Opinion
18-CV-11386 (VSB)
09-28-2022
SPECTRUM DYNAMICS MEDICAL LIMITED, Plaintiff, v. GENERAL ELECTRIC COMPANY, et al., Defendants.
Neil F. Greenblum P. Branko Pejic Jeffrey H. Handelsman Greenblum & Bernstein, P.L.C. Gregory D. Miller Rivkin Radler LLP Hackensack, New Jersey Counsel for Plaintiff Marla R. Butler Carl Wesolowski Lauren Hogan Thompson Hine LLP Jesse Jenike-Godshalk Thompson Hine LLP Brian Lanciault Thompson Hine LLP New York, New York Jeffrey C. Metzcar Thompson Hine LLP Counsel for Defendants
Neil F. Greenblum
P. Branko Pejic
Jeffrey H. Handelsman
Greenblum & Bernstein, P.L.C.
Gregory D. Miller
Rivkin Radler LLP Hackensack, New Jersey Counsel for Plaintiff
Marla R. Butler
Carl Wesolowski
Lauren Hogan
Thompson Hine LLP
Jesse Jenike-Godshalk Thompson Hine LLP
Brian Lanciault
Thompson Hine LLP
New York, New York
Jeffrey C. Metzcar
Thompson Hine LLP
Counsel for Defendants
SEALED OPINION & ORDER
VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE
Before me is the partial motion to dismiss filed by Defendants General Electric Company (“GE”), GE Healthcare, Inc., GE Medical Systems Israel Ltd., Jean-Paul Bouhnik, Sergio Steinfeld, Arie Eshco, Nathan Hermony, and Yaron Hefetz, (together, “GE” or “Defendants”), seeking to partially dismiss the counter-counterclaims filed by Plaintiff Spectrum Dynamics Medical Limited (“Spectrum”). Because there is no subject matter jurisdiction over Spectrum's third and sixth counter-counterclaims against Defendants Yaron Hefetz (“Hefetz”) and Sergio Steinfeld (“Steinfeld”), and because Spectrum states claims upon which relief may be granted, Defendants' partial motion to dismiss is GRANTED IN PART and DENIED IN PART.
The facts set forth herein are taken from the allegations contained in Spectrum's Amended Complaint, (Doc. 38 (“Am. Compl.”)), Defendants' answer to the Amended Complaint and GE's asserted counterclaims, (Doc. 82), GE's amended counterclaims, (Doc. 89), and Spectrum's reply and asserted counter-counterclaims, (Doc. 92 (“Spectrum Reply”).) I assume the factual allegations asserted in Spectrum's reply and counter-counterclaims to be true for purposes of this motion. See A&G Healthplans, Inc. v. Nat'l Network Servs., Inc., No. 99 CV 12153(GBD), 2003 WL 1212933, at *1 (S.D.N.Y. Mar. 14, 2003) (“In reviewing a motion to dismiss counterclaims for failure to state a claim, a court must take the allegations in the counterclaims as true.”); see also Gerdau Ameristeel U.S. Inc. v. Ameron Int'l Corp., No. 13 Civ. 07169(LGS), 2014 WL 3639176, at *2 (S.D.N.Y. July 22, 2014) (“Federal Rule of Civil Procedure 12(b) applies equally to claims and counterclaims; therefore, a motion to dismiss a counterclaim is evaluated under the same standard as a motion to dismiss a complaint.”). My references to these allegations should not be construed as a finding as to their veracity, and I make no such findings.
I assume familiarity with the factual background and procedural history of the case as set forth in my previous Opinion & Order granting in part Defendants' motion to dismiss. (Doc. 74.) A more detailed factual background can be found in that Opinion & Order, but I recite here the facts relevant to the resolution of the instant motion.
The main patents at issue in the instant action are U.S. Patent No. 9,295,439 (“the ‘439 Patent”) and U.S. Patent No. 9,402,595 (“the ‘595 Patent”). (See Spectrum Reply.) Hefetz is the sole named inventor of the ‘439 Patent. (Id. Ex. A.) Hefetz executed a “Global Assignment” in June 2014 in which he assigned to GE his “entire right, title and interest in and to the invention and improvements made or conceived by [him] described in the application[]” for the ‘439 Patent. (Id. Ex. D.) He also assigned “any and all applications for patent and patents therefrom.” (Id.) GE is listed as the assignee on the face of the ‘439 Patent. (Id. Ex. A.) Hefetz and Steinfeld are two of the four named inventors of the ‘595 Patent. (Id. Ex. B.) According to GE, the other two, Bar-Shalev and Gil Kovalski, are not and never were parties in this case. (Doc. 108 at 3.) On January 23, 2014, all of the named inventors of the ‘595 Patent executed a “Global Assignment” assigning to GE their “entire respective rights, titles and interests in and to the invention and improvements made or conceived by [them] described in the application[]” for the ‘595 Patent. (Spectrum Reply Ex. E.)
II. Procedural History
On May 15, 2019, Spectrum filed its First Amended Complaint (“Amended Complaint”). (Am. Compl.)[ On June 14, 2019, Defendants moved to dismiss all but one of the claims in the Amended Complaint on various grounds, and Hefetz moved to dismiss all claims for lack of personal jurisdiction. (Doc. 52.) I granted in part and denied in part Defendants' motion to dismiss, and “dismissed Hefetz from this action for lack of personal jurisdiction.” (Id. at 12, 42.) Defendants then answered the Amended Complaint, and Defendant GE asserted two counterclaims (“Counterclaims”) against Spectrum for infringement of the ‘439 Patent and ‘595 Patent. (Doc. 82 (“Answer”) at 117-29.) On July 22, 2020, GE amended the Counterclaims to assert that the named inventors of both the ‘439 Patent and ‘595 Patent assigned to GE their “respective rights, titles and interests in and to each invention claims,” (Doc. 89 at 115 ¶¶ 9, 12), and three exhibits, (Doc. 89-1 through 89-3). On August 5, 2020, Spectrum filed an answer to GE's counterclaims in which it asserted six counter-counterclaims (“Counter-Counterclaims”), (Docs. 92, 94 at 22-45), and 11 exhibits, (Doc. 92-1 through 92-11, 94-1 through 94-11 (“Spectrum Reply Exs. A through K”)). Spectrum asserted all the Counter-Counterclaims against GE, and the third and sixth against GE, Hefetz, and Steinfeld. (Docs. 92, 94.) The third and sixth Counter-Counterclaims seek declaratory judgment of unenforceability of the ‘439 Patent and ‘595 Patent for unclean hands. (Id.)
“Am. Compl.” refers to the First Amended Complaint which was initially filed on May 14, 2019, (Doc. 36), but marked as deficiently filed, and successfully filed on May 15, 2019, (Doc. 38).
“Spectrum Reply” refers to Spectrum's Reply and Counterclaims to the Answer, Affirmative Defenses, and Amended Counterclaims of Defendants General Electric Company, GE Healthcare, Inc., GE Medical Systems Israel Ltd., Jean-Paul Bouhnik, Sergio Steinfeld, Arie Escho, and Nathan Hermony to Plaintiff Spectrum Dynamics Medical Limited's First Amended Complaint. (Docs. 92, 94.) The Spectrum Reply was filed under seal, (Doc. 92), and then in redacted form, (Doc. 94).
In its instant motion, Defendants appears to assume that Spectrum asserted all six Counter-Counterclaims against GE, Hefetz, and Steinfeld. In its memorandum of law in opposition to Defendants' motion to dismiss, Spectrum, however, clarifies that only the third and sixth Counter-Counterclaims for unclean hands are asserted against Hefetz and Steinfeld. (Doc. 109 at 1-2.) I will therefore only address Defendants' arguments to dismiss the claims against Hefetz and Steinfeld with respect to the third and sixth Counter-Counterclaims. To the extent that, in the future, Spectrum claims its Counter-Counterclaims, other than the third and sixth, could read as against Hefetz or Steinfeld, I find that any such argument is waived and not supported by the Counter-Counterclaims or any of the documents submitted in opposition to Defendants' motion to dismiss. (See id.)
On September 9, 2020, Defendants filed a motion to dismiss in part Spectrum's CounterCounterclaims, (Doc. 107), and a supporting memorandum of law, (Doc. 108 (“MTD”)). On September 23, 2020, Spectrum filed a memorandum of law in opposition, (Doc. 109 (“Spectrum Opp.”)), and the declaration of P. Branko Pejic, (Doc. 111), along with 10 exhibits, (Doc. 111-1 through 111-10). On September 30, 2020, Defendants filed a reply memorandum of law. (Doc. 113 (“Def. Reply”).)
III. Legal Standards
“Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted), aff'd, 561 U.S. 247 (2010); United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014) (describing subject matter jurisdiction as the “threshold question”) (internal quotation marks omitted).
Under Article III of the United States Constitution, federal courts may hear only “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. A case or controversy exists when “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (internal quotation marks omitted). There must “be an underlying legal cause of action that the declaratory defendant could have brought or threatened to bring, if not for the fact that the declaratory plaintiff has preempted it.” Benitec Australia, Ltd. v. Nucleonics, Inc., 495 F.3d 1340, 1344 (Fed. Cir. 2007) (internal quotation marks omitted). “The burden is on the party claiming declaratory judgment jurisdiction to establish that such jurisdiction existed at the time the claim for declaratory relief was filed and that it has continued since.” Id. at 1340, 1344.
Before 2015, “courts analyzed the sufficiency of a complaint alleging patent infringement by comparing the allegations in the complaint with Form 18 of the Federal Rules of Civil Procedure.” Araujo v. E. Mishan & Sons, Inc., No. 19-CV-5785 (GHW)(SN), 2020 WL 5371323, at *2 (S.D.N.Y. Aug. 7, 2020), report and recommendation adopted, No. 1:19-CV-5785-GHW, 2020 WL 5369888 (S.D.N.Y. Sept. 8, 2020). “As of December 1, 2015, the Federal Rules of Civil Procedure no longer included Form 18. Now, to determine whether a patent pleading survives a Rule 12(b)(6) motion to dismiss, courts in this Circuit apply Second Circuit law and follow” the normal 12(b)(6) pleading requirements. Id. at *1.
The pleading standard applicable to complaints under Federal Rule of Civil Procedure 12(b)(6) applies equally to counterclaims. See Gerdau Ameristeel U.S. Inc. v. Ameron Int'l Corp., No. 13 Civ. 07169(LGC), 2014 WL 3639176, at *2 (S.D.N.Y. July 22, 2014) (“Federal Rule of Civil Procedure 12(b) applies equally to claims and counterclaims; therefore, a motion to dismiss a counterclaim is evaluated under the same standard as a motion to dismiss a complaint”); Wells Fargo Bank Nw., N.A. v. Taca Int'l Airlines, S.A., 247 F.Supp.2d 352, 363 (S.D.N.Y. 2002) (noting that a “motion to dismiss counterclaims is governed by Rule 12(b)(6)”).
To survive a motion to dismiss under Rule 12(b)(6), counterclaims “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A counterclaim will have “facial plausibility when the [pleading party] pleads factual content that allows the court to draw the reasonable inference that the [opposing party] is liable for the misconduct alleged.” Id. This standard demands “more than a sheer possibility that [the opposing party] has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations: the full factual picture presented by the [counterclaims], the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render [the pleading party's] inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the counterclaims and must draw all reasonable inferences in the non-movant's favor. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). The counterclaims need not make “detailed factual allegations,” but must contain more than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Although all allegations contained in the counterclaims are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
IV. Discussion
A. Counter-Counterclaims Against Hefetz and Steinfeld
Defendants posit two principal arguments for the dismissal of Spectrum's third and sixth Counter-Counterclaims as to Hefetz and Steinfeld: first, that Hefetz and Steinfeld do not hold any right, title, or interest in the ‘439 Patent or ‘595 Patent and thus there is no case or controversy, and no subject matter jurisdiction, over Spectrum's Counter-Counterclaims against Hefetz and Steinfeld; and second, that the unclean hands doctrine does not apply because it only applies to parties seeking relief in equity. (MTD 8, 24-25.) Defendants are correct.
In cases involving declaratory judgment claims for noninfringement, invalidity, or unenforceability of a patent, there is no case or controversy between two parties where the party against whom the claim is brought does not have the right to sue for patent infringement. Hydrofoil Int'l v. Doelcher Prods., Nos. 89 Civ. 5469 (LLS), 89 Civ. 6745 (LLS), 1991 WL 4537, at *2-3 (S.D.N.Y. Jan. 15, 1991). Only a “patentee” can sue for patent infringement. 35 U.S.C. § 281. “If a party lacks title to a patent, that party has no standing to bring an infringement action under that patent.” Lans v. Digital Equip. Corp., 252 F.3d 1320, 1328 (Fed. Cir. 2001) (internal quotation marks omitted).
Here, Hefetz assigned to GE in June 2014 his “entire right, title and interest in and to the invention and improvements made or conceived by [him] described in the application[]” for the ‘439 Patent. (Spectrum Reply Ex. D; see also id. Ex. A (listing GE as the assignee to the ‘439 Patent).) Hefetz also assigned to GE “any and all applications for patent and patents therefrom.” (Id. Ex. D.) As to the ‘595 Patent, Hefetz and Steinfeld assigned to GE on January 23, 2014, their “entire respective rights, titles and interests in and to the invention and improvements made or conceived by [them] described in the application[.]” (Id. Ex. E.) Hefetz and Steinfeld cannot sue for patent infringement. Spectrum does not argue to the contrary. Therefore, because the third and sixth Counter-Counterclaims against them concern infringement, validity, or enforceability, there is no case and controversy to support this declaratory judgment action.
Moreover, Spectrum cannot assert the Counter-Counterclaims against Hefetz and Steinfeld for declaratory judgment of unenforceability of the ‘439 and ‘595 Patent for unclean hands because Hefetz and Steinfeld are not parties seeking relief in equity. It is well-established that the defense of unclean hands is not a standalone cause of action. See Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 749 F.Supp. 1243, 1254 (S.D.N.Y. 1990); BAT, LLC v. TD Bank, N.A., No. 15CV5839RRMCLP, 2018 WL 4693644, at *10 (E.D.N.Y. Sept. 28, 2018). Unclean hands may be the basis for a counterclaim for declaratory relief, but only as a defense to an equitable claim. In re Gulf Oil/Cities Serv. Tender Litig., 725 F.Supp. 712, 742 (S.D.N.Y. 1989); BAT, LLC, 2018 WL 4693644, at *14. Neither Hefetz nor Steinfeld seek any equitable relief from Spectrum. Hefetz is not even a party to this case anymore and, as a nonparty, cannot assert any claims against Spectrum.[ Fed. R. Civ. P. 13; Charter Oak Fire Ins. Co. v. Bokharian Jewish Cmty. Ctrs., Inc., No. 01 Civ. 4162 (RWS), 2002 WL 59420, at *3 (S.D.N.Y. Jan. 16, 2002) (dismissing a counterclaim against an individual who was not a party to the action). Steinfeld, while a party to the case, did not assert any counterclaims against Spectrum, let alone a claim seeking equitable relief. See id. (“a counterclaim can only be asserted against an opposing party”); BAT, LLC, 2018 WL 4922736, at *14 (“Both federal and state courts universally recognize the [unclean hands] doctrine as an equitable defense against an opposing party's claim for equitable relief.”). Defendants' Answer clearly states that GE exclusively asserts the Counterclaims against Spectrum. (Answer 113.) Neither Hefetz nor Steinfeld were listed as parties to the Counterclaims, nor were they mentioned anywhere in the Counterclaims themselves.[
Spectrum did not move to re-join Hefetz as a party before asserting its Counter-Counterclaims against him. As a last-ditch effort, Spectrum requests in its opposition brief leave to add Hefetz as a party under Federal Rule of Civil Procedure 19. (Spectrum Opp. 20.) I find that, were he a proper party, the Counter-Counterclaims against Hefetz would fail for the same reasons I dismiss Spectrum's Counter-Counterclaims against Steinfeld. Spectrum's motion for leave is denied.
Hefetz and Steinfeld were mentioned in GE's amended counterclaims, but only in the context of asserting that all rights, titles, and interests to the ‘439 and ‘595 Patent were assigned to GE in order to establish GE has standing to assert claims for infringement of those patents. (Doc. 89 at 115 ¶¶ 9, 12.)
]
(Id. at 113-29.) Spectrum cannot assert its Counter-Counterclaims for unclean hands against two parties who have not sought equitable relief from Spectrum.
Spectrum attempts to argue that the Counter-Counterclaims against Hefetz and Steinfeld were compulsory, and, pursuant to 28 U.S.C. § 1338(a), Spectrum had discretion to assert claims against any party. (Spectrum Opp. 8-10.) Defendants do not, however, argue that Spectrum should have raised these claims in its Amended Complaint instead of in its reply to Defendants' Answer. Indeed, “counterclaims in reply” are not even expressly authorized by the Federal Rules of Civil Procedure, but courts generally allow such a practice if the counterclaims are compulsory. See AT & T Corp. v. Am. Cash Card Corp., 184 F.R.D. 515, 520 n.2 (S.D.N.Y. 1999); Jenkins v. Sea-Land Serv., Inc., No. 92 CIV. 2380 (PKL), 1994 WL 445642, at *3 (S.D.N.Y. Aug. 17, 1994); Davis & Cox v. Summa Corp., 751 F.2d 1507, 1525 (9th Cir. 1985). Because I dismiss the Counter-Counterclaims against Hefetz and Steinfeld for various other reasons-and Defendants do not argue that the claims were improperly raised-I need not make any determination regarding whether the Counter-Counterclaims were compulsory and should have even been asserted in Spectrum's reply in the first place.
For the foregoing reasons, I dismiss Spectrum's third and sixth Counter-Counterclaims against Hefetz and Steinfeld.
B. Remaining Counter-Counterclaims Against GE
1. First and Fourth Counter-Counterclaims
Defendants move to dismiss Spectrum's first and fourth Counter-Counterclaims against GE for failure to state a claim. Spectrum's first Counter-Counterclaim seeks declaratory judgment of non-infringement of the ‘439 Patent. (Spectrum Reply ¶¶ 23-26.) Substantively, the Counter-Counterclaim alleges that “Spectrum has not, does not, and will not directly infringe, contributorily infringe or induce others to infringe any asserted properly construed, valid, and enforceable claim of the ‘439 patent” and the “manufacture, use, sale, offer for sale, and importation into the United States of, the Spectrum Veriton[] and Veriton[] devices, will not directly or indirectly infringe any asserted valid and enforceable claims of the ‘439 patent . . .” (Id. ¶¶ 24-25.) Spectrum's fourth Counter-Counterclaim is identical except that it refers to the ‘595 Patent. (Id. ¶¶ 86-89.) Spectrum argues that it adequately pled in its reply that the Veriton does not infringe the patents.(Spectrum Opp. 21 (citing Spectrum Reply ¶¶ 22-67).) Although these paragraphs do not add substantial factual detail to support a determination that Spectrum's claims are plausible, Spectrum does plead facts that demonstrate that at least under various constructions of the claim terms, it is plausible that the Veriton does not infringe the patents. (Spectrum Reply ¶¶ 73, 154 (assessing how the asserted claims of the ‘439 Patent and ‘595 Patent would be invalid under 35 U.S.C. §§ 102-04 over Spectrum's PCT/IB2013/053721 (“the ‘721 PCT”)); id. ¶¶ 80-81 (pleading that invalidity under 35 U.S.C. § 112 could arise depending upon how Defendants construe the claims against the Veriton).) Drawing all reasonable inferences in Spectrum's favor, Kassner, 496 F.3d at 237, I find that Spectrum plausibly pleads a claim that Spectrum did not infringe the ‘439 Patent and ‘595 Patent, and its claims for declaratory judgment of noninfringement will remain in the action.
I note that Spectrum relies on an outdated standard for properly stating a claim for relief in counterclaims of noninfringement. (Spectrum Opp. 20-21.) Spectrum asserts that New York courts decline to apply the Iqbal and Twombly standards to such counterclaims, when in fact that was only the case until 2015. See Araujo, 2020 WL 5371323, at *2. Courts now apply the Iqbal and Twombly standards when assessing sufficiency of pleading counterclaims of noninfringement. Id. I do the same here.
2. Second and Fifth Counter-Counterclaims
Defendants also seek to limit Spectrum's grounds of invalidity to inventorship issues and anticipation/obviousness over the ‘721 PCT. (MTD 23-24.) Defendants argue that Spectrum pleads facts to support only those grounds, when Spectrum had in fact pled several grounds for invalidity, including lack of patentable subject matter (§ 101), anticipation (§ 102), derivation (§ 102), improper inventorship (§ 102), obviousness (§ 103), and indefiniteness (§ 112). (Id.) Spectrum responds that it has pled with factual detail its grounds for invalidity to inventorship and anticipation/obviousness and that, under Local Patent Rule 7, it will supplement the grounds of invalidity after Defendants disclose details as to how the claims will be construed. (Spectrum Opp. 23.)
Like noninfringement claims, invalidity counterclaims are subject to the same pleading requirements under Iqbal and Twombly. See Crye Precision LLC v. Duro Textiles, LLC, 112 F.Supp.3d 69, 80 (S.D.N.Y. 2015); Orientview Techs. LLC v. Seven For All Mankind, LLC, No. 13 CIV. 0538 PAE, 2013 WL 4016302, at *6 (S.D.N.Y. Aug. 7, 2013). Courts in the district, however, generally dismiss invalidity counterclaims when the claimant pleads “bare assertion[s]” that are “devoid of any factual content whatsoever.” Orientview Techs. LLC, 2013 WL 4016302, at *7; Crye Precision LLC, 112 F.Supp.3d at 79 (dismissing invalidity claim on conclusory allegations that the patent is “invalid”). Here, Spectrum's pleading goes beyond conclusory allegations about invalidity. Specifically, Spectrum asserts factual allegations concerning the contribution of Spectrum employees as inventors and co-inventors, (Spectrum Reply ¶¶ 29-58, 92-140), improper disclosure of trade secrets, (id. ¶¶ 29-39, 43-44, 59-75, 92-115), and invalidity under various claim constructions, (id. ¶¶ 80-81). Spectrum pled with factual detail improper inventorship, anticipation over the ‘721 PCT, and obviousness over the ‘721 PCT. Since Spectrum is not required by the Local Patent Rules to provide all its contentions regarding invalidity until Defendants disclose the claim construction details, Spectrum has adequately stated a plausible claim for invalidity.
For the foregoing reasons, Defendants' motion to dismiss Spectrum's first, second, fourth, and fifth Counter-Counterclaims is DENIED.
V. Conclusion
For the foregoing reasons, Defendants' partial motion to dismiss is GRANTED IN PART and DENIED IN PART. Specifically, Defendants' motion to dismiss Spectrum's third and sixth Counter-Counterclaims against Hefetz and Steinfeld is GRANTED. Defendants' motion to dismiss the first, second, fourth, and fifth Counter-Counterclaims against GE for failure to state a claim is DENIED.
To any extent that Yaron Hefetz remains a party in this case, he is dismissed. The Clerk of Court is respectfully directed to dismiss Defendant Yaron Hefetz from this action.
The Clerk of Court is respectfully directed to file this Opinion & Order under seal visible only to the parties and the Court, and close the open motion at Document 107. The parties are directed to meet and confer and, no later than thirty (30) days after the filing of this Opinion & Order, file under seal any proposed redactions to this Opinion & Order for my review.
SO ORDERED.