Appistry Inc. v. Inc et al, No. 2:2015cv01416 - Document 56 (W.D. Wash. 2016)

Court Description: ORDER granting defendants' 36 Motion to Dismiss by Judge Richard A Jones.(RS)
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Appistry Inc. v. Inc et al Doc. 56 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 APPISTRY, INC., Plaintiff, 10 12 ORDER v. 11 CASE NO. C15-1416RAJ AMAZON.COM, INC., et al., Defendants. 13 14 I. INTRODUCTION This matter comes before the court on Defendants, Inc. and Amazon 15 16 Web Services, Inc.’s (collectively “Amazon” or “Defendants”) Motion to Dismiss for 17 Invalidity Under 35 U.S.C. § 101 on the grounds that the two patents asserted by Plaintiff 18 Appistry, Inc. 1 (“Appistry” or “Plaintiff”) cover ineligible subject matter. See Dkt. # 36. 19 Having considered the Parties’ arguments, the Court hereby GRANTS Amazon’s 20 Motion. II. BACKGROUND 21 This case concerns U.S. Patent Nos. 8,682,959 and 9,049,267 (the “‘959 Patent” 22 23 and “‘267 Patent,” respectively). The ‘959 Patent is entitled “System and Method for 24 Fault Tolerant Processing of Information Via Networked Computers Including Request 25 Handlers, Process Handlers, and Task Handlers.” See Compl. Ex. 1 (‘959 Patent). The 26 ‘267 Patent is entitled “System and Method for Processing Information Via Networked 27 1 28 While this Motion was pending, Appistry, LLC substituted as Plaintiff. See Dkt. # 47. ORDER – 1 1 Computers Including Request Handlers, Process Handlers, and Task Handlers.” See id. 2 Ex. 2 (‘267 Patent). Both patents are child patents of U.S. Patent Nos. 8,200,746 and 3 8,341,209 (the “‘746 Patent” and “‘209 Patent,” respectively). See ‘959 Patent at 1; ‘267 4 Patent at 1. The ‘746 and ‘209 Patents have since been held to be invalid under 35 5 U.S.C. § 101. See Appistry, Inc. v., Inc. (“Appistry I”), No. C15-311 MJP, 6 2015 WL 4210890, at *5 (W.D. Wash. July 9, 2015). 7 The ‘959 and ‘267 Patents have the same inventors, figures, and “Detailed 8 Descriptions” as the ‘746 and ‘209 Patents. Compare ‘959 Patent & ‘267 Patent with 9 Case No. C15-311MJP, Dkt. # 1-1 (‘746 Patent) & Dkt. # 1-2 (‘209 Patent). Generally, 10 all four patents relate to using “[a] hive of computing machines . . . to process 11 information.” See ‘959 Patent at 8:32-33. To do so, the claimed inventions use a system 12 of “a plurality of networked computers” to “process[] a plurality of processing jobs in a 13 distributed manner.” See ‘959 Patent at 31:30-31; ‘267 Patent at 28:8-9. To do so, the 14 claimed systems enlist “a request handler, a plurality of process handlers, and a plurality 15 of task handlers.” See ‘959 Patent at 31:32-34; ‘267 Patent at 28:10-12. III. LEGAL STANDARD 16 17 Fed. R. Civ. P. 12(b)(6) permits a court to dismiss a complaint for failure to state a 18 claim. The rule requires the court to assume the truth of the complaint’s factual 19 allegations and credit all reasonable inferences arising from those allegations. Sanders v. 20 Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not accept as true conclusory 21 allegations that are contradicted by documents referred to in the complaint.” Manzarek v. 22 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must 23 point to factual allegations that “state a claim to relief that is plausible on its face.” Bell 24 Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint 25 avoids dismissal if there is “any set of facts consistent with the allegations in the 26 complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 27 662, 679 (2009). 28 ORDER – 2 A court typically cannot consider evidence beyond the four corners of the 1 2 complaint, although it may rely on a document to which the complaint refers if the 3 document is central to the party’s claims and its authenticity is not in question. Marder v. 4 Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may also consider evidence subject to 5 judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). IV. ANALYSIS 6 Before the Court proceeds to whether the ‘267 and 959 Patents are directed to 7 8 patent-eligible subject matter, it is necessary to determine whether claim 29 of the ‘959 9 Patent and claim 1 of the ‘267 Patent are representative. Plaintiff does not agree that the 10 claims are representative. See Dkt. # 38 at 12. Citing a few minute details between these 11 claims and those at issue in Appistry I, Plaintiff argues that all claims in the ‘959 and 12 ‘267 Patents must be independently reviewed. But Plaintiff’s own comparison of the 13 independent claims in the ‘959 and ‘267 Patents reveals just how similar (and 14 representative) claim 29 and claim 1 are. See Dkt. # 39-1. For example, the claims use 15 practically identical language – including, crucially, the “request handlers,” “process 16 handlers,” and “task handlers” utilized to distribute work. The Court finds that the claims 17 are representative 2 and will proceed on that basis. 3 Section 101 of the Patent Act defines patent-eligible subject matter, providing that 18 19 “[w]hoever invents or discovers any new and useful process, machine, manufacture, or 20 2 21 22 23 24 25 Certain other independent claims do contain other claim elements. For example, claims 1, 11, 27, and 28 of the ‘959 Patent add the limitation that if a fault exists, the process handler or request handler will initiate a recovery procedure. See ‘959 Patent at 28:6-11, 29:10-16, 30:6167, 31:21-27. Similarly, claim 123 of the ‘267 Patent incorporates the limitation that process handlers “are configured to volunteer for servicing the processing jobs based on their availabilities.” See ‘267 Patent at 39:58-60. The Court finds that these differences do not make claim 29 of the ‘959 Patent or claim 1 of the ‘267 Patent any less representative of the other claims. Ultimately, all of the independent claims cover systems using the different “handlers” to process information and tasks. 3 26 27 28 The Federal Circuit has already addressed this issue, and held that a court need not address every asserted claim if the claims of the asserted patents “are substantially similar in that they address little more than the same abstract idea” and the selected claims are representative. See Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1348 (Fed. Cir. 2014). ORDER – 3 1 composition of matter, or any new and useful improvement thereof, may obtain a patent 2 therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. The 3 Supreme Court has, however, recognized that laws of nature, natural phenomena, and 4 abstract ideas are not patentable. Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 5 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 6 2116 (2013)). The purpose of these exceptions is to protect the “basic tools of scientific 7 and technological work.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. 8 Ct. 1289, 1293 (2012). However, courts must “tread carefully in construing this 9 exclusionary principle lest it swallow all of patent law.” Alice, 134 S. Ct. at 2354. In 10 “distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas 11 from those that claim patent-eligible applications of those concepts,” courts apply a two- 12 part test. Alice, 134 S. Ct. at 2355. Courts must first “determine whether the claims at 13 issue are directed to one of those patent-ineligible concepts.” Id. If so, then courts must 14 examine “[w]hat else is there in the claims before [them]” by considering “the elements 15 of each claim both individually and ‘as an ordered combination’ to determine whether the 16 additional elements ‘transform the nature of the claim’ into a patent-eligible application.” 17 Id. The Court has characterized this search as one “‘inventive concept’ — i.e., an 18 element or combination of elements that is ‘sufficient to ensure that the patent in practice 19 amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. 20 (quoting Mayo, 132 S. Ct. at 1294). 21 The first step in the Court’s analysis is to “determine whether the claims at issue 22 are directed to one of those patent-ineligible concepts.” Alice, 134 S. Ct. at 2355. Some 23 courts have characterized the first step as distilling “the gist of the claim.” See Open Text 24 S.A. v. Box, Inc., 78 F. Supp. 3d 1043, 1046 (N.D. Cal. 2015) (citing cases). The Appistry 25 I court confronted claims virtually identical to those asserted here and found that they 26 were directed to “the abstract idea of distributed processing akin to the military’s 27 28 ORDER – 4 1 command and control system.” See 2015 WL 4210890 at *2. The Court finds that the 2 claims in the ‘959 and ‘267 Patents are also directed to that abstract idea. 3 As a preliminary matter, Plaintiff simply does not explain how the claims in these 4 patents are any different from those asserted in Appistry I. That is not surprising. As 5 discussed, supra, the patents share the same terminology and central idea: that of 6 distributing tasks through a hierarchical structure. 7 To be sure, there are a few differences between the claims in the ‘959 and ‘267 8 Patents and those in the ‘209 and ‘746 Patents. However, those differences are minor. 9 For example, the ‘959 and ‘267 Patents require that the “process handlers” and “task 10 handlers” be resident on “different networked computers.” See ‘959 Patent at 31:34-37; 11 ‘267 Patent at 28:12-15 (“the process handlers being resident on a plurality of different 12 networked computers, the task handlers being resident on a plurality of different 13 networked computers.”). And the ‘209 and ‘746 Patents require no such thing. See ‘746 14 Patent at 26:53-61 (“wherein a plurality of the hive engines within the at least one 15 territory are configured to perform the processing job in a distributed manner such that 16 the processing tasks of the processing job are distributed to a plurality of hive engines 17 within the at least one territory for execution thereby”). 18 The ‘959 and ‘267 Patents also differ in that they include the claim element “the 19 processing jobs having a plurality of associated process flows, the process flows 20 including . . . (2) logic configured to define a relationship between the processing tasks of 21 the same process flow.” See ‘959 Patent at 31:37-41; ‘267 Patent at 28:15-19. But that 22 element appears to simply provide for a sequence of delegating tasks. See ‘959 Patent at 23 24:26-28 (“One embodiment uses a logical hierarchy of hive engines for delegation of 24 performing administrative and/or other hive related tasks”). 25 Finally, as to the claim elements calling for receiving, storage, or communicating 26 data, those are “undisputably well-known” and do not distinguish the claims of the ‘959 27 and ‘267 Patents from those found to be directed to abstract ideas. See Content 28 ORDER – 5 1 Extraction, 776 F.3d at 1347 (Fed. Cir. 2014); buySAFE, Inc. v. Google, Inc., 765 F.3d 2 1350, 1355 (Fed. Cir. 2014) (“That a computer receives and sends the information over a 3 network—with no further specification—is not even arguably inventive.”); see also 4 Encyclopaedia Britannica, Inc. v. Dickstein Shapiro LLP, 128 F. Supp. 3d 103, 112-13 5 (D.D.C. 2015) (collecting cases and holding that “[t]he abstract concept of collecting, 6 storing, and retrieving data simply is not patent-eligible”). Still, Plaintiff contends that the claims here are not directed to abstract ideas, but 7 8 instead to a new computer (or, more specifically, a more efficiently and reliably 9 distributed configuration of multiple computers), resulting in better performance. See 10 Dkt. # 38 at 15. There is at least some basis for this argument. The Federal Circuit held 11 that where a “claimed solution is necessarily rooted in computer technology in order to 12 overcome a problem specifically arising in the realm of computer networks,” it is not 13 necessarily directed to an abstract idea. See DDR Holdings, LLC v., L.P., 773 14 F.3d 1245, 1257 (Fed. Cir. 2014). But the Court disagrees with Plaintiff’s application here. Plaintiff relies heavily 15 16 on the specification of the ‘959 Patent to show that the patents are directed to such a new 17 computer. See id. at 16. That same portion of the specification was first presented – 18 verbatim – in the ‘746 and ‘209 Patents, which were of course invalidated in Appistry I. 19 See ‘746 Patent at 5:11-15; ‘209 Patent at 5:15-19. Even beyond that, however, it is clear that the networked computers utilized in the 20 21 ‘959 and ‘267 Patents are merely generic computers 4 tasked with performing generic 22 functions. The specification itself clarifies that “[t]he term ‘computer’ is used generically 23 4 24 25 26 27 28 The Court also disagrees with Plaintiff’s contention that the machine or transformation test is helpful in this case. See Dkt. # 38 at 23-24. “[T]hat test may be a useful and important clue or investigative clue” in determining “whether an invention is patent-eligible.” See Bilski, 561 U.S. at 594. However, even in the context of this test, “after Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patenteligible.” DDR Holdings, 773 F.3d at 1256 (citing Alice, 134 S. Ct. at 2358). “The bare fact that a computer exists in the physical rather than purely conceptual realm ‘is beside the point.’” Id. Similarly, here, the fact that the inventions here necessarily apply to generic computers is irrelevant because there simply is no inventive concept embodied within them. ORDER – 6 1 herein to describe any number of computers, including, but not limited to personal 2 computers, embedded processing elements and systems . . . .” See ‘959 Patent at 8:47-51; 3 ‘267 Patent at 9:1-5. Nor are the claimed systems or methods limited to a particular type 4 of process or task – the patents specify that “[t]he terms ‘task’ and process are used 5 generically herein to describe any type of running program, including, but not limited to a 6 computer process, task, thread, executing application, operating system, user process, 7 device driver, native code, machine or other language, etc. . . .” See ‘959 Patent at 8:57- 8 66; ‘267 Patent at 9:11-20. In other words, the claims are not directed to solving a 9 technological problem or solve a challenge particular to a specific environment, nor do 10 they contemplate some “new” type of computer. 11 The Court also rejects Plaintiff’s argument that the claims here are not directed to 12 abstract ideas because they do not claim solutions to mathematical equations or business 13 problems. See Dkt. # 38 at 17-18. The Appistry I court already rejected this argument for 14 reasons this Court also finds convincing. Simply put, “the operative question is whether 15 or not the patent claims are directed toward an abstract idea, and not whether or not the 16 invention could be classified into one of Plaintiff’s three categories.” See Appistry I, 17 2015 WL 4210890 at *2 (citing Alice, 134 S. Ct. at 2356-57). 18 Plaintiff also contends that the claims here are not directed to abstract ideas 19 because they cannot be performed by humans. See Dkt. # 38 at 17-18. But the fact that 20 inventions here are implemented on computers or only exist in the computing realm does 21 not save them. See Bancorp Servs., L.L.C. v .Sun Life Assurance Co. of Canada (U.S.), 22 687 F.3d 1266, 1279 (Fed. Cir. 2012) (citing SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 23 F.3d 1319, 1332 (Fed. Cir. 2010)) (“Bancorp seeks to analogize its case to SiRF, 24 contending that a computer ‘plays a significant part’ in its claims because they require 25 ‘precise and repetitive calculation.’ . . . That misses the point.”); see also Cyberfone Sys., 26 LLC v. CNN Interactive Grp., Inc., 558 F. App’x 988, 992 (Fed. Cir. 2014) (citing Bilski 27 28 ORDER – 7 1 v. Kappos, 561 U.S. 593, 610 (2010)) (“the category of patent-ineligible abstract ideas is 2 not limited to methods that can be performed in the human mind.”). 3 Having determined that the ‘959 and ‘267 Patents’ claims are “directed to” an 4 abstract idea, the Court must next determine if its claims are nevertheless patentable 5 because they contain an “inventive concept” sufficient to “transform the claimed abstract 6 idea into a patent-eligible application.” Alice, 134 S. Ct. at 2357. To do so, courts are 7 instructed to consider the elements of the claims – both individually and in an ordered 8 combination – to assess whether the elements transform the nature of the claims into a 9 patent-eligible inventive concept. See Content Extraction, 776 F.3d at 1347. 10 The Court must disregard “‘well-understood, routine, conventional activit[ies]’ 11 previously known to the industry” at this step of the analysis. See Alice, 134 S. Ct. at 12 2359 (quoting Mayo, 132 S. Ct. at 1299) (alterations in original). “A conventional 13 element may be one that is ubiquitous in the field, insignificant or obvious.” Cal. Inst. of 14 Tech. v. Hughes Commc’ns Inc., 59 F. Supp. 3d 974, 992 (C.D. Cal. 2014) (citing Mayo, 15 132 S. Ct. at 1298). Such a “conventional element may also be a necessary step, which a 16 person or device must perform in order to implement the abstract idea.” Id. Although 17 “conventional elements and prior art may overlap,” “conventional elements do not 18 constitute everything in prior art.” Id. 19 20 The Court finds that whether viewed individually or as an ordered combination, the claims of the ‘959 and ‘267 Patents do not contain an inventive concept. 21 As discussed, supra, the claims here do little more than task generic computers 22 with generic functions. Even the central idea of the claims – the use of a “network” of 23 computers – uses a generic network. See ‘959 Patent at 9:12-20 (“the terms ‘network’ 24 and ‘communications mechanism’ are used generically herein to describe one or more 25 networks, communications mediums or communications systems, including, but not 26 limited to the Internet, private or public telephone, cellular, wireless, satellite, cable, local 27 area, metropolitan area and/or wide area networks . . . etc.”); ‘267 Patent at 9:33-41. 28 ORDER – 8 1 Simply put, the claims here simply provide for completing a task or process by 2 distributing it downward via a hierarchical series of “handlers” located on generic 3 computers spread throughout a generic network. There is nothing inventive about that. 4 But Plaintiff holds fast to its contention that as an ordered whole, the claims in the 5 ‘959 and ‘267 Patents improve computer function by allowing increased “availability, 6 scalability, performance, and reliability.” See Dkt. # 38 at 23. That may be possible, but 7 simply limiting this abstract idea of distributed processing to the networked computer 8 field does not alter the analysis or render the idea any more inventive than before. See 9 buySAFE, Inc., 765 F.3d at 1354 (quoting Alice, 134 S. Ct. at 2358) (“Neither ‘attempting 10 to limit the use of [the idea] to a particular technological environment’ nor a ‘wholly 11 generic computer implementation’ is sufficient” to add an inventive concept”). 12 In fact, the Appistry I court addressed the same argument – that the inventions 13 were technological improvements to distributed computing because they permitted 14 improved speed, efficiency, and reliability – and rejected it. See 2015 WL 4210890 at 15 *4. The court found that “the actual systems and methods claimed-through which 16 efficiency and reliability are achieved-are well understood, routine, and purely 17 conventional, and do not supply an inventive concept separate from the underlying 18 abstract idea.” Id. That analysis remains true for the ‘959 and ‘267 Patents. 19 The system claimed by the ‘267 Patent, for example, uses several networked 20 computers separated into tiered “handlers,” including a “request handler,” “process 21 handlers,” and “task handlers.” See ‘267 Patent at 28:7-19. The processing jobs handled 22 by this system have discrete tasks, as well as a sequence for processing those tasks. See 23 id. at 28:15-19. The request handler is instructed to receive a job request, store 24 information about that job, and then to communicate it to process handlers. See id. at 25 28:20-24. The process handlers are instructed to analyze information to determine 26 whether any tasks remain to be done and the task handlers are programmed to perform 27 processing tasks. See ‘267 Patent at 28:25-41. 28 ORDER – 9 None of this is inventive. Receiving, storing, and sending task data are, of course, 1 2 “‘well-understood, routine, conventional activit[ies]’ previously known to the industry.” 3 See OIP Techs., Inc. v., Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (quoting 4 Alice, 134 S. Ct. at 2359)); see also buySAFE, Inc., 765 F.3d at 1355 (“That a computer 5 receives and sends the information over a network—with no further specification—is not 6 even arguably inventive.”). The other tasks delegated to the process handlers and task 7 handlers do little more than simply check if any tasks remain to be done (see ‘267 Patent 8 at 28:25-39) or simply (and without elaboration) do the assigned task (see ‘267 Patent at 9 28:40-41). See Hewlett Packard Co. v. ServiceNow, Inc., No. 14-CV-00570-BLF, 2015 10 WL 1133244, at *10 (N.D. Cal. Mar. 10, 2015) (finding that claim limitation that 11 instructed that “merely instructs that the workflow be verified” did not add an inventive 12 concept). These are not inventive and do little more than simply state the abstract idea – 13 distributed processing through a hierarchical, military-like command structure – and add 14 the words “apply it with a computer.” See Alice, 134 S. Ct. at 2358. 15 Finally, the Court addresses several procedural issues that Plaintiff raises. 5 16 First, as Plaintiff notes, its Complaint includes the declaration of Dr. Matthew 17 Green (or other allegations regarding the same topics), who opines that the claims of the 18 ‘959 and ‘267 Patents cover “a new and novel mechanism, system, and/or method over 19 the prior art for distributed computing.” See Dkt. # 1-3 (Green Decl.) ¶¶ 13-16. Plaintiff 20 argues that the Court must accept these conclusions as true. See Dkt. # 38 at 19-20. That 21 is nonsense. See Iqbal, 556 U.S. at 678-79 (“the tenet that a court must accept as true all 22 of the allegations contained in a complaint is inapplicable to legal conclusions”); Adams 23 v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) (citing Sprewell v. Golden State 24 25 26 27 28 5 Plaintiff also argues that the inventions do not preempt the entire abstract idea. See Dkt. # 38 at 24-25. Even if that position is true, it is irrelevant. See Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (“While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.”). ORDER – 10 1 Warriors, 266 F.3d 979, 988 (9th Cir. 2001)) (“conclusory allegations of law and 2 unwarranted inferences are insufficient to defeat a motion to dismiss”). 6 Second, Plaintiff argues that a “clear and convincing” standard applies to the § 101 3 4 inquiry. See Dkt. # 38 at 8-9. That is not necessarily incorrect. See Netflix, Inc. v. Rovi 5 Corp., 114 F. Supp. 3d 927, 938 (N.D. Cal. 2015) (citing Pfizer, Inc. v. Apotex, Inc., 480 6 F.3d 1348, 1359 (Fed. Cir. 2007)). And many courts have recognized a split in authority 7 on this question. See Papst Licensing GmbH & Co. KG v. Xilinx Inc., No. 16-CV-00925- 8 LHK, 2016 WL 3196657, at *7 (N.D. Cal. June 9, 2016) (collecting cases). But in this 9 Court’s view, the standard is irrelevant as the outcome would be the same under any 10 standard. Under either standard, Defendants have clearly shown that the claims of the 11 ‘959 and ‘267 Patents are directed to an abstract idea. 12 /// 13 /// 14 /// 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Plaintiff’s position is absurd. Requiring the Court to accept such facts or legal conclusions (even in the form of an early expert declaration) would permit any plaintiff to circumvent the § 101 inquiry on an early motion to dismiss or motion for judgment on the pleadings simply by including a few lines attesting to the novelty of the invention. ORDER – 11 1 Finally, Plaintiff suggests that claim construction is necessary before the Court can 2 decide the instant Motion. See Dkt. # 38 at 11. The Court disagrees. Federal Circuit 3 precedent clearly provides that courts may determine whether claims are directed to 4 patent-eligible subject matter at the pleading stage without conducting claim construction 5 or permitting the parties to conduct discovery. See Content Extraction, 776 F.3d at 1349 6 (citing Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 714 (Fed. Cir. 2014); Bancorp, 7 687 F.3d at 1273). V. CONCLUSION 8 9 10 For the reasons stated above, the Court GRANTS Amazon’s Motion. Dkt. # 36. Accordingly, the Court dismisses Appistry’s complaint with prejudice. 11 12 DATED this 19th day of July, 2016. 13 14 16 A 17 The Honorable Richard A. Jones United States District Judge 15 18 19 20 21 22 23 24 25 26 27 28 ORDER – 12