Penn Air Control Inc v. Bilbro Construction Company, Inc. et al
ORDER: Sparling's Motion to Dismiss Alpha's First Amended Counterclaim (Dkt # 111 ) is denied. Signed by Judge William Q. Hayes on 2/24/2017. (mdc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA for
the Use and Benefit of PENN AIR
CONTROL INC., a California
COMPANY, INC., a California
corporation, and INTERNATIONAL
COMPANY, a New Jersey
COMPANY, INC., a California
CASE NO. 16cv0003-WQH-NLS
PENN AIR CONTROL INC., a
California Corporation, and ALPHA
MECHANICAL, INC., a California
ALPHA MECHANICAL, INC., a
COMPANY, INC., a California
corporation; FERGUSON PAPE
BALDWIN ARCHITECTS, INC., a
California corporation; SHADPOUR
CONSULTING ENGINEERS, INC., a
California corporation; SPARLING,
INC., a Washington corporation; and
DOES 1 through 10,
11 HAYES, Judge:
The matter before the Court is the Motion to Dismiss Alpha Mechanical, Inc.’s
13 (“Alpha’s) First Amended Counterclaim filed by Sparling, Inc. (“Sparling”). (ECF No.
15 I. Procedural History
On July 17, 2015, Penn Air Control, Inc. (“Penn Air”) initiated this action by
17 filing a complaint against Bilbro Construction Company, Inc. (“Bilbro”) and
18 International Fidelity Insurance Company (“Fidelity”) alleging: (1) breach of contract;
19 (2) quantum meruit; (3) imposition of statutory penalties; and (4) recovery under Miller
20 Act Payment bond. (ECF No. 1). Penn Air seeks damages incurred from nonpayment
21 for serviced performed during the renovation of the Watkins Hall, Building 245, Naval
22 Support Activity Monterey, California (“the Project”).
On October 19, 2015, Bilbro filed a counterclaim against Penn Air and Alpha.
24 (ECF No. 17). On January 19, 2016, Alpha filed a counterclaim against Bilbro,
25 Ferguson Pape Baldwin Architects (“FPBA”), Sparling, and Shadpour Consulting
26 Engineers (“SC Engineers”). (ECF No. 45). Alpha’s counterclaim included a cause of
27 action for negligence against Sparling and FPBA. On February 12, 2016, FPBA filed
28 a motion to dismiss Alpha’s negligence counterclaim. (ECF No. 56). On February 12,
1 2016, Sparling filed a motion to dismiss Alpha’s negligence counterclaim. (ECF No.
On August 26, 2016, the Court issued an order denying the motion to dismiss the
4 negligence counterclaim filed by FPBA and granting the motion to dismiss the
5 negligence counterclaim filed by Sparling. (ECF No. 95). The Court found that “Alpha
6 ha[d] not alleged sufficient facts to establish that Sparling owed Alpha a legal duty of
7 care.” Id. at 14. On September 6, 2016, Alpha filed the motion for leave to file an
8 amended counterclaim. (ECF No. 97). On November 3, 2016, the Court issued an
9 order granting Alpha’s motion for leave to file an amended counterclaim. (ECF No.
10 107). On November 8, 2016, Alpha filed the First Amended Counterclaim (“FAC”).
11 (ECF No. 108).
On November 23, 2016, Sparling filed the Motion to Dismiss Alpha’s FAC.
13 (ECF No. 111). On December 23, 2016, Alpha filed a response in opposition. (ECF
14 No. 116). On December 30, 2016, Sparling filed a reply. (ECF No. 118).
15 II. Allegations in Alpha’s First Amended Counterclaim (ECF No. 108)
Alpha alleges that “[o]n April 20, 2012, the Department of the Navy, Naval
17 Facility Engineering Command Southwest (the “Navy”) awarded Bilbro with the prime
18 contract for the renovation of the Watkins Hall, Building 245, Naval Support Activity
19 Monterey, California for the amount of $7,321,712.00 (the “Project”).” (ECF No. 108
20 at ¶ 10). Alpha alleges that Bilbro was the “Prime Contractor” and “contracted with
21 FPBA to provide architectural design services for the Project, designating FPBA as the
22 Designer of Record for the Project.” Id. at ¶ 12. “FPBA contracted with Sparling,
23 whereby Sparling, as an acoustical consultant, agreed to provide ‘. . . noise prediction
24 of the expected noise levels from the new HVAC equipment; Establish preliminary
25 noise and vibration control measures . . . and Coordinate and refine noise and vibration
26 control measures with the team . . .’” Id. at ¶ 13. Alpha alleges that “[o]n October 29,
27 2012, Bilbro entered into a written subcontract with Alpha designating Alpha as a
28 subcontractor on the Project[.]” Id. at ¶ 14. Alpha alleges that to “assist Bilbro with
1 the Project, Alpha cosigned on a performance bond and payment bond[.]” Id. at ¶ 16.
“Under the design quality control plan Alpha was to submit its design-build plans
3 to FPBA, the Designer of Record, and Bilbro, the Prime Contractor, for review and
4 approvals. Subsequently, Bilbro would submit the final proposal to the Navy for
5 approval.” Id. at ¶ 17. “[O]n or about June 20, 2012, Alpha entered into a written
6 agreement with SC Engineers, a consulting engineering firm, to design the mechanical
7 system for the Project in accordance with the terms and conditions of their
8 agreement[.]” Id. at ¶ 18. “The design-build submittal and review was divided into
9 stages of 35%, 75% and 100% design completions. With every stage, Alpha would
10 submit the proposed plans to Bilbro and would receive commentary, changes and
11 revisions from Bilbro, FPBA and Sparling.” Id. at ¶ 19.
“On or about October 30, 2012, Sparling conducted an onsite review of the plans
13 and designs.” Id. at ¶ 20. “On November 14, 2012, Sparling issued a memorandum
14 which noted a potential issue with noise levels.” Id. at ¶ 22. Alpha alleges that SC
15 Engineers subsequently asked Sparling “for a comprehensive review and detailed
16 recommendations[,]” and Sparling responded by “noting eight specific units which
17 would require enclosures to meet the noise level requirements.” Id. at ¶ 23-24. Alpha
18 alleges that “[a]t this time . . . Sparling was and remained the only sound consultant and
19 acoustical expert on the Project.” Id. at ¶ 25.
“From October 30, 2012 to April 30, 2013, Sparling, FPBA and Bilbro discussed
21 the concern of the stringent noise level requirements of the Project with Alpha and SC
22 Engineers and proposed several recommendations to address the anticipated noise in
23 these eight isolated rooms.” Id. at ¶ 26. Alpha alleges that in April 2013, FPBA
24 informed Sparling that Alpha requested that “Sparling review and verify the material
25 prior to Alpha’s implementation. Sparling reviewed and approved the sketch of the
26 enclosures and the materials for Alpha to proceed.” Id. “On April 3, 2013, Bilbro
27 notified Alpha that it received the 100% design approval and was ready to proceed with
28 construction.” Id. at ¶ 27.
Alpha alleges that after it completed its work, “in or about June, 2014, the Navy
2 noted that 23 of the rooms in the Watkins Hall exceeded Navy’s noise level
3 requirements. None of the 23 rooms were noted as a potential problem by Bilbro,
4 FPBA and Sparling during their review, revision and subsequent approvals of Alpha’s
5 proposed designs and equipment.” Id. at ¶ 31. Alpha alleges “the 8 rooms initially
6 noted as a potential problem did not exceed the required noise level threshold and were
7 not included in the list of the 23 rooms noted by the Navy.” Id.
“To address the noise issues, Bilbro emailed ‘all involved’ including Sparling,
9 FPBA, Penn Air, Alpha and SC Engineers . . . FPBA also apprised Sparling of the noise
10 problem discovered after Alpha completed its installation.” Id. at ¶ 32. “In July of
11 2014, Sparling provided Bilbro with a Professional Services Proposal and Agreement
12 which proposed to ‘. . . visit Watkins Hall to assess the noise associated with the
13 equipment . . . prepare a document presenting findings, recommendations and the next
14 steps needed to resolve the noise issues . . .’” Id. at ¶ 33.
“In response, on or about September 2, 2014, Bilbro entered into a
16 Design-Consultant Agreement with Sparling to ‘. . . [p]repare a document presenting
17 findings, recommendations and the next steps needed to resolve the noise issues . . .’
18 and to work with the team to meet the noise level criteria of the Project. This agreement
19 specifically tasks Sparling with communicating with Bilbro’s subcontractor, Alpha, to
20 resolve the noise issues.” Id. at ¶ 34. “By entering into this agreement with the general
21 contractor, Sparling was agreeing to provide recommendations to reduce the noise
22 levels, which Sparling knew that Alpha as the only mechanical contractor on the Project
23 would be implementing. Sparling was also agreeing to now act as the acoustical expert
24 directly for Bilbro, not FPBA.” Id. at ¶ 35.
“On or about June 25, 2014, Sparling visited the Project and prepared a
26 memorandum with findings and recommendations of what should be done by Alpha to
27 decrease the noise. Alpha implemented Sparling’s suggestions, but the noise levels in
28 the 23 rooms did not decrease.” Id. at ¶ 36. Alpha alleges that “Bilbo, FPBA and
1 Sparling continued to provide Alpha with various suggestions[,]” and as a result,
2 “Alpha had to purchase new equipment, remove prior installations, install new
3 materials, purchase additional supplies and to remobilize its crew at least on four
4 separate occasions during the period of August 2014 through May 2015.” Id. at ¶ 37.
Alpha alleges that on six occasions, “Sparling prepared separate memorandums
6 recommending various alterations by Alpha to selected equipment and various sound
7 attenuation methods.” Id. at ¶ 38. Alpha alleges that “[o]n January 28, 2015, Sparling
8 contacted Alpha directly and offered a new solution for” two specific rooms – and
9 “Alpha implemented the recommendation and informed Sparling that it did not
10 effectively reduce the noise level.” Id. at ¶ 40. “On March 24, 2015, Sparling provided
11 new mock ups directly to Alpha asking them to implement, which Alpha did.” Id. at
12 ¶ 41. Alpha alleges that “all of [Sparling’s] opinions, recommendations and proposed
13 solutions as an acoustical expert, were being communicated by Sparling directly with
14 Alpha as Alpha was the only subcontractor who could implement Sparlings’[sic]
15 recommendations.” Id. at ¶ 42.
“The solutions presented by Bilbro, FPBA and Sparling did not effectively
17 reduce the noise level in all the rooms and the Navy refused to accept the Project.” Id.
18 at ¶ 43. Alpha alleges that on May 22, 2015, Bilbro terminated the Subcontract “and
19 withheld $323,352.00 still owing to Alpha.” Id. at ¶ 45. Alpha alleges that it “remained
20 a cosigner on the performance bond and payment bond for the Project” despite being
21 “precluded from access to the Project and the ability to implement its proposed
22 changes.” Id. at ¶ 46-47.
Alpha alleges that it “was justified in relying on Sparling as an acoustical
24 engineer and consultant to provide professional services for the Project and to provide
25 Alpha with proper directions, guidance, instructions and recommendations during the
26 Project and subsequently to address the noise issues.” Id. at ¶ 63. Alpha alleges that
27 Sparling breached its duty to Alpha by “failing to meet the applicable standard of care
28 due in performing their professional services[.]” Id. at ¶ 64. Alpha alleges that “[a]s
1 a direct and proximate result of . . . Sparling’s negligence, Alpha has suffered damages”
2 including the cost of purchasing new equipment, installing new materials, and
3 purchasing additional supplies, “in an amount estimated at approximately
4 $1,121,564.57[.]” Id. at ¶ 65.
5 III. Legal Standards
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for “failure to
8 state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). Federal
9 Rule of Civil Procedure 8(a)(2) provides that “[a] pleading that states a claim for relief
10 must contain . . . a short and plain statement of the claim showing that the pleader is
11 entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “A district court’s dismissal for failure to
12 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack
13 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
14 legal theory.’” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)
15 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988)).
“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
17 requires more than labels and conclusions, and a formulaic recitation of a cause of
18 action’s elements will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
19 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual
20 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A
22 claim has facial plausibility when the plaintiff pleads factual content that allows the
23 court to draw the reasonable inference that the defendant is liable for the misconduct
24 alleged.” Id. (citation omitted). “[T]he tenet that a court must accept as true all of the
25 allegations contained in a complaint is inapplicable to legal conclusions.” Id. “When
26 there are well-pleaded factual allegations, a court should assume their veracity and then
27 determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “In
28 sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual
1 content,’ and reasonable inferences from that content, must be plausibly suggestive of
2 a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969
3 (9th Cir. 2009).
Under California law, to establish a claim for negligence a plaintiff must plead
6 (1) duty; (2) breach; (3) causation; and (4) damages. Ileto v. Glock Inc., 349 F.3d 1191,
7 1203 (9th Cir. 2003). “The threshold element of a cause of action for negligence is the
8 existence of a duty to use due care toward an interest of another that enjoys legal
9 protection against unintentional invasion.” Bily v. Arthur Young & Co., 834 P.2d 745,
10 760 (Cal. 1992). “Courts sometimes impose a duty to prevent pure economic loss when
11 there is no privity of contract when the injured party is an intended beneficiary of a
12 contract between the defendant and another party.” The Ratcliff Architects v. Vanir.
13 Constr. Mgmt., Inc., 106 Cal. Rptr.2d 1, 8 (Cal. Ct. App. 2001).
The Supreme Court of California has held that “[w]here a special relationship
15 exists between the parties, a plaintiff may recover for loss of expected economic
16 advantage through the negligent performance of a contract although the parties were not
17 in contractual privity.” J’Aire Corp. v. Gregory, 598 P.2d 60, 63 (Cal. 1979). To assess
18 whether there is a “special relationship” in the absence of privity of contract, California
19 courts balance six factors: (1) the extent to which the transaction was intended to affect
20 the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty
21 that the plaintiff suffered injury, (4) the closeness of the connection between the
22 defendant’s conduct and the injury suffered, (5) the moral blame attached to the
23 defendant’s conduct, and (6) the policy of preventing future harm. Biakanja v. Irving,
24 320 P.2d 16, 19 (Cal. 1958).
25 IV. Discussion
Sparling contends that Alpha has failed to cure the pleading deficiencies in its
27 original counterclaim that was previously dismissed by this Court. Sparling contends
28 that the newly-alleged agreement between Bilbro and Sparling “do[es] not change the
1 nature of Sparling’s relationship with Alpha and the contractual chain of command for
2 the Project[.]” (ECF No. 111-1 at 20). Sparling contends that it had no control over
3 whether Alpha adopted or otherwise used Sparling’s acoustical recommendations. Id.
4 at 21. Sparling contends that “[u]ltimately, whether Sparling performed its work for
5 FPBA or Bilbro, does not change the fact that Sparling was not in privity with Alpha[.]”
6 (ECF No. 118 at 4).
Alpha contends that “the main basis of [its] FAC against Sparling” is the new
8 factual allegation that “Sparling was engaged for the second time directly by Bilbro to
9 assess the noise problem and tell Alpha how to fix it.” (ECF No. 116 at 14 n.2). Alpha
10 contends that the FAC contains allegations of an agreement between Bilbro and
11 Sparling that was not previously plead in Alpha’s original counterclaim. Alpha
12 contends that the Design-Consultant Agreement was made between Bilbro and Sparling
13 following the Navy’s finding that twenty-three of the rooms in the Project failed to meet
14 the Navy’s sound requirements. Alpha contends that Sparling entered into this
15 agreement with Bilbro to “provide recommendations to reduce the noise levels, which
16 Sparling knew Alpha, as the only mechanical contractor on the Project, would
17 implement.” Id. at 9. Alpha contends that it performed work on four separate occasions
18 to reduce sound levels pursuant to Sparling’s recommendations. Alpha contends that
19 Sparling directly communicated “recommendations and solutions to Alpha so Alpha
20 could implement and bring the Project into acoustical compliance.” Id. at 10.
Alpha has not alleged that there is contractual privity between Alpha and
22 Sparling, or that a statute establishes the duty of care between the two parties. To
23 demonstrate a duty of care, Alpha must allege facts to satisfy the “checklist of factors”
24 set forth in Biakanja that courts use “to consider in assessing legal duty in the absence
25 of privity of contract between a plaintiff and a defendant.” Bily, 834 P.2d at 761; see
26 also Beacon Residential Cmty. Assn. v. Skidmore, Owings & Merrill LLP, 327 P.3d 850,
27 853 (Cal. 2014) (“This case is concerned solely with the first element of negligence, the
28 duty of care.”).
Under the first Biakanja factor, the extent to which the transaction was intended
2 to affect Alpha, Alpha alleges that in September 2014, Bilbro and Sparling entered into
3 a contract to provide recommendations to Alpha regarding compliance with the Navy’s
4 sound criteria. Alpha includes an excerpt from the agreement in its FAC. Id. at ¶ 34.
5 Alpha alleges the agreement states that Sparling was to “. . . [p]repare a document
6 presenting findings, recommendations and the next steps needed to resolve the noise
7 issues. . .” Id. Alpha alleges the agreement “specifically task[ed] Sparling with
8 communicating with Bilbro’s subcontractor, Alpha, to resolve the noise issues.” Id.
Sparling was “the only sound consultant and acoustical expert on the Project.”
10 Id. at ¶ 25. As a result of the September 2014 contract, Sparling was working directly
11 with Bilbro to provide recommendations to Alpha regarding the noise level. The
12 agreement between Bilbro and Sparling supports the inference that Sparling’s noise
13 level recommendations were intended to be acted upon by Alpha. Sparling’s agreement
14 with the primary contractor, Bilbro, eliminated the separation between Sparling and
15 Alpha, and plausibly supports the inference that Alpha was the intended beneficiary of
16 Sparling’s recommendations and advice. See Apex Direct. Drilling, LLC v. SHN
17 Consulting Eng’rs & Geologists, Inc., 119 F. Supp.3d 1117, 1124-26 (N.D. Cal. 2015)
18 (finding a special relationship between lead engineer and subcontractor on a
19 construction project). This factor weighs in favor of imposing a duty of care.
The second Biakanja factor, foreseeability of harm, is present. While courts give
21 “limited weight to the foreseeability factor[,]” Alpha has alleged facts to support the
22 conclusion that it was foreseeable Alpha would suffer harm based on any negligent
23 recommendations offered by Sparling, pursuant to its agreement with Bilbro. Alpha has
24 alleged that Sparling was the principal and sole sound consultant and acoustical expert
25 on the project. (ECF No. 108 at ¶ 25). In Beacon, the Supreme Court of California
26 found it relevant to a Biakanja analysis that the defendants were “the principal
27 architects on the Project” and that “[a]mong all the entities involved in the Project,
28 defendants uniquely possessed architectural expertise.” 327 P.3d at 860. The court
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1 found that the defendants had not alleged that “anyone else had special competence or
2 exercised professional judgment on architectural issues[.]” Id.
In this case, Alpha has alleged that Sparling agreed “to provide recommendations
4 to reduce the noise levels, which Sparling knew that Alpha as the only mechanical
5 contractor on the Project would be implementing.” (ECF No. 108 at ¶ 35). Sparling
6 allegedly prepared a memorandum addressed to Alpha concerning “various alterations
7 . . . to selected equipment and various sound attenuation methods.” Id. at ¶ 38. The
8 Court concludes that Alpha has plead facts sufficient to show it was foreseeable that any
9 negligence in the proposals and recommendations made by Sparling would adversely
10 affect Alpha, which was engaged by Bilbro in a written subcontract relationship on the
11 Project. See id. at ¶ 14. This factor weighs in favor of imposing a duty of care.
The third and fourth Biakanja factors, certainty of injury and the closeness of the
13 connection between Sparling’s conduct and the injury suffered, weigh in favor of
14 imposing a duty of care.
Alpha alleges that it adopted one of Sparling’s
15 recommendations in January 2015, and the recommendation failed to effectively reduce
16 the noise level in two rooms. Id. at ¶ 40. Alpha alleges that after it “implemented”
17 Sparling’s recommendation, Alpha “informed Sparling” that the recommendation had
18 failed. Id. Alpha alleges that Sparling was aware that its recommendations had failed
19 to adequately reduce noise levels when the Navy identified the twenty-three problem
20 rooms in June 2014. Id. at ¶ 31-32. Alpha alleges that Sparling proposed to “prepare
21 a document presenting” Bilbro with “the next steps needed to resolve the noise issues”
22 identified by the Navy in June 2014. Id. at ¶ 33. Alpha alleges that as a result of
23 Sparling’s negligence, Alpha has suffered approximately $1,121,564.57 in damages.
24 Id. at ¶ 65.
These factual allegations are sufficient to support the conclusion that Sparling
26 had knowledge that its actions could cause Alpha injury. See Apex, 119 F. Supp.3d at
27 1124 (finding the third and fourth Biakanja factors established with a showing that the
28 subcontrator “had positive knowledge . . . that its actions were directly responsible for
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1 considerable losses”). This factor weighs in favor of imposing a duty of care.
The fifth Biakanja factor, moral blame, has no application in this case because
3 the relationships at issue involved arm’s length transactions and Alpha has not alleged
4 any facts to support a claim that Sparling acted in bad faith. See ECF No. 95 at 13.
The final Biakanja factor represents “the policy of preventing future harm.”
6 Ratcliff, 106 Cal. Rptr.2d at 8 (citation omitted). The Supreme Court of California has
7 held that “[a]s a matter of economic and social policy, third parties should be
8 encouraged to rely on their own prudence, diligence, and contracting power, as well as
9 other informational tools.” Bily, 834 P.2d at 765. Alpha is a sophisticated actor and
10 had a responsibility to protect itself throughout its dealings on the Project with Bilbro,
11 FBPA, and Sparling. See ECF No. 95 at 13. Alpha has alleged that it implemented
12 Sparling’s recommendations and purchased equipment and installed new materials to
13 fully adopt Sparling’s suggestions. (ECF No. 108 at ¶¶ 37-42). However, Alpha has
14 not presented factual allegations to support an inference that Alpha was required to rely
15 on Sparling’s “recommendations” and “suggestions.” Id. at ¶¶ 34, 37. This factor
16 weighs against imposing a duty of care.
After a review of the Biakanja factors, the Court concludes that Alpha has alleged
18 facts sufficient to plausibly support the conclusion that there was a special relationship
19 between Alpha and Sparling, such that Alpha was an intended beneficiary of the
20 contract between Bilbro and Sparling. See Ratcliff, 106 Cal. Rptr.2d at 8 (“Courts
21 sometimes impose a duty to prevent pure economic loss when there is no privity of
22 contract when the injured party is an intended beneficiary of a contract between the
23 defendant and another party.”). Alpha has alleged sufficient facts to infer that Sparling
24 owed Alpha a legal duty of care. See Apex, 119 F. Supp.3d at 1125 (“California courts
25 have repeatedly found construction design professionals potentially liable to third
26 part[ies] . . . with whom they had no direct relationship.”).
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1 V. Conclusion
IT IS HEREBY ORDERED that Sparling’s Motion to Dismiss Alpha’s First
3 Amended Counterclaim (ECF No. 111) is denied.
4 DATED: February 24, 2017
WILLIAM Q. HAYES
United States District Judge
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