Coleman et al v. Boston Scientific Corporation

Filing 27

MEMORANDUM Decision Regarding 9 Motion to Dismiss signed by Judge Oliver W. Wanger on 4/20/2011. (Proposed Order Consistent with Memorandum Decision Deadline: 4/27/2011; Plaintiff's Amended Complaint due by 6/20/2011 ) (Figueroa, O)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:10-cv-01968-OWW-SKO
PAMELA COLEMAN, et al.,

9

MEMORANDUM DECISION REGARDING
MOTION TO DISMISS (Doc. 9)

Plaintiffs,

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11
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v.
BOSTON SCIENTIFIC CORPORATION,
et al.,

13

Defendants.

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I. INTRODUCTION.

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16

Plaintiffs Pamela Coleman (“Coleman”), Mary Bower (“Bower”),

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and Kathleen Paison (“Paison”) (collectively “Plaintiffs”) proceed

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with an action for damages against Boston Scientific Corporation

19

(“Defendant”) and various Doe Defendants.

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Defendant filed a motion to dismiss Plaintiffs’ complaint on

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February 26, 2011. (Doc. 9). Plaintiffs filed opposition to the

22

motion to dismiss on March 28, 2011.

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a reply on April 4, 2011.

Defendant filed

(Doc. 17).

II. FACTUAL BACKGROUND.

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25

(Doc. 13).

Plaintiffs

are

three

individuals

who

underwent

medical

26

procedures described as “transvaginal tape, bladder sling, urethral

27

suspension, and cystocele repair” in the United States between

28

August 2005 and December 2006. Coleman, a resident of Bakersfield,
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1

California, underwent her procedures in December 2006.

2

resident of Grand Rapids, Michigan, underwent her procedure in

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April 2006.

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her procedure in August 2005.

5

each Plaintiff had her procedure performed.

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Bower, a

Paison, a resident of Westland, Michigan, underwent

Defendant

designed,

The complaint does not allege where

researched,

advertised,

developed,

7

tested, marketed,

8

synthetic surgical mesh devices purported to correct and restore

9

normal vaginal structure secondary to pelvic organ prolapse.
received

promoted,

manufactured,

Plaintiffs’

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marketed, and sold by Defendant in connection with their respective

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transvaginal

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cystocele repair procedures.

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devices, Plaintiffs have suffered from erosion, shrinkage, and

15

extrusion of mesh from one or more of the mesh devices, causing

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urinary retention, severe persistent pain, including dyspareunia,

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and numerous surgical procedures to remove the mesh devices.

bladder

of

sling,

mesh

devices

and sold

10

tape,

implants

distributed,

urethral

manufactured,

suspension,

and

Since implantation of the mesh

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At all times relevant, the mesh devices were widely advertised

19

and promoted by Defendants as a safe and effective treatment for

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pelvic organ prolapse, rectocele, enterocele, and stress urinary

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incontinence.

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implantation

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Defendants knew that the devices were not safe because the mesh

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eroded and otherwise malfunctioned causing injuries from erosion,

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extrusion, infection, sepsis, chronic foreign body invasion, dense

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adhesions,

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representations regarding the consistency, safety, reliability, and

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performance of the mesh devices in published literature and adverse

Defendants minimized the risks posed to patients by
of

and

the

mesh

worsening

devices.

dyspareunia.

2

At

all

times

Defendants

relevant,

made

false

1

event reports.

Defendants failed to disclose to physicians,

2

patients, or Plaintiffs that their mesh devices were subject to

3

erosion or scar tissue formation causing injuries.

4

Defendants continued to promote the mesh devices as safe and

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effective even when no clinical trials had been done; in doing so,

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Defendants concealed the known risks and failed to warn of known or

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scientifically knowable dangers and risks associated with the mesh

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devices for pelvic organ prolapse, rectocele, enterocele, and

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stress urinary incontinence.
III. LEGAL STANDARD.

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11

Dismissal

under

Rule

12(b)(6)

is

appropriate

where

the

12

complaint lacks sufficient facts to support a cognizable legal

13

theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th

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Cir.1990). To sufficiently state a claim to relief and survive a

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12(b) (6) motion, the pleading "does not need detailed factual

16

allegations" but the "[f]actual allegations must be enough to raise

17

a right to relief above the speculative level." Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

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Mere "labels and conclusions" or a "formulaic recitation of the

20

elements of a cause of action will not do." Id. Rather, there must

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be "enough facts to state a claim to relief that is plausible on

22

its face." Id. at 570. In other words, the "complaint must contain

23

sufficient factual matter, accepted as true, to state a claim to

24

relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S.

25

----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal

26

quotation marks omitted).

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The Ninth Circuit has summarized the governing standard, in

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light of Twombly and Iqbal, as follows: "In sum, for a complaint to
3

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survive a motion to dismiss, the nonconclusory factual content, and

2

reasonable

3

suggestive of a claim entitling the plaintiff to relief." Moss v.

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U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal

5

quotation marks omitted). Apart from factual insufficiency, a

6

complaint is also subject to dismissal under Rule 12(b)(6) where it

7

lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or

8

where the allegations on their face "show that relief is barred"

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for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct.

10

inferences

from

that

content,

must

be

plausibly

910, 166 L.Ed.2d 798 (2007).

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In deciding whether to grant a motion to dismiss, the court

12

must accept as true all "well-pleaded factual allegations" in the

13

pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not,

14

however, "required to accept as true allegations that are merely

15

conclusory,

16

inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988

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(9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss,

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if a district court considers evidence outside the pleadings, it

19

must normally convert the 12(b)(6) motion into a Rule 56 motion for

20

summary

21

opportunity to respond."

United States v. Ritchie, 342 F.3d 903,

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907

court

23

materials-documents

24

incorporated by reference in the complaint, or matters of judicial

25

notice-without converting the motion to dismiss into a motion for

26

summary judgment." Id. at 908.

27

///

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///

(9th

unwarranted

judgment,

and

Cir.2003).

"A

deductions

it

must

attached

of

give

may,
to

4

fact,

the

unreasonable

nonmoving

however,
the

or

party

consider

complaint,

an

certain

documents

IV. DISCUSSION.

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2

A. Product Identification

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As an initial matter, Defendants contend that the complaint

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does not allege facts sufficient to permit identification of the

5

particular

6

Defendants argue that, absent identification of a specific product,

7

the complaint fails to plead the specific facts required to raise

8

a plausible claim for relief.

9

cite Timmons v. Linvatec Corp., 263 F.R.D. 582, 584-85 (C.D. Cal.

“mesh

products”

underlying

Plaintiffs’

claims.

(Doc. 9, MTD at 3-4).

Defendants

10

2010) and Adams v. I-Flow Corp.,

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1339948 *3 (C.D. Cal. 2010); 2010 U.S. Dist. LEXIS 33066, for the

12

proposition that “if a plaintiff fails to specifically identify the

13

product at issue in their Complaint, they [sic] cannot satisfy the

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necessary

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dismissed.”

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onerous pleading burden Defendants advance.

pleading

requirements

(MTD at 4).

Adams v. I-Flow Corp., 2010 WL

and

their

claims

Neither Timmons nor Adams

must

be

support the

17

In Adams, the complaint did not allege that any of the named

18

defendants manufactured the allegedly defective device that caused

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the plaintiffs injuries:

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25
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27
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The Complaint does not allege that any particular
plaintiff was administered a particular drug through a
particular pain pump that was manufactured by a
particular defendant. Instead, plaintiffs plead only
generally that they were injured by pain pumps and
anesthetics of the type made by defendants. By suing
fourteen (14) "Defendant Pain Pump Manufacturers" and
eight (8) "Defendant Anesthetic Manufacturers," the
Complaint at most alleges that the individual defendants
theoretically could have been the one who manufactured
the pain pump or anesthetic used following each
plaintiff's surgery. But, the Complaint never specifies
that any one of the defendants, as opposed to the 21
other defendants, caused each plaintiff's claimed injury.
As such, plaintiffs plead nothing more than the sheer
possibility that any particular defendant might have
manufactured the product that allegedly injured each
5

1

plaintiff. This sort of speculative pleading is not
permitted under the plain text of Rule 8, which requires
a "statement of the claim showing that the pleader is
entitled to relief."

2
3

Id. at 7-8.

Similarly, the complaint in Timmons:

4
allege[d] Mrs. Timmons sustained a shoulder injury as a
result
of
receiving
an
unidentified
"anesthetic
medication." Plaintiffs sue[d] AstraZeneca
as one of
eight "defendant anesthetic manufacturers," but fail[ed]
to allege that AstraZeneca manufactured the particular
medication administered to Ms. Timmons after her single
surgery. Thus, the Complaint [did] not allege that
AstraZeneca, as opposed to one of the other anesthetic
manufacturer defendants, caused Plaintiffs' alleged
injuries.

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6
7
8
9
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263 F.R.D. at 584.

Timmons does not support Defendants’ ambitious

11

construction of Rule 8, which would require plaintiffs in any

12

medical product liability case to “specifically identify” the

13

products at issue in order to satisfy federal pleading standards.

14

Rather, Timmons stands for the unremarkable proposition that a

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plaintiff must allege that a particular defendant caused her

16

injury.

17

AstraZeneca

18

against AstraZeneca, Plaintiffs must allege that AstraZeneca

19

caused their injuries.”).

See id. (“The Complaint fails to state a claim against
under Rule 8, Twombly, and Iqbal. To state a claim

20

Imposing on plaintiffs the burden of specifically identifying

21

a device by reference to a specific product line or model number,

22

without the benefit of discovery, could create an insurmountable

23

pleading burden in some cases.

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only reflect general information about the type of device used in

25

a

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specificity the exact product at issue in the pleading phase of her

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case. See Butts v. Tyco Healthcare Group LP, 2007 U.S. Dist. LEXIS

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37847 *4 (N.D. Ga. 2007) (noting difficulty plaintiff faced in

given

procedure,

a

For example, where medical records

plaintiff

6

may

be

unable

to

plead

with

1

tailoring

2

report did not identify the specific model of the medical device

3

employed

4

regarding the specific medical device at issue is unavailable

5

during

6

circumstantial

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facility and a device manufacturer, to establish that the device

8

that harmed her was manufactured by a particular defendant; the

9

district court’s analysis of a discovery dispute in Butts is

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11
12
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14
15
16
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appropriate

during

the

discovery

plaintiff’s

pleading

stage,

evidence,

where

doctor's

procedure).

a

such

plaintiff
as

post-operative

Where

may

contracts

have
between

information

to
a

rely

medical

instructive on this point:
defendants have objected to the plaintiff's discovery
requests on the grounds that the plaintiff has failed to
establish who manufactured the allegedly defective
stapler and, even assuming that it was indeed the
defendants who manufactured it, the plaintiff does not
identify which of the defendants' products was used
during her surgery. Specifically, the defendants assert
that because the reference to a single "# 25 EEA stapler"
in the post-operative report does not identify any
specific stapler, but could describe several different
staplers manufactured by the defendants, responding to
the plaintiff's interrogatories and requests for
production is unduly burdensome and would produce
information on unrelated products.

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...[P]laintiff asserts that she is not required to
specifically identify the allegedly defective product at
this juncture and that information on any stapler
manufactured by the defendants with similar functions,
operations, designation, or nomenclature as the "# 25 EEA
stapler" is discoverable.
The sole factual basis for the action against the
defendants...is the post-operative report by the
physician who performed the plaintiff's gastric bypass
surgery. That report notes the use and apparent
malfunction of a "# 25 EEA stapler," which "was married
to the anvil and stapler was closed and fired."

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...However, the doctor's post-operative report does not
identify the specific model of EEA [] stapler used or its
manufacturer. Instead, the report simply refers to a "#
25 EEA stapler." Accordingly, because the plaintiff's
complaint uses that report as the basis for her claims
against Tyco and United States Surgical, the defendants
7

on

1

assert that two questions must be answered before
discovery can proceed: (1) whether the defendants
manufactured the stapler used in the plaintiff's surgery,
and (2) if so, which of the defendants' staplers is the
one referred to as the "# 25 EEA stapler."

2
3
4

...[Plaintiff] has made no direct showing that Tyco
Healthcare or United States Surgical manufactured the
stapler used during her surgery. Rather, the plaintiff
points to a contract between the defendants and Emory
Hospitals that establishes United States Surgical as the
exclusive
provider
of
gastric
bypass
staplers.
Ostensibly, this contract shows that although it is
unknown whether the defendants actually manufactured the
stapler used in the plaintiff's surgery, it at least
establishes a good faith basis to proceed with discovery
against the defendants. Without any direct evidence, this
court concludes that while the plaintiff is on shaky
ground in this regard, the existence of an exclusive
contract with the defendants is persuasive circumstantial
evidence sufficient to proceed with discovery against the
defendants as the manufacturers of the allegedly
defective stapler.

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6
7
8
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10
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12
13

Id. at 2-5 (citations to the record omitted).
14
Like

the

defendants

in

Butts,

Defendant

contends

that

15
Plaintiffs’ failure to identify the specific device subject to
16
their complaint is insufficient. In its reply, Defendant complains
17
that it manufactures “at least nine separate products that involve
18
mesh

that

could

potentially

fall

within

Plaintiffs’

vague

19
definition.” (Doc. 17, Reply at 2). Defendants state that the mesh
20
products it manufactures
21
22
23
24
25
26

include, but are not limited to, Advantage Fit System,
Advantage Transvaginal Mid-Urethral Sling System, Lynx
Suprapubic
Mid-Urethral
Sling
System,
Obtryx
Tansobturator Mid-Urethral Sling System, Prefyx PPS
System, Solyx Sis System, Pinnacle Posterior Pelvic Floor
Repair Kit, Uhold Vagindal Support System, and Polyform
Synthetic Mesh. The nine above-referenced mesh products
are distinguishable, with each having its own separate
design, indications, directions for use, techniques for
implantation, and warnings.

27
(Id.).
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8

1

Rather

than

suggest

more

specific

pleading

is

required,

2

Defendant’s discussion of its extensive mesh products line reveals

3

the

4

identification of a precise product during the pleading phase of a

5

case, without discovery.

6

such as Plaintiffs are not always in a position to know whether an

7

Obtryx Tansobturator Mid-Urethral Sling System or an Advantage

8

Transvaginal Mid-Urethral Sling System was placed inside of them

9

while they were anaesthetized.

injustice

that

would

result

from

requiring

specific

It is axiomatic that medical patients

Rather, manufacturers are in a

10

better position to ascertain which of their devices was likely used

11

in a given procedure, because they can compare each of their

12

products’ unique “design[s], indications, directions for use, [and]

13

techniques for implantation” to the allegations of the complaint

14

concerning when, where, and for what medical purpose a plaintiff’s

15

surgical procedure was performed.

16

As the Seventh Circuit Court of Appeal recognized recently,

17

there are no special pleading requirements for product liability

18

claims or medical device claims in particular.

19

Corp., 630 F.3d 546, 558 (7th Cir. 2010).

20

notice pleading applies to defective medical device claims: so long

21

as

22

"plausibility" standard applied in Iqbal and Twombly, dismissal

23

under Rule 12 is inappropriate.

24

device claims is difficult, and discovery is often necessary before

25

a plaintiff can fairly be expected to provide specific details.

26

See id.

the

complaint

alleges

facts

Id.

Bausch v. Stryker

The federal standard of

sufficient

to

meet

the

Pleading defective medical

27

Plaintiffs’ complaint provides information regarding the types

28

of surgical procedures they underwent, as well as a detailed
9

1

technical description of the devices they allege injured them:

2

“mesh devices purported to correct and restore normal vaginal

3

structure secondary to pelvic organ prolapse.”

4

states that Defendants “sought and obtained [FDA] approval to

5

market mess [sic] products and/or its monofilament polypropylene

6

mesh

7

Amendment.”

8

type of product. Nevertheless, the complaint contains ambiguities.

9

First, the complaint does not clearly allege where each

component

under

section

510(k)

of

The complaint also

the

Medical

Device

These allegations provide further description of the

10

Plaintiff underwent their respective procedures.

11

is unable to identify a specific medical device in her complaint,

12

information

13

performed should be pleaded to assist manufacturers in identifying

14

which of its products is implicated.

15

which state they underwent their procedures in, let a alone the

16

names of the medical facilities involved, the complaint does not

17

comply with Rule 8.

18

revealing

when,

where,

and

why

When a Plaintiff

a

procedure

was

As Plaintiffs do not allege

Second, the complaint is ambiguous with respect to whether

19

each Plaintiff had the same type of mesh device implanted.

The

20

complaint suggests that Plaintiffs seek to assert claims based on

21

the failure of more than one mesh device manufactured by Defendant.

22

Paragraph 11 of the complaint states that the term “mesh devices”

23

refers to Defendant’s products “collectively.”

24

Critically, paragraph 14 alleges that Plaintiffs were injured by

25

“extrusion of mesh from one or more of the Mesh Devices.” (Id. at

26

3) (emphasis added).

27

state clearly whether Plaintiffs’ claims are based on one defective

28

device common to all Plaintiffs, or whether claims are asserted

(Compl. at 3).

Plaintiffs complaint must be amended to (1)

10

1

based on multiple mesh devices that share a common defect; and (2)

2

state

3

procedure was performed.

4

B. Implied Warranty Claim

5

clearly

the

location

where

each

Plaintiffs’

respective

Defendants correctly assert that Plaintiffs’ claims for breach

6

of implied warranty are not cognizable.

7

privity between parties is required for either claim of implied

8

warranty.

9

App. 4th 779, 857 (Cal. Ct. App. 1994) (noting that California

10

Commercial Code section 2315 requires that a buyer rely on sellers’

11

skill or judgment in order to have a cognizable implied warranty

12

claim and rejecting implied warranty claim against medical device

13

manufcaturer); Blanco v. Baxter Healthcare Corp., 158 Cal. App. 4th

14

1039, 1058 (2008) (rejecting implied warranty claim against medical

15

device manufacture because of lack of privity with citation to

16

Evraets); accord Clemens v. Daimler Chrysler Corp., 534 F.3d 1017,

17

1023 (9th Cir.2008) (plaintiff asserting breach of implied warranty

18

claims

19

defendant).

20

implied warranty claim is DISMISSED WITH PREJUDICE.

21

C. Express Warranty Claims

22

Under California law,

E.g., Evraets v. Intermedics Intraocular, Inc., 29 Cal.

must

stand

in

vertical

contractual

privity

Plaintiffs do not contend otherwise.

with

the

Plaintiffs’

Defendants contention that privity is an element of an express

23

warranty claim is incorrect.

E.g., Evraets, 29 Cal. App. 4th at

24

857 n.4 (“privity is not a requirement for actions based upon an

25

express warranty”); Fieldstone Co. v. Briggs Plumbing Products,

26

Inc., 54 Cal. App. 4th 357, n.10 (Cal. Ct. App. 1997) (“As a

27

general rule, privity of contract is a required element of an

28

express breach of warranty cause of action. However, there is an
11

1

exception where plaintiff's decision to purchase the product was

2

made in reliance on the manufacturers' written representations in

3

labels or advertising materials.”) (citations omitted).

4

Plaintiffs express warranty claims must be dismissed, as the

5

complaint does not allege facts sufficient to give rise to a

6

plausible

7

representations made by Defendants.

8

conclusory allegations that Defendants advertised their products as

9

safe and effective lack even general information describing such

10

alleged conduct. As one district court has aptly noted, conclusory

11

allegations such as those advanced by Plaintiffs are insufficient

12

to support a plausible basis for an express warranty claim:

13

basis

to

believe

that

Plaintiffs

relied

See, e.g., id.

However,

on

any

Plaintiffs’

17

Evraets stands as clear authority that at least at the
pleading stage, California law permits a claim for breach
of an express warranty to go forward under circumstances
[where reliance is alleged]. That said, the complaint as
presently constituted fails to allege any express
warranties actually made by Stryker, except in the most
general and conclusory terms. Accordingly, the claim for
breach of express warranty will be denied, with leave to
amend.

18

Quatela v. Stryker Corp., 2010 U.S. Dist. LEXIS 133706 * 4-6 (N.D.

19

Cal. 2010).

20

with leave to amend.

21

D. Fraud Based Claims

14
15
16

Plaintiffs’ express warranty claims are DISMISSED,

22

Federal Rule of Civil Procedure 9(b) imposes an elevated

23

pleading standard with respect to claims that "sound in fraud" or

24

are "grounded in fraud." Kearns v. Ford Motor Co., 567 F.3d 1120,

25

1125 (9th Cir. 2009).

26

fraud must be specific enough to give defendants notice of the

27

particular misconduct which is alleged to constitute the fraud."

28

Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal

"To comply with Rule 9(b), allegations of

12

1

quotation marks omitted). Allegations of fraud must include the

2

"time, place, and specific content of the false representations as

3

well as the identities of the parties to the misrepresentations."

4

Id. (internal quotation marks omitted). The "[a]verments of fraud

5

must be accompanied by the who, what, when, where, and how of the

6

misconduct charged." Kearns v. Ford Motor Co., 567 F.3d 1120, 1124

7

(9th Cir. 2009) (internal quotation marks omitted). A plaintiff

8

alleging

9

necessary to identify the transaction. The plaintiff must set forth

10

what is false or misleading about a statement, and why it is

11

false." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.

12

2003).

13

fraud

"must

set

forth

more

than

the

neutral

facts

Plaintiffs’ general allegations do not comply with Rule 9(b)’s

14

particularity requirements.

15

such as Glen Holly Ent., Inc., v. Tektronix, Inc., 100 F. Supp. 2d

16

1086, 1095 (C.D. Cal. 1999) for the proposition that “Rule 9(b) may

17

be relaxed as to matters peculiarly within the opposing party’s

18

knowlege” is unavailing; the complaint does not allege facts

19

sufficient to support an inference that Defendants knew of the

20

alleged defects of their products at any time relevant to the

21

complaint or that any false representations were made to Plaintiffs

22

on

23

DISMISSED, with leave to amend.

24

E. Negligent Misrepresentation Claims

25

which

they

relied.

Plaintiffs’ attempt to rely on cases

Plaintiffs’

fraud

based

claims

are

Plaintiffs’ negligent misrepresentation claim is based on

26

Plaintiffs’

conclusory

contention

27

specifically related to the Mesh Devices showed the Mesh Devices to

28

be defective and dangerous when used in the intended manner.”
13

that

“adverse

event reports

1

(Compl. at 11).

The complaint does not allege facts sufficient to

2

give rise to an inference that, at the time Defendants made alleged

3

representations

4

Defendants had reason to know of the dangers Plaintiffs complain of

5

or that they made any misrepresentations without a reasonable basis

6

for believing them to be true.

7

allege when such representations were made.

8

misrepresentation

9

F. UCL Claims

concerning

the

safety

of

their

mesh

devices,

Inter alia, the complaint does not
Plaintiffs’ negligent

claims are DISMISSED, with leave to amend.

10

As discussed above, Plaintiffs’ complaint is insufficient with

11

respect fraud and misrepresentation based claims. The complaint is

12

fatally vague with respect to which mesh devices are the subject of

13

this action.

14

complaint, Plaintiffs’ UCL claims are DISMISSED, without prejudice.

15

G. Venue and Joinder

As there are no predicate claims alleged in the

16

Defendant contends that venue for the claims of Plaintiffs who

17

reside in Michigan is improper in the eastern district, and that

18

such Plaintiffs’ claims are improperly joined in this action.

19

propriety of joinder and venue cannot be ascertained due to the

20

pleading deficiencies discussed above.

21

objections to joinder and venue after Plaintiffs provide an amended

22

complaint.

The

Defendant may renew its

ORDER

23
24

For the reasons stated, IT IS ORDERED:

25

1) Plaintiffs’ implied warranty claims are DISMISSED, with

26

prejudice;

27

2)

28

prejudice;

Plaintiff’s

remaining

claims

14

are

DISMISSED,

without

1

3) Plaintiff’s shall file an amended complaint within sixty

2

days

3

Defendant shall file responsive pleading within twenty days of

4

service of an amended complaint; and

5

4) Defendant shall submit a form of order consistent with this

6

memorandum decision within five days of receiving electronic

7

notice of this decision.

of

receiving

electronic

notice

of

this

8
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IT IS SO ORDERED.
Dated:
hkh80h

April 20, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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decision.