Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 1 of 14

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE

ELAINE HALE, Individually and as Administratrix of the Estate of Derek J. Hale; et al., Plaintiffs, v.

Lieutenant WILLIAM BROWN; et al., Defendants

) ) ) ) ) ) ) ) ) ) )

No. 07-166-***

RESPONSE OF THE DEFENDANTS LESTER, SIMPSON, AND PARTON IN OPPOSITION TO PLAINTIFF'S MOTION TO AMEND COMPLAINT The named defendants Darren Lester, Charles Simpson, and Albert Parton hereby object, pursuant to Rule 15(a) and Rule 11(b)(3), to their inclusion in the proposed amended complaint submitted on behalf of the plaintiff, as set forth more fully below. A. 1. Nature of the Motion and Opposition The plaintiff has moved the Court for leave to amend her initial pleading

for a second time in this case. Her "Motion to Amend the First Amended Complaints" seeks to add three additional defendants: Captain Robert Coupe and Corporal Chris Popp of the Delaware State Police, and Mark Lewis of the Delaware Department of Correction. As these individuals were previously identified by the defense as witnesses1, there is no objection to their being named as defendants.

1

Initial Disclosures of the DSP defendants, Docket #45, served and filed on August 31, 2007.

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 2 of 14

2.

The plaintiff further seeks to add an additional claim against the Delaware

State Police defendants, based on so-called "state-created danger". Again the defense has no objection to this amendment, except as it pertains to the defendants Darren Lester, Charles Simpson, and Albert Parton ("these defendants"). For the reasons set forth below and in the attached affidavits, the Court should exercise its discretion to reject any pleading that continues to name these individuals as defendants. 3. The Answer filed on behalf of the Delaware State Police defendants

(Exhibit A hereto) specifically denies the allegations directed against Darren Lester2, Charles J. Simpson3, and Albert Parton4, and further indicates that none of these officers had any involvement in the apprehension of Derek Hale, or in the drug and organized crime investigation that implicated Hale as an unindicted co-conspirator. The plaintiff and her lawyers have thus been on notice since the filing of the Answer on April 30, 2007 that these three defendants had been named in error. 4. On October 23, 2007, counsel for the DSP defendants wrote to plaintiff's

local attorney, following the "meet and confer" teleconference, formally requesting that the plaintiff voluntarily dismiss the defendants Lester, Simpson, and Parton from the case.5 The letter further identified Captain Coupe as the Troop #2 Commander during the time frame of the investigation and arrest, and Cpl. Popp and Mr. Lewis as witnesses at or near the scene of the Hale shooting.
"Denied. By way of further answer, Sgt. Lester was on sick leave due to a work-related injury and did not participate in the drug and organized crime investigation giving rise to the plaintiffs' lawsuit." 3 "Denied. By way of further answer, Captain Simpson had been transferred by DSP, and played no role in the drug investigation from which plaintiffs' claims arise." 4 "Denied as alleged. Admitted only that Sgt. Parton was the NCOIC of SORT at the time of the drug investigation giving rise to plaintiffs' claims. The SORT team frequently participates in major drug arrests. Denied that the SORT team was involved in any way in the attempted arrest of Hale on November 6, 2006. Further denied that any of the officers present on the scene were under the command of Sgt. Parton. Liability is denied." 5 Exhibit B attached hereto.
2

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 3 of 14

5.

In the October 23, 2007 letter, counsel further advised that Darren Lester

had been transferred out of the Special Investigations Unit in May 2006 (before the Hale investigation had commenced), and had been seriously injured when a drunken driver struck his police vehicle, causing him to be off work until January 1, 2007. The plaintiff and her lawyers were advised that Captain Simpson had been replaced by Captain Coupe as Commander of the Special Investigations Unit on May 5, 2006, and had been reassigned to Troop #4 in Georgetown. Finally, the defense disclosed that, while Sgt. Parton was a member of the SORT (Special Operations and Response Team) team, neither he nor the team had any involvement in the Hale arrest or shooting. Parton and other SORT members participated in the arrest of some of Hale's co-conspirators, but had no involvement in the investigation, which was an SIU operation. 6. The defense letter was acknowledged by a message on October 31, 2007

from plaintiff's counsel, suggesting that there would be no problem with a voluntary dismissal of uninvolved officers, after review of the letter by co-counsel.6 Defense counsel responded the following day7 by pointing out that the names of the three defendants were absent from the reports, logs, applications, and affidavits provided to the plaintiff during the course of discovery. In response to the plaintiff's Request for Production, the defense has produced numerous police investigative reports, electronic surveillance applications, orders, and logs, search warrant affidavits, and other materials relating to the investigation of Hale and his co-conspirators. None of these documents

"I'm in receipt of your letter of 10/23 about various named defendants who were not involved in the case. As we discussed during our meet and confer teleconference, I expect there will not be any problems dismissing Troopers who had no personal involvement. I'm sending your letter to my co-counsel. Once we meet and confer, I'll be getting back with you on this in greater detail and we'll figure out how to proceed." Exhibit C. 7 Exhibit D.

6

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 4 of 14

contain reference to Lester, Simpson, or Parton, with respect to the investigation or the arrest or shooting of Hale. 7. On January 15, 2008, the plaintiff lawyers sent a message8 seeking

consent to an amendment adding Coupe, Popp, and Lewis as additional defendants, and adding the "state-created danger" claim against all defendants, including Lester, Simpson, and Parton. The message indicated that the plaintiff would then ­ after the Second Amended Complaint had been filed ­ circulate a stipulation dismissing Lester and Simpson, but declined to address the involvement of Parton. The defense responded by pointing out that the proper way to accomplish this would be to simply eliminate any mention of Lester and Simpson in the amended pleading, and by indicating opposition to any proposed amendment that retained their names as defendants.9 Counsel for the plaintiff then sent a copy of an internal message, through which they refused to remove the names of Lester, Simpson, and Parton from the proposed amended pleading.10 Further, the message contained a striking change of position: the plaintiff (in apparent retaliation for the defense position seeking a "clean" amended pleading omitting mention of the defendants to be dismissed) "probably will no longer strike the two defendants from the case without their depositions." B. 8. Affidavits of these Defendants The affidavit of Darren Lester is attached as Exhibit H. It reflects not only

his transfer out of the SIU prior to the Hale investigation, but also his serious injuries sustained in a head-on collision that left him incapacitated and unable to work. It also recites that, as a result of a Complaint containing false information, and the failure of the
8 9

Exhibit E. Exhibit F. 10 Exhibit G.

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 5 of 14

plaintiff lawyers to reasonably investigate the incident before naming him as a defendant, Sgt. Lester and his family "have been placed in potential danger and subjected to ridicule as a result of distorted accounts appearing in the news media, and...have been improperly forced to defend myself..." 9. The affidavit of Captain Simpson is attached hereto as Exhibit I. It points

out that he was succeeded by Captain Coupe before the Hale investigation had even commenced. For that reason, the allegations concerning his participation in the Hale investigation are false. 10. The affidavit of Sgt. Parton is attached hereto as Exhibit J. Sgt. Parton

avers that he has never been a member of the SIU, and had no role whatsoever in the Hale investigation. While Sgt. Parton and the SORT unit had some involvement in arrests of Hale's co-conspirators and the execution of search warrants, neither Parton nor the SORT unit had any involvement in the arrest or shooting of Hale. C. 11. Standard Governing Factual Contentions Rule 15(a) provides that a party seeking to amend a complaint for a

second time may do so only with leave of the Court. Amendments, although liberally granted, rest within the sound discretion of the trial court. Massarsky v. General Motors Corp., 706 F.2d 11, 125 (3rd Cir. 1983) (Refusal to permit employee to amend pleadings to add pendent state law claim was not error). Leave to amend should be freely given only in the absence of such factors as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party..., futility of amendment..." Foman v. Davis, 371 U.S. 178,182 (1962). In DRR, L.L.C. v Sears, Roebuck and Co., 171 F.R.D.

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 6 of 14

162,167 (D.Del. 1997), Judge Schwartz denied leave to amend to a plaintiff seeking to add a new claim to avoid summary judgment, based on undue delay and the prejudice to the defendant. While distinguishable on its facts, this case nevertheless stands for the inherent power of the Court to examine the facts and circumstances behind a proposed amendment, and to deny amendment based on the factors set forth in Foman, supra. 12. Denial of leave to amend is reversible only for an abuse of discretion.

Wimm v. Eckerd Corp., 3 F.3d 137 (5th Cir. 1993) (Motion denied due to bad faith and dilatory motive). A district court does not abuse its discretion in denying a motion to amend when amending the pleading would be a futile act. Wilson v. American Trans Air, Inc., 874 F.2d 386, 392 (7th Cir. 1989) (Denial of leave to amend proper where record did not support joint venture theory of liability). An amendment is a futile gesture if the amended pleading could not survive a motion for summary judgment. Estate of Porter v Illinois, 36 F.3d 684, 690 (7th Cir. 1994) (Court considered additional allegations concerning murder of mental patient in state custody and determined they could not survive a motion for summary judgment based on sovereign immunity). A belated attempt to amend a complaint to add an alternative form of relief will be tested as to whether the plaintiff has put forth sufficient evidence to survive summary judgment. Dole Fresh Fruit Co. v. Delaware Cold Storage, Inc., 961 F.Supp. 676, 686 at note ll (D.Del. 1997). 13. A district court has broad discretion to deny leave to amend, particularly

where the plaintiff has already had one or more opportunities to amend. Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980) (Dismissal of amended complaint after several years of proceedings). When the plaintiff has submitted a proposed amended complaint, the

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 7 of 14

district judge may review that pleading for adequacy, and need not allow its filing if it fails to state a claim, or where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2nd Cir. 1991) (amended Complaint sufficient to make out §1983 claim). In Wimm v. Eckerd Corp., supra at 139-140, the Court denied a motion for leave to file a second amended complaint, and granted the defense motion for summary judgment. The Court found that the amendment sought would be futile, in that the fact issue had been thoroughly investigated and factual support for the amendment was lacking. "[H]aving considered the record, the court is seriously concerned about plaintiffs' apparent bad faith and dilatory motive in seeking leave to amend their complaint at this time." Id. at 140. 14. Rule 11(b)(3) provides that an attorney submitting a pleading is certifying

that, to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions have evidentiary support, or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Jenkins v. Methodist Hospitals of Dallas, Inc., 478 F.3d 255, 263 (5th Cir. 2007) (Court issued sua sponte Rule to Show Cause for failure of lawyer to correct error pointed out by opposing counsel). Factual allegations fail to satisfy Rule 11(b)(3) when they are "unsupported by any information obtained prior to filing." Morris v. Wachovia Securities, Inc., 448 F.3d 268, 277 (4th Cir. 2006) (no "substantial failure" to comply with Rule in securities fraud case). See also Methode Electronics, Inc. v. Adam Technologies, Inc., 371 F.3d 923, 925 (7th Cir. 2004) (venue allegation lacked evidentiary basis); Oxford Asset Management Ltd. v.

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 8 of 14

Jaharis, 297 F.3d 1182, 1197 (11th Cir. 2002) (plaintiffs and their counsel violated Rule 11(b)(3) by being deliberately indifferent to the lack of factual support for the claims asserted in the complaint). D. 15. Leave of Court Should Not be Given In this case leave to amend must be denied, as to any and all claims

directed against Captain Simpson, Sgt. Parton, and Sgt. Lester. To allow the plaintiff to proceed against these defendants would be an exercise in futility. It is manifest from the record ­ not just the affidavits, but the voluminous records of the investigation and the shooting of Hale - that there is no evidentiary basis for the plaintiff to proceed. Nor is there any prospect that such facts would arise from further investigation or discovery. Deferring such a ruling would only sanction the plaintiff's petulant refusal to correct the record. The State and the City have identified those officers involved in the drug and organized crime investigation and the apprehension of Hale, including supervisors up the chain of command. The plaintiff, a year after filing the original Complaint, and with full access to the documentary record, has failed to allege any facts in support of her claims against these defendants, or that would contradict their affidavits. She has failed to meet the burden imposed by the caselaw cited above to articulate facts in support of her claims against these defendants. It is unrebutted that these defendants simply had no role in any of the events set forth in the Amended Complaint as bases for the plaintiff's claims. 16. Each of the defendants has been prejudiced by the plaintiff's error in

naming them in the original Complaint and the Amended Complaint, without a shred of evidence to support such claims. Through counsel, they have taken affirmative steps to advise the plaintiff lawyers of this error, and to identify unnamed officers who were

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 9 of 14

present at the scene of the shooting or who participated in the investigation. They have waited ­ impatiently ­ for a year for the plaintiff to correct the error. During this time they and their families have suffered notoriety and potential danger as a result of the extensive and abusive adverse publicity generated on behalf of Hale. Needless to say, they would continue to suffer prejudice were the plaintiff given leave to amend through a pleading that continues to bear their names, in the absence of a scintilla of factual evidence against them. 17. The record of the disclosures and negotiations regarding these defendants

evidences good faith on the part of the defense, and a distinct lack of such good faith on the part of the plaintiff. Where the defense has provided the names of three additional officers, and has indicated no opposition to their inclusion as defendants, the plaintiff has responded by unaccountably refusing to voluntarily dismiss defendants against whom she has no case. As to Lester and Simpson, the dilatory motive of the plaintiff is clear in her implicit acknowledgement that she lacks a claim against them, combined with her insistence on including their names in the proposed Second Amended Complaint. The suggestion that the plaintiff would dismiss these defendants, only after first naming them in an amended pleading, is a tactic the Court should not sanction. Proof of improper motive comes in the form of the threat, in retaliation for these defendants asserting their right not to be named, to withhold dismissal and to needlessly prolong discovery by taking their depositions. E. 18. These Defendants Are Entitled to Summary Judgment Rule 56(b) provides that a party against whom a claim is asserted may, at

any time, move, with or without supporting affidavits, for a summary judgment in that

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 10 of 14

party's favor. The defendants Lester, Simpson, and Parton have each submitted affidavits establishing that they were not involved in the drug and organized crime investigation that culminated in the indictment of 32 persons and the attempted arrest of Derek Hale. Moreover, through the initial disclosures pursuant to Rule 26(a)(1)(A), the defense has identified Captain Simpson's successor, and two other individuals present at or near the scene, when Hale was shot and killed by Wilmington Police officers. Each of these individuals has been added as a defendant in the proposed amended complaint, and the defense has no objection to their inclusion. 19. When a motion for summary judgment has been made and duly supported

by affidavits, the adverse party may not rest upon the mere allegations of its pleading, but rather must respond by setting forth specific facts showing that there is a genuine issue for trial. This the plaintiffs have not done, and, as the affidavits make clear, cannot do in this case. The facts are simple, unadorned, and irrefutable. 20. Partial summary judgment shall be granted forthwith, if the factual record

shows that there is no genuine factual issue as to any material fact as a matter of law. Rule 56(c). The adverse party may attempt to respond with affidavits, but the Court has discretion as to whether affidavits are to be supplemented or opposed by further discovery. Rule 56(e). The burden in this case falls squarely on the plaintiff lawyers, to demonstrate that the allegations directed at these defendants have evidentiary support, or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Rule 11(b)(3). If the plaintiffs cannot, in support of their Motion, make the required showing, the Motion must be denied.

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 11 of 14

Wherefore, the defendants Lester, Simpson, and Parton ask that the Court enter an Order in substantially the form of that attached hereto, denying the plaintiff leave to amend, without prejudice to the filing of an amended pleading that eliminates the names of these defendants, and the allegations directed against them. These defendants further ask that the Court find that they are entitled to summary judgment as to all claims asserted against them, as the plaintiff has failed to elicit any facts in support of her allegations against them, and the disclosures and affidavits of the defendants make it clear that there is no prospect of such factual support, and that further investigation or discovery would be a waste of time.

STATE OF DELAWARE DEPARTMENT OF JUSTICE

/s/ Ralph K. Durstein, III Ralph K. Durstein, III #912 Deputy Attorney General Carvel State Building 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorney for DSP Defendants Date: January 25, 2008

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 12 of 14

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE

ELAINE HALE, Individually and as Administratrix of the Estate of Derek J. Hale; et al., Plaintiffs, v.

Lieutenant WILLIAM BROWN; et al., Defendants

) ) ) ) ) ) ) ) ) ) )

No. 07-166-***

ORDER This Court having reviewed the motion of the plaintiff for leave to file a Second Amended Complaint and the response (with affidavits attached thereto) of the defendants Lester, Simpson, and Parton opposing the filing of any pleading with allegations against them as defendants, and any response, IT IS HEREBY ORDERED AS FOLLOWS. 1. is denied. 2. The denial of leave to amend is without prejudice to a renewed application The Motion of the plaintiff for leave to file a Second Amended Complaint

to file an amended complaint striking the names of the present defendants Lester, Simpson, and Parton, as well as all allegations against them. 3. The Court specifically finds that the defendants Lester, Simpson, and

Parton have satisfied the standard for the entry of summary judgment as to all claims asserted against them by the plaintiff.

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 13 of 14

4.

No costs or fees incurred by the plaintiff attorneys in the pursuit of the

motion to amend may be recovered in this case.

Dated:______________________

________________________ Hon. Mary Pat Thynge United States Magistrate Judge

Case 1:07-cv-00166-GMS

Document 54

Filed 01/25/2008

Page 14 of 14

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE ELAINE HALE, Individually and as Administratrix of the Estate of Derek J. Hale DENNIS W. HALE, and CONNIE M. HALE, Plaintiffs, v. Lieutenant WILLIAM BROWNE; et al, Defendants ) ) ) ) ) ) ) ) ) )

No. 07-166 ***

CERTIFICATE OF MAILING AND/OR DELIVERY The undersigned certifies that on January 25, 2008, he caused the attached Response of the Defendants Lester, Simpson, and Parton in Opposition to Plaintiff's Motion to Amend Complaint to be electronically filed with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Thomas S. Neuberger, Esquire Stephen J. Neuberger, Esquire Two East Seventh Street, Suite 302 Wilmington, DE 19801 John A. Parkins, Jr., Esquire Richards, Layton & Finger, P.A. One Rodney Square 920 N. King Street Wilmington, DE 19801 Robert Jacobs, Esquire Thomas C. Crumplar, Esquire Two East Seventh Street, Suite 400 Wilmington, DE 19801 Rosamaria Tassone, Esquire City of Wilmington Law Department City/County Building, 9th Floor 800 North French Street Wilmington, DE 19801 STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Ralph K. Durstein, III Ralph K. Durstein, III #912 Deputy Attorney General Carvel State Building 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorney for DSP Defendants

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 1 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 2 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 3 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 4 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 5 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 6 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 7 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 8 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 9 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 10 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 11 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 12 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 13 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 14 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 15 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 16 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 17 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 18 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 19 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 20 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 21 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 22 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 23 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 24 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 25 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 26 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 27 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 28 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 29 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 30 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 31 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 32 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 33 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 34 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 35 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 36 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 37 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 38 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 39 of 40

Case 1:07-cv-00166-GMS

Document 54-2

Filed 01/25/2008

Page 40 of 40