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Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL RODRIGUEZ, §
§
Plaintiff, §
§ CIVIL NO.
vs. § SA-17-CV-1103-XR
§
BRYAN TRUCK LINE, INC., CARL J. §
KIES, §
§
Defendants. §
ORDER
Before the Court in the above-styled and numbered cause of action are the Motion to
Quash and for Protective Order filed by non-party Alamo Neurosurgical! Institute (hereinafter
“Alamo”) [#21], Plaintiff's Rule 45 Motion to Quash Deposition and Subpoena Duces Tecum of
David Dorrity [#24], Defendants’ Motion to Compel [#28], and Defendants’ Rule 45 Motion to
Quash Plaintiff's Deposition Notices of David Dorrity, Michael Leonard, M.D., and Anthony
Owusu, M.D. [#29]. The motions were referred to the undersigned for disposition pursuant to
Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for
the Western District of Texas. In reviewing the motions, the Court has also considered
Plaintiff's Response to Defendants’ Rule 45 Motion to Quash Deposition Notices of David
Dorrity, Michael Leonard, M.D., and Anthony Owusu, M.D. [#30], the Joint Advisory to the
Court filed by Defendants and Alamo [#31], and Plaintiff's Advisory to the Court Regarding
Motions [#32].
The Court held a hearing on the motions on September 11, 2018, at which Alamo and the
parties were present as represented by counsel. After considering the motions and responses, the
record in this case, and the arguments of counsel at the hearing, the Court will GRANT INCase 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 2 of 8
PART AND DISMISS IN PART Alamo’s Motion to Quash and for Protective Order [#21];
DISMISS AS MOOT Plaintiff's Rule 45 Motion to Quash Deposition and Subpoena Duces
Tecum of David Dorrity [#24] and Defendants’ Rule 45 Motion to Quash Plaintiff's Deposition
Notices of David Dorrity, Michae! Leonard, M.D., and Anthony Owusu, M.D, [#29]; and DENY
Defendants’ Motion to Compe! [#28].
This case arises from a motor-vehicle accident between Plaintiff Michael Rodriguez and
a truck operated by Defendant Carl Kies during the course of his employment with Defendant
Bryan Trucking. (Orig. Pet. [#1-2].) Plaintiff sues Defendants for negligence and to recover for
the personal injuries he allegedly sustained from the accident, which include injuries to his spine.
Cd.) Defendants removed Plaintiff's Petition to this Court on October 30, 2017 on the basis of
diversity jurisdiction. (Notice of Removal [#1].)
The motions before the Court concern various discovery disputes between the parties
themselves, as well as between Defendants and Alamo, a neurological surgery practice where
Plaintiff sought treatment following his accident. At the Court’s hearing, Defendants confirmed
that their initial motion to quash regarding the deposition of David Dorrity [#24], one of
Plaintiff's expert witnesses, is moot. Additionally, after presenting argument to the Court on
their second motion to quash regarding the depositions of Dorrity and two other of Plaintiff's
experts, Michael Leonard, M.D., and Anthony Owusu, M.D. [#29], Defendants agreed to
withdraw the motion, The Court will therefore dismiss these two motions as moot and address
only Alamo’s Motion to Quash and for Protective Order [#21] and Defendants’ Motion to
Compel [#28] in this written Order.Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 3 of 8
I._Alamo’s Motion to Quash and for Protective Order [#21}
By its motion, Alamo asks the Court to quash certain portions of a subpoena for
deposition by written questions served by Defendants. Alamo’s original motion objected to
Questions 14 through 27 of the subpoena, but the parties were able to resolve the objections as to
Questions 24 through 27 prior to the Court’s hearing. (See Advisory [#31].) The Court will
therefore dismiss the motion in part as to these questions. Alamo maintains its objections to
Questions 14 through 23. (See Direct Questions [#21-1] at 6-8.)
Questions 14 through 17 seek the Medicare and Medicaid reimbursement rates to perform
certain surgical procedures (specifically C6-7 anterior cervical discectomy and fusion and IA-S 1
laminectomy and fusion with interbody and robot assistance) for Michael Rodriguez in 2018 (or
another patient similar in age and condition). Questions 18 and 19 seek the same information but
as to Cigna PPO reimbursement rates. Questions 20 and 21 seek the same information but as to
Blue Cross Blue Shield reimbursement rates. Questions 22 and 23 seek the same information but
as to MultiPlan reimbursement rates. Alamo argues the medical reimbursement rates sought by
Defendants are not relevant to this dispute and improperly seek confidential medical information,
which is prohibited from disclosure by contracts between Alamo and the insurance companies
setting these rates,
Rule 26 generally limits discovery to “any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
Alamo brings its motion to quash pursuant to Rule 45, which governs subpoenas served on
nonparties like Alamo. Courts apply the same relevance and proportionality limitations
encompassed by Rule 26 to motions to quash in the context of Rule 45 so as to avoid imposing
any undue burden or expense on the person or entity subject to the subpoena, See, ¢.g.,Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 4 of 8
MetroPCS v. Thomas, No. 3:18-MC-29-K-BN, 2018 WL 2933673, at *9 (N.D. Tex. June 12,
2018); Whitley v. Pinnacle Entm’t, Inc., No. CV 15-595-BAJ-RLB, 2016 WL 6154938, at *2
(M.D. La. Oct. 21, 2016).
It is undisputed that Alamo is not a network provider for Cigna PPO and does not accept
Medicaid and therefore does not have any knowledge about the Cigna reimbursement rate or the
Medicaid fee schedule. Additionally, the parties agreed that Defendant could obtain publicly
available information regarding the Medicaid fee schedule from governmental websites.
Accordingly, the Court will grant Defendants’ motion as to Questions 14 through 19 (pertaining
to Cigna and Medicaid/Medicare), as Alamo stated on the record that information on these rates
is either not in its possession or control or is publically available.
As to the reimbursement rates of Blue Cross Blue Shield and MultiPlan (Questions 20
through 23), it is undisputed that Plaintiff did not present Alamo with any insurance for purposes
of his treatment and that no claim for reimbursement has been filed with either of these entities.
In other words, the reimbursement rates that Alamo has negotiated with Blue Cross Blue Shield
and MultiPian will not govern the amount charged to Plaintiff for any care he has received or
will receive from Alamo. (It is undisputed that the amounts Alamo actually billed Plaintiff for
care he received must be and have been produced.) Additionally, Alamo attached to its Advisory
to the Court a copy of its Group Managed Care Agreement and Participating Professional Group
Agreement with these two companies. (See Agreements [#31] at 4-7.) Both of these contracts
contain confidentiality provisions prohibiting the disclosure of any proprietary terms of the
contract by Alamo to third parties.
Defendants maintain that the reimbursement rates are nonetheless relevant and
proportional to the claims and defenses in this case because the rates may help establish theCase 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 5 of 8
extent of Plaintiff's future medical expenses for purposes of damages. Specifically, they argue
that the rates Alamo negotiated with these insurers for the procedures and medical care Plaintiff
arguably needs in the future constitute evidence of the amount of Plaintiff's future medical costs,
regardless of whether he is or will be covered by those medical plans. Defendants argue that this
type of information has been found relevant and discoverable by the Texas Supreme Court in a
recent case styled, Jn re N. Cypress Med. Ctr. Operating Co., Ltd., No. 16-0851, 2018 WL
1974376 (Tex. Apr. 27, 2018). The Court disagrees.
The North Cypress case involved a dispute between a patient and a hospital over the
reasonableness of a hospital lien following emergency-room treatment. See generally N.
Cypress, 2018 WL 1974376. The patient sued the hospital in a declaratory judgment action,
arguing that the hospital’s charges were unreasonable and the lien was invalid to the extent it
exceeded a “reasonable and regular rate” for the services rendered. /d. at *1. The patient served
discovery requests for certain reimbursement rates for emergency room services as performed on
the patient. Jd. at *2. The hospital objected to the requests and moved for a protective order,
arguing the rates were irrelevant. id. After the trial court ordered the hospital to produce the
requested information and denied a motion for reconsideration of this ruling, the hospital sought
mandamus relief before the Texas Supreme Court. Jd. The Texas Supreme Court denied the
mandamus petition, concluding that the amounts the hospital accepts for the services rendered to
the plaintiff from other patients—including those covered by private insurance and government
benefits—were relevant to the reasonableness of the challenged hospital lien and therefore
discoverable. Jd. at *5-7. North Cypress is not controlling here. Nor should the holding of
North Cypress be extended this far beyond the facts that were before the Texas Supreme Court,Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 6 of 8
The case currently before this Court does not concern a hospital lien based on services
already rendered. The question before the Court is not the reasonableness of the rates charged to
this Plaintiff. Rather, this is a personal-injury action between an injured plaintiff and two
possible tortfeasors, in which Plaintiff seeks to establish that the trucking company and its
employee were negligent in the operation of their truck and in conjunction with the accident
causing Plaintiff's injuries. Alamo, the entity from which Defendants seek these reimbursement
rates, is not a party to this lawsuit, but rather a non-party surgical center where Plaintiff sought
care for his injuries. The Court does not find that Alamo’s negotiated reimbursement rates with
Blue Cross Blue Shield and MultiPlan are relevant and proportional to this dispute. To be sure,
there may be some attenuated relationship between Alamo’s fees for surgical services to its
insured patients and what Alamo might charge Plaintiff in the future for any services, but the
Court is unwilling to extend the holding of North Cypress to this fact pattern, especially in light
of the confidentiality provisions prohibiting Alamo’s disclosure of this information. To do so
would set a troubling precedent where non-party medical providers would be required to produce
proprietary information regarding their contractual terms with non-party insurers in any personal
injury case where there was a dispute between the plaintiff who the providers treated and the
alleged tortfeasor regarding how to calculate damages for the plaintiff's future medical care. The
Court will therefore grant Alamo’s motion to quash as to Questions 20 through 23.
I, Defendants’ Motion to Compel [#28]
Defendants’ motion to compel asks the Court to compel Plaintiff to produce his payroll
earnings records, medical work release records, and employment absence records. The parties
agree these documents are relevant to Plaintiffs representation that he missed a total of 70 days
of work due to his injuries, pain, and doctor’s appointments. (See Pl.’s Answers to Defs.’Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 7 of 8
Interrogs. [#28-1] at 7.) At the Court’s hearing, Plaintiff stated to Defendants and the Court on
the record that he does not have any of these documents in his possession and control, and any
such document—if once in his possession—had been turned over to his employer, Boyle
Plumbing. Defendants ultimately conceded at the hearing that their actual dispute is therefore
not with Plaintiff but rather with Boyle Plumbing. Defendants served Boyle Plumbing with a
subpoena for employment records related to Plaintiff on May 4, 2018, but the company has
apparently been uncooperative in responding to the subpoena. (See Aff. of Due Diligence [#28-
4].) Defendants have not filed a motion to enforce the subpoena, and the conduct of Boyle
Plumbing is not at issue here. Accordingly, the Court will deny Defendants’ motion to compel.
In accordance with the foregoing, the Court now enters the following:
IT IS ORDERED that Alamo’s Motion to Quash and for Protective Order [#21] is
GRANTED IN PART as to Questions 14 through 23 and DISMISSED IN PART as to
Questions 24 through 27.
IT IS FURTHER ORDERED that that Plaintiff's Rule 45 Motion to Quash Deposition
and Subpoena Duces Tecum of David Dorrity [#24] is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Defendants’ Motion to Compel [#28] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Rule 45 Motion to Quash Plaintiff's
Deposition Notices of David Dorrity, Michael Leonard, M.D., and Anthony Owusu, M.D. [#29]
is DISMISSED AS MOOT.
IT IS FINALLY ORDERED that all other relief not expressly granted or dismissed
herein is DENIED.Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 8 of 8
IT IS SO ORDERED.
SIGNED this | 8th day of September, 2018.
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Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MICHAEL RODRIGUEZ, § § Plaintiff, § § CIVIL NO. vs. § SA-17-CV-1103-XR § BRYAN TRUCK LINE, INC., CARL J. § KIES, § § Defendants. § ORDER Before the Court in the above-styled and numbered cause of action are the Motion to Quash and for Protective Order filed by non-party Alamo Neurosurgical! Institute (hereinafter “Alamo”) [#21], Plaintiff's Rule 45 Motion to Quash Deposition and Subpoena Duces Tecum of David Dorrity [#24], Defendants’ Motion to Compel [#28], and Defendants’ Rule 45 Motion to Quash Plaintiff's Deposition Notices of David Dorrity, Michael Leonard, M.D., and Anthony Owusu, M.D. [#29]. The motions were referred to the undersigned for disposition pursuant to Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. In reviewing the motions, the Court has also considered Plaintiff's Response to Defendants’ Rule 45 Motion to Quash Deposition Notices of David Dorrity, Michael Leonard, M.D., and Anthony Owusu, M.D. [#30], the Joint Advisory to the Court filed by Defendants and Alamo [#31], and Plaintiff's Advisory to the Court Regarding Motions [#32]. The Court held a hearing on the motions on September 11, 2018, at which Alamo and the parties were present as represented by counsel. After considering the motions and responses, the record in this case, and the arguments of counsel at the hearing, the Court will GRANT INCase 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 2 of 8 PART AND DISMISS IN PART Alamo’s Motion to Quash and for Protective Order [#21]; DISMISS AS MOOT Plaintiff's Rule 45 Motion to Quash Deposition and Subpoena Duces Tecum of David Dorrity [#24] and Defendants’ Rule 45 Motion to Quash Plaintiff's Deposition Notices of David Dorrity, Michae! Leonard, M.D., and Anthony Owusu, M.D, [#29]; and DENY Defendants’ Motion to Compe! [#28]. This case arises from a motor-vehicle accident between Plaintiff Michael Rodriguez and a truck operated by Defendant Carl Kies during the course of his employment with Defendant Bryan Trucking. (Orig. Pet. [#1-2].) Plaintiff sues Defendants for negligence and to recover for the personal injuries he allegedly sustained from the accident, which include injuries to his spine. Cd.) Defendants removed Plaintiff's Petition to this Court on October 30, 2017 on the basis of diversity jurisdiction. (Notice of Removal [#1].) The motions before the Court concern various discovery disputes between the parties themselves, as well as between Defendants and Alamo, a neurological surgery practice where Plaintiff sought treatment following his accident. At the Court’s hearing, Defendants confirmed that their initial motion to quash regarding the deposition of David Dorrity [#24], one of Plaintiff's expert witnesses, is moot. Additionally, after presenting argument to the Court on their second motion to quash regarding the depositions of Dorrity and two other of Plaintiff's experts, Michael Leonard, M.D., and Anthony Owusu, M.D. [#29], Defendants agreed to withdraw the motion, The Court will therefore dismiss these two motions as moot and address only Alamo’s Motion to Quash and for Protective Order [#21] and Defendants’ Motion to Compel [#28] in this written Order.Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 3 of 8 I._Alamo’s Motion to Quash and for Protective Order [#21} By its motion, Alamo asks the Court to quash certain portions of a subpoena for deposition by written questions served by Defendants. Alamo’s original motion objected to Questions 14 through 27 of the subpoena, but the parties were able to resolve the objections as to Questions 24 through 27 prior to the Court’s hearing. (See Advisory [#31].) The Court will therefore dismiss the motion in part as to these questions. Alamo maintains its objections to Questions 14 through 23. (See Direct Questions [#21-1] at 6-8.) Questions 14 through 17 seek the Medicare and Medicaid reimbursement rates to perform certain surgical procedures (specifically C6-7 anterior cervical discectomy and fusion and IA-S 1 laminectomy and fusion with interbody and robot assistance) for Michael Rodriguez in 2018 (or another patient similar in age and condition). Questions 18 and 19 seek the same information but as to Cigna PPO reimbursement rates. Questions 20 and 21 seek the same information but as to Blue Cross Blue Shield reimbursement rates. Questions 22 and 23 seek the same information but as to MultiPlan reimbursement rates. Alamo argues the medical reimbursement rates sought by Defendants are not relevant to this dispute and improperly seek confidential medical information, which is prohibited from disclosure by contracts between Alamo and the insurance companies setting these rates, Rule 26 generally limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Alamo brings its motion to quash pursuant to Rule 45, which governs subpoenas served on nonparties like Alamo. Courts apply the same relevance and proportionality limitations encompassed by Rule 26 to motions to quash in the context of Rule 45 so as to avoid imposing any undue burden or expense on the person or entity subject to the subpoena, See, ¢.g.,Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 4 of 8 MetroPCS v. Thomas, No. 3:18-MC-29-K-BN, 2018 WL 2933673, at *9 (N.D. Tex. June 12, 2018); Whitley v. Pinnacle Entm’t, Inc., No. CV 15-595-BAJ-RLB, 2016 WL 6154938, at *2 (M.D. La. Oct. 21, 2016). It is undisputed that Alamo is not a network provider for Cigna PPO and does not accept Medicaid and therefore does not have any knowledge about the Cigna reimbursement rate or the Medicaid fee schedule. Additionally, the parties agreed that Defendant could obtain publicly available information regarding the Medicaid fee schedule from governmental websites. Accordingly, the Court will grant Defendants’ motion as to Questions 14 through 19 (pertaining to Cigna and Medicaid/Medicare), as Alamo stated on the record that information on these rates is either not in its possession or control or is publically available. As to the reimbursement rates of Blue Cross Blue Shield and MultiPlan (Questions 20 through 23), it is undisputed that Plaintiff did not present Alamo with any insurance for purposes of his treatment and that no claim for reimbursement has been filed with either of these entities. In other words, the reimbursement rates that Alamo has negotiated with Blue Cross Blue Shield and MultiPian will not govern the amount charged to Plaintiff for any care he has received or will receive from Alamo. (It is undisputed that the amounts Alamo actually billed Plaintiff for care he received must be and have been produced.) Additionally, Alamo attached to its Advisory to the Court a copy of its Group Managed Care Agreement and Participating Professional Group Agreement with these two companies. (See Agreements [#31] at 4-7.) Both of these contracts contain confidentiality provisions prohibiting the disclosure of any proprietary terms of the contract by Alamo to third parties. Defendants maintain that the reimbursement rates are nonetheless relevant and proportional to the claims and defenses in this case because the rates may help establish theCase 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 5 of 8 extent of Plaintiff's future medical expenses for purposes of damages. Specifically, they argue that the rates Alamo negotiated with these insurers for the procedures and medical care Plaintiff arguably needs in the future constitute evidence of the amount of Plaintiff's future medical costs, regardless of whether he is or will be covered by those medical plans. Defendants argue that this type of information has been found relevant and discoverable by the Texas Supreme Court in a recent case styled, Jn re N. Cypress Med. Ctr. Operating Co., Ltd., No. 16-0851, 2018 WL 1974376 (Tex. Apr. 27, 2018). The Court disagrees. The North Cypress case involved a dispute between a patient and a hospital over the reasonableness of a hospital lien following emergency-room treatment. See generally N. Cypress, 2018 WL 1974376. The patient sued the hospital in a declaratory judgment action, arguing that the hospital’s charges were unreasonable and the lien was invalid to the extent it exceeded a “reasonable and regular rate” for the services rendered. /d. at *1. The patient served discovery requests for certain reimbursement rates for emergency room services as performed on the patient. Jd. at *2. The hospital objected to the requests and moved for a protective order, arguing the rates were irrelevant. id. After the trial court ordered the hospital to produce the requested information and denied a motion for reconsideration of this ruling, the hospital sought mandamus relief before the Texas Supreme Court. Jd. The Texas Supreme Court denied the mandamus petition, concluding that the amounts the hospital accepts for the services rendered to the plaintiff from other patients—including those covered by private insurance and government benefits—were relevant to the reasonableness of the challenged hospital lien and therefore discoverable. Jd. at *5-7. North Cypress is not controlling here. Nor should the holding of North Cypress be extended this far beyond the facts that were before the Texas Supreme Court,Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 6 of 8 The case currently before this Court does not concern a hospital lien based on services already rendered. The question before the Court is not the reasonableness of the rates charged to this Plaintiff. Rather, this is a personal-injury action between an injured plaintiff and two possible tortfeasors, in which Plaintiff seeks to establish that the trucking company and its employee were negligent in the operation of their truck and in conjunction with the accident causing Plaintiff's injuries. Alamo, the entity from which Defendants seek these reimbursement rates, is not a party to this lawsuit, but rather a non-party surgical center where Plaintiff sought care for his injuries. The Court does not find that Alamo’s negotiated reimbursement rates with Blue Cross Blue Shield and MultiPlan are relevant and proportional to this dispute. To be sure, there may be some attenuated relationship between Alamo’s fees for surgical services to its insured patients and what Alamo might charge Plaintiff in the future for any services, but the Court is unwilling to extend the holding of North Cypress to this fact pattern, especially in light of the confidentiality provisions prohibiting Alamo’s disclosure of this information. To do so would set a troubling precedent where non-party medical providers would be required to produce proprietary information regarding their contractual terms with non-party insurers in any personal injury case where there was a dispute between the plaintiff who the providers treated and the alleged tortfeasor regarding how to calculate damages for the plaintiff's future medical care. The Court will therefore grant Alamo’s motion to quash as to Questions 20 through 23. I, Defendants’ Motion to Compel [#28] Defendants’ motion to compel asks the Court to compel Plaintiff to produce his payroll earnings records, medical work release records, and employment absence records. The parties agree these documents are relevant to Plaintiffs representation that he missed a total of 70 days of work due to his injuries, pain, and doctor’s appointments. (See Pl.’s Answers to Defs.’Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 7 of 8 Interrogs. [#28-1] at 7.) At the Court’s hearing, Plaintiff stated to Defendants and the Court on the record that he does not have any of these documents in his possession and control, and any such document—if once in his possession—had been turned over to his employer, Boyle Plumbing. Defendants ultimately conceded at the hearing that their actual dispute is therefore not with Plaintiff but rather with Boyle Plumbing. Defendants served Boyle Plumbing with a subpoena for employment records related to Plaintiff on May 4, 2018, but the company has apparently been uncooperative in responding to the subpoena. (See Aff. of Due Diligence [#28- 4].) Defendants have not filed a motion to enforce the subpoena, and the conduct of Boyle Plumbing is not at issue here. Accordingly, the Court will deny Defendants’ motion to compel. In accordance with the foregoing, the Court now enters the following: IT IS ORDERED that Alamo’s Motion to Quash and for Protective Order [#21] is GRANTED IN PART as to Questions 14 through 23 and DISMISSED IN PART as to Questions 24 through 27. IT IS FURTHER ORDERED that that Plaintiff's Rule 45 Motion to Quash Deposition and Subpoena Duces Tecum of David Dorrity [#24] is DISMISSED AS MOOT. IT IS FURTHER ORDERED that Defendants’ Motion to Compel [#28] is DENIED. IT IS FURTHER ORDERED that Defendants’ Rule 45 Motion to Quash Plaintiff's Deposition Notices of David Dorrity, Michael Leonard, M.D., and Anthony Owusu, M.D. [#29] is DISMISSED AS MOOT. IT IS FINALLY ORDERED that all other relief not expressly granted or dismissed herein is DENIED.Case 5:17-cv-01103-XR Document 38 Filed 09/18/18 Page 8 of 8 IT IS SO ORDERED. SIGNED this | 8th day of September, 2018.