UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CHASE MEDICAL, L.P., 

Plaintiff, 

v. 

CHF TECHNOLOGIES, INC., and 

ENDOSCOPIC TECHNOLOGIES, INC., 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Civil Action No. 3:04-cv-02570-M 

Final Judgment 

Before the Court are two motions: Plaintiff’s Motion for Entry of Judgment on the 

Verdict, for Enhanced Damages, Attorneys’ Fees, and for Permanent Injunction, and Plaintiff’s 

Application for Attorneys’ Fees and Expenses. For the reasons set forth below, the Court awards 

Plaintiff injunctive relief, enhanced damages and attorneys’ fees (but in amounts less than what 

was sought by Plaintiff), and expenses. 

Factual Background 

This case was tried before a jury, which rendered a verdict in favor of Plaintiff Chase 

Medical, L.P., (“Chase”) and against the Defendants CHF Technologies, Inc. (“CHF”) and 

Endoscopic Technologies, Inc., (“Endoscopic Technologies”) on all issues submitted. The jury 

found willful infringement by Defendants of Claims 19 and 28 of United States Patent 6,681,773 

(the “’773 Patent”) and of Claims 1, 9, 11, 17-20, 62, 68, 70-73, and 80 of United States Patent 

6,994,093 (the “’093 Patent”). The jury also found in Plaintiff’s favor on issues of validity and 

on damages incurred by Plaintiff. 

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Enhanced Damages 

The Court concludes that Plaintiff is entitled to enhanced damages. Under 35 U.S.C. § 

284, damages may be enhanced up to three times the compensatory award. The paramount 

determination in deciding whether, and how much, to enhance damages is the egregiousness of 

Defendants’ conduct based on all the facts and circumstances.1

 The court must consider factors 

that render Defendants’ conduct more culpable, as well as factors that are mitigating or 

ameliorating. In Read Corp. v. Portec, Inc.,

2

 the Federal Circuit identified nine relevant 

considerations: (1) whether the infringer deliberately copied the ideas or design of another (the 

idea includes not only the particular elements of the patent claim but also their commercial 

embodiment, which in this case is Plaintiff’s mannequin); (2) whether the infringers, when they 

knew of the other's patent protection, investigated the scope of the patent and formed a goodfaith belief that it was invalid or that it was not infringed; (3) the infringers’ behavior as a party 

to the litigation; (4) Defendants' size and financial condition; (5) the closeness of the case; (6) the 

duration of Defendants’ misconduct; (7) remedial action by the Defendants; (8) Defendants’ 

motivation for harm; and finally, (9) whether Defendants attempted to conceal their misconduct. 

To enable appellate review, a district court is obligated to explain the basis for awarding 

enhanced damages. 

Factors one, two, six, seven and nine involve related factual questions. Substantial 

evidence adduced at trial suggests that the Defendants were aware of Plaintiff’s mannequin and 

the ‘773 and ‘093 patents, but there is no evidence of any attempt to analyze their product in 

light of the claims of the ‘773 and ‘093 patents. Defendants’ marketing materials reflect their 

awareness of the identical shaping functions performed by the Blue Egg and the mannequin. 

 

1 See Rite-Hite Corp. v. Kelley Co., 819 F.2d 1120, 1125-24 (Fed. Cir. 1987). 2

 970 F.2d 816, 826 (Fed. Cir. 1992). 

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Indeed, those materials touted the Blue Egg’s usefulness as a sizer and shaper, compared the 

mannequin and the Blue Egg’s common features, and disclosed a similar surgical technique for 

the use of both products during left ventricular reconstruction (“LVR”). The Court is of the view 

that Defendants did not have a reasonable, good faith belief that the Blue Egg would not infringe 

Plaintiff’s patents. 

Substantial evidence established Defendants’ concealment of their infringing activities. 

After Plaintiff filed suit, Defendants modified their marketing materials, removing the term 

“shaper” from the description of the Blue Egg. However, Defendants did not remedy their 

infringement by discontinuing sales or modifying the Blue Egg, so that it would not function as a 

shaper. By merely changing the description of the Blue Egg, without removing its offending 

characteristics, Defendants attempted to conceal their infringement. 

Defendants’ culpability is not diminished because of the duration of the infringement. 

Defendants continued their sales throughout the case, until the jury verdict. 

The Court’s determination to award enhanced damages is not based on Defendants’ 

litigation conduct. 

The Court lacks sufficient information to assess the fourth factor—Defendants’ financial 

condition. Although Defendants’ response to Plaintiff’s request for injunctive relief asserts, 

without contradiction, that CHF’s sole product is the Blue Egg, no other information about the 

financial condition of CHF or Endoscopic Technologies, including revenues, assets, and 

liabilities, was submitted by the parties, making it impossible to evaluate the effect of enhanced 

damages on Defendants’ operations. Hence, the fourth Read factor does not clearly support 

granting or denying Plaintiff’s request for enhanced damages. 

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The fifth factor—closeness of the case—favors enhanced damages. The jury reasonably 

and appropriately determined that Chase’s patents were valid, that Defendants infringed every 

claim of both patents, and that such infringement was willful. Defendants’ expert, Dr. Colvin, 

acknowledged the novelty and unique shaping function of the patented device. Finally, 

Defendants’ marketing materials, which initially touted the Blue Egg as a “shaper,” 

acknowledged that Defendants’ device and the patented device performed the same function. 

The eighth factor—Defendants’ motivation for harm—favors enhanced damages. 

Defendants engaged in a sales strategy to market the Blue Egg to the same relatively small group 

of specialized cardiothoracic surgeons who used Defendant’s patented device, with an intention 

to reduce Plaintiff’s market share and enhance their own. 

Based on the foregoing analysis of the Read factors, the Court concludes that the factors 

favor an award to Plaintiff of enhanced damages. However, the Court determines that double, 

rather than treble, damages are appropriate in this case. Treble damages are reserved for willful 

patent infringement that is egregious or blatant.3

 Here, although Defendants’ conduct was 

willful, the Court concludes that it was not so egregious as to warrant trebling. 

Injunctive Relief 

This Court finds that injunctive relief is appropriate because Defendants have caused, and 

will likely continue to cause, irreparable harm to the Plaintiff, for which Plaintiff has no adequate 

remedy at law. Defendants’ continued sale of infringing products in a small, highly competitive 

market comprised of approximately two-hundred cardiothoracic surgeons performing LVR in the 

 

3 See Datascope Corp. v. SMEC, Inc., 1990 WL 10345, * (D.N.J. 1990) (determining that “a fifty-percent 

enhancement of damages is appropriate here. Although SMEC's infringement was willful, it was not blatant.”); see 

also Chisum v. Brewco Sales & Mfg., 726 F.Supp. 1499 (W.D.Ky. 1989) (“The lost profits will however be doubled 

rather than tripled, since we find that Brewer's actions were willful, but not so egregious as to warrant trebling of the 

damages.”). 

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U.S. will very likely have serious, long-term consequences for Plaintiff’s market share, 

reputation, and goodwill. 

The hardship to Plaintiff resulting from Defendants’ continued infringement outweighs 

any hardship to Defendants from being required to cease sales of their infringing product. 

Defendants also fail to demonstrate any specific, negative public health consequences from 

discontinuing sales of the Blue Egg from that date, September 27, 2007, to this date. Defendants 

advised the Court that they ceased sales of the Blue Egg upon return of the jury’s verdict. 

Defendants presented no evidence of the consequence of the absence of the Blue Egg. 

Defendants submitted affidavits from cardiothoracic surgeons, dated from mid-October of 2007, 

indicating the potential for compromised surgical outcomes with the mannequin, and stating their 

preference for the Blue Egg. These affidavits, however, do not describe the probability or 

magnitude of these risks, making it impossible for the Court to conclude that there is a public 

health risk likely to result from continuing the Defendants’ decision to voluntarily remove their 

product from the market after the jury’s verdict. The Court concludes that the hardship to 

Plaintiff from Defendants’ continued infringement outweighs the public interest in the continued 

availability of the Blue Egg. Injunctive relief is thus warranted. 

Attorneys’ Fees and Expenses 

This Court determines that this is an exceptional case within the meaning of 35 U.S.C. § 

285 and awards Plaintiff its reasonable attorneys’ fees and expenses.4

 An express finding of 

willful infringement is a sufficient basis for classifying a case as “exceptional,” and indeed, when 

a trial court denies attorneys’ fees in spite of a finding of willful infringement, the court must 

 

4

 35 U.S.C. § 285 expressly authorizes recovery of attorneys’ fees. The Federal Circuit has construed attorneys’ fees 

to include expenses incurred in the prosecution of the case. See Central Soya Co., Inc. v. Geo. A. Hormel & Co., 

723 F.2d 1573, 1578 (Fed. Cir. 1983). Defendants do not contest that Plaintiff is entitled to reimbursement of the 

$155,008.57 in expenses incurred in the prosecution of this suit. 

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explain why the case is not “exceptional” within the meaning of the statute. 5 Relevant 

considerations include the closeness of the case, the tactics of counsel, the conduct of the parties, 

and any other factors that may contribute to a fair allocation of the burdens of litigation as 

between winner and loser.6

 Here, awarding Plaintiff attorneys’ fees would result in an equitable 

distribution of the burdens of litigation. The jury properly found by clear and convincing 

evidence that Defendants deliberately developed, and marketed to Plaintiff’s customers, an 

infringing product. The case was not close, with the jury reasonably finding willful infringement 

as to every claim of the ‘773 and ‘093 patents. Finally, Defendants’ conduct, including 

concealment of their infringing activities, supports allocating the financial burden of the 

litigation to the Defendants. Thus, Plaintiff is entitled to reasonable attorneys’ fees and expenses. 

The Court next determines the amount of attorneys’ fees and expenses to which Plaintiff 

is entitled. Plaintiff seeks attorneys’ fees and expenses in the amount of $1,584,762 and 

$155,008.57, respectively. Defendants solely contest Plaintiff’s attorneys’ fee request. 

The calculation of reasonable attorneys’ fees involves a two-step process.7

 First, the court 

calculates a “lodestar” fee by multiplying the reasonable number of hours spent on the case by 

the reasonable hourly rates for the participating lawyers.8

 Second, the court considers whether 

the “lodestar” should be adjusted upward or downward depending on the circumstances of the 

case under the twelve factors identified in Johnson v. Georgia Highway Express, Inc.

9

 While 

 

5 Group One, Ltd. v. Hallmark Cards, Inc., 407 F.3d 1297, 1308 (Fed. Cir. 2005). 6 S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc. et al., 781 F.2d 198, 201 (Fed. Cir. 1986). 7 See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). 8 Id. Although appeal of this Judgment lies in the Federal Circuit, the Court relies in part on Fifth Circuit precedent 

governing the determination of reasonable attorneys’ fees. See generally Int'l Rectifier Corp. v. Samsung Elecs. 

Corp., 238 Fed. Appx. 601 (Fed. Cir. 2007) (applying law of the circuit of origin of the case to determine whether 

the district court abused its discretion in setting the amount of attorneys’ fees). 

9

 488 F.2d 714, 717-19 (5th Cir. 1974). 

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Johnson set forth twelve factors,10 the Fifth Circuit has singled out four of the factors as most 

important: (1) the time and labor involved; (2) the customary fee; (3) the amount involved and 

the results obtained; and (4) the experience, reputation, and ability of counsel.11 These four 

factors are subsumed within the initial calculation of hours reasonably expended at a reasonable 

hourly rate and should not be double-counted.12 

(1) Calculation of the Lodestar

Reasonable number of hours 

Plaintiff’s Application seeks reimbursement for 5,177.5 hours expended on the litigation, 

excluding time spent on unsuccessful motions. Defendants argue that a ten percent reduction in 

the hours expended between May 2007 and September 2007 is appropriate to account for the 

“inherently duplicative efforts and inefficiencies” resulting from Plaintiff’s retention of a second 

law firm, Haynes and Boone, to assist with pretrial preparation. The Court finds that this 

reduction is appropriate. 

Haynes and Boone, LLP (“Haynes and Boone”) joined Meyertons, Hood, Kivlin, Kowert 

& Goetzel, P.C. (“Meyertons Hood”) as Plaintiff’s co-counsel in early May of 2007, 

approximately thirty-one months after Plaintiff filed suit. Haynes and Boone inevitably 

duplicated some of Meyertons Hood’s work, since Haynes and Boone’s attorneys had to 

familiarize themselves with the case history, briefs, and discovery before drafting and responding 

to discovery requests and motions. To account for Haynes and Boone’s preparatory work, a ten 

percent reduction in the hours expended between May and September of 2007 is warranted. 

 

10 The twelve factors are: (1) the time and labor required for the litigation; (2) the novelty and difficulty of the 

questions presented; (3) the skill required to perform the legal services properly; (4) the preclusion of other 

employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or 

contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the result 

obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the 

nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. 11 See Migis, 135 F.3d at 1047; Codex Corp. v. Milgo Electronic Corp., 717 F.2d 622, 631 (Fed. Cir. 1983). 12 Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092 (5th Cir. 1982). 

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Reasonable hourly rates 

Defendants acknowledge that the hourly rates charged by Plaintiff’s counsel are 

reasonable and, therefore, the Court does not address this issue. 

Lodestar 

After consideration of the Defendants’ objections and making an appropriate reduction to 

the requested hours, the Court finds that a reasonable number of hours times a reasonable hourly 

rate yields a lodestar of $1,548,062.50. 

(2) Adjustment to Lodestar Calculation

The Court next considers whether the lodestar calculation should be adjusted in light of 

the four principal Johnson factors: (1) the time and labor involved; (2) the customary fee; (3) the 

amount involved and the results obtained; and (4) the experience, reputation, and ability of 

counsel.13 Defendants do not argue that the first, second, or fourth factors warrant a downward 

adjustment. Defendants acknowledge that Plaintiff’s counsel expended substantial time and labor 

on the case, that their fees are customary for this type of litigation, and that they are capable, 

experienced, and well-regarded patent attorneys. Instead, Defendants’ objections focus on the 

third factor—Plaintiff’s degree of success. In that regard, Defendants make two principal 

arguments: (1) Plaintiff’s fee request, which is more than twice the monetary relief ultimately 

recovered, is excessive; and (2) a reduction in the fee award is warranted to account for 

Plaintiff’s partial success at trial. Defendants contend that Plaintiff recovered approximately 

forty-five percent of the total damages it sought and thus achieved limited success. Neither 

argument is persuasive. 

 

13 See Migis, 135 F.3d at 1047. 

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In assessing a party’s degree of success, the Court focuses on whether counsel’s 

expenditure of hours was justified in light of the relief obtained,14 and the relationship between 

the relief sought and the relief obtained.15 Defendant’s first argument—that the fee requested 

substantially exceeds the damages recovered—relates to the first consideration. 

In Hensley v. Eckerhart, the Supreme Court explained, “If . . . a plaintiff has achieved 

only partial or limited success, the product of hours reasonably expended on the litigation as a 

whole times a reasonable hourly rate may be an excessive amount.”16 Here, Plaintiff seeks an 

amount of attorneys’ fees roughly equivalent to two and a half times the damages awarded, 

excluding pre- and post-judgment interest. The Fifth Circuit, which has approved attorneys’ fees 

“exceed[ing] the total monetary recovery,” has not deemed a particular ratio of attorneys’ fees to 

damages as excessive per se.

17 In cases where the Fifth Circuit has concluded that the district 

court’s fee award was excessive, the fee ratio presented was significantly larger than that found 

here. In Migis v. Pearle Vision, Inc., for example, the district court awarded attorneys’ fees that 

were six and one-half times the damages awarded. There, Plaintiff also sought damages over 

twenty-six times the amount recovered.18 Concluding that “these ratios are simply too large,” the 

Fifth Circuit overturned the fee award. However, here the fee requested is only two and one-half 

times the damages recovered—a ratio well within the range suggested by Migis, and smaller than 

that approved by other district courts in this circuit.19 

 

14 Hensley v. Eckerhart, 461 U.S. 424, 438 (1983). 15 See Migis, 135 F.3d at 1047-48. 16 461 U.S. at 436 (emphasis added). 

17 Branch-Hines v. Hebert, 939 F.2d 1311, 1322 (5th Cir. 1991). 18 135 F.3d at 1047. 

19 See Lewis v. Hurst Orthodontics, PA, 292 F.Supp.2d 908 (W.D.Tex. 2003) (approving an attorney fee award of 

four times the settlement amount); Williams v. City of Balch Springs, 1999 WL 1146802 (N.D.Tex. 1999) 

(approving an attorney fee award of three times the settlement amount) (unreported); Donihoo v. Dallas Airmotive, 

Inc., 1999 WL 740692 (N.D.Tex. 1999) (approving an attorney fee award of 3.7 times the settlement award) 

(unreported). 

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Defendants’ argument is also unpersuasive because Migis is distinguishable from the case 

at bar in three significant respects. First, while the plaintiff in Migis prevailed on only one of the 

four theories of liability tried, Chase succeeded on every significant issue litigated. At trial, 

Plaintiff introduced four theories of infringement: (1) Defendants induced others literally to 

infringe the patents; (2) Defendants induced others to infringe the patents under the doctrine of 

equivalents; (3) Defendants contributed to the literal infringement of the patents; and (4) 

Defendants contributed to the infringement of the patents under the doctrine of equivalents. The 

jury determined the patents’ validity, found willful infringement of all sixteen of the claim 

limitations under each of the theories presented, and awarded Plaintiff lost profits of 

$306,669.12. The Court has further determined that Plaintiff is entitled to double damages and 

permanent injunctive relief. Viewing the entire litigation, the Court concludes that Plaintiff 

achieved nearly complete success. 

Second, the double-digit ratio of damages sought to damages awarded presented in Migis

does not exist here, as discussed in greater detail below. Third, while the plaintiff in Migis

obtained only monetary relief, Chase has obtained a permanent injunction barring Defendants 

from selling the Blue Egg. The Fifth Circuit, emphasizing that a plaintiff’s success is “not 

measured solely by monetary damages,”20 has held that whether the hours expended are 

reasonable must also be determined in light of the injunctive relief awarded.21 The injunctive 

relief awarded here, which is critical to preserve Chase’s competitive position, was a central 

objective of the litigation. Chase feared further erosion of its market share if Defendants were 

permitted to continue selling their device. Three factors exacerbated the competitive threat posed 

 

20 See Coleman v. Houston Indep. Sch. Dist., 1999 WL 1131554, *10 (5th Cir. 1999) (unpublished). 21 See Singer v. City of Waco, Tex., 324 F.3d 813, 830 (5th Cir. 2003) (“We have made clear that ‘while a low 

damages award is one factor which a district court may consider in setting the amount of attorneys’ fees, this factor 

alone should not lead the district court to reduce a fee award.”)(quoting Hollowell v. Orleans Reg’l Hosp. LLC, 217 

F.3d 379, 392 (5th Cir. 2000)). 

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by the Blue Egg. First, the market for the Blue Egg and the mannequin is small: only 200 

cardiothoracic surgeons in the U.S. are trained to perform LVR. Second, Defendants’ marketing 

plan involved deliberately targeting Chase’s clients.22 Third, Chase feared that surgeons would 

become lifelong users of whichever device they first mastered. This dynamic meant that 

continued sale of the Blue Egg threatened permanent displacement of the mannequin from the 

market. Thus, the permanent injunction awarded is a crucial element of the overall relief 

obtained by Plaintiff, and Defendants’ first asserted ground for reducing the fee award is 

unavailing. 

Defendants’ second contention— that Plaintiff’s partial success warrants a reduction in 

attorneys’ fees—is unpersuasive. Defendants argue that Plaintiff recovered approximately fortyfive percent of the damages sought. However, the jury awarded Plaintiff damages of 

$306,669.12—within the range referenced in the testimony of Plaintiff’s expert, Scott D. Hakala. 

Thus, the Court rejects Defendants’ contention that Plaintiff only achieved partial success. 

Viewing the scope of the litigation as a whole, the Court finds that Plaintiff achieved 

overwhelming success. Thus, no downward adjustment of the lodestar is warranted based on the 

Johnson factors. 

This Court, having considered the verdict of the jury and the motions and arguments of 

counsel, ORDERS, ADJUDGES, AND DECREES as follows: 

1. Claims 19 and 28 of the ‘773 Patent are valid and enforceable. 

2. Claims 1, 9, 11, 17-20, 62, 68, 70-73 and 80 of the ‘093 Patent are valid and 

enforceable. 

 

22 Pl. Ex. 46; see also Pl. Ex. 99 (Defendants’ internal documents directing sales team to “focus on the surgeons that 

were trained by Chase Medical” as their first priority). 

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3. Plaintiff shall recover from Defendants CHF and Endoscopic Technologies, 

jointly and severally, actual damages of $ 306,669.12 for lost profits caused by the infringement 

of Claims 19 and 28 of the ‘773 Patent, and Claims 1, 9, 11, 17-20, 62, 68, 70-73 and 80 of the 

‘093 Patent. The parties have stipulated the amount of prejudgment interest on such sum, 

although Defendants dispute that they are liable for prejudgment interest and any damages. 

Plaintiff shall recover prejudgment interest of $ 66,686.77. 

4. Because CHF and Endoscopic Technologies’s infringement was willful, Plaintiff 

is entitled to double damages. Accordingly, Plaintiff shall also recover from Defendants, jointly 

and severally, additional enhanced damages of $ 306,669.12 under 35 U.S.C § 284. 

5. Pursuant to 35 U.S.C. § 285, Plaintiff is entitled to the amount of $ 1,548,062.50

as reasonable attorneys’ fees and $ 155,008.57 as expenses. 

6. Chase shall also recover from Defendants CHF and Endoscopic Technologies, 

jointly and severally, post-judgment interest, computed from the date of this Judgment at the rate 

of 1.60%, compounded annually on the total amount of damages, attorneys’ fees and expenses, 

and prejudgment interest under this Final Judgment, until such Judgment is paid in full. 

7. Chase shall further recover all taxable court costs from Defendants CHF and 

Endoscopic Technologies, jointly and severally. 

8. A permanent injunction is granted as follows: 

a. Defendants CHF Technologies, Inc. and Endoscopic Technologies, Inc. and 

their officers, agents, directors, servants, representatives, distributors, sales 

staff, employees, successors and assigns, as well as those persons in active 

concert, participation or combination with them, either directly or through the 

contribution or inducement of others, are hereby enjoined and restrained 

during the respective statutory terms of the ‘773 and the ‘093 Patents from 

making or causing to be made, offering for sale or selling, distributing or 

otherwise delivering, proposing or threatening to offer, sell, distribute or 

deliver, or using, in the United States, or importing into the United States, its 

Blue Egg or the method taught using the Blue Egg, or colorable variations 

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thereof, or any other system, method, or process within the scope of Claims 19 

or 28 of the ‘773 Patent or Claims 1, 9, 11, 17-20, 62, 68, 70-73, and 80 of the 

‘093 Patent. 

b. Defendants shall deliver all existing Blue Egg products to Plaintiff’s counsel, 

Phillip B. Philbin, at 901 Main Street, Suite 3100, Dallas, Texas 75202, within 

twenty (20) days of the date of this Judgment. Defendants are hereby further 

restrained and enjoined from redistributing those products or distributing any 

other systems or teaching to any business in the United States methods 

infringing the ‘773 and ‘093 patents. 

c. Defendants CHF Technologies, Inc. and Endoscopic Technologies, Inc. shall 

notify all hospital personnel, surgeons, related staff and employees, as well as 

any other person who has purchased the Defendants’ Blue Egg, of this Final 

Judgment and provide them with a copy of the Final Judgment and advise 

them that all use of the Blue Egg should cease immediately. 

d. Within thirty (30) days of the effective date of this Judgment, Defendants 

CHF Technologies, Inc. and Endoscopic Technologies, Inc. shall file with the 

Court and serve on Plaintiff a statement in writing and under oath, setting 

forth in detail the manner in which Defendants have satisfied the obligations 

of paragraphs (a) through (c) above. 

9. Defendants shall take nothing on any claims or counterclaims asserted against 

Plaintiff. 

10. All writs and processes for the enforcement and collection of this Judgment may 

issue as necessary. 

11. Any claim not expressly addressed by this Judgment is denied. 

12. This Judgment is final as to all claims and all parties. 

SO ORDERED. 

April 2, 2008. 

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