Datatreasury Corporation v. Wells Fargo & Company et al

Filing 631

Defendant First-Citizens Bank & Trust Company's First Amended ANSWER to Complaint with Jury Demand, COUNTERCLAIM against Datatreasury Corporation by First Citizens Bank & Trust Company.(Carlson, Larry)

Case 2:06-cv-00072-DF-CMC

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

DATATREASURY CORPORATION
Plaintiff
CIVIL ACTION NO. 2:06- CV- 72JURY TRIAL DEMANDED

WELLS FARGO & COMPANY, et al.
Defendants.

DEFENDANT FIRST - CITIZENS BANK & TRUST COMPANY' FIRST AMENDED ANSWER. COUNTERCLAIM. AND JURY DEMAND
Defendant First-Citizens Ban

& Trust Company (" First- Citizens Ban" ) files this First

Amended Answer, Counterclaim, and Jury Demand to plaintiff DataTreasury Corporation s First

Amended Complaint for Patent Infringement (" Complaint"

I. THE PARTIES
First- Citizens Bank is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
First- Citizens Ban is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without suffcient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Bank is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

Dockets.Justia.co

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First-Citizens Ban is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Bank is without sufficient knowledge or information either to admit
or deny the allegations of this paragraph of the Complaint.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
10.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
11.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
12.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
13.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
14.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
15.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
16.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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17.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
18.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
19.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

20.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

21.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

22.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

23.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
24.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

25.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

26.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

27.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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28.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

29.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

30.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

31.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

32.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

33.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

34.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

35.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

36.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

37.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

38.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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39.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

40.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

41.

First- Citizens Bank admits that First Citizens BancShares, Inc. is a Delaware

corporation that maintains its principal place of business at 3128 Smoketree Court, Raleigh
North Carolina 27604, and that it can be served with process through its Registered Agent for
Service ,
Lewis R. Holding, 239

Fayettevile Street,

Raleigh,

North Carolina 27601. First-

Citizens Ban denies the remaining allegations of this paragraph of the Complaint.
42.

First- Citizens Bank admits that it is a wholly-owned banking subsidiary of

Defendant First Citizens BancShares, Inc. and that it can be served with process through its
Registered Agent for Service, James B. Hyler, Jr , 239 Fayettevile Street, Raleigh,

North

Carolina 27601. First-Citizens Bank denies the remaining allegations of this paragraph of the

Complaint.
43.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

44.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

45.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

46.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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47.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

48.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

49.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

50.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

51.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint. 52.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
53.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
54.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

55.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
56.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

57.

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

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58.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

II. JURISDICTION AND VENUE
59.

First- Citizens Bank admits that this action arises under the patent laws of the

United States, Title 35 of the United States Code , and that this Court' s subject matter jurisdiction

over this action is proper under 35 U. C. ~ 271 et seq. and 28 U.S. C. ~ 1338. First-Citizens

Ban denies the remaining allegations of this paragraph of the Complaint.
60.

First- Citizens Ban denies the allegations of this paragraph of the Complaint with

respect to First-Citizens Ban and First Citizens BancShares , Inc. First-Citizens Ban is without

sufficient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.
61.

First- Citizens Ban denies that venue is proper in this Court. First- Citizens Bank

denies the remaining allegations of this paragraph of the Complaint with respect to First- Citizens

Bank and First Citizens BancShares , Inc. First-Citizens Bank is without sufficient knowledge or

information either to admit or deny the remaining allegations of this paragraph of the Complaint
with respect to the other defendants.
62.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

63.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
64.

First- Citizens Ban admits that it owns a common limited liability company

membership interest in The Clearing House Payments Company, LLC. First- Citizens Ban
admits that it is a current user of Small Value Payments Company, LLC. First- Citizens Ban

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denies that First Citizens BancShares, Inc. is an owner or curent user of The Clearing House
Payments Company, LLC and/or Small Value Payments Company, LLC. First- Citizens Bank is
without sufficient knowledge or information either to admit or deny the allegations of this

paragraph of the Complaint with respect to the other defendants. First- Citizens Ban denies the
remaining allegations of this paragraph of the Complaint.
65.

First- Citizens Ban denies the allegations of this paragraph ofthe Complaint with
Inc. First-

respect to First-Citizens Ban and First Citizens BancShares ,

Citizens Ban admits

that this Cour determined in a previous Order that Small Value Payments Company was subject
to the specific jurisdiction of this Cour but was not subject to the general jurisdiction of this

Court. First-Citizens Ban is without suffcient knowledge or information either to admit or
deny the allegations of this paragraph of the Complaint with respect to the other defendants.

III. PATENT INFRINGEMENT
66.

First- Citizens Ban admits that on its face U.S. Patent No. 5 910 988 (the ''' 988

Patent") identifies that it issued on June 8 , 1999, identifies Claudio R. Ballard as the sole named
inventor ,
Storage.
and

includes the title "Remote Image Capture
denies the remaining

with Centralized Processing and

First- Citizens Ban

allegations of this paragraph of the

Complaint.
67.

First- Citizens Ban admits that on its face U.S. Patent No. 6 032 137 (the ''' 137

Patent" ) identifies that it issued on February 29 , 2000, identifies Claudio R. Ballard as the sole
named inventor, and includes the title "Remote Image Capture with Centralized Processing and

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Storage. "

First- Citizens Bank denies

the

remammg allegations of this paragraph of the

Complaint.
68.

First- Citizens Ban admits that on its face U. S. Patent No. 5 265, 007 (the ''' 007

Patent" ) identifies that it issued on November 23 , 1993 , identifies John L. Barhhard , Jr., Thomas

K. Bowen, Terry L. Geer, and John W. Liebersbach as named joint inventors , and includes the

title "Central Check Clearing System. "
this paragraph of the Complaint.

First-Citizens

Bank denies the remaining allegations of

69.

First- Citizens Bank admits that on its face U. S. Patent No. 5 583 759 (the ''' 759
1996 ,

Patent" ) identifies that it issued on December 10 ,

identifies Terry L. Geer as the sole

named inventor, and includes the title "Mechanism for Expediting the Deposit , Transport and
Submission of Checks into the Payment System. " First-Citizens

Bank denies the remaining

allegations of this paragraph of the Complaint.

70.

First- Citizens Ban admits that on its face U.S. Patent No. 5 717 868 (the ''' 868
10 , 1998 ,

Patent") identifies that it issued on February

identifies David L. James as the sole
First-

named inventor, and includes the title "Electronic Payment Interchange Concentrator.

Citizens Bank denies the remaining allegations of this paragraph of the Complaint.
71.

First- Citizens Ban admits that on its face U.S. Patent No. 5 930 778 (the "' 778
1999 ,

Patent") identifies that it issued on July 27,

identifies Terry L. Geer as the sole named

inventor , and includes the title " System for Expediting the Clearing of Financial Instruments and

Coordinating the Same with Invoice Processing at the Point of Receipt." First- Citizens Bank
denies the remaining allegations of this paragraph of the Complaint.
72.

First- Citizens Bank denies the allegations of this paragraph of the Complaint.

988 and' 137 Patents , for which the Court has entered a stay as to First- Citizens Bank and First Citizens BancShares. (See Docket No. 397). By submitting this answer, First-Citizens Bank does not waive its rights under the stay and seeks no relief from the stay.

I First- Citizens Bank submits its answer as to allegations regarding the '

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IV. COUNT ONE - THE ' 988 DEFENDANTS
73.

First- Citizens Ban denies that either it or First Citizens BancShares ,

Inc. has

been or is infringing the ' 988 Patent by making, using, selling, offering for sale , and/or importing
in or into the United States ,

directly, contributorily, and/or by inducement ,

without authority,

products and services that fall within the scope of the claims of the ' 988 Patent. First-Citizens
Bank is without sufficient knowledge or information either to admit or deny the allegations of
this paragraph of the Complaint with respect to the other defendants. First- Citizens Bank denies
the remaining allegations of this paragraph of the Complaint.
74.

First- Citizens Bank denies that either it or First Citizens BancShares,

Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 988 Patent among the

defendants and by others. First- Citizens Bank is without sufficient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
75.

First- Citizens Bank denies that either it or First Citizens BancSharcs ,

Inc. has

infringed or is infringing the ' 988 Patent wilfully or otherwise. First- Citizens Bank is without

sufficient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.
76.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

V. COUNT TWO - THE ' 137 DEFENDANTS
77.

First- Citizens Ban denies that either it or First Citizens BancShares,
offering for sale ,

Inc. has

been or is infringing the ' 137 Patent by making, using, sellng,
in or into the United States ,

and/or importing

directly, contributorily, and/or by inducement ,

without authority,

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products and services that fall within the scope of the claims of the ' 137 Patent. First- Citizens
Bank is without sufficient knowledge or information either to admit or deny the allegations of

this paragraph of the Complaint with respect to the other defendants. First- Citizens Bank denies
the remaining allegations of this paragraph of the Complaint.

78.

First- Citizens Bank denies that either it or First Citizens BancShares,

Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 137 Patent among the

defendants and by others. First- Citizens Ban is without sufficient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
79.

First- Citizens Ban denies that either it or First Citizens BancShares ,

Inc. has

infringed or is infringing the ' 137 Patent wilfully or otherwise. First- Citizens Bank is without

sufficient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.
80.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

VI. COUNT THREE - THE ' 007 DEFENDANTS
81.

First- Citizens Ban denies that either it or First Citizens BancShares ,

Inc. has

been or is infringing the ' 007 Patent by making, using, selling, offering for sale , and/or importing
in or into the United States ,

directly, contributorily, and/or by inducement ,

without authority,

products and services that fall within the scope of the claims of the ' 007 Patent. First- Citizens

Ban is without sufficient knowledge or information either to admit or deny the allegations of
this paragraph of the Complaint with respect to the other defendants. First- Citizens Bank denies
the remaining allegations of this paragraph of the Complaint.

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82.

First- Citizens Ban denies that either it or First Citizens BancShares ,

Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 007 Patent among the

defendants and by others. First- Citizens Ban is without sufficient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
83.

First- Citizens Ban denies that either it or First Citizens B anc Shares,

Inc. has

infringed or is infringing the ' 007 Patent wilfully or otherwise. First- Citizens Ban is without

suffcient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.

VII. COUNT FOUR - THE ' 759 DEFENDANTS
84.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph ofthe Complaint.
85.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.
86.

First- Citizens Bank is without suffcient knowledge or information either to admit

or deny the allegations ofthis paragraph of the Complaint.

VIII. COUNT FIVE - THE ' 868 DEFENDANTS
87.

First- Citizens Ban denies that either it or First Citizens BancShares ,
sellng, offering for sale ,

Inc. has

been or is infringing the ' 868 Patent by making, using,
in or into the United States,

and/or importing

directly, contributorily, and/or by inducement ,

without authority,

products and services that fall within the scope of the claims of the ' 868 Patent. First-Citizens

Ban is without sufficient knowledge or information either to admit or deny the allegations of

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this paragraph of the Complaint with respect to the other defendants. First- Citizens Bank denies
the remaining allegations of this paragraph of the Complaint.
88.

First- Citizens Bank denies that either it or First Citizens BancShares,

Inc. has

been or is actively inducing and/or contributing to the infringement of the ' 868 Patent among the

defendants and by others. First- Citizens Ban is without suffcient knowledge or information

either to admit or deny the allegations of this paragraph of the Complaint with respect to the
other defendants.
89.

First- Citizens Ban denies that either it or First Citizens BancShares ,

Inc. has

infringed or is infringing the ' 868 Patent willfully or otherwise. First- Citizens Bank is without

suffcient knowledge or information either to admit or deny the allegations of this paragraph of
the Complaint with respect to the other defendants.

IX. COUNT SIX - THE
90.

778

DEFENDANTS

First- Citizens Ban is without suffcient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

91.

First- Citizens Bank is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

92.

First- Citizens Ban is without sufficient knowledge or information either to admit

or deny the allegations of this paragraph of the Complaint.

93.

First- Citizens Bank denies that plaintiff is entitled to any of the relief requested in

paragraphs A.-H.

of the Relief section of the Complaint.

AFFIRMATIVE DEFENSES
First Defense
94.

This Court lacks personal jurisdiction over First- Citizens Bank.

..

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Second Defense

95.

Venue in the Eastern District of Texas is improper.
Third Defense

96.

First- Citizens Ban has not infringed any valid claim of the ' 007 Patent or the

868 Patent (collectively, the "Asserted Patents
Fourth Defense

97.

The claims of the Asserted Patents are invalid for failure to comply with the

requirements of Title 35 of the United States Code.

Fifth Defense
98.

The Asserted Patents are unenforceable by reason of inequitable
United States Patent and Trademark Office during

conduct

committed at the

prosecution of the

applications that eventually matured into the Asserted Patents.

Sixth Defense
99.

On information and belief,

First-

Citizens Ban enjoys actual and/or implied

licenses to the Asserted Patents.
Seventh Defense 100.

Plaintiff's claims of alleged infringement of the Asserted Patents are barred , in

whole or in part, under the doctrine of laches and/or the statute of limitations.
Eighth Defense

101.

At least some of the allegedly infringing activities of First- Citizens Bank that

DataTreasury complains of in its Complaint were " for the Government and with the

authorization or consent of the Governent" for the purposes of28 U.

C. ~ 1498(a).

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102.

At least

par of DataTreasury

s remedy for First-Citizens Ban' s

allegedly

infringing use complained of in the Complaint " shall be by action against the United States in the

United States Court of Federal

Claims for the recovery of
C. 9 1498(a).

(its) reasonable and entire

compensation for such use" pursuant to 28 U.

COUNTERCLAIM
Subject to and without waiving the defenses of lack of personal jurisdiction and improper
venue , Defendant First-Citizens Bank counterclaims against plaintiff for declaratory judgment
and alleges the following:
First- Citizens Bank incorporates by reference
all of the allegations of the

preceding Answer from paragraphs 1 to 102.

This counterclaim arises under the Federal Declaratory Judgment Act , 28 V.
99 2201-

, and the patent laws of the United States set forth in Title 35 of the United States

Code and in Title 37 of the Code of Federal Regulations.

This Court has jurisdiction over this counterclaim pursuant to 28 U.S. C.
1338(a), and 2201 (a).

99 1331

Venue is based on 28 U. C. 99 1391(b), (c) and 1400(b). This Cour has

personal jurisdiction over plaintiff.

Plaintiff filed the Complaint against First- Citizens Bank and other defendants for
infringement of the Asserted

Patents. Accordingly, an actual justiciable case or controversy

exists between plaintiff and defendants.
First- Citizens Bank has not infringed any valid claim of the Asserted Patents.

The claims of the Asserted Patents are invalid for failure to comply with the
requirements of Title 35 of the United States Code.

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The Asserted
committed at the

Patents are unenforceable by reason

of inequitable

conduct

United States Patent and Trademark

Offce during prosecution of the

applications that eventually matured into the Asserted Patents.

On information and belief,
licenses to the Asserted Patents.

First-

Citizens Bank enJoys

actual and/or implied

Plaintiffs claims of alleged infringement of the Asserted Patents are barred , in

whole or in par, under the doctrine of laches and/or the statute of limitations.

PRAYER FOR RELIEF
WHEREFORE , First-Citizens Ban respectfully prays that this Court:

Dismiss the Complaint with prejudice;
Adjudge , declare, and decree that the claims of the Asserted Patents are invalid

and not infringed by First-Citizens Ban;

Permanently enjoin plaintiff,

its successors , and assigns ,

and anyone acting in

concert therewith or on its behalf, from attempting to enforce the Asserted Patents against First-

Citizens Bank or any parent,

affiiate,

or subsidiar of First- Citizens Ban,

or its respective

offcers , agents, employees, successors , and assigns;
Find this case exceptional and award reasonable attorneys '
fees to First-

Citizens

Ban pursuant to 35 U.

C. 9 285;

Award the costs ofthis case to First- Citizens Ban; and
Award to First-Citizens Ban any further relief to which First- Citizens Bank is
entitled.

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JURY DEMAND
First- Citizens Ban demands a trial by jury of all issues so triable pursuant
to Federal

Rule of Civil Procedure 38.

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Dated: April 9, 2007.

Respectfuly submitted

/s/ Lary D. Carlson
Larry D. Carlson, Attorney-in-Charge Texas State Bar No. 03814500

Mail: lary.carlson(fbakerbotts. com
Fernando Rodriguez , Jr. Texas State Bar No. 24005048 Mail: fernando. rodriguez(fbakerbotts. com David O. Taylor Texas State Bar No. 24042010 Mail: david. taylor(fbakerbotts. com BAKER BOTTS L.L.P. 2001 Ross Avenue , Suite 600 Dallas , Texas 75201 Telephone: [phone] Facsimile: (214) 953- 6503

Donalt J. Eglinton
Mail: dje(fwardandsmith. com WARD AND SMITH , P. Post Office Box 867 New Bern, North Carolina 28563 Telephone: [phone] Facsimile: (252) 672- 5477

ATTORNEYS FOR DEFENDANTS FIRSTCITIZENS BANK & TRUST COMPANY AND FIRST CITIZENS BANCSHARES , INC.

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CERTIFICATE OF SERVICE

I certify that on April

9 , 2007 , all counsel

who are deemed to have consented to

electronic service are being served with a copy of this document by the Court' s Electronic Filing System , pursuant to Local Rule CV-5(a)(3)(A).

/s/ Larry D. Carlson Larry D. Carlson