OMNITRACS LLC v. MOTIVE TECHNOLOGIES INC (2025)

ORDER REGARDING MOTIONS IN LIMINE AND PRETRIAL MATTERS

I. MOTIVE'S MOTIONS IN LIMINE

MIL No. 1 to exclude Motive's activities at Pariso Trucking: Denied without prejudice to re-raising the issue if inadequate foundation is laid that Motive's activities at Pariso Trucking involved XRS Relay. The parties dispute whether the system at issue was Turnpike, an older system developed six years previously that is not covered by the patents, or XRS Relay, which Omnitracs contends is a commercial embodiment of the XRS Patents at issue. Omnitracs proffers evidence that Motive took photos of its side-by-side testing at Pariso Trucking that showed an XRS Relay with Motive's ELD device plugged into a Pariso Trucking vehicle (Exs. BB, OO MOTIVE_OT_014666; Ex. H ¶¶ 1345–47). That would be sufficient foundation for a reasonable jury to conclude by a preponderance of the evidence that the system at issue was the XRS Relay. As such, if the foundation is laid as expected, evidence of Motive's alleged copying of that system through its arrangement with Pariso Trucking would be relevant and more probative than unfairly prejudicial.

MIL No. 2 to exclude Motive's presentation, slide deck, and various corresponding emails and expert analysis, re SmartDrive: Denied. The presentation and slide deck are evidence that Motive had access to SmartDrive, which Omnitracs contends is the commercial embodiment of the '060 Patent, and took apart the product to see how it worked. See Medtronic, Inc. v. Teleflex Innovations S.a.r.l., 70 F.4th 1331, 1340 (Fed. Cir. 2023) (holding that “[e]vidence of access and substantial similarity is evidence of copying” and rejecting argument that “copying can be proven only by direct evidence ‘such as photos of patented features or disassembly of products’ ”). Although some slides and materials relate to features of SmartDrive that are not patented, they are still probative of access and desire to replicate the SmartDrive product as a whole. As such, the evidence is relevant to intent to copy and more probative than unfairly prejudicial.

MIL No. 3 to exclude evidence that Motive improperly accessed or copied Plaintiffs' products unless such evidence has a nexus to the claimed invention: Denied. Although copying must have a nexus to the claimed invention, the evidence identified in the motion for potential exclusion involves alleged copying of commercial embodiments of the Asserted Claims. Evidence that Motive carefully examined and tried to imitate commercial embodiments of the Asserted Claims, even if some of the features discussed are not specifically the patented features, is still highly probative on the overall issue of intent to copy the entire product, including the patented features. That is particularly so when combined with other evidence of access and similarity in the ultimate product. As such, the evidence is relevant to copying and more probative than unfairly prejudicial.

MIL No. 4 to exclude evidence that Motive's products, non-infringing alternatives, and Plaintiffs' practicing products practiced the “alphanumerical” limitation unless (1) disclosed prior to summary judgment and (2) consistent with Wicker's expert report: Denied. As to infringement by Motive's own products, the record indicates that Omnitracs has been contending those products infringe that limitation since before summary judgment. There is no inconsistency in arguing a doctrine of equivalents theory in the alternative.

As to Omnitracs' claimed practicing products, Omnitracs disclosed them as practicing products that met the limitation, and submitted Wicker's expert report to that effect. See Wicker Opening Report ¶¶ 870–72, 874 (“[I]t is my opinion that each version of Motive's driver safety score satisfies Claim 15's alphanumerical rating requirement literally[.]”). Indeed, Motive's technical expert submitted a rebuttal to this argument. See Wilson Rebuttal Report ¶¶ 450–52. Inconsistencies in the way Wicker later used the term alphanumeric in his deposition are not a basis for precluding Omnitracs from presenting evidence on this topic. Moreover, Wicker's opinion as to the interpretation of the term alphanumerical is not relevant at trial, as the claim has been construed as a matter of law based on the parties' submissions.

As to Motive's claimed non-infringing alternatives, Motive argues Omnitracs was asked in contention interrogatories about the NIAs and “never argued that any of these NIAs infringed the alphanumerical rating.” Omnitracs' Interrogatory Response states, “Motive specifically identifies only the Accused Products as a potential non-infringing alternative. See Motive's Resp. to Interrog. No. 15. For the reasons discussed in, e.g., the Complaint, Amended Complaint, Plaintiffs' Infringement Contentions, and Plaintiffs' Supplemental Infringement Contentions, the Accused Products are not non-infringing alternatives to the Asserted Patents.” (Dkt. No. 372-36 at 7.) In turn, the Infringement Contentions disclosed Omnitracs's view that the Accused Products infringed. Omnitracs then describes Motive's position that a possible NIA is the use of the Accused Products in a manner that employs only numbers, which Motive contended would not be an alphanumeric rating. (Id. at 25.) Omnitracs then states that this “purported non-infringing alternative” has an additional problem of being unacceptable to customers. That does not appear to undo Omnitracs' prior argument that the Accused Products are not non-infringing, regardless of the manner in which they are used. Rule 37(c)(1) does not provide a basis to preclude the evidence at issue.

MIL No. 5 to exclude Motive's privileged communications, claims of privilege, and privilege logs; failure to obtain/produce advice of counsel; and failure to investigate alleged infringement: Granted in part and denied in part. Omnitracs is precluded from presenting evidence, testimony, or argument as to Motive's privileged communications, claims of privilege, privilege logs, and failure to obtain or produce advice of counsel, pursuant to 35 U.S.C. § 298. See Provisur Techs., Inc. v. Weber, Inc., 119 F.4th 948, 955 (Fed. Cir. 2024) (“Patentees are prohibited from using the accused infringer's failure to obtain the advice of counsel as an element of proof that the accused infringer willfully infringed.”).

As to evidence concerning Motive's failure to investigate the alleged infringement, there is sufficient evidence to allow a reasonable jury to conclude that Motive was aware of the Asserted Patents or willfully blind to them, and that Motive copied the products embodying them, as detailed in the prior summary judgment order (Dkt. No. 342). Accordingly, the steps taken by Motive to determine if it was infringing are relevant to both willful blindness (i.e., whether Motive took “deliberate actions to avoid confirming a high probability of wrongdoing”) and the subjective willfulness (i.e., whether the risk of infringement was “either known or so obvious that it should have been known to the accused infringer”). Allowing the jury to consider such evidence does not reduce the standard to negligence in a situation where there is other evidence establishing Motive's awareness of the Asserted Patents and other evidence of copying. Omnitracs may therefore ask about what steps Motive took to determine if it was infringing after receiving the Notice Letters. If Motive relies on an investigation solely performed by its attorneys, that would open the door and waive the privilege as to additional questions about the investigation by the attorneys. If Omnitracs believes that the door has been so opened, counsel must raise the issue outside the presence of the jury prior to asking questions on that basis. Otherwise, if Motive does not rely on its investigation, but merely relies on its good-faith belief that it was non-infringing on a basis independent of its investigation (for example, the reasons described in its response to Omnitracs' MIL No. 1, to the extent that those arguments are not based solely attorney opinion or investigation), that will not open the door. If Motive so confines its answer, Omnitracs may not introduce testimony, evidence, or argument about Motive's investigation, and may not ask witnesses what “investigation” Motive performed, though witnesses may be asked about whether they personally took other specific steps to ascertain if Motive was infringing (such as whether the witness reviewed the Asserted Patent personally). Because the record does not show Motive performed any investigation other than through its attorneys, the only way Motive could answer truthfully would be to mention its consultation with attorneys. Accordingly, specifically asking what investigation was done is tantamount to asking whether an attorney was consulted, which is precluded under 35 U.S.C. § 298.

MIL No. 6 to exclude evidence of wrongdoing by any current or former Motive employee, including Fuglewicz, regarding their former employment by Plaintiffs: Granted in part and denied in part. Omnitracs is precluded under Rule 403 from asking such witnesses about trade secret misappropriation and breach of contract, or using terms such as stealing, misappropriating, pirating, and trespassing to describe their conduct. Nor may Omnitracs ask about the copying and taking of confidential information about products that are not alleged to be commercial embodiments of the Asserted Patents. The risk of unfair prejudice (i.e., painting Motive in a bad light unrelated to the claims at issue) outweighs any probative value of that evidence.

The motion is otherwise denied. Because XRS Relay is allegedly the commercial embodiment of the patented technology, evidence and argument about copying XRS Relay or hiring employees for their knowledge of how XRS Relay worked would be highly relevant. To the extent that Motive rebuts this evidence with testimony that it has a policy against taking confidential information, that would open the door to Omnitracs presenting evidence that Motive does not comply with that policy generally, including through evidence that such policy was violated by taking documents unrelated to XRS Relay from Omnitracs. If Omnitracs believes Motive has so opened the door, Omnitracs must first raise the issue outside the presence of the jury before asking any questions on that topic.

MIL No. 7 re excluding evidence that Motive's accused products meet the “composite driver score” limitation of the '906 Patent or the “processing” limitation of the '628 Patent under the doctrine of equivalents: Granted as to the '906 Patent. Amendment-based estoppel applies to the “composite driver score” limitation of the '906 Patent. The composite driver score amendment added “a composite driver score based on a plurality of a group consisting of [various factors].” The presumption of prosecution history estoppel applies to this narrowing amendment, which was adopted to avoid the Davidson prior art reference “taken either individually or in combination with other prior art of record.” (Dkt. No. 288-38.) Omnitracs argues that the presumption should apply only to the portions of the narrowing amendment that it contends were strictly required to avoid Davidson—namely, the “composite driver score” limitation, but not the specific factors enumerated in the amendment—due to the exception for tangential relation. This argument is unavailing. The tangential relation exception is a narrow one. The Federal Circuit has found it “generally true” that “an applicant's remorse at ceding more claim scope than necessary is not a reason for the tangential exception to apply.” Eli Lilly & Co. v. Hospira, Inc., 933 F.3d 1320, 1333–34 (Fed. Cir. 2019) (internal citations omitted). Indeed, that an amendment narrows an existing claim element “is a powerful indication that an amendment was not merely tangential.” Id.

Here, the amendment to add specific factors to the composite driver score was undisputably related to the goal of achieving patentability by overcoming the prior art. While Davidson did not disclose a composite driver score, the Routetracker prior art disclosed a “scorecard” with a composite total score based on multiple factors including a “speed score,” an “RPM Score,” an “idle score,” and a “hard brake” score. (Dkt. No. 288-38.) Therefore, specifying the particular factors on which the composite drive score is based is directly relevant to distinguishing the prior art and defining the boundaries of the “composite driver score” term. Eli Lilly, 933 F.3d at 1331, does not counsel otherwise, as in that case the limitation at issue (the particular salt form a drug would take, which had no effect on the administration or efficacy of the drug) was only tenuously related to the reason for the amendment (to claim that particular drug over a different drug used in the prior art).

Omnitracs stated at the pretrial conference that the question whether Omnitracs can prove infringement of the “processing” limitation of the '628 Patent under a doctrine of equivalents theory no longer presents a live controversy, given the Court's construction of the “alphanumerical” term. Accordingly, that portion of the motion is denied as moot.

MIL No. 8 to exclude Motive's deletion of Fuglewicz's emails and files: Denied. Fuglewicz left Motive in March 2018. His remaining files were deleted sometime between March and June 2018. Omnitracs' first notice letter was sent after that point in July 2018. However, in July 2016, Fuglewicz sent an email to Motive CEO Shoaib Makani entitled “Potential Omnitracs legal action” that said he had received information that “Omnitracs is going to go after me [and] KeepTruckin,” including about whether KeepTruckin “copied their system.” Though the email appears focused on trade secrets, it mentions XRS's “patents” and its product XRS Relay, which Plaintiffs contend is the embodiment of the patented technology.¹ Fuglewicz further states in the email that he “wanted to document a bunch of things here to get us prepared,” and suggested that KeepTruckin should “have our legal team initially briefed.”

Fuglewicz had previously signed inventor declarations for the '628 and '906 patents, and circumstantial evidence supports a reasonable inference that he tracked issued patents listing him as an inventor and thus that he knew of those two patents in 2016. That is enough to have triggered a preservation duty, which arises when litigation is reasonably foreseeable, even if the “precise nature of the specific litigation” is not. Musse v. King Cnty., No. C18-1736-JCC, 2021 WL 4709875, at *2 (W.D. Wash. Oct. 8, 2021). Indeed, that Fuglewicz began to “document” next steps in his email is persuasive evidence that he knew or should have known that the email would be relevant to future litigation and that he believed such litigation to be probable.

Evidence about the destruction of emails despite awareness of potential litigation is relevant to willfulness, as it bears on whether Motive was willfully blind to documents that would likely pertain to issues of infringement. Though Motive argues that many of Fuglewicz's documents happened to have been preserved in the files of other Motive employees, the lack of steps to preserve his documents is still pertinent to willful blindness because it provides circumstantial evidence of Motive's state of mind and intent at the time of the 2016 letter. Nor is Omnitracs precluded from raising the issue at this juncture, as no deadline was set for raising the spoliation issue. In sum, the deletion of the documents is relevant, and the probative value of the evidence at issue outweighs the danger of unfair prejudice.

In its opposition to this motion, Omnitracs requested an adverse inference instruction. Such an instruction does not appear appropriate in this case, though the issue may be re-raised at the close of evidence in the charging conference. Fuglewicz's 2016 email does not provide a clear indication that patent litigation was highly probable, and certainly, it would seem less probable by March 2018, when nineteen months had passed since the email without any notice letter or lawsuit. Also, the destruction appears to have been pursuant to a routine document retention policy, which should have been suspended in anticipation of litigation, but was not. The conduct is not so culpable as to support an inference that the documents were destroyed because they were adverse to Motive's interests.

MIL No. 9 to exclude evidence pertaining to Omnitracs, except as needed to explain historical transactions and/or alleged practicing products: Denied. Omnitracs has submitted evidence supporting its right to sue to enforce the Asserted Patents as an implied exclusive licensee, including evidence that XRS and SmartDrive are wholly-owned subsidiaries of Omnitracs, that Omnitracs has products practicing those Asserted Claims, and that the technology has otherwise not been licensed. See Atmel Corp. v. Authentec, Inc., 490 F. Supp. 2d 1052, 1053, 1055 (N.D. Cal. 2007) (finding that parent company had standing as an implied exclusive licensee on these bases).² Motive contends that Omnitracs' implied license is not exclusive. Motive may rebut that evidence at trial. In a separate filing (Dkt. No. 384), Motive also raises the argument that Omnitracs failed to disclose this theory earlier in the case. Even if that argument were considered despite not having been raised in the briefing of the motion in limine, it would not change the result. Patent Local Rule 3.2, on which Motive relies, requires production of documents, not an explanation of theories or contentions. Omnitracs, however, contends that the implied license was not reduced to writing, so there was no document to be produced. Motive identifies no barrier to having sought discovery regarding Omnitracs' standing to sue earlier in the case.

II. OMNITRACS' MOTIONS IN LIMINE

MIL No. 1 to exclude good-faith belief of noninfringement as a defense to willful infringement: Granted in part and denied in part. Motive may not present any evidence of its investigation in response to the 2018 notice letters, because Motive has declined to provide discovery on that topic and has asserted attorney-client privilege over it. Furthermore, if Motive plans to introduce into evidence the correspondence following the 2018 notice letters, Motive must redact any mention of the investigation performed solely by its attorneys, as well as any other information for which the sole basis of that information is counsel's investigation. For example, Motive must redact in its August 6, 2018 response letter the following phrases: (1) “For that reason, we have conducted an investigation into the circumstances of Dan Fuglewicz's time with KeepTruckin”; (2) “Regardless, we have found nothing from his tenure with our company to lead us to believe that he acted in any way even remotely improper.” (Dkt No. 366-06.) Furthermore, the phrase “from a preliminary review, there appear to be several differences between the patents and our technology” must be redacted if that conclusion was formed solely on the basis of attorney investigation. (Id.)

As for the September 25, 2018 reply letter, Motive must redact the following sentences: (1) “We appreciate that you have conducted an internal investigation regarding your employment of our former employee and inventor, Dan Fuglewicz.”; (2) “In particular, would you be willing to share details about your investigation?” (Dkt. No. 366-07.) As for the October 15, 2018 letter from Alice Sansone, the following phrasing must be redacted: “In response to your September 25, 2018 letter to Mr. Makani, I must inform you that we decline to share any further details at this time regarding our evaluation of Mr. Fuglewicz's employment. As you might appreciate, disclosing those sorts of details would raise serious privacy concerns. Beyond that[.]” (Dkt. No. 366-08.) Moreover, if the conclusion that “our products seem to have several differences from Omnitracs' patents” is solely derived from attorney review, that language and the subsequent analysis should be redacted as well. (Id.)

As detailed above with regard to Motive's MIL No. 5, failure to redact this information—or introducing this type of evidence through other means—will be construed as Motive opening the door and waiving the privilege as to additional questions about the investigation by the attorneys. If Omnitracs believes that the door has been so opened, counsel must raise the issue outside the presence of the jury prior to asking questions on that basis, and the appropriate remedy should be discussed in light of the lack of discovery previously provided on this topic.

Otherwise, Omnitracs' motion is denied. Motive may present evidence of its good-faith belief of noninfringement on other independent bases, such as testimony that Motive's practice was to independently build its products, that Makani was aware of significant differences in the products based on something other than attorney investigation, and the like.

MIL No. 2 to exclude evidence that Omnitracs was a failing company, downsized itself, was falling behind in the market, or was falling behind in demand prior to the SmartDrive acquisition in September 2020: Granted in part and denied in part. Motive is precluded from arguing to the jury that Omnitracs brought the lawsuit because its business was otherwise suffering. Such an argument would be unfairly prejudicial and would not bear on the elements of any claim asserted. Indeed, Motive has already disavowed its intent to make such an argument. The motion is otherwise denied. The evidence at issue is relevant to Panduit factor 3, which concerns Omnitracs' capacity to manufacture, distribute, market, and sell the accused products being sold by the infringer. If Omnitracs was having outages, customer service problems, and hardware breakdowns during software updates from 2018 to the summer of 2020, that is recent enough to be relevant to Omnitracs' capacity to take on additional sales after September 2020. Also, as to SmartDrive, Omnitracs' damages expert Bergman relies on Omnitracs' capacity to make the additional sales at issue, which is consistent with Omnitracs' contention that it is an implied exclusive licensee. (Ex. 10 at ¶ 260.) Accordingly, the evidence at issue is relevant and more probative than unfairly prejudicial.

III. OTHER PRETRIAL MATTERS

A. Trial Schedule

Counsel should plan to be present and ready to proceed at 8:15 a.m. regarding any issues to be handled outside the presence of the jury. If there are no evidentiary issues to discuss in the morning, counsel need not arrive until 8:45 a.m. Typically, the morning break will be at 10:30 a.m., the lunch break from 12-1 p.m., and the afternoon break at 2:45 p.m. Court will end by 4:00 p.m. The court will be available through noon on Friday, April 25, for jury deliberations (or trial, in the event of unexpected emergency delays) and will be dark that afternoon.

Because of a high number of trials scheduled to begin April 14, including a criminal trial with higher priority than this one, there is a slim possibility that jury selection may need to be conducted the prior week. If that occurs, jury selection would occur on April 11 at 9:00 a.m. Opening statements and the presentation of evidence would still begin on April 14. The Court will confirm by April 4.

B. Time Limits

Although the trial is scheduled for nine court days, time will need to be reserved for jury selection, jury questions to witnesses (which are not charged to either side), and jury instructions, as well as a charging conference after the close of evidence, in addition to the presentation of evidence and argument by the parties. Accordingly, the parties will be allotted 18 hours each, inclusive of time for opening statements and closing arguments.

C. Jury Questionnaires

The parties' proposed additions will be included in the juror questionnaire, except that the question about juror availability will be revised as below to ensure that jurors will be available in the event that deliberations continue into the following week:

This trial is scheduled to run from April 14 to April 30, from 9am to 4pm, with a lunch break from 12-1pm. The trial will not be in session on Tuesday, April 29. This schedule, which is an overestimate, includes time for jury deliberations, but it is up to the jury how long it deliberates. The Court understands that jury service imposes a burden on jurors but is nonetheless an important civic duty. Is there anything about your health, life circumstances, or upcoming schedule that would make it exceptionally difficult for you to serve as a juror during that time period? Please note, if you are found to be not available for this case, you may not be excused entirely but may simply be moved to a different date.

In addition, questions 18-22 in the “Background questions” section of the court's standard civil jury questionnaire will be deleted, as they are not pertinent.

Questionnaire answers will be provided to the parties by April 7. An excusal hearing will be held on April 9 at 10:00 a.m. to discuss which jurors will be dismissed for hardship or, with the stipulation of the parties, for cause based solely on the questionnaire answers.

D. Schedule for Raising Mid-Trial Evidentiary Issues

The Court appreciates the parties' proposal for raising mid-trial evidentiary issues, and adopts it. The Court's understanding is as follows. If, for example, a party will be presenting witnesses on Thursday:

• Tuesday at 6:30 p.m.: The proponent will disclose its anticipated witnesses and exhibits for Thursday.

• Tuesday at 9:00 p.m.: The opposing party will disclose objections.

• Tuesday at 9:30 p.m.: The parties will meet and confer about the objections.

• Wednesday at 7:30 a.m.: The parties will disclose to one another any additional issues that will be raised with the court.

• Wednesday at 8:15 a.m.: Evidentiary disputes about the proponent's witnesses and exhibits will be discussed on the record in court. If additional briefing is to be permitted, it will be authorized at this time and will be in the form of simultaneous briefs of no longer than five pages due at 5:00 p.m. Wednesday, to allow review prior to the Thursday presentation.

• Wednesday at 6:30 p.m.: Exhibits to be used in cross-examination by the opposing party (other than impeachment) will be disclosed. This includes exhibits admitted into evidence, as there may be anticipated evidentiary objections regarding the questioning of a particular witness with an admitted exhibit.

• Wednesday at 9:00 p.m.: The proponent of the witness will disclose objections to the exhibits to be used in cross-examination.

• Wednesday at 9:30 p.m.: The parties will meet and confer about those objections.

• Thursday at 7:30 a.m.: The parties will disclose to one another any additional issues that will be raised with the court about the cross-examination.

• Thursday at 8:15 a.m.: Evidentiary disputes about cross-examination will be discussed on the record in court. If the parties believe additional briefing should be submitted because the issue is particularly complex, they may request leave to do so, and should be prepared to provide simultaneous briefs of no longer than five pages at the 8:15 a.m. conference, if authorized, to allow a ruling prior to the cross-examination at issue.

E. Introducing Emails Produced by Motive through Omnitracs' Experts

All evidence must be authenticated to be admissible. However, the parties are expected to work together and stipulate as to non-controversial evidentiary issues. If Motive is unwilling to stipulate that the emails at issue originated from its systems and that the authors and/or recipients are Motive employees, and the presentation at trial demonstrates that there was no genuine dispute about that topic, Omnitracs may request that the time to lay the foundation as to that topic be charged against Motive's allotted hours. The same policy applies generally to laying the foundation for evidence throughout the trial.

Once the issue of authentication is settled, most of the emails would likely be admissible without further foundation as statements of a party opponent. Statements of non-Motive employees are likely admissible not for the truth but to explain the statements of the Motive employees made in response. However, the determination would need to be made on an email-by-email basis in light of potential Rule 403 issues or other double hearsay concerns. The parties are expected to meet and confer as to the specific individual emails at issue. As noted in the applicable standing order, the prevailing party may ask that the losing party be charged for the time discussing mid-trial evidentiary issues, which will almost certainly occur if the losing party's argument lacked any legitimate basis.

F. Sealing of the Courtroom, Transcripts, and Exhibits

There is a strong presumption in favor of public access to the courtroom and court records. Sealing the courtroom is particularly disfavored. Any additional requests beyond those raised at the pretrial conference to have the courtroom sealed for portions of a particular witness's testimony must be raised in a joint filing no later than 7 days prior to the excusal hearing, and must explain why displaying the information on the evidence presentation screens with witnesses and attorneys refraining from reading it aloud (or using shorthand or acronyms) would be insufficient. The parties shall submit any motions to seal or redact portions of the trial transcript or exhibits within 21 days after the verdict is returned or the trial otherwise ends. Also, parties shall state on the record during trial when a portion of the testimony at issue is confidential and will be requested to be sealed, in order to simplify the process afterwards.

IT IS SO ORDERED.

FOOTNOTES

1.   The email refers only to “XRS,” but it appears to refer to XRS Relay, rather than Turnpike, which is separately mentioned.

2.   These agreements need not be in writing for Omnitracs to have standing. Because the patent-holders are also part of the suit, there is no need for Omnitracs to be an exclusive licensee with all substantial rights, a type of license that must be conferred by writing, to bring this case. See Enzo APA & Son v. Geapag A.G., 134 F.3d 1090, 1093–94 (ed. Cir. 1998); Atmel, 490 F. Supp. 2d at 1054 n.1.

RITA F. LIN United States District Judge