UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 30, 2012
JEAN Y. DENIS, PLAINTIFF,
THE TOWN OF HAVERSTRAW, AND POLICE OFFICER MCMANUS (BADGE/ID NO. 235), DEFENDANTS.
The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
OPINION AND ORDER
Jean Y. Denis ("Plaintiff") brings this diversity action against the Town of Haverstraw and Police Officer McManus ("Officer McManus") in his official capacity (collectively, "Defendants"). Plaintiff alleges that he was injured by the negligence of Officer McManus in directing Plaintiff's car across a railroad crossing at the intersection of Short Clove Road and Route 9W in the Town of Haverstraw, New York, and that as a result, Plaintiff's car was hit by an oncoming CSX train. Defendants move for summary judgment. For the reasons stated herein, Defendants' motion is granted.
A. Facts The relevant facts, which detail the events leading up to Plaintiff's car being struck by a CSX train, are taken primarily from the Parties' Local Civil Rule 56.1 Statements. Any disputes are noted herein, but as discussed below, do not determine the outcome of the motion. On November 5, 2008, at approximately 6:35 p.m., Officer McManus, of the Town of Haverstraw Police Department, responded to a two car accident on Route 9W near its intersection with Short Clove Road in the Town of Haverstraw, New York. (Defs.' Statement of Material Facts Pursuant to Local R. 56.1 ("Defs.' 56.1") ¶ 1; Pl.'s Statement of Material Facts Pursuant to Local R. 56.1 ("Pl.'s 56.1") ¶ 1.) Police Officer De La Rosa was also at the accident scene and was directing traffic while Officer McManus completed the accident report. (Defs.' 56.1 ¶ 2; Dep. of Police Officer McManus ("McManus Dep.") 21:16-22:24.) Defendants claim that Officer McManus parked his police car on the shoulder of Route 9W, just south of its intersection with Short Clove Road (Defs.' 56.1 ¶ 1), while Plaintiff claims that there were two police cars blocking the intersection of Route 9W and Short Clove Road, (Pl.'s 56.1 ¶ 1). At approximately 7:00 p.m., Plaintiff was driving south-west on Short Clove Road in a 1991 Mercedes Benz 300 SE and approached the intersection of Short Clove Road and Route 9W. (Defs.' 56.1 ¶ 3.) Plaintiff stopped his car on Short Clove Road behind the railroad tracks, which cross Short Clove Road and run parallel to Route 9W, and waited for the officers to clear the accident on Route 9W. (Defs.' 56.1 ¶ 4; Pl.'s 56.1 ¶ 4.) Plaintiff claims that he was waiting for the police officers to move their cars so he could cross the train tracks and turn onto Route 9W. (Pl.'s 56.1 ¶ 4; Dep. of Jean Y. Denis ("Denis Dep.") 26:25-27:10.)
There is a dispute of fact as to how far behind the train tracks Plaintiff stopped his car. During Plaintiff's hearing pursuant to New York General Municipal Law § 50-h, he stated that he stopped his car approximately twelve to fourteen feet from the tracks. (50-h Hr'g of Jean Y. Denis ("Denis 50-h Tr.") 17:13-24.) However, during his deposition, Plaintiff stated several times that he was approximately four to five feet behind the tracks. (Denis Dep. 23:18-21, 25:16-20, 34:14-16, 87:20-24.) Officer McManus testified at his deposition that when he first saw Plaintiff's car, it was about one or two feet away from the railroad tracks. (McManus Dep. 29:3-7.) Again, the dispute is not relevant here.
When Plaintiff stopped his car on Short Clove Road on the far side of the railroad tracks, there were no cars between his vehicle and Route 9W. (Defs.' 56.1 ¶ 5; Pl.'s 56.1 ¶ 5.) The railroad crossing gates were up (Pl.'s 56.1 ¶ 6), and Plaintiff's car was positioned between the crossing gate farthest from Route 9W and the train tracks, (Denis Dep. 29:17-30:24, 33:10-17). Defendants have measured the exact distances from the railroad tracks to each crossing arm and the distance from the tracks to the railroad crossings arm closest to Route 9W is 21 feet, 6 inches, while the distance from the tracks to the railroad crossing gate farthest from Route 9W (where Plaintiff's car was stopped) is 52 feet, 0 inches. (Aff. of Lt. Martin Lund ¶¶ 6-7.) Therefore, the Court disregards contradictory statements regarding these distances from Plaintiff's 56.1 Statement ¶ 6 and from Officer McManus' deposition testimony, though the precise distances are not dispositive here. Defendants also have included in the record the official specifications for Plaintiff's car and the Court notes that the car measures 202.6 inches in length. (Decl. in Supp. of Mot. for Summ. J. ("Defs.' Decl.") Ex. I.)
Plaintiff and Defendants give different accounts of the events which led to Plaintiff's car being struck by the CSX train. Officer McManus claims that when he first noticed Plaintiff's car, Plaintiff was stopped about one to two feet from the railroad tracks and Officer De La Rosa was directing the car to back up by "putting his hands out and pushing them away from his body and yelling at the driver to back up repeatedly . . . ." (McManus Dep. 29:3-24.) According to Officer McManus, he then got out of his patrol car on Route 9W and assisted Officer De La Rosa with "giving the verbal commands and the hand signals for [Plaintiff] to back up." (Id. at 33:9-12.) Officer McManus claims that he and De La Rosa were signaling for Plaintiff to move his car back because the railroad crossing gates had come down and Plaintiff was only a foot or two away from the tracks, which was in the "danger zone" for being struck by the train. (Id. at 33:17-34:12; Defs.' 56.1 ¶¶ 6-8; Defs.' Decl. Ex. C (Police Accident Report).) Although Plaintiff was inside the crossing arm, Officer McManus believed that there was enough room between the tracks and the crossing arm for Plaintiff to back up and safely avoid the train. (Defs.' 56.1 ¶ 8; McManus Dep. 41:19-42:3.) Officer McManus testified that the crossing arms were already down when he first observed Plaintiff's car. (McManus Dep. 34:13-35:6.) He claims that for several seconds, Plaintiff did not react to their commands to back up and that four or five seconds later, Plaintiff started to inch his vehicle forward onto the tracks, at which point Officer McManus started screaming and signaling "stop, stop[;] [g]et back, get back." (Id. at 38:6-39:6.) However, Plaintiff did not back up and instead stopped his car halfway on the railroad tracks. (Id. at 39:7-11.) About four or five seconds later, McManus observed the lights from the southbound train approaching the crossing (id. at 40:7-23), and ran towards Plaintiff's car, at which point Plaintiff exited the car and ran away from the train, (id. at 42:5-15, 42:22-44:11). The train then struck Plaintiff's vehicle. (Id. at 44:13-18.)
Plaintiff claims that after he waited approximately fifteen to twenty minutes on Short Clove Road, the accident scene on Route 9W had been cleared, and Officer McManus signaled to Plaintiff to cross the tracks by lifting both of his arms and moving them towards his body. (Pl.'s 56.1 ¶ 7; Denis Dep. 35:3-5, 90:21-93:18; Denis 50-h Tr. 25:13-26:11.) Plaintiff claims that at this point, the railroad crossing arms were still up (Denis Dep. 97:6-13; Denis 50-h Tr. 23:16-19), and Plaintiff moved his car about halfway onto the railroad tracks, (Denis Dep. 94:2-16). Plaintiff claims that once his car was halfway onto the tracks, Officer McManus began signaling to Plaintiff to back up (id. at 94:14-22), and Plaintiff then noticed the crossing arms coming down and the train approaching, (id. at 97:6-10). The CSX Accident Report prepared shortly after the accident also states "driver of 1991 Mercedes Benz was waived past the accident and started to enter the railroad crossing when the signal lights started to flash[;] [t]he motorist stopped his vehicle in the crossing." (Decl. in Opp'n to Defs.' Mot. for Summ. J ("Pl.'s Decl.") Ex. B.) Plaintiff claims that about one and a half seconds elapsed between the time that Officer McManus signaled him to move forward and when the crossing arms started moving down. (Denis Dep. 100:6-16.) Plaintiff claims he could not back up because the crossing arm was blocking him (id. at 99:6-8, 101:21-102:6), and that when he saw the train he began to panic, (id. at 95:2-4).*fn1 Plaintiff testified that Officer McManus approached his car and yelled "get out of that car a train is coming," at which point Plaintiff jumped out of the car and ran away from the approaching train. (Id. at 102:14-103:25, 105:3-10.) Plaintiff claims that he fell as he was exiting the car and sustained injuries to his neck, back, and shoulder. (Denis 50-h Tr. 4:5-19; Denis Dep. 45:24-47:18, 48:22-49:3, 58:5-79:20, 103:23-105:2.) Seconds later, the train hit Plaintiff's car. (Denis Dep. 105:5-10.)
B. Procedural History
Plaintiff filed his Complaint in New York State
Supreme Court, Rockland County on December 14, 2009, naming the Town
of Haverstraw, Police Officer McManus, CSX Corporation, CSX
Transportation, Inc., CSX Intermodal, Inc., and David Harmon as
Defendants. The Complaint alleges two causes of action, one alleging
negligence against the Town of Haverstraw and Officer McManus (Compl.
¶¶ 12-22), and the other alleging negligence against the CSX
Defendants and David Harmon, (id. ¶¶ 23-42). A Notice of Removal was
filed with this Court on January 28, 2010, and the case was removed
pursuant to 28 U.S.C. §§ 1441 and 1332. (Dkt. No. 1.)*fn2
Defendants answered on January 29, 2010 (Dkt. No. 2), and
February 17, 2010, (Dkt. No. 3). Plaintiff filed a motion to remand on
March 2, 2010 (Dkt. Nos. 5, 6), which was denied by the Court on March
3, 2010 for failure to follow the Court's individual rules, (Dkt. No.
7). Plaintiff did not attempt to re-file the motion.*fn3
On January 10, 2011, it was stipulated that all claims
against Defendants CSX Corporation, CSX Transportation, Inc., and CSX
Intermodal, Inc. were dismissed with prejudice. (Dkt. No.
21.)*fn4 On June 22, 2011, remaining Defendants Town of Haverstraw and Police Officer McManus
filed their Motion for Summary Judgment. (Dkt. No. 27.)
A. Standard of Review Summary judgment may be granted where it is shown "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(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (same). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dall. Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003); see also Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir. 2006) (noting that a court must draw all reasonable inferences in the non-movant's favor).
A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted). "When the moving party has carried its burden under Rule 56, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted); see also McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."). "A fact is 'material' when it might affect the outcome of the suit under governing law." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted). At summary judgment, a court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. See Westinghouse Elec. Corp. v. N.Y.C. Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990). A court's goal should be "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24.
B. Analysis -- Governmental Function Immunity Defense Defendants argue that they are entitled to judgment as a matter of law because under New York law, a "municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment." (Mem. of Law in Supp. of Defs.' Mot. for Summ. J ("Defs.' Mem.") 5 (internal quotation marks omitted).) Plaintiff responds that even if Defendants were performing a discretionary function, they can be held liable for their negligent actions where they have established a "special relationship" with Plaintiff. (Mem. of Law in Opp'n to Defs.' Mot. for Summ. J ("Pl.'s Mem.") 3.) However, in McLean v. City of New York, 905 N.E.2d 1167, 1174-75 (N.Y. 2009) and Valdez v. City of New York, 960 N.E.2d 356, 361-62 (N.Y. 2011), the New York Court of Appeals unequivocally held that a municipality cannot be held liable for the negligent acts of its employees when they are performing discretionary governmental functions, regardless of the existence of any "special relationship."*fn5
Although New York State has waived sovereign immunity on behalf of itself and its municipal subdivisions, "the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of government functions." Valdez,960 N.E.2d at 361; see also In re World Trade Cntr. Bombing Litig., 957 N.E.2d 733, 749 (N.Y. 2011) ("[W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice." (quoting Tango v. Tulevech, 459 N.E.2d 182, 185 (1983)); Haddock v. City of New York, 553 N.E.2d 987, 991 (N.Y. 1990) ("Governmental immunity . . . does not attach to every act, but when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages for the injurious consequences of that action."). The Court of Appeals has reasoned that this limitation on liability "reflects separation of powers principles." Valdez, 960 N.E.2d at 362. It also is intended to ensure that public servants are free to exercise their decision-making authority without concerns of limitless liability, and it "'reflects a value judgment that - despite injury to a member of the public - the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions . . . outweighs the benefits to be had from imposing liability for that injury.'" Id. (quoting Mon v. City of New York, 579 N.E.2d 689, 692 (N.Y. 1991)).
In New York, cases involving governmental tort liability have long distinguished between discretionary and ministerial acts of government officials. See McLean, 905 N.E.2d at 1173. In McLean, the Court of Appeals analyzed four of its prior decisions which had dictated the scope of municipal tort liability for discretionary and ministerial acts and which were arguably in conflict. In reviewing Tango v. Tulevech, 459 N.E.2d 182 (N.Y. 1983) and Lauer v. City of New York, 733 N.E.2d 184 (N.Y. 2000), the McLean court noted that these cases held that "discretionary municipal acts may never be a basis for liability, while ministerial acts may support liability only where a special duty is found." McLean, 905 N.E.2d at 1173 (emphasis added). However, two more recent cases, Pelaez v. Seide, 810 N.E.2d 393 (N.Y. 2004) and Kovit v. Estate of Hallums, 829 N.E.2d 1188 (N.Y. 2005), had called the distinction between discretionary and ministerial acts into question. In Pelaez, the Court of Appeals commented that "[a]s a rule, municipalities are immune from tort liability when their employees perform discretionary acts . . . . In a narrow exception to the rule, we have upheld tort claims when plaintiffs have established a 'special relationship' with the municipality." McLean, 905 N.E.2d at 1173 (quoting Pelaez, 810 N.E.2d at 395)). In Kovit, the Court of Appeals, relying on Pelaez, indicated that "municipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, except when plaintiffs establish a 'special relationship' with the municipality." Id. (quoting Kovit, 892 N.E.2d at 1189). Kovit and Pelaez thus suggested that municipalities could be held liable in tort for the discretionary actions of their employees where a "special relationship" existed, whereas Tango and Lauer had arguably limited the "special relationship" exception to ministerial acts and had upheld absolute immunity for discretionary acts. The McLean court admitted that the cases thus "seem[ed] inconsistent." Id. But, as the McLean court emphatically concluded:
If there is an inconsistency, we resolve it now: Tango and Lauer are right, and any contrary inference that may be drawn from the quoted language in Pelaez and Kovit is wrong. Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general.
Id. at 1173-74 (emphasis added).
The Court of Appeals then reaffirmed in Valdez, that "even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the [government function immunity] defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority." Valdez, 960 N.E.2d at 362. The Court of Appeals then addressed the "lingering confusion concerning the special duty rule (establishing a tort duty of care) and the governmental function immunity defense (affording a full defense for discretionary acts . . .)," and reaffirmed that the "special duty doctrine is  not an exception to governmental function immunity" for discretionary actions. Id. at 363 (emphasis added).
The Parties do not dispute that Officer McManus was engaged in a governmental function when he directed Plaintiff to move his car, and it is well settled under New York law that "traffic regulation is a classic example of a governmental function undertaken for the protection and safety of the public." Balsam v. Delma Eng'g Corp., 688 N.E.2d 487, 489 (N.Y. 1997). Therefore, as a threshold matter, the Court must determine whether Officer McManus was acting in a discretionary or a ministerial capacity when he directed Plaintiff to move his car.*fn6
If Officer McManus was acting in a discretionary capacity, then whether he established any "special relationship" with Plaintiff is irrelevant, as governmental immunity for discretionary acts is a complete defense to liability regardless of the existence of a "special relationship." Valdez, 960 N.E.2d at 363; see also Wiener v. City of New York, No. 10-CV-17073, 2011 WL 4975350, at *1 (N.Y. Sup. Ct. Oct. 19, 2011) ("It is well settled that '[g]overnment action, if discretionary, may not be a basis for liability.'" (alteration in original) (quoting McLean, 905 N.E.2d at 1173)). "While the line separating discretionary and ministerial action may sometimes blur, it is clear that 'discretionary . . . acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.'" Lewis v. State, 892 N.Y.S.2d 583, 585 (App. Div. 2009) (quoting Haddock, 553 N.E.2d at 991)); see also Valdez, 960 N.E.2d at 364 (noting that in determining whether the action of a government employee is discretionary and thus "cloaked with  governmental immunity," courts should analyze "'the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment'" (quoting Mon, 579 N.E.2d at 691)). The availability of the defense thus turns on "whether the conduct giving rise to the claim is related to an exercise of that discretion." Id.; see also Kenavan v. City of New York, 517 N.E.2d 872, 877 (N.Y. 1987) (holding that "liability will not be imposed where the [official's] conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that, in retrospect show poor judgment, but judgment nonetheless"), superseded by statute on other grounds, N.Y. Gen. Mun. Law § 205-a.
The official conduct here involved a police officer directing traffic - here a car positioned near railroad tracks. On its face, the process of directing traffic smacks of instantaneous judgment calls, rather than a pre-programmed means of achieving a compulsory result.*fn7 In Kovit v. Estate of Hallums, the Court of Appeals considered a consolidated appeal of two cases, each of which involved a police officer who instructed a driver to move a car, resulting in injury to the plaintiffs. In each case, the Court of Appeals found that the officer was exercising his discretion in directing each individual to move his or her car. Kovit, 829 N.E.2d at 1190 ("The police officer was exercising his discretion when he told Hallums to move her car."), 1192 (noting that officer had to "weigh the danger of leaving the car in a dangerous situation . . . against the danger posed by having the driver move the car [,]" a decision which "calls for discretion"). Although McLean later found that Kovit had improperly applied the special relationship test, the McLean court did not question the Kovit court's conclusion that the police officers were exercising a discretionary function in directing the individuals to move their cars.
Similarly, lower New York courts have consistently found that when police officers direct traffic, they are exercising a discretionary function. For example, in Santos v. County of Westchester, 916 N.Y.S.2d 209 (App. Div. 2011), the plaintiffs were directed by a New York City Traffic enforcement agent to make a left turn at an intersection, and as they turned a bus also turned into the intersection and collided with plaintiffs' car. The court affirmed a grant of summary judgment for the City, holding that it was entitled "to judgment as a matter of law [because it had] establish[ed] that its traffic enforcement agent was performing a discretionary function for which it is immune from liability." Id. at 210. This result is in line with numerous other decisions finding that traffic direction is a discretionary function. See, e.g., Devivo v. Adeyemo, 894 N.Y.S.2d 747, 747 (App. Div. 2010) ("The officers' alleged negligence [in configuring a barricade at a public event] cannot support municipal liability as it involved discretionary acts in managing pedestrian and vehicular traffic undertaken in furtherance of public safety."); Shands v. Escalona, 843 N.Y.S.2d 504, 504 (App. Div. 2007) (noting that any negligence of police officer in directing plaintiff back onto the highway when her exit was flooded and which led to her being struck by an oncoming tractor-trailer "was committed in the course of a discretionary act"); Lyons v. Subhan, No. 09-CV-20334, 2011 WL 5829606, at *1 (N.Y. Sup. Ct. Nov. 17, 2011) (granting summary judgment for the City because the acts of its traffic enforcement agent were discretionary); Wittorf v. City of New York, 928 N.Y.S.2d 842, 847-48 (Sup. Ct. 2011) (discussing "several cases examining municipal liability for decisions by police officers concerning traffic management which lead to injury, all [holding] that the officers were engaged in discretionary governmental activity that is immune from a finding of liability" (collecting cases)).*fn8 Therefore, the weight of authority in New York clearly supports the position that a police officer is performing a discretionary act when he makes decisions relating to traffic management.
Here, the undisputed facts support the finding that Officer McManus was exercising his discretion and professional judgment in reaction to the situation when he signaled to Plaintiff to move his car. Plaintiff admits that he stopped his car on Short Clove Road before it reached the train tracks and waited for the police officers to finish clearing the accident on Route 9W so that he could cross the tracks. (Pl.'s 56.1 ¶ 4.) Plaintiff stated several times during his deposition that although he was not directed by the police to stop, he was waiting for a signal from one of the officers to proceed because he believed he could not drive through the accident scene without the authorization of the police. (Denis Dep. 26:15-16 ("I could never go through without authorization of the police"), 26:20-22 ("Because how could I cross without the police finished to clear things up so that they could give me authorization to drive through?"), 29:10-13 ("Q: And you were waiting for authorization by a police officer to cross the tracks, is that correct? A: Yes.").) Plaintiff testified that about fifteen to twenty minutes later, he saw Officer McManus approach his car and signal Plaintiff to move forward, and then immediately signal him to move backward off the train tracks. (Denis Dep. 35:3-5, 91:22-94:22.) Officer McManus claims that he only directed Plaintiff to move backward, not forward. However, regardless of which version of events is accurate, the situation clearly involved "an exercise of reasoned judgment" by Officer McManus in directing Plaintiff to move his car away from the railroad tracks. This is not a situation where Officer McManus was adhering to a governing standard or rule with only one acceptable result; the situation called for judgment, and even if Officer McManus committed an "error of judgment" in directing Plaintiff to move his car as the train was approaching (which, to be clear, the Court is not saying), the governmental function immunity "defense precludes liability." Valdez, 960 N.E.2d at 364 (internal quotation marks omitted).*fn9
Therefore, because Officer McManus was engaged in a discretionary function when his alleged negligence caused injury to Plaintiff, Defendants are entitled to judgment as a matter of law.*fn10
For the reasons stated herein, Defendants' Motion for Summary Judgment is GRANTED. The Clerk of Court is respectfully directed to enter judgment for Defendants and to terminate the pending motion, (Dkt. No. 27). The Clerk of Court is also respectfully directed to close this case.