1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 ALEXIS MASCHMEIER, et al., Case No. 22-cv-00315-RMI
9 Plaintiffs, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 10 v. Re: Dkt. No. 18 11 UNITED STATES OF AMERICA, 12 Defendant.
13 14 This case involves an action by the parents and grandmother of a deceased infant against 15 the United States, a medical center, and medical staff1 for (1) wrongful death (titled “professional 16 negligence – medical malpractice”); (2) negligent infliction of emotional distress (“NIED”) upon a 17 direct victim, the Plaintiff mother; (4) NIED upon two bystanders, the Plaintiff father and 18 grandmother; (5) “medical and related expenses” as part of a survival action; and (6) loss of 19 consortium. See Compl. (dkt. 1) at 5–9. 20 As to Plaintiffs’ two claims for NIED, Defendant United States filed a Motion to Dismiss 21 for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Pl.’s Mot. (dkt. 22 18). First, Defendant’s Motion notes that Plaintiffs’ “stand-alone claim for [NIED upon the 23 Plaintiff mother] . . . is subsumed in [Plaintiffs’] professional negligence claims”; therefore, that 24 standalone claim is improper. Def.’s Mot. (dkt. 18) at 4; see Burgess v. Superior Ct., 831 P.2d 25 1197, 1202 (1992) (“Any negligence during delivery which causes injury to the fetus and resultant 26 emotional anguish to the mother, therefore, breaches a duty owed directly to the mother.”). 27 1 Burgess v. Superior Ct., 831 P.2d 1197, 1202 (1992). Plaintiffs concede this point while 2 requesting “leave of court to amend [the] Complaint to move allegations pled in the second cause 3 of action to the first cause of action.” Pl.’s Response (dkt. 20) at 2. The court GRANTS Plaintiffs’ 4 request. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1988) (the standard 5 for granting leave to amend is “generous”); Breier v. N. Cal. Bowling Proprietors’ Ass’n, 316 F.2d 6 787, 789 (9th Cir. 1963) (even where the request appears in opposition to a motion to dismiss and 7 is not formally tendered). Second, Defendant requests that Plaintiffs’ request for prejudgment 8 interest under the Federal Tort Claims Act be struck because such relief is not statutorily available. 9 See Def.’s Mot. (dkt. 18) at 1. Plaintiffs again concede; thus, the request for prejudgment interest is 10 hereby STRICKEN. See Pl.’s Resp. (dkt. 20) at 2. 11 For the reasons stated below, the Motion to Dismiss is GRANTED. 12 RELEVANT BACKGROUND 13 The Complaint states that on October 10, 2019, the Plaintiff mother, forty-one weeks 14 pregnant, arrived at Mad River Community Hospital reporting “decreased fetal movements . . . 15 that day,” for which she was admitted and received “Cervidil . . . for labor induction.” Compl. 16 (dkt. 1) at 4. During labor, the Plaintiff mother experienced “tachysystole and decelerations,” 17 described also as “intermittent late and/or variable late decelerations,” yet “Cervidil was not 18 stopped” and “the baby was not urgently delivered.” Id. Plaintiffs allege “a delay in taking [the 19 Plaintiff mother] to the [o]perating [r]oom from the time the decision had been made to perform 20 [a] C-section to the time she was taken to the [o]perating [r]oom” and a subsequent delay, “as a 21 result of which [the newborn] was delivered hours later.” Id. at 4–5. Upon performance of a C- 22 section, the newborn was “delivered alive with [an] umbilical cord wrapped around her neck.” Id. 23 at 5. After thirty-seven minutes of attempted resuscitation, the newborn passed away. Id. 24 As to Plaintiffs’ claims for NIED upon a bystander, the Complaint states that the Plaintiff 25 father and grandmother, “who were present during labor and delivery and were aware of the fetal 26 distress and observed the injuries, were grief stricken” and “sustained severe injury to their health, 27 severe emotional stress, shock and other highly unpleasant emotions, causing [] injury and damage 1 injuries and damages sustained by . . . [the Plaintiff mother], who was in labor and under the 2 influence of medication administered by defendants, and . . . [the newborn], who was in distress”; 3 “were aware that [the Plaintiff mother and newborn] . . . suffer[ed] from . . . decelerations 4 throughout labor with insufficient or no interventions by defendants”; and “were aware that 5 although [the Plaintiff mother and newborn] were experiencing tachysystole and non-reassuring 6 fetal heart rate tracings clearly visible on the monitor, Cervidil was not stopped.” Id. at 7–8. 7 Additionally, the Plaintiff father and grandmother “observed the nurses’ concern in trying to 8 normalize [the newborn’s] heart rate tracings”; “were aware that [the newborn] was not receiving 9 the necessary medical care to survive as her mother was not being taken to the [o]perating [r]oom 10 for a . . . C-section”; and “were continuing to suffer because defendants were not giving them the 11 medical attention that they needed . . . .” Id. at 8. 12 LEGAL STANDARD 13 A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief 14 can be granted “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th 15 Cir. 2001). Dismissal under Rule 12(b)(6) may be based on either (1) the “lack of a cognizable 16 legal theory,” or (2) “the absence of sufficient facts alleged under a cognizable legal theory.” 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). While “detailed factual 18 allegations” are not required, a complaint must include sufficient facts to “state a claim to relief 19 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has facial 20 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 21 inference that the defendant is liable for the misconduct alleged.” Id. 22 For purposes of ruling on a Rule 12(b)(6) motion to dismiss, a court accepts all allegations 23 of material fact as true and construes the pleadings in the light most favorable to the plaintiffs. 24 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court need 25 not, however, accept as true pleadings that are no more than legal conclusions or the “formulaic 26 recitation of the elements’ of a cause of action.” Iqbal, 556 U.S. at 663. Mere “conclusory 27 allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for 1 DISCUSSION 2 Defendant argues that Plaintiffs’ claim for bystander recovery as to the Plaintiff father and 3 grandmother should be dismissed because the Complaint “do[es] not allege that [Plaintiffs] were 4 able to see the death of the fetus, nor . . . sense or observe it,” and such claims under California 5 law “are not cognizable in the context of labor and delivery when the plaintiffs are ‘passive 6 spectators’ that learned of the fetus’[] death after the fact.” Def.’s Mot. (dkt. 18) at 4, 5. Plaintiffs 7 respond that the father and grandmother observed the newborn’s “unresponsiveness and . . . death 8 after unsuccessful resuscitation efforts” (Pls.’ Opp. (dkt. 20) at 6), while contesting Defendant’s 9 use of the word “stillbirth” in the issues section of its Motion.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 ALEXIS MASCHMEIER, et al., Case No. 22-cv-00315-RMI
9 Plaintiffs, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 10 v. Re: Dkt. No. 18 11 UNITED STATES OF AMERICA, 12 Defendant.
13 14 This case involves an action by the parents and grandmother of a deceased infant against 15 the United States, a medical center, and medical staff1 for (1) wrongful death (titled “professional 16 negligence – medical malpractice”); (2) negligent infliction of emotional distress (“NIED”) upon a 17 direct victim, the Plaintiff mother; (4) NIED upon two bystanders, the Plaintiff father and 18 grandmother; (5) “medical and related expenses” as part of a survival action; and (6) loss of 19 consortium. See Compl. (dkt. 1) at 5–9. 20 As to Plaintiffs’ two claims for NIED, Defendant United States filed a Motion to Dismiss 21 for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Pl.’s Mot. (dkt. 22 18). First, Defendant’s Motion notes that Plaintiffs’ “stand-alone claim for [NIED upon the 23 Plaintiff mother] . . . is subsumed in [Plaintiffs’] professional negligence claims”; therefore, that 24 standalone claim is improper. Def.’s Mot. (dkt. 18) at 4; see Burgess v. Superior Ct., 831 P.2d 25 1197, 1202 (1992) (“Any negligence during delivery which causes injury to the fetus and resultant 26 emotional anguish to the mother, therefore, breaches a duty owed directly to the mother.”). 27 1 Burgess v. Superior Ct., 831 P.2d 1197, 1202 (1992). Plaintiffs concede this point while 2 requesting “leave of court to amend [the] Complaint to move allegations pled in the second cause 3 of action to the first cause of action.” Pl.’s Response (dkt. 20) at 2. The court GRANTS Plaintiffs’ 4 request. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1988) (the standard 5 for granting leave to amend is “generous”); Breier v. N. Cal. Bowling Proprietors’ Ass’n, 316 F.2d 6 787, 789 (9th Cir. 1963) (even where the request appears in opposition to a motion to dismiss and 7 is not formally tendered). Second, Defendant requests that Plaintiffs’ request for prejudgment 8 interest under the Federal Tort Claims Act be struck because such relief is not statutorily available. 9 See Def.’s Mot. (dkt. 18) at 1. Plaintiffs again concede; thus, the request for prejudgment interest is 10 hereby STRICKEN. See Pl.’s Resp. (dkt. 20) at 2. 11 For the reasons stated below, the Motion to Dismiss is GRANTED. 12 RELEVANT BACKGROUND 13 The Complaint states that on October 10, 2019, the Plaintiff mother, forty-one weeks 14 pregnant, arrived at Mad River Community Hospital reporting “decreased fetal movements . . . 15 that day,” for which she was admitted and received “Cervidil . . . for labor induction.” Compl. 16 (dkt. 1) at 4. During labor, the Plaintiff mother experienced “tachysystole and decelerations,” 17 described also as “intermittent late and/or variable late decelerations,” yet “Cervidil was not 18 stopped” and “the baby was not urgently delivered.” Id. Plaintiffs allege “a delay in taking [the 19 Plaintiff mother] to the [o]perating [r]oom from the time the decision had been made to perform 20 [a] C-section to the time she was taken to the [o]perating [r]oom” and a subsequent delay, “as a 21 result of which [the newborn] was delivered hours later.” Id. at 4–5. Upon performance of a C- 22 section, the newborn was “delivered alive with [an] umbilical cord wrapped around her neck.” Id. 23 at 5. After thirty-seven minutes of attempted resuscitation, the newborn passed away. Id. 24 As to Plaintiffs’ claims for NIED upon a bystander, the Complaint states that the Plaintiff 25 father and grandmother, “who were present during labor and delivery and were aware of the fetal 26 distress and observed the injuries, were grief stricken” and “sustained severe injury to their health, 27 severe emotional stress, shock and other highly unpleasant emotions, causing [] injury and damage 1 injuries and damages sustained by . . . [the Plaintiff mother], who was in labor and under the 2 influence of medication administered by defendants, and . . . [the newborn], who was in distress”; 3 “were aware that [the Plaintiff mother and newborn] . . . suffer[ed] from . . . decelerations 4 throughout labor with insufficient or no interventions by defendants”; and “were aware that 5 although [the Plaintiff mother and newborn] were experiencing tachysystole and non-reassuring 6 fetal heart rate tracings clearly visible on the monitor, Cervidil was not stopped.” Id. at 7–8. 7 Additionally, the Plaintiff father and grandmother “observed the nurses’ concern in trying to 8 normalize [the newborn’s] heart rate tracings”; “were aware that [the newborn] was not receiving 9 the necessary medical care to survive as her mother was not being taken to the [o]perating [r]oom 10 for a . . . C-section”; and “were continuing to suffer because defendants were not giving them the 11 medical attention that they needed . . . .” Id. at 8. 12 LEGAL STANDARD 13 A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief 14 can be granted “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th 15 Cir. 2001). Dismissal under Rule 12(b)(6) may be based on either (1) the “lack of a cognizable 16 legal theory,” or (2) “the absence of sufficient facts alleged under a cognizable legal theory.” 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). While “detailed factual 18 allegations” are not required, a complaint must include sufficient facts to “state a claim to relief 19 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has facial 20 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 21 inference that the defendant is liable for the misconduct alleged.” Id. 22 For purposes of ruling on a Rule 12(b)(6) motion to dismiss, a court accepts all allegations 23 of material fact as true and construes the pleadings in the light most favorable to the plaintiffs. 24 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court need 25 not, however, accept as true pleadings that are no more than legal conclusions or the “formulaic 26 recitation of the elements’ of a cause of action.” Iqbal, 556 U.S. at 663. Mere “conclusory 27 allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for 1 DISCUSSION 2 Defendant argues that Plaintiffs’ claim for bystander recovery as to the Plaintiff father and 3 grandmother should be dismissed because the Complaint “do[es] not allege that [Plaintiffs] were 4 able to see the death of the fetus, nor . . . sense or observe it,” and such claims under California 5 law “are not cognizable in the context of labor and delivery when the plaintiffs are ‘passive 6 spectators’ that learned of the fetus’[] death after the fact.” Def.’s Mot. (dkt. 18) at 4, 5. Plaintiffs 7 respond that the father and grandmother observed the newborn’s “unresponsiveness and . . . death 8 after unsuccessful resuscitation efforts” (Pls.’ Opp. (dkt. 20) at 6), while contesting Defendant’s 9 use of the word “stillbirth” in the issues section of its Motion. Compare Pls.’ Response (dkt. 20) at 10 5 (“Plaintiffs . . . never alleged or conceded that [the newborn] was stillborn.”) with Def.’s Mot. 11 (dkt. 18) at 2). 12 Bystander recovery is permitted where a plaintiff is “(1) near the scene of the accident, 13 (2) directly shocked by witnessing the accident, and (3) closely related to the injured third party.” 14 In re Air Crash Disaster Near Cerritos, Cal., Aug. 31, 1986, 973 F.2d 1490, 1492 (9th Cir. 1992); 15 see also Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (establishing modern bystander recovery in 16 California). “Witnessing the accident” means a bystander possessed “sensory and 17 contemporaneous observance of the accident, as contrasted with learning of the accident from 18 others after its occurrence.” Justus v. Atchison, 19 Cal. 3d 564, 582 (1977), disapproved of 19 by Ochoa v. Superior Ct., 39 Cal. 3d 159, 703 P.2d 1 (1985), and disapproved of by Shalabi v. 20 City of Fontana, 11 Cal. 5th 842, 489 P.3d 714 (2021). In the context of fetus delivery and death, 21 the element of “sensory and contemporaneous observance” requires more than a bystander’s 22 observance of, and presence during, the medical procedure of delivery, emergency measures taken 23 during delivery, expressions of concern by medical staff, prolapse of the umbilical cord, and 24 irregular fetal heart tones; nor is a bystander’s presence during the announcement of fetus death, or 25 during “disturbing developments in the delivery room” sufficient. See id. at 584–85. Instead, “the 26 event causing injury . . . must itself be one which can be the subject of sensory perception.” Jansen 27 v. Children’s Hospital Medical Center, 31 Cal. App. 3d 22, 24 (1973). Moreover, in the context of 1 layperson’s ability to recovery for NIED upon a bystander: 2 In other NIED cases decided after Thing, and based on alleged 3 medical negligence, courts have not found a layperson’s observation of medical procedures to satisfy the requirement of contemporary 4 awareness of the injury-producing event. This is not to say that a layperson can never perceive medical negligence, or that one who 5 does not perceive it cannot assert a valid claim for NIED. To suggest an extreme example, a layperson who watched as a relative’s sound 6 limb was amputated by mistake might well have a valid claim for NIED against the surgeon. Such an accident, and its injury-causing 7 effect, would not lie beyond the plaintiff’s understanding awareness. But the same cannot be assumed of medical malpractice generally. 8 9 Bird v. Saenz, 28 Cal. 4th 910, 917-18 (2002) (emphases added) (internal citation omitted); see 10 also Mota v. Tri-City Healthcare Dist., No. 18-CV-2775-AJB-NLS, 2020 WL 1245372, at *5 11 (S.D. Cal. Mar. 16, 2020). 12 In Justus, the court denied bystander recovery to two plaintiff fathers alleging medical 13 negligence resulting in fetal death, where, like here, the fathers were present in the delivery room 14 and near to their wives during unsuccessful emergency ministrations. 19 Cal. 3d at 584. Both 15 fathers observed prolapse of the umbilical cord. Id. One saw “the manipulation of the fetus with 16 forceps and by hand,” and an “attempted Caesarian section,” whereas the other observed “the 17 diminution of the fetal heart tones and . . . the failure of the doctor to respond promptly when 18 called.” Id. The court reasoned that “although each plaintiff was in attendance at the death of the 19 fetus, that event was by its very nature hidden from his contemporaneous perception: he could not 20 see the injury to the victim . . .” Id. 21 In the present case, Plaintiffs fail to state a claim for bystander recovery because, even 22 while granting that the newborn was alive at birth, the Complaint fails to support the contention 23 that the Plaintiff father and grandmother were aware, or could even perceive as laypersons, that 24 any one medical intervention – whether it be the administration of Cervidil, the performance of a 25 C-section, or the performance of emergency resuscitation, etc. – was the injury-producing event as 26 it was occurring. See Thing v. La Chusa, 771 P.2d 814, 830 (Cal. 1989) (emphasizing the 27 necessity of a bystander’s “presen[ce] at the scene of the accident,” “observance of defendant’s 1 223 Cal. App. 3d 1415, 1427–28 (1990) (emphasizing “a contemporaneous sensory awareness of 2 the causal connection between the negligent conduct and the resulting injury”); Bird, 28 Cal. 4th at 3 917–18. 4 Although, as in Jansen, the Plaintiff father and grandmother were present during delivery 5 and witnessed decelerations throughout labor, irregular fetal heart tones, and expressions of 6 concern by nurses, observing these events were not the same as contemporaneously perceiving and 7 being aware of an accident (acts or omissions by medical providers) that were understandable by 8 laypersons to have caused the injury or injuries in question. See Compl. (dkt. 1) at 7–8; see also 9 Jansen, 31 Cal. App. 3d at 24; see also Bird, 28 Cal. 4th at 917–18. Moreover, while the 10 Complaint alleges that the Plaintiff father and grandmother were “contemporaneously aware of the 11 injuries and damages sustained by their wife and [newborn],” it fails to identify the actual accident 12 that caused the injury or damage and fails to explain how that accident was contemporaneously 13 perceived and understood. Compl. (dkt. 1) at 7. 14 Plaintiffs state in both the Complaint and Response that the newborn was born alive and 15 continued to present “bilateral breath sounds and chest movement . . . during the course of the 16 resuscitation procedure.” Pl.’s Opp. (dkt. 20) at 5; Compl. (dkt. 1) at 5. Yet, the Complaint fails to 17 allege that the Plaintiff father and grandmother were present during, and at the conclusion of, the 18 thirty-seven minutes of resuscitation. See id. at 7–8. In fact, Plaintiffs’ Response suggests that the 19 Plaintiff father and grandmother were absent from the scene of resuscitation: “[father] and 20 [grandmother]’s shock resulted from them being contemporaneous witnesses and observers of 21 [newborn]’s unresponsiveness and unfortunate death after unsuccessful resuscitation efforts . . . 22 [they] observed, through physicians’ actions and talk during resuscitation, that the baby was 23 dying.” Pl.’s Opp. (dkt. 20) at 6 (emphasis added). These statements indicate that the Plaintiff 24 father and grandmother learned of the newborn’s death after the fact, and retrospectively attributed 25 the newborn’s death to certain acts or omissions by medical providers – which is precisely the 26 type of bystander argument rejected in Justus:
27 staff and use of emergency procedures. Whether the described events 1 constitute negligence is questionable, but they no doubt induced . . . anxiety on the plaintiff’s part. Yet his anxiety did not ripen into the 2 disabling shock which resulted from the death of the fetus until he was actually informed of that event by the doctor; prior to that 3 moment, as a passive spectator he had no way of knowing that the fetus had died. In short, the impact derived not from what he saw and 4 heard during the attempted delivery, but from what he was told after the fact. As we have seen, however, a shock caused by learning of the 5 accident from others after its occurrence . . . will not support a cause of action under Dillon. 6 7 19 Cal. 3d at 585 (emphasis added) (internal citation and quotation marks omitted). 8 While Plaintiffs argue in their Response that “the death of [the newborn] was not hidden 9 from [the Plaintiff father and grandmother’s] contemporaneous perception”; that their shock 10 “resulted from them being contemporaneous witnesses and observers of [the newborn’s] 11 unresponsiveness and . . . death after unsuccessful resuscitation”; and that the “physicians did not 12 even need to announce the death of [the newborn] since [the Plaintiff father and grandmother] 13 observed, through physicians’ actions and talk during resuscitation, that the baby was dying,” 14 these statements first surface in Plaintiffs’ Response—as opposed to the Complaint—and, even 15 assuming that the Plaintiff father and grandmother were present during resuscitation, Plaintiffs 16 nowhere assert that it was the attempted resuscitation which caused injury to the newborn. Pl.’s 17 Opp. (dkt. 20) at 6; see also Compl. (dkt. 1) at 1–10. At bottom, the facts do not sufficiently allege 18 that the Plaintiff father and grandmother “appreciated the harm caused to the point of 19 contemporaneous awareness.” Mota v. Tri-City Healthcare Dist., No. 18-CV-2775-AJB-NLS, 20 2020 WL 1245372, at *6 (S.D. Cal. Mar. 16, 2020) (granting motion to dismiss on NIED upon a 21 bystander where plaintiff alleged that she was outside the operating room and could hear sister 22 scream for help during an emergency C-section performed without anesthesia); see Bird, 28 Cal. 23 4th at 917–18. Therefore, Plaintiffs have not sufficiently pled a claim for NIED upon a bystander. 24 CONCLUSION 25 Plaintiffs’ claims for NIED upon a bystander are DISMISSED with leave to amend 26 because the Complaint failed to allege that the Plaintiff father and grandmother possessed 27 contemporaneous awareness of the injury-producing accident that caused harm. Based on the 1 amendment; however, out of an abundance of caution, the court will afford Plaintiffs one 2 || opportunity to do so. Plaintiffs, therefore, shall have twenty-one days from the date of this order to 3 file an amended Complaint if they so choose. Further, it is ORDERED that Plaintiffs request to 4 amend the complaint to move the allegations pled in the second cause of action to the first cause of 5 action is GRANTED, and the request for prejudgment interest is STRICKEN. 6 Finally, as to the Notice filed by Plaintiffs (dkt. 28), while the court notes that the Notice is 7 in compliance with L.R. 3-13(a), in that it advises the court of a pending matter proceeding in state 8 || court that “involves all or a material part of the same subject matter .. .”, to the extent Plaintiffs 9 seek consolidation or a transfer of the state court action to this court, that request is DENIED. The 10 || court sees no procedural basis for such a request. However, the court will consider coordination 11 efforts to “avoid conflicts, conserve resources and promote an efficient determination of the 12 action,” Civ. L.R. 3-13(b)(3)(D), when setting forth the case management order following the 5 13 initial case management conference. IT IS SO ORDERED. 3 15 Dated: September 2, 2022 16
8 ROBERT M. ILLMAN United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28