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Iverson, Yoakum, Papiano & Hatch

633 West Fifth Street, Suite 6400 Los Angeles, CA 90071
TELEPHONE: 213.624.7444

Lisa J. Borodkin (CA Bar #196412) lborodkin@iyph.com Admitted Pro Hac Vice
Firm State Bar No. 00443100 Renaissance One, Two North Central Ave. Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Quarles & Brady LLP

John S. Craiger (#021731) John.Craiger@quarles.com David E. Funkhouser III (#022449) David.Funkhouser@quarles.com Attorneys for Defendant Lisa Jean Borodkin IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, an Arizona limited liability company, Plaintiff, v. LISA JEAN BORODKIN and JOHN DOE BORODKIN, husband and wife; RAMOND MOBREZ and ILIANA LLANERAS, husband and wife; DANIEL BLACKERTS and JANE DOE BLACKERTS, husband and wife; ASIA ECONOMIC INSTITUTE, LLC, a California limited liability company, DOES 1-10, inclusive Defendants. No. 2:11-CV-01426-PHX-GMS DEFENDANT LISA JEAN BORODKIN'S OPPOSITION TO PLAINTIFFS MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS DANIEL BLACKERT AND ASIA ECONOMIC INSTITUTE LLC (Assigned to the Honorable G. Murray Snow) (Oral Argument Requested)

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I.

PRELIMINARY STATEMENT Defendant Lisa Jean Borodkin (Ms. Borodkin) hereby respectfully opposes the

motion of Plaintiff Xcentric Ventures, LLC (Xcentric) for a default judgment [Doc. 99] against defaulting defendants Daniel F. Blackert (Blackert) and Asia Economic Institute LLC (AEI) (collectively, the Defaulting Defendants). There are several grounds for denying Xcentrics motion for a default judgment. First, Xcentrics motion seeks a default judgment with respect to a pleading, the Verified Complaint filed on July 18, 2011 [Doc. 1] (Complaint), which was superseded by the Verified First Amended Complaint filed on March 26, 2012 [Doc. 55] (First Amended Complaint). The filing of an amended pleading renders the previous pleading a nullity, and the operative pleading is the First Amended Complaint. Therefore, no valid default judgment can now be entered with respect to the Complaint. See Best Western Int'l, Inc. v. Melbourne Hotel Investors, LLC, 2007 U.S. Dist. LEXIS 78920 at *3 (D. Ariz. Oct. 10, 2007). Moreover, Xcentric has not filed proof of service of the First Amended Complaint on Blackert, nor has it obtained an entry of default for Blackert with respect to the First Amended Complaint. Second, Xcentric seeks a default judgment on a claim that alleges that the Defaulting Defendants and defendants that have appeared in this action are jointly and severally liable. Under Frow v. De La Vega, 82 U.S. 552, 21 L. Ed. 60 (1872), and Neilson v. Chang (In re First T.D. & Investment, Inc.), 253 F.3d 520, 532 (9th Cir. 2001), a default judgment should not be entered on claims asserting joint and several liability while some defendants are defending the claims. In the alternative, Ms. Borodkin respectfully requests this Court to hold a hearing prior to entering a default judgment. This Court has discretion to conduct a hearing to satisfy itself as to the amount of damages, establish the truth of the allegations, or inquire

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into any other matter. See Fed. R. Civ. Proc. 55(b). In this malicious prosecution matter, a hearing would be warranted to determine the truth of the allegations, amount of damages, as well as other issues. Xcentrics pleadings raise serious questions about the proper legal standard to be used in assessing Xcentrics claim for malicious prosecution. Its billing records raise significant issues as to the amount of damages, if any, that were proximately caused by the Defaulting Defendants. Accordingly, Ms. Borodkin respectfully requests that Xcentrics motion for a default judgment be denied, or in the alternative, set for a hearing. II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND This is an action for malicious prosecution arising from an action in the Central District of California, Asia Economic Institute et al. v. Xcentric Ventures et al., C.D. Cal. No. 10-cv-1360 (the California Action). The California Action asserted, inter alia, unfair business practices, defamation, and claims for RICO predicated on a pattern of attempted extortion. See First Amended Complaint [Doc. 55], Ex. A. Xcentric commenced this action by filing the Complaint [Doc. 1] on July 18, 2011. The Complaint asserted three causes of action. The Third Cause of Action for Aiding and Abetting Tortious Conduct was asserted jointly and severally against Defendants AEI, Raymond Mobrez (Mobrez), Iliana Llaneras (Llaneras), Blackert and Ms. Borodkin. See Complaint 89. On November 18, 2011 Xcentric filed an affidavit of service of the Complaint on Defendant Daniel F. Blackert (Blackert). [Doc. 43]. On December 15, 2011, Xcentric filed an application for entry of default of Blackert. [Doc. 49]. On December 16, 2011, the Clerk of this Court entered default against Blackert. [Doc. 50]. On March 1, 2012, this Court granted in part Ms. Borodkins motion for a more definite statement. See Order of March 1, 2012 [Doc. 52]. On March 16, 2012, Xcentric filed the Verified First Amended Complaint (First Amended Complaint) through this

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Courts Electronic Court Filing Service. [Doc. 55]. All new allegations in the First Amended Complaint are alleged against Blackert and Ms. Borodkin collectively. See First Amended Complaint 82. No certificate of service was included with the First Amended Complaint. See Doc. 55. Xcentric did not apply for, and did not obtain, an entry of default against Blackert for the First Amended Complaint. Xcentric has not submitted any evidence of service of the First Amended Complaint on Blackert. On July 20, 2012, Xcentric filed this motion. III. LEGAL ARGUMENT A. Rule 55 Standards.

Applications for default judgment are governed by Federal Rule of Civil Procedure 55. Federal Rule 55 provides that, unless the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, an application for a default judgment must be made to the Court. See Fed. R. Civ. Proc. 55(b). The Court may conduct a hearing when, to enter or effectuate judgment it needs to: (A) (B) (C) (D) conduct an accounting; determine the amount of damages; establish the truth of any allegation by evidence; or investigate any other matter.

Fed Rule. Civ. Proc. 55(b). In this case, Xcentrics pleading is not for a sum certain or liquidated amounts. See First Amended Complaint at 72, 83, 90. Xcentric concedes that the amount of damages, if any, must be determined by the Court. See Motion at 3:10-11. B. A Valid Judgment Cannot Be Entered on a Superseded Pleading.

A valid judgment cannot be entered on a superseded pleading. The facts here are identical to those in Best Western Int'l, Inc. v. Melbourne Hotel Investors, LLC, 2007 U.S. Dist. LEXIS 78920 (D. Ariz. Oct. 10, 2007). In Best Western, the plaintiff moved for

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default on an original complaint, but had filed an amended complaint. See id at *2. The plaintiff failed to obtain entry of default with respect to the amended complaint, and failed to submit evidence that it had served the amended complaint on the defendant. See id. Under these circumstances, default judgment was denied. See id. at *3. An amended complaint supersedes the original, the latter being treated thereafter as non-existent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); Best Western, 2007 U.S. Dist. LEXIS 78920 at *2. Xcentrics motion for default judgment is premised on the original Complaint filed July 17, 2011. See Motion [Doc. 99] at 1:26, 2:26. Xcentric filed the First Amended Complaint on March 16, 2012, rendering the Complaint a nullity. Accordingly, default judgment cannot be granted on the Complaint. A party moving for a default just must also demonstrate that it has served the operative pleading on the defendant and followed a two-step process, first obtaining entry of default with respect to the operative pleading, then moving for a default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). Xcentric has not followed this procedure with respect to Blackert. Xcentric has not obtained entry of Blackerts default with respect to the First Amended Complaint. Xcentric has filed no evidence of service of the First Amended Complaint on Blackert. Accordingly, default judgment should not be granted. See Best Western, 2007 U.S. Dist. LEXIS 78920 at *3. C. Default Judgment Should Not Be Entered Because Xcentric Claims that Liability Is Joint and Several, and Some Defendants Have Appeared.

[W]here a complaint alleges that defendants are jointly liable and one of them defaults, judgment should not be entered against the defaulting defendant until the matter has been adjudicated with regard to all defendants. Garamendi v. Henin, 683 F.3d 1069, at *34 (9th Cir. 2012) (citing Neilson v. Chang (In re First T.D. & Investment, Inc.), 253 F.3d 520, 532 (9th Cir. 2001)); Frow v. De La Vega, 82 U.S. 552, 21 L. Ed. 60 (1872).

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Moreover, if an action against the answering defendants is decided in their favor, then the action should be dismissed against both answering and defaulting defendants. Neilson 253 F.3d at 532 (citing Frow at 554). The Third Cause of Action alleges that the Defaulting Defendants, Mobrez, Llaneras and Ms. Borodkin are jointly and severally liable. See First Amended Complaint 82. Defendants Mobrez and Llaneras have appeared and indicated an intention to defend against this action. See Doc. 104. Ms. Borodkin has appeared and filed a motion to dismiss the claims in this action. See Doc. 102. Accordingly, default judgment should not be entered until these claims have been adjudicated with regard to all defendants. See Neilson, 253 F.3d at 532; Frow, 82 U.S. at 553; Garamendi, 683 F.3d 1069. D. A Hearing Should Be Conducted to Determine Damages, Establish the Truth of Xcentrics Allegations, or Inquire Into Other Matters.

Entry of default judgment is not a matter of right. "Its entry is entirely within the court's discretion and may be refused where the court determines no justifiable claim has been alleged or that a default judgment is inappropriate for other reasons." See Enter. Bank & Trust v. Vintage Ranch Inv., LLC, 2012 U.S. Dist. LEXIS 53265 at *3 (D. Ariz. Apr. 16, 2012); Eason v. Indymac Bank, FSB, 2010 U.S. Dist. LEXIS 57573, *2010 WL 1962309, * 1 (D.Ariz. May 14, 2010) (citing Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) and Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). Entry of default judgment is not mandatory upon Plaintiff's request, and the court has discretion to require some proof of the facts that must be established in order to determine liability." See Martino v. Chapman, 2008 U.S. Dist. LEXIS 121402, 2008 WL 110948, * 1 (D.Ariz. Jan. 8, 2008) (quoting Apple Computer Inc. v. Micro Team, 2000 WL 1897354, at * 3 n. 5 (N.D. Cal. December 21, 2000) (citing 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 2688 (3rd ed. 1998)). In this case, the Court should require some proof of the facts that would establish liability.

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1.

The Court Should Review the Probable Cause Standard Applicable to Xcentrics Claim for Malicious Prosecution.

This is a malicious prosecution case brought under California law. See Motion [Doc. 99] at 3:10-13. In a claim for malicious prosecution under California law, the plaintiff must show that the defendant initiated or continued a lawsuit (1) without probable cause; and (2) with malice. See Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 87172 (1989) (quoting Bertero v. National General Corp., 13 Cal.3d 43, 50 (1974)). An action is initiated or continued without probable cause where the action is not legally tenable. See Sheldon, 47 Cal. 3d at 877. The probable cause element therefore requires an objective evaluation of legal tenability and is a matter of law to be decided by the Court. See Downey Venture v. LMI Ins. Co., 66 Cal. App. 4th 478, 49798 (1998). Xcentric operates a website called Ripoff Report. See First Amended Complaint 2. Xcentric claims to be a forum where anyone can post negative reviews of companies and individuals. See id. at 3. In the underlying California Action, plaintiffs claimed, inter alia, that certain of Xcentrics statements and representations to the public about its service were unfair business practices under Californias Business and Professions Code 17200 et seq. See First Amended Complaint, Ex. A. Plaintiffs also sought legal determination about whether Xcentrics four-step application process for the Corporate Advocacy Program (CAP) amounted to a pattern of racketeering predicated on attempted extortion. See First Amended Complaint, Ex. A; Request for Judicial Notice in Support of Motion to Dismiss [Doc. 103], Ex. 8 (First Amended Complaint in California Action filed July 27, 2010). Although AEI, Mobrez and Llaneras did not advance to the step of the CAP application process in which they would have been quoted the prices for joining CAP (getting to that step required an agreement not to sue Xcentric or the authors or Ripoff

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Reports), others had. See Amended California Complaint, attached to Request for Judicial Notice in Support of Motion to Dismiss [Doc. 103], Ex. 8 140-68. In this case, part of Xcentrics legal argument is that the claims in the California Action were not objectively legally tenable because Section 230(c)(1) of the Communications Decency Act, 47 U.S.C. 230(c)(1) immunizes them from such claims. Xcentric claims: First, Xcentric is entitled to absolute immunity under the CDA as long as the material at issue was submitted by a third party. See Motion [Doc. 99] at 7:27-8:7 (emphasis added). Xcentric argues that the concept of immunity is so well established in the law that it is entitled to punitive damages. See Motion at 7:1-9:10. Xcentric overstates the exclusion from liability accorded under Section 230(c)(1). Courts in the Ninth and Seventh Circuits have for several years held that there is no blanket immunity for website operators under Section 230(c)(1). In Levitt v. Yelp!, the Northern District of California again reviewed the rule in the 9th Circuit established by Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009) that there is no general immunity under Section 230(c) of the CDA for third party content, even citing Energy Automation v. Xcentric to clarify that there is no blanket immunity from suit under the CDA: Although, as explained more fully below, Section 230(c) precludes certain aspects of plaintiffs' unfair and unlawful practices claims, it does not provide Yelp blanket "immunity" from suit or in any way limit this court's jurisdiction over plaintiffs' claims. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009) ("[I]t appears clear that neither this subsection nor any other declares a general immunity from liability from third-party content . . . 'Subsection (c)(1) does not mention 'immunity' or any synonym.'" (quoting Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc, 519 F.3d 666, 669 (7th Cir. 2008)); Energy Automation Sys., Inc. v. Xcentric Ventures LLC, No. 3:06-1079, 2007 U.S. Dist. LEXIS 38452,

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2007 WL 1557202, at (M.D. Tenn. May 25, 2007) ("Although courts speak in terms of 'immunity' . . . this does not mean that the CDA has created an 'immunity from suit' . . . Whether or not that defense applies in any particular case is a question that goes to the merits of that case, and not to the question of jurisdiction."). Levitt v. Yelp! Inc., 2011 U.S. Dist. LEXIS 99372, 31-32 (N.D. Cal. Mar. 22, 2011) Subsequently, in Levitt v. Yelp! Inc., 2011 U.S. Dist. LEXIS 124082 (N.D. Cal. Oct. 26, 2011), the Northern District of California described that Section 230 of the CDA would not immunize a ratings or review website from claims arising from the websites misrepresentation of the purported neutrality of its service: [I]t could be argued that the harm to the public (and potentially to businesses), which relies on the purported neutrality of Yelp's service, stems from an alleged misrepresentation about Yelp's posting criteria and failure to disclose its alleged practice of manipulating ratings in favor of those who advertise. Claims of misrepresentation, false advertising, or other causes of action based not on Yelp's publishing conduct but on its representations regarding such conduct, would not be immunized under 230(a)(1). See, e.g., Anthony v. Yahoo Inc., 421 F. Supp. 2d 1257, 1263 (N.D. Cal. 2006) (holding that the CDA did not immunize defendant for misrepresentations relating to third-party generated content); Barnes, 570 F.3d at 1108-09 (holding that a breach of contract claim based on promissory estoppel for failing to remove content a website promised to remove was not barred by the CDA). Id. at *31. These claims -- which the Levitt court held were not immunized -- were exactly the ones that were asserted by the plaintiffs in the California Action following the dismissal of the RICO claim predicated on a pattern of attempted extortion. This Court can take judicial notice that Xcentrics pleading refers to the amended complaint filed in the California Action on July 27, 2010 (the Amended California Complaint). See FAC 57. The Amended California Complaint alleged that statements and conduct of Xcentric were arguably unfair business practices under California law. See Amended California Complaint, attached to Request for Judicial Notice in Support of Motion to Dismiss [Doc. 103], Ex. 8.

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The Amended California Complaint alleged that Xcentrics unfair business practices included: (1) Xcentrics failure to disclose the high cost of joining the Corporate Advocacy Program (CAP) that might influence the publics perception of the neutrality of an endorsement; see Amended California Complaint 151-55, 303; (2) misleading statements that Xcentric never removed Ripoff Reports for money when Xcentric had removed Ripoff Reports pursuant to a settlement agreement, see 210-12 and also replaced Ripoff Reports with favorable content for CAP members, see Amended California Complaint 163-68; (3) Xcentrics practice of manipulating the appearance of search engine results with the insertion of metatags to present more favorable search engine results for paying members of CAP see Amended California Complaint 138-68; and (4) Xcentrics urging the public to file rebuttals to Ripoff Reports without disclosing that adding a rebuttal tends to make the report more prominent in search engine results but will not displace negative content in search results, see Amended California Complaint 227-46. Furthermore, the Amended California Complaint alleged a violation of a specific law, rule or policy namely, Section 5 of the FTC Act), and contained specific, concrete allegation of quantifiable harm caused by Xcentrics unfair business practices. See Lozano v. AT&T Wireless Servs., 504 F.3d 718, 736 (9th Cir. Cal. 2007). The Amended California Complaint included declarations from the plaintiffs and several other affected California consumers describing how online reputation repair and search engine optimization (SEO) consultants monitor for new Ripoff Reports and successfully sell reputation repair services to the subjects. See Amended California Complaint 214-17 (Plaintiffs paid $890, $600, $600, and $100 to reputation repair specialist); 219 (Tina Norris paid $600 to Reputation Defender); 220 (Kathy Spano and her teenage daughter paid $3,000 to SEO consultant), 222 (Laura Snoke paid a flat fee of $3,500 and monthly fee of $300 to SEO consultant), and 225 (Peter Mallon was quoted fee of $2,995 from Quick Rep

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Repair).

The clearly established consumer protection law alleged to be violated was

Section 5 of the FTC Act, 15 U.S.C. 45. See Amended California Complaint 303. In short, Xcentrics only theory for why the California Action was without probable cause is that Mobrez and Llaneras were allegedly caught lying about oral conversations with Magedson. However, this theory does not address any of the unfair business practices or other claims in the California Action after July 27, 2010. And, as described below, a significant amount of legal fees that Xcentric seeks to recover arose after July 27, 2010. Accordingly, Xcentric has not demonstrated that it is entitled to judgment on the amounts sought. 2. The Court Should Review Xcentrics Legal Bills for Reasonableness.

Xcentric concedes that the amount of damages must be determined. Not all of the amounts shown on the legal bills submitted by Xcentric in support of its damages claim [See Affidavit of Maria Crimi Speth (Speth Aff.) [Doc. 99-2] at Ex. A] were arguably caused by the acts complained of here. Xcentric submits 14 pages of legal bills incurred between July 27, 2010 and July 17, 2011, see Doc. 99, Ex. A at 17-31. Yet nowhere in Xcentrics pleading or motion does Xcentric allege why the remainder of the claims litigated in the California Action after July 27, 2010 lacked objective legal tenability. The only concrete reason alleged in the First Amended Complaint for why the California Action was not legally tenable is that Mobrez and Llaneras had committed perjury. With respect to the damages on the Second Cause of Action for Wrongful Continuation of Legal Proceedings, the damages are especially problematic. Xcentric alleges that the Second Cause of Action claims incepted as of May 7, 2010. See First Amended Complaint. 76. However, the damages sought on this claim (on which Ms. Borodkin is also named, unlike the First Cause of Action) appear to include legal fees

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from prior to May 7, 2010. Indeed, many of the time entries do not appear to show, in sufficient detail, that the time was for defending against any claim improperly brought in the California Action, as opposed to other general activities directed against the defendants here. For instance, on May 6, 20101, there is an entry for CORRESPONDECE WITH GEN COUNSEL REGARDING TOMORROWS DEPOSITION OF RAY AND TECHNIQUEFOR OBTAINING CONFESSION TO PURGERY. See Speth Aff. [Doc. 99-2], Ex. A at 10. Moreover, on May 26, 2010, there is a time entry for EMAILS WITH DAVID REGARDING SHARING OF INFORMATION BY AXIS OF EVIL. See id. at 12. The Court in the California Action had held that Xcentrics recording of telephone calls between Mobrez and Magedson violated Californias wire-tapping law, see Asia Econ. Inst. v. Xcentric Ventures, LLC, 2010 U.S. Dist. LEXIS 133370 at *33 (C.D. Cal. July 19, 2010) (Thus, at the very least, some of the recordings that Defendants seek to admit were obtained in violation of California Penal Code 632(a)). Disturbingly, there are numerous references in Xcentrics legal bills to attempting to report Mobrez for perjury and subsequent recordings of Mobrez and Ms. Borodkins calls by Magedsons former personal assistant, James Rogers. On September 13, 2010, there is a time entry for TELEPHONE CALL TO US ATTORNEY'S OFFICE CENTRAL DISTRICT OF CALIFORNIA - CIVIL DIVISION REGARDING POSSIBLE PERJURY CHARGES; TELEPHONE CONFERENCE WITH ROD SILVA, US ATTORNEYS' OFFICE REGARDING FILING COMPLAINT CONCERNING PERJURY. EMAIL TO MARIA CRIMI SPETH REGARDING SAME. RESEARCH US ATTORNEYS' OFFICE WEBSITE REGARDING SAME. See id. at 22-23. Moreover, there is a time entry on October 23, 2010 for CONFERENCE WITH JAMES ROGERS AND ED MAGEDSON REGARDING OUR REQUEST THAT JAMES GIVE DEPOSITION TESTIMONY RATHER THAN INTERVIEW, AND

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JAMES HAS BEEN RECORDING RAYMOND AND LISA. See id. at 24-25. Final judgment in the California Action was entered on June 15, 2011. See First Amended Complaint 66. Yet Xcentric includes in its claim for damages here bills for July 27, 2011: EMAIL AND TELEPHONE CONFERENCE WITH MARIA CRIMI SPETH REGARDING FILING CIVIL COMPLAINT WITH US ATTORNEYS' OFFICE; DOWNLOAD FORM FROM WEBSITE OF US DEPARTMENT OF JUSTICE; FACTUAL RESEARCH REGARDING LETTER SENT TO US ATORNEYS OFFICE IN CENTRAL DISTRICT OF CALIFORNIA. TELEPHONE CONFERENCE WITH SHARON AND EMAIL TO DAVID REGARDING CORRECT PLACE TO REPORT PERJURY. See id. at 27. In short, it appears that items of work that did not directly relate to defending against any claims improperly brought in the California Action have been submitted. In particular, Xcentric is seeking to profit from its own unclean hands in recording its calls with Mobrez without consent or authorization. Accordingly, a hearing would be necessary to determine which of Xcentrics legal bills were proximately caused by Defaulting Defendants.

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IV.

CONCLUSION. For the foregoing reasons, Ms. Borodkin respectively requests that the default

judgment be denied or be set for a hearing. RESPECTFULLY SUBMITTED this 6th day of August, 2012. IVERSON,th YOAKUM, PAPIANO & HATCH 633 West 5 Street, 64th Floor Los Angeles, CA 90071 By /s/ Lisa J. Borodkin Lisa J. Borodkin Admitted Pro Hac Vice QUARLES & BRADY LLP Renaissance One, Two North Central Avenue Phoenix, AZ 85004-2391 John S. Craiger David E. Funkhouser III Attorneys for Lisa Jean Borodkin

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /s/ Lisa J. Borodkin David S. Gingras, Esq. (David@GingrasLaw.com) Attorneys for Plaintiff Raymond Mobrez pro se (raymond@asiaecon.org) Iliana Llaneras pro se (iliana@asiaecon.org) CERTIFICATE OF SERVICE I hereby certify that on August 6, 2012, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant:

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