Pokorny et al v. Quixtar Inc et al

Filing 252

ORDER Appointing Special Master. Signed by Judge Samuel Conti on 12/27/2012. (sclc2, COURT STAFF) (Filed on 12/27/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JEFF POKORNY, LARRY BLENN, and
KENNETH BUSIERE, on behalf of
themselves and those similarly
situated,

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Plaintiffs,
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v.

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QUIXTAR INC., et al.,

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Defendants.

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I.

) Case No. 07-cv-0201-SC
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) ORDER APPOINTING SPECIAL
) MASTER
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SCOPE OF ORDER
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Order Applicable to All Related Cases.

This Order is

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binding on all parties and their counsel in the instant case and in

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any cases subsequently made part of these proceedings, and shall

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govern each case in the proceedings unless the Court states by

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further Order that this Order relates only to specific cases.

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2.

Appointment of Special Master.

Pursuant to Federal Rule

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of Civil Procedure 53, the Court's Order of November 30, 2012 (ECF

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No. 246 ("Nov. 30 Order")) and section 6.1.2 of the parties'

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Amended Settlement Agreement (ECF No. 162-2 ("ASA")), and with the

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consent of the parties, the Court hereby appoints the Honorable

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James Larson, United States Magistrate Judge (Retired), of JAMS, as

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a Special Master to assist the Court in this litigation

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(hereinafter "Special Master").

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II.

BASIS FOR APPOINTMENT UNDER RULES 53(a) AND 53(b)(1)
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Basis for Appointment.

The Special Master is hereby

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appointed pursuant to Rule 53(a)(1) to perform duties consented to

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by the parties (Rule 53(a)(1)(A)), to make findings of fact on

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issues to be decided by the Court because appointment is warranted

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by an exceptional condition, namely, the volume of special hardship

United States District Court

For the Northern District of California

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claims requiring evaluation (Rule 53(a)(1)(B)(i)).
4.

No Grounds for Disqualification.

Pursuant to Rule

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53(a)(2) and 53(b)(3), the Special Master shall file an affidavit

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with this Court that states that he has no relationship to the

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parties, counsel, action, or Court that would require

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disqualification of a judge under 28 U.S.C. § 455.

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course of these proceedings, the Special Master and the parties

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shall notify this Court immediately if they become aware of any

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potential grounds that would require disqualification.

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5.

Fairness Considerations.

During the

Pursuant to Rule 53(a)(3), the

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Court has considered the fairness of imposing the likely expenses

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of the Special Master on the parties.

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appointment and use of the Special Master will materially advance

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the litigation, thereby achieving considerable cost-savings to all

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parties.

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specifically contemplates appointment of a Special Master, that the

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parties have consented to the Special Master's appointment, and

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that they have agreed to arrange the Special Master's compensation,

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as discussed in paragraph 13 herein.

The Court believes that the

Moreover, the Court notes that the parties' ASA

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The Court will protect

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against unreasonable expenses and delay through regular

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communication with the Special Master.

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6.

Pursuant to Rule

Proper Notice Given to All Parties.

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53(b)(1), the Court, in its November 30 Order, gave the parties

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notice of its intent to appoint the Special Master and an

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opportunity to be heard with respect to such appointment before

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issuing this Order.

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United States District Court

For the Northern District of California

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III. SPECIAL MASTER'S DUTIES, AUTHORITY, AND COMPENSATION
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Diligence.

Pursuant to Rule 53(b)(2), the Court hereby

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directs the Special Master to proceed with all reasonable diligence

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in performing his duties.

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8.

Scope of Special Master's Duties.

Pursuant to Rule

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53(b)(2)(A), the Special Master shall assist the Court with matters

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such as: determining whether a particular person is covered by an

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arbitration agreement; if so, determining which arbitration

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agreement applies; determining whether the terms of the arbitration

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agreement are enforceable; determining where and before whom

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arbitration shall occur, if at all; determining the order in which

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cases shall be arbitrated; resolving motions now pending before

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this Court, as well as future motions; determining any issue of law

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or fact necessary to discharging the foregoing duties, subject to

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review as provided in paragraphs 15 through 19; and other matters

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in which the Court wishes to utilize his services.

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9.

Scope of Special Master's Authority.

The Special Master

shall have the authority provided in Rule 53(c) and 53(d).
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Procedure for Motions Submitted to Special Master.

Motion practice before the Special Master, if any, shall be

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conducted pursuant to the Local Rules and General Orders of this

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Court.

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orders governing procedures for motion practice.

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provide to the Special Master three sets of all motion papers he is

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to consider, directing the papers to his attention at: JAMS, Two

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Embarcadero Center, Suite 1500, San Francisco, California.

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The Special Master may, in his discretion, issue other

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Ex Parte Communications.

The parties shall

Pursuant to Rule 53(b)(2)(B),

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the Special Master may communicate ex parte with the Court at any

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time, without providing notice to the parties.

The Special Master

United States District Court

For the Northern District of California

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may communicate ex parte with any party or its counsel, as the

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Special Master deems appropriate, for the purposes of ensuring the

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efficient administration and management of this litigation,

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including the making of informal suggestions to the parties to

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facilitate compliance with Orders of this Court.

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communications shall not, however, address the merits of any

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substantive issue, except that, if the parties seek assistance from

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the Special Master in resolving a dispute regarding a substantive

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issue, the Special Master may engage in ex parte communications

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with a party or counsel regarding the merits of the particular

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dispute, for the purpose of mediating or negotiating a resolution

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of that dispute, but only with the prior permission of those

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opposing counsel who are pertinent to the particular dispute.

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12.

Such ex parte

Preservation of Materials and Preparation of Record.

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Pursuant to Rule 53(b)(2)(C), the Special Master shall maintain

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orderly files consisting of all documents submitted to him by the

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parties and any of his written orders, findings, and/or

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recommendations.

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file any written orders, findings, and/or recommendations with the

Pursuant to Rule 53(e), the Special Master shall

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Court via the Court's Electronic Case Filing system ("ECF"),

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consistent with Civil Local Rule 5-4 and General Order 45.

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filing shall fulfill the Special Master's duty to serve his order

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on the parties.

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other than his written orders, findings, and/or recommendations

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shall be filed in accordance with paragraph 17 herein.
13.

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Such

Any records of the Special Master's activities

Compensation.

Pursuant to Rule 53(b)(2)(E) and 53(g),

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the parties shall confer with the Special Master to set his rates

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and the proportion of his fees and expenses that each party shall

United States District Court

For the Northern District of California

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bear.

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other personnel to assist in completion of the duties set forth in

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this Order, and the Special Master shall be reimbursed for payments

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made to such personnel as part of his expenses.

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shall prepare a monthly invoice for his fees and expenses, which he

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shall provide to counsel.

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The Special Master may hire or employ, at a reasonable rate,

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The Special Master

Such invoices shall be paid promptly.

Special Master's Reports to Court.

Pursuant to Rule

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53(f), the Special Master shall report to the Court as directed by

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the Court.

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IV. ACTION ON SPECIAL MASTER'S ORDERS, REPORTS, OR RECOMMENDATIONS
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Scope of Section.

Pursuant to Rules 53(b)(2)(D) and

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53(g), the procedures described in paragraphs 16 through 19 herein

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shall govern any action on the Special Master's orders, reports,

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and/or recommendations.

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16.

Time Limits for Review.

Time shall be computed in

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accordance with Federal Rule of Civil Procedure 6(a).

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wishing to file objections to or a motion to adopt or modify the

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Special Master's orders, reports, and/or recommendations must file

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Any party

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such objections or motion with the Court within fourteen (14) days

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from the day the Special Master filed the order, report, and/or

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recommendation via ECF.

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the opposing party shall have seven (7) days to respond, and the

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moving/objecting party shall have seven (7) days to reply.

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of objection, the Special Master's order shall remain in effect

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until the Court rules on the objection.

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17.

If any party files an objection or motion,

Filing the Record for Review.

In case

The party filing the

objection or motion shall submit with such objection or motion any

United States District Court

For the Northern District of California

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record necessary for the Court to review the Special Master's

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order, report, and/or recommendation, including any transcripts of

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proceedings before the Special Master and any documents submitted

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by the parties in connection with the Special Master's order,

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report, and/or recommendation.

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constitute grounds for the Court to overrule the objection or deny

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the motion.

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18.

Failure to provide the record shall

Standard for Court's Review.

Pursuant to Rule 53(f)(3),

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in the absence of a stipulation to a higher standard (see ECF No.

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248), the Court shall review de novo any findings of fact made or

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recommended by the Special Master.

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any conclusions of law made or recommended by the Special Master.

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The Court will set aside the Special Master's ruling on a

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procedural matter only for an abuse of discretion.

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The Court shall review de novo

Court's Actions on Special Master's Orders.

Pursuant to

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Rule 53(g)(1), in acting on an order, report, or recommendation of

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the Special Master, the Court shall afford each party an

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opportunity to be heard and, in its discretion, may receive

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evidence, and may adopt or affirm; modify; wholly or partly reject

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or reverse; resubmit to the Special Master with instructions; or

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make any further orders it deems appropriate.

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IT IS SO ORDERED.

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Dated: December 27, 2012
UNITED STATES DISTRICT JUDGE

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United States District Court

For the Northern District of California

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