                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
GOLZAR AMIRMOTAZEDI,          )
                              )
               Plaintiff,     )
                              )
          v.                  )       Civil Action No.10-765 (GK)
                              )
VIACOM, INC., et al.,         )
                              )
               Defendants.    )
______________________________)

                          MEMORANDUM OPINION

     On April 21, 2010, Plaintiff Golzar Amirmotazedi brought this

action in the Superior Court for the District of Columbia alleging

invasion of privacy, intentional infliction of emotional distress,

and negligent infliction of emotional distress against Defendants

Viacom,   Inc.,   MTV    Networks,   and   Bunim-Murray   Productions

(“Defendants”). On May 12, 2010, Defendants removed the action to

this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. This

matter is presently before the Court on Defendants’ Motion to

Compel Arbitration, or in the Alternative, to Stay the Litigation

[Dkt. No. 12] (“Defs.’ Mot.”). Upon consideration of the Motion,

the Opposition, and the Reply, and for the reasons set forth

herein, Defendants’ Motion to Compel Arbitration is denied.
I.    Background

      A. Factual History1

      Defendants produce and televise a reality show named The Real

World. Defs.’ Answer ¶ 5. Each season, the show chronicles the

career    ambitions,    friendships,       and   romantic   attachments    of   a

different group of young people living in a house together for

several months. Defs.’ Mot. at 1-2. Individuals audition to be cast

on the program, and cameras follow the cast members both inside and

outside of the group house. Id. at 2. In the fall of 2009, The Real

World was set in the District of Columbia (“D.C.”), and the

housemates resided in a town house in the Dupont Circle area of

D.C. Compl. ¶ 6.

      Because the show chronicles the cast members’ lives both

inside and outside of their group house, it often features members

of the public with whom the cast members interact. Defs.’ Mot. at

2.   It   is   the   show’s   policy   to    obtain   the   consent   of   such

individuals to appear on the show before including them in an

episode. Id. If an individual chooses to enter The Real World group

house, access to which is limited by Defendants, he or she must

first sign a Voluntary Participation Agreement (Guest Release),

which governs the terms of their entry into the group house. Id. at

3. The Voluntary Participation Agreement (Guest Release) contains



      1
          All facts herein are undisputed except where specifically
indicated otherwise.

                                       2
an arbitration provision (“Arbitration Agreement”) that assigns the

final determination of “any controversy or claim arising out of or

relating to this Agreement” to binding arbitration. See Voluntary

Participation Agreement (Guest Release) and Arbitration Provision

at ¶ 11 (Ex. A to Defs.’ Mot.).

     On September 10, 2009, Plaintiff, a twenty-two year old woman,

encountered The Real World’s cast members for the first time at a

restaurant in the Georgetown area of Washington, D.C., where she

was filmed by the production crew. Defs.’ Mot. at 2. The next

evening, on September 11, 2009, Plaintiff met the cast members

again at The Sign of the Whale, a mid-town Washington, D.C. bar and

restaurant. Once again, the production crew filmed Plaintiff. Id.;

Compl. ¶¶ 7-8.

     The precise events of September 11, 2009 that gave rise to

this suit are the subject of some dispute. It is undisputed that

Plaintiff and a companion named Isabella were walking by the Sign

of the Whale that evening when they encountered some male cast

members near the restaurant. Compl. ¶¶ 7-8. The male cast members

invited Plaintiff and Isabella to join them inside the restaurant,

and the latter agreed. Id. ¶ 8.

     The parties dispute what occurred after Plaintiff entered the

restaurant.   Plaintiff   alleges       that   from   11:00   p.m.   until

approximately 1:30 a.m., the cast members “fed [her]” between 8 and

10 alcoholic beverages. Id. ¶ 9. Although Plaintiff claims she has


                                    3
no   recollection        of    leaving    the     restaurant      because       of    her

intoxicated state, she believes that she and the other cast members

left the restaurant around 1:30 a.m. and went to The Real World

group    house.    Id.    ¶¶    9-10.    Before      entering    the    group    house,

Plaintiff signed and dated the Arbitration Agreement and gave her

name, date of birth, address, and telephone number. Defs.’ Mot. at

4; Ex. A to Defs.’ Mot. at 4. At or around 3:00 a.m., however,

Plaintiff alleges that Defendants, over her objections and fully

aware of her intoxicated state, threw her out of the house because

she did not wish to have sexual relations with one of the male cast

members. Compl. ¶ 11.

     The       parties     also    dispute      the     extent     of    Plaintiff’s

intoxication. Amirmotazedi does not deny that she signed the

Arbitration Agreement before entering The Real World residence but

claims she has no recollection of having done so because she was

heavily intoxicated. Pl.’s Opp’n at 6. Defendants contend that

Plaintiff was not intoxicated when she entered the house or when

she signed the four-page Arbitration Agreement just prior to

entering    the    house.      Defs.    Mot.    at    18.   In   support    of       their

contention, Defendants offer evidence that the show’s producers,

who were present the night of September 11, 2009, did not believe

Amirmotazedi to have been intoxicated, and that it is the program’s

policy    to    prohibit       intoxicated     individuals       from   entering       or

remaining in The Real World residence. Id. Defendants also rely on


                                           4
video footage from that evening which features Plaintiff and which,

Defendants argue, proves that she was not so intoxicated that she

could    not    have    entered          into   a   legally    binding      agreement       to

arbitrate. Id. at 19.

      On or about March 10, 2010, Defendants aired two episodes of

The     Real    World         entitled     “Girlfriends        and     Dead    Ends”        and

“Aftershow.” Compl. ¶ 12. The parties dispute the way in which

Plaintiff was portrayed on the episodes. Defendants claim that the

episodes “speak for themselves,” accurately depicting Plaintiff’s

conduct.       Answer     ¶    15.    Plaintiff      contends        that   the    episodes

contained edited video footage that misrepresented her as an

individual with multiple emotional and psychological problems.

Compl. ¶ 13. In particular, the episodes showed various cast

members referring to Plaintiff as “that ugly girl” and a “hot

mess,” and a male cast member referring to her as the “girl he

could not get rid of.” Id. ¶ 14-15. The episodes also disclosed

statements that Plaintiff made but wished to keep private, such as

remarks that she was bullied in high school, has “problems, and

wears sunglasses frequently because she suffers from anxiety.” Id.

¶ 15.

      Outtakes      from        the      episodes,    entitled       “Too     Much    Andrew

Attention,” were later posted on Defendants’ The Real World Dailies

website. Id. ¶ 17. Defendants dispute Plaintiff’s claim that the

portrayal      of   her       in   the    episodes    and     outtakes      gave     rise   to


                                                5
offensive, humiliating comments on websites operated by Defendants

and others. Id. ¶ 19.

     On or about March 30, 2010, Plaintiff’s attorney notified

Defendants that the episodes and outtakes had caused Amirmotazedi

public ridicule and emotional distress. Id. ¶ 21. In response,

Defendant MTV Networks, Inc. forwarded Plaintiff’s concerns to

Defendant Bunim-Murray Productions, but did not cease dissemination

of the episodes. Id. ¶ 22.

     B. Procedural History

     On April 16, 2010, Plaintiff filed the instant Complaint in

the Superior Court of the District of Columbia [Ex. B to Dkt. No.

1]. On May 12, 2010, Defendants removed the action to this Court

pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. Plaintiff alleges,

in Counts I and II of her Complaint, that Defendants invaded her

privacy by portraying her in a false light and by disclosing

private facts about her without her consent. Id. at ¶¶ 23-34. In

Count III, she alleges that Defendants intentionally caused her

emotional distress by airing the episodes and outtakes and by

continuing to disseminate the footage after she notified Defendants

that the footage had caused her severe emotional distress. Id. at

¶¶ 35-39. Lastly, in Count IV, Plaintiff claims that Defendants

negligently caused her emotional distress by airing the footage.

Id. at ¶¶ 40-44. With regards to Counts III and IV, Plaintiff

emphasizes that Defendants knew or should have known that she was


                                6
particularly susceptible to emotional distress because she stated

in part of the footage that she suffers from anxiety. Id. ¶¶ 36,

41. Plaintiff seeks compensatory damages in excess of $5 million

and punitive damages. Id. ¶ 45.

     On   June     18,     2010,   Defendants    filed    an    Answer   denying

Plaintiff’s claims [Dkt. No. 10]. On July 6, 2010, Defendants filed

a Motion to Compel Arbitration or, in the Alternative, to Stay the

Litigation. In their Motion, Defendants argue that Plaintiff waived

her right to file a lawsuit for any claims “arising out of or

relating to” the Arbitration Agreement when she signed it, and must

instead submit her claims in Counts I-IV to arbitration. Defs.’

Mot. at 12-15 (quoting Ex. A to Defs.’ Mot. at ¶ 11).

     On   August     10,     2010,   Plaintiff    filed    an    Opposition   to

Defendants’ Motion. Plaintiff responds that she lacked the mental

capacity to sign the Arbitration Agreement the night of September

11, 2009, because she was heavily intoxicated. Thus, Plaintiff

argues, the Court must deny Defendants’ Motion under § 4 of the

Federal Arbitration Act, which prohibits a court from granting a

petition to compel arbitration when “the making of the agreement

for arbitration” is in dispute. See Pl.’s Opp’n at 9; 9 U.S.C. § 4.

Plaintiff further argues that, because there is a genuine dispute

as to whether she had the capacity to enter into the Arbitration

Agreement in light of her intoxicated state, summary judgment on

the issue is not appropriate. Id. at 10-12.


                                        7
     Finally, on August 20, 2010, Defendants filed a Reply to

Plaintiff’s Opposition. In their Reply, Defendants contend that

Plaintiff cannot meet her burden of proof on intoxication and that

Plaintiff’s alleged intoxication is an issue for the arbitrator to

decide in the first instance. Defs.’ Reply at 2, 6.

     II. Standard of Review

     Defendants have styled their Motion as a Motion to Compel

Arbitration, or, in the Alternative, to Stay the Litigation. Such

motions are properly reviewed under the summary judgment standard

of Rule 56(c) of the Federal Rules of Civil Procedure. Aliron

Intern., Inc. v. Cherokee Nation Industries, Inc., 531 F.3d 863,

865 (D.C. Cir. 2008); Hughes v. CACI, Inc., 384 F.Supp.2d 89, 92-93

(D.D.C. 2005) (“‘[I]nasmuch as the district court’s order to

arbitrate is in effect a summary disposition of the issue of

whether or not there has been a meeting of the minds on the

agreement to arbitrate[,]’ consideration of the motion according to

the ‘standard used by district courts in resolving summary judgment

motions pursuant to Fed. R. Civ. P. 56(c) . . . is appropriate.’”)

(quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d

51, 54 n.9 (3d Cir. 1980)).

     Summary   judgment   will   be   granted   when   the   pleadings,

depositions, answers to interrogatories, and admissions on file,

together with any affidavits or declarations, show that there is no

genuine issue as to any material fact and that the moving party is


                                  8
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

A fact is “material” if it might affect the outcome of the action

under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

     The party seeking summary judgment bears the initial burden of

demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The nonmoving party then must “go beyond the

pleadings and by [its] own affidavits, or by depositions, answers

to interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.” Id. at 324

(internal quotations omitted); see Laningham v. U.S. Navy, 813 F.2d

1236, 1242 (D.C. Cir. 1987) (nonmoving party has affirmative duty

“to provide evidence that would permit a reasonable jury to find”

in its favor).

     In deciding a motion for summary judgment or, in this case, a

motion to compel arbitration, “the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make

credibility   determinations   or   weigh   the   evidence.”   Reeves   v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097,

147 L.Ed.2d 105 (2000). Ultimately, the Court must determine

“whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-


                                    9
52, 106 S.Ct. 2505.

III. Analysis

       A.     Relevant Provisions of the Federal Arbitration Act

       By    enacting   the   FAA,     9    U.S.C.         §§    1    et   seq.,   Congress

“manifest[ed]      a    liberal    federal           policy      favoring      arbitration

agreements.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The FAA provides that

“[a]    written    provision      in   any       .    .    .    contract      evidencing   a

transaction       involving    commerce          to       settle      by   arbitration     a

controversy thereafter arising out of such contract ... or the

refusal to perform the whole or any part thereof, or an agreement

in writing to submit to arbitration an existing controversy arising

out of such a contract . . . shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity

for the revocation of any contract.” 9 U.S.C. § 2.

       Under the FAA, “[t]here is a presumption of arbitrability in

the sense that ‘an order to arbitrate the particular grievance

should not be denied unless it may be said with positive assurance

that the arbitration clause is not susceptible of an interpretation

that covers the asserted disputes. Doubts should be resolved in

favor   of    coverage.’”     Jung     v.    Ass’n        of    Am.    Med.    Colls.,   300

F.Supp.2d 119, 144-45 (D.D.C. 2004) (quoting AT&T Tech., Inc. v.

Commc’ns Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89

L.Ed.2d 648 (1986)); see also Moses H. Cone Mem’l Hosp. v. Mercury


                                            10
Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765

(1983) (“[A]s a matter of federal law, any doubts concerning the

scope   of   arbitrable   issues   should   be   resolved   in   favor   of

arbitration.”); Volt Info. Sciences, Inc. v. Bd. of Trs. of Leland

Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103

L.Ed.2d 488 (1989) (stating that “ambiguities as to the scope of

the arbitration clause itself [must be] resolved in favor of

arbitration”).

     However, the FAA also dictates that certain issues must be

decided by the courts. Section 4 of the FAA, which is at issue in

this case, provides that “[i]f the making of the arbitration

agreement or the failure, neglect, or refusal to perform the same

be in issue, the court shall proceed summarily to the trial

thereof.” 9 U.S.C. § 4. Plaintiff argues that her intoxication

defense places the “making of the arbitration agreement” at issue

and therefore her defense must be resolved by a court. Pl.’s Opp’n

at 9. Defendants argue, on the other hand, that the case law

compels the conclusion that the intoxication challenge should be

decided by the arbitrator in the first instance. Defs.’ Reply at 2,

6.




                                   11
     B.   Arbitrability of the Parties’ Dispute

     The Court will thus consider whether, under the FAA and other

governing law,2 the parties’ dispute must be submitted to the

arbitrator to determine whether Plaintiff’s alleged intoxication

prevented the formation of an agreement. The Supreme Court has

offered some guidance on the interpretation of § 4 of the FAA. In

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87

S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the Supreme Court dealt with

the plaintiff’s claim that an agreement containing an arbitration

provision was fraudulently induced. The Court held that “claims of

fraud in the inducement of the contract generally” do not place the

“making of   the   agreement   for   arbitration”   at   issue   and must

therefore be submitted for arbitration under § 4. Id. at 404, 87

S.Ct. 1801. In contrast, “claims of fraud in the inducement of the


     2
          The Agreement states that California law shall govern
“any dispute arising from or in connection with this agreement.”
Ex. A ¶ 12. However, in cases such as this where one party is
alleging that no contract was formed, it would be premature to
enforce the choice of law provision before deciding whether an
agreement exists. See Green v. Charter One Bank, 640 F.Supp.2d 998,
1004 n.6 (N.D. Ill. 2009) (“Given that [one party] is arguing that
no contract was formed, no assumption regarding the parties’ choice
of law can be made at this stage.”); Bd. of Educ. of the Twp. of
Cherry Hill, Camden County v. Human Res. Microsys., Inc., No. 09-
5766 (JBS/JS), 2010 WL 3882498, at *3 (D.N.J. Sept. 28, 2010)
(“Since this Court has not yet determined [the issue of whether the
contract is void], it is premature to decide to enforce the
contract’s choice-of-law provision.”). In any event, the Court’s
analysis of § 4 of the FAA would not differ if California law were
to apply instead of District of Columbia law. See Defs.’ Mot. at 7
n.6 (noting that “the result under the FAA would be no different in
this case” whether District of Columbia or California law were to
apply).

                                     12
arbitration clause itself” must be decided by the court. Id. Thus,

the Court drew a distinction between challenges to an agreement

which contains an arbitration provision, which must first go to the

arbitrator, and challenges to the specific arbitration provision of

an agreement, which must be decided first by the court.

     Only two Circuits--the Fifth Circuit and the Tenth Circuit--

have addressed the issue of mental capacity defenses in light of

Prima       Paint’s   distinction   between   specific   challenges   to   the

arbitration provision and general challenges to an entire contract.

See Primerica Life Ins. Co. v. Brown, 304 F.3d 469 (5th Cir. 2002);

Spahr v. Secco, 330 F.3d 1266 (10th Cir. 2003). The Fifth and Tenth

Circuits disagree on whether, under § 4 of the FAA, mental capacity

defenses should be submitted to the court or the arbitrator in the

first instance.

     In Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 472 (5th

Cir. 2002), the Fifth Circuit held that a mental capacity defense

of mental retardation to an Agreement containing an arbitration

clause must be submitted to an arbitrator in the first instance.3

The Court reasoned that, pursuant to Prima Paint, only mental


        3
           Plaintiff suggests that the Fifth Circuit retreated from
its holding in Primerica when it decided that a challenge based on
one party’s alleged failure to sign a contract went to the making
of the agreement, and therefore was not controlled by Prima Paint.
See Pl.’s Opp’n at 11 n.3 (discussing Banc One Acceptance Corp. v.
Hill, 367 F.2d 426, 430 (5th Cir. 2004)). Because Banc One
Acceptance Corp. does not address a mental capacity defense, this
Court does not agree that it affects the Fifth Circuit’s holding in
Primerica.

                                       13
capacity challenges that specifically challenge the arbitration

provision of an Agreement could be decided by the court, but that

mental capacity defenses to a whole contract must be submitted for

arbitration. Id. at 471-72.

      The Tenth Circuit disagreed with the reasoning of Primerica

and came to the opposite conclusion. In Spahr v. Secco, 330 F.3d

1266, 1273 (10th Cir. 2003), the Tenth Circuit held that a mental

capacity defense of dementia and Alzheimer’s Disease should be

heard by the court for decision in the first instance. The court

reasoned that mental capacity challenges, by their very nature,

cannot be specifically aimed at a contract’s arbitration provision

but are directed at the agreement in whole. In other words, it

would be illogical for a party to claim that a lack of mental

capacity affected his or her ability to enter into a particular

provision of a contract concerning arbitration, but not others.

Consequently,        the    Court     reasoned      that       the     general

challenge/specific challenge distinction drawn in Prima Paint is

inapplicable to mental capacity defenses. Id.

      After Primerica and Spahr were decided, the Supreme Court

revisited Prima Paint in Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440, 445-46, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and

held that “unless the challenge is to the arbitration clause itself

[as   opposed   to   the   contract   as   a   whole],   the   issue   of   the

contract’s validity is considered by the arbitrator in the first


                                      14
instance.”   By   the   same   token,    if    the   challenge   is   to   the

arbitration clause itself, the issue is to be considered by the

court in the first instance. Id. Although the Court found Prima

Paint to be controlling, it specifically noted that it was not

presented with the issue of whether mental capacity defenses, which

raise the question of whether any agreement to arbitrate was ever

concluded, should be decided by the arbitrator or the court under

the FAA. Id. at 444 n.1, 126 S.Ct. 1204. Thus, Buckeye made clear

that Prima Paint’s holding does not control cases such as this one,

where one party to the arbitration agreement is relying upon a

mental capacity defense. Id.

      Since neither Prima Paint nor Buckeye is controlling in this

case, this Court joins the other courts which have found the Tenth

Circuit’s reasoning in Spahr to be persuasive. See Moran v. Svete,

366 Fed. Appx. 624, 632 (6th Cir. 2010) (distinguishing between

cases in which it is alleged the signer lacked the mental capacity

to assent, which go to the existence of the agreement, and cases

where the signer acted “ultra vires,” which go to the validity of

the   agreement   and   are    therefore      properly   submitted    to   the

arbitrator); Reynolds v. Credit Solutions, Inc., 541 F.Supp.2d

1248, 1263 (N.D. Ala. 2008) (explaining that district courts, in

aftermath of Buckeye, recognize that challenges to signatory power,

including mental capacity defenses, are decided by the court);

Washburn v. Beverly Enterprises-Georgia, Inc., No. 106-cv-051, 2006


                                    15
WL     3404804,     at    *1    (S.D.     Ga.    2006)     (unpublished         opinion)

(concluding, on the basis of Spahr, that mental capacity defense to

entire agreement was for court to decide); In re Morgan Stanley &

Co., Inc., 293 S.W.3d 182, 185-87 (Tex. 2009) (same). In doing so,

the Court also notes that this Circuit has “long treated ‘disputes

over the formation of an agreement to arbitrate--i.e., whether the

parties ever agreed to submit anything to arbitration in the first

place’--as     properly        before    the    district    court.”       Toledano     v.

O’Connor, 501 F.Supp.2d 127, 139-40 (D.D.C. 2007) (citing Nat’l

R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 761

(D.C. Cir. 1988)).

       In    this   case,      Plaintiff       challenges    the       making    of   the

Arbitration Agreement on the grounds of intoxication. Neither

Primerica nor Spahr addresses the specific defense of voluntary

intoxication.       However,      under    both     District      of    Columbia      and

California law, voluntary intoxication is a type of mental capacity

defense that permits an individual to avoid a contract if she was

so   intoxicated     at     the   time    of    formation    that      she    could   not

understand the terms and conditions of the agreement. See Harmon v.

Johnston, 8 D.C. 139, 1 MacArth. 139, at *3-4 (1873); Phelan v.

Gardner, 43 Cal. 306 (1872). Because this mental capacity defense

goes    to   the    formation,     or     the    “making”    of     the      Arbitration

Agreement, under § 4 of the FAA it must be decided by this Court.

Consequently, Defendants’ Motion to Compel Arbitration is denied.


                                           16
      C.      Summary Judgment on Plaintiff’s Voluntary Intoxication
              Defense Is Not Appropriate

      Defendants        also   seek     summary         judgment     on   Plaintiff’s

intoxication defense, arguing that Plaintiff cannot bear her burden

of   proof.    Defs.’    Mot. at       18.    Plaintiff disagrees         and   offers

evidence suggesting that she was inebriated when she signed the

Agreement.     See   Pl.’s     Opp’n    at        13.   Whether    Plaintiff    was   so

intoxicated on the night of September 11, 2009, that she was

incapable of understanding the terms of the Arbitration Agreement

is thus a genuine issue of material fact which is in dispute.

Consequently, the Court concludes that summary judgment is not

appropriate. Reeves, 530 U.S. at 150, 120 S.Ct. 2097 (explaining

that a court deciding a motion for summary judgment “may not make

credibility determinations or weigh the evidence”). Defendants’

Motion to Compel Arbitration is therefore denied.

IV. Conclusion

      For the reasons set forth above, Defendants’ Motion to Compel

Arbitration, or, in the Alternative, to Stay the Litigation, is

denied. An Order shall accompany this Memorandum Opinion.



                                         /s/
March 9, 2011                           Gladys Kessler
                                        United States District Judge


Copies to:     Attorneys of Record via ECF




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