1 LAURA E DUFFY
United States Attorney
2 DANIEL E. BUTCHER
Assistant U.S. Attorney
3 California Bar No. 144624
Office of the U.S. Attorney
4 880 Front Street, Room 6293
San Diego, CA 92101
5 Tel: (619) 546-7696
Fax: (619) 546-7751
6 Email: [email protected]
7 Attorneys for the United States
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11 LYCURGAN INC. dba ARES ARMOR,
Plaintiff
12
13
v.
14 B. TODD JONES, in his official capacity
as Head of the San Diego Bureau of
15 Alcohol, Tobacco, Firearms and
Explosives; and DOES 1-10,
16
Defendants.
17
Case No.: 14CV548 JLS (BGS)
OPPOSITION TO PLAINTIFFS’
MOTION FOR LEAVE TO FILE
SUPPLEMENTAL/AMENDED
COMPLAINT
DATE: October 30, 2014
TIME: 1:30 p.m.
Hon. Janis L. Sammartino
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19
20
I
21
INTRODUCTION
22
Plaintiff seeks leave of court to amend its original two claim, one defendant
23 complaint (which was mooted by subsequent events) with a 56 page, nine claim
24 complaint against multiple named and unnamed defendants. Plaintiff’s motion for
25 leave to amend should be denied because its Proposed Amended Complaint is subject
26 to dismissal on two grounds. First, the United States has not waived its sovereign
27 immunity for three of the proposed claims for relief. Second, this District is not the
28 proper venue to litigate the central issue that Plaintiff seeks to litigate in its Proposed
1 Amended Complaint: whether an individual (whom Plaintiff seeks to sue in his
2 personal capacity) acted constitutionally when he opined that the EP Arms EP80
3 lower receivers are firearms. The Court should therefore deny Plaintiff’s motion for
4 leave to file its Proposed Amended Complaint.
5
II
6
FACTUAL BACKGROUND
7
This is one of three cases that Plaintiff has filed in response to the Bureau of
8 Alcohol, Tobacco, Firearms, and Explosives (ATF) execution of a search warrant
9 issued by Magistrate Judge Skomal. See also In the Matter of the Search of: Ares
10 Armor et al., Case No. 14-cv-1424-JLS (BGS) (seeking to unseal the search warrant
11 affidavit); Lycurgan Inc. dba Ares Armor v. Jones, Case No. 14-cv-1679-JLS (BGS)
12 (seeking the return of the items seized under the Civil Asset Forfeiture Reform Act).
13 The search warrant relates to a criminal investigation of EP Arms in the Eastern
14 District of California. [See Ex. 2 to Defendant’s Motion to Dismiss in Case No. 1415 cv-1679-JLS (BGS) (ECF #7-3).]
16
EP Arms, which is located in the Eastern District of California, manufactures
17 “EP80 lower receivers”. [Id.] The EP80 lower receiver is commonly used to make
18 AR-15 style rifles. [See Ex. 1 to Defendant’s Motion to Dismiss in Case No. 14-cv19 1679-JLS (BGS) (ECF #7-2).] The AR-15 is a semi-automatic, civilian version of the
20 .223-caliber M16 machine gun used by the United States military. [Id.]
21
EP Arms (which is not a party to this lawsuit) requested ATF’s opinion whether
22 its EP80 is a firearm.
[See Ex. A to Plaintiff’s Proposed Amended Complaint
23 (“PAC”).] ATF’s Firearms Technology Branch opined that it is. [See Ex. B to PAC.]
24
Because it is a firearm, the EP80 is required to bear a manufacturer’s mark and
25 a serial number, but it does not. [See Exs. 1 and 2 to Defendant’s Motion to Dismiss
26 in Case No. 14-cv-1679-JLS (BGS) (ECF #7-2 and 7-3).] And only Federal Firearms
27 Licensees can manufacture and/or engage in the business of selling firearms. [Id.] EP
28 Arms is not a Federal Firearms Licensee. [Id. (Ex. 2, ¶ 3).]
Opposition to Motion for Leave to Amend
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14cv548
1
Plaintiff possessed more than 5,000 of the EP Arms EP80s. [Id. (Ex. 1, ¶ 8).]
2 The EP80s bear neither a manufacturer’s mark nor a serial number, and therefore are
3 untraceable. [Id. (Ex. 2, ¶ 5)] Plaintiff also is not a Federal Firearms Licensee, and
4 presumably was selling the EP80s without performing background checks on the
5 purchasers. [Id. (Ex. 1, ¶ 7).]
6
ATF attempted to resolve this matter informally with Plaintiff. ATF (through
7 its division counsel) and Plaintiff (through its retained attorney) successfully
8 negotiated Plaintiff’s voluntarily surrender of the EP80s in its possession.
[See
9 Declaration of Paul Ware, ¶¶ 2-6 (submitted with Defendant’s Response in Opposition
10 to Motion for a Temporary Restraining Order) (ECF #9-1).] But, while agreeing
11 through one retained attorney to voluntarily surrender the EP80s, Plaintiff
12 (unbeknownst to ATF) retained a second attorney to file this case and apply for and
13 obtain (without notice to the United States) a temporary restraining order prohibiting
14 ATF from taking possession of the EP80s, which it served on the ATF agents who
15 appeared to take possession of the EP80s. [Id., ¶ 7; see also Declaration of Dimitros
16 Karras (ECF #1-2) at 2, ¶ 9(b).] The United States then obtained ex parte relief from
17 this Court permitting ATF to apply for and obtain a search warrant to seize the EP80s.
18 [See ECF #5 and #6.] Magistrate Judge Skomal issued the warrant, and ATF agents
19 executed it on March 15, 2014. [See Ex. 1, ¶ 8 to Defendant’s Motion to Dismiss in
20 Case No. 14-cv-1679-JLS (BGS) (ECF #7-2).]
21
Plaintiff’s original complaint in this case contained two claims against ATF: (1)
22 that ATF’s desire to obtain EP80s and customer lists in Plaintiff’s possession violated
23 its “protected right to be free from seizure of its inventory and customer list” under the
24 Fourth Amendment [see Complaint (ECF #1) at 8-9], and (2) that “BATFE’s planned
25 action violates the rights of Ares Armor’s Customers.” [Id. at 9.] These claims were
26 mooted by ATF’s execution of the search warrant issued by Judge Skomal. [See
27 Order Granting Joint Motion to (1) Take Hearing on Preliminary Injunction of
28 Calendar (ECF #12) at 1.]
Opposition to Motion for Leave to Amend
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14cv548
1
Plaintiff now seeks leave of court to file a 56 page, 200 paragraph amended
2 complaint. Ironically (because Plaintiff’s own agreement to voluntarily surrender the
3 EP80s caused ATF to forego obtaining a search warrant at the outset), Plaintiff’s
4 Proposed Amended Complaint seeks to sue ATF agents in their personal capacities,
5 alleging that their application for a search warrant was an unconstitutional retaliation
6 against Plaintiff for obtaining a temporary restraining order. See Proposed Amended
7 Complaint at 39-41, ¶¶ 127-34.
8
But the gravamen of Plaintiff’s Proposed Amended Complaint concerns a letter
9 that Earl Griffith, the Chief of ATF’s Firearms Technology Branch, wrote in response
10 to EP Arms request for an opinion whether its EP80s are firearms. (Confirming the
11 centrality of the Griffith letter to its new claims, Plaintiff has attached the
12 correspondence between EP Arms’ attorney and Mr. Griffith as Exhibits A, B, C, and
13 D to its Proposed Amended Complaint.)
Plaintiff (which is not the party that
14 requested Mr. Griffith’s opinion) now seeks to sue Mr. Griffith personally for
15 providing the opinion that EP Arms (which is not a party to this litigation) requested.
16 Plaintiff’s Proposed Amended Complaint alleges that Mr. Griffith’s letter opining that
17 the EP80 receivers are firearms violated the First, Second, Fourth, and Fifth
18 Amendments of the United States Constitution.
19
Specifically, Plaintiff’s Proposed Amended Complaint alleges that Mr.
20 Griffith’s opinion letter violated the Constitution in the following claims for relief:
21
22
23
24
Claim
Allegation
Defendants
1
Griffith’s letter opining that the EP80 lower
Jones (official
receivers are firearms constitutes a prior restraint capacity)
on speech in violation of the First Amendment.
See Proposed Amended Complaint (PAC) (ECF
#35-4) at 35-38, ¶¶ 99-117.
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26
27
28
Opposition to Motion for Leave to Amend
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14cv548
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5
6
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14
8
Griffith’s letter opining that the EP80 lower
receivers are firearms constitutes a prior restraint
on speech in violation of the First Amendment.
Id. at 38-39, ¶¶ 118-126.
Second Amendment violated because “EP Arms
Unfinished Lower Receivers” are not firearms,
frames, or receivers. Id. at 41-42, ¶¶ 135-142.
Griffith and unnamed defendants knew that
Griffith’s opinion that the EP80s were firearms
“would be used to deceive a Magistrate Judge
and wrongfully obtain a search warrant,” in
violation of the Fourth Amendment. Id. at 4249, ¶¶ 143-156.
False or misleading affidavit submitted to a
Magistrate Judge, resulting in an improper taking
in violation of the Fifth Amendment. Id. at 5052, ¶¶ 166-175.
Lack of promulgated standards for determining
whether an item is a firearm and lack of appeal
rights violates the Due Process clause of the
Fifth Amendment. Id. at 52-56, ¶¶ 176-196.
Griffith and Unknown
Technologist (personal
capacity)
Jones (official
capacity)
Griffith, Unnamed
Agent I, Unnamed
Technologist, and
Does (personal
capacity)
Unnamed Agent I and
Does (personal
capacity)
Jones (official
capacity)
15
16
The United States, however, has not waived its sovereign immunity for
17 Plaintiff’s official capacity claims. Moreover, the Southern District of California is
18 not the proper venue to litigate the conclusions in Mr. Griffith’s opinion letter, which
19 was sent from his office in West Virginia (located in the District of West Virginia) to
20 EP Arms’ attorney’s office in Mission Viejo (located in the Central District of
21 California) regarding EP Arms, which is in Bakersfield (located in the Eastern District
22 of California).
III
ARGUMENT
23
24
25
A. Leave to Amend Should be Denied When the Proposed Amended Complaint
is Subject to Dismissal
26
27
28
A plaintiff may amend a complaint once as a matter of course within 21 days of
serving it or within 21 days of service a responsive pleading (including a Rule 12(b)
Opposition to Motion for Leave to Amend
5
14cv548
1 motion). See Fed. R. Civ. P. 15(a)(1). Other amendments require leave of court,
2 which generally is freely given “when justice so requires.” See Fed. R. Civ. P.
3 15(a)(2). But justice does not require freely granting leave to amend if the Proposed
4 Amended Complaint is subject to dismissal. Moore v. Kayport Package Express, Inc.,
5 885 F.2d 531, 538 (9th Cir.1989) (“Leave to amend need not be given if a complaint,
6 as amended, is subject to dismissal.”).
7
Plaintiff filed its motion to file its Proposed Amended Complaint on September
8 22, 2014. [See ECF #35.] That is more than 21 days after purported service of its
9 original complaint on April 4, 2014. [See ECF #13.] Plaintiff therefore may not file
10 its amended complaint without leave of court. See Fed. R. Civ. P. 15(a)(1) and (2).
11 Because Plaintiff’s Proposed Amended Complaint is subject to dismissal, the Court
12 should deny Plaintiff’s motion for leave to amend.
13
B. Plaintiff’s Proposed Amended Complaint is Subject to Dismissal
14
Plaintiff’s Proposed Amended Complaint is subject to dismissal on at least two
15 grounds: (1) the United States has not waived its sovereign immunity for Plaintiff’s
16 constitutional claims, and (2) this district is not the proper venue to litigate Mr.
17 Griffith’s opinion letter.1
18
19
1. The United States Has Not Waived Its Sovereign Immunity for
Constitutional Claims
20
The United States is immune from suit unless it consents. See generally United
21 States v. Dalm, 494 U.S. 596, 608 (1990) (“Under settled principles of sovereign
22 immunity, the United States, as sovereign, is immune from suit save as it consents to
23 be sued . . . and the terms of its consent to be sued in any court define that court’s
24 jurisdiction to entertain the suit.”) (internal quotations omitted). “A waiver of the
25 Government’s sovereign immunity will be strictly construed, in terms of its scope, in
26 favor of the sovereign.” Quarty v. United States, 170 F.3d 961, 972 (9th Cir. 1999)
27
1
Plaintiff’s Proposed Amended Complaint may also be subject to
dismissal
for
lack of standing and other grounds. The United States does not intend to
28 waive any additional
bases for dismissal by not raising them here.
Opposition to Motion for Leave to Amend
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14cv548
1 (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). See also United States v. Mitchell,
2 445 U.S. 535, 538 (1980) (“A waiver of sovereign immunity cannot be implied but
3 must be unequivocally expressed.”) (internal quotation omitted).
4
The United States has not waived its sovereign immunity for constitutional
5 claims. See Ingram v. Commissioner of Social Security, 401 Fed. Appx. 234, 235
6 (9th Cir. 2010) (unpublished) (“The district court properly dismissed Ingram’s
7 constitutional claims because the United States has not expressly waived its sovereign
8 immunity.”). See also FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) (Congress did
9 not waive the United States’ sovereign immunity for constitutional claims in the
10 Federal Tort Claims Act).
11
Plaintiff proposes to bring constitutional claims against the United States in the
12 first, fourth, and eighth claims for relief of its Proposed Amended Complaint. These
13 official capacity claims violate the United States’ sovereign immunity and therefore
14 are subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). See Gilbert v.
15 DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (affirming dismissal of constitutional
16 claims against the United States; “It has long been the rule that the bar of sovereign
17 immunity cannot be avoided by naming officers and employees of the United States as
18 defendants. Thus, a suit against IRS employees in their official capacity is essentially
19 a suit against the United States. As such, absent express statutory consent to sue,
20 dismissal is required.”).2
21
2
Plaintiff’s Proposed Amended Complaint cites 28 U.S.C. § 1331 (federal
22 question jurisdiction), 28 U.S.C.§ 1343 (civil rights jurisdiction), and 28 U.S.C.
§§ 2201 and 2202 (the Declaratory Relief Act), as the bases for jurisdiction. See
23 PAC at 2, ¶ 1. But, as the Ninth Circuit has held, Congress did not waive the United
States’ sovereign immunity in any of these statutes. See United States v. Park Place
24 Associates, 563 F.3d 907, 924 (9th Cir. 2009) (“28 U.S.C. § 1331 grants district
court’s jurisdiction over ‘all civil actions arising under the Constitution, laws or
25 treaties of the United States,’ but it does not waive sovereign immunity.”); Jachetta v.
United States, 653 F.3d 898, 907-08 (9th Cir. 2011) (“Because we fail to see how this
26 text can be construed as an unequivocally expressed waiver of the government’s
sovereign immunity, we hold that 28 U.S.C. § 1343(a)(3) does not waive sovereign
27 immunity.”); Brownwell v. Ketcham Wire & Mfg. Co., 211 F.2d 121, 128 (9th Cir.
1954) (“It is true that the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, is not a
28 consent of the United States to be sued, and merely grants an additional remedy in
cases where jurisdiction already exists.”).
Opposition to Motion for Leave to Amend
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14cv548
2. This District is Not the Proper Venue to Litigate the Griffith Opinion
Letter
1
2
3
“Where there are multiple parties and/or multiple claims in an action, the
4 plaintiff must establish that venue is proper as to each defendant and as to each
5 claim.”
Multimin USA, Inc. v. Walco Internation, Inc., 2006 WL 1046964, *2
6 (E.D.Cal. 2006). Plaintiff cannot establish venue in this district for the first, second,
7 fourth, and eighth claims for relief in its Proposed Amended Complaint. Those claims
8 for relief therefore are subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(3).
9
The first, second, fourth, and eighth claims for relief in Plaintiff’s Proposed
10 Amended Complaint seek to litigate the conclusion in Mr. Griffith’s letter that the
11 EP80s (referred to as “EP Arms Unfinished Lower Receivers” in the Proposed
12 Amended Complaint) are firearms. The first and second claims for relief allege that
13 Mr. Griffith’s letter constituted a prior restraint on speech in violation of the First
14 Amendment. See PAC at 35-38. The fourth claim for relief alleges Mr. Griffith’s
15 letter violated the Second Amendment. Id. at 41-42. The eighth claim for relief
16 alleges that the process that resulted in Mr. Griffith’s letter violated the Fifth
17 Amendment. Id. at 52-56.
18
This district is not the proper venue for these claims. None of the bases for
19 venue in 28 U.S.C. § 1391(b) (which governs venue for the individual defendants) or
20 28 U.S.C. § 1391(e) (which governs venue for the official capacity defendants) is met.
21 First, no defendant resides in this district. See 28 U.S.C. § 1391(b)(1) and (e)(1). “A
22 public official is deemed to ‘reside’ for purposes of § 1391(e) in the judicial district
23 where he performs his official duties.”
Kings County Economic Community
24 Development Ass’n v. Hardin, 333 F.Supp. 1302, 1303 n.1 (N.D.Cal. 1971)) (citing 1
25 Moore’s Federal Practice 1487-88); accord Airport Working Group of Orange
26 County, Inc. v. United States Dept. of Defense, 226 F.Supp.2d 227, 228 (D.D.C.
27 2002) (“the Department of Defense . . . [has its] official residence for venue purposes
28 in the District of Columbia”). Mr. Griffith resides in Maryland and performs his
Opposition to Motion for Leave to Amend
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14cv548
1 official duties in West Virginia. See Exhibit 1 (Declaration of Paul Ware) at ¶¶ 2-3.
2 Mr. Jones performs his official duties at ATF’s headquarters in Washington, D.C.
3 [Id., ¶ 4.]
4
Second, none of the events surrounding Mr. Griffith’s drafting of his letter
5 occurred in this district, see 28 U.S.C. § 1391(b)(2) and (e)(2), which is the basis for
6 venue invoked by Plaintiff’s complaint. See PAC at 2, ¶ 2 (“Venue is proper in the
7 Southern District of California pursuant to Title 28, United States Code, Section
8 1391€(1)(B), because a substantial part of the events or omissions giving rise to the
9 claim occurred in this district.”). The EP Arms attorney sent his letter requesting Mr.
10 Griffith’s determination whether the EP80 is a firearm from his office in Mission
11 Viejo, California (located in the Central District of California) to Mr. Griffith’s office
12 in Martinsburg, West Virginia (located in the District of West Virginia). [See PAC,
13 Ex. A.] The EP Arms attorney also sent an exemplar EP80 to West Virginia for Mr.
14 Griffith’s review and examination. [Id.] Mr. Griffith conducted his examination in
15 Martinsburg, West Virginia [Ex. 1 (Ware Declaration) at ¶ 3], and sent his response
16 from West Virginia back to EP Arms’ attorney’s office in Mission Viejo. [See PAC,
17 Ex. B.] EP Arms itself is located in Bakersfield (which is located in the Eastern
18 District of California). [See www.eparmory.com.] In sum, neither EP Arms request
19 for analysis and determination, nor Mr. Griffith’s examination and response took
20 place in this district. Venue therefore does not lie in this district under 28 U.S.C.
21 § 1391(b)(2) or (e)(2). Accord Kings County Economic Development Ass’n, 333
22 F.Supp. at 1303.
23
Finally, there are other districts where a challenge to the Griffith letter may be
24 brought. See 28 U.S.C. § 1391(b)(3) and (e)(3). Indeed, a lawsuit challenging the
25 Griffith letter is presently pending in the Eastern District of California, where EP
26 Arms resides. That complaint involves the same issue that Plaintiff seeks to litigate in
27 its Proposed Amended Complaint: whether Mr. Griffith correctly concluded that the
28 EP80 is a firearm.
See California Rifle & Pistol Ass’n v. Bureau of Alcohol,
Opposition to Motion for Leave to Amend
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14cv548
1 Tobacco, Firearms, and Explosives, et al., Case No. 14-cv-1211-SAB (E.D. Cal.)
2 (attached as Exhibit A to Plaintiff’s Notice of Related Case filed in Case No. 14-cv3
3 1679 (ECF #5)).
4
In sum, this district lacks venue for four of the claims in Plaintiff’s Proposed
5 Amended Complaint.
Leave to file the Proposed Amended Complaint therefore
6 should be denied because it is subject to dismissal pursuant to Fed. R. Civ. P.
7 12(b)(3). See Multimin, 2006 WL 1046964 at *2 (in multi-party, multi-claim cases,
8 “the plaintiff must establish that venue is proper as to each defendant and as to each
9 claim.”).
10
III
11
CONCLUSION
12
For the foregoing reasons, the Court should deny Plaintiff’s motion for leave to
13 file its Proposed Amended Complaint.
14
DATED:
October 16, 2014
Respectfully submitted,
LAURA E. DUFFY
United States Attorney
15
16
s/ Daniel E. Butcher
DANIEL E. BUTCHER
Assistant United States Attorney
Attorneys for Defendant
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3
Defendant is not conceding here that venue is proper in the Eastern
District
of
California.
28 elect to raise that issue. That is a matter that the court there must resolve if the parties
Opposition to Motion for Leave to Amend
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14cv548
EXHIBIT
1
Declaration of Paul J. Ware
1.
I am the Division Counsel for the Los Angeles Field Division, Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF). In my capacity as the Division Counsel, I
have visited ATF Firearms Technology Branch (FTB) and ATF Headquarters. I have
also met both Chief Griffith and Director Jones.
2. Earl Griffith is currently the Acting Chief of the Firearms and Ammunition Technology
Division and was formerly Chief, Firearms Technology Branch. His official duty station
is Martinsburg, W.V. Mr. Griffith is a resident of the State of Maryland where he has
permanently resided since 1992.
3. As part ofMr. Griffith's official duties, he was involved in the classification of the EP
Arms EP80 firearm receiver. Each examination and classification of this item was
conducted in Martinsburg, W.V. In addition, Mr. Griffith reviewed and signed each
classification letter in Martinsburg, W.V.
4. B. Todd Jones is the Director of ATF and exercises his official duties at ATF
Headquarters located in Washington D.C.
5.
I declare under penalty of perjury that the foregoing is true and correct.
1
UNITED STATES DISTRICT COURT
2
SOUTHERN DISTRICT OF CALIFORNIA
3
4
LYCURGAN INC. dba ARES ARMOR,
5
6
Plaintiff
Case No.: 14CV548 JLS (BGS)
PROOF OF SERVICE
v.
7
B. TODD JONES, in his official capacity
8 as Head of the San Diego Bureau of
Alcohol, Tobacco, Firearms and
9 Explosives; and DOES 1-10,
Defendants.
10
11
12
I, Daniel E. Butcher, am a citizen of the United States and am at least eighteen
13
years of age. My business address is 880 Front Street, Room 6293, San Diego, CA.
14
92101-8893.
15
I am not a party to the above-entitled action. I have caused service of
16
17
OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE
SUPPLEMENTAL/AMENDED COMPLAINT
18
on the following parties by:
19
■
20
Alan Beck, Esq.
Scott McMillan, Esq.
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ECF--Electronic Notice/Service :
I declare under penalty of perjury that the foregoing is true and correct.
DATED:
October 16, 2014
_/s Daniel E. Butcher________
Daniel E. Butcher