KISSI v. USA
Filing
27
PUBLISHED OPINION and ORDER GRANTING 15 Motion to Dismiss - Rule 12(b)(1) and (6); DISMISSING AS MOOT 17 Motion for Summary Judgment; DENYING 20 Motion for Reconsideration - Rule 59(a); directing plaintiff to CEASE filing any further actions re lated to his litigation with Pramco or his bankruptcy proceedings; directing the Clerk to accept NO FURTHER FILINGS from plaintiff without an order of the undersigned approving the filing ; and directing the Clerk to dismiss plaintiff's claim with prejudice. Signed by Judge Thomas C. Wheeler. (dls) Copy to parties.
OHIOINAL
lJn tbe @Inite! btuttg [.ourt of
No. I l-347C
fe[prsl @luirar
FILED
(Filed: Novemb er 22, 20 | l)
******
+
******************************
*
DAVTD KISSI,
Plaintiff,
TI{E I.INITED STATES,
Defendant.
*
NOv 2
3
2011
U S. COURT OF
FEDERAL CLAIMS
* Pro se Plaintiff; Breach of Contract
1 -d Fraud Claims; Rule l2(b)(l) and
- l2(bx6) Motion to Dismiss; Lack of
] SuUiect Matter Jurisdiction on
State a
* Contract Claim; Failure toPlaintiff
t Claim on Fraud Claim:
,
-.
* Enjoined from Filing Future
* Complaints without Court Approval.
*
't******,t*************'l***********+*+**
David Kissi, appearing pro se, Washington, DC.
Dawn E. Goodman, with whom were Tony ,/esl, Assistant Attomey General, Jeanne E.
Davidson, Director, Donald E. Kinner, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC.
OPINION & ORDET\
WHEELER, Judge.
pro se complaint in this Court on June l, 20ll and
filed a "[s]upplement" to his complaint on August 8, 201l.r Plaintiff s complaint named
the U.S. Small Business Administration ("SBA") and the U.S. Department of Justice
C'DOJ') in a suit for damages of $100 million. On October 4,2011, Defendant filed a
motion to dismiss pursuant to Rules l2(bxl) and 12(b)(6) of the United States Court of
Federal Claims ("RCFC") for lack of subject matter jurisdiction or, alternatively, for
failure to state a claim upon which relief can be granted. Defendant also requested that
Plaintiff David Kissi frled
a
' Because it is unclear whether Plaintiff meant for his August 8 "[s]upplement" to serve as an amended
complaint, this Opinion addresses the allegations in both Plaintiffs June I complaint and August 8
supplement to his complaint. "Compl. _" refers to Plaintiffs June I filing, and "Supp. Compl.
on
refers to PlaintifPs August 8 filing. "Resp. _" refers to PlaintifPs "Opposition to Dismiss" filed-"
October 19, 201 l.
Plaintiff be enjoined from filing any future complaints in this Court without the Court's
prior approval. For the reasons set forth below, Defendant's motion is hereby
GRANTED.
Backsround'
Plaintiff and his wife. Edith Truvillion Kissi ("the Kissis") previously owned
DK&R Company, Inc. C'DK&R"). See (Resp. 1; Def.'s Mot. 3, Oct. 4,2011). Betlveen
1993 and 1996, DK&R obtained three loans ('lhe DK&R loans"), two from the Money
Store and one from Key Bank, N.A. See (Resp. Attach. at 12, 13,25-34; Def''s Mot. 3,
Oct.4,2011). The SBA guaranteed part of the loans, and the Kissis also personally
guaranteed the loans. See (Resp. Attach. at 12, 13,25-34; Def.'s Mot. 3,Oct.4'2011).
After DK&R failed to make timely payments on the loans, the SBA paid its guarantee
obligations and then sold the loans to Pramco II, LLC ("Pramco")' See (Resp. Attach. at
15; Def.'s Mot. 3, Oct. 4,2011). The SBA transferred the Money Store loans to Pramco
on December 5, 2000 and transferred the Key Bank loan to Pramco on August 7,2001.
See (Supp. Compl., Attach. at 8; Def.'s Mot. 3, Oct. 4,2011). On May 29'2003, Pramco
obtained a judgment against the Kissis in the sum of $328,279.55. Final Order of
Judgment, Pramco II. LLC v. Kissi, Civil No. PJ'lr4 02-42 (D. Md. May 29,2003)' Dkt'
No. 123.
Plaintiffs complaint is styled as a claim against the SBA and the DoJ for "Loan
Fraud As A Co-Guarantor, For Abusing Its Role As A custodian of Ammendale Trust
U.S. Court Escrow Account And For [] Taking Plaintiffs' Assets Without
Compensation." (Compl. 1.) Reading together Plaintiff s complaint, Dkt. No. 1, and
Plaintiff s supplement to his complaint, Dkt. No. 12, Plaintiff appears to assert a breach
of contract claim against the SBA and a fraud claim against the SBA, the DOJ, and
Pramco (among other private entities and individuals).
Plaintiff maintains that the SBA "breach[ed] its contractual obligation with the
Plaintiffs when, without advance notice, the SBA sold the commercial mortgage notes at
a few cents on the dollar to mortgage lender Pramco of [u]pstate New York." (Compl.
2.) In addition, Plaintiff contends that the SBA "failed in its duties as a co-guarantor
when it did not convey a marketable title to Mortgage Investor Pramco II of New York
when the SBA resold same in the secondary markets without advance notice to the
Kissis." (Supp. Compl. 1.)
2
The Court draws the facts as stated in the Background section of this Opinion from the agreed upon
facts in the parties' filings and appendices to their filings, as well as fiom relevant orders from the U.S.
District Court for the District of Maryland.
asserted against Pramco (and other
private entities and individuals). Essentially, Plaintiff states that the SBA did not convey
marketable title and other necessary paperwork to Pramco when it transferred the DK&R
Without that paperwork, Plaintiff contends that
loans to Pramco. See (Compl.
Pramco "committed fraud" when it filed claims against the Kissis, as it falsely maintained
that it held title to the DK&R loans. (Supp. Compl. l, 3.) Although Plaintiff charges the
SBA with fraud, see (Compl. 3), and asserts that the "DOJ assisted Pramco to steal
Plaintiff[']s real estate portfolio Pramco never held clear titles to," (Supp. Compl. 2),
Plaintiff does not identifo any particular fraudulent acts by the SBA or explain how the
DOJ rendered such assistance to Pramco. Plaintiff maintains that under Federal Rule of
Civil Procedure 60(b), his fraud claim is not time-barred because of "newly discovered
evidence" that Pramco did not hold marketable title to the DK&R loans. (Compl. 4.)
Plaintiffs allegations of fraud are primarily
2).
Plaintiff seeks a return of his assets, as well as $100 million "for the U.S. taking
the Plaintiffs, assets without compensation" and "causing [the Kissis] emotional
distress." (Compl. 4.)
Defendant moved to dismiss Plaintiff s complaint and amended complaint
pursuant to RCFC 12(bxl) and 12(b)(6) on the grounds that the court lacks subject
matter jurisdiction over Plaintiff s claims and, in the altemative, that Plaintiff has failed
to state a claim upon which relief can be granted. See (Def.'s Mot. Oct. 4, 20ll).
Defendant also requested that Plaintiff be enjoined from filing any future complaints in
this court without the court's prior approval. Id. at 13. Plaintiff filed a motion for
partial summary judgment on October 17 , 20Il and a response to Defendant's_ motion to
dismiss on october 19,2011. on November 2,2011, the court issued an order staying
further briefing on Plaintiff s motion for summary judgment until after the resolution of
Defendant's motion to dismiss. Defendant filed a reply to Plaintiffs r€sponse on
November 4,2011.
Discussion
I.
Jurisdiction.
When reviewing a motion to dismiss pursuant to RCFC l2(bxl), the Court
assumes that all factual allegations are true and construes "all reasonable inferences" in
favor of the Plaintiff. Hall v. United States,74Fed. Cl. 391, 393 (2006) (quoting Henke
v. unired States, 60 F.3d 795,797 (Fed. Cir. 1995)). The Plaintiffmust establish subject
matter jurisdiction by a preponderance of the evidence. Reynolds v. Army"& Air Force
Exch. serv., 846 F.2d 746, 748 (Fed. Cir. 1998) (internal citations omitted). Although
pleadings filed by pro se litigants are held to a lower standard than those drafted by
lawyers, see Haines v. Kemer, 404 U.S. 519, 520 (197 2), pro se litigants are not exempt
from meeting the Court's jurisdictional requirements, see Henke, 60 F.3d at 799. If the
Court determines that
it
lacks subiect matter iurisdiction,
it
must dismiss the claim.
RCFC 12(hX3).
Under the Tucker Act, this Court has jurisdiction to entertain claims against the
United States based upon the U.S. Constitution, federal laws or regulations, or an express
or implied contract with the United States. 28 U.S.C. $ lagl(a)(l) (2006)' The
complaint must contain "a short and plain statement of the claim showing that the pleader
is entitled to relief." RCFC 8(a)(2). Moreover, when a claim is based upon a contract
with the United States, the complaint must "identiff the substantive provisions of the
contract" on which it relies. RCFC 9(k). The complaint can do so either by describing
the relevant contract provisions or by annexing a copy of the contract to the complaint
and indicating the relevant provisions. Id.
A. Plaintiffs unsupported breach of contract claim is insufficient to
establish
subject matter jurisdiction under the Tucker Act.
Plaintiff maintains that the Kissis had "a contractual arrangement with the SBA,"
(Resp. 2), and claims that the SBA breached its contractual obligations when it
transferred its interests in the DK&R loans to Pramco, (Compl.2). The "contractual
arrangement" that Plaintiff cites is "a business loan agteement" allegedly "between the
Kissis, their business DK&R and the SBA as co-guarantor." (Resp. 2.) In his filings'
Plaintiff does not specifically identifu the loan agreement that allegedly created the
contractual arrangement between himself and the sBA. Plaintiff did attach many
documents to his response, including loan agreements between DK&R and lenders, Key
Bank and the Money Store. See (Resp. Attach. at 12, 13,25-34)'
Despite Plaintiffs avowal that a contract exists, he has failed to identiff a contract
between himself and Defendant. Plaintiff s reliance on the loan agreements between the
SBA and lenders, Key Bank and Money store is misplaced. Plaintiff refers to the sBA as
a "co-guarantor" of his loans. (Compl. 2; Resp. 2') The SBA, however, "is not deemed
to be a co-guarantor with any other guarantors." 13 C.F.R. $ 120.5a5(e). Rather than a
co-guaxantor, the loan agreements attached to Plaintiffs response indicate that the SBA
acted as a surety for the loans that DK&R received. See (Resp. 12, 13' 25-34). As such,
they suggest that there was a contractual relationship between the SBA and the lenders;
however, they do not show that there was a contractual relationship between the SBA and
Mr. Kissi or DK&R. Tellingly, Plaintiff fails to point to any provision of the alleged
contract that would entitle him to relief. Because Plaintiff has failed to show that he had
a contract with Defendant and has failed to adequately plead a contract claim under
RCFC 9(k), the Court lacks jurisdiction to hear Plaintiff s contract claim. See MendezCardenas v. United States, 88 Fed. Cl. 162, 167-68 (Fed. Cl. 2009)'
B. Plaintiff
s breach
of contract claim is time-barred.
Even if Plaintiff had identified a contractual relationship between himself and
Defendant sufficient to trigger this Court's subject matter jurisdiction, his breach of
contract claim would be baned by the statute of limitations' Under 28 U.S'C' $ 2501
(2006), "[e]very claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years after such
claim first accrues." This Court has stated that "[i]n the case of a breach of contract, a
cause of action generally accrues at the time the breach occurs." clear creek cmty.
Servs. Dist. v. United States,2011 U.S. Claims LEXIS 1873 (2011) (citing Alder
Terrace. Inc. v. United States, 161 F.3d 1372, 1377 (Fed' Cir. 1998)). If a complaint is
not filed within the statute of limitations, it must be dismissed for lack ofjurisdiction. Id.
(intemal citation omitted).
Plaintiff claims that the SBA breached its contractual obligations with the Kissis
when it transferred its interest in the DK&R loans to Pramco. (Compl. 2.) These
transfers occurred on December 5, 2000 and August 7,2001, see (Def.'s Mot' App. at 26,
Oct. 4,2011), but Plaintiff did not file his complaint in this action until June l,2011nearly ten years after his most recent cause of action would have accrued. Accordingly,
Plaintiff is barred from pursuing his breach of contract claim, and it must be dismissed.
II.
Relief Can Be Granted.
Plaintiff invokes Federal Rule 60(b) to claim that he is entitled to relief from the
Maryland district court's judgment in favor of Pramco because of "newly discovered
fraud,' by Defendant and Pramco. (compl. 2.) Federal Rule 60(b), the analog for which
is found at RCFC 60(b), allows for relief from a final judgment in the case of newly
discovered evidence or fraud. RCFC 60(bX2)-(3). A party seeking to invoke Rule 60(b)
on the basis of newly discovered evidence or fraud must do so "no more than a year after
the entry ofjudgment." RCFC 60(cXl).
29,2003. See
Final Order of Judgment, Pramco II. L.L.C. v. Kissi, Civil No. PIM 02-42 (D. Md' May
29, 2003), Dkt. No. 123. Accordingly, Plaintiff s fraud claim is untimely. Even if
Plaintiff s claim were timely, this court cannot review a judgment of the Maryland
disrrict court. See 28 U.S.C. $ I29l (2006). Lastly, insofar as Plaintiffs fraud
allegations are directed at Pramco and other private entities and individuals, this Court
cannot grant relief against defendants other than the united States. See 28 U.S.C' $ 1491
(2006). For these reasons, Plaintiffs fraud claim is dismissed for failure to state a claim
upon which reliefcan be granted. See RCFC 12(bX6).
The judgment from which Plaintiff seeks relief was entered on May
ilI.
Plaintiff Is Enioined From Filing Any Future Complaints In This Court Without
Prior Approval.
Rule I I empowers this court to impose sanctions on parties who file frivolous
lawsuits with no basis in fact or law. RCFC 11. Where necessary to deter such conduct
in the future, this court has seen fit to bar a plaintiff from filing any future complaints
without an order from the Court approving the filing. See Rutledse v. United States, 72
Fed. Cl. 396, 403 (2006) (citing multiple cases in which the Court has barred plaintiffs
from making frlings without the Court's prior approval) (internal citations omitted).
As set forth above, the court finds that Plaintiffs claims have no basis in law or
fact. Plaintiff s breach of contract claim is predicated on a seemingly non-existent
contract, and his allegations of fraud are wholly unsupported. Moreover, in Plaintiff s
filings, he employs gratuitous slurs and makes additional accusations without any
corroborative evidence. Plaintiff alleges that the SBA and the DOJ, "through its
unsavory employees . . . conspired to impound and take Plaintiffs' U.S. Trust Assets
without compensation." (Compl. 1.) He accuses the SBA of "purposefully and
maliciously [seeking] to ruin the [Kissis]," (Compl. 2), and of "misle[ading] the Kissis in
bad faith,', (Supp. Compl. 1). To support these allegations, Plaintiff fails to offer any
specific details of misconduct, not to mention credible evidence.
The public record demonstrates that Mr. Kissi has a long history of making similar
baseless accusations. On October 10, 2003, the Maryland district court issued a pre-filing
injunction against the Kissis "based on the vexatious and frivolous pattern of litigation
filed by David Kissi and/or Mrs. Kissi[] against various parties involved in the Pramco
litigation and the Kissi bankruptcy proceedings." (Def.'s Mot. App' at 17 , OcI' 4,2011);
Preliminary Injunction, Pramco II. LLC v. Kissi, Civil Action No. PJM 03 CV 2241 (D.
Md. Oct. 10, 2003). Appended to the preliminary injunction, the district court included a
,,List of David Kissi cases," demonstrating that between 1999 and 2003, Mr. Kissi filed
at least 20 actions related to his litigation with Pramco and his bankruptcy proceedings.
See id. Ex. A.3 In an order entered June 20, 2008, the district court declined to dissolve
I The
"List of David Kissi Cases" included the following actions:
.
.
1999 complaint against the SBA in the Maryland
.
.
district court:
1999 complaint against Mr. wiser in the circuit court of Maryland for Anne Arundel county;
1999 complaint against Firsl Union/the Money Store in the Circuit Court of Maryland for Baltimore
.
.
.
disficl court;
1999 complaint against C. Lawrence Wiser, counsel for Pramco and the Money Store, in the Maryland
CountY;
2001 complaint against Joel Coldberger, Mr. Kissi's Chapter l3 Trustee, in the Maryland district court;
2002 complaint against Emil Hirsch, counsel for Pramco, in the Circuit Court of Maryland for Howard
County;
2002 complaint against Richard Kremen in the U.S. District Court for the District of Columbia The case
was subsequentlyiemoved to the U.S. Bank.ruptcy Court in Baltimore and assigned Adversary Proceeding
No.02-5123;
the preliminary injunction in effect against Mr. Kissi. See Memorandum Opinion,
Pramco II. LLC v. Kissi, Civil Action No. PJM-08-748 (D. Md.).
Mr. Kissi was convicted of criminal contempt of court for knowingly and willfully
violating the preliminary injunction by filing lawsuits in two Maryland courts without
authorization. See (Def.'s Mot, App. at 2'7 -31, Oct". 4,2011)' Nevertheless, Mr' Kissi
has persisted in filing and pursuing actions-most of which have been deemed
frivolous-in various U.S. courts, including the Supreme Court of the United States, see
Kissi v. Pramco II. LLC, 546 U.S. 808 (2005); Kissi v. Pramco II. LLC, 546 U.S' 1060
(2005), and multiple district and appellate courts.
against Coldwell Banker and Jim
Gillespie in the U.S. District Court for the District of New Jersey, seeking $100 million
based on claims related to the sale of his Maryland properties. Kissi v. Ammendale
Trusr, 2009 U.S. Dist. LEXIS 15532 (D.N.J. 2009). The district court found that Mr.
Kissi's complaint was baned by the preliminary injunction issued by the Maryland
district court and alternatively, that it lacked subject matter jurisdiction to hear his claim.
Id. at 3-4. The court noted that Mr. Kissi had filed an identical complaint in the U.S.
In July 2008, Mr. Kissi filed a complaint
2003 complaint against Mr. I(remen in the District Court of Maryland for Baltimore City. After the case
was dismissed, M;. Kissi filed an adversary proceeding in the Bankruptcy Court seeking removal of the
proceeding against Mr. Kremen on May 14,2003;
2003 udr..rury proceeding in the Bankruptcy Court against Mr. Klemen. The case was assigned
Adversary Proceeding No. 03-051 15;
2003 complaint against Gary Baxley, the Trustee's brokel employed to sell the condominiums, in the
District Court of Maryland for Baltimore City. After the case was dismissed, Mr. Kissi filed an adversary
proceeding in the Bankruptcy court seeking removal of the proceeding against MI. Baxley on May 14,
2003:
2003 complaint against Mr. Hirsch in the District court of Maryland for Baltimore city, case No. I 18692003;
2003 complaint against Teri Nunan, authoriz€d agent of Plamco, in th€ District Court of Maryland for
Baltimore city, Case No. 12234-2003;
2003 complaint against Mr. Nunan in the Maryland district court, Case No. 03 CV 0223'l PJMi
2003 complaint against Gary wilson, puchaser of DK&R's condominium unit, in the cilcuit court of
Maryland for Howard CountY;
2003 complaint against Julie Tumia, authorized agent of Pramco, in the District court of Maryland for
Baltimore City, Case No. 13739-2003;
2003 complaint against Christine Barilla, former SBA employee, in the Distlict Court of Maryland for
Baltimore City;
2003 complaint against AIlan stephenson, SBA employee, in the District court of Maryland for Baltimore
City;
2003 adversary proceeding in the Bankruptcy Court seeking removal of a proceeding against Katherine
Levin, attorney with the Office ofthe U.S. Trustee;
2003 adversary proceeding in the Bankruptcy court seeking removal ofa proceeding against Mark Neal, an
Assistant U.S. Trustee;
complaint against Mr. Wiser in the District Court of Maryland for Baltimore City. On June 2' 2003, Mr.
Kissi filed ai adversary proceeding in the Bankruptcy court seeking removal ofthe case against Mr. Wiser'
District Court for the Northem District of Ohio. ld. at2.a The U.S' Court of Appeals for
the Third Circuit dismissed Mr. Kissi's appeal of the New Jersey court's decision
pursuant to 28 U.S.C. $ 1915(e)(2)(BXi), finding that it "lack[ed] an arguable basis in
either law or fact." Kissi v. Gillespie, 348 Fed. Appx. 704, 706 (3d Cir. 2009)'
In November 2008, Mr. Kissi filed a complaint in the U.S' District Court for the
District of Delaware characterized as "derivative of' his bankruptcy proceedings in
Maryland. In re Kissi, 353 Fed. Appx. 774, 775 (3d Cir. 2009). After the Delaware
district court transferred the case to the Maryland district court, Mf. Kissi filed a motion
for reconsideration, which the Delaware district court denied. Id. Mr. Kissi then
appealed, and the Third Circuit dismissed his appeal for lack ofjurisdiction. Id. (citing
Kissi v. Pramco II. LLC, C.A. No. 09-1685). Mr. Kissi then filed a writ of mandamus
alleging that the Delaware district court abused its discretion in transfening the case. Id.
The Third circuit found that Mr. Kissi could not show a right to the writ and accordingly,
denied Mr. Kissi's petition. Id.
In February 2009, the Maryland district court dismissed as frivolous a claim by
Mr. Kissi seeking to reopen his bankruptcy cases and suing Pramco for harassment and
emotional distress. Kissi v. Pramco II. LLC, 2009 U.S. District LEXIS 61425 (D. Md'
2009). (The action had been transferred from the Delaware district court.) Id. The court
found that Mr. Kissi's claim was "a patent attempt . . . to circumvent the [october 10,
20031 pre-filing injunction." Id. at2. The U.S. Court of Appeals for the Fourth Circuit
affirmed the district court's dismissal. Kissi v. Pramco II. LLC, 401 Fed' Appx. 786, 787
(4th Cir. 2010). In so doing, the Fourth Circuit noted Mr. Kissi's "repeated abusive
filings" and consequently, enjoined him from filing any further actions in the Fourth
Circuit until a district court certifies that his claim is not frivolous. Id.
Mr. Kissi also filed two petitions in the U.S. Court of Appeals for the District of
Columbia Circuit to obtain a writ of mandamus preventing the D.C. district court lrom
transferring two of his civil cases to the Maryland district court. See Kissi v. Simmons,
No.09cvl452 (D.D.C. July 31,2009); Kissi v. Mead,623F. Supp.2d 65' No.08cv2031
(D.D.C. June 10, 2009). In both instances, Mr. Kissi moved for leave to proceed ln
that
forma pauperis. The D.C. Circuit found that Mr. Kissi had filed three or more claims
proceed tn
had been dismissed as frivolous and that, therefore, Mr. Kissi was ineligible to
formapauperis pursuantto28U.S.C. $ l9l5(e)(2006). InreDavidKissi,652F.3d39
(D.C. Cir. 201l).
Although this recounting of Plaintiff s litigation history is by no means exhaustive,
it suffices to illustrate Plaintiff s abusive litigation practices. Plaintifls frivolous claims
in this case. coupled with his history in other U.S. courts, leads the Court to conclude that
n
The Ohio dist ct court, noting rhe preliminary injunction in effect, transferred the case to the Maryland district
court. Id. (citing Kissi v. Coldwell Banker, 08-cv-00894 CN D. ohio 200E)' Dkt. No. 7)
8
it is in the best interest ofjudicial resources to deter Plaintiff from filing future frivolous
lawsuits in this Court. Accordingly, Plaintiff shall not file any actions in this Court
without the prior approval of the undersigned.
Conclusion
Based upon the foregoing, Defendant's motion to dismiss pursuant to Rules
12(bX1) and l2(bX6) is GRANTED. The Clerk is directed to dismiss Plaintiff s claim
with prejudice. In light of this Opinion and Order, Plaintiff s motion for summary
judgment is DISMISSED as moot.
Plaintiff is ORDERED to cease filing in the U.S. Court of Federal Claims any
further actions related to his litigation with Pramco or his bankruptcy proceedings' The
Clerk of Court is directed to accept no filing from Plaintiff without an order of the
undersigned approving the filing.
In addition, Plaintiff s October 8, 201 I motion for reconsideration is DENIED'
none ofthe grounds identified in RCFC 59(a) are present.
IT IS SO ORDERED.
J)
/llYtlfln
L-
l,Wov"tt . L0 l4A'l'",THOMAS C. WHEELER
Judge
as
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