Opinion
Case No. 14-cv-05191-TEH
01-20-2016
SHAWN HEATON, et al., Plaintiffs, v. SOCIAL FINANCE, INC., et al., Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR CERTIFICATION UNDER 28 USC § 1292(B)
This matter came before the Court on January 11, 2016 for oral argument on Defendants' motion to certify for interlocutory appeal the Court's November 4, 2015 order denying Defendants' motion for summary judgment. Having carefully considered the parties' written and oral arguments, the Court now DENIES Defendants' motion for the reasons set forth below.
BACKGROUND
Defendant SoFi and its wholly-owned subsidiary SoFi Lending (collectively "Defendants") seek review of the Court's November 4, 2015 order denying Defendants' motion for summary judgment by way of a discretionary interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Plaintiffs oppose the motion, arguing that an interlocutory appeal is not warranted.
Plaintiffs Shawn Heaton ("Heaton") and Anna Ahlborn ("Ahlborn") (collectively "Plaintiffs") each had hard inquiries performed on their credit as a result of activity on Defendants' website. Plaintiffs contend that Defendants performed the hard inquiries without a permissible purpose; therefore Defendants violated the Fair Credit Reporting Act ("FCRA"), California Consumer Credit Reporting Agencies Act ("CCRAA"), and California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. ("UCL").
In the Court's November 4, 2015 order ("MSJ Order"), the Court denied Defendants' motion for summary judgment, finding that there were triable issues of material fact as to whether Defendants violated the applicable statutes. (Docket No. 94-1). Notably, the Court rejected Defendants contention that there could be no willful violation of the FCRA when Defendants' interpretation of a "permissible purpose" under the FCRA for performing hard inquiries was not objectively unreasonable, because the Court concluded that Defendants had offered no evidence of their actual interpretation of the statute. Id. at 10-12. The Court also rejected Defendants' argument that Plaintiffs had not demonstrated a loss of money or property to constitute standing under the UCL, finding that in cases such as this one, a decrease in credit score can be sufficient for UCL standing. Id. at 12-13.
The Court also denied Defendants' motion for leave to file a motion for reconsideration, but amended its order to ensure that all of Defendants' arguments were addressed sufficiently. (Docket No. 94.) Defendants now request that the Court certify the MSJ Order for interlocutory appeal. (Docket No. 96.)
LEGAL STANDARD
Generally, the United States Courts of Appeals have jurisdiction over appeals from "final decisions of the district courts." 28 U.S.C. § 1291. However, 28 U.S.C. § 1292(b) ("Section 1292(b)") is an exception to the final judgment rule, where "litigants can bring an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals." In re Cement Antitrust Litig. (MDL No. 296), 673 F.3d 1020, 1025-26 (9th Cir. 1982) (en banc).
A party may bring an interlocutory appeal of a district court's order where the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and [] an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). "[T]his section [is] to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." Cement Antitrust Litig., 673 F.3d at 1026; see also United States v. Woodbury, 263 F.2d 784, 788 (9th Cir. 1959) ("[I]n passing [§1292(b)] Congress did not intend that the courts abandon the final judgment doctrine and embrace the principle of piecemeal appeals.").
"The decision to certify an order for interlocutory appeal is committed to the sound discretion of the district court." United States v. Tenet Healthcare Corp., 2004 WL 3030121, at *1 (C.D.Cal. Dec. 27, 2004) (citing Swint v. Chambers County Comm'n, 514 U.S. 35, 47, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). As such, "[e]ven when all three statutory criteria are satisfied, district court judges have 'unfettered discretion' to deny certification." Brizzee v. Fred Meyer Stores, Inc., 2008 WL 426510, at *3 (D.Or. Feb. 13, 2008) (quoting Ryan, Beck & Co., LLC v. Fakih, 275 F.Supp.2d 393, 396 (E.D.N.Y. 2003)). By the same token, "[e]ven where the district court makes such a certification, the court of appeals nevertheless has discretion to reject the interlocutory appeal, and does so quite frequently." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002) (citation omitted).
Defendants, as the party seeking certification, have the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment. See Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 1067 (D. Ariz. 2015).
DISCUSSION
Defendants identify two questions of law that they wish to certify:
(1) Whether a defendant must provide evidence of its express, pre-litigation interpretation of the FCRA before a court is obliged to conduct the "objectively reasonable" analysis announced in Safeco with respect to claims for willful violation of the FCRA; and/or
(2) Whether a diminished credit score alone constitutes a loss of "money or property" under California's Unfair Competition Law.
Courts must consider three factors when determining whether an order is suitable for interlocutory review: (1) whether the order involves a controlling question of law; (2) whether there is a substantial ground for difference of opinion; and (3) whether immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). "All three requirements must be met for certification to issue[]" under Section 1292(b). Kight v. Eskanos & Adler, P.C., No. 05-CV-1999-L, 2007 WL 173825, at *2 (S.D. Cal. Jan. 8, 2007) (citation omitted). I. FIRST GROUND: Whether a defendant must provide evidence of its express, pre-litigation interpretation of the FCRA before a court is obliged to conduct the "objectively unreasonable" analysis announced in Safeco with respect to claims for willful violations of the FCRA
The parties and the Court are familiar with Safeco Insurance Company v. Burr. 551 U.S. 47 (2007). The Safeco Court held that, as used in the FCRA, the term "willful" included objectively reckless violations, and that a company "does not act in reckless disregard of [FCRA] unless the action is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless." Id. at 69. Applying this standard, the Court held that the defendants did not "willfully" violate the FCRA where their "reading of the statute, albeit erroneous, was not objectively unreasonable . . . and so [fell] well short of raising the 'unjustifiably high risk' of violating the statute necessary for reckless liability." Id. at 69-70.
Notably, the Court in Safeco rejected the plaintiffs' argument that evidence of subjective bad faith must be considered in order to find a "willful" violation. Id. at 70 n.20. The Court explained, "Where, as here, the statutory text and relevant court and agency guidance allow for more than one reasonable interpretation, it would defy history and current thinking to treat a defendant who merely adopts one such interpretation as a knowing or reckless violator." Id.
Courts in this district have applied Safeco to grant both motions to dismiss and motions for summary judgment where a defendant's statutory interpretation was not objectively unreasonable. E.g., Andrade v. Desert Champions, LLC, No. 15-CV-1394, 2015 WL 4150695, at *4 (N.D. Cal. July 9, 2015); Banga v. First USA, N.A., 29 F. Supp. 3d 1270, 1278 (N.D. Cal. Mar. 20, 2014); but see Dunford v. Am. DataBank, LLC, 64 F. Supp. 3d 1378, 1394-95 (N.D. Cal. Aug. 12, 2014) (considering, but denying, motion for summary judgment, where factual disputes prevented court from determining that policy was not objectively unreasonable). Here, in its order denying summary judgment, the Court did not decide whether the interpretation was objectively unreasonable, but rather focused on whether Defendants could use their purported interpretation at all without providing evidence that it was their actual interpretation. MSJ Order at 11. The Court found that material facts were disputed as to whether Plaintiffs "requested credit" such that Defendants reasonably believed there was a permissible purpose for performing hard inquiries; thus, summary judgment was not warranted. Id.; see, e.g., Smith v. HireRight Sols., Inc., 711 F. Supp. 2d 426, 434 (E.D. Pa. 2010) ([The Safeco Court] was operating under a summary judgment standard of review. It found no genuine issue of material fact as to whether the defendant's interpretation of the statute - albeit erroneous - was objectively unreasonable.").
A. The Safeco question is not a controlling question of law.
Under § 1292(b), the first factor the Court must consider is whether the order to be appealed involves "a controlling question of law." 28 U.S.C. § 1292(b). Congress did not specify what it meant by "controlling" for purposes of Section 1292(b). Cement Antitrust Litig., 673 F.3d at 1026. "[A]ll that must be shown in order for a question to be 'controlling' is that resolution of the issue on appeal could materially affect the outcome of litigation in the district court." Id. A "question of law" is interpreted as being a pure legal question, such that the court of appeals could decide the question "quickly and cleanly without having to study the record." Matsunoki Grp., Inc. v. Timberwork Or., Inc., No. 08-CV-04078, 2011 WL 940218, *2 (N.D. Cal. Feb. 18, 2011) (citing Ahrenholz v. Bd. Trs. of Univ. of Ill., 219 F.3d 674, 676-77 (7th Cir. 2000).
Questions of law that are considered "controlling" are usually fundamental issues, such as who are proper parties, whether a court has jurisdiction, and whether state or federal law should apply. Cement Antitrust Litig., 673 F.2d at 1026 (citing Woodbury, 263 F.2d at 787). In Rollins v. Dignity Health, this Court found it convincing that Defendants' estimated costs that would be incurred to respond to "currently pending and expected discovery requests" and motions were upwards of $500,000 - costs that would not be incurred if the Ninth Circuit reversed the order. No. 13-CV-1450, 2014 WL 6693891, at *2 (N.D. Cal. Nov. 26, 2014). Here, Defendants provided no such figures.
Defendants appear certain that even if their purported interpretation were established, it would be considered objectively reasonable. However, while the Court did reject Defendants' contention that the inquiry would mirror a qualified immunity analysis (that absent any clear precedent from the Supreme Court or Ninth Circuit, it could not be objectively unreasonable), it did not reach the objective reasonableness of the purported interpretation. Even if the Ninth Circuit on interlocutory appeal were to find for Defendants on the issue of whether Safeco allows their inference to be considered as their interpretation of the FCRA, the objective reasonableness would still remain to be determined - either by this Court on remand or by the Ninth Circuit itself. Thus, the Ninth Circuit finding in favor of Defendants on this legal question would not, as Defendants contend, necessarily be dispositive.
At oral argument, defense counsel asserted that the Ninth Circuit would determine this issue sua sponte, as the Supreme Court did in Safeco itself, and the Seventh Circuit did in Van Straaten v. Shell Oil Prods., Co., 678 F.3d 486 (7th Cir. 2012). However, the Court is not convinced that the Ninth Circuit would do so, as it may find (as this Court did in the MSJ Order), that disputed facts remained as to the basis for Defendants' purported interpretation. See Dunford, 64 F. Supp. 3d at 1394 (summary judgment inappropriate when factual disputes remained as to actual interpretation and surrounding circumstances).
Plaintiffs also contend that even if either court found Defendants' purported interpretation to be objectively reasonable under Safeco, such a finding would not be dispositive because a "willful" violation of the FCRA encompasses both knowing and reckless violations; Safeco only dealt with reckless. Opp'n at 3. The Court need not reach this argument, as it has already determined that the question is not controlling; however, the argument bolsters the contention that further briefing and/or argument would be necessary before the Court were to dispose of the FCRA claims.
For these reasons, Defendants have not met the burden of showing that the issue is controlling such that it constitutes an "exceptional situation" warranting interlocutory review. While the absence of one factor is sufficient to deny certification under Section 1292(b), the Court will address the remaining factors for completeness.
B. There are substantial grounds for difference of opinion on the Safeco question.
The second Section 1292(b) factor is whether there are substantial grounds for difference of opinion on the question at issue. Courts traditionally will find this factor exists where "the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented." 3 Federal Procedure, Lawyers Edition § 3:212 (2010) (footnotes omitted). "However, just because a court is the first to rule on a particular question or just because counsel contends that one precedent rather than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal.'" Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir. 2010) (internal quotation marks and citation omitted).
"One of the best indications that there are substantial grounds for disagreement on a question of law is that other courts have, in fact, disagreed." Rollins, 2014 WL 6693891, at *3 (citing Couch, 611 F.3d at 633); see also Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.2011) ("[W]hen novel legal issues are presented, on which fair-minded jurists might reach contradictory conclusions, a novel issue may be certified for interlocutory appeal."); AsIs Internet Servs. v. Active Response Grp., No. 07-cv-06211, 2008 WL 4279695, at *3 (N.D.Cal. Sept. 16, 2008) (substantial ground for difference of opinion existed where there was an "intra-district split" on a novel legal issue).
Here, there is a clear split of authority. Some courts find that the "objectively reasonable" determination cannot be made without knowing what the interpretation or reading of the statute actually was. E.g. Gillespie v. Equifax Info. Servs., No. 05-CV-0138, 2008 WL 4316950, at *7 (N.D. Ill. Sept. 15, 2008) (denying motion for summary judgment where, among other reasons, defendant had not offered evidence that it "actually adopted a particular construction" of the relevant statutory section); Dunford, 64 F. Supp. 3d at 1394 (defendants cannot use attorney-client privilege as a sword and a shield, saying that they used an interpretation that was objectively reasonable, but not showing evidence of the interpretation because it is attorney work product). Other courts expressly foreclose requiring a pre-litigation interpretation. E.g., Long v. Tommy Hilfiger U.S.A., 671 F.3d 371, 377 (3d Cir. 2012) (defendant did not need to actually interpret the FCRA prior to commencement of a lawsuit in order to be sheltered by the "safe harbor" of Safeco); Fuges v. Sw. Fin. Svcs., Ltd., 707 F.3d 241, 250-51 (3d Cir. 2012) (argument that a defendant should not be allowed to seize upon a post hoc objectively reasonable interpretation to avoid liability would be an "assertion about the defendant's intent or bad faith," which was "expressly foreclosed by Safeco").
For this reason, the Court finds that Defendants have sufficiently shown that there is a substantial ground for difference of opinion on the Safeco question. Defendants have identified a split of authority, and that other circuit courts have decided the issue contrary to this Court's decision. Cf. Union County v. Piper Jaffray & Co., 525 F.3d 643, 647 (8th Cir. 2008) ("'While identification of a sufficient number of conflicting and contradictory opinions would provide substantial ground for disagreement,' the County offered no such Iowa opinions, statutes or rules, and 'a dearth of cases' does not constitute 'substantial ground for difference of opinion.'") (quoting White v. Nix, 43 F.3d 374, 378 (8th Cir.1994)). /// ///
C. Certifying an interlocutory appeal would not materially advance the ultimate termination of litigation.
The third factor for the Court to consider is whether an interlocutory appeal would materially advance the termination of the litigation. "Given the standard for a 'controlling question of law' ... the considerations of [the third] factor overlap significantly with the first one." Rollins, 2014 WL 6693891, at *4. The third factor is directed to the very purpose of § 1292(b) as an exception to the final judgment rule: to "facilitate disposition of the action by getting a final decision on a controlling legal issue sooner, rather than later [in order to] save the courts and the litigants unnecessary trouble and expense." Leite v. Crane Co., No. 11-CV-00636, 2012 WL 1982535, at *6-7 (D. Haw. May 31, 2012) (citing United States v. Adam Bros. Farming, Inc., 369 F. Supp. 2d 1180, 1182 (C.D. Cal. 2004)).
As discussed with regard to the first factor, the Safeco issue is not necessarily dispositive, and even if decided in Defendants' favor, would still require a determination as to objective reasonableness. See In re Related Asbestos Cases, 23 B.R. 523, 532 (N.D. Cal. 1982) ("Certification under 1292(b) is intended to be used in the few situations where an immediate appeal ... would more speedily terminate the litigation.") (internal quotation marks and citation omitted). Defendants contend, and the Court agrees, that if the Ninth Circuit concluded that Defendants' assertion of their interpretation was sufficient without further evidence and either this Court or the Ninth Circuit found that the purported interpretation was objectively reasonable, there could be no willful violation of the FCRA or CCRAA. It therefore would follow that the only claims that would remain in this case would be the FCRA false pretenses claim and UCL (fraudulent prong) claims, which would greatly shorten the discovery and trial process.
The Court notes that having an objectively reasonable interpretation under Safeco would not absolve Defendants of liability under 15 U.S.C. § 1681q, as Safeco did not involve a false pretenses claim. The Court finds untenable the argument that merely articulating a post hoc objectively unreasonable interpretation could excuse Defendants in the face of evidence that they knowingly and willfully obtained information from Plaintiffs under false pretenses.
However, the Ninth Circuit has concluded that time saving is not enough to meet the burden of Section 1292(b) certification, because it "would not materially affect the outcome of [the] litigation, but only its duration." Cement Antitrust Litig., 673 F.2d at 1027; see also Rollins, 2014 WL 1048637, at *2. Furthermore, it is unclear how much time would necessarily be saved by an interlocutory appeal. If the Court certified the interlocutory appeal and stayed the proceedings, the trial would be delayed for months while the Court waited for a ruling. Even if the Ninth Circuit ruled in favor of the Defendants, this matter would still have to be tried, experts would need to be deposed, and the litigation would proceed in a substantially similar fashion.
Cases where courts find the third Section 1292(b) factor often are large, multidistrict litigation cases where Ninth Circuit review and resolution of an issue would clarify the issue for not only the instant case, but also other cases already pending before the Court or in other courts. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990) ("[T]he impact that an appeal will have on other cases is a factor that we may take into account in deciding whether to accept an appeal that has been properly certified by the district court."); Al Maqaleh v. Gates, 620 F.Supp.2d 51, 55 (D.D.C. 2009) ("[I]nterlocutory appeal is warranted where the jurisdictional determination will impact numerous cases."); In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 399 F.Supp.2d 320, 324 (S.D.N.Y. 2005) (stating that courts consider, in part, whether the certified issue has precedential value for a large number of cases); Krangel v. Crown, 791 F. Supp. 1436, 1449 (S.D. Cal. 1992) ("Certification for appeal may also materially advance the conclusion of other cases involving this same legal issue."). Here, Defendants made no such showing that other cases would be affected by review of this issue.
For these reasons, the Court finds that Defendants have not met their burden of showing that certification of interlocutory appeal on the Safeco question would materially advance the termination of this litigation. /// ///
II. SECOND GROUND: Whether a diminished credit score alone constitutes loss of "money or property" under California's Unfair Competition Law.
California's Unfair Competition Law prohibits "unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code § 17200. Standing under California's UCL is "substantially narrower" than Article III standing: the plaintiff must demonstrate a loss of money or property. Kwikset Corp. v. Super. Ct., 246 P.3d 877, 885-86 (Cal. 2011). In its November 4 order, the Court found:
It is true that hypothetical and non-particularized injury is insufficient for UCL standing, and that in some cases, a drop in credit score is too hypothetical. See Birdsong v. Apple, Inc., 590 F.3d 955, 960-61 (9th Cir. 2009). However, the majority of courts in this Circuit have found that in some cases a decreased credit score can be sufficient for UCL standing, and the Ninth Circuit has cited this with approval. Rubio v. Capital One Bank, 613 F.3d 1195, 1204 (9th Cir. 2010).MSJ Order at 13. As with the Safeco question above, the Court will address the three Section 1292(b) factors in turn.
E.g. White v. Trans Union, LLC, 462 F. Supp. 2d 1079, 1084 (C.D. Cal. 2006); Venugopal v. Digital Fed. Credit Union, No. 12-6067-ED, 2013 WL 1283436, at *5 (N.D. Cal. Mar. 27, 2013); Aho v. AmeriCredit Fin. Servs., Inc., No. 10-CV-1373, 2011 WL 2292810, at *2 (S.D. Cal. June 9, 2011).
While the Rubio case did not have analogous facts (it involved a loss of a credit account, not a drop in credit score), it cites with approval to White v. Trans Union LLC, which said "[t]he perpetration of Credit Reports containing inaccurate erroneous information regarding "due and owing" debts is sufficient injury to grant Plaintiffs standing." 462 F. Supp. 2d at 1084. --------
A. The UCL standing question is not a controlling question of law.
Here, as with the first issue presented by Defendants, the question of law is not controlling. While it is true that a finding for Defendants on this issue would dispose of the UCL claims at least as to Plaintiff Ahlborn (because Ahlborn did not allege any injury besides the drop in credit score in the Second Amended Complaint), such a decision would only dispose of one claim, not the entire suit. As the resolution of this claim on appeal would have some impact on the case but would not be dispositive, the proposed appeal does not concern a controlling issue of law. See Mateo v. M/S KISO, 805 F. Supp. 792, 800 (N.D. Cal. 1992). Defendants do not identify any exceptional circumstances that would convince this Court that the issue is controlling. Rather, Defendants claim that resolution of this on interlocutory appeal will "simplify" litigation. Section 1292(b) was not intended "merely to provide review of difficult rulings in hard cases." U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). For these reasons, the Court finds that the UCL standing issue is not a controlling question of law.
B. There are substantial grounds for difference of opinion on the UCL standing issue.
"[A] party's strong disagreement with the Court's ruling is not sufficient for there to be a substantial ground for difference. That settled law might be applied differently does not establish a substantial ground for difference of opinion." Couch, 611 F.3d at 633 (internal marks omitted) (citing Bush v. Adams, 629 F.Supp.2d 468, 475 (E.D. Pa. 2009); see also Hansen v. Schubert, 459 F.Supp.2d 973, 1000 (E.D. Cal. 2006); Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 233 F.Supp.2d 16, 19-20 (D.D.C. 2002)).
Similar to the Safeco issue above, there is a split among courts as to whether a mere drop in credit score is sufficient to establish standing under the UCL. However, Defendants' showing on this factor is weaker here than their showing on the Safeco issue, because the Ninth Circuit in Rubio cited with approval the idea that in some cases a decreased score can be sufficient for UCL standing. 613 F.3d at 1204. Furthermore, the Court must keep in mind that interlocutory appeal is reserved for exceptional circumstances. Deciding an issue on either side of a split of authority is precisely the function of the district courts. For these reasons, the Court finds that Defendants have not met their burden of showing substantial grounds for difference of opinion such that interlocutory review would be necessary.
C. Certifying an interlocutory appeal would not materially advance the ultimate termination of litigation.
"Where a substantial amount of litigation remains in the case regardless of the correctness of the Court's ruling ... arguments that interlocutory appeal would advance the resolution of the litigation are unpersuasive." Lillehagen v. Alorica, No. 13-CV-0092, 2014 WL 2009031, at *7 (C.D. Cal. May 15, 2014) (quoting Friedman v. 24 Hour Fitness USA, Inc., No. 06-CV-6282, 2009 WL 545783, at *2 (C.D. Cal. Mar. 3, 2009)) (internal marks and other citation omitted). Because the Court resolved the question at issue in this motion, finding that a drop in credit score alone is sufficient in the instant case, the litigation is now moving forward. Plaintiffs plan to move for class certification, and the Court has set a schedule for expert discovery relating to the class certification motion. (Docket No. 95). With this plan in place for these remaining matters, an interlocutory appeal of the Court's order - with the unavoidable delay in having to stay matters pending the appeal - would not materially advance the ultimate termination of this litigation. For these reasons, the Court finds that certifying the UCL standing issue for interlocutory appeal would not materially advance the ultimate termination of litigation.
CONCLUSION
Considering Defendants' motion according to the requirements of Section 1292(b), for the reasons stated above, the Court finds that Defendants have failed to demonstrate an exceptional need for interlocutory appeal of this Court's order denying summary judgment. Accordingly, the motion for certification of an interlocutory appeal is DENIED.
IT IS SO ORDERED.
Dated: 01/20/16
/s/_________
THELTON E. HENDERSON
United States District Judge