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IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF TENNESSEE AT MEMPHIS

JOHN DOE,

Plaintiff,

v. Docket No.
RHODES COLLEGE.

Defendant.

PLAINTIFF’S APPLICATION FOR TEMPORARY RESTRAINING ORDER AND


PRELIMINARY INJUNCTION

TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR


THE WESTERN DISTRICT OF TENNESSE AT MEMPHIS:

COMES NOW John Doe (hereinafter “Plaintiff”) and makes application to this Court for

a Preliminary Injunction prohibiting Rhodes College (hereinafter “Defendant”) from certain acts

more specifically enumerated hereinbelow. For grounds, Plaintiff would respectfully show as

follows:

I. Statement of the Case

This application arises in the context of an action for violation of Title IX of the Civil

Rights Act of 1964. Plaintiff is a senior at Rhodes College in Memphis, Tennessee, who is

alleging that Defendant has violated his rights under Title 20 U.S.C. § 1681. Specifically,

Plaintiff alleges that Defendant’s decision to charge two male respondents while choosing not to

charge a female student accused of participation in the same alleged sexual assault coupled with

external pressure to enforce sexual misconduct policies against male students demonstrates

discrimination against Plaintiff on the basis of his gender. (Compl. ¶¶ 48-63). Defendant’s
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decision not to require the participation of an alleged victim of a sexual assault in the Title IX

hearing and its failure to permit her cross-examination during same, the introduction of last-

minute evidence not previously made available to Plaintiff, the failure to question the female

accused student about her alleged role in the event, and the fact that no witness claimed any

personal knowledge that Plaintiff was involved in the alleged rape cast doubt on the outcome of

the proceedings which ultimately lead to Plaintiff’s expulsion three weeks before graduation, and

the fact that the hearing panel permitted female witnesses without personal knowledge to testify

while failing to call a male student with relevant, direct, personal knowledge of all of the

circumstances surrounding the alleged event. (Compl. ¶¶ 64-81). Further, Plaintiff alleges that

Defendant has selectively enforced its Title IX policies against males by charging the two male

accused with sexual misconduct while declining to charge a female student alleged to have

participated in the assault with a violation of the sexual misconduct policy. (Compl. ¶¶ 78-89).

II. Applicable Law and Argument

Federal Rule of Civil Procedure 65 establishes the relevant procedures for the granting of a

preliminary injunction. Rule 65(a)(1) requires notice to the adverse party before a preliminary

injunction is issued. See 13 MOORE’S FEDERAL PRACTICE, § 65.21 (Matthew Bender 3d ed.).

Under the general notice provision of Rule 6(c)(1), at least 5 days’ notice of a motion for

preliminary injunction is required. See 1 Moore’s Federal Rules Pamphlet § 65.3 (Matthew

Bender).

The purpose of a preliminary injunction is merely to preserve the relative


positions of the parties until a trial on the merits can be held. Given this limited
purpose, and given the haste that is often necessary if those positions are to be
preserved, a preliminary injunction is customarily granted on the basis of
procedures that are less formal and evidence that is less complete than in a trial on
the merits. A party thus is not required to prove his case in full at a preliminary-
injunction hearing[,] and the findings of fact and conclusions of law made by a
court granting a preliminary injunction are not binding at trial on the merits.

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Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981)

(internal citations omitted). When considering a motion for preliminary injunction, a district

court must balance four factors:

(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury without the
injunction;
(3) whether issuance of the injunction would cause substantial harm to
others; and
(4) whether the public interest would be served by the issuance of the
injunction.

Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)

(citing Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005)). "The four considerations

applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that

must be met." Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003) (citing In re De Lorean

Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985).

A. Strong Likelihood of Success on the Merits

Plaintiff is likely to succeed on the merits of his Title IX complaint. Title IX of the

Education Amendments of 1972 provides that "[n]o person in the United States shall, on the

basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance." 20 U.S.C. § 1681(a).

In an unpublished 2003 decision, the Sixth Circuit recognized: "Neither the Supreme

Court nor the Sixth Circuit has set forth a standard for determining when intentional

discrimination has occurred in a case where a student has relied on Title IX to challenge either

the initiation or the outcome of a disciplinary proceeding." Mallory v. Ohio Univ., 76 F. App'x

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634, 638 (6th Cir. 2003). In a recent decision from the Southern District of Ohio, a court in this

circuit noted that this remains the status of the law. Doe v. Miami Univ., 247 F. Supp. 3d 875,

884 (S.D. Ohio 2017).

The Mallory court relied upon the Second Circuit's decision in Yusuf v. Vassar College,

35 F.3d 709 (2d Cir. 1994). The Sixth Circuit continued to rely on the framework set out in

Yusuf in Doe v. Cummins, 662 F. App'x 437, 451 (6th Cir. 2016) ("Although we are not subject

to a binding framework in evaluating a student's Title IX discrimination claim, we have

previously looked to the Second Circuit's decision in Yusuf v. Vassar College, 35 F.3d 709, 715

(2d Cir. 1994).").

In Yusuf, the Second Circuit identified two standards for evaluating college disciplinary

proceedings under Title IX, “erroneous outcome” and “selective enforcement.” 35 F.3d at 715.

Under the "erroneous outcome" theory a plaintiff must plead: (1) "facts sufficient to cast some

articulable doubt on the accuracy of the outcome of the disciplinary proceeding" and (2) a

"particularized . . . causal connection between the flawed outcome and gender bias.

Doe v. Cummins, 662 F. App'x 437, 452 (6th Cir. 2016).

Under the second standard, “selective enforcement” a plaintiff must demonstrate that

“regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to

initiate the proceeding was affected by the student's gender." Id. To prevail on a "selective

enforcement" claim, a plaintiff must show that a similarly-situated member of the opposite sex

was treated more favorably than the plaintiff due to his or her gender. Doe v. Cummins, 662 F.

App'x 437, 452 (6th Cir. 2016); see also Sahm v. Miami Univ., 110 F. Supp. 3d 774, 778 (S.D.

Ohio 2015). Plaintiff claims violations of Title IX under selective enforcement and erroneous

outcome theories.

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1. Erroneous outcome

Plaintiff alleges that the following procedural irregularities cast doubt on the accuracy of

the outcome of the sexual misconduct hearing:

1. Rhodes’ failure to require the participation of the alleged victim (Compl. ¶ 67);

2. Rhodes’ failure to permit cross-examination (or even direct examination) of the

alleged victim (Compl. ¶ 67);

3. The failure of the sexual misconduct hearing panel to base its decision on first-

hand testimony (Compl. ¶¶ 68-78);

4. Rhodes’ failure to charge E.M., the female student that C.S. accused of

participation in the alleged assault such that all of the accused students were not

equally before the hearing panel (Comp. ¶ 87);

5. Rhodes’ failure to question E.M. about the accusation that she participated in the

alleged sexual assault either during the investigation or during the hearing

(Compl. ¶ 72);

6. The alleged victim identified only one witness, E.M., whom she asserts recalling

being present during the alleged assault. Despite E.M.’s testimony that no such

assault happened (and no countervailing testimony from anyone else), the hearing

panel still found Plaintiff responsible (Compl. ¶¶ 30, 41, 49, 52);

7. Rhodes’ presentation of last-minute evidence at the hearing which was not part of

the hearing packet (Compl. ¶ 75);

8. Rhodes’ reliance on inconclusive and unexplained medical evidence presented as

medical proof that C.S. was raped (Compl. ¶¶ 75-78);

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9. Rhodes failure to provide Plaintiff a meaningful opportunity to review and

prepare a proper defense to the alleged medical evidence (Compl. ¶¶ 75-78);

10. Rhodes’ reliance on hearsay within hearsay within hearsay as the sole basis for

the identification of Plaintiff and Z.W. as perpetrators. (The Title IX

investigator’s report alleged that C.S. identified Plaintiff and Z.W. with a “thumbs

up” when questioned by her roommates at a time when she was so intoxicated that

she could not speak. C.S. later had no memory of specific perpetrators, and the

investigator and panel relied solely on fourth-hand hearsay.) (Compl. ¶¶ 25).

11. Rhodes’ decision to give weight to the testimony of female students testifying to

pure hearsay over the testimony of a male student with direct knowledge. (Compl.

¶ 81).

The Sixth Circuit addressed somewhat analogous fats in Doe v. Miami Univ., 882 F.3d

579, 592 (6th Cir. 2018), though the allegations in Miami University were not nearly as

demonstrative of gender bias. In that case the Sixth Circuit found that there was “articulable

doubt” about the outcome of a proceeding based on a hearing panel’s failure to explain how it

resolved inconsistencies and due to the possible application of an erroneous standard of consent.

Id. at 592-93. In Miami University, the plaintiff did not allege anything like the procedural

irregularities in this case. Id. The Sixth Circuit has recently and repeatedly held that cross-

examination of an alleged victim is absolutely necessary to the fairness of any proceeding in

which the credibility of the complainant is at issue. Doe v. Baum, 903 F.3d 575, 581 (6th Cir.

2018). Cross-examination is "the greatest legal engine ever invented" for uncovering the

truth. Doe v. Univ. of Cincinnati, 872 F.3d 393, 401-02 (6th Cir. 2017) (citation omitted). “Not

only does cross-examination allow the accused to identify inconsistencies in the other side's

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story, but it also gives the fact-finder an opportunity to assess a witness's demeanor and

determine who can be trusted.” Id. “If a university is faced with competing narratives about

potential misconduct, the administration must facilitate some form of cross-examination in order

to satisfy due process.” Id. at 402.

Here, Plaintiff’s cited irregularities far surpass those set forth in Doe v. Baum, Doe v.

Univ. of Cincinnati, or Doe v. Miami University. In Doe v. University of Cincinnati, the absence

of cross-examination was the only procedural irregularity. Univ. of Cincinnati, 872 F.3d at 401-

02. The Sixth Circuit considered that sufficient to render the proceeding fundamentally flawed.

Id. In Doe v. Baum, the complainant testified at the Title IX hearing but was not subject to cross-

examination. The university, in that case, argued that their decision was supported by other

evidence beyond the complainant’s testimony. Baum, 903 F.3d at 581. The Sixth Circuit held

that the proceeding was flawed based solely on the lack of cross-examination despite the support

of other evidence. Id. In Doe v. Miami University, the plaintiff merely alleged that the

“articulable doubt” arose from a misstatement as to the standard of consent and the fact that the

hearing panel did not explain how it resolved two conflicting statements made by the

complainant in her testimony. Miami Univ., 882 F.3d at 592.

In the case at bar Plaintiff sets forth far more. Not only was Plaintiff denied cross-

examination, the alleged victim refused to participate in the hearing. (Compl. ¶ 67.) She was not

subject to direct examination, let alone cross-examination. (Id.) She never identified Plaintiff or

his co-respondent as the perpetrators. (Compl. ¶ 88.) The sole identification was based on a

gesture made while her roommates questioned her while intoxicated to the point of being blacked

out and under the influence of cocaine and marijuana. (Compl. ¶ 25-29.) Plaintiff was faced with

last-minute medical evidence that, while inconclusive, was presented to the hearing panel as

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though it were conclusive. (Compl. ¶ 75-76.) He had no opportunity to review it or rebut it. (Id.)

However, the most fundamental procedural flaw was that Rhodes failed to charge E.M., a female

student that C.S. accused of participating in the alleged assault. (Compl. ¶ 77-89.) The failure to

charge E.M. rendered the proceedings fundamentally unfair as not all of the accused individuals

were before the panel on equal terms. (Id.) In fact, E.M. was never questioned about the

allegations against her during the investigation, and the hearing panel avoided questioning her

about it despite numerous references in the investigation report to E.M.’s alleged involvement.

(Compl. ¶¶ 58, 78-89.) Plaintiff can do far more than cast “articulable doubt” on the proceedings.

Plaintiff can conclusively demonstrate that no reliable evidence of his guilt was ever put before

the hearing panel.

After demonstrating that the proceedings were flawed, Plaintiff must show "a

'particularized . . . causal connection between the flawed outcome and gender bias.'" Doe v.

Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018). In Miami University, the plaintiff relied

statistical evidence that showed that the university enforced its policies in a gender-biased

fashion. The Miami University plaintiff further relied on evidence that external pressure

impacted the manner in which the university enforced its Title IX policy. Both of these factors

are present and adequately pled in this case, but Plaintiff can do far more. Plaintiff has alleged

that within this specific proceeding he and his co-respondent, Z.W., were treated differently than

the accused female student, E.M. despite the statements in the Title IX investigation report that

“[E.M.] is bad, and CS said [E.M.] is the one that told them to do it and that it wouldn’t have

happened without her.” (Compl. ¶¶ 30, 58, 78-89.) C.S. also reported a specific recollection of

E.M. being present while the alleged rape was happening, though she reported no recollection of

either male respondent being present. (Compl. ¶¶ 56,.) E.M. merely stated that the alleged

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victim’s report was not accurate and avoided being charged. (Compl. ¶¶ 58.) E.M. was not

questioned about her involvement by the investigator or hearing panel. (Id.) Put simply, the panel

was faced with two male respondents, and E.M. was presented merely as a witness who didn’t

see anything. Had the panel been presented with three respondents of both genders, they might

well have reached a very different outcome.

There is also evidence that Defendant was under pressure to hold male students

accountable for sexual assaults on campus. An attorney preparing a lawsuit against the SAE

fraternity on behalf of C.S. attended Plaintiff’s Title IX hearing holding a file folder marked

“C.S. v. SAE.” (Compl. ¶ 68). Plaintiff has also pled that an organization called “Culture of

Consent” began to pressure Defendant to hold male students responsible for sexual misconduct.

(Compl. ¶¶ 48-53, 60-61.) Culture of Consent held protests and directed social media posts at the

administration accusing them of covering up sexual assaults by male students, accusing the

school of treating male football players favorably in sexual assault inquiries, and pressuring the

school to hold fraternities to account for alleged sexual assaults by male students. (Compl. ¶¶ 48-

61). Plaintiff has also plead, upon information and belief, that Defendant has a pattern or practice

of bringing sexual misconduct cases against males substantially more often than females. It

rarely initiates Title IX/sexual misconduct investigations into female students based on third-

party reports, such as from the local police department as happened here. (Compl. ¶¶ 100.) This

pattern or practice constitutes clear gender discrimination leading to the erroneous outcome of

the student discipline proceeding against Plaintiff. (Compl. ¶ 100).

Plaintiff has alleged ten (10) distinct procedural irregularities, any one of which standing

alone would meet the standard of “articulable doubt” presented in University of Miami. Plaintiff

can show three different categories of evidence linking the litany of procedural defects to gender

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bias, including a direct, facial instance of gender bias within this specific proceeding. This Court

should find that Plaintiff has a strong likelihood of success on his “erroneous outcome” claim.

2. Selective Enforcement

In this particular case, the “erroneous outcome” and “selective enforcement” claims

dovetail. As outlined above, Plaintiff alleges that Rhodes failure to charge or investigate a female

student named by the alleged victim as an aggressor amounts to selective enforcement of its Title

IX policy. “To prevail on a "selective enforcement" claim, the plaintiff must show that a

similarly-situated member of the opposite sex was treated more favorably than the plaintiff due

to his or her gender.” Doe v. Cummins, 662 F. App'x 437, 452 (6th Cir. 2016). Plaintiff meets

this standard.

The Title IX investigative report, which is the only “testimony” from the alleged victim

that was before the Rhodes’ Sexual Misconduct Board in Plaintiff’s disciplinary proceeding,

states that the victim named a female, E.M., as an aggressor in her alleged assault. (Compl. ¶¶

27-28). In fact, the alleged victim does not even recall that Plaintiff and his co-respondent were

present when the alleged assault occurred, but she stated that she specifically recalled E.M. being

present. (Compl. ¶¶ 25-28, 40-41). However, Rhodes’ did not charge, discipline or even

investigate E.M. (Compl. ¶ 86). In truth, Rhodes’ investigated only the male students who were

in attendance at the SAE party where the alleged victim was attacked. Rhodes held two male

students responsible for an alleged sexual assault when at least one of the perpetrators named by

the victim was female. Plaintiff asserts that it is difficult to imagine a more clear-cut case of in

which a “similarly-situated member of the opposite sex was treated more favorably than the

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plaintiff,” and no other distinction exists.1 Plaintiff has set forth facts sufficient to demonstrate

that Rhodes’ has selectively enforced its Title IX policy against male students

B. Irreparable Injury

Plaintiff will suffer irreparable injury unless this Court issues a preliminary injunction. A

plaintiff has "the burden of establishing a clear case of irreparable injury and of convincing the

Court that the balance of injury favor[s] the granting of the injunction." Bd. of Educ. v. U.S.

Dep't of Educ., 208 F. Supp. 3d 850, 860 (S.D. Ohio 2016). Federal courts shave held that “[t]he

loss of educational and career opportunities . . . is not readily compensable in money damages. . .

.” Ritter v. Oklahoma, 2016 U.S. Dist. LEXIS 60193, *8 (W.D. Okla. May 6, 2016).

Additionally, “damage to one's reputation is a harm that cannot be remedied by a later award of

money damages, the threat of reputational harm may form the basis for preliminary injunctive

relief.” Kroupa v. Nielsen, 731 F.3d 813, 820 (8th Cir. 2013). The Sixth Circuit has specifically

held that damage to reputation is not compensable by money damages. United States v. Miami

Univ., 294 F.3d 797, 819 (6th Cir. 2002). The Sixth Circuit, in a case involving sexual

misconduct has noted that: “Being labeled a sex offender by a university has both an immediate

and lasting impact on a student's life.” Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018).

Courts in this circuit have ruled that a student's suspension from school can

cause irreparable harm. Marshall v. Ohio Univ., U.S. Dist. LEXIS 31272, at *24-25 (S.D. Ohio

Mar. 13, 2015) (citing: Boman v. Bluestem Unified Sch. Dist., 2000 U.S. Dist. LEXIS 5389 (D.

Kan. Jan. 28, 2000); Bhandari v. Trustees of Columbia Univ. in N.Y., 2000 U.S. Dist. LEXIS

3720, at *15—16 (S.D.N.Y. 2000)). The Marshall Court found that the plaintiff’s “suspension
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C.S. is extremely vague about her alleged assault. She claims to have been anally penetrated, but she has never
stated what she was penetrated with. To the extent that the male accused could have penetrated C.S., a female
participant could certainly have penetrated C.S. with an object. No evidence was presented that semen was collected
from C.S. body or clothing. C.S. does not claim to recall anything about the alleged assault other than that she was
penetrated anally and that E.M. was present.

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effectively denied him the benefit of the work already performed in the classes this semester and

delayed the completion of his degree.” Marshall, U.S. Dist. LEXIS 31272, at *24-25. The

Marshall Court also noted that: “Plaintiff will forever have this disciplinary action on his

academic record, which may impact his ability to enroll at another institution, or affect his future

career possibilities.”

The harm in this case is identical to the harm in the Marshall case. If Plaintiff is expelled just

prior to graduation, and the degree for which he has worked diligently for four years is not

conferred on him, and he has been wrongfully expelled, the harm is irreparable. His career

opportunities will be diminished and his four years of undergraduate education will be for

naught. Further, Plaintiff will be branded as a sexual predator, and he will functionally be

required to disclose this to any other academic institution to which he applies, thereby limiting

his academic possibilities. The harm to Plaintiff’s reputation and his academic standing would

constitute irreparable harm.

C. Plaintiff’s Injury Outweighs Harm to Others

The potential harm a wrongful expulsion inflicts on Plaintiff well outweighs any harm to

another. In fact, permitting Plaintiff to complete his semester and to graduate causes harm to no

one. The alleged victim is not a participant in Rhodes’ Title IX process, did not request interim

measures, did not testify at Plaintiff’s hearing, and did not file a Title IX complaint against

Plaintiff or anyone else. Allowing Plaintiff to complete his semester and provisionally graduate

as scheduled pending the resolution of the complaint being brought simultaneously with this

application will not bring harm to Rhodes, or even to the alleged victim. However, ample,

heretofore discussed irreparable harm will occur if Plaintiff is wrongfully expelled and denied a

degree, he has earned over the last four years.

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D. Issuance of a Preliminary Injunction Will Serve the Public Interest

There simply exists no adverse public interest which would prevent the issuance of an

injunction. It is “always in the public’s interest that a student be treated fairly.” Ritter, 2016 U.S.

Dist LEXIS at *8. All universities must ensure that the rights afforded to students under Title IX

are protected, including the rights of male students accused of sexual assaults. To expel a student

for sexual misconduct is to take a final step from which he or she is unlikely to recover. It is in

the public interest to ensure that any such action is taken without bias or error.

E. Plaintiff Should Not Be Required to Post Bond

Federal courts construe Federal Rule of Civil Procedure 65 to permit a trial court to

require no bond where the nonmoving party fails to demonstrate any injury. “[U]nder Fed. R.

Civ. Pro. 65(c) the amount of security given by an applicant for an injunction is a matter for the

discretion of the trial court, which may in the exercise of that discretion even require no security

at all.” USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 100 (6th Cir. 1982) (internal

citations omitted). “The purpose of a security deposit in this context is to protect the party

injured from damages occasioned by the injunction.” Fed. R. Civ. Pro. 65(c); USACO Coal Co.,

689 F.2d at 100. Here, Defendant will suffer no financial injury as a result of the imposition of

the injunction(s) being requested. Plaintiff is not requesting that Defendant take any

extraordinary actions or incur any expenses it would not have to bear if it had not issued the

expulsion order. Therefore, a bond should not be required.

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III. Conclusion

When balancing the immediate and irreparable harm to Plaintiff caused by his expulsion

against Defendant’s, the Court should find that the Plaintiff’s needs far outweigh any interest of

the Defendant. If Plaintiff is not awarded the relief sought, his very future educational and career

opportunities will be impacted.

WHEREFORE PREMISES CONSIDERED, Plaintiff respectfully requests that the

Court issue the following Preliminary Injunctions:

1. That Rhodes be enjoined from enforcing its decision to expel Plaintiff pending the

outcome of this suit;

2. That, presuming Plaintiff completes all remaining graduation requirements, that

Rhodes be enjoined from refusing to confer his degree in May 2019 as scheduled,

with the caveat that the degree may be rescinded should Plaintiff prove unsuccessful

in this suit.

Respectfully submitted,

BLACK MCLAREN JONES RYLAND & GRIFFEE


A Professional Corporation

By: /s/Brice M. Timmons__________________


BRICE M. TIMMONS #29582
530 Oak Court Drive, Suite 360
Memphis, Tennessee 38117
(901) 762-0535 – telephone
(901) 762-0539 – facsimile
btimmons@blackmclaw.com
Attorneys for Plaintiff

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