                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
MAYA BREWER                   )
                              )
     Plaintiff,               )
                              )
     v.                       )          Civil Action No. 11-2263 (GK)
                              )
HR POLICY ASSOCIATION, et al.,)
                              )
     Defendants.              )
______________________________)

                           MEMORANDUM OPINION

     Plaintiff Maya Brewer brings this action against HR Policy

Association,   McGuiness    &   Yager,   LLP,   and   Jeffrey    McGuiness

(collectively, “Defendants”). Plaintiff asserts causes of action

for discrimination    in   violation of     D.C.   Code   §§   32-501   -517

et seq., and D.C. Code § 2-1401.05 et seq., under the District of

Columbia Family and Medical Leave Act and the District of Columbia

Human Rights Act; for sex and pregnancy discrimination in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000(e) et seq. (“Title VII”); and for negligent infliction of

emotional distress.

     This matter is before the Court on Defendants’ Motion to

Dismiss Plaintiff’s Amended Complaint or, in the Alternative, for

Summary Judgment [Dkt. No. 8]. Upon consideration of the Motion,

Opposition [Dkt. No. 9], Reply [Dkt. No. 11], and the entire record

herein, and for the reasons stated below, Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint or, in the Alternative, for

Summary Judgment is granted in part and denied in part.

I.   Background

     A.     Factual Background1

     Plaintiff Maya Brewer is a resident of Virginia. Defendant, HR

Policy Association (“HR POLICY”) is a non-profit whose principal

place of    business   is   in   the   District   of   Columbia.   Defendant

McGuiness & Yager (“M&Y”), is a limited liability partnership,

whose principal place of business is in the District of Columbia.

Defendant   Jeffrey    McGuiness   (“McGuiness”),      a   resident   of   the

District of Columbia, is the president and CEO of HR POLICY, a

senior partner with M&Y, and was, during the relevant time period,

Brewer’s direct supervisor.

     In August 2009, M&Y hired Brewer as a full-time employee in

the District of Columbia. In July 2010, Brewer informed McGuiness

that she was pregnant and inquired about maternity leave policies.

According to Brewer, she was led to believe that she was the first

employee at HR POLICY or M&Y to ever become pregnant and that

Defendants had not yet formulated a maternity leave policy to

accommodate employees who become pregnant. Amended Complaint (“Am.

Compl.”) ¶ 13. Brewer claims that McGuiness informed her that he

would have to “get back to her” on the specifics of Defendants’


     1
       Unless otherwise noted, the facts set forth herein are drawn
from parties' Statements of Material Facts Not in Dispute submitted
pursuant to Local Rule 7(h).

                                       2
maternity leave policy and their ability to accommodate pregnant

employees. Id.

     According to Brewer, in preparation for her maternity leave,

she undertook efforts to arrange for a temporary fill-in employee

for her position and informed McGuiness of these efforts. Am.

Compl. ¶ 14. Brewer claims that, “[d]espite these efforts, on or

about October 5, 2010, McGuiness informed [her] that her employment

would end following the expiration of any maternity leave taken by

[her].” Id. ¶ 15. According to Brewer, the next day, on October 6,

2010, Tim Bartl, a partner with M&Y, told her “that he wanted to

‘clear the air’ and informed her that she was ‘not necessarily

being terminated per se’ but that she would have to re-apply for

her job when she wished to return to work after the birth of her

child.” Id. ¶ 16. Brewer claims that she was “distraught and

confused as to the status of her employment,” but continued to

carry out her work duties. Id.

     In October 2010, M&Y permitted Brewer to work from home due to

her pregnancy. While working from home, Brewer continued to receive

her full salary.

     According to Brewer, on November 5, 2010, HR POLICY publicly

announced in an email blast the hiring of Vicky Mitchell to fill

her position. Id. ¶ 17. Brewer states that on November 9, 2010,

McGuiness emailed her to ask where she would like her personal

belongings sent. Id. ¶ 18. Shortly thereafter, Brewer claims that


                                 3
her name was removed from HR POLICY’S website. Id. ¶ 19. Finally,

Brewer contends that her voicemail greeting was deleted in November

2010 and her telephone extension was assigned to Vicky Mitchell.

Id. ¶ 20.

     On or about November 13, 2010, Brewer gave birth to her child.

On November 15, 2010, as part of M&Y’s short term disability plan,

Brewer began to receive 60% of her salary for three weeks following

the birth of her child. Brewer received holiday pay as follows: two

and one-half days in November 2010 for Thanksgiving; three days in

December 2010 for Christmas and New Years; one day in January 2011

for Martin Luther King Day; and one day in March 2011 for a firm

holiday.

     On or about December 21, 2010, Brewer emailed Marisa Milton,

then a partner with M&Y and an officer with HR POLICY, informing

Ms. Milton that she was ready to return to work. Brewer’s email was

not answered.

     In early January 2011, McGuiness received a demand letter on

behalf of Brewer from Scott Lovernick of Jeffrey Scott, LLP, a law

firm in San Francisco. The letter was dated December 27, 2010, six

days after Brewer sent her email to Ms. Milton. In that letter, Mr.

Lovernick stated that his firm had been retained by Brewer to

pursue her claims related to “the company’s decision to terminate

her employment.” The letter also stated that Brewer was an employee

of HR POLICY.


                                4
     On January 13, 2011, M&Y, through one of its partners, Michael

Peterson, responded to Mr. Lovernick’s December 27, 2010 letter,

stating that Brewer was M&Y’s employee and that Brewer had not been

terminated, but was on leave. The letter further explained that

Brewer was still on M&Y’s health plan and that it continued to pay

her benefits. In closing, the letter stated, “[w]e anticipate

hearing from Maya [Brewer] regarding her post-leave plans and

discussing with her the opportunities going forward with the firm.”

Brewer did not contact M&Y in response to that letter.

     On February 4, 2011, M&Y received a second letter from Mr.

Lovernick,   dated   January   31,   2011,   in   which   he   repeated   his

position that Brewer had been terminated. Mr. Lovernick also noted

that Brewer had sent an email to Ms. Milton on December 21, 2010,

but that Ms. Milton had not responded.

     According to Defendants, no one at M&Y, including Ms. Milton,

received or was aware of the email Brewer sent on December 21,

2010. Defs.’ SOMF ¶ 38. Defendants contend that upon receipt of the

January 31, 2011 letter from Mr. Lovernick, M&Y’s information

technology consultant found that the email never reached Ms.

Milton, as it went directly into “spam mail.” Id.

     On February 7, 2011, M&Y sent another letter to Mr. Lovernick,

reiterating that Brewer was still an employee; that she continued

to be on M&Y’s health plan; that she continued to have her health

benefit premiums paid by M&Y; and that she had been paid for the


                                     5
Martin Luther King Day holiday in January 2011. M&Y concluded the

letter with an invitation to hear “directly from Maya [Brewer] to

discuss her post-leave plans and her opportunities going forward

with the firm.”

       On February 15, 2011, M&Y sent a letter directly to Brewer

reiterating that she was still an employee of M&Y. M&Y again

requested that Brewer contact M&Y to discuss her post-leave plans

with the firm. Brewer did not respond to that letter.

       On March 15, 2011 M&Y sent another letter to Brewer. In that

letter M&Y stated that because it had not heard from Brewer or her

attorney,    it   assumes   that    she   terminated   the   employment

relationship. The letter also stated that if that assumption is

incorrect or if Brewer wants to continue her employment with M&Y,

she should contact McGuiness by March 22, 2011.

       On March 23, 2011, having heard nothing from Brewer or her

attorney, M&Y’s Director of Finance sent Brewer a continuation of

coverage letter for her health benefits.

       B.   Procedural Background

       On December 20, 2011, Plaintiff filed her Complaint against

Defendants [Dkt. No. 1].

       On December 29, 2011, Plaintiff received her right-to-sue

letter from the EEOC as it relates to claims brought under Title

VII.




                                    6
      On February 8, 2012, Defendants filed their Motion to Dismiss,

or in the Alternative, for Summary Judgment on all counts of

Brewer’s Original Complaint. [Dkt. No. 5]. Plaintiff did not oppose

Defendants’ First Motion to Dismiss. Instead, on February 24, 2012,

she filed an Amended Complaint. [Dkt. No. 7].

      On March 12, 2012, Defendants filed a Motion to Dismiss

Plaintiff’s Amended Complaint or, in the Alternative, for Summary

Judgment [Dkt. No. 8]. On March 26, 2012 Plaintiff filed her

Opposition to Defendants’ Motion to Dismiss her Amended Complaint

[Dkt. No. 9]. On April 2, 2012, Defendants filed their Reply to

Plaintiff’s Opposition [Dkt. No. 11].

II.   Standard of Review

      Defendants move to dismiss Plaintiff's Complaint or, in the

alternative, for summary judgment. Where, as here, the Court must

consider “matters outside the pleading” to reach its conclusion, a

Motion to Dismiss “must be treated as one for summary judgment and

disposed of as provided in Rule 56.” See Fed. R. Civ. P. 12(b); see

also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir.

2003) (noting that when a judge considers matters outside the

pleadings,   a   motion   to   dismiss   under   Rule   12(b)(6)   must   be

converted into a Motion for Summary Judgment under Rule 56).

      Under Rule 56, summary judgment may be granted “only if” the

pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material


                                    7
fact and that the moving party is entitled to judgment as a matter

of law. See Fed. R. Civ. P. 56(c), as amended December 1, 2007;

Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). “A

dispute over a material fact is ‘genuine’ if ‘the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)). A fact is “material” if it might affect the

outcome of the case under the substantive governing law. Liberty

Lobby, 477 U.S. at 248.

     In deciding a motion for summary judgment, “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

(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 251–52. Summary judgment

is appropriate if the non-movant fails to offer “evidence on which

the jury could reasonably find for the [non-movant].” Id. at 252.

III. Analysis

     A.   Count I:   The DCFMLA and DCHRA

     Plaintiff claims that Defendants discriminated against her in

violation of the District of Columbia Family and Medical Leave Act




                                 8
(DCFMLA),2 D.C. Code §§ 32-501-517 et seq., and the District of

Columbia Human Rights Act (DCHRA),3 D.C. Code § 2-1401.05 et seq.

Amended   Compl.   ¶¶   23-27.   Plaintiff   alleges   that   “Defendants

terminated [her] with knowledge and because of her pregnancy/sex

and after she requested maternity leave” and that “[a]s a result of

defendants’ conduct, [she] has experienced humiliation, mental

anguish and physical and emotional distress and is entitled to

economic damages exceeding $1,000,000.” Id. at ¶¶ 24, 26. Plaintiff

further alleges that “Defendants’ [] acts were willful, malicious




     2
       The DCFMLA provides employees of a covered employer with
sixteen weeks of protected medical leave during any twenty-four-
month period. D.C. Code § 32-503(a). The act guarantees that an
“employee returning from medical leave will be restored to the same
position which that employee held when the leave began, or to an
equivalent position.” Harrison v. Children’s Nat’l Med. Ctr., 678
A.2d 572, 575 (D.C. 1996); see also D.C. Code § 32-505(d).
Additionally, to the extent that employment benefits were provided
prior to the temporary leave period, an employer is required to
continue providing those benefits after an employee takes protected
leave. See § 32-505(a). The act provides that an employee may bring
a private cause of action to enforce its provisions. D.C. Code §
32-510(a).
     3
       The DCHRA provides in relevant part that “discrimination on
the basis of sex shall include, but not be limited to,
discrimination on the basis of pregnancy...” and that “women
affected by pregnancy...shall be treated the same for all
employment-related purposes, including receipt of benefits under
fringe benefit programs, as other persons not so affected but
similar in their ability or inability to work, and this requirement
shall include, but not be limited to, a requirement that an
employer must treat an employee temporarily unable to perform the
functions of her job because of her pregnancy-related condition in
the same manner as it treats other employees with temporary
disabilities.” D.C. Code § 2-1401.05.

                                    9
and oppressive” and that as such “[she] is entitled to an award of

punitive damages.” Id. at ¶ 27.

            1.   Defendants’ Motion to Dismiss Plaintiff’s DCFMLA
                 Claim Is Granted

     Defendants argue that judgment should be granted in their

favor on Plaintiff’s DCFMLA claim because they were not covered

employers. Defendants contend that “it is uncontroverted” that the

number of employees for any and all Defendants, whether jointly or

severally, is fewer than the twenty employees required to allege a

claim under the DCFMLA.4 Defs.’ MTD at 19. Defendants additionally

argue that the DCFMLA claim is untimely as to all Defendants and

therefore fails to state a claim. Id. at 24-26

     Plaintiff responds that a genuine issue of material fact

exists as to whether Defendants are covered employees under the

DCFMLA. Plaintiff argues that “[w]ithout the benefit of discovery

[she]    identifies   thirty-two   (32)   individuals   whom   she   worked

alongside at defendants McGuiness & Yager and HR POLICY during from

[sic] August 2009 - October 2010.” Pl.’s Opp’n at 6; see also

Brewer Decl. ¶ 17. Plaintiff does not oppose Defendants’ argument

that her DCFMLA claim is untimely.

     The DCFMLA has a one-year statute of limitations. See D.C.

Code § 32-510(b)(2001). The District of Columbia Code provides that



     4
       In order to be a covered employer under the DCFMLA, the
employer must employ twenty or more persons in the District of
Columbia. D.C. Code 32-516(2).

                                    10
“[n]o civil action may be commenced more than 1 year after the

occurrence or discovery of the alleged violation [of the DCFMLA]”

D.C. Code § 32-510(b)(2001). Since Brewer filed her Complaint on

December 20, 2011, any alleged adverse employment action prior to

December 21, 2010 is not actionable.

     Plaintiff claims to have been terminated on either October 5,

2010 or October 6, 2010, dates that do not fall within the DCFMLA’s

one year limitations period. See Am. Compl. ¶¶ 15-16. Plaintiff has

presented no opposition to Defendants’ argument that her claim is

untimely. Therefore, Defendants’ Motion to Dismiss Plaintiff’s

DCFMLA claim is granted.

          2.   Defendants’ Motion to Dismiss Plaintiff’s DCHRA
               Claim Is Granted

     Defendants argue that Plaintiff’s DCHRA Claim is untimely as

to HR POLICY and McGuiness.5 Defs.’ MTD at 26.   Defendants further

argue that “Plaintiff’s allegations in the Amended Complaint are

the type of conclusory and formulaic recitations disregarded by the

Supreme Court in [Ashcroft v. Iqbal, 566 U.S. 662 (2009)]” and that

“[t]he factual averments, whether timely or not, do not suggest or

imply discrimination on account of pregnancy.” Id. at 27. Plaintiff

does not oppose Defendants’ arguments.




     5
       M&Y does not seek dismissal of the DCHRA claim on timelines
grounds “assuming arguendo that the filing of a Charge of
Discrimination with the EEOC tolled the cause of action against
it.” Defs.’ MTD at 26 n.26.

                                11
     Like      the    DCFMLA,    the     DCHRA    has    a   one-year      statute         of

limitations. See D.C. Code § 2-1403.16(a). Again, Plaintiff has

presented no opposition to Defendants’ argument that her DCHRA

claim is untimely. Moreover, the Court agrees with the Defendants’

unopposed argument that Plaintiff failed to sufficiently allege a

claim under the DCHRA. Accordingly Defendants’ Motion to Dismiss

Plaintiff’s DCHRA claim is granted.

     B.     Count II:         Title VII

     Under Title VII, it is unlawful “for an employer to fail or

refuse to      hire     or   to discharge        any    individual,       or   otherwise

discriminate against any individual with respect to his [or her]

compensation,        terms,    condition,      or      privileges    of    employment,

because   of    such     individual’s      race,       color,    religion,         sex,    or

national origin.”. 42 U.S.C. § 2000e-2(a)(1). The term “employer”

under Title VII refers to “a person who has fifteen or more

employees for each working day in each of twenty or more calendar

weeks in the current or preceding calendar year...” 42 U.S.C.

§ 2000e(b).

     Plaintiff        alleges     that    “Defendants’          termination        of     her

employment      based    on    her   sex/pregnancy        constitutes          a   willful

violation of Title VII of the Civil Rights Act of 1964, as amended,

entitling [her] to all relief afforded by the statute, including

punitive damages.” Am. Compl. ¶ 29.




                                          12
              1.     Defendants’ Motion to Dismiss Plaintiff’s Title VII
                     Claim as to McGuiness Is Granted

     The case law in this Circuit is clear that individuals may not

be held personally liable under Title VII. Yesudian ex rel. U.S. v.

Howard Univ., 270 F.3d 969, 972 (D.C. Cir. 2001) (“[W]e and all

other circuits have held that the word ‘employer’ [under Title VII]

does not cover a supervisor in his [or her] personal capacity.”);

see also Brown v. Children’s Nat’l Medical Ctr., 773 F. Supp. 2d

125, 134, 135 (D.D.C. 2011) (granting motion to dismiss individuals

from Title VII claims)(citing Gary v. Long, 59 F.3d 1391, 1393

(D.C.   Cir.       1995).   Accordingly,       Defendants’     Motion   to   Dismiss

Plaintiff’s Title VII claim against McGuiness is granted.

         2.          Defendants’ Motion to Dismiss Plaintiff’s Title VII
                     Claim as to HR POLICY and M&Y Is Denied

     Defendants contend that Brewer failed to set forth a prima

facie case for a violation of Title VII because none of the

Defendants had fifteen or more employees for twenty or more weeks

for any year in which Plaintiff was employed. Defs.’ MTD at 30.

Defendants contend that “[HR POLICY and McGuiness] did not have any

employees      in    2009   or   2010,   and    that   [M&Y]    employed     only   10

employees in July 2010 and never had 20 employees in any week in

2009 or 2010 in the District of Columbia.” Id. at 31. To support

their position, Defendants point to records from M&Y’s payroll

vendor, which they contend show that M&Y never had fifteen or more




                                          13
employees for twenty weeks in any relevant year. Defs.’ Reply at

12; see Exhibit 4 to Defs.’ MTD.

       Plaintiff responds that there is a genuine dispute regarding

whether Defendants, either jointly or severally, were “employers,”

as defined by Title VII. To support her argument, Plaintiff points

to a print-out from the current6 HR POLICY website, which lists

twenty-one individuals under the category of “Officers & Staff.”

Exhibit 3 to Pl.’s Opp’n. Plaintiff also identifies by name twenty-

eight individuals who she claims to have “worked with during 2009-

2010 while employed by [M&Y] and HR POLICY.” Brewer Decl. ¶ 17.

Plaintiff further argues that even if the Court determines that

“any   of   Plaintiff’s   claims   are   insufficiently   pleaded,   then

Plaintiff should be provided an opportunity to conduct discovery

[under Federal Rule of Civil Procedure 56(d)] and thereafter

receive leave to amend.” Pl.’s Opp’n at 12.

       It is well established in this Circuit that summary judgment

“ordinarily ‘is proper only after the [non-moving party] has been

given adequate time for discovery.’” Americable Int'l, Inc. v.

Dep't of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (quoting First

Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir.

1988)). Under Federal Rule of Civil Procedure 56(d), a court “may

deny a motion for summary judgment or order a continuance to permit


     6
       Plaintiff contends that she does not have access to HR POLICY
website history to determine who was listed as employees during the
period of her employment. Brewer Decl. ¶ 19.

                                    14
discovery if the party opposing the motion adequately explains why,

at that timepoint, it cannot present by affidavit facts needed to

defeat   the   motion.”   Strang   v.    United   States   Arms   Control   &

Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989). Rule 56(d)

is “intended to prevent railroading a non-moving party through a

premature motion for summary judgment before the non-moving party

has had the opportunity to make full discovery.” Milligan v.

Clinton, 266 F.R.D. 17, 18 (D.D.C. 2010) (citations omitted).

Therefore, “District Courts are afforded discretion in ruling on

requests for additional discovery pursuant to Rule 56[d].” Stella

v. Mineta, 284 F.3d 135, 147 (D.C. Cir. 2002).7

     In this case, Defendants’ Motion was filed on March 12, 2012,

well before discovery had begun.8 In fact, at this time, discovery

remains at an early stage and is not scheduled to end until

December 15, 2012. In responding to Defendants’ Motion, Plaintiff

identified with adequate specificity the discovery she needs to

oppose Defendants’ argument that it is not an “employer” under

Title VII, including, but not limited to discovery topics such as:

“the nature and relationship, or ‘economic realities’ of the

partners/employees/officers/staff at [M&Y] or HR POLICY;” and the


     7
       Prior to the 2010 amendments to the Federal Rules of Civil
Procedure, Rule 56(d) was codified as Rule 56(f).         It was
recodified with no substantial changes. See Fed. R. Civ. P. 56(d)
committee note to 2010 Amendments.
     8
      On July 9, 2012, the Court issued a Scheduling Order setting
discovery deadlines. Scheduling Order [Dkt. No. 14].

                                    15
nature of the relationship between M&Y and HR POLICY.9 See Pl.’s

Opp’n at 10.

     Based on Plaintiff’s representations in her Opposition, the

Court agrees that resolution of Defendants’ challenge to her Title

VII claim is premature because discovery is at such an early stage,

and the Defendants’ challenge involves disputed factual questions.

Defendants raise no other grounds for judgment on Plaintiff’s Title

VII claim. Accordingly, Defendants’ Motion to Dismiss Plaintiff’s

Title VII claim against HR POLICY and M&Y is denied.

     C.   Count III: Negligent Infliction of Emotional Distress

     Plaintiff claims that “Defendants’ intentional, malicious,

willful   and     wanton    acts    toward   [her]    constitute    negligent

infliction of emotional distress entitling [her] to all relief

allowed by law, including the award of compensatory, general and

punitive damages.” Am. Compl. ¶ 31.

     Defendants     argue    that    Plaintiff’s      claim   for   negligent

infliction   of    emotional   distress      should   be   dismissed   because

“Brewer fails to allege any factual support for her claim.” Defs.’

MTD at 36.




     9
       Plaintiff argues that “[a] genuine issue of fact [] exists
as to whether defendants McGuiness & Yager and HR POLICY are ‘alter
egos’ of one another or ‘joint employers’” whereby an employee of
one should also count as an employee of the other under Title VII.
Pl.’s Opp’n at 7-8. She then points to evidence supporting her
theory that M&Y and HR POLICY are joint employers. Id. at 9-10.

                                      16
      In this Circuit, to recover for negligent infliction of

emotional distress, a plaintiff must show either that “(1) the

emotional distress resulted from direct physical injury or (2) if

there is no physical impact, he [or she] was present in the zone of

physical danger created by the defendant’s negligence and feared

for his [or her] own safety.” Kun v. Finnegan, Handerson, Farabow,

Garrett & Dunner, 949 F. Supp. 13, 20 (D.D.C. 1998) (citing Mackey

v. United States, 8 F.3d 826, 831 (D.C. Cir. 1993); Ryczek v. Guest

Services, Inc., 877 F. Supp. 754, 764 (D.D.C. 1995)).

      Plaintiff does not allege that any emotional distress resulted

from direct physical injury. Plaintiff also does not allege that

she was present in a zone of physical danger created by Defendants’

negligence   and   that   she   feared   for   her   own   safety.   Finally,

Plaintiff does not oppose Defendants’ argument that she failed to

state a claim for negligent infliction of emotional distress.

Accordingly, Defendants’ Motion to Dismiss Plaintiff’s claim for

negligent infliction of emotional distress is granted.

IV.   CONCLUSION

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

Plaintiff’s Amended Complaint or, in the Alternative, for Summary




                                    17
     Judgment is granted in part and denied in part. An Order will

accompany this Memorandum Opinion.




                                      /s/
August 28, 2012                      Gladys Kessler
                                     United States District Judge


Copies via ECF to all counsel of record




                               18
