Opinion
3:09-cv-00732-RCJ-(VPC).
August 3, 2010
ORDER
I. INTRODUCTION
Plaintiff Veterinary Ventures, Inc. ("Veterinary Ventures") alleges that Defendant Barry Farris dba Sierra BioScience, LLC ("Mr. Farris") infringed on Veterinary Ventures' patents, specifically U.S. Patent No. 5,799,609 (the "'609 patent") and U.S. Patent No. 6,055,934 (the "'934 patent") (collectively, the "Patents"). Veterinary Ventures filed a complaint on December 14, 2009. ( See Compl. (#1)). The complaint also states various other causes of action, including defamation, product disparagement, deceptive trade practice, intentional interference with prospective economic advantage, and unfair competition. ( See id.).
Presently before the Court is Veterinary Ventures' Motion to Exceed Page Limitations of LR 7-4 (#32) and Veterinary Ventures' Motion for Preliminary Injunction (#18). ( See Pl.'s Mot. (#18) at 6:12-17; Pl.'s Mot. to Exceed Page Limitations of LR 7-4 (#32)). Veterinary Ventures' Motion to Exceed Page Limitations of LR 704 (#32) is unopposed. Mr. Farris filed an Opposition to Veterinary Ventures' Motion for Preliminary Injunction (#27) on May 17, 2010, and Veterinary Ventures filed a Reply to Mr. Farris' Opposition (#34) on June 4, 2010. The Court heard oral arguments on July 2, 2010. (#56). The Court now issues the following order.
Also before the Court is Mr. Farris' Motion to Dismiss for Lack of Jurisdiction (#6) and Veterinary Ventures' Motion for Leave to File a Surreply (#20). However, Mr. Farris withdrew the Motion to Dismiss for Lack of Jurisdiction (#6) during oral argument on July 7, 2010 (#56). Therefore, Mr. Farris' Motion to Dismiss for Lack of Jurisdiction (#6) and Veterinary Ventures' Motion for Leave to File a Surreply (#20) are denied as moot.
IT IS HEREBY ORDERED that Veterinary Ventures' Motion to Exceed Page Limitations of LR 7-4 (#32) is GRANTED. IT IS FURTHER ORDERED that Veterinary Ventures' Motion for Preliminary Injunction (#18) is DENIED. IT IS FURTHER ORDERED that Mr. Farris' Motion to Dismiss for Lack of Jurisdiction (#6) is DENIED AS MOOT. IT IS FURTHER ORDERED that Veterinary Ventures' Motion for Leave to File a Surreply (#20) is DENIED AS MOOT.
II. BACKGROUND
Veterinary Ventures' products are continuous waterfall drinking fountains for animals. These products are designed to "satisf[y] the desire for free falling water therefore enhancing water intake by the animal and supporting urinary tract health, while reducing inconvenience for the owner." (Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at col. 5:26-29). Veterinary Ventures' products make use of innovations covered by multiple patents, including the `609 patent and the `934 patent. (Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A-B).
In response to alleged deficiencies in Veterinary Ventures' and related products, Mr. Farris developed and sold products that competed with Veterinary Ventures' products, with the following improvements:
1) the ability to be heat sterilized, 2) the ability to chill water . . . 3) the ability to provide a safer electrical connection . . . 4) the ability to provide a more effective double in-line filtering system . . . 5) the ability to provide a method and applications to sterilize all the water . . . 6) the ability to provide a refill system that does not support the growth of pathogens.
(Def.'s Opp'n. (#27) at 6:9-15). Mr. Farris filed a patent application on February 6, 2008 embodying these improvements. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. K).
Veterinary Ventures alleges in its complaint that the products that were developed and sold by Mr. Farris infringed upon claims embodied in the `609 patent and the `934 patent. ( See Compl. (#1) at ¶¶ 20-31).
III. LEGAL STANDARD
For a case arising under the patent laws, a district court must follow the precedent of the Federal Circuit to the extent that they relate to patent issues or are likely to create incentives for forum shopping. See Foster v. Hallco. Mfg. Co., 947 F.2d 469, 475 (Fed. Cir. 1991).
A preliminary injunction is not to be granted routinely. See High Tech Medical Instrumentation v. New Image Indus., Inc., 49 F.3d 1551, 1554 (Fed. Cir. 1995). In considering a motion for preliminary injunctive relief in a patent case, the court must consider "(1) a reasonable likelihood of success on the merits; (2) irreparable harm if an injunction is not granted; (3) a balance of hardships tipping in its favor; and (4) the injunction's favorable impact on the public interest." Amazon.com v. Bamesandnoble.com, 239 F.3d 1343, 1350 (Fed. Cir. 2001). The Supreme Court held in Winter v. Natural Res. Def. Council, Inc., that even where a likelihood of success on the merits has been established, irreparable injury must be more than possible, it must be likely. 129 S. Ct. 365, 376 (2008).
IV. DISCUSSION
A. Veterinary Ventures' Motion to Exceed Page Limitations of LR 7-4 (#32)
Veterinary Ventures requests permission from this Court to file a Reply in Support of their Motion for Preliminary Injunction that exceeds the twenty-page limit imposed by LR 7-4. ( See Pl.'s Mot. to Exceed Page Limitations of LR 7-4 (#32)). Pursuant to LR 7-4, "[r]eply briefs and points and authorities shall be limited to twenty (20) pages, excluding exhibits." Veterinary Ventures has contacted Mr. Farris and the parties have agreed to a maximum limit of twenty-five pages. Under LR 7-2(d), "[t]he failure of a moving party to file points and authorities in support of the motion shall constitute a consent to the denial of the motion." LR 7-2(d). As Mr. Farris did not file an opposition, this motion is unopposed.
Veterinary Ventures' Reply has been filed and is thirty-one pages in length, but twenty-five pages in length excluding the cover page, table of contents, and table of authorities. LR 7-4 requires that a table of contents and table of authorities be included in any briefs or points and authorities, but does not specify whether such table of contents and table of authorities should be included in the counting of any page limitation. See LR 7-4. Nevertheless, the Court has the authority to modify or relax this rule. See, e.g., Gennock v. Warner-Lambert Co., 208 F. Supp.2d 1156, 1158 (D. Nev. 2002). Given that the motion is unopposed, the motion is granted and Veterinary Ventures' Reply is accepted as filed.
B. Motion for Preliminary Injunction (#18)
1. Reasonable likelihood of success on the merits
At the preliminary injunction stage, it is the moving party that bears the burden of establishing a likelihood of success. Nutrition 21 v. U.S., 930 F.2d 867, 869 (Fed. Cir. 1991). To establish a likelihood of success on the merits, Veterinary Ventures must show that it will "likely prove infringement, and that it will likely withstand challenges, if any, to the validity of the patent." Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1376 (Fed. Cir. 2009). In order to defeat a motion for preliminary injunction on the issue of invalidity, Mr. Farris need only raise a "substantial question" of invalidity. Amazon.com, 239 F.3d at 1359.
On the other hand, "an assessment of the likelihood of infringement, like a determination of patent infringement at a later stage in litigation, requires a two-step analysis." Oakley, Inc. v. Sunglass Hut Intern., 316 F.3d 1331, 1339 (Fed. Cir. 2003). "First, the court determines the scope and meaning of the patent claims asserted . . . Secondly, the properly construed claims are compared to the allegedly infringing device." Id. (quoting Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed. Cir. 1998) ( en banc)).
In evaluating the scope and meaning of a patent claim, the patent specification must enable those skilled in the art to make and use the full scope of the claimed invention without undue experimentation based on the underlying facts. See Genentech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1364 (Fed. Cir. 1997). A patent's claim is read with the ordinary and customary meaning that the claim would have to a person of ordinary skill in the art at the time of the invention. See Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) ( en banc). In analyzing the scope of a patent claim, one does not "read a limitation into a claim from the written description." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). A specification within the patent may be brought in to shed light on the meaning of specific claims, but such meaning must accord with the words of the claims themselves. Id. Hence, a patent claim does not stand alone, but "must be read in view of the specification, of which they are a part." Phillips, 415 F.3d at 1315 (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (1995), ( en banc), aff'd, 517 U.S. 370 (1996)). If any element of the asserted claims is missing from the accused device, there is no likelihood of success sufficient to support a preliminary injunction. See, e.g., High Tech Medical Instrumentation, 49 F.3d at 1555-56 (reversing grant of preliminary injunction where element of claim was missing from accused device).
a. `609 Patent
i. Prior Art, Obviousness, and Prior Adjudication
Mr. Farris asserts that prior art makes Veterinary Ventures' patents invalid because prior art obviates the features that make Veterinary Ventures' products unique and/or superior. ( See Def.'s Opp'n. (#27) at 11:13-14:9). A patent is valid for obviousness "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. § 103(a). Predictable variations and predictable applications of prior art to similar products likely suffer from obviousness, unless the actual application is beyond the skill of an ordinary person skilled in the art. KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). This reasoning extends to combinations of prior art. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." Id. at 416. However, a patent that is a combination of various elements is not obvious simply because each of the elements were known through prior art. Id. at 418. Many courts find relevant "whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue." Id; see also Lucent Tech. Inc. v. Gateway, Inc., 509 F. Supp.2d 912, 933-34 (S.D. Cal. 2007).
Here, prior inventions required that animals be trained to use and/or operate the devices, a continuous aerated flow of water was not as apparent to the animal, connection to pressurized water supply was required, the movement of the water did not conform to known animal preferences, etc. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at cols. 3:32-4:34). Veterinary Ventures' products allegedly resolved such issues and provided a distinct improvement over the prior art through unique features such as a continual flow of free-falling water, making a pressurized water supply and discharge outlet unnecessary, portability, lack of waste, making it unnecessary for animals to learn to use or operate the products, aeration of the water, and simple filtration. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at cols. 4:35-5:19).
However, Mr. Farris references several patents which were not disclosed as prior art in the Patents, and which, in combination, seem to obviate the Patents. U.S. Patent No. 5,052,343 (the "Sushelnitski patent") relates to a self-replenishing water trough that "circulate[s] the water within the trough to prevent freezing and make a noise like running water to entice animals to drink." (Def.'s Opp'n (#27) Ex. F at col. 1:38-64). Furthermore, U.S. Patent No. 4,285,813 (the "Stewart patent") relates to an aquarium filter which utilizes a free-falling release area, intake tube, and filtration system. (Def.'s Opp'n (#27) Ex. B at cols. 1:61-2:61). In the `609 patent, claims 9-12, 14, and 17 (the claims at issue) reflect the basic mechanism whereby water in an open container is available to animals for drinking, which is channeled through an intake tube, filtered, and released back in the container in a downward, free-fall fashion. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at cols. 11:28-12:5, 12:11-15, 12:27-31). Hence, in combination, the Sushelnitski patent and the Stewart patent seem to obviate the claims at issue in the `609 patent. In fact, not only do the Sushelnitski patent and the Stewart patent seem to function similarly to the `609 patent, but with regard to the perceived weaknesses of prior art and the method used to resolve such weaknesses, there does not appear to be any substantial difference between this combination of patents and the `609 patent. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at cols. 3:32-4:34; Def.'s Opp'n (#27) Ex. B at col. 1:15-59, Ex. F at col. 1:8-35). For instance, the Sushelnitski patent references the problem of enticing cattle to drink water, which it solves by creating a trough with a continuously running water supply that falls into the trough in a substantially free-fall manner. (Def.'s Opp'n (#27) Ex. F at cols. 1:8-50). Similarly, the `609 patent claims to make a continuously running, free-falling waterfall device to increase hydration in pets. (Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at col. 1:9-64).
Finally, Veterinary Ventures has provided evidence of past success in defending the validity of the Patents in support of its position that the Patents are valid. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. H-J). On a motion for preliminary injunction, "the patent holder may use a prior adjudication of patent validity involving a different defendant as evidence supporting its burden of proving likelihood of success on the merits." Hybritech Inc., 849 F.2d at 1452. However, past litigation history is not dispositive and the district court is not bound by prior adjudication. Id. Here, the Sushelnitski patent and the Stewart patent were not disclosed as prior art and therefore seems to be a reasonable argument for patent invalidity on the basis of obviousness. Furthermore, the past history provided by Veterinary Ventures merely shows a series of settlements, with no evidence of a resolution reached on validity of the Patents in fully-contested proceedings. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. H-J). Hence, this Court finds Veterinary Ventures' litigation history unconvincing.
Therefore, the `609 patent is likely to be found invalid. While this Court may conclude the analysis and deny the preliminary injunction of the `609 patent for invalidity due to obviousness, the analysis regarding infringement is addressed briefly below.
ii. Water Release Means
The primary issue in relation to infringement of the `609 patent is the interpretation of the term "water release means." Veterinary Ventures argues for defining "water release means" as "a structure, such as an outlet ramp or lip, outlet flow ramp, outlet drip ramp, simple conduit, faucet, or equivalent structure that releases water into the water receptacle." (Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) at 17:8-11). Mr. Farris argues that the term "water release means" refers to a "outlet ramp" or "lip" rather than the broader definition argued for by Veterinary Ventures. ( See Def.'s Opp'n (#27) at 10:2-4).
Claim 12 states that the water release means:
comprises a downward sloping surface in contact with said water transportation means . . . said surface having an upper end and lower end, said upper end being positioned to receive water from said fluid transportation means, wherein water exiting said fluid transportation means runs from said upper end, across said surface, and falls free of said lower end, wherein water is made to substantially free fall into said container.
(Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at cols. 11:55-12:5). Claim 1 refers to the water release means structure as "a lip attached to said reservoir which releases water into said container from a predetermined height above said container, wherein water is made to substantially fall into said container. . . ." ( Id. at col. 10:55-58). Claims 7-8 similarly refer to a "lip" in referencing the structure that comprises the water release means. ( Id. at col. 11:18-27).
Additionally, the specifications describe the water release means structure variously as "outlet ramp or lip 22" or "outlet flow ramp 98 and outlet drip ramp 100." (Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at col. 7:4-5, 9:32-33, Figures 1, 5). The specifications also describe the process whereby the "flow ramp 98 and outlet drip ramp 100 are water release means for water to emerge from reservoir 96 and fall into water receptacle 102." ( Id. at col. 9:33-35). "Outlet ramp" and "lip" are the only terms used consistently throughout the specifications. Hence, the structures and function described in the specifications all support an ordinary reading of the water release means to cover some sort of outlet ramp or lip by which water falls in a substantially free-falling manner.
b. Actual Infringement
Accepting for the purposes of this motion the limited definition of "water release means" as some sort of outlet ramp or lip would mean that claims 9-12 are likely not being infringed upon by Mr. Farris' products. This is because claims 9, 11, 12 have as a material element that the water falls from the "water release means" in a substantially free-falling manner into an open container, whereas Mr. Farris' product utilizes a submerged pump with a pressurized nozzle that ejects water into an open container. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at cols. 11:28-12:5, Ex. M-P; Def.'s Opp'n (#27) at 10:24-11:3). Hence, while Veterinary Ventures' product uses a "water release means" powered by gravity, Mr. Farris' product ejects pressurized water from a nozzle. Since claims 10, 14, and 17 explicitly refer to and incorporate the structure of the "water release means" in the construction of the claims, the reasoning for finding infringement unlikely with respect to claims 9, 11, and 12 would also apply to claims 10, 14, and 17. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. A at cols. 11:28-12:5, Ex. M-P).
Therefore, proving infringement with respect to the `609 patent is unlikely.
2. `934 Patent
For the same reasons as above relating to the material element of free-falling water, accepting for the purposes of this motion the limited definition of "water release means" as some sort of outlet ramp or lip would mean that claims 1-3 and 7-14 are likely not being infringed upon by Mr. Farris' products. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. B at cols. 10:33-61, 11:37-12:60; Ex. Q-S). In further support of the more narrow definition of water release means, certain claims in the `934 patent also refer to the water release means simply as an "outlet ramp" from which water falls in a substantially free-fall manner. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. B at cols. 10:33-53, 12:10-29). The manner in which the water release means is referenced therefore favors a definition of water release means as "outlet ramp" or "lip".
Furthermore, Mr. Farris asserts that the patent specifications and claims are not specific enough to allow a person skilled in the art to build the innovation as designed. ( See Def.'s Opp'n (#27) at 14:20-5; Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. B). While it is difficult to determine based off of the pictures and specifications whether someone skilled in the art could build the innovation as designed, it appears that Mr. Farris has, at a minimum, put forth a good faith effort to distinguish his products sufficiently to avoid infringing upon Veterinary Ventures' Patents. For instance, as part of this effort, Mr. Farris' design incorporates a unique spout with an angled cut that allows for pressure equalization. ( See Def.'s Opp'n (#27) at 16:13-22; Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) Ex. K at 7-8). Further information regarding the differences between the parties' inventions would be required to determine whether the Mr. Farris' efforts to distinguish his products result in a distinct product that does not infringe upon the Patents. However, at a minimum it appears Mr. Farris may have a viable argument in establishing that no actual infringement has taken place.
Hence, it is not clear whether the `934 patent provides enough specificity to allow someone skilled in the art to make use of the innovation, but the Court need not rely on this argument given that the interpretation of the patent claims would favor Mr. Farris' argument that no infringement has occurred. It is the burden of Veterinary Ventures to prove otherwise in a motion for preliminary injunction. Titan Tire Corp. at 1376.
B. Other Factors
The remaining factors for consideration are: whether there will be irreparable harm if a preliminary injunction is not granted, a balancing of the hardships, and a consideration of the public interest. On balance, these factors favor denying the motion for preliminary injunction.
Once a patentee shows a likelihood of success on the merits, irreparable harm is presumed. See, e.g., Smith Int'l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 (Fed. Cir. 1983). The presumption is rebuttable. See, e.g., Rosemount, Inc. v. United States Int'l Trade Comm'n, 910 F.2d 819, 821-22 (Fed. Cir. 1990). Here, however, Veterinary Ventures has been unable to establish a likelihood of success on the merits. Therefore, the presumption of irreparable harm does not exist here and Veterinary Ventures' arguments relating to irreparable need to be individually addressed.
Veterinary Ventures' arguments relating to irreparable harm refer to the sunk cost of research and development, loss in market share, and the relatively high costs for customers to switch between the parties' products due to the initial investment in equipment. (Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) at 24:8-26:28). Typically, monetary injury is not considered irreparable. See California Pharmacists Ass'n v. Maxwell-Jolly, 563 F.3d 847, 851 (9th Cir. 2009). However, this presumption does not exist where no damages can be obtained. Id. at 842. Here, while Veterinary Ventures' arguments regarding irreparable injury can be addressed through the awarding of money damages, Mr. Farris' "restrictions on money" seem to indicate that there is doubt as to Mr. Farris' ability to pay such money damages as may become applicable. ( See Def.'s Opp'n (#27) at 22:16-23:16); see also Hughes Network Sys., Inc. v. Interdigital Commc'n. Corp., 17 F.3d 691, 694 (4th Cir. 1994) (discussing the view of some circuits that the inability of a defendant to pay a judgment may make harm irreparable). On the other hand, the Supreme Court in Winter held that there must not simply be a possibility of irreparable harm, but that irreparable harm needed to be likely. 129 S. Ct. at 376. Mr. Farris' small-scale, one-person business does not pose a substantial risk of harm to Veterinary Ventures. As mentioned during the oral hearing (#56), Veterinary Ventures is a large business selling products in a substantially different price range. The Court acknowledges that there is a possibility that Mr. Farris' "restrictions on money" may prevent recovery of monetary damages in the event of a judgment in favor of Veterinary Ventures. However, Veterinary Ventures has failed to establish that irreparable harm will not be merely possible, but also likely.
Mr. Farris has not presented evidence to support his assertion that he has these "restraints on money," but this assertion has not been contested by Veterinary Ventures. ( See Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss Under Rule 12(b) for Lack of Personal Jurisdiction and Improper Venue (#10) at 6 n. 3). Rather, Veterinary Ventures has used Mr. Farris' alleged "restraints on money" as an element of support of Veterinary Ventures' own arguments. ( See Pl.'s Memo. in Support of Pl.'s Mot. For Prelim. Inj. (#19) at 26:22-28).
On the other hand, Mr. Farris' primary source of income comes from the sale of the products at issue in this case. The sales represented by Mr. Farris' products represent a small portion of the revenue generated by Veterinary Ventures. Hence, the granting of a preliminary injunction would likely prove disastrous to Mr. Farris, while it might, at best, be slightly harmful to Veterinary Ventures.
The public interest favors the protection of intellectual property in order to promote innovation. However, this is true only to the extent that doing so encourages, rather than restricts, further innovation. The public has "a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope." Monsanto Co. v. Rohm Haas Co., 456 F.2d 592, 599 (3d Cir. 1972). Mr. Farris has pointed to alleged deficiencies in the products of Veterinary Ventures, and has created his products in response to a public need for addressing these concerns. Such efforts to improve upon past innovations serve the public interest.
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). Here, given the relatively low volume of products sold by Mr. Farris and the disproportionately large financial burden that a preliminary injunction would have on Mr. Farris, and understood in light of the public interest, a preliminary injunction would not be appropriate.
V. CONCLUSION
IT IS ORDERED that Veterinary Ventures' Motion to Exceed Page Limitations of LR 7-4 (#32) is GRANTED. IT IS FURTHER ORDERED that Veterinary Ventures' Motion for Preliminary Injunction (#18) is DENIED. IT IS FURTHER ORDERED that Mr. Farris' Motion to Dismiss for Lack of Jurisdiction (#6) is DENIED AS MOOT. IT IS FURTHER ORDERED that Veterinary Ventures' Motion for Leave to File a Surreply (#20) is DENIED AS MOOT.
IT IS SO ORDERED.