Opinion
02 Civ. 4229 (JGK)
September 4, 2003
OPINION AND ORDER
This is a motion to dismiss this diversity action pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiff, Polina K. Smith ("Smith"), is a lawyer and out-of-state member of the New York State Bar. Smith worked in Washington, D.C. from her home/office at the time of the relevant events and currently resides there. The plaintiff alleges that she took a job through the Open Society Institute ("OSI"), a non-profit network of politically active foundations, which the plaintiff alleges is controlled by its chairman, George Soros ("Soros"). The position, a high level advisor to the Ukrainian Government, was to last six months at the salary of $6,000 per month beginning in June 1996. The employment was extended twice for a short period of time, but the last contact alleged between the parties was in February 1997 (except for a small claims suit by the plaintiff for certain reimbursements). Smith left the Ukraine and returned to Washington, D.C. in May 1997. (Compl. ¶ 125).
The plaintiff settled claims for reimbursement for certain expenses with Anders Aslund, her supervisor and alleged advisor to George Soros.
The plaintiff asserts claims for fraud and fraudulent inducement in connection with her consulting agreement, alleging that she based her acceptance of a lower than desired salary on promises of non-economic benefits, including seniority, access to high-level Ukrainian officials, and reimbursement for certain expenses. The plaintiff also alleges certain intentional torts, apparently slander and intentional infliction of emotional distress. Smith brings these claims against both OSI and Soros.
The plaintiff is proceeding pro se in this case. A court is to "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal citations and quotations omitted). While the plaintiff's complaint claims "recklessly and willfully tortious treatment," (Compl. ¶¶ 138-140), the substance of her allegations most closely resembles claims for slander, (Compl. ¶¶ 118-119, 124-126, 128-129), and intentional infliction of emotional distress. (Compl. ¶¶ 95-98, 127, 130-131).
The defendants move to dismiss on the grounds that the complaint is barred by the statute of limitations and fails to state a cause of action, pursuant to Fed.R.Civ.P. 12(b)(6). Soros also claims that there is an insufficient allegation of any claim against him individually.
I.
On a motion to dismiss, the allegations in the complaint are accepted as true. See Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d. Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d. Cir. 1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, the defendants' present motion should only be granted if it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Grandon, 147 F.3d at 188; see also Goldman, 754 F.2d at 1065.In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court may consider documents that are referenced in the Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc. 282 F.3d 147, 153 (2d Cir. 2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortee Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus Assoc., P.C. v. Oppenheimer Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991); Skeete v. IVF, Inc., 972 F. Supp. 206, 208 (S.D.N.Y. 1997);Vtech Holdings Ltd. v. Lucent Techs., Inc., 172 F. Supp.2d 435, 437 (S.D.N.Y. 2001). Where, as here, the plaintiff is proceeding pro se, the Court is required "to read [the plaintiff's] pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest."McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal citation and quotations omitted).
II.
The Complaint sets forth the following facts, which the Court accepts as true for the purposes of this motion. The plaintiff was admitted to the New York State Bar in 1983. (Compl. ¶ 10). By 1996, the plaintiff had set up a home-office in Washington, D.C. to pursue a career consulting in US-Ukranian affairs. (Compl. ¶¶ 16, 20, 21, 23, 28). On February 15, 1996, she met Anders Aslund, a Senior Associate for the Carnegie Endowment for International Peace and an alleged agent for the defendant Open Society Institute. (Compl. 55 5, 18). Aslund hired the plaintiff in late March 1996 to produce a research report. (Compl. ¶ 21).
On May 8, 1996, Aslund paid the plaintiff the agreed $5000 compensation by personal check, and offered Smith a six-month assignment in Kyiv, Ukraine. (Compl. 5 22). The plaintiff claims her position was to be a legal advisor to the Ukranian government. (Compl. ¶ 27). Aslund proposed a $5000 per month salary, which Smith indicated was insufficient. (Compl. ¶ 23).
A week prior to the planned departure, Aslund allegedly indicated that John Fox, a Soros representative in Washington, D.C., had increased her salary to $6000 per month. (Compl. ¶ 32). The plaintiff contends that Aslund said he would personally approach Soros for approval to increase compensation when she rejected this offer. (Compl. ¶ 33).
On May 27, 1996, Aslund faxed a letter to the plaintiff's Washington home-office which indicated the Ukranian Economic Advisory Project's need for a legal advisor, specified the position's tasks and the necessary qualifications, and stated these factors justified as high a salary as possible. (Compl. ¶¶ 36, 37). The letter specified an initial six month duration in Kyiv. (Compl. ¶¶ 36, 37).
On May 29, 1996, Aslund allegedly responded that he was still waiting for a final answer from Soros, and would resolve the matter by June 6, 1996, so that Smith could participate in an international conference in Kyiv. (Compl. ¶ 38). On June 3, 1996, Aslund called the plaintiff in Washington, D.C., and indicated that his efforts to increase her compensation above $6000 a month had been unsuccessful. (Compl. ¶ 39).
On June 5, 1996, the plaintiff met with Aslund, who allegedly promised the plaintiff non-monetary compensation of access to high-level officials in the Ukraine, seniority, reimbursement for some work expenses, and one paid vacation. (Compl. ¶ 40, 41, 43, 44). The plaintiff alleges that she then accepted the offer. (Compl. ¶ 46). In a letter on Carnegie Endowment for International Peace stationery, Aslund confirmed the plaintiff's employment as a legal advisor to the Ukrainian government within the Soros International Economic Advisory Group ("SIEAG") project for six months, with compensation of $6000 a month, reimbursement for housing, work-related travel, health insurance, and "other necessary working costs." (Compl. ¶ 47). Aslund gave the plaintiff a personal check for $5000 to cover the cost of a new laptop, health insurance, and traveling expenses. (Compl. ¶ 46).
The plaintiff moved to the Ukraine on June 6, 1996. (Compl. 5 48). The plaintiff claims that she was repeatedly denied access to government officials and recognition,(see generally Compl. ¶¶ 58-93), beginning immediately upon her arrival in the Ukraine,(Compl. ¶¶ 58-60, 63-66). On October 6, 1996, the plaintiff sent a memo offering to extend her stay in return for increased seniority and compensation. (Compl. ¶ 101). Aslund rejected the offer. (Compl. ¶ 102). After the plaintiff returned from a vacation on December 11, 1996, Aslund indicated he would extend her stay through the end of December on the same terms and conditions. (Compl. ¶ 109).
The plaintiff wanted to continue her work in the Ukraine and began to look for outside opportunities. (Compl. ¶ 112). On December 17, 1996, she made a down payment on an apartment in Kyiv. (Compl. ¶ 113). On December 23, 1996, the plaintiff offered to extend her stay with the Soros group on the previous terms and conditions. (Compl. ¶ 115). Aslund agreed to extend the assignment through January 1997. (Compl. ¶ 115). The plaintiff remained in the Ukraine through May 1997, renovating her new apartment, awaiting redirection of her salary payments, and looking for other professional opportunities. (Compl. ¶ 123). Smith claims that she lost several possible professional opportunities due to slandering of her reputation by the defendants. (Compl. ¶¶ 95-98, 118-119, 124, 126, 128-129, 139).
Upon returning to Washington, D.C. in 1997, the plaintiff sought reimbursement from OSI for expenses allegedly part of the agreement between the parties. (Compl. 15 52, 55). These claims were settled with Aslund in Small Claims Court in Washington, D.C. (Compl. ¶ 55).
The plaintiff alleges that, in the wake of scandals in 2000 allegedly implicating the Ukranian Prime Minister with money laundering and assassinations, she realized that she may have been in danger during her stay in Kyiv due to her contact with officials in the Ukrainian Cabinet. (Compl. ¶ 130). The plaintiff claims that the defendants knew, and failed to warn her, about these dangers, constituting intentional infliction of emotional distress. (Compl. ¶¶ 127, 130-131).
III.
The plaintiff contends that the defendants made fraudulent misrepresentations regarding seniority, high-level access, and monetary reimbursement, and that these were made to induce her to accept the Ukranian assignment. (Compl. ¶¶ 133, 134, 136, 137). In Count One the plaintiff asserts a claim of "fraudulent misrepresentation" and in Count Two the plaintiff alleges "fraudulent inducement to enter into contract." The defendants move to dismiss these counts on the grounds that the fraud claims are barred by the statute of limitations.Because this Court is sitting in diversity, it applies the choice of law rules of New York, the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941); Lazard Freres Co. v. Protective Life Ins.Co., 108 F.3d 1531, 1539 (2d Cir. 1997); Insurance Co. of North Am. v. Pyramid Ins. Co. of Bermuda, Ltd., No. 92 Civ. 1816, 1994 WL 88701, at *2 (S.D.N.Y. Mar. 16, 1994). The defendants argue that New York's borrowing statute, N.Y. C.P.L.R. § 202, applies. That statute provides:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.
Under this statute, when a nonresident sues based upon a cause of action for fraud that accrued outside of New York, "the court must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued." Stuart v. American Cyanamid Co., 158 F.3d 622, 627 (2d Cir. 1998). The statute of limitations for fraud is six years in New York, N.Y. C.P.L.R. § 213, and three years in Washington, D.C., D.C. Code § 12-301(8).
The defendants argue that the plaintiff was not a resident of New York at the time the cause of action for fraud accrued and therefore the shorter statute of limitations in New York or the place where the cause of action accrued applies. The defendants contend that Smith's fraud claims accrued in the District of Columbia and are therefore time barred by the District of Columbia's three-year statute of limitation.
The plaintiff contends that New York's borrowing statute does not require the application of the District of Columbia's three-year statute of limitations for fraud. She does not assert that she is a resident of New York and entitled to the application of New York's statute of limitations. Rather, Smith contends that the New York statute of limitations should apply because her cause of action accrued in New York, not in the District of Columbia.
The cause of action for a tort claim for the purposes of the borrowing statute accrues at the time and in the place of the injury. Global Financial Corp v. Triare Corp., 715 N.E.2d 482, 484-85 (N.Y. 1999);Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., No. 93 Civ. 6876, 2001 WL 492363, at *2 (S.D.N.Y. May 9, 2001). Additionally, "when an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss." Global Financial, 715 N.E.2d at 485 (N.Y. 1999) (internal citations omitted); Bank Brussels Lambert, 2001 WL 492363, at *2. This rule applies to common law fraud cases for the purposes of the borrowing statute. See, e.g., Gordon Co. v. Ross, 63 F. Supp.2d 405, 408-409 (S.D.N.Y. 1999).
The defendants argue that the plaintiff's injury is purely economic and therefore the cause of action accrued at her residence in Washington, D.C. The plaintiff alleges the injury is to her professional reputation, causing her to lose several professional opportunities. She contends the harm is "non-economic," and that, given her non-resident membership in the New York State Bar, the injury occurred and the cause of action accrued in New York.
The injury to her professional reputation and subsequent loss of business opportunities, are, however, still economic loss as opposed to physical injury. Accordingly, the cause of action for the plaintiff's purely economic injury to her professional reputation accrues at her residence.
The defendants assert that Smith resided in the District of Columbia at the time of the relevant events in 1996. The plaintiff claims that her primary residence before and after the relevant events was in New Jersey and that she did not make Washington her primary residence until 2000. (Compl. ¶¶ 34, 35, PI. Response at 11).
The plaintiff does not claim that the causes of action for fraud accrued in New Jersey where she allegedly had her primary residence. At the oral argument of the current motion, the plaintiff specifically disclaimed application of New Jersey law to the claims in this case. (Tr. of July 17, 2003 Arg. at 10.) Instead, Smith uses the allegation that Washington, D.C. was not her "primary residence" to support her argument that the causes of action did not accrue in Washington, D.C., but in New York, where Smith was a registered out-of-state member of the bar. (PI. Resp. at 1-3, 9-12). The plaintiff, however, does not contend that her residence was in New York at the time of the events, (Compl. ¶ 34, 35), or even currently, (Compl. ¶¶ 1, 40). Therefore, the purely economic injury to her professional reputation cannot accrue in New York. The choice in this case, as framed by the plaintiff, is whether the law of New York or Washington, D.C. should be applied under the borrowing statute to determine the statute of limitations. Because it is clear that the plaintiff did not reside in New York, and did reside in Washington, D.C., it is the shorter statute of limitations of Washington, D.C. that must be applied.
For purposes of determining whether a plaintiff was a resident of the New York at the time the cause of action accrued, and thus entitled to New York's statute of limitations, not the shorter statute of limitations of the state where the cause of action accrued, New York courts have stressed that residence is distinct from domicile.Antone v. General Motors Corp., 473 N.E.2d 742, 746-747 (N.Y. 1984). While domicile requires both a presence in the state and evidence of intent to make the state a permanent home, Rawstorne v. Maguire, 192 N.E. 294, 295-296 (N.Y. 1934), residence requires only "a significant connection with some locality in the State as the result of living there for some length of time during the course of a year." Antone, 473 N.E.2d at 746. A person can have more than one residence but only one domicile.Rawstorne, 192 N.E. at 295. In the context of N.Y. C.P.L.R. § 202, courts have followed the definition of residence as developed through venue cases under N.Y. C.P.L.R. § 503(a) to determine the application of the borrowing statute. Allen v. Handszer, 560 N.Y.S.2d 593, 597 (N.Y.Sup.Ct. 1990); McMahan Co. v. Donaldson, Lufkin Jenrette Securities Corp., No. 89 Civ. 0782, 1989 WL 131648, at *3 (S.D.N.Y. Nov. 1, 1989). Pursuant to N.Y. C.P.L.R. § 503(a), to consider a place as a party's residence, the party "must stay there for some time and have a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence requires more stability then a brief sojourn for business, social or recreational activities." Allen, 560 N.Y.S.2d at 597 (internal quotation and citation omitted). While these cases concern the definition of "residence" for application of the borrowing statute, they are also relevant to the concept of "residence" for determining where the plaintiff has been injured for purposes of determining where a cause of action for a tort accrued for the purposes of the borrowing statute because they focus on the relevant contacts a plaintiff has with the state such that the plaintiff was harmed in that state.
Here, the plaintiff alleges that she remained in the District of Columbia "for some time." Smith started traveling to Washington, D.C. for business trips and working with Washington, D.C.-based clients in 1994. (Compl. ¶ 16, 29). The plaintiff also demonstrated a "bona fide intent to retain the place as a residence for some length of time and with some degree of permanency." Smith retained an apartment in the District of Columbia, which she sublet during her stay in the Ukraine. (Compl. ¶ 28). The plaintiff refers to the apartment as her "Washington base" and "home-office." (Compl. ¶¶ 23, 28), and repeatedly offers numerous statements made to Aslund regarding her desire to continue to live in Washington, D.C., instead of relocating to the Ukraine, (Compl. ¶¶ 20, 23). Smith returned to the District of Columbia after her assignment. (Compl. ¶¶ 125, 129). These facts establish that the plaintiff, by her own admission, had a residence in Washington, D.C. at the time the alleged fraud occurred. All of the plaintiff's argument for the application of the New York statute of limitations are based not on her residence in New York at the time, but on the alleged harm to her reputation independent of any residence in New York. That is not the proper test of where the cause of action accrued for purposes of the New York borrowing statute.
In discussing the proper measure of where the cause of action accrued pursuant to N.Y. C.P.L.R. § 202, the parties discuss the similar question of what choice of law New York would apply in determining which substantive law pertains to these claims. This question, however, is distinct from and inapplicable to a determination where the cause of action accrues for purposes of the borrowing statute. "Because earlier iterations of the borrowing statute predate the substantive choice-of-law 'interest analysis' test used in tort cases and the 'grouping of contacts' or 'center of gravity' approach used in contract cases, these choice-of-law analyses are inapplicable to the question of statutory construction presented by CPLR 202." Global Financial, 715 N.E.2d at 484-485 (internal citations omitted); see also Bank Brussels Lambert, 2001 WL 492363, at *2.
The plaintiff also contends that the cause of action should not be determined to accrue in Washington, D.C. because she could not have brought a claim for alleged employment fraud in Washington, D.C. However, the District of Columbia does recognize a claim for fraud and fraudulent inducement. See, e.g., Espaillat v. Berlitz School of Languages, 383 F.2d 220, 221 (D.C. Cir. 1967) (employee alleged fraud after being discharged for alien status despite prior assurance such status would not affect her employment).
Given that the cause of action for fraud accrued in Washington, D.C., N.Y. C.P.L.R. § 202 requires application of the District of Columbia's shorter, three-year statute of limitations. The District of Columbia statute of limitations for fraud does not begin to run until fraud is or should have been discovered through plaintiff's due diligence. D.C. Code § 12-301(8); Computer Data Systems. Inc. v. Kleinberg, 759 F. Supp. 10, 15 (D.D.C. 1990); King v. Kitchen Magic. Inc., 391 A.2d 1184, 1186 (D.C.Ct.App. 1978). In this case, the alleged fraudulent misrepresentations and fraudulent inducements were plain to the plaintiff when her job did not measure up to the alleged fraudulent representations. This could not have occurred later than the plaintiff finished her employment in January 1997. (Compl. ¶¶ 115, 116, 120). This was much more than three years before the plaintiff filed her present action on June 5, 2002, and therefore her fraud claims are time barred. While the plaintiff refers to tolling in her papers and in her extensive affidavit, she has stated no basis for tolling. There was no reason that the plaintiff could not have brought her claims within the statute of limitations after she allegedly believed that her employment did not live up to the representations made to her.
IV.
The plaintiff also alleges several intentional torts. Smith claims that the defendants' agents, contractors, and employees slandered her reputation. (Compl. ¶¶ 119, 120, 124, 126, 127, 129, 139). In addition, the plaintiff contends that the defendants' representatives were knowledgeable about dangers to the plaintiff but failed to disclose them to her, thereby intentionally inflicting emotional distress. (Compl. ¶¶ 127, 129, 130, 140). The defendants move to dismiss the intentional tort claims as time barred.The plaintiff's remaining claims for slander and intentional infliction of emotional distress are intentional torts, for which New York imposes a one-year statute of limitations. N.Y. C.P.L.R. § 215(3); see Forbes v. Merrill Lynch, Fenner Smith, Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) (intentional infliction of emotional distress governed by a one-year statute of limitation). The District of Columbia imposes a one-year statute of limitations for slander, D.C. Code § 12-301(4), and a three-year statute of limitations for intentional infliction of emotional distress, D.C. Code § 12-301(8); Saunders v. Nemati, 580 A.2d 660, 664-65 (D.C. 1990).
Under the New York borrowing statute, because it is undisputed that the plaintiff was not a resident of New York at the time that the causes of action for the intentional torts accrued, the plaintiff's claims are barred if they are barred by the shorter statute of limitations of New York or the place outside New York where the cause of action accrued. Because New York has a one-year statute of limitations for both intentional torts at issue in this case, and the plaintiff's claims are barred by that statute of limitations, it does not make a difference what the statute of limitations is in Washington, D.C.
No party has briefed the statute of limitations in the Ukraine. When that occurs, under New York law, the parties' failure to plead and prove applicable foreign law permits the court to proceed on the assumption that the foreign law accords with the law of New York on the subject. See Bank Brussels Lambert, 2001 WL 492363, at *4.
Under New York law, the statute of limitations for slander begins to run from the time the slanderous statement is made, not when it is discovered. See Karam v. First American Bank of New York, 593 N.Y.S.2d 640 (App.Div. 1993) (statute of limitations for slander runs from the time of utterance, not the discovery of the slanderous matter). The alleged slanderous comments were made during the plaintiff's employment which ended in January, 1997. Therefore, her slander claims are barred under New York law because she only brought this action on June 5, 2002. Even if a discovery rule were applied to her slander claims, she alleges that she became aware of the slander by the time she ceased to be employed. (Compl. ¶¶ 116, 118-119). The claim is thus still time barred.
The plaintiff also alleges that she was subjected to intentional infliction of emotional distress when she allegedly realized in 2000 that, as a result of scandals involving the Ukrainian Government, her life had been in danger while she was in the Ukraine. (Compl. ¶ 130). In New York, the statute of limitations for intentional infliction of emotional distress beings to run at the time of the last act of the allegedly injurious conduct. See Neufeld v. Neufeld, 910 F. Supp. 977, 982-83 (S.D.N.Y. 1986). The complaint alleges that the defendants' alleged injurious conduct occurred during her employment, (Compl. ¶¶ 127, 130-31), which ended in January 1997. (Compl. If 115-20). The plaintiff left the Ukraine in May, 1997. (Compl. ¶ 125). Under the one-year New York statute of limitations, the claim for intentional infliction of emotional distress is barred because the last act ended at the latest in January, 1997, and the plaintiff did not bring this action until more than five years later in June, 2002.
The plaintiff alleges that she became aware in 2000 that her life had been in danger in the Ukraine during 1996 to 1997. This allegation is irrelevant to the tort of intentional infliction of emotional distress, the thrust of which is intentionally subjecting the plaintiff to emotional distress. See Neufeld, 910 F. Supp. at 983-84. Furthermore, because the relevant statute of limitations as a result of the borrowing statute would be New York's one year statute of limitations, even if the year 2000 had some relevance, the plaintiff's claims would still be barred because she only brought this action in June, 2002.
The plaintiff does not respond as to why these intentional tort claims are not time barred. To the extent that Smith alleges that the causes of action are tolled, she has alleged no basis for tolling despite submission of an extensive affidavit. Accordingly, the plaintiff's claims for both slander and intentional infliction of emotional distress are time barred.
Because the plaintiff's claims are time barred, it is unnecessary to address the defendants' alternative argument that the plaintiff's claims fail to state a cause of action.
V.
The plaintiff requests leave to amend her complaint. Leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see Acito v. Imcera Group. Inc., 47 F.3d 47, 55 (2d Cir. 1995). A pro se complaint is to be read liberally, granting leave to amend if there is any indication that a valid claim may be stated. Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). Because of the liberal pleading rules accorded to a pro se plaintiff, and because the plaintiff has not yet filed an amended complaint, the Court will grant the plaintiff the opportunity to file an amended complaint. The plaintiff is cautioned, however, that any amended complaint must have a good faith basis in fact and law.CONCLUSION
The defendants' motion to dismiss the Complaint as time barred is granted. The plaintiff's application to file an amended complaint is granted. Any amended complaint must be filed within thirty (30) days of the date of this Opinion and Order.SO ORDERED.