Global Oil Tools, Inc. v. Expeditors International of Washington, Inc. et alRESPONSE/MEMORANDUM in OppositionE.D. La.February 13, 2019UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GLOBAL OIL TOOLS, INC. § C.A. No. 2:16-cv-16372-BWA-JVM § VS. § SECTION: “M” (1) § EXPEDITORS INTERNATIONAL OF § JUDGE BARRY W. ASHE WASHINGTON, INC., ET AL § MAG. JUDGE JANIS VAN MEERVELD PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION TO STRIKE PLAINTIFF’S EXPERT WITNESS DESIGNATION TO THE HONORABLE UNITED STATES DISTRICT JUDGE: NOW INTO COURT, through undersigned counsel, comes Plaintiff Global Oil Tools, Inc. (“GOT”) and opposes the Motion to Strike Plaintiff’s Expert Witness Designation filed by Hapag- Lloyd (America), LLC (“Hapag-Lloyd”) and joined by Expeditors International of Washington, Inc. and Zurich American Insurance Company (Rec. Docs. 170, 173), respectfully showing: I. FACTUAL BACKGROUND GOT brings this lawsuit under this Court’s admiralty jurisdiction to recover both tort and contract damages for the mishandling of, and damage to, a cargo of drilling equipment erroneously shipped in containers from New Orleans to Constanta, Romania, in early 2016. The cargo was improperly shipped without GOT’s authorization and damaged during shipment. Pursuant to this Court’s Docket Control Order, GOT timely designated two non-retained experts, who are each also fact witnesses: 1) Elvir Bari of General Survey Inspection Co., of Constanta, Romania, and 2) R. “Ray” Ghariani, the director of Plaintiff Global Oil Tools, Inc. from 2004 to 2014, and its Trustee from 2015 to the present. Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 1 of 13 Hapag-Lloyd argues these two men were not adequately disclosed and should not allowed to testify as experts, but GOT will show that case law recognizes that a complex written disclosure of an non-1 retained expert is unnecessary, and that the two are also fact witnesses and cannot be excluded from testifying about facts they personally observed. Finally, Hapag -Lloyd’s conclusory assertion it is surprised by GOT’s disclosures is groundless because any expert knowledge possessed by Elvir Bari of General Survey Inspection Co. was obtained by him through a joint survey that was also attended by Hapag-Lloyd. Hapag-Lloyd is thus undoubtedly familiar with the joint survey and cannot claim surprise or unawareness. Hapag-Lloyd’s Motion to exclude these individuals’ testimony is baseless and should be denied. II. CONTROLLING LAW A. This is not a retained expert case, so no written reports are required Hapag-Lloyd’s Motion does not involve retained experts or their written reports. Only formally retained expert witnesses must prepare a written report. Rule 26(a)(2)(B) requires an expert witness to submit a written report if he or she is “one retained or specially employee to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” FED. R. CIV. P. 26(a)(2)(B). Rule 26(a)(2)(C) exempts all expert witnesses not meeting the above characteristics listed in Rule 26(a)(2)(B) from the written report requirement. FED. R. CIV. P. 26(a)(2)(C). GOT readily acknowledges that it indeed hired Mr. Bari, a Romanian surveyor, to attend a joint survey that was conducted in Romania in April–May 2018, and that this occurred well after this Rec. Docs. 170, 173.1 2 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 2 of 13 lawsuit was filed, and after Hapag-Lloyd was added to this lawsuit. However, Bari’s attendance2 3 at this multiparty inspection was not intended to create a “hired gun” to testify for GOT at trial. Rather, as Hapag-Lloyd acknowledges in its Motion, Bari “was involved during joint inspections of the cargo in Romania by surveyors retained by Hapag-Lloyd and other parties.” Rec. Doc. 170 at 3, fn. 5. A joint cargo survey is not specially formulated for trial purposes by one party but rather, is conducted in order to help gather facts based on mutual observation: Although not conclusive in establishing the pertinent facts, a joint survey has “the benefit of mutual observation * * *.“ Nissho-Iwai Co., Ltd. v. Star Bulk Shipping Co., 1975 AMC 671 , 673, 503 F.2d 596, 598 (9 Cir., 1974). Thus, inspections of damage made outside the presence of a representative of the opposing party “have been frowned upon by courts of Admiralty and they are accorded diminished weight.” Frederick Snare Corp. v. Moran Towing & Transp. Co., 1961 AMC 2605 , 2610, 195 F.Supp. 639, 642 (S.D.N.Y., 1961). In this case, considerable weight has been given to the inspections made by Kief because they were confirmed by Augulis, a representative of a non-party. Amstar Corp. v. M/V Alexandros T., 472 F.Supp. 1289 (D. Md. 1979), aff’d, 664 F.2d 904 (4 Cir.th 1981). By participating in joint inspections, Bari fulfilled a role that is akin to a treating physician who examines a plaintiff after suit was filed: the relevant distinction is between those witnesses whose information was obtained in the normal course of their business, and those who were specifically hired solely to make an evaluation to testify at trial. Here, Bari’s post-suit participation4 Rec. Doc. 1 (Original Complaint), filed 11/15/2016.2 Rec. Doc. 17 (First Amended Complaint), filed 3/13/2017. 3 “The quintessential example of a non-retained expert is the treating physician of a personal injury4 plaintiff, whose testimony, while necessarily based on his expert opinion as to diagnosis and treatment, is not specially formulated for trial purposes, and thus is not subject to the Rule 26 reporting requirement.” Beechgrove Redevelopment, L.L.C. v. Carter & Sons Plumbing, Heating & Air-Conditioning, Inc., 2009 WL 981724, at *4 (E.D. La. Apr. 9, 2009). 3 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 3 of 13 as a surveyor in a joint inspection points toward him performing an activity in the usual course of business rather than a one-sided piece of trial-minted advocacy. Although hired by GOT, Bari performed his work in the ordinary course of his business as a surveyor, in a joint inspection. It is inappropriate to apply the standards which are used for hired experts to judge his work. B. Non-retained experts need only be disclosed; they need not submit a written report This case involves two non-retained experts and the detail with which they must be disclosed. Non-retained experts are not required to comply with the written report requirement of Rule 26(a)(2)(B): “‘The requirement of a written report in paragraph (2)(B) . . . applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony.’ FED. R. CIV. P. 26(a), cmt. 1993 Amendments, subdivision (a), para. (2), 146 F.R.D. 401, 635; see also Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 882 (5 Cir. 2004).” Kim v. Time Ins. Co., 267th F.R.D. 499, 501 (S.D. Tex. 2008). Under Rule 26(a)(2)(C), which governs mandatory disclosures regarding nonretained experts, nonretained experts “must provide disclosures stating both the subject matter on which the non-retained expert is expected to present evidence and a summary of the facts and opinions as to which the non-retained expert is expected to testify.” Continental Casualty Co. v. F–Star Property Management, Inc., 2011 WL 2887457, at *6 (W.D. Tex., July 15, 2011). “This Court has explained that “courts ‘must take care against requiring undue detail’ in Rule 26(a)(2)( c) disclosures.’ Anders v. Hercules Offshore Servs., LLC, 311 F.R.D. 161, 164 (E.D. La. 2015).” Hooks v. Nationwide Hous. Sys., LLC, 2016 WL 3667134, at *5 (E.D. La. July 11, 2016). As seen below in the Argument portion, this standard is relatively easy to achieve for non-retained experts. 4 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 4 of 13 C. Fact witnesses need not be specially designated and may testify about facts they personally observed Finally, the Federal Rules do not require that witnesses who are expected to be called to testify at trial about factual matters be specially designated as fact witnesses. See FED. R. CIV. P. 26(a)(3)(A); Capital Metro. Transp. Auth. v. Gillig Corp., 2005 WL 1241876, at *3 (W.D. Tex. May 11, 2005), aff’d, 182 F.App’x 292 (5 Cir. 2006) (“neither the Federal Rules of Civil Procedure, north the local rules of this District or any order entered in this case require that witnesses who are expected to be called to testify at trial about factual matters be specially designated as “fact witnesses.”); see further FED. R. CIV. P. 26(a)(2)©, Advisory Comm. Note (2010) (“A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705.”). “[I]t is a well-settled rule of law that employee-experts who acquire information for trial solely because they were actors or viewers with respect to the occurrences forming the subject matter of the lawsuit must be treated as ordinary fact witnesses, and not as experts. See Dallas v. Marion Power Shovel Co., Inc., 126 F.R.D. 539, 540–41 (S.D. Ill. 1989).” Young v. United States, 181 F.R.D. 344, 346 (W.D. Tex. 1997). III. ARGUMENT AND AUTHORITIES A. GOT’s disclosures for Elvir Bari and Ray Ghariani as non-retained experts satisfy the standards of Rule 26(a)(2)(C)(ii) Hapag-Lloyd’s Motion should be denied because the non-retained expert disclosures provided by GOT meet the requirements of Rule 26(a)(2)(C)(ii). “Under Rule 26(a)(2)(C), added in the 2010 amendment of Rule 26, non-retained witnesses do not have to submit a written report, [and] “may both testify as fact witness[es] and also provide expert testimony.” Advisory Committee Notes (2010 Amendments). Non-retained witnesses must disclose: 5 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 5 of 13 (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. See generally Gtg Holdings, Inc. v. Amvensys Capital Group, LLC, 2015 WL 11120884 (N.D. Tex. Apr. 8, 2015). These requirements for non-retained witnesses were intended to be “considerably less extensive” that those for retained experts and courts ‘must take care against requiring undue detail.’ Advisory Committee Notes to 2010 Amendments.” Deeds v. Whirlpool Corp., 2016 WL 6070552, at *6 (S.D. Tex. Oct. 17, 2016). As this Court observed when addressing this issue in Anders v. Hercules Offshore Servs., LLC, 311 F.R.D. 161, 164 (E.D. La. 2015) While there is little case law addressing the requirements of Rule 26(a)(2)(C)—which was only added to Rule 26 in 2010—Judge Duval of this Court has explained that “courts ‘must take care against requiring undue detail’ in Rule 26(a)(2)(c) disclosures.” Rea, 2014 WL 4981803, at *5 (citations omitted). The summary should simply contain an “ ‘abstract, abridgement, or compendium’ of the opinion and facts supporting the opinion.” Id. at *5. The Fifth Circuit has further acknowledged that “[t]he basic purpose of Rule 26 is to prevent prejudice and surprise.” Joe Hand Promotions, Inc. v. Chios, Inc., 544 Fed.Appx. 444, 446 (5th Cir.2013) (internal quotations and citations omitted). The Court finds that while the manner in which plaintiff disclosed “a summary of the facts and opinions to which [Dr. Lee] is expected to testify” may not have been the preferred method, it was not so deficient as to warrant exclusion of Dr. Lee’s testimony. The basic purpose of Rule 26 is to prevent prejudice and surprise . . . . Anders, 311 F.R.D. at 164. As reflected by case law from District Courts in the Fifth Circuit, great detail is not needed when disclosing non-retained experts: * Gtg Holdings, Inc. v. Amvensys Capital Grp., LLC, 2015 WL 11120884, at *4–5 (N.D. Tex. Apr. 8, 2015): [T]he Court finds that Defendants’ non-retained expert witness disclosures meet the minimum requirements of Rule 26(a)(2)(C)(ii). Defendants have provided disclosures for three non-retained expert witnesses as well as defense counsel. Review of the disclosures reveals that they are as sufficiently detailed under the 6 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 6 of 13 circumstances and considering the complexity of this case. Plaintiff takes issue with Defendants’ statement concerning Lateef, which reads as follows: Mr. Lateef has expertise in the Telecom industry and businesses related to it, as testified to in his deposition. Mr. Lateef will testify regarding Amvensys’ merger negotiations and its due diligence efforts and obligations. He will also testify concerning the AT&T business, as represented to him at the time of purchase versus the AT&T business as it currently exists, and the corresponding financial loss to Amvensys and/or ACG as a result, including the inability to pay its debt, lost revenue and profit and the invoking by F&M Bank, of their rights under a subordination agreement and the results thereof as more fully set forth in his deposition, which is incorporated herein for all purposes. While Plaintiff asserts that this summary is insufficient because it only identifies what Lateef has knowledge of rather than his expected opinion, Plaintiff is elevating form over substance. Plaintiff quibbles with the wording, but it is clear to the Court that Lateef will be testifying largely about factual matters and rendering opinions about the matters within his knowledge, topics which presumably were explored during his deposition. **** Plaintiff similarly complains about the disclosure concerning Cummings, which reads as follows: Mr. Cummings will testify regarding Intelliverse’s day-to-day interactions and account issues with AT&T. More specifically, he will provide valuation models which calculate Intelliverse’s potential gains from the merger and subsequent acquisition of the AT&T account. These models will also value Intelliverse's losses and the financial impact the loss of its account with AT&T had on the company following the merger. Pursuant to FRCP 26(a)2 [sic], additional information regarding the designation of Mr. Cummings, his calculations, and qualifications are attached hereto as Exhibit A and incorporated herein for all purposes. In connection with his calculations and models, Mr. Cummings reviewed Amvensys’ financial records and ACG/Voicecom/GTG merger documents produced in this case. **** Upon consideration of the law and the parties’ arguments, the Court finds that Defendants’ disclosure regarding the nature and substance of Cummings’s testimony is sufficient. **** The mere fact that Cummings ran valuations and performed calculations for this case does not transform him into a Rule 26(a)(2)(B) expert 7 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 7 of 13 witness in that respect, just as the fact that the former risk officer’s analysis for the trial in Valencia did not transform him into an expert. Moreover, although Plaintiff continues to take issue with Defendants’ wording, the subject matter of Cummings’s testimony and the facts and opinions about which he is expected to testify are apparent in the above disclosure. The undersigned has carefully reviewed Defendants' remaining non-retained expert witness disclosures and finds them to be of similar specificity. In short, and for the reasons stated above, the undersigned finds that Defendants’ non-retained expert witness disclosures are sufficient under Rule 26(a)(2)©. Accordingly, Plaintiff’s motion to strike them is DENIED. Gtg Holdings, 2015 WL 11120884, at *4–5 (record citations and internal authorities omitted). The Gtg Holdings court relied on the following authorities: * In Russ v. Safeco Insurance Co. of America, No. 11CV195-KS-MTP, 2013 WL 1310501 (S.D. Miss. 2013), the plaintiff filed a motion to strike the testimony of defendant’s non-retained expert witness, alleging that the disclosure was untimely and failed to contain adequate information under Rule 26. The defendant’s designation at issue provided a one-paragraph summary which stated in relevant part: “[Expert] is designated to testify in accordance with the testimony provided in the 30(b)(6) deposition of C-Spire Wireless, taken on June 26, 2012, and in accordance with the records provided by C-Spire Wireless in response to the subpoena issued in this cause by Defendant/Counter Plaintiff.” The court found the designation of the non-retained witness to be sufficient under Rule 26(a)(2). * In Estate of Lance ex rel. Lance v. Lewisville Independent School District, No. 4:11-cv-00032, 2012 WL 1668198, at *2 (E.D. Tex. 2012), the plaintiff filed a motion to strike the testimony of defendant’s non-retained experts, alleging that the designations were inadequate. One such designation stated, in relevant part: [Expert] may testify concerning counseling issues including appropriate recognition, assessment, and response to suicide outcries in school age children, and that [defendant] properly applied these techniques to [decedent]. She may testify concerning [defendant]'s provision of counseling services to students including [decedent], and that these services were properly provided to [decedent]. All other designation summaries were similar in length and specificity. The Court dismissed the issue of sufficiency by simply stating that the defendant had clearly met the minimum requirements under Rule 26. Lance, 2012 WL 1668198, at *3. 8 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 8 of 13 Gtg Holdings, 2015 WL 11120884, at *3–4. When compared to the disclosures that were approved in the above cases, GOT’s two disclosures easily pass muster: A. GOT’s disclosure of Mr. Bari Mr. Bari is expected to present evidence on his factual observations of the Containers shipped by Expeditors without permission of Global Oil Tools, as visually inspected by Mr. Bari and others, including the facts of and his opinions on, condition of the Containers and their inspection certificates, observations of the Containers’ contents and how they were arranged and packed, assessments and narration of the videos and photographs taken of the Containers’ inspections, the presence of contamination on Containers’ contents, studies on the effects of contamination generally on materials of the type stored in the Containers, both as to near and long-term exposure, and in particular geographic areas, and the effects of contamination on the contents of the inspected Containers specifically, including their usability. Doc. 170-2 at p. 1. As seen, this disclosure states both the subject matter on which Bari is expected to present evidence and a summary of the facts and opinions as to which Bari, as a non-retained expert, is expected to testify. Furthermore, in addition to his status as a non-retained expert (see above), Bari is also a fact witness to the joint survey that was conducted in Romania, and as such, is able to testify about the facts that he observed, regardless of his expert status. See, e.g., Dutta v. Pistenmaa, 2005 WL 6749150, at *1 (N.D. Tex. Mar. 3, 2005) (“ Plaintiff asks the Court to exclude the testimony of three witnesses. All three witnesses are fact witnesses. While these witnesses are most likely experts in their fields, it is unnecessary to designate them as expert witnesses at trial. These witnesses are testifying as to the facts that they heard and the decisions they made in relation to the decision not to rehire Plaintiff. They are not required to utilize their particular expertise to give these opinions. Therefore, [three M.D.’s] are not designated as experts at trial, but they are permitted to testify as fact witnesses.”)(emphasis added). 9 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 9 of 13 B. Global’s disclosure of Mr. Ghariani In addition to Mr. Bari, the pending motion also takes aim at GOT’s designation of its director, Ray Ghariani, who was disclosed in the following manner– Mr. Ghariani was the director of Global Oil Tools, Inc. from 2004 to 2014, and its Trustee from 2015 to the present. He is expected to present evidence on his factual observations of the Containers shipped by Expeditors without permission of Global Oil Tools, as visually inspected by Mr. Ghariani and others, including the facts of the condition of the Containers and their inspection certificates, observations of the Containers’ contents and how they were arranged and packed, assessments and narration of the videos and photographs taken of the Containers’ inspections, the presence of contamination on Containers’ contents, and the effects of contamination on the contents of the inspected Containers specifically, including their usability, in particular his opinions that the tools and parts in the Containers have no resale value, and only limited salvage value, considering the contamination and the distressed condition of the tools and parts, and their inability to be used in a downhole environment because of the contamination, and the distressed condition. Mr. Ghariani will also testify regarding the nature of the design and production documentation stored and shipped in the Containers, and its use as the basis for populating a platform containing programming for CNC devices to mill and machine oil tools represented by that documentation, which data formed the basis of the platform Global Oil Tools was in the process of building and selling when the Containers were shipped. Mr. Ghariani will testify to the facts of how the documentation would have been used to build the platform which could not then be built because the Containers were mis-shipped, how the information contained therein could also not be uploaded to the CNC platform, and the inability of Global Oil Tools to manufacture the tools represented by the design and production documentation, and the loss and damage caused to Global Oil Tools as a result. Doc. 170-2 at p. 2. Thus, in addition to whatever role he may have providing opinion testimony, Mr. Ghariani is a fact witness who made firsthand observations when he visually inspected the containers and observed their condition, inspection certificates, and their contents including how the cargo inside was were arranged and packed. He can provide narration of the videos and photographs taken of the containers. He is also an officer of GOT. “It bears emphasizing that the requirement to provide ‘a 10 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 10 of 13 summary of the facts and opinions to which the witness is expected to testify’ applies only to witnesses who are called to offer expert testimony. Even if a treating physician has not been designated as an expert but has been properly identified as a witness, he or she may testify as a fact witness but may not express opinions not contained in [the patient’s] medical records.” Moore v. Lipscomb Oil Co., 2015 WL 1037654, at *2 (N.D. Miss. Mar. 10, 2015)(citations omitted). “[I]t is a well-settled rule of law that employee-experts who acquire information for trial solely because they were actors or viewers with respect to the occurrences forming the subject matter of the lawsuit must be treated as ordinary fact witnesses, and not as experts.” Young, 181 F.R.D. at 346. A review of Ghariani’s disclosure reflects that he is primarily being offered as a fact witness and thus he cannot be excluded. B. Hapag-Lloyd has failed to sufficiently demonstrate it was actually harmed by the substance of GOT’s disclosures. The Fifth Circuit has further acknowledged that “[t]he basic purpose of Rule 26 is to prevent prejudice and surprise.” Joe Hand Promotions, Inc. v. Chios, Inc., 544 Fed. App’x 444, 446 (5 Cir.th 2013) (internal quotations and citations omitted); Anders, 311 F.R.D. at 164. The allegations of prejudice are leveled primarily against Bari’s survey. However, Hapag-Lloyd fails to prove it was prejudiced or surprised by it, simply reciting that “the defendants will be prejudiced if the testimony is allowed for the obvious reason they will not be able to prepare cross examination of the witnesses (or the direct testimony of its own experts) without knowing in advance the opinions to which the plaintiff’s purported experts will testify.” Rec. Doc. 170 at 6. It is difficult, if not impossible, for Hapag-Lloyd to legitimately maintain that it could be unfairly surprised by the scope or content of Bari’s testimony, given Bari was part of a joint survey in which Hapag-Lloyd also participated. By 11 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 11 of 13 Hapag-Lloyd’s admission, Bari “was involved during joint inspections of the cargo in Romania by surveyors retained by Hapag-Lloyd and other parties.” Rec. Doc. 170 at 3, fn. 5 (emphasis added). The mutuality of the joint survey eliminates any significant ground for unfair surprise. IV. CONCLUSION GOT has timely designated two non-retained experts who are also fact witnesses. Not only were these two properly designated as non-retained experts under case law, but, in any event, are each fact witnesses and cannot be excluded from testifying about facts they personally observed. Hapag-Lloyd’s conclusory assertion it has been surprised by the substance of GOT’s disclosures is groundless because knowledge possessed by Bari, the surveyor, was obtained by him through a joint survey attended by Hapag-Lloyd and which he conducted in the ordinary course of his business. WHEREFORE, Plaintiff pays the Court deny the Motion to Strike and Joinder, and allow Elvir Bari and R. “Ray” Ghariani to testify as both non-retained experts and fact witnesses. Plaintiff prays for all other relief to which it may be justly entitled. Respectfully submitted, /s/ David S. Toy David S. Toy Texas Bar No. 24048029 (admitted PHV) David S. Toy PLLC 401 Louisiana Street, 8 Floorth Houston, Texas 77002 Telephone: (713) 289-4930 Facsimile: (713) 583-0451 david.toy@dstpllc.com and 12 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 12 of 13 Pete T. Patterson Texas Bar No. 15603580 (admitted PHV) 4309 Yoakum, Suite 2000 Houston, Texas 77006 Telephone: (713) 874-6444 Facsimile: (713) 874-6445 pete@pyllp.com R. Joshua Koch, Jr. (Bar Roll 7767) Koch & Schmidt, LLC 650 Poydras Street, Ste 2660 New Orleans, Louisiana 70130 Telephone: 504-208-9040 Facsimile: 504-208-9041 JKoch@kochschmidt.com Attorneys for Global Oil Tools, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that service of the foregoing was on this 13 day of February,th 2019, automatically accomplished on all counsel of record through CM/ECF Notice of Electronic Filing, in accordance with the Federal Rules of Civil Procedure. /s/ David S. Toy David S. Toy 13 Case 2:16-cv-16372-BWA-JVM Document 182 Filed 02/13/19 Page 13 of 13