UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 MULTIMEDIA PATENT TRUST, vs. APPLE INC., et al., UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Plaintiff, Defendants. CASE NO. 0-CV--H (KSC) ORDER: () GRANTING APPLE S MOTION FOR PARTIAL SUMMARY JUDGMENT; AND [Doc. Nos., 0] () DENYING MPT S MOTION FOR PARTIAL SUMMARY JUDGMENT [Doc. Nos., ] On September, 0, Plaintiff Multimedia Patent Trust ( MPT ) and Defendant Apple Inc. ( Apple ) filed cross motions for partial summary judgment on Apple s licensing defense. (Doc. Nos.,, 0-.) On October, 0, the parties filed their respective oppositions. (Doc. Nos. 0-0.) On October, 0, the parties filed their respective replies. (Doc. Nos. 0, 0.) On October, 0, the Court held a hearing on the matter. Frederick A. Lorig appeared for MPT. Lara S. Garner and Alex Eaton-Salners appeared for Apple. For the reasons below, the Court GRANTS Apple s motion for partial summary judgment and DENIES MPT s motion for partial summary judgment cv

2 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 BACKGROUND I. Procedural History On December 0, 00, MPT filed a complaint for patent infringement against Defendants Apple, LG, and Canon. (Doc. No., Compl.) The complaint alleges that Defendants are liable for infringement of one or more of four patents related to video compression technology: U.S. Patent Nos.,, ( the patent ),,, ( the patent ),,00, ( the patent ), and,, ( the patent ) (collectively the patents-in-suit ). (Id.) On March, 0, Apple, LG, and Canon filed their answers. (Doc. Nos. -,.) In its answer, Apple asserted licensing of the patents through MPEG LA as an affirmative defense to MPT s assertions of infringement. (Doc. No..) II. Relevant Facts MPEG LA, LLC ( MPEG LA ) runs a patent pool covering the MPEG- standard. (Doc. No., Declaration of Lara S. Garner ( Garner Decl. ) Exs. D, F.) If a company wants to obtain the right to practice the patents in MPEG LA s MPEG- patent pool, the company must sign one of MPEG LA s form portfolio licenses: the 00 form portfolio license ( the 00 License ) or the 00 form portfolio license ( the 00 License ). On February, 00, Apple obtained a sublicense from MPEG LA under the 00 License. (Doc. No., Garner Decl. Ex. B.) The 00 License has an effective date of June, and an expiration date of December, 00. (Id. at 0.,..) The 00 License contains a renewal provision stating: Upon expiration, Licensee shall have the right to renew this sublicense for successive five year periods for the life of any MPEG- Patent Portfolio Patent, subject to reasonable amendment of the royalty terms and rates set forth in this sublicense. (Id...) On September, 00, MPT licensed some of its patents to MPEG LA, including the Patent and the Patent. (Doc. No., Declaration of Chris A. Mathews ( Mathews Decl. ) Exs. -.) Under its agreements with MPEG LA, MPT granted MPEG LA the right to sublicense the Patent and the Patent under either the 00 License or the 00 License. (Id.) - - 0cv

3 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 On March, 0, after the expiration date of the 00 License had passed, Apple entered into a subsequent licensing agreement with MPEG LA. (Doc. No., Garner Decl. Ex. C.) An Attachment to the sublicense states: This letter is provided by Apple Inc. ( Apple ) in conjunction with execution of the attached MPEG- Patent Portfolio License ( Renewal License ) renewing the MPEG- Patent Portfolio License between Apple and MPEG LA, LLC ( MPEG LA ), dated January, 00 (the Original License ). This letter will confirm that Apple s execution of the Renewal License is contingent upon and subject to the conditions, exclusions and clarifications set forth herein. (Id. at.) The Attachment goes on to provide: ) Except as otherwise expressly set forth herein, Terms in the Renewal License that were not present in the Original License will be void and unenforceable unless they are royalty terms or rates. (Id. at.) The Attachment was signed by Philip Schiller, a senior vice president for Apple, and Lawrence A. Horn, President and CEO of MPEG LA. (Id. at.) I. Summary Judgment Standard DISCUSSION Summary judgment is appropriate under Rule of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, U.S., (). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., U.S., (); Freeman v. Arpaio, F.d, (th Cir. ). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, U.S. at. A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, U.S. at. The moving party can The Attachment also states: This letter and the understandings embodied herein shall constitute an attachment ( Attachment ) to the Renewal License as that term is used in Article.0. of the Renewal License. (Doc. No., Garner Decl. Ex. C at.) Section.0. of the Renewal License states: The provisions of this Agreement, including its attachments and any amendments, constitute the entire agreement between the parties.... (Id. at 0.0..) - - 0cv

4 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 satisfy this burden in two ways: () by presenting evidence that negates an essential element of the nonmoving party s case; or () by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party s case on which the nonmoving party bears the burden of proving at trial. Id. at -. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass n, 0 F.d, 0 (th Cir. ). Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, U.S. at. The nonmoving party cannot oppose a properly supported summary judgment motion by rest[ing] on mere allegations or denials of his pleadings. Anderson, U.S. at. The opponent must do more than simply show that there is some metaphysical doubt as to the material fact. Kennedy v. Allied Mut. Ins. Co., F.d, (th Cir. ) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., U.S., ()). When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., U.S., (). The Court does not make credibility determinations with respect to evidence offered. See T.W. Elec., 0 F.d at 0- (citing Matsushita, U.S. at ). Summary judgment is therefore not appropriate where contradictory inferences may reasonably be drawn from undisputed evidentiary facts. Hollingsworth Solderless Terminal Co. v. Turley, F.d, (th Cir. 0). II. Analysis MPT and Apple both move for partial summary adjudication of Apple s licensing defense. (Doc. Nos. 0-.) In support of its licensing defense, Apple contends that it is licensed to practice the patents contained in the 00 License, including the Patent and the Patent, and that upon its expiration Apple renewed the 00 License. (Doc. No. In its motion for summary judgment, Apple also argues in support of its licensing defense, that the 00 License is not a novation of the 00 License. (Doc. No. at -.) However, MPT does not argue in its motion for summary judgment or its opposition that there - - 0cv

5 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 at -,.) Specifically, Apple contends that the following products are licensed to practice the Patent and the Patent under the agreements: imac, MacMini, MacBook, MacBook Air, MacBook Pro and Mac Pro, all versions of FinalCut, idvd, imovie, DVD Studio, Compressor, Quicktime, QuickTime Player, itunes and AppleTV (st Gen). (Id. at.) In response, MPT argues that after the 00 License expired, Apple entered into the 00 License, which is a field of use license rather than a product license. (Doc. No. 0 at 0-.) MPT argues therefore that Apple s sales of hybrid computer products that are capable of complying with both the MPEG- and other video compressions standards, sold after December, 00, are not fully licensed under the new sublicense. (Id. at.) In addition, MPT clarifies that it is not seeking damages on the Patent or Patent for Apple sales made pursuant to the original 00 License. (Doc. No. 0 at.) A. New York Law on Contract Interpretation Under New York law, the meaning of words in contracts must be discerned under several cardinal principles of contractual interpretation. Brad H. v. City of N.Y., N.Y.d 0, (N.Y. 0). One of these principles states, [a] written agreement that is clear, complete and subject to only one reasonable interpretation must be enforced according to the plain meaning of the language chosen by the contracting parties. Id. [T]he objective of contract interpretation is to give effect to the expressed intentions of the parties, and the best evidence of what parties to a written agreement intend is what they say in their writing. Law Debenture Trust Co. of N.Y. v. Maverick Tube Corp., F.d, (d Cir. 00). Ambiguity must be determined within the four corners of the document; it cannot be created by extrinsic evidence that the parties intended a meaning different than that expressed in the agreement and, therefore, extrinsic evidence may be considered only if the agreement is ambiguous. Brad H., N.Y.d at (quoting Innophos, Inc. v. Rhodia S.A., 0 N.Y.d was a novation. Therefore, this argument is moot. The parties agree that the MPEG LA sublicenses are governed by New York law. (Doc. No. 0 at 0; Doc. No. at -; see also Doc. No., Garner Decl. Exs. B., C..) - - 0cv

6 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0, (N.Y. 00)). Indeed, [l]anguage whose meaning is otherwise plain does not become ambiguous merely because the parties urge different interpretations in the litigation. Law Debenture, F.d at (internal quotation omitted). B. Apple Products Sold Prior to and on December, 00 The parties agree that Apple had a sublicense to the Patent and the Patent through the 00 License, which expired on December, 00. (Doc. No. 0 at ; Doc. No. at -.) Apple contends therefore that its products licensed under the 00 license cannot infringe the Patent and the Patent. (Doc. No. at -.) In response, MPT argues that the 00 License is a field of use license, not a product license. (Doc. No. 0 at -.) Article of the 00 License provides the rights that a sublicensee may exercise: the Licensing Administrator hereby grants to Licensee a... sublicense... to make, have made, use, and sell, offer for sale or otherwise distribute MPEG- Decoding Products... [and] to make, have made, use..., and sell, offer for sale or otherwise distribute MPEG- Encoding Products. (Id. Ex. B at -.,..) Section. of the 00 License expressly clarifies that the grant does not include rights in products: CAPABLE OF COMPLYING SOLELY WITH THE MPEG- STANDARD AND NO OTHER PORTION OF THE MPEG- STANDARD. (Id. at..) Section. states that products practicing only MPEG- cannot be MPEG- products. Section. also states that a product capable of practicing both MPEG- and MPEG- is a product within the 00 License s grant. Therefore, Section. illustrates that once a product is an MPEG- product, irrespective of what other capabilities the product has, that product is licensed for all uses because it is capable of acting as an MPEG- product. If MPEG LA intended for the 00 License to be limited to products only capable of practicing the MPEG- standard, the drafters could have included an appropriate limitation in the license. Instead, MPEG LA allowed products practicing both MPEG- and MPEG-, but required that products have MPEG- capabilities. In its opposition, MPT attempts to introduce extrinsic evidence to explain or clarify - - 0cv

7 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 Section. of the 00 License. (Doc. No. 0 at -.) Introduction of extrinsic evidence violates the applicable New York canons of contract interpretation as ambiguity is determined within the four corners of the document, and cannot be created by extrinsic evidence. Brad H., N.Y.d at. Therefore, based on the plain meaning of the 00 License, the Court concludes that the 00 License is a product license, rather than a field of use license. The 00 License and the March, 0 renewed sublicense are product licenses that require MPEG- capability, rather than licenses that limit capability to MPEG- products. Sections. and. of the 00 License provide support for the Court s conclusion that the 00 License covers a product that requires MPEG- capabilities. Sections. and. state that the sublicense covers a product which is primarily designed in whole or in part for [decoding/encoding] video information into a format in compliance with the MPEG- Standard. (Doc. No., Garner Decl. Ex. B at -.,..) Accordingly, any Apple products capable of compliance with MPEG- capabilities are within the scope of the 00 License. The Court concludes that Apple s imac, MacMini, MacBook, MacBook Air, MacBook Pro and Mac Pro, all versions of FinalCut, idvd, imovie, DVD Studio, Compressor, Quicktime, QuickTime Player, itunes and AppleTV (st Gen) are licensed under the 00 License even if they practice other standards in addition the MPEG- standard. Along with its motion for summary judgment, Apple has produced evidence showing that these products practice the MPEG- standard. (Doc. No., Garner Decl., Exs. X, Y.) In its response, MPT does not dispute these facts or argue that these products do not practice the MPEG- standard. In its opposition, MPT clarifies that it is not seeking damages on the Patent or Patent for Apple sales made pursuant to the 00 License. (Doc. No. 0 at.) MPT states that it is only seeking damages on the patent for sales made after the 00 License expired on December, 00. (Id. at.) In reply, Apple argues that its motion for summary judgment is ripe because MPT accuses these products of infringing the Patent and the patent without placing any temporal limitations on its allegations of infringement and Apple s declaratory action for non-infringement remains pending. (Doc. No. 0 at -.) Although MPT states that it is not seeking any damages for products sold under the 00 License, the parties dispute whether the 00 License provides a defense to MPT s allegations that Apple s products infringe the Patent and the Patent. (See Doc. No. 0 at ( MPT maintains its position that the 00 MPEG-LA form sublicense was a fieldof-use license not a product license. ). In addition, the Court offered the parties an opportunity to reach a stipulation on this issue prior to the Court issuing its order on the motions for - - 0cv

8 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 C. Apple Products Sold After December, 00 After the 00 License expired on December, 00, Apple entered into a new sublicense agreement with MPEG LA on March, 0. (Doc. No., Garner Decl. Ex. C.) The parties dispute the terms of this new sublicense. MPT contends that the new sublicense is for the 00 License, which is a field of use license rather than a product license. (Doc. No. 0 at 0-.) Apple contends that under the terms of the Attachment, the new sublicense is a renewal of the 00 License and, therefore, is a product license. (Doc. No. 0 at -.) Section. of the March, 0 sublicense states the following: NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL LICENSES GRANTED UNDER THIS AGREEMENT ARE LIMITED TO A FIELD OF USE TO COMPLY WITH THE MPEG- STANDARD. NO OTHER LICENSES FOR ANY OTHER PURPOSE OR USE ARE GRANTED HEREIN NOR ARE ANY LICENSES GRANTED TO ANY PORTION OR SEGMENT OF ANY PRODUCT EXCEPT THOSE PORTIONS OR SEGMENTS OF SUCH PRODUCTS THAT COMPLY WITH THE MPEG- STANDARD. (Doc. No., Garner Decl. Ex. C at..) This language comes from the 00 License. (Doc. No. Mathews Decl. Ex. at., at..) MPT argues that this language shows that the March, 0 sublicense is a field of use license. (Doc. No. 0 at -0.) However, the Attachment to the March, 0 sublicense states: ) Except as otherwise expressly set forth herein, Terms in the Renewal License that were not present in the [January, 00] Original License will be void and unenforceable unless they are royalty terms or rates. ) Except as otherwise expressly set forth herein, amendments to Terms that were present in the [January, 00] Original License will be void and unenforceable unless they are amendments to royalty terms or rates. summary judgment, but the parties were unable to agree on a stipulation. (Doc. Nos.,.) Therefore, Apple s motion for partial summary judgment with respect to its products sold prior to and on December, 00 is not moot. Apple has submitted evidence showing that it is in good standing with respect to its obligations to MPT under the March, 0 renewed license. (Doc. No., Garner Decl. Ex. M.) MPT does not dispute this evidence or argue that Apple is not in good standing. Apple has submitted evidence showing that it is in good standing with respect to its obligations to MPEG LA under its agreements. (Doc. No., Garner Decl. Ex. M.) - - 0cv

9 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 (Doc. No., Garner Decl. Ex. C at.) The Attachment also provides: The provisions of the Renewal License and this Attachment shall be construed consistently, but in the event of a conflict the terms of this Attachment shall govern the rights of the parties to the Renewal License. (Id. at.) The field of use language in section. was not contained in the original 00 License. (See id. Ex. B.) Therefore, under the terms of the Attachment, section. of the March, 0 agreement is void and unenforceable unless it relates to royalty terms or rates. MPT argues that section. is enforceable despite the language in the Attachment because the Attachment never specifically refers to section. not being an amendment to royalty terms or rates. (Doc. No. 0 at -; Doc. No. 0 at 0-.) In support of this argument, MPT relies on the following language in the Attachment: [W]hereas Apple contends (and MPEG LA disagrees) that the Renewal License includes additional amendments beyond amendments to royalty terms and rates, including but not limited to Sections.,.,..,.0,..,..,.,. and.; this letter will confirm that, except as expressly set forth herein: (a) Apple does not agree to such amendments to terms other than royalty terms and rates, and (b) such amendments to terms other than royalty terms and rates will not be applicable to Apple. (Doc. No., Garner Decl. Ex. C at.) MPT argues that this language specifically enumerates the provisions that are disclaimed by the Attachment, and those are the only provisions that are excluded under the Attachment. (Doc. No. 0 at.) But, the language states that excluded amendments are including but not limited to those enumerated sections. (Doc. No., Garner Decl. Ex. C at.) That the excluded amendments are not limited to In arguing that excluded amendments are limited to those enumerated sections, MPT also relies on the contract interpretation principle of inclusio unius est exclusio alterius, which means the inclusion of one is the exclusion of another. (Doc. No. 0 at ; Doc. No. 0 at.) See Uribe v. Merchants Bank, N.Y.d, 0 (N.Y. ). However, that maxim is inapplicable to the Attachment because it contains clear language stating that the excluded amendments are not limited to the enumerated sections. Cf. Uribe, N.Y.d at 0 (applying the maxim where the contract used precisely limited and specific language ). In addition, another maxim of contract interpretation is that a court should avoid an interpretation that would leave contractual clauses meaningless. Two Guys from Harrison-N.Y. v. S.F.R. Realty Assocs., N.Y.d, 0 (N.Y. ). Interpreting the Attachment as MPT requests would render the language but not limited to meaningless cv

10 Case :0-cv-0-H-KSC Document Filed 0// Page 0 of 0 0 those specific enumerated sections is also supported by the language in sections and of the Attachment. Those provisions state that any amendments or new terms are null and void other than amendments to royalty terms or rates. (Id. at.) Sections and of the Attachment are not limited to any specific sections of the sublicense. (Id.) The Court concludes that the Attachment excludes any amendments to terms or new terms other than amendments to royalty terms or rates, not just the enumerated sections. In its reply, MPT asserts that section. is an amendment to a royalty term. (Doc. No. 0 at.) The Court disagrees. Section. is related to the overall scope of the license, i.e., the rights that are conferred to the sublicensee, not royalty terms. MPT attempts to argue that section. is a royalty term because a provision that defines the scope of the license determines what products the sublicensee must pay a royalty for under the sublicense. (Id.) Using MPT s logic, section. of the agreement, which defines the term MPEG- Standard, would also be a royalty term because this term affects the overall scope of the agreement and the type of products for which the sublicensee is obligated to pay a royalty. But section. is one of the sections that was expressly enumerated in the Attachment as an amendment that is beyond an amendment to royalty terms or rates. (Doc. No., Garner Decl. Ex. C at.) In addition, section. is not included in article of the agreement, which is entitled ROYALTY AND PAYMENTS. (Id. at.) Therefore, the Court concludes that under the language of the agreement, section. is not an amendment to a royalty term or rate. At the hearing, MPT argued that the phrase royalty term is ambiguous, and, therefore, for Apple to meet its burden at the summary judgment stage, it must present extrinsic evidence proving that section. is not a royalty term. Specifically, MPT argued that Apple should present financial evidence showing what royalties it pays for the use of the MPEG- and H. standards. MPT stated that this would be the best extrinsic evidence that could be presented to the Court on this issue. First, MPT cannot rely on extrinsic evidence to create an ambiguity in the contract. See Brad H., N.Y.d at. Second, the Court disagrees with MPT s contention that the phrase royalty term is ambiguous and concludes that under the language - 0-0cv

11 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 of the contract section. is unambigously not a royalty term or rate. Finally, even if the Court considered the requested extrinsic evidence, it would not be helpful in determining whether the parties to the March, 0 license intended for section. to be rendered null and void. MPT contends that if the March, 0 license is a product license as Apple contends then Apple would not pay additional royalties to use the MPEG- and H. standard because the Apple products are already fully licensed under the March, 0 renewal license. However, this argument fails to consider that the MPEG- and H. patent pools are different patent pools from the MPEG- patent pool. Therefore, even looking at this possible evidence in the light most favorable to MPT, Apple s payment of additional royalties to use the MPEG- and H. standards is not evidence that Apple views the March, 0 license as a field of use license. It is at most evidence showing that Apple understands that it needs to pay royalties for the additional patents contained in the MPEG- and H. patent pools that are not included in the MPEG- patent pool because it would not have a license to those patents even if the March, 0 renewal license is a product license. Accordingly, the Court concludes that under the terms of the March, 0 sublicense, section. is void and unenforceable under sections and of the Attachment. Because section. is void and unenforceable, the scope of the license is determined by the original 00 License. (See Doc. No., Garner Decl. Ex. C at ( [T]he version of such terms that was set forth in the Original License will continue to apply unchanged as though set forth in the Renewal License. ).) The Court previously concluded in this order that the 00 License is a product license. Accordingly, any Apple products capable of compliance with the MPEG- standard are within the scope of the 00 License and thus within the scope of the March, 0 renewal sublicense. The Court concludes that Apple s imac, MacMini, MacBook, MacBook Air, MacBook Pro and Mac Pro, all versions of FinalCut, idvd, imovie, DVD Studio, Compressor, Quicktime, QuickTime Player, itunes and AppleTV (st Gen) are licensed under the March, 0 renewal sublicense even if they practice other standards in addition the MPEG- standard. Finally, MPT argues that MPEG LA could not have granted Apple a product license - - 0cv

12 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 because a licensor cannot grant more rights than it possesses. (Doc. No. 0 at -0 (citing Davis v. Blige, 0 F.d 0, (d Cir. 00)); Doc. No. 0 at -.) MPT argues that the 00 License only granted MPEG LA a field of use license and MPT only authorized MPEG LA to grant sublicenses to third parties if they are in substantially the same form as the 00 sublicense. (Id. at.) Even assuming this is true, MPEG LA did not exceed its licensing authority by entering into the renewal agreement with Apple because MPEG LA was exercising its authority pursuant to the 00 License rather than 00 License. MPT concedes that it granted MPEG LA the right to grant sublicense to third parties pursuant to the 00 license. (Doc. No. 0 at -; see also Doc. No. Mathews Decl. Ex..) Under the 00 license, a sublicensee like Apple had the right to renew the 00 License for successive five year periods for the life of any MPEG- Patent Portfolio Patent, subject to reasonable amendment of the royalty terms and rates set forth in this sublicense. (Id. Ex. at 0..) Therefore, MPEG LA did not grant Apple more rights than it was authorized to under the 00 License when Apple renewed the 00 sublicense cv

13 Case :0-cv-0-H-KSC Document Filed 0// Page of 0 0 Conclusion In sum, Apple has shown that it is entitled to judgment as a matter of law with respect to it licensing defense. Apple s imac, MacMini, MacBook, MacBook Air, MacBook Pro and Mac Pro, all versions of FinalCut, idvd, imovie, DVD Studio, Compressor, Quicktime, QuickTime Player, itunes and AppleTV (st Gen) are licensed under the 00 License and the March, 0 renewal sublicense to practice the Patent and the Patent. Therefore, Apple s sales of the above products does not constitute infringement of those two patents. See Anton/Bauer, Inc. v. PAG, Ltd., F.d, 0 (Fed. Cir. 00) (explaining that a party that has a license to a patent cannot be liable for infringing the patent). Accordingly, the Court GRANTS Apple s motion for partial summary judgment and DENIES MPT s motion for partial summary judgment. IT IS SO ORDERED. Dated: October, 0 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT - - 0cv