the Penalty Bar inoperative; (3) whether the Penalty Bar is an affirmative defense; and (4) if the Penalty Bar is an affirmative defense, whether it has been waived. IV. CONCLUSION For the preceding reasons, the Court finds that Defendant is not entitled to judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Therefore, Defendant’s Motion to Dismiss (ECF No. 92) will be DENIED. An appropriate Order will accompany this Memorandum Opinion. The Clerk is DIRECTED to send a copy of this Memorandum Opinion to all counsel of record. 1 . See In re Fed. Home Loan Mortg. Corp. Derivative Litig., 643 F.Supp.2d 790, 799 (E.D. Va. 2009) (citing Chemical Futures & Options, Inc. v. Resolution Trust Corp., 832 F.Supp. 1188, 1192-93 (N.D. Ill. 1993) (internal citation omitted) (<HOLDING>)). 2 . The Court is mindful of the fact that
holding that this court will not substitute its judgment for that of the administrative fact finder who heard the testimony and was in a position to evaluate the credibility of witnesses because evidence is weighed by the administrative agency and not by the courts holding that a provision of the constitution is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption but that if new products or circumstances that did not exist at the time the constitutional provision was enacted fall within the meaning of the provision the constitutional provision applies to them holding that this type of provision does not elevate the conservator to the position of a sacred cow which may graze upon the rights of others at will unchecked by the courts holding the rights protected by copyright are divisible and the waiver of one does not necessarily waives the others holding that defendants failure to attach a copy of the complaint to its notice of removal did not deprive the district court of jurisdiction and stating that to permit this minor irregularity to defeat the district courts jurisdiction would be to elevate form over substance