Madison National Life Insurance Company, Inc. v. Polysystems, Inc.

Filing 44

ORDER denying 21 MOTION for Summary Judgment by Plaintiff Madison National Life Insurance Company, Inc., granting 28 MOTION for Summary Judgment by Defendant Polysystems, Inc. Signed by Chief Judge Barbara B. Crabb on 5/28/2009. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------M AD ISO N NATIONAL LIFE IN S U R AN C E COMPANY, INC., OPINION AND ORDER Plaintiff, 0 8 - cv -3 8 7 - b b c v. PO L Y S Y S T EM S , INC., D efendan t. --------------------------------------------T h is is a breach of contract action that was originally brought in the Circuit Court for D an e County, Wisconsin. In its complaint, plaintiff Madison National Life Insurance C o m p an y, Inc. alleges that defendant PolySystems, Inc. unilaterally repudiated a licensing agreem ent and refused to perform its obligations under the agreement. Dkt. #1-3. On July 7 , 2008, defendant PolySystems, Inc. properly removed the case to this court. Dkt. #1-1. Ju risd ictio n is present. 28 U.S.C. §§ 1332 & 1441. T h e parties have both filed motions for summary judgment. Dkts. ##21 & 28. I co n clu de that no reasonable jury could find defendant liable for an anticipatory breach of the licensing agreement. Accordingly, defendant's summary judgment motion will be

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granted and plaintiff's will be denied. As an initial matter, the parties dispute whether a May 2008 letter sent by defendan t's attorneys is admissible in evidence. In the letter, counsel explained defendant's po sition that it was not required to refund license fees as plaintiff demanded and proposed that the parties proceed as discussed in February. Plaintiff seeks to introduce the letter b ecause it refers to defendant's attorneys' conclusion that "the License Agreement ha[d] been materially breached" by plaintiff. Graber Supp. Decl., dkt. #40, exh. 3. However, as defendant correctly notes, the letter is immaterial as well as inadmissible under Fed. R. Evid. 408. It is immaterial because it was received after plaintiff had already deemed the

agreem ent repudiated. The letter is dated May 23, 2008, which is more than a month after plaintiff sent defendant a letter requesting a full refund and more than two months after plaintiff stopped implementing the software and made an oral request for a full refund. Plaintiff has made it clear in its complaint and summary judgment briefs that it believes that defendant's statements and conduct in February 2008 established an anticipatory repud iation of the agreement. Further, in April 2008, plaintiff advised defendant that it believed that defendant had already refused to perform by then and that plaintiff wanted a refund. What defendant said after February or, at the latest, after April, is immaterial in determ ining whether defendant's actions and statements in February constituted an an ticipatory repudiation of the agreement.

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In addition to being immaterial, the letter cannot be used as evidence without violating Fed. R. Evid. 408, which states in relevant part: Eviden ce of the following is not admissible on behalf of any party, when offered to pro ve liability for . . . a claim that was disputed as to validity . . . : con duct or statements made in compromise negotiations regarding the claim .... T h e letter proposes a resolution to the parties' dispute and states in the heading, "For S ettle m en t Purposes Only[.]" Graber Supp. Decl., dkt. #40, exh. 3. A ltho ugh the letter falls under Rule 408's prohibition, plaintiff contends that Rule 408 does not apply; if it did, defendant could tell plaintiff that plaintiff had breached the co n tract and then "change its mind" and hide behind Rule 408. Plt.'s Reply Br., dkt. #37, at 9-10 n.5. Plaintiff cites Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477, 484-85 (7th Cir. 2000), in support of its contention that the letter is admissible. In Bankcard America, 203 F.3d at 484, the Court of Appeals for the Seventh Circuit noted: The purpose of Rule 408 is to encourage settlements. Settlements will not be en co uraged if one party during settlement talks seduces the other party into violating the contract and then, when settlement ultimately is not reached, accuses the other p a r ty at trial of violating the contract. To use Rule 408 to block evidence that the violation of the contract was invited would be unfair. D e fen dan t's letter did not encourage plaintiff to breach the agreement and defendant is not con tendin g in this lawsuit that plaintiff breached the agreement. Thus, finding the letter i nadm issible under Rule 408 would not contravene the holding in Bankcard America.

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Accordingly, I will not consider the letter in deciding the parties' motions for summary ju d g m e n t . The following facts are gathered from the parties' proposed findings of fact and are both material and undisputed.

U N D IS PU T ED FACTS A . The Parties and Diversity Jurisdiction P lain tiff Madison National Life Insurance Company, Inc. is a Wisconsin corporation w i th its principal place of business in Madison, Wisconsin. Plaintiff sells life, accident and h ealth insurance policies. Besides selling its own policies, plaintiff purchases blocks of business from other insurance companies that sell the underlying policies, referred to as ced in g companies. When purchasing blocks of business, plaintiff can assume all or a portion of the risk associated with the underlying policies through reinsurance agreements. In its com plaint, plaintiff seeks at least $232,500 plus interest in damages from defendant. D e fen dan t PolySystems, Inc. is an Illinois corporation with its principal place of busin ess in Chicago, Illinois. Defendant licenses its software systems and support services to the insurance industry.

B . The Software Licensing Agreement

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In March 2007, the parties began discussions about plaintiff's licensing actuarial softw are from defendant. The actuarial software included systems designed for use in the insuran ce industry and provided assistance with statutory and tax valuations, liability pr o je c ti o n s , analysis of GAAP and statutory profits and asset modeling. After some

nego tiatio ns regarding the language in the license contract and plaintiff's insertion of some ad ditio n al language, the parties came to agreement about the proper language. On July 3, 2007, defendant sent plaintiff a final version of the software licensing agreement. On July 5, 2007, plaintiff signed and returned the agreement. On July 10, 2007, defendant signed the agreement. T he portion of the agreement relevant to this lawsuit is section 6. B., which states: Lim its on Use. Customer shall not use The System for the benefit of or to provide services to any other third party, other than those of its affiliated companies which are not service bureaus. The Customer shall not use The System to provide access to the software as a service bureau. The Customer agrees to protect [defendant's] proprietary interests in the same manner Customer protects its own proprietary interests and in no event in a manner less restrictive than is customary in the software i n d u s tr y . N otw ithstan di n g the foregoing, Customer may use the System within its prescrib ed functions as outlined in the Licensed Program Descriptions in Schedule A, with respect to any blocks of business which the Customer or one of its affiliated co m p an ies has assumed not less than 20% of the total mortality, persistency, or investm ent risk. B a iley-R i hn Decl., dkt. #25-11, at 4. Under the agreement, plaintiff was to pay $200,000 fo r the initial licensing fees, due upon execution of the license agreement, as well as ongoing

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support fees equal to 20% of the license fees. The cost of implementing the software was estim ated to be $25,000. The agreement states that it "shall be governed by and construed in accordance with the laws of the State of Illinois." Id. at 9.

C. Installation and Implementation of the Software D e fen dan t delivered its software and documentation to plaintiff approximately one w eek after the license agreement was executed and installed the software at plaintiff's office b y July 31, 2007. The parties agreed that before implementing all the software systems listed in the agreement, they would focus on implementing the Life Master and UL Master softw are systems, which were to be used for traditional life and universal life insurance p o licies. The implementation process began in July 2007. Defendant acted as a consulting reso urce for plaintiff during the coding and system set-up phase of the implementation, w hich continued until December 2007 when plaintiff had to suspend implementation to com plete other year-end responsibilities. Plaintiff planned to resume implementation after its completion of those year-end responsibilities. However, the software systems were never fully implemented.

D . Plaintiff's Use of the Software and Termination of the Agreement In February 2008, plaintiff was in the process of purchasing a block of business from

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U nity Mutual, that purchase would result in plaintiff's assumption of 17% of the overall risk for the block of business. Plaintiff wanted to use defendant's software system for the new busin ess. On February 5, 2008, plaintiff contacted defendant, seeking defendant's express w ritten consent to use the software for the Unity block of business. The new business was not covered by the parties' agreement because plaintiff would not be assuming 20% of the ov erall risk of the block of business. Plaintiff told defendant that the software would be used en tirely in its Madison offices and that the block of business would be administered for plaintiff's own use and benefit and that it would report statutory and tax reserves to Unity fo r its share of the block of business. Plaintiff asked defendant to waive the 20% restriction. D e fen dan t prepared an addendum to the licensing agreement that would allow plaintiff to use the software for the Unity block of business and sent plaintiff the addendum on February 11, 2008. Included in the addendum was the following language: A ll future transactions whereby valuation services are provided to a third party will b e reviewed on a case by case basis as they apply to Limits on Use section of Agreem ent No. 1[209]. Bailey-R ihn Decl., dkt. #25-13, at 3. Plaintiff would not accept the addendum because the lan g u a g e in the addendum suggested that plaintiff would have to obtain defendant's p erm issio n to use the software for blocks of business in which it assumed more than 20% of the total risk. This would represent a change from the initial license agreement. (Although

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it is immaterial to the outcome of this lawsuit, I note that the parties have devoted great effort to disputing whether defendant also explicitly told plaintiff that it would be in violation of the agreement if it provided valuation reports to ceding companies from which it had purchased a block of business even if it assumed more than 20% of the investment risk on the block.) In discussing the addendum and how the software could be used, defendant sent plaintiff an email on February 12, 2008, which said in relevant part: W e have spent considerable time considering your business needs. PolySystems can not allow the unencumbered use of our Software to provide valuation services. Your need to use the Systems for your target companies has the potential to eliminate both existing and future revenue for PolySystems. W e will certainly work with [Madison National Life Insurance] to describe a schedule that makes sense and allows you to proceed without permission and with known costs associated with your potential agreements. T h e agreement Barry redlined gives you permission to use the software on behalf of U nity Mutual. If that addendum is also acceptable to you we can sign and send out 2 originals today. B ailey-Rihn Decl., dkt. #25-14, at 2. On February 18, 2008, defendant sent an email to plaintiff with a revised addendum attached. In part, the email said, "Attached is a revised adden dum to our license agreement that we believe properly addresses our business arran gem ent. We welcome your comments and hope this leads to a healthy relationship." Bailey-R ihn Decl., dkt. #25-15, at 2. The revised addendum provided consent to use the

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softw are for the Unity block of business.

It also included language granting plaintiff

perm ission to use the software to provide valuation services to future blocks of business if plaintiff satisfied several conditions, including paying additional licensing fees in accordance w ith a growth chart. O n February 21, 2008, Barry Koklefsky, plaintiff's chief actuary at the time, emailed B o b Keating, defendant's Vice President of Sales, saying I appreciate your working up an addendum to the agreement that addresses [Madison N ation al Life's] [b]usiness and how [PolySystems'] systems fit within that business. I've formulated some revisions that we should discuss further before proceeding. Bo th marked up and clear versions are included. I haven't spoken with Larry [Graber, president of Madison National Life,] since last w eek, but as far as I know, he is still looking for a refund. B ailey-Rihn Decl., dkt. #25-15, at 2. Plaintiff's president, Larry Graber, would not agree to any of defendant's proposed addendums. He believed their language contradicted the original agreement by requiring plaintiff to pay additional fees to use the software to provide valuation reports to ceding companies for which plaintiff purchased blocks of business in w h i c h it had assumed more than 20% of the investment risk. He put a stop on

im plem entation of the software and asked defendant to refund the fees plaintiff had paid. A lth ou gh the system had not been tested when plaintiff stopped the implementation, plaintiff was still coding data. Defendant could do no further work until plaintiff finished th at task. Up to that point, defendant had performed all of its contractual obligations. At

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n o time did defendant notify plaintiff that it was unwilling to perform any of its obligations un der the licensing agreement. O n April 28, 2008, plaintiff wrote defendant, memorializing the problems that required it to demand a full refund of the license fees. Bailey-Rihn Decl., dkt. #25-17, at 2-3. Plaintiff noted that the reason it sought to "undo the deal" was because defendant had taken the position that plaintiff would violate the license agreement if it used the software to provide reserve reports to even those ceding companies that fell within the terms of the parties' original agreement. When defendant rejected the demand, plaintiff filed this lawsuit o n June 12, 2008.

O PIN IO N A . Summary Judgment U n d er Fed. R. Civ. P. 56, summary judgment is appropriate "when there are no gen uin e issues of material fact and the moving party is entitled to judgment as a matter of law ." Goldstein v. Fidelity & Guaranty Insurance Underwriters, Inc., 86 F.3d 749, 750 (7th C ir. 1996) (citing Fed. R. Civ. P. 56); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1 9 8 6). In deciding a summary judgment motion, the district judge's function "is not h im self to weigh the evidence and determine the truth of the matter but to determine w hether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Additionally, "it is

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th e substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. at 248. Furthermore, all reasonable inferences from undisputed facts sh ou ld be drawn in favor of the nonmoving party. Baron v. City of Highland Park, 195 F.3d 33 3, 338 (7th Cir. 1999). H ow ever, the nonmoving party cannot simply rest upon the pleadings once the m o vin g party has made a properly supported motion for summary judgment; instead the no nm ov ing party must submit evidence to "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e) (emphasis added). At that point, it becomes the nonmoving p a r ty 's burden to demonstrate that there is a genuine issue of material fact, that is, that "th ere is sufficient evidence favoring the nonmoving party for a jury to return a verdict for th at party." Anderson, 477 U.S. at 249.

B. Choice of Law The parties assume that Illinois law governs their contract dispute. In addition, the parties' licensing agreement includes a provision stating that "[t]his Agreement shall be govern ed by and construed in accordance with the laws of the State of Illinois." Cpt., dkt. 1-3 . Accordingly, I will apply Illinois law to the agreement.

C . Anticipatory Repudiation

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"A n anticipatory repudiation has been defined as a manifestation by one party to a con tract of an intent not to perform its contractual duty when the time fixed in the contract h as arrived. The party's manifestation must clearly and unequivocally be that it will not render the promised performance when it becomes due." Pope ex rel. Pope v. Economy Fire & Casualty Co., 335 Ill. App. 3d 41, 46, 779 N.E.2d 461, 465 (2002) (citations omitted). Plaintiff contends that defendant's statements, conduct and demand for performance of the agreem ent only within its interpretation of the agreement satisfy the clear and unequivocal m an ifestation requirement, but the undisputed facts establish otherwise. Accordingly, I con clude that defendant did not commit an anticipatory repudiation of the license agreem ent because it never clearly and unequivocally manifested an intent not to perform. Plaintiff contends that several of defendant's statements in February 2008 provide a clear and unequivocal manifestation that defendant intended not to perform its duties under the license agreement. Specifically, plaintiff points to defendant's statements that plaintiff would be in violation of the agreement if it used the software to provide reports to ceding companies from which plaintiff purchased qualifying blocks of business. In other w ord s, plaintiff contends that defendant refused to agree that plaintiff was permitted to use the software in a manner acceptable under section 6.B. of the agreement. Although

defendan t denies ever making such statements, the dispute is immaterial. Even if it did m ak e such statements, defendant did not commit an anticipatory repudiation or breach of

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the agreement. (I note that defendant agrees that such statements would not be supported by the agreement.) Statements that plaintiff would be violating or breaching the agreement if it used the so ftw a re to produce reports for certain ceding companies do not create a clear and unequivocal manifestation that defendant intended not to perform its duties under the agreem ent. As of February 2008, when defendant allegedly made those statements, it had perfor m ed all its contractual obligations. The next duty defendant had to perform was to test the software. At no time did defendant ever notify plaintiff that it was unwilling to perfor m the testing. Plaintiff cites Intersport, Inc. v. National Collegiate Athletic Assocation, 381 Ill. App. 3d 312, 885 N.E.2d 532 (2008), in support of its contention that defendant's alleged statem ents are evidence of an anticipatory repudiation of the agreement. Plaintiff

sum m arizes Intersport as saying that the "defendant breached [the] license agreement when it sent a letter asserting that Plaintiff's proposed actions would violate the license grant." Plt.'s Reply Br., dkt. #37, at 10-11. This summary is incorrect. Intersport provides an exam ple of the path plaintiff should have taken to enforce the licensing agreement. In Intersport, 381 Ill. App. 3d at 315, 855 N.E.2d at 535, the plaintiff entered into a licensing agreement with the defendants to use a trademark. The plaintiff planned to use the trademark on a mobile wireless media network, but the defendants believed that this use

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w as not permitted under the agreement. Id. at 315, 855 N.E.2d at 536. The defendants sen t the plaintiff "a letter asserting that if [plaintiff] were to provide [the trademark to a third party] for distribution to mobile communications subscribers, [plaintiff] will have vio lated the license agreement." Id. Believing that the language of the license agreement granted it authority to use the trademark on a mobile wireless media network, the plaintiff sough t a declaratory judgment that such a use of the trademark was within its rights under th e agreement. Id. at 315-16, 855 N.E.2d at 536. The defendants counterclaimed for breach of contract. Id. The district court denied the defendants' motion for partial summary judgment on the plaintiff's declaratory judgment claim and their breach of contract claim, finding that the agreem ent permitted the plaintiff's use of the trademark on a mobile wireless media network. Id . at 317, 855 N.E.2d at 537. The plaintiff responded by filing a motion for entry of judgm ent, which the court granted. Id. The appellate court upheld the district court's decision. Id. at 314, 855 N.E.2d at 263. The defendants were not found to have breached an y agreement by sending a letter to the plaintiff. In this case, defendant allegedly told plaintiff that plaintiff would be violating the parties' agreement if it used the software to provide reserves reports to ceding companies from which plaintiff purchased blocks of business in which it assumed more than 20% of the investm ent risk. This is evidence of a disagreement over the scope of plaintiff's rights under

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the agreement. At the most, such statements can be characterized as indefinite statements abo ut defendant's future performance because they leave it uncertain how defendant would respo nd if plaintiff were to act in violation of defendant's interpretation of the agreement. Illin o is courts have explained that "[t]here is no anticipatory repudiation if a party does no m o re than make doubtful or indefinite statements that it will not perform or that it will perfor m only within its interpretation of the contract." Draper v. Frontier Insurance Co., 1 6 5 Ill. App. 3d 739, 745, 638 N.E.2d 1176, 1181 (1994). Plaintiff has adduced no evidence that defendant made any statement about future performance. Instead, plaintiff assu m e d that because defendant made statements that plaintiff would violate the agreement if it used the software to provide reports to ceding companies, defendant would not perform its obligations under the agreement. Statements that plaintiff's actions would violate the agreem ent would serve to inform plaintiff that defendant might seek breach of contract rem edies, not that it would not perform its duties. Further, plaintiff is in error when it argues that if such statements are not clear eno ugh for an anticipatory repudiation, it would have to wait for defendant to refuse to perfor m and then file a breach of contract claim. Plaintiff could have asked defendant in w riting whether it intended to perform its duties even if plaintiff used the software in the potentially prohibited manner or, like the plaintiff in Intersport, sought a declaratory judgm ent that such a use was not a breach of the agreement. Instead, plaintiff has pursued

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an anticipatory repudiation claim even though the undisputed facts show that defendant never notified plaintiff that it was unwilling to perform any of its obligations under the licensing agreement. No reasonable jury could find that any of defendant's statements were a clear and unequivocal manifestation by defendant of an intent not to perform its duties un der the licensing agreement. A ltho ugh defendant's words or statements do not evidence a repudiation, it is possible to repudiate a contract by other conduct, Busse v. Paul Revere Life Insurance Co., 341 Ill. Ap p. 3d 589, 594, 793 N.E.2d 779, 783 (2003) (citation omitted). However, defendant's con duct provides no evidence of a repudiation. Plaintiff contends that the proposed

ad den du m s defendant sent plaintiff in February 2008 support the conclusion that defendant w ou ld not perform its duties unless plaintiff agreed to pay new licensing fees. Plaintiff is m istaken . Its contention is based on a mischaracterization of the addendums as evidence o f repudiative conduct. Defendant's request for new fees came in the course of negotiations regard in g changes to the agreement that were suggested by plaintiff. Defendant did not in itiate discussion with plaintiff and ask to change the agreement by requiring new licensing fees. It was plaintiff who was requesting permission to use the software in a manner restricted by the agreement, that is, in a manner that would be in violation of section 6.B.'s 2 0 % restriction. In response, defendant created an addendum to the agreement to permit this specific

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u se and it included some new terms about fees for future blocks of business. Plaintiff's concerns about the changes and their effect upon the rights plaintiff had under the original agreem en t arose in the course of plaintiff's attempt to use the software in a manner not p erm itted by the agreement. Sending these addendums to plaintiff does not show clear and un equ ivocal conduct to repudiate the agreement. M o reo ver, there is no evidence supporting plaintiff's contention that defendant in sisted that it was obligated to perform only according to its own incorrect interpretation of the agreement's terms. Id. ("[A]lthough a party may state that it intends to honor its obligations, it may still repudiate the contract by insisting that it is obligated to perform only accordi n g to its own incorrect interpretation of the contract's terms." (Emphasis added) (C itation s omitted)). Plaintiff contends that defendant refused to perform unless plaintiff agreed to change the agreement by paying new licensing fees. Plaintiff always maintained th e position that it could use the software to provide reserves reports to certain ceding com pan ies without paying any additional fees. When plaintiff brought up this point in explaining why it could not agree to defendant's proposed addendums, defendant responded by explaining that "PolySystems can not allow the unencumbered use of our Software to pro vide valuation services." Bailey-Rihn Decl., dkt. #25-14, at 2. Although defendant's resp o nse said nothing about its willingness to perform, plaintiff assumed that this statement m eant that defendant would not perform its duties unless plaintiff agreed to pay more

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licen sin g fees, which plaintiff refused to do. Relying on this assumption, plaintiff asked for a refund and stopped coding data for installation of the software. Altho ugh plaintiff does not dispute that defendant never explicitly refused to perform, it characterizes defendant's addendums as an insistence or demand that plaintiff agree to pay m ore fees. Plaintiff contends that this insistence demonstrated defendant's refusal to The

perform except according to its own incorrect interpretation of the agreement.

undisputed facts establish otherwise. It is undisputed that in the approximately 16 days betw een plaintiff's request to use the software with its Unity purchase and plaintiff's decisions to stop implementation and demand a refund, defendant continued to rework the n ecessary addendum to satisfy plaintiff's concerns. In an email sent on February 21, 2008 to Bob Keating, defendant's vice president of sales, from Barry Kiklefsky, plaintiff's chief actu ary at the time, Koklefsky noted that although plaintiff's president desired a refund of the licensing fees, "I appreciate your working up an addendum to the agreement that addresses [Madison National Life's] [b]usiness and how [PolySystems'] systems fit within that business." Bailey-Rihn Decl., dkt. #25-15, at 2. This evidence does not show that d ef e n d a n t insisted that plaintiff agree to the addendums if plaintiff wanted defendant to perform its duties. Instead, it shows that defendant was attempting to work out a mutual com pro m ise that it believed would benefit both parties. Further, when plaintiff exercised its right to refuse to agree to the proposed

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addendum s, defendant did not respond to plaintiff's refusal by saying or even implying that plaintiff had to agree to any of the addendums or defendant would not carry out its duties under the agreement. Thus, there is nothing in defendant's actions or statements that dem on strates an insistence or a demand that performance occur in accordance with only its interpretation of the agreement. N either defendant's statements nor conduct, even when viewed together, evidence a clear and unequivocal manifestation of an intent not to perform by defendant. At most, the undisputed facts establish that the parties disputed the scope of plaintiff's rights under the a g r ee m e n t. Such evidence is not enough to allow a reasonable jury to find that the

agreem ent was repudiated. The requirement that the repudiation be clear and unequivocal is a strict one. Commonwealth Edison Co. v. Decker Coal Co., 612 F. Supp. 978, 981 (N.D. Ill. 1985). In light of the undisputed facts, plaintiff has failed (1) to prove that it is entitled to summary judgment or (2) to provide specific facts showing a genuine issue for trial to defeat defendant's request that judgment be entered in its favor because it did not repudiate th e agreement. Accordingly, plaintiff's motion for summary judgment will be denied and defendant's will be granted.

OR DER IT IS ORDERED that:

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1. Plaintiff Madison National Life Insurance Company, Inc.'s motion for summary judgm ent, dkt. #21, is DENIED; 2. Defendant PolySystems, Inc.'s motion for summary judgment, dkt. #28, is

G R AN T ED ; 3 . The clerk of court is directed to enter judgment DISMISSING the case in favor of defendant. E n tered this 28t h day of May, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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