LESLIE E. KOBAYASHI, District Judge.
This matter came on before the Court for a bench trial On June 5, 2018. John Rapp, Esq., appeared on behalf of Plaintiff Thinh Luong ("Plaintiff" or "Luong"). John Cregor, Jr., Deputy Attorney General, appeared on behalf of Defendant Pat Sooalo ("Defendant" or "Sooalo"). The Court, having considered the pleadings filed herein and the testimony given at trial, including the witnesses' declarations, and having an opportunity to judge the credibility of the witnesses, to examine the exhibits admitted into evidence and to consider the arguments and representations of counsel, pursuant to Federal Rule of Civil Procedure 52, makes the following Findings of Fact and Conclusions of Law and Order, and FINDS in favor of Plaintiff and AWARDS the amount of
Any finding of fact that should more properly be deemed a conclusion of law and any conclusion of law that should more properly be deemed a finding of fact shall be so construed.
Plaintiff, as the prevailing party, shall prepare his proposed Findings of Facts and Conclusions of Law ("FOFCOL") based on the Court's Outline of Decision ("Outline") and provide page and line notations for the findings of fact from the official court transcript or other citations to the trial record. Plaintiff's proposed FOFCOL is due by
The facts of this action involve an incident which occurred on December 21, 2015 when Defendant, while employed by the State of Hawai`i, in the Department of Public Safety ("DPS"), as an Adult Correction Officer ("ACO") at the Oahu Community Correctional Center ("OCCC"), entered a prison cell where Plaintiff was located. Subsequently, Plaintiff sustained physical and emotional injuries.
1. Plaintiff was an incarcerated person at OCCC on December 21, 2015.
3. The layout of Cell 111 is depicted in two diagrams. [Tr. Exh. D-8 (two floor plan diagrams).] This cell contains a toilet which is affixed to the floor and located next to the door at the entrance of Cell 111, bunk beds, which are located directly across the door at the entrance, and a sink/desk located in between the toilet and the bunk beds. [Tr. Exhs. D-8, D-10 (photograph of bunk beds from entrance to cell).]
4. On December 21, 2015, Defendant was employed by DPS and on duty at OCCC as an ACO.
5. On December 21, 2015, Plaintiff arrived by ambulance at The Queen's Medical Center ("QMC") Emergency Department ("ED") at 4:06 p.m. [Tr. Exh. P-1 (excerpts of Plaintiff's medical records) at SOHM 0096.] The chief complaint was that "Patient presents with Assault, Physic. OCCC; mod trauma," and the history taken was that:
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6. On October 10, 2016, Plaintiff filed his Complaint against Defendant Francis Segueira, in his Official Capacity only as Warden of Oahu Community Correctional Center ("Defendant Segueira"), in the First Circuit Court of the State of Hawai`i.
The Complaint was removed to federal court on November 16, 2016. [Notice of Removal, dkt. no. 1, Exh. A (Complaint).] Plaintiff's Complaint alleged five claims: Count I (assault), Count II (a 42 U.S.C. § 1983 claim), Count III (battery), Count IV (gross negligence and/or wilful, wanton misconduct), and Count V (injunctive relief).
7. Plaintiff's First Amended Complaint was filed on July 17, 2017 against Defendants Segueira and Sooalo, and it alleges the same five claims alleged in the original Complaint. [Dkt. no. 20.]
8. This Court approved the parties' stipulation to dismiss Defendant Segueira on May 31, 2018. [Dkt. no. 107.]
9. A non-jury trial was held on June 5, 2018 as to Plaintiff's claims against Defendant on the First Amended Complaint's Counts I through IV. Count V has been dismissed since that claim for relief was alleged only as to Defendant Segueira, who was dismissed by stipulation prior to trial.
10. Plaintiff testified at trial that the following occurred on December 21, 2015:
a. An individual by the name of "Sonny Jackson" ("Mr. Jackson") came into his cell to talk story, and Plaintiff sat in the cell with Mr. Jackson and Mr. Silva.
b. He was sitting on the toilet, Mr. Silva was sitting in the chair which was in front of the sink, and Mr. Jackson was sitting between the toilet and the door to the cell.
c. No one in the cell was smoking "spice" or "tea bags," nor did they have any contraband.
d. Defendant was in the hallway outside of Plaintiff's cell and was walking up and down the hallway. Plaintiff was inside his cell with Mr. Jackson and Mr. Silva, and Plaintiff swore at Defendant by saying, "Fuck you," or "Asshole, better get the hell out of here."
e. Plaintiff speaks with an accent and believes that Defendant recognized his accent and knew that it was Plaintiff who swore at Defendant.
f. Plaintiff and Mr. Silva swore at Defendant. Plaintiff did so because Defendant was walking up and down the hallway in front of his cell and was looking inside the cell as if he was suspicious of Plaintiff doing something in the cell.
g. After Plaintiff swore, Defendant went away for a little while and then came back. Plaintiff swore at him again. The swearing made Defendant very mad. Defendant came into the cell, grabbed Plaintiff and hit him.
h. After being struck by Defendant, Plaintiff was "knocked out" and became unconscious. He does not remember anything until he regained consciousness and found himself in QMC as a patient. A nurse told Plaintiff that he had been beaten by a guard.
11. Plaintiff testified that he is currently homeless and unemployed.
12. Defendant testified that the following occurred on December 21, 2015:
a. Plaintiff never tried to assault or harm him.
b. There was no justification for him to use any kind of force on Plaintiff.
c. He approached Cell 111 because he could smell smoke from where he was standing and went down to the bottom tier to follow the scent, which led him to Plaintiff's Cell 111.
d. The door to Cell 111 was closed.
e. He thought the smell of smoke came from fire, and inmates are not allowed to have fire nor matches nor lighters in the cells. These would be violations of the OCCC rules.
f. He did not call for backup, but he went up to the cell, opened the door and saw a lot of inmates in Cell 111. A few inmates left, and there were three remaining — Plaintiff, Mr. Silva and Mr. Jackson.
g. He went into Cell 111 and observed Plaintiff, Mr. Jackson and Mr. Silva with their eyes rolled back, and they were unresponsive to any commands or questions that he asked. There was a strong odor of smoke in the cell.
h. He thought at the time that the inmates had been smoking something because of the strong odor and what he saw in the toilet. Initially, he thought they were smoking spice because of the inmates' reaction, and that would be an OCCC rule violation.
i. He determined that the situation definitely was one in which he should call for medical backup, and he did so by verbally calling to his partner who was up on the control station. His partner was "Valador."
j. At the time he called for backup, the door was closed because when he entered the cell, the door just shuts on its own. Later in his trial testimony, he stated that the cell door closes automatically "probably for the first few inches but anything more than that it just stays open." There is no closing mechanism.
h. He had to come out of the cell to tell Valador to call for module lock down.
i. He did not tell Valador to call for medical backup when he first came out of the cell after concluding that the inmates needed medical help. He called for medical backup only after he left to get gloves because he needed to assess the situation a little bit more.
j. He was getting the gloves to preserve what the inmates had been smoking and which was in the toilet. He was not able to obtain what was in the toilet because he could not get to it, and he does not know what happened to whatever was in the toilet. At first, the item was floating in the toilet, but it got wet and probably sunk to the bottom of the toilet. It would have been appropriate procedure to try to preserve the item to see if it was contraband or spice, but he could not get to it, and the item is gone.
k. During module lock down, all inmates have to get back into their cells and are locked in their cells. He believes that Valador did lock down the module.
l. He put on the gloves, then told Valador to call medical backup and turned around and went back to the cell. He is not sure if Valador called for medical backup at that time. To do so, you need to get on the security radio and call central control.
m. He puts on gloves for everything; "just going in the cell in general," but he did not put on gloves before he went into Cell 111 the first time. His reason for putting on the gloves later was his intention to reach into the toilet.
n. He went back into Cell 111 before backup arrived and tried to assist the three inmates. Mr. Jackson fell on Plaintiff. Defendant tried to get them "situated" and stepped back, then Mr. Silva attacked him.
o. Before the attack, Mr. Silva was sitting on the toilet to his left, Mr. Jackson was standing "somewhat in front of the door by the wall," and Plaintiff was "sitting on the chair next to the sink, right in front of the sink." He saw Mr. Silva on the toilet, fully clothed, and he could see through Mr. Silva's legs and inside the toilet, where something was burning. Before Mr. Silva attacked him, Plaintiff hit the floor.
p. Mr. Jackson fell on Plaintiff, and then Plaintiff fell to the floor. Defendant took time to turn Plaintiff over before he called for backup and put gloves on. Defendant was not wearing gloves at the time he turned Plaintiff over on the floor of the cell. In the Incident Report, Defendant's statement contradicted his trial testimony in stating that he flipped Plaintiff over only after Mr. Jackson and Mr. Silva were taken out of the room. [Tr. Exh. J-2 (Incident Report dated 12/21/15, bates stamped SOHI 0016 ("12/21/15 Statement")).] He testified that he was distraught, tired and fatigued when he wrote that report because he just got stabbed, and he did not even remember Plaintiff being there. He was focused on Mr. Silva.
q. As a result of being stabbed, he received worker's compensation and was on leave. Defendant returned to work about eleven months to a year later and received full pay.
r. Defendant is 6 feet 5 inches tall and weighs 410 pounds. His yearly earnings in 2015 was probably $50,000, and it is a little bit higher in `.
13. The Court finds Defendant's testimony about the events on December 21, 2015 is not credible. He directly contradicted the sequence of events which he detailed in his 12/21/15 Statement, which was prepared on the same day and within hours after the incident occurred. Although leeway may be given in light of Defendant's state of mind after being stabbed by Mr. Silva, his version of the events still defies common sense. He wrote in the 12/21/15 Statement, which was part of an Incident Report for his employer:
[Tr. Exh. J-2.] This is significantly different from his trial testimony, where there are also contradictions with and between testimony given on direct and cross examinations. In his direct examination, given by written declaration, he stated:
[Tr. Exh. D-1 (Decl. of Pat Sooalo dated 5/31/18 ("Sooalo Decl.")) at ¶¶ 10-13.]
14. On cross examination, Defendant testified that: he saw Mr. Silva on the toilet, Mr. Jackson "was standing somewhat in front of the door by the wall"; Plaintiff was sitting on the chair "right in front of the sink"; Mr. Jackson fell on Plaintiff; and, as Defendant was trying "to get them situated," he stepped back and Mr. Silva attacked him. He acknowledged that his trial testimony contradicts his 12/21/15 Statement. Defendant testified it was a mistake in his statement when he said that it was after Mr. Jackson and Mr. Silva were taken out of the room that he flipped Plaintiff over.
15. On redirect examination, Defendant testified that he stands by his testimony given in his declaration, namely that: he helped Mr. Jackson and flipped Plaintiff over on his back; he left Cell 111 to get gloves; and Mr. Silva attacked him when he returned to Cell 111. [Sooalo Decl. at ¶¶ 10, 12-13.] This testimony contradicts the sequence of events recounted in his 12/21/15 Statement in which he stated that he found Plaintiff on the floor only after Mr. Jackson and Mr. Silva were taken out of Cell 111. [Tr. Exh. J-2.] Both of these accounts conflict with the scenario Defendant gave on cross examination which was that: he entered Cell 111 because he smelled smoke coming from the cell; he saw Mr. Jackson fall on top of Plaintiff's lap; Plaintiff fell to the floor; and Defendant tried to situate them, but Mr. Silva attacked him.
16. Given the small dimensions of Cell 111, if Defendant's testimony is to be believed, then Mr. Jackson was standing "somewhat in front of the door and by the wall." When Mr. Jackson fell forward, it would be more likely than not that he would have fallen on top of or near Mr. Silva (not Plaintiff) because the toilet is located right next to the door and opposite the wall by which Mr. Jackson was supposedly standing. Then, it would be more likely than not that Plaintiff did not fall to the floor as Defendant testified.
17. Alternatively, if Mr. Jackson was standing by the wall but not, as Defendant testified, by the door and instead was standing closer to the bunk beds, then, when Mr. Jackson fell, it would be more likely than not that Mr. Jackson would have fallen toward the vicinity of the sink and onto Plaintiff, if Plaintiff was indeed sitting on a chair in front of the sink, as Defendant testified, and not sitting on the toilet, as Plaintiff testified. It would be more likely than not that, if Mr. Jackson had fallen onto Plaintiff's lap and Plaintiff consequently fell from the chair (as Defendant testified), Plaintiff would have fallen at least partially on top of Mr. Jackson's body, thereby cushioning Plaintiff's contact with the floor or that Mr. Jackson's body weight on top of Plaintiff would have slowed down Plaintiff's fall to the floor. It would be more likely than not, under either of these scenarios, that Plaintiff's fall would not likely have been violent enough to cause a laceration to his scalp on the
18. Plaintiff's testimony that he was sitting on the toilet at the time that Defendant entered Cell 111 and assaulted him credibly explains the laceration to the left side of his face and the two fractures of his ribs on the right side of his body.
19. Defendant called Maureen Camacho, R.N. ("Nurse Camacho") as a witness. Her direct testimony was submitted by declaration. [Tr. Exh. D-5 (Decl. of Maureen Camacho, R.N. ("Camacho Decl.")).] Relevant to the issues at hand, her testimony was that: she is an employee of the State of Hawai`i, DPS; on December 21, 2015, she was part of a team of medical personnel "called to Module 17 of OCCC to assist certain inmates and arrived at 3:15 p.m."; upon her arrival, she observed that Mr. Jackson "was laying face-down, handcuffed, and was yelling and screaming, with ACOs Sooalo and Purcel tending to him"; Mr. Silva "was also laying on the floor being tended to by an ACO and being assessed" by a nurse; Plaintiff "was inside Cell 11. . . flat on his back on the floor with small to moderate amount of blood to the left side of his head"; Plaintiff "appeared to be awake but was not responding to verbal commands"; and Plaintiff's "pupils were dilated to 5mm." [
20. Defendant called Caroline Mee, M.D. as a witness, but Dr. Mee did not provide any relevant admissible testimony. [Tr. Exh. D-2 (Decl. of Caroline M. Mee, M.D., dated 12/28/17, admitted in part).]
21. Defendant called Courtney Mori, R.N. ("Nurse Mori") as a witness. His direct testimony was presented by declaration. [Tr. Exh. D-4 (Decl. of Courtney Mori, R.N., dated May `, admitted in part).] Relevant to the issues at hand, his testimony deemed admissible by the Court was that: on December 21, 2015, he was called to Module 17 of OCCC as part of a team of medical personnel "where it was reported that multiple inmates had altercations while under the use of spice"; Plaintiff "became violent at times"; and "[a]ll inmates were taken by ambulances to Queen's Medical Center." [
22. Nurse Camacho and Nurse Mori's testimonies are consistent with Plaintiff's testimony that he was assaulted and QMC Emergency Department's clinical impression of "[a]ssault by bodily force by person unknown to victim (primary encounter diagnosis)." [Tr. Exh. P-1, at SOHM 0103.]
1. Although Plaintiff has brought several state law claims in his action, this Court may exercise jurisdiction over all of Plaintiff's claims because:
2. The Court concludes Plaintiff's cause of action pursuant to 42 U.S.C. § 1983 supports federal question jurisdiction.
3. This Court also concludes that it has supplemental jurisdiction over Plaintiff's state law claims, pursuant to 28 U.S.C. § 1367(a).
1. Plaintiff has brought a civil action against Defendant and, as the party seeking relief, has the burden of proving his claims and amount of damages.
2. There can be different standards of proof depending on the claim asserted:
3. "When a district court . . . hears state law claims based on supplemental jurisdiction, the court applies state substantive law to the state law claims."
4. "Preponderance of the evidence is defined as `proof which leads the jury to find that the existence of the contested fact is more probable than its nonexistence.'"
5. Clear and convincing evidence is defined as:
6. For Counts I (assault) and III (battery), Plaintiff has brought civil claims, and the burden of proof is bySeptember 27, 2018 a preponderance of the evidence.
7. For Count II (§ 1983 claim), the burden of proof is by a preponderance of the evidence.
8. For Count IV (gross negligence and/or willful or wanton conduct), the burden of proof is by clear and convincing evidence.
1. The elements of Plaintiff's assault claim (Count I) are: "A person commits the common law tort of assault if he or she acts with intent to cause another a nonconsensual harmful or offensive contact or apprehension thereof, and the other person apprehends imminent contact."
2. Based on the testimonies of Plaintiff, Nurse Camacho and Nurse Mori, and QMC Emergency Department medical records, [Tr. Exh. P-1,] the Court concludes Plaintiff has proven by a preponderance of the evidence that Defendant intended to strike Plaintiff on December 21, 2015 with the intent to cause him physical harm and that Defendant placed Plaintiff in apprehension of imminent contact.
3. The Court concludes that Plaintiff met his burden of proof by a preponderance of the evidence and thus prevails on his assault claim (Count I).
4. Section 1983 provides relief against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution." 42 U.S.C. § 1983. Parties can seek relief under § 1983 against persons acting under the color of state law.
5. For an individual capacity suit under § 1983, a plaintiff must establish personal participation in the alleged constitutional violation on the part of the individual to subject that person to individual liability.
6. Plaintiff's burden of proof is:
7. The Court concludes that Plaintiff has proven by a preponderance of the evidence that Defendant was a state actor and was acting under the color of state law at all relevant times on December 21, 2015.
8. Plaintiff brings Count II pursuant to § 1983, and alleges, in pertinent part, in the First Amended Complaint:
[First Amended Complaint at ¶ 19.]
9. In analyzing a claim of excessive force in violation of the Eighth Amendment prohibition against cruel and unusual punishment, the Court must conduct the "core judicial inquiry" as set forth in
10. There are subjective and objective components of an Eighth Amendment violation. "The objective component of an Eighth Amendment claim is therefore contextual and responsive to `contemporary standards of decency.'"
11. Factors to consider in determining whether excessive force was employed are:
12. Plaintiff need not establish serious or significant injury, provided that the amount of force used is more than "de minimis" or involves force that is "repugnant to the conscience of mankind."
13. Based on the facts established by the testimonies of Plaintiff, Nurse Camacho and Nurse Mori, and QMC's Emergency Department medical records, [Tr. Exh. P-1,] the Court concludes that Defendant did use force against Plaintiff on December 21, 2015, and that force was not applied "in a good-faith effort to maintain or restore discipline" but was done "maliciously and sadistically to cause harm." Further, the Court concludes that Plaintiff's injuries — including a laceration on the left side of his face, two subacute fractured ribs and inability to control his movements or recall his name shortly after Defendant struck him — are significant injuries, and were caused by Defendant becoming angry and striking Plaintiff in response to Plaintiff's disrespectful and profanity-ridden yelling at Defendant on at least two occasions on December 21, 2015.
14. Where a plaintiff alleges violation of both the Eighth and Fourteenth Amendments for excessive use of force, the Fourteenth Amendment offers no greater protection than the Eighth Amendment:
15. Violations of the Eighth Amendment are applicable to state actors by the Fourteenth Amendment.
16. The Court concludes that Plaintiff met his burden of proof by a preponderance of the evidence and thus prevails as to his claim of excessive force in violation of the Eighth and Fourteenth Amendments (Count II).
17. For Plaintiff's state law claim of battery (Count III), "[a] person commits the common law tort of battery if he or she acts with intent to cause a nonconsensual harmful or offensive contact, or apprehension thereof, and the contact occurs."
18. Based on the facts established by the testimonies of Plaintiff, Nurse Camacho and Nurse Mori, and QMC's Emergency Department medical records, [Tr. Exh. P-1,] the Court concludes that Defendant intended to and did use force against Plaintiff on December 21, 2015 by striking Plaintiff. Further, the Court concludes that Plaintiff's injuries — including a laceration on the left side of his face, two subacute fractured ribs and inability to control his movements or recall his name shortly after Defendant struck him — are significant injuries, and were caused by Defendant becoming angry and striking Plaintiff in response to Plaintiff's disrespectful and profanity-ridden yelling at Defendant on at least two occasions on December 21, 2015.
19. The Court concludes that Plaintiff met his burden of proof by a preponderance of the evidence and thus prevails as to his claim of battery (Count III).
20. The elements of Plaintiff's claim of gross negligence (which is alleged as a part of Count IV) are:
21. The elements of Plaintiff's willful and wanton conduct claim (which is alleged as a part of Count IV):
22. Defendant's assault and battery of Plaintiff took place on December 21, 2015, when there was a special relationship between Plaintiff, as an incarcerated person and Defendant, as an ACO, and was done with "a bad motive or purpose, or with indifference to the natural consequences," and thus was willful conduct. Given the special relationship between the parties because of their respective status (that is, jailer and inmate), Defendant's assault and battery of Plaintiff was "recklessly disregardful of the rights or safety of others or of consequences." Therefore, the Court concludes that Plaintiff met his burden of proof by clear and convincing evidence and thus prevails as to his claim of wanton and willful conduct (Count IV). Because gross negligence is action which is greater than ordinary negligence and less than willful and wanton conduct, the Court concludes for the same reasons that Plaintiff met his burden of proof by clear and convincing evidence and thus Plaintiff prevails as to his claim of gross negligence (Count IV).
23. Plaintiff, in Count V of his First Amended Complaint, seeks "an injunction enjoining the Warden from acquiescing in and implicitly allowing the use of excessive force against inmates at OCCC." [First Amended Complaint at ¶ 33.] As Plaintiff dismissed Defendant Segueira on May 31, 2018 and has not sought to add or substitute any official, the Court concludes that there is no party to the instant action against whom the relief sought in Count can be obtained. Thus, if Count V was not dismissed upon the dismissal of Defendant Segueira, Plaintiff has failed to carry his burden of proof as to Count V.
1. Plaintiff seeks an award of damages:
2. Plaintiff has the burden of proving that Defendant's conduct was the legal cause of his injuries. Defendant's conduct is the legal cause of such harm if: "(a) [the actor's] conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his [or her] negligence has resulted in the harm."
3. Proof of causation is likewise a required element of Plaintiff's § 1983 claim.
4. The Court concludes that Plaintiff has proven causation by a preponderance of the evidence that Defendant's use of excessive force, assault and battery, and gross negligence caused Plaintiff's physical injuries of loss of consciousness, laceration to forehead and two fractured ribs resulted in significant pain and suffering.
5. The Court concludes that an award of $5,000.00 for general damages to Plaintiff is appropriate in light of the evidence in this case of Plaintiff's injuries, and pain and suffering.
6. Plaintiff has neither sought nor presented evidence of special damages, and the Court does not award special damages to Plaintiff.
7. Plaintiff seeks an award of punitive damages for which he has the burden of proving:
8. "Clear and convincing" evidence is greater than a preponderance of the evidence:
9. DPS and its employees have a special relationship with Plaintiff which required Defendant "to take reasonable steps to protect [Plaintiff] from unreasonable risk of physical harm":
10. Because of the government's obligation to care for those it holds incarcerated, the Eighth Amendment proscribes standards of decency which, when violated, are incompatible with the values of society:
11. The Court concludes that Plaintiff met his burden of proof by clear and convincing evidence that Defendant intentionally and maliciously committed assault and battery of Plaintiff, and his actions violated the standard of care to protect Plaintiff, as the prisoner, against "unreasonable risk of physical harm" and involved "the unnecessary and wanton infliction of pain." The Court thus concludes imposition of punitive damages is merited.
12. The amount of punitive damages imposed cannot be excessive and the Court must consider three guideposts:
13. Although courts are instructed to review all three of the guideposts, the degree of reprehensibility is the most important to consider:
14. After consideration of the three guideposts and giving special care to the issue of reprehensibility, the Court concludes that: (1) Defendant's use of excessive force in his assault and battery of Plaintiff was unjustified and highly reprehensible; (2) the harm to Plaintiff was to his physical well-being (i.e., his loss of consciousness, laceration to his forehead and two fractured ribs); (3) Defendant acted with conscious disregard for Plaintiff's health and safety; and (4) Defendant was motivated by malice.
15. The Court concludes that an award of $25,000.00 in punitive damages to Plaintiff is appropriate in light of the evidence in this case of Defendant's reprehensible actions, malice and conscious disregard for Plaintiff's health and safety and the physical harm caused to Plaintiff. Further, this amount reflects one-half of Defendant's gross financial earnings for 2015 (the year in which Defendant committed these acts).
The foregoing is an outline of the Court's decision. The record citations were provided for ease of reference and are not intended to be exclusive. Where there is a typographical or other error to, or omission of, the record citation, the parties should seek and annotate the relevant portion. Plaintiff is instructed to prepare the proposed FOFCOL and to annotate the findings of fact to the portions of the record and the trial transcript that are consistent with the Court's Outline herein. Plaintiff shall prepare and file the proposed FOFCOL by no later than
In the event that the parties do not prepare and serve proposed FOFCOL as ordered, this Outline shall be deemed the Court's findings of fact and conclusions of law.
IT IS SO ORDERED.
