Reserve Media, Inc. v. Efficient Frontiers, Inc.

Filing 235

AMENDED ORDER GRANTING IN PART DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT 106 by Judge Dean D. Pregerson (SEE DOCUMENT FOR SPECIFICS). (lc). Modified on 11/29/2016. (lc).

O

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12

RESERVE MEDIA, INC.,

13

Plaintiff,

14
15
16

v.
EFFICIENT FRONTIERS, INC., et al.,

17
Defendants.

18

)
)
)
)
)
)
)
)
)

Case No. CV 15-05072 DDP (AGRx)
AMENDED ORDER GRANTING IN
PART DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
[Dkt. 106]

19
20

Presently before the court is Plaintiff and Counter-Defendant Reserve Media,

21

Inc.’s (“Reserve”) Motion for Partial Summary Judgment. After considering the parties’

22

submissions and hearing oral argument, the court adopts the following Order.1

23

I. BACKGROUND

24

Efficient Frontiers, Inc. (“EFI”) has offered software products to companies in the

25

hospitality industry since 1996. (First Amended Counterclaim (“FAC”) ¶¶ 4, 15-17;

26

Declaration of Lynn Carter ¶ 2.) EFI’s products assist with catering and event-

27
28

1 This Order hereby VACATES the court’s October 21, 2016 Order Granting in Part
Defendants’ Motion for Partial Summary Judgment and clarifies that the mark at issue in
the instant motion is EFI’s “RESERVE INTERACTIVE” word mark (Reg. No. 4,382,898)
not EFI’s “Reserve Interactive” design mark (Reg. No. 3,253,603).

1

management, restaurant table management, and dining reservations. (FAC ¶¶ 17-19.) EFI

2

delivers its services through a cloud-based software called “Reserve Cloud” and its web-

3

based counterpart, “Reserve Anywhere.” (FAC ¶ 18.) EFI also offers an iPad-based table

4

management application, “Table iQ,” which helps restaurants maximize seating capacity.

5

(Id.)

6

In 1998, shortly after EFI launched, it provided its software under the name

7

“ReServe.” (Ex B. (“Carter Depo.”), attached to Declaration of Dylan Ruga at 54:10-12; Ex.

8

C (“Ex. 74 to Carter Depo.”), attached to Ruga Decl.) However, in response to a cease-

9

and-desist letter from another company, EFI changed the name of the product to

10

“ReServe Interactive.” (Carter Depo. at 72:21-73:16.) EFI owns a number of trademarks

11

that include the word “Reserve” but only the “RESERVE INTERACTIVE” word mark

12

(Reg. No. 4,382,898), which was obtained in August 2013, is at issue in the present

13

motion. (Carter Decl. ¶ 5.)

14

Reserve Media, Inc. (“Reserve”), a startup company focusing on restaurant

15

technology, was founded around May 2014. (Declaration of Greg Hong ¶ 3.) According

16

to the founders, the company aims to compete with consumer-facing software companies

17

that facilitate restaurant reservations. (Id.) The company was originally called

18

“OwnersTable,” but the founders became interested in the name “Reserve” both for

19

commercial reasons and because the website domain “reserve.com” was available for

20

purchase. (Id.) After changing their name to Reserve Media, Inc., the company began

21

offering products and services using the mark “Reserve,” as depicted below:

22
23
24
25

(Id. ¶ 8.) Reserve offers two primary products to restaurant clients: a mobile app that

26

works with other table management software to enable restaurants to receive mobile

27

payments for meals and a software program called “Reserve for Restaurants” (RFR) that

28

allows restaurants to manage guest books, reservations, and floor space during dining
2

1

service. (Id. ¶¶ 5-7.) Reserve also offers a consumer-facing software program that allows

2

diners to make restaurant reservations through either a mobile app, on the reserve.com

3

website, or on the websites of partner restaurants. (Id. ¶ 6.)

4

On October 21, 2014, EFI first became aware of Reserve’s business after an article

5

on the startup was published online. (Carter Depo. at 295:10-297:2; Exs. D, E, attached to

6

Ruga Decl.) Approximately one week later, EFI sent Reserve a cease-and-desist letter for

7

attempting to use a mark that infringes on EFI’s mark “Reserve Interactive and its

8

variations.” (Ex. 4, attached to Declaration Chaka C. Okadigbo.) The parties attempted to

9

negotiate their trademark dispute but Reserve ultimately filed for declaratory relief that

10

its use of the “Reserve” mark does not infringe on EFI’s trademark rights. (Complaint ¶

11

14.) EFI responded with a counterclaim asserting federal and state causes of action for

12

trademark infringement and unfair competition. (FAC ¶¶ 34-60.) During the pendency of

13

this litigation, Reserve has continued to use the “Reserve” marks in connection with its

14

products and services. (Hong Decl. ¶ 5.)

15

Reserve now moves for partial summary judgment on three issues: 1) whether

16

EFI’s “RESERVE INTERACTIVE” word mark is protectable as a matter of law; 2)

17

whether there is evidence of any willful infringement; and 3) whether there are monetary

18

damages available. (Reserve Mot. Partial Summ. J. (“Mot.”) 2-3.)

19

II. LEGAL STANDARD

20

Summary judgment is appropriate where the pleadings, depositions, answers to

21

interrogatories, and admissions on file, together with the affidavits, if any, show “that

22

there is no genuine dispute as to any material fact and the movant is entitled to judgment

23

as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the

24

initial burden of informing the court of the basis for its motion and of identifying those

25

portions of the pleadings and discovery responses that demonstrate the absence of a

26

genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All

27

reasonable inferences from the evidence must be drawn in favor of the nonmoving party.

28

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not
3

1

bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate

2

that “there is an absence of evidence to support the nonmoving party’s case.” Celotex,

3

477 U.S. at 323.

4

Once the moving party meets its burden, the burden shifts to the nonmoving party

5

opposing the motion, who must “set forth specific facts showing that there is a genuine

6

issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party

7

“fails to make a showing sufficient to establish the existence of an element essential to

8

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex,

9

477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury

10

could return a verdict for the nonmoving party,” and material facts are those “that might

11

affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There

12

is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational

13

trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio

14

Corp., 475 U.S. 574, 587 (1986).

15

It is not the court’s task “to scour the record in search of a genuine issue of triable

16

fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel has an obligation to lay

17

out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.

18

2001). The court “need not examine the entire file for evidence establishing a genuine

19

issue of fact, where the evidence is not set forth in the opposition papers with adequate

20

references so that it could conveniently be found.” Id.

21

III. DISCUSSION

22

A.

Validity of “RESERVE INTERACTIVE” word mark

23

“To prevail on [a] trademark infringement claim,” a party must show that “(1) it

24

has a valid, protectable trademark, and (2) that [the other party’s] use of the mark is

25

likely to cause confusion.” Applied Info. Sciences Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th

26

Cir. 2007). Whether a mark is protectable depends upon whether the mark is distinctive.

27

Zobmondo Entm’t, LLC v. Falls Media, LLC, 602 F.3d 1108, 1113 (9th Cir. 2010). Suggestive,

28

arbitrary, or fanciful marks are considered “inherently distinctive” and are automatically
4

1

entitled to federal trademark protection. Id.; see also Two Pesos, Inc. v. Taco Cabana, Inc., 505

2

U.S. 763, 769 (1992). On the other hand, merely descriptive marks are not automatically

3

deemed distinctive, but may become protectable if the mark acquires secondary

4

meaning. Zobmondo, 602 F.3d at 1113; Two Pesos, 505 U.S. at 769.

5

In the present motion, Reserve contends that EFI’s “RESERVE INTERACTIVE”

6

word mark is not protectable as a matter of law because it is descriptive and has not

7

acquired secondary meaning. EFI responds that its mark is suggestive or, at least has

8

acquired secondary meaning, and thus is entitled to trademark protection. At the outset,

9

EFI also notes that it has registered the “RESERVE INTERACTIVE” word mark and

10

continuously used the mark in commerce for at least five years. In EFI’s view, these two

11

facts qualify the “Reserve Interactive” word mark as an “incontestable mark” under 15

12

U.S.C. § 1115(b), which, among other things, prevents parties from asserting “that [the]

13

mark is invalid because it is descriptive and lacks secondary meaning.” KP Permanent

14

Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 606 (9th Cir. 2005). Registered

15

marks, however, do not automatically become incontestable after five years. Rather, a

16

number of other conditions must be satisfied, including the filing of an affidavit verifying

17

certain information about the mark. See 15 U.S.C. § 1065(4). Here, EFI does not claim that

18

it has filed the necessary affidavit nor has it submitted any evidence to that effect.

19

Accordingly, EFI cannot avail itself of the privileges afforded an incontestable mark.

20

Even if EFI’s mark is not incontestable, “federal registration provides ‘prima facie

21

evidence’ of the mark’s validity and entitles the plaintiff to a ‘strong presumption’ that

22

the mark is a protectable mark.” Zobmondo, 602 F.3d at 1113. This does not mean that the

23

validity of EFI’s mark is immune to challenge but instead it shifts the burden to Reserve

24

“to show by a preponderance of the evidence that the mark is not protectable.” Id. at

25

1114; see also id. at 1115 (“Federal registration in itself does not mean that [a party] can

26

necessarily survive summary judgment solely on the basis of its registration.”). Bearing

27

this consideration in mind, the court evaluates Reserve’s challenge to the validity of EFI’s

28

“RESERVE INTERACTIVE” word mark.
5

1
2

1. Descriptive or Suggestive Mark
“Deciding whether a mark is distinctive or merely descriptive is far from an exact

3

science and is a tricky business at best.” Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1197 (9th

4

Cir. 2009). As a general matter, suggestive marks require “a consumer [to] use

5

imagination or any type of multistage reasoning to understand the mark’s significance.”

6

Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 1047 n. 8 (9th Cir. 1998).

7

By contrast, descriptive marks “define qualities or characteristics of a product in a

8

straightforward way.” Id. “Whether a mark suggests or describes the goods or services of

9

the trademark holder depends, of course, upon what those goods or services are. We

10

therefore adjudge a mark’s strength by reference to the goods or services that it identifies

11

. . . .” Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1142 (9th Cir. 2002) (internal

12

quotations and citations omitted).

13

The Ninth Circuit has typically applied one of two tests to differentiate between

14

suggestive and descriptive marks. Zobmondo, 602 F.3d at 1115. The first, and more

15

common, test is the “imagination” test, which asks whether “imagination or a mental

16

leap is required in order to reach a conclusion as to the nature of the product being

17

referenced.” Rudolph Int’l, Inc. v. Realys, Inc., 482 F.3d 1195, 1198 (9th Cir. 2007) (quotation

18

marks omitted). One routinely used example of a mark that fails the imagination test is

19

“ENTREPENEUR,” which as applied to a magazine was descriptive because “an entirely

20

unimaginative, literal-minded person would understand the significance of the

21

reference.” Entrepreneur Media, 279 F.3d at 1142. The second test is known as the

22

“competitors’ needs” test and it “focuses on the extent to which a mark is actually

23

needed by competitors to identify their goods or services.” Rodeo Collection, Ltd. v. W.

24

Seventh, 812 F.2d 1215, 1218 (9th Cir. 1987). The less a competitor needs to use a particular

25

word to market their goods or services, the more likely it is that the mark is suggestive

26

rather than descriptive. Id. These two tests are complementary rather than independent

27

inquiries as “the more imagination that is required to associate a mark with a product or

28
6

1

service, the less likely the words used will be needed by competitors to describe their

2

products or services.” Zobmondo, 602 F.3d at 1117 (quotations and citations omitted).
Reserve contends that the “RESERVE INTERACTIVE” word mark falls into the

3
4

category of descriptive marks. (Opp’n 8.) Here, EFI’s products at issue facilitate

5

reservations for catering and event-management, enable restaurants to accept

6

reservations, and assist restaurants in managing reservations when diners come in by

7

optimizing table usage. In Reserve’s view, the terms “reserve” and “interactive” serve

8

only to describe characteristics of these products, which are designed to manage various

9

types of reservations through an interactive computer program and interface. In support,

10

Reserve submits the testimony of EFI’s co-founder Lynn Carter acknowledging that the

11

name was selected to “immediately express that this product facilitates reservations.”

12

(Carter Depo. at 54:15-17, 54:24-55:19.) Reserve also notes that the USPTO initially

13

rejected EFI’s trademark application because the mark was descriptive and informed EFI

14

the registration would only be granted if the mark acquired distinctiveness. (Ex. H,

15

attached to Ruga Decl., at 3.). 2 Finally, Reserve explains that it would be challenging for

16

competitors in the table management and dining reservation industry to market their

17

products without relying on the term “reserve.”

18

EFI responds that none of this evidence is dispositive. Specifically, EFI takes issue

19

with Reserve’s reliance on Carter’s deposition testimony because Carter, as a lay person,

20

was not qualified to offer a legal opinion that the “RESERVE INTERACTIVE” word mark

21

is descriptive. EFI also notes that its decision to not contest the USPTO’s conclusion the

22

mark was descriptive, and instead to submit evidence of continuous use, was a strategic

23

choice that should not be construed as a concession that the mark is in fact descriptive.

24

To the contrary, EFI indicates that Reserve’s own position before the USPTO was that its

25

“Reserve” mark was suggestive. EFI also applies the imagination test to explain that

26
27
28

EFI responded to the USPTO determination by claiming the mark had become
distinctive through “substantially exclusive and continuous use in commerce . . . for at
least [] five years . . . “ and the office granted the registration. (See Ex. I, attached to Ruga
Decl. at 2.)
7
2

1

connecting the term “RESERVE INTERACTIVE” to the products at issue requires some

2

degree of imagination. Specifically, EFI explains that a restaurant client will need to

3

exercise some imagination to understand the connection between the phrase “reserve

4

interactive” and a product that does not directly facilitate making reservations. (Opp’n

5

12.) Likewise, a catering client will have to exercise some imagination to link the mark to

6

a product that automates parts of the event management process. (Id.)

7

On this record, the court concludes that the “RESERVE INTERACTIVE” word

8

mark is descriptive. Contrary to EFI’s assertions, almost no “imagination” or “multi-stage

9

reasoning” is required to connect the mark at issue with the products offered by EFI. See

10

Kendall-Jackson Winery, 150 F.3d 1042 at 1047 n.8. Rather, the mark “define[s] qualities or

11

characteristics of [the] product in a straightforward way.” Id. As the Ninth Circuit has

12

explained, “Context is critical to a distinctiveness analysis.” Lahoti, 586 F.3d at 1201; see

13

also 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition (“2

14

McCarthy on Trademarks”) § 11:69 (4th ed. 1996.) (“[I]f others are in fact using the term

15

to describe their products, an inference of descriptiveness can be drawn.”). The

16

dictionary defines “reserve” as “[t]o set (a thing) apart for some purpose,” 13 Oxford

17

English Dictionary (OED) (2d ed. 1989) 701, and “interactive” as “[p]ertaining to or being a

18

computer or other electronic device that allows a two-way flow of information,” 7 OED

19

1086. In the domain of reservation management systems, “Reserve Interactive” does little

20

more than describe characteristics of the products at issue—computer programs that

21

allow a two-way flow of information to set apart something for future use. Indeed,

22

although Carter is not qualified to offer a legal opinion on whether EFI’s mark is

23

descriptive, her testimony only serves to reinforce the conclusion that the mark in

24

question describes the qualities of the products sold. Admittedly, Reserve’s specific

25

software programs primarily enable communication regarding reservations between

26

diner and restaurant while EFI’s products enable communication regarding reservations

27

between commercial clients and other commercial vendors, but the fact that the phrase in

28
8

1

question can describe more than one type of product does not move it from the realm of

2

the descriptive to the suggestive.
The “competitors’ needs” test confirms the court’s conclusion that the “RESERVE

3
4

INTERACTIVE” word mark is descriptive. The court is not aware of, nor has EFI

5

suggested, synonyms to the term reserve that competitors in the reservation-

6

management industry could use to describe their products. Perhaps the closest synonym

7

is “booking,” but, given only these limited options, it is unsurprising that the “reserve”

8

mark is commonplace in the marketplace. Reserve directs the court’s attention to at least

9

a few such marks: “WebReserve,” “DINERESERVE”, “RESERVEDIRECT,”

10

“reserving.com,” and “ReServer.” (Reply 6; Plaintiff’s Request for Judicial Notice.) 3 As

11

the Ninth Circuit has recognized, the fact “that the marketplace is replete with products

12

using a particular trademarked word indicates not only the difficulty in avoiding its use

13

but also, and directly, the likelihood that consumers will not be confused by its use.”

14

Entrepeneur Media, 279 F.3d at 1144.
2. Secondary Meaning

15

“Although descriptive terms generally do not enjoy trademark protection, a

16
17

descriptive term can be protected provided that it has acquired ‘secondary meaning.’”

18

Filipino Yellow Pages, Inc. v. Asian Journal Publications, Inc., 198 F.3d 1143, 1147 (9th Cir.

19

1999). To establish secondary meaning, a trademark claimant “must show that the

20

primary significance of the term in the minds of the consuming public is not the product

21

but the producer.” Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 118 (1938). “The test of

22

secondary meaning is the effectiveness of the effort to create it, and the chief inquiry is

23

directed towards the consumer’s attitude about the mark in question: does it denote to

24
25
26
27
28

The court takes judicial notice of these public trademark registrations as facts that can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned. See Fed. R. Evid. 201(b)(2). Although Reserve only submitted these particular
registrations along with its Reply brief, it first raised the argument that competitors
needed to use the term “reserve” to market their products in the Motion for Partial
Summary Judgment. (See Mot. 9-10.) Accordingly, these qualify as valid “rebuttal
evidence” under Local Rule 7-10. See C.D. Cal. L.R. 7-10.
9
3

1

him ‘a single thing coming from a single source?’” Carter-Wallace, Inc. v. Proctor & Gamble

2

Co., 434 F.2d 794, 802 (9th Cir. 1970). “In determining whether a mark has obtained

3

secondary meaning, courts consider: (1) whether actual purchasers of the product

4

bearing the mark associate the mark with the producer; (2) the degree and manner of

5

advertising under the mark; (3) the length and manner of use of the mark; and (4)

6

whether use of the mark has been exclusive.” Miller v. Glenn Miller Prods., Inc., 454 F.3d

7

975, 991 (9th Cir. 2006). To survive summary judgment, it is the trademark claimant who

8

must present sufficient evidence of secondary meaning to create a genuine dispute of

9

fact. Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866, 873 (9th Cir. 2002)

10

In support of its claim that “RESERVE INTERACTIVE” has acquired secondary

11

meaning, EFI provides deposition testimony describing in general terms the company’s

12

efforts to advertise the mark through print and digital media and by attending trade

13

shows. (Ex. 8, attached to Okadigbo Decl. (Carter Depo.) at 44:18-45:12, 49:16-50.) EFI also

14

submits the company’s annual marketing plans and three references to “ReServe

15

Interactive” products in trade publications. (Carter Decl. ¶¶ 13, 15; Id. Exs. EE, FF, and

16

GG.) EFI further notes its efforts to improve its web visibility through search engine

17

optimization and provides samples of advertisements it has published in the past.

18

(Opp’n 15.) Reserve challenges the weight of this evidence by noting that EFI has not

19

provided any direct evidence regarding the efficacy of their advertisement. (Reply 6.)

20

Reserve, relying on the Ninth Circuit’s statement that “[a]n expert survey of purchasers

21

can provide the most persuasive evidence of secondary meaning,” Vision Sports, Inc. v.

22

Melville Corp., 888 F.2d 609, 615 (9th Cir. 1989), further contends that the absence of any

23

consumer survey evidence in this case counsels against a finding of secondary meaning.

24

“The true test of secondary meaning is the effectiveness of the advertising effort.”

25

Art Attacks Inc., LLC v. MGA Ent’mt Inc., 581 F.3d 1138, 1146 (9th Cir. 2009). As numerous

26

cases have explained, “even extensive advertising alone does not create secondary

27

meaning.” Quoc Viet Foods, Inc. v. VV Foods, LLC, No. CV 12-2165 CJC (DFMx), 2016 WL

28

3536708, at *8 (C.D. Cal. June 14, 2016) (citing First Brands Corp. v. Fred Meyer, Inc., 809
10

1

F.2d 1378, 1383 (9th Cir.1987)); see also 2 McCarthy on Trademarks § 15:5. Here, EFI has

2

submitted some evidence of its advertising efforts over the years and a limited number of

3

references to its products in trade publications. Although EFI does not rely on this fact,

4

perhaps the strongest factor in favor of EFI is that it has used the mark in question since

5

1998 and registered it in 2007. Despite this, EFI has not provided adequate evidence to

6

create a triable issue of fact as to secondary meaning. EFI has not specified, for instance,

7

what share of its advertising effort was aimed at promoting “RESERVE INTERACTIVE”

8

and what share generally promoted the suite of EFI products. Nor has EFI provided any

9

evidence to substantiate its claim that consumers recognize the mark as originating from

10

a single source. True, EFI has expended resources on promoting its mark. But where a

11

company selects a relatively weak mark to identify its products, it faces a

12

commensurately greater burden in proving that its advertising was effective at

13

“creat[ing] an association in the consumer’s mind.” Dep't of Parks & Recreation for State of

14

California v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1128 (9th Cir. 2006); see also Instant

15

Media, Inc. v. Microsoft Corp., 2007 WL 2318948, at *12 (N.D. Cal., Aug. 13, 2007) (Where a

16

plaintiff’s mark resides in a crowded field, hemmed in on all sides by similar marks on

17

similar goods, that mark is weak as a matter of law.”) Here, in a field where several

18

companies are engaged in promoting various management services relying on the term

19

“reserve,” EFI has not met its burden of demonstrating that it’s claimed mark is

20

protectable as a matter of law.

21

B. Remaining Issues

22

Having concluded that EFI’s “RESERVE INTERACTIVE” word mark is not

23

protectable as a matter of law, it follows as a matter of law that Reserve could not have

24

willfully infringed on that mark. For one party to infringe on another party’s trademark

25

presumes that the other party has a valid and protectable mark. Accordingly, the court

26

finds that Reserve did not infringe, willfully or otherwise, on EFI’s “RESERVE

27

INTERACTIVE” word mark. Likewise, there is no need to address the parties competing

28
11

1

damage calculations in light of the fact that Reserve has not infringed on the “RESERVE

2

INTERACTIVE” word mark.

3

IV. CONCLUSION

4

For the reasons stated above, the court GRANTS Defendants’ Motion for Partial

5

Summary Judgment in part. Specifically, the court concludes that EFI’s “RESERVE

6

INTERACTIVE” word mark a descriptive mark that lacks secondary meaning.

7

Accordingly, the mark is not protectable as a matter of law. Therefore, the court

8

concludes the Reserve did not infringe on EFI’s “RESERVE INTERACTIVE” word mark.

9
10

IT IS SO ORDERED.

11
12
13

Dated: November 28, 2016

14
15
16
17
18

___________________________________
DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
12