Nagy v . Town of Andover, et a l . CV-01-112-M 10/19/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Paul Nagy and Mary Ann Nagy, Plaintiffs
v. Civil N o . 01-112-M Opinion N o . 2001 DNH 191 Town of Andover, Seldon E . Nason, Glenn E . Laramie, J r . Herbert L. Blish, David Hawes and Lee-Ann Hawes, Defendants
O R D E R
Paul and Mary Ann Nagy (“the Nagys”) have sued the Town of
Andover (“the Town”), three of its police officers (Officers
Sheldon Nason, Glen Laramie, and Herbert Blish), and their
neighbors, David and Lee-Ann Hawes (“the Haweses”), in six
counts. Plaintiffs seek compensatory and punitive damages for
injuries allegedly inflicted upon them as a result of an unlawful
entry onto their property by three Andover Police Department
(“APD”) officers, which itself resulted from an alleged
conspiracy between the Haweses and Officer Nason. The Nagys’ suit consists of two federal claims, based upon
alleged violations of their federally protected constitutional
rights, see 42 U . S . C . § 1983, and four claims based upon state
law, over which they ask the court to exercise supplemental
jurisdiction. Before the court are: (1) two motions to dismiss
the original complaint, one filed by the Town and the three
police officers (“the Andover defendants”) (document n o . 1 1 ) , the
other by the Haweses (document n o . 1 3 ) ; and (2) two motions to
dismiss the Nagys’ amended complaint (document n o . 23 and
document n o . 2 4 ) . The Andover defendants base their motions to
dismiss on F E D . R . C I V . P . 12 (b)(6) (dismissal for failure to
state a claim), while the Haweses base their motions to dismiss
on both Rule 12(b)(6) and F E D . R . C I V . P . 12(b)(1) (dismissal for
lack of subject matter jurisdiction). The Nagys object to all
four motions. For the reasons given below, the two motions to
dismiss the original complaint are moot and the two motions to
dismiss the amended complaint are granted.
2 Standard of Review
A motion to dismiss for “failure to state a claim upon which
relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on “whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v .
Rhodes, 416 U . S . 232, 236 (1974). When considering a motion to
dismiss under F E D . R . C I V . P . 12(b)(6), the court must “accept as
true all well-pleaded allegations and give plaintiffs the benefit
of all reasonable inferences.” Cooperman v . Individual, Inc.,
171 F.3d 4 3 , 46 (1st Cir. 1999) (citing Gross v . Summa Four,
Inc., 93 F.3d 987, 991 (1st Cir. 1996)). Furthermore,
“[d]ismissal under F E D . R . CIV. P . 12(b)(6) is only appropriate if
the complaint, so viewed, presents no set of facts justifying
recovery.” Cooperman, 171 F.3d at 46 (citing Dartmouth Review v .
Dartmouth College, 889 F.2d 1 3 , 16 (1st Cir. 1989)).
3 Background
The facts of this case, as derived from the amended
complaint and viewed in the light most favorable to the Nagys,
are as follows.
The Nagys and the Haweses are residential neighbors who
share a common driveway. The Haweses operate a day-care service
in their home. The shared driveway is located on the Nagys’
property, but the Haweses own easement rights over a portion of
it. In June 2000, Mr. Nagy (“Nagy”) observed some of the
Haweses’ day-care customers driving too fast along the shared
driveway. He spoke with them about i t , and asked them to drive
more slowly. M s . Hawes (“Hawes”) confronted Nagy about his
confronting her customers and also reported him to the Andover
Police Department (“APD”) for allegedly blocking the shared
portion of the driveway.
On August 3 0 , 2000, Hawes again reported Nagy to the APD,
this time for allegedly videotaping her children while they were
4 waiting for a school bus (activity she perceived to be
harassing). Officer Nason of the APD, a long-time personal
friend of the Haweses, responded to the complaint. After
speaking with Nagy and, with Nagy’s consent, looking at his
videotape, Officer Nason determined that Nagy had not been
videotaping the Hawes children but, instead, had been videotaping
landscaping on his property, as he had claimed.
On September 1 4 , 2000, Hawes had three additional
communications with the APD.
First, at some unstated time, and in some unspecified
context, Hawes told Officer Nason that “Mr. Nagy would be served
with papers arising out of the dispute over the driveway and that
[she and her husband] feared Mr. Nagy’s reaction” (Am. Compl. ¶
16). (No such papers were ever actually served on Nagy.)
Second, Hawes reported to the APD that Nagy was driving up
and down the driveway at a high rate of speed (which Nagy
5 denied). Officers Nason and Laramie responded to Hawes’s call,
but by the time they arrived, Nagy was gone. When M r . Hawes
informed the officers that Nagy was on his way to Franklin, the
officers asked for assistance from the Franklin Police
Department. Officers from Franklin located Nagy and reported
that he was driving in a reasonable manner. When Nagy returned
home, Officer Laramie informed him that he had been reported for
erratic operation in the driveway. Nagy denied that he had been
driving erratically, and told Officer Laramie that he intended to
place a wooden speed bump in the shared driveway later that day.
After Officer Laramie spoke with Nagy, he and Officer Nason drove
their cruiser down the driveway and parked across the street,
where they could keep an eye on what obviously was a developing
hostile situation.
Third, at approximately 10:00 p.m., about an hour after
Officer Laramie last spoke with Nagy, Hawes called the APD to
report the sound of six gunshots coming from Nagy’s home. At the
time Hawes heard the sounds she identified as gunshots, Officers
6 Nason and Laramie were still parked across the street. Officers
Nason, Laramie, and Blish all responded to Hawes’s call. They
drove up the driveway, exited their cruiser(s), and walked toward
Nagy’s barn. As they approached the barn, Nagy emerged, carrying
a hammer. The officers shined a light in Nagy’s face, unbuckled
their holsters, and placed their hands on the butts of their
guns. One of the officers ordered Nagy to “stop, drop what was
in his hand, and place his hands in the air” (Am. Compl.¶ 2 2 ) .
Nagy complied. After Nagy dropped the hammer, Officer Nason
asked a few questions and determined that no gunshots had been
fired. Then Officer Nason ordered Nagy to remove two trucks and
some lumber, which, in Officer Nason’s view, were blocking the
driveway. When Nagy initially refused to do s o , Officer Nason
threatened him with arrest for disorderly conduct. At that
point, Nagy complied with the order and moved his vehicles and
lumber.
Based upon the foregoing, the Nagys filed this suit. Count
I asserts a federal claim, under 42 U.S.C. § 1983, in which the
7 Nagys claim that the Andover defendants violated their
constitutional rights as guaranteed by the Fourth and Fourteenth
Amendments to the U.S. Constitution by: (1) conducting an
unreasonable search of their property; (2) unreasonably seizing
Nagy; and (3) unlawfully coercing Nagy into moving his vehicles
and lumber, under the threat of arrest. Count II asserts a tort
claim under state law against the Town of Andover for negligently
hiring, training, and supervising Officers Nason, Laramie, and
Blish. Count III asserts a claim under state law against the
Andover defendants for the officers’ unlawful detention of Nagy.
Count IV asserts a claim under state law against Officers Nason,
Laramie, and Blish for trespass. Count V asserts a claim of
conspiracy against Officer Nason and the Haweses, in which they
are accused of agreeing to make false police reports and misuse
Officer Nason’s authority as a police officer in order t o : (1)
deprive the Nagys of their constitutional rights; and (2) inflict
emotional distress upon them. Count VI asserts a tort claim
under state law against Officer Nason and the Haweses for
intentional infliction of emotional distress.
8 Shortly after the Nagys filed suit, the Andover defendants
and the Haweses filed separate motions to dismiss for failure to
state a claim. The Nagys responded by filing an amended
complaint, which became the operative complaint in this case by
order dated August 1 0 , 2001 (document n o . 2 2 ) .
Discussion
As a preliminary matter, because the amended complaint is
the operative complaint in this case, the two motions to dismiss
the original complaint (document n o . 11 document n o . 13) are moot
and relevant only to the extent that they have been incorporated,
by reference, into the motions to dismiss the amended complaint.
In their motion to dismiss the amended complaint, the
Andover defendants argue that the amended complaint: (1) contains
unfair revisions and modifications; (2) fails to state a cause of
action, because it is based upon unsupported speculation rather
than factual allegations; and (3) fails to overcome the defense
of qualified immunity. (Because the court has already accepted
9 the amended complaint as the operative complaint in this case, it
does not consider the Andover defendants’ argument concerning the
unfairness of allowing the amended complaint.) The Haweses argue
in their motion to dismiss that: (1) the Nagys have failed to
state a valid federal claim against them; (2) dismissal of the
federal claim against the Andover defendants will eliminate the
basis for supplemental jurisdiction over the Nagys’ state law
claims; and (3) even if supplemental jurisdiction is proper, the
Nagys have failed to adequately assert any state law claims.
In response, the Nagys restate their theory of the case,
according to which the three Andover police officers violated
their constitutional rights by responding to Hawes’s report of
gunshots because: (1) Hawes had a history of making false reports
to the APD; and (2) on the evening in question, Officers Nason
and Laramie heard sounds which they knew to be hammering, rather
than gunshots, coming from the Nagys property, which gave them
reason to know, with certainty, that Hawes’s report of gunshots
was false.
10 I. Count I : The Nagys’ § 1983 Claim
The Nagys’ § 1983 claim fails because their factual
allegations, even if true, do not describe a constitutional
violation.1
In order to prevail on a § 1983 claim, a plaintiff must
prove that one or more individual defendants, acting under color
of state law, deprived him or her of a right, privilege, or
immunity secured by the Constitution or laws of the United
States. See, e.g., Blessing v . Freestone, 520 U.S. 329, 340
(1997). The Nagys claim that their rights, secured by the Fourth
and Fourteenth Amendments to the United States Constitution, were
violated when Officers Nason, Laramie, and Blish: (1) searched
1 Because the Nagys have failed to adequately allege a constitutional violation, the court need not reach the Andover defendants’ arguments concerning qualified immunity. See Wilson v . Layne, 526 U.S. 603, 609 (1999) (quoting Conn v . Gabbert, 526 U.S. 286, 290 (1999) (“A court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if s o , proceed to determine whether that right was clearly established at the time of the alleged violation.’”).
11 their property; (2) seized Nagy; and (3) coerced him into moving
his trucks and lumber. The court does not agree.
The Nagys’ first two claims, concerning the search of their
property and the seizure of Nagy, may be disposed of on a
straightforward Fourth-Amendment analysis. “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated . . .” U . S . CONST. amend. I V . “[B]roadly speaking, an
unconsented-to, warrantless entry into the home by government
agents is presumptively unreasonable – valid only if an exception
to the warrant requirement applies.” Bilida v . McCleod, 211 F.3d
166, 171 (1st Cir. 2000) (citing McCabe v . Lifeline Ambulance
Serv., Inc., 77 F.3d. 540, 544 (1st Cir. 1996); 1 LaFave, Search
and Seizure § 2.3, at 465 (3d ed. 1996)). “Places adjacent to
the home, known as ‘curtilage,’ have generally been subject to
the warrant requirement so far as the government agent intrudes
beyond areas (e.g., the path to the front door) where uninvited
visitors are expected.” Bilida, 211 F.3d at 171 (citing 1 LaFave
12 § 2.3(f), at 504-09; Daughenbaugh v . City of Tiffin, 150 F.3d
594, 603 (6th Cir. 1998)). “Warrantless entries are most often
justified by ‘exigent circumstances,’ the best examples being hot
pursuit of a felon, imminent destruction or removal of evidence,
the threatened escape by a suspect, or imminent threat to the
life or safety of the public, police officers, or a person in
residence.” Bilida, 211 F.3d at 171 (citing McCabe, 77 F.3d at
545).
Here, Officers Nason, Laramie, and Blish were presented with
exigent circumstances fully justifying their warrantless entry
onto the Nagys’ property and their brief seizure of Nagy. Even
if some or all of the officers were parked in front of the Nagys’
residence and recognized the sound of hammering, still the Nagys
enjoy no constitutional right to have the officers disregard a
citizen’s report of gunshots. Given the recent history of
personal animosity between the Nagys and the Haweses, the recent
escalation of that animosity, and the potential for serious
injury caused by gunfire, it would have been unreasonable, even
13 irresponsible, for the officers to have responded in any way
other than as they did. They entered onto the Nagys’ property in
response to a report of gunshots. They followed a path any
uninvited visitor might follow, proceeding directly to Nagy’s
location (the barn) to make appropriate inquiries, and searched
only so much of the property as was necessary to determine that
no shots had been fired. The officers “seized” Nagy only for a
limited time and to the limited degree necessary to insure that
he was not armed, and posed no threat to them or to others. On
the facts alleged by the Nagys, the police were not only within
their rights, but were obligated to investigate Hawes’s report of
gunshots.2 Because the officers’ warrantless search and seizure
2 In this regard, the court notes that the facts alleged by the Nagys do not support their conclusion that the officers should have known that Hawes’s report of gunshots was false because they knew she had recently made three false reports to the APD. As to the first “false report,” that Nagy had been videotaping the Hawes children, Officer Nason discovered that Nagy’s videotape did not include images of the Hawes children, but confirmed that Nagy had in fact been using a video camera outside his home and in the general proximity of the Hawes children. S o , there was some basis for Hawes’s police report. As to the second “false report,” that papers were going to be served on Nagy, that “report” had been made on the same day as the report of gunshots, which means that the police had no
14 were justified by exigent circumstances, i.e., a serious threat
of injury or death based upon a credible report of several
gunshots having been fired, their limited intrusion upon the
Nagys’ property and their brief seizure of Nagy himself were not
unreasonable within the meaning of the Fourth Amendment and did
not violate the Nagys’ constitutional rights.
reasonable basis for considering the report to be false at the time they had to decide whether to investigate the report of gunshots. Finally, as to the third “false report,” that Nagy had been driving erratically along the driveway, the police had no way of knowing how Nagy had been driving on the driveway other than Hawes’s report, and had no basis, other than Nagy’s own denial of erratic driving, for believing that Hawes’s report was in any way false. Obviously, if Nagy was driving erratically, it was for the purpose of irritating his neighbors, and the officers’ knowledge that Nagy had not been driving erratically later in the day, in Franklin, away from home, is not relevant. In sum, at the time Hawes made her report of gunshots, the police had no reasonable grounds for thinking anything other than that her report was based upon a good faith belief that she had heard gunshots. The fact that Nagy emerged from his barn carrying a hammer argues for, rather than against, Hawes’s good faith; even Nagy cannot claim that Hawes heard nothing and completely fabricated her report. The sound of hammering upon any number of media, particularly when heard by an anxious neighbor, can easily be mistaken for gunshots.
15 The Nagys’ third constitutional claim stands on a somewhat
different footing, but is no more availing than the first two.
Here, the Nagys claim that the Andover defendants
violated Mr. Nagy’s clearly-established and constitutionally-protected right under the Fourth and Fourteenth Amendments not to be coerced into following police orders without a lawful basis . . . [by] unlawfully ordering M r . Nagy to move his motor vehicles and remove boards on his property, and by threatening arrest without lawful authority to do so.
(Am. Compl. ¶ 30.) In their objection to the Andover defendants’
first motion to dismiss, the Nagys rely upon Michigan v .
Chesternut, 486 U.S. 567 (1988), for the proposition that Officer
Nason’s threat that he would arrest Mr. Nagy if he did not move
his vehicles and lumber was a “clearly established violation of
Mr. Nagy’s rights under the Fourth Amendment” (Pl.’s O b j . to Mot.
to Dismiss (document n o . 14) at 1 3 ) . In Chesternut, the Supreme
Court ruled that the police did not seize a person, within the
meaning of the Fourth Amendment, by following him in a cruiser
after he saw them and took off running. 486 U.S. at 575-76.
Chesternut is inapplicable to this case.
16 For their part, the Andover defendants contend that by
ordering Nagy to move his vehicles and lumber, the officers did
not effect a seizure of that property. The officers were simply
taking reasonable steps, within the scope of their authority, to
reduce the risk of further confrontation between the Nagys and
the Haweses. Finally, the Andover defendants contend that if the
police do not violate the constitutional rights of a person they
have arrested by threatening to “‘knock [his] remaining teeth out
of his mouth’ if he remained silent,” Hopson v . Fredericksen, 961
F.2d 1374, 1378 (8th Cir. 1992), the threat of arrest in this
case can hardly rise to the level of a constitutional violation.
The court agrees.
As a preliminary matter, Officer Nason’s directive to Nagy
that he move his trucks and lumber did not constitute a seizure,
because that command did not entail a “meaningful interference
with [Nagy’s] possessory interests in that property,” Soldal v .
Cook County, Ill., 506 U.S. 5 6 , 61 (1992) (quoting United States
v . Jacobsen, 466 U.S. 109, 113 (1984)); see also United States v .
17 TWP 17 R 4 , 970 F.2d 984, 989 (1st Cir. 1992) (citing Maryland v .
Macon, 472 U.S. 463, 469 (1985)). According to the Nagys’
complaint, the officers never touched Nagy’s personalty, and only
ordered him to move it from one part of his real estate to
another, which renders their interference with Nagy’s possessory
interests de minimis at worst. See Ford v . Wilson, 90 F.3d 245,
248 (7th Cir. 1996) (de minimis seizures of property); compare
TWP 17 R 4 , 970 F.2d at 989 (posting warrant of arrest in rem on
parcel of real estate did not constitute seizure of the real
estate) with Soldal, 506 U.S. at 62 (disconnecting trailer home
from utility hook-ups and towing it away was a seizure) and
Jacobsen, 466 U.S. at 120 (DEA agents’ “assertion of dominion and
control over the package and its contents did constitute a
‘seizure’”).
Not only did the officers not seize Nagy’s property, they
acted reasonably and lawfully. After determining that Nagy had
not fired a gun, the officers noticed two trucks and some lumber
on or near the shared driveway. Whether or not those things were
18 actually on the driveway is unimportant. Even if they were
located next to the driveway but not literally on i t , the
presence of those things in close proximity to the shared
driveway gave the officers reason to be concerned about a further
escalation of hostilities between the Nagys and the Haweses and a
concomitant breach of the peace. The officers’ concerns were
entirely reasonable given that: (1) use of the shared driveway
was the source of conflict between the two families, and the
driveway itself was the apparent battleground; and (2) the first
conflict between the Nagys and the Haweses, in June 2000, had
involved a claim by Nagy that Hawes’s day-care parents had been
driving too fast on the driveway and a report by Hawes that Nagy
had blocked the shared driveway. In light of that history, it
was prudent for Officer Nason to order Nagy to temporarily move
his trucks and lumber. Because that order did not amount to a
seizure, and because “[f]ear or emotional injury which results
solely from verbal harassment or idle threats is generally not
sufficient to constitute an invasion of an identified liberty
interest,” Pittsley v . Warish, 927 F.2d 3 , 7 (1st Cir. 1991)
19 (citations omitted); see also King v . Olmsted County, 117 F.3d
1065, 1067 (8th Cir. 1997) (quoting Hopson, 961 F.2d at 1378)
(“Generally, mere verbal threats made by a state-actor do not
constitute a § 1983 claim.”), the Nagys can point to neither: (1)
an act by Officer Nason that exceeded his lawful authority to
take reasonable measures calculated to keep the peace; nor (2)
any act violative of their constitutional rights.
Because the Nagys have failed to allege facts under which
Officers Nason, Laramie, or Nason undertook an unreasonable
search or seizure, they have failed to state a claim under 42
U.S.C. § 1983. Accordingly, Count I of their complaint is
dismissed.
II. Count V: The Nagys’ Conspiracy Claim
While it is unclear from the Nagys’ amended complaint
whether Count V asserts a federal or a state law claim for civil
conspiracy, their objection to the Andover defendants’ first
20 motion to dismiss (document n o . 17) suggests that Count V at
least includes a federal claim, under § 1983.
A civil rights conspiracy as commonly defined is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damages.’” Hampton v . Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev’d in part on other grounds, 446 U.S. 754 . . . (1980) (quoting Rotermund v . United States Steel Corp., 474 F.2d 1139 (8th Cir. 1973)).
Earle v . Benoit, 850 F.2d 836, 844 (1st Cir. 1988) (parallel
citations omitted). “In order to make out an actionable
conspiracy under section 1983, a plaintiff has to prove not only
a conspiratorial agreement but also an actual abridgment of some
federally-secured right.” Nieves v . McSweeney, 241 F.3d 4 6 , 53
(1st Cir. 2001) (citing Earle, 850 F.2d at 844; Landrigan v . Cit
of Warwick, 628 F.2d 736, 742 (1st Cir. 1980)). Here, the Nagys
have failed to allege “an actual abridgment of some federally-
secured right,” Nieves, 241 F.3d at 5 3 , for the reasons given in
the discussion of Count I . Accordingly, their § 1983 conspiracy
claim must necessarily fail, as well.
21 Finally, for the sake of completeness, the court notes that
the Nagys have also failed to state a claim for conspiracy under
the civil rights conspiracy statute, 42 U.S.C. § 1985(3).
An actionable section 1985(3) claim must allege that (i) the alleged conspirators possessed “some racial, or perhaps otherwise class-based, invidiously discriminatory animus,” Griffin v . Breckenridge, 403 U.S. 8 8 , 102 . . . (1971), and (ii) their alleged conspiracy was “aimed at interfering with rights . . . protected against private, as well as official, encroachment.” United Bhd. of Carpenters & Joiners of America v . Scott, 463 U.S. 825, 833 . . . (1983). . . . If no racial animus is charged, a discriminatory class- based animus must be alleged. See Harrison v . Brooks, 519 F.2d 1358, 1359 (1st Cir. 1975) (citing Griffin, 403 U.S. at 102 . . . ) . “The requirement that the discrimination be ‘class-based’ is not satisfied by an allegation that there was a conspiracy which affected the interests of a class of persons similarly situated with the plaintiffs. Rather, the complaint must allege facts showing that the defendants conspired against the plaintiffs because of their membership in a class and that the criteria defining the class were invidious.” Id. at 1359-60.
Romero-Barcelo v . Hernandez-Agosto, 75 F.3d 2 3 , 34 (1st Cir.
1996) (parallel citations omitted). The Nagys have alleged
neither racial animus nor invidious class-based animus on the
part of Officer Nason and the Haweses. Thus, while the Nagys
generally allege that Officer Nason and the Haweses worked
22 together to harm them, they have failed to state a claim that is
cognizable under 42 U.S.C. § 1985(3). See Harrison, 519 F.2d at
1360 (citing Turner v . Baxley, 354 F.Supp. 963, 973 (D. V t . 1972)
(evidence of animus toward individual is not probative of class-
based animus).
Because the Nagys have failed to state a claim under either
42 U.S.C. § 1983 or 42 U.S.C. § 1985(3), Count V , to the extent
that it contains a federal claim, is dismissed.
III. The Nagys’ Remaining State Law Claims
The counts remaining in this case entail four state law
claims – unlawful detention, negligence, trespass, and
intentional infliction of emotional distress. Given that this
case is “at an early stage in the litigation,” Camelio v .
American Federation, 137 F.3d 666, 672 (1st Cir. 1998) (citing
Rodriguez v . Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.
1995)), and in the interest of comity, see Camelio, 137 F.3d at
672 (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726
(1966)), the court declines to exercise supplemental jurisdiction
23 over the state law claims in Counts II-IV and VI of the amended
complaint.
Conclusion
Because plaintiffs have failed to a state claim on which
relief could be granted under either 42 U.S.C. § 1983 or 42
U.S.C. § 1985(3), and because the court declines to exercise
supplemental jurisdiction over the remaining state law claims,
the Andover defendants’ motion to dismiss the amended complaint
(document n o . 23) and the Haweses’ motion to dismiss the amended
complaint (document no. 24) are granted without prejudice to
filing state claims in a state court of competent jurisdiction.
The motions to dismiss the original complaint (document n o . 11
and document n o . 13) are moot.
The Clerk of the Court shall enter judgment in accordance
with the terms of this order and close the case.
24 SO ORDERED.
Steven J. McAuliffe United States District Judge
October 1 9 , 2001
cc: Bryan K. Gould, Esq. Donald E . Gardner, Esq. Kris E . Durmer, Esq.