`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ALABAMA
`SOUTHERN DIVISION
`
`ELEKTRA ENTERTAINMENT
`GROUP INC., et al.,
`
`Plaintiffs,
`
`v.
`
`DURWIN MARTIN,
`
`Defendant.
`
` )
` )
` )
` )
` )
` ) CIVIL ACTION 07-0073-WS-B
` )
` )
` )
` )
`
`ORDER
`
`This matter comes before the Court on plaintiffs’ Motion for Entry of Default Judgment
`(doc. 11).
`I.
`Background.
`On January 30, 2007, plaintiffs Elektra Entertainment Group Inc., Priority Records LLC,
`Virgin Records America, Inc., UMG Recordings, Inc., Sony BMG Music Entertainment, and
`Arista Records LLC filed a Complaint for Copyright Infringement (doc. 1) against defendant,
`Durwin Martin. In particular, plaintiffs maintained that Martin had utilized an online media
`distribution system to download or distribute copyrighted music recordings belonging to
`plaintiffs, and/or to make such recordings available for distribution to others, thereby infringing
`on plaintiffs’ copyrights and exclusive rights under copyright. On that basis, the Complaint
`requested the following relief: (1) statutory damages pursuant to 17 U.S.C. § 504(c); (2)
`attorney’s fees and costs pursuant to 17 U.S.C. § 505; and (3) injunctive relief pursuant to 17
`U.S.C. §§ 502 and 503, prohibiting Martin from further infringing conduct and requiring him to
`destroy all copies of sound recordings made in violation of plaintiffs’ exclusive rights.
`On February 22, 2007, plaintiffs filed a Return of Service (doc. 6) reflecting that
`defendant had been properly served with process by a private process server on February 6,
`2007. According to the Return of Service, the process server served the summons and complaint
`personally upon the defendant at 306A Seabreeze Ct., Mobile, AL 36609, which is the same
`address listed on the Summons.
`
`
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`Notwithstanding service of process in accordance with Rule 4(e), Fed.R.Civ.P., nearly
`five months ago, Martin has never filed an answer or otherwise appeared in this action. Upon
`motion by plaintiffs, a Clerk’s Entry of Default (doc. 9) was entered against Martin on March 28,
`2007 for failure to plead or otherwise defend. The Clerk of Court mailed a copy of that Entry of
`Default to defendant at the same address at which process was served on him. Once again,
`Martin failed to respond. No further activity occurring in this matter in the ensuing three
`months, plaintiffs now seek entry of default judgment.
`II.
`Analysis.
`A.
`Propriety of Default Judgment.
`In this Circuit, “there is a strong policy of determining cases on their merits and we
`therefore view defaults with disfavor.” In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295
`(11th Cir. 2003); see also Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. and Canada,
`674 F.2d 1365, 1369 (11th Cir. 1982) (“Since this case involves a default judgment there must be
`strict compliance with the legal prerequisites establishing the court's power to render the
`judgment.”). Nonetheless, it is well established that a “district court has the authority to enter
`default judgment for failure ... to comply with its orders or rules of procedure.” Wahl v. McIver,
`773 F.2d 1169, 1174 (11th Cir. 1985).
`Where, as here, a defendant has failed to appear or otherwise acknowledge the pendency
`of a lawsuit against him for nearly five months after being served, entry of default judgment may
`be appropriate. Indeed, Rule 55 itself provides for entry of default and default judgment where a
`defendant “has failed to plead or otherwise defend as provided by these rules.” Rule 55(a),
`Fed.R.Civ.P. In a variety of contexts, courts have entered default judgments against defendants
`who have failed to defend the claims against them following proper service of process. See, e.g.,
`In re Knight, 833 F.2d 1515, 1516 (11th Cir. 1987) (“Where a party offers no good reason for the
`late filing of its answer, entry of default judgment against that party is appropriate.”); Matter of
`Dierschke, 975 F.2d 181, 184 (5th Cir. 1992) (“when the court finds an intentional failure of
`responsive pleadings there need be no other finding” to justify default judgment); Kidd v.
`Andrews, 340 F. Supp.2d 333, 338 (W.D.N.Y. 2004) (entering default judgment against
`defendant who failed to answer or move against complaint for nearly three months); Viveros v.
`Nationwide Janitorial Ass'n, Inc., 200 F.R.D. 681, 684 (N.D. Ga. 2000) (entering default
`
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`
`
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`judgment against counterclaim defendant who had failed to answer or otherwise respond to
`counterclaim within time provided by Rule 12(a)(2)). In short, then, “[w]hile modern courts do
`not favor default judgments, they are certainly appropriate when the adversary process has been
`halted because of an essentially unresponsive party.” Flynn v. Angelucci Bros. & Sons, Inc., 448
`F. Supp.2d 193, 195 (D.D.C. 2006) (citation omitted).1
`The law is clear, however, that Martin’s failure to appear and the Clerk’s subsequent
`entry of default against him do not automatically entitle plaintiffs to a default judgment. Indeed,
`a default is not “an absolute confession by the defendant of his liability and of the plaintiff’s
`right to recover,” but is instead merely “an admission of the facts cited in the Complaint, which
`by themselves may or may not be sufficient to establish a defendant’s liability.” Pitts ex rel.
`Pitts v. Seneca Sports, Inc., 321 F. Supp.2d 1353, 1357 (S.D. Ga. 2004); see also Descent v.
`Kolitsidas, 396 F. Supp.2d 1315, 1316 (M.D. Fla. 2005) (“the defendants’ default
`
`To be sure, courts have generally required some notice to be given to a defendant
`1
`between the time of service of process and entry of default judgment. See, e.g., International
`Brands USA, Inc. v. Old St. Andrews Ltd., 349 F. Supp.2d 256, 261 (D. Conn. 2004) (“Where a
`party fails to respond, after notice the court is ordinarily justified in entering a judgment against
`the defaulting party.”) (emphasis added and citations omitted); F.T.C. v. 1263523 Ontario, Inc.,
`205 F. Supp.2d 205, 208 (S.D.N.Y. 2002) (entering default judgment where defendants had
`failed to respond in any way to summons, complaint and motion for default judgment); New York
`State Teamsters Conference Pension and Retirement Fund v. Fratto Curbing Co., 875 F. Supp.
`129, 131 (N.D.N.Y. 1995) (defendant that had failed to file answer to complaint or otherwise
`defend was properly notified of motion for default judgment). For unknown reasons, plaintiffs
`elected not to give Martin notice of their efforts to secure a default against him, as their Motion
`for Entry of Default (doc. 8) was unaccompanied by a Certificate of Service or other indicia that
`plaintiffs had placed Martin on notice that they were seeking entry of default. Nothing in the
`text of Rule 55 excuses the service requirement for requests for entry of default (as distinguished
`from motions for default judgment), and Rule 5(a) on its face requires such service.
`Nonetheless, any harm arising from plaintiffs’ omission is negated by the fact that the Clerk of
`Court mailed a copy of the Clerk’s Entry of Default (doc. 9) to Martin at the address where
`service was perfected, which is also the address listed on the face of the Summons. As such,
`Martin is on notice that plaintiffs have moved forward with default proceedings, yet he has
`elected not to defend himself. Given Martin’s failure to appear in this case, despite actual notice
`that this lawsuit was pending, that his responsive pleading was due by a date certain, and that a
`default had been entered against him, he is entitled to no further notice at this time antecedent to
`entry of default judgment. See Rule 55(b)(2) (defaulted defendant is entitled to notice of request
`for default judgment only if defendant has appeared in the action).
`
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`
`
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`notwithstanding, the plaintiff is entitled to a default judgment only if the complaint states a claim
`for relief”); GMAC Commercial Mortg. Corp. v. Maitland Hotel Associates, Ltd., 218 F. Supp.2d
`1355, 1359 (M.D. Fla. 2002) (default judgment is appropriate only if court finds sufficient basis
`in pleadings for judgment to be entered, and that complaint states a claim). Stated differently, “a
`default judgment cannot stand on a complaint that fails to state a claim.” Chudasama v. Mazda
`Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997).
`Review of the Complaint confirms that it does indeed assert detailed facts, including a
`recitation of 10 specific copyrighted recordings that Martin has used and continues to use an
`online media distribution system to download and/or distribute without plaintiffs’ permission.
`(Complaint, ¶¶ 12-15 & Exh. A.)2 The Complaint further states that plaintiffs are the copyright
`owners or licensees of exclusive rights for those specific recordings. These facts, which are
`deemed admitted by virtue of Martin’s default, are sufficiently detailed and specific to give rise
`to a cognizable claim for direct copyright infringement in violation of the copyright laws of the
`United States, as codified at 17 U.S.C. §§ 101 et seq. See generally In re Aimster Copyright
`Litigation, 334 F.3d 643, 645 (7th Cir. 2003) (explaining that those who make and transmit
`digital copies of copyrighted music are direct infringers of those copyrights); A&M Records, Inc.
`v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (prima facie case of direct infringement is
`shown where plaintiffs establish ownership of allegedly infringed material and demonstrate that
`alleged infringers are violating at least one exclusive right granted to copyright holders).
`Accordingly, the Court finds that the Complaint states a claim for relief.
`The legal effect of Martin’s default is that he has now admitted the facts recited in the
`Complaint, which are sufficient to establish his liability to plaintiffs on a theory of copyright
`
`Those recordings include Celine Dion “Ruffneck,” Ice Cube “Ghetto Vet,” Luther
`2
`Vandross “I Know,” Avant “Get Away,” LL Cool J “Rock the Bells,” Nas “K-I-Ss-I-N-G,”
`Kenny G “Loving You,” Kenny G “Have Yourself a Merry Little Christmas,” Outkast
`“Aquemini,” and TLC “Red Light Special.” (Complaint, at Exh. A.) The Complaint lists each
`of these recordings by reference to copyright owner (which in each instance is one of the named
`plaintiffs herein), artist name, song title, album title, and SR#. Additionally, the Complaint
`includes as Exhibit B a list of literally hundreds of additional copyrighted recordings (amidst
`other items not germane to these proceedings) that Martin downloaded and/or distributed via this
`same online media distribution system.
`
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`
`
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`infringement.3 Moreover, because he has made no attempt to defend this action in the nearly five
`months since being served with process, despite notice that plaintiffs were moving forward with
`default proceedings against him, Martin’s course of conduct amounts to a deliberate and
`intentional failure to respond, which is just the sort of dilatory litigation tactic for which the
`default judgment mechanism was created. For these reasons, plaintiffs’ Motion is granted as to
`entry of default judgment. Default judgment will be entered against Martin, in accordance with
`Rule 55(b)(2), Fed.R.Civ.P. The Court will next consider the question of remedies.
`B.
`Remedies.
`Plaintiffs seek three forms of relief, to-wit: minimum statutory damages, costs, and a
`permanent injunction. In considering these requests, the Court bears in mind that,
`notwithstanding the default against Martin, “judgment may be granted only for such relief as
`may lawfully be granted upon the well-pleaded facts alleged in the complaint.” Pitts, 321 F.
`Supp.2d at 1358 (citation omitted).4 Each form of relief sought will be considered in turn.
`1.
`Statutory Damages.
`A copyright owner whose copyright has been infringed may recover, at his election,
`
`The effect of a default is to render all well-pleaded factual allegations of the
`3
`complaint (except those relating to damages) admitted. See Nishimatsu Const. Co. v. Houston
`Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“defendant, by his default, admits the plaintiff's
`well-pleaded allegations of fact”); McMillian/McMillian, Inc. v. Monticello Ins. Co., 116 F.3d
`319, 321 (8th Cir. 1997) (explaining that “when a default judgment has been entered, facts
`alleged in the complaint ... may not be contested by the defaulted party”).
`
`While well-pleaded facts in the complaint are deemed admitted, plaintiffs’
`4
`allegations relating to the amount of damages are not admitted by virtue of default; rather, the
`court must determine both the amount and character of damages. Miller v. Paradise of Port
`Richey, Inc., 75 F. Supp.2d 1342, 1346 (M.D. Fla. 1999); see also Anheuser Busch, Inc. v.
`Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003) (federal law requires judicial determination of
`damages absent factual basis in record); Credit Lyonnais Securities (USA), Inc. v. Alcantara, 183
`F.3d 151, 155 (2d Cir. 1999) (even where default judgment is warranted based on failure to
`defend, allegations in complaint with respect to damages are not deemed true, and district court
`must conduct inquiry in order to ascertain damages with reasonable certainty); Patray v.
`Northwest Pub., Inc., 931 F. Supp. 865, 869-70 (S.D. Ga. 1996) (explaining that it is proper
`exercise of judicial power for court upon default to take evidence, fix amount which prevailing
`party should recover, and then give judgment). “The trial judge, sitting without a jury, has
`considerable latitude in determining the amount of the damages.” Patray, 931 F. Supp. at 870.
`
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`
`
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`either actual damages or statutory damages for the infringing activity. 17 U.S.C. § 504(a) - (c).
`Where the copyright owner elects the latter option, a court may award, “instead of actual
`damages and profits, an award of statutory damages for all infringements involved in the action,
`with respect to any one work, for which any one infringer is liable individually ... in a sum of not
`less than $750 or more than $30,000 as the court considers just.” § 504(c)(1). Plaintiffs have
`elected statutory damages, in lieu of actual damages and profits, and seek entry of only the
`statutory minimum amount of $750 per work for each of the 10 works that the Complaint
`charged Martin with unlawfully downloading and/or distributing, for a total of $7,500 in
`statutory damages.
`As mentioned above, the entry of default judgment against Martin in no way obviates the
`need for determinations of the amount and character of damages. Rule 55(b)(2) specifically
`provides that if “it is necessary to take an account or to determine the amount of damages or to
`establish the truth of any averment by evidence or to make an investigation of any other matter,
`the court may conduct such hearings or order such references as it deems necessary and proper.”
`That said, there is no requirement that a hearing be conducted in all default judgment
`proceedings to fix the appropriate level of damages. See S.E.C. v. Smyth, 420 F.3d 1225, 1232
`n.13 (11th Cir. 2005) (explaining that evidentiary hearing is not per se requirement for entry of
`default judgment, and may be omitted if all essential evidence is already of record).5 Where the
`amount of damages sought is a sum certain, or where an adequate record has been made via
`affidavits and documentary evidence to show statutory damages, no evidentiary hearing is
`required. See, e.g., Chudasama, 123 F.3d at 1364 n. 27 (judicial determination of damages is
`unnecessary where claim is for sum certain or for sum which can by computation be made
`certain); United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979) (award of statutory
`damages was improper “without a hearing or a demonstration by detailed affidavits establishing
`
`See also Ford Motor Co. v. Cross, 441 F. Supp.2d 837, 848 (E.D. Mich. 2006)
`5
`(Rule 55 “does not require a presentation of evidence as a prerequisite to the entry of a default
`judgment, although it empowers the court to conduct such hearings as it deems necessary and
`proper to enable it to enter judgment or carry it into effect”); Board of Trustees of the
`Boilermaker Vacation Trust v. Skelly, Inc., 389 F. Supp.2d 1222, 1225 (N.D. Cal. 2005) (“A
`formal hearing is not required for a court to render a default judgment.”).
`
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`the necessary facts”); Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 63-64 (1st Cir. 2002) (district
`court did not abuse discretion, based on record before it, in declining to hold hearing before
`awarding statutory damages); Taylor v. City of Ballwin, Mo., 859 F.2d 1330, 1333 (8th Cir. 1988)
`(evidentiary hearing not necessary where facts in the record enable the court to fix the amount
`which the plaintiff is lawfully entitled to recover); Adkins v. Teseo, 180 F. Supp.2d 15, 17
`(D.D.C. 2001) (although court must make independent determination of the sum to be awarded,
`court need not hold a hearing, but may rely on detailed affidavits or documentary evidence);
`United States v. Cabrera-Diaz, 106 F. Supp.2d 234, 243 (D.P.R. 2000) (similar).
`Here the facts deemed admitted from the Complaint show that Martin infringed upon
`exclusive rights granted to plaintiffs as copyright owners with respect to at least 10 distinct
`recorded works. Because plaintiffs have elected statutory damages, and because § 504(c)(1)
`mandates that statutory damages for each infringed-upon work be at least $750, the minimum
`statutory damages that this Court could award would be $7,500, or $750 times 10 copyrighted
`works. Plaintiffs request only the bare minimum statutory damages. As such, a hearing to fix
`damages would be a pointless endeavor. Irrespective of the evidence presented, given the
`admitted facts as to liability, there is no scenario under which the Court could award less than
`$7,500 in statutory damages here. Plaintiffs have waived their right to request any more than
`that minimum amount, and § 504(c)(1) forbids a lesser award; therefore, the Court finds that no
`constructive purpose would be served by conducting an evidentiary hearing prior to awarding
`plaintiffs the minimum statutory damages of $7,500, or $750 for each of the 10 copyrighted
`works that Martin, via his default, has admitted infringing. See Capitol Records, Inc. v.
`Mattingley, 461 F. Supp.2d 846, 851 (S.D. Ill. 2006) (no evidentiary hearing necessary in
`copyright case where defendant defaulted and plaintiffs sought only minimum statutory
`damages); Virgin Records America, Inc. v. Johnson, 441 F. Supp.2d 963, 965 (N.D. Ind. 2006)
`(“Because Plaintiffs seek only the minimum statutory damages and these damages are clearly
`ascertainable from the complaint, no evidentiary hearing is necessary.”).
`2.
`Injunctive Relief.
`Plaintiffs also seek a permanent injunction to enjoin Martin from infringing plaintiffs’
`rights in any copyrighted recordings, including by using the Internet or online media distribution
`systems to reproduce or distribute any of plaintiffs’ recordings, or to make any of plaintiffs’
`
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`recordings available for distribution to the public, except pursuant to a license or with plaintiffs’
`consent. Plaintiffs also seek an injunction requiring Martin to destroy all copies of plaintiffs’
`recordings that he has downloaded or transferred onto computer hard drives, servers or physical
`devices or media without plaintiffs’ authorization.
`This type of relief is specifically authorized by copyright law. Indeed, the Copyright Act
`provides that a court may “grant temporary and final injunctions on such terms as it may deem
`reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). The Act also
`provides that as part of a final judgment, a court “may order the destruction or other reasonable
`disposition of all copies or phonorecords found to have been made or used in violation of the
`copyright owner’s exclusive rights.” 17 U.S.C. § 503(b).
`Although “the issuance of an injunction is in the discretion of the court, courts have
`traditionally granted permanent injunctions if liability is established and a continuing threat to a
`copyright exists.” Jobete Music Co. v. Johnson Communications, Inc., 285 F. Supp.2d 1077,
`1092 (S.D. Ohio 2003); see also Sailor Music v. IML Corp., 867 F.Supp. 565, 569 (E.D. Mich.
`1994) (observing that permanent injunctions typically are granted in cases involving
`infringement of sound recording copyrights “because of the strong probability that unlawful
`performances of other copyrighted material will occur”); Arista Records, Inc. v. Beker
`Enterprises, Inc., 298 F. Supp.2d 1310, 1314 (S.D. Fla. 2003) (“Injunctions are regularly issued
`pursuant to the mandate of Section 502, because the public interest is the interest in upholding
`copyright protections”) (citation omitted). Moreover, “[c]ourts also regularly issue injunctions
`as part of default judgments.” Arista, 298 F. Supp.2d at 1314 (granting permanent injunction in
`default judgment in a copyright infringement case).
`Here, plaintiffs have established Martin’s liability for infringing their copyrights as to 10
`copyrighted recordings. They have shown that Martin is continuing his infringing conduct on an
`ongoing basis through his use of an online media distribution system to download and/or
`distribute such copyrighted recordings without plaintiffs’ permission or consent. Despite service
`of process and notice of the default proceedings, Martin has made no effort to defend against
`these charges of copyright infringement, suggesting that he does not take seriously the illegality
`of his infringing activity. Based on all of the foregoing, the Court concludes that plaintiffs have
`shown a strong likelihood that, unless enjoined, Martin will pose a continuing threat to infringe
`
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`their copyrighted recordings. As such, the permanent injunction sought by plaintiffs is
`reasonably necessary to protect plaintiffs from further infringement of their copyrights by
`Martin. See generally Virgin Records America, 441 F. Supp.2d at 966 (entering permanent
`injunction in connection with default judgment in copyright case where the infringing activity
`caused injury that cannot be fully compensated or measured in money, there was no evidence
`that defendant had stopped or would stop infringing conduct absent an injunction, and defendant
`had failed to respond to or acknowledge the complaint). Plaintiffs’ request for entry of
`permanent injunction as part of the default judgment in this case is granted.
`3.
`Costs.
`Plaintiffs present evidence that they have incurred costs in the amount of $420 in this
`case. (Moore Declaration, ¶ 7.) They request that the default judgment include recovery of that
`amount. The Copyright Act provides that “the court in its discretion may allow the recovery of
`full costs by or against any party” who prevails. 17 U.S.C. § 505. Moreover, courts have
`routinely awarded costs to the prevailing party in copyright cases. See, e.g., Arclightz & Films
`Pvt. Ltd. v. Video Palace Inc., 303 F. Supp.2d 356, 365 (S.D. N.Y. 2003). This is equally true in
`the default judgment context. See Capitol Records, 461 F. Supp.2d at 852-53 (awarding costs in
`copyright infringement action where default judgment was entered against defendant); Virgin
`Records America, 441 F. Supp.2d at 965 (same). The Court finds that $420 is a reasonable
`expenditure of costs and that plaintiffs should recover same as part of their award in this case.
`III.
`Conclusion.
`For all of the foregoing reasons, plaintiffs’ Motion for Entry of Default Judgment (doc.
`14) is granted pursuant to Rule 55(b)(2), Fed.R.Civ.P. A separate default judgment will be
`entered, containing the following elements:
`1.
`An award of statutory damages to plaintiffs in the amount of $7,500, pursuant to
`17 U.S.C. § 504(c)(1);
`Entry of a permanent injunction pursuant to 17 U.S.C. §§ 502 and 503. This
`injunction will enjoin defendant from directly or indirectly infringing plaintiffs’
`rights under federal or state law in the following copyrighted sound recordings:
`Celine Dion “Ruffneck” from album “Ain’t No Other” (SR #168-042), Ice Cube
`“Ghetto Vet” from album “The War Disc” (SR #268-428), Luther Vandross “I
`
`2.
`
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`Case 1:07-cv-00073-WS-B Document 13 Filed 07/02/07 Page 10 of 10
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`Know” from album “I Know” (SR #261-503), Avant “Get Away” from album
`“My Thoughts” (SR #281-220), LL Cool J “Rock the Bells” from album “Radio”
`(SR #70-045), Nas “K-I-Ss-I-N-G” from album “I Am” (SR #175-149), Kenny G
`“Loving You” from album “Kenny G Greatest Hits” (SR #263-707), Kenny G
`“Have Yourself a Merry Little Christmas” from album “Miracles” (SR #206-848),
`Outkast “Aquemini” from album “Aquemini” (SR #264-092), and TLC “Red
`Light Special” from album “CrazySexyCool” (SR #198-743); and in any other
`sound recording, whether now in existence or later created, that is owned or
`controlled by plaintiffs (or any parent, subsidiary or affiliate record label of
`plaintiffs) (“Plaintiffs’ Recordings”), including without limitation by using the
`Internet or any online media distribution system to reproduce (i.e., download) any
`of Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings,
`or to make any of Plaintiffs’ Recordings available for distribution to the public,
`except pursuant to a lawful license or with the express authority of plaintiffs.
`Defendant also shall destroy all copies of Plaintiffs’ Recordings that he has
`downloaded onto any computer hard drive or server without plaintiffs’
`authorization, and shall destroy all copies of such downloaded recordings
`transferred onto any physical medium or device in his possession, custody or
`control.
`An award of costs to plaintiffs in the amount of $420, pursuant to 17 U.S.C. §
`505.
`The Clerk’s Office is directed to mail a copy of this Order, and the accompanying default
`judgment, to defendant Durwin Martin, at the address where he received service of process, to-
`wit: 306A Seabreeze Ct., Mobile, AL 36609.
`
`3.
`
`DONE and ORDERED this 2nd day of July, 2007.
`
`s/ WILLIAM H. STEELE
`UNITED STATES DISTRICT JUDGE
`
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