Nicolson V. Shafe 1st District Court Case

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

JEANNETTE C. NICHOLSON, Ph.D., an individual, and CAREER ASSESSMENT ATLANTA, INC., a Georgia corporation, Plaintiffs, v.

CIVIL ACTION FILE NO. 1:03-CV-3573-BBM

JAMES C. SHAFE, an individual, CAREER TRAINING CONCEPTS, INC., a Georgia corporation, and SALES AND MANAGEMENT TRAINING INSTITUTE OF ATLANTA, a previous Georgia corporation, Defendants. ORDER This action alleging copyright infringement and various state law claims is before the court on Defendants’ Motion for Extension of Page Limit [Doc. No. 55]; Defendants’ Motion for Summary Judgment [Doc. No. 56]; Defendants’ Motion to Compel [Doc. No. 59]; Defendants’ Motion for Extension of Time to File Motion to Compel [Doc. No. 61]; and Plaintiffs’ Motion for Leave to File a Sur-reply Brief [Doc. No. 70].

I.

Factual and Procedural Background The facts presented here are taken from the parties’ Statements of Material

Facts and the court’s own review of the record, and where disputed are construed in favor of the non-moving party.1 Plaintiffs Jeannette Nicholson, Ph.D.2 (“Nicholson”) and her company, Career Assessment Atlanta, Inc. (“CAA”), bring this action against Defendants Career Training Concepts, Inc. (“CTC”), CTC’s President and Chief Executive Officer James C. Shafe (“Shafe”), and Sales and Management Training Institute of Atlanta (“SMTI”)3 for copyright infringement, breach of contract, quantum meruit, deceptive trade practices and false association, common law and state law statutory unfair competition, fraud and misrepresentation, and unjust enrichment.4 This court has jurisdiction over the claims because of the existence of a federal question arising under federal copyright laws. See 28 U.S.C. §§ 1331 & 1338.

1

All evidence and factual inferences must be viewed in the light most favorable to the non-moving party at the summary judgment stage. See Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). 2

Plaintiff Nicholson has a Ph.D. in professional counseling.

3

Defendants Career Training Concepts, Inc. and Sales and Management Training Institute of Atlanta merged in 1987. Based on the record, it appears that the company is now known as Career Training Concepts, Inc. 4

Plaintiffs have withdrawn a claim for misappropriation of trade secrets. 2

The court may, within its discretion, exercise supplemental jurisdiction over the state claims. See 28 U.S.C. § 1367. In the fall of 1987, Nicholson, at the request of Shafe, created an Interest Inventory for inclusion in a publication Defendants were developing, entitled “Career Direction,” aimed at providing high school students with career information. Specifically, the Interest Inventory was created to measure students’ interest in various activities for the purpose of identifying certain occupational categories suitable for individual students. The Interest Inventory contained a section entitled “What Your Scores Mean,” which consisted of five columns of information. On October 12, 1987, Nicholson signed a contract with CTC (the “Agreement”), in which the parties memorialized their understanding that all work done related to Career Direction was performed on a work for hire basis, and that CTC retained ownership rights in the resulting work.

Nicholson understood the Agreement to

apply only to the Career Direction project. Career Direction was first published in 1987. In late 1993, Defendants asked Nicholson to create an Interest Inventory for a work entitled “FutureFocus,” aimed at providing middle school students with career information.

For FutureFocus, Nicholson created an Interest Inventory, which

contained a section entitled “What Your Scores Mean,” consisting of eleven columns 3

of information. This Interest Inventory was also created to measure students’ interest in activities for the purpose of recommending certain occupational categories. Defendants contend that the Agreement applies to the work Nicholson did for FutureFocus. Plaintiffs argue that the Agreement is inapplicable to work done for FutureFocus.

Plaintiffs acknowledge that Defendants offered a contract to

memorialize the parties’ understanding of royalties due for Nicholson’s work on FutureFocus, but Nicholson chose not to sign the contract due to her concerns over lack of creative control and potential harm to her professional reputation. FutureFocus was first published in 1996. On March 28, 2001, Nicholson filed a copyright registration for Columns 4, 5, 6, 7, 9, and 11 of the “What Your Scores Mean” portion of the Interest Inventory created for FutureFocus. Plaintiffs allege that Defendants have impermissibly used the copyrighted columns of “What Your Scores Mean” created for FutureFocus by combining these with the work done initially for Career Direction. In addition to her copyright infringement allegation, Nicholson has expressed concern about whether materials developed specifically for a particular age group of students will be accurate analytical tools when provided to students of other age groups. Plaintiffs additionally allege that Defendants have failed to adequately compensate Plaintiffs for various uses and publications of the works created for 4

FutureFocus. Defendants have moved for summary judgment, and both parties have filed various nondispositive motions. II.

Applicable Legal Standard Governing Motions for Summary Judgment Summary judgment is proper under Fed. R. Civ. P. 56 “if . . . there is no genuine

issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. at 255. However, the non-movant must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.

Accordingly, the non-movant may not avoid summary judgment with

evidence that is “merely colorable or is not significantly probative.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th Cir. 1997).

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The court will consider the parties’ non-dispositive motions first, followed by Defendants’ Motion for Summary Judgment. III.

Analysis A.

Defendants’ Motion for Extension of Page Limit

Contemporaneously with their Motion for Summary Judgment, Defendants filed a Motion for Extension of Page Limit.

Defendants’ Motion for Summary

Judgment is seventy-one pages, almost three times the usual twenty-five page limit. Local Rule 7.1 provides that “[a]bsent prior permission of the court, briefs filed in support of a motion or in response to a motion are limited in length to twenty-five (25) pages.” L.R. 7.1D., N.D. Ga. (emphasis added). In other words, parties are not to file a motion for leave to exceed page limits contemporaneously with the brief that exceeds the page limits. Motions for leave to exceed page limits are not granted in this court as a matter of right. However, when a party contemporaneously files a motion to exceed page limits with the brief that exceeds the page limits, the court’s ability to meaningfully consider the motion for leave to exceed the page limits is undercut, as denying the motion to exceed the page limits in that situation would entail striking the motion that exceeds the page limits and would delay the proceedings.

Accordingly, the Motion for Extension of Page Limit is GRANTED.

However, the parties are ADVISED that in the future, the court will not tolerate 6

contemporaneous filings of motions to exceed page limits with briefs exceeding the page limits, in this or in any other case in which these parties or attorneys are involved. Such filings may results in sanctions, including the striking of the violating pleadings. B.

Defendants’ Motion for Extension of Time to File Motion to Compel & Motion to Compel

Defendants have filed a Motion to Compel but have done so after the close of discovery. Realizing their error, Defendants filed a Motion for Extension of Time to File Motion to Compel. Under the Local Rules, “a motion to compel a disclosure or discovery must be filed within the time remaining prior to the close of discovery or, if longer, within ten (10) days after service of the disclosure or discovery response upon which the objection is based.” L.R. 37.1B., N.D. Ga. In this case, Defendants acknowledge that the Motion to Compel should have been filed on November 12, 2004 but was not filed until November 15, 2004.

Furthermore, Defendants have

provided no reason for their delay. Consequently, the court DENIES Defendants’ Motion for Extension of Time to File Motion to Compel and additionally DENIES Defendants’ Motion to Compel. C.

Plaintiffs’ Motion for Leave to File a Sur-reply Brief

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Plaintiffs have moved for permission to file a sur-reply brief to Defendants’ Motion for Summary Judgment, contending that the filing of a sur-reply brief is necessary because Defendants have raised new arguments in their Reply to Motion for Summary Judgment, which may prejudice Plaintiffs.

The practice of filing

supplements or sur-replies is not permitted in this court as a matter of course, and the Local Rules do not contemplate such extensive briefing. See Local Rules, N.D. Ga. Furthermore, the court has not considered the arguments that Plaintiffs contend will prejudice them in order to reach its decision, discussed below, thus doing away with the need for Plaintiffs to provide further briefing. Plaintiffs’ Motion for Leave to File a Sur-reply Brief is therefore DENIED. D.

Motion for Summary Judgment

Defendants have moved for summary judgment as to all of Plaintiffs’ claims. The court first considers Plaintiffs’ federal claim. 1.

Federal Claim: Copyright Infringement

As noted above, Nicholson registered a copyright for the portion of the FutureFocus Interest Inventory entitled “What Your Scores Mean.”

Specifically,

Nicholson protected Columns 4, 5, 6, 7, 9, and 11. Plaintiffs allege that Defendants infringed Nicholson’s copyright in the Interest Inventory in violation of federal copyright laws, see 17 U.S.C. §§ 501-505, by using the expanded version of “What 8

Your Scores Mean” in Career Direction, rather than only in FutureFocus, as Plaintiffs intended.

Defendants contend that Plaintiffs’ claims should fail because Plaintiffs

lack a copyrightable interest in FutureFocus. Under the Copyright Act, literary works constitute protective works of authorship. 17 U.S.C. § 102(a)(1); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 2.04 at 2-43 (2004). Certain exclusive rights belong to the author, to her assigns, or sometimes to her employer. 17 U.S.C. § 201(a)(b)(d). The author has the exclusive right to make copies of the work, 17 U.S.C. § 106(1), and anyone who produces copies without authorization is subject to an infringement suit, which may result in damages, attorney’s fees, and injunctive relief. See 17 U.S.C. §§ 501-505. To establish copyright

infringement, 5

a

plaintiff

must

prove

two

elements:

“(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). In this case, Defendants dispute whether Plaintiffs have a valid copyright interest in the columns of “What Your Scores Mean.” a.

Ownership of a Valid Copyright i.

Work for Hire

5

The Copyright Act provides that no action for infringement shall be instituted until registration of the copyright has been made. 17 U.S.C. § 411(a). It is undisputed that this requirement has been satisfied in the present case. 9

Defendants contend that Nicholson does not have a valid copyright in the columns because they were created as “work made for hire.”6 Although ownership of a valid copyright vests initially in the author of the work, 17 U.S.C. § 201(a), an exception exists for works for hire. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989). For copyright purposes, the employer is the author of a work for hire. 17 U.S.C. § 201(b). A work for hire is created in two circumstances: (1) when work is produced by an employee within the scope of her employment; or (2) when work is “specially ordered or commissioned,” fits into one of the enumerated categories in 17 U.S.C. § 101(2), 7 and the parties expressly agree in writing that the work is one for hire. 17 U.S.C. § 101 (emphasis added). Defendants assert that this case presents an example of the second circumstance.

They contend that Nicholson was specially

commissioned to draft “What Your Scores Mean” for use as an instructional text, as a test, or as answer material for a test, as evinced by the Agreement. Plaintiffs do not dispute that the work was specially commissioned or that it falls in one of the

6

The Copyright Act refers to “work made for hire,” 17 U.S.C. § 201(b), which the court will use interchangeably with “work for hire.” 7

The qualifying categories of specially commissioned works are: a contribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; and an atlas. 17 U.S.C. § 101. 10

categories listed in 17 U.S.C. § 101(2). Rather, Plaintiffs argue that the Agreement does not provide that the parties agreed work created for FutureFocus would constitute work for hire. The Agreement designates CTC as the “Employer” and Nicholson as the “Employee.” The Agreement further states that the material Nicholson prepared for inclusion in Career Direction “was prepared by Employee for, at the instigation and under the direction of Employer, and that the work is and at all times shall be regarded as a ‘work made for hire’ by Employee for Employer.” Defendants argue that FutureFocus was merely an extension of Career Direction, thus the original Agreement applied to any work Nicholson did for FutureFocus.

The court has

carefully reviewed the Agreement and notes that the Agreement expressly names the publication “Career Direction” and does not mention the publication “FutureFocus.” The Agreement is also devoid of any language that could be construed to show the parties contemplated that work created for another publication, no matter how similar in nature that work might be, would be covered by the Agreement and therefore constitute work for hire.

11

Under Georgia law,8 a question of contract interpretation is a question of law for the court. O.C.G.A. § 13-2-1; Dallis v. Aetna Life Ins. Co., 574 F. Supp. 547, 551 (N.D. Ga. 1983) (Hall, J.). A court’s primary goal in interpreting any contract is to ascertain the parties’ intent. O.C.G.A. § 13-2-3. To determine the parties’ intent, the court follows a three-part test:

(1) the court must decide whether the contract

language is ambiguous; (2) if it is, the court must apply relevant rules of construction; and (3) if any ambiguity still remains, the jury may resolve the issue. Crawford v. Gov’t Employees Ins. Co., 771 F. Supp. 1230, 1233 (S.D. Ga. 1991). Because the court’s finding that FutureFocus is a joint work is dispositive of Plaintiffs’ copyright infringement claim, as discussed below, it is not necessary for the court to engage in this process of contract interpretation. Nevertheless, and because the parties have devoted a great deal of effort to arguing this question, the court will say that it does not view the Agreement as ambiguous.9 Accordingly, the court finds that, under the Agreement, Defendants have not shown that the version of “What Your Scores

8

It is undisputed by the parties that the applicable body of law governing the interpretation of the Agreement is Georgia law. 9

In reaching this decision, the court has reviewed only the Agreement itself because if a contract is clear and unambiguous as a matter of law, the court is limited to the “four corners” of the contract and may not consider parol evidence as to its meaning. Nationwide Logistics, Inc. v. Condor Transp., Inc., 270 Ga. App. 277, 280-81, 606 S.E.2d 319, 322 (2004). 12

Mean” that Nicholson created for FutureFocus was contracted to be work for hire.10

ii.

Joint Work

Defendants also argue that Plaintiffs may not bring a copyright infringement claim against them because the columns constitute a joint work, for which Defendants are a co-author.

In her Certificate of Registration for a copyright,

Nicholson wrote that the columns for which she was seeking copyright protection were a collective work to be included in FutureFocus. A “collective work” is “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. § 101. A “joint work,” by contrast, is “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Id. In a joint work, “each contributor automatically acquires an individual ownership in the entire work, including all the contributions contained therein.” 1 Nimmer on Copyright, §

10

Plaintiffs also argue that there is a material issue of fact as to whether Nicholson was an employee, thereby falling under the first circumstance giving rise to a “work for hire,” or an independent contractor. Because the court has determined that Defendants have not shown that work Nicholson created for FutureFocus was work for hire under the Agreement, and because Defendants have not moved for summary judgment on the basis that Nicholson was an employee for Defendants, the court will not now consider whether Nicholson was classified as an employee or independent contractor. 13

6.03 at 6-7 (2004). Thus, “an action for infringement between joint owners will not lie because an individual cannot infringe his own copyright.” Weissmann v. Freeman, 868 F.2d 1313, 1318 (2nd Cir. 1989). A joint work may result even if all the individuals or entities that have an interest in the work did not actually contribute, such as in this case, where Defendants largely contracted with others to produce work and to disown their personal copyright interests in the work. “A joint work is a broader concept than that of joint authorship, in that while the product of joint authorship is, indeed, a joint work, it is also possible for a joint work to result, although there has been no joint authorship.” 1 Nimmer on Copyright, § 6.01 at 6-3 (2004). First, the parties dispute whether FutureFocus is comprised of inseparable and interdependent parts. The Eleventh Circuit Court of Appeals has elaborated on the meaning of “inseparable” and “interdependent.” [I]f author B’s contribution when combined with author A’s contribution results in recasting, transforming or adapting A’s contribution, then the two contributions may be said to be inseparable. If the process is simply one of assembling into a collective whole A’s and B’s respective contributions, without thereby recasting A’s contribution, then the two contributions may be said to be interdependent. M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990). Defendants argue that FutureFocus “is a single literary work of inseparable and

14

interdependent parts” because “[t]he sections of the test could not stand on their own as literary works.”

Specifically, the columns interpret the results of the test as

recorded on the answer sheet and would have little or no meaning on their own. Plaintiffs provide only a vague response to Defendants’ argument, contending that because “Defendants have taken a portion/section of the FutureFocus work and utilized it for Career Direction, [which] raises another issue of material fact as to whether FutureFocus comprises ‘inseparable or interdependent parts of a unitary whole.’”

The court does not accept this assertion.

The fact that Defendants

incorporated into Career Direction the expanded version of “What Your Scores Mean,” as it appeared in FutureFocus, is not, in the court’s view, determinative of the issue of whether FutureFocus constitutes a work of inseparable or interdependent parts. Certainly, Plaintiffs have not provided the court with authority to substantiate that position. Perhaps Plaintiffs are attempting to show that the work is more akin to a collective work because it may be separately transplanted from FutureFocus to Career Direction, but this fact is insignificant in light of the fact that the two publications are strikingly similar in nature.

Each publication is a group of

documents compiled together for the purpose of providing career guidance to students.

In any event, the court agrees with Defendants’ characterization of

FutureFocus.

The various portions of FutureFocus, including the section entitled 15

“What Your Scores Mean,” would have no independent meaning if viewed in isolation and therefore FutureFocus is a compilation of inseparable or interdependent parts. To show that “What Your Scores Mean” is a joint work, Defendants must still show that Nicholson intended for the additional columns to be incorporated into another work. As noted above, a joint work is “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101 (emphasis added). Plaintiffs argue that they never intended for the expanded version of “What Your Scores Mean” created for FutureFocus to be used in Career Direction, and that this use violates their specific intention, thereby defeating Defendants’ argument that FutureFocus is a joint work. The court believes the relevant inquiry focuses not on whether Plaintiffs intended for the new version of “What Your Scores Mean” to be used in a publication other than FutureFocus, but instead whether FutureFocus itself is a joint work, thereby granting to its authors certain rights of use. In Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 266-67 (2d Cir. 1944), the court held that all that is required to establish a joint authorship is that each author at the time he creates his contribution intend that it shall constitute a part of a total work to which another

16

shall make (or already has made) a contribution. 11 In other words, Nicholson merely needed to intend that the copyrighted columns be added to the columns already existing in “What Your Scores Mean.” In her deposition, Nicholson testified that she knowingly extended “What Your Scores Mean” as it appeared in Career Direction to create “What Your Scores Mean” as it appeared in FutureFocus.12 Because she added the copyrighted columns to the pre-existing “What Your Scores Mean,” as it was originally published in Career Direction, she added her work to a work for which Defendants already had copyright protection, and for which Defendants were, in legal terms, “authors.” Despite Plaintiffs’ protestations to the contrary, Nicholson’s assertion that she never intended for her copyrighted columns to appear in Career Direction is not determinative of whether FutureFocus is a joint work.

Although the court is aware

that Nicholson has concerns over whether a revised version of Career Direction would be properly formulated for its audience, such a methodological concern is

11

It is not disputed that Defendants intended to contribute to the work. In fact, Defendants requested that Nicholson create her work based on “What Your Scores Mean” as it originally appeared in Career Direction, for which Defendants had a copyright interest. 12

Nicholson testified that “there was a little of ‘What Your Scores Mean’ that I had originally put in for Career Direction. I had extended that to FutureFocus. I have a copyright to part of that.” 17

immaterial to the court’s analysis.

After all, “each co-owner has an independent

right to use or license the use of the copyright.” Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1984); see also 1 Nimmer on Copyright, § 6-10 at 6-30 (2004) (“a joint owner may, without obtaining the consent of the other joint owners . . . exploit the work himself”). In using the revised version of “What Your Scores Mean,” as created for FutureFocus, in Career Direction, Defendants were merely exercising their authority to use the joint work, FutureFocus.13 In sum, the court finds that FutureFocus is comprised of inseparable and interdependent works, and that Nicholson intended for the new copyrighted columns to be incorporated into the original version of “What Your Scores Mean,” for which Defendants already owned a copyright interest. FutureFocus is a joint work.

Accordingly, the court holds that

Because Defendants have a copyright interest in a

portion of the work and were exercising their authority to exploit the work, Plaintiffs may not bring a copyright infringement action against Defendants.

13

Accordingly,

This right, however, is not without limits. “A co-owner of a copyright must account to other co-owners for any profits he earns from licensing or use of the copyright.” Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1984). This duty does not arise from copyright law’s proscription; rather, it arises from equitable doctrines related to unjust enrichment and general principles of law governing the rights of co-owners. Id. 18

Defendants’ Motion for Summary Judgment as to Plaintiffs’ copyright infringement claim is GRANTED.14 2.

State Claims

Plaintiffs have also brought state law claims of breach of contract, quantum meruit, deceptive trade practices and false association, common law and state law statutory unfair competition, fraud and misrepresentation, and unjust enrichment. Because the court is GRANTING Defendants’ Motion for Summary Judgment as to Plaintiffs’ copyright infringement claim, there may be no further basis for federal jurisdiction in this case if the court declines to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c). The court thinks it wisest (and also in the interest of judicial economy) to evaluate all federal claims before considering whether to exercise supplemental jurisdiction.

However, Defendants

have filed counterclaims, some of which invoke federal copyright law, over which the court would have original jurisdiction.15 If Plaintiffs intend to contest Defendants’ 14

Having determined that it is proper to grant summary judgment in favor of Defendants on their joint work argument, the court finds it unnecessary to consider the additional reasons Defendants contend they are entitled to summary judgment as to Plaintiffs’ copyright infringement claims. 15

As a practical matter, if Defendants dismiss their counterclaims, this court would no longer have federal question jurisdiction and would not exercise supplemental jurisdiction over the state law claims, so this action in this court would be over. While this court will not mandate mediation of the remaining claims, the court suggests that now may be a good time to discuss settlement of what remains of this dispute. Having said 19

counterclaims, they should do so by way of a motion for summary judgment filed on or before June 3, 2005. Plaintiffs’ brief shall not exceed fifteen pages in length. If Plaintiffs make such a motion, Defendants shall file a response on or before June 17, 2005, which shall not exceed fifteen pages in length. No reply is necessary. IV.

Summary For the foregoing reasons, Defendants’ Motion for Extension of Page Limit

[Doc. No. 55] is GRANTED; Defendants’ Motion for Summary Judgment [Doc. No. 56] is GRANTED as to Plaintiffs’ copyright infringement claim; Defendants’ Motion to Compel [Doc. No. 59] is DENIED; Defendants’ Motion for Extension of Time to File Motion to Compel [Doc. No. 61] is DENIED; and Plaintiffs’ Motion for Leave to File a Sur-reply Brief [Doc. No. 70] is DENIED. If Plaintiffs intend to contest Defendants’ counterclaims, they should do so by way of a motion for summary judgment filed on or before June 3, 2005. Plaintiffs’ brief shall not exceed fifteen pages in length.

If Plaintiffs make such a motion,

Defendants shall file a response on or before June 17, 2005, which shall not exceed fifteen pages in length.

that, however, the court will be very reluctant to extend the deadlines for further briefing set forth herein. 20

IT IS SO ORDERED, this 18th day of May, 2005.

s/Beverly B. Martin BEVERLY B. MARTIN UNITED STATES DISTRICT JUDGE

21