01/21/2020 — CV2019000176 REAL ESTATE L L C, SCOTTSDALE VALLEY 01/21/2020 HONORABLE CONNIE CONTES View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
01/23/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
01/21/2020
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CONNIE CONTES
S. Perez
Deputy
SCOTTSDALE VALLEY REAL ESTATE L L C
JONATHAN A DESSAULES
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
JUDGE CONTES
RULING
At the conclusion of oral argument on November 22, 2019, the court took under advisement
the ruling on the parties’ competing motions for summary judgment. Following oral argument, the
parties briefed at the court’s request a supplement to oral argument. Recently, each party submitted
a notice of supplemental authority providing this court with non-binding authority in the form of
rulings from her judicial colleagues in similar cases. The court has considered the briefing on the
parties’ competing motions for summary judgment, the briefing on plaintiff’s supplement to oral
argument, applicable law, and the non-binding rulings of judicial colleagues.
The parties agree that the issues presented are purely legal determinations for the court’s
ruling that do not implicate genuine disputes of material fact.
Based upon the applicable law, the governing Condominium Declaration, and the reasons
set forth in plaintiff’s filings, the court finds as follows:
1. Plaintiff Scottsdale Valley Real Estate LLC purchased in 2017 two condominium units
(Units 102 and 133) in the Montana Del Sol Condominium community managed by
defendant Montana Del Sol Condominium Association. Warranty Deeds, attached as
Exhibits A and B to plaintiff’s Statement of Facts.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
01/21/2020
Docket Code 019
Form V000A
Page 2
2. The governing Declaration in force and effect when plaintiff purchased the two
condominium units authorized use of condominium units as rentals without restrictions as
to lease terms or length. Condominium Declaration, attached as Exhibit C to plaintiff’s
Statement of Facts.
3. Arizona statutory law states: “Except to the extent expressly permitted or required by other
provisions of this chapter, an amendment shall not . . . change the boundaries of any unit,
the allocated interests of a unit or the uses to which any unit is restricted, in the absence of
unanimous consent of the unit owners. A.R.S. § 33-1227(D).
4. Likewise, the governing Declaration provides in pertinent part: “Except to the extent
expressly permitted or required by the Condominium Act, an amendment to the Declaration
shall not . . . change the boundaries of any Unit, the allocated Interest of a Unit, or the use
as to which any Unit is restricted, in the absence of unanimous consent of the Unit Owners.”
Condominium Declaration at § 12.5.2, attached as Exhibit C to plaintiff’s Statement of
Facts.
5. In mid-2018, the Board of Directors of the Association issued to owners a proposed
amendment to the Condominium Declaration to restrict and prohibit the rights of property
owners from leasing their units for terms of less than thirty days or using their units for
vacation rental or timeshare purposes. By the end of 2018, the amendment was passed with
70 votes in favor of the amendment and 25 votes against the amendment, but not
unanimously. Restriction on Rentals, entitled Third Amendment to Condominium
Declaration for Montana Del Sol Condominium, attached as Exhibits D, E and G to
plaintiff’s Statement of Facts (“Restrictions on Rentals”).
6. The Restrictions on Rentals is invalid, void and unenforceable as a post-purchase property
use restriction that could be (and was not) validly adopted only by the unanimous consent
of unit owners.
Accordingly,
IT IS ORDERED granting plaintiff Scottsdale Valley Real Estate LLC’s Motion for
Summary Judgment (filed June 27, 2019).
IT IS ORDERED denying defendant Montana Del Sol Condominium Association’s
Motion for Summary Judgment (filed September 20, 2019).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
01/21/2020
Docket Code 019
Form V000A
Page 3
IT IS FURTHER ORDERED deeming moot plaintiff’s Motion for Leave to File Amended
Complaint (filed September 13, 2019).
The court finds that this civil action arises out of a contract. Therefore, plaintiff may submit
an application for its reasonable attorneys’ fees and a verified Statement of Costs no later than
twenty (20) days after the filing date of this minute entry ruling, in accordance with Rule 54(h),
Arizona Rules of Civil Procedure. At the same time, plaintiff also may lodge a form of judgment,
leaving blank spaces for reasonable attorneys’ fees and costs.
04/08/2019 — CV2019000176 REAL ESTATE L L C, SCOTTSDALE VALLEY 04/08/2019 HONORABLE CONNIE CONTES View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
04/09/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
04/08/2019
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CONNIE CONTES
A. Durda
Deputy
SCOTTSDALE VALLEY REAL ESTATE L L C
JONATHAN A DESSAULES
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE CONTES
MINUTE ENTRY
Pursuant to the Scheduling Order,
IT IS ORDERED the parties shall participate in a mandatory Settlement Conference.
This case is referred to the Court's Office of Alternative Dispute Resolution (“ADR”) for the
appointment of a judge pro tempore to conduct a settlement conference. Counsel and/or the
parties will receive a minute entry from ADR appointing the judge pro tempore. Counsel and
any "pro per" parties will contact the appointed judge pro tempore to arrange the date, time and
location for the settlement conference. The judge pro tempore is directed to complete a settlement
conference not later than July 18, 2019. The Office of Alternative Dispute Resolution will not do
the scheduling of the settlement conference so please do not contact that office.
The following pertains to the pretrial matters identified below. To the extent that it is
inconsistent with any order that has been entered in this matter, including any scheduling order,
this minute entry controls and the inconsistent language in any such previous order is vacated.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
04/08/2019
Docket Code 023
Form V000A
Page 2
Discovery Disputes – Discovery disputes are strongly discouraged. Before filing a written
motion to compel, motion for protective order, or any other motion related to discovery, please
observe the following procedure.
If you believe that discovery to which you are entitled has not been provided to you as
required by the applicable rules, or that you have received discovery requests that are not warranted
in this case, and you want the court to intervene, you must contact the other party’s attorney (or
the other party if he/she is self-represented), and then together, telephone the court to ask for a
telephonic conference. No such request will be considered, however, if made 30 or fewer calendar
days before the scheduled trial or evidentiary hearing.
To encourage the resolution of discovery disputes without court intervention, you are urged
to consider the risk that comes from not providing discovery responses as required by the
applicable rules. Even if court intervention is not requested, should a party fail to provide
discovery that the court later decides is relevant, the jury may be told, or the court may assume,
that the failure to provide discovery warrants an adverse inference against the party who refused
to provide it.1 Further, when a party fails to respond completely to discovery requests that the
court concludes are reasonable, the trier of fact is permitted to assume that party is not credible in
other ways.2 In addition, should a party fail to provide discovery on a matter essential to another
party’s claim or defense, the party failing to provide the discovery may be precluded from
presenting evidence, or that failure may result in the striking of that party’s pleadings. (For
purposes of this order, “discovery” includes both responses to formal discovery requests and all
disclosure required by Ariz. R. Civ. P. 26.1.)
Dispositive Motions – Absent leave of court, and for good cause shown, no party may,
from this date forward, file more than one summary judgment motion. If a motion for summary
judgment is filed, all issues must be raised in a single motion (e.g., the single motion may consist
of what would otherwise be two or more motions for partial summary judgment). All issues in
response to a motion must be raised in a single filing, even if that filing includes a cross-motion (a
cross-motion is almost always a response to the original motion). All summary judgment motions
1 E .g., Sing v. Gonzales, 491 F.3d 1019, 1024 (9th Cir. 2007) (“When a party has relevant evidence in his control
which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him” (citation
omitted)); see also Pendleton v. Brown, 25 Ariz. 604, 622, 221 P. 213, 219 (1923) (similar).
2 See generally Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 562, 880 P.2d 1103, 1108 (App. 1993); see also
Nardella v. Campbell Mach., Inc., 525 F.2d 46, 49 (9th Cir. 1975) (quoting Banks v. Chicago Grain Trimmers, 390
U.S. 459, 467 (1968)).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
04/08/2019
Docket Code 023
Form V000A
Page 3
and submissions that follow the filing of those motions are expected to comply with the letter and
spirit of Ariz. R. Civ. P. 56 and Maricopa Cty. Rs. 2.16, 3.2(f).3
The one-motion limit deprives no litigant of any privilege or right because it applies only
when good cause cannot be shown. The limit is intended to accomplish several objectives. First,
limiting the number of summary judgment motions promises to reduce the expense of litigation
for the parties who must otherwise bear the cost of multiple motions. Second, the more motions
that are filed, the more court time is required to deal with them which, when viewed cumulatively,
serves to slow down not only the case at hand, but other cases as well. Thus, the limit can assist
in moving cases to a just conclusion more quickly. Third, limiting the number of motions promises
to enhance the quality and efficacy of motion practice. It is likely that the limit will promote
greater thought and more careful attention to crafting that one motion, with the result being a
3 Among other things, this means refraining from efforts designed to maneuver around the page limit rules by, for
example, placing substantive arguments (including string citations with parenthetical quotations or explanations) in
footnotes, an appendix, or accompanying statement of facts – if something needs to be understood before an informed
decision can be made, that material should be placed in the main text, and anything not necessary to a reasoned
decision does not warrant even footnote or appendix treatment), incorporating by reference substantive arguments that
appear in other briefs, or altering the pagination (e.g., placing the number 1 at the bottom of page 2). Effective written
advocacy is not a function of quantity. Those who think that lengthy briefs are indispensable to success may be well-
served to remember that “the long brief says the question could go either way and begs that you be rewarded for doing
your homework. The short brief says there is an answer to the problem and you have found it.” James W. McElhaney,
McElhaney’s Litigation 284 (1995); see also Fleming v. County of Kane, 855 F.2d 496, 497 (7th Cir. 1988) (page-limit
rules “encourage [the parties] to hone their arguments and to eliminate excessive verbiage. [They] induce[] the
advocate to write tight prose, which helps his client's cause. . . . Overly long briefs . . . may actually hurt a party's case,
making it far more likely that meritorious arguments will be lost amid the mass of detail” (citations and internal
quotation marks omitted)).
Further, statements of fact should be presented in “concise, numbered paragraphs” [Ariz. R. Civ. P. 56],
preferably with one fact per paragraph (which, among other things, makes it much easier to identify those facts that
are disputed or objectionable). Statements of fact should not contain any assertions that amount to argument. See
Breeser v. Menta Group, Inc., 934 F.Supp.2d 1150, 1153-54 (D. Ariz. 2013). (Although Breeser is a federal court
decision applying a local federal rule, in this court’s view, that local rule and its application in Breeser are consistent
with the spirit, if not the letter, of Ariz. R. Civ. P. 56(c)(3). “[F]act statements are designed to assist the court by
organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposes to prove a
disputed fact with admissible evidence. Opinion, suggested inferences, legal arguments and conclusions are not the
proper subject matter of a [fact] statement.” Breeser, 934 F.Supp.2d at 1155.)
Finally, the parties are encouraged to refrain from engaging in what is the all-too-frequent practice of filing
“controverting” or “supplemental” statements of facts with their reply memoranda. Rule 56 does not provide for such
filings and, moreover, it is “improper to introduce new evidence with the reply.” Wells Fargo Bank v. Allen, 231 Ariz.
209, 214 n.3, ¶20, 292 P.3d 195, 200 n.3 (App. 2012) (reversing summary judgment). Objections to the nonmoving
party’s evidence should be treated in the reply memorandum: employing a separate filing that urges objections
accompanied by argument is not permitted.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
04/08/2019
Docket Code 023
Form V000A
Page 4
product that is superior to what otherwise would be filed. Fourth, the limit discourages the frequent
practice of filing a dispositive motion in the early stages of the case before all claims, defenses,
and material facts are understood. Filing a dispositive motion early in the case, accompanied by
what is far more often than not an unrealistic hope of achieving an early victory while comforted
in the belief that the motion’s denial will not prevent filing another (often much the same) motion
later in the case on the pretense that the first motion was submitted without benefit of discovery,
is a practice that serves no one well, especially the clients who must finance the failed efforts.
Moreover, because the limit should, in most cases, cause attorneys to wait before filing a summary
judgment motion, they may realize with the benefit of discovery that summary judgment has no
chance of being granted, thus eliminating the need for filing what would be a pointless motion.
Unless another order in this case establishes an earlier deadline, the deadline for filing a
summary judgment motion is 145 days before trial. No modification, including a stipulated
modification, of this deadline will be honored absent a motion explaining why the 145-day
deadline is impractical in the circumstances.
Motions in Limine and Daubert Motions – The granting or denial of a motion in limine
turns on whether the admission of evidence reaches the level of reversible error or a mistrial.4
Motions in limine are not granted “except upon a clear showing of non-admissibility.”5 And,
motions in limine should not be used as substitutes for dispositive motions.6
4 See e.g., State v. Ferrari, 112 Ariz. 324, 327, 541 P.2d 921, 924 (1975) (affirming denials of motions in limine:
framing the issue in terms of reversible error); State v. Pearce, 22 Ariz. App. 338, 339, 527 P.2d 297, 298 (1975)
(affirming grant of motion in limine: same); State ex rel. Berger v. Superior court, 108 Ariz. 396, 397, 499 P.2d 152,
153 (1972) (framing the issue in terms of a mistrial).
5 State ex rel. Berger, 108 Ariz. at 397, 499 P.2d at 153 (emphasis added); accord e.g., Indiana Ins. Co. v. General
Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (“The court has the power to exclude evidence in limine only
when evidence is clearly inadmissible on all potential grounds” (emphasis added)).
6 E.g., Dunn v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich. 2009) (“[M]otions in limine are
meant to deal with discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions
disguised as motions in limine” (citation and internal quotation marks omitted)); Goldman v. Healthcare Mgt. Sys.,
Inc., 559 F. Supp. 2d 853, 871-72 (W. D. Mich. 2008) (same: collecting cases)); Johnson v. Chiu, 199 Cal. App. 4th
775, 780-81, 131 Cal Rptr. 3d 614, 618 (2011) (“What in limine motions are not designed to do is to replace . . .
dispositive motions”; “To have the sufficiency of the pleading or the existence of triable issues of material fact decided
in the guise of a motion in limine is a perversion of the process” (citations and internal quotation marks omitted)).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
04/08/2019
Docket Code 023
Form V000A
Page 5
1. Page Limit and Format: Other than Daubert motions and responses to those
motions, neither the motion in limine nor the response may exceed two pages, including the
caption. Showing that the motion has merit should not require more than that.7
Any motion in limine or response to such a motion should begin with a simple declarative
sentence that identifies the evidence that is the subject of the motion, with the understanding that
the broader the scope of the evidence to be excluded, the less likely it is that a motion in limine
will be granted.8 The remainder of the motion or response should then explain why a mistrial or
reversible error would or would not result if the motion is denied, with citations to authority that
have reached the same conclusion in the same or similar circumstances (this also applies to motions
in limine based on any failure to disclose, keeping in mind that nondisclosure implicates Ariz. R.
Civ. P. 37(c)).9 If the motion is unable to explain why its denial would result in a mistrial or
reversible error, the remainder should then demonstrate persuasively what efficiency, economy, or
other benefit is to be gained by granting the motion.
Other than Daubert motions, which should be filed separately, if two or more motions in
limine are filed, they should be combined as a single omnibus motion. The caption should appear
on the first page, and each motion should begin on a new page, following the format and page limit
standards above. The same applies to any response opposing such an omnibus motion.
2. Rule 7.2: Before any motion or omnibus motion may be filed, the moving party
must comply with Ariz. Rule Civ. P. 7.2(a) (i.e., establishing a meet and confer requirement, which
may be satisfied by meeting in person or by way of telephone conversations, but not by written
means (e.g., e-mail, letter)).
7 Evidence is not to be excluded even when it is inadmissible for one purpose or against one party if it remains
admissible for another purpose or against another party. E.g., Steele v. Vanderslice, 90 Ariz. 277, 287, 367 P.2d 636,
643 (1961) (“Evidence admissible for one purpose is not to be excluded because inadmissible for another purpose”);
Cavanagh v. Ohio Farmers Ins. Co., 20 Ariz. App. 38, 44, 509 P.2d 1075, 1081 (1973) (“[E]vidence properly offered
against one of multiple parties must ordinarily be admitted, although it would be inadmissible and prejudicial against
another party”).
8 Sperberg v. Good year Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (“Orders in limine which exclude broad
categories of evidence should rarely be employed”).
9 “When a motion in limine is used to enforce the provisions of Rule 26.1, it is effectively a request for sanctions under
Rule 37(c), Ariz. R. Civ. P. As such, it must be considered and reviewed using the standards of Rules 26.1 and 37(c) and
the cases that have applied them.” Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶12, 62 P.3d 976, 980 (App. 2003).
Among other things, that requires the court to consider whether a postponement of the trial is warranted. Thus, a motion
that urges the exclusion of evidence based on a failure to comply with Rule 26.1 should explain why any unfair prejudice
that may result from allowing the evidence cannot be remedied by a trial continuance.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
04/08/2019
Docket Code 023
Form V000A
Page 6
3. Deadlines: Unless another order in this case, including any subsequent order,
establishes an earlier deadline, the deadline for filing Daubert motions is 120 days before the
scheduled first day of trial and the deadline for motions in limine is 30 days before the pretrial
management conference. In both instances, responses must be filed 15 days after service, and no
replies should be filed unless requested.
4. Under Advisement: Although motions in limine will be considered as quickly
as the court’s schedule permits, they will not be taken under advisement any sooner than 15 days
before the start of the trial, irrespective of when they are filed. That said, if the parties believe that
a ruling on such a motion early in the case will facilitate settlement, they should notify this Division
(by telephone or e-mail is sufficient), and every effort will be made to decide the issue as soon as
time allows.
10/04/2019 — CV2019000176 REAL ESTATE L L C, SCOTTSDALE VALLEY 10/04/2019 HONORABLE CONNIE CONTES View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
10/14/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
10/04/2019
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CONNIE CONTES
S. Perez
Deputy
SCOTTSDALE VALLEY REAL ESTATE L L C
JONATHAN A DESSAULES
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
JUDGE CONTES
ORAL ARGUMENT SET
East Court Building – Courtroom 913
8:57 a.m. This is the time set for telephonic Trial Setting Conference. Plaintiff is
represented by counsel, David Wood, appearing on behalf of Jonathan Dessaules. Defendant is
represented by counsel, Carlotta Turman, appearing on behalf of Jonathan Ebertshauser.
A record of the proceedings is made digitally in lieu of a court reporter.
The court is in receipt of plaintiff’s Motion for Summary Judgment (filed June 27, 2019)
which is fully briefed and defendant’s Motion for Summary Judgment (filed September 20, 2019)
which is not fully briefed.
Discussion is held regarding the pending motions for summary judgments and plaintiff’s
Motion for Leave to File Amended Complaint, filed September 13, 2019.
For the reasons stated on the record,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
10/04/2019
Docket Code 094
Form V000A
Page 2
IT IS ORDERED directing the parties to fully brief defendant’s Motion for Summary
Judgment by November 15, 2019.
IT IS FURTHER ORDERED setting Oral Argument for November 22, 2019 at 2:45
p.m. (1 hour allotted) on plaintiff’s Motion for Summary Judgment, filed June 27, 2019, and
defendant’s Motion for Summary Judgment, filed September 20, 2019.
Counsel and the parties, if representing themselves, are to appear in person before:
THE HONORABLE CONNIE CONTES
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
9TH FLOOR, COURTROOM 913
PHOENIX, AZ 85003
PHONE: (602) 506-7768
NOTE: All court proceedings are recorded digitally and not by a court reporter. Pursuant
to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a court reporter
is not mandated by Arizona Supreme Court Rule 30, the party must submit a written request to the
assigned judicial officer at least ten (10) judicial days in advance of the hearing, and must pay the
authorized fee to the Clerk of the Court at least two (2) judicial days before the proceeding. The
fee is $140 for a half-day and $280 for a full day.
If the parties are not familiar with the courtroom’s technology, they are encouraged to set
up an appointment with the court’s technology liaison at 602.506.3269.
9:17 a.m. Matter concludes.
11/22/2019 — CV2019000176 REAL ESTATE L L C, SCOTTSDALE VALLEY 11/22/2019 HONORABLE CONNIE CONTES View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
11/27/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
11/22/2019
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CONNIE CONTES
S. Perez
Deputy
SCOTTSDALE VALLEY REAL ESTATE L L C
JONATHAN A DESSAULES
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
JUDGE CONTES
UNDER ADVISEMENT
East Court Building – Courtroom 913
2:55 p.m. This is the time set for Oral Argument on plaintiff’s Motion for Summary
Judgment, filed June 27, 2019 and defendant’s Motion for Summary Judgment, filed September
20, 2019. Plaintiff is represented by counsel, David Wood appearing on behalf of Jonathan
Dessaules. Simon Younger, owner of Scottsdale Valley Real Estate, LLC, is also present.
Defendant is represented by counsel, Jonathan Ebertshauser. Mary Whitney, President of the
Montana Del Sol Condominium Association, is also present.
A record of the proceedings is made digitally in lieu of a court reporter.
Argument is presented.
IT IS ORDERED taking under advisement the rulings on plaintiff’s Motion for Summary
Judgment, filed June 27, 2019, and defendant’s Motion for Summary Judgment, filed September
20, 2019.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-000176
11/22/2019
Docket Code 020
Form V000A
Page 2
Discussion is held regarding plaintiff’s Motion for Leave to File Amended Complaint, filed
September 13, 2019.
The parties shall file a joint notice as to the status of this case no later than 30 days after
the court’s ruling on the Motions for Summary Judgment.
4:21 p.m. Matter concludes.
