Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 1 of 14

1
2
3
4
5
6
7
8
9
10
11

Michael Fiumara (SBN 160997)
FIUMARA & MILLIGAN LAW, P.C.
182 Farmers Lane, Suite 100A
Santa Rosa, CA 95405
Telephone: 707-571-8600
Facsimile:
707-568-7240
Jay T. Jambeck (SBN 226018)
Mandy G. Leigh (SBN 225748)
LEIGH LAW GROUP, P.C.
870 Market Street, Suite 1157
San Francisco, CA 94102
Telephone: 415-399-9155
Facsimile:
415-795-3733
Attorneys for Plaintiff
EVAN M. by and through his parents
JOHN and RAQUEL MACK

12

IN THE UNITED STATES DISTRICT FOR
THE NORTHERN DISTRICT OF CALIFORNIA

13
14
15

EVAN M. by and through his parents JOHN and
RAQUEL MACK,

16
Plaintiff,

17
18
19
20
21

v.
WEST SONOMA COUNTY UNION HIGH
SCHOOL DISTRICT; STEVEN KELLNER, in
his individual capacity; CHRIS HELLER, in his
individual capacity; LINDSAY APKARIAN, in
her individual capacity; RAUL GUERRERO, in
his individual capacity,

22
23

Defendants.

24
25
26
27
28
1

) Case No.
)
) COMPLAINT FOR:
)
)
1. VIOLATION OF TITLE VI OF
)
THE CIVIL RIGHTS ACT OF
)
1964, 42 U.S.C. § 2000d
)
(DISPARATE TREATMENT);
)
2. VIOLATION OF 42 U.S.C.
)
SECTION 1983 (EQUAL
)
PROTECTION);
)
3. VIOLATION OF 42 U.S.C.
)
SECTION 1983 (EQUAL
)
PROTECTION) - FAILURE TO
)
TRAIN/SUPERVISE;
)
)
)
)
)
JURY TRIAL DEMANDED

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 2 of 14

1

Plaintiff alleges as follows:

2
3

THE PARTIES
1.

Plaintiff EVAN M., a minor by and through his parents/guardians JOHN and

4

RAQUEL MACK, is bi-racial of African-American and Caucasian descent. EVAN identifies as a

5

mixed race student.

6

2.

Defendant WEST SONOMA COUNTY UNION HIGH SCHOOL DISTRICT

7

(“WSCUHSD”) pursuant to relevant state and federal laws and with receipt of Federal funds,

8

provides educational services to high school-aged children.

9
10
11
12
13
14
15
16

3.

relevant times the Superintendent of WSCUHSD.
4.

Defendant, CHRIS HELLER, sued in his individual capacity, was at all relevant

times the Principal of Analy High School, a school within the jurisdiction of WSCUHSD.
5.

Defendant, LINDSAY APKARIAN, sued in her individual capacity, was at all

relevant times a Vice Principal of Analy High School.
6.

Defendant, RAUL GUERRERO, sued in his individual capacity, was at all relevant

times a Vice Principal of Analy High School.

17
18

Defendant, STEVEN KELLNER, sued in his individual capacity, was at all

JURISDICTION AND VENUE
7.

This Court has jurisdiction over the subject matter for the claims in this complaint

19

pursuant to 28 U.S.C. §1331. This action arises under the laws of the United States, Title VI of

20

the Civil Rights Act of 1964, as amended, as well as 42 U.S.C. § 1983. Plaintiff has exhausted all

21

requisite administrative remedies.

22

8.

Venue is proper in this District pursuant to 28 U.S.C. §1391(b)(2) because the

23

Northern District of California is the judicial district in which a substantial part of the events or

24

omissions giving rise to the claim occurred and in which the parties to this litigation reside.

25
26

GENERAL ALLEGATIONS
9.

At all relevant times Plaintiff attended Analy High School (AHS) –

27
28
2

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 3 of 14

1

a school within the jurisdictional boundaries of WSCUHSD which serves students in ninth

2

through twelfth grades.

3
4
5
6
7

10.

During the time of Plaintiff’s enrollment at AHS, the school enrolled 1,465 White

students and 28 African-American Students (1.5% of the student population).
11.

Prior to enrolling at and attending AHS, Evan was an above-average student who

was well liked by his peers and who was not subject to harassment based upon his race.
12.

Upon enrolling an AHS in the ninth grade, the fall of 2013, Plaintiff joined the

8

junior varsity football team and was subjected to racial epithets by other members of the team

9

regarding Plaintiff’s race.

10

13.

On the first day of summer practice, a member of the JV football team, Student A,

11

said to Plaintiff “Why don’t you talk Black?” When Plaintiff inquired what that meant, Student A

12

responded that Plaintiff “sounded White.” Plaintiff did not respond, and although the comment

13

offended him, Plaintiff took no further action, hoping the incident was isolated.

14

14.

However, throughout Plaintiff’s ninth grade year at AHS, he was subjected to

15

hostile and pervasive comments by students at AHS – both as a member of the junior varsity

16

football team and as a general student within the classroom setting. The following incidents

17

occurred throughout Plaintiff’s ninth grade year:

18
19
20

15.

Student A frequently used the word “nigger” even after Plaintiff cautioned him that

this word highly offended him.
16.

Students B, C & D, (three of Plaintiff’s Teammates) sang an offensive song in the

21

locker room entitled “A White Girl with a Nigger” which contains the term nigger used repeatedly

22

such as, for example, “crazy nigger” and “God damn nigger,” other numerous other uses. The

23

song’s lyrics were particularly profane and hurtful since the Plaintiff’s mother is Black and his

24

father is White—some of the racially laced lyrics, “It sure is hard to figure out how any decent girl

25

could ever fuck a crazy nigger…Because there is nothing quite as worthless as a White girl with a

26

nigger…so for all nigger-loving whores, this song is just for you.” The song was sung by at least

27

three students at a volume that any coach or other District employee present to monitor the locker

28
3

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 4 of 14

1

room would have overheard the lyrics. Evan who was trying to get something out of his locker in

2

the locker room was speechless and in shock even though this was the only time Evan heard this.

3

17.

While in social studies class, Student B called Plaintiff a nigger in the presence of a

4

teacher. When Plaintiff responded by saying to Student B, “F___ You,” Only the Plaintiff was

5

chastised for his language. However, no action, report or inquiry was made as to Student B’s

6

harassing language even though Plaintiff at the time reported this incident to a district employee

7

(who was filling in for his Social Studies teacher) that Student B had used the term nigger.

8

18.

During an anti-bullying training session, put on by the District, during regular

9

school hours in the Library on the Analy Campus the Plaintiff who received a pass to attend this

10

training was subject to intensified bullying and racial discrimination. Plaintiff gave an example

11

during the open exercise on how he is bullied by writing on a post-it note that he was called a

12

“nigger”. Several teachers were present in the classroom during the session. Student A, one of the

13

regular harassers, subsequently confronted Plaintiff about the note in a threatening and

14

intimidating way.

15

19.

Student A continued to frequently call Plaintiff a nigger in physical science class to

16

the point that Plaintiff requested his seat be changed. The Plaintiff was too embarrassed and

17

humiliated to tell the teacher about the N word being used. The Plaintiff was also afraid of

18

retaliation since no staff or District employee has ever acted to stop the offending behavior when

19

they were aware of it in the past. So the Plaintiff told the teacher that Student A was distracting

20

him. The teacher puts the offending Student A right in front of the Plaintiff which does not solve

21

anything, but the distraction is now right in front of the Plaintiff making the “distraction” and

22

situation worse.

23

20.

During the ninth-grade school year, Plaintiff advised his debate teacher about the

24

harassment he was subjected to by other students at AHS, but told the teacher he was afraid of

25

retaliation if word got out that Plaintiff complained about the treatment.

26
27
28
4

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 5 of 14

1

21.

The harassment by other students continued unabated into Plaintiff’ sophomore

2

year, beginning in the fall of 2014. The following incidents occurred throughout Plaintiff’s

3

sophomore year at AHS.

4

22.

Student A played a song entitled “Beat on the Nigga” in the football locker room at

5

a volume sufficient for any coach or staff supervising the locker room to overhear. Student A

6

approached Plaintiff while the song was playing and pantomimed beating another person while

7

mouthing the lyrics to the song.

8
9

23.

Student D showed Plaintiff his mouth guard in the Analy School boys locker room

before football practice which had written on it WPR which the student told Plaintiff meant white

10

power. The student, who was advised by another student that the WPR was inappropriate,

11

replaced the WPR writing with a picture of a rebel flag.

12
13
14

24.

While Plaintiff was walking on the sidewalk in the vicinity of the school, Plaintiff

A yelled nigger at him from a moving truck.
25.

During football practice Student F shouted nigger as a form of curse word when

15

injured or as a result of a bad play. The epithet was yelled at such a volume as to be overheard by

16

coaches.

17

26.

During a trip to Oakland during the football season on and off the school the bus

18

and in earshot of faculty and coaches, members of the football team were permitted to make racist

19

comments directed to the predominantly Black School and neighborhoods as being “poor,”

20

“dangerous,” and no faculty member or coach intervened or tried to intervene or correct the

21

football team members behavior and insulting language.

22
23
24

27.

Several students displayed the confederate flag on campus with stickers or on

clothing.
28.

During the summer between Plaintiff’s sophomore and junior years, on August 4,

25

2015, Student C posted a photograph on Instagram with the caption “Remember when white boys

26

were proud to be white? Some still are.” Student C then engaged in the following messaging with

27

Plaintiff:

28
5

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 6 of 14

1

Student C: Hate on it. #whitepride

2

Plaintiff: #totallynotracist

3

Student C: if somebody said black pride nobody would bat an eye so no not racist

4

Plaintiff: any pride in your race (as opposed to culture) is racist, dude

5

Student C: How could you have pride in your race? Your [sic] black, and blacks are taking

6

advantage of the welfare system, filing prisons, the most crime, and BURNING OUR F---

7

ING FLAG!

8

Plaintiff: lol salty you white supremacist f---?

9

Student C: Yea I’m tired of you f---ing people

10

Plaintiff: We people?

11

Plaintiff: I’m pretty sure white people get more out of the social system than black.

12

Student C: You’re an idiot

13

Plaintiff: F--- you you greasy trashy d---hole.

14

Student: I will stomp your little diabetic a--.

15

Plaintiff: I didn’t hear you clamoring for the rule of law when you brought that knife to

16

school.

17

Student: When gives a f--- if I brought a knife to school!?! Dude your [sic] asking for

18

something you don’t want so shut your mouth.

19

Plaintiff: what’re you gonna do? Stab me you racist hypocrite?

20

Student: Just because your [sic] a nigger and think like that doesn’t mean I do but I will

21

punch you in the f---ing mouth.

22

29.

On August 6, 2015 Plaintiff received a Facebook message from the account of

23

another student at AHS, student E regarding people in Russia removing the pigmentation from

24

their skin.

25

Student E:

Hey [Plaintiff] looks like your [sic] going to Russia

26

Plaintiff:

Oh? – you’re? [correcting grammer]

27

Student E:

Now I’m gonna rip the black of you myself now

28
6

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 7 of 14

1

Plaintiff:

Are you?

2

Student E:

You wait and see

3

Plaintiff:

This wouldn’t be [Student C] would it? Because [Student E’s] type is

4

typically riddled with spelling errors.

5

30.

After receiving the Instagram message above and prior to the Facebook message,

6

Plaintiff and his parents contacted WSCUHSD about the Instagram communication set forth

7

above. WSCUHSD’s uniform complaint process, adopted by board policy and administrative

8

regulation, regarding specific acts on the part of the District to investigate complaints of

9

discrimination.

10
11

31.

Defendant GUERRERO contacted Plaintiff and his parents but Plaintiff’s parents

requested to speak with the superintendent instead.

12

32.

On August 6, 2015, Defendant KELLNER contacted Plaintiff’s parents and agreed

13

to a meeting; RAQUEL MACK communicated several concerns including that Student C had

14

recently been disciplined for bringing a knife to school and had a rebel flag on his truck;

15

additionally, Ms. MACK expressed concern about the number of students who had liked Student

16

C’s Instagram post.

17

33.

18

On August 7, 2015, Plaintiff’s father notified Defendant KELLNER of the

Facebook message and that Student E was friends with or in communication with Student C.

19

34.

Prior to the meeting with Superintendent, Plaintiff’s parents inquired about other

20

incidents at school and Plaintiff related the history of racial harassment occurring toward him at

21

AHS.

22

35.

On August 10, 2016, Plaintiff, JOHN and RAQUEL MACK, KELLNER,

23

HELLER, APKARIAN and GUERRERO held a meeting at AHS. RAQUEL MACK asked to

24

record the meeting and was given permission but was requested to turn the recording device off

25

when other students were discussed. Although the meeting was tense, and adjourned at one point

26

over the continued use of the recording device, the Plaintiff’s complaints were taken by the

27

District, including complaints about a culture of racism at AHS.

28
7

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 8 of 14

1
2
3

36.

The District agreed to investigate the complaint in two phases: First, the social

media messages; second, the complaints about in-person interactions at the school.
37.

The District assigned responsibility for interviewing Students C and E to vice

4

principal APKARIAN but APKARIAN apparently never requested a copy of the Facebook

5

message at issue despite the Plaintiff’s parents turning the Facebook message over to the

6

Superintendent and Principal. APKARIAN conducted a flawed and woefully inadequate

7

investigation, asking Student E whether he had heard about Facebook banter that was race-related;

8

Student E denied posting anything race related from his Facebook account and claimed that it may

9

have been compromised. Vice Principal APKARAIN warned Student E not to engage in racial

10

comments but told him during the investigation that he was not in trouble and would not be

11

disciplined despite never determining who had actually sent the racially harassing messages from

12

Student E’s Facebook account.

13

38.

Student C did not report to school for the first few weeks and calls by vice principal

14

APKARIAN to his home purportedly went unreturned. However, despite claiming that the

15

District had been unable to interview Student C, even though he was still enrolled at the District,

16

the District eventually informed Plaintiff and his family that Student C was “exploring other

17

educational options.”

18

39.

Upon being updated that the investigation was not complete because Student C had

19

not been interviewed, Plaintiff’s father inquired by email whether the 16 students who had “liked”

20

Student C’s racially derogatory comment would be interviewed and provided a list of the names of

21

many of the 16 students. Additionally, Plaintiff’s father inquired whether Student A would be

22

interviewed regarding the ongoing racial harassment Plaintiff had been subjected to by Student A.

23

No response to this email was ever received.

24
25
26
27

40.

After the initial meeting of August 10, 2015, District staff never contacted Plaintiff

or his family to gain any additional details regarding the racial harassment.
41.

On August 28, 2015, Principal HELLER issued the District’s findings from the

investigation. The findings, which were not in accordance with the requirements of Board Policy

28
8

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 9 of 14

1

or Administrative Regulations, merely found that Student E had been talked to and that Student C

2

was “pursuing other educational options” and that it was therefore safe for Plaintiff to return to

3

school. The August 28, 2015 letter apparently also closed phase two of the investigation by

4

finding, without adequate investigation: (1) the Varsity football coach was unaware of any racists

5

comments, even though Plaintiff was never on the Varsity football team; (2) the substitute teacher

6

who overheard racist comments was not a “regular district employee” so “nothing was

7

investigated there;” and, (3) the debate teacher was out on medical leave so no interview could be

8

conducted. The Principal therefore closed the investigation.

9
10
11

42.

When Plaintiff’s parents questioned whether further investigation would occur

regarding other incidents, they were met with nothing substantive.
43.

On September 3, 2015 Student C reported to the AHS campus. Vice Principal

12

APKARIAN spoke with Student C, who did not deny making the comments. APKARIAN told

13

Student C racial comments were not allowed but no other discipline was taken against Student C.

14

Vice Principal APKARIAN stated that Student C was not disciplined because the messages were

15

off-campus behavior, but clearly established law and the District’s own policy allows discipline

16

for off-campus behavior that disrupts the learning environment.

17

44.

In response to an OCR investigation, the District claimed that it did not fully

18

investigate phase two of the matter because the family did not accept the results of phase one,

19

among other pretextual reasons.

20

45.

Due to the failure to properly investigate and remediate the racially harassing

21

environment, Plaintiff withdrew from the District on October 5, 2015 and presently is enrolled in a

22

much lower performing school district despite Plaintiff’s clear aptitude for post-secondary

23

education. Since dis-enrolling from WSCUHSD, minor Plaintiff’s grades have improved

24

significantly.

25
26

46.

During the relevant time period, the minor Plaintiff began to experience

exacerbations of his medical condition of type 1 diabetes due to the stress of the racial harassment.

27
28
9

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 10 of 14

1

As a result of the stress he was subjected to, the minor Plaintiff engaged in dietary behavior that

2

further exacerbated his diabetic condition.

3
4

FIRST CAUSE OF ACTION

5

VIOLATIONS OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

6

42 U.S.C. §2000d

7

(Disparate treatment – hostile environment –

8

minor plaintiff against District)

9

47.

10

paragraph.

11

48.

12

Plaintiffs incorporate the paragraphs alleged above as though fully set forth in this

The Civil Rights Act of 1964 prevents discrimination on the basis of race and

national origin.

13

49.

The minor Plaintiff is of mixed African/American race.

14

50.

WSCUHSD received federal funds for its entire educational program.

15

51.

WSCUHSD violated 42 U.S.C. § 2000d by intentionally discriminating against

16

Plaintiff because of his race/national origin by its deliberate indifference to the harassment and

17

bullying of the minor Plaintiff. WSCUHSD had knowledge of and allowed for a pervasive, severe

18

and objectively hostile environment regarding race to continue by failing to adequately address the

19

racial harassment and bullying of the minor Plaintiff. The harassment and bullying, based upon

20

race, continued over the course of more than 2 school years.

21

52.

As a direct and proximate result of the disparate treatment, Plaintiff suffered special

22

and general damages, including temporary and permanent academic disruption, stigmatization,

23

loss of social companions and typical social opportunities, scorn, embarrassment, humiliation,

24

exacerbation to his medical condition and lost education opportunities.

25
26
27
28
10

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 11 of 14

1

SECOND CAUSE OF ACTION

2

VIOLATION OF 42 U.S.C. § 1983 FOR DEPRIVATION

3

OF THE RIGHT TO EQUAL PROTECTION (CUSTOM, POLICY, PRACTICE)

4

(minor Plaintiff against WSCUHSD)

5

53.

6

in this paragraph.

7

54.

The minor Plaintiff is of mixed African/American race.

8

55.

WSCUHSD acting under color of law during the relevant time period had a policy,

9
10
11

Plaintiffs incorporate the paragraphs alleged above as though fully set forth

pattern or practice of failing to appropriately supervise, monitor, investigate and discipline its
students for harassment based on race.
56.

WSCUHSD, acting under color of law with deliberate indifference, denied Plaintiff

12

equal protection under the Fourteenth Amendment to the United States Constitution, by failing to

13

take reasonable actions to provide WSCUHSD a harassment and bullying free educational

14

experience equal to the educational experience provided to their other students.

15

57.

WSCUHSD acted with deliberate indifference and denied Plaintiff equal protection

16

under the Fourteenth Amendment to the United States Constitution, by failing to discipline or

17

reprimand students for harassment based on race.

18

58.

As a direct and proximate result of the disparate treatment, Plaintiff suffered special

19

and general damages, including temporary and permanent academic disruption, stigmatization,

20

loss of social companions and typical social opportunities, scorn, embarrassment, humiliation,

21

exacerbation to his medical condition and lost education opportunities.

22

THIRD CAUSE OF ACTION

23

VIOLATION OF 42 U.S.C. § 1983 FOR DEPRIVATION

24

OF THE RIGHT TO EQUAL PROTECTION (FAILURE TO TRAIN/SUPERVISE)

25

(Minor Plaintiff against District)

26

59.

27

paragraph.

Plaintiff incorporates the paragraphs alleged above as though fully set forth in this

28
11

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 12 of 14

1

60.

The minor Plaintiff is of mixed African/American race.

2

61.

WSCUHSD, acting under color of law with deliberate indifference, had a practice

3

of failing to adequately train and supervise its employees in the monitoring and disciplining of

4

racial harassment of its student population.

5

62.

WSCUHSD, acting under color of law with deliberate indifference, denied Plaintiff

6

equal protection under the Fourteenth Amendment to the United States Constitution, by failing to

7

take reasonable actions to provide WSCUHSD a harassment and bullying free educational

8

experience equal to the educational experience provided to their other students.

9

63.

WSCUHSD acted with deliberate indifference and denied Plaintiff equal protection

10

under the Fourteenth Amendment to the United States Constitution, by failing to discipline or

11

reprimand students for harassment based on race.

12

64.

As a direct and proximate result of the disparate treatment, Plaintiff suffered special

13

and general damages, including temporary and permanent academic disruption, stigmatization,

14

loss of social companions and typical social opportunities, scorn, embarrassment, humiliation,

15

exacerbation to his medical condition and lost education opportunities.

16
17
18

FOURTH CAUSE OF ACTION

19

VIOLATION OF 42 U.S.C. § 1983 FOR DEPRIVATION OF THE

20

RIGHT TO EQUAL PROTECTION (FAILURE TO INVESTIGATE AND REMEDIATE)

21

(Minor Plaintiff against Defendants Kellner, Heller, Apkarian & Gurrero)

22

65.

Plaintiff incorporates the paragraphs alleged above as though fully set forth

23

in this paragraph.

24

66.

The minor Plaintiff is of mixed African/American race.

25

67.

Defendants Kellner, Heller, Apkarian and Guerrero, acting in their individual

26

capacities, and under color of state law, discriminated against Plaintiff on the basis of his race by

27

failing to reasonably investigate the complaints made by Plaintiff regarding the ongoing hostile

28
12

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 13 of 14

1

racial environment at AHS. For example, Defendants Kellner, Heller, Apkarian and Guerrero

2

failed to reasonably investigate the allegations that racial discriminatory comments and “likes”

3

were made via social media; Defendants Kellner, Heller, Apkarian and Guerrero failed to

4

adequately investigate the discriminatory environment occurring in Plaintiff’s freshman and

5

sophomore years.

6

68.

Moreover, after “resolving” the complaints made by Plaintiff, Defendants Kellner,

7

Heller, Apkarian and Guerrero failed to take reasonable actions to remediate the hostile

8

environment and protect Plaintiff from retaliation or further racial discrimination. Immediately

9

after a Santa Rosa Press Democrat’s expose was published about the hostile and racially charged

10

discriminatory climate at Analy High School, instructor Kevin Rose permitted a free for all

11

discussion in his classroom which focused primarily upon the Plaintiff and not the root cause of

12

the racial discrimination, thus heightening racial tension and stress for the Plaintiff.

13

69.

Defendants Kellner, Heller, Apkarian and Guerrero intentionally failed to take the

14

foregoing actions as a result of Plaintiff’s race and because the students who had harassed Plaintiff

15

were white.

16

70.

As a direct and proximate result of the disparate treatment, Plaintiff suffered special

17

and general damages, including temporary and permanent academic disruption, stigmatization,

18

loss of social companions and typical social opportunities, scorn, embarrassment, humiliation,

19

exacerbation to his medical condition and lost education opportunities.

20
21
22

JURY TRIAL DEMAND
71.

Plaintiff demands a jury trial on all issues for which Plaintiff is entitled as a matter

of right.

23
24
25
26
27
28
13

 Case 3:17-cv-00260-EDL Document 1 Filed 01/19/17 Page 14 of 14

1

PRAYER

2

Plaintiff prays that the Court award damages and provide relief as follows:

3

1.

General and special damages according to proof at trial;

4

2.

Reasonable Attorneys’ fees and costs pursuant to statute;

5

3.

Punitive damages against individual defendants;

6

4.

Any remedies that this Court deems equitable and appropriate.

7
8
9
10
11

Dated: January 19, 2017

Respectfully submitted,

12

/s/ Jay T. Jambeck
By:__________________
Jay T. Jambeck
Attorneys for Plaintiffs

13
14

/s/ Michael A. Fiumara
By: ________________________
Michael A. Fiumara
Attorney for Plaintiffs

15
16
17
18
19
20
21
22
23
24
25
26
27
28
14