                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

In re: Motion of Burlodge Limited                     )
for Reconsideration of the Court’s                    )
April 28, 2009 Memorandum Opinion                     )
                                                      )
BURLODGE LIMITED,                                     )
                                                      )
                       Petitioner,                    )
                                                      )
                       v.                             )   Misc. Action No. 08-525 (CKK/JMF)
                                                      )
STANDEX INTERNATIONAL CORP. and                       )
DEPARTMENT OF VETERANS AFFAIRS,                       )
                                                      )
                       Respondents.                   )
                                                      )


                                   MEMORANDUM OPINION

       Currently before the Court is Burlodge Limited’s Motion for Reconsideration, which was

filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Motion of Burlodge

Limited for Reconsideration of the Court’s April 28, 2009 Memorandum Opinion Pursuant to

Rule 59(e) of the Federal Rules of Civil Procedure [#18]. The Motion for Reconsideration seeks

an amendment of the Court’s April 28, 2009 Memorandum Opinion, which denied Burlodge

Limited’s Motion to Compel the Department of Veterans Affairs’ compliance with its subpoena.

       In this Opinion I conclude that the information Burlodge seeks insofar as it pertains to

damages is irrelevant to the motion for summary judgment that is pending in Tennessee. While

information as to the actual use of the carts might be relevant to that motion, the burden to the

United States of producing the information overwhelms Burlodge’s need for it particularly when

there is a substantial possibility that Standex can never be sued for infringement based on the

United States’ use of the carts.
                                     I.        BACKGROUND.

       The defendant and counter-plaintiff, Burlodge Limited (“Burlodge”), manufactures and

sells “retherm carts,” products which customers use to practice Burlodge’s patented method of

preparing and dispensing food. Motion of Burlodge Limited for an Order Compelling the

Department of Veterans Affairs to Comply with Subpoena [#1] (“Mot. to Comp.”) at 2. The

plaintiff and counter-defendant, Standex International Corporation (“Standex”), also

manufactures and sells retherm carts. Unlike Burlodge, however, Standex cannot “grant its

customers the right to use the retherm carts to practice the patented method” because Burlodge

owns the exclusive rights to the patent. Id.

       Burlodge has filed a counterclaim against Standex, alleging contributory infringement of

its patent.1 Burlodge served a subpoena upon the Department of Veterans Affairs (“DVA”), a

third-party which Burlodge claims purchased retherm carts from Standex to practice Burlodge’s

patented method. Although Burlodge has not filed suit against the DVA, Burlodge claims that it

needs the subpoenaed information to prove the element of “direct infringement” in its suit

against Standex.2 Burlodge’s Motion to Compel the DVA’s compliance with its subpoena and

Burlodge’s subsequent Motion for Reconsideration form the basis of the dispute in this case. Id.

       In its Motion to Compel the DVA’s compliance, Burlodge discussed in detail the


       1
         Standex originally filed this suit seeking a judicial declaration that it “does not infringe
the patent owned by Burlodge [].” Id. at 3. Subsequently, Burlodge filed its counterclaim
against Standex. Id. The underlying matter is pending before the U.S. District Court for the
Middle District of Tennessee. Memorandum Opinion [#16] (“Op.”) at 1.
       2
         Id. at 4. In order to prove contributory infringement, Burlodge must prove that there
was a direct infringement by a third-party (the DVA). Aro Mfg. Co. v. Convertible Top
Replacement Co., 377 U.S. 476, 482 (1964) (“for it is well settled that if there is no direct
infringement of a patent there can be no contributory infringement”).

                                                  2
purported relevance of its requests.3 Not once during this discussion, however, did Burlodge

assert that any of the requested information was relevant to the issue of damages. Burlodge

explained that it sought the information from the DVA rather than from Standex because

“[u]nfortunately, Standex would not provide details as to how the DVA facilities use / used these

Standex manufactured retherm carts.” Id. at 2.

       Subsequently, this Court denied Burlodge’s Motion to Compel. Order Denying Motion

to Compel [#15] (“Order”) at 1. First, the Court reasoned, most of the discovery sought is

“obtainable from some other source that is more convenient, less burdensome, or less

expensive.” Op. at 11. Burlodge appeared to ignore the availability of “resources and remedies .

. . under the Federal Rules of Civil Procedure to compel Standex to produce relevant information

in the discovery process.” Id. at 13. Second, the discovery sought concerning Standex’s profits

and revenues is “irrelevant” to Burlodge’s “central inquiry.”4 Moreover, the Court explained

“patent laws do not concern themselves with the infringer’s profits . . . but rather with the patent

holder’s damages . . . .” Id. at 12.




       3
         Burlodge explained that the sought information is relevant to the underlying suit
because it relates “to the food dispensation cycle and methods which are at the center of the
patent infringement action . . . to the purchase of Unitron systems sold by Standex to the DVA as
well as the methods employed by the DVA in producing and dispensing food . . . [and] to
inspection of the Unitron equipment at issue in the patent infringement action and how the []
equipment is used in the entire dispensation cycle.” Id.
       4
         Id. at 12. Burlodge asserted that the discovery it sought from the DVA was for the
purposes of learning “who purchased the retherm carts from Standex, and whether the retherm
carts were used to practice Burlodge’s patented method of dispensing food.” Mot. to Comp. at 2.

                                                 3
                        II.      SUMMARY OF THE ARGUMENTS.

A.     Burlodge’s Arguments in Support of its Motion.

       Burlodge argues that the Court should grant its Motion for Reconsideration because the

Court erred in stating that “patent laws do not concern themselves with the infringer’s profits

from the infringement, but rather with the patent holder’s damages.” Burlodge Limited’s

Memorandum in Support of Motion for Reconsideration of the Court’s April 28, 2009

Memorandum Opinion Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure [#18]

(“Supp. Mem.”) at 1. Therefore, Burlodge argues, the Court also erred in determining that

information concerning the DVA’s profits and revenues was irrelevant, as it pertains to the

calculation of damages. Id. at 6-9. In support of this argument, Burlodge cites Federal Rule of

Civil Procedure 26(b), which permits broad discovery of any non-privileged, relevant matter that

could reasonably lead to discoverable information. Burlodge Limited’s Reply to the United

States’ Opposition to Burlodge’s Motion for Reconsideration of the Court’s April 28, 2009

Order [#20] (“Reply”) at 4 (citing Fed. R. Civ. P. 26(b)).

       Burlodge also argues that the sought information is not available from a less burdensome

source because Standex “has admittedly destroyed or otherwise failed to retain documents . . .

when the Standex USECO facilities went out of business.” Supp. Mem. at 10.

B.     The United States’ Arguments in Opposition to Burlodge’s Motion.

       First, the United States argues that Burlodge has waived its right to argue that the DVA’s

profits and revenues are relevant and that the information sought is not obtainable from a less

burdensome source because Burlodge failed to raise these issues in its Motion to Compel.

United States’ Opposition to Burlodge’s Motion for Reconsideration of the Court’s April 28,


                                                 4
2009 Order [#19] (“Opp’n”) at 2-3. The United States claims that this information is not “new

evidence,” but rather the “argument and exhibits . . . were known at the time Burlodge filed its

motion to compel.” Id. at 5.

       Second, the United States argues that even if Burlodge had asserted the relevance of the

DVA’s profits and revenues, such information would still be undiscoverable. Id. at 3. The

United States claims that information related to the DVA’s profits and revenues would be

discoverable only in an action “against the government alone under 28 U.S.C. § 1498(a),” and

not in an action against Standex. Id. at 3-4.

       The Government further asserts that Burlodge’s Motion should be denied because of the

“prematur[ity]” and “disruptive[ness]” of Burlodge’s “demand to inspect the DVA premises.”

Id. at 6. The United States claims that Burlodge “is attempting to engage in a fishing expedition

against the government to seek information when it admittedly has no prima facie evidence that

the government is directly infringing claims of its patent.”5

                                      III.      ANALYSIS.

A.     Standard of Review.

       Burlodge’s Motion for Reconsideration “is properly construed as a motion to alter or

amend a final judgment pursuant to Federal Rule of Civil Procedure 59(e).”6 Motions filed


       5
          Id. at 6. Because the Court pursuant to Burlodge’s Motion to Compel does not
constitute a report and recommendation, the United States’ argument that Burlodge improperly
styled its Motion as a Motion for Reconsideration rather than as “Objections to the Magistrate
Judge’s Proposed Findings and Recommendations” does not warrant discussion. Id. at 1 n.1.
       6
        Int’l Painters & Allied Trade Indus. Pension Fund v. Design Tech., 254 F.R.D. 13, 17
(D.D.C. 2008). The Court ‘s Order denying Burlodge’s Motion to Compel was entered on April
28, 2009. Order at 1. Burlodge filed its Motion for Reconsideration on May 12, 2009. Supp.
Mem. at 13. Excluding “intermediate Saturdays [and] Sundays,” Burlodge’s motion was filed

                                                 5
under Rule 59(e) are generally “disfavored” and are “granted only when the moving party

establishes extraordinary circumstances.” Int’l Painters, 254 F.R.D. at 18 (quoting Niedermeier

v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001)). District courts have considerable

discretion to grant or deny Rule 59 motions; such motions “need not be granted unless the

district court finds that there is an intervening change of controlling law, the availability of new

evidence, or the need to correct clear error or manifest injustice.” Id. (citing Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam) (internal quotations omitted)); see

Black v. Tomlinson, 235 F.R.D. 532, 533 (D.D.C. 2006). Further, motions for reconsideration

may be granted when “there were facts or legal issues properly presented but overlooked by the

court in its decision.” Blue Mountain Mushroom Co. v. Monterey Mushroom, Inc., 246 F. Supp.

2d 394, 398-99 (E.D. Pa. 2002). Thus, Rule 59(e) motions to alter or amend a judgment are “not

routinely granted.” Harvey v. District of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996).

B.     The Court need not amend its order to correct clear error.

       A Rule 59(e) motion to alter or amend a judgment may be granted “to permit the court to

correct errors of fact appearing on the face of the record, or errors of law.” Andreen v. Lanier,

582 F. Supp. 2d 48, 50 (D.D.C. 2008) (quoting Indep. Petroleum Ass’n of Am. v. Babbitt, 178

F.R.D. 323, 324 (D.D.C. 1998)). To persuade a district court to grant its motion on the basis of

clear error, the movant must persuade the court that “an error of law or fact [exists] which

compels a change in the court’s ruling.” Consol. Edison Co. of New York, Inc. v. O’Leary, 184

F.R.D. 1, 2 (D.D.C. 1998), aff’d, 230 F.3d 1379 (Fed. Cir. 2000).




within the requisite period of ten days from the date of the order, as required to constitute a Rule
59(e) motion for reconsideration. Fed. R. Civ. P. 6(a)(2) and 59(e).

                                                  6
       First, the Court concedes that its statement that “patent laws do not concern themselves

with the infringer’s profits from the infringement, but rather with the patent holder’s damages,

i.e. the amount it would have made if the infringement never occurred,” did not consider that

some courts choose to consider an infringer’s profits when calculating a reasonable royalty.

Although an infringer’s profits and revenues are not relevant to the patentee’s ability to prove

infringement, they are “one measure” which can be used to calculate damages. See Standard

Mfg. Co. v. United States, 42 Fed. Cl. 748, 758-59 (Ct. Fed. Cl. 1999); Brunswick Corp. v.

United States, 36 Fed. Cl. 204, 211-12 (Ct. Fed. Cl. 1996) (citing Georgia-Pac. Corp. v. U.S.

Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970)) (discussing 15 Georgia-Pacific

factors courts use to determine reasonable royalty and noting that courts sometimes look at

infringer’s profits as an additional factor). Both the “profits made by the infringer during the

period of infringement” and the “savings to the infringer derived from using the patent without

paying a royalty” are factors upon which the calculation of a reasonable royalty may be based.

60 Am. Jur. 2d Patents § 957 (2009); see Philp v. Nock, 84 U.S. 460, 462 (1873) (explaining that

when actual damages cannot be calculated, damages must be based on elements which include

the “profit made by the defendant and that lost by the plaintiff”); Decca Ltd. v. United States,

640 F.2d 1156, 1167 (Ct. Cl. 1980) (because government takes licenses by eminent domain

rather than infringing patents, proper amount of compensation is “reasonable and entire

compensation” which can be determined in many ways, including reasonable royalty,

determination of government cost savings, and lost profits), cert. denied, 454 U.S. 819 (1981).

       As the alleged infringer, evidence of the DVA’s profits, to the extent a government

agency can be said to have reaped “profits,” and cost savings would be relevant, but a finding of


                                                 7
relevance does not end the inquiry. Federal Rule of Civil Procedure 26(b)(2)(C)(iii) states that

“the court must limit . . . discovery otherwise allowed by these rules . . . if it determines that . . .

the burden or expense of the proposed discovery outweighs its likely benefit, considering the

needs of the case, the amount in controversy, the parties’ resources, the importance of the issues

at stake in the action, and the importance of the discovery in resolving the issues.” The

discovery sought from the DVA would be tremendously burdensome. Even focusing solely on

the requests that pertain to profits and losses, Burlodge asks the DVA to identify a 30(b)(6)

witness for each of the approximately 40 DVA facilities who can testify as to the costs to

prepare, deliver, and dispense a meal as well as information about how costs are billed.

        Further, while Burlodge apparently ascribes no significance to the fact that the DVA is a

federal government entity, the law takes a contrary position. Title 28 U.S.C. § 1498(a) provides:

                “Whenever an invention described in and covered by a patent of
                the United States is used or manufactured by or for the United
                States without license of the owner thereof or lawful right to use or
                manufacture the same, the owner’s remedy shall be by action
                against the United States in the United States Court of Federal
                Claims for the recovery of his reasonable and entire compensation
                for such use and manufacture.”

28 U.S.C. § 1498(a). While the provision does not deprive the court of jurisdiction to determine

whether the affirmative defense applies, I feel it prudent, given how burdensome this discovery

would be, to consider the likelihood that any claim against Standex arising out of the DVA’s

alleged patent infringement can go forward.

        The weight of authority suggests that § 1498(a) is more than simply the government’s

waiver of sovereign immunity, but also “operates to relieve the contractor entirely from liability

of every kind for the infringement of patents in manufacturing anything for the government.”


                                                    8
Robishaw Eng’g, Inc. v. United States, 891 F. Supp. 1134, 1140 (E.D. Va. 1995) (quoting

Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 343 (1928)); see also Advanced

Software Design Corp. v. Fed. Reserve Bank of St. Louis, No. 07-CV-185, 2007 WL 3352365,

at *1 (E.D. Mo. Nov. 9, 2007) (dismissing infringement and inducement claims against

defendant in connection with certain Federal Reserve banks, but retaining claims that related to

private entities); Van Meter v. United States, 47 F.2d 192, 195 (2d Cir. 1931) (“The contractor

was held liable for all contributory infringement up until the 1918 amendment. The amendment

providing for the entire compensation takes away the right of suit against the contractor).

       The purpose of the statute was to “permit the government to purchase goods or services

for performance of governmental functions without the threat that the work would not be carried

out because its supplier or contractor was enjoined from or feared a suit for infringement of a

patent.” Windsurfing Int’l v. Ostermann, 534 F. Supp. 581, 587 (S.D.N.Y. 1982); see also Wood

v. Atlantic Gulf & Pac. Co., 296 F. 718, 720-21 (S.D. Ala. 1924) (quoting Letter from Acting

Secretary of the Navy Franklin D. Roosevelt to Senator Benjamin R. Tillman (Apr. 20, 1918)

(proposing an amendment to the predecessor of § 1498 to extend immunity, which at the time

covered only direct government action and contributory infringement on the part of third parties,

to cover contractors generally)). There cannot be any dispute that the offensive use at issue here

was “by” the government; Burlodge is seeking this information specifically for the purpose of

proving that the DVA infringed its patents. Thus the typical dispute over whether the entity

infringing the patent is doing so for the government is unnecessary here – the entity allegedly

using the patent is the government. It follows, necessarily, that in order to prevail on its claims,

Burlodge has to prove that the government infringed its patents. See Robishaw, 891 F. Supp. at


                                                  9
1144-45 (“[T[he fact that § 1498 provides an exclusive remedy cannot mean that district courts

lack jurisdiction over every action in which the government’s use of a patented invention is an

issue. . . . [C]ourts must carefully distinguish cases in which the government’s use of patents and

its possession of patent licenses are merely incidental issues, from cases in which such issues are

the gravamen of the action.”). Though the issue is not squarely before this Court, I find that it is

exceedingly likely that Standex will be able to prevail on an affirmative defense of governmental

immunity under § 1498, and it would be unduly burdensome to order extensive and intrusive

discovery against the DVA until that issue has been litigated in the underlying case.

       I have reviewed the motions filed in Tennessee and I appreciate that Standex has not

specifically argued in moving for summary judgment that it cannot be sued because of § 1498.

Nevertheless, I am confronted with Standex’s motion for summary judgment in the Tennessee

court and I cannot possibly say at this point that it is frivolous with no hope of success.

Furthermore, the discovery sought from the federal agency, pertaining to damages, cannot have

any bearing whatsoever on the validity of the summary judgment motion that seeks a

determination of liability; in the Tennessee case the question of damages is premature until the

motions for summary judgment are resolved. It is settled beyond all question that a court may

stay discovery against a party when that party has moved to dismiss and the discovery sought

will have no bearing on the resolution of the motion. See Bigelow v. Dep’t of Defense, 217 F.3d

875, 878 (D.C. Cir. 2000), cert. denied, 532 U.S. 971 (2001); White v. Fraternal Order of Police,

909 F.2d 512, 517 (D.C. Cir. 1990). Thus, had the underlying case also been before Judge

Kollar-Kotelly, she would have acted well within her discretion by staying enforcement of the

subpoena as to damages issues until she resolved the motion for summary judgment in the


                                                 10
absence of any showing that the discovery sought by the subpoena was crucial to the resolution

of the motion. That the subpoena enforcement is here and the motion for summary judgment is

in Tennessee does not make any difference in the application of that principle. Indeed, it would

be, in my view, an abuse of discretion to enforce the subpoena before resolution of the motion

for summary judgment if the discovery was sought by Burlodge from Standex before Standex’s

motion was resolved. If that is true of a party opponent, it is a fortiori true when the burden of

responding to the subpoena falls on a third party, or more particularly, the taxpayers who would

have to pay for the discovery Burlodge seeks.

       Rule 61 of the Federal Rules of Civil Procedure provides that:

                       Unless justice requires otherwise, no . . . error by
                       the court . . . is ground for . . . vacating, modifying,
                       or otherwise disturbing a judgment or order. At
                       every stage of the proceeding, the court must
                       disregard all errors and defects that do no affect any
                       party’s substantial rights.

Fed. R. Civ. P. 61. The doctrine of harmless error holds that, when “in all likelihood, [the error]

would not have affected the result” the Court need not disturb its judgment or order. Doe v.

Hampton, 566 F.2d 265, 277-78 (D.C. Cir. 1977). “[C]ourts should not upset a decision because

of errors . . . that are not material.” Ommaya v. Nat’l Inst. of Health, 726 F.2d 827, 830 (D.C.

Cir. 1984) (citing Delta Air Lines, Inc. v. Civil Aeronautics Bd., 564 F.2d 592, 598 (D.C. Cir.

1977)). “[E]rror is harmless unless it has a ‘substantial and injurious effect.’” Id. (citing

Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

       This Court erred by stating that evidence concerning an infringer’s profits and revenues

is not relevant to the calculation of damages; generally, such evidence is relevant. In the-case-at-

hand, however, evidence of the DVA’s profits and revenues is not discoverable. Beyond all

                                                 11
likelihood, the Court would have rendered the same decision–denial of Burlodge’s Motion to

Compel–in the absence of its error; therefore, the Court’s error was harmless. See United States

v. Nicolapolous, 30 F.3d 381, 383-84 (2d Cir. 1994) (finding that a plaintiff’s failure to disclose

evidence was harmless when the evidence was irrelevant (except as to the defendant’s ability to

impeach a witness, but the defendant already had sufficient evidence for this purpose)), cert.

denied, 513 U.S. 1059 (1994).

C.     The Court need not amend its order in consideration of “new” evidence.

       District courts may deny Rule 59(e) motions for reconsideration if, in such motions, the

movant asserts new arguments and facts which were available to it before the pertinent

judgement was rendered. Taylor v. Dep’t of Justice, 268 F. Supp. 2d 34, 35 (D.D.C. 2003); In re

Reading Broadcasting, 386 B.R. 562, 567-68 (Bankr. E.D. Pa. 2008). A “Rule 59(e) motion is

not a second opportunity to present argument upon which the Court has already ruled, nor is it a

means to bring before the Court theories or arguments that could have been advanced earlier.”

W.C. & A.N. Miller Co. v. United States, 173 F.R.D. 1, 3 (D.D.C. 1997), aff’d per curiam, No.

99-CV-5010, 1999 WL 414253 (D.C. Cir. 1999); see also Aikens, 956 F. Supp. at 23.

       Here, Burlodge has waived its right to assert both the relevance of the discovery it seeks

and also the unavailability of the information from a less burdensome source.7 Burlodge asserts

for the first time in its Motion for Reconsideration that some of the documents it sought from the

DVA–including those which Standex would have supplied to its customers who purchased



       7
        The issues which Burlodge now raises were not “properly presented [in Burlodge’s
Motion to Compel] but overlooked by the court in its decision.” Supp. Mem. at 3 (citing Blue
Mountatin Mushroom Co., 246 F. Supp. 2d at 398-99). Rather, these issues were not presented
at all.

                                                12
retherm carts–are not available from Standex. Supp. Mem. at 10. Burlodge explains that

“Standex [] has admittedly destroyed or otherwise failed to retain documents when the Standex

USECO facilities went out of business.” Id. This argument, however, is not based upon “new

evidence.”

       “New evidence,” as the term is employed in Rule 59(e), constitutes evidence which is

“newly discovered or previously unavailable despite the exercise of due diligence.” Int’l

Painters, 254 F.R.D. at 18-19 (denying a motion for reconsideration when the movant introduced

information which was “previously available”) (citing Niedermeier, 153 F. Supp. 2d at 29). As

the United States correctly argues:

                       The argument and exhibits provided to support
                       [Burlodge’s] claim were known at the time
                       Burlodge filed its motion to compel and/or before
                       Judge Facciola issued his [order]. Burlodge’s
                       motion to compel was filed on August 29, 2008,
                       and it filed its reply brief on October 14, 2008. The
                       exhibits that Burlodge now uses to support this
                       argument predate such filing.

Opp’n at 5. Thus, no new information has emerged since the time the Court issued its Order

which might compel an amendment.

D.     The Court need not amend its order to prevent manifest injustice.

       “[C]ourts have not precisely defined what constitutes ‘manifest error.’” Int’l Painters,

254 F.R.D. at 19. Still, “the D.C. Circuit has indicated that ‘manifest injustice does not exist

where, as here, a party could easily have avoided the outcome, but instead elected not to act until

after a final order had been entered.’” Id. (quoting Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir.

2004)). The purpose of Rule 59(e) motions is not to allow a movant to assert facts which it

could have asserted before an order was rendered. Taylor, 268 F. Supp. 2d at 35. The standard

                                                 13
of proving manifest injustice is “a high one.” Conway v. A.I. duPont Hospital for Children, No.

04-CV-4862, 2009 WL 1492178, slip op. at *6 (E.D. Pa. May 26, 2009).

       As discussed above, Burlodge did not argue that the information was unavailable from

less burdensome sources in its Motion to Compel, even though it was aware of the issue.

Likewise, Burlodge failed to supplement its Motion to Compel by bringing this issue to the

Court’s attention before it issued its Order. Burlodge could have “easily [] avoided the

outcome,” but because Burlodge “elected not to act until after a final order had been entered,”

this Court does not find the existence of manifest injustice.

                                     IV.     CONCLUSION.

       For the reasons discussed herein, Burlodge’s Motion [#18] will be denied. An Order

accompanies this Memorandum Opinion.

                                                                      Digitally signed by John
                                                                      M. Facciola
                                                                      Date: 2009.09.03 09:05:38
                                                      ______________________________
                                                                      -04'00'
                                                                JOHN M. FACCIOLA
                                                                U.S. MAGISTRATE JUDGE




                                                 14
