KENNETH M. KARAS, District Judge:
Plaintiff Julio Perez ("Plaintiff"), proceeding pro se, brings this Action against Defendant Progenics Pharmaceuticals, Inc. ("Defendant"), alleging that Defendant violated the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley"), 18 U.S.C. § 1514A, by terminating Plaintiff's employment in retaliation for a memorandum he wrote regarding a press release about a pharmaceutical drug. In an Opinion & Order dated July 24, 2013, the Court denied Defendant's Motion for Summary Judgment. Defendant now moves for reconsideration of that Opinion & Order. For the following reasons, Defendant's Motion for Reconsideration is denied.
The Court assumes the Parties' familiarity with the factual and procedural history of this case, as described in Perez v. Progenics Pharmaceuticals, Inc., 965 F.Supp.2d 353 (S.D.N.Y.2013). Accordingly, the Court will summarize the relevant factual and procedural history here only briefly.
Defendant is a biotechnology company that has been publicly traded on the NASDAQ stock exchange since 1997. Plaintiff, who holds a Ph.D. and a master's degree in organic chemistry, worked for approximately eleven years as a chemist at two pharmaceutical companies prior to his employment at Defendant, which employment Plaintiff began in May 2004 as Senior Manager of Pharmaceutical Chemistry. Plaintiff's primary responsibility was to support development of Relistor, a pharmaceutical drug designed to treat patients suffering from postoperative bowel dysfunction or opioid-induced constipation. Plaintiff's specific responsibilities included working on Relistor's oral, subcutaneous, and intravenous formulations to figure out ways that the oral form of Relistor could be better absorbed by the human body, working on supply of the active pharmaceutical ingredient in Relistor, and supporting activities related to clinical trials, although Plaintiff himself did not perform the clinical trials.
In December 2005, Defendant and another pharmaceutical company, Wyeth Pharmaceuticals Division ("Wyeth"), entered into a License and Co-Development Agreement (the "Progenics-Wyeth Agreement") to co-develop and jointly commercialize Relistor. Pursuant to the Progenics-Wyeth Agreement, the companies agreed to a Joint Development Plan to govern all aspects of development of the products worldwide. The Joint Development Plan included draft Target Product Profiles (the "TTP"), representing the technical and commercial targets. According to Defendant, the TPP was merely a wish list and a marketing concept intended to help assess the commercial viability of the drug and its performance against competitive products. But according to Plaintiff, the TPP was more significant than a wish list, as it specified the labeling concepts that were the goals of the drug development program and documented the specific studies intended to support the labeling concepts.
In order to gain FDA approval for public sales of oral Relistor, Defendant and Wyeth were required to conduct several phases of clinical trials demonstrating its safety and efficacy. Each clinical trial phase had written protocols with primary and secondary endpoints. From October 2007 until April 2008, the companies conducted
On May 22, 2008, Wyeth and Progenics issued a joint press release ("the Joint Press Release"), stating that "a [P]hase 2 trial[] evaluated the effects of an oral formulation of Relistor," which "showed positive activity," and "statistically significant activity as assessed by the occurrence of spontaneous bowel movements and other efficacy measures." The Joint Press Release also included a quote from the CEO of Progenics at the time, Dr. Paul J. Maddon: "We are pleased by the preliminary findings of this oral formulation."
On July 16, 2008, executives in Wyeth's commercial operations and research development groups presented the Relistor Development Strategy Update (the "Wyeth Update") to Wyeth's Executive Development Council. The Wyeth Update assessed various oral formulations under development, specifically noting that "[r]esults from oral Phase 2 studies demonstrated that neither the tablet nor the capsule formulations had sufficient activity to satisfy the Confirm advancement criteria specified in the approved target product profile." The Wyeth Update formally recommended that the tablet formulation not advance to Phase 3 clinical trials. Although some dosages of the tablet formulation demonstrated statistically significant results, and "rapid and predictable results" occurred with the first dose, other targets for the drug were "not met." According to Defendant, Wyeth decided to engage in further discussions with Defendant and review additional data before making a decision about advancing to Phase 3, but Plaintiff claims that Wyeth endorsed the recommendation not to advance at the July 16, 2008 meeting.
In or around late July 2008, Mark Baker ("Baker"), Defendant's general counsel, received a copy of the Wyeth Update from Dr. Richard Krawiec, another employee of Defendant. Baker then distributed the Wyeth Update to five members of Defendant's senior management team, not including Plaintiff. Plaintiff claims that towards the end of July 2008, he received the Wyeth Update via interoffice mail. Following his receipt of the Wyeth Update, Plaintiff delivered a memorandum ("the August 4, 2008 Memorandum"), entitled "Comments on oral Relistor [P]hase 2 clinical trial results," to Baker and Dr. Thomas Boyd ("Dr. Boyd"), Senior Vice-President of Product Development at Defendant, identifying statements in Joint Press Release. In the August 4, 2008 Memorandum, Plaintiff wrote: "[Wyeth and Defendant] are committing fraud against shareholders since representations made to the public were not consistent with the actual results of the relevant clinical trial, and [Plaintiff] think[s] this is illegal." Plaintiff attached three items to the August 4, 2008 Memorandum: selected slides from the Wyeth Update, the Joint Press Release, and an article entitled "Learn and Confirm," written by Wyeth managers. For the most part, subsequent events are not relevant to Defendant's Motion
Approximately two years after his termination, on November 2, 2010, Plaintiff filed a Complaint in this Court, (see Dkt. No. 1), which he amended on November 29, 2010, (see Dkt. No. 6). In his Amended Complaint, Plaintiff alleges that Defendant violated Sarbanes-Oxley by firing him in retaliation for the actions that Plaintiff took in regard to the August 4, 2008 Memorandum. (See Am. Compl. ¶¶ 66-70.) Plaintiff alleges that those actions constituted activity protected by Sarbanes-Oxley. (See id. ¶¶ 66-67.)
On February 8, 2013, Defendant moved for summary judgment. (See Dkt. No. 58.) The Court heard oral argument on Defendant's Motion on June 26, 2013. (See Dkt. (minute entry for June 26, 2013).) On July 24, 2013, the Court denied Defendant's Motion, rejecting all three of the arguments that Defendant put forward. (See Opinion & Order (July 24, 2013) ("Opinion & Order") (Dkt. No. 107).) On September 6, 2013, Defendant moved for reconsideration. (See Dkt. No. 111.)
"Motions for reconsideration are governed by Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3, which are meant to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Pla v. Renaissance Equity Holdings LLC, No. 12-CV-5268, 2013 WL 3185560, at *1 (S.D.N.Y. June 24, 2013) (internal quotation marks omitted). "The standard for granting a motion for reconsideration under Local Rule 6.3 is strict, so as to avoid repetitive arguments on issues that have been considered fully by the Court." Sampson v. Robinson, No. 07-CV-6890, 2008 WL 4779079, at *1 (S.D.N.Y. Oct. 31, 2008) (internal quotation marks omitted). Furthermore, a "motion for reconsideration is not an opportunity for a losing party to advance new arguments to supplant those that failed in the prior briefing of the issue." VR Global Partners, L.P. v. Bennett (In re Refco Capital Mkts., Ltd. Brokerage Customer Sec. Litig.), Nos. 06-CV-643, 07-CV-8686, 07-CV-8688, 2008 WL 4962985, at *1 (S.D.N.Y. Nov. 20, 2008). "Rather, to be entitled to reconsideration, a movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion, which, had they been considered might reasonably have altered the result reached by the court." Id. (internal quotation marks omitted); see also Pla, 2013 WL 3185560, at *1 ("Such a motion is appropriate where the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." (internal quotation marks omitted)). In other words, "[r]econsideration is appropriate only where there is an intervening change of controlling law, newly available evidence, or the need to correct a clear error or prevent manifest injustice." In re Refco, 2008 WL 4962985, at *1 (internal quotation marks omitted).
In its Motion for Reconsideration, Defendant challenges only that part of the Court's Opinion & Order in which the Court rejected the first argument that Defendant made in its Summary Judgment
Perez, 965 F.Supp.2d at 364-66 (citations and footnotes omitted).
Specifically, Defendant "asserts that reconsideration is appropriate here" because "[t]he Court's conclusion in the Order that there is a genuine issue of material fact regarding whether Plaintiff engaged in protected activity was clearly erroneous." (Def.'s Mem. 5.) Defendant argues that the Court's conclusion was clearly erroneous for three reasons: "(1) the May 22 Joint Press Release did not contain any material omissions; (2) the Court improperly relied upon Plaintiff's alleged conversations with Mr. Lukacsko and Dr. Wong; and (3) Plaintiff could not have reasonably believed that the press release's reference to `positive activity' was fraudulent." (Id.) The Court will address each of these arguments in turn.
Defendant's first argument is confusing. It states that, "[t]hroughout this litigation, Plaintiff has argued that he reasonably believed that the May 22 Joint Press Release was fraudulent because it failed to state whether the Tablet Formulation would be advanced to Phase 3 clinical trials." (Id. at 6.) But according to Defendant, "omitting this information from the press release fails to establish Plaintiff's reasonable belief because such omission does not satisfy the materiality standard." (Id.) Which is to say, Plaintiff cannot have formed an objectively reasonable belief that the Joint Press Release was fraudulent based on its failure to state whether the Tablet Formulation would be advanced to Phase 3 clinical trials, because that information was immaterial.
However, as the portion of the Court's Opinion & Order reproduced above makes clear, the Joint Press Release's omission of information regarding Phase 3 clinical trials played no part in the Court's determination that a genuine issue of material fact exists as to whether Plaintiff reasonably believed that the Joint Press Release was fraudulent. In fact, the Opinion & Order barely discussed Phase 3 clinical trials in any capacity. In other words, the only relevant holding in the Opinion & Order is that `a reasonable jury could find that it was objectively reasonable for Plaintiff ... to [have] form[ed] [a] belief" that the Joint Press Release was fraudulent because it "reported `positive activity' and stated that `[w]e are pleased by the preliminary findings.'" Perez, 965 F.Supp.2d at 365. The Court never held that a reasonable jury could find that it was objectively reasonable for Plaintiff to have formed a belief that the Joint Press Release was fraudulent because it failed to state whether the Tablet Formulation would be advanced to Phase 3 clinical trials.
The distinction reflected by the Court's holding makes sense. In the August 4, 2008 Memorandum, Plaintiff never suggested that the Joint Press Release was fraudulent because it omitted information; rather, Plaintiff repeatedly directed its recipients' attention to affirmative representations contained therein, which representations Plaintiff claimed were fraudulent:
(Decl. of Jonathan Stoler Ex. X ("August 4, 2008 Mem.") 2 (emphasis added) (Dkt. No. 62).) Plaintiff specifically identified the affirmative representations to which he was referring:
(Id. at 1.) In short, in his August 4, 2008 Memorandum, Plaintiff accused Defendant and Wyeth of making false statements, not refraining from making true ones.
This distinction is also supported by the law. Sarbanes-Oxley provides, in part, that publicly traded companies may not "discharge ... an employee ... because of any lawful act done by the employee... to provide information ... regarding any conduct which the employee reasonably believes constitutes a violation of [certain laws, rules, and regulations]..., when the information ... is provided to ... a person with supervisory authority over the employee." 18 U.S.C. § 1514A. The law thus clearly links the discharge of the employee to the allegedly wrongful conduct about which the employee provided information. Indeed, to make out a successful Sarbanes-Oxley claim, a plaintiff must "identify specific conduct [he] believed to be illegal." Yang v. Navigators Grp., Inc., 18 F.Supp.3d 519, 530, 2014 WL 1870802, at *9 (S.D.N.Y. May 8, 2014) (emphasis added); see also Sharkey v. J.P. Morgan Chase & Co., No. 10-CV-3824, 2011 WL 135026, at *6 (S.D.N.Y. Jan. 14, 2011) ("A whistleblower need not cite a code section he believes was violated in his communication to his employer, but the employee's communications must identify the specific conduct that the employee believes to be illegal." (emphasis added) (internal quotation marks omitted) (quoting Welch v. Chao, 536 F.3d 269, 276 (4th Cir.2008))); Fraser v. Fiduciary Trust Co. Int'l, No. 04-CV-6958, 2009 WL 2601389, at *5 (S.D.N.Y. Aug. 25, 2009) ("General inquiries do not constitute protected activity. In order for the whistleblower to be protected by SOX, the reported information must have a certain degree of specificity. A whistleblower must state particular concerns which, at the very least, reasonably identify a respondent's conduct that the complainant believes to be illegal." (emphasis added) (alterations and internal quotation marks omitted)), aff'd, 396 Fed.Appx. 734 (2d Cir.2010).
Here, Plaintiff was very specific about the conduct of Defendant that he
All this being said, just because Plaintiff may not proceed on the theory that he reasonably believed that the Joint Press Release was fraudulent because it omitted information about Phase 3 clinical trials, that does not mean that a reasonable jury could not find that Plaintiff formed an objectively reasonable belief that the representations in the Joint Press Release reporting "positive activity" and that Defendant was "pleased by the preliminary findings" were false or misleading in part based on his review of the Wyeth Update's formal recommendation that the tablet formulation of oral Relistor not advance to Phase 3 clinical trials. If one of the primary purposes of the 2201 Study was to determine whether the tablet formulation of oral Relistor would advance to Phase 3 clinical trials, and the commercial operations and research development groups from Defendant's development partner formally recommended against such advancement based on the 2201 Study's results, and Defendant was aware of that recommendation, then a reasonable person with Plaintiff's training and experience, unfamiliar "with Second Circuit doctrine with respect to the use of `puffery' and `corporate optimism' in press releases," Perez, 965 F.Supp.2d at 365 n. 12, reasonably might have asked himself: why would Defendant be "pleased"? While it may not have been reasonable for a person with Plaintiff's training and experience to rely exclusively on the Wyeth Update's recommendation to form a belief that the Joint Press Release contained misrepresentations, Plaintiff does not claim to have done so here. As the Court's Opinion & Order recognized, Plaintiff also claims to have relied on "conversations with colleagues, his review of [other slides contained in] the Wyeth Update, as well as his own work to form his belief," Perez, 965 F.Supp.2d at 365, a subject the Court will address in
Regardless, the Court does not understand Defendant to be requesting reconsideration of its holding that a reasonable jury would be entitled to rely in part on Plaintiff's review of the Wyeth Update's recommendation regarding Phase 3 clinical trials in reaching a determination that Plaintiff's belief that the Joint Press Release contained false or misleading statements was objectively reasonable. Rather, the Court understands Defendant to be arguing that Plaintiff may not proceed on the theory that he reasonably believed the Joint Press Release was fraudulent merely because it omitted information about Phase 3 clinical trials — an argument with which, as discussed above, the Court agrees, albeit on different grounds.
As stated previously, the Court's Opinion & Order never embraced Plaintiff's argument that he could have had a reasonable belief that the Joint Press Release was fraudulent because it omitted information regarding Phase 3 clinical trials. The Opinion & Order focused on alleged misrepresentations, not alleged omissions. It is thus unsurprising that in the section of its Memorandum of Law addressing the omission issue, Defendant does not cite to the Opinion & Order even once. (See Def.'s Mem. 5-10.) If Defendant was seeking clarification that, should this matter proceed to trial, it will do so only on the theory that a reasonable jury could find that Plaintiff reasonably believed that the Joint Press Release was fraudulent because of alleged misrepresentations contained therein, not omissions of information therefrom, the instant Opinion & Order should serve that function. But in regard to the first Opinion & Order, on this point, there is simply nothing to reconsider.
Defendant next argues that "[t]he Order was also clearly erroneous because the Court mischaracterized the record with respect to Plaintiff's alleged conversations with Mr. Lukacsko and Dr. Wong to reach its conclusion that Plaintiff engaged in protected activity." (Def.'s Mem. 10.) First, "[w]ith respect to Mr. Lukacsko, Plaintiff admitted at oral argument the record is devoid of any evidence that he relied upon his alleged conversations with Mr. Lukacsko to form his purported reasonable belief." (Id.) In support of this argument, Defendant cites to the following passage from the oral-argument transcript:
(Def.'s Mem. 10-11 (citing Hr'g Tr. 38-39).)
It is unclear exactly what Plaintiff meant when he responded to the Court's first question by stating, "Oh, no, it doesn't say that." (Id. at 10 (emphasis added) (citing Hr'g Tr. 38).) His use of "it" may have been a reference to the record — or, it may have been a reference to the August 4, 2008 Memorandum, in which case his
By contrast, Plaintiff's deposition testimony is undoubtedly evidence. As the Court noted in the Opinion & Order, see Perez, 965 F.Supp.2d at 364, the following statements appear therein:
(Decl. of Jonathan Stoler Ex. C. ("Pl.'s Dep. Tr.") 146-48 (Dkt. No. 62).)
Thus, contrary to Defendant's claim, and its characterization of Plaintiff's statement at oral argument, there is evidence in the record suggesting that Plaintiff "relied upon his alleged conversations with Mr. Lukacsko to form his purported reasonable belief." The Court will not discount this evidence in deciding Defendant's Summary Judgment Motion simply based on a single comment of dubious clarity that Plaintiff made at oral argument.
Defendant also argues that, "even if Plaintiff were to now allege that he relied upon his conversations with Mr. Lukacsko to form his alleged reasonable belief, such fact is still insufficient to warrant a denial of [Defendant's] Motion," because Mr. Lukacsko testified at his deposition that "there is nothing in the May 22 Joint Press Release that is inaccurate"; that "he probably did not use the word `failed' when discussing the Tablet formulation with Plaintiff because `[f]ailed' usually implies that there was no statistical efficacy," and "[i]n this particular case, the whole study was not a dud"; and that "even if he used the word `failed' he would have `corrected himself' and `clarified' his comments." (Def.'s Mem. 11 (alterations and some internal quotation marks omitted).)
In the first instance, Mr. Lukacsko's testimony that he "probably" did not use the word "failed" — to the extent that is an accurate characterization of his testimony — is hardly a smoking gun. In fact, Mr. Lukacsko's actual testimony renders Plaintiff's description of their interaction far more plausible than Defendant's characterization suggests:
(Peter Lukacsko Dep. Tr. 474-77.)
In any event, even assuming that Mr. Lukacsko's testimony undermines Plaintiff's version of events, Defendant's attempted use of that testimony essentially amounts to an argument that Mr. Lukacsko's recollection of the conversation that he had with Plaintiff should control, not Plaintiff's recollection of the same event. (See Def.'s Mem. 11 ("Stated simply, it belies logic and commonsense that Plaintiff could somehow establish a reasonable belief that the May 22 Joint Press Release was fraudulent based upon a conversation he had with an individual who firmly believes that the press release is entirely accurate.").) But "[i]t is well-settled that on a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine whether there are issues to be tried." Berrezueta v. Royal Crown Pastry Shop, Inc., No. 12-CV-4380, 2014 WL 3734489, at *3 (E.D.N.Y. July 28, 2014) (alterations and internal quotation marks omitted) (quoting United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994)). If this matter proceeds to trial, a jury could certainly find that Mr. Lukacsko's testimony was more credible than Plaintiff's; but it could also find the opposite. But either way, that determination is a matter for a jury, not the Court.
"With respect to Dr. Wong," Defendant argues that "Plaintiff conceded at his deposition that he never discussed the Wyeth Report with Dr. Wong and that he never directly discussed the May 22 Joint Press Release or his concerns regarding the same with Dr. Wong." (Def.'s Mem. 12.) Instead, "the only conversation Plaintiff had with Dr. Wong was a conversation during which Dr. Wong allegedly told Plaintiff that Wyeth was interested in having Plaintiff prepare certain salts immediately," which conversation "Plaintiff admits... was, at best, an `indirect' conversation about the May 22 Joint Press Release." (Id.)
The Court was aware at the time it issued the Opinion & Order of the precise nature of Plaintiff's testimony regarding the conversation with Dr. Wong on which he allegedly relied in forming his belief — in fact, the Court cited to the specific pages of the transcript from Plaintiff's deposition in which his description of that conversation appears. See Perez, 965 F.Supp.2d at 364 (citing Pl.'s Dep. Tr. 147-54). In his deposition, Plaintiff described that conversation as follows:
(Pl.'s Dep. Tr. 153-54.)
It appears from this testimony as though Plaintiff may have understood Wyeth's urgent need for other salts to be an indication that the current version of oral Relistor — the version that was the subject of the Phase 2 clinical trials — was in some way deficient. (See also Pl.'s Opp. to Def.'s Mot. for Reconsideration ("Pl.'s Opp.") 8-9 ("Around May 2008, Wyeth asked us if we could spare some `zwiterrion,' a convenient material for the preparation of Relistor salts. I had used zwitterion at Progenics exclusively to make Relistor salts. I sent Wong, my immediate supervisor, an email saying about 50 grams of zwitterion were available. The renewed interest in this material was unanticipated. It did not make sense unless additional formulation work was to be conducted. There was no other obvious use for it. Wyeth asked Progenics for the Relistor tartrate salt.... I was told by Wong that Wyeth wanted this prepared urgently.... Wong and I discussed: (1) The additional formulation work underway; and (2) Wyeth moving forward with the Relistor MOA-SLS salt. We made a comment to the effect that the good news was that Wyeth was not giving up on oral Relistor after three failed formulations.").) It was exactly for this reason that the Court cited to this portion of Plaintiff's deposition transcript in the Opinion & Order. It was one data point among many on which Plaintiff claims to have relied in forming his belief. Defendant's argument does not call the Court's citation to this portion of Plaintiff's deposition transcript into question in any way.
Defendant also argues that, although "[t]he Court cited to Dr. Wong's deposition testimony (Wong 38) in support of its conclusion that Plaintiff engaged in protected activity," "Dr. Wong did not testify in this portion of her transcript that she possibly discussed the RELISTOR clinical trials with Plaintiff," but instead "merely testified that she possibly discussed Plaintiff's work in support of oral RELISTOR or oral MNTX." (Def.'s Mem. 12.) In the Opinion & Order, the Court stated the following on this subject:
Perez, 965 F.Supp.2d at 364.
Defendant is correct that, instead of parenthetically describing Dr. Wong as "testifying that it was `possible' that she discussed Relistor clinical trials with Plaintiff," the Court likely should have written something along the lines of, "testifying that it was `possible' that she discussed Plaintiff's work in support of oral RELISTOR or oral MNTX," which would have been more precise. (See Vivien Wong Dep. Tr. 38.)
Lastly, Defendant argues that "the Order was clearly erroneous because the May 22 Joint Press Release's statement that the Tablet formulation showed `positive activity' is insufficient to establish Plaintiff's reasonable belief," because Plaintiff has "wholly undermined this argument when he conceded during his deposition that the Tablet Formulation did, in fact, show positive activity during the 2201 Study." (Def.'s Mem. 12.) Defendant also states that, although "Plaintiff later tried to qualify his admission by stating that the use of the phrase `positive activity' was accurate only in `isolation,'" that qualification was ineffectual, as "the fact that the press release did not further state whether the Tablet Formulation would advance to Phase 3 clinical testing was not a material omission." (Id. at 12-13.)
Defendant is referring to the following testimony from Plaintiff's deposition:
(Pl.'s Dep. Tr. 139-41.)
The Court does not understand Defendant's characterization of Plaintiff's deposition testimony. Rather than an admission, followed by an attempted qualification, it appears as though the only statement that Plaintiff made that could be fairly described as either an admission or a qualification
Further, Plaintiff did not explicitly tie the qualification in his deposition testimony to any alleged material omission from the Joint Press Release. Plaintiff's testimony that the "positive activity" statement was accurate only "in isolation" could be explained by a number of other rationales. For example, Plaintiff could have meant that, if the Joint Press Release had stated only that the oral formulation of Relistor "showed positive activity," that statement would not have been misleading. But by adding the statement that Defendant was "pleased" by the Phase 2 clinical trial, the meaning of the statement that the oral formulation of Relistor "showed positive activity" was altered, such that it suggested that the oral formulation of Relistor showed only positive activity.
In short, the Court does not interpret the portion of Plaintiffs testimony that Defendant emphasizes — which consists of a single phrase susceptible to multiple possible meanings — as a "concession" that it was not objectively reasonable for him to believe that the Joint Press Release was fraudulent in part because it contained the "positive activity" statement. As such, Plaintiffs third argument fails.
For the reasons given herein, Defendant's Motion for Reconsideration is denied with prejudice. The Clerk is respectfully directed to terminate the pending Motion. (See Dkt. No. 111.)
SO ORDERED.
