Free Motion to Continue - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant and Third Party Plaintiff, ) ) v. ) ) THE W.I.N.N. GROUP, INC., ) ) Third Party Defendant. U.S. FINANCIAL CORPORATION,

No. 03-623C (Senior Judge Margolis)

)

DEFENDANT'S MOTION FOR CONTINUANCE OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56(g) of the Rules of this Court ("RCFC"), defendant respectfully requests the Court either to deny plaintiff's motion for summary judgment on the ground that there are genuine issues of material fact that preclude the granting of summary judgment1 or to continue that motion to allow defendant to conduct discovery before further responding to plaintiff's motion. In support of this request, defendant relies upon the following memorandum of law and the declaration of Leslie Cayer Ohta.

BACKGROUND We will not repeat the arguments raised in our October 24, 2003 opposition to U. S. Financial's motion for summary judgment. Suffice it to note that the genuine issue of material fact regarding the existence of a debt to U. S. Financial by WINN incurred in connection with WINN's performance under the contract is sufficient to preclude the granting of summary judgment in favor of U. S. Financial. Moreover, the evidence presented by WINN in its August 20, 2004 motion to dismiss raises additional genuine issues of material fact as to whether the arrangement between U. S. Financial and WINN was anything more that an escrow agreement and whether U.S. Financial advanced any funds to WINN for the performance of the contract.
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On September 29, 1997, the United States Air Force ("Air Force") entered into a contract with The W.I.N.N. Group ("WINN"). Compl. ¶ 1. The contract was for the replacement of an electrical distribution system and main substation. Id. On February 17, 1999, WINN purported to assign all proceeds from the contract to U.S. Financial Corporation. ("U.S. Financial"). On March 8, 1999, the Air Force issued Modification P00001 to the contract ("Modification"), naming U.S. Financial as the payee, after the assignment had been found to be properly executed and legally sufficient. On April 24, 2002, WINN submitted an invoice to the Air Force in the amount of $42,323.66. On July 3, 2002, the Air Force issued payment in that amount to WINN. On September 4, 2002, an Air Force contracting officer ("CO") issued a modification to the contract to change the payee from U. S. Financial to WINN. On September 30, 2003, the Air Force issued payment in the amount of $10,000 to WINN to close out the contract. On March 20, 2003, U.S. Financial filed suit in this Court seeking judgment against the United States in the amount of $52,686.53, together with interest, costs, and attorney's fees. PROCEDURAL HISTORY On September 9, 2003, U.S. Financial filed a motion for summary judgment asserting that it was entitled to judgment as a matter of law because the Government's payments to WINN, rather than to U. S. Financial, were contrary to the Modification. On October 24, 2003, we filed our opposition to U.S. Financial's motion for summary judgment asserting that U.S. Financial had failed to establish that it was owed money by WINN. 2

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At that time, defendant believed that the assignment was valid and therefore legally binding. On February 23, 2004, the Court issued a third-party summons for WINN, at the request of defendant; on June 25, 2004, WINN was served with the summons. On August 20, 2004, WINN filed a motion to dismiss. For the first time, defendant learned that the purported assignment was apparently a subterfuge for insuring that M.C. Dean, WINN's subcontractor, received the proceeds from WINN's contract with the Air Force, with U. S. Financial merely acting as an escrow agent. Defendant also learned for the first time that U. S. Financial was not acting as a "financial institution" in connection the purported assignment; that U.S. Financial had neither financed nor agreed to finance WINN's performance under the contract; that US. Financial had provided no funds to WINN in connection with WINN's performance under the contract; and that at no time did WINN owe any money to U.S. Financial. On September 16, 2004, defendant filed a response to WINN's motion and U. S. Financial filed its opposition to WINN's motion to dismiss and a cross-motion for summary judgment. On October 7, 2004, WINN filed a response to U. S. Financial's opposition to WINN's motion to dismiss and cross-motion for summary judgment. ARGUMENT I. Legal Standards Pursuant to RCFC 56, summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247 (1986); Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1356 (Fed. Cir. 2002). A dispute over a "material fact" is one "that might affect the outcome of the suit under the governing law." Anderson, 466 U.S. at 248. 3

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"[S]ummary judgment will not lie if the dispute about a material fact is `genuine', that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. II. The Purported Assignment Is Invalid If Procured Through Misrepresentation As we established in our opposition to U. S. Financial's motion for summary judgment ("opposition"), pursuant to the Assignment of Claims Act ("Act"), most assignments of interests in Government contracts are invalid. See 41 U.S.C. § 15(a). The exception to the Act permitting assignment of contract proceeds to financial institutions perrmits the "assignment of contracts . . . as collateral for performance loans made by financial institutions." Continental Bank and Trust Company v. United States, 189 Ct. Cl. 99, 103, 416 F.2d 1296, 1299 (1969). However, in its action against the Government for failing to comply with the assignment, the assignee is only entitled to recover from the Government to the extent the assignor has an outstanding debt to the assignee. American National Bank and Trust Co. v. United States, 22 Cl. Ct. 7, 13 (1990). In light of the express holdings of First National City Bank, 212 Ct. Cl. 357, 366-68 548 F.2d 928, 934-35 (1977)(en banc), and Manufacturers Hanover Trust, 218 Ct. Cl. 563, 590 F.2d 893 (1978), in order to recover in this action it is not enough for U.S. Financial to demonstrate that it was the recipient of an assignment from WINN. U.S. Financial's recovery from the Government is limited to those sums loaned by U.S. Financial to WINN that could have been used for performance of the assigned contract and that WINN owed U.S. Financial at the time the Government failed to pay U.S. Financial. I our October 24, 2003 opposition to U.S. Financial's motion for summary judgment we demonstrated that summary judgment was not appropriate because of the existence of a genuine issue of material fact concerning whether WINN owed U.S. Financial a debt in connection with 4

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the contract. At that time, the Government believed that the assignment was valid and therefore legally binding. Subsequent to our filing, WINN has proffered evidence that establishes not only does WINN not owe any money to U.S. Financial, U. S. Financial never did advanced, or promised to advance, funds to WINN to be used in the performance of the contract. Philips Affidavit 1 and 2. U.S. Financial's motion for summary judgment should be denied upon that ground alone. It is now also patently obvious that U. S. Financial is not entitled to summary judgment because there are genuine issues of material fact as to the legality of the purported assignment. Without a valid assignment, this Court has no jurisdiction to entertain U.S. Financial's action. In its September 19, 2004 opposition to WINN's motion to dismiss and cross-motion for summary judgment, U. S. Financial asserts that defendant has no defense to this action because the Modification (incorporating the purported assignment of payments due to WINN under the contract to U.S. Financial) constitutes an absolute waiver by defendant of all defenses to this action. In the interests of justice, defendant urges the Court to either deny U.S. Financial's motion for summary judgment so that the parties can proceed with discovery and prepare for trial or allow defendant to conduct discovery into the legality of the purported assignment, the linchpin of U.S. Financial's claim against defendant. III. Material Facts Regarding the Validity of the Purported Assignment Are In Dispute WINN in its motion to dismiss, proffered evidence that, at a minimum, suggests that material misrepresentations, made to the contracting officer by U.S. Financial and WINN in connection with the purported assignment, misled the contarcting officer into issuing the Modification. 5

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The Escrow Agreement According to Marlon Phillips, WINN's president, the operative document that controlled the business relationship among WINN, Dean, and U.S. Financial in connection with the contract was an escrow agreement, not an assignment. See Affidavit of Marlon Phillips, exhibit 1 to WINN's Motion to Dismiss ("Phillips Affidavit 1") and Second Affidavit of Marlon Phillips, exhibit 6 to WINN's Reply to Plaintiff's Opposition to Third Party Defendant's Motion to Dismiss and Cross-Motion for Summary Judgment ("Phillips Affidavit 2"). The operative terms of the escrow agreement are as follows: (1) The parties to the agreement were WINN, Dean, and U.S. Financial Corporation; (2) the purpose of the escrow agreement was to facilitate and regularize the receipt of monies from the Government on contracts for which WINN was the prime contractor and Dean, WINN's subcontractor, and the distribution of those monies to WINN and Dean; (3) WINN and Dean appointed U.S. Financial as the escrow agent; (4) U. S. Financial had no liability or responsibility and was not bound in any way by any agreement or contract between WINN and Dean or between WINN and Dean and a third party; (5) the only duty or responsibility of U. S. Financial was to hold the escrow deposits from the Government and to distribute those funds in accordance with the terms of the escrow agreement; (6) by utilizing U. S. Financial's rights as a "financial institution under the Assignment of Claims Act of 1940," U. S. Financial was to send to the various Federal agencies the documentation necessary for U.S. Financial to directly receive the funds due to WINN as payments under the Government contracts; (7) WINN was required to request that the Federal agencies holding the five designated contracts 6

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deliver to U. S. Financial the funds due to WINN under the contracts; (8) the disbursement of the Government funds received by U. S. Financial was to be in accordance with the instructions U. S. Financial received from WINN and Dean; (9) WINN and Dean were required to pay to U.S. Financial, as an escrow agent fee, 5% of each Government check received by U. S. Financial; and (10) U. S. Financial was to act only as a "depository." According to Mr. Phillips, WINNdid not inform the contracting officer that: (1) U.S. Financial was to act as a mere escrow agent in connection with the transaction at issue in this litigation; (2) U.S. Financial's role was simply to accept the payments due to WINN under the contract and then disburse those funds to WINN and to Dean, WINN's subcontractor; and (3) that U.S. Financial never made, and never intended to make, any loans to WINN in connection with WINN's performance under the contract. See Phillips Affidavit 1 and 2. According to Douglas Dixon, the president of U.S. Financial, the "consideration" given to WINN by U.S. Financial pursuant to the purported assignment was "the ability [of WINN] to borrow funds for the performance of the Contract." See Affidavit of Douglas Dixon attached to Plaintiff's Opposition to Third Party Defendant's Motion to Dismiss and Cross-Motion for Summary Judgment ("Douglas Affidavit"). Mr. Douglas's assertion is flatly contradicted by Mr. Phillips. Moreover, it is interesting to note that Mr. Douglas did not assert in his affidavit that U.S. Financial, in fact, provided any funds to WINN to be used in the performance of the contract, and provided no supporting documentation to that effect. See Douglas Affidavit. Furthermore, Mr. Dixon did not contradict Mr. Phillips's assertions concerning the existence and significance of the escrow agreement. Id. Aside from the Douglas affidavit, U. S. Financial has presented no evidence that 7

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undermines WINN's allegations regarding the invalidity of the purported assignment. Because it is U. S. Financial that is moving for summary judgment, the evidence must be viewed in the light most favorable to WINN and the United States. It is clear beyond cavil that the dispute regarding the legal validity of the Modification constitutes a genuine issue of material fact, as does the dispute regarding whether U. S. Financial was damaged. See Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307 (Fed. Cir. 1998). Therefore, because factual genuine issues exists, this Court cannot properly grant U. S. Financial's Cross-Motion for Summary Judgment.2 GE v. Nintendo Co., 179 F.3d 1350, 1353 (Fed. Cir. 1999). IV. The Government Is Entitled To Conduct Discovery to Establish Whether The Contract Modification That Incorporated The Purported Assignment Was Procured By Fraud Or Misrepresentation A. Standards Pursuant To RCFC 56(f) RCFC 56(f) provides as follows: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify such party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. This provision protects a party opposing a summary judgment motion, who for valid reasons cannot present "facts essential to justify such party's opposition" to the motion, by affording that
2

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The mere controversy as to any element of U.S. Financial's factual allegations creates a genuine issue of material fact requiring a trial upon the merits. See e.g., Kollsman, A Division of Sequa Corp. v. United States, 25 Cl. Ct. 500, 516 (1992) (genuine issue of material fact as to whether pre-award production was necessary to meet delivery schedule precluded summary judgment); C. Mourer Construction Inc. v. United States, 23 Cl. Ct. 533, 538 (1991) (genuine issue of material fact as to whether contractor's reasonable costs exceeded revenues precluded summary judgment). 8

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party the opportunity for additional discovery before responding. See generally, 10A C. Wright, A. Miller., M. Kane, Federal Practice and Procedure §§ 2740-2741 (2d ed. 1983). Summary judgment should not be granted when one party has yet to exercise its opportunities for pretrial discovery. National Life Insurance Co. v. Solomon, 529 F.2d 59 (2d Cir. 1975). Rule 56(f) motions, therefore, are liberally granted. Gregory Lumber Co. v. United States, 9 Cl. Ct. 503, 532 (1986) (embracing with approval a liberal construction of Rule 56(f)). To invoke the protection provided by RCFC 56(f), the nonmoving party must state, by affidavit, reasons why discovery is needed in order to support its opposition to a motion for summary judgment. Keebler Co. v. Murray Bakery Products, 866 F.2d 1386, 1389 (Fed. Cir. 1989). This affidavit need not contain evidentiary facts going to the merits of the case; rather, it is merely a sworn statement explaining why the fact cannot yet be presented. Beckers v. International Snowmobile Assn., 581 F.2d 1308, 1311 (8th Cir.) (quoting 10A C.Wright & A.Miller, Federal Practice and Procedure § 2740 at 722-23 (1973)), cert. denied, 440 U.S. 986 (1978). As one commentator has stated: Under Rule 56(f) the adversary need not even present the proof creating the minimal doubt on the issue of fact which entitles him to a full trial; it is enough if he shows the circumstances which hamstring him in presenting that proof by affidavit in opposition to the motion. Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (II), 77 Harv. L. Rev. 801, 826 (1964). As the United States Court of Appeals for the Federal Circuit has explained, this rule provides that a party "can not be deprived of the discovery needed to place at issue material factual questions in opposition to the motion [for summary judgment]." Opryland USA v. Great 9

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American Music Show, 970 F.2d 847, 852 (Fed. Cir. 1992) (reversing summary judgment). Instead, "when the discovery is reasonably directed to 'facts essential to justify the party's opposition', in the words of Rule 56(f), such discovery must be permitted or summary judgment refused." Id.; accord Burnside-Ott Aviation Training Center v. United States, 985 F.2d 1574, 1582 (Fed. Cir. 1993) (reversing summary judgment); Dunkin' Donuts of America v. Metallurgical Exoproducts, 840 F.2d 917, 919 (Fed. Cir. 1988) (reversing summary judgment) ("The Supreme Court has made clear that summary judgment is inappropriate unless a tribunal permits the parties adequate time for discovery."); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 n.5 (1986). B. Required Additional Discovery i. The facts to be discovered In order to determine the existence of liability in this case, if any, the Court must have sufficient evidence to determine whether at the time of the Modification, U.S. Financial and WINN misrepresented to the CO the financial arrangement entered into by U.S. Financial, WINN, and Dean. If the Modification was procured by fraud or misrepresentation, it is void or voidable. See C& H Commercial Contractors v. United States, 35 Fed. Cl. 246, 256 (1996); T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 729 (Fed. Cir. 1998). In order to adequately determine its liability, if any, in this matter, it is essential that the Government be given the opportunity to depose the participants to the underlying transactions and those with information concerning the underlying contract. These individuals are believed to include the following: Douglas Dixon, the president of U.S. Financial, who executed both the escrow agreement and the purported assignment; William H. Dean, the vice-president of M. C. Dean, Inc.; M. Casey Dean, 10

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the president of Dean; Mickey Dent, a Dean employee who directly contacted the agency concerning payments made under the contract; Laurie Allen, WINN's project coordinator; Seif Yirga, the Dean employee who prepared the invoices; Joel Rubinstein; a lawyer with Bell, Boyd, & Lloyd, who was consulted by Mr. Phillips in connection with the underlying transactions;3 Doug Cummins, Dean's comptroller and corporate secretary who signed the escrow agreement upon behalf of Dean; James Kingsley, Dean's accountant; and Tom Greenwald, an accountant with Watkins, Megan, Dury. See Declaration of Leslie Cayer Ohta. In addition, documents underlying the transactions at issue must be obtained from U.S. Financial and WINN and subpoenaed from M. C. Dean, Inc. and from Watkins, Meegan and Drury, the firm that allegedly audited the transactions between Dean and WINN; and Walker Irving Noble & Napoleon, the accounting firm that audited the escrow fund. Id. ii. Genuine issues of material fact Discovery regarding these issues is essential for the Government to defeat U.S. Financial's legal argument that the Modification acts as a complete bar to the Government's ability to defend this action. See U. S. Financial's September 16, 2004 response to WINN's motion to dismiss. Defendant is entitled to discover, as of the time of the Modification, whether U. S. Financial knew, or should have known, of the illegalities it apparently perpetrated upon the contracting officer. Further, once discovery is completed, the Court will be in a position to consider the purely legal issue as to when and under what circumstances a contract modification is void or

Mr. Phillips has advised the Government that he will waive his attorney client privilege with respect to all of his communications with Mr. Rubinstein. 11

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voidable. The application of the law to the facts of this case must await the further required discovery of the facts surrounding the subject Modification. Most, if not all, of the information regarding these issues is uniquely within U.S. Financial's, Dean's, and WINN's possession. See Declaration of Leslie Cayer Ohta. "If information concerning the facts to be discovered is solely in the possession of the movant, . . . 'a motion for continuance of a motion for summary judgment for purposes of discovery should ordinarily be granted almost as a matter of course.'" Contractors Association of E. Pa. v. City of Philadelphia, 945 F.2d 1260, 1263 (3d Cir. 1991) (reversing district court's denial of a continuance as an abuse of discretion), quoting Ward v. United States, 471 F.2d 667, 670 (3d Cir. 1973). IV. The United States Did Not Waive Noncompliance With The Assignment of Claims Act When Its Assent To The Assignment Was Fraudulently Induced In its cross-motion for summary judgment, U. S. Financial contends that it is not necessary to determine whether the assignment from WINN to U.S. Financial complied with the Assignment of Claims Act because the United States waived any noncompliance when the contracting officer issued the Modification. However, Mr. Phillips contends that the purported assignment was never intended to secure financing for the underlying Government contract, but was executed in conjunction with WINN and Dean's agreement to retain U. S. Financial's as an escrow agreement. See Phillips Affidavit 1and 2. Furthermore, Mr. Phillips admits that neither WINN nor U.S. Financial (nor Dean) disclosed the nature of the underlying escrow agreement to the Contracting officer. See Phillips Affidavit 2. On the contrary, U. S. Financial misrepresented in the Notice of Assignment that it was a valid assignment "pursuant to the

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provisions of the assignment of Claims Act of 1940 as amended." See Notice of Assignment, exhibit B to U. S. Financial's Opposition. Discovery is needed to conclusively demonstrate that the Modification is void because (1) a misrepresentation was made to the Contracting officer; (2) the misrepresentation was either fraudulent or material; (3) the Contracting officer relied on the misrepresentation when he issued the subject modification; and (4) the Contracting officer was justified in relying on the misrepresentation. See C& H Commercial Contractors v. United States, 35 Fed. Cl. 246, 256 (1996). U. S. Financial's statement to the Contracting officer that the assignment was entered into pursuant to the provisions of the Assignment of Claims Act and U. S. Financial's and WINN's failure to disclose the existence of the underlying escrow agreement to the Contracting officer constitute misrepresentations. Because those misrepresentations would likely "induce a reasonable person to manifest his assent" to modifying the contract to incorporate the purported assignment, the misrepresentations were material. See T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 729 (Fed. Cir. 1998). The Contracting officer relied on those representations when he issued the subject modification. Moreover, the Contracting officer was justified in his reliance. In the absence of either U. S. Financial or WINN coming forward to disclose the underlying escrow agreement, the Contracting officer would have had no way of knowing the true purpose underlying the purported assignment. In fact, the Government was not aware of the existence of the escrow agreement until it was disclosed in WINN's Motion to Dismiss. To the extent this Court, after trial, credits Mr. Phillips' factual allegations that the 13

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Modification incorporating the purported assignment of funds from WINN to U. S. Financial United was based on material misrepresentations made to the Contracting officer, the Government will argue that the Modification is void. U. S. Financial's waiver argument is premised solely on the fact that the Government issued the Modification to incorporate the purported assignment. However, if the evidence at trial demonstrates that U. S. Financial's own fraudulent acts in inducing the United States to issue the Modification render that issuance void, U. S. Financial will have no legal basis for claiming that the Government waived U. S. Financial's noncompliance with the Assignment of Claims Act. One of the very purposes underlying the Assignment of Claims Act is to prevent fraud. Patterson v. United States, 173 Ct. Cl. 819, 823 (Ct. Cl., 1965) (purposes of the Assignment of Claims Act are "primarily, to prevent fraud; and secondarily, to avoid multiple litigation"). To allow U. S. Financial to utilize fraudulent means to avoid compliance with the provisions of the Act would directly contradict the purpose of the Act. While the Government can waive noncompliance with the requirements of the Assignment of Claims Act when it uses truthful information to knowingly affirm an assignment, the Government does not waive compliance when its assent is fraudulently induced. See American Fin. Assoc., Ltd. v. United States, 5 Cl. Ct. 761, 772 (1984) (finding that the government waived noncompliance with the statute's notice provisions when, based on its knowledge of the underlying arrangement, it recognized the assignment and when there were no allegations of fraud that would render the assignments void). 14

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Besides asserting that the issuance of the Modification constituted a complete waiver of compliance with the Act, U. S. Financial contends that, even if the issuance had not resulted in a waiver, the purported assignment is valid because U. S. Financial complied with the Act's requirements.4 However, the factual allegations in the Phillips Affidavits 1 and 2 paint a very different picture. Assuming WINN's allegations are true, U. S. Financial cannot establish a statutory assignment because the purported assignment was procured through substantial misrepresentations to the Contracting officer. If U. S. Financial simply served as WINN's escrow agent and did not render any financial assistance to facilitate the performance of the Contract, and the Contracting officer was led to believe otherwise, the purported assignment was procured through fraud and therefore is void and U. S. Financial has no right to recovery.

The Act generally precludes the assignment of government contracts and payments thereunder. 31 U.S.C § 3727, 41 U.S.C. § 15. In order to secure financing for government contractors, the Act includes an exception for financial institutions that meet certain criteria. Id.; Mercantile Nat'l Bank at Dallas v. United States, 280 F.2d 832, 836 (Cl. Ct. 1960). An assignment must meet three conditions before it qualifies for an exception: (1) the assignee must be a qualified financial institution; (2) the assignee must lend, or make available, funds necessary for the performance of the contract; and (3) the assignee must provide notice of the assignment to the contracting officer and disbursing officer. American Nat'l Bank & Trust Co. of Chicago v. United States, 22 Cl. Ct. 7, 16 (1990). 15

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CONCLUSION For the foregoing reasons, defendant respectfully requests that the Court either deny U. S. Financial's motion for summary judgment or continue that motion to allow defendant the opportunity to conduct discovery. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Mark A. Melnick MARK A. MELNICK Assistant Director s/ Leslie Cayer Ohta LESLIE CAYER OHTA Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, DC 20530 (202) 307-0252 (202) 307-0972 (Fax) November 22, 2004 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on November 22, 2004, a copy of the foregoing DEFENDANT'S MOTION FOR CONTINUANCE OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO WINN'S MOTION TO DISMISS AND CROSS-MOTION FOR SUMMARY JUDGEMENT was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ Leslie Cayer Ohta _______________________