SKULL SHAVER, LLC v. IDEAVILLAGE PRODUCTS CORP.
Filing
105
OPINION. Signed by Judge Evelyn Padin on 12/28/2022. (qa, )
Case 2:18-cv-03836-EP-AME Document 105 Filed 12/28/22 Page 1 of 22 PageID: 804
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SKULL SHAVER, LLC,
Case No. 18-cv-3836 (EP) (AME)
Plaintiff,
OPINION
v.
IDEAVILLAGE PRODUCTS CORP.,
Defendant.
PADIN, District Judge.
Before the Court is Defendant
motion for
summary judgment, in which it asserts non-i
Civ. P. 56. The Court decides this matter on the papers pursuant to Fed. R. Civ. P. 78 and L.Civ.R.78.1(b).
motion will be GRANTED.
I.
BACKGROUND
Skull Shaver is a
New Jersey corporation. Id. ¶ 2. This Court has federal question jurisdiction over this matter
under 28 U.S.C. § 1338(a) because the cause of action arises under the United States Patent Laws,
particularly, 35 U.S.C. §§ 271 and 289. Id. ¶ 3.
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Skull Shaver designs and sells electric shavers, including the patented Head Shaver product
at issue here. Id. ¶¶ 5-6;1 see also D.E. 74-4. The design patent for the Head Shaver product was
issued on November 5, 2013. Compl. ¶ 6.
-4.
The parties agree that the Head Shaver has four major elements: (1) an egg-shaped handle
with concave grooves on the underside and sides of the handle; (2) an extended neck; (3) a collar;
and (4) a flat shave head. D.E. 74-
-
Accordi
Head Shaver. Compl. ¶ 6.
56.1 Stmt. ¶ 12. On July 9, 2019, a design patent for the Flawless Legs product was issued to IDV
see also D.E. 746.
D.E. 74-6.
While the parties agree that there are dissimilarities between the patented design and the
whether these dissimilarities are merely exampl
See D.E. 74-
-18; see also
-26.
Skull Shaver filed this action on March 20, 2018. See Compl. Skull Shaver alleges that
, 2018, Judge Arleo
after finding that, based on the plausibility of the pleadings and
1
The Court uses the assigned paragraph numbers in the Complaint, despite the numbering error
on the second page.
2
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the benefit that would be obtained from a complete evidentiary record, the Court could not
determine
n had been infringed. See D.E. 15.
Now, with the benefit of a more complete evidentiary record, IDV moves for summary
See Mot. IDV asserts that the
Flawless Legs product does not infringe on the Head Shaver design because the two are not
substantially the same. Id. Being fullyjudgment motion.
II.
STANDARD OF REVIEW
dispute as to any material fact an
Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 136, 145-46 (3d Cir. 2004).
the evidence is such that a reasonable jury c
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or
unnecessary facts will not preclude the Court from granting a motion for summary judgment. See
id. The moving party must support its motion by citing to specific materials in the record. Fed.
R. Civ. P. 56(c)(1)(A).
Once the moving party has adequately supported its motion, the burden shifts to the
r by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing that there is a
Celotex Corp., 477 U.S. at 324 (internal quotation marks omitted). The
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nonmoving party must identify specific facts and affirmative evidence that contradict the moving
party. Anderson
Thimons v. PNC
Bank,
Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000)
(quoting Anderson, 477 U.S. at 249Anderson, 477 U.S. at 250-51.
In reviewing a motion for summary judgment
Marina v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255). But if
summary judgment is appropriate. Celotex Corp., 477 U.S. at 322.
III.
DISCUSSION
A. Legal Framework
The patent system aims to promote advancements of the arts and sciences by protecting
investment in research and minimizing free-riding. To achieve this aim, inventors are granted the
exclusive right to profit from their inventions for a period of years. Sinclair & Carroll Co. v.
Interchemical Corp., 325 U.S. 327, 330 (1945).
This exclusive right is preserved by the
presumption that all existing patents are valid, 35 U.S.C. § 22 (1994), and this presumption can
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only be overcome by clear and convincing evidence to the contrary. See, e.g., WMS Gaming Inc.
, 184 F.3d 1339, 1355 (Fed. Cir. 1999).
A design patent only protects the novel, ornamental components of the patented design.
See KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444, 1450 (Fed. Cir. 1993);
see also 35 U.S.C. § 171(a). In other words, only the non-functional components of a product are
protected. Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1188 (Fed. Cir. 1988).
The validity of a patent may be attacked in several different ways. For example, where a
See Polymer Indus.
Products Co. v. Bridgestone/Firestone, Inc.
-18 (Fed. Cir. 2001).
Additionally, if
already existed in the public domain when the patent was obtained then it will be deemed invalid.
Retractable Technologies, Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1309 (Fed. Cir. 2011).
But where an inventor holds a valid patent, the inventor may bring suit against any parties
Infringement upon a design
patent occurs when a party, without license of the owner, either applies the patented design, or any
colorable imitation therefore, to any article of manufacture for the purpose of sale, or sells or
exposes for sale any article of manufacture to which such design or colorable imitation has been
applied. Super-Sparkly Safety Stuff, LLC v. Skyline USA, Inc.
2020) (citing 35 U.S.C. § 289) (quotation marks omitted).
In determining whether an accused product infringes a patented design, courts engage in a
two-step analysis. Markman v. Westview Instruments, 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc),
, 517 U.S. 370 (1996). First, a court construes the patent. Id.
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Specifically, with respect to a design patent, courts need not conduct elaborate claim
construction in the first step because a design patent is construed as it is shown in the patent
drawings. See Dobson v. Dornan, 118 U.S. 10, 14 (1886) (explaining that an illustration depicts
see also Crocs, Inc. v. ITC, 598 F.3d 1294, 1302 (Fed. Cir.
esign patents are typically claimed as shown in drawings, and claim construction must
; MSA Products, Inc. v. Nifty Home Products,
Inc., 883 F. Supp. 2d 535, 540-41 (D.N.J. 2012) (citation omitted). Additionally, because design
OddzOn Products, Inc. v. Just Toys, Inc.,
122 F.3d 1396, 1405 (Fed. Cir. 1997).
Second, the factfinder compares the accused product to the patented design to determine
infringement. Gorman Co. v. White, 81 U.S. 511, 526 (1871); see also OddzOn Products, Inc.,
122 F.3d at 1404-05. This is a question of fact. L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d
1117, 1124 (Fed. Cir. 1993).
fringement has occurred. Crocs, Inc., 598 F.3d at 1301.
observer, giving such attention as a purchaser usually gives, two designs are substantially the same,
if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing
Gorham v. White, 81 U.S. 511, 527 (1871); see also Crocs, Inc., 598 F.3d at
ary observer, familiar with the prior
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art designs, would be deceived into believing that the accused product is the same as the patented
The ordinary observer test proceeds in two stages. See Wallace v. Ideavillage Prods. Corp.,
0, 971-72 (Fed. Cir. 2016
design will be sufficiently distinct that it will be clear without more that the patentee has not met
Id. at 972 (citing Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir.
2008) (en banc)).
then there is no infringement, and the inquiry ends here. See
Super-Sparkly Safety Stuff, LLC
Egyptian Goddess, Inc., 543 F.3d at
678).
But, [i]n other instances, when the claimed and accused designs are not plainly dissimilar,
resolution of the question whether the ordinary observer would consider the two designs to be
substantially the same will benefit from a comparison of the claimed and accused designs with the
Id.
between the claimed and accused designs that might not be noticeable in the abstract can become
significant to the hypothetical ordinary observer who is conversant with the pr
Egyptian
Goddess, Inc., 543 F.3d at 678.
Significantly,
OddzOn Products, Inc., 122 F.3d at 1405 (citing Braun
Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 820 (Fed. Cir. 1992); Crocs, Inc., 598 F.3d at 1303
)(
is the appearance of a design as a whole which is controlling in determining infringement. There
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can be no infringement based on the similarity of specific features if the overall appearance of the
OddzOn Products, Inc., 122 F.3d at 1405. Typically, a side-by-side
comparison is best. See, e.g., Crocs, Inc., 598 F.3d at 1304.
Although the comparison in the second step is one for the factfinder, not the judge, a district
reasonably be viewed as so similar to the claimed design that a purchaser familiar with the prior
art would be deceived by the similarity between the claimed and accused designs, inducing him to
Egyptian Goddess, Inc., 543 F.3d at 670 (citation and
quotation marks omitted). The Federal Circuit often affirms such decisions. See, e.g., Lanard
Toys, Ltd. v. Dolgencorp LLC, 958 F.3d 1337, 1347 (Fed. Cir. 2020); Egyptian Goddess, Inc., 543
F.3d at 683; OddzOn Products, Inc., 122 F.3d at 1407.
A.
Skull Shaver claims that
product
Shaver design patent. In moving for summary judgment, IDV claims that its product does not
patented design due to substantial differences and missing design
features between the two products. Mot. at 1. Considering the legal framework explained in the
preceding section, the Court now applies the two-
Court concludes that it does not.
1. Claim Construction
In the first step, the Court
in the
focuses on the ornamental features depicted
. See Lanard Toys, Ltd.
re claimed as shown in
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The Court does not consider any functional features of the Head
in construing the claim. See id.
claims
-
the seven figures
depicted below.2
See id.
Based on the above, there are at least four ornamental features within the scope of the
patented design: (1) an egg-shaped handle with no corners (see FIG. 3 above); (2) an elongated
neck separating the handle and the base (see FIG. 5, FIG. 6, and FIG. 7); (3) a collar beneath an
elongated neck (see FIG. 5, FIG. 6, and FIG. 7); and (4) a flat base (see FIG. 5, FIG. 6, and FIG.
7). All four of these ornamental features, considered together,
overall visual effect.
The Court omits the corresponding descriptions because they describe only the view of each
figure.
2
9
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IDV identifies one additional feature, which it claims is ornamental in nature: the concave
grooves present on the underside and sides of the Head Shaver (see FIG. 1 and FIG. 2 above). The
Court disagrees and factors out this feature because it is functional. Specifically, the concave
See Stiles v. Walmart, 2022 U.S. Dist. LEXIS 203768, at *35 (E.D. Cal. Nov. 7, 2022) (concluding
Accordingly, the Court concludes that the four ornamental features identified above, when
considered together,
2. Ordinary Observer Test
Turning now to the second step, the Court must apply the ordinary observer test. It is at
this step that Skull Shaver primarily argues that material issues of fact exist, such that summary
judgment in favor of IDV is inappropriate. The Court concludes that no material issues of fact
exist, and as such, IDV is entitled to summary judgment.
ed
design because a side-by-side comparison of the accused product and the patented design
demonstrates that the two are
distinct
observer test. Two side-by-side comparisons of view are provided below for completeness,
because the two parties submitted slightly different angles, sizes, and color versus black-and-white
versions. For each view and version, the
and the corresponding views of the Flawless Legs product are depicted on the right. See Lanard
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Toys, Ltd., 958 F.3d at 1344 (noting that the accused product is to be compared to the claimed
design, not a commercial embodiment) (citation and quotation marks omitted).
Figure 1
IDV Version:3
Mot. at 11.
Figure 1
Skull Shaver Version: 4
Figure 2
IDV Version:5
Mot. at 12.
3
Head Shaver (left). Flawless Legs (right).
Head Shaver (left). Flawless Legs (right).
5
Head Shaver (left). Flawless Legs (right).
4
11
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Figure 2
Skull Shaver Version: 6
Figure 3
IDV Version:
Mot. at 12.
Figure 3
Skull Shaver Version:
Figure 4
IDV Version:
6
Head Shaver (left). Flawless Legs (right).
12
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Mot. at 13.
Figure 4
Skull Shaver Version:7
Figure 5
IDV Version:
Mot. at 13.
Figure 5
7
Skull Shaver Version:
Head Shaver (left). Flawless Legs (right).
13
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Figure 6
IDV Version:8
Mot. at 14.
Figure 6
Skull Shaver Version:
Figure 7
IDV Version:
Mot. at 15.
8
Head Shaver (left). Flawless Legs (right).
14
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Figure 7
Skull Shaver Version: 9
Although the accused product and the patented design share certain features, when the two
are appreciated as a whole, the ornamental dissimilarities illustrate why an ordinary observer
would not confuse one with the other. First, the shape of the handle: the Head Shaver design has
an egg-shaped handle with no corners (see FIG. 1), whereas the Flawless Legs product has a
computer mouse-shaped handle with two corners and a less pronounced curvature overall (see
comparison to FIG. 1). See Black & Decker, Inc. v. N. Am. Philips Corp., 632 F. Supp. 185, 190
(D. Conn. 1986) (finding that the most obvious difference between the accused and claimed
designs was the shape of their respective handles). Second, the elongated neck between the handle
and the base: the Head Shaver design has an elongated neck separating the handle from the base
(see FIG. 5, FIG. 6, and FIG. 7), whereas the Flawless Legs product does not have an elongated
neck the handle appearing to be almost directly connected to the base (see comparison to FIG.
5, FIG. 6, and FIG. 7). See Minka Lighting, Inc. v. Maxim Lighting
, 2009 U.S. Dist.
LEXIS 20948, at *19-20 (N.D. Tex. Mar. 16, 2009) (explaining that a distinct ornamental hook in
the center portion of the lamp support arm readily distinguished the accused design from the
claimed design, where the latter did not have this hook).
9
Head Shaver (left). Flawless Legs (right).
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Third, the collar below the elongated neck: the Head Shaver design has a collar directly
below the elongated neck (see FIG. 5, FIG. 6, and FIG. 7), whereas the Flawless Legs product has
no apparent collar
the handle appears directly connected to the base (see comparison to FIG. 5,
FIG. 6, and FIG. 7). Finally, the base: the Head Shaver design has a sleek, flat base (see FIG. 5
and FIG. 6), whereas the Flawless Legs product has a thicker, rounded base (see comparison to
FIG. 5 and FIG. 6). See Wing Shing (BVI) Co. Ltd. v. Sunbeam Prods., Inc., 665 F. Supp. 2d 357,
362, 367 (S.D.N.Y. 2009) (finding that the base of the accused and claimed designs, which was a
focal point of the overall design of the products, was so dissimilar that no ordinary observer would
confuse the two).
All of the dissimilarities
described above
are subject to no factual disputes and when
appreciated in combination, make clear that the overall appearance of the Flawless Legs Product
substantially differs from that of the Head Shaver design. As a result, an ordinary observer would
not confuse one for the other.
the ordinary observer would alter this conclusion. The Court will explain why.
IDV takes the position that the ordinary observer is a customer who shops in a brick-andmortar retail store, where a substantial percentage of its Flawless Legs product is sold, and would,
therefore, pay more attention to the differences between the two products. Mot. at 4-5. According
customer who shops online, rather than an in-person shopper, that the
and should be excluded. Id. at 21-22. Skull Shaver responds that an online customer would be
able to zoom in on photographs of the product without any distracting packaging,
,
which implies that an online customer would pay just as much attention to the differences in the
two products as would an in-person customer. Skull Shaver makes this implication in an effort to
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support the reliability of its expert, but instead ends up demonstrating exactly why the identity of
the ordinary observer, whether as an online or in-person customer, does not change the conclusion
that the ordinary observer would not confuse the Head Shaver with the Flawless Legs.
This is true regardless of: whether the ordinary observer is an online customer, who, as
Skull Shaver points out would likely be able to zoom in on the photographs of the product, such
that he/she would observe that the overall designs of the two products are different; or whether
he/she is an in-person customer, who, would be able to tell that the overall designs of the two
products differ, despite the presence of packaging. See Stiles, 2022 U.S. Dist. LEXIS 203768, at
*37-38 (explaining that a jury would compare not the two products in their packages, or even
without their packages, but rather would compare the accused and claimed designs) (citing Lanard
Toys, Ltd., 958 F.3d at 1344). Thus, the identity of the ordinary observer does not create a material
issue of fact.
Additionally, Skull Shaver argues that there are conflicting expert reports and that this
acknowledges certain ornamental differences in the Head Shaver design and the Flawless Legs
product, but concludes that the differences are minor, such that the two are substantially similar.
See
-
See Mot. at 20 n.4. The Court
disagrees
First, while Skull Shaver accuses IDV of focusing on the individual ornamental features,
rather than on overall appearance, Skull Shaver does just that by directing the Court to focus on
minute similarities, while ignoring the clear dissimilarities in the overall appearance of the Head
Shaver design and the Flawless Legs product. For example, Skull Shaver directs the Court to side
views of the Head Shaver design and of the Flawless Legs product for the proposition that the two
17
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an egg-shaped body located almost centrally above an essentially rectangular base with
rounded edges
those side-by-side comparisons, considered as a whole,
emphasize the different overall visual effect of the Head Shaver design and the Flawless Legs
product. Specifically, the Head Shaver design has a distinct, elongated neck and collar, both of
which are missing from the Flawless Legs product, as well as a distinct egg-shaped handle
compared to the distinct computer mouse-shaped handle of the Flawless Legs product. Taken
together, these prominent ornamental features, which are plainly evident in the side-by-side
comparison, sufficiently convince the Court that there is no material issue of fact that the overall
visual effect of the accused product and patented design differs.
dissimilar ornamental features on the overall visual effect, this does not create a material issue of
fact because a visual comparison reveals that the accused product is not substantially similar to the
patented design. See H
, 2009 U.S. Dist. LEXIS 27056, at *39
-
infringement under the ordinary observer test, expert testimony submitted by a plaintiff cannot
create a material issue of fact where the visual comparison reveals that the alleged infringing
see also Bush Indus.
, 772 F. Supp. 1442, 1450 (D. Del. 1991) (
provide
the fact
that the parties submitted conflicting expert declarations on what an ordinary observer would
conclude); Lawman Armor Corp. v. Master Lock Co., 2004 U.S. Dist. LEXIS 3705, at *25-26
(E.D. Pa. Mar. 11, 2004),
court,] note that nothing more is required under the ordinary observer analysis than conducting a
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visual comparison of the patented
;
v.
L.A. Gear Cal., Inc., 853 F.2d 1557, 1564 (Fed. Cir. 1988). The Court has visually compared the
accused product with the patented design, which shows that the accused product and the patented
design are substantially dissimilar. Thus, the conflicting expert reports do not create a material
issue of fact.
The Court notes that IDV also seeks to preclude the report and testimony
expert, Hatch, but does not do this by way of a separate motion. See Mot. at 20-25. Skull Shaver
argues
D.E. 89-
See
-
-3. In finding that the Flawless Legs product does not infringe upon
matter of law, the Court does not rely on expert opinions, but rather
on the side-by-side comparison of the accused product and the patented design. Thus, at this
juncture, the Court need not resolve
should
be precluded.
504 P
See
at 29-32. Because, as Skull Shaver points out, the exception in 35 U.S.C. § 102(b)(1) excludes the
504 Patent from being prior art for the Head Shaver design, the Court agrees with Skull Shaver
on this argument. But this conclusion does not alter the conclusion that IDV is entitled to summary
judgment because where the Court has determined that the accused product and the claimed design,
of the accused and patented designs with
the prior art is not necessary. See Egyptian Goddess, Inc., 543 F.3d at 678-79 (explaining that
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ordinary observer question would benefit from a comparison with prior art).
In Ethicon Endo-Surgery, Inc. v. Covidien, Inc, 796 F.3d 1312, 1337 (Fed. Cir. 2015), the
provided by the
art, as resolution
of the infringement inquiry was already clear
Id. (citation omitted). With this, the Court
material issue of fact because the side-by-side comparison shows that the accused and claimed
design are plainly dissimilar to the ordinary observer.
Patent Rules. Specifically, Skull Shaver claims that I
Patent Rules should preclude summary judgment. See
-10. According to Skull Shaver,
IDV did not timely amend its non-infringement contentions to include its position that the ordinary
observer is an in-person customer at a brick-and-mortar retail store. See id. IDV responds that it
did not violate the Local Patent Rules
position that IDV was required to define the ordinary observer in its non-infringement contentions.
-10. According to IDV, Skull Shaver had not raised the issue of the ordinary
given information relevant to
Id. at 7. It follows, IDV asserts, that if IDV was
required to amend its non-infringement contentions that so was Skull Shaver. See id.
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dispute does not create a material issue of fact.
ordinary observer is an online customer or an in-person customer at a brick-and-mortar retail store,
but as the Court concludes above, regardless of whether the ordinary observer is an online or inperson customer, he/she would not confuse the accused product and the patented design because
-infringement
contentions were deficient, as Skull Shaver claims, they do not preclude summary judgment
because Skull Shaver has waited until the present motion to raise this argument for the first time.
See Shure Inc. v. Clearone, Inc., 2021 U.S. Dist. LEXIS 177232, at *16 n.8 (D. Del. Sept. 17,
-
.
Finally, Skull Shaver contends that summary judgment is inappropriate because Judge
D.E. 89-1 at 4. According to Skull Shaver, if
the two designs were not substantially similar, Judge Arleo would have dismissed the case. Id.
But as IDV correctly points out, denial of a motion to dismiss does not preclude a subsequent
motion for summary judgment. D.E 95 at 5. The Court also
explicitly states
i
C&A Mktg., Inc. v. Gopro, Inc., 2016 U.S. Dist. LEXIS 54671, at *1 (D.N.J. Apr. 25, 2016).
Accordingly, with the benefit of an evidentiary record and having applied the necessary two-step
analysis, the Court now grants summary judgment in favor of IDV.
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Based on the foregoing reasons, the Court concludes that no reasonable juror could
nfringed upon by
law.
IV.
CONCLUSION
For the reasons explained above,
GRANTED. An appropriate Order accompanies this Opinion.
Dated: December 28, 2022
_______________________
Hon. Evelyn Padin, U.S.D.J.
22
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