Free Motion to Strike - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ___________________________________ _ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' OBJECTION TO DEFENDANTS' BILL OF COSTS AND MOTION TO STRIKE AFFIDAVIT OF JENNIFER L. HOLSMAN

Defendants' Bill of Costs is supported only by an Affidavit by attorney Jennifer
24

L. Holsman ("Holsman"), an affidavit that is false, fraudulent and misleading.
25

Defendants are seeking to have costs incurred in defending against the claims by
26

Plaintiff Teresa August wrongfully attributed to Plaintiff Mark August, in the cynical
Case 2:03-cv-01892-ROS

-1Document 140

Filed 10/19/2006

Page 1 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13

hope that the Court will not scrutinze their completely unsupported gambit.

In

addition to utterly failing to provide any invoices or billing for the purported costs sought, Defendants are asking the Court to reimburse them for unnecessary costs unrelated to any claims or defenses regarding Plaintiff Mark August. Plaintiffs

therefore request the Court strike Holsman's improper and misleading affidavit and decline to award Defendants any costs. Plaintiffs' objection and Motion to Strike is

supported by the accompanying Memorandum. Plaintiffs also will soon file a Motion to set aside the Judgment entered on October 11, 2006, as it importunely splits Plaintiffs' related claims; Plaintiffs ask the Court to consider these two Motions together. RESPECTFULLY SUBMITTED this 18th day of October, 2006. TREON & SHOOK, P.L.L.C. By: s/ Kelly Jo Daniel B. Treon Kelly Jo Attorney for Plaintiffs

14 15 16 17 18 19 20 21 22 23 24 25 26

MEMORANDUM I. FACTUAL BACKGROUND OF THE CLAIMS "Dad! The police are beating on Grandma! Come quick! Come quick! Hurry!" Nine year-old Dakotah August called his father Mark August's cell phone and cried these words pleading for his father to come home and help, terrified at what he had just seen police do to his grandmother, Teresa August. Minutes earlier Dakotah had seen four police officers rush into the atrium of his home and instantly grab his grandmother, "T" her up and handcuff her, causing her to shriek in pain at the ensuing gross dislocation of her right elbow.

Case 2:03-cv-01892-ROS

-2Document 140

Filed 10/19/2006

Page 2 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Officer Dunn brutally twisted and torqued Teresa August's arm while holding the wrist and pushing the elbow area. She screamed in pain. It takes a severe twisting force and load to cause such a severe dislocation; interestingly, it is not clear which officer did this to Mrs. August because the police reports are conspicuously silent as to which officer held Mrs. August's right extremity at the time the officers dislocated her elbow. Importantly, the force of the dislocation was strong enough to cause an "avulsion" of the lateral collateral ligament, which is when bone fragments are ripped from the arm bone where the ligament attaches, much like a clump of dirt is ripped from the earth when pulling weeds. After arriving at the "scene of the crime," Mark August demanded Sam Hickey, Mark August's mentally troubled young nephew (and Teresa August's grandson), whose confrontation with Teresa August prompted the police visit in the first place, explain what was happening. Eventually, the officers' aggression toward Teresa

August spilled over to Mark August, and they arrested Mark August without warning. He was arrested without incident or physical injury and release shortly thereafter. While he was initially charged with failure to obey an officer's order, the charge was later dropped. Although Teresa August was still physically present when Mark

August arrived and was subsequently arrested, she was in shock and pain from her injury and cannot provide any significant information regarding Mark August's arrest. II. PROCEDURAL BACKGROUND A. Mark August's Claims

As a result of the arrest and injury, Teresa August filed the instant complaint; Mark August joined as Plaintiff, adding a separate but related claim for wrongful arrest. Ninety-five percent of the discovery has focused on the contested events surrounding Teresa August's arrest, injury and consequential medical diagnosis and treatment.
Case 2:03-cv-01892-ROS

-3Document 140

Filed 10/19/2006

Page 3 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1

On April 15, 2005, Defendants' filed their Motion for Summary Judgment on all claims. With the accompanying Statement of Facts, Defendants included excerpts of the depositions of Mark August, Teresa August, Sam Hickey, and several Defendant police officers. Notably, Defendants did not use the depositions Pamela Hickey,

Dakotah August (identified as "Markus Dakotah Cheske"), Josie Chernicky, David Draper, and Geraldine Draper, although they are seeking witness fees, service fees and depositions costs for these witnesses (henceforth, Chernicky and the Drapers will be referred to collectively as the "Superfluous Witnesses"). Additionally, Defendants did not use the deposition of Jeffeory Hynes, a Commander with the Phoenix Police Department, although they are also seeking reimbursement for costs associated with his deposition. The Court ruled on Defendants' Motion for Summary Judgment on September 20, 2006 and, inter alia, denied the motion as to some of Teresa August's claims, but granted the Motion as to Mark August's claims. On October 4, 2006, Defendants submitted their Bill of Costs even though the Court had not entered final Judgment pursuant to Rule 54(b), Federal Rules of Civil Procedure. Perhaps as a

consequence of Defendants' jumping the gun in prematurely filing their Bill of Costs, on October 11, 2006, the Court entered final Judgment on Mark August's claims1. In addition to prematurely filing the Bill of Costs, Defendants filed it without any supporting documentation beyond an Affidavit; the Bill of Costs did not include a single invoice or billing statement. Holsman's Affidavit avers that "Defendants have submitted... all supporting documentation simultaneously with this Affidavit," and

Rule 54(b), Federal Rules of Civil Procedure, permits the Court to enter final judgment on less than the entire lawsuit. The purpose of the Rule is to certify that portion of the case for appeal, so that the losing party does not have to wait for the entire case to resolve before the right to appeal is moot. Searsm Roebuck and Co. v. Mackey, 351 U.S. 427, 433-34, 76 S.Ct. 895, 898-99 (1956)The Rule is intended to serve the interests of the losing party and was never intended to be used as a sword to "divide and conquer" by a prevailing party. Furthermore, the Court is required to make the specific findings, not simply recite the language from Rule 54(b). Plaintiff Mark August will be filing a motion on this issue as explained earlier.

Case 2:03-cv-01892-ROS

-4Document 140

Filed 10/19/2006

Page 4 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

further claims the itemized costs "are reasonable, taxable costs and costs expended in the necessary course of the defense of this lawsuit" (emphasis added). The Bill lists the purported costs in apparent chronological order instead of in substantive categories, so Plaintiffs are including the substantive organization, infra. B. Deposition and Witness Costs

Defendants' costs related to the witnesses are unsupported, and on their face, largely unsupportable. follows: Witness Pamela Hickey Purported Service Service of Process Video Deposition Deposition Subtotal Service of Process Service of Process Appearance Fee Service of Process Deposition Video Deposition Subtotal Deposition Deposition Purported Amount $ 24.00 $ 419.00 $ 369.65 $ 812.65 $ 84.00 $ 88.80 $ 50.00 $ 84.00 $ 635.00 $ 609.00 $1,550.80 $ 369.40 $ 838.65 The improper purported deposition-related costs are as

Sam Hickey

Dakotah August
19 20 21 22 23 24 25 26

Mark August R.W. Griffen/ Nicholas Lynde Teresa August Sam Hickey/ Mark August/ Teresa August Josie Chernicky
Case 2:03-cv-01892-ROS

Deposition Deposition

$ 631.25 $ 931.90

Video Deposition Witness Fee Messenger Service -5Document 140

$1,694.00 $ 56.91 $ 104.00
Page 5 of 14

Filed 10/19/2006

1 2

Video Deposition Subtotal David Draper Witness Fee Service of Process Subtotal Witness Fee Service of Process Video Deposition Subtotal Deposition Deposition Deposition Deposition Deposition Subtotal

$ 179.70 $ 340.61 $ $ $ 45.55 24.00 69.55

3 4 5 6 7 8 9 10 11

Geraldine Draper

$ 45.55 $ 74.40 $ 465.00 $ 584.95 $ 547.30 $ 677.25 $ 181.75 $ 363.50 $ 322.25 $ 685.75

Geraldin Draper/ David Draper Toby Dunn Lyle Monson Jeffeory Hynes

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

The Superfluous Witnesses were not included in Defendants' Motion for Summary Judgment because they are not percipient witnesses, that is, they were not present during any of the events relevant to this lawsuit. Plaintiffs did not name or identify the Superfluous Witnesses in their Rule 26, Federal Rules of Civil Procedure, disclosure or supplemental disclosures. In other words, these witnesses were

entirely, substantively irrelevant, and their only purpose a fishing expedition, to harass Plaintiffs and drive up the cost of the litigation for Plaintiffs. Nothing in the

Superfluous Witnesses' deposition testimony was even remotely relevant to Mark Augusts claims, and certainly did not justify incurring the significant expense of videotaping. For the witnesses other than the Superfluous Witnesses, Defendants make no effort to connect their deposition-related costs to the defense of the claims by Plaintiff Mark August; the Bill even includes the purported deposition costs of Teresa August,
Case 2:03-cv-01892-ROS

-6Document 140

Filed 10/19/2006

Page 6 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

who is still an active plaintiff in this matter and who did not witness the arrest of Mark August. The significance and relevance of the remaining witnesses' testimony to Teresa August's claims were disclosed by Plaintiffs on June 29, 2004. Plaintiffs' descriptions of the anticipated testimony of Teresa August, Pamela Hickey, Sam Hickey, Dakotah August and Mark August clearly indicates that most of the testimony will relate to Teresa August's claims, and therefore the purported costs cannot be taxed to Mark August: 1. Teresa August 49 West McClellan Blvd. Phoenix, Arizona 85013

Plaintiff. Teresa August will testify to events leading up to her arrest, her injuries suffered from the officers' excessive use of force, her recovery and physical and social limitations due to the injuries. She will also testify about her background, employment history, and financial damages. She will also testify about any events she saw surrounding the wrongful arrest of her son, Mark August. 2. Sam Hickey c/o Pamela Hickey 731 North Colorado Street Chandler, Arizona 85225 (480) 963-1352

Grandchild of Teresa August. Sam Hickey will testify to the incident leading up to Ms. August's wrongful arrest his own mental health issues, his statements to the police officers, the injuries suffered by Mrs. August, the deeds and misdeeds of the police officers, his recollection of events leading to Mark August's arrest and the like. 3. Pamela Hickey 731 North Colorado Street Chandler, Arizona 85225 (480) 963-1352 - telephone

Mother of Sam Hickey. Pamela Hickey will testify about her son Sam Hickey's and Theresa August's relationship, Sam Hickey's mental health issues, problems with Sam she and Mrs. August had
Case 2:03-cv-01892-ROS

-7Document 140

Filed 10/19/2006

Page 7 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

prior to June 10, 2002, what she observed at the August residence when she arrived on June 10, 2002 in the officers' conduct and attitude, and regarding Theresa August's injuries and limitations. 4. Marcus Dakota August c/o Mark August 1941 East Morrow Drive Phoenix, Arizona 85024 (623) 780-7619

Grandson of Teresa August and son of Plaintiff Mark August. Dakotah August will testify to the incident leading up to Ms. August's wrongful arrest, and the injuries suffered by Teresa August due to the excessive force, her physical limitations, and the events leading to the wrongful arrest of his dad, Mark August. 5. Mark August 1941 East Morrow Drive Phoenix, Arizona 85024 (623) 780-7619

Plaintiff/Son of Teresa August. Mark August will testify to: being contacted by his son Dakota by telephone and being told by the child that `the police are beating up Grandma;" to his arrival at the scene of his mother's house, his observation of his mother, to the events thereafter that lead to his wrongful arrest, the injuries suffered by Ms. August and her physical limitations, and to his injuries as a result of being wrongfully arrested. EXHIBIT 1, Plaintiffs' First Supplemental Rule 26.1 Disclosure Statement. Finally, Defendants are unreasonably seeking taxation of costs related to Hynes, a witness identified by Defendants as their expert on "Phoenix Use of Force Policy and its application in this case." See EXHIBIT 2, Defendants' Eighth The excessive use of force claim

Supplemental (Expert) Disclosure Statement.

belongs to Teresa August, not Mark August, and the report authored by Hynes contains nothing about Mark August. See EXHIBIT 3, cover letter and body of July 29, 2004 report by Jeffeory Hynes. C. Copying Costs

Case 2:03-cv-01892-ROS

-8Document 140

Filed 10/19/2006

Page 8 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Defendants' statement of costs includes two entries that appear to be copying costs, incurred on December 10, 2004: "Medical records; from AZ Dept. of Education; ProDox, LLC" and "Medical Records; from Paradise Valley H.S.; ProDox, LLC." Defendants do not explain why or for whom the copy costs were incurred. Mark August never claimed any medical damages from the arrest, so again Defendants are seeking compensation for documents unrelated to Mark August's claim. Defendants did not appear to utilize any of the documents from Paradise Valley High School or any medical records of Mark August in their motion for summary judgment. D. Messenger Service

Defendants also include a fee of $104 for "Messenger Service; 12/21/04 to Josie Chernicky in Casa Grand; D.L. Investigations & Attorney Support, LLC." Defendants do not explain this cost, why they believe they are entitled to be paid for this cost, or the legal basis for including this cost. Hand delivery charges and

messenger services are not taxable. Frederick v. City of Portland, 162 F.R.D. 139 (D. Ore. 1995) (documentation regarding hand delivery charges inadequate). E. Filing Fee

Finally, it is clear from Defendants' Bill of Costs and the accompanying Affidavit that Defendants made little or no effort to distinguish the costs associated with Teresa August's claims from Mark August's claims. Defendants are even seeking their filing fee; obviously, Defendants have not prevailed on the entire case, and they are not entitled to payment of their filing fee should Teresa August prevail. III. LEGAL ARGUMENT A. Defendants' Incomplete Submission is Grounds to Deny Taxation of Costs.

Defendants have burden of proving entitlement to reimbursement. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 D.Ct. 1933, 1939 (1983). Inadequate documentation regarding costs is proper grounds to deny or reduce taxation of costs,
Case 2:03-cv-01892-ROS

-9Document 140

Filed 10/19/2006

Page 9 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

and "awarding any costs in the absence of reasonable proof" is an abuse of discretion. Summit Technology, Inc. v. Nidek Co., 435 F.3d 1371 (Fed.Cir. 2006) (vacating attorneys' fees of $98,786.79, reducing photocopy costs award by $104,317.72 and reducing deposition transcript award by $11,691.50); Johnson v. Morthan, 173 F.R.D. 313 (N.D. Fla. 1997) (court disallowed all costs but filing fee for lack of proper and timely documentation); Central Delaware Branch of NAACP v. City of Dover, 123 F.R.D. 85 (D. Del. 1988) ("Failure to properly document expenses is an obvious ground for denial of costs to an applicant," taxing only $3,550.41 of requested $27,921.52 of costs); Coalition to Save Our Children v. State Board of Education, 901 F.Supp. 824, 833 (D. Del. 1995) (expenses must be reasonable and documentation must be adequate, or court is "free to deny a petition for costs"). The incurred costs must also be reasonable and necessary: We do not read [Rule 54(d), Federal Rules of Civil Procedure] as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful scrutiny. Any other practice would be too great a movement in the direction of some systems of jurisprudence, that are willing, if not indeed anxious, to allow litigation costs so high as to discourage litigants from bringing lawsuits, no matter how meritorious they might in good faith believe their claims to be. Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416 (1964) (reversing court of appeals and affirming judgment of district court) (emphasis added).

21

Defendants' failure to provide any support documentation, their inclusion of purported
22

costs that are clearly not allowed, and their inclusion of purported costs that apply
23

only to Teresa August's claims, which have not been adjudicated to conclusion, all
24

reinforce the inescapable conclusion that Defendants are "anxious" to increase the
25

litigation costs and discourage meritorious claimants while making "careful scrutiny"
26

impossible. Defendants' failure to comply with the clear requirements laid out by the
Case 2:03-cv-01892-ROS

-10- Filed 10/19/2006 Document 140

Page 10 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

United States Supreme Court proves Defendants' complete lack of good faith in seeking taxation of costs, and evidences an intent to oppress and harass Plaintiffs into giving up their quest for justice. Holsman's Affidavit makes no distinction

between Plaintiffs and defense of their respective claims, and identifies the Bill of Costs as applying to the "defense of this lawsuit." The Affidavit is misleading

because Defendants clearly are not entitled to costs of the defense of the lawsuit. The lawsuit is not over. The only costs to which Defendants are arguably entitled are the costs associated with the defense of Mark August's claims only. Fundamentally, the Affidavit and bill of costs purportedly supported by the Affidavit are facially and substantively improper, and the affidavit is misleading and false, and therefore should be stricken. B. Defendants are Not Entitled to the Costs Related to the Depositions of the Unnecessary Witness.

Defendants may only claim costs for transcripts "necessarily obtained for use in the case," [citation] and failure to use a deposition at trial is basis for denying the related costs. Washington State Dept. of Trans. v. Washington Natural Gas

Company, 59 F.3d 793, 806 (9th Cir. 1995). Depositions that are merely useful for discovery are not taxable. Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 678 (9th Cir. 1963). The depositions of the Superfluous Witnesses were entirely unnecessary, and intended only to harass, oppress and embarrass Plaintiffs. In addition to incurring expenses for unnecessary depositions and attempting to improperly attribute all purported costs to the defense against Mark August's claim, Defendants appear to improperly seek reimbursement for both transcript and videotaping costs. "A party seeking to tax the cost of a videotaped deposition must show the necessity of the videotaping and not merely convenience." United States v. Davis, 87 F.Supp.2d 82 (D. R.I. 2000) (citing Barber v. Ruth, 7 F.3d 636, 645 (7th Cir.
Case 2:03-cv-01892-ROS

-11- Filed 10/19/2006 Document 140

Page 11 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1993) (disallowing videotape costs). See also Robinson v. Burlington Northern RR Co., 963 F.Supp. 691 (N.D. Ill. 1997) (allowing cost of transcript but disallowing videotape cost) and Moore v. University of Notre Dame, 22 F.Supp.2d 896 (N.D. Ind. 1998) ("transcripts and videotapes are two versions of the same deposition," plaintiff "can recover cost of one or the other, but not both"); but see Cherry v. Champion International Corp., 186 F.3d 442 (4th Cir. 1999) (prevailing party must demonstrate costs for transcript and videotaping necessary to recover for both, and "necessity for use in the case connotes something more than convenience or duplication to ensure alternative methods for presenting materials to trial," party failed to show why needed video and transcript). Defendants took unnecessary depositions and apparently incurred additional unnecessary expenses by having the depositions videotaped. In addition to taking irrelevant depositions, Defendants are improperly asking the Court to tax costs obviously related to Teresa August's claims. Defendants are not entitled to have Mark August subsidize their defense of Teresa August's claims. C. Defendants are Not Entitled to Costs Related to Convenience

The prevailing party is entitled to reimbursement for copy costs only if the copies are "necessarily obtained for use in the case." Disc Golf Ass'n, Inc. v.

Champion Discs, Inc., 158 F.3d 1002 (9th Cir. 1998) (abuse of discretion to award costs for copying done three weeks after granting of summary judgment). Even when the prevailing party is entitled to taxation of costs, the reasonable costs do not include documents or services that are "merely convenient" and are not therefore, reasonable and necessary. Summit Technology at 130-31 (information regarding deposition

charges "critical" because "various convenience services" not taxable," abuse of discretion to tax unidentified deposition costs); Fields v. General Motors Corp., 171 F.R.D. 234, 237 (N.D. Ill. 1997) (extra deposition copies and expense of hand delivery disallowed). Since Defendants did not provide any information about the specific
Case 2:03-cv-01892-ROS

-12- Filed 10/19/2006 Document 140

Page 12 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

purported costs, other than a dollar amount, it is impossible to determine whether there are charges for additional copies of depositions, alternative formats such as discs or condensed copies or additional services such as expedited copies; all of these charges are non-taxable. Summit Technology at 1380-81 denied costs based on deposition invoices that did not provide the names of the deponents or the services provided; in Coalition to Save Our Children at 835, the court denied copying and other costs because the prevailing party failed to establish that the costs were incurred with respect to the lost motion. See also Fields at 236-37. A cryptic phrase and dollar amount, with nothing more, does not permit the Court or Plaintiffs to engage in the required "careful scrutiny" of the purported copying or deposition costs. D. Financial Resources of Mark August Support Denial of Costs to Defendants.

Courts must consider the "financial resources of the plaintiff in awarding costs against a plaintiff." Yasui v. Maui Electric Co., Ltd., 78 F.Supp.2d 1124 (Hawai'i 1999) (citing Stanley v. University of Southern California, 178 F.3d 1069, 1079 (9th Cir. 1999) (award of costs stayed). "Furthermore, the imposition of such high costs

on losing civil rights plaintiffs of modest means may chill civil rights litigation." Stanley at 1080 (district court abused discretion in failing to re-tax costs based on party's modest resources and affect on meritorious litigation). Mark August is a high school football coach and physical education teacher, on a very limited salary. Any award of costs against him would cause significant financial damage, and he is unable to shoulder the burden of $10,540.14 in taxable costs. IV. CONCLUSION Defendants appear to have submitted a completely unsupported Bill of Costs with a misleading affidavit in the hopes that the Court will not notice the obvious and fatal shortcomings. Defendants failed to prove the costs they incurred related to their defense of Mark August's claims, apparently including all costs of defense, including
Case 2:03-cv-01892-ROS

-13- Filed 10/19/2006 Document 140

Page 13 of 14

1 2 3 4 5 6 7 8 9 10 11 12

costs not permitted by law, in the hope of subsidizing the remaining litigation and chilling Teresa August's pursuit of compensation for her injuries suffered at the hands of the police. RESPECTFULLY SUBMITTED this 18th day of October, 2006. By: s/ Kelly Jo Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on October 18, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

13 14 15

Kathleen Wieneke:

Jennifer L. Holsman:
16 17 18

Randall H. Warner:

By:
19 20 21 22 23 24 25 26

s/ Aly Shomar-Esparza

Case 2:03-cv-01892-ROS

-14- Filed 10/19/2006 Document 140

Page 14 of 14