Case 2:17-cv-04263-JVS-JCG Document 38-1 Filed 10/23/17 Page 1 of 11 Page ID #:661
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`Document Security Systems, Inc. v. Cree, Inc.
`2:17-cv-04263-JVS-JCG
`
`Order Regarding Motion to Transfer Venue
`
`Defendant Cree, Inc. (“Cree”), filed a motion to transfer this case to the
`Middle District of North Carolina. (Mot., Docket No. 27.) Plaintiff Document
`Security Systems, Inc. (“DSS”) opposed the motion. (Opp’n, Docket No. 30.)
`Cree replied. (Reply, Docket No. 31.)
`
`For the following reasons, the Court denies Cree’s motion to transfer.
`
`I. BACKGROUND
`
`DSS is a publically traded New York corporation, which has business in
`“brand protection, digital security solutions and anti-counterfeiting technologies.”
`(First Amended Complaint “FAC”, Docket No. 17 at 1.) In November 2016, “DSS
`acquired a portfolio of patents covering technology used in Light-Emitting Diode
`(“LED”) lighting products, including the patents-in-suit.” (Id. at 1-2.)
`
`Cree is a North Carolina corporation, with its principal place of business in
`Durham, North Carolina. (Id. at 2.) Cree has approximately 3,500 employees in
`the United States, 2,420 of which are employed in North Carolina. (Mot., Docket
`No. 27 at 5.) Cree’s headquarters is in North Carolina, along with multiple
`manufacturing plants. (Id.) Cree also has a facility in Goleta, California that is
`primarily engaged in technology research, development, and design. (Id.;
`Deposition of John A. Demos (“Demos”), Docket No. 30-2 at 4-5.)
`
`This action arises out of Cree’s alleged infringement of four patents owned
`by DSS: U.S. Patent No. 6,949,771 (the “’771 patent”); U.S. Patent No. 7,524,087
`(the “’087 patent”); U.S. Patent No. 7,256,486 (the “’486 patent”); and U.S. Patent
`No. 7,919,787 (the “’787 patent”). (FAC, Docket No. 17 at 3.) All of these
`asserted patents relate to LED technology. (Id. at 4-20.)
`
`DSS initially filed suit against Cree on April 13, 2017, in the United States
`District Court for the Eastern District of Texas. (Mot., Docket No. 27 at 5; Opp’n,
`Docket No. 30 at 2.) DSS voluntarily dismissed the suit and subsequently filed
`this action in the Central District of California. (Compl., Docket No. 1; FAC,
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`Docket No. 17.) Cree now moves to transfer this case to the Middle District of
`North Carolina pursuant to 28 U.S.C. § 1404(a).
`
`II. LEGAL STANDARD
`
`28 U.S.C. § 1404(a) allows courts, in their discretion, to transfer a case to
`another district when it would be convenient to do so. Courts must perform a two-
`step analysis when determining whether transfer is appropriate under section
`1404(a). See Amazon.com v. Cendant Corp., 404 F. Supp. 1256, 1259 (W.D.
`Wash. 2005) (citing § 1404(a)). First, the court must determine whether the case
`could have been brought in the proposed transferee venue. Id. Second, the court
`must determine whether transferring the case would serve the convenience of the
`parties and the witnesses and promote the interests of justice. Id. The moving
`party bears the burden of showing that transfer is appropriate and must make a
`strong showing of inconvenience to warrant upsetting the plaintiff’s choice of
`forum. Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th
`Cir. 1979); see also Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834,
`843 (9th Cir. 1986).
`
`III. DISCUSSION
`
`A.
`
`Propriety of Venue in the Transferee Court
`
`The Court must first consider whether the case could have been brought in
`the Middle District of North Carolina. 28 U.S.C. § 1404(a). This requires the
`Court to determine whether the transferee venue would have had subject-matter
`jurisdiction, defendants would have been subject to the transferee venue’s personal
`jurisdiction, and venue would have been proper in the transferee venue. Abrams
`Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1103 (C.D. Cal. 2001).
`
`DSS does not dispute that this case could have been brought in the Middle
`District of North Carolina. (Opp’n, Docket No. 30 at 4.) First, the Middle District
`of North Carolina would have subject-matter jurisdiction over DSS’s infringement
`claims concerning each of the patent infringement counts pursuant to 28 U.S.C. §
`1338. See Gunn v. Minton, 568 U.S. 251, 263 (2013) (observing “the federal
`courts’ exclusive patent jurisdiction”). Second, Cree would be subject to the
`Middle District of North Carolina’s personal jurisdiction because Cree is organized
`under the laws of the state of North Carolina, with its principle place of business in
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`Durham, North Carolina. (Mot., Docket No. 27 at 5, 8.) Third, venue would be
`proper in the Middle District of North Carolina because Cree resides in North
`Carolina. See 28 U.S.C. § 1400(b) (venue in patent infringement cases is proper in
`the judicial district where the defendant resides); TC Heartland LLC v. Kraft Foods
`Grp. Brands LLC, 137 S. Ct. 1514, 1516-17 (2017) (“[A] domestic corporation
`‘resides’ only in its State of incorporation for purposes of the patent venue
`statute.”).
`
`B.
`
`Convenience and the Interests of Justice
`
`Once a court determines that the case could have been brought in the
`proposed transferee court, the court must perform “an individualized, case-by-case
`determination of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487
`U.S. 22, 29 (1988); see also Jones v. GNC Franchising, Inc., 211 F.3d 495, 498
`(9th Cir. 2000). “The Court must balance three general factors: (1) the
`convenience of the parties; (2) the convenience of the witnesses; and (3) the
`interests of justice.” Cascades Projection LLC v. NEC Display Solutions of
`America, Inc., No. CV 15-00273 SJO (Rzx), 2015 WL 12698454, at *2 (C.D. Cal.
`June 5, 2015) (quoting Catch Curve, Inc. v. Venali, Inc., No. 05-4820, 2006 WL
`4568799, at *3 (C.D. Cal. Feb. 27, 2006).
`
`The burden is on the moving party to show that transfer is appropriate.
`Decker, 805 F.2d at 843. “To meet this burden, that party must demonstrate that
`both private and public interests favor a transfer and overcome the choice of forum
`made by the non-moving party.” Signal IP, Inc. v. Ford Motor Co., No. LA
`CV14–03106 JAK (JEMx), 2014 WL 4783537, at *2 (C.D. Cal. 2014). The Ninth
`Circuit has set forth ten factors that a district court may consider in determining
`whether the moving party has met its burden: (1) the location where the relevant
`agreements were negotiated and executed; (2) the state that is most familiar with
`the governing law; (3) plaintiff’s choice of forum; (4) the respective parties’
`contacts with the forum; (5) the contacts relating to the plaintiff’s cause of action in
`the chosen forum; (6) differences in the costs of litigation in the two forums; (7)
`availability of compulsory process to compel attendance of unwilling non-party
`witnesses; (8) the ease of access to sources of proof; (9) presence of a forum
`selection clause; and (10) the relevant public policy, if any, of the forum state.
`Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). “‘[T]hese
`factors cannot be mechanically applied to all types of cases’ and should be
`considered ‘under the statutory requirements of convenience of witnesses,
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`convenience of parties, and the interests of justice.’” Signal, 2014 WL 4783537, at
`*2 (quoting Amazon.com, 404 F. Supp. 2d at 1259).
`
`Here, there is no relevant agreement or operative forum selection clause.
`Thus, the Court now considers the relevant factors.
`
`1.
`
`State Most Familiar with Governing Law
`
`“Patent law is uniform across all Circuits.” Signal, 2014 WL 4783537, at
`*3. This factor is “less significant . . . when the applicable law is uniform
`throughout the nation.” Id. (citing In re Link-A-Media Devices, Corp., 662 F.3d
`1221, 1224 (Fed. Cir. 2011)). Because DSS’s claims arise under federal law, the
`Central District of California and Middle District of North Carolina are equally
`capable of handling DSS’s claims against Cree. Therefore, this factor is neutral.
`
`2.
`
`Plaintiff’s Choice of Forum
`
`Generally, there is a strong presumption in favor of a plaintiff’s choice of
`forum. See Decker, 805 F.2d at 843 (“The defendant must make a strong showing
`of inconvenience to warrant upsetting the plaintiff’s choice of forum.”). However,
`“[t]he plaintiff’s choice [of forum] is given less weight where the plaintiff is a
`nonresident or the chosen forum lacks any significant contact with the activities
`giving rise to the litigation.” Catch Curve, 2006 WL 4568799 at *2.
`
` Cree argues that DSS’s choice of forum should receive less deference
`because DSS does not reside in the Central District of California, and instead has
`its principle place of business in New York. (Mot., Docket No. 27 at 8.) Cree
`further argues DSS’s choice of forum should be given less deference because “the
`operative facts giving rise to this lawsuit occur[ed] outside California.” (Id. at 9
`(emphasis omitted).) In support of this contention, Cree asserts that the “accused
`products in this action are produced and sold out of Cree’s North Carolina and
`China facilities.” (Id.) Moreover, Cree argues that the “evidentiary records
`concerning the production of the accused products, and other records relevant
`thereto including sales and marketing, are all located outside of California.” (Id.)
`However, it does not appear that DSS’s choice of forum should be afforded no
`deference. There is some contact in the Central District with the activities giving
`rise to the litigation in Cree’s facility in Goleta, California, discussed in more detail
`below. Accordingly, this factor still weighs somewhat against transfer.
`
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`3.
`
`Parties’ Contacts with the Forum and Contacts with Forum Relating to
`Plaintiff’s Cause of Action
`
`“In patent infringement actions, the preferred forum is that which is the
`center of gravity of the accused activity.” Amazon.com, 404 F. Supp. 2d at 1260
`(internal citation and quotation marks omitted). “The district court ought to be as
`close as possible to the milieu of the infringing device and the hub of activity
`centered around its production.” Id. (internal citation and quotation marks
`omitted). “This location is often where the development, research, and marketing
`of the accused product occurred.” Signal, 2014 WL 4783537, at *3. “This makes
`sense because in determining whether infringement has been established, the
`principal target of inquiry is the design and construction of the accused product.
`The trier of fact will be asked to compare the claims in the patent with the accused
`product–examining its development, its components, its construction, and how it
`functions.” Id. (quoting Arete Power, Inc. v. Beacon Power Corp., No. CV
`07–5167 WDB, 2008 WL 508477, at *5 (N.D. Cal. Feb. 22, 2008)).
`
`Cree argues that a substantial amount of its manufacturing facilities are
`located in North Carolina, as well as all but one of the witnesses it has identified
`thus far. (Reply, Docket No. 31 at 4.) Cree asserts that the accused products “are
`produced and sold out of Cree’s North Carolina and China facilities.” (Mot.,
`Docket No. 27 at 9.) Furthermore, Cree argues that while it has a facility located in
`Goleta, California, that facility is “primary engaged in technology research and
`development” and the “facility is not responsible for the manufacturing or selling
`of . . . the accused products.” (Id. at 5.)
`
`In response, DSS asserts that “certain technology developed at [Cree’s
`research and development facility in California] may be incorporated in certain
`Cree products.” (Opp’n, Docket No. 30 at 6.) DSS asserts that at the deposition of
`Cree’s Associate General Counsel for Intellectual Property, the employee admitted
`that Cree’s team at the California facility “engage[] in research and development of
`LED components and related technology, as well as development of products
`incorporating LED components such as light bulbs, which are accused in this
`case.” (Id.; see Demos Depo., Docket No. 30-2 at 4-7.) DSS asserts that “Cree
`does not deny that the technology developed at [the facility] was incorporated into
`the accused products.” (Id. at 6 (emphasis omitted).) Moreover, DSS calls into
`question Cree’s “suggestion that the accused products are produced in North
`Carolina,” and contends that “[m]uch of the actual production . . . takes place in
`
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`China.” (Id. at 7.)
`
`Given that at least some of the accused products are produced in North
`Carolina, many witnesses will likely be located in North Carolina, and much of the
`relevant documentary evidence is located in North Carolina, North Carolina
`appears to be the center of gravity of the accused activity. However, it also appears
`that technology incorporated into the accused products may have been designed
`and developed in Cree’s California facility. Thus, these factors weigh very slightly
`in favor of transfer.
`
`4.
`
`Differences in Costs of Litigation in Both Forums
`
`“For the comparative cost of litigation to weigh in favor of transfer, there
`must be actual cost savings, and not mere shifting of the costs between parties.”
`Signal, 2014 WL 4783537, at *4. Relevant costs include those related to the
`location of relevant witnesses. See, e.g., Italian Colors Rest. v. Am. Express Co.,
`No. C 03-3719 SI, 2003 WL 22682482, at *5 (N.D. Cal. Nov.10, 2003)
`(“Generally, litigation costs are reduced when venue is located near most of the
`witnesses expected to testify or give depositions.”).
`
`DSS argues that although Cree has identified six potential employee
`witnesses, it provides little evidence regarding the relative significance of their
`potential testimony. (Opp’n, Docket No. 30 at 8; see Mot., Docket No. 27 at 10-
`11; Demos Decl., Docket No. 28 ¶ 8.) “[T]he moving party must demonstrate,
`through affidavits or declarations containing admissible evidence, who the key
`witnesses will be and what their testimony will generally include.” Cochran v.
`NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1119 (C.D. Cal. 1998) (citations
`omitted). A court “must consider not only the number of witnesses, but also the
`nature and quality of their testimony.” Catch Curve, 2006 WL 4568799, at *3.
`“The convenience of non-party witnesses is a more important factor than the
`convenience of party witnesses.” Id. Additionally, “the convenience of witnesses
`who are also employees of a party is entitled to less weight, because a party ‘can
`compel the testimony of its employees at trial.’” Cascades, 2015 WL 12698454, at
`*3 (quoting Costco Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F. Supp. 2d
`1183, 1193 (S.D. Cal. 2007)).
`
`Cree contends that transfer to the Middle District of North Carolina would
`be convenient for the six employee witnesses, who would not need to travel as far.
`
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`(Mot., Docket No. 27 at 10-11.) However, Cree fails to provide sufficient
`information establishing that the location of these potential employee witnesses
`warrants transfer of this action. (Id.; see Demos Decl., Docket No. 28 ¶ 8.)
`Additionally, the convenience of these witnesses “carries relatively little weight
`because all of them . . . can be compelled by the parties to give deposition
`testimony in either forum.” Cascades, 2015 WL 12698454, at *3. Moreover, DSS
`points out that one of the named patent inventors, Kong Weng Lee, resides in
`California. (Opp’n, Docket No. 30 at 11.) “[T]estimony of inventors in a patent
`infringement case may be significant.” iPowerUp, Inc. v. Ascent Solar Tech., Inc.,
`No. LA CV16–01006 JAK (AFMx), 2016 WL 6953453, at *6 (C.D. Cal. May 27,
`2016); see also Catch Curve, 2006 WL 4568799, at *3 (“Evidence of validity of a
`patent comes in large part from testimony of the inventors. . . . The inventors are
`likely to be key non-party witnesses . . . .”). DSS asserts that this “District is a far
`more convenient forum for this non-party witness than North Carolina.” (Opp’n,
`Docket No. 30 at 11.)
`
`Thus, Cree has not met its burden of showing that transferring this case to
`North Carolina would result in any actual cost savings. Further, there would
`presumably be extra costs associated with DSS litigating similar matters in two
`separate districts on opposite sides of the country. (Opp’n, Docket No. 30 at 10.)
`There are presently four other cases filed by DSS involving virtually the same
`patents pending before this Court. (See Mot., Docket No. 27 at 6-7.) Accordingly,
`based on these competing interests, the Court finds this factor weighs against
`transfer.
`
`5.
`
`Compulsory Processes for Non-Party Witnesses
`
`“In the Ninth Circuit, the availability of compulsory process to compel
`attendance of non-party witnesses in the transferee district favors transfer.” Eclipse
`IP LLC v. Volkswagen Grp. of Am., Inc., No. EDCV 12–2087 PSG (Spx), 2013
`WL 9935572, at *4 (C.D. Cal. May 10, 2013). “Pursuant to Rule 45(b)(2)(C) of
`the Federal Rules of Civil Procedure, a district court may compel attendance
`through the issuance of a subpoena at any place within the district of the court by
`which it is issued or at any place within 100 miles of where the deposition, trial, or
`hearing is being held.” In re Genetech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009).
`Cree identified one third-party witness as having relevant evidence concerning an
`affirmative defense. (Mot., Docket No. 27 at 12.) This witness is Brikel Key
`Investments LP, a Delaware limited partnership, with its principle place of
`
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`business in St. Peter Port, Guernsey. (Id. at 5.) In contrast, DSS has identified one
`third-party witness, patent inventor Kong Weng Lee, who resides in California.
`(Opp’n, Docket No. 30 at 11.) While Cree generally asserts that it “expects
`[additional] witnesses to be located in North Carolina,” this vague assertion does
`not support transfer. (Mot., Docket No. 27 at 11.) Accordingly, this factor is
`neutral.
`
`6.
`
`Ease of Access to Sources of Proof
`
`“‘In patent infringement cases, the bulk of the relevant evidence usually
`comes from the accused infringer. Consequently, the place where the defendant’s
`documents are kept weighs in favor of transfer to that location.’” Signal, 2014 WL
`4783537, at *5 (quoting Genetech, 566 F.3d at 1345). However, the “ease of
`access to documents does not weigh heavily in the transfer analysis, given that
`advances in technology have made it easy for documents to be transferred to
`different locations.” Metz v. U.S. Life Ins. Co., 674 F. Supp. 2d 1141, 1149 (C.D.
`Cal. 2009) (quoting Szegedy v. Keystone Food Prods., Inc., No. CV 08-5369, 2009
`WL 2767683, at *6 (C.D. Cal. Aug. 26, 2009)).
`
`Cree argues that the “documents concerning the structure, operation and
`manufacture of the accused products, as well as the corporate records concerning
`Cree’s financial expenditure and revenues associated with the sale of the accused
`products are located in North Carolina.” (Mot., Docket No. 27 at 5, 13.) In
`response, DSS asserts that “Cree fails to state where its documents regarding
`. . . the design and development of the accused products, are located.” (Opp’n,
`Docket No. 30 at 12.) While DSS presumes that documents related to design and
`development of accused products are located at the California facility, there is no
`evidence before the Court indicating this to be true. (Id.) However, in light of the
`ease of electronic discovery, this factor weighs very slightly in favor of transfer.
`7.
`Public Policy of Forum State
`
`“A district may have a relevant local interest when claims ‘call into question
`the work and reputation of several individuals residing in or conducting business in
`this community.’” Signal, 2014 WL 4783537, at *5 (quoting In re Hoffman-La
`Roche, 587 F.3d 1333, 1336 (Fed. Cir. 2009)). Here, Cree asserts that it is a
`“major employer in the North Carolina district,” and that “the people and courts of
`North Carolina have a strong interest in this particular controversy, at least to
`adjudicate the allegations that representatives of a large local employer
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`‘knowingly’ induced infringement.” (Mot., Docket No. 27 at 13-14.) In response,
`DSS asserts that Cree’s argument fails because “Cree also has employees at its
`facility in Goleta.” (Opp’n, Docket No. 30 at 16.) DSS also asserts that “[w]hile it
`may be true that the accused products are manufactured in North Carolina (as well
`as China), it is equally significant that technology for the accused products was
`designed and developed at Cree’s research and development facility in this
`District.” (Id.) While both districts appear to have an interest in adjudicating this
`controversy, it appears that the center of gravity of the accused activity is in the
`Middle District of North Carolina. Thus, the Middle District has a somewhat
`stronger interest in adjudicating this case. Accordingly, this factor weighs slightly
`in favor of transfer.
`
`8.
`
`Judicial Economy
`
`“Consideration of the interest of justice, which includes judicial economy,
`may be determinative to a particular transfer motion, even if the convenience of the
`parties and witnesses might call for a different result.” Regents of the Univ. of Cal.
`v. Eli Lilly & Co., 119 F.3d 1559, 1565 (Fed. Cir. 1997) (internal citation and
`quotation marks omitted). “The existence of multiple lawsuits involving the same
`issues is a paramount consideration when determining whether a transfer is in the
`interest of justice.” In re Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir.
`2009). In Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26 (1960), the
`Supreme Court stated that “[t]o permit a situation in which two cases involving
`precisely the same issues are simultaneously pending in different District Courts
`leads to the wastefulness of time, energy and money that § 1404(a) was designed to
`prevent.” See also Regents, 119 F.3d at 1565 (“[I]n a case such as this in which
`several highly technical factual issues are presented and the other relevant factors
`are in equipoise, the interest of judicial economy may favor transfer to a court that
`has become familiar with the issues.”).
`
`Here, DSS argues that, because there are already four other cases pending
`before this Court involving the same patents, the ‘771, ‘486, and ‘087 patents in all
`four case and the ‘787 patent in one other case, the Court should maintain this case
`in the interest of judicial economy. (Opp’n, Docket No. 30 at 13-14; see
`Document Security Systems, Inc. v. OSRAM GmbH et al., No. 2:17-cv-05184-
`JVS-JCG; Document Security Systems, Inc. v. Everlight Electronics Co., Ltd. et
`al., No. 2:17-cv-04273-JVS-JCG; Document Security Systems, Inc. v. Seoul
`Semiconductor Co., Ltd. et al., No. 8:17-cv-00981-JVS-JCG; and Document
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`Security Systems, Inc. v. Lite-On, Inc. et al., No. 2:17-cv-06050-JVS-JCG.) DSS
`argues that these cases “involve substantial overlap in issues of fact and law,
`including the validity of the overlapping patent claims, claim construction, and
`damages issues.” (Id.) DSS argues that not only will transferring this case
`“consume unnecessary additional judicial resources,” but it would also “create a
`risk of inconsistent rulings.” (Id. at 14.) In contrast, Cree argues that the accused
`products in each case are different and that the defendants are not affiliated. (Mot.,
`Docket No. 27 at 15.) Moreover, Cree argues that even if the Court considers the
`interest of judicial economy, it should not outweigh the other factors of the transfer
`analysis. (Id. at 17.)
`
`At the October 16, 2017 Scheduling Conference, the Court ordered
`coordinated discovery in the four DSS cases pending in this District that are
`identified as being related. The Court directed the parties to submit a common
`timetable for all pretrial discovery and a common timetable for the events leading
`to the Markman hearing and the hearing itself. These substantial economies for
`both the Court and the parties would be lost if this case were broken off and
`transferred to North Carolina.
`
`While the Court finds that judicial economy weighs strongly against transfer,
`the Court agrees with Cree that this factor is not entirely dispositive. See
`Cascades, 2015 WL 12698454, at *4. “Notably, although the Federal Circuit has
`ruled that in certain circumstances interests of justice may be determinative despite
`the diverging interests of parties and witnesses, this does not reduce the inquiry to
`a one-factor test.” Id. “The judicial economy of having the same judge handle
`multiple suits should not ‘dominate the transfer inquiry.’” Id. (quoting In re EMC
`Corp., 501 Fed. App’x 973, 976 (Fed. Cir. 2013); but see In re Vistaprint Ltd., 628
`F.3d 1342, 1347 (Fed. Cir. 2010) (“[I]t is entirely within the district court’s
`discretion to conclude that in a given case the § 1404(a) factors of public interest or
`judicial economy can be of ‘paramount consideration.’” (quoting Volkswagen, 566
`F.3d at 1351)).
`
`9.
`
`Balance of Factors
`
`To summarize, DSS’s choice of forum, the differences in costs of litigation,
`and judicial economy weigh against transfer, while the parties’ contacts with each
`forum, ease of access to sources of proof, and public policy weigh in favor of
`transfer. The Court finds that the factors favoring transfer are outweighed by the
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`factors opposing transfer, especially given that the Court’s interest in judicial
`economy weighs strongly against transfer. “Having two separate courts expending
`scarce resources to handle identical or similar claim construction hearings and each
`expending time and effort to understand the technology implicated in the invention
`would not be an efficient use of judicial resources.” Cascades, 2015 WL
`12698454, at *6. Accordingly, the Court declines to transfer the case to the Middle
`District of North Carolina.
`
`IV. CONCLUSION
`
`For the foregoing reasons, Cree’s Motion to Transfer Venue is denied.
`
`IT IS SO ORDERED.
`
`11
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