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United States District Court

For the Northern District of California

**E-Filed**

August 5, 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

MARQUEZ BROTHERS

INTERNATIONAL, INC., 

Plaintiff,

 v.

ATLETICO MORELIA S.A. DE C.V.,

Defendant.

 /

NO. 5:05-cv-1889 RS

ORDER DENYING MOTION 

FOR ENTRY OF 

PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiff Marquez Brothers International, Inc. ("Marquez Brothers") seeks to prevent defendant

Atletico Morelia S.A. de C.V. ("Morelia") from playing any soccer matches in the United states that are not

promoted by Marquez Brothers pending a trial on the merits of Marquez Brothers' claims for breach of

contract and other claims for relief. The motion is based on Marquez Brothers' contentions that (1)it will

suffer irreparable harm if the requested injunctive relief is not granted; (2) the balance of hardships tilts

sharply in its favor; (3) it has a strong likelihood of success on the merits; and, (4) the broader public

interest factors weigh in favor of granting injunctive relief. The motion was fully briefed and heard by the

Court on August 3, 2005. Because Marquez Brothers has failed to establish that it will suffer irreparable

harm if an injunction is not entered, the motion for a preliminary injunction is denied, as explained below.

II. BACKGROUND

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Marquez Brothers is a San Jose-based producer and distributor of Mexican food products in the

United States. As part of its promotional efforts, Marquez Brothers sponsors many Latin Americanthemed events such as rodeos, festivals, concerts, and, of particular relevance to the present motion, sports

matches and tournaments. Morelia is a Mexican professional soccer club that is a member of the First

Division, the Mexican equivalent of America's Major League Soccer ("MLS"). The team's hometown is

Morelia, Michoacan, Mexico, and it participates in "friendly" soccer matches in the United States to

supplement league and tournament revenue.

In Fall 2002, Marquez Brothers approached Morelia regarding the possibility of sponsoring friendly

matches in the United States featuring the team. The parties negotiated a contract in April 2003 that

provided for Morelia to participate in ten friendly matches sponsored by Marquez Brothers and against first

professional division clubs, such as MLS teams. Morelia would have the right to accept or reject dates and

opponents proposed by Marquez Brothers, and no friendly matches would be scheduled within three days

of Morelia's league or tournament matches. The contract further provided that the parties had an

"understanding" the ten matches would take place before the end of 2004 but that the contract duration

would be lengthened if necessary to accommodate the completion of matches that had been "cancelled." 

Morelia was to be paid $125,000 upon signing, and $125,000 in January 2004. Additionally, Morelia

would be paid $25,000 after each match was played.

Each party contends that the other failed to live up to its obligations to schedule the matches

contemplated under the agreement. What is not in dispute is that Morelia did not play any Marquez

Brothers-sponsored matches in 2003, and Marquez Brothers did not pay Morelia the $125,000 installment

slated under the contract for January 2004. Nevertheless, the parties continued to attempt to schedule

matches and Morelia did play twice in 2004, once against Atlas in Salinas, California and once against

Chivas in San Jose, California. Chivas and Atlas are, like Morelia, members of Mexico's First Division. 

Marquez Brothers paid Morelia $25,000 after each match, pursuant to the terms of the contract.

In February 2005, ProAmerica World Sports, Inc., ("ProAmerica"), another promoter, contacted

Morelia about arranging friendly matches in the United States. ProAmerica was able to arrange a March

23, 2005 match against the L.A. Galaxy, an MLS team. When ProAmerica informed Marquez Brothers of

this pending match, Marquez Brothers successfully lobbied the United States Soccer Federation, the

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American professional soccer governing body, to prevent Morelia from playing any non-Marquez Brothers

sponsored matches, a decision the Federation subsequently reversed effective May 1, 2005.

On March 8, 2005, Marquez Brothers filed a complaint in the Santa Clara Superior Court, alleging

that Morelia had breached the contract. Marquez Brothers requested that the court grant temporary

injunctive relief and, after trial, money damages for the losses it had allegedly incurred. Morelia avers,

however, that it was not served with the complaint, and the record before the Court does not include any

sufficient proof of service. Instead, Morelia claims it discovered the existence of the lawsuit when Marquez

Brothers' counsel faxed a Cal. Civ. Proc. Code § 527(c)(2)(A) notice to Morelia executives, informing

them that Marquez Brothers was seeking a temporary restraining order ("TRO") in state court. Morelia

was unable to retain United States counsel until after the TRO hearing date had passed and,

consequentially, the TRO was granted after an ex parte hearing on May 2, 2005. Morelia removed the

case to this Court on May 9, 2005. The TRO expired on May 17, 2005. See Cal Civ. Proc. Code §

527(d)(1); Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 440 n.15 (1974). 

Marquez Brothers now moves for entry of a preliminary injunction preventing Morelia from playing friendly

matches in the United States unless they are sponsored by Marquez Brothers.

III. STANDARDS

In the Ninth Circuit, in order to obtain a preliminary injunction, the moving party must show either

(1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the

existence of serious questions which address the merits of the case and the balance of hardships tips sharply

in its favor, with at least a fair chance of success on the merits. Senate of California v. Mosbacher, 968

F.2d 974, 977 (9th Cir. 1992). The Ninth Circuit has stated that "these two formulations represent two

points on a sliding scale in which the required degree of irreparable harm increases as the probability of

success decreases." Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197,

1200-01 (9th Cir. 1980). A sharp tilt in the balance of hardships can affect the scale. Alaska v. Native

Vill. of Venetie, 856 F.2d 1384, 1389 (9th Cir. 1988). Finally, a court finding that the public interest is

involved may craft or withhold injunctive relief for the public's benefit. United States v. First Nat'l City

Bank, 379 U.S. 378, 383 (1965).

In addition, under any formulation of the test, the moving party must show that there exists a

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significant threat of irreparable harm. American Passage Media Corp. v. Cass Communications, Inc., 750

F.2d 1470, 1473 (9th Cir. 1985). If the moving party fails to make this showing, the court need not decide

whether the party is likely to succeed on the merits. Oakland Tribune, Inc. v. Chronicle Publ'g Co., 762

F.2d 1374, 1376 (9th Cir. 1985).

IV. DISCUSSION

A. Irreparable Harm

Marquez Brothers contends that it will be irreparably harmed by the loss of the intangible benefits

flowing from its contract with Morelia. Marquez Brothers analogizes its situation to that of a sports team

faced with a contract-breaking star player or record company faced with a contract-breaking performer,

and argues that the loss of the brand-name recognition that comes from promoting soccer matches featuring

Morelia could not be compensated by monetary damages. See, e.g., Washington Capitols Basketball Club

v. Barry, 304 F. Supp. 1193, 1196-97 (N.D. Cal. 1969); Foxx v. Williams, 244 Cal. App. 2d 223, 236

(1966).

Morelia responds that Marquez Brothers has not shown any irreparable harm that will flow from

the denial of a preliminary injunction. Morelia asserts that, although it did win the Mexican League

championship in 2000, it is hardly a "star" team that has the fan base or name recognition that Mexican

League teams such as Chivas have and thus, Morelia argues, comparisons to the loss of basketball

superstar Rick Barry's services are factually inapposite. See Washington Capitols Basketball Club, 304 F.

Supp. at 1196-97. Furthermore, while the Capitols might have built their organizational reputation on Rick

Barry's ability to win games for his team, Morelia argues that Marquez Brothers' business of selling food is

not built on Morelia's perhaps-unique or exceptional ability to defeat its on-field opponents in friendly

matches in the United States. Additionally, Morelia argues that sponsoring its matches is not a substantial

part of Marquez Brothers' business, as Marquez Brothers sponsors hundreds of events every year. Finally,

Morelia contends that Marquez Brothers' failure to seek permanent injunctive relief in its prayer for relief

demonstrates that any losses stemming from Morelia's alleged breach of contract could be compensated by

monetary damages after a full trial.

Before the likelihood that Marquez Brothers will succeed on its claims need be determined, it must

satisfy the threshold showing of irreparable harm. Oakland Tribune, Inc., 762 F.2d at 1376. Irreparable

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harm involves "intangible injuries" that cannot be adequately compensated through monetary damages. 

Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991). 

Purely monetary injuries are not normally considered irreparable injuries deserving of preliminary injunctive

relief, and "the possibility that adequate compensatory or other corrective relief will be available at a later

date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Los Angeles

Mem'l Coliseum Comm'n, 634 F.2d at 1197; Sampson v. Murray, 415 U.S. 61, 90 (1974) (citations

omitted). Furthermore, California state law bars preliminary injunctions in order to,

prevent the breach of a contract the performance of which would not be specifically

enforced, other than a contract in writing for the rendition of personal services from one to

another where the promised service is of a special, unique, unusual, extraordinary, or

intellectual character, which gives it peculiar value, the loss of which cannot be reasonably

or adequately compensated in damages in an action at law....

Cal Civ. Code § 526(a)(5).

Marquez Brothers has not made the threshold showing of irreparable harm. Regardless of the

import of Morelia's performance under the contract to Marquez Brothers' advertising efforts, Marquez

Brothers makes only speculative and thinly supported allegations of irreparable harm in its submissions. 

See, e.g., Luce Supp. Decl. ¶ 14 (averring that allowing Morelia to play for other promoters "might make it

more difficult for Marquez Brothers to promote these [exclusive] matches in the future"); see also

Washington Capitols Basketball Club, 304 F. Supp. at 1197 ("irreparable injury is that which cannot be

compensated by the award of money damages; it is injury which is certain and great" (emphasis added)). 

None of the supporting affidavits squarely address the substantiality or, indeed, the existence of the

intangible losses that Marquez Brothers claims it will suffer if Morelia is allowed to play friendly matches in

the United States. While Marquez Brothers alleges that it has suffered and continues to suffer significant

monetary harm, such harm "would be easily calculable and compensable in damages" and thus does not

lend support to preliminary injunctive relief. Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466,

471 (9th Cir. 1984) (finding no irreparable harm in removing a business from its sole premises).

As Marquez Brothers has not demonstrated any cognizable irreparable injury, Morelia's status as a

unique or extraordinary team is besides the point. In any event, the record does not reflect the overall

importance of Morelia to Marquez Brothers' advertising efforts or suggest that Marquez Brothers expended

any effort in publicizing its connection to the team. While Marquez Brothers points to the large community

in the United States with origins from Morelia's home state of Michoacan who represent a substantial and

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unique fan base, Morelia counters that fans of Mexican soccer are more likely to follow Chivas or Club

America, two more successful First Division teams. See Luce Supp. Decl. at ¶ 9; Garcia Decl. at ¶ 20. 

Whatever may be the ultimate resolution of that dispute, it does not rise on this record to a showing of

irreparable harm for purposes of the extraordinary remedy of injunctive relief.

B. Probability of Success on the Merits

Even if Marquez Brothers had made the threshold showing of irreparable harm, it nevertheless is

not entitled to a preliminary injunction, as it has not demonstrated the requisite probability of success on the

merits of its claim. See, e.g., Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 743 (9th

Cir. 2001). Marquez Brothers alleges that Morelia breached the contract between the parties. In order to

establish a breach of contract claim, Marquez Brothers must establish "(1) the contract; (2) plaintiff's

performance or excuse for non-performance; (3) defendant's breach; and (4) the resulting damages to

plaintiff." Reichert v. General Ins. Co., 68 Cal. 2d 822, 830 (1968). As noted above, at this stage in the

litigation, Marquez Brothers does not have to prove its claim; instead, it must demonstrate a "likelihood of

success on the merits and the possibility of irreparable harm" to be entitled to a preliminary injunction. 

Gilder v. PGA Tour, Inc., 936 F.2d 417; 422 (9th Cir. 1991).

The parties agree that the contract in this diversity case is to be interpreted under California law. 

The California Civil Code provides that "the language of a contract is to govern its interpretation, if the

language is clear and explicit, and does not involve an absurdity." Cal. Civ. Code § 1638. A trial court's

determination of whether a contract is ambiguous is a matter of law. See Winet v. Price, 4 Cal. App. 4th

1159, 1165 (1992). If an ambiguity exists, then it must be determined whether extrinsic evidence may be

admitted. "Under California law, '[t]he test of admissibility of extrinsic evidence to explain the meaning of a

written instrument is not whether it appears to the court to be plain and unambiguous on its face, but

whether the offered evidence is relevant to prove a meaning to which the language of the contract is

reasonably susceptible.'" Barris Industries, Inc. v. Worldvision Enterprises, Inc., 875 F.2d 1446, 1450

(9th Cir. 1989), quoting Pacific Gas and Electric Co. v. G.W. Thomas Drayage and Rigging Co., 69

Cal.2d 33, 36 (1968). 

Both the original Spanish-language contract and a translation of the contract into English were

attached to a declaration in support of Marquez Brothers' motion for a preliminary injunction. See Luce

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Decl. Exh. D, E. Neither party disputes the accuracy of the translation. The parties agree that they entered

into a valid contract. While Marquez Brothers argues that Morelia has breached the terms of the contract

by attempting to play friendly matches in the United States organized by other sponsors, Morelia argues

that the plain language of the contract reflects that it expired in December 2004 and that Morelia is thus no

longer bound by its exclusivity provisions.

The contract provides that the ten matches to be played by Morelia and sponsored by Marquez

Brothers are to be completed "during the period... agreed herein." See, e.g., Luce Decl. Ex. E pg. 1, 2, 5. 

The period of the contract is addressed in the seventh clause, "Duration," as lasting from the signing of the

contract to "the day when the tenth friendly match is held under the present contract, in the understanding

that the tenth match shall take place no later than the 31st (thirty first) of December of 2004 (two thousand

and four)." Id. at 6. Marquez Brothers interprets this language to mean that the contract will last until

Morelia plays ten matches under Marquez Brothers' sponsorship. Morelia urges the Court to read the

second clause of the sentence as a limiting clause, placing a temporal boundary on the period in which the

matches are to be played, with a limited exception, as set forth in Clause Eight, for the completion of

previously scheduled matches that were "cancelled" during the contract period.

Without passing final judgment on the correct interpretation of the contract, Morelia's suggested

reading of the contract finds support in its language and mitigates against a finding that Marquez Brothers

has demonstrated a likelihood of success on the merits. See Sierra On-Line, Inc. v. Phoenix Software, Inc.

739 F.2d 1415, 1423 (9th Cir. 1984) (holding that "a preliminary injunction... is not a preliminary

adjudication on the merits"). The parties' understanding, memorialized in the plain terms of the contract, is

that it would end once the tenth match was played, and that match would be played no later than December

2004. See Luce Decl. Exh. E pg. 6. While Marquez Brothers argues that the contract calls for ten

matches and by its terms will not be completed until the tenth match has been played, this reading is

inconsistent with repeated references to a temporal period throughout the contract. See id. at 2 (the

intention of Marquez Brothers was "to make the present contract, with the purpose of the TEAM

participating in 10 (ten) friendly matches during the period and under the terms and conditions set forth in

the present contract"); 5 (granting Marquez Brothers exclusivity "during the period of the present contract").

With respect to the contract provision pertaining to the completion of cancelled matches after

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December 31, 2004, Marquez Brothers has not alleged in any of its papers that any such matches were in

fact scheduled and then cancelled; instead, it alleges that Morelia failed to schedule matches and that this

failure to schedule in the first instance constituted a breach. See id. at 7. Marquez Brothers points to

People ex rel Dep't of Transportation v. Ad Way Signs, Inc., 14 Cal App. 4th 187, 197 n.12 (1993), as

defining "cancelled" to mean "to make void; revoke; annul; to cancel a reservation." (emphasis in

original). Again, Marquez Brothers does not allege that Morelia revoked or annulled scheduled matches,

nor does it allege that Morelia agreed to play at a certain place and at a certain time and then backed out,

thus "cancelling" a reservation. By the express language of the contract, therefore, Morelia was within its

rights to reject proposed matches without penalty. See Luce Decl. Exh. E at 2 (providing that "the CLUB

will be the one who decides whether to accept the proposal or not").

Marquez Brothers has submitted affidavits asserting that Morelia bargained for a contract that

would bind the team to play ten matches. See Luce Supp. Decl. ¶ 2. Marquez Brothers also argues that

Morelia's reading of the contract would result in a contract that is void for lack of consideration, as

Marquez Brothers would be paying Morelia a substantial amount of money while Morelia would not be

required to play in any matches. It is a settled point of law that, for a contract to be binding, both parties

must assume some legal obligation. See, e.g., Mattei v. Hopper, 51 Cal. 2d 119, 122 (1958) (holding that,

"without this mutuality of obligation, the agreement lacks consideration and no enforceable contract has

been created"). Even had Morelia failed to play any matches (the undisputed facts reflect that two matches

were played pursuant to the contract), Marquez Brothers would still have received consideration in the

form of exclusivity, as Morelia would have been precluded by the terms of the contract from playing for any

other sponsor. See Luce Decl. Exh. E pg. 5. As Marquez Brothers argues Morelia's "brand" has great

value, this consideration would have made for a potentially lucrative competitive advantage.

Marquez Brothers also alleges that Morelia breached the contract in part by attempting to play

matches in the United States not sponsored by Marquez Brothers. Those attempted matches, however,

and the negotiations to prepare for them took place after December 31, 2004. It is impossible to breach

an expired contract. See Shida v. Japan Food Corp., 251 Cal. App. 2d 864, 866 (1967). The plain

language of the contract suggests that it expired on December 31, 2004, before Morelia began to look for

other sponsors. Thus, Marquez Brothers has not demonstrated that it is likely to succeed on the merits of

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its breach of contract action on the grounds that Morelia breached the agreement through its efforts to

schedule matches with other sponsors.

Similarly, while both parties cast the blame for the inability to schedule matches on the other, the

declarations submitted by the parties leave that question open. See generally, Luce Decl. (averring goodfaith cooperation for Marquez Brothers' part and blaming scheduling difficulties on Morelia); Garcia Decl.

(averring good-faith cooperation for Morelia's part and blaming scheduling difficulties on Marquez

Brothers). The limited weighing and balancing of this evidence appropriate at this stage of the litigation

does not support a finding that Marquez Brothers has a sufficient probability of success on the merits of its

claims to entitle it to a preliminary injunction against Morelia, especially when considered in light of

Marquez Brothers' failure to demonstrate irreparable harm.

C. The Balance of Hardships

Marquez Brothers argues that it is entitled to a preliminary injunction against Morelia because the

balance of hardships tilts sharply in its favor. Marquez Brothers contends that, if the preliminary injunction

is not granted, it will irreparably lose the exclusive right to promote Morelia's matches in the United States. 

Further, Marquez Brothers argues that Morelia will not be harmed by the injunction, as it could still play

friendly matches in the United States as long as they were organized by Marquez Brothers. Finally,

Marquez Brothers insists that any revenue drop incurred by Morelia would be minimal, as it has only played

two friendly matches in the United States over the past two years.

Morelia responds that, as it usually makes $50,000 per friendly match, it will be substantially

harmed by a preliminary injunction preventing it from playing friendly matches in the United States. 

Additionally, Morelia contends that Marquez Brothers has not demonstrated with any certainty how it

would be irreparably harmed if Morelia were to play for another promoter in the United States, as Marquez

Brothers would still be able to advertise through its extensive sponsorship efforts and would not lose any

brand recognition.

The weighing of the balance of hardships is one of the factors set forth in the Ninth Circuit's

preliminary injunction standard. See, e.g., Raich v. Ashcroft, 352 F.3d 1222, 1227 (9th Cir. 2003), rev'd

on other grounds sub nom. Gonzales v. Raich, 125 S. Ct. 2195 (2005); Bayer Corp. v. Roche Molecular

Sys., Inc., 72 F. Supp. 2d 1111, 1116 (N.D. Cal. 1999). A sharp tilt in the balance of hardships can

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counterbalance a lesser likelihood of success on the merits. See Benda v. Grand Lodge of Int'l Ass'n of

Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978). A preliminary injunction is proper

in situations in which there are serious questions of success on the merits and the possibility of irreparable

injury but the balance of hardships "tips sharply in favor of the moving party." Stuhlbarg Int'l Sales Co. v.

John D. Brush & Co., 240 F.3d 832, 839-40 (9th Cir. 2001).

Marquez Brothers has not demonstrated that the balance of hardships tilts significantly in its favor. 

Hardship has been found in situations such as a union's existence being threatened by ongoing severe

financial mismanagement. Benda, 584 F.2d at 315. Marquez Brothers does not allege that it will go out of

business if Morelia is free to play for other sponsors while this litigation moves forward. As noted above,

Marquez Brothers does not allege any specific hardship that would entitle it to a preliminary injunction. 

Morelia's allegation of the probability of harm to the team is bolstered by its attempts to secure sponsors for

friendly matches in the United States and Marquez Brothers' hitherto successful prevention of those

matches. See Luce Decl. Exh. T. While it is true that Morelia has only played two matches in the United

States in the past two years, suggesting that it might not be significantly harmed by an injunction, Marquez

Brothers has been its promoter for that period in a relationship indisputedly fraught with difficulties. In light

of the absence of any showing that the balance of hardships tips in favor of Marquez Brothers, that factor,

combined with the analysis of irreparable injury and success on the merits above, precludes the entry of

preliminary injunctive relief.

D. The Public Interest

Finally, Marquez Brothers asserts that the public interest favors a preliminary injunction in this case,

as such relief would provide notice of the ongoing litigation to Morelia's potential sponsors and opponents

and prevent them from being open to liability if they accepted a match. Morelia argues that soccer

promoters and clubs are not the "public" contemplated by the Ninth Circuit's weighing of public interest

factors in deciding whether to grant a preliminary injunction and that Marquez Brothers has not shown how

the public interest would be affected by an injunction.

The Ninth Circuit has held that, "in cases where the public interest is involved, the district court must

also examine whether the public interest favors the plaintiff." Sammartano v. First Judicial Dist. Ct., 303

F.3d 959, 965 (9th Cir. 2002) (citations omitted). Such an inquiry focuses on the effects on non-parties of

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granting or denying a preliminary injunction. Id. at 974. Effects tied to the public interest classically are

First Amendment questions or restraints on government action. See, e.g., id. at 975 (upholding injunction

preventing persons who refused to remove motorcycle club patches from entering part of county

courthouse); Harris v. Board of Supervisors, 366 F.3d 754 (9th Cir. 2003) (upholding injunction

preventing closure of medical clinic); Regents of Univ. of California v. American Broadcasting Co., 747

F.2d 511, 527 (9th Cir. 1984) (public interest not significantly served by injunction requiring broadcast of

college football game).

This is not a public interest case; instead, it is a contract dispute between two private parties. 

Marquez Brothers has not demonstrated why the potential exposure of third parties to its own threats of

future legal claims is a legally cognizable interest that mandates injunctive protection. Furthermore, the

record is clear that Marquez Brothers has in fact shown itself willing and able to put third parties on

sufficient notice of its potential legal claims without judicial aid. See Luce Decl. Exh. S (expressing trust

that a third party "will take appropriate action to avoid... tortuous interference"). Thus, the public interest is

not implicated by the conduct sought to be enjoined and, therefore, lends no support to Marquez Brothers'

motion.

V. CONCLUSION

As Marquez Brothers has not demonstrated either significant irreparable harm or a high probability

of success on the merits of its suit, nor does the balance of hardships tilt so drastically in its favor that a

lesser showing of harm or success on the merits is warranted, its motion for a preliminary injunction is

denied.

IT IS SO ORDERED.

Dated: August 5, 2005 /s/ Richard Seeborg 

RICHARD SEEBORG

United States Magistrate Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

Lisa Eileen Aguiar laguiar@ssd.com 

Nicole M. Healy nhealy@wsgr.com 

Daniel B. Pollack dpollack@ssd.com, pal_docket@ssd.com;krose@ssd.com 

Ignacio E. Salceda isalceda@wsgr.com, rlustan@wsgr.com 

Brian Peter Thomas bthomas@wsgr.com 

Lloyd Winawer lwinawer@wsgr.com 

Dated: 8/5/05 Richard W. Wieking, Clerk

By:_____DM__________________

Chambers

Case 5:05-cv-01889-RS Document 20 Filed 08/05/05 Page 12 of 12