-JLT General Electric Company, et al. v. Wilkins, No. 1:2010cv00674 - Document 158 (E.D. Cal. 2011)
Court Description: ORDER DENYING Defendant's 112 Motion For Reconsideration, signed by Judge Oliver W. Wanger on 1/20/2011. (Gaumnitz, R)
Download PDF
<![CDATA[
-JLT General Electric Company, et al. v. Wilkins Doc. 158 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 GENERAL ELECTRIC COMPANY, 9 Plaintiff, 10 1:10-cv-00674–OWW-JLT ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION (Doc. 112) v. 11 12 THOMAS WILKINS, Defendant. 13 I. INTRODUCTION. 14 Plaintiff General Electric Company(“Plaintiff”) proceeds with 15 16 an action against Defendant 17 Thomas Wilkins (“Defendant”) for damages and injunctive relief. 18 On October 18, 2010, during a hearing on Plaintiff’s motion 19 for preliminary injunction, the court orally ruled that Defendant 20 was precluded from offering his own testimony in opposition to 21 Plaitniff’s motion due to Defendant’s obstructive conduct at his 22 court-ordered deposition. (Doc. 88 at 2). 23 On November 30, 2010, Defendant filed a document entitled 24 “Reservation of Rights Brief as Requested by Court on October 18, 25 2010 and Request for Reconsideration” (“Defendant’s November 30 26 Brief”), as well as a declaration signed by Defendant. (Doc. 27 28 1 Dockets.Justia.com 1 112).1 2 its decision to bar Defendant from offering testimony in opposition 3 to Plaintiff’s motion for preliminary injunction. 4 Defendant’s November 30 Brief asks the court to reconsider Plaintiff filed opposition to Defendant’s 5 reconsideration on December 3, 2010. 6 a reply to Plaintiff’s opposition on December 14, 2010. 7 for 123). Defendant filed (Doc. II. FACTUAL BACKGROUND. 8 9 (Doc. 118). motion On October 5, 2010, the court ordered that certain witnesses 10 be deposed regarding the issues raised by Plaintiff’s motion for 11 preliminary injunction. 12 Wilkins was one of the witnesses subject to the court’s October 5 13 order. 14 October 12, 2010, Defendant appeared at the United States District 15 Court in Fresno for his deposition, accompanied by his attorney. 16 Defendant identified himself as “Thomas Alexander Wilkins on behalf 17 of Thomas Wilkins.” 18 the court reporter attempted to administer the standard witness’ 19 oath2 to Defendant, Defendant responded by asking the deposition 20 reporter and videographer to agree to “full commercial liability.” 21 The following exchange took place: (Doc. 55). Defendant Thomas Alexander Due to the parties inability to agree on logistics, on (Doc. 99, Ex. B at 5)(emphasis added). When 22 23 24 25 26 27 28 1 Contrary to the title of Defendant’s document, the court did not request briefing on Defendant’s “reservation of rights” theory. (Doc. 88 at 5). 2 The Ninth Circuit has described the term “oath” as a "solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true," and the term “affirmation” as a "pledge equivalent to an oath but without reference to a supreme being or to 'swearing;'" both are sufficient to place a witness under penalty of perjury. United States v. Bueno-Vargas, 383 F.3d 1104, 1110 (9th Cir. 2004). Here, Defendant was technically asked to give his affirmation. The term “oath” is employed throughout this opinion in order to be consistent with the parties’ briefs. 2 1 2 3 4 5 6 Reporter: Please raise your right hand. Do you solemnly affirm to tell the truth, the whole truth, and nothing but the truth? Defendant: Without prejudice and a full reservation of rights, I will hold all parties here, all agents and groups of agents, in their full commercial liability, including you. What is your name and who do you work for? What is your name and who do you work for. Reporter: I’m not here to answer questions. swearing you in, doing my job. I’m just 7 8 Defendant: Okay. Reporter: Yes. 9 Defendant: Okay. Do you agree to do your job under full commercial liability? Are you the court reporter? 10 Reporter: Yes 11 12 Defendant: Thank you. Do you agree to do your job under your full commercial liability? And please state your name. 13 Videographer: I do. Dillon Wasserman. 14 Defendant: Thank you Dillon. 15 17 Mr. Hanlon: Mr. Wilkins, you’re here to give a deposition pursuant to court orders. I don’t have to make any agreements to you to proceed with that deposition, and I decline to do so. 18 Defendant: Are you referring to me? 19 Mr. Hanlon: I am referring to you, sir. like me to refer to you? 16 How would you 20 Defendant: Thomas Alexander Wilkins. 21 23 Mr. Hanlon: Okay. Thomas Alexander Wilkins, I am here to take your deposition pursuant to court order. I don’t have to make any agreements to proceed, and I decline to do so. 24 Defendant: Your offer is accepted. 22 25 (Doc. 99, Ex. B at 5-7). The Reporter attempted to administer the 26 oath a second time: 27 28 Reporter: Would you please raise your right hand again. Do you solemnly affirm to tell the truth, the whole 3 1 truth, and nothing but the truth? 2 Defendant: Without prejudice and a full reservation of rights, I do. 3 Mr. Hanlon: Mr. Schulte, I’m not sure what Mr. Wilkins means by “without prejudice.” Either he’s under oath or he’s not. 4 5 Mr. Schulte: I agree. He’s either under oath or he’s not. 6 7 Mr. Hanlon: Mr. Wilkins, do you understand that you’re under oath? 8 Defendant: Please define your term “understand.” 9 Mr. Hanlon: Are you under oath to tell the truth, the whole truth, and nothing but the truth in this deposition? 10 Defendant: Okay. I am not Mr. Wilkins. I’m Thomas Alexander Wilkins. Offer right back to you. As far as truth, the whole truth, and nothing but the truth, I’m stating, without prejudice and a full reservation of rights, I do. 11 12 13 14 (Doc. 99, Ex. B at 7-8). The reporter attempted to administer the 15 oath a third time, and once again, Defendant responded by 16 qualifying his oath with the phrase “without prejudice and a full 17 reservation of rights.” Neither Defendant nor his attorney 18 explained the meaning of this qualification and its intended effect 19 on Defendant’s testimony to Plaintiff’s counsel, despite repeated 20 requests. Plaintiff’s counsel expressed a desire to involve a 21 magistrate judge, but Defendant’s counsel refused: 22 23 24 25 26 27 Mr. Hanlon: All right. Let’s go off the record. going to see if the magistrate is available. I’m Mr. Schulte: Actually, if you’re going to stop the deposition and the deposition is done, we did not come here today to do anything other than participate in a deposition. You have now informed us that unless Mr. Wilkins– Mr. Hanlon: We’re still on the record, sir. your microphone back on. 28 4 Please put 1 2 3 4 5 Mr. Schulte:– answers the way you want him to answer that you’re not proceeding today. He didn’t give you the answer you wanted, so it appears that we’re done. If you want to proceed, lets proceed. If you don’t, that’s up to you... Mr. Hanlon: All I’m trying to do is have the witness be sworn. Without the witness being sworn...this isn’t a deposition. It’s just a conversation. I’m trying to make sure we’re here for a deposition... 6 7 8 Mr. Schulte: Mr. Wilkins has answered how he’s comfortable. I’m not going to sit here and change his answers. I suggest you not do the same. Whether you proceed today or not is up to you. 9 (Doc. 99, Ex. B at 9-11). 10 At the hearing on Plaintiff’s motion for preliminary 11 injunction held on October 18, 2010, Plaintiff brought Defendant’s 12 conduct at his deposition to the attention of the court. The court 13 stated that to the extent Plaintiff refused to be deposed, he would 14 not be permitted to offer testimony in opposition to the motion for 15 preliminary injunction: 16 17 18 There is no evidence from defendant before the Court that would be provided by Mr. Wilkins. His refusal to be deposed, the Court will treat as essentially disabling him from presenting evidence himself. 19 (Doc. 88 at 2). The court noted that Defendant would not be 20 precluded from offering any evidence other than Defendant’s 21 testimony. (Id.). 22 After reviewing the Defendant’s deposition transcript in open 23 court and after allowing the parties to argue their respective 24 positions, the court concluded that Defendant’s conduct was 25 tantamount to a refusal to be sworn. The court discussed the oath 26 requirement on the record and stated: 27 28 the law requires an unqualified acknowledgment to tell the truth. And there may not be any magic about the words 5 1 2 3 that are used to do that, but reserving rights in the Commercial Code and international treaties and declaring that he’s a free man upon the land and the rest of it, I’m sure you know what I’m talking about, Mr. Schulte, that’s not acceptable. 4 (Doc. 88 at 5).3 5 the court’s assessment of the oath requirement, and the court gave 6 counsel the opportunity to provide legal authority in support of 7 his position. 8 Defendant filed a brief purporting to provide authority justifying 9 Defendant’s conduct at his deposition. Defendant’s counsel expressed disagreement with (Doc. 88 at 5). III. LEGAL STANDARD. 10 11 More than six weeks later, A motion for reconsideration is appropriate where the district 12 court (1) is presented with newly discovered evidence, (2) 13 committed clear error or the initial decision was manifestly 14 unjust, or (3) if there was an intervening change in controlling 15 law. See School Dist. No. 1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th 16 Cir. 1993); Osband v. Woodford, 290 F.3d 1036, 1038 (9th Cir. 1999) 17 (en banc). A reconsideration motion should not merely present 18 arguments previously raised, or which could have been raised in a 19 previous motion. See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th 20 Cir. 1985). IV. DISCUSSION. 21 22 Defendant contends that the court erred in finding that 23 Defendant refused to be deposed and asks the court to court to 24 rehear Plaintiff’s motion for preliminary injunction, permit 25 26 27 28 3 As discussed below, a witness’ qualification of the oath does not violate Federal Rule of Civil Procedure 30(b) provided the witness expresses that she is impressed with the duty to tell the truth and understands that she can be prosecuted for perjury for failure to do so. See Gordon v. Idaho, 778 F.2d 1397, 1400 (9th Cir. 1985). 6 1 Defendant to testify at the hearing, and reconsider its decision to 2 grant Plaintiff’s motion.4 Defendant assails the court’s statement 3 during the October 18 hearing that “the law requires an unqualified 4 acknowledgment to tell the truth.” 5 Defendant’s argument is that Plaintiff was within his rights to 6 offer his unique qualifications to the oath. (Doc. 112 at 2). The crux of 7 Defendant did not offer a written declaration or testimony in 8 opposition to Plaintiff’s motion for preliminary injunction until 9 after the court ruled at the hearing that his conduct at the 10 deposition precluded the court from considering his testimony. 11 Pursuant to the court’s October 1, 2010 minute order, Defendant’s 12 opposition to Plaintiff’s motion for preliminary injunction was due 13 on October 8, 2010. (Doc. 53). 14 opposition to Plaintiff’s motion on October 8 but did not submit 15 his declaration until November 30, 2010, almost eight weeks after 16 his 17 Plaintiff’s motion. 18 belated attempt to bolster his opposition with a post-hearing 19 declaration. Even assuming arguendo that there is a good faith 20 justification for 21 declaration, Defendant’s declaration is properly excluded pursuant 22 to the Federal Rules of Civil Procedure. opposition was due and Defendant submitted a timely six weeks after the hearing on Defendant offers no explination for his Defendant’s delay in submitting his sworn 23 24 4 25 26 27 28 Defendant also complains that the court erred in issuing a tentative ruling “without consideration” of Defendant’s testimony. This complaint is moot in light of the written decision issued concurrently with this order. The court notes that Defendant’s argument regarding the court’s tentative decision entails an affirmative misrepresentation. As discussed above, at the time the court issued its tentative decision on October 18, Defendant had not submitted a declaration and had not attempted to offer testimony in opposition to the motion for preliminary injunction. 7 1 A. 2 The Oath Requirement Rule 30(b)(5)(iv) requires deponents to give an oath or 3 affirmation at the beginning of all depositions. Fed. R. Civ. P. 4 (30)(b)(5)(iv). 5 impressed with the duty to tell the truth and understands that he 6 or she can be prosecuted for perjury for failure to do so satisfies 7 the requirement for an oath or affirmation under [Federal Rule of 8 Civil Procedure] 30(c).” 9 States v. Bueno-Vargas, 383 F.3d 1104, 1111 (9th Cir. 2004) ("true 10 test" for whether a declaration is made under oath or affirmation 11 "is whether the procedures followed were such that perjury could be 12 charged therein if any material allegation contained therein is 13 false.").5 14 comply with Rule 30(c)’s oath requirement, Gordon, 778 F.2d at 1400 15 (citing Fed. R. Evid. 603), “[a] cleverly worded oath that creates 16 loopholes for falsehood or attempts to create a safe harbor for 17 perjury” is unacceptable, see United States v. Ward, 989 F.2d 1015, 18 1019 (9th Cir. 1992).6 19 game playing cannot be countenanced in times of crowded dockets and 20 court case overload. 21 /// “Any statement indicating that the deponent is Gordon, 778 F.2d at 1400; accord United Although no special verbal formula is required to Simply stated, “clever” qualifications and 22 23 24 25 26 27 28 5 Although Bueno-Vargas concerned the oath requirement applicable to warrant applications under the Fourth Amendment, the Court relied in part on cases interpreting Federal Rule of Evidence 603, including United States v. Ward, discussed in footnote 2 below. 383 F.3d at 1111 n.9. 6 Ward, a criminal case, concerned a defendant’s desire to deviate from the standard witness oath at trial. Id. at 1017. The Ward Court discussed Gordon and Rule 603 and concluded that “[a]ll that the common law requires is a form or statement which impresses upon the mind and conscience of a witness the necessity for telling the truth.” Id. (citing United States v. Looper, 419 F.2d 1405, 1407 (4th Cir. 1969)). 8 1 Defendant’s statements and conduct in response to the 2 reporter’s repeated good faith attempts to place him under oath 3 evidences that Defendant was not impressed with the unqualified 4 duty to tell the truth and did not reflect his understanding that 5 he could be prosecuted for perjury for failure to do so. 6 contrary, Defendant’s conduct was evasive, evinced gamesmanship, 7 and created the appearance that Defendant was attempting to create 8 a potential safe harbor for perjury by implicitly threatening to 9 impose “liability” on the reporter who was performing a statutory To the 10 duty for which the reporter is licensed by the State.7 11 reporter first attempted to administer the oath to Defendant, 12 Defendant 13 threatening to impose commercial liability on the reporter and 14 asking for the reporter’s name and employer, which is evidenced on 15 a business card and the deposition transcript itself. (Doc. 99, 16 Ex. doubt 17 Defendant’s counsel as to whether Defendant had taken the oath, 18 Defendant’s counsel stated: “your belief is irrelevant to me,” a 19 statement that was vexatious and itself irrelevant.8 B at sought 6). to When avoid giving Plaintiff’s an affirmative counsel When the response expressed by to (Id. at 7). 20 In response to the reporter’s second attempt to administer the 21 oath, Defendant replied: “without prejudice and a full reservation 22 of rights, I do.” 23 understand what these qualifications meant by asking for guidance 24 from Defendant’s counsel reflecting what Defendant meant by the (Id. at 7-8). Plaintiff’s counsel sought to 25 26 27 7 It is impossible to ascertain Defendant’s intent as to his duty to truthfully testify. 8 28 In reported conduct, Defendant’s counsel Mr. Schulte has repeatedly been rude, uncooperative, and unprofessional in his dealings with Plaintiff’s counsel. 9 1 phrase “without prejudice,” noting that “either [Defendant is] 2 under oath or he’s not.” 3 responded: “I agree. He’s either under oath or he’s not.” (Id.).9 4 Plaintiff’s counsel then sought to ensure that Plaintiff understood 5 the solemnity and purpose of the oath: (Id. at 8). Defendant’s counsel Mr. Hanlon: Mr. Wilkins, do you understand that you’re under oath? 6 7 Defendant: Please define your term “understand.” 8 Mr. Hanlon: Are you under oath to tell the truth, the whole truth, and nothing but the truth in this deposition? 9 10 Defendant: Okay. I am not Mr. Wilkins. I’m Thomas Alexander Wilkins. Offer right back to you. As far as truth, the whole truth, and nothing but the truth, I’m stating, without prejudice and a full reservation of rights, I do. 11 12 13 14 Plaintiff’s counsel indicated he was not comfortable with 15 Defendant’s ambiguous response and sought guidance from Defendant’s 16 counsel as to the meaning of Defendant’s statements. 17 counsel then stated: “I’m not uncomfortable proceeding today. 18 Whether you proceed or not is up to you.” Defendant’s (Doc. 99, Ex. B at 9). 19 Defendant now contends that his qualifications to the oath 20 were intended to “protect and preserve any rights he may have in 21 his intellectual property” and to prevent “misuse” of his 22 23 24 25 26 27 28 9 Despite repeated discussions between Plaintiff’s counsel and Defendant’s counsel about Defendant’s responses to the oath, Defendant’s counsel conspicuously refused to state that he believed Defendant was under oath while at the deposition. If, as urged at oral argument and in the November 30 brief, Defendant’s counsel truly believed that his client had been placed under oath at the deposition, there is no good faith explanation for counsel’s refusal to express his belief to Plaintiff’s counsel. Nor is there any good faith explanation for counsel’s refusal to involve a magistrate judge where his client’s statements raised the issue and while all parties were present in the courthouse for Defendant’s deposition. 10 (November 30 Brief at 3).10 1 testimony. 2 counsel offer any reason why this explanation was not given to 3 Plaintiff’s counsel during the deposition. 4 counsel acting in good faith had a duty to advise Defendant that 5 taking 6 qualification would not have jeopardized his intellectual property 7 rights or authorized any party to lawfully use his sworn testimony 8 for improper purposes. 9 The the standard conduct of witness’ oath Defendant and Neither Defendant nor his Further, competent without his his counsel purported expressly 10 communicated that neither was impressed with the solemnity and 11 importance of the oath. 12 responses to the oath was exacerbated by Defendant’s assertion of 13 a purported distinction between “Thomas Wilkins,” “Mr. Wilkins,” 14 and “Thomas Alexander Wilkins.” 15 Defendant introduced himself as “Thomas Alexander Wilkins on behalf 16 of Thomas Wilkins.” 17 refused to be addressed as Mr. Wilkins. 18 Defendant feigned ignorance as to who Plaintiff’s counsel was 19 addressing when counsel asked the question: “Mr. Wilkins, do you The uncertainty created by Defendant’s At the outset of the deposition, (Doc. 99, Ex. B at 5)(emphasis added). He Later in the deposition, 20 21 22 23 24 25 26 27 28 10 The record contains evidence of an alternative motive for the conduct of Defendant and his counsel. Prior to appearing at the deposition on October 12, Defendant’s counsel foreshadowed Defendant’s refusal to be meaningfully deposed. First, on October 6, 2010, Defendant’s counsel stated in an email that Defendant would not proceed with his deposition unless Plaintiff’s counsel, Mr. Hanlon, agreed to be deposed. (Doc. 100, Ex. I). On October 8, 2010, Defendant’s counsel sent an email which stated “In light of the Court’s Decision on the MTD, you have no complaint and a moot injunction. I cannot imagine one single question which will be within the scope of a dismissed complaint. I expect, if you proceed, that your deposition transcript will consist of two attorneys arguing about scope, and nothing from Mr. Wilkins.” (Doc. 100, Ex. T). Later on October 8, Defendant’s counsel sent another email stating “Mr. Wilkins will be there on the 12th if you insist. If you can ask a question that is within the scope of a dismissed complaint and a moot preliminary injunction, he will answer...I do not believe a single question will get answered.” (Doc. 100, Ex. V). 11 1 understand that you’re under oath?” 2 Defendant’s refusal to take the oath as administered, refusal to 3 explain 4 participate in seeking the assistance of the magistrate judge, and 5 attempt to suggest that his identity was in question, Defendant’s 6 conduct at the deposition was vexations, multiplied and delayed the 7 proceedings, 8 intended to offer his testimony under penalty of perjury that it 9 was reasonable for Plaintiff’s counsel to interpret the totality of his qualifications and created to (Id. at 7, 8). taking sufficient 10 B. doubt oath, refusal whether to Defendant the conduct as a refusal to be sworn.11 11 the In light of Cases Provided by Defendant 12 Defendant cites Gordon, 778 F.2d at 1400; Looper, 419 F.2d at 13 1407; Girouard v. United States, 328 U.S. 61 (1946); and In re 14 Thiesen, 141 Cal. App. 2d 274 (Cal. Ct. App. 1956) as support for 15 his contention that the court erred in construing his conduct as a 16 refusal to be sworn. 17 oaths in the Ninth Circuit, and Looper was cited as authority for 18 the court’s holding in Gordon. 19 Theisen concern naturalization oaths and are not relevant here.12 20 Gordon provides the applicable standard for 778 F.2d at 1400. Girouard and In Gordon, a pro se plaintiff refused to raise his right hand 21 11 22 23 24 25 26 27 28 The court does not hold that a deponent may not qualify the oath with phrases such as those used by Defendant, so long as it is clear–- either from all the circumstances or from explanation offered by the deponent or counsel-- that the deponent intends to offer testimony subject to penalty to perjury. 12 Defendant cites these cases for the following propositions, respectively: (1)“courts have traditionally considered the intent of the person changing the oath;” and (2) “Courts are not desirous of implying unstated language into legislative language where rights are concerned.” (November 30 Brief at 4). With respect to the first proposition, the record is insufficient to ascertain Defendant’s intent at the time of his deposition because of the failure of Defendant and his counsel to explain the meaning of Defendant’s qualification. With respect to the second proposition, to the extent Defendant advances Thiesen as support for the notion that it was necessary for Defendant to qualify his oath as he did, the case is not helpful. 12 1 and either “swear” or “affirm” at his deposition because doing so 2 violated his sincerely-held religious beliefs. 3 The Ninth Circuit held that, because the First Amendment required 4 the district court to employ the least restrictive means to place 5 the plaintiff under oath, it was error for the district court to 6 impose the severe sanction of dismissing plaintiff’s case due to 7 the plaintiff’s refusal to use the specific words “swear” or 8 “affirm.” 778 F.2d at 1401. Id. 9 In Looper, a criminal defendant raised religious objections to 10 the district court’s insistence that he place his hand on the bible 11 and appeal to god. 12 to comply with the district court’s directive, the court precluded 13 the defendant from testifying. 14 granted the defendant a new trial, holding: 15 16 17 419 F.2d at 1406. After the defendant refused The Fourth Circuit Court of Appeal The common law, as made applicable by Rule 26, requires neither an appeal to God nor the raising of a hand as a prerequisite to a valid oath. All that the common law requires is a form or statement which impresses upon the mind and conscience of a witness the necessity for telling the truth. 18 19 Id. at 1407 (citation omitted). 20 Defendant’s refusal to take the oath as administered was not 21 based on the revered constitutional interests at issue in Gordon 22 and Looper. Rather, Defendant’s qualifications to the oath and 23 threats commercial 24 purportedly intended to “protect and preserve any rights he may 25 have in his intellectual property” and to prevent “misuse” of his 26 testimony. 27 witnesses in Gordon and Looper, Defendant and his counsel refused 28 to explain the purpose and meaning of Defendant’s qualification to of liability against (November 30 Brief at 3). 13 the reporter were Critically, unlike the 1 the oath and whether Defendant intended to tell the truth as 2 required by law. 3 conduct 4 Defendant intended to offer testimony subject to penalty of perjury 5 that Defendant’s oath was deficient. 6 not be considered for purposes of resolving Plaintiff’s motion for 7 preliminary injunction.13 8 is DENIED. 9 IT IS SO ORDERED. 10 Dated: hkh80h at his Taken as a whole, Defendant’s statements and deposition January 20, 2011 created such doubt as to whether Defendant’s declaration will Defendant’s motion for reconsideration /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Defendant’s November 30 brief asks that Defendant be afforded an opportunity to testify at trial. Provided Defendant is found to comply with the Federal Rules of Civil Procedure’s obligations, there has been no suggestion Defendant will be precluded from testifying at trial. Plaintiff has referred to the pejorative and unprofessional conduct of Defendant’s counsel. Such mattes should be addressed by a noticed motion or addressed to the State Bar. 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
