In the Matter of the Succession of Yvonne Edna Morris

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 CA 0562

IN THE MATTER OF THE SUCCESSION OF
YVONNE EDNA MORRIS

Judgment Rendered.
JUN 17 2020

Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. P102353

The Honorable Todd Hernandez, Judge Presiding

Lon E. Roberson Counsel for Appellant

Derek E. Elsey Heather M. Morris
Baton Rouge, Louisiana

Andrew B. Ezell Counsel for Appellee
Andrew K. Nicolas Sandra Dykes Watkins
Baton Rouge, Louisiana

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

THERIOT, J.

In this succession proceeding, the decedent' s adult granddaughter appeals a

judgment dismissing her forced heirship claims with prejudice as a sanction for her

failure to comply with a discovery order. For the reasons set forth herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Yvonne Edna Morris died on December 21, 2016. On December 29, 2016,

Morris' s granddaughter, Heather M. Morris (" Heather") filed a Petition for

Possession. Heather alleged that Morris had died testate,' but that all legatees in

Morris' s will had predeceased her, eliminating the need for an administration or for

probate of the will. Heather further alleged that she is Morris' s only surviving heir,

over the age of twenty- four, and " a competent adult capable of caring for herself and

managing her own affairs," and requested a judgment sending her into possession of

Morris' s estate.

On January 4, 2017, Sandra Dykes Watkins filed an exception to Heather' s

petition, raising an objection of no right of action. Watkins' exception alleged that

Morris had executed a subsequent valid notarial will on September 1, 2009, in which

she ( Watkins) was the sole universal legatee, and therefore Heather did not have a

right of action to seek possession of Morris' s estate. Watkins also filed a Petition

for Filing of Notarial Will and for Possession, and attached Morris' s 2009 will

thereto. In the 2009 will, in addition to bequeathing her entire estate to Watkins,

Morris specifically expressed her intention not to leave any part of her estate to

Heather. To this end, Morris stated that Heather was not a forced heir, noting that

she was not mentally incapacitated or physically infirmed such that she was

permanently incapable of taking care of her person or administering her estate, and

declared her intent to " leave her nothing as allowed by Louisiana law."

Heather filed a copy of Morris' s April 25, 2002 notarial testament with her Petition for Possession.

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Heather opposed both Watkins' petition for possession and the exception of

no right of action, alleging for the first time that she is a forced heir. Several months

later, Heather amended her own Petition for Possession, acknowledging the

existence of the 2009 will, but contesting its validity on the basis of a lack of

testamentary capacity and forced heirship.' With regard to her claim of forced

heirship, Heather alleged:

According to medical documentation, Petitioner, HEATHER M.
MORRIS, suffers from pancreatic cancer, which is an inherited,
incurable disease that renders her incapable of caring for her person or
administering her estate in the future.

On August 30, 2017, Watkins propounded discovery requests on Heather,

through her counsel of record, including the following requests pertinent to her
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claims of forced heirship:

Interrogatory No. 7:
Identify and explain any and all illnesses, diseases, conditions,
and/ or sicknesses suffered by you that existed at the time of the
Decedent' s death.

Interrogatory No. 8:
Identify any and all medical records, histories, and/ or

documentation which prove and/ or substantiate the existence, at the
time of the Decedent' s death, of any illness, diseases, condition, and/ or
sickness identified in response to Interrogatory No. [ 7].

Interrogatory No. 9:
Identify any and all medical records, histories, and/ or

documentation which prove and/or substantiate that any illness,
disease, condition, and/ or sickness identified in response to

Interrogatory No. [ 7] is inherited and incurable.

Interrogatory No. 10:
Identify and explain how any illness, disease, condition, and/or
sickness identified in response to Interrogatory No. [ 7] renders you
incapable of caring for yourself or administering your estate in the
future.

Heather' s claim that Morris lacked the requisite mental capacity to execute a valid will was later dismissed on
summary judgment without opposition, leaving only Heather' s forced heirship claim at issue in these proceedings.
The remaining discovery requests concerned Heather' s claims that Morris lacked testamentary capacity to execute
the 2009 will, which were later dismissed on summary judgment.

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Interrogatory No. 11:
Identify any and all medical records, histories, and/ or
documentation which proves and/ or substantiates that any illnesses,
diseases, conditions, and/ or sicknesses identified in response to

Interrogatory No. [ 7] renders you incapable of caring for yourself or
administering your estate in the future.

Interrogatory No. 13:
Identify any and all documents or other exhibits you intend on
offering as evidence at the trial of this matter and, with respect to such
documents or exhibits, please identify the following information:
1) A description of the document or exhibit; and
2) Who, if anyone, will be used to authenticate such document or
exhibit.

Request for Production No. 4:
Produce any and all medical records, histories, and/ or

documentation concerning any illness, disease, condition, and/ or
sickness suffered by you that existed at the time of Decedent' s death.

Request for Production No. 5:
Produce any and all medical records, histories, and/ or

documentation concerning the incurable and inherited nature of any
illness, disease, condition, and/ or sickness suffered by you that existed
at the time of Decedent' s death.

Request for Production No. 6:
Produce any and all medical records, histories, and/ or

documentation concerning your inability to care for yourself or
administer your estate in the future caused by any illness, disease,
condition, and/ or sickness suffered by you that existed at the time of
Decedent' s death.

Request for Production No. 7:

In response to Interrogatory No. 13, produce copies of any
documents or other exhibits you intend on offering as evidence at the
trial of this matter.

Heather did not respond to Watkins' August 30, 2017 discovery requests

within thirty days, as required by La. C. C. P. art. 1458. On October 25, 2017, counsel

for Watkins sent a letter to Heather' s attorneys, stating that he had still not received

any response to discovery, despite their assurances on October 11, 2017 that the

responses were being prepared. Watkins' counsel expressed his intent to initiate a

Rule 10. 1 discovery conference on November 3, 2017 if the discovery responses

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Louisiana District Court Rules Rule 10. 1( a) provides that before filing a motion to compel discovery, the moving
attorney shall confer in person or by telephone with opposing counsel for the purpose of amicably resolving the
discovery dispute.

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were not received by that date. Watkins' attorney then attempted, without success,

to initiate the Rule 10. 1 conference with Heather' s attorneys on November 3.

According to Watkins' attorney, he contacted Heather' s counsel on November 3 as

scheduled, but was told by one of Heather' s attorneys that they were unavailable and

would return his call later in the day. When no return call was received, Watkins'

attorney attempted to contact Heather' s attorneys again, but his calls were

unanswered. Thereafter, he sent a written notice to Heather' s attorneys that he would

file a motion to compel if the discovery responses were not received by November

9, 2017. No discovery responses were received, and Watkins filed a motion to

compel discovery on November 14, 2017, which was set for hearing on December

18, 2017.

On the evening of Sunday, December 17, 2017, the night before the hearing,

Heather' s attorney emailed discovery responses to opposing counsel, along with a

note stating that he would not be present at the hearing on the motion to compel due

to a " schedule conflict." The attached discovery responses contained very minimal

information related to Heather' s forced heirship claims. The only substantive

information provided pertinent to her forced heirship claims was in response to

Interrogatory No. 7, asking her to "[ i] dentify and explain" any and all illnesses,

diseases, conditions, and/ or sicknesses from which she suffered at the time of

Morris' s death. To this interrogatory, Heather' s response was simply that there were

several ... including but not limited to pancreatic cancer." In response to Nos. 8-

11, which asked her to identify any medical records or documents that would

substantiate that any such illness, disease, condition, or sickness existed at the time

of Morris' s death, is inherited and incurable, and will render Heather incapable of

caring for herself or administering her estate in the future, Heather responded that

she was not in possession of the requested information, objected on the grounds that

the interrogatory sought a legal conclusion and/ or expert medical opinion that she is

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not qualified to render, and deferred to her treatment records and treating physicians

which were neither provided nor identified). Further, Heather objected to

Interrogatory No. 13 ( requesting that she identify any documents or exhibits to be

offered as evidence at the trial, as well as the person who will be used to authenticate

the document or exhibit, where applicable) on the grounds of "prematurity" and

stated that " all exhibits will be circulated and identified in accordance with the

Court' s Pretrial Order." Likewise, with regard to Request for Production Nos. 4- 7,

requesting that she produce the medical records, documents, and exhibits identified

in response to the Interrogatories, Heather responded to Nos. 5 and 6 by stating that

she was " not in possession of the requested information at this time," and omitted

Nos. 4 and 7 entirely. No documents were produced in response to Watkins'

discovery requests.

The hearing was held as scheduled on Watkins' motion to compel on

December 18, 2017. Counsel for Heather was not present, but notified the trial court

by fax prior to the hearing that the outstanding discovery responses had been

provided to opposing counsel the night before, thereby rendering the hearing on the

motion to compel moot. Following oral argument by Watkins' attorney, the trial

court granted the motion to compel and ordered Heather to provide " sufficient"

responses to Watkins' discovery requests within thirty days of the date of the

hearing.

Despite the court' s order that Heather provide " sufficient" responses by

January 17, 2018, Heather' s supplemental responses, dated January 18, 2018,

provided little to no additional information. Heather amended her answer to

Interrogatory No. 7 to state that she suffered from " several illnesses, diseases,

conditions, and/ or sicknesses including but not limited to pancreatic cancer, more

specifically the effects of a pancreatic neuroendocrine tumor." She did not

supplement her original non -responses to Nos. 8- 11, and in response to No. 13,

which requested that she identify any documents or exhibits to be introduced in

evidence at trial, she listed only the following, reserving the right to add additional

exhibits as she deems necessary and proper:

1. Any statement taken by any other party of any person with
information relevant to the underlying cause of action;

2. Any and all pleadings, discovery submitted by plaintiff or any other
party and responses thereto;

3. Any deposition taken in this matter to the extent admissible;

4. Any impeachment or rebuttal exhibits that may become necessary;

5. Any exhibit listed by any other party and not objected to by Heather
Morris;

6. Any expert report along with supporting documentation; and

7. Any other relevant documents, as they are generated or discovered.

Heather' s only supplement to her original responses to the requests for

production (wherein she produced no documents whatsoever) was in response to No.

4, which requested any medical records or documentation regarding any identified

medical condition. Heather' s supplemental response was simply " Please see

attached." However, the record before us contains no such attachment, and it

appears that no attachment existed. Heather again failed to respond in any way to

Request No. 7, which sought production of any documents or exhibits to be

introduced in evidence at trial.

Trial on the matter was scheduled for September 28, 2018, almost two years

after Morris' s death. On July 11, 2018, Watkins filed a motion seeking to have

Heather' s forced heirship claims dismissed for failure to comply with the trial court' s

order compelling discovery, or alternatively, to prohibit her from introducing any

evidence in support of her forced heirship claims. Heather filed an untimely

opposition to Watkins' motion, and a hearing was held on September 17, 2018 on

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the motion.' Counsel for Heather appeared at the hearing and argued that sanctions

were not appropriate because supplemental discovery responses were sent in January

2018 in response to the trial court' s order compelling discovery. He also argued that

Watkins should be aware of the identity of Heather' s treating physician( s) and

should depose them. With the trial date less than two weeks away, Heather' s counsel

suggested that the trial court grant a continuance in order to allow Watkins to

prepare a defense to what [ Heather' s] witnesses are going to testify to." At the

conclusion of the hearing, the trial court granted Watkins' motion and dismissed

Heather' s forced heirship claims with prejudice as a sanction under La. C. C. P. art.

1471 for failure to comply with the trial court' s discovery order. Since the forced

heirship claims were the only remaining issue for trial, the trial court also dismissed

the scheduled bench trial as moot.

Heather filed a devolutive appeal. Her appellate brief, which was due on May

21, 2019, was not received timely, and this court issued a notice of abandonment in

accordance with URCA Rule 2- 8. 6, noting that her appeal would be dismissed if no

brief was received by July 4, 2019. A brief was electronically filed on Heather' s

behalf on June 30, 2019, but was marked as non-compliant by this court for failure

to comply with URCA Rule 2- 12. 2( D)( 2), which requires in part that briefs be in

Roman or Times New Roman 14 point or larger computer font, normal spacing."

As no compliant brief was filed within the abandonment period, Heather' s appeal

was dismissed as abandoned on July 17, 2019. Thereafter, Heather filed a motion

for rehearing, seeking to have her appeal reinstated on the grounds that her June 30,

2019 brief was actually compliant with Rule 2- 12. 2( D)( 2) when submitted

Under Louisiana District Court Rules Rule 9. 9( c), an opposition memorandum shall be furnished to the trial judge
and served on all other parties so that it is received at least eight calendar days before the scheduled hearing date.
Heather' s opposition memorandum was filed with the trial court on September 12, 2018, and Watkins' counsel
informed the court that he had to contact Heather' s attorney to obtain a copy of the opposition on Thursday, September
13, 2018. At the hearing, counsel for Watkins informed the trial court that Heather' s attorney had provided him with
two pages of documents, presumably in response to discovery, several days before the hearing along with the tardy
opposition memorandum. Watkins' counsel did not assert that his discovery requests were satisfied by these two
unidentified pages of documents, but merely informed the court that a total of two pages of documents had been
received. These documents are not contained in the record.

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electronically and urging that the apparent non- compliance must have been due to

the electronic transmission process. This court granted the application for rehearing

and reinstated Heather' s appeal on September 3, 2019, with new briefing delays to

be set by the Clerk' s office. In Re Succession ofMorris, 2019- 0562 ( La.App. 1 Cir.

9/ 3/ 19) ( unpublished). On October 11, 2019, this court again issued a notice of

abandonment of appeal, stating that Heather' s appellate brief had not been received

by the September 28, 2019 deadline and her appeal would be dismissed if a brief

was not filed with this court on or before November 10, 2019. Heather' s brief was

finally filed with this court on November 9, 2019.

DISCUSSION

The only remaining issue before the trial court at the time of the September

17, 2018 hearing was Heather' s status as a forced heir. To qualify as a forced heir,

a descendent over the age of twenty-three must be permanently incapable of taking

care of his or her person or administering his or her estate at the time of the

decedent' s death, due to a mental incapacity or physical infirmity. La. C. C. art.

1493( A). Although Heather alleged in her December 29, 2016 petition that she was

over the age of twenty- four and " a competent adult capable of caring for herself and

managing her own affairs," a descendent is considered to be permanently incapable

of taking care of his or her person or administering his or her estate at the time of the

decedent' s death for forced heirship purposes if the descendent has, at the time of

the decedent' s death, according to medical documentation, an inherited, incurable

disease or condition that may render him or her incapable of caring for his or her

person or administering his or her estate in the future. La. C. C. art. 1493( E).

Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action, whether it relates to the

claim or defense of the party seeking discovery or to the claim or defense of any

other party, including the existence, description, nature, custody, condition, and

location of any books, documents, or other tangible things and the identity and

location of persons having knowledge of any discoverable matter. La. C. C. P. art.

1422. To this end, Watkins sought to discover the factual basis and evidentiary

support for Heather' s forced heirship claims; i.e., that Heather has an inherited and

incurable disease or condition, that it existed at the time of Morris' s death, that it

may render Heather incapable of caring for her person or administering her estate in

the future, and that medical documentation supports each of these criteria.

Where a party fails to answer an interrogatory or respond to a request for

production, a trial court may issue an order compelling discovery on the motion of

a party. La. C. C. P. art. 1469( 2). For these purposes, an evasive or incomplete

answer is to be treated as a failure to answer. La. C. C. P. art. 1469( 3). Thereafter,

where a party fails to obey a trial court order compelling discovery, the trial court

may make such orders in regard to the failure as are just, including any of the

following:

1) An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order.

2) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing designated matters in evidence.

3) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a final default judgment
against the disobedient party upon presentation of proof as required
by Article 1702.

4) In lieu of any of the foregoing orders or in addition thereto, an order
treating as a contempt of court the failure to obey any orders except
an order to submit to a physical or mental examination.

5) Where a party has failed to comply with an order under Article
1464, requiring him to produce another for examination, such orders
as are listed in Subparagraphs ( 1), ( 2), and ( 3) of this Paragraph,
unless the party failing to comply shows that he is unable to produce
such person for examination.

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La. C. C. P. art. 1471( A).

Louisiana law distinguishes between the sanctions available for failure to

comply with discovery requests and sanctions for disobedience of court- ordered

discovery. BancorpSouth Bank v. Kleinpeter Trace, L.L.C., 13- 1396, p. 23 ( La.App.

1 Cir. 10/ 1/ 14), 155 So. 3d 614, 630, writ denied, 14- 2470 ( La. 2/ 27/ 15), 159 So. 3d

1067. A party may seek a court order compelling a response to discovery under La.

C. C. P. art. 1469, and if the order is granted, the mover may recover the reasonable

costs and attorney fees incurred in obtaining the order. La. C. C. P. art. 1469( A)(4).

However, if a party fails to obey such an order by the trial court to provide or permit

discovery, the trial court may impose the more severe sanctions set forth in La.

C. C. P. art. 1471. By its express terms, article 1471 grants these remedies only when

a trial court order compelling discovery is in effect and a party has failed to obey the

order. BancorpSouth Bank, 13- 1396 at p. 23- 24, 155 So. 3d at 630- 31.

Criteria to be considered in imposing sanctions under article 1471 are the

prejudice to the other party and the willfulness of the disobedient party. Horton v.

McCary, 93- 2315 ( La. 4/ 11/ 94), 635 So. 2d 199, 204. The trial court has much

discretion in imposing sanctions for failure to comply with discovery orders, and its

rulings should not be reversed absent an abuse of discretion. Hutchinson v. Westport

Insurance Corporation, 04- 1592, p. 2 ( La. 11/ 8/ 04), 886 So. 2d 438, 440. Despite

this wide discretion, the Louisiana Supreme Court has cautioned that dismissal for a

discovery violation is a draconian penalty that should only be applied in extreme

circumstances. Hutchinson, 04- 1592 at p. 2, 886 So. 2d at 440 (per curiam); Horton,

635 So. 2d at 203. A sanction of dismissal involves property rights; therefore, such

a sanction should be reserved for the most culpable conduct. Lirette v. Babin Farm,

Inc., 02- 1402 ( La.App. 1 Cir. 4/ 2/ 03), 843 So. 2d 1141, 1143. Dismissal is a sanction

of last resort only to be imposed where a party has failed to comply with a court

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order of discovery and only after an opportunity to be heard has been afforded the

litigant. Hutchinson, 04- 1592 at p. 2, 886 So. 2d at 440.

Before taking the drastic action of dismissal for violation of a discovery order,

a trial court should consider the following four factors: ( 1) whether the violation was

willful or resulted from inability to comply; ( 2) whether less drastic sanctions would

be effective; ( 3) whether the violations prejudiced the opposing party' s trial

preparation; and ( 4) whether the client participated in the violation or simply

misunderstood a court order or innocently hired a derelict attorney. BancorpSouth

Bank, 13- 1396 at p. 25, 155 So. 3d at 631.

The sanctions provided by article 1471( A) were available to the trial court in

this matter, since the trial court had previously issued an order compelling Heather

to provide sufficient discovery responses. Thus, the trial court' s imposition of a

particular sanction under article 1471( A) is reversible only if the trial court abused

its discretion.

The discovery at issue in this case was initially propounded on August 30,

2017. Despite numerous attempts over the course of more than a year to obtain the

information sought, which information concerned the essential elements of the only

remaining issue before the court, Heather' s responses were untimely, evasive, and

incomplete at best. Heather argues on appeal that the trial court erred in imposing

sanctions against her, since her attorneys responded to discovery on December 17,

2017, and then supplemented her original responses with " more substantive

responses" on January 18, 2018. However, as noted above, evasive or incomplete

answers are treated as a failure to answer, and there is no question that Heather' s

responses to discovery in this matter were evasive and incomplete. At the time of

the September 17, 2018 sanction hearing, less than two weeks before the trial date,

Heather had still not provided adequate responses to Watkins' August 30, 2017

discovery requests.

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Although dismissal was the harshest sanction available to the trial court for

Heather' s failure to comply with its order compelling discovery, most of the less -

severe alternatives available under La. C. C. P. art. 1471 would have yielded

essentially the same result. For instance, the trial court could have chosen to order

that certain facts relating to Heather' s forced heirship claims were established as

proven for purposes of the litigation in Watkins' favor (La. C. C. P. art. 1471( A)( 1));

it could have prohibited Heather from presenting evidence in support of her forced

heirship claims ( La. C. C. P. art. 1471( A)(2)); or it could have chosen to strike her

allegations of forced heirship from the pleadings ( La. C. C. P. art. 1471( A)(3)).

However, any of these sanctions, if imposed by the trial court, would ultimately

result in the dismissal of Heather' s claims, since Heather' s status as a forced heir

was the only issue remaining before the court. Although the trial court could have

chosen the least severe sanctions, such as staying the action pending compliance

with its discovery order (La. C. C.P. art. 1471( A)( 3)) or treating Heather' s failure to

comply with the discovery order as contempt of court (La. C. C.P. art. 1471( A)(4)),

this court has held that refusal to comply with court-ordered discovery is a serious

matter, and trial courts must have severe sanctions available to deter litigants from

flouting discovery orders. JP Morgan Chase Bank, N.A. v. Boohaker, 14- 0594, p.

12 ( La.App. 1 Cir. 11/ 20/ 14), 168 So. 3d 421, 429. Considering the nature of the

refusal to comply with discovery, the prejudice to Watkins in preparing a defense,

and the fact that dismissal would ultimately result even from imposition of several

less -severe sanctions, we cannot say that the trial court abused its discretion in

dismissing Heather' s forced heirship claims with prejudice.

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CONCLUSION

The judgment of the trial court, granting Sandra Dykes Watkins' motion, and

dismissing Heather M. Morris' s claims with prejudice, is affirmed. Costs of this

appeal are to be borne by appellant, Heather M. Morris.

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IN MATTER OF FIRST CIRCUIT

COURT OF APPEAL
SUCCESSION OF
STATE OF LOUISIANA

YVONNE EDNA MORRIS NO. 2019 CA 0562

L
CHUTZ, J., dissenting.

G I respectfully disagree with the majority While the trial court has much

discretion in imposing discovery sanctions, dismissal is a severe penalty reserved

for the most culpable conduct. Horton v. McCary, 93- 2315 ( La. 4/ 11/ 94), 635

So. 2d 199, 203; Lirette v. Babin Farm, Inc., 02- 1402 ( La. App. 1st Cir. 4/ 2/ 03),

843 So. 2d 1141, 1143. Moreover, dismissal is generally reserved for only those

cases in which the client, as well as the attorney, is at fault. Both the Louisiana

Supreme Court and this court have held that the record must contain sufficient

evidence of the plaintiffs willful disobedience, bad faith, or fault, in order to

justify dismissal. See Horton, 635 So. 2d at 203; Conbeth, Inc. v. Kittock, 12- 0089

La. App. 1st Cir. 9/ 21/ 12) ( unpublished), 2012 WL 4335411, * 2- 3; Lirette, 843

So. 2d at 1143; In re Medical Review Panel, 99- 2088 ( La. App. 1 st Cir. 12/ 22/ 00),

775 So. 2d 1214, 1218. This court has explained that "[ i] f the record does not

contain evidence of plaintiffs, rather than counsel' s fault, the trial court, if it grants

dismissal, abuses the wide discretion afforded it by La. C. C. P. art. 1471." In re

Medical Review Panel, 775 So. 2d at 1218.

In the present case, the record clearly reflects the egregious conduct of the

plaintiff' s counsel. The record does not, however, appear to contain any evidence

whatsoever showing willful disobedience, bad faith, or fault of the plaintiff

personally. Given the lack of such evidence, I believe the trial court abused its

discretion in dismissing the plaintiffs claims. See Horton, 635 So. 2d at 203;

Conbeth, Inc., 2012 WL 4335411 at * 3; In re Medical Review Panel, 775 So. 2d

at 1218.

For these reasons, I would vacate the judgment of dismissal and remand this

matter to the trial court for an evidentiary hearing to determine whether the

plaintiff also participated in or was at fault for the failure to comply with the

discovery order and, if so, to impose an appropriate sanction ( including possible

dismissal). See Horton, 635 So. 2d at 203; Conbeth, Inc., 2012 WL 4335411 at

3. Accordingly, I dissent.

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