 210, 220 (2d Cir.2004) (quoting Nat’l R.R., 536 U.S. at 113, 122 S.Ct. 2061). The third alleged adverse employment action is Lioi’s suspension. Although a suspension is undoubtedly an adverse action, Lioi cannot point to circumstances giving rise to an inference of discrimination. Lioi was suspended in November 2008 after she sent the emails containing patient identifiers to Lam’s personal email account. Lam was also suspended. As counsel for Lioi conceded at oral argument, that both Lioi and her male coworker were suspended for the same incident significantly undermines Lioi’s claim that the suspension was tied to gender. Tr. 19 (“The Court: The fact that Mr. Lam was suspended tells you at least that the suspension component here wasn’t about gender. Right? Mr. Zabell: Yes.”). And to the extent Lioi argues that the gender-related comments made by Somma and Evans give rise to an inference of discrimination as to her suspension, that argument also fails, for reasons discussed infra. Finally, Lioi suffered an adverse employment action when she was terminated. Once again, however, she cannot establish an inference of discrimination. Because Lioi was terminated, whereas Lam was only suspended, Lioi argues that the incremental difference between these two punishments is disparate treatment that gives rise to an inference of discrimination. But Lioi, the active sender of the violative email, and Lam, its passive recipient, are, plainly, not similarly situated in all material respects. See Graham, 230 F.3d at 39. Lioi also attempts to prove an inference of discrimination on the basis of the gender-related comments made by Somma and Evans. Here, too, she is unsuccessful. Discriminatory remarks are admissible in gender discrimination cases because they may tend to show discriminatory animus. Whether remarks by defendants or defendants’ employees support an inference of discrimination depends on the context, and whether, fairly considered, these remarks are either themselves probative of discrimination, or “tend[ ] to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class.” Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 116 (2d Cir.2007). In determining whether a particular remark is probative of discrimination, courts consider four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). Henry v. Wyeth Pharms., Inc., 616 F.3d 134,149 (2d Cir.2010). The first pair of discriminatory comments was made by John Somma in early 2007. They were clearly gender-related. Lioi Dep. 112 (“This is an old boy’s school.”); id. at 113-14 (“This is a man’s world. Stop rocking the boat.”). At the time, Somma was Lioi’s direct supervisor. However, Somma left PHL in December 2007 — almost a full year before Lioi was suspended, and more than a year before her termination. Further, there is no evidence that Somma had anything to do with the decision to terminate Lioi, nor that his comments were in any way related to the decision-making process. The other allegedly discriminatory comments were made by Martin Evans, who, on a couple of occasions in October or November 2008, would use the word “man” in front of a group of employees and then look in Lioi’s direction and smirk. Lioi Dep. 114-116. The content of these remarks is barely gender-related, and there is no evidence that they were made in a context that was at all related to the decision-making process that resulted in Lioi’s suspension or termination. Although Evans was Lioi’s supervisor when he made the comments and at the time of her termination, there is no evidence that he played any role in the decision to terminate Lioi. Although counsel for Lioi tried to salvage this argument by implying that the decision-makers were generally under the suasion of Evans (and Haddow), see Tr. 33-35, the record contains no evidence that this was the case. Lioi, therefore, has failed to establish a prima facie case of discrimination. 2. Even if Lioi could make out a prima facie case, the City has put forward a neutral justification for Lioi’s termination which Lioi has failed to show is pretextual Assuming, arguendo, that Lioi could make out a prima facie case of gender discrimination with regard to her suspension or termination, the burden would shift to the City to show a legitimate, nondiscriminatory reason for its actions. To satisfy that burden, the City argues that Lioi was terminated because she breached her confidentiality agreement with DOHMH when she sent emails containing patient specific identifiers from her email to Hang Lam’s personal Yahoo account. As a governmental entity responsible for safeguarding confidential patient health information, it is both reasonable and prudent for DOHMH to adopt and enforce policies that achieve that end. As noted above, the confidentiality agreement which Lioi signed on December 6, 2006, clearly indicated that “[unauthorized disclosure of confidential information” may lead to a variety of disciplinary actions, including termination. Minnah-Donkoh Decl. Ex. X. Under that Policy, confidential data is described as “any combination of medical, demographic, financial or other information that can personally identify, or for which there is a reasonable basis to believe can be used to identify, Agency employees or members of the populations they serve.” Id. Ex. Y (emphasis added). Lioi’s breach of that policy is a neutral, legitimate justification for her termination. See, e.g., Shumway v. United Parcel Service, Inc., 118 F.3d 60, 65 (2d Cir.1997) (violation of company policy is a legitimate non-discriminatory justification). In response, Lioi makes two primary arguments. First, Lioi argues that the data contained in the emails simply did not contain patient-specific identifiers, and thus do not fall with the meaning of “confidential data” defined by the Acceptable Use Policy. The emails in question each contain lengthy attachments with daily lists of specimens to be tested by STD clinics. See Minnah-Donkoh Decl. Exs. U, W. Although the lists do not contain information that would identify a particular patient as readily as names' or Social Security numbers, they do contain a 10-digit external ID number for each entry. Although counsel for the City was unable at oral argument to articulate precisely how these numbers could be used to identify individuals, see Tr. 6-10, that failing is not fatal to its motion: Lioi’s argument is essentially that the City misapplied its policy, but “courts have consistently held that they may not second-guess an employer’s nondiscriminatory business decisions, regardless of their wisdom, unless there is actual evidence that they were motivated by discrimination.” Peters v. Mount Sinai Hosp., No. 08 Civ. 7250(CM), 2010 WL 1372686, at *9 (S.D.N.Y. Mar. 30, 2010) (citing Montana v. First Fed. Sav. & Loan Ass’n, 869 F.2d 100,106 (2d Cir.1989)); see also Swanston v. Pataki, No. 97 Civ. 9406(JSM), 2001 WL 406187, at *4 (S.D.N.Y. Apr. 20, 2001) (noting that the possibility that a rational person could disagree with employer’s determination that plaintiff violated a company policy does not preclude summary judgment; employer’s burden of neutral justification is met so long as its reading of the policy is “reasonable”). As noted above, there is no evidence that the City’s decision to terminate Lioi was motivated by discrimination, and, therefore, the Court will not second-guess the City’s determination that the emails sent by Lioi violated the confidentiality policy. Lioi also argues that, whether or not her emails violated the letter of the policy, she had permission from Evans, her supervisor, to send them. However, although Evans did ask Lioi to work with Lam while Lam was on leave, see Lioi Dep. 152, Evans Dep. 37, Lioi herself testified that Evans never gave her permission to send confidential patient information to Lam’s personal account, see Lioi Dep. 153, At argument, counsel for Lioi argued that Evans, in asking Lioi to work with Lam, must have understood that Lam could not do his job from home without the confidential information Lioi sent him, and, thus, Evans implicitly authorized Lioi’s actions. Tr. 16-17. However, as counsel conceded, there is no evidence to support that argument. Id. at 17 (“The Court: [Y]ou need to show that the supervisor ... tacitly approved it being sent.... Does the record show that? Mr. Zabell: No.”). Therefore, the City has met its burden of demonstrating a neutral, non-discriminatory justification for Lioi’s termination. This shifts the burden back to Lioi to prove that the City’s decision to terminate her based on the violation of the confidentiality policy was merely a pretext for gender discrimination. As stated above, Lioi has offered no evidence that her termination was the product of discrimination. Accordingly, summary judgment is merited in the City’s favor on Lioi’s Title VII gender discrimination claim. B. Hostile Work Environment Under Title VII In order to prevail on a hostile work environment claim under Title VII, Lioi must establish two elements. She must prove (1) “that the harassment was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment,” and (2) “that a specific basis exists for imputing the conduct that created the hostile work environment to the employer.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997) (citation omitted). Title VII “does not set forth ‘a general civility code for the American workplace.’ ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Rather, “[t]he plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir.2002) (citing Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 188 (2d Cir.2001)). This test has both objective and subjective elements: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). As a general rule, incidents must be more than “episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Perry, 115 F.3d at 149 (citation omitted); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (noting that “we have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment”). But see Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (“[E]ven a single episode of harassment, if severe enough, can establish a hostile work environment.”). In analyzing a hostile work environment claim, the Court is “required to look to the record as a whole and assess the totality of the circumstances, considering a variety of factors, including 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.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.2010) (citation omitted). In the Amended Complaint and her brief in opposition to this motion, Lioi bases her hostile work environment claim on: (1) gender-based comments made by Somma and Evans; (2) Mura’s alleged breach of her work locker and computer; and (3) her suspension and termination. 1. Timeliness As a threshold matter, the City argues that Lioi’s hostile work environment claim is time-barred, because each of the alleged comments and incidents that Lioi points to falls outside of the statutory period, which the parties agree began on November 4, 2008. See supra pp. 584-85; Tr. 37. However, under the “continuing violation” exception to Title VII, “[a] claim of hostile work environment is timely so long as one act contributing to the claim occurred within the statutory period; if it did, ‘the entire time period of the hostile environment may be considered by a court for purposes of determining liability.’ ” Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir.2004) (quoting Nat’l R.R., 536 U.S. at 117,122 S.Ct. 2061). Somma made the alleged gender-based comments to Lioi in early 2007. Lioi Dep. 112-114. Mura’s alleged breach of Lioi’s locker occurred in early 2008. Id. at 117, 122 S.Ct. 2061. Mura’s alleged breach of Lioi’s computer occurred in May, June, or July 2008, id. at 134, 122 S.Ct. 2061, and Lioi alleges that she reported this breach to her supervisors in September 2008, Am. Compl. ¶ 31. Each of these dates falls outside the statutory period. Thus, they do not support Lioi’s hostile work environment claim unless there is a timely act that is part of the same unlawful employment practice. Lioi’s suspension and termination both occurred after November 4, 2008, and thus are within the statutory period. However, “the mere fact that an employee was dismissed within the statutory period cannot be used ‘to pull in [a] time-barred discriminatory act.’ ” Patterson, 375 F.3d at 220 (quoting Nat’l R.R., 536 U.S. at 113, 122 S.Ct. 2061). Therefore, Lioi must do more than point to her suspension or termination; she must “proffer[ ] [some] evidence” to show that her suspension or termination “was in furtherance of the alleged practice of [ ] harassment.” Id. She has not done so. The only discriminatory acts that arguably fall within the statutory period are the instances in which Evans referred to Lioi as a man. See Lioi Dep. 114-16. These incidents occurred in October or November 2008. See id. at 116, 122 S.Ct. 2061 (“October, November. It was around that time frame.”); Am. Compl. ¶ 21 (“in or about October 2008”). Drawing all inferences in Lioi’s favor, the Court will assume that at least one of these incidents did occur after November 4, 2008. But see Tr. 37 (“The Court: Do you have anything that supports the hostile work environment claim that postdates November 3, 2008? Mr. Zabell: No.”). For this incident to bring Lioi’s claim, and thus the other alleged acts, within the continuing violation exception, Lioi must show that it was part of an “ongoing policy” of discrimination. Patterson, 375 F.3d at 220. Although the Court is skeptical that these comments were indeed part of an ongoing policy of discrimination, the Court need not resolve that question. That is because the Court finds that, even assuming every single incident alleged by Lioi were timely, Lioi’s claim still fails on the merits. 2. Even Assuming the Alleged Acts Were Timely, Lioi’s Hostile Work Environment Claim Fails Lioi’s hostile work environment claim consists primarily of the discriminatory comments made by Somma and Evans. Specifically, Somma told Lioi that “this is an old boy’s school,” Lioi Dep. 112, and, on another occasion, “[t]his is a man’s world. Stop rocking the boat.” Id. at 113-14. Lioi testified that each of these comments was made to her only once. Id. at 112-14. As for Evans, Lioi also testified that, on a couple of occasions, Evans would use the word “man” in front of a group employees, look in Lioi’s direction, and smirk. Id. at 114-16. These comments fall far short of the frequency or severity required for a claim of hostile work environment. Indeed, courts in this circuit have granted summary judgment to employers despite conduct far more severe than that alleged here. See, e.g., Dayes v. Pace Univ., No. 98 Civ. 3675, 2000 WL 307382, at *1, *4-5, 2000 U.S. Dist. LEXIS 3698, at *2-3, *11-12 (S.D.N.Y. Mar. 24, 2000), affd, 2 Fed. Appx. 204 (2d Cir.2001) (granting summary judgment to defendant where plaintiff was subject to six sexual comments, multiple requests for dates, was screamed at by a supervisor, and was touched on the back); Lucas v. S. Nassau Cmts. Hosp., 54 F.Supp.2d 141, 147-48 (E.D.N.Y.1998) (denying NYSHRL hostile work environment claim where supervisor brushed against plaintiff three times, touched plaintiff three times, briefly touched plaintiffs back or shoulders five to seven other times, asked about the color of plaintiffs underwear, said plaintiff wanted to “go to bed” with her, and said “fuck you” to plaintiff on two occasions); Ricard v. Kraft Gen. Foods, Inc., No. 92 Civ. 2256, 1993 WL 385129, at *3-4, 1993 U.S. Dist. LEXIS 21062, at *9 (S.D.N.Y. Mar. 16,1993), aff'd, 17 F.3d 1426 (2d Cir.1994) (four sexually-oriented incidents insufficient to withstand summary judgment). Further, the frequency of the incidents alleged by Lioi is more properly categorized as “episodic,” rather than the type of conduct that is “sufficiently continuous and concerted in order to be deemed pervasive.” Perry, 115 F.3d at 149 (citation omitted). Lioi also asserts that the alleged breaches of her work locker and computer workstation by Mura are evidence that she was subjected to a hostile work environment. But Mura’s alleged actions lack any connection to Lioi’s gender: Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration [adverse actions] that lack a linkage or córrela tion to the claimed ground of discrimination. Alfano, 294 F.3d at 377. Actions that are gender-neutral on their face can be considered in assessing the totality of circumstances, but only if there is “some circumstantial or other basis for inferring that [such] incidents ... were in fact discriminatory.” Id. at 378. Lioi proffers no evidence that the incidents related to her work locker or computer had anything to do with her gender. To the contrary, when Lioi was asked why she believed it was Mura who had been attempting to access her computer, Lioi testified that it was “[b]ecause [Mura] was constantly trying to get [work-related] information from me.” Lioi Dep. 132. Accordingly, these allegations do not support Lioi’s hostile work environment claim. Finally, to the extent Lioi alleges that her suspension and termination establish a hostile work environment, this allegation misapprehends the nature of a hostile work environment claim. As one court in this district has explained: Hostile work environment is not a vehicle for resurrecting time-barred claims of discrimination and retaliation; it is a wholly separate cause of action designed to address other types of work place behavior, like constant jokes and ridicule or physical intimidation. The plaintiff cannot piggyback the discrete adverse acts about which he complains onto hostile work environment in order to make them actionable. Magadia v. Napolitano, No. 06 Civ. 14386(CM), 2009 WL 510739, at *17 (S.D.N.Y. Feb. 26, 2009); see also Nat’l R.R., 536 U.S. at 115, 122 S.Ct. 2061 (“Hostile environment claims are different in kind from discrete acts. Their very nature involves repeat conduct.”). Lioi’s suspension and termination, although relevant to her discrimination and retaliation claims, do not support her claim of a hostile work environment where, as here, she has failed to show how these events were in any way related to an ongoing practice of harassment. See Patterson, 375 F.3d at 220. Accordingly, for the reasons stated, even assuming that each of the allegedly discriminatory acts were not time-barred and viewing them in totality, Lioi has failed to adduce evidence sufficient to permit a reasonable jury to find that she was subjected to a hostile work environment. Accordingly, summary judgment is granted in the City’s favor on this claim, too. C. Retaliation Under Title VII Under Title VII, it is unlawful for an employer to discriminate against an employee because that employee “has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). In adjudicating retaliation claims, courts follow the familiar burden-shifting approach of McDonnell Douglas Corp. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005). To prove a prima facie case of retaliation, Lioi must establish: “(1) that she participated in an activity protected by Title VII, (2) that her participation was known to her employer, (3) that her employer thereafter subjected her to a materially adverse employment action, and (4) that there was a causal connection between the protected activity and the adverse employment action.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir.2010). The burden of proof at the prima facie stage has been characterized as “de minimis.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010). If this initial burden is met, “a presumption of retaliation arises,” and the burden shifts to the employer to “articulate a legitimate, non-retaliatory reason for the adverse employment action.” Id. (quoting Jute, 420 F.3d at 173). If the employer meets its burden, “ ‘the McDonnell Douglas framework ... disappears] and the sole remaining issue ... [is] discrimination vel non.’ ” Holtz v. Rockefeller & Co., 258 F.3d 62, 77 (2d Cir.2001) (brackets in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The plaintiff must then prove the ultimate issues without the “benefit of ... intermediate burdens and presumptions.” Id.; see also Holcomb, 521 F.3d at 138. The plaintiff may satisfy this burden by showing “pretext,” i.e., that the employer’s proffered reason was false. See, e.g., Reeves, 530 U.S. at 143, 147, 120 S.Ct. 2097. But even in the absence of such a showing, a plaintiff may prevail by demonstrating that “an employment decision was motivated both by legitimate and illegitimate reasons.” Holcomb, 521 F.3d at 141-42; see also Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination.”); Holtz, 258 F.3d at 78. However, the employer is entitled to judgment as a matter of law “if the record conclusively reveal[s] [a] nondiscriminatory reason for the employer’s decision, or if the plaintiff create[s] only a weak issue of fact [as to pretext] and there [i]s abundant and uncontroverted independent evidence that no discrimination ha[s] occurred.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097; see also Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 125-26 (2d Cir.2008) (concluding that “overwhelming evidence” of legitimate reason for dismissal warranted judgment as a matter of law). Here, Lioi’s retaliation claims are based on her suspension, in November 2008, and her termination, in April 2009. She alleges that those acts were taken in retaliation for either her January 2008 visit to the DOHMH EEO, or her December 2008 complaint against her supervisors, Evans and Haddow. Defendants do not dispute that Lioi’s suspension and termination were adverse employment actions, nor that Lioi’s actions were protected activities. Thus, to establish a prima facie case, Lioi must show that her employers knew of her participation in the protected activity, and that there was a causal connection between the protected activity and the adverse employment action. First, to the extent Lioi’s retaliation claim is based on her November 2008 suspension, that claim must fail. Even assuming that defendants knew of Lioi’s January 2008 visit to the DOHMH EEO, Lioi has not established a causal connection between that visit and her suspension. A causal connection can be established in two manners: “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Thomas v. iStar Fin., Inc., 508 F.Supp.2d 252, 257 (S.D.N.Y.2007). Here, the temporal nexus — 10 months— is insufficient to establish a causal connection. See, e.g., Chukwueze v. NYCERS, 891 F.Supp.2d 443, 456-58 (S.D.N.Y.2012) (three- to six-month gap insufficient to establish causal connection); Sank v. City Univ. of N.Y., No. 10 Civ. 4975(RWS), 2011 WL 5120668, at *10-12 (S.D.N.Y. Oct. 28, 2011) (10-month gap insufficient); see also Murray v. Visiting Nurse Sens, of N.Y., 528 F.Supp.2d 257, 275 (S.D.N.Y. 2007) (“[T]he 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____ However, district courts within the Second Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation.”). Neither has Lioi offered any evidence establishing that her November 2008 suspension was influenced by retaliatory animus. And any such inference would be undermined by the fact that her male colleague, Lam, was also suspended as a result of the emails that Lioi sent him. Second, Lioi asserts that she was terminated in April 2009 in retaliation for the complaints of discrimination that she made against Evans and Haddow in December 2008. There is clear evidence that Evans and Haddow knew of the protected activity, see Minnah-Donkoh Decl. Exs. EE-FF, and this is sufficient to establish the second element of Lioi’s prima facie case. See Risco v. McHugh, 868 F.Supp.2d 75, 112 (S.D.N.Y.2012) (general corporate knowledge sufficient to satisfy second element of prima facie case of retaliation, regardless of whether individual decision-maker knew of complaint); see also Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.2000) (“Neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.”). However, Lioi still cannot establish a causal connection between her termination and her December 2008 complaints (nor, for that matter, her January 2008 visit to the DOHMH EEO). Although the temporal nexus between her termination and the December 2008 complaints — five months — is closer, it still falls outside the range of proximity from which courts in this District infer a causal connection. See Murray, 528 F.Supp.2d at 275. More significantly, however, when Lioi filed her complaints in December 2008, the disciplinary process regarding her breach of the confidentiality policy was already under way. Indeed, at the time of her complaints, Lioi had already been suspended as a result of her actions. “Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Sunss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.2001); see also Mayling Tu v. OppenheimerFunds, Inc., No. 10 Civ. 497KPKC), 2012 WL 516837, at *10 (S.D.N.Y. Feb. 16, 2012) (collecting cases where adverse job actions prior to protected activity negate inference of retaliation). Athough Lioi concedes as much, she argues that retaliatory animus is evidenced by the fact that she was given a more severe punishment than Lam, and that the disparity between her termination and Lam’s mere suspension gives rise to an issue of material fact sufficient to defeat summary judgment. PI. Br. 24. That argument is without merit. First, Lioi’s argument fails to acknowledge that having been the sender of an email that contained confidential information placed her in a substantially different position than Lam, as the mere recipient of the same. Second, the complaints were filed against Evans and Haddow, but neither was involved with the decision to terminate Lioi. See Evans Dep. 34; Haddow Dep. 81. Just as discriminatory “remarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by [ ] discriminatory sentiment,” Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111, 115 (2d Cir.2007), the fact that certain non-decision-makers may have a motive to retaliate has little tendency to show that the actual decision-maker was motivated by retaliatory animus. And, as discussed supra, there is no evidence that Evans and Haddow influenced the decision-maker in any way. In any event, even assuming that Lioi could establish a prima facie case, the burden would then shift to defendants to show a legitimate, non-retaliatory reason for the adverse action. As the Court has already concluded, defendants have done so, and Lioi cannot demonstrate pretext. See supra Part IV(A)(2). Accordingly, summary judgment must be granted in the City’s favor on this claim, also. D. State and City Human Rights Claims Lioi also brings claims for gender discrimination and retaliation under state and city human rights laws. “[C]laims brought under New York State’s Human Rights Law are analytically identical to claims brought under Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n. 10 (2d Cir.2011) (citation omitted). By contrast, the applicable standard under the NYCHRL is materially different from the Title VII standard. See Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 723 (2d Cir.2010) (“New York State courts and district courts in this Circuit have concluded ... that the retaliation inquiry under the [NYJCHRL is ‘broader’ than its federal counterpart.”). Because Lioi’s claims under Title VII have been dismissed, the Court must decide whether to retain jurisdiction over the remaining claims. Federal district courts have supplemental jurisdiction over state law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). As the Supreme Court stated in discussing Section 1367’s predecessor judicial doctrine of pendent jurisdiction, this is traditionally “a doctrine of discretion, not of plaintiffs right.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Section 1367(c) “confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). Of particular relevance here, a district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Once a district court’s discretion is triggered under Section 1367(c)(3), the Court balances the traditional “values of judicial economy, convenience, fairness, and comity” in deciding whether to exercise jurisdiction. Carnegie—Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Both the Second Circuit and the Supreme Court have held that, as a general rule, “when the federal claims are dismissed the ‘state claims should be dismissed as well.’ ” In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 61 (2d Cir.1998) (quoting United Mine Workers, 383 U.S. at 726, 86 S.Ct. 1130). Although the exercise of supplemental jurisdiction is discretionary, in the ordinary case the balance of factors “will point toward declining jurisdiction over the remaining state-law claims.” Id. at 61 (citing Cohill, 484 U.S. at 350 n. 7, 108 S.Ct. 614). Although this Court has in appropriate cases exercised its discretion to retain supplemental jurisdiction over both NYSHRL and NYCHRL claims, see Moccio v. Cornell Univ., 889 F.Supp.2d 539, 591-92 (S.D.N.Y.2012), or only NYCHRL claims, see Mendez-Nouel v. Gucci Am., Inc., No. 10 Civ. 3388(PAE), 2012 WL 5451189, at *16-17 (S.D.N.Y. Nov. 8, 2012), in this case the Court declines to exercise supplemental jurisdiction over either set of claims, for two reasons. First, despite the identical standards for Title VII and NYSHRL claims, state law differs in allowing supervisory liability, see Rojas, 660 F.3d at 107 n. 10, which may be relevant here. See supra p. 583 n. 4. More importantly, however, both parties urge the Court to decline to exercise supplemental jurisdiction. See PI. Br. 25; Def. Br. 19 n. 3. The Court will not stand in the way of the parties’ shared wishes. CONCLUSION For the foregoing reasons, defendants’ motion is granted as to Lioi’s claims under Title VII. The Clerk of Court is directed to enter judgment in defendants’ favor as to those claims. Because the Court declines to exercise supplemental jurisdiction over Lioi’s NYSHRL and NYCHRL claims, they are dismissed without prejudice. The Clerk of Court is directed to terminate the motion at docket number 20, and to close this case. SO ORDERED. . The Court’s account of the underlying facts of this case is drawn from the parties’ submissions in support of and in opposition to the instant motion, including: Defendant’s Local Rule 56.1 Statement ("Def. 56.1”) (Dkt. 21); the Declaration of Kuuku Minnah-Donkoh in Support of Defendant’s Motion for Summary Judgment (Dkt. 22) ("Minnah-Donkoh Decl.”) and attached exhibits; Plaintiff’s Local Rule 56.1 Statement ("Pi. 56.1”) (Dkt. 27); the Declaration of Saul D. Zabell in Opposition to Defendant's Motion for Summary Judgment (Dkt. 26) (“Zabell Decl.”) and attached exhibits; and the deposition of Francine Lioi (Min-nah-Donkoh Decl. Ex. C; Zabell Decl. Ex. K) ("Lioi Dep.”). References herein to a paragraph in a party’s 56.1 statement incorporate by reference the evidentiary materials in that paragraph. Where facts stated in a party’s Statement of Material Fact are supported by testimonial or documentary evidence, and denied by a conclusory statement by the other party without citation to conflicting testimonial or documentary evidence, the Court finds such facts to be true. See S.D.N.Y. Local Rule 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.”); id. at 56.1(d) ("Each statement by the movant or opponent ... controverting any statement of material fact[] must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c).”). . DIIT is an entity within DOHMH, but is separate from PHL. Def. 56.1 ¶ 30; Pl. 56.1 ¶ 30. . Lioi objected to the transcript of the interview as it had not been "verified or authenticated." Upon an order from this Court, dated September 12, 2012, the City submitted an audio CD with a recording of the interview. In a letter to the Court, dated September 19, 2012, Lioi acknowledged that she "do[es] not believe the transcript of the audio record to be substantively inaccurate," but stated that she objects “to the methodology utilized by the examiner in conducting the interview.” . Lioi brings these claims against DOHMH, Martin Evans, and David Haddow. As Lioi now concedes, DOHMH, as an agency of the City of New York, may not be sued in its independent capacity. Nevertheless, because Lioi could amend the Complaint to correct this deficiency, and because the issues have been briefed as if the proper defendant had been named, the Court considers Lioi's claim as if she had properly named the City of New York. See Healy v. City of New York Dep’t of Sanitation, No. 04 Civ. 7344(DC), 2006 WL 3457702, at *5 n. 3 (S.D.N.Y. Nov. 22, 2006). Lioi’s Title VII claims against Evans and Haddow, however, must be dismissed. In the Second Circuit, Title VII does not impose liability on individuals. See Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir.2012). Although Lioi invites this Court to reconsider that binding precedent, that is a matter for the Court of Appeals. . Lioi’s Complaint alleges that she was "repeatedly overlooked for promotions.” Am. Compl. ¶ 24. To the extent that Lioi’s papers assert a "failure to promote” theory, she neither properly pleads nor argues this point. Even if she did, however, any failure to promote claims would fail as a matter of law, because Lioi offers no evidence that she ever applied for any other job. See, e.g., Estate of Hamilton v. City of N.Y., 627 F.3d 50, 55 (2d Cir.2010) (noting that, to make out a failure to promote claim, a person must have applied for a job for which the employer was seeking applications). . Further negating the suggestion that Evans had anything to do with Lioi’s termination is the fact that he wrote a letter of recommendation on Lioi’s behalf earlier that year. Indeed, Evans testified that, "[t]echnically, she was excellent. She was one of the best people we had. That’s why I wanted to keep her.” Evans Dep. at 52. . The record is unclear regarding who made the decisions to suspend and terminate Lioi. Stephan Zander informed Lioi at the conclusion of their interview that she would be suspended, see Minnah-Donkoh Decl. Ex. Z; however, as he did so, he handed Lioi a letter signed by Rose Tessler informing her of that suspension, see id. Exs. Z, AA. Thus, it is unclear as between Zander and Tessler who made the decision to suspend Lioi. Similarly, Michael Aragon, after presiding over the informal conference set forth in the union’s grievance procedures, recommended that Lioi be terminated. Id. Ex. HH. Lioi then had a Step II disciplinary hearing, the result of which was a letter signed by Nellie Mitchell informing Lioi’s union representative that Lioi would be terminated. Id. Ex. JJ. And the official letter from the City notifying Lioi of her termination was signed by Brenda McIntyre. Id. Ex. KK. Once again, it is unclear as between these individuals who made the decision to terminate Lioi. What is clear, however, is that Lioi has offered no evidence to support the assertion that Somma, Evans, or Haddow had any influence over any of these proceedings. . Because both parties’ briefing focused solely on whether the City had a neutral justification for Lioi's suspension and termination, the Court declines to address whether, assuming arguendo that Lioi had established a prima facie case of discrimination based on her working-out-of-title or denied-transfer theories, the City had a neutral justification for those actions. The Court's holding that Lioi failed to establish a prima facie case on those theories of liability is sufficient to resolve this motion.

OPINION PER CURIAM. Vanessa Bise seeks to appeal the sentence imposed on her after a jury convicted her of two counts of embezzlement by a bank employee, in violation of 18 U.S.C.A. § 656 (West 2000), and one count of making false bank entries, in violation of 18 U.S.C.A. § 1005 (West 2000). We affirm. Bise contends that the district court erred in attributing to her for sentencing purposes $31,649 that was missing from the mutilated currency vault of the bank where she was employed. As a sentencing factor, the amount of loss attributable to a defendant need only be proven by a preponderance of the evidence. United States v. Davis, 184 F.3d 366, 368 (4th Cir.1999). The district court’s determination that a defendant is responsible for a certain amount of loss is a factual determination and will not be disturbed unless clearly erroneous. United States v. White, 875 F.2d 427, 430-31 (4th Cir.1989). Bise was the head teller, and the evidence showed that she was responsible for keeping track of the mutilated currency. Evidence was also introduced to show that Bise had prevented an audit of the mutilated currency vault. Bise was absent from the bank when the discovery was made that money was missing from the vault. Although during the investigation Bise only admitted to taking approximately $13,000, an amount that corresponds roughly with the amount missing from her teller drawer, she also told the investigating agent that there “may have been other times that [she] took money.” (J.A. 450). Based on these facts, we find that the district court did not clearly err when it determined that it was more likely than not that Bise took the money that was missing not only from her teller drawer but also from the mutilated currency vault. Accordingly, we affirm Bise’s sentence. We dispense with oral argument because the facts and legal contentions are adequately represented in the materials before the court and argument would not aid the decisional process. AFFIRMED. On appeal, Bise does not contest her convictions. In count one, the jury found beyond a reasonable doubt that Bise embezzled not less than $13,000 from her teller drawer. In count two, the jury found beyond a reasonable doubt that Bise embezzled not less than $25,000 from the mutilated currency vault. It is the attribution of $31,649 under count two for sentencing purposes that Bise challenges in this appeal. Notably, she contests the entire amount, not just the $6649 above the $25,000 minimum for which she was convicted.

ORDER AND JUDGMENT DAVID M. EBEL, Circuit Judge. Wesley Lamond Gage (“Gage”) appeals the district court’s order denying his Mo tion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2). The district court held that Gage’s original sentence was imposed pursuant to a plea agreement under Federal Rule of Criminal Procedure 11(e)(1)(C), which provides that such an agreement is “binding on the court once it is accepted by the court.” Without specifying that it was doing so, the district court then followed this Court’s decision in United States v. Trujeque, 100 F.3d 869, 869-71 (10th Cir.1996), which held that when a defendant “enter[s] a plea agreement specifying a term of imprisonment pursuant to Fed.R.Crim.P. 11(e)(1)(C), he may not seek a reduction in his sentence via 18 U.S.C. § 3582(c)(2).” Alternatively, the district court declined to exercise any discretion it had to modify Gage’s sentence because that sentence “still falls below the amended guideline sentencing range determined by application of’ Amendment 706, and because the original sentence “is reasonable and sufficient to meet the goals of sentencing set forth in 18 U.S.C. § 3553(a).” Exercising jurisdiction under 28 U.S.C. § 1291, we agree with the district court that Gage’s original sentence was imposed pursuant to a Rule 11(e)(1)(C) plea agreement. Therefore, because that sentence was not “based on a sentencing range that has been subsequently lowered by the Sentencing Commission,” 18 U.S.C. § 3582(c)(2), the district court should have dismissed Gage’s motion without considering it on the merits. See Trujeque, 100 F.3d at 871. I. Procedural background On October 25, 2002, pursuant to a written plea agreement, Gage pled guilty to possession of in excess of 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); and maintaining a place for the purpose of manufacturing, distributing, and using cocaine, in violation of 21 U.S.C. § 856(a)(1)-(2). Gage entered the guilty plea before Magistrate Judge Kimberly West, who conducted the plea colloquy. But the written plea agreement was formally adopted by District Judge James Payne, who on February 14, 2003, sentenced Gage, in accordance with that agreement, to 120 months’ imprisonment on each charge, with those prison terms to run concurrently. At the time Gage was sentenced, his offense level of 33 and criminal history category of II resulted in a Guidelines sentencing range of 151-188 months’ imprisonment. On November 1, 2007, the Sentencing Commission adopted Amendment 706, which generally provided for a 2-level decrease in the base offense level for offenses involving crack cocaine. See United States v. Rhodes, 549 F.3d 833, 835 (10th Cir.2008). Amendment 706 was made retroactive as of March 3, 2008, see U.S.S.G. § lB1.10(c), and Gage filed his motion for modification of his sentence on June 16, 2008. Under Amendment 706, Gage’s amended offense level was 31, which, combined with his criminal history category of II, resulted in an “Amended Guideline Range” of 121-151 months’ imprisonment. Judge Payne, who had for mally accepted Gage’s plea agreement and sentenced Gage in 2003, denied the § 3582(c)(2) motion on July 21, 2008, and this appeal timely followed. II. Discussion A. Standard ofrevieiv In order to determine whether Gage’s guilty plea was entered pursuant to Fed. R.CrimP. 11(e)(1)(C), we must review the terms of his plea agreement. That review is de novo. United States v. Altamirano-Quintero, 511 F.3d 1087, 1093-94 (10th Cir.2007). “In interpreting a plea agreement, we apply general principles of contract law, looking to the agreement’s express language and construing any ambiguities against the government as the drafter of the agreement.” Id. at 1094 (quotation, omission, alteration omitted). We construe the agreement according to “what the defendant reasonably understood when he entered his plea.” United States v. Veri, 108 F.3d 1311, 1312 (10th Cir.1997). Therefore, as Gage acknowledges, our analysis of a plea agreement “involves examination of ‘the language throughout the plea agreement and the parties’ statements at the change-of-plea hearing.’ ” (Aplt. Br. at 8) (quoting United States v. Siedlik, 231 F.3d 744, 748 n. 1 (10th cir.2000).) B. Fed.R.Crim.P. 11(e)(1)(C) When Gage entered his guilty plea on October 25, 2002, Fed.R.Crim.P. 11(e) read, in pertinent part, as follows: (1) In general. The attorney for the government and the attorney for the defendant ... may agree that, upon the defendant’s entering a plea of guilty or nolo contendere to a charged offense, ... the attorney for the government will: (A)move to dismiss other charges; or (B) recommend, or agree not to oppose!,] the defendant’s request for a particular sentence or sentencing range.... Any such recommendation or request is not binding on the court; or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case.... Such a plea agreement is binding on the court once it is accepted by the court. The court shall not participate in any discussions between the parties concerning any such plea agreement. (2) Notice of Such Agreement. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court.... If the agreement is of the type specified in subdivision ... (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presen-tence report. (4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court ... that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement. Fed.R.Crim.P. 11(e) (1999) (emphasis added). C. Gage’s plea agreement and plea colloquy The plea agreement stipulated that “[p]ursuant to Rule 11(e)(1)(C),” the parties agreed that “(a) Defendant shall plead guilty to Counts One and Three [of] the Indictment as stated above[; and] (b) The sentence shall be a term of imprisonment of one hundred twenty (120) months on each count to be served concurrently.” (R. vol. 1, plea agmt. at 2-3.) The agreement went on to acknowledge Gage’s understanding “that the Court is not a party to and is not bound by this agreement nor any recommendations made by the parties,” and that because the Court was not bound by the agreement, it was “free to impose upon the defendant any sentence up to and including the maximum.” (Id. at 7.) It also stipulated that Gage agreed not to withdraw his guilty plea “if the Court contemplates departure or departs from” the Guidelines “sentencing range calculation,” and that Gage would not be permitted to withdraw his plea solely because “the Court imposes a sentence with which [he] is dissatisfied.” (Id.) Finally, the agreement provided that Gage was “aware that any estimate of the probable sentencing range that [he] may receive from his attorney, ... the probation office, or any agents of such parties, is not a promise, and is not binding on” the parties or the Court, and that Gage waived the right to appeal or contest his sentence, except as to an upward departure from the Guidelines range. (Id. at 12-13.) Gage argues that the plea agreement should be construed under Rule 11(e)(1)(B), rather than under Rule 11(e)(1)(C), because the terms recited above “establish[ ] that the court was not ... bound” by the agreement. (Aplt. Br. at 9.) Yet Gage’s own language reveals the fatal flaw in this argument: under Rule 11(e)(1)(C), “the court is bound if the agreement is adopted ” (id. (emphasis added)); the court is not bound by the agreement itself. Here, after stipulating, under Rule (ll)(e)(l)(C), what Gage’s “sentence shall be” — not what the Government will recommend as to a sentence — the agreement acknowledges, consistent with that Rule, that the Court is not a party to the agreement and so is not bound to adopt it. Thus, the agreement correctly dictated that “any estimate” of Gage’s “probable sentencing range,” as based on that agreement, was “not a promise, and [was] not binding on ... the Court.” Further, if the Court had elected not to accept the agreement, and if Gage had been found guilty at trial or had maintained his guilty plea, the court was free to sentence Gage within his Guidelines range, or to depart upward or downward from that range. See Veri, 108 F.3d at 1314 (“When read from beginning to end, ... it is apparent the plea agreement sets out the consequences [the defendant] would have faced if he had gone to trial and been convicted, and then states the deal he struck under Rule 11(e)(1)(C) in exchange for pleading guilty.... ”). Gage correctly points out that the plea agreement does not contain a provision making explicit what is perhaps the most crucial element of a Rule 11(e)(1)(C) plea: that if the agreement is not accepted by the Court, the defendant must be given an opportunity to withdraw his guilty plea. (Aplt. Br. 10-11); see Fed.R.Crim.P. 11(e)(4) (1999). However, the extensive colloquy initiated by Magistrate Judge West at Gage’s change-of-plea hearing adequately remedies that lapse. See Veri, 108 F.3d at 1312 (explaining that we construe the plea agreement according to “what the defendant reasonably understood when he entered his plea”); Siedlik, 231 F.3d at 748 n. 1 (examining both the language of the plea agreement and the parties’ statements at the change-of-plea hearing in order to interpret plea agreement). At the change-of-plea hearing, the Government explained to Judge West that because the plea agreement had been made under Rule 11(e)(1)(C), “[i]f the Court rejects the agreement, then under Rule 11(e) of the Rules of Criminal Procedure, [Gage] will be given the opportunity to withdraw his plea and stand on the charges with which he’s originally charged.” (R. vol. 2, plea hearing at 8.) Gage’s attorney then added, “ [Particularly important to Mr. Gage is the fact that this is a Rule 11(e)(1)(C) plea to 120 months or ten years[,] and that’s what he’s agreed to[,] and if the Court rejects that plea agreement, then he would have the right under that rule to withdraw his plea and stand on his original not guilty plea and go to trial at that point if the Court did reject the plea agreement.” (Id. at 9.) Judge West later said to Gage, “you’ve heard the announcement by both [the Government] and your counsel as to the parameters of this plea agreement. Do you understand — -is that your understanding of what the plea agreement involves?” (Id. at 16.) Gage replied, “Yes, your honor.” (Id.) Gage argues that these “characterizations of the nature of the Plea Agreement must be discounted, because they vary from the terms of the Agreement.” (Aplt. Br. at 12.) As discussed above, however, these comments by the parties do not, in fact, “vary from” or contradict the terms of the plea agreement. Instead, they make explicit what the agreement left implicit: that if the Rule 11(e)(1)(C) agreement were not accepted by the Court, Gage had a right to withdraw his guilty plea and stand on his original plea of not guilty. Gage also argues that when Judge West, pursuant to Rule 11(e)(1)(C), asked Gage whether he understood “that the Court has not participated in any way in any of the discussions regarding the plea agreement and is not and would not be bound by the terms of the plea agreement,” she introduced “further ambiguity” as to whether the agreement, if accepted, would be binding on the court. (Id. at 13.) Yet immediately following that question and Gage’s affirmative response, Judge West asked, “Do you understand that the Court may accept or reject any such agreement and if the Court rejects it, you will be given an opportunity to withdraw your plea of guilty?” (R. vol. 2, plea hearing at 17.) Again, Gage answered, “Yes, your honor.” (Id.) Pursuant to Rule 11(e)(2), Judge West then informed Gage that the court would “reserve its decision about acceptance of the plea agreement until the sentencing report is completed.” (Id.) We conclude that if Gage did not understand from the terms of the plea agreement itself that a Rule 11(e)(1)(C) agreement could be accepted or rejected by the court, and that if it were rejected, Gage would have the right to withdraw his guilty plea, he clearly gained that understanding from the plea colloquy with Judge West. Consistent with both the agreement and the colloquy, having “formally adopt[ed] the plea agreement as written” (R. vol. 2, sentencing hearing at 3-4), Judge Payne thus “imposed [Gage’s] sentence in accordance with the Federal Rules of Criminal Procedure, Rule 11(e)(1)(C)” (id. at 7), rather than in accordance with a Guidelines sentencing range. As a result, Gage “may not seek a reduction in his sentence via 18 U.S.C. § 3582(c)(2),” and the district court “should have dismissed [the] motion without considering its merits.” Trujeque, 100 F.3d at 869, 871. III. Conclusion For the foregoing reasons, we remand to the district court with instructions to dismiss Gage’s motion. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Former Rule 11(e)(1)(C) has been slightly amended and renumbered as Rule 11(c)(1)(C). Because the rule in effect at the time of Gage's plea agreement and sentencing was 11(e)(1)(C), this Order and Judgment refers to the rule by that number. . "The court shall not participate in any discussions between the parties concerning any such plea agreement.” Fed.R.Crim.P. 11(e)(1)(C). . Although we conclude that Gage's plea agreement was consistent with Rule 11(e)(1)(C), we strongly caution the Government that plea agreements are far too important to be created with the apparent boilerplate, cut-and-paste language that was used in this case. An agreement under current Rule 11(c)(1)(C) should make explicit which of its provisions refer to the potential or certain outcome for the defendant if the Court accepts the agreement, and which refer to the potential or certain outcome if the Court rejects the agreement.

ON PETITION FOR WRIT OF MANDAMUS BRYSON, Circuit Judge. ORDER NBS Technologies, Inc. (NBS) and Card Technology Corporation (CTC) petition for a writ of mandamus to direct the United States District Court for the District of Minnesota to (1) vacate its order imposing-sanctions pursuant to Fed.R.Civ.P. 37(b)(2)(A) and (2) sign a letter rogatory to obtain the testimony of its previous managing agent. CTC sued DataCard Corporation for patent infringement. DataCard counterclaimed against CTC and NBS for infringement of its own patents and also filed a counterclaim against CTC alleging tortious interference with a prospective contract to deliver services to the Government of Nigeria. DataCard sought to depose Steve Hudson, who was then CTC’s managing agent. CTC states that Hudson resides in Germany. Hudson refused to appear for a deposition and, through counsel, stated that he preferred to respond to letters rogatory. DataCard filed a motion to compel the deposition of CTC through its managing agent, Hudson. The district court granted the motion to compel. CTC requested and directed that Hudson appear but Hudson refused. DataCard filed a motion for sanctions. CTC terminated Hudson’s employment. The district court granted Datacard’s request for sanctions. The district court admitted certain facts as established, i.e., that a commission paid by CTC was to be used for bribes to Nigerian government officials, that CTC knew of that purpose, and that CTC agreed to pay the bribes so that it and not DataCard would receive a contract. The district court also precluded certain testimony by Hudson at trial and granted DataCard its reasonable expenses incurred in bringing the motion for sanctions. The court also rejected CTC’s request for issuance of letters rogatory. The district court stated: The Court also finds that the issuance of Letters Rogatory are not a comparable substitute for deposition testimony. Testimony obtained through Letters Ro-gatory is unsworn and is in a narrative format. Furthermore, and most importantly, there is no opportunity to cross-examine the witness. CTC argues that the sanction was an abuse of discretion because CTC attempted to require Hudson to appear for deposi tion, that the sanction is too harsh, and that the district court abused its discretion when it declined to issue letters rogatory. The remedy of mandamus is available only in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). A court may deny mandamus relief “even though on normal appeal, a court might find reversible error.” In re Cordis Corp., 769 F.2d 733, 737 (Fed.Cir.1985). We are not convinced that CTC has no other means of attaining the relief desired by appealing any adverse final judgment, if appropriate. CTC can raise these issues on appeal, if it does not prevail after trial. “Although a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances ‘would undermine the settled limitations upon the power of an appellate court to review interlocutory orders.’ ” Allied Chem., 449 U.S. at 35, 101 S.Ct. 188 (citation omitted). We are not persuaded that mandamus should be granted based on CTC’s assertions that it “will lose Mr. Hudson’s testimony” or that the district court’s order will cause “immediate and irreparable harm to CTC” because it “is likely to infect each judgment of credibility and each decision the jury is asked to make in a manner that cannot be quantified on appeal.” CTC has not met its difficult burden in a petition for a writ of mandamus to establish a clear abuse of discretion in the district court’s sanctions ruling or in the district court’s ruling not to issue letters rogatory. Accordingly, IT IS ORDERED THAT: The petition is denied. CTC also submits a newspaper article concerning the district court case. We decline to take judicial notice of the article.

MEMORANDUM Rogelio Diaz-Pineda (“Diaz”) appeals his seventy-seven month sentence for illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 1291 and we affirm. Diaz first argues that the district court erred in refusing to grant him a two-step reduction in his sentence for acceptance of responsibility. We disagree. Section 3E1.1 of the United States Sentencing Guidelines provides a two-level reduction in the offense level if a defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). “A failure to demonstrate contrition and remorse weighs against a finding of acceptance of responsibility, because implicit in acceptance of responsibility is an admission of moral wrongdoing.” United States v. Connelly, 156 F.3d 978, 982 (9th Cir.1998) (internal quotations omitted). “Whether or not a defendant has accepted responsibility for his crime is a factual determination to which the clearly erroneous standard of review applies.” United States v. Gillam, 167 F.3d 1273, 1279 (9th Cir.1999). On redirect examination at trial, Diaz attempted to excuse his reentry into the United States and to divert blame for his actions. He testified that he returned to the United States because he is Guatemalan and the INS wrongly deported him to Mexico. He also testified that he could not return to Guatemala because he was “involved in internal problems in the country.” The district court’s conclusion that Diaz failed to accept responsibility for his crime is not clearly erroneous in light of this testimony and the trial tactic of shifting responsibility for the crime that it supported. See United States v. Scrivener, 189 F.3d 944, 948 (9th Cir.1999) (“One example of inconsistent conduct that weighs against a finding of acceptance of responsibility is a defendant’s attempt to minimize his own involvement in the offense.”); Connelly, 156 F.3d at 982-83 (not clearly erroneous to deny the reduction to a defendant who plead guilty but attempted to excuse his motive for committing the crime). Because Diaz did not qualify for the 2 level reduction under § 3El.l(a), he is ineligible for the additional 1 level reduction under § 3E1.1(b). See U.S. Sentencing Guidelines Manual § 3E1.1 (2000). Diaz also contends that the district court committed plain error or exceeded its jurisdiction by enhancing Diaz’s sentence based on his prior aggravated felony conviction because the government did not attempt to submit evidence as to that conviction at trial. This claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See also United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (noting that the Supreme Court had preserved AlmendarezTorres as a narrow exception to the rule established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)), cert. denied, — U.S.-, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Affirmed. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

OPINION IKUTA, Circuit Judge Seanlim and Seak Leang Yith appeal from the district court’s dismissal of their complaint requesting adjudication of their naturalization applications pursuant to 8 U.S.C. § 1447(b). Relying on 8 U.S.C. § 1429, the district court concluded that the Yiths were precluded from obtaining any relief because they were concurrently in removal proceedings. See 8 U.S.C. § 1429 (providing that “no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act”). The court therefore dismissed their complaint for failure to state a claim. We reverse, because the limitation imposed by § 1429 applies only to the executive branch’s adjudication of naturalization applications, and only when removal proceedings are pending pursuant to an arrest warrant, neither of which is applicable here. I We begin by providing the relevant legal framework. In 2002, Congress transferred the functions of the Immigration and Naturalization Service to the Department of Homeland Security (DHS), and transferred the function of adjudicating naturalization petitions to the United States Citizenship and Immigration Services (USCIS), a component of DHS. 6 U.S.C. §§ 202(3), 251(2), 271(b)(2). As a result, although 8 U.S.C. § 1421(a) states that “[t]he sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General,” courts interpret this reference, as well as references to the Attorney General in 8 U.S.C. §§ 1421, 1429, 1445, and 1447, as referring to the authority of the USCIS. See Hernandez de Anderson v. Gonzales, 497 F.3d 927, 933 (9th Cir. 2007) (noting transfer of authority). A person seeking naturalization must file an application -with the USCIS. A US-CIS employee is designated to “conduct examinations upon applications for naturalization,” including taking testimony, administering oaths, and requiring the attendance and testimony of witnesses. 8 U.S.C. § 1446(b). After such an examination, the USCIS employee must “make a determination as to whether the application should be granted or denied, with reasons therefor.” Id. § 1446(d). If the application for naturalization is denied following the USCIS employee’s examination under § 1446, “the applicant may request a hearing before an immigration officer.” Id. § 1447(a). Once applicants have exhausted administrative remedies, they may appeal to a district court. The statutes provide for an appeal in two distinct circumstances. See United States v. Hovsepian, 359 F.3d 1144, 1162-63 (9th Cir. 2004). First, if a USCIS employee fails to make a determination “as to whether the application should be granted or denied” pursuant to § 1446(d) “before the end of the 120-day period after the date on which the examination is con- ducted,” then the applicant “may apply to the United States district court for the district in which the applicant resides for a hearing on the matter,” 8 U.S.C. § 1447(b). The district court “has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [US-CIS] to determine the matter.” Id. Second, if the applicant had a hearing before an immigration officer pursuant to § 1447(a), and the immigration officer- denied the application, the applicant “may seek review of such denial” before a district court. Id. § 1421(c). “Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.” Id. Certain applicants are not eligible for naturalization. First, neither the USCIS nor the district court may naturalize a person “against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.” Id. § 1429. Second, the USCIS may not con sider an application for naturalization “if there is pending against the applicant a removal proceeding pursuant .to a warrant of arrest issued under the provisions of this chapter or any other Act.” Id, II We now turn to the facts of this casé. Seanlim and Seak Leang Yith are siblings and citizens of Cambodia who were admitted as lawful permanent residents in March 2006, based on approved immigrant visa petitions filed * by their stepmother, Sarin Meas, a U.S. citizen. Seanlim Yith filed an application for' naturalization with USCIS in February 2011, and Seak Yith filed an application in December 2012. Both siblings were scheduled to appear for naturalization examinations in June 2013, but the USCIS cancelled the interviews and did not reschedule them. In 2014, the Yiths repeatedly contacted the USCIS regarding the status of. their application; they were told that the adjudication was “delayed” or that their cases were “pending,” but that the USCIS could not determine when the review process for their applications would be completed. The Yiths subsequently filed a complaint in district court, seeking to compel the USCIS to adjudicate their applications. While the government’s motion to dismiss was pending, the USCIS scheduled the examination, for the Yiths’ naturalization applications. The parties stipulated to hold the court proceedings in abeyance pending the USCIS examination. ’* The examinations took place as scheduled on March 10, 2015.' For the first time, the USCIS told the Yiths that their stepmother, whosé petition had' been the basis for legal permanent resident status, had testified that her marriage to their father was fraudulent, and therefore they had been ineligible for a visa when they entered the United States. After the examination, the USCIS issued notices of intent to deny the Yiths’ applications. The notices stated that the Yiths were not eligible for naturalization because they had not been lawfully admitted for permanent residence. The deadline for issuing a final decision on the Yiths’ application was July 8, 2015, the 120th day after the examination. Instead, on July 7, 2015, the USCIS issued notices to appear, thus commencing removal proceedings. Returning to district court, the Yiths moved to amend their original complaint and the government filed a new motion to dismiss. According to the government, 8 U.S.C. § 1429 precluded a court from considering a naturalization application when the applicant had been placed in removal proceedings. Therefore, the government argued, either the district court lacked subject matter jurisdiction over the complaint or the Yiths failed to state a claim upon which' relief could be granted. ■ The district court dismissed the Yiths’ complaint without prejudice on the ground that it failed to state a claim. Relying on § 1429 and the Second Circuit’s decision in Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008), the court held that it could not adjudicate the Yiths’ naturalization applications or order the USCIS to adjudicate them while removal proceedings remained pending. The court stated that the Yiths could refile their complaint if removal proceedings concluded in the Yiths’ favor. The Yiths timely appealed. We review the dismissal of a complaint for failure to state a claim de novo. Morrison v. Peterson, 809 F.3d 1059, 1064 (9th Cir. 2015). Because the USCIS did not issue final decisions on the Yiths’' naturalization applications within 120 days after their examinations, the district 'court had jurisdiction to adjudicate 'their naturalization applications under 8 U.S.C. § 1447(b) and correctly rejected the government’s'argument that the commencement of removal proceedings stripped the district court of subject matter jurisdiction. Cf De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1046 (9th Cir. 2004) (holding that - commencement of removal proceedings does not affect a district court’s jurisdiction to review an immigration officer’s denial of a naturalization application under § 1421(c) ). We have jurisdiction under 28 U.S.C. § 1291. Ill On appeal, the Yiths argue that the district court erred in dismissing their complaint for failure to state a claim. They contend that § 1429 does not apply for two reasons: (1) it prevents only the executive branch, not the federal courts, from adjudicating'naturalization'applications; and (2) it applies only if “a removal proceeding pursuant to a' warrant of arrest issued under the provisions of this chapter or any other Act” is pending against the applicant. We examine these arguments in turn. A We begin by considering the language in § 1429 that “no application for naturalization shall be considered by the Attorney General.” (emphasis added). According to the Yiths, because this language applies only to the Attorney General, it does not preclude a district court from considering a naturalization application that is properly before the court pursuant to § 1447(b). We agrée. As a general rule, we dó not look beyond the unambiguous language of a statute. “[W]hen a statute designates certain persons ... all omissions should be understood as exclusions[.-]” Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1084 (9th Cir. 2007)' (quoting Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en banc)). Here, the statute refers only to the Attorney General and provides no indication that the language applies to the courts. Therefore, on its face, § 1429 restricts only the Attorney General and does not limit the district court’s power to naturalize an applicant while removal proceedings are pending. This reading of the pertinent language in § 1429 is supported by the context. Section 1429 addresses two situations: (1) when “there is outstanding a final finding of deportability” and (2) when “there is pending against the applicant a removal proceeding.” 8 U.S.C. § 1429. For the former, § 1429 provides that “no person shall be naturalized.” Id. But for the latter, it states only that “no application for naturalization shall be considered by the Attorney General.” Id. In other words, § 1429 precludes-both the executive branch and the courts from naturalizing applicants “against whom there is outstanding a final finding of deportability” but prohibits only the Attorney General from naturalizing applicants against whom a removal proceeding is pending. Id. Interpreting the narrower limitation that “no application for naturalization shall be considered by the Attorney General” to mean the same as “no person shall be naturalized” would read out the reference to the Attorney General and treat distinct clauses as identical. See United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute[.]”). Our reading of the statute is also supported by considering it in its historical context. “Before 1990, district courts had authority to naturalize, while authority to deport ... aliens was vested in the Attorney General. This differentiation of function gave rise to a ‘race between the alien to gain citizenship and the Attorney General to deport[.]’” Bellajaro, 378 F.3d at 1045 (quoting Shomberg v. United States, 348 U.S. 540, 544, 75 S.Ct. 509, 99 L.Ed. 624 (1955)). In 1952, to end this race, Congress enacted § 1429, which provided that “no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding.” Immigration and Nationality Act, Pub. L. No. 414, § 318, 66 Stat. 163, 244 (1952) (codified at 8 U.S.C. § 1429 (1952)) (emphasis added); see also Bellajaro, 378 F.3d at 1045. Then, in 1990, Congress amended the law to vest naturalization authority in the Attorney General. Immigration Act of 1990, Pub. L. No. 101-649, § 401(a), 104 Stat. 4978, 5038 (1990) (codified at 8 U.S.C. § 1421(a)(1994)) (“The sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.”); see Bellajaro, 378 F.3d at 1045. At that time, Congress amended § 1429, replacing “a naturalization court” with “the Attorney General.” Immigration Act of 1990 § 407(d)(3) (codified at 8 U.S.C. § 1429); see also Bellajaro, 378 F.3d at 1045. Congress also provided for judicial review of a denied naturalization application in § 1421(c), Immigration Act of 1990 § 401(c), and judicial review of a delayed application in § 1447(b), id. § 407(d)(14); see also Bellajaro, 378 F.3d at 1045. Therefore, the history of § 1429 shows that Congress initially barred courts from considering naturalization applications during removal proceedings, but subsequently removed any reference to courts. Nothing in the 1990 amendments suggests, that Congress intended to preserve the 1952 act’s bar on a district court naturalizing applicants while removal proceedings are pending, and Congress’s decision to remove the provision suggests it wanted to end such a bar. Our decision in Bellajaro is not to the contrary. Bellajaro concerned the district court’s authority under § 1421(c), which provides that “[a] person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court.” 378 F.3d at 1045 (quoting 8 U.S.C. § 1421(c)). In Bellajaro, the INS denied an application for naturalization under § 1429 because removal proceedings were pending against the applicant and § 1429 prevented the agency, from considering his application while removal proceedings were pending. Id. at 1044. The applicant sued in district court, seeking a de novo hearing on the merits of his application. Id. Because § 1421(c) allows an applicant whose application for naturalization has been denied to “seek review of such denial before the United States district court,” id. at 1045 (quoting 8 U.S.C. § 1421(c)), we concluded that a district court had jurisdiction to determine whether the agency had erred in denying the application, id: at 1043. Because the agency in Bellajaro had correctly applied § 1429 and denied the application because removal proceedings were pending, we affirmed the district court’s decision to uphold the agency’s denial. Id. at 1046-47. Unlike § 1421(c), which applies when an agency denies an application, § 1447(b) applies when the government fails to make a determination within a 120-day period and gives the district court jurisdiction over the entire “matter.” 8 U.S.C. § 1447(b) (stating that “the applicant may apply to the United States district court ... for a hearing on the matter” and “[s]uch court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [USCIS] to determine the matter”). Here, the USCIS did not deny the Yiths’ naturalization applications, and so the district court’s review is not limited to the reason for the agency’s denial, but extends to the entire matter (i.e,, the application for naturalization) that was pending before the agency. In arguing against this conclusion, the government primarily relies on the Second Circuit’s decision in Ajlani, which held that § 1429 does not permit an alien to state a claim for relief under § 1447(b) while removal proceedings are pending against him. 545 F.3d at 241. In Ajlani, the USCIS granted an alien’s application for naturalization, then, when it discovered the alien’s prior convictions, revoked the application and initiated removal proceedings. Id. at 231-32. The applicant filed a complaint requesting the district court grant his application or remand to the agency with instructions. Id. at 233. The district court dismissed the action, holding that, “in light of the pending removal proceedings,” the applicant could not state a claim for relief. Id. The Second Circuit affirmed, holding that the pendency of removal, proceedings precludes an applicant “from stating a claim for relief under'8 U.S.C. § 1447(b).” Id. at 241. Although Ajlani identified several reasons for its decision, none of them are persuasive in light of the statutory language. First, Ajlani reasoned that because § 1429 limits a district court’s ability to grant relief under § 1421(c), by analogy, § 1429 also limits a district court’s ability to grant relief under § 1447(b). Id. at 239-40 (first citing Saba-Bakare v. Chertoff, 507 F.3d 337, 340 (5th Cir. 2007); then citing Bellajaro, 378 F.3d at 1045-46; and then citing Zayed v. United States, 368 F.3d 902, 905-06 (6th Cir. 2004)). But this analysis ignores the different language in § 1421(c),- which authorizes a district court to review only the agency’s denial, while § 1447(b) authorizes a district court to determine the “matter” of the naturalization application. Therefore, Ajlani’s reliance on Bellajaro and other decisions analyzing § 1421(c) is misplaced. Next, Ajlani concluded that because § 1447(b) applies only if “there is a failure to make a determination” on the naturalization application, and such a condition precedent cannot occur when removal proceedings aré pending, then § 1447(b) does not authorize a district court to determine an alien’s naturalization application in those circumstances. Id. at 240. Ajlani reasoned that the word “failure” means “the omission of an expected action, occurrence, or performance,” id. (quoting Black’s Law Dictionary 631 (8th ed. 2004)), and “an action cannot be ‘expected’ when it is proscribed by law,” id. Because § 1429 precludes the USCIS from making a naturalization determination when.removal proceedings are pending,» Ajlcmi concluded that the USCIS cannot be deemed to have failed to make such a determination under § 1447(b). Id. We reject this strained reading of the statute.' When the USCIS has undertaken ah examination of a person who has submitted a naturalization application, and then does not make a determination on the application within 120 days, it has failed to make a determination regardless whether it decides to commence removal proceedings and thereby prevent itself from making the determination. Under a commonsense usage of the word “failure,’* á person fails to accomplish a requirement even when the failure was caused by the person’s self-sabotage or other intentional efforts to make it impossible to accomplish the goal. ■ Indeed, the error in Ajlani’s interpreta-' tíon of failure is epitomized by the facts of this cáse. Congress enacted § 1447(b)’ to' prevent "undue delay in making naturalization determinations. See Hovsepian, 359 F.3d at 1163 (“A central purpose of [§ 1447(b) ] was to reduce the'waiting time for naturalization applicants.”); Bustamante v. Napolitano, 582 F.3d 403, 410 (2d Cir. 2009) (“The statutory scheme aims to provide USCIS with an incentive to decide applications in a timely fashion or risk losing jurisdiction to decide those applications in the first instance.”). The facts in this case indicate that the USCIS, after first delaying the Yiths’ examinations, intentionally attempted to avoid the deadline set by § 1447(b) for determining a naturalization application, The USCIS had the ability to make a timely determination within 120 days, and even informed the-Yiths that it intended to deny their applications. Nevertheless, the USCIS issued the notice to appear on the 119th day in order to avoid the statutory deadline, and does not argue that the notices operated as functional denials, Ajlani’s strained interpretation of § 1447(b), which ■ would authorize the USCIS to avoid making a determination within the 120-day deadline, would defeat Congress’s intent. Therefore, we adopt the straightforward reading of the statute that the USCIS fails to make a determination under § 1447(b) when it fails to deny the applications before the statutory deadline. Finally, Ajlani justified its interpretation of § 1447(b) based on a mistaken construction of-the overall statutory framework and interpretation of Congress’s goals. 545 F.3d at 240-41. The Second Circuit reasoned that “district court authority to grant naturalization relief while removal proceedings are pending cannot be greater than that of the Attorney General.” Id. at 240. Therefore, it explained, “[a]s much as the statutory framework permits district courts under § 1447(b) to evaluate naturalization petitions where the USCIS improperly neglects to do so, it would seem to work against the framework set forth in §§ 1447 and 1429 for the district court to undertake such an evaluation where Congress has expressly prohibited the Attorney General from doing so.” Id. We disagree, because Ajlani substituted its own views of Congressional purpose for the actual language of the statute. “[I]t is never our job to rewrite a constitutionally valid statutory text.” Henson v. Santander Consumer USA Inc., — U.S. —, 137 S.Ct. 1718, 1725, 198 L.Ed.2d 177 (2017). “Indeed it is quite mistaken to assume” as Ajlani does, “that “whatever’ might appear to “further[] the statute’s primary objective must be the law.’ ” Id. (alteration in original) (quoting Rodriguez v. United States, 480 U.S. 622, 526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987)). Contrary to Ajlani’reasoning, the legislative history raises the opposite inference: When Congress amended § 1429, it chose to replace “natu ralization court” with “Attorney General,” Immigration Act of 1990, § 407(d)(3); see also Bellajaro, 378 F.3d at 1045, and did not add “district court” to the statute, strongly suggesting Congressional intent to limit § 1429 to decisions by the executive branch. Because the statutory language compels us to conclude that § 1429 applies only to the Attorney General, not the district court, the district court erred in concluding that the reference to the Attorney General in § 1429 prevented it from granting relief under § 1447(b). B We next consider the language in § 1429 that the government may not consider an applicant’s naturalization application “if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.” 8 U.S.C. § 1429 (emphasis added). The Yiths argue that § 1429 does not apply to them by its terms because their removal proceeding was not pursuant to a warrant of arrest. The government argues that we must defer to the DHS’s regulatory interpretation of “warrant,” which states: “For the purposes of [8 U.S.C. § 1429], a notice to appear issued under 8 CFR part 239 (including a charging document issued to eomménce proceedings under sections 236 or 242 of the Act prior to April 1, 1997) shall be regarded as a warrant of arrest.” 8 C.F.R. § 318.1. Because the DHS issued notices to appear to the Yiths, the government contends, “a removal proceeding pursuant to a warrant of arrest” was pending against them, for purposes of § 1429. The government relies on a Seventh Circuit decision which upheld this interpretation of “warrant,” on the ground that an agency “can define its own vocabulary,” and “[sjince ‘arrest’ does not imply custody even in police parlance (full custodial arrests are a subset of all arrests), there’s no logical problem with an agency calling its official process a ‘notice to appear’ and a “warrant of arrest’ at the same time, without needing to issue two separate documents.” Klene v. Napolitano, 697 F.3d 666, 670 (7th Cir. 2012). We review an agency’s construction of the statute it administers under the formula set forth in Chevron, U.S.A., Inc. v, Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “Chevron established a familiar two-step procedure for evaluating whether. an agency’s interpretation of a statute is lawful.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S, 967, 986, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). “At the first step, we ask whether the statute’s plain terms ‘directly addres[s] the precise question at issue.’ ” Id. (alteration in original) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron, 467 U.S. at 843 n.9, 104 S.Ct. 2778. “[T]he court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. Under these tools of statutory interpretation, “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). “When determining the plain meaning of language, we may consult dictionary definitions,” Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1088 (9th Cir. 2007). “It is also ‘a fundamental canon that the words of a - statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” The Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)). “If, under these canons, or other traditional means of determining Congress’s intentions,” we can determine that Congress clearly defined “warrant of arrest,” then we may not defer to DHS’s contrary interpretation. See id.; see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 512, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (“Where the language of the statute is clear, resort to the agency’s interpretation is improper.”). Only “if a statute is silent or ambiguous with respect to the issue at hand” do courts move to the second step of the Chevron framework, and ask whether “the agency’s answer is based on a permissible construction of the statute.” The Wilderness Soc’y, 353 F.3d at 1059 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Here, the “plain terms” of § 1429 “directly addres[s] the precise question at issue.” Brand X Internet Servs., 545 U.S. at 986, 125 S.Ct. 2688 (alteration in original) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Section 1429 provides that the government’s consideration of an application is precluded only if a “removal proceeding” is pending “pursuant to” (1) “a warrant of arrest” that (2) has been “issued under the provisions of this chapter or any other Act.” The meaning of “warrant of arrest” in § 1429 is unambiguous. According to the dictionary, a “warrant” means “[a] writ directing or authorizing someone to do an act, esp. one directing a law enforcer to make an arrest, a search, or a seizure.” See Black’s Law Dictionary (10th ed. 2014). The term “arrest” means “[a] seizure or forcible restraint” or “[t]he taking or keeping of a person in custody by legal-authority, esp. in response to a criminal charge; specif., the apprehension of someone for the purpose of securing the administration of the law, esp. of bringing that person before a court.” Id. And the term “warrant of arrest” means “[a] warrant issued by a disinterested magistrate after a showing of probable cause, directing a law-enforcement officer to arrest and take a person into custody.” Id. In other words, the plain meaning of the term “warrant of arrest” is an order authorizing law enforcement to seize and detain a person as necessary for the administration of law. Further, § 1429 states that the “warrant of arrest” must be one issued under the provisions of Chapter 12 of the Immigration and Nationality Act (where § 1429 is located), or any other federal act. Chapter 12 provides for the issuance of warrants of arrest in 8 U.S.C. § 1226(a), which states that “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” After arresting the alien, the Attorney General “may continue to detain the arrested alien” or “may release the alien” if certain criteria are met. Id. In short, a “warrant of arrest” for purposes of § 1429 is a writ issued under § 1226 authorizing law enforcement personnel to arrest and detain an alien pending the results of removal proceedings. Given this interpretation of “warrant of arrest,” we conclude it is a distinct document from a “notice to appear.” See Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008) (indicating that the two documents are distinct, and the Attorney General “may issue a warrant of arrest concurrently with the notice to appear”). “Notice to appear” is defined in 8 U.S.C. § 1229(a) as a “written notice” that is “given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any)” providing specified information, including the time and place at which removal proceedings will be held. In short, a notice to appear is akin to a summons that provides an alien with specified information regarding removal proceedings; it does not direct law enforcement to arrest and detain the alien. Further, unlike warrants of arrest, notices to appear are required in all removal proceedings. See id.) 8 C.F.R. § 1239.1(a) (“Every removal proceeding conducted under section 240 of the Act (8 U.S.C. 1229a) to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the immigration court.”). If Congress intended to preclude the government’s consideration of a naturalization petition whenever the applicant was in removal proceedings, then it would have had no need to state that § 1429 is applicable only when a removal proceeding is “pursuant to a warrant of arrest.” DHS’s interpretation would make “pursuant to a warrant of arrest” unnecessary, which “is contrary to our general ‘reluctan[ce] to treat statutory terms as surplusage.’ ” Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788, 131 S.Ct. 2188, 180 L.Ed.2d 1 (2011) (alteration in original) (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). The government argues that the phrase “warrant of arrest” is ambiguous because “there is no universal definition of the term ‘arrest.’ ” In making this argument, the government relies on our previous decision in United States v. Leal-Felix, 665 F.3d 1037 (9th Cir. 2011) (en banc). We reject this argument. Leal-Felix required us to interpret § 4A1.2 of the U.S. Sentencing Guidelines, which provides that “[p]rior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense),” but “[i]f there is no intervening arrest, prior sentences are counted separately” with certain exceptions. United States Sentencing Guidelines Manual § 4A1.2(a)(2) (U.S. Sentencing Comm’n 2016). The defendant in Leal-Fe-lix argued that his presentence report erred by counting his two citations for driving with a suspended license as two separate offenses even though there was no “intervening arrest” because he had been cited, not arrested. Leal-Felix, 665 F.3d at 1040-41. We agreed, explaining that “[ajrrest is commonly used as it is defined: ‘the taking or detainment (of a person) in custody by authority of law; legal restraint of the person; custody; imprisonment.’ ” Id. at 1041 (quoting Web ster’s Third New International Dictionary 121 (1993)). We noted that “this common understanding creates a clear and usable definition,” but “is not necessarily controlling in statutory construction” because the “[interpretation of a word or phrase [in a statute] depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Id. at 1041-42 (second alteration in original) (citations omitted). Using the tools of statutory construction, we interpreted “arrest” as requiring “that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient.” Id. at 1038-39. We noted that “[a] formal arrest may be indicated by .informing = the' suspect that he is under arrest, transporting the suspect to the police station, and/or booking the suspect into jail.” Id. at 1041 (footnotes omitted). Leal-Felix⅛ analysis of “arrest” for purposes of the Sentencing Guidelines is consistent with our interpretation here. As in Leal-Felix, we have concluded that the common’meaning of the word “arrest” does not include merely issuing a citation, but requires a “formal arrest” that involves taking a suspect into custody. See id. Moreover, as noted in Leal-Felix, statutory interpretation always “depends upon reading the whole statutory text, considering the purpose and context of the statute.” Id. at 1042 (quoting Dolan v. U.S. Postal Serv, 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006)). Here, when read in context, a “warrant of arrest” cannot mean a “notice to appear.” See supra at 1165 - 67. Because we determine that Congress clearly defined “warrant of arrest” as a writ that issues to arrest and detain an alien, and is not the same as a notice to appear, we disagree with the Seventh Circuit’s decision in Kleñe. Klene did not use the tools of statutory interpretation to determine whether “warrant of arrest” has an unambiguous meaning in the context of § 1429. 697 F.3d at 670. . Nor did it consider whether a warrant of arrest “issued under the provisions of this- chapter or any other Act” included arresting and detaining an alien. Id. Rather Klene merely stated, without citation or reasoning, that the word arrest “does not imply custody even in police parlance (full custodial arrests are a subset of all arrests).” Id. Because our analysis compels a different conclusion, we reject Klene’s acceptance of DHS’s interpretation in § 318.1. Although the Yiths received a notice to appear, they were not subject to “a warrant of arrest issued under the provisions” of Chapter 12 of the INA. Accordingly, their removal proceedings were not pursuant to such a warrant of arrest, and this portion of § 1429 was inapplicable to their case. IV. The district, court erred in dismissing the Yiths’ complaint for failure to state a claim under the authority of §■ 1429. By its terms,- § 1429 precludes only the executive branch from considering an applicant’s naturalization application, and only when there is pending against the applicant a removal proceeding pursuant to a warrant of arrest. Because the district court is not the executive branch and there was no pending removal proceeding pursuant to a warrant of arrest, § 1429 was not applicable. We reverse the district court and remand for further proceedings consistent with this opinion. REVERSED and REMANDED, . In full, 8 U.S.C. § 1421(c) reads: A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application. .In full, 8 U.S.C. § 1429 reads: -Except as otherwise provided in this sub-chapter, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter. The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof he shall be entitled to the production of his immigrant visa, if any, or of other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry, in the custody of the Service. Notwithstanding the provisions of section 405(b), and except as provided in sections 1439- and 1440 of this title no person shall be naturalized against whom there is outstanding a final finding of de-portability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no application for naturalization shall be considered by the Attorney General if there is pending against the. applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; Provided, That the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this chapter, shall not be deemed binding in any way upon the Attorney General with respect to the question of whether such person has established his eligibility for naturalization as required by this subchapter. . The government does not renew this argument on appeal. . The government does not argue that § 1429 may refer to a warrant of arrest issued under any other provision in Chapter 12 or any other federal act. . DHS has likewise interpreted a "warrant of arrest” as distinct from a "notice to appear” in regulations other than § 318.1. See 8 C.F.R. § 236.2(a) ("[T]he notice to appear, and the warrant of arrest, if issued, shall be served in the manner prescribed....”) (emphasis added); id. § 236.1(b) ("At the time of issuance of the notice to appear, or at any time thereafter and up to the time removal proceedings are completed, the respondent may be arrested and taken into custody under the authority of Form 1-200, Warrant of Arrest.”) (emphasis added); id.% 238.1(g) (same). Indeed, DHS's Form 1-200, entitled "Warrant of Arrest, United States Department of Homeland Security,” is distinct from Form 1-862, entitled "Notice to Appear, United States Department of Homeland Security.” Form 1-200 even identifies "the pendency of ongoing removal proceedings” as sufficient probable cause to arrest an alien, further showing that the forms are not equivalent. . In light of this decision, we need not address the Yiths’ arguments that the district court abused its discretion by denying thém leave to amend their complaint and violated their procedural due process rights by not holding oral argument. BATES, Senior District Judge, concurring in part and concurring in the judgment: , I agree that 8 TJ.S.C. § 1429 does not apply to -the Yiths because their removal proceedings were not pursuant to a warrant of arrest. Because this is a sufficient ground to decide the case—rand, indeed, is a conclusion that § 1429 has no application here—I would reverse on this basis alone and do not .think it' necessary to decide whether § 1429—if it did apply—would preclude the district court from considering a naturalization application under 8 U.S.C. § 1447(b).. PDK Labs., Inc. v. DEA, 862 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (“[I]f it is not necessary to decide more, it is necessary not to decide more....”).