Opinion
Civil No. 3:18-CV-00959
12-11-2018
DAVID BALTZLEY, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of The Case
This case, which comes before us for consideration of a preliminary dispositive motion filed by the defendant, (Doc. 4), involves a dispute relating a claim under an automobile insurance policy and began its life as an action filed in state court that was later removed to federal court. The plaintiffs' initial complaint, which was filed in the Court of Common Pleas of Lackawanna County, names State Farm Mutual Automobile Insurance Company as the defendant and brings two legal claims against State Farm: a claim of breach of an insurance contract between the parties, (Doc. 1-1, Count 1), and a companion claim of breach of a state statutory duty of good faith in investigating and paying this insurance claim in violation of 42 Pa. Cons. Stat. § 8371. (Doc. 1-1, Count 2.)
This motion was initially cast as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When the plaintiff responded to this motion, the plaintiff attached approximately 54 pages of exhibits to the response in opposition to the motion to dismiss. (Doc. 8.) When this case was referred to the undersigned we noted the reference to these materials outside the pleadings and placed the parties on notice that we might convert the motion to a motion for summary judgment. (Doc. 14.) The defendant responded to this order by providing additional evidentiary support and argument for its dispositive motion. (Doc. 18.) The plaintiff, who had initially submitted documents outside the pleadings in his response to this motion, objected to the conversion of the motion to dismiss to a summary judgment motion. (Docs. 15 and 16.) As we understand the plaintiff's objections, they are twofold: First, the plaintiff contends that the other documents which it submitted consist solely of undisputed records that were referred to in its complaint, and thus may be considered in ruling upon a motion to dismiss. Second, we understand the plaintiff's objection to be that summary judgment would be premature since discovery has not been conducted. Given these objections we will analyze this dispositive motion both as a motion to dismiss, and in the alternative, as a summary judgment motion.
The parties subsequently stipulated to this dismissal of this count without prejudice. (Doc. 17.) --------
In support of these two legal claims, the plaintiff's complaint contains a 15-page, 43 paragraph factual recital. (Id., ¶¶1-43.) According to the complaint, the plaintiff was injured in an October 4, 2012, automobile accident with an underinsured motorist. (Id., ¶¶7-11.) The complaint attributes this injury accident solely to the negligence of the other driver and describes approximately 15 ways in which the operator of this other vehicle was negligent. (Id.) The complaint then details the significant injuries suffered by Baltzley as a result of this accident. (Id., ¶¶13-16.)
According to the complaint, Baltzley pursued claims against both his own insurer, State Farm, and the insurance carrier for the tortfeasor who struck him. (Id., ¶¶17-34.) The insurance carrier for the operator of the other vehicle offered its policy limits, $25,000, to Baltzley, a course of conduct which Baltzley alleges shows that: "Apparently there was no dispute about the liability of [the operator of the vehicle that struck the plaintiff]." (Id., ¶18.)
Given this background, Baltzley alleges that he has been seeking additional payment under the underinsured motorist provisions of his policy with State Farm for the past three years. Since June of 2015, the plaintiff alleges that he has been trying to resolve this underinsured motorist insurance claim with State Farm. According to Baltzley, between 2015 and 2018 State Farm has on several occasions refused to honor a claim for these benefits because it has taken the position that the accident was Baltzley's fault because Baltzley allegedly drove through a stop sign. (Id., ¶¶26, 27, 30.) Characterizing this decision by State Farm as a bad faith evaluation of his claim, which has delayed payment of the claim for the past three years, Baltzley alleges a breach of a State Farm's statutory duty of good faith in investigation and paying this insurance claim violation of 42 Pa. Cons. Stat. § 8371.
Presented with this state court complaint, State Farm removed this action to federal court, (Doc. 1), and moved to dismiss this statutory bad faith claim in its entirety, arguing that the complaint fails to state claim upon which relief may be granted under § 8371. (Doc. 4.) State Farm has also supplemented its motion, arguing in the alternative that it is entitled to summary judgment on this bad faith claim. State Farm contends that police reports and a deposition from the underlying state tort case against the operator of the vehicle which struck Baltzley's car revealed as a matter of law that State Farm was justified in its decision to deny UIM benefits to Baltzley, since Baltzley's actions caused this accident.
For his part, Baltzley has responded to this motion by arguing: first, that his complaint sufficiently states a statutory bad faith claim under Pennsylvania law, and second, by asserting that summary judgment would be premature in this case since full discovery has not yet been conducted. This motion is fully briefed by the parties and is, therefore, ripe for resolution. For the reasons set forth below, we recommend that the motion be denied without prejudice to renewal upon a fully developed factual record.
II. Discussion
A. Motion to Dismiss-Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. Rule 12(b)(6) of the Federal Rule of Civil Procedure provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of necessary elements of the plaintiff's cause of action. Id. at 556. Furthermore, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotation marks omitted) (quoting Twombly, 550 U.S. at 555).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id." Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
As the Court of Appeals has observed: "The Supreme Court in Twombly set forth the 'plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege 'enough facts to state a claim to relief that is plausible on its face.' Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings 'allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). This standard requires showing 'more than a sheer possibility that a defendant has acted unlawfully.' Id. A complaint which pleads facts 'merely consistent with' a defendant's liability, [ ] 'stops short of the line between possibility and plausibility of "entitlement of relief." ' " Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment."). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. Summary Judgment —Standard of Review
In the alternative, State Farm seeks summary judgment in its favor on the statutory bad faith claim. Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment practice, provides that "[t]he court shall grant summary judgment if the movant shows 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 (a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a "genuine issue as to any material fact," Fed. R. Civ. P. 56, and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010).
The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "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 at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
There is a necessary corollary to these principles defining when summary judgment may be appropriate. In the instant case, the plaintiff asserts that he is hamstrung in responding to the defendants' summary judgment motion, which is based largely upon the defendants' description of the facts and circumstances of this case, because he has not had a full opportunity to engage in discovery in this case. On this score the plaintiff has invoked the protections of Rule 56(d), which provides as follows:
When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.Fed. R. Civ. P. 56(d).
Rule 56(d) permits a court to defer consideration of a summary judgment motion when some further discovery is needed by the party opposing the motion in order to frame a meaningful response to the motion. Under these circumstances, we are mindful of the fact that: "' "[I]t is well established that a court 'is obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery " ' Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir.2007) (quoting Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir.1988))." Shelton v. Bledsoe, 775 F.3d 554, 565 (3d Cir. 2015). Further, "[i]f discovery is incomplete, a district court is rarely justified in granting summary judgment, unless the discovery request pertains to facts that are not material to the moving party's entitlement to judgment as a matter of law." Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015). Therefore, as a general rule we should refrain from declaring the facts to be undisputed for summary judgment purposes when it is evident that one party seeks discovery in order to fully respond to a motion for summary judgment.
C. Legal Standards Governing Statutory Bad Faith Claims Under 42 Pa. Cons. Stat. § 8371
Pennsylvania law provides for a cause of action by insurance customers against insurance companies that engage in bad faith claims handling, stating that: "In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%; (2) Award punitive damages against the insurer; (3) Assess court costs and attorney fees against the insurer." 42 Pa. Cons. Stat. § 8371.
Under Pennsylvania law, "[b]ad faith is a frivolous or unfounded refusal to pay, lack of investigation into the facts, or a failure to communicate with the insured. See Coyne v. Allstate Ins. Co., 771 F.Supp. 673, 678 (E.D.Pa.1991) (bad faith is failure to acknowledge or act promptly on the claims or refusing to pay without reasonable investigation of all available information); Romano v. Nationwide Mut. Fire Ins. Co., 435 Pa.Super. 545, 646 A.2d 1228 (1994)." Frog, Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742, 751 (3d Cir. 1999). "Ultimately, in order to recover on a bad faith claim, the insured must prove: (1) that the insurer did not have a reasonable basis for denying benefits under the policy; and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis in denying the claim." Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 137 (3d Cir. 2005). Case law sets exacting standards for any bad faith claim. As the Court of Appeals has observed:
In the primary case construing bad faith under 42 Pa.C.S.A. § 8371, Terletsky v. Prudential Property & Casualty Co., the Superior Court of Pennsylvania explained:
"Bad faith" on [the] part of [an] insurer is any frivolous or unfounded refusal to pay
proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i.e., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.
Amica Mut. Ins. Co. v. Fogel, 656 F.3d 167, 179 (3d Cir. 2011).
437 Pa.Super. 108, 125, 649 A.2d 680, 688 (Pa. Super. Ct.1994) (quoting Black's Law Dictionary 139 (6th ed.1990)). Terletsky held that, "to recover under a claim of bad faith," the insured must show that the insurer "did not have a reasonable basis for denying benefits under the policy and that the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim." Id. Thus, an insurer may defeat a claim of bad faith by showing that it had a reasonable basis for its actions. Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 307 (3d Cir.1995). Our Court has described "the essence of a bad faith claim" as "the unreasonable and intentional (or reckless) denial of benefits." UPMC Health Sys. v. Metro. Life. Ins. Co., 391 F.3d 497, 506 (3d Cir.2004).Bad faith "must be proven by clear and convincing evidence and not merely insinuated." Terletsky, 649 A.2d at 688 (collecting cases). As the District Court noted, this heightened standard requires the insured to provide evidence "so clear, direct, weighty and convincing as to enable a clear conviction, without hesitation, about whether or not the defendants acted in bad faith." Bostick v. ITT Hartford Grp., 56 F.Supp.2d 580, 587 (E.D. Pa. 1999) (citations omitted).
These same exacting standards apply to assessing the sufficiency of complaints alleging bad faith claims under § 8371. When considering whether a proposed statutory bad faith claim under § 8371 fails as a matter of law, "[m]any federal district courts have recently been called upon to evaluate bad faith complaints in light of Iqbal and Twombly. Under these Supreme Court decisions, plaintiffs must plead sufficient facts to make out a plausible claim for relief against the defendant. See Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). In the bad faith context, district courts have required more than 'conclusory' or 'bare-bones' allegations that an insurance company acted in bad faith by listing a number of generalized accusations without sufficient factual support. See e.g., Liberty Ins. Corp. v. PGT Trucking, Inc., Civ. A. No. 11-151, 2011 WL 2552531, at *4 (W.D.Pa. Jun. 27, 2011); Pfister v. State Farm Fire & Cas. Co., Civ. A. No. 11-799, 2011 WL 3651349 (W.D.Pa. Aug. 18, 2011); Atiyeh, 742 F.Supp.2d at 599 ('However, these averments are merely conclusory legal statements and not factual averments.')." Palmisano v. State Farm Fire & Cas. Co., CIV.A. 12-886, 2012 WL 3595276 (W.D. Pa. Aug. 20, 2012). See Yohn v. Nationwide Ins. Co., 1:13-CV-024, 2013 WL 2470963 (M.D. Pa. June 7, 2013) (collecting cases). Thus, the assessment of the sufficiency of a particular complaint often turns on the specificity of the pleadings and calls for recital of specific factual allegations from which bad faith may be inferred in order to defeat a motion to dismiss. Compare Sypeck v. State Farm Mut. Auto. Ins. Co., 3:12-CV-324, 2012 WL 2239730 (M.D. Pa. June 15, 2012) with Zimmerman v. State Farm Mut. Auto. Ins. Co., 3:11-CV-1341, 2011 WL 4840956 (M.D. Pa. Oct. 12, 2011). Where a complaint's § 8371 bad faith claim simply relies upon breach of contract allegations, coupled with a conclusory assertion that the failure to pay under an insurance policy was "unreasonable" or made in bad faith, courts have dismissed such claims, but typically have afforded litigants an opportunity to further amend and articulate their bad faith claims. See e.g., Wanat v. State Farm Mut., Auto. Ins. Co., 4:13-CV-1366, 2014 WL 220811 (M.D. Pa. Jan. 21, 2014); Cacciavillano v. Nationwide Ins. Co. of Am., 3:12-CV-530, 2012 WL 2154214 (M.D. Pa. June 13, 2012).
D. The Defense Motion Should be Denied Without Prejudice to Renewal of Any Dispositive Motion at the Close of Discovery.
Judged against these legal benchmarks, while we regard this as a somewhat close case, we recommend that State Farm's motion be denied without prejudice to renewal as a motion for summary judgment upon the completion of discovery. Treating this motion first as a motion to dismiss, State Farm asserts that the plaintiff's complaint fails to meet the exacting standard of pleading required for a statutory bad faith claim under § 8371. However, at this stage of the proceedings, where our review is cabined by the well-pleaded facts in the complaint, we are constrained to disagree. In reaching this conclusion, we find that complaint, taken as a whole, goes beyond a mere boilerplate recital of the elements of the statute. Rather, as we construe the complaint, it provides a chronology detailing persistent refusals by State Farm spanning several years to honor this UIM claim. Baltzley further alleges that the ostensible reason for denying this claim—State Farm's assertion that the plaintiff was somehow at fault in this accident—was incorrect, unreasonable, and taken in bad faith. A bad faith denial of an insurance claim may constitute a violation of § 8371. In this setting, "[i]n order to show bad faith, a claimant must ultimately establish by clear and convincing evidence both that: 1) 'the insurer lacked a reasonable basis for denying benefits;' and 2) 'the insurer knew or recklessly disregarded its lack of reasonable basis.' Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 233 (3d Cir.1997) (discussing Terletsky v. Prudential Property and Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (1994))." Padilla v. State Farm Mut. Auto. Ins. Co., 31 F. Supp. 3d 671, 675 (E.D. Pa. 2014).
While this is an exacting burden of proof, these bad faith determinations are often fact-bound decisions which are not amenable to resolution on the pleadings alone. Instead, "[i]n deciding whether an insurer had a reasonable basis for denying benefits, a court should examine what factors the insurer considered in evaluating a claim. See Terletsky, 649 A.2d at 688-89. 'Bad faith claims are fact specific and depend on the conduct of the insurer vis à vis the insured.' Condio v. Erie Ins. Exchange, 899 A.2d 1136, 1143 (Pa. Super. 2006) (citing Williams v. Nationwide Mutual Ins. Co., 750 A.2d 881, 887 (Pa. Super. 2000))." Padilla, 31 F. Supp. 3d at 675. Thus, while State Farm vigorously disputes Baltzley's averments of bad faith and argues that the facts alleged by the plaintiff support a prudent effort on its part to thoroughly examine and resolve a meritless claim, this argument invites us to go beyond the pleadings themselves and resolve essentially factual questions. This is a task which, in our view, may not be performed on consideration of a motion to dismiss, where we must simply assess the adequacy of the pleadings.
In the alternative, State Farm has argued that it is entitled to summary judgment in this case based upon a deposition in Baltzley's underlying tort case against the driver who struck him and a police report relating to this incident. According to State Farm, these exhibits establish as a matter of law that State Farm was justified in its decision to deny payment of Baltzley's UIM claim. Baltzley has responded to the argument by asserting that summary judgment would premature at this time since the plaintiff has not had a full opportunity to conduct discovery into the reasonableness of State Farm's reliance on this information, or to fully develop the facts relating to responsibility for this injury accident.
In addressing this motion as a motion for summary judgment we are mindful that "[i]f discovery is incomplete, a district court is rarely justified in granting summary judgment, unless the discovery request pertains to facts that are not material to the moving party's entitlement to judgment as a matter of law." Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015). Here, as we construe Baltzley's position, the plaintiff is urging us to deny this motion as premature, so he may engage in discovery aimed at identifying culpability for the underlying accident and assessing the reasonableness of State Farm's decision to deny this claim based upon its position that Baltzley was responsible for the accident. These are factual issues that are plainly "material to [State Farm's] entitlement to judgment as a matter of law." Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015). Therefore, we are cautioned to refrain from considering State Farm's request for summary judgment, until after Baltzley is afforded the opportunity to further develop the factual record through discovery. Accordingly, we should decline State Farm's invitation to resolve this case as a matter of law on summary judgment until after Baltzley has an opportunity to complete discovery into these material issues but deny this motion without prejudice to renewal of any summary judgment motion at the close of discovery.
III. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that State Farm's Motion to Dismiss, (Doc. 4), be DENIED without prejudice to renewal upon a fully developed factual record.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. ' 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 11th day of December, 2018.
S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge