Makowiecki v. Pacific Gas and Electric Company et al
Filing
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ORDER signed by District Judge John A. Mendez on 12/6/2017 GRANTING the Defendants' 6 Motion to Dismiss Plaintiff's RICO claim with prejudice and the remaining state-law claims without prejudice. CASE CLOSED (Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK MAKOWIECKI,
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No.
2:17-cv-01630-JAM-CMK
Plaintiff,
v.
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
PG&E CORPORATION, a
California corporation, and
PACIFIC GAS AND ELECTRIC
COMPANY, a California
corporation,
Defendants.
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Plaintiff Mark Makowiecki (“Plaintiff”) alleges his
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employment with Defendants PG&E Corporation and Pacific Gas and
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Electric Company (collectively, “Defendants” or “PG&E”) was
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wrongfully terminated in 2015.
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then, Defendants have interfered with Plaintiff’s ability to work
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with third parties and threatened him when he tried to come onto
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Defendants’ premises to conduct work for third parties.
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Compl., ECF No. 1.
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Defendants alleging fourteen causes of action under state law and
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one cause of action under federal law.
Plaintiff claims that, since
See
In August 2017, Plaintiff filed suit against
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Id.
Defendants move to
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dismiss all claims for failure to state a claim.
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No. 6.
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below, the Court dismisses the federal law cause of action with
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prejudice and dismisses the other causes of action without
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prejudice for lack of subject matter jurisdiction. 1
Plaintiff opposes.
Opp’n, ECF No. 9.
See Mem., ECF
For the reasons
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I.
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FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff worked for Defendants from August 2011 to August
2015 as an electrical inspector in Northern California.
See
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Compl. ¶ 4(a)(2).
After Plaintiff complained to one his
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superiors, Mr. Mike Novello, about compensation disparities
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between current employees and new hires, Defendants moved him to
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another PG&E location, put him on administrative leave, and then
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terminated him on August 4, 2015.
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July 2016, while working for a third party, Plaintiff had to
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visit one of Defendants’ locations for work and was intimidated
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and threatened by Defendants’ security personnel.
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¶ 4(e)(1).
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wireless communications to cause the forcible removal of
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Plaintiff from their property.
See Compl. ¶ 4(b)(4)-(10).
In
See Compl.
Plaintiff claims that Defendants used wire and
See Compl. ¶ 4(m)(2).
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Defendants also used wire and wireless communications to
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contact third parties to have Plaintiff’s employment or contracts
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terminated with those third parties.
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Plaintiff claims that Defendants blackballed or blacklisted him.
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Compl. ¶ 4(m)(4).
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See Compl. ¶ 4(m)(2).
This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for Nov. 21, 2017. In deciding this motion, the Court
takes as true all well-pleaded facts in the operative complaint.
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Plaintiff filed the operative complaint on August 6, 2017.
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See Compl.
The Complaint contains fourteen state law causes of
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action and one cause of action under the Racketeer Influenced and
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Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68.
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Defendants have moved to dismiss all causes of action for failure
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to state a claim and Plaintiff opposes.
Mem.; Opp’n.
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II.
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OPINION
Plaintiff alleges that this Court has subject matter
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jurisdiction over this lawsuit based on his RICO claim.
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¶ 1.
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has not plausibly alleged that claim and the Court dismisses it
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with prejudice.
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supplemental jurisdiction over Plaintiff’s remaining fourteen
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causes of action under state law.
Compl.
But, for the reasons below, the Court finds that Plaintiff
The Court also declines to exercise
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A.
Subject Matter Jurisdiction
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A federal district court may decline to exercise
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supplemental jurisdiction if it has dismissed all claims over
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which it has original jurisdiction.
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Inc., 625 F.3d 550, 561 (9th Cir. 2010) (internal citations and
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quotation marks omitted).
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federal-law claims are eliminated before trial, the balance of
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facts to be considered under the pendent jurisdiction doctrine—
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judicial economy, convenience, fairness, and comity—will point
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toward declining to exercise jurisdiction over the remaining
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state-law claims.”
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omitted).
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Sanford v. MemberWorks,
“In the usual case in which all
Id. (internal citation and quotation marks
Here, Plaintiff concedes that the Court’s jurisdiction over
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the subject matter of this action is based on the RICO claim and
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then supplemental jurisdiction over the other fourteen causes of
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action under state law.
See Compl. ¶ 1.
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B.
Plaintiff’s RICO Claim
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RICO imposes criminal and civil liability on those who
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engage in specified “prohibited activities.”
H.J. Inc. v. Nw.
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Bell Tel., Co., 492 U.S. 229, 232 (1989).
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activities are defined in 18 U.S.C. § 1962(a)-(d).
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to alleging “prohibited activity”, the plaintiff must allege
The prohibited
In addition
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“(1) conduct (2) of an enterprise (3) through a pattern (4) of
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racketeering activity (known as ‘predicate acts’) (5) causing
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injury to plaintiff’s ‘business or property’.”
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Inc. v. E.I. Dupont de Numours and Co., 431 F.3d 353, 361 (9th
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Cir. 2005) (internal citations and quotation marks omitted).
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“predicate acts” that constitute “racketeering activity” are
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defined under 18 U.S.C. § 1961(1) and include “any act or threat
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involving murder, kidnapping, gambling, arson, robbery, bribery,
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extortion, dealing in obscene matter, or dealing in a controlled
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substance . . . which is chargeable under State law[.]”
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Living Designs,
The
To plausibly allege a RICO violation, Plaintiff must also
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allege a pattern of predicate acts.
See H.J. Inc., 492 U.S. at
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236.
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activity within a 10-year period that suggest they are ordered or
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arranged in a pattern.
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also requires continuity over a significant period of time.
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Inc., 492 U.S. at 242 (“A party alleging a RICO violation may
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demonstrate continuity over a closed period by proving a series
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of related predicates extending over a substantial period of
A pattern requires at least two acts of racketeering
H.J. Inc., 492 U.S. at 232.
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A pattern
H.J.
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time.”).
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Continuity does not require a showing that the defendants
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engaged in more than one scheme or criminal episode.
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Television Enter., Inc. v. SelecTV of Cal., Inc., 833 F.2d 1360,
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1363 (9th Cir. 1987) (internal citation and quotation marks
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omitted).
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the predicate acts indicate a threat of continuing activity.
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(internal citation omitted).
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absent where there is only a single alleged predicate act with a
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But the case-specific circumstances must suggest that
single victim.
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Medallion
Id.
A threat of continuing activity is
See id. at 1363-64.
Here, Plaintiff alleges that the predicate acts are false
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arrest and mail and wire fraud.
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alleged pattern of these predicate acts is based on “the
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manifestations of Mr. Novello’s plan and scheme to punish
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plaintiff and hold him out as an example to others.”
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see also Compl. ¶ 4(m)(2).
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authority to support his RICO claim.
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See Opp’n at 9-10.
And the
Opp’n at 9;
Plaintiff has provided no legal
See Opp’n at 9-10.
Even if Plaintiff had sufficiently alleged claims for false
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imprisonment or mail and wire fraud and the Court found both of
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these to be predicate acts, Plaintiff has not plausibly alleged a
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pattern of racketeering activity.
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that Defendants’ plan was to punish him and make an example of
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him.
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Plaintiff has only alleged
See Opp’n at 9; Compl. ¶ 4(m).
Plaintiff has not alleged (1) any other victims of the
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alleged mail or wire fraud and false imprisonment or (2) that
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Defendants are continuing to engage in the alleged mail or wire
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fraud and false imprisonment.
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not plead the type of pattern under RICO that he needs to allege—
See Compl. ¶ 4(m).
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Plaintiff does
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i.e. a threat of continuing activity involving multiple schemes
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or multiple victims.
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F.2d at 1364 (“Here, that [continuing] threat is absent.
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case involved but a single alleged fraud with a single victim.”);
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see also Durning v. Citibank, Int'l, 990 F.2d 1133, 1139 (9th
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Cir. 1993) (even where there was more than one victim of alleged
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fraud, the Court found no RICO violation since there was no
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threat of continued or ongoing criminal activity); see also
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Obeng-Amponsah v. Chase Home Fin., LLC, 624 F. App’x 459, 462
See Medallion Television Enter., Inc., 833
This
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(9th Cir. 2015), cert. denied, 137 S. Ct. 163 (2016) (“Obeng only
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alleged underlying fraud and forgery as to a single victim
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(himself), which is insufficient for RICO.”).
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Plaintiff has failed to state a plausible RICO claim and
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dismisses it.
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The Court finds
Having dismissed the only federal law claim in the
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Complaint, the Court exercises its discretion and dismisses all
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of Plaintiff’s state-law claims without prejudice so that
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Plaintiff may refile these claims in the proper state court if he
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so chooses.
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See Sanford, 625 F.3d at 561. 2
Finally, Plaintiff requested the Court to dismiss without
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prejudice if it rejected any claims in the complaint.
See Opp’n
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at 15.
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amendment would be futile.
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Servs., 454 F.3d 1043, 1049 (9th Cir. 2006).
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Plaintiff has pleaded no facts nor cited any legal authority
But the Court need not grant leave to amend where
Deveraturda v. Globe Aviation Sec.
As explained above,
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Both parties’ requests for judicial notice are also denied
since the documents referenced therein are unnecessary for the
disposition of Defendants’ motion.
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supporting his RICO claim.
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that suggest amendment could rectify this problem.
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denies Plaintiff’s request.
And Plaintiff has pointed to no facts
The Court
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III.
ORDER
For the reasons set forth above, the Court GRANTS
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Defendants’ Motion to Dismiss Plaintiff’s RICO claim with
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prejudice and the remaining state-law claims without prejudice.
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IT IS SO ORDERED.
Dated: December 6, 2017
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