United Construction Products v. Tile Tech, Inc. , 843 F.3d 1363 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
UNITED CONSTRUCTION PRODUCTS, INC., D/B/A
BISON INNOVATIVE PRODUCTS,
Plaintiff-Appellee
v.
TILE TECH, INC.,
Defendant-Appellant
______________________
2016-1392
______________________
Appeal from the United States District Court for the
Central District of California in No. 2:14-CV-08570-R-
VBK, Judge Manuel L. Real.
______________________
Decided: December 15, 2016
______________________
DAVID VON GUNTEN, von Gunten Law LLC, Denver,
CO, argued for plaintiff-appellee. Also represented by
MICHELLE CORRELL, Smith Correll LLP, Los Angeles, CA.
KELLY W. CUNNINGHAM, Cislo & Thomas LLP, Los
Angeles, CA, argued for defendant-appellant.
______________________
Before MOORE, WALLACH, and STOLL, Circuit Judges.
WALLACH, Circuit Judge.
2 UNITED CONSTR. PRODS., INC. v. TILE TECH, INC.
Tile Tech, Inc. (‘Tile Tech”) appeals the decision of the
U.S. District Court for the Central District of California
(“District Court”) granting default judgment and a per-
manent injunction to United Construction Products, Inc.,
doing business as Bison Innovative Products (“United”),
on claims of patent infringement and unfair competition.
See United Constr. Prods., Inc. v. Tile Tech, Inc., No. 2:14-
cv-08570-R-VBK, 2015 WL 7776795, at *6−8 (C.D. Cal.
Dec. 1, 2015). We affirm.
BACKGROUND
This case comes to our court following a series of de-
lays, missed deadlines, and other procedural missteps by
Tile Tech that are necessary to describe in full. United
brought suit against Tile Tech claiming infringement of
U.S. Patent No. 8,302,356 (“the ’356 patent”), which is
entitled “Support Pedestal Having an Anchoring Washer
for Securing Elevated Surface Tiles.” ’356 patent col. 1 ll.
1−3. Following transfer of the case to the District Court,
United, 2015 WL 7776795, at *1, United served Tile Tech
with its first set of discovery requests, including interrog-
atories, requests for admission, and requests for produc-
tion, J.A. 140, 149, 282. Tile Tech missed the deadline to
respond to the discovery requests, and when contacted by
United, it claimed that it had not received the requests.
United, 2015 WL 7776795, at *2. Although service of the
requests was valid, United granted Tile Tech twenty
additional days to respond. Id. Tile Tech then requested
two additional extensions and finally served initial re-
sponses to United nearly one month after the original
response deadline. Id.Tile Tech’s responses to United’s discovery requests
were deficient. Id. United requested a conference regard-
ing the responses and Tile Tech agreed, but two hours
before the scheduled conference, Tile Tech requested that
it be rescheduled. Id. United agreed and provided a five
hour time frame on Tile Tech’s proposed date; Tile Tech
UNITED CONSTR. PRODS., INC. v. TILE TECH, INC. 3
responded on the proposed rescheduled date and again
asked to postpone. Id. The conference was postponed a
third time, and eventually occurred following United’s
warning to Tile Tech that it would file a motion to compel
if Tile Tech did not commit to a time for the conference.
Id. At the conference, Tile Tech agreed to “supplement
virtually every response to [United]’s Discovery Re-
quest[s] and to produce all responsive documents” by an
agreed-upon date. Id.The agreed-upon date passed with no response from
Tile Tech. Id. United offered to give Tile Tech ten addi-
tional days beyond the agreed-upon date to adequately
respond. Id. at *3. When Tile Tech again failed to re-
spond to the discovery requests, United filed a Motion to
Compel Further Responses to Written Discovery and
Production of Documents and for Sanctions (“Motion to
Compel”). Id.; J.A. 221. Tile Tech never responded to the
Motion to Compel. United, 2015 WL 7776795, at *3. It
instead served supplemental responses to the discovery
requests, which were still deficient, including unverified
responses to the interrogatories. Id. The District Court
took the Motion to Compel under submission, and Tile
Tech proceeded to provide a third set of deficient supple-
mental responses. Id.The District Court issued an Order to Compel on Oc-
tober 5, 2015. J.A. 421–23. It found that, inter alia, Tile
Tech had “failed to produce a single document in response
to [United]’s document requests and ha[d] failed to sup-
plement its deficient discovery responses,” and such
actions “create . . . a waste of this [c]ourt’s time.” J.A.
421, 422. The District Court ordered Tile Tech to respond
to the discovery requests, imposed monetary sanctions,
and warned that it would enter default judgment if Tile
Tech did not comply with the Order by October 12, 2015.
J.A. 422. United’s attorney stated in his declaration, and
the District Court found, that he informed Tile Tech’s
attorney during a deposition on October 9, 2015, that the
4 UNITED CONSTR. PRODS., INC. v. TILE TECH, INC.
Order to Compel had issued and that it included sanc-
tions. J.A. 918; United, 2015 WL 7776795, at *4.
Tile Tech failed to respond to the Order. 1 On October
12, 2015, United filed its Motion for Entry of Default
Judgment. J.A. 756–65. Tile Tech responded and
claimed that it had not known of the Order’s response
deadline; that it had produced a set of supplemental
responses to the discovery requests; and that it required
an expert opinion to fully respond to part of the discovery
requests, which would be forthcoming. J.A. 813–14. The
District Court found that Tile Tech’s claim of producing
additional responses was a “misrepresentation to the
[c]ourt” because no responses had been served as of the
filing of Tile Tech’s Opposition to Motion for Default
Judgment. United, 2015 WL 7776795, at *4. In addition,
the District Court held Tile Tech’s claim that it would
provide an expert witness was “facially insufficient and
unjustified” because the time to designate an expert
witness had “long passed.” Id. Moreover, although Tile
Tech had produced only two documents during the pro-
longed discovery period, both of which were non-
responsive, and had not disclosed any persons with rele-
vant knowledge in response to interrogatories pursuant to
Federal Rule of Civil Procedure 26(a)(1), 2 it nonetheless
1 Counsel for Tile Tech acknowledged at Oral Ar-
gument that the sanctions mandated in the Order still
have not been paid. See Oral Argument at
1:25−2:05, http://oralarguments.cafc.uscourts.gov/default.
aspx?fl=2016-1392.mp3.
2 Federal Rule of Civil Procedure 26(a)(1) states, in-
ter alia:
[A] party must, without awaiting a discovery re-
quest, provide to the other parties: (i) the name
and, if known, the address and telephone number
of each individual likely to have discoverable in-
UNITED CONSTR. PRODS., INC. v. TILE TECH, INC. 5
listed over a dozen exhibits and over a dozen potential
trial witnesses in its Joint Exhibit and Witness Lists
disclosed at the end of the discovery period. Id.On November 2, 2015, Tile Tech finally served anoth-
er set of supplemental responses, which contained infor-
mation disclosing its destruction of a previously
undisclosed mold used to make one key component of the
disputed support pedestal. Id. at *5. United filed a
Motion for Spoliation Sanctions, J.A. 1090–97, and filed
an unopposed Amended Complaint adding a claim for
unfair competition, to which Tile Tech never responded,
J.A. 404–11 (Amended Complaint); United, 2015 WL
7776795, at *5 (finding that Tile Tech never responded to
the Amended Complaint). The District Court later en-
tered default judgment, granted relief for all of United’s
claims, and entered a permanent injunction. United,
2015 WL 7776795, at *6–8.
Tile Tech timely appealed. This court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(1) (2012).
DISCUSSION
Tile Tech raises two principal arguments on appeal,
one concerning the entry of default judgment and the
other related to the scope of the District Court’s perma-
nent injunction. Appellant’s Br. 14–28, 29–33. “A deci-
sion to sanction a litigant [by ordering default judgment]
pursuant to Fed[eral] R[ule of] Civ[il] P[rocedure] 37[3] is
formation . . . [and] (ii) a copy―or a description by
category and location―of all documents, electroni-
cally stored information, and tangible things that
the disclosing party has in its possession . . . .
3 Federal Rule of Civil Procedure 37(b)(2)(A)(vi)
provides that “[i]f a party . . . fails to obey an order to
provide or permit discovery, . . . the court where the
6 UNITED CONSTR. PRODS., INC. v. TILE TECH, INC.
one that is not unique to patent law . . . and we therefore
apply regional circuit law to that issue . . . .” ClearValue,
Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291, 1304
(Fed. Cir. 2009) (internal quotation marks and citation
omitted); see also Drone Techs., Inc. v. Parrot S.A., 838
F.3d 1283, 1297 (Fed. Cir. 2016) (considering an appel-
lant’s challenge to the imposition of default judgment and
stating that “[w]e are guided by regional circuit law when
reviewing discovery rulings . . . and the imposition of
sanctions” (internal citations omitted)). In this case, we
look to Ninth Circuit precedent, and the relevant stand-
ard is articulated below. Because the injunction “enjoins
the violation of a[] right secured by a patent . . . [it] in-
volves substantive matters unique to patent law and,
therefore, is governed by the law of this court.” Hybritech
Inc. v. Abbott Labs., 849 F.2d 1446, 1451 n.12 (Fed. Cir.
1988); see Signtech USA, Ltd. v. Vutek, Inc., 174 F.3d
1352, 1356 (Fed. Cir. 1999) (applying Federal Circuit law
as the standard of review for the scope of an injunction).
We similarly articulate the applicable standard for this
issue below.
I. Default Judgment
A. The Malone Factors Support the Grant of Default
Judgment
Under Ninth Circuit precedent, a court must consider
the following five factors from Malone v. United States
Postal Service before entering default judgment: “(1) the
public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of
prejudice to the [other party]; (4) the public policy favor-
ing disposition of cases on their merits; and (5) the avail-
action is pending may issue further just orders . . . [in-
cluding] rendering a default judgment against the disobe-
dient party . . . .”
UNITED CONSTR. PRODS., INC. v. TILE TECH, INC. 7
ability of less drastic sanctions.” 833 F.2d 128, 130 (9th
Cir. 1987) (internal quotation marks and citation omit-
ted). “It is not necessary for a district court to make
explicit findings to show that it has considered these
factors” and, on appeal, the court “may review the record
independently” for abuse of discretion. Id. (citations
omitted). The sanction of default judgment is “appropri-
ate only . . . where the violation is due to willfulness, bad
faith, or fault of the party.” Fair Hous. of Marin v.
Combs, 285 F.3d 899, 905 (9th Cir. 2002) (internal quota-
tion marks and citation omitted) (reviewing district
court’s entry of default judgment based on discovery
violations). A default judgment will be overturned “only if
[the appeals court] ha[s] a definite and firm conviction
that it was clearly outside the acceptable range of sanc-
tions.” Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1169
(9th Cir. 2012) (internal quotation marks and citations
omitted). We address these factors in turn.
1. The Public’s Interest in Expeditious Resolution of
Litigation
The first Malone factor, the public’s interest in expe-
ditious resolution of litigation, weighs in support of the
District Court’s decision to enter default judgment. As in
Malone, “[Tile Tech]’s dilatory conduct greatly impeded
resolution of the case and prevented the [D]istrict [C]ourt
from adhering to its trial schedule.” 833 F.2d at 131(citation omitted). Tile Tech argues that, even if the
District Court had granted Tile Tech’s request for a ninety
day extension, the length of time between pleadings and
trial still would be less than the national average, such
that the resolution could be considered “expeditious” and
within the public’s interest. Appellant’s Br. 15. However,
comparison to the national average for length of district
court proceedings is not the measurement that courts use
to weigh the first Malone factor. Rather, “[t]he public’s
interest in expeditious resolution of litigation always
favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639,
8 UNITED CONSTR. PRODS., INC. v. TILE TECH, INC.
642 (9th Cir. 2002) (internal quotation marks and citation
omitted).
2. The Court’s Need to Manage Its Docket
As to the second Malone factor, the court’s need to
manage its docket, we recognize that “[t]he trial judge is
in the best position to determine whether the delay in a
particular case interferes with docket management and
the public interest.” Id. (citation omitted). Here, the
District Court correctly noted that Tile Tech “demonstrat-
ed a lack of respect for virtually every . . . deadline in this
case,” such that “there is no assurance that this matter
can proceed to trial on the true facts.” United, 2015 WL
7776795, at *5−6. Contrary to Tile Tech’s characteriza-
tion of its behavior as “‘hiccups’ in the discovery process,”
Appellant’s Br. 20, Tile Tech missed every deadline to
which it had agreed, failed to respond to the District
Court’s orders, and produced responses to discovery that
were routinely inadequate. More importantly, the Dis-
trict Court could not be assured of the validity of the
factual record on which to base a decision. The District
Court did not abuse its discretion in finding that its need
to manage its docket weighed in favor of United’s default
judgment motion. See, e.g., Pagtalunan, 291 F.3d at 642(“It is incumbent upon the [district court] to manage its
docket without being subject to routine noncompliance of
litigants . . . .” (citation omitted)).
3. The Risk of Prejudice to the Other Party
As to the third Malone factor, the risk of prejudice to
the other party, Tile Tech states that “the record does not
indicate any prejudice to [United].” Appellant’s Br. 19.
We disagree.
“In determining whether [the moving party] has been
prejudiced, we examine whether the [non-moving party]’s
actions impair the [moving party]’s ability to go to trial or
threaten to interfere with the rightful decision of the
UNITED CONSTR. PRODS., INC. v. TILE TECH, INC. 9
case.” Malone, 833 F.2d at 131 (emphasis added). Tile
Tech focuses on the first clause of the relevant bench-
mark, i.e., the other party’s ability to go to trial, and
claims that its actions did not hinder United’s ability to
proceed to trial in any meaningful way. Appellant’s Br.
17−20 (“While there were some ‘hiccups’ in the discovery
process, the case was on track for a trial in early 2016.
There was no prejudicial delay at all . . . .”). In contrast,
the District Court focused on the second clause, i.e.,
actions that threaten to interfere with the rightful deci-
sion of the case, when it emphasized that “there can never
be assurance of proceeding on the true facts” in this case.
United, 2015 WL 7776795, at *5 (internal quotation
marks and citation omitted).
The District Court did not abuse its discretion in its
finding related to the second clause of the prejudice
determination, which is sufficient to find prejudice under
Malone. See 833 F.2d at 131 (using the disjunctive “or” in
articulating the prejudice benchmark). Where one party
withholds evidence, repeatedly declines to truthfully
respond to discovery requests or comply with the District
Court’s rules, and fails to properly designate witnesses
and exhibits during discovery, such conduct prejudices an
opposing party’s ability to reach a rightful disposition of
the case.
4. The Public Policy Favoring the Disposition of Cases on
Their Merits
The fourth Malone factor, public policy favoring dispo-
sition of cases on their merits, “always weighs against
dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788
(9th Cir. 2011) (citation omitted). Therefore, this factor
favors Tile Tech.
10 UNITED CONSTR. PRODS., INC. v. TILE TECH, INC.
5. The Availability of Less Drastic Sanctions (i.e., Alter-
natives to Dismissal)
As to the fifth Malone factor, the availability of less
drastic sanctions, Tile Tech argues that the District Court
abused its discretion when it “fail[ed] to consider . . .
lesser sanctions” and “simply penalized Tile Tech rather
than [e]nsuring future compliant behavior by Tile Tech’s
trial counsel.” Appellant’s Br. 25, 26. As Malone ex-
plained, though, “warning a [non-moving party] that
failure to obey a court order will result in dismissal can
suffice to meet the ‘consideration of alternatives’ require-
ment.” 833 F.2d at 132 (citations omitted). Here, the
District Court gave ample warning to Tile Tech in its
Order to Compel that it would enter default judgment if
discovery responses were not forthcoming. J.A. 422. The
Order still did not “[e]nsur[e] future compliant behavior”
from Tile Tech, Appellant’s Br. 26; Tile Tech did not pay
the monetary sanction, its third production was again
deficient, and it did not respond to the Order in a timely
manner. The District Court also concluded that Tile Tech
had committed spoliation of evidence, for which Tile Tech
admitted its wrongdoing. United, 2015 WL 7776795, at
*6; J.A. 1092−93 (“Q: So after you new [sic] of the lawsuit
. . . you then just threw . . . the washers away? A: Cor-
rect.”). Finally, the District Court found that Tile Tech
allowed deadlines for discovery to pass “without any effort
or comment,” despite knowing that supplementation of
discovery was necessary and required as of right for the
opposing party. United, 2015 WL 7776795, at *5.
The District Court’s opinion demonstrates its thor-
ough consideration of the Malone factors leading to the
ultimate decision not to impose lesser sanctions in this
case, a decision which we find was not an abuse of discre-
tion. As the District Court explained, “[w]here a party so
damages the integrity of the discovery process that there
can never be assurance of proceeding on the true facts, a
case dispositive [remedy] may be appropriate.” Id. (quot-
UNITED CONSTR. PRODS., INC. v. TILE TECH, INC. 11
ing Conn. Gen. Life Ins. Co. v. New Images of Beverly
Hills, 482 F.3d 1091, 1097 (9th Cir. 2007)).
Four factors favor dismissal and one weighs against
dismissal. Under these circumstances, we cannot say
that the District Court abused its discretion.
B. Willfulness Is Sufficient to Uphold a Grant of Default
Judgment
In addition, Tile Tech argues that a default judgment
was not appropriate because the District Court did not
find bad faith on Tile Tech’s part. Appellant’s Br. 26−29.
In support of its position, Tile Tech correctly notes that
the District Court, in a separate Order Denying Plaintiff’s
Motion for Award of Attorney’s Fees, stated that “while
defense counsel perhaps handled the case unreasonably,
this [c]ourt does not attribute that to bad faith, but in-
stead a complete lack of preparation.” J.A. 1611.
However, Tile Tech omits the full test for default
judgment, which is whether a party’s conduct was due to
“willfulness, bad faith, or fault.” Fjelstad v. Am. Honda
Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985) (emphasis
added). Fjelstad further explained that willfulness may
be satisfied simply by finding “disobedient conduct not
shown to be outside the control of the litigant.” Id. (inter-
nal quotation marks omitted). While Tile Tech has ar-
gued that its trial attorney had “unfamiliarity” with
federal court practice, it has not offered any evidence to
suggest that its dilatory actions were outside of its attor-
ney’s control. Appellant’s Br. 24. We therefore uphold
the District Court’s grant of default judgment.
II. The District Court’s Injunction Was Not Overly Broad
Finally, Tile Tech makes three arguments for why the
permanent injunction is overbroad and should be modi-
fied, claiming: (1) it enjoins “substantially similar” prod-
ucts that do not necessarily infringe on the ’356 patent;
(2) it requires Tile Tech to surrender the notched washer
12 UNITED CONSTR. PRODS., INC. v. TILE TECH, INC.
mold even though the washer by itself does not directly
infringe; and (3) it prohibits Tile Tech from using images
of United’s products in any marketing materials, even if
there is no likelihood of confusion. Id. at 29−33. We
disagree with each argument.
To determine the scope of an injunction, we look to
Rule 65(d) of the Federal Rules of Civil Procedure, which
sets out the proper form and scope of an injunction issued
by a district court to be one that “states[s] the reasons
why it issued,” “state[s] its terms specifically,” and “de-
scribe[s] in reasonable detail—and not by referring to the
complaint or other document—the act or acts restrained
or required.” “Whether the terms of an injunction fulfill
the mandates of Rule 65(d) is a question of law that we
review without deference.” Int’l Rectifier Corp. v. IXYS
Corp., 383 F.3d 1312, 1315 (Fed. Cir. 2004) (citations
omitted). As the Supreme Court has stated, “one basic
principle built into Rule 65 is that those against whom an
injunction is issued should receive fair and precisely
drawn notice of what the injunction actually prohibits.”
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto
Truck Drivers Local No. 70 of Alameda Cty., 415 U.S. 423,
444 (1974) (footnote omitted). In the patent infringement
context, this court has held that injunctions have satisfac-
tory scope when they prohibit “infringement of the patent
by the adjudicated devices and infringement by devices
not more than colorably different from the adjudicated
devices.” Int’l Rectifier Corp., 383 F.3d at 1316.
Turning to the terms of the subject permanent injunc-
tion, we do not find them overly broad. The injunction
prohibits Tile Tech from
any and all acts of infringement of the [’356 pa-
tent], including making, using, importing, selling,
offering for sale, advertising, marketing or pro-
moting the sale of any adjustable building surface
support product incorporating the [’356 patent], or
UNITED CONSTR. PRODS., INC. v. TILE TECH, INC. 13
any substantially similar adjustable building sur-
face support product sold, advertised, marketed or
promoted in the United States.
United, 2015 WL 7776795, at *6 (emphasis added). The
plain language of the injunction prohibits all acts of
infringement, with specific hypothetical examples follow-
ing the term “including.” To the extent that sale, adver-
tisement, marketing, or promotion of a substantially
similar product to United’s would constitute infringement
if evaluated under the two-step test that this court set out
in TiVo Inc. v. EchoStar Corp., such actions would be
prohibited. 646 F.3d 869, 882 (Fed. Cir. 2011) (“[T]he
party seeking to enforce the injunction must prove both
that the newly accused product is not more than colorably
different from the product found to infringe and that the
newly accused product actually infringes.”). We see no
problem with the use of the term “substantially similar”
in the injunction to the extent that it prevents Tile Tech
from infringing United’s patent as assessed under this
court’s standard and, thus, find that the District Court
did not err in issuing this injunction.
We also find the requirement to surrender “any mold,
or other device, by which any notched washer utilized
with the [’356 patent] was made” an acceptable means of
preventing future infringement to United. United, 2015
WL 7776795, at *6. United submitted that the notched
washer was a “crucial” component of the patented support
pedestal, Appellee’s Br. 31, which Tile Tech acknowledged
when it intentionally destroyed all molds and notched
washers upon learning of this litigation, J.A. 1092−94.
Tile Tech’s President acknowledged that Tile Tech volun-
tarily changed its product’s washer to a full washer from
the notched washer “based upon . . . notification of the
patent.” J.A. 467. He also testified that Tile Tech has
never sold a notched washer. J.A. 467. Putting aside the
fact that such an injunction does not immediately present
any potential disruption to Tile Tech’s non-infringing
14 UNITED CONSTR. PRODS., INC. v. TILE TECH, INC.
business products, we note that United’s counsel also
stated at argument that United would not seek to enforce
the injunction should Tile Tech use notched washers or
their molds for non-infringing purposes. Oral Argument
at 20:49−21:35, http://oralarguments.cafc.uscourts.gov/
default.aspx?fl=2016-1392.mp3. As such, the requirement
to surrender the molds for washers is appropriate.
Finally, we construe the language of the injunction
with respect to the unfair competition claim in a manner
consistent with the rights of Tile Tech. United alleged
violations of unfair competition under both common law
and section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)
(2012). J.A. 418. “It is well established that the Lanham
Act does not prevent one from using a competitor’s mark
truthfully to identify the competitor’s goods . . . .”
Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174
F.3d 1036, 1065 (9th Cir. 1999) (citation omitted). The
language of the injunction permanently enjoins Tile Tech
and its representatives or agents from “any and all acts of
unfair competition, including using images of [United]’s
products, projects[,] and drawings on its website and in
any other marketing materials.” United, 2015 WL
7776795, at *8 (emphasis added). The District Court
found that the current use of United’s products in Tile
Tech’s marketing materials violates section 43(a) of the
Lanham Act because it “misrepresents that such prod-
ucts, projects, and drawings are the products, projects,
and drawings of Tile [Tech],” J.A. 418, and such advertis-
ing should be removed. To the extent that in the future
Tile Tech’s advertising clearly distinguishes its product
from that of United’s in a comparative advertisement, in a
way that is not “an act of unfair competition,” we read the
injunction to not prohibit such uses. At oral argument,
United agreed with this interpretation of the injunction.
Oral Argument at 25:00−26:15, http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2016-1392.mp3. In sum, we
UNITED CONSTR. PRODS., INC. v. TILE TECH, INC. 15
find that the injunction is not overbroad as written under
the facts presented.
CONCLUSION
We have considered Tile Tech’s remaining arguments
and find them unpersuasive. Accordingly, the decision of
the U.S. District Court for the Central District of Califor-
nia is
AFFIRMED