BlueRadios, Inc. v. Kopin Corporation, Inc

MOTION for Partial Summary Judgment

D. Colo.February 19, 2019

DB1/ 102344384.1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO BLUERADIOS, INC., Plaintiff, v. KOPIN CORPORATION, INC., Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:16-cv-02052-JLK Defendant’s Motion for Partial Summary Judgment Regarding BlueRadios’ Claim for Breach of Section IV of the Contract Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 1 of 18 TABLE OF CONTENTS Page -i- DB1/ 102344384.1 I. BACKGROUND ..................................................................................................... 1 II. STATEMENT OF UNDISPUTED MATERIAL FACTS ...................................... 2 III. LEGAL STANDARD ............................................................................................. 5 IV. ARGUMENT .......................................................................................................... 5 A. BlueRadios’ Breach of Contract Claim Based on the Purported Requirement to Pay a Monthly Retainer Is Barred by the Statute of Limitations .................................................................................................... 5 B. The Six Year Statute of Limitations Does Not Apply to BlueRadios’ Claim ............................................................................................................ 7 C. BlueRadios’ Breach of Contract Claim Based on the Purported Requirement to Pay a Monthly Retainer Is Barred by Equitable Estoppel ...................................................................................................... 10 V. CONCLUSION ..................................................................................................... 13 Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 2 of 18 -ii- DB1/ 102344384.1 TABLE OF AUTHORITIES Page(s) Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................................................... 5 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................................................................... 5 Extreme Const. Co. v. RCG Glenwood, LLC, 310 P.3d 246 (Colo. App. 2012) ...................................................................... 11, 12, 13 Grant v. Pharmacia & Upjohn Co., 314 F.3d 488 (10th Cir. 2002) ....................................................................................... 6 Nagy v. Landau, 807 P.2d 1227 (Colo. App. 1990) ............................................................................ 9, 10 Patterson v. Fort Lyon Canal Co., 36 Colo. 175 (1906) ..................................................................................................... 10 Sulca v. Allstate Ins. Co., 77 P.3d 897 (Colo. App. 2003) ...................................................................................... 6 Wright v. Abbott Labs., Inc., 259 F.3d 1226 (10th Cir. 2001) ..................................................................................... 5 Statutes C.R.S. § 13-80-101(a).......................................................................................................... 6 C.R.S.§ 13-80-103.5 ........................................................................................................ 8, 9 C.R.S. § 13-80-108 (6) ........................................................................................................ 6 Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 3 of 18 DB1/ 102344384.1 Defendant Kopin Corporation, Inc. (“Kopin”) respectfully submits this Motion for Partial Summary Judgment pursuant to Fed. R. Civ. P. 56 (“Motion”). I. BACKGROUND Plaintiff BlueRadios, Inc. (“BlueRadios”) entered in to a contract (“Contract”) with Kopin in June 2007 that the parties amended via an addendum (“Addendum”) in October 2008. Pursuant to the Contract, Kopin was required to, and did, pay BlueRadios a monthly fee of $35,000 for non-recurring engineering services provided by BlueRadios until the parties entered into the Addendum. The Addendum provides that “BlueRadios shall waive the existing $35k monthly engineering services retainer” until delivery of “ten (10) fully functional, stable, consistently operating TI OMAP 35XX Golden-i functional hardware printed circuit board assemblies.” BlueRadios delivered to Kopin ten printed circuit board assemblies in March 2009. The parties dispute whether the printed circuit board assemblies met the standard set forth in the Addendum: “fully functional, stable, and consistently operating.” The Addendum also provides that the Contract “continues in full force and effect” except as expressly modified by the Addendum. The Contract provided that, after the first 12 months, “the contract will automatically renew month-to-month with a 90-day notice from either party to terminate . . . .” BlueRadios now asserts that Kopin has breached the Contract and Addendum by failing for well over seven years to pay BlueRadios a $35,000 monthly retainer that, in BlueRadios’ view, should have resumed as of April 2009. During this period, Kopin would have had the right to terminate with 90-days’ notice, had it understood any obligations to Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 4 of 18 DB1/ 102344384.1 2 be accruing. BlueRadios admits that it knew all of the facts on which it makes this claim as of March 2009. BlueRadios does not dispute that it failed to communicate to Kopin that it believed that that a monthly retainer fee was owed until nearly nine years later, in January 2018. Though BlueRadios admits that it was aware of the basis for this claim of breach of contract as of at least April 2009, BlueRadios did not commence this lawsuit until August 2016, more than seven years after the claim purportedly accrued. But, even then, it did not allege a breach regarding the $35,000 monthly fee. Indeed, BlueRadios did not even send to Kopin an invoice for the purportedly accruing payments until January 26, 2018, well over a year after filing this action. At that time, it sent an invoice for $3,710,000.00. Kopin therefore seeks partial summary judgment against BlueRadios on BlueRadios’ claim that Kopin breached the parties’ Contract by failing to resume payment of monthly retainer fees in April 2009 on the grounds that this claim is barred by the Colorado Statute of Limitations, as well as equitable estoppel principles. II. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. BlueRadios brought this lawsuit in August 2016 against Kopin alleging, inter alia, Breach of Written Contract. Complaint, ECF No. 1, at ¶¶ 40-47. 2. BlueRadios based this claim on the Contract that BlueRadios and Kopin entered dated June 5, 2007 and the Contract Addendum that BlueRadios and Kopin entered on October 22, 2008. See Complaint, ECF No. 1, at ¶¶ 40-47; see also Declaration of Sarah K. Paige (“Paige Decl”), Ex. 1 (Contract), Ex. 2 (Addendum). Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 5 of 18 DB1/ 102344384.1 3 3. Article IV of the Contract states, “Contract term is for 1-year and is based on monthly fixed NRE [Non-recurring engineering] retainer of $35,000 per month payable at the start of each calendar month.” Ex. 1, at 4. 4. Article IV further provides that, “[a]t the end of 12 months the contract will automatically renew month-to-month with a 90-day notice from either party to terminate at the end of the initial 12-month project period.” Id. 5. The Addendum states, “[d]uring the period commencing as of [the date of this Addendum] until the delivery of said [(10) fully functional, stable, consistently operating TI OMAP35XX Golden-I functional hardware] printed circuit board assemblies, BlueRadios shall waive the existing $35K monthly engineering services retainer under Article IV of the Agreement.” Ex. 2, at 1. 6. The Addendum further states, “Except as expressly modified by this Addendum, the Agreement continues in full force and effect.” Id. 7. On January 26, 2018, BlueRadios sent to Kopin an invoice for $3,710,000.00 for “Engineering Services Retainer April 1, 2009-January 31, 2018,” reflecting 108 months of purportedly missed $35,000 monthly payments. See Ex. 4. 8. Plaintiff first asserted that it sought “its current $35,000 monthly fixed retainer under the Contract going back to six (6) years prior to the date of the Complaint” in its First Supplemental Initial Disclosures dated February 22, 2018. See Ex. 3, at 2. 9. BlueRadios had not communicated to Kopin by 2010 that it believed that any ongoing payment of a $35,000 monthly fee was owed to Kopin at that time. See Ex. 5, at 495:20-23 (“Kopin did not have the opportunity to either accept or reject your claim that Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 6 of 18 DB1/ 102344384.1 4 payment was owed in 2010 because you hadn’t made that claim by that point, had you? A. That’s correct.”). 10. As of March 2009, BlueRadios was aware of the facts underlying its belief that Kopin owed a $35,000 monthly retainer to BlueRadios that was reflected in the invoice sent in January 2018. See Ex. 6, at 209:19-22 (“Q: So the facts under which you believe you were entitled to that [January 2018 invoiced] payment . . . you knew as of March of 2009; right? A: Correct.”). 11. BlueRadios sent monthly invoices to Kopin in connection with the June 2007 Contract but stopped sending those invoices in the “early fall of 2008” because the Addendum was signed. See Ex. 6, at 202:4-14 (“Q. Okay. When did the invoices for 35,000 per month stop being sent? A. It would be in -- close to the early fall of 2008. . . . Q. And why did they stop being sent? A. Because we negotiated the addendum to the contract that we would pause the $35,000 retainer while we developed the gen 2 design.”). 12. BlueRadios did not resume sending invoices until it sent the January 26, 2018 invoice demanding $3,710,000.00. See Ex. 6, at 208:24-209: 7 (“Were there any invoices sent covering [April 1, 2009 through January 31, 2018]? A. No.”). 13. Mr. Kramer has conceded that Kopin had a 90-day termination right under the contract, and could have terminated, had BlueRadios attempted to assert in 2009 or 2010 that any obligation to pay $35,000 per month was accruing under Article IV of the Contract. See Ex. 5, at 472:9-473:2. Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 7 of 18 DB1/ 102344384.1 5 III. LEGAL STANDARD This Court should grant a motion for summary judgment if it finds that the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. An issue is “genuine” only if it “may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A disputed fact is “material” if under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). When a movant meets its burden of demonstrating the absence of a genuine issue of material fact, the non-movant must “designate ‘specific facts showing that there is a genuine issue for trial,’” to avoid summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-4 (1986). IV. ARGUMENT A. BlueRadios’ Breach of Contract Claim Based on the Purported Requirement to Pay a Monthly Retainer Is Barred by the Statute of Limitations. Colorado law provides for a three-year statute of limitations for contract actions. See C.R.S. § 13-80-101(a). A cause of action for breach of contract, express or implied, is considered to accrue on the date “the breach is discovered or should have been discovered by the exercise of reasonable diligence.” C.R.S. § 13-80-108 (6). Colorado law is clear that a claim accrues when the facts underlying the claim become known – not when damages are alleged to have occurred – and that “[u]ncertainty as to the precise extent of damage neither precludes the filing of a suit nor delays the accrual of a claim for purposes Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 8 of 18 DB1/ 102344384.1 6 of the statute of limitations.” Grant v. Pharmacia & Upjohn Co., 314 F.3d 488, 493 (10th Cir. 2002) (applying Colorado law and determining that the statute of limitations had run on claim seeking royalties under terms of disputed agreement related to patents) (internal citation and quotation omitted). “Whether the statute of limitations bars a particular claim is usually a fact question . . . but if the undisputed facts clearly show that the plaintiff had, or should have had the requisite information as of a particular date, the issue may be decided as a matter of law.” Sulca v. Allstate Ins. Co., 77 P.3d 897, 899 (Colo. App. 2003). Plaintiff has expressly admitted that it knew “the facts under which [it] believe[d it was] entitled” to again begin receiving $35,000 per month “as of March of 2009.” See Statement of Undisputed Material Facts (SUF) ¶ 10. It is therefore undisputed that BlueRadios had the requisite facts in March 2009, well over six years before it filed this action, and nearly nine years before it first claimed it was entitled to additional payments of $35,000 per month. BlueRadios filed its complaint in this Action on August 12, 2016. That complaint neither mentioned Section IV of the Contract nor made any claim for additional payments of $35,000. Those allegations were not made in this case until supplemental initial disclosures served in February 2018. Therefore, under the most generous reading, BlueRadios’ claim must have accrued no earlier than August 12, 2013 to avoid being time barred.1 As of that date, more than four years had already passed since April 2009, when 1 BlueRadios’ anticipated argument that the six-year statute of limitations applies to its claim is without merit. See Section IV. B, infra. However, even if it did apply, the claims were brought more than six years after accrual, and would be equitably estopped under Colorado law. See Section IV. C, infra. Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 9 of 18 DB1/ 102344384.1 7 in BlueRadios’ view, Kopin was required to resume payment of $35,000 per month. See SUF ¶ 8. BlueRadios had not notified Kopin that it believed Kopin was in breach of the Contract as a result of failure to pay this monthly fee, nor had BlueRadios sent an invoice. Id. at ¶¶ 9, 10. No argument has been made that BlueRadios was not aware of the alleged breach of contract relating to the $35,000 monthly payment as of August 12, 2010, let alone August 12, 2013. Rather, BlueRadios admits that it was aware of the claim as of March 2009. See id. at ¶ 9. There are therefore no material facts necessary for adjudication of that claim that are in dispute, and under undisputed facts, the claim is barred under the Colorado statute of limitations. Kopin respectfully requests that it be granted summary judgment on BlueRadios’ claim for breach of contract based on the failure to make monthly payments of $35,000 between April 2009 and the present. B. The Six Year Statute of Limitations Does Not Apply to BlueRadios’ Claim. BlueRadios has requested that this Court award it payments of $35,000 per month over the course of six years. SUF ¶ 8. BlueRadios’ position appears to be that C.R.S.§ 13- 80-103.5 applies to its claim, and that it may recover any amount it argues would have been owed for the six years prior to the date of its claim. Under BlueRadios’ view of the world, BlueRadios could have waited another 30 years, without alerting Kopin of its belief that it was entitled to effectively indefinite monthly payments of $35,000, and then brought this claim for amounts purportedly owed between the years 2040 and 2046 under a Contract Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 10 of 18 DB1/ 102344384.1 8 and Addendum signed in 2007 and 2008. This position is both unsupported by Colorado law and contrary to the very purpose of statutes of limitations. Under C.R.S.§ 13-80-103.5, a six-year statute of limitations applies to an action to “recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action.” C.R.S.§ 13-80-103.5 (emphasis added). Here, Kopin owed BlueRadios no debt at the time BlueRadios alleges that Kopin’s obligation to pay $35,000 monthly resumed. Even if Kopin did have any obligation to pay BlueRadios $35,000 monthly, it could have terminated with 90-days’ notice, given that BlueRadios was no longer providing it services under the Contract or Addendum. See SUF ¶ 13. Kopin could also have sought adjudication or reached some alternative resolution to address the parties’ differing interpretations of their respective obligations under the Contract, while substantially lower amount of money were at stake. Even if there were some obligation to re-start payments under the Contract, the agreements do not set exactly when payments should start or stop. There was clearly no agreed-upon total amount owed. The circumstances are therefore distinguishable from cases in which Colorado courts have applied C.R.S.§ 13-80-103.5, such as cases based on installment contracts where one party is making agreed-upon payments for an agreed-upon amount that are already due. Cf. Application of Church, 833 P.2d 813, 813 (Colo. App. 1992) (defendant executed promissory note for an amount owed to plaintiffs in connection with conveyance of real property). It is undisputable that Kopin owed BlueRadios no set amount of debt, and that Kopin would not have even arguably incurred any such debt had BlueRadios timely alerted Kopin Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 11 of 18 DB1/ 102344384.1 9 it took the position that Kopin began owing a perpetual monthly fee of $35,000 on or about March 2009.2 The clear policy purpose behind allowing a longer statute of limitations for actions to recover established debts as compared to actions for breach of contract is to reduce the risk that a plaintiff would be precluded from recovering on existing or pre- determined debts in a known amount – not to permit a plaintiff to bring a claim at any time whatsoever seeking recovery for the prior six years of purported missed payments based on obligations that could have been terminated with only 90-days’ notice. The case of Nagy v. Landau, 807 P.2d 1227 (Colo. App. 1990) is instructive. There, plaintiffs claimed they were owed salary payments pursuant to a signed agreement. Nagy, 807 P.2d at 1229. As here, plaintiffs would have purportedly been owed those salary payments right up to the date they brought their claim. Id. However, the Court properly recognized that the defendant had breached the contract over six years prior when it removed “all furniture, appliances, and inventory from the restaurant building” in which the plaintiffs were to be employed. Id. at 1228. Reasoning that, “[a] claim for relief arising from one party’s nonperformance of a contract obligation arises at the time the other party fails to perform the act required by the contract,” the Court held that plaintiffs’ claims were barred. Id. at 1229 (citation omitted). The Court did not even consider the possibility that 2 By asserting that it never would have incurred the debt BlueRadios now alleges it owes, Kopin does not concede that it did, in fact, incur any such debt. Kopin believes that no reasonable reading of the Contract would permit such an obligation to be incurred indefinitely, especially during a time period in which BlueRadios was not providing any services to Kopin. Indeed, where the Contract specifically provided for a 90-day notice period, without any requirement that that notice be in writing, ceasing contact and payment could reasonably be considered termination. Kopin expressly reserves its arguments regarding BlueRadios’ reading of the Contract, and accepts BlueRadios’ interpretation arguendo solely for this motion for summary judgment on the ground that BlueRadios’ claim is time-barred. Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 12 of 18 DB1/ 102344384.1 10 alleged ongoing obligations to make salary payments would somehow permit plaintiffs to wait to assert that their claims for breach of contract indefinitely. Id. This case presents precisely the type of circumstance that statutes of limitations are intended to prevent. As the Colorado Supreme Court has recognized, there is a “necessity of placing a limit upon the time within which certain specified actions could be brought” to preserve the “peace and good order of society” given “the opportunities for the commission of frauds, and the difficulty of defending against actions which had accrued many years before they were brought.” Patterson v. Fort Lyon Canal Co., 36 Colo. 175, 181 (1906). To award BlueRadios over $2,000,000 for monthly payments of $35,000 it asserts were owed based on specific facts and circumstance that occurred many years before – and are viewed very differently by the parties – would amount to a massive windfall that would not have occurred had BlueRadios alerted Kopin that it believed obligations were accruing. Further, Kopin would be disadvantaged in disputing the underlying circumstances of the obligation BlueRadios now asserts was accruing, given the passage of time and challenges identifying recollections, records, and correspondence from nearly a decade prior. BlueRadios’ reading of the statute of limitations to allow recovery based on these claims is, for these reasons, at odds with Colorado law, as well as the very purpose of statutes of limitations. C. BlueRadios’ Breach of Contract Claim Based on the Purported Requirement to Pay a Monthly Retainer Is Barred by Equitable Estoppel. Though the claim for breach of contract base on Kopin’s failure to make monthly payments for nearly seven years should be barred under the Colorado statute of limitations, Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 13 of 18 DB1/ 102344384.1 11 the claim is independently inviable under principles of equitable estoppel. Colorado equitable estoppel principles bar claims based on an ambiguous provision of a contract where, “(1) the other party had full knowledge of the facts, (2) the other party unreasonably delayed in asserting an available remedy, and (3) the party asserting the doctrine relied on the other party’s delay to its detriment.” Extreme Const. Co. v. RCG Glenwood, LLC, 310 P.3d 246, 252 (Colo. App. 2012). Each element is present here. BlueRadios had full knowledge. BlueRadios takes the position that the printed circuit board assemblies it delivered in March of 2009 were sufficient to fulfill its obligation to provide “fully functional, stable, consistently operating TI OMAP35XX Golden-i hardware printed circuit board assemblies.” SUF ¶¶ 5, 8. Kopin did not believe that the printed circuit board assemblies delivered were anywhere near the required standard and, accordingly, did not resume payments. Id. at ¶ 8. BlueRadios knew that Kopin had not resumed payment. Id. at ¶ 10. Estoppel principles are particularly apt where the plaintiff takes such an unreasonable view of the contract at issue without alerting the Defendant of that position. Kopin does not believe that any reasonable reading of the Contract would have anticipated Kopin accruing a perpetually-expanding multi-million- dollar debt to a former vendor no longer performing the non-recurring engineering services referenced in the Contract. SUF ¶ 3. BlueRadios unreasonably delayed. BlueRadios had full knowledge that Kopin had not resumed payment of a monthly retainer fee in 2009, when it claims that the obligation was due. Yet BlueRadios did not send Kopin any bill (as it had previously done), or otherwise alert Kopin that, in BlueRadios’ view, Kopin was accruing an additional $35,000 Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 14 of 18 DB1/ 102344384.1 12 debt every month. See SUF ¶¶ 10, 11. In fact, BlueRadios did not claim that it was owed these payments for over seven years. Given the amount accruing, such a delay is undoubtedly unreasonable. BlueRadios’ delay prejudiced Kopin. Finally, assuming arguendo that BlueRadios is correct that obligations to pay $35,000 under Article IV somehow restarted in March 2009, Kopin clearly relied on BlueRadios’ delay to its detriment. Mr. Kramer has conceded that Kopin had a 90-day termination right under the contract, and could have simply terminated, had BlueRadios attempted to assert in 2009 or 2010 that any obligation to pay was accruing under the Contract. SUF ¶ 13. Extreme Const. Co. v. RCG Glenwood, LLC, 310 P.3d 246 (Colo. App. 2012), confirms this analysis. There, the parties read a particular provision of a contract differently, leading to different interpretations of how the cost for construction work should be calculated. Id. at 250. RCG brought a claim that Extreme had over-billed it based on an incorrect interpretation of the contract. Id. Extreme billed under its view of the contract, and RCG paid those bills – after inquiring about the calculation method – until the project was completed, confirming that RCG was aware of the different interpretation of the contract, yet RCG did not raise the issue until after Extreme had completed construction, which the Court found to be an unreasonable delay that Extreme relied upon to its detriment by completing the project. Id. at 253. As the Court explained, “it is unreasonable for a contracting party who knows of, but secretly disagrees with, the other side’s contract interpretation to delay challenging that interpretation until the other side has completed its performance.” Id. (emphasis added) BlueRadios, like RCG, was unreasonable in Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 15 of 18 DB1/ 102344384.1 13 remaining silent for years before asserting a claim based on its secret interpretation of the contract that Kopin demonstrated it did not share by not paying BlueRadios a monthly fee. This delay is particularly unreasonable given that BlueRadios waited until millions of dollars purportedly accrued before even raising its claim. BlueRadios should therefore be estopped from asserting this claim that it sat on for over seven years when it became aware of the relevant facts in early 2009. V. CONCLUSION For all of the foregoing reasons, Kopin respectfully requests that this Court grant summary judgment on BlueRadios’ claims that it is owed $2,520,000.00 (or any other amount) for breach of contract based on Kopin’s failure to pay a $35,000 monthly fee and find that BlueRadios’ claim that it is entitled to any additional payment under Section IV of the Contract, including without limitation any additional payments of $35,000, is time- barred and is also precluded by principles of equitable estoppel. Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 16 of 18 DB1/ 102344384.1 Dated: February 19, 2019 Kopin Corporation, Inc., By its attorneys /s/ Joshua M. Dalton Joshua M. Dalton josh.dalton@morganlewis.com Sarah K. Paige sarah.paige@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP One Federal Street Boston, MA 02110 617.341.7700 Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 17 of 18 DB1/ 102344384.1 CERTIFICATE OF SERVICE I hereby certify that on February 19, 2019, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record in the above-referenced matter. Sarah Paige /s/ Sarah Paige Case 1:16-cv-02052-JLK Document 140 Filed 02/19/19 USDC Colorado Page 18 of 18