Board of Trustees of the Ken Lusby Clerks etc vs Piedmont Lumber et al

Filing 140

ORDER by Judge Haywood S. Gilliam, Jr. Granting 139 Stipulation TO STAY EXECUTION OF JUDGMENT WITHOUT BOND Re 127 .(terminating 127 motion TO STAY EXECUTION OF JUDGMENT WITHOUT BOND) (ndr, COURT STAFF) (Filed on 10/16/2015)

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Clarissa A. Kang, SBN 210660
Sean T. Strauss, SBN 245811
TRUCKER  HUSS
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]

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Trucker  Huss
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111

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Attorneys for Plaintiff
BOARD OF TRUSTEES OF THE
KEN LUSBY CLERKS & LUMBER
HANDLERS PENSION FUND
Richard N. Hill, SBN 083629
Aleksandr Katsnelson, SBN 299309
LITTLER MENDELSON, P.C.
650 California Street, 20th Floor
San Francisco, California 94108
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
Attorneys for Defendant
WENDY M. OLIVER, an individual;
and WENDY M. OLIVER, as
Trustee to the Oliver Family Trust

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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BOARD OF TRUSTEES OF THE KEN
LUSBY CLERKS & LUMBER HANDLERS
PENSION FUND,

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Plaintiff,
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Case No.: 3:13-cv-03898-HSG
STIPULATION AND ORDER TO STAY
EXECUTION OF JUDGMENT WITHOUT
BOND

vs.
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PIEDMONT LUMBER & MILL COMPANY;
WILLIAM C. MYER, JR., an individual;
WENDY M. OLIVER, an individual;
WENDY M. OLIVER, as Trustee to the Oliver
Family Trust; and DOES 1-20,

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Defendants.
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STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG
153835.v4

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This Stipulation and [Proposed] Order to Stay Execution of Judgment Without Bond

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(“Stipulation”) is hereby entered by and between Plaintiff BOARD OF TRUSTEES OF THE KEN

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LUSBY CLERKS & LUMBER HANDLERS PENSION FUND (“Pension Fund”) and Defendant

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WENDY M. OLIVER, individually and as Trustee to the Oliver Family Trust (“Oliver”), through

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their respective counsel, based on the following:

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A.

On September 16, 2015, the United States District Court for the Northern District of

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California (“Court”) entered judgment in favor of Plaintiff Pension Fund against Defendants Oliver

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and William C. Myer, Jr. for $3,507,388.56, subject to such additional amount as the Court may

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allow as costs and attorneys’ fees to Plaintiff Pension Fund in the above captioned case (the

Trucker  Huss
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111

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“Judgment”).
B.

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On September 17, 2015, Defendant William C. Myer, Jr. filed a Chapter 7

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bankruptcy petition in the United States Bankruptcy Court for the Eastern District of California,

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Sacramento Division, commencing bankruptcy case No. 15-27322 MSM, which is currently

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pending as of the date of this Stipulation.
C.

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On September 22, 2015, Oliver filed a Motion to Stay Execution of Judgment

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Without Bond (“Motion”) supported by Wendy M. Oliver’s declaration under penalty of perjury

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executed on September 19, 2015, setting forth certain facts regarding Oliver’s assets and property

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(“Oliver Declaration”).

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D.

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2015 (“Appeal”).

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Oliver filed a notice of appeal to the Ninth Circuit Court of Appeals on October 13,

Based on the foregoing, the Pension Fund and Oliver hereby stipulate that the Court may
enter the following Order to resolve the Motion.

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ORDER

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1.

Subject to the provisions hereof, enforcement of the Judgment shall be stayed

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without bond pending the earlier of decision on or dismissal of the Appeal. This Order will expire

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upon the issuance of the Ninth Circuit’s mandate after a decision on the Appeal or dismissal of the

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Appeal.

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STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG
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2.

Oliver shall be entitled to receive, retain and disburse all sums received from her ex-

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husband’s pension, social security and income received from the sale of artwork (provided sales do

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not exceed $2,500 per year) and the Desert Circle Apartments, as referenced in Paragraph 4 of the

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Oliver Declaration (“Unencumbered Revenue”). Oliver may use the Unencumbered Revenue as

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she deems necessary during the period covered by this Stipulation.

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3.

Oliver shall be entitled to advance to her attorneys, in addition to any pre-paid

retainers the sum of $60,000 from her ”investment accounts valued at approximately $500,000”

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described in paragraph 4(b) below to be credited against attorneys’ fees and costs incurred in

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connection with the prosecution of the Appeal and bankruptcy/workout services as necessary.

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Trucker  Huss
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111

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Absent written consent of the Pension Fund, any additional fees and cost must be paid from the

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“retirement accounts” described in paragraph 4(a) below or from a source other than assets subject

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to the liens described herein
4.

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Except as set forth above, the Pension Fund shall be deemed to have a judgment lien

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upon, and Oliver shall be prohibited and enjoined from making any payments or withdrawals from,

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making any transfers with respect to, hypothecating, encumbering or granting any lien, security

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interest or other interest in any and all of the following, the first three of which are referenced in

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Paragraph 3 of the Oliver Declaration:

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approximately $303,000 ; (b) the other investment accounts valued at approximately $500,000 (less

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any advances for attorney’s fees described in paragraph 3); (c) the Oliver Family Trust Wells Fargo

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preferred checking account (account number ending 6368) in the approximate amount of

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$75,923.54 (“Frozen Account”). To the extent necessary and upon written consent of the Pension

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Fund, Oliver shall be able to use these funds from the Frozen Account to pay any unexpected

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expenses but only after all funds in the Unencumbered Accounts (defined below) are exhausted.

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The Pension Fund will not withhold consent unreasonably; or (d) any other investment, retirement

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account or benefit, annuity, deposit or checking account, except for the following accounts

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(“Unencumbered Accounts”):

(a) the retirement accounts and annuities totaling

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STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG
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a.

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approximate balance of $5,339;

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b.

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c.

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d.

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Trucker  Huss
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111

Oliver Family Trust Wells Fargo savings account (account number ending 8328)
with an approximate balance of $18,145; and

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Oliver’s Wells Fargo travel account (account number ending 8397) with an
approximate balance of $1,000;

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Oliver’s Wells Fargo personal checking (account number ending 1163) with an

Oliver Family Trust Wells Fargo checking account (account number ending 4110)
with an approximate balance of $100

The Unencumbered Accounts may be used for receipt and disbursement of funds referenced in
Paragraph 2 hereof.
5.

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Oliver shall forthwith provide to the Pension Fund the institution or custodian

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names, addresses, and relevant account numbers for each of the annuities or accounts described

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(except for the Unencumbered Accounts) in Paragraph 4 so that the Pension Fund may deliver a

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copy of this Order to each such institution. Service or delivery of this Order to such institution or

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custodian shall be deemed to perfect the judgment lien in favor of the Pension Fund created by this

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Order.
6.

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Oliver shall be prohibited and enjoined from making any transfers of,

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hypothecating, encumbering or granting any lien, security interest or other interest in any and all

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real property in which she or the Oliver Family Trust has an interest, including the real property

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referenced in Paragraph 3 of the Oliver Declaration.

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7.

The judgment lien created in Paragraph 4 and the injunction and prohibition in

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Paragraphs 4 and 6 shall remain in effect pending further order of this Court. Any actions taken in

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violation or derogation of the provisions of Paragraphs 4, 5 or 6 may be brought to the attention of

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the Court ex parte with telephonic and email notice to counsel for Oliver, and may be grounds for

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lifting this stay of Judgment or for other appropriate relief.

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8.

Upon application to the Clerk of the Court, the Pension Fund shall be issued

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Abstracts of Judgment in the above amount, and amended Abstracts of Judgment in the event that

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the amount of the Judgment is increased, naming Wendy M. Oliver, an Individual, and Wendy M.
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STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG
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Oliver as Trustee to the Oliver Family Trust as judgment debtors. The Abstracts of Judgment shall

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be issued without reference to William C. Myer, Jr. as a defendant so long has his bankruptcy case

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remains pending. In the event that the bankruptcy case is dismissed or the bankruptcy court grants

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relief from stay, the Pension Fund may be issued amended Abstracts of Judgment naming William

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C. Myer, Jr. as an additional defendant.

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9.

Plaintiff Pension Fund may record the above Abstracts of Judgment in applicable

counties, including without limitation Contra Costa and Lake Counties.

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10.

Plaintiff Pension Fund may apply for, be issued, and serve upon Oliver an Order to

Appear for Examination pursuant to Section 708.110 of the California Code of Civil Procedure.

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Trucker  Huss
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111

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The date of the examination shall recite “Stayed by Court Order” and shall be subject to reissuance

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if the stay of Judgment ordered herein expires or is lifted.
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The Court shall retain jurisdiction to modify or amend this Order.

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IT IS SO STIPULATED.

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DATED: October 15, 2015

TRUCKER  HUSS

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By: /s/ Sean T. Strauss
Clarissa A. Kang
Sean T. Strauss
Attorneys for Plaintiff
BOARD OF TRUSTEES OF THE KEN LUSBY
CLERKS & LUMBER HANDLERS PENSION
FUND

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DATED: October 15, 2015

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LITTLER MENDELSON, P.C.
By:

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/s/ Aleksandr Katsnelson
Richard Hill
Aleksandr Katsnelson
Attorneys for Defendant
WENDY M. OLIVER

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I attest that I have obtained Littler Mendelson’s concurrence in the filing of this document.
DATED: October 15, 2015
/s/ Sean T. Strauss
Sean T. Strauss

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STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG
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IT IS SO ORDERED.

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DATED: October 16, 2015

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HAYWOOD S. GILLIAM, JR.
UNITED STATES DISTRICT COURT JUDGE

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Trucker  Huss
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111

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STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG
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CERTIFICATE OF SERVICE

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I, Michael V. Bresso, declare as follows:
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I am a citizen of the United States, over the age of eighteen years and not a party to the
within action. I am employed in the City and County of San Francisco, California. My business
address is One Embarcadero Center, 12th Floor, San Francisco, California 94111. On the date
indicated below, I served:
STIPULATION AND [PROPOSED] ORDER TO STAY EXECUTION
OF JUDGMENT WITHOUT BOND

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to the addressee(s) and in the manner indicated below:
Mr. William C. Myer
11772 Moon Shadow Ct.
Truckee, CA 96161-2918
[e-mail]

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Trucker  Huss
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, California 94111

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


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Shane J. Moses, Esq.
McNutt Law Group LLP
219 9th Street
San Francisco, CA 94103
[e-mail]

BY ELECTRONIC MAIL: On the above-mentioned date, I served a full and complete copy of the
above-referenced document[s] by electronic mail to the person[s] at the email address[es] indicated.
BY MAIL (TO MR. WILLIAM C. MYER ONLY): I placed a true copy in a sealed envelope
addressed as indicated above, on the above-mentioned date. I am familiar with the firm's practice of
collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that
same day in the ordinary course of business. I am aware that on motion of party served, service is presumed
invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing
in affidavit.

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I certify under penalty of perjury that the foregoing is true and correct, that the foregoing
document(s) were printed on recycled paper, and that this Certificate of Service was executed by
me on October 15, 2015, at San Francisco, California.
/s/Michael V. Bresso
Michael V. Bresso

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STIPULATION TO STAY EXECUTION OF JUDGMENT WITHOUT BOND; Case No. 3:13-cv-03898-HSG
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