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United States District Court, S.D. New York

February 18, 2004.


The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


This is a patent infringement case involving two corporations engaged in the production and sale of pre-knotted neckties. The parties submitted a Joint Pre-Trial Order to the Honorable Richard M. Berman on September 15, 2003, listing their trial exhibits and including the direct testimony of their trial witnesses. Each party subsequently submitted a motion in limine to exclude portions of witness testimony and various documents. The defendant, Eastern Creative Industries, Inc. ("Eastern"), has moved to exclude nine of the plaintiff's exhibits and to strike a portion of the testimony of the president of B&G Plastics, Inc. ("B&G"), Chester Kolton. (Defendant Eastern's Motion to Not Admit Into Evidence Nine of Plaintiff's Exhibits and to Strike a Portion of the Testimony of Chester Kolton ("Def. Motion")). The plaintiff has cross-moved to exclude testimony of Eastern's president, John Najarian. (Plaintiff's Cross Motion in Limine to Exclude John Najarian's Hearsay and Opinion Trial Testimony ("Pl. Motion")). For the following reasons, both motions are denied. Page 2


  The plaintiff and defendant are both New Jersey corporations that produce and sell pre-knotted ties and the hangers that display those ties. On February 6, 1998, B&G filed a complaint against Eastern, alleging patent infringement of U.S. Patent No. 5,556,014 ("the `014 patent"), and tortious interference with business relations. (Complaint ("Compl."), ¶¶ 6, 16). The `014 patent was issued to B&G on September 17, 1996, and is entitled "Hanger Composite for Display of Neckties with Preformed Knots." (United States Patent Number 5,556,014, attached as Exh. 1 to Compl.). B&G claimed that a competing hanger marketed by Eastern infringed the `014 patent. B&G argued that Eastern had modified one of its clips to enable that clip to be used with a B&G hanger. The plaintiff claimed that using this modified clip with a B&G hanger constituted direct infringement of the `014 patent. In a Report and Recommendation that was later adopted by Judge Berman, I found that there were disputed issues of material fact with regard to the validity of the `014 patent, and recommended against granting summary judgment on that issue. B&G Plastics, Inc. v. Eastern Creative Industries, Inc., 269 F. Supp.2d 450, 471 (S.D.N.Y. 2003).

  B&G's summary judgment motion for tortious interference with business relations related to a different set of patents. The defendant owns two patents, U.S. Patent No. 4,337,539 ("the `539 patent") and U.S. Design Patent No. 267,289 ("the `289 patent"). B&G Plastics, 269 F. Supp.2d at 465. The plaintiff's claim Page 3 involved a series of communications initiated by Eastern regarding its `289 and `539 patents, which it believed were being infringed by B&G. In March 1995, the defendant came to believe that B&G was manufacturing and selling a neck-tie support clip that infringed the `289 and `539 patents. Id. at 466. After seeking the advice of counsel, Eastern sent a letter dated March 29, 1995 ("the March letter"), informing B&G that its clip "appears to be substantially identical" to the clip covered by the `289 and `539 patents. Id. The letter further stated that if B&G continued to make or sell the infringing article, it and others involved "will all be named as party defendants." Id. The defendant provided a copy of this letter to Steinberg Neckwear, a customer of both B&G and Eastern, on April 3, 1995. Id.

  In response to Eastern's letter, B&G sought opinion of its own patent counsel and was informed that the B&G clip did not infringe Eastern's patents, and furthermore that the `289 patent was invalid and therefore B&G was unable to infringe it. Id. at 467. B&G's counsel then shared this information with Eastern's attorney by letter on April 11, 1995. Id. Despite the opinion of its counsel that there was no infringement, B&G decided to issue a "hold harmless" letter to its customers on April 13, 1995 (the "hold harmless letter"). This letter informed customers that B&G would take responsibility for paying "any and all monetary damages" that could potentially arise if a judgment were entered against B&G "for infringement of [the `539 or `289 patents]." Id.

  After receiving the opinion of B&G's counsel, Eastern obtained Page 4 a second patent counsel, who advised it that B&G's clips did not likely infringe on Eastern's patents. Id. After hearing this, Eastern stopped pursuing an infringement claim against B&G. Eastern also claimed that it advised Joseph Steinberg of Steinberg Neckwear that it would not be bringing any infringement action against B&G. Id.

  Although it was satisfied that B&G's clips did not infringe its patents, Eastern still believed that other companies were infringing. Eastern therefore sent a letter to all of its customers on June 16, 1995 ("the June letter"), stating that "[i]t is our understanding that one or more companies are selling pretied neckties having a knot support assembly which copies and infringes on the patented knot support assembly of the ['539] patent." Id. The letter went on to state that Eastern was "aware of another pre-tied necktie available in the market-place having a different knot support assembly which does not infringe on the ['539] patent." Id. According to Eastern, this last paragraph was included to "cover [] the units sold by B&G Plastics and reduce [] the likelihood of a claim being asserted against [Eastern] by B&G that [Eastern's] notice letter implies that all third-party units infringe on [its] patent." Id.*fn1

  In its summary judgment motion, B&G claimed that the `289 patent was invalid and that its business relationship with Steinberg Neckwear was compromised when Eastern shared a copy of Page 5 the infringement letter with Steinberg. B&G asserted that Eastern made the allegations in bad faith and that the letters constituted tortious interference. Id. Additionally, B&G asserted that after receiving the June letter from Eastern, customers would assume that the infringing goods were made by B&G because of the hold harmless letter B&G had issued to its customers earlier. Id. In considering this claim, I found that there was not sufficient evidence from which a reasonable jury could conclude that Eastern had alleged patent infringement in bad faith. Without bad faith, a requirement for a claim of tortious interference, B&G could not support this claim. The plaintiff's motion for summary judgment on the tortious interference claim was therefore denied. Id. at 468-71.

  Eastern, in turn, moved for summary judgment with respect to B&G's patent infringement claim and the tortious interference claim. The defendant claimed that there was no direct infringement of the `014 patent because of the existence of an implied license. Because the validity of the `014 patent was a threshold consideration for determining Eastern's motion — i.e., if the `014 patent was found to be invalid, it would follow as a matter of law that Eastern's use of its own clip with B&G's hanger did not infringe it — summary judgment was denied on this claim. Id. at 471. Finally, I found that B&G was not able to demonstrate that Eastern had acted in bad faith in informing the industry of potential infringement of its patent, nor was it able to show that it suffered any damages as a result. Id. at 470-71. Accordingly, Page 6 the defendant's motion for summary judgment on the tortious interference claim was granted. Id. at 471. Discussion

  The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain anticipated evidence. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); United States v. Paredes, 176 F. Supp.2d 192, 193 (S.D.N.Y. 2001). Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Medical, Inc., No. 94 Civ. 5220, 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25, 1998). To be admissible, evidence must be both relevant and reliable. Evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" is relevant. Fed.R.Evid. 401; see Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002).

  A. Defendant's Motions

  1. Chester Kolton's Testimony

  The defendant first moves to strike some of the testimony of Chester Kolton on the ground that it is no longer relevant to the case. The defendant has identified several portions of Mr. Kolton's testimony that allegedly relate solely to the tortious interference claim that was previously dismissed. Eastern reasons that it would be "an unnecessary burden" to "have to deal with Page 7 allegations relating to tortious interference at trial." (Def. Motion at 2).

  The first portion of Mr. Kolton's testimony that the defendant has identified relates to an exchange of letters between Eastern and B&G regarding the `289 and `539 patents. Mr. Kolton testified that after receiving the March letter from Eastern in which it accused B&G of infringing its patents, B&G received an opinion from its patent counsel that the new B&G clip would not infringe either of Eastern's patents. (Def. Motion, Exh. A at 5). After receiving this opinion, B&G's counsel responded to Eastern, denying the charges of infringement and providing a copy of the opinion that had been given to B&G regarding this issue. (Def. Motion, Exh. A at 5).

  In the second selected portion of Mr. Kolton's testimony, he testifies that in June, Eastern's own patent counsel informed it that the B&G clip did not infringe Eastern's patents; yet "charges of infringement to B&G's customers continued." (Def. Motion, Exh. A at 6). Mr. Kolton makes several additional references to the fact that Eastern continued to charge B&G and its customers with infringement of the `289 and `539 patents despite having received contrary information from its patent counsel. (Def. Motion, Exh. A at 7, 9). According to Eastern, this testimony "constitute [s] an attempt to retry factual issues (and in particular the bona fides of Eastern's charges of infringement) that have been resolved in Eastern's favor by Summary Judgment." (Def. Motion at 2).

  B&G asserts that Mr. Kolton's testimony does not relate only Page 8 to the tortious interference claim, but also to the inducement of infringement claims that still remain in the case. (Plaintiff's Response to Defendant's Motion to Not Admit and to Strike ("Pl. Resp. Memo.") at 2). The plaintiff argues that "[a] critical element of Defendant's inducement was its charge that the B&G clips infringe one of Defendant's patents, a charge which Defendant has never withdrawn. Thus, portions of the direct testimony of Chester Kolton . . . necessarily relate to charges of patent infringement asserted by Defendant against Plaintiff and its customers." (Pl. Resp. Memo, at 2). The issue is thus whether the selected portions of Mr. Kolton's testimony could be relevant for the plaintiff's inducement claim, or whether they relate solely to the previously dismissed claim of tortious interference.

  B&G claims that Eastern infringed the `014 patent both directly, through assembly of the defendant's clips with the plaintiff's hanger, and indirectly, by selling its modified clip to customers with knowledge that the clip would be assembled with B&G's patented hanger. B&G asserts that by continuing to sell these clips, Eastern induced its customers to infringe B&G's patent.

  Direct infringement of a patent is governed by 35 U.S.C. § 271 (a), which provides:

Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
Under section 271(b), one who "actively induces infringement of a Page 9 patent shall be liable as an infringer," and under section 271(c), one who "sells . . . a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent . . . shall be liable as a contributory infringer." A claim for inducement of infringement under section 271(b) requires the plaintiff to prove that the accused infringer knowingly aided and abetted another's direct infringement of the patent. See Rodime PLC v. Seagate Technology, Inc., 174 F.3d 1294, 1306 (Fed. Cir. 1999). Additionally, "[1]lability for either active inducement of infringement or for contributory infringement is dependent upon the existence of direct infringement." Joy Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 774 (Fed. Cir. 1993). Therefore, in order to demonstrate inducement of infringement, B&G would need to establish first, that using the modified Eastern clip with the B&G hanger constituted direct infringement of B&G's patent, and second, that Eastern "possessed specific intent to encourage another's infringement and not merely that the defendant had knowledge of the acts alleged to constitute inducement." Manville Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 553 (Fed. Cir. 1990).

  B&G contends that the assembly of Eastern's clip (the subject matter of the `289 and `539 patents) with B&G's hanger constitutes a direct infringement of the `014 patent. (Pl. Resp. Memo. at 7). Accordingly, B&G claims that the attempts by Eastern to persuade customers to utilize its clip instead of the clip offered by B&G Page 10 constituted inducement of infringement. (Pl. Resp. Memo, at 7-8). Because it was a "two-party market" where customers were limited to using a clip from either Eastern or B&G, urging customers not to use the B&G clip necessarily encouraged them to use the clip produced by Eastern. (Pl. Resp. Memo, at 7). Given this, B&G asserts that Mr. Kolton's testimony is relevant to the issue of inducement since it describes attempts by Eastern to persuade customers of both Eastern and B&G not to purchase the plaintiff's clips. (Pl. Resp. Memo, at 7). If a customer believed the warnings contained in Eastern's letters that B&G was violating Eastern's patents, "the customer is left with only the option of purchasing the clips from Eastern." (Pl. Resp. Memo, at 7). The plaintiff claims that Mr. Kolton's testimony will demonstrate (1) that Eastern knew (by reason of the letter from B&G's patent counsel as well as later information received by its own counsel) that the `289 and `539 patents were invalid and (2) that despite having this knowledge, Eastern induced its customers to use its clip instead of B&G's clip which was protected by the `014 patent. Therefore, "Kolton's testimony as to Eastern's charges of infringement made subsequent to receiving the opinion of Eastern's own counsel that Plaintiff did not infringe its patent are relevant to whether Eastern knowingly acted to induce its customers to infringe." (Pl. Resp. Memo, at 8).

  The defendant claims that B&G is attempting to "re-litigate a matter (tortious interference) which has been resolved in Summary Judgment adverse to B&G." (Defendant's Reply in Support of Page 11 Defendant's Motion to Not Admit and to Strike ("Def. Reply Memo.") at 1). The defendant also argues that the exchanges Mr. Kolton describes were part of "Eastern's attempt to assert its patent rights" and therefore "activity which is legitimate as a matter of law." (Def. Reply Memo, at 1). While the defendant is correct in its assertion that Mr. Kolton's testimony would have been relevant to the issue of tortious interference, that does not necessarily render it irrelevant to the issue of inducement. The finder of fact will ultimately determine the validity of each patent at issue and whether Eastern did induce other customers to infringe B&G's patent. The fact that Mr. Kolton's testimony, standing alone, would not be conclusive, does not render it inadmissible. See Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 927 (2d Cir. 1977) ("Evidence need not be conclusive in order to be relevant.").

  Mr. Kolton's testimony could be relevant to the issue of whether Eastern ever induced customers to infringe upon B&G's patent. His testimony describes efforts Eastern made to persuade customers to use its clip as opposed to B&G's. If it is shown that Eastern's patents were in fact invalid and that Eastern had good reason to believe this to be true, Mr. Kolton's testimony could help form the basis of the inducement claim. Therefore, the defendant's motion to strike portions of Mr. Kolton's testimony is denied.

  2. Plaintiff's Documents

  The defendant next moves to strike nine of the plaintiff's Page 12 exhibits listed in the pre-trial order on the ground that all relate to the tortious interference claim. (Def. Motion at 2 & Exh. B). The plaintiff claims that these documents "show Eastern's efforts to urge customers to purchase its own clips rather than B&G's" and are thus relevant to the inducement of infringement claim. (Pl. Resp. Memo, at 9). The exhibits the defendant wishes to exclude are as follows:

(1) Exh. 9: March 29, 1995 letter from Eastern's patent counsel to B&G charging that if B&G were to market its clip it would infringe the `289 and `539 patents.
(2) Exh. 10: Letter dated April 3, 1995, to Joe Steinberg from John Najarian enclosing a copy of the March letter.
(3) Exh. 11: Letter dated April 11, 1995, from B&G's patent counsel responding to the March letter and enclosing copies of the non-infringement opinion it gave to B&G.
(4) Exh. 12: B&G's hold harmless letter issued to its customers.
(5) Exh. 13: List of manufacturers to whom the hold harmless letter was sent.
(6) Exh. 16: Letter dated June 16, 1995, from Eastern's patent counsel to John Najarian stating that the B&G clip did not infringe Eastern's patents.
(7) Exh. 17: Letter dated June 19, 1995, from John Najarian to Together Crafts charging that certain unidentified clips infringe the `539 patent, but that others do not.
(8) Exh. 28: Letter dated August 8, 2000, from Eastern's patent counsel to Tom [U]re and Dough Baron of Castle Neckwear Co., charging infringement of the `539 patent by a necktie support assembly manufactured by Castle Neckwear.
  (9) Exh. 29: Letter dated Sept. 28, 2001, from Mr. Ure stating that the clip referred to in the earlier letter was purchased from B&G in Hong Kong. Page 13

  These documents relate to the same exchanges to which Mr. Kolton has testified. Although they certainly were most relevant to the plaintiff's tortious interference claim, they could be relevant to the inducement of infringement claim as well. They could offer support for the plaintiff's claim that Eastern knowingly urged other customers to infringe the B&G patent. Based on the same rationale detailed above, these documents should not be excluded.

  B. Plaintiff's Motion*fn2

  The plaintiff has cross-moved to exclude portions of the testimony of Eastern's president, John Najarian. B&G claims this testimony "is comprised of hearsay" and "includes opinion testimony." (Pl. Motion at 1).

  1. Hearsay

  The plaintiff has identified several portions of Mr. Najarian's testimony that allegedly constitute inadmissible hearsay. The testimony the plaintiff objects to is as follows:

  Line 42: At some point in 1994, representatives from two of my customers, Mr. Joe Steinberg of Steinberg Neckwear and Mr. Clem Igarta of Castle Neckwear, informed me that K-mart had adopted a B&G design and would only buy clip-on ties having B&G hangers and clips. This B&G design did not have two holes. Instead, it had a single oval Page 14 hole in the lever arm of the clip, as I had suggested to Mr. Schlags, along with the B&G security hanger.


Line 43: Two months later, still in 1994, Mr. Steinberg contacted me and asked me to put a single oval hole in the lever arm of my clips.
Line 44: Mr. Steinberg said that he needed my clips for use with his clip on ties, with holes in the lever arms, because the clips he had gotten from B&G were breaking.
Line 45: Mr. Steinberg also told me that Mr. Kloeckner, the buyer for K-Mart, had informed Mr. Steinberg that K-Mart had changed its mind, and had indicated that it was alright [sic] for Steinberg to buy and use Eastern clips in the clip-on ties Steinberg made for K-Mart.
Line 49: Also in 1995, Mr. Igarta, the production manger of my customer Castle Neckwear, called me and stated that B&G clips were breaking at the hinges, that the lever arms were disengaging from spring, and that the lever arms were snapping in half.
Line 50: Mr. Igarta informed me that because of these flaws, K-Mart had said that Castle could buy necktie knot forming clips from Eastern again.
(Pl. Motion at 3 & Exh. 1 at 11-13). These passages are all included in the section of Mr. Najarian's testimony dealing with the defendant's defense to B&G's infringement claim. Eastern claims that B&G customers were granted an implied license upon purchasing the B&G hanger to combine that hanger with any clip, regardless of the manufacturer. Because of this implied license, Eastern asserts that its customers could not have infringed B&G's patent. Mr. Najarian has testified that in the fall of 1993, a representative from B&G approached him to discuss modifying the lever arm of Eastern's tie clip so that it would fit with B&G's new hanger. (Pl. Motion, Exh. 1 at 10). Although Mr. Najarian did not modify his clips initially, he eventually did change the Eastern clip to enable it to be used with the B&G hanger. He claims this Page 15 modification was made at the request of several customers, including Mr.Steinberg and Mr. Igarta. (Pl. Motion, Exh. 1 at 11-13).

  Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Unless an exception applies, this type of statement is inadmissible. Fed.R.Evid. 802. A statement not offered for its truth is not hearsay, and is admissible if relevant and reliable.

  Whether Mr. Najarian's testimony should be precluded depends on the purpose for which it is being offered. The plaintiffs are correct in their assertion that the selected statements would be hearsay if offered as a factual predicate for the implied license defense. Mr. Najarian would then be recounting the various exchanges as proof that B&G had given customers an implied license to use other clips with its hanger. Rule 801 would clearly prohibit that type of testimony as the finder of fact would be forced to judge the reliability of the information without the benefit of the initial declarant's testimony. The statements are admissible, however, as circumstantial evidence of Mr. Najarian's state of mind, since this is relevant to the issue of whether Eastern willfully infringed the plaintiff's patent. To the extent that Mr. Najarian's testimony is offered to demonstrate that he believed the customers to have been given permission to use Eastern's clips with B&G's hanger, it does not fall within the definition of hearsay as it is not being offered to prove the Page 16 truth of the matter asserted. See Cary Oil Co. v. MG Refining & Marketing, Inc., 257 F. Supp.2d 751, 762 (S.D.N.Y. 2003).

  2. Opinion Testimony

  The plaintiff also objects to several paragraphs of Mr. Najarian's testimony on the ground that they consist of "improper opinion testimony." (Pl. Motion at 4).*fn3 The plaintiff has identified two paragraphs where Mr. Najarian is purportedly offering his opinion on issues of validity and infringement despite the fact that he is not a patent expert. (Pl. Motion at 4). Mr. Najarian testified as follows:

Line 31: In my opinion, removing a piece of metal so that it does not get in the way of the button in a folding tail plastic display hanger is a design modification that would be taken by anyone who has designed plastic display hangers and necktie forming clips. Line 83: It appears from all of these ads and the web page, as well as from my observations in the marketplace, that B&G has always sold its tie clips and security hangers as items which can be purchased either individually or together.
(Pl. Motion, Exh. 1 at 9, 21).

  Rule 701 of the Federal Rules of Evidence provides that "[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of Page 17 the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Lay opinion testimony is admissible when the inference is a conclusion drawn from a series of personal observations over time. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 701.03 (Joseph M. McLaughlin, ed., 2d ed. 2003). Courts have permitted lay witnesses to testify under Rule 701 to their opinions when those opinions are based on a combination of their personal observations of the incident in question and background information they acquired through earlier personal observations. See Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 265 (2d Cir. 1995) ("A company president certainly is capable of projecting lost profits where the projection is based on evidence of decreased sales."). Moreover, a witness' experience and specialized knowledge obtained in his or her vocation should certainly be taken into consideration. The fact that the lay opinion testimony bears on the ultimate issue in the case does not render it inadmissible. Fed.R.Evid. 704(a); see United States v. Rea, 958 F.2d 1206, 1214-15 (2d Cir. 1992) ("Since neither Rule 701 nor Rule 704(a) limits the subject matter of lay opinion testimony, there is no theoretical prohibition against allowing lay witnesses to give their opinions as to [the ultimate issue in the case]."). The admissibility of Mr. Najarian's testimony therefore depends upon whether it satisfies the rational-basis and helpfulness requirements of Rule 701. Page 18

  The rational-basis requirement of Rule 701 "is the familiar requirement of first-hand knowledge or observation." Liqhtfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)(quoting Fed.R.Evid. 701 Advisory Committee Note, 1972 Proposed Rules). As the president of B&G and someone who has been "involved in the design, manufacture and marketing of neck-tie knot forming clips for over 40 years" (Pl. Motion, Exh. 1 at 3), Mr. Najarian certainly has sufficient experience in the industry to offer an opinion on his perception of the benefits of certain design modifications as well as observations he has made about the tie clip market. His opinion is based on both his observations of the clips and hangers at issue and background information he has acquired about the industry from his experience. As such, it is sufficiently reliable to be offered under Rule 701.

  Moreover, Mr. Najarian's testimony could be useful in helping the trier of fact understand both the industry and the designs in question. "This helpfulness requirement is designed to provide assurance[] against the admission of opinions which would merely tell the jury what result to reach." Liqhtfoot, 110 F.3d at 912 (internal quotations and citations omitted). Although he is not an expert, Mr. Najarian's testimony can be helpful in describing a specialized industry to the trier of fact. His testimony is sufficiently helpful to be admissible.


  For the reasons stated above, the defendant's motion in limine and the plaintiff's cross-motion in limine are denied. Page 19


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