Opinion
2:20-CV-1665-RSM-DWC
12-01-2021
NYLYSHA STARVION BELAFON ARADON, et al., Plaintiff, v. SNOHOMISH COUNTY, et al., Defendant.
REPORT AND RECOMMENDATION DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
David W. Christel, United States Magistrate Judge.
The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Several motions are presently pending before the Court. This report and recommendation addresses only Plaintiffs' Motion for Partial Summary Judgment (Dkt. 37).
PROCEDUAL BACKGROUND
On October 16, 2020, Plaintiffs filed a complaint in King County Superior Court alleging causes of action for negligent administration of the Snohomish County Parental Dependency and Termination Program, negligent investigation, negligent infliction of mental distress, violation of the Fourteenth Amendment, violation of the Fourth Amendment, abuse of process, and outrage. Dkt. 1-1. On November 12, 2020, Defendants Snohomish County and Di Vittorio removed the case to this Court. Dkt. 1.
On February 16, 2021, this Court entered a Report and Recommendation denying Plaintiff's motion to remand (Dkt. 30), and on March 22, 2021, the Honorable Ricardo S. Martinez adopted it (Dkt. 34).
On July 2, 2021, Plaintiffs filed the instant Motion for Partial Summary Judgment (Dkt. 37), which was ultimately re-noted to September 24, 2021. All Defendants oppose the motion. Dkt. 46, 50, 53. Plaintiffs filed a reply. Dkt. 64. Plaintiffs request oral argument, however, the Court finds the parties' pleadings sufficiently address the points in question.
FACTUAL BACKGROUND
To provide context for the issues presented, but not for purpose of establishing the facts of this case, the Court sets forth factual allegations taken from Matter of Dependency of A.E.T.H., 9 Wash.App. 502, 508 (2019), cert denied, In re A.E.T.H., 195 Wash.2d 1013 (2020). As noted below, while the factual allegations from the Court of Appeals include many of the findings from a memorandum entered by the Superior Court Judge, the Washington Court of Appeals also clearly held that it was improper for that judge to enter the memorandum into the record in the first place because she had already recused herself from the case. Matter of Dependency of A.E.T.H., 9 Wash.App. 2d at 522-25.
Plaintiffs Nylysha Aradon (Aradon) and Carey Hayes (Hayes) are the biological mother and father of minor, A.H., born February 24, 2013. Dkt. 1-1 at 2-3. At birth A.H. tested positive for methadone, as did Plaintiff Aradon, who states that she is a recovering drug addict who entered a drug rehabilitation methadone program in October 2012. Dkt. 1-1 at 4.
The state court case captions refer to A.H. as A.E.T.H.
Due to this and other issues, Washington Department of Social and Health Services (DSHS) removed A.H. from the hospital and placed her with a foster parent, then initiated a dependency petition in Snohomish County Superior Court. Dkt. 1-1 at 4. On May 23, 2013, the Snohomish County Superior Court found A.H. to be dependent, and ordered Plaintiffs Aradon and Hayes to engage in services. Dkt. 1-1 at 5.
Snohomish County Superior Court (the Superior Court) operates a program that recruits, trains, supervises, and maintains volunteer Guardian Ad Litems (the VGAL program) who investigate, file reports, and make recommendations in parental dependency and termination cases. Dkt. 1-1 at 3. The Superior Court appointed VGAL Denise Estabrook (Brook) to represent A.H. Dkt. 37 at 3. Brook died unexpectedly in January 2015, and is not a party in this case. Dkt. 1-1 at 3. Significantly, however, the Honorable Anita Farris (Judge Farris), who presided over the A.H's termination case in Snohomish County, would ultimately determine that Brook committed several violations of the VGAL rules during the course of her appointment as A.H.'s VGAL, such as providing “adoption assurance” to the foster mother, communicating with the foster mother using Brook's personal email (causing many email communications with the foster mother to “disappear”), emailing the foster mother unredacted confidential reports, withholding and concealing the identity of A.H.'s medical providers from Plaintiff Aradon, and assisting the foster mother in the creation of a false “restrictive food list” that Plaintiff Aradon was required to follow during visitation with A.H. (even though it became known within the VGAL program that it was not based on medical advice and that A.H. did not have food allergies). Dkt. 1-1 at 5-7.
Following her death, the Superior Court appointed Brook's supervisor, Defendant Susan Walker (Defendant Walker), to replace Brook as A.H.'s guardian ad litem. Dkt. 1-1 at 7. In
October 2015, Plaintiff filed an administrative complaint against Defendant Walker, and sought to remove Defendant Walker as the GAL of A.H. due to misconduct discovered by Judge Farris. As with Brook, Judge Ferris determined that Defendant Walker had also committed several violations of the GAL rules, and that her testimony at the August 26, 2015 termination trial was “uniformed, inconsistent, dishonest and biased” and did not assist Judge Farris in making her final determination. Among the conduct Judge Farris identified on the part of Defendant Walker was that Defendant Walker requested Plaintiffs' criminal records, then intentionally sent them to VGAL Brook knowing Brook planned to illegally forward them to the adoption agency representing A.H.'s foster mother in her bid to become A.H.'s permanent guardian. Dkt. 1-1 at 7.
In response to Plaintiffs' administrative complaint against Defendant Walker, on November 3, 2015, Defendant Sara Di Vittorio (Defendant Di Vittorio)-an attorney with the civil division of the Snohomish County Prosecutor's Office-wrote a letter to Plaintiff Aradon's attorney on behalf of the VGAL Program, demanding he “cease disclosing” confidential information about VGALs in court filings and in conversations with other members of the legal community, or the VGAL Program would “consider further legal steps.” At the end of November 2015, the Superior Court notified Plaintiff Aradon's attorney that the administrative complaint against VGAL Walker was deemed unfounded but that it had prompted the Superior Court to reassess and clarify the VGAL Program's complaint procedure.
In December 2015, Judge Farris entered an order continuing Plaintiffs' motion to remove Defendant Walker to January 2016, in order to allow the parties time to gather evidence in support of a full evidentiary hearing. Judge Farris also ordered “that the issue of whether the Court's prior termination decision can stand in light of any GAL improprieties found shall not be heard at the next hearing and shall be set for a date following the entry of final findings on the motion to remove GAL.”
On January 29, 2016, Judge Farris allowed Defendant Walker to withdraw from the case without a hearing. On February 11, 2016, Judge Farris appointed a new GAL for A.H.
In February 2016, Judge Farris also held several evidentiary hearings related to discovery issues and VGAL misconduct. Plaintiffs' attorneys presented evidence that the VGALs resisted liberalized visitation for the parents, argued to impose onerous services on the parents, and engaged in abusive litigation tactics. Judge Farris determined that VGAL staff attorney- Defendant Kirsten Haugen (Defendant Haugen)-proffered untruthful testimony during these hearings. For example, Judge Farris noted Haugen submitted a declaration from VGAL Walker that stated A.H.'s most current allergy testing occurred in 2014. Yet the most current allergy testing actually occurred in 2015 and showed that “the food list pushed by the GAL was preventing [A.H.] from eating foods she could eat, and, more importantly, was failing to warn [that A.H.] should not be fed tree nuts due to potential allergies.” Defendant Haugen argued that VGAL Brook's decision to send confidential information about A.H.'s siblings to the foster parent's adoption agency was harmless because the agency had handled the adoptions of all nine of A.H.'s siblings and thus already had the information. The adoption agency's agent later testified that it had, in fact, only handled one sibling's adoption.
Finally, Judge Farris found that “abusive litigation tactics were used for improper purposes during these proceedings.” Most notably, VGAL Brook's entire hard copy case file, which was in the VGAL Program's possession, “mysteriously disappeared without a trace or any explanation in the middle of post-trial proceedings about misconduct of that VGAL.” The VGAL Program also employed “document dumps” during posttrial production to make it hard to find information, destroyed or withheld case-related e-mails, and made false or misleading statements to cover up prior misconduct.
On March 4, 2016, as a result of the VGAL misconduct that was uncovered during these evidentiary hearings, the parents filed a motion to vacate the decision to terminate their parental rights and for discovery sanctions against the VGALs and the VGAL Program. Judge Farris heard argument and testimony on this motion in late March 2016. On June 10, 2016, Judge Farris orally denied the motion. Although Judge Farris determined that there was “pervasive and egregious” misconduct by the VGALs and the VGAL Program in this case, Judge Farris found that the misconduct “did not affect the verdict and did not prevent a fair procedure.”
On September 6, 2016, Plaintiffs filed a new motion for sanctions against the VGAL Program, Defendant Haugen, and the Snohomish County Superior Court, requesting substantial sanctions for each discovery violation and false fact presented since October 2015. Snohomish County (represented by Defendant Di Vittorio) opposed the motion, arguing that it was not a party to the termination case and that Judge Farris could not impose sanctions against the Superior Court because Judge Farris was its employee.
On September 23, 2016, Judge Farris held a hearing on the sanctions motion.
On October 28, 2016, Defendant Di Vittorio moved for Judge Farris to recuse herself from the sanctions portion of the proceeding, arguing that as a member of the Snohomish County Superior Court Judge Ferris had a conflict of interest that prevented her from deciding the motion for sanctions.
On November 18, 2016, Judge Farris held a hearing and orally recused herself.
Then, on February 17, 2017, Judge Farris held yet another hearing, this time to entertain argument from the parties as to whether it was still possible for her to enter a final written order on termination of Plaintiffs' parental rights over A.H., which she said was prepared for her signature prior to her recusal.
On May 17, 2017, Judge Farris entered an “Order Regarding Entry of Trial Findings and Order on Recusal” putting her termination decision on the record, and recusing herself from all remaining proceedings. On June 23, 2017, Judge Farris also entered a 317-page memorandum, broken-down into sections, explaining in great detail her reasons for recusing (the Farris memorandum). After Judge Farris entered this order, the Governor appointed Judge T.W. Small (Judge Small) of Chelan County to hear the remaining issues in the termination case.
In June 2017, Judge Small considered Plaintiffs' still-pending motions to vacate Judge Farris' termination order and for sanctions against Defendant Haugen and the VGAL program. Judge Small denied all motions. See, e.g., Dkt. 47-3 at 3.
Plaintiffs appealed, and the Washington Court of Appeals reversed Judge Small's orders, finding that Judge Farris' determination that the termination case was riddled with ethical conflicts and generally lacked the appearance of fairness was accurate, as were her findings contained in the Farris memorandum regarding the individual Defendants. The Washington Court of Appeals therefore reversed and remanded both the termination order and the orders denying sanctions against Defendant Haugen and the VGAL program. See Matter of Dependency of A.E.T.H., 9 Wash.App. at 517 (2019), cert denied, In re A.E.T.H., 195 Wash.2d 1013 (2020).
The termination case is presently pending re-trial in King County Superior Court. Dependency of A.E.T.H., King County Superior Court Cause No. 20-7-00809-3, Sea.
STANDARD
Summary judgment is proper only if the pleadings, discovery, and disclosure materials on file, and any affidavits, show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”); see also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
DISCUSSION
Plaintiffs move for partial summary judgment, seeking to collaterally estop Defendants from relitigating “the due process violation facts found by the Washington Court of Appeals.” Dkt. 37 at 5, 8, 11. To that end, Plaintiff seeks to establish, as a matter of law, that Defendants are liable to Plaintiffs pursuant to 42 U.S.C. § 1983, because prior litigation has already determined that Defendants violated Plaintiffs' due process rights. Dkt. 37 at 2. Though not named parties in the prior litigation, according to Plaintiffs “all Defendants were present for the termination proceeding” (Dkt. 37 at 17) and were the “moving force” and “laboring oar” in the due process violations, such that this Court should find all Defendants did have their day in court insofar as they assisted “DSHS throughout the dependency, termination, and subsequent appeal.” Dkt. 37 at 18.
Plaintiffs also argue that the Defendants could have sought to intervene in the Washington Court of Appeals case, but chose not to. They write, “Defendants had every incentive and opportunity to move to intervene at the time of the appeal. They chose not to.” Dkt. 64 at 3. Notably, however, Defendant Haugen did move for reconsideration of the Washington Court of Appeals opinion vacating Judge Small's sanctions orders, Plaintiffs objected, and the motion was denied. Dkt. 47-4.
All Defendants contend that Plaintiffs cannot meet the elements required for collateral estoppel to apply. In particular, Defendants maintain the Washington Court of Appeals addressed a different issue from the one at bar, and while that court seemingly accepted many of the findings from the Farris memorandum, it also clearly held that it was improper for Judge Farris to enter the Farris memorandum into the record in the first place as she had already recused herself from the case. Matter of Dependency of A.E.T.H., 9 Wash.App. 2d at 522-25. Moreover, all Defendants insist they were not parties in either the Snohomish County termination case or the Washington Court of Appeals case, nor were they in privity with any party in those cases, therefore they never had an opportunity to challenge Judge Farris' “unchallenged” findings. Thus, Defendants argue they cannot be collaterally estopped from relitigating issues they have never once litigated. See Dkt. 46 at 10-11; Dkt. 50 at 10-15; Dkt. 53 at 4-6, 9.
All Defendants move to strike the Declaration of Adam Ballout (Ballout), Plaintiff Aradon's Attorney in the dependency and termination proceedings in Snohomish County Superior Court. Dkt. 37-1 at 2; Dkt. 46 at 9; Dkt. 50 at 2; Dkt. 53 at 12. Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed.R.Civ.P. 56(e). A party may object to cited documentation asserting the material cited would not be admissible in evidence. Fed.R.Civ.P. 56(c)(2). Admissible declarations or affidavits must be based on personal knowledge, must set forth facts that would be admissible in evidence, and must show the declarant or affiant is competent to testify on the matters stated. Fed.R.Civ.P. 56(c)(4). Objections to evidence because the evidence is irrelevant, speculative, argumentative, vague and ambiguous, or constitutes an improper legal conclusion and is duplicative of the summary judgment standard itself. See Burch v. Regents of University of California, 433 F.Supp.2d 1110, 1119-20 (E.D. Cal. 2006). To the extent that statements in Ballout's Declaration do not meet the requirements of these rules, they will not be considered by the Court. Therefore, Defendants' motions to strike are denied as moot.
Defendant Di Vittorio and the County Defendants mistakenly argue Plaintiff seeks to apply offensive collateral estoppel. Dkt. 50 at 10. However, offensive collateral estoppel arises when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (district court improperly applied offensive collateral estoppel from related case to deny defendant's qualified immunity); see Bates v. Union Oil Co., 944 F.2d 647, 651 n.2 (9th Cir. 1991) (decision to apply collateral estoppel is reviewed for abuse of discretion and overturned only upon showing of clear error of judgment); Gibson v. United States, 761 F.Supp. 685, 692 n.12 (C.D. Cal. 1991) (issue preclusion is available not only to defend against demand for relief, but also as offensive support for demand for relief).
While some of the Defendants in this case were witnesses in the termination case, the only named parties were the State of Washington (DSHS), and Plaintiffs Aradon, Hayes, and A.H. Dkt. 51 at 7. And when the case was appealed, the Defendants in this case were not involved at all. Id. According to Defendant Di Vittorio, Judge Farris stated in an order (not available to this Court) that the County Defendants were not parties to the termination case. Dkt. 51 at 5.
This Court concurs with Plaintiffs that we must look to state law regarding the preclusive effect of state court opinions. See Dkt. 37 at 9 (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985)(“The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute, which provides that state judicial proceedings “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738.)).
“‘Collateral estoppel, also known as issue preclusion, prevents relitigation of an issue after the party estopped has had a full and fair opportunity to present its case.'” Busey v. Wells Fargo Bank NA, No. 19-5880, 2019 WL 5425505, at *6 (W.D. Wash. Oct. 23, 2019) (quoting Barr v. Day, 124 Wash.2d 318, 324-25 (1994) (internal quotations and citations omitted)). Collateral estoppel is “intended to curtail multiplicity of actions, prevent harassment in the courts, and promote judicial economy” with a goal of judicial finality. Weaver v. City of Everett, 194 Wash.2d 464, 473 (2019). In Weaver, the Supreme Court of Washington reaffirmed the four elements the party asserting collateral estoppel must establish:
(1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding; (2) the earlier proceeding ended in a judgment on the merits;
(3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding; and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied.Id. at 474.
The Court's analysis begins and ends on the first element. The issue presented in this case centers on whether each named Defendant is guilty of violating Plaintiffs' due process rights guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution. The issue decided in the earlier proceeding, by the Washington Court of Appeals, was whether the order terminating Plaintiff Aradon and Hayes' parental rights to A.H. should be reversed because they were denied a fair trial. Matter of Dependency of A.E.T.H., 9 Wash.App. 2d at 505. In the course of analyzing this issue, the Washington Court of Appeals accepted the findings in the Farris memorandum as “verities” to conclude that Plaintiffs' due process rights were violated during the Superior Court's termination proceedings because the “tribunal in which A.H.'s dependency and termination proceedings took place was biased because of the involvement of superior court employees working against the parents in this case.” Id. at 518 (emphasis added).
Although the Washington Court of Appeals paraphrased and quoted portions of the Farris memorandum that reflect unfavorably upon the individual Defendants' roles in the termination proceedings, the issue of whether each individual Defendant violated Plaintiffs' due process rights as guaranteed by the United States Constitution was never raised, contested, or submitted for determination to the Washington Court of Appeals. See generally, Matter of Dependency of A.E.T.H., 9 Wash.App. 2d 502 (2019). Thus, to the extent Plaintiffs seek to use the Washington Court of Appeals' apparent “adoption” of the extra-judicial findings in the Farris memorandum to establish a section 1983 violation, they must bear in mind Judge Farris' preface, which states:
***NOTE: This Memorandum Decision was written before the Motion to Recuse but not filed and it is not supported by any formal court order adopting this Memorandum Decision because I concluded the need to recuse prevented this court from entering any final order on this Memorandum Decision as to the Motion to Vacate the Verdict and for Attorney Fees. No final order has ever entered on the Motion to Vacate and for Attorney Fees and Sanctions and this memorandum decision is not a final formal order on that motion. Any final formal order on those issues, as well as any decision as to whether the grounds for recusal constitute separate grounds to vitiate the verdict must be entered by an out of county judge. This Memorandum Decision is filed to show what this court's findings would have been but for the recusal so there is a clear record should it later be determined that an order and findings should have entered and so a determination can be made as to whether the findings were or were not ministerial. It is also filed so there is a clear record of what occurred in this case and where evidence in the record can be found as to what occurred. This Memorandum Decision is mostly consistent with the oral decision rendered on June 10, 2016. However, for the reasons stated in the Memorandum on Recusal, this Memorandum Decision does not address Sections E and F as contained in that oral decision. This decision is filed in several parts solely because for practical purposes it was produced in parts so it would be more manageable for editing and filing.
Dkt. 37-3 at 1-2 (emphasis added).
As Defendant Haugen points out, when Chelan County Superior Court Judge T.W. Small took up Plaintiffs' motion for sanctions against Defendant Haugen, he made his own findings that called into question whether the Farris memorandum was, in fact, the result of “full and fair” litigation as is required for collateral estoppel to apply. See, e.g., Nielson By and Through Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wash.2d 255, 264-65 (1998). For instance, Defendant Haugen points to a June 2017 letter from the Washington State Bar Association
Office of Disciplinary Counsel, which states:
Judge Small made lengthy findings highly favorable to Ms. Haugen and very different from the findings made earlier by Judge Farris when Ms. Haugen was not afforded an opportunity to defend herself. Judge Small found, for example, that there was no evidence Ms. Haugen ever knowingly provided inaccurate information to the court, that Ms. Haugen had not used abusive litigation tactics, and that most of the allegations against Ms. Haugen had no factual basis. The parties appealed from the termination order and other subsequent orders. Ms. Haugen was not a party to the appeal. The parties to the appeal did not challenge Judge Farris's findings, so the Court of Appeals treated them as verities on appeal
without mentioning Judge Small's contrary findings in its opinion. Based on Judge Farris's unchallenged findings, the court reversed the termination order because the proceedings “occurred in a biased tribunal.” The court also vacated Judge Small's findings and orders because “[a]lthough [he] was not a judge seated in Snohomish County, he heard oral argument on the motions in Snohomish County and relied on a record generated in that biased tribunal.” The court remanded for a new trial outside Snohomish County and said that “any party-should they choose to do so- may ... renew the motion for sanctions.
Dkt. 47-1 at 2.
Plaintiffs ultimately appealed Judge Small's order denying their motion to vacate Judge Farris' termination judgment, however, because Plaintiffs did not appeal Judge Small's orders denying their motions for sanctions against Defendant Haugan and the VGAL program (which the Washington Court of Appeals sue sponte reversed) notice of appeal was never served upon Defendant Haugen or Defendant Walker. See Dkt. 47-3 at 3. Dkt. 51 at 7; Dkt. 54 at 4; Dkt 53 at 4.
Plaintiffs reply that “Defendants' [position they were deprived the opportunity to defend themselves] revolves around the mistaken notion that because they were not formal parties to the termination proceedings, they did not have access to the evidence or opportunity to make arguments to the trial court and court of appeals. *** As the instrumentality of the deprivation of due process rights, defendants have no valid claim that the proceedings below were unfair to them. They were actively involved in and corrupted the fairness of the proceedings below.” Dkt. 64 at 3, 8.
Even assuming, arguendo, that this statement is true, it does not change that the issues decided by the Washington Court of Appeals were not identical to the issues presented here, and therefore that case does not have preclusive power. See Shoemaker v. City of Bremerton, 109 Wash.2d 504, 507, 745 P.2d 858 (1987)(“Collateral estoppel may be applied to preclude only those issues that have actually been litigated and necessarily and finally determined in the earlier proceeding.”).
In sum, this Court finds Plaintiffs have not established as a matter of law that collateral estoppel is appropriate in this case because sufficient evidence exists supporting a factual dispute over whether each named Defendant violated Plaintiffs' due process rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. Therefore, Plaintiffs' motion for partial summary judgment should be denied.
CONCLUSION
Based on the foregoing, the Court recommends DENYING Plaintiffs' Motion for Partial Summary Judgment (Dkt. 37) with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on December 17, 2021, as noted in the caption.