Opinion
NO. 8:23-CV-0252
2023-10-04
Robert L. PALMER and Phillip M. Kelly, as Chapter 7 Bankruptcy Trustee in the Matter of Robert L. Palmer and Tamara C. Palmer, Plaintiffs, v. UNION PACIFIC RAILROAD CO., Defendant.
Jacob Harksen, James H. Kaster, Lucas J. Kaster, Charles A. Delbridge, Nichols, Kaster Law Firm, Minneapolis, MN, for Plaintiff Robert L. Palmer. Jacob Harksen, James H. Kaster, Lucas J. Kaster, Nichols, Kaster Law Firm, Minneapolis, MN, for Plaintiff Phillip M. Kelly. Addison C. McCauley, Allison D. Balus, Scott P. Moore, Baird, Holm Law Firm, Omaha, NE, for Defendant.
Jacob Harksen, James H. Kaster, Lucas J. Kaster, Charles A. Delbridge, Nichols, Kaster Law Firm, Minneapolis, MN, for Plaintiff Robert L. Palmer. Jacob Harksen, James H. Kaster, Lucas J. Kaster, Nichols, Kaster Law Firm, Minneapolis, MN, for Plaintiff Phillip M. Kelly. Addison C. McCauley, Allison D. Balus, Scott P. Moore, Baird, Holm Law Firm, Omaha, NE, for Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS
Brian C. Buescher, United States District Judge
Plaintiffs Robert Palmer and Phillip Kelly, as Chapter 7 Bankruptcy Trustee on behalf of the bankruptcy estate of Robert L. Palmer (Palmer), have sued Palmer's former employer defendant Union Pacific Railroad Company under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Filing 1. Palmer purports to be a former member of the now-decertified Harris class that sued Union Pacific for violations under the ADA. Filing 1 at 14 (¶ 66); Harris v. Union Pac. R.R. Co., 953 F.3d 1030 (8th Cir. 2020). Palmer brings two claims under the ADA against Union Pacific alleging disability discrimination due to disparate treatment. Filing 1 at 14-16 (¶¶ 69-82). Union Pacific seeks to dismiss the Complaint, arguing that Palmer's claim is time-barred. Filing 6. For the reasons stated herein, the Court grants Union Pacific's Motion to Dismiss.
I. INTRODUCTION
A. Factual Background
The Court considers the following nonconclusory allegations as true for the purposes of ruling on this motion. See Bauer v. AGA Serv. Co., 25 F.4th 587, 589 (8th Cir. 2022) (quoting Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 (8th Cir. 2021)). Robert Palmer worked for Union Pacific between March 23, 1998, and November 11, 2013, as a Trainman/Conductor. Filing 1 at 9-10 (¶¶ 37-38, 42). Palmer has had diabetes since childhood and developed the eye condition "diabetic retinopathy" during his employment with Pacific Union. Filing 1 at 9 (¶ 39). In or around September 2011, Palmer underwent surgery to correct blurred vision caused by his eye condition then returned to work. Filing 1 at 9 (¶ 40). On or around November 11, 2013, Palmer experienced blurred vision again, this time at work. Filing 1 at 9 (¶ 41). After Palmer reported the issue, Union Pacific removed Palmer from service and informed him that he must undergo a Fitness-for-Duty (FFD) evaluation before returning to work. Filing 1 at 9-10 (¶¶ 41-42). Union Pacific conducted Palmer's FFD evaluation and imposed permanent work restrictions on Palmer in or around February 2014. Filing 1 at 10 (¶ 45). These restrictions disqualified Palmer from continuing to work in his position with Union Pacific. Filing 1 at 10 (¶ 45). Union Pacific also "refused to transfer him to another position." Filing 1 at 11 (¶ 52). In conducting the FFD evaluation, no doctor with Union Pacific physically examined Palmer nor consulted his treating medical providers. Filing 1 at 10-11 (¶¶ 47, 49). Despite Union Pacific's contrary determination, Palmer contends he was "capable of performing [the] essential functions [of his position] with or without reasonable accommodation." Filing 1 at 10 (¶ 45). Indeed, Palmer contends he "remains capable of working in his former position . . . to this day." Filing 1 at 13 (¶ 64).
After he was disqualified from continuing to work in his position, Palmer tried to get Union Pacific to reconsider its decision. Filing 1 at 11-12 (¶¶ 51, 54). On or around May 5, 2014, Palmer submitted a letter from his treating physician that cleared him to return to work and stated that his vision was good. Filing 1 at 11 (¶ 51). On or around December 29, 2014, a doctor with Union Pacific "refused to reconsider Palmer's restrictions" or "any additional information from Palmer's treating physicians regarding the stability or prognosis of his eye condition." Filing 1 at 11 (¶ 53). In or around April 2016, Palmer again requested reconsideration. Filing 1 at 12 (¶ 54). On or around April 22, 2016, a doctor with Union Pacific "reaffirm[ed] . . . the decision to permanently restrict Palmer from working" in his previous position and "informed Palmer that Union Pacific would not reconsider his work restrictions either then or in the future." Filing 1 at 12 (¶¶ 57-58).
Palmer alleges that he experienced disability discrimination due to Union Pacific's FFD policy. Filing 1 at 14-16 (¶¶ 69-82). The FFD policy applies "to all Union Pacific employees across the country." Filing 1 at 35 (¶ 16). "Fitness for Duty" is defined in Union Pacific's Medical Rules as "[a]bility to medically and functionally (including physical, mental, and/or cognitive function) safely perform the functions of a job, with or without reasonable accommodations and meet medical standards established by regulatory agencies in accordance with federal and/or state laws." Filing 1-1 at 12. The FFD policy requires that "[i]f the employee experiences a [reportable] health event noted in Appendix B, the employee should not report for, or perform, his/her job until Fitness-for-Duty clearance has been provided for such work by [Health and Medical Services (HMS)]." Filing 1-1 at 3. "Reportable health events" include diabetes, a "seizure of any kind," heart attacks, and "[n]ew use of hearing aids." Filing 1-1 at 13 (listing categories of conditions as "Cardiovascular," "Seizure or Loss of Consciousness," "Significant Vision or Hearing Change," "Diabetes Treated with Insulin," and "Severe Sleep Apnea"). The employee must also "[p]rovid[e], upon request, information from the employees [sic] health care provider." Filing 1-1 at 3. After receiving an employee's medical records, Union Pacific's Health and Medical Services Department (HMS) "conducts a 'file review' and issues a Fitness-for-Duty determination that the employee is either fit for duty, fit for duty with restrictions, or unfit for duty." Filing 1 at 6-7 (¶ 25).
HMS relies on the Federal Motor Carrier Safety Administration ("FMCSA") 2014 Medical Examiner's Handbook to conduct FFD Evaluations, specifically "to determine which health conditions required work restrictions, which standard restrictions to impose, and how long those restrictions should remain in place." Filing 1 at 7 (¶ 28). Palmer alleges that the Handbook "did not apply to railroad workers, but instead provided non-binding guidance to FMCSA medical examiners intended for use in medical certification of drivers operating a commercial vehicle in interstate commerce." Filing 1 at 7 (¶ 30). He also alleges that, by 2015, HMS "learned" that the Handbook was "outdated" but continued to rely on it in its Medical Rules. Filing 1 at 8 (¶ 32).
B. Procedural Background
Prior to this suit, Palmer alleges that he was a member of a class action suit (Harris) against Union Pacific alleging disability discrimination under the ADA. Filing 1 at 14 (¶ 66). An Amended Complaint was filed on behalf of the class in the District Court for the Western District of Washington on February 19, 2016. Filing 1 at 13-14 (¶ 65); Harris v. Union Pacific R.R. Co., No. 16-381 (D. Neb. Feb. 19, 2016), ECF No. 20. The Amended Complaint described the class as:
Palmer was not a named plaintiff in Harris.
Individuals who were removed from service over their objection, and/or suffered another adverse employment action, during their employment with Union Pacific for reasons related to a Fitness-for-Duty evaluation at any time from 300 days before the earliest date that a named Plaintiff filed an administrative charge of discrimination to the resolution of this action.Case No. 16-381, ECF No. 20 at 17 (¶ 116). Among the many Counts asserted in the Amended Complaint were a disparate-treatment claim pursuant to 42 U.S.C. § 12112(a) and (b)(6), a disparate-impact claim pursuant to 42 U.S.C. § 12112(b)(6) and (b)(3), an unlawful-medical-inquiries claim pursuant to 42 U.S.C. § 12112(d)(4)(A), and a failure-to-accommodate claim pursuant to 42 U.S.C. § 12112(b)(5)(A). Case No. 16-381, ECF No. 20 at 21-25 (¶¶ 136-163). The case was then transferred to this Court. Case No. 16-381, ECF No. 51 at 3.
The plaintiffs in Harris brought other claims, see Case No. 16-381, ECF No. 20, but only their ADA claims are of interest in Palmer's lawsuit.
The Harris plaintiffs sought class certification for their disparate-treatment claim but not on their disparate-impact, unlawful-medical-inquiries, or failure-to-accommodate claims before a different judge of this Court. Case No. 16-381, ECF No. 241 at 22. When seeking certification, the plaintiffs described the class as "[a]ll individuals who have been or will be subject to a fitness-for-duty examination as a result of a reportable health event at any time from September 18, 2014 until the final resolution of this action." Case No. 16-381, ECF No. 240 at 1. The class was certified in February 2019. See Harris v. Union Pac. R.R. Co., 2020 WL 4504392, at *1 (D. Neb. Aug. 5, 2020); Harris, No. 16-381, ECF No. 307. The Eighth Circuit Court of Appeals reversed and decertified the class on March 24, 2020. Harris, 953 F.3d 1030. Palmer filed a charge of discrimination with the EEOC on April 24, 2020, and the EEOC issued a right-to-sue letter on June 5, 2023. Filing 1 at 14 (¶ 68). Palmer filed a Complaint against Union Pacific with the Court on May 23, 2022. Filing 1.
Palmer alleges two counts of disability discrimination on disparate-treatment theories under the ADA. Count I asserts a claim under 42 U.S.C. § 12112(a), alleging that "Union Pacific discriminated against Palmer on the basis of disability by, among other things, removing him from service because of a disability." Filing I at 15. Count II asserts a claim under 42 U.S.C. § 12112(b)(6), alleging:
Union Pacific discriminated against Palmer on the basis of disability by using facially discriminatory qualification standards, employment tests, and/or other selection criteria, as part of its Fitness-For-Duty program and related policies, that are intended to screen out individuals with disabilities, and which did screen out Palmer.Filing 1 at 16. In his prayer for relief, Palmer asks for monetary damages and other forms of relief, including an injunction to enjoin Union Pacific's policies. Filing 1 at 16-17.
On June 15, 2023, Union Pacific filed its Motion to Dismiss. Filing 6. Union Pacific seeks to dismiss the entirety of Palmer's Complaint as time-barred "because Palmer failed to file his administrative charge with the U.S. Equal Opportunity Commission within 300 days of the alleged discriminatory acts that give rise to his claim." Filing 6.
II. ANALYSIS
A. Applicable Standards
The typical grounds for Rule 12(b)(6) motions are the insufficiency of the factual allegations offered to state claims. To state a claim, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Nevertheless, " 'threadbare recitals of the elements of a cause of action' cannot survive a [Rule 12(b)(6)] motion to dismiss." Du Bois v. Bd. of Regents of Univ. of Minnesota, 987 F.3d 1199, 1205 (8th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Instead, as the Eighth Circuit Court of Appeals has explained, "A claim survives a Rule 12(b)(6) motion to dismiss only if the complaint's nonconclusory allegations, accepted as true, make it not just 'conceivable' but 'plausible' that the defendant is liable." Mitchell v. Kirchmeier, 28 F.4th 888, 895 (8th Cir. 2022) (quoting Iqbal, 556 U.S. at 680-83, 129 S.Ct. 1937). To put it another way, a court "must determine whether a plaintiff's complaint 'contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.' " Far E. Aluminium Works Co. v. Viracon, Inc., 27 F.4th 1361, 1364 (8th Cir. 2022) (quoting Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)). Thus, "[a] claim is plausible when 'the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Christopherson v. Bushner, 33 F.4th 495, 499 (8th Cir. 2022) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). In contrast, " '[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility." Id. (internal quotation marks and citations omitted). The Eighth Circuit Court of Appeals has cautioned that "the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Braden, 588 F.3d at 594.
In ruling on a Rule 12(b)(6) motion, a court must "accept 'the facts alleged in the complaint as true and draw[ ] all reasonable inferences in favor of the nonmovant.' " Bauer, 25 F.4th at 589 (citation omitted). On the other hand, "[m]ere conclusory statements and factual allegations lacking enough specificity to raise a right to relief above the speculative level are insufficient to support a reasonable inference that the defendant is liable." Richardson v. BNSF Ry. Co., 2 F.4th 1063, 1068 (8th Cir. 2021) (internal quotation marks and citations omitted). A court also need not accept a pleader's "legal conclusions drawn from the facts." Knowles v. TD Ameritrade Holding Corp., 2 F.4th 751, 755 (8th Cir. 2021).
Rule 12(b)(6) also permits dismissal when a claim is not cognizable under applicable law. See, e.g., Couzens v. Donohue, 854 F.3d 508, 517 (8th Cir. 2017) (dismissal was appropriate where Missouri did not recognize a claim for false light invasion of privacy); Thomas v. Bd. of Regents of Univ. of Nebraska, No. 4:20CV3081, 2022 WL 1491102, at *18 (D. Neb. May 11, 2022) (agreeing with defendant that the plaintiffs had failed to state a claim, because a disparate-impact claim is not cognizable under the Equal Protection Clause); Freeney v. Galvin, No. 8:19CV557, 2020 WL 229996, at *2 (D. Neb. Jan. 15, 2020) (finding the plaintiff failed to state a § 1983 claim against the manager of his private place of employment because such a claim is not cognizable where a private person is not a state actor or engaged in joint action with the state or its agents). In such cases, the plaintiff failed to state a claim that was legally cognizable as opposed to factually plausible.
B. The Timing of Palmer's Claims under the ADA
Palmer contends that his claims accrued on December 29, 2014, when Union Pacific refused to reconsider his restrictions, which made him a putative Harris class member. Filing 8 at 1; Filing 1 at 11 (¶ 53). Accordingly, Palmer contends that the statute of limitations on his ADA claims tolled between September 18, 2014—"300 days before the earliest date that a named Plaintiff filed an administrative charge of discrimination to the resolution of this action"—and March 24, 2020, when "the Eight Circuit Court of Appeals decertified the Harris certified class." Filing 8 at 3-4. In other words, Palmer contends that the statute of limitations only began to run on March 24, 2020, and that he "filed his charge of discrimination just thirty-one days later," making his claim timely. Filing 8 at 8. Union Pacific argues that Palmer's claims accrued in February 2014 when Union Pacific imposed permanent work restrictions on him. Filing 11 at 1; Filing 1 at 10 (¶ 45). Accordingly, Union Pacific contends that Palmer was not a member of the putative Harris class and that his claims never tolled. Filing 11 at 4. Therefore, Union Pacific argues that Carlton's ADA claims are time-barred. Filing 11 at 4.
To determine whether claims under the ADA are time-barred, the Court must determine (1) the date that Palmer's claims accrued, (2) whether American Pipe tolling applies, and (3) whether Carlton filed his charge of discrimination within the statute of limitations.
1. The Date of Accrual for Palmer's ADA Claims
Union Pacific argues that Palmer's claims accrued in February 2014 when Union Pacific imposed permanent work restrictions on him. Filing 11 at 1-4; Filing 1 at 10 (¶ 45). Union Pacific contends that the imposition of permanent work restrictions was the only "change" that constituted an "adverse employment action" causing Palmer's ADA claims to accrue. Filing 11 at 2-3. Palmer argues instead that his claims accrued when Union Pacific "confirmed Palmer's work restrictions" on December 29, 2014. Filing 8 at 5-7; Filing 1 at 11 (¶ 53).
The Eighth Circuit Court of Appeals has held that in the employment-discrimination context, "the accrual date is simply the date on which the adverse employment action is communicated to the plaintiff." Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1995); see also Jones v. DHHS, No. 4:22CV3172, 2023 WL 3548432, at *3 (D. Neb. May 18, 2023) (noting that under a different civil rights statute, "claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action. Accrual occurs when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief."). Moreover, "[a]n adverse employment action is a tangible change in working conditions that produces a material employment disadvantage. This might include termination, cuts in pay or benefits, and changes that affect an employee's future career prospects." Charleston v. McCarthy, 926 F.3d 982, 989 (8th Cir. 2019) (citations omitted). The Eighth Circuit also explained that it has "never applied the continuing violations doctrine to a discrete act," such as where the plaintiffs "complain of the delayed, but inevitable consequences of the allegedly discriminatory decision." Humphrey v. Eureka Gardens Pub. Facility Bd., 891 F.3d 1079, 1083 (8th Cir. 2018). Thus, the Court must decide what constituted the "adverse employment action," the "date on which the adverse employment action [was] communicated to" Palmer, and whether that employment action constituted "a discrete act."
The Court concludes that Palmer's claim accrued in February 2014, when Union Pacific "imposed standardized permanent work restrictions on Palmer because of his diabetic retinopathy that disqualified him from continuing to work" in his current position. Filing 1 at 10 (¶ 45). This constituted an "adverse employment action" because it "produce[d] a material employment disadvantage," namely, "termination" from continuing to work in his current position. Charleston, 926 F.3d at 982. Contrary to Palmer's contentions, the December, 29, 2014, "refus[al] to reconsider Palmer's restrictions," was not the "adverse employment action [that caused] a tangible change in working conditions." Id.; Filing 1 at 11 (¶ 53). Instead, Union Pacific's refusal to reconsider the restrictions is more properly characterized as the "delayed, but inevitable consequence[ ] of the allegedly discriminatory decision" of imposing the restrictions in the first place. Humphrey, 891 F.3d at 1083. Palmer's complaint confirms that his later interactions with Union Pacific were mere consequences of its decision to impose restrictions on him. See, e.g., Filing 1 at 11 (¶ 53) (Union Pacific "refused to reconsider Palmer's restrictions," and "confirmed that Palmer was given permanent work restrictions"); Filing 1 at 12 (¶ 57) (Union Pacific "reaffirm[ed] . . . the decision to permanently restrict palmer from working"); Filing 1 at 13 (¶ 60) ("Union Pacific has persisted in its refusal to allow Palmer to return to work" in his position). Thus, because "the accrual date is simply the date on which the adverse employment action is communicated to the plaintiff," and Union Pacific imposed permanent restrictions that prevented Palmer from continuing to work in February 2014, Palmer's ADA claims accrued in February 2014. Dring, 58 F.3d at 1328. Because the Court must "draw[ ] all reasonable inferences in favor of the nonmovant," the Court will treat Palmer's claims as if they accrued on the final day of the month, February 28, 2014. See Bauer, 25 F.4th at 589.
2. American Pipe Tolling Does Not Apply to Palmer's ADA Claims
Palmer contends that he was a putative class member in Harris and thus his ADA claims tolled under the doctrine of American Pipe. Filing 1 at 14 (¶ 66); Filing 8 at 1-2. Pacific Union responds that Palmer was not a putative class member in Harris and therefore does not concede that American Pipe tolling applies to his ADA claims. Filing 11 at 4. The Court agrees with Union Pacific.
The American Pipe tolling doctrine states that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); see also Zarecor v. Morgan Keegan & Co., 801 F.3d 882 (8th Cir. 2015) ("In American Pipe, the Supreme Court concluded that a class action tolls statutes of limitations 'as to all asserted members of the class.' "). Thus, American Pipe tolling only applies if Palmer is included in "all asserted members of the class who would have been parties had the suit been permitted to continue as a class action," i.e., if he was a putative class member. 414 U.S. at 554, 94 S.Ct. 756.
Palmer is not an "asserted member of the [Harris] class." Id. The Amended Complaint in Harris initially described the putative class as follows:
Individuals who were removed from service over their objection, and/or suffered another adverse employment action, during their employment with Union Pacific for reasons related to a Fitness-for-Duty evaluation at any time from 300 days before the earliest date that a named Plaintiff filed an administrative charge of discrimination to the resolution of this action.Harris, Case No. 16-381, ECF No. 20 at 17 (¶ 116). The class that was certified and later decertified in Harris was limited to "[a]ll individuals who have been or will be subject to a fitness-for-duty examination as a result of a reportable health event at any time from September 18, 2014 until the final resolution of this action." Case No. 16-381, ECF No. 307 at 19. While Palmer does not allege a specific date that he was "subject to a fitness-for-duty examination as a result of a reportable health event," he does allege that "[o]n or about November 11, 2013, Union Pacific removed Palmer from work pending the Fitness-for-Duty determination" and that Union Pacific imposed permanent work restrictions on him "in or around February 2014." Filing 1 at 10 (¶¶ 42, 45). As discussed above, the imposition of permanent work restrictions as a result of Palmer's FFD evaluation in February 2014 constituted the adverse employment event that caused Palmer's ADA claims to accrue, which was more than six months prior to September, 18, 2014. Thus, Palmer was necessarily "subject to a fitness-for-duty examination" prior to September 18, 2014. Therefore, Palmer was not a putative member of the Harris class and American Pipe tolling does not apply.
3. The Statute of Limitations under the ADA
Palmer's claims arise under the ADA. See generally Filing 1. The ADA incorporates the "[t]ime for filing charges" from the general "Enforcement provisions" for civil rights claims. 42 U.S.C. § 12117(a) (citing 42 U.S.C. § 2000e-5(e)(1)). The "Enforcement provisions" require that "such charge [of discrimination] shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred." See also Henderson v. Ford Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005) ("Under the ADA, an employee must file a charge of discrimination . . . within 300 days of the alleged discrimination."). Palmer alleges that Union Pacific and the Harris class "entered into a tolling agreement, extending the statute of limitations for Palmer's and other class members' claims by an additional sixty (60) days." Filing 1 at 14. However, as discussed above, Palmer was never a member of the Harris class because he was not "subject to a fitness-for-duty examination as a result of a reportable health event at any time from September 18, 2014." Harris, Case No. 16-381, ECF No. 241. Thus, the applicable statute of limitations is 300 days after the claim accrued.
Palmer did not file his charge with the EEOC within 300 days after his disability discrimination claim accrued. Because the Court determined that his claim accrued on February 28, 2014, and American Pipe tolling did not apply since Palmer was not a putative Harris class member, the Court must determine whether Palmer filed his discrimination charge within 300 days after February 28, 2014. Three hundred days after February 28, 2014, is December 25, 2014. Palmer filed his claim with the EEOC on April 24, 2020, over five years after the statute of limitations expired. Thus, Palmer's claim is untimely.
III. CONCLUSION
For these reasons, the Court dismisses Palmer's Complaint. Palmer's ADA claims never tolled because, contrary to his assertions, he was not a putative class member in Harris. His claim accrued in February 2014, and the putative class in that case only included members whose claims accrued on or after September 18, 2014. There is no way for Palmer to amend his Complaint to properly state a claim upon which relief can be granted. Accordingly,
IT IS ORDERED:
1. Defendant's Motion to Dismiss, Filing 6, is granted, with prejudice.
IT IS FURTHER ORDERED that a separate judgment shall enter accordingly.