139 F.Supp.2d 805 (2001)
TEWANI IMPORTS, INC., Ramesh Tewani, Raju Tewani, and Mohan Tewani, Plaintiffs,
v.
NORWEST BANK, N.A., Defendant.
Norwest Bank, N.A., Defendant-Counterclaimant,
v.
Tewani Imports, Inc., Ramesh Tewani, Raju Tewani, and Mohan Tewani, Plaintiffs-Counterdefendants.
Norwest Bank, N.A., Third-Party Plaintiff,
v.
United States Postal Service, Third-Party Defendant.
United States Postal Service, Third-Party Defendant-Counterclaimant,
v.
Norwest Bank, N.A., Third-Party Plaintiff-Counterdefendant.
No. Civ.A. L-99-5.
United States District Court, S.D. Texas, Laredo Division.
March 9, 2001.
*806 *807 Adan A. Gonzalez, III, Jones and Gonzalez, Laredo, TX, for plaintiffs.
Horace C. Hall, Hall Quintanilla & Alarcon, Laredo, TX, Judith Reed Blakeway, Strasburger & Price, San Antonio, TX, for defendant.
Hector Carlos Ramirez, Office of U.S. Attorney, Laredo, TX, Richarmond I McKay, Attorney at Law, Washington, DC, for United States Postal Service.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
ELLISON, District Judge.
This action was tried to the Court on January 17-18, 2001. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court now sets forth its findings of fact and conclusions of law.

I. FINDINGS OF FACT
1. Plaintiff Tewani Imports, Inc. ("Tewani Imports"), is a Texas corporation with its principal place of business in Laredo, Texas. Plaintiffs Mohan and Raju Tewani are officers and 50 percent shareholders of Tewani Imports. Their father, Plaintiff Ramesh Tewani, is the bookkeeper of Tewani Imports.
2. Defendant/Counterclaimant/Third-Party Plaintiff Norwest Bank Texas, N.A. (erroneously sued as Norwest Bank, N.A.), now known as Wells Fargo Bank, Texas, N.A., ("Wells Fargo") is a national banking association with a branch in Laredo, Texas.
3. Third-Party Defendant/Counterclaimant United States Postal Service ("Postal Service") is an agency of the federal government which sells, among other items, domestic and international money orders.

A. The Money Orders Deposited by Tewani Imports

4. In 1997, Tewani Imports accepted for payment of goods domestic money orders that had been negotiated in Mexico.
5. In 1997, Wells Fargo, through the Senior Vice-President of its Laredo branch, Mr. Adalberto Nava, informed Tewani Imports not to accept domestic money orders that had been negotiated in Mexico.
6. In October 1997, Tewani Imports began accepting for payment of goods international money orders that had been negotiated in Mexico.
7. In July of 1998, Mr. Nava informed Tewani Imports that approximately 15-18 international money orders *808 had been returned by the Postal Service.
8. Following a meeting with Mr. Nava, Plaintiff Mohan Tewani, the Secretary of Tewani Imports, informed Mr. Nava that the returned items came from one customer, who had made good on the amount of these items.
9. The customer who had been paying with international money orders is Mr. Antonio Rubin, whom Mr. Mohan Tewani had met in Mexico City.
10. Tewani Imports never saw any of the endorsers of the international money orders that it received from Mr. Rubin. The money orders were delivered to Tewani Imports by a courier named Rodolfo.
11. Tewani Imports never asked Mr. Rubin where he had received the endorsed money orders.
12. Between October 1997 and June or July 1998, Tewani Imports accepted approximately $700,000 in international money orders from Mr. Rubin.

B. Postal Service Processing of Allegedly Forged Money Orders

13. Domestic postal money orders are purchased at post offices within the United States, but are no longer negotiated at post offices. They are negotiated at banks throughout the United States, and presented to the Federal Reserve Bank of St. Louis.
14. International postal money orders are also purchased at post offices within the United States, and must be negotiated at banks and other institutions outside the United States. International postal money orders are presented to the Federal Reserve Bank of St. Louis only by domestic banks with an American Banking Association ("ABA") number.
15. Money orders presented to the Federal Reserve Bank of St. Louis are posted on the Federal Reserve's computer system.
16. International postal money orders have a maximum value of $700. Money orders that are negotiated for an amount greater than $700 are immediately noted by a discrepancy between the entry in the Postal Service's sales system and the information received from the Federal Reserve Bank's computer system.
17. A purchaser of an international money order has two years from the date a money order is cashed in which to claim a refund.
18. A purchaser who believes that a money order has been lost or stolen submits a claim through a five-step process. (1) The purchaser presents the money order receipt to any post office (along with a fee of $2.75) and receives a claim form, titled Form 6401.(2) The purchaser and the intended payee both sign the Form 6401 under penalty of perjury, then submit it to the Postal Service's St. Louis office. (3) If the money order has been cashed, the Postal Service notifies the customer and sends him or her a copy, from microfilm, of the front and back of the cashed money order. (4) If the customer believes that someone other than the intended payee cashed the money order, he or she notifies the Postal Service. (5) If the customer completes the preceding step, the Postal Service sends the customer a claim for alleged wrong payment, titled Form 306, which the purchaser *809 and payee both sign under penalty of perjury, then submit to the Postal Service's St. Louis office.
19. A customer's Form 6401 inquiry is not a notice to the Postal Service of a problem with the money order. Many customers fill out a Form 6401 simply to receive a copy of the cashed money order. The Postal Service sends out approximately 400,000 copies of money orders each year.
20. The volume of Form 306s received by the Postal Service increased significantly during Fiscal Years 1997 and 1998:
In FY 1996, the Postal Service received 6,557 Form 306s.
In FY 1997, the Postal Service received 42,581 Form 306s.
In FY 1998, the Postal Service received 39,195 Form 306s.
In FY 1999, the Postal Service received 20,113 Form 306s.
In FY 2000, the Postal Service received 10,778 Form 306s.
21. A customer's request for a Form 306 does not necessarily mean that there has been a forgery, or even that the customer will ultimately claim that a forgery has taken place. In FY 1997, customers returned 73.5 percent of the Form 306s mailed by the Postal Service. That figure was 86 percent in FY 1998.
22. The Postal Service tracks in its Form 306 computer database the date on which it initially receives a Form 306 from a customer.
23. After initial receipt of a Form 306, if employees find one or more errors, such as the lack of a required name or signature, the Postal Service returns the Form 306 to the customer.
24. Some Form 306s must be returned to a customer more than once.
25. While the Postal Service awaits a completed Form 306, it requests the actual negotiated money order from the Federal Records Center in St. Louis, Missouri. Because these money orders are sorted by the order in which they are paid, the Postal Service then sends them out to be sorted by serial number.
26. Following the Postal Service's initial receipt of a Form 306, subsequent correspondence from the customer relating to a Form 306 is not date stamped.
27. When a Form 306 is complete, it is bundled with other Form 306s, then sent to the Postal Service's Inquiry Unit, where the information from the Form 306 is entered into the computer system. This information is linked to the money order's serial number.
28. Approximately 90 percent of all completed Form 306s received during the relevant time period involved money orders negotiated in Mexico.
29. Because of the sharp increase in the number of Form 306s received in FY 1997, the Postal Service stopped processing them  and invoicing presenting banks  from November 1997 to January 1998.
30. A casa de cambio is a currency exchange house, which ostensibly profits by trading on the exchange rate between the dollar and the peso. Casas de cambio are commonly used in Mexico for cashing checks.
31. In early 1998, the Postal Service reached an agreement with an association of Mexican casas de cambio *810 ("CDC Association"). Pursuant to that agreement, upon receiving completed Form 306s, the Postal Service sent documentation of all allegedly forged money orders from Mexico to the CDC Association's office in Mexico City.
32. Although the additional step in processing these Form 306s was scheduled to take only 10 days, the CDC Association often did not respond until 26 to 30 days had passed.
33. The CDC Association never proved, to the Postal Service's satisfaction, the legitimacy of any endorsements on international money orders.
34. The agreement between the Postal Service and the CDC Association was discontinued on or about September 24, 1999.
35. Because nearly all money orders negotiated in Mexico were cashed at a casa de cambio, the Postal Service sent all of these money orders to the CDC Association for review.
36. Although Wells Fargo's ABA number was on the back of all the money orders in the instant case, this fact alone does not mean that it was error for the Postal Service to send these money orders to Mexico City. First, all money orders  even those negotiated by a casa de cambio  had to be presented to the Federal Reserve Bank by an American bank. Wells Fargo's ABA number was quite possibly on the back of other money orders originally negotiated at a casa de cambio.[1] Second, sorting money orders into those negotiated at a casa de cambio and those negotiated at an American bank would have contributed to further delay.
37. After 26-30 days had elapsed for a response from the CDC Association, a Postal Service examiner determines whether to pay or deny the customer's request for a refund.
38. If there are no alterations on the face of a money order, the decision to pay a Form 306 is made by comparing the endorsement on the money order with the payee's signature on the Form 306.
39. If the examiner cannot determine whether the signatures were different, he or she refers the money order and Form 306 to another Postal Service employee.
40. Based on the foregoing evidence, the Court finds that the time for examination pursuant to Domestic Mail Manual § S020.3.2 (Jan.1999) was 26-30 days.
41. Once each week, the Postal Service issues checks for Form 306s that it has decided to pay.
42. A different Postal Service employee invoices banks for paid Form 306s. Because the employee must look at the money order to determine the presenting bank's ABA number, and because the accounts receivable system is not linked to the Form 306 computer system, this process may take an additional 7 to 10 days from the date that the customer is refunded.
43. Based on the foregoing evidence, the Court finds that the time for reclamation pursuant to Domestic *811 Mail Manual § S020.3.4 (Jan.1999) was 7-10 days.

II. CONCLUSIONS OF LAW

A. Evidentiary Rulings

1. Wells Fargo objected to Postal Service witness Ms. Constance White because her identity was not disclosed pursuant to Fed.R.Civ.P. 26(a)(1), or in response to Wells Fargo's interrogatories. The Court reserved ruling on these objections until the trial was concluded. In view of the substantial overlap of testimony between Ms. White and that offered by Mr. Cuffie in his deposition and at trial, the Court finds that Ms. White's testimony was not prejudicial to Wells Fargo. Contrary to Wells Fargo's assertion that "the USPS has finally arrived at what it has to say, and who has to say it," Ms. White's testimony simply addressed the unresolved questions from Mr. Cuffie's testimony. The processing times and procedures discussed by Ms. White were entirely consistent with Mr. Cuffie's deposition testimony. Her testimony simply filled in some of the blanks from Mr. Cuffie's deposition  such as the operational detail of how Form 306s were processed, as described in ¶¶ 25-27, 37-39, and 41-42, supra. Wells Fargo would like to limit the Postal Service to Mr. Cuffie's deposition answers, but because his deposition answers raised questions about the Form 306 examination process, the Court finds Ms. White's testimony to be relevant. Further, although Wells Fargo claims prejudice as a result of the late designation of Ms. White, Wells Fargo was able adequately to cross-examine her. Therefore the Court finds no prejudice as a result of the Postal Service's failure to designate Ms. White at an earlier date.
2. Wells Fargo also objected to Ms. White and to Exhibits 1, 2, and 7, because the identity of the witness and the data compiled in these Exhibits were not disclosed thirty days prior to trial, as required by Fed. R.Civ.P. 26(a)(2)(C). Because Ms. White testified as a fact witness, not an expert witness, this Rule is inapplicable. To the extent that Wells Fargo may be relying on Fed. R.Civ.P. 26(a)(3), governing pretrial disclosures, the Court required that the Joint Pretrial Statement be filed on or before January 8, 2001. Compliance with the Court's order regarding the Pretrial Statement satisfied Rule 26(a)(3). See Marens v. Carrabba's Italian Grill, Inc., 196 F.R.D. 35, 42 (D.Md.2000) (refusing to order disclosure of identity of witnesses and documents under Rule 26(a)(3) "until the pretrial [statement] is submitted").
3. Wells Fargo objected to Postal Service Exhibit 1 because the data compiled in this Exhibit were not disclosed pursuant to Fed.R.Civ.P. 26(a)(1), or in response to Wells Fargo's interrogatories. The Court reserved ruling on this objection until the trial was concluded. Exhibit 1 is a chart summarizing the number of Form 306s mailed, returned, denied, and paid each Fiscal Year from 1996 to 2001. Exhibit 1 is outside the scope of the interrogatory requests cited by Wells Fargo in its Motion to Strike, and not "relevant to disputed facts alleged with particularity." Fed.R.Civ.P. 26(a)(1)(B) (emphasis *812 added). Until trial, neither party adequately explored the number of Form 306s that were processed during the relevant time period, and the effect that this volume had on the examination of money orders in the instant case. The Court therefore holds that disclosure by the Postal Service in the Joint Pretrial Statement was sufficient.
4. Wells Fargo objected to Postal Service Exhibit 2 because the information compiled in this Exhibit was not disclosed pursuant to Fed.R.Civ.P. 26(a)(1), or in response to Wells Fargo's interrogatories. The Court reserved ruling on this objection until the trial was concluded. Exhibit 2 is a timeline summarizing the processing of Form 306s during Fiscal Years 1997 and 1998. Exhibit 2 is barely within the scope of the interrogatory requests cited by Wells Fargo in its Motion to Strike, and is also "relevant to disputed facts alleged with particularity." Fed. R.Civ.P. 26(a)(1)(B). Nonetheless, the Court finds that Exhibit 2 simply expands on information provided at Mr. Cuffie's deposition, and in Postal Service Exhibit 3. Although Wells Fargo claims prejudice as a result of the late disclosure of this document, it was able adequately to cross-examine Postal Service witnesses about the veracity of this information. Because earlier disclosure would have made no difference, the Court finds no prejudice as a result of the Postal Service's failure to provide this document at an earlier date.
5. Wells Fargo objected to Postal Service Exhibit 7 because the information compiled in this Exhibit was not disclosed pursuant to Fed.R.Civ.P. 26(a)(1), or in response to Wells Fargo's interrogatories. The Court reserved ruling on this objection until the trial was concluded. Exhibit 7 is the Declaration of Edward L. Brown, Manager of the Postal Service Accounting Service Center, including a composite billing history of 696 reclaimed, unpaid international money orders for 1998 and 1999 owed to the Postal Service by Wells Fargo. These money orders have an aggregate value of $224,148. Exhibit 7 is clearly within the scope of the interrogatory requests cited by Wells Fargo in its Motion to Strike, and is also "relevant to disputed facts alleged with particularity." Fed.R.Civ.P. 26(a)(1)(B). Nonetheless, because this information is largely repetitive of Wells Fargo Exhibit 15, and because the parties stipulated that the amount of money orders at issue is $198,749 on the Postal Service's claim, and $95,832 on Wells Fargo's claim, the Court finds no prejudice as a result of the Postal Service's failure to provide this document at an earlier date.
6. Wells Fargo objected to Postal Service Exhibit 16, a letter from Jayne Schwartz, Manager of Corporate Accounting, to the director of the association of casas de cambio, dated September 24, 1999. Wells Fargo argues that Exhibit 16 is inadmissible hearsay, but this argument is misplaced. The Postal Service offered this exhibit not to prove the truth of Ms. Schwartz's allegations, but rather to show her letter's independent legal significance. See Fed. R.Evid. 801(c) (" `Hearsay' is a statement ... offered in evidence to prove the truth of the matter asserted."); Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 540 (5th Cir.1994) (holding admission of licensing agreement to be *813 proper, because of its independent legal significance). Specifically, the Postal Service's practice of sending Form 306s to the CDC Association, prior to paying claims and invoicing presenting banks, was discontinued as of September 24, 1999. Mr. Cuffie, although he appeared not to recall the letter, nonetheless authenticated sufficiently the fact that the pilot program was discontinued at approximately that time.
7. Wells Fargo objected to the copies of signed Form 306s contained in Postal Service Exhibits 21, 32 and 33. These exhibits are also not hearsay, and are therefore admissible. The Court recognizes that a Form 306 would be hearsay if the Postal Service were offering it to prove the identity of the signatory. See United States v. Vigneau, 187 F.3d 70, 74-77 (1st Cir.1999) (holding inadmissible, in a criminal trial, portions of Western Union "To Send Money" forms indicating the signer's name, address, and telephone number). Here, the Postal Service did not offer the Form 306s to establish the truth of the matter asserted  i.e., that the alleged payees were actually "Evelia Zepeda Miranda" and "Carmen Figueroa." On the contrary, these forms were offered simply to establish that the payees' signatures on the Form 306s did not match those on the negotiated money order. See United States v. Franks, 939 F.2d 600, 600-01 (8th Cir.1991) (holding that signatures and addresses on Federal Express airbills were not hearsay, because they "were offered to prove ... only that the packages were received at [defendant's] address by someone who signed her name"). Further, Mr. Cuffie established an adequate foundation for the admissibility of the Form 306s as business records. See id. at 601.

B. Burden of Proof Regarding Whether the Money Orders Were Forged

The Court has already held that, as between Wells Fargo and the Postal Service, the former has the burden of proving the genuineness of all endorsements for money orders that the Postal Service has reclaimed. See Order of January 16, 2001, at 16-17. In its pleadings, Wells Fargo failed to allege that any endorsements at issue are genuine, and it failed to offer any such proof at trial.
Wells Fargo now suggests that, under the Postal Service's regulations, some party either it or the Postal Service  must prove that the endorsements are forged. As a corollary, Wells Fargo argues that because it has guaranteed the prior endorsements, it cannot be charged with proving that the endorsements are forged. Such a claim, it asserts, would breach its duty of good faith to the depositor.
This line of reasoning is mistaken. The Postal Service regulations permit the postmaster general to examine money orders for "indicia of ... forged endorsements." DMM § S020.3.1(e) (Jan.1999). After a finding of forgery, the postmaster general has a reasonable time to demand a refund from the presenting bank. DMM § S020.3.4. Nowhere does the Domestic Mail Manual require a party to prove that an endorsement is forged. On the contrary, once a forgery has been "found," the burden shifts to the presenting bank to prove that the endorsement is genuine. Any other reading of the regulation would render meaningless Wells Fargo's guaranty of prior endorsements.
Even if the Postal Service were to bear a threshold burden of proving that the endorsements were forged, it has carried this burden. The Postal Service's witnesses testified that the Postal Service *814 compares the endorsement on the money order with the intended payee's signature on the Form 306. This process satisfies the preponderance of the evidence standard.

C. Postal Service Compliance With DMM §§ S020.3.2, S020.3.4

1. Wells Fargo's claims based upon theories of voluntary payment and multiple endorsements were dismissed by the Court's Order of January 16, 2001, and need not be addressed here.
2. In its illegal exaction claim, Wells Fargo bears the burden of proving that the Postal Service failed to comply with its regulations. Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573, 1578 (Fed.Cir.1996); Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1007 (1967).
3. In the Postal Service's reclamation action, Wells Fargo bears the burden of proving, as an affirmative defense, that it was harmed by the Postal Service's delay in notifying it that the endorsements were forged. Clearfield Trust Co. v. United States, 318 U.S. 363, 369, 63 S.Ct. 573, 87 L.Ed. 838 (1943).
4. Although a governmental agency should process claims of forgery more expeditiously, the Postal Service did examine the money orders for forgery within a reasonable time. Especially in light of the unexpected number of claims and the international nature of the market for money orders, that the process took 26-30 days cannot be held to exceed the outer limit of reasonableness. As the Court discussed in its Order of January 16, 2001, delays prior to the receipt of a completed Form 306 are not relevant. At trial, Wells Fargo raised the issue that the Postal Service could have provided earlier notice to presenting banks  for example, when a Form 306 was first generated  of a possible claim of fraud. This argument is insufficient as a matter of law. First, because only 70 to 80 percent of Form 306s are returned at all, prior notice to banks may be premature, causing unnecessary disputes. Second, and more importantly, Wells Fargo ignores the fact that preliminary notice  and possible objections by presenting banks  would further delay the process of paying customers whose money orders were stolen, and who are entitled to a refund.
5. The Postal Service reclaimed the money orders within a reasonable time. A lag of 7-10 days between the determination that a money order is forged, and the Postal Service's invoice to a bank, is well within the period contemplated by Clearfield Trust Co. and the Domestic Mail Manual. Wells Fargo's attempt to distinguish the Postal Service's process from that of other government agencies is unavailing. Ms. Linda Dukart, a fraud examiner for Wells Fargo, testified that the Veterans Administration and the Social Security Administration demand refunds immediately when notice is received that a check to a deceased payee has been negotiated. This testimony, although marginally relevant, is not persuasive on the instant issue. Some time after a person dies, an agency is notified of the person's death, and a notation may be made in the agency's database. See, e.g., 20 C.F.R. § 404.720 (2000) (detailing procedure for notifying Social Security Administration that a person has died). A somewhat *815 analogous example in the instant case would be a Postal Service money order negotiated for a sum in excess of $700: because the money order is irregular on its face, notation is made immediately by the Postal Service. When the genuineness of a signature is at issue, however, there is no automated method through which the Postal Service demands a refund from the presenting bank. To avoid the possibility of invoicing the wrong bank, the Postal Service has separated the functions of refunding customers and invoicing banks. This procedure is sound, and the slight delay that results is justifiable.
6. Wells Fargo has not shown that it was harmed by the Postal Service's delay in processing the Form 306s. Wells Fargo has maintained an action against Tewani Imports, and the Tewanis individually. Under the standard set forth in Clearfield Trust Co., a bank does not establish its affirmative defense simply because recovery through a law suit is more difficult and expensive than through a setoff of its customer's account.

D. Attorney's Fees

No attorney's fees are to be awarded in the instant action, because no statute governs the Postal Service's entitlement to them.

E. Interest

Title 28 of the United States Code provides that "In suits for balances due the Post Office Department may recover interest at the rate of 6 per centum per year from the time of default." 28 U.S.C. § 2718 (1994). This provision appears in a statutory section addressing debts from defaulting contractors and employees. See 28 U.S.C. § 2710. The antecedent circumstances here are different, but because the Postal Service seeks a balance due, it is authorized to bring suit. See 39 U.S.C. § 2601(a) (1994) (providing that "the Postal Service shall ... collect debts due the Postal Service"). The Postal Service is also entitled to prejudgment interest in the instant action, at the annual rate of 6 percent, from the time of default. Based on the undisputed evidence that Wells Fargo stopped paying the reclaimed money orders in September of 1998, the Court holds that interest should be calculated from September 30, 1998.

III. CONCLUSION
For the reasons stated above, the Court enters Judgment as follows:
1. Against Wells Fargo on its claims against the Postal Service;
2. For the Postal Service on its claims against Wells Fargo, in the amount of $198,749, plus 6 percent interest, per annum, calculated from September 30, 1998;
3. Each party is to bear his or its own costs and attorney's fees.
IT IS SO ORDERED.
NOTES
[1]  See Casa de Cambio Comdiv, S.A. De C.V. v. Federal Reserve Bank of Minneapolis, 115 F.3d 618, 620 (8th Cir.1997) (noting that a Treasury check cashed at a Mexican casa de cambio was presented to the Federal Reserve Bank by Norwest Bank, Minnesota, N.A.).


343 S.E.2d 90 (1986)
ADC FAIRWAYS CORPORATION
v.
JOHNMARK CONSTRUCTION, INC.
Record No. 821067.
Supreme Court of Virginia.
April 25, 1986.
Roger E. Warin (Robert E. McLaughlin, Jeffrey P. Moran, Elizabeth A. Noyes-Palmer, Felice Busto, Steptoe & Johnson, Washington, D.C., on briefs), for appellant.
Gary A. Reese (Patterson & Reese, Fairfax, on brief), for appellee.
Present: CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON, and THOMAS, JJ., and GORDON, Retired Justice.
THOMAS, Justice.
This is a contract dispute. ADC Fairways Corporation was a real estate development company engaged in the business of rehabilitating apartment buildings and converting them for sale as condominiums. On March 12, 1980, ADC entered into a contract with Johnmark Construction, Inc. for the rehabilitation and conversion of the Ivymount apartments in northern Virginia. *91 This was the second such contract between ADC and Johnmark.
Pursuant to the Ivymount contract, Johnmark agreed to turn over to ADC approximately seven rehabilitated units per week beginning April 18, 1980. Johnmark fell behind in its delivery schedule. A dispute arose between the parties as to the cause of the delay in rehabilitating the Ivymount units. In order to resolve this dispute, the parties, on June 18, 1980, executed a modification of the March 12, 1980 contract. The modified contract brought the parties current in payments and essentially forgave all matters theretofore in dispute.
Under the June 18 modification, Johnmark agreed to rehabilitate and turn over to ADC seven units per week beginning July 3, 1980. On that date, the promised seven units were not ready. An ADC employee, frustrated about the continued delay, directed Johnmark to leave the job; this directive was not authorized by ADC. Johnmark returned to work on July 8 or 9, 1980, having lost approximately two working days. Pursuant to the modified agreement, seven more units, in addition to the seven due on July 3, 1980, were to be turned over to ADC on July 10, 1980. According to ADC, the units were not ready at that time. Ultimately, on July 24, 1980, each party advised the other that they viewed the contract to have been breached. On that day, Johnmark left the job permanently.
Johnmark sued ADC claiming that ADC breached the contract by insisting "upon changing the lighting fixtures, moldings, appliances, etc., after they were installed or ordered, and refused to pay extra for the change or approve the units until the changes had been made;" by instructing its employees "`to find something wrong with the units' even if there was nothing wrong, and thereby to avoid or delay paying the Plaintiff;" and by "arbitrarily refusing to accept units; delaying payments; making changes; and altering approval procedures."
ADC denied that it breached the contract and asserted, by way of defense, that Johnmark had breached the contract by failing "to perform under the terms of the contracts as modified ... and pursuant to letter communication of July 24, 1980." ADC also contended that by entering the June 18 modification Johnmark waived "any and all claims, disputes, actions and or causes of action" that Johnmark may have had against ADC prior to June 18, 1980. Finally, ADC claimed that because Johnmark was the breaching party, even if ADC owed monies to Johnmark, ADC was nevertheless entitled to an offset for additional costs to complete the Ivymount project.
The case was tried to the court sitting without a jury. The trial court ruled that ADC was the breaching party. On the issue of breach, the trial court explained in a bench ruling as follows: "I find that the Plaintiff [Johnmark] did perform under the contract. I find that delays were caused by ADC, going right to the top man, Daly, whose employees would change things and Daly would change that, adding expense to his own business, extra time, and extra work to the Plaintiff."
With regard to the issue of offset, the trial court said two things: First, that because the delays were attributable almost solely to ADC, ADC was not entitled to an offset for costs to complete the project. Second, the court found that ADC failed to prove the amount of the claimed offset.
On appeal, ADC contends the trial court erred in three ways: (1) in finding that Johnmark performed properly under the contract; (2) in awarding lost profits to Johnmark; and (3) in failing to allow ADC an offset for increased interest costs incurred by ADC because of delays in completing the contract. We will discuss the assignments of error in sequence.

I. Breach

A. Breach by ADC

The trial court ruled that Johnmark performed the contract while ADC breached. ADC contends that the situation is the other way around. According to ADC, the essence of the trial court's opinion regarding breach is that ADC continued to make *92 changes in the choice of certain items to be installed in the units and therefore wrongfully delayed Johnmark in the completion of the work. ADC says that pursuant to the contract and the modification, it had a right to call for changes and thus cannot be held liable for breach for doing what it had a right to do. Second, ADC submits that Johnmark cannot rely on any delay caused by ADC unless Johnmark requested in writing an extension of time for the delay caused by ADC. Without such a written request, ADC contends, Johnmark cannot complain of the delay.
The problem with the arguments advanced by ADC is that they do not respond fully to all the grounds upon which the trial court concluded that ADC breached the contract. Consequently, even if we were to rule in favor of ADC on both points, we would still have to affirm the trial court's determination. This is so because the trial court also found that ADC breached by dismissing Johnmark from the job without complying with the terms of the contract and by the actions of ADC inspectors who "purposely" picked at inconsequential items for the purpose of "delaying payment." Both of these conclusions are supported by credible evidence. Thus, the trial court's determination that ADC breached must be affirmed.

2. Breach by Johnmark

ADC contends further that even if it breached, so did Johnmark. The importance of this contention appears to be that if Johnmark breached, it cannot recover damages for lost profits.
With regard to Johmark's breach, ADC says Johnmark did not complete the units in a workmanlike manner on the schedule set forth in the contract and that Johnmark failed to submit a written request for extension of time as required by the contract. The first two points have been resolved against ADC by the trial court's ruling that the units were arbitrarily refused and that Johnmark was wrongfully dismissed from the job. To say that Johnmark's work was arbitrarily refused is tantamount to saying that its work was of a quality that it should have been accepted. Thus, ADC's contention that the work was not done in a workmanlike manner must be rejected. Further, to say that the work was arbitrarily rejected and that Johnmark was wrongfully dismissed from the job is tantamount to saying that Johnmark is not responsible for not meeting the construction schedule. Thus, ADC's second point must also be rejected.
Next, ADC's contention that Johnmark breached by failing to request in writing an extension of time for delays is untenable. Johnmark was not required to request an extension of time every time there was a delay. Failure to make such a request might have had adverse consequences for Johnmark, but failure to make the request cannot be described as breaching the contract.
We hold that the trial court did not err in finding that Johnmark properly performed under the contract.

II. Damages

The trial court awarded Johnmark damages of $123,412.00 with interest at ten percent per annum. On appeal, ADC does not attack the entire damage award but only that portion attributable to Johnmark's claim for lost profits on the Ivymount project. ADC contends that Johnmark's claim for $47,781.13 in lost profits was speculative and should not have been allowed. We agree.
Johnmark's president, Richard McCarty, described how lost profits were calculated on the work it did not complete because of the dispute with ADC. He said, on direct examination, that the units were to be rehabilitated for a price of $2,562.50 per unit, a figure which he had bid to secure the contract with ADC. He testified further that in his bid he computed "[a]pproximately 15 percent" of the $2,562.50 as profit. He went on to say that the contract called for the completion of 171 units. Thus, profits were calculated by taking 15% of $2,562.50 and multiplying that number by 171.
*93 The court asked whether the profit percentage was in the contract. McCarty replied, "It's not in the agreement, Your Honor. It's when we bid the job, we figured in the profit." (Emphasis added.) While McCarty was on the stand, the following exchange occurred between the court and his counsel:
THE COURT: "Does the contract carry this 15 percent profit provision in it somewhere?"
COUNSEL: "Oh, no, I don'tno, it does not. It doesn't make any provision for guarantee, Your Honor."
THE COURT: "That's what your client testified he anticipated he would make; is that it?"
COUNSEL: "That's right. Under the contract, that was his computed profit of 15 percent."
THE COURT: "Not under the contract but for this work, you mean."
COUNSEL: "I understand. That's correct."
(Emphasis added.)
On cross-examination, McCarty admitted that on a previous rehabilitation job for ADC he had calculated profits of 7.5% but made little or no profit "on the basic contract." He further admitted that in making his per unit bid for the Ivymount work he "estimated expenses." (Emphasis added.) Yet, he could not recall his estimates and had no documents or records to indicate his per unit expenses at Ivymount. Moreover, McCarty admitted that the receipts and disbursements concerning the Ivymount job were not kept separate from other jobs on which Johnmark was working. At that point, the court asked, "Well, how did you break it out to know what a profit would be at Ivymount?" McCarty responded, "As I said, Your Honor, we calculated the profits going into the job. We built that into the price that we bid the job at." McCarty also admitted that the cost of materials increased during the contract period.
The trial court ruled that Johnmark was entitled to recover lost profits. In its bench ruling the court simply said, "[R]eference to the papers shows that 141 units remained at Ivymount. Further reference shows that the contracted profit was 15 percent of the contract price. It gives one the Plaintiff's mathematical figure of $47,781.13."
Lost profits should not have been awarded in this case. They were completely speculative. The $47,781.13 figure was nothing more than the profit Johnmark hoped to make at the time of the bid. There was no evidence to establish that this is the profit that would have been made had Johnmark completed the project. Indeed, there was evidence from Johnmark's president that on a similar rehabilitation project for the same developer no profit had been made whatever.
We said in Boggs v. Duncan, 202 Va. 877, 883, 121 S.E.2d 359, 363 (1961), that "It is well settled that damages are recoverable for loss of profits prevented by a breach of contract `only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.'" (Citations omitted.) That standard was not met in this case. We hold, therefore, that the trial court erred in awarding Johnmark lost profits of $47,781.13.

III. Offset

ADC argues that it is entitled to an offset for expenses incurred in completing the Ivymount project after Johnmark left the job. But ADC could only recover an offset if it had not breached. Because the trial court ruled that ADC breached the contract and because we have upheld that ruling, it follows that the trial court did not err in denying ADC's claim of offset.
Moreover, the trial court also denied the offset because ADC failed to prove the amount. This is an independent basis for denying the claim which would bar ADC from recovering on a theory of offset even if ADC had not breached.

IV. Conclusion

For all the foregoing reasons, the judgment of the trial court will be affirmed in *94 part, reversed in part, and modified. We will enter final judgment here upon the modified judgment.
Affirmed in part, reversed in part, modified, and final judgment.


64 N.J. 100 (1973)
312 A.2d 505
IN THE MATTER OF LAWRENCE P. BRADY, JR., AN ATTORNEY-AT-LAW.
The Supreme Court of New Jersey.
Argued October 24, 1973.
Decided December 12, 1973.
*101 Mr. Paul M. Hanlon argued the cause for the Hudson County Ethics Committee.
Mr. Gerald D. Miller argued the cause for respondent (Messrs. Miller, Hochman, Meyerson and Miller, attorneys).
PER CURIAM.
The Hudson County Ethics Committee found respondent Lawrence P. Brady, Jr. guilty of having violated two disciplinary rules of the Code of Professional Responsibility, namely, DR9-101(C) by indicating or implying to his client that he was able to influence improperly a public official, and DR9-102(B) (4) by failing to pay or deliver to his client funds she had entrusted to him.
The Committee conducted a two-day hearing on charges made by Mrs. Carol Novak at which respondent was represented by counsel. Mrs. Novak testified that on or about March 2, 1971, accompanied by her father, Edward Lodge, she consulted with respondent and asked him to represent her in the event she was locked up by the Union City police. She told him she had been harassed and threatened with arrest because of her association with one J.F., who had been involved in the armed robbery of a travel service agency. It appeared that sometime after the robbery she had driven J.F. to Newark where he had attempted to cash stolen *102 traveler's checks. She also told respondent that she had sold a motor vehicle to Lee Motors of Fort Lee for $1,400 and that Lee Motors had stopped payment of the check at the request of the police because it was suspected that she had purchased the vehicle with funds derived from the robbery. Respondent agreed to represent Mrs. Novak in the event of her arrest and to endeavor to obtain release of the $1,400.
During this first interview respondent received $1,000 in cash from Mrs. Novak and her father. Mrs. Novak testified it was agreed that $500 would be respondent's retaining fee and that the balance of the money was left with respondent for safekeeping because he said that if the police found them with money in their possession it would be confiscated as evidence. Respondent gave a contrary version of the agreement. He testified that the $1,000 he received was a retaining fee agreed upon by Mrs. Novak. He exhibited his office record of cash receipts in support of his contention.
Respondent testified that he thereafter telephoned Lieutenant Steinel of the Union City Police Department. Steinel indicated that Mrs. Novak was not going to be arrested but that he wanted to see her to be assured of her cooperation in their attempts to apprehend J.F. On March 4 or 5 respondent picked up Mrs. Novak in his car and drove her to the police headquarters. Mrs. Novak testified that during the trip respondent said he had to pay off the police; that they were going to release the $1,400 check and not bother her anymore. She said he did not say how much he was going to pay but $1,000 was mentioned and that she told respondent it would be stupid for her to pay $1,000 to get back her $1,400. Respondent testified that Mrs. Novak started the discussion about paying off the police and said, "I know how you guys operate". He said he told her, "I don't know what you're talking about," and denied he said that he was going to pay off the police. At police headquarters, upon receiving Mrs. Novaks promise of cooperation, Lieutenant Steinel telephoned Lee Motors and told the company it could release the $1,400.
*103 Respondent testified that subsequently Mrs. Novak telephoned him twice claiming that he had overcharged her and asking for her money back. He admitted that he had put her off and told her to call back in a week or so. On her third telephone call he suggested that she come to his office.
On March 11 Mrs. Novak came to respondent's office with a tape recorder in her pocketbook and recorded their conversation. Respondent was unaware that she was doing so. A transcript of the recorded conversation indicates Mrs. Novak told respondent that she and her father objected to paying off the police and demanded the return of her father's $500. Respondent did not dispute her statement that the retaining fee agreed upon had been $500 or that he was holding $500 of her father's money. The tape recording indicates he told Mrs. Novak he had already paid off the police and that during the discussion he said, "You know they all want to get paid," and "you know they don't do these things  they expect it in advance and they want it after it happens"; that he also said, "I agree you gave me $1,000 but I had to spend it, I had to spread it around." He told Mrs. Novak that if he returned any money to her it would be his own. He offered to return $300 but Mrs. Novak insisted on payment of the $500. The conversation ended with respondent advising Mrs. Novak to come back to his office later in the day. Mrs. Novak complied. The conversation which followed her return was not recorded. Mrs. Novak testified that respondent repaid her only $300. Respondent claimed that he returned the original $500 which he had kept in a filing cabinet since their first meeting.
On May 4 Mrs. Novak informed respondent she had taped their conversation of March 11 and demanded that he return more money. When he refused she turned the tape over to the Hudson County Prosecutor's office. The tape and a transcript of the recorded conversation were subsequently reviewed by the Ethics Committee during the hearing on the charge of respondent's misconduct.
*104 During his testimony before the Committee respondent admitted that the tape recording appeared to be a segment of the conversation he had with Mrs. Novak. He stated that he did not recall making some of the statements and did not know whether he had made others. However, he did not specifically deny making the statements recorded on the tape.
No evidence was presented to the Committee which indicated that the police had been "paid off" or that respondent made any overtures to do so. However, it is clear that respondent violated DR9-101(C) by indicating and implying to his client that he was able to influence improperly the police officers of Union City.
The presentment of the Ethics Committee makes no express finding of fact as to the disputed issues of whether the entire $1,000 or only part thereof was to be in payment of respondent's retainer and how much money was returned by respondent to Mrs. Novak. However, at oral argument counsel for the Committee informed us that the Committee had resolved both issues in favor of Mrs. Novak's version of the facts. We are convinced from our review of the record that respondent violated DR9-102(B)(4) by improperly withholding and failing to promptly pay to his client funds in his possession which the client was entitled to receive.
Respondent is a young lawyer having been admitted to the bar in 1965. He was employed in the Hudson County Prosecutor's office until September 1, 1970 when he left to engage in the private practice of law. His violation of the disciplinary rules occurred seven months later. We are advised that both before and after the incident involved he had an unblemished record. Considering all the circumstances, it is our judgment that respondent be suspended from the practice of law for six months and until further order of this Court.
For suspension for six months  Justices JACOBS, HALL, PASHMAN and CLIFFORD and Judges CONFORD and COLLESTER  6.


999 A.2d 461 (2010)
203 N.J. 92
STATE
v.
LAU.
C-1034 September Term 2009, 065875.
Supreme Court of New Jersey.
June 30, 2010.
Petition for Certification Denied.


                                                                            FILED
                           NOT FOR PUBLICATION                               DEC 22 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

JOSEPH PATRICK CUVIELLO, I,                      No. 14-16793

              Plaintiff-Appellant,               D.C. No. 5:13-cv-04951-BLF

 v.
                                                 MEMORANDUM*
FELD ENTERTAINMENT, INC., DBA
Ringling Bros and Barnum & Bailey
Circus; et al.,

              Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Joseph Patrick Cuviello, I, appeals pro se from the district court’s order

dismissing his 42 U.S.C. § 1983 action alleging a First Amendment violation and

malicious prosecution stemming from defendants’ action brought against Cuviello

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under the Workplace Violence Safety Act, Cal. Civ. Proc. Code § 527.8. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and under

California’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”)

statute. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We

affirm.

      The district court properly granted defendants’ special motion to strike

Cuviello’s malicious prosecution claim under California’s anti-SLAPP statute

because Cuviello failed to show a probability of prevailing on the merits as the

action was precluded by law. See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261

(9th Cir. 2013) (once a defendant makes a prima facie showing that the plaintiff’s

suit arises from defendant’s protected activity, the burden then shifts to the plaintiff

to establish a reasonable probability that he will prevail on his claim); Robinzine v.

Vicory, 50 Cal. Rptr. 3d 65, 66 (Ct. App. 2006) (“We hold as a matter of law that a

malicious prosecution cause of action does not arise from an unsuccessful petition

filed under section 527.8.”); see also Lewis v. Tel. Employees Credit Union, 87

F.3d 1537, 1545 (9th Cir. 1996) (when there is no state supreme court opinion

addressing a question of state law, a federal court is obligated to follow the

decisions of the state’s intermediate appellate courts absent convincing evidence

                                           2                                      14-16793
that the state supreme court would decide the issue differently).

       The district court properly dismissed Cuviello’s First Amendment claim

because Cuviello failed to allege facts sufficient to establish that defendants were

state actors for purposes of § 1983. See Franklin v. Fox, 312 F.3d 423, 444-45 (9th

Cir. 2002) (tests for determining whether a private individual’s actions amount to

state action).

       We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

       AFFIRMED.

                                           3                                      14-16793


666 S.W.2d 457 (1984)
STATE ex rel. MID-CENTURY INSURANCE COMPANY, INC., Relator,
v.
Hon. Richard B. McKELVEY, Respondent.
No. WD 35212.
Missouri Court of Appeals, Western District.
February 21, 1984.
*458 Lance W. LeFevre, Kansas City, for relator.
Timothy L. Brake, Kansas City, for respondent.
Before NUGENT, P.J., and DIXON and KENNEDY, JJ.
KENNEDY, Judge.
The facts of this case are as follows:
Jeffrey Alan Sparks brought an action against Peter Hernandez for injuries sustained by him when he was struck by a dirt bike operated "over a lawn" at a Kansas City, Missouri, address. Both plaintiff and defendant were minors. Mr. Robert L. Rodarte, a Kansas City attorney, was appointed guardian ad litem for Hernandez. Rodarte wrote Mid-Century Insurance Company, enclosing the petition and summons, demanding "that you defend this suit without any reservation of rights under the terms of your homeowners policy No. M20334814 issued by Mid-Century Insurance Company to Peter Hernandez' parents, Mr. and Mrs. Eugenio Hernandez..."
Mid-Century declined to assume the defense of the minor defendant without reservation. In a letter to Mr. Rodarte, Mid-Century's attorney said: "Accordingly Mid-Century Insurance Company, Inc., herewith offers to assume the defense of this action with reservation of Mid-Century's rights to deny coverage for any judgment which might be obtained on the grounds that the loss arises out of the use of a motor vehicle and therefore is excluded by the policy".
Hernandez' guardian ad litem declined to accept the tendered defense.
Mr. Rodarte filed no answer to the Sparks' petition, and the plaintiff filed a motion for a default judgment. The case is now pending in the Circuit Court of Jackson County upon said motion for default judgment. No default judgment has been taken; the matter has been stayed by the circuit court pending the outcome of this mandamus proceeding.
Mid-Century Insurance Company filed its application for leave to intervene, describing its predicament, and asking the order of the court "granting it leave to intervene in defense of the above styled cause". That motion was denied by the circuit court and Mid-Century has come here, seeking our writ of mandamus to require the court to set aside its denial of the application to intervene, and compelling him to enter a new order allowing relator "to intervene and file its answer" in the Sparks v. Hernandez lawsuit. We issued our alternative writ.
We take it that what Mid-Century is trying to do is to assert a defense for Hernandez against Sparks' petition for damages. It appears to Mid-Century that the Sparks claim will go undefended and that a default judgment will be rendered against Hernandez. Mid-Century will then be exposed to a liability upon its policy, without having had an opportunity to oppose the underlying *459 claim, either as to liability or damages. See Lane v. Hartford Fire Ins. Co., 343 F.Supp. 79, 85, 86 (E.D.Mo.1972).
The basic question, then, is whether Hernandez must accept the tendered defense with reservation of Mid-Century's right to deny policy coverage. The answer is that he is not required to do so. So holds Butters v. City of Independence, 513 S.W.2d 418, 424, 425 (Mo.1974), and see also Krenitsky v. Ludlow Motor Company, Inc., 276 A.D. 511, 96 N.Y.S.2d 102 (1950); 7C APPLEMAN, INSURANCE LAW AND PRACTICE, § 4686 (1979). In Butters, the court noted that the insurance company, unlike Mid-Century in the case before us, had declined to give its insured its reason for denying coverage, but we do not think that difference in the two cases is a substantial one.
There are good reasons for this. The insurance company, if it were reserving a right to deny coverage under its policy, would be more or less zealous in its defense of the claim depending upon its evaluation of its exposure under its policy. Nothing chills one's zeal for a defense so much as the belief that, even if he loses, it will cost him nothing. There would in many instances be a conflict of interest on the insurance company's part, or a division of interest, with the insurance company being as much interested in establishing facts which would result in non-coverage as in establishing facts showing the insured's non-liability. The defense would be encumbered by the overhanging issue of policy coverage.
That being settled, the answer is perfectly plain that Mid-Century has no right of intervention, over Hernandez' objection, to defend Hernandez under a reservation of the right to deny coverage under the policy, and the trial court was correct in denying Mid-Century's application to intervene.
That does not mean that Mid-Century is without a remedy. Its dilemma is a real one. It may file a declaratory judgment suit to determine the question of its policy coverage in this accident. State ex rel. United States Fire Insurance Company v. Terte, 351 Mo. 1089, 176 S.W.2d 25 (1943); 7C APPLEMAN, INSURANCE LAW AND PRACTICE, § 4686 (1979); 20 APPLEMAN, INSURANCE LAW AND PRACTICE, Part 73, Declaratory Judgments; see, e.g., Home Indemnity Company v. Politte, 602 S.W.2d 943 (Mo.App.1980).
If Mid-Century elects to file a declaratory judgment action, it may in its own behalf file in Hernandez v. Sparks an application for a stay of proceedings until the declaratory judgment action is decided. See 1 Mo.Dig. 2nd, Action Key Nos. 67, 68, 69. In Kollmeyer v. Willis, 408 S.W.2d 370, 378 (Mo.App.1966), an insurance company was held to have standing to move to set aside a default judgment rendered against its purported insured. We hold on the same reasoning that Mid-Century in this case has standing to make application for a stay of proceedings.
Our permanent writ of mandamus will command the trial court to permit intervention by Mid-Century in Sparks v. Hernandez for the limited purpose of making application for a stay of proceedings pending the determination of the declaratory judgment action if such an action is promptly filed. (We do not, of course, undertake to direct how any such application should be ruled.) Our alternative writ of mandamus is quashed insofar as it commands the trial judge to allow intervention by Mid-Century to assume the defense of the Sparks claim for damages.
All concur.


                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ROGER PAUL SMITH,                              No. 04-35253
            Petitioner-Appellant,
              v.                                 D.C. No.
                                              CV-98-00059-OMP
GEORGE H. BALDWIN,
                                                  ORDER
            Respondent-Appellee.
                                       
                        Filed April 6, 2007

           Before: Mary M. Schroeder, Chief Judge.

                              ORDER

   Upon the vote of a majority of nonrecused regular active
judges of this court,1 it is ordered that this case be reheard by
the en banc court pursuant to Circuit Rule 35-3. The three-
judge panel opinion shall not be cited as precedent by or to
this court or any district court of the Ninth Circuit, except to
the extent adopted by the en banc court.

  1
   Judge Graber is recused.

                               4113
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