Opinion
Civ. No. 00-2418 (GEB).
March 8, 2001
MEMORANDUM OPINION
This matter comes before the Court upon defendants' motion to dismiss plaintiffs' complaint, and upon plaintiffs' cross-motions for class certification and a preliminary injunction. Plaintiffs raise claims pursuant to 42 U.S.C. § 1983 alleging a deprivation of the right to counsel in state court child support enforcement proceedings. For the reasons discussed below, this Court denies defendants' motion to dismiss. Instead this Court will abstain pursuant to the Younger doctrine. In light of this Court's abstention from rendering a decision on the merits, plaintiffs' cross-motions for certification of plaintiff and defendant classes; and for a preliminary injunction are denied.
I. BACKGROUND
Plaintiffs are all currently in arrears for child support payments in amounts that have already been determined by the Superior Court of New Jersey Chancery Division. See Plaintiffs' Amended Complaint ("Pls.' Compl.") ¶ 1. Plaintiffs claim that being in arrears places them under a "constant threat of incarceration through procedures which deprive them of rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution." See id. Plaintiffs also allege a violation of Article I, paragraph 8 of the New Jersey State Constitution. See id. ¶ 49. Plaintiffs claim they are members of a class of similarly situated persons. See id. ¶ 2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). See id. ¶ 3.A. Parties 1. Anne Pasqua
On January 10, 1999, the Superior Court of New Jersey, Chancery Division, ordered child support in the amount of $160.00 per week for Nicholas Pasqua, the child of plaintiff, Anne Pasqua. See id. ¶ 16. At some point, plaintiff Pasqua became indigent and unable to meet her weekly child support obligation. See id. ¶ 17. Plaintiff alleges she was unaware that she could apply to the court in order to have her support obligations modified. See id. In January 2000, plaintiff Pasqua was found to be in arrears with respect to her support obligations. See id. ¶ 18. In April 2000, a warrant was issued for plaintiff's arrest, and she was arrested on May 15, 2000. See id. ¶ 19. On May 18, 2000, Superior Court Judge F. Lee Forrester presided over plaintiff's hearing, setting a "release amount" totaling $3,400. See id. ¶ 20. Plaintiff alleges she was never informed of her right to have counsel appointed for her when and if she was found to be indigent. See id. Plaintiff was incarcerated at the Mercer County Corrections Center, and was released on June 1, 2000 without making payment toward her arrearage. See id. ¶ 21. Plaintiff is still in arrears on her child support obligations, and also alleges she remains indigent. See id. ¶ 22. Finally, plaintiff alleges there is a "great likelihood that she will again be deprived of her constitutional rights." See id. 2. Ray Tolbert
Plaintiff Ray Tolbert is subject to a child support obligation, established in 1995, in the amount of $200 per week for his children Erik and Erika Brookins. See id. ¶ 23. Plaintiff Tolbert is also required to pay $25.00 per week to an arrears-only account. See id. Plaintiff alleges he became indigent and therefore unable to comply with his child support obligations. See id. ¶ 24. Plaintiff alleges he was unaware of his ability to petition the Superior Court of New Jersey for modification of his child support obligations. See id. A warrant for plaintiff's arrest was issued in February 2000, and he was arrested on March 27, 2000. See id. ¶ 25. On April 13, 2000, Superior Court Judge Gerald J. Council presided over plaintiff's hearing, and found plaintiff to be in arrears in the amount of $116,261.56. A "release amount" of $10,000 was set at that time, and plaintiff alleges he was not informed of his right to have counsel appointed for him, if he was found to be indigent. See id. ¶ 26. Plaintiff was incarcerated in the Mercer County Corrections Center, and released on June 7, 2000 pursuant to state appellate court order which is "not related to this suit." See id. ¶¶ 27, 28. On June 8, 2000, a hearing was held regarding plaintiff's arrearage on his child support payments. See id. ¶ 29. Plaintiff contends he was not informed of his right to have counsel appointed to him, should he be found to be indigent. See id. Although plaintiff was originally re-incarcerated at the June 9, 2000 hearing, the Probation Department agreed to place plaintiff in a work/training program. See id. ¶ 30. Plaintiff continues to be in arrears on his child support obligation, and alleges "there is great likelihood that he will again be deprived of his constitutional rights." See id. ¶ 31.
It is unclear if plaintiff was ordered incarcerated on June 8, or June 9, because plaintiffs' complaint alleges the hearing was held on June 8, 200 but then refers in a later paragraph to the June 9 hearing. See Pls.' Compl. ¶¶ 29, 30. This distinction does not impact on the outcome of this motion and the Court only notes the discrepancy to prevent any possible confusion.
3. Michael Anthony
In 1991, plaintiff incurred a support obligation in the amount of $85 per week for his child Gina Powell, in addition to a 1987 obligation in the amount of $60 per week for his child Lisa Anthony. See id. ¶ 32. Plaintiff alleges he has become indigent and consequently is unable to meet his child support obligations. See id. ¶ 33. In the fall of 1999, plaintiff was found to be in arrears in the amount of $49,234 and a warrant issued for plaintiff's arrest. See id. ¶¶ 34, 35. Plaintiff was arrested on April 19, 2000 and incarcerated at the Mercer County Corrections Center. See id. ¶¶ 35, 36. Plaintiff appeared before the Honorable Gerald J. Council on May 11, 2000 and alleges he was not informed at that time that if he was found to be indigent, he was entitled to appointed counsel. See id. ¶ 37. Plaintiff was released on May 11, 2000 after payment of $125.00 toward his arrears, Judge Council instructed if plaintiff missed two further payments, another warrant would be issued for his arrest. See id. ¶ 38. Plaintiff alleges he is still in arrears because he is unable to pay the court ordered $145.00 per week. See id. ¶ 39.
B. Claims
All plaintiffs claim they continue to be in arrears of their child support payments, and that pursuant to the New Jersey Court Rules promulgated by the New Jersey Supreme Court, all plaintiffs and the members of the proposed class, "will again be violated by the defendant class." See id. ¶ 40. Plaintiffs allege New Jersey Court Rules including 1:10-3, 5:7-5, and 5:25-3 are in full force and effect, and they are uniformly and routinely applied in a similar manner to plaintiffs and all other members of the proposed class. See id. ¶ 41. Further, plaintiffs allege the proposed defendant class acted pursuant to "statute, ordinance, regulation, custom or usage of the State of New Jersey" when they ordered the incarceration of the plaintiffs. See id. ¶ 42.
1. Failure to Inform as to Constitutional Rights
Plaintiffs allege that Judges Council and Forrester failed to inform plaintiffs of their right to retain counsel prior to their appearance at the hearings held after their arrests pursuant to warrants for failure to make child support payments. See id. ¶ 43. Plaintiffs claim this failure to inform plaintiffs of their right to counsel constituted "a violation of plaintiffs' right [sic] to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution." Id. ¶ 44. Plaintiffs also allege this failure to inform constituted a violation of plaintiffs rights secured by Article I, paragraph 8 of the New Jersey Constitution. See id. ¶ 46. Included under Count One, is a claim related to the failure of Judges Council and Forrester to advise plaintiffs of their rights to have counsel appointed to them if they were indigent and if a possible result of the hearing was deprivation of their liberty. See id. ¶ 47. Plaintiffs claim this failure constituted a violation of their "right to Due Process under the Fifth and Fourteenth Amendments," as well as plaintiffs rights secured by Article I, paragraph 8 of the New Jersey Constitution. Id. ¶ 48, 49. Plaintiffs allege the procedures employed by Judges Council and Forrester were promulgated by Chief Justice Poritz of the Supreme Court of New Jersey, "and/or by Judge Williams, in his official capacity as Administrative Director of the Courts." Id. ¶ 50.
2. Subjecting to Potential Incarceration Without Appointing Counsel
Plaintiffs claim they were subject to hearings that could have resulted in a deprivation of their liberty without being notified of their right to appointed counsel if they were found indigent. See id. ¶ 51. Plaintiffs allege this conduct violated their rights to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution. See id. 3. Subjecting to Consequence of Magnitude Without Appointing Counsel
Plaintiffs charge they were compelled to participate in hearings which could have resulted in "a consequence of magnitude" and pro bono counsel was not appointed to represent any of the plaintiffs during these proceedings. See id. ¶ 52. Plaintiffs claim this deprivation violated their "substantive rights under Article I, paragraph 8 of the New Jersey Constitution." Id. C. Relief
Plaintiffs request declaratory relief acknowledging their rights were violated upon the failure of the defendants to inform them of their right to counsel and for failure to appoint counsel. See id. at 14-15. Plaintiffs request injunctive relief encompassing the following:
1) preventing the incarceration of plaintiffs and all those similarly situated without first notifying them of their right to counsel;
2) preventing the incarceration of plaintiffs and all those similarly situated without informing them of their right to appointed counsel if they are indigent;
3) requiring the appointment of counsel for indigent child support obligors whenever the possible outcome is incarceration or a "consequence of magnitude;"
4) requiring the "defendant class to immediately review the cases of all persons now incarcerated in violation of their constitutional rights."See id. at 16-17. Finally, plaintiffs request attorney's fees and reimbursement for the cost of the lawsuit. See id. at 17.
II. DISCUSSION
A. Standard for Motion to Dismiss
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) may be granted only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief. See Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935 (1985). The Court may not dismiss a complaint unless plaintiff can prove no set of facts that would entitle the plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Angelastro, 764 F.2d at 944. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In setting forth a valid claim, a party is required only to plead "a short plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).
Under Rule 12(b)(6), the Court must accept the allegations in the complaint as true, and draw all reasonable factual inferences in favor of the plaintiff, thus a motion to dismiss may only be granted] only if no relief could be granted under any set of facts that plaintiff could prove. See Unger v. National Residents Matching Program, 928 F.2d 1392, 1394-95 (3d Cir. 1991)); see also Dykes v. Southeastern Pennsylvania Transp. Auth., 68 F.3d 1564, 1565, n. 1 (3d Cir. 1995); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255 (3d Cir. 1994); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). A complaint may be dismissed for failure to state a claim where it appears beyond any doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984). However, legal conclusions made in the guise of factual allegations are given no presumption of truthfulness. See Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) ("[A] court need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss").
A district court reviewing the sufficiency of a complaint has a limited role. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his [or her] claims." Scheuer, 416 U.S. at 236. Generally, when conducting such an inquiry, material beyond the pleadings should not be considered. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.), cert. denied, 510 U.S. 1042 (1994); Gannon v. Continental Ins. Co., 920 F. Supp. 566, 574 (D.N.J. 1996).
Defendants have raised several grounds in support of their motion to dismiss plaintiffs' complaint. First, defendants argue the complaint should be dismissed because the suit is barred by Eleventh Amendment Immunity. See Memorandum of Law in Support of Defendants' Motion to Dismiss ("Defs.' Mem.") at 2. Second, defendants contend they are absolutely immune from suit through the doctrine of judicial immunity. See id. at 4. Finally, defendants argue that the claims raised against Chief Justice Poritz and the Honorable Richard J. Williams should be dismissed under the doctrine of qualified immunity. Further, in their reply brief in further support of the motion to dismiss, defendants raised the applicability of abstention. See Memorandum of Defendants in Reply ("Defs.' Reply") at 1. Plaintiffs simply argue that abstention is not appropriate for the reasons expressed in the Lake v. Speziale, 580 F. Supp. 1318 (D. Conn. 1984), Johnson v. Zurz, 596 F. Supp. 39 (N.D. Ohio 1984), and Mastin v. Fellerhoff, 526 F. Supp. 969 (S.D. Ohio 1981) opinions.
B. Applicability of Younger Abstention
In Younger v. Harris, 401 U.S. 37, 44 (1971), the Supreme Court held that a federal court should not restrain a pending state criminal prosecution when the criminal defendant has an adequate state vehicle through which to assert his federal rights." Younger v. Harris . . . and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances." Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 431 (1982). This policy is based on notions of "comity" and counsels a "proper respect for state functions." See id. (quoting Younger, 401 U.S. at 44). Specifically, the Younger Court, although dealing with a contested criminal matter, dictated the federal court should abstain "so that the state is afforded the opportunity to interpret its rules in the face of a constitutional challenge." Middlesex County Ethics Comm., 457 U.S. at 429. Essentially, abstention is based upon the theory that a litigant should first present and rely upon any federal arguments made in the state court, unless it plainly appears that the state courts would not afford the litigant adequate protection. See id. at 435.
The Younger abstention has been extended to include certain pending civil and administrative proceedings, as well as criminal proceedings. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11-13 (1987) (applying Younger abstention to civil action brought to enjoin enforcement of state court judgment); Middlesex County Ethics Comm., 457 U.S. at 437 (applying Younger abstention to state bar disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434, 447 (1977) (applying Younger abstention to state civil enforcement proceeding); Nernberg v. City of Pittsburgh, 50 F. Supp.2d 437, 440 (W.D. Pa. 1999) (applying Younger abstention to civil enforcement proceeding); Weinstein v. Lasover, Civ. Nos. 93-1552 and 93-4223, 1993 WL 475505 (E.D. Pa. Nov. 12, 1993) (applying Younger abstention to civil action challenging pending state domestic relations action).
The United States Court of Appeals for the Third Circuit enumerated three elements that must be present before a court can apply Younger abstention to an action. See FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996). First, there must be an ongoing state judicial proceeding. See Port Auth. Police Benevolent Assoc. v. Port Auth. of New York and New Jersey Police Dep't, 973 F.2d 169, 173 (3d Cir. 1992) (quoting Shall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989)). Second, the pending state proceeding must implicate important state interests. See Port Auth. Police Benevolent Assoc., 973 F.2d at 173. Finally, the state proceedings must afford an adequate opportunity to assert federal claims. See id. In fact, the appropriate focus of inquiry upon consideration of abstention pursuant to Younger, is whether "the state proceeding provides an adequate forum for the resolution of the federal claims that have been asserted." Ford Motor Co. v. Insurance Com'r of Penn, 874 F.2d 926, 932 (3d Cir. 1989). Abstention is not appropriate if the plaintiff can establish that "(1) the state proceedings are being undertaken in bad faith or for the purposes of harassment or (2) some other extraordinary circumstances exist, such as proceedings pursuant to a flagrantly unconstitutional statute." See Schall, 885 F.2d at 106. A district court's decision to exercise or decline jurisdiction based on the invocation of a Younger abstention is reviewed for an abuse of discretion. See id. In determining whether this Court should abstain pursuant to the Younger doctrine, the Court must accept as true plaintiff's allegations in the complaint. See id. 1. Pending
Plaintiffs allege that they remain indigent and are still unable to pay the required child support. See Pls.' Compl. ¶¶ 5-7. Plaintiffs also allege that state law provides them the right to apply to the issuing court to have the support orders modified, although they were not aware of such procedures at the time of their contempt hearings. See id. ¶ 17. Plaintiffs acknowledge they are "under support orders issued by the Chancery Division, Family Part of the Superior Court," and that all three named plaintiffs are currently in arrears on those child support orders. See id. ¶¶ 12, 22, 31, 39. Defendants contend the continuing operation of the New Jersey State Court child support orders constitutes "on-going judicial procedures." Defs.' Reply at 5. Pursuant to statutory law, a state that issues a child support order retains continuing, exclusive jurisdiction over that order. See Teare v. Bromley, 332 N.J. Super. 381, 386 (Ch.Div. 2000) (discussing jurisdictional elements of the Uniform Interstate Family Support Act adopted March 5, 1998). Given plaintiffs admission that the state court may once again seek to enforce its own order with respect to the plaintiffs' continued arrears, and the statutory jurisdiction granted the state courts over child support orders, it appears plaintiffs are subject to pending state court procedures. Therefore the first prong of the Younger abstention test has been satisfied.
2. Implication of Important State Interests
The United States Supreme Court has already decided a highly analogous case to the one at bar. As such, Judice v. Vail, 430 U.S. 327 (1977) provides the most relevant application of the Younger doctrine for the purposes of the instant motion. The Judice plaintiffs were also state court litigants who were subject to coercive contempt proceedings for failure to comply with duly issued court orders. See id. at 329-30. The plaintiffs alleged the contempt procedures employed by the state court judges, which led to imprisonment, violated the Fourteenth Amendment to the Constitution. See id. at 330. Without raising their concerns for the constitutionality of the procedures before the state courts, the plaintiffs sought an injunction against the enforcement proceedings. See id. The United States Supreme Court applied the Younger abstention doctrine in that case because the plaintiffs sought to enjoin an important state interest, the regular operation of the judicial system. See id. at 335. Although the contempt proceedings in Judice served to vindicate the rights of private litigants, the Court clarified that the procedure "stands in aid of the authority of the judicial system." Id. at 336, n. 12. The Court cautioned that enjoining the state's contempt procedures "can readily be interpreted 'as reflecting negatively upon the state courts' ability to enforce constitutional principles.'" Id. (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).
In addition, federal courts are very reluctant to become involved in domestic relations matters. See Anastasi v. Anastasi, 532 F. Supp. 720, 723 (D.N.J. 1982) (reviewing the history of application of the "domestic relations exception" to a diversity case alleging breach of a quasi-marital contract). State courts have an important interest in matters involving "divorce, alimony, child custody and support for spouse and child." See id. at 724. Specifically, child support arrangements, which are often subject to modification upon changed conditions, should be handled by state courts because they have developed an expertise in such areas. See id. at 722 (quoting Solomon v. Solomon, 516 F.2d 1018, 1025 (1975)); see also New Jersey Court Rule 5:6A (setting forth specific guidelines for determining child support obligations). There is no doubt that aside from the state court's interest in vindicating its authority, New Jersey also has a particularly strong interest in maintaining jurisdiction over the entire scope of its child support orders, including their enforcement. See Teare, 332 N.J. Super. at 390. Therefore, it is clear that New Jersey has two important state interests which are implicated by plaintiffs' lawsuit, and thus the second prong of Younger has been met.
3. Adequate Opportunity in State Proceedings to Raise Federal Claims
New Jersey Courts are authorized to modify child support orders "'as the circumstances of the parties and the nature of the case require." Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App.Div. 1999). Child support obligations are always subject to review upon a showing of "changed circumstances." Id. Plaintiffs do not allege that the argument for modification due to "changed circumstances" cannot be raised at an enforcement hearing. Instead they argue that at the time of their contempt hearings, they were unaware of their ability to seek such modification. See Pl.'s Compl. ¶ 17. It is also clear that "state courts have the solemn responsibility equally with the federal courts to safeguard constitutional rights." See Trainor, 431 U.S. at 443. There is no allegation in plaintiffs' complaint to indicate that New Jersey Courts would be unwilling or unable to justly evaluate plaintiffs' federal constitutional claims. In fact, as acknowledged in plaintiffs' complaint, the Supreme Court of New Jersey has clearly indicated its support for providing indigent defendants counsel "whenever the particular nature of the charge is such that imprisonment in fact or other consequence of magnitude is actually threatened or is a likelihood of conviction." Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971). There is no evidence that the New Jersey Courts would not fairly provide an opportunity for plaintiffs to raise and adjudicate all of their constitutional claims, both state and federal, in the course of the state enforcement proceedings. Further, New Jersey case law indicates that the courts would be receptive to plaintiffs allegations, thus the third prong for abstention under Younger has been met.
Plaintiffs argue this Court should not abstain; although the cases upon which plaintiffs rely involved class action preliminary injunctions against state court child support contempt proceedings, they are factually and legally distinct from the instant case. The courts in Mastin v. Fellerhoff, and Johnson v. Zurz, were asked to abstain in light of a Ohio Supreme Court case which clearly delineated the line for the right to counsel between criminal and civil matters. See Johnson, 596 F. Supp. at 44; Mastin, 526 F. Supp. at 971. Given the direct state court precedent denying pro bono counsel to the obligors, the district courts believed plaintiffs would be unable to rely on the Ohio state courts to effectively adjudicate the claims of the plaintiffs in those cases, and thus abstention was not appropriate. See id. This Court is not faced with any such precedent, as already noted, New Jersey law appears amenable to adjudicating plaintiffs' claims.
The court in Lake v. Speziale, did not feel compelled to abstain under Younger because it did not find any pending state court action. See Lake, 580 F. Supp. at 1329. However, the decision in Lake was rendered approximately fourteen years before the adoption of the Uniform Interstate Family Support Act ("UIFSA") which endorses the concept of "continuing, exclusive jurisdiction" with the court that issued the support order. See Teare, 332 N.J. Super. at 385. Further, the Lake Court was faced with a factually different situation in which the defendant judges admitted to a state practice of declining legal aid to indigent obligors. See Lake, 580 F. Supp. at 1328. No such admission has been made in the present case. The Court is not persuaded by the aforementioned cases, and given the current uniform landscape for continuing jurisdiction for the enforcement of child support orders, this Court believes there is pending state court action. See supra, II B 1. Further, plaintiff does not indicate any extraordinary circumstances which require this Court to interpose itself in state court proceedings, nor can plaintiff allege any of these enforcement proceedings were undertaken in bad faith.
Therefore, in light of the satisfaction of all three prongs for abstention under the Younger doctrine, and because there are no extraordinary circumstances which would warrant intrusion on state court proceedings, and in the spirit of comity and federalism, this Court will abstain from entertaining plaintiffs' complaint, and the complaint will be dismissed.
C. Cross-motions for Class Certification and a Preliminary Injunction
Since plaintiffs' complaint will be dismissed, plaintiffs' requests for certification of plaintiff and defendant classes; and for a preliminary injunction must be denied.
III CONCLUSION
For the reasons discussed above, defendants' motion to dismiss is granted on grounds of the Younger abstention doctrine. Further, plaintiffs' cross-motions for class certifications and a preliminary injunction are denied.
ORDER
This matter having come before the Court upon defendants' motion to dismiss and upon plaintiffs' cross-motions for class certification and a preliminary injunction; and the Court having considered the submissions and the arguments of the parties; and for the reasons expressed in the Memorandum Opinion issued herewith; and for good cause shown;IT IS THIS 8th day of March, 2001
ORDERED that defendants' motion to dismiss be and hereby is GRANTED; and
IT IS FURTHER ORDERED that plaintiffs' cross-motions for certification of plaintiff and defendant classes be and hereby are DENIED; and plaintiffs' motion for a preliminary injunction be and hereby is DENIED.