Thompson I.G., L.L.C. v. Edgetech I.G., Inc.
Filing
95
Memorandum and Order Denying Defendant's 77 Motion for Spoilation and Fraud on the Court Sanctions and Deferring Ruling on Defendant's 79 Motion to Exclude Plaintiff's Opinion Witness Stephen Howes. Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMPSON, I.G., L.L.C.,
Plaintiff,
Case No: 11-12839
vs.
HON. AVERN COHN
EDGETECH I.G., INC.,
Defendant.
_____________________________________/
MEMORANDUM AND ORDER DENYING DEFENDANT’S
MOTION FOR SPOILATION AND FRAUD ON THE COURT
SANCTIONS (Doc. 77) AND DEFERRING RULING ON
DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S
OPINION WITNESS STEPHEN HOWES (Doc. 79)
I. INTRODUCTION
This is a contract case. Plaintiff, Thompson I.G., L.L.C. (“Thompson”), a glass
window manufacturer, is suing a former product supplier, Edgetech I.G., Inc. (“Edgetech”).
The dispute is over a product manufactured by Edgetech and used in the assembly of
Thompson’s windows called the EPDM Super Spacer (“Super Spacer”).1 Super Spacer is
a thermal foam resistant that separates two pieces of glass to a desired air space. As
explained by Edgetech, when assembled in the final product, Super Spacer is held in place
between two pieces of glass with an acrylic adhesive that draws down moisture into the
airspace via the desiccated foam construction of the spacer. (Doc. 79 at 7, Edgetech’s
Mot. to Exclude Howes). Super Spacer is designed to keep warm air in and cold air out.
In this case, Thompson alleges that Edgetech breached its contract with Thompson,
1
EPDM is an acronym for the compound ethylene propylene diene monomer, which is
the material that makes the Super Spacer.
and breached implied and express warranties, by selling Thompson defective Super
Spacers. Thompson purchased Super Spacers from Edgetech from 2004 through 2010.
Thompson used the Super Spacers in the assembly of ten percent of the windows it sold
to its customers. The remaining ninety percent of the windows manufactured by Thompson
used aluminum spacers. A significant number of windows assembled with Super Spacer
and sold to Thompson’s customers, according to Thompson, have been returned, or
warranty claims made, because the Super Spacer is defective.
Thompson’s expert witness Stephen Howes credits the returned windows to a defect
in Super Spacer. Edgetech disputes Howes’s opinion. Edgetech’s expert witness A.
William Lingell opines that the windows were defective as a result of Thompson’s poor
workmanship and not a defect in Super Spacer.
Now before the Court are two motions filed by Edgetech:
Defendant’s Motion for Spoliation and Fraud on the Court Sanctions (Doc. 77); and
Defendant’s Motion to Exclude Plaintiff’s Proffered Opinion Witness Stephen H.
Howes (Doc. 79).
For the reasons that follow, the motion for spoliation and fraud on the Court sanctions is
DENIED. The Court defers ruling on the motion to exclude Howes and will hold a hearing
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) prior to making
a determination whether to exclude Howes’s opinion.
II. BACKGROUND
A. General Background
The material facts are stated in a prior memorandum and order and are not repeated
here. See (Doc. 52, Mem. and Order Granting Def.’s Mot. to Disqualify and Dismissing as
2
Moot Def.’s Mot. to Strike Pl.’s Expert). The facts related to the current motions are
summarized below.
B. Edgetech’s First Request to Inspect Windows
The record reflects that Edgetech put Thompson on notice that it needed to preserve
windows it claimed were damaged because of defective Super Spacer. In its first request
for production of documents on August 12, 2011, Edgetech requested, among other things,
that Thompson make available “All Thompson windows containing the Super Spacer
product that Thompson alleges are defective (for inspection).” (Doc. 77-14 at 6, Edgetech’s
First Req. for Produc. of Docs.). Edgetech’s first production of documents made clear that
“[t]hese discovery requests are to be deemed continuing in nature. Any newly discovered
or additional information responsive to these discovery requests should be supplied
immediately upon coming to the attention of Thompson or its counsel.” (Id. at 2).
C. Thompson’s Acknowledgment of Duty to Preserve Windows
The record also reflects that, as early as May of 2011, Thompson’s uppermanagement recognized the importance of preserving returned windows assembled with
Super Spacer. On May 23, 2011, Thompson’s president, Russ Manser (“Manser”),2
emailed Ron Manser3 the following:
[A]s you know we are in litigation with our Super Spacer
manufacture[r], please communicate with your customers who
[use] Super Spacer (Vinylsash, Sunaire, etc.) to try and remove
seal-failed glass without breaking them, we have instructed
shipping to forward all salvaged glass to Ed as he is in charge
of future inspections.
2
Manser is now retired.
3
It is not clear from the parties’ papers who Ron Manser is.
3
(Doc. 88-14 at 1, Internal Thompson Email from Russ Manser to Ron Manser).
Two months later, on August 30, 2011, Manser emailed Thompson’s general
manager, Lorne Flaig, informing her of the importance of preserving returned windows:
It is very important to convey to your team that we must save
all defective Super [] Spacer material along with any returned
seal-failures. Please have a meeting with the department
leaders and especially shipping.
(Doc. 83-15 at 1, Email Correspondence Between Manser and Flaig).
On the same day, Flaig responded to Manser:
I have already instructed shipping and will also remind the
supervisors in tomorrow morning[‘]s production meeting.
(Id.).
D. The Howes Inspection
On December 17, 2012, Howes inspected five or six4 windows assembled with
Super Spacer that were returned to Thompson from its customers and stored at
Thompson’s Fenton, Michigan facility.
These windows, according to Howes, were
defective. See (Doc. 77-2 at 2-3, Exert from Howes’s Report). At his deposition, Howes
described the units he inspected:
Q:
I understand you looked at six [Super Spacer] units?
A:
They were up in an office, yeah.
Q:
Where in the office were they?
A:
Behind a desk. I think there was a window there, and
they were behind a desk and we pulled them out.
4
Howes’s report says he inspected six units. However, he later stated in his affidavit
that he only inspected five units.
4
...
Q:
How many units were there?
A:
I think there was six. I think there was five bigger ones
and one small one.
Q:
Approximately, do you know what the size were of the
five larger ones?
A:
Yeah. Forty inches square, something like that. Typical
on a large window with mounting [sic] bars inside them.
Q:
What was the size of the one smaller unit?
A:
Twenty-seven, 28 inches by 15, something like that. It
was a shaped unit, what you’d see in a vehicle.
(Doc. 77-3 at 3, Howes Dep.).
After inspecting the windows, among other things, Howes opined in a report that “it
is very clear that the EPDM Super Spacer is out-gassing, shrinking in size and delaminating
from the Mylar vapor barrier. . . It is not possible that anything Thompson could have done
in the production would cause the failures. . . .” (Doc. 77-2 at 3, Exert from Howes’s
Report).
E. Edgetech’s First Inspection
Edgetech hired an expert, William Lingnell, to determine the cause of failure in
Thompson’s windows containing Super Spacer. Lingell was directed to inspect the same
windows inspected by Howes and referenced in Howes’s report. The parties scheduled an
inspection at Thompson’s Fenton, Michigan facility to take place on February 20, 2013.
Two hours before the scheduled inspection, while Lingnell and Edgetech’s counsel were
en route by airplane to Thompson’s facility, Thompson’s counsel informed Edgetech
representatives that five of the six windows may have been destroyed the night before by
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a second-shift employee at Thompson.
Edgetech decided to proceed with the inspection of the remaining window at
Thompson’s facility. Upon arrival at Thompson’s facility, Thompson’s plant manager, Ed
Wilson, informed Lingnell and Edgetech’s counsel that he did not know if the other five
windows were destroyed. Wilson further informed Edgetech personnel that he would follow
up with Dekalita to determine what happened at the plant the night before. Edgetech
inspected the smaller window referenced in Howes’s report before leaving Thompson’s
facility.
Two days later, Thompson’s counsel informed Edgetech that Thompson employees
located the five missing windows originally thought to have been destroyed. Thompson
submitted to the Court Dekalita’s affidavit, in which he stated that he moved the units to a
storage area without telling anyone. (Doc. 77-6, Dekalita Aff.). As explained by Thompson
in its response brief:
Sometime on February 18th or 19th, a second-shift employee,
Zacharius Dekalita, was scheduled to clean the ink/print room
where the I.G. units at issue were kept. Mr. Dekalita cleaned
out the room, and being afraid that the IG units may get
broken, or thrown out, boxed up the units and placed “do not
destroy” stickers on them. The units were then placed in a loft
above the printing room, Dekalita did not tell anyone he moved
the units into that storage loft, and was not working at the plant
at the time of the inspection.
(Doc. 83 at 8–9, Thompson’s Resp. to Edgetech’s Mot. for Spoilation and Fraud on the
Court Sanctions).
Dekalita later overheard Thompson management “freaking out” about the missing
windows, and he told them that he put the windows in a storage area. (Doc. 77-7 at 7,
Dekalita Dep.).
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The parties agreed to reschedule a second inspection to take place on March 22,
2013 and Thompson reimbursed Edgetech its attorneys’ fees and expert costs in
connection with the first inspection.
F. Additional Warranty Claims
In February of 2013, prior to Edgetech’s second scheduled inspection, Thompson
received a warranty claim from its customer Oxbowindo for ten defective windows that were
assembled with Super Spacer. (Doc. 83-3 at 6, Burmeister Dep.). Thompson sent
Oxbowindo ten replacement windows and Oxbowindo returned to Thompson the ten
defective windows. Thompson says it only received eight of the ten defective windows.
After receiving the windows, Thompson placed a return merchandise authorization (“RMA”)
sticker dated March 8, 2013 on the windows. The date reflects when Thompson received
the defective units back from Oxbowindo.
G. Edgetech’s Second Inspection
Edgetech arrived at Thompson’s Fenton facility on March 22, 2013 to inspect the
windows that were inspected by Howes. At the inspection, Thompson presented the eight
windows that were returned by Oxbowindo on March 8; the plant manager Wilson
represented these windows to be the same windows inspected by Howes in December of
2012.
However, during the inspection, Edgetech’s counsel noticed the RMA label on one
of the windows and attempted to photograph it. Wilson removed the label and started to
walk away. When confronted by Edgetech’s counsel, Wilson refused to let counsel
photograph the label. Eventually Wilson complied. The label contained the date “3/8/13,"
which Edgetech’s counsel later learned at the deposition of Thompson sales representative
7
Paul Lewis meant that the windows Edgetech was inspecting were returned to Thompson
around March 8, 2013, well after Howes performed his inspection of the six windows.
Wilson, on the day of the second inspection, stated that the label was inadvertently placed
on the windows.
At his deposition on April 3, 2013, Wilson’s story changed and he testified that it was
a mistake when he told Edgetech representatives that the windows available for inspection
at the second inspection were the same windows inspected by Howes. Wilson explained
that the windows provided for inspection at the second inspection were the windows
returned by Oxbowindo around March 8, 2013. (Doc. 77-9 at 9–10, Wilson Dep.). Wilson
stated that these Oxbowindo windows were stored with the windows inspected by Howes
because they too were assembled with Super Spacer and were returned to Thompson
under warranty claims. Wilson further explained that, although all of the windows were
stored together, he did not realize that on the day of inspection, he failed to provide
Edgetech with the windows that were inspected by Howes. (Id. at 10).
H. Thompson’s Employee Testimony
1. President Manser
Edgetech took the deposition of Thompson’s then-president Manser. Manser
explained that, since the lawsuit was filed, Thompson’s customers collectively returned
approximately 25-30 windows assembled with Super Spacer to Edgetech per month under
warranty claims. (Doc. 77-11 at 4, Manser Dep.). Specifically, Manser stated that “we
[Thompson] continue to get units in every week, every month. So going forward we are
retaining many, many samples for trial.” (Id.).
However, Manser testified that, because of changes in the ownership of Thompson,
8
the bulk of the windows returned to Thompson were thrown away in the “trash compactor
at Thompson I.G.” as normal company protocol. (Id. at 4). According to Manser, it was not
until March of 2013 that he “put the brakes” on Thompson’s practice of throwing returned
windows in the trash. (Id.). Although Manser approximated that 375 windows were
returned as defective, he testified that he did not take any photographs or videos of the
windows prior to Thompson’s throwing them away. (Id. at 4–5).
2. Employees Lewis and Dekalita
Thompson employees Paul Lewis and Dekalita confirmed that Thompson routinely
and in the normal course of business threw away windows that were returned to Thompson
under warranty claims from its customers. Indeed, at his deposition on April 3, 2013, Lewis
confirmed that after Thompson processed warranty claims, the units were disposed of in
the trash:
Q:
Now, how many warranty claims have you processed
since your new owner took over under this RMA
process, if you know?
A:
Oh, quite a few. It’s probably I’d say over a hundred.
Between all – all of the sales representatives.
Q:
And what’s your customary practice after you log these
windows in? What do you do with them after that?
A:
Then our quality department looks at them and decides,
yes, they are defective, issue a credit, and then they are
disposed of.
Q:
And how are they disposed of?
A:
Usually just in like our dumpster, our hopper. Or if they
are big units, possibly – we might try to save it, but very
often – very seldom they do in terms of one piece of
glass, it might possibly be able to save something. But
usually seal failures they’re stained and you can’t do
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nothing with it, so it’s just basically just thrown away.
Q:
And do you recall ever receiving any type of notice at
Thompson that they were not to throw away any glass
units that had the Super Spacer in them?
A:
That was kind of – about the last two months, they
wanted us to start saving all the Super Spacer units.
Q:
And was that via like an e-mail to the group or was there
a meeting or how did that take place?
A:
That I believe was a meeting between – I’m not sure
how that came into effect, because basically the sales
reps didn’t know nothing about it. That would have
been probably between the plant manager and our
quality department.
(Doc. 77-12 at 8, Lewis Dep.).
Dekalita confirmed at his deposition that sales representatives were not told to
preserve the returned windows containing Super Spacer until the middle of January, 2013.
(Doc. 77-7 at 7, Dekalita Dep.).
I. The “Warranty Report”
Thompson management prepared a “Warranty Report” which provides a list of
windows containing Super Spacer that were the subject of warranty claims made to
Thompson by its customers. The list contains 277 windows that were covered under
warranty claims. None of these windows were made available for inspection by Edgetech.
Thompson represents that it did not destroy the returned windows included in the
Warranty Report. Rather, Thompson says its customers never returned the majority of the
defective windows because they were destroyed in the field by the customer.
J. Edgetech’s Third Inspection
Edgetech scheduled a third inspection at Thompson’s Fenton facility on April 22,
10
2013. Edgetech again sought to inspect the windows that Howes referenced in his report.
At the April 22 inspection, Thompson provided for inspection four windows that Edgetech
says were different in shape, size and characteristic from the ones described by Howes at
his deposition. Further, until this inspection, Edgetech believed there were five, not four,
windows that remained uninspected by its personnel.
Thompson disputes Edgetech’s representation that the windows provided to
Edgetech at the April 22 inspection were different than the ones Howes inspected.
Thompson says that Edgetech inspected the same windows that Howes inspected.
K. Howes’s Affidavit
On May 10, 2013, Howes signed an affidavit to which he attached for the first time
pictures of “all of the units that I [Howes] inspected with Ed Wilson at Thompson I.G. on
December 17, 2012.” (Doc. 83-8 at 1, Howes Aff.). Howes stated that, “My report states
that I inspected 6 units and that was an error, there were only 5 units.” (Id.).
The pictures provided with Howes’s affidavit were not provided to Edgetech as part
of Howes’s expert report. Indeed, the first time Edgetech was aware that Howes had taken
pictures of the windows he inspected was when he submitted his affidavit as an exhibit to
Thompson’s response brief to this motion.
Howes also stated in his affidavit, contrary to his deposition testimony, that only one
of the windows he inspected had a Muntin Bar, which is a decorative bar or grid in the
window.
L. Wilson’s Affidavit
On May 16, 2013, Wilson signed an affidavit explaining that, at Edgetech’s third
inspection, its representatives examined the same windows that Howes examined in
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December of 2012. (Doc. 83-9 at 1, Wilson Aff.). Attached to Wilson’s affidavit are pictures
of the windows that he says he took prior to Howes’s inspection. (Id.). These pictures
were not provided to Edgetech prior to Thompson’s filing of its response brief to this
motion.
Wilson also stated in his affidavit that, starting in the Spring of 2011 and until the
present date, he has advised employees that defective windows containing Super Spacer
be brought to his attention and that they be preserved because of this pending case. (Id.
at 2).
III. DISCUSSION
In its motion for spoilation and fraud on the Court sanctions, Edgetech argues that
the Court should dismiss this case due to what Edgetech frames as Thompson’s
“intentional destruction of evidence.” While the record supports the view that Thompson
has been sloppy in the way it has handled the preservation of windows containing Super
Spacer, Edgetech has not been prejudiced. Indeed, Thompson has only made it more
difficult for it to prove its own case. The Court will not dismiss the case or issue a different
spoilation sanction. Nor will the Court exclude Howes on the sole basis that Edgetech says
it has not been able to inspect the same windows that Howes inspected. However, the
Court will hold a Daubert hearing to determine whether Howes is otherwise qualified to give
an expert opinion.
A. Motion for Spoilation Sanctions
1. Legal Standard
“A proper spoliation sanction serves both fairness and punitive functions.” Johnson
v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn., 502 F. App’x 523, 531 (6th Cir.
12
2012) (citing Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (en banc)). District
courts have broad discretion in determining whether spoilation sanctions are appropriate.
Id. (citing Adkins, 554 F.3d at 652). Indeed, “it is within a district court’s inherent power to
exercise broad discretion in imposing sanctions based on spoliated evidence.” Adkins, 554
F.3d at 653.
Sanctions can include, among other things, dismissing the case, granting summary
judgment, or “imposing an adverse inference based on the lost or destroyed evidence.”
Johnson, 502 F. App’x at 531. The Sixth Circuit employs a three-part test in determining
whether sanctions are appropriate:
[A] party seeking an adverse inference instruction based on the
destruction of evidence must establish (1) that the party having
control over the evidence had an obligation to preserve it at the
time it was destroyed; (2) that the records were destroyed “with
a culpable state of mind;” and (3) that the destroyed evidence
was “relevant” to the party’s claim or defense such that a
reasonable trier of fact could find that it would support that
claim or defense.
Id. at 531–32 (citation omitted).
A defendant’s stated reasons for destroying evidence is a credibility issue; the
district court is entitled to great deference in making such determinations. Beaven v. U.S.
Dept. Of Justice, 622 F.3d 540, 554 (6th Cir. 2010).
2. This Case
Assuming that multiple windows containing Super Spacer returned to Thompson
were destroyed by Thompson, it did not do so with a culpable state of mind. Accordingly,
spoilation sanctions are not warranted.
A culpable state of mind, the Sixth Circuit has explained, “depends on the alleged
13
spoliator’s mental state regarding any obligation to preserve evidence and the subsequent
destruction.” Beaven v. U.S. Dept. of Justice, 622 F.3d 540, 553 (6th Cir. 2010). “[T]he
‘culpable state of mind’ factor is satisfied by a showing that the evidence was destroyed
‘knowingly, even if without intent to [breach a duty to preserve it], or negligently.’” Id. at 554
(alterations and emphasis in original) (citation omitted).
Here, to the extent that windows returned to Thompson containing Super Spacer
were thrown away, it was not done with a culpable state of mind. The record does not
support a finding that Thompson intentionally destroyed windows to seek a tactical
advantage in this case. To the contrary, to the extent that any windows were destroyed,
Thompson’s case is now harder to prove.
Further, the record reflects that Thompson’s upper management sought to
safeguard the windows early on in the case. Shortly after the case was filed, Thompson’s
president instructed Thompson’s general manager by email to inform employees to
preserve all returned windows containing Super Spacer.
The general manager
acknowledged the email and informed the president that she had already instructed the
proper personnel to safeguard the returned windows.
Thompson also says that multiple windows were not physically returned to it; the
windows were thrown away by Thompson’s customer without further inquiry by Thompson.
Although this shows sloppiness on Thompson’s part, it does not rise to the level of a
culpable state of mind.
Finally, and most importantly, Edgetech cannot show that it was prejudiced by any
failure on behalf of Thompson to preserve returned windows containing Super Spacer.
Edgetech’s expert, Lingnell, was able to form an opinion as to the cause of failure in
14
Thompson’s windows without regard to any windows that may have been thrown away.
In Lingnell’s report, he stated that he “had the opportunity to review and study documents,
test reports, depositions, e-mails, correspondence, attend depositions, examine insulating
glass units, review glazing systems, and literature prepared by [Thompson].” (Doc. 86-8
at 2, Lingnell Report). Although Lingnell stated in his report that, “[i]t would have [been]
beneficial to have representative samples of the” windows containing Super Spacer which
Thompson threw away “to examine and study . . . their cause(s) of failure,” it did not
preclude him from forming his opinion. (Id. at 10). Indeed, in Lingnell’s report, he
concluded “with a high degree of engineering certainty” that Thompson experienced
problems with its windows due to its own poor workmanship. Because Lingnell was able
to form an opinion without inspecting the windows containing Super Spacer that Edgetech
says were destroyed by Thompson, Edgetech has not been prejudiced and spoilation
sanctions are unwarranted.
B. Motion to Exclude Howes
Next, Edgetech says that Howes should be excluded as a witness because he does
not satisfy the standard to give an expert opinion set forth by the Supreme Court in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Fed. R. Evid. 702.
1. Legal Standard
Under Fed. R. Evid. 702, an expert must be “qualified . . . by knowledge, skill,
experience, training, or education,” and offer an opinion that is (a) helpful to the trier of fact;
(b) based on sufficient facts and data; (c) based on reliable principles and methods; and
(d) reliably applies the principles and methods to the facts of the case.
Daubert establishes that district courts are gatekeepers of expert testimony. 509
15
U.S. at 589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). “In
Daubert, the Supreme Court held that trial judges were required to make an initial
determination ‘of whether the reasoning or methodology underlying [an expert’s] testimony
is scientifically valid and of whether that reasoning or methodology properly can be applied
to the facts in issue.’” Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir. 1999) (citing
Daubert, 509 U.S. at 592–93). This involves a two-step inquiry. Id. The first step ensures
that “there is a ‘fit’ between the testimony and the issue to be resolved by the trial.” Id.
(citation omitted). In other words, the testimony must be relevant to the issues to be
resolved by the trial. The second step ensures that the methodology and principles
underlying the expert’s testimony are reliable. Id. at 496–97.
The Sixth Circuit has stated that “the trial court is not required to hold an actual
hearing to comply with Daubert.” Id. at 498. However, “the court is required to make an
initial assessment of the relevance and reliability of the expert testimony.” Id.
2. This Case
The parties have fully briefed whether Howes is qualified to give an expert opinion
in this case. Edgetech argues that Howes should not be permitted to testify because he
does not have the necessary experience. Further, Edgetech says that Howes’s opinions
are based on assumptions and untested hypotheses.
Thompson disagrees. Thompson says that Howes’s forty years of experience in the
insulated glass industry make him well-qualified to give an expert opinion in this case. In
addition, Thompson says that Edgetech’s attack on the reliability of Howes’s opinion is
essentially an attack on Howes’s credibility, and that this determination must be made by
the jury.
16
To satisfy itself that Howes has the necessary education, training and experience,
and that his opinion is based on that education, training and experience, the Court will hold
a Daubert hearing prior to deciding the motion.
IV. CONCLUSION
For the reasons stated above, Edgetech’s motion for sanctions was denied. The
Court will hold a Daubert hearing prior to deciding whether to exclude Howes’s opinion.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: July 3, 2013
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, July 3, 2013, by electronic and/or ordinary mail.
S/Sakne Chami
Case Manager, (313) 234-5160
17
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