Rothenberg v. Knight Swift Transportation et al
ORDER granting 47 Motion to Dismiss; 49 Motion to Dismiss; 50 Motion to Dismiss; and 51 Motion to Dismiss, and directing the Clerk of the Court to enter judgment in favor of Defendants, terminate all pending motions, and close the file. See Order for details. Signed by Judge Marcia Morales Howard on 11/14/2023. (WT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:21-cv-1213-MMH-LLL
STORES INC., COSTCO
and TARGET CORPORATION,
THIS CAUSE is before the Court on four motions to dismiss Plaintiff
Aaron Rothenberg’s Second Amended Complaint (Doc. 44).
Swift Transportation Company of Arizona, LLC’s Motion to Dismiss Plaintiff’s
Second Amended Complaint and Incorporated Memorandum of Law (Doc. 47;
Swift Motion), filed March 9, 2023; Defendant Costco Wholesale Corporation’s
Motion to Dismiss Second Amended Complaint (Doc. 49; Costco Motion), filed
March 10, 2023; Target Corporation’s Motion to Dismiss Plaintiff’s Second
Amended Complaint and Incorporated Memorandum of Law (Doc. 50; Target
Motion), filed March 13, 2023; Defendant, Wal-Mart Stores Inc.’s Motion to
Dismiss Second Amended Complaint and Incorporated Memorandum of Law
(Doc. 51; Wal-Mart Motion), filed March 13, 2023 (collectively, “Motions”).
Rothenberg has filed a response to each of these Motions. See Response to
Defendant Swift Transportation Company of Arizona, LLC’s Motion to Dismiss
Plaintiff’s Second Amended Complaint and Incorporated Memorandum of Law
(Doc. 56; Swift Response), filed March 28, 2023; Response to Defendant Costco
Wholesale Corporation’s Motion to Dismiss Second Amended Complaint (Doc.
54; Costco Response), filed March 23, 2023; Response to Target Corporation’s
Motion to Dismiss Plaintiff’s Second Amended Complaint and Incorporated
Memorandum[ ]of Law (Doc. 58; Target Response), filed April 3, 2023; Response
to Defendant, Wal-Mart Stores Inc.’s Motion to Dismiss Second Amended
Complaint and Incorporated Memorandum of Law (Doc. 53; Wal-Mart
Response), filed March 23, 2023 (collectively, “Responses”). In the Motions,
each Defendant seeks dismissal of Rothenberg’s claims pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (Rule(s)) for failure to state a
claim upon which relief can be granted. See Swift Motion at 1; Costco Motion
at 5; Target Motion at 1; Wal-Mart Motion at 1. In addition, each Defendant
asserts that the Second Amended Complaint should be dismissed for failing to
comply with Rules 8 and 10. See Swift Motion at 1; Costco Motion at 5; Target
Motion at 1; Wal-Mart Motion at 1. Upon review of the Motions, Responses,
and the Second Amended Complaint, the Court finds that this case is due to be
Rothenberg initiated this action on November 8, 2021, by filing his
original complaint in the Fourth Judicial Circuit Court in and for Duval County,
Florida. See Notice of Removal at 2 (Doc. 1), filed December 8, 2021; State
Court Complaint at 1 (Doc. 1-3; Original Complaint). With the consent of the
other three Defendants, Swift Transportation Company of Arizona, LLC (Swift)
removed the action to this Court. 1 See Notice of Removal at 4. Swift and
Target then moved to dismiss the Original Complaint.
Defendant Swift Transportation Company of Arizona, LLC’s Motion to Dismiss
and Incorporated Memorandum of Law (Doc. 4; First Swift Motion), filed
December 13, 2021; Target Corporation’s Motion to Dismiss Plaintiff’s
In his Original Complaint, Rothenberg named “Knight Swift Transportation” as a
defendant, not Swift Transportation Company of Arizona, LLC. See Original Complaint at
In the Second Amended Complaint, he identifies this entity as “Knight Swift
Transportation Holdings, Inc.” See Second Amended Complaint at 1. The Defendant who
appeared in this action, however, is Swift Transportation Co. of Arizona, LLC, which
maintains that Rothenberg “improperly identified” it as “Knight Swift Transportation.” See
Notice of Removal at 1. Rothenberg has acknowledged this assertion, and represents that
“Swift Transportation Company of Arizona, LLC is a subsidiary of Knight-Swift
Transportation Holdings, Incorporated.” See Response to Defendant Swift Transportation
Company of Arizona, LLC’s Motion to Dismiss and Incorporated Memorandum of Law at 1
(Doc. 8; First Swift Response), filed December 28, 2023. Nonetheless, Rothenberg continues
to identify “Knight Swift Transportation Holdings, Inc.” as the named Defendant. See Second
Amended Complaint at 1. Significantly, Rothenberg has not argued that Swift is the wrong
party. Indeed, despite filing two motions for entry of default as to Defendants Costco
Wholesale Corporation and Wal-Mart Stores, Inc., Rothenberg has not asserted that KnightSwift Transportation Holdings, Inc. has failed to appear in this action. See Order Denying
Requests for Default as Moot at 1 (Doc. 18), entered February 1, 2022. Accordingly, the Court
will construe Rothenberg’s references to “Knight Swift” as referring to Defendant Swift.
Complaint and Motion to Strike (Doc. 7; First Target Motion), filed December
After Rothenberg responded to these Motions, he submitted to the Court
for filing a hard drive containing body camera footage which he represented
would show “the type of actions [Rothenberg] has contended with on the roads
of the nation . . . .”
See Notice of Filing Hard Drive Containing Body Cam
Footage (Doc. 10), filed January 13, 2022. Costco and Wal-Mart then appeared
in this action and also moved to dismiss Rothenberg’s Original Complaint. See
generally Defendant Costco Wholesale Corporation’s Motion to Dismiss and
Memorandum of Law (Doc. 14; First Costco Motion), filed January 24, 2022;
Defendant, Wal-Mart Stores Inc.’s Motion to Dismiss and Memorandum of Law
(Doc. 16; First Wal-Mart Motion), filed January 24, 2022.
Rothenberg responded to these motions and then filed more body camera
footage—this time on three additional hard drives. See Notice of Filing Second
Hard Drive Containing Body Cam Footage (Doc. 22), filed March 15, 2022;
Notice of Filing Third and Fourth Hard Drive Containing Body Cam Footage
(Doc. 23), filed May 20, 2022.
On June 14, 2022, the Court dismissed Rothenberg’s Original Complaint
without prejudice for failure to state a claim upon which relief could be granted.
See Order (Doc. 24; Order Dismissing Original Complaint) at 11. 2 In doing so,
the Court explained that the Original Complaint consisted of “vague legal
conclusions without any factual support,” and thus that it failed to plead
“enough facts to state a claim to relief that is plausible on its face.” See id. at
10. The Court declined to review Rothenberg’s hard drives, and explained that
“ordinarily a court may not consider facts not alleged in the complaint nor
documents attached to a motion to dismiss.” See id. at 10–11 (citing Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). Nevertheless, the Court allowed
Rothenberg to file an Amended Complaint (Doc. 25), which he did on July 11,
2022. Once again, all Defendants filed motions to dismiss and Rothenberg
filed responses. See Order (Doc. 43; Order Dismissing Amended Complaint).
Rothenberg also submitted yet another hard drive to be filed in his case, as well
as bills of lading from Rothenberg’s deliveries “to Wal-Mart, Costco, and Target
locations” in the course of his job.
See Notice of Filing Fifth Hard Drive
Containing Body Cam Footage (Doc. 40), filed January 5, 2023; Wal-Mart,
Target, and Costco Bills of Lading (Doc. 39), filed November 16, 2022; Costco
Bill of Lading (Doc. 41), filed January 26, 2023.
This case was originally assigned to the Honorable Henry Lee Adams, Jr. and
reassigned to the undersigned on February 27, 2023. See Order (Doc. 45), entered February
Upon review of Defendants’ motions, the Court again dismissed
Rothenberg’s claims. See generally Order Dismissing Amended Complaint.
In doing so, Judge Adams noted that Rothenberg’s Amended Complaint
“suffer[ed] the same defects that led to the dismissal of [Rothenberg’s] initial
complaint,” and that it consisted of “vague and conclusory assertions against all
Id. at 12.
And once again, the Court declined to review
Rothenberg’s body camera footage. See id. at 15–16. After determining that
Rothenberg had “not stated a cause of action as to any claim” in the Amended
Complaint, Judge Adams dismissed the Amended Complaint and permitted
Rothenberg to file a Second Amended Complaint. 3 Id. at 15–17. Rothenberg
then filed the operative Second Amended Complaint. As discussed above, each
Defendant now moves to dismiss the Second Amended Complaint for failure to
state a claim upon which relief can be granted. 4
Factual Background 5
Rothenberg worked as a commercial motor vehicle operator for Swift
between July 2018 and August 2020. Second Amended Complaint ¶ 8. After
While the Court dismissed most of Rothenberg’s claims without prejudice for being
too “vague and conclusory,” the Court dismissed his claim for False Light with prejudice
because it “is no longer a recognized cause of action under Florida law.” See Order Dismissing
Amended Complaint at 15.
4 Defendants Wal-Mart and Costco also suggest that they are moving pursuant to Rule
12(e). See Wal-Mart Motion at 1; Costco Motion at 1. However, Rule 12(e) allows a party to
“move for a more definite statement,” not for dismissal. See Rule 12(e). Because Wal-Mart
and Costco do not request a more definite statement in their respective Motions, the Court
will not address Rule 12(e).
5 In considering a Motion to Dismiss, “the court reviews a plaintiff’s pro se allegations
leaving this job, he continued to work as a professional driver for First Carrier
Transportation from August 2020 to “mid-December 2022.”
Id. ¶ 9.
According to Rothenberg, since 2018, Defendants have subjected him to a broad,
ongoing conspiracy to assault him, defame him, humiliate him, invade his
privacy, and “extort self-harm by way of [Rothenberg’s] suicide.” Id. ¶ 11. He
asserts that this conspiracy involves “seemingly constant stalking,” and is
orchestrated by “personnel from the top to the bottom of the Defendants’
organization[s].” Id. ¶¶ 13, 15. He further states that the conspiracy involves
Defendants’ employees “scream[ing] defamatory statements” about him in
public, assaulting him, surveilling him, collecting and distributing his private
information, and intentionally seeking to damage his emotional health, among
other allegations. See id. ¶¶ 19, 23, 27, 31, 35. 6
in a liberal fashion, accepts all factual allegations in the complaint as true, and evaluates all
reasonable inferences derived from those facts in the light most favorable to the plaintiff.”
See Freeman v. Fine, 820 F. App’x 836, 838 (11th Cir. 2020). As such, the facts recited here
are drawn from the Second Amended Complaint and may well differ from those that
ultimately could be proved.
In citing Freeman, the Court notes that it does not rely on unpublished opinions as
binding precedent, but they may be cited in this Order when the Court finds them persuasive
on a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see
generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered
binding precedent, but they may be cited as persuasive authority.”).
6 In his Second Amended Complaint, Rothenberg includes separate sections directed
at each individual Defendant, but most of the factual allegations in each section are identical.
When referring to allegations that are the same for each Defendant, the Court will generally
quote a single example of the allegation rather than enumerating each specific allegation.
For the same reason, the Court will sometimes discuss the adequacy of Rothenberg’s claims
generally, without reference to a particular Defendant.
In his Second Amended Complaint, Rothenberg brings six state-law
claims against each Defendant.
First, Rothenberg asserts claims of
defamation based on false statements he believes Defendants’ employees are
spreading about him.
See id. ¶¶ 19–22, 41–44, 63–66, 85–88.
Rothenberg alleges claims of assault based on verbal and physical threats. See
id. ¶¶ 23–25, 45–47, 67–69, 89–91. Rothenberg next brings claims for invasion
of privacy under two theories: intrusion upon seclusion and public disclosure of
private facts, respectively. See id. ¶¶ 26–34, 48–56, 70–78, 92–100. He then
asserts claims of intentional infliction of emotional distress, see id. ¶¶ 35–37,
57–59, 79–81, 101–103, and civil conspiracy. See id. ¶¶ 38–40, 60–62, 82–84,
104–106. Rothenberg seeks relief in the form of “compensatory and general
damages,” as well as a permanent injunction to prevent future tortious conduct.
See id. ¶¶ 107–114. 7
Each Defendant now seeks dismissal of Rothenberg’s Second Amended
Complaint, arguing that the Complaint still fails to state a claim upon which
relief can be granted. 8
See Swift Motion at 2, Target Motion at 1, Costco
Motion at 1, Wal-Mart Motion at 1.
Specifically, Rothenberg seeks $4,000,000 in damages from Wal-Mart, $3,000,000
from Swift, and $1,000,000 from the remaining Defendants, Target and Costco. See Second
Amended Complaint ¶¶ 110–113.
8 In addition, Swift and Target argue that the Second Amended Complaint constitutes
a shotgun pleading. See Swift Motion at 8–9; Target Motion at 8. In particular, Swift
asserts that this is true (at least in part) because Rothenberg “has alleged the exact same
conduct by each defendant.” See Swift Motion at 9. Because the Court determines that this
Standard of Review
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court
must accept the factual allegations set forth in the complaint as true. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508, n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc.,
278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences
should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,
705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal
Jackson v. BellSouth Telecomm., 372 F.3d 1250,
1262–63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts
are not necessary,” the complaint should “‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
Further, the plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
action is due to be dismissed based upon Rothenberg’s failure, after three attempts, to state
plausible claims for relief, the Court need not consider Target and Swift’s additional
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556).
A “plaintiff's obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations
omitted); see also Jackson, 372 F.3d at 1262 (explaining that “conclusory
masquerading as facts will not prevent dismissal”) (citations and quotations
Indeed, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions,”
which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556
U.S. at 679. Thus, in ruling on a motion to dismiss, the Court must determine
whether the complaint contains “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Id. at 678 (quoting
Twombly, 550 U.S. at 570).
Determining whether a complaint states a plausible claim for relief is “a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. Notably, when the well-pleaded
facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not “show[n]”—“that the
pleader is entitled to relief.”
Id. (citation omitted).
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And, while “[p]ro se
pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed,” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998), “‘this leniency does not give the
court a license to serve as de facto counsel for a party or to rewrite an otherwise
deficient pleading in order to sustain an action.’” Alford v. Consol. Gov’t of
Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011) (quoting GJR Invs., Inc.
v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal
citation omitted), overruled in part on other grounds as recognized in Randall,
610 F.3d at 706); see also Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–
69 (11th Cir. 2014).
Upon review of Rothenberg’s Second Amended Complaint, the Court finds
that it is due to be dismissed because he has failed to state plausible claims for
relief. As an initial matter, the Court notes that this is Rothenberg’s third
attempt to plausibly plead the claims he seeks to pursue in this action. Twice
the Court has identified the legal elements of each of his claims. See Order
Dismissing Original Complaint at 4–7; Order Dismissing Amended Complaint
at 4–12. And twice the Court has pointed to the deficiencies in his allegations.
See Order Dismissing Original Complaint at 7–10; Order dismissing Amended
Complaint at 12–16.
Despite this, Rothenberg has failed to cure the
deficiencies. Rothenberg’s new allegations are just as conclusory and devoid of
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factual content as those that the Court has already deemed to be insufficient.
Simply put, the Second Amended Complaint does not allege sufficient facts—as
distinguished from “labels and conclusions,” Twombly, 550 U.S. at 555—to state
a claim for relief that is plausible on its face.
Moreover, the Court is convinced that in his Second Amended Complaint
Rothenberg still fails to give Defendants fair notice of the basis of his claims,
and has not pleaded enough facts to support a reasonable inference that
Defendants are liable for the conduct about which he complains. Although
Rothenberg asserts that “personnel from the top to the bottom of” Defendants’
organizations—including “[m]anagement personnel at every level”—have
engaged in tortious behavior, Second Amended Complaint ¶ 15, this allegation
is nothing but a broad conclusion, and Rothenberg does not provide any facts to
explain why he believes that his assailants were employees of any particular
Defendant. Nowhere does Rothenberg identify a single employee by name or
description, provide examples of any specific incident in which he experienced
the untoward conduct, or explain how he attributes that conduct to the
employees of any Defendant. 9 Instead, Rothenberg refers to an exceedingly
Rothenberg asserts that he “could never hope to name” many of the employees who
allegedly assaulted him. See Wal-Mart Response at 3. But the issue is not that Rothenberg
has failed to provide the specific names of each employee who he believes to be responsible for
the conduct he alleges. See Erickson, 551 U.S. at 93 (explaining that “[s]pecific facts are not
necessary” to satisfy Rule 8(a)(2)’s pleading standard). It is that Rothenberg has failed to
plead any facts in support of his broad claims. Indeed, it is the overall lack of non-conclusory,
factual allegations that, if accepted as true, would “allow[ ] the court to draw the reasonable
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vague and wide range of tortious behavior from “a variety of parties” at a
multitude of locations.
See id. ¶ 16 (describing this conduct as occurring
“within the scope of [Rothenberg’s] employment,” at “hotel rooms,” at
Rothenberg’s home, and at “other places of note”).
In doing so, while
Rothenberg generally identifies the types of tortious behavior about which he
complains, he fails to provide any factual assertions supporting his claims, and
instead relies entirely on broad, vague, and wholly conclusory statements.
Before addressing each of Rothenberg’s claims, the Court considers
Rothenberg’s reliance on the body camera footage and bills of lading he has filed
in the Court record. As discussed above, Rothenberg filed several hard drives
containing “a massive amount of body camera footage” that, according to him,
show Defendants’ employees engaging in the conduct he alleges.
Wal-Mart Response at 4.
Although ordinarily a court may not consider
materials outside the complaint in ruling on a motion to dismiss, there is an
exception when a document attached to the motion is referenced in the
complaint, central to the plaintiff’s claim, and of undisputed authenticity. See
Day, 400 F.3d at 1276; Horsley v. Feldt, 304 F.3d 1125, 1134–35 (11th Cir.
2002). However, the Court is not convinced that this principle applies here.
The videos are not attached to any of the Motions, nor are they attached to the
inference that [any] [D]efendant [is] liable for the misconduct alleged” that is fatal to his
pleading. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
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Second Amended Complaint. Even if they were, it is unclear that the videos—
as opposed to the events they purportedly depict—are “central” to the claims
Rothenberg alleges in the Second Amended Complaint. Cf. Day, 400 F.3d at
1275–76 (holding that the text of a contract was “central” to a complaint because
it was “a necessary part of [the plaintiff’s] effort to make out a claim”). It is
also unclear whether the videos’ authenticity is uncontested. 10
Regardless, the Court must determine whether Rothenberg states a claim
by analyzing the well-pled allegations of fact contained in his Second Amended
Even if the Court could consider Rothenberg’s supplemental
materials in ruling on the Motions, it would not relieve Rothenberg of his
obligation to plead “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. Indeed, it is incumbent on Rothenberg to
apprise Defendants of the claims he is bringing and the basis of those claims.
See Erickson, 551 U.S. at 93 (noting that a complaint should give a defendant
fair notice of a claim and “the grounds upon which it rests” (internal quotation
marks omitted) (quoting Twombly, 550 U.S. at 555)). His references to the
Counsel for Swift represents that she “watched and listened to at least three dozen
videos” of the hundreds of hours Rothenberg provided, and “has not encountered a single video
where another person could be seen or heard.” Swift Motion at 3 n.2. The Court cannot
determine which portions of the footage Defendants have seen, and therefore cannot
determine which portions, if any, are of uncontested authenticity. Counsel’s failure to review
the entirety of the footage is understandable: Rothenberg has provided far too many videos for
any party (or the Court) to reasonably review, and he provides no indication of which videos
are relevant to any claims he presents. For this same reason, the Court declines to convert
Swift’s Motion “into a Motion for Summary Judgment and consider [the videos] in that
context.” See id.
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“exorbitant amount of video footage” he filed in this case, see Swift Response at
3, are no substitute for a well pled complaint that satisfies his pleading
obligations. Although Rothenberg is proceeding pro se, that “‘does not give a
court license to serve as de facto counsel for [him] or to rewrite [his] otherwise
deficient pleading in order to sustain an action’” based upon what the Court
observes in the videos. Campbell, 760 F.3d at 1168–69 (quoting GJR Invs.,
Inc., 132 F.3d at 1369).
Twice the Court has told Rothenberg that, in a complaint, he must plead
enough facts to state a claim that is plausible on its face. See Order Dismissing
Original Complaint at 10; Order Dismissing Amended Complaint at 12. And
twice the Court has advised him that it will not consider the contents of the
hard drives he has submitted in ruling on a motion to dismiss. See Order
Dismissing Original Complaint at 10–11; Order Dismissing Amended
Complaint at 15–16. Indeed, Rothenberg submitted four of the five hard drives
containing the video footage before the Court dismissed his Original Complaint,
and he filed the fifth before the Court dismissed his Amended Complaint. See
Order Dismissing Original Complaint at 10 (listing the first four docket
entries); Order Dismissing Amended Complaint at 15–16 (declining to consider
the fifth docket entry). Accordingly, Rothenberg has been well aware that
relying on the videos will not suffice and has had ample opportunity to
determine what conduct recorded on the videos supports his claims. Despite
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this, Rothenberg has made no effort to identify any conduct he believes supports
his claims from the recordings and point the Court to it, nor has he attempted
to include allegations of fact describing that conduct in his Second Amended
Complaint. Instead he has stubbornly opted to continue to point to the video
footage. On this record, the Court declines to consider the content of the videos
and will determine the sufficiency of Rothenberg’s claims by reference to
Rothenberg’s allegations in the Second Amended Complaint.
As his first claim against each Defendant, Rothenberg asserts a claim of
defamation based on false statements that he alleges each Defendant’s
employees have “screamed” about him “on the open road, nationwide in the
public eye,” as well as “internally within its organizational structure and at
business invitees on their premises.” See Second Amended Complaint ¶ 19.
Under Florida law, “[d]efamation has the following five elements: (1)
publication; (2) falsity; (3) [the] actor must act . . . at least negligently on a
matter concerning a private person; (4) actual damages; and (5) [the] statement
must be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla.
2008) (citing Restatement (Second) of Torts §§ 558B, 580A–580B (Am. L. Inst.
1977)).11 In their respective Motions, each Defendant argues that Rothenberg’s
Because the case is before the Court based on diversity jurisdiction, see Second
Amended Complaint ¶ 1, the substantive law of the forum state, Florida, applies. See
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pleading of this claim is deficient because his allegations lack sufficient detail
to state a plausible claim for relief. 12 See Swift Motion at 11; Wal-Mart Motion
at 5; Target Motion at 10; Costco Motion at 3.
In response, Rothenberg
attempts to rely on his body camera footage See, e.g., Swift Response at 7–8.
Defendants are correct. In the Second Amended Complaint, Rothenberg
describes statements “that the Plaintiff is a rapist, a murderer, a cop killer,
[and] a serial killer,” among several other things.
See Second Amended
Complaint ¶ 20. He pleads that these statements are false, see id. ¶ 21, and
the Court accepts that they are false for purposes of resolving Defendants’
Motions. See Freeman, 820 F. App’x at 838. But Rothenberg does not present
any factual allegations regarding the circumstances of any particular
statement, such as where or when the statement was made, the person (or
persons) who made the statement, or to whom it was made. 13 He simply states
Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1257 (11th Cir. 2011) (citing Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Rothenberg also states that “a substantial part of
the events” giving rise to his claims occurred in the Middle District of Florida. See Second
Amended Complaint ¶ 2; see also Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341
F.3d 1292, 1301 (11th Cir. 2003) (stating that “Florida utilizes the ‘most significant
relationship’ test to determine which state’s laws appl[y] to tort claims”). As such, the Court
applies Florida law in evaluating the sufficiency of Rothenberg’s claims.
12 In addition, Swift argues that even if Rothenberg had alleged that Swift’s employees
defamed him, his claim against Swift would still fail because he has not plausibly alleged that
Swift’s employees committed the relevant acts within the scope of their employment. See
Swift Motion at 10 (citing Dieas v. Assocs. Loan Co., 99 So. 2d 279, 281 (Fla. 1957)). In
response, Rothenberg contends that he has alleged that the employees were acting within the
scope of their employment because he pleaded that the conduct occurred at “work locations
and on the open road from a semi-truck.” Swift Response at 8. Rothenberg provides no
authority to support the proposition that such vague and general statements are sufficient to
plead that the conduct occurred “within the scope of the tortfeasors’ employment.” Id.
13 In his Second Amended Complaint, Rothenberg added lists of “[i]ndividual
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“intentionally told [them] to as many persons as possible” as part of a course of
conduct that has been ongoing “since 2018.”
¶¶ 19, 21.
Second Amended Complaint
These allegations are simply too conclusory to be entitled to a
presumption of truth. See Iqbal, 556 U.S. at 679. Accordingly, Rothenberg
has not pleaded sufficient factual material, accepted as true, to state a claim for
defamation that is plausible on its face against any of the Defendants in this
action. See Twombly, 550 U.S. at 570. His defamation claims, therefore, are
due to be dismissed.
As his second claim against each Defendant, Rothenberg brings a claim
for assault based on statements and “gestures” made by each Defendant’s
employees. See Second Amended Complaint ¶¶ 23–25. “Florida law defines
assault as ‘an intentional, unlawful offer of corporal injury to another by force,
or exertion of force directed toward another under such circumstances as to
create a reasonable fear of imminent peril.’” Cutino v. Untch, 79 F. Supp. 3d
1305, 1315 (S.D. Fla. 2015) (quoting Sullivan v. Atl. Fed. Sav. & Loan Ass’n,
454 So. 2d 52, 54 (Fla. 4th DCA 1984)). 14 As to these counts, each Defendant
communities where [the] defamatory statements have been spread the most” by each
Defendant. See Second Amended Complaint ¶¶ 20, 42, 64, 86. These general, conclusory
lists, which consist of cities like “Phoenix, AZ,” “Jacksonville, FL,” and “Dallas, TX,” see id.
¶ 20, do not add material factual support for Rothenberg’s claims.
14 The Court notes that although decisions of other district courts are not binding, they
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argues that Rothenberg fails to allege sufficient facts in his Second Amended
Complaint to state a claim for relief that is plausible on its face. See Swift
Motion at 12; Target Motion at 11; Costco Motion at 4; Wal-Mart Motion at 5.
As Wal-Mart explains, without allegations regarding the involved employee or
the circumstances of the threats in question, Rothenberg has not plausibly
alleged that any particular Defendant’s employees assaulted him, much less
that they did so within the scope of their employment and in furtherance of that
See, e.g., Wal-Mart Motion at 5 (arguing that
Rothenberg “has not identified a single employee who participated in this
alleged assault, nor alleged that any such employee was acting in the
course/scope of employment and/or to further Wal-Mart’s interests, nor has he
identified a time, date, or place where this alleged conduct occurred”).
Much like his claims for defamation, Rothenberg presents conclusory
statements that he “has been assaulted,” and asserts that each Defendant is
responsible for the litany of statements and gestures he describes. 15
Second Amended Complaint ¶¶ 23–25. But these conclusory assertions are not
may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310
(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any
other district court’s determination, the decision would have significant persuasive effects”).
15 The Court notes that not all of Rothenberg’s allegations are equally conclusory in
describing the circumstances of the conduct. For example, Rothenberg describes “threats to
run [him] off the road while driving a commercial motor vehicle,” which included “gestures
of and physically jerking of the wheel in” Rothenberg’s direction. See Second Amended
Complaint ¶ 24. But while this may provide more detail than his other examples, Rothenberg
does not present additional facts which identify a particular instance when this conduct
occurred, or which plausibly show that it involved an employee of any Defendant.
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“factual content that allows the [C]ourt to draw the reasonable inference that
[any Defendant] is liable for” assault. See Iqbal, 556 U.S. at 678. Nor do
Rothenberg’s broad, conclusory allegations provide any Defendant with notice
of the factual basis of his claims. Rothenberg provides no facts to explain why
he believes that the employees of any Defendant were involved in the conduct,
nor does he describe any example of this conduct with enough detail for the
Court to draw a reasonable inference that a Defendant could be responsible for
the employees’ conduct, or that Rothenberg was in fear of imminent peril, much
less that such fear was reasonable under the circumstances. 16 Accordingly,
Rothenberg simply has not stated a claim for assault that is plausible on its
See Twombly, 550 U.S. at 570. 17
The assault claims against each
Defendant are due to be dismissed.
As with his claims for defamation, Rothenberg now includes lists of “[s]ites owned
by” each Defendant “where this assault has occurred.” See Second Amended Complaint ¶¶
23, 45, 64, 89. These lists are of no help. They describe, for example, “terminals in
Richmond, VA; Jurupa Valley, CA; Manteno, IL,” and others. See id. (listing “[s]ites owned
by” Swift). These broad, conclusory lists of cities, which lack any factual detail, do nothing to
add plausible support for Rothenberg’s claims.
17 As Wal-Mart and Swift correctly note, in order for an employer to be liable for the
tortious actions of an employee, the action must be committed within the scope of the
employment and to further a purpose or interest of the employer. Wal-Mart Motion at 5;
Swift Motion at 12; see also Iglesia Cristiana La Casa Del Señor, Inc. v. L.M., 783 So. 2d 353,
356–57 (Fla. 3d DCA 2001) (“Under the doctrine of respondeat superior, an employer cannot
be held liable for the tortious or criminal acts of an employee, unless the acts were committed
during the course of the employment and to further a purpose or interest, however excessive
or misguided, of the employer.”). Rothenberg presents no allegations supporting such a
For this additional reason, Rothenberg’s assault claims against these two
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c. Intrusion Upon Seclusion
As his third claim against each Defendant, Rothenberg asserts a claim for
intrusion upon seclusion.
See Second Amended Complaint ¶¶ 26–30.
“Florida law defines intrusion [upon seclusion] as ‘physically or electronically
intruding into one’s private quarters.’” Oppenheim v. I.C. System, Inc., 695
F. Supp. 2d 1303, 1308 (M.D. Fla. 2010) (quoting Allstate Ins. Co. v. Ginsberg,
863 So. 2d 156, 162 (Fla. 2003)). The intrusion “must be highly offensive to a
reasonable person.” Id. at 1309. Each Defendant contends that Rothenberg
has not plausibly alleged that it intruded upon his seclusion because, as with
his other claims, Rothenberg’s allegations simply lack enough factual
material—accepted as true—to plausibly suggest that such an intrusion
occurred. 18 See Swift Motion at 13–14; Costco Motion at 4–5; Wal-Mart Motion
at 6; Target Motion at 12–13.
In his Second Amended Complaint, Rothenberg asserts that Defendants
have “intruded upon [his] seclusion . . . whenever possible.” Second Amended
Complaint ¶ 26. He also asserts that these intrusions are done “to surveil” him
and gather his personal information, and also to keep him “under the assault
In addition, Costco argues that Rothenberg has failed to state a claim for relief
against it because Rothenberg “does not incorporate any common allegations in the “Facts”
section of the [Second Amended] Complaint to any Count involving Costco.” Costco Motion
at 3. However, because the Court must construe pro se complaints liberally, it does not
dismiss Rothenberg’s Second Amended Complaint on this basis. See Freeman, 820 F. App’x
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described” elsewhere in his Second Amended Complaint.
See id. ¶ 27.
However, Rothenberg does not provide any details about any particular
intrusion—not even one—nor does he allege facts to explain why he ascribes
any such intrusion to any Defendant. See id. ¶¶ 26–30. Instead, he merely
states that “[e]mployees for the Defendant have claimed” that they “have access
to cameras in his sleeper cab, his bedroom, and in hotel rooms” Rothenberg
frequents, that they have “physically intruded into these areas,” and that they
are “completely apprised of all of his online activities through the internet
service providers and cellular carrier” he uses. Id. ¶ 29. Rothenberg further
asserts that these actions are for the purpose of gathering private information
and causing him distress, and that the intrusions would be “highly objectionable
and offensive to a reasonable person, especially when conducted nationwide.”
See id. ¶¶ 26–29.
To the extent that Rothenberg is alleging that these employees do not
simply “claim to be,” but are apprised of “all of his online activities through [his]
internet service providers and cellular carrier,” he provides no authority which
suggests that this knowledge of his private activity constitutes intrusion into
his “private quarters” by any Defendant. See Oppenheim, 695 F. Supp. 2d at
1308; see also Spilfogel v. Fox Broad. Co., 433 F. App’x 724, 727 (11th Cir. 2011)
(explaining that to establish a claim of intrusion upon seclusion, “Florida law
explicitly requires an intrusion into a private place and not merely a private
- 22 -
activity” (emphasis added)); Bradley v. City of St. Cloud, No. 6:12-cv-1348-ORL37TBS, 2013 WL 3270403, at *4–5 (M.D. Fla. June 26, 2013) (determining that
the defendants’ access of the plaintiff’s medical records at a hospital without
authorization was not an intrusion into a “home or another private place,” and
thus the plaintiff failed to state a claim for intrusion upon seclusion under
Florida law). Reading the Second Amended Complaint liberally, Rothenberg’s
in . . . [Rothenberg’s] bedroom” without his consent.
See Second Amended
Complaint ¶ 29. But Rothenberg does not provide any facts to ascribe this
access to any Defendant beyond his conclusory assertion that he learned of the
access from unidentified “[e]mployees for the Defendant[s].” See id. He does
not identify or describe any individual who he believes accessed any quarters or
cameras, let alone present facts which plausibly connect such an individual to
any Defendant. In sum, these statements are no more than legal conclusions
which simply lack any factual content to allow “the Court to draw the
Rothenberg’s seclusion or that any such intrusion would have been “highly
offensive” to a reasonable person. See Iqbal, 556 U.S. at 678; Oppenheim, 695
F. Supp. 2d at 1309. These claims are due to be dismissed.
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d. Public Disclosure of Private Facts
As his fourth claim against each Defendant, Rothenberg asserts a claim
for public disclosure of private facts. See Second Amended Complaint ¶¶ 31–
34. Under Florida law, the elements of a claim of public disclosure of private
facts are: 1) the publication, 2) of private facts, 3) that are offensive, and 4) are
not of public concern. Spilfogel, 433 F. App’x at 725 (citing Cape Publ’ns, Inc.
v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989)). Each Defendant argues that
Rothenberg’s allegations in support of this claim are too conclusory to state a
plausible claim for relief because they do not provide any specific details about
the alleged disclosures. See Swift Motion at 3; Target Motion at 13; Costco
Motion at 4–5; Wal-Mart Motion at 3.
Here, too, Defendants are correct. While Rothenberg contends that each
Defendant disclosed several specific categories of his information, including his
“home address, passwords . . . phone number,” and banking data, he does not
provide any well-pled factual allegations to support these conclusory
See Second Amended Complaint ¶ 31.
includes no facts which suggest when or how any Defendant got the
information, when or how any Defendant published the information, who
received it, or how Rothenberg learned that this was occurring.
scope of Rothenberg’s allegations, his conclusory pleading simply does not
contain enough factual content to give any of the Defendants fair notice of his
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claim or state any plausible claim for public disclosure of private facts. Swift
also argues that Rothenberg’s claim for public disclosure of private facts must
fail as a matter of law because none of this information is highly offensive such
that it would damage Rothenberg’s reputation or otherwise cause him
embarrassment. See Swift Motion at 15. While this argument is likely welltaken, because Rothenberg’s allegations in the Second Amended Complaint are
too conclusory to state a claim for relief that is plausible on its face, the Court
does not reach this issue. Thus, these claims too are due to be dismissed.
e. Intentional Infliction of Emotional Distress
As his fifth claim against each Defendant, Rothenberg brings a claim for
intentional infliction of emotional distress (IIED). See id. ¶¶ 35–37. “Under
applicable Florida law, in order to state a cause of action for intentional
infliction of emotional distress the plaintiff must demonstrate: 1) deliberate or
reckless infliction of mental suffering by defendant; 2) by outrageous conduct;
3) which conduct of the defendant must have caused the suffering; and 4) the
suffering must have been severe.” See Golden v. Complete Holdings, Inc., 818
F. Supp. 1495, 1499 (M.D. Fla. 1993).
Each Defendant contends that
Rothenberg has not pleaded sufficient factual allegations to support a plausible
- 25 -
inference that it engaged in such conduct. 19 See Swift Motion at 3; Costco
Motion at 4–5; Target Motion at 14; Wal-Mart Motion at 6.
Rothenberg appears to base his claims for IIED on the acts he ascribes to
each of the Defendants in his other claims.
See, e.g., Second Amended
Complaint ¶ 35 (referring to “the tortious conduct described herein”). He also
asserts that he was “followed inappropriately,” and that each Defendant
“screamed statements of assault and defamation” and threatened to harm third
parties if Rothenberg “d[id] not ‘do whatever they say.’”
Id. ¶ 37.
extent that Rothenberg’s claim for IIED is based on the conduct he describes in
his previous claims against each Defendant, the allegations fail to provide a
plausible factual basis for the claim for the same reasons discussed above. And
in his IIED claims, Rothenberg does not provide additional facts that, if true,
would support an inference that any Defendant is liable for the wrongs he
Instead, Rothenberg supports his claim with a string of legal
conclusions which are not entitled to a presumption of truth. See Iqbal, 556
U.S. at 679. Accordingly, Rothenberg’s claims for IIED fare no better than his
other claims, and as such are due to be dismissed as to each Defendant.
In addition to its contention that Rothenberg has failed to present sufficient factual
allegations to support any of his claims, Swift argues that his IIED claim fails as a matter of
law because “the alleged conduct is not sufficiently outrageous to sustain a claim for IIED
under Florida law.” Swift Motion at 19. But because Rothenberg fails to support his
assertions with factual allegations, the Court need not reach this argument.
- 26 -
As his sixth claim against each Defendant, Rothenberg asserts a claim for
conspiracy. See Second Amended Complaint ¶¶ 38–40. To state a claim for
civil conspiracy pursuant to Florida law, one must allege: “(1) an [agreement]
between two or more parties; (2) to do an unlawful act or do a lawful act by
unlawful means; (3) the doing of some overt act in [furtherance] of the
conspiracy; and (4) damage to [the] plaintiff as a result of the acts done under
the conspiracy.” See, e.g., TracFone Wireless, Inc. v. Pak China Grp. Co. Ltd.,
843 F. Supp. 2d 1284, 1301 (S.D. Fla. 2012); see also Philip Morris USA, Inc. v.
Russo, 175 So. 3d 681, 686 n.9 (Fla. 2015). As with Rothenberg’s other claims,
each Defendant argues that Rothenberg has not alleged sufficient facts to
plausibly support his conspiracy claim.
See Swift Motion at 19–20; Costco
Motion at 4–5; Target Motion at 14–15; Wal-Mart Motion at 7 In addition,
Swift asserts that Florida law does not recognize civil conspiracy as an
“independent tort.” Swift Motion at 19. In response, Rothenberg asserts that
his claim for “Civil Conspiracy only falls short when ignoring all of the evidence”
he filed “to show conspiratorial collusion.” Swift Response at 12.
For the reasons explained above, Rothenberg’s continued reliance on
filings outside the Second Amended Complaint is unavailing: the Court cannot
“‘serve as de facto counsel for [Rothenberg] or to rewrite [his] otherwise deficient
pleading’” based upon what the Court observes in the videos he submitted.
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Campbell, 760 F.3d at 1168–69 (quoting GJR Invs., Inc., 132 F.3d at 1369).
Moreover, a claim for civil conspiracy will not lie unless the plaintiff alleges an
underlying civil wrong, done pursuant to the conspiracy, which results in
damage to the plaintiff. See Marriott Int’l v. Am. Bridge Bahamas, Ltd., 193
So. 3d 902, 909 (Fla. Dist. Ct. App. 2015). And this “independent civil wrong
on which the civil conspiracy is dependent must be alleged in the complaint.”
Id. If the claim for the underlying civil wrong fails, then it cannot serve as the
basis for the conspiracy claim. See Am. United Life Ins. Co. v. Martinez, 480
F.3d 1043, 1067 (11th Cir. 2007) (citation omitted) (applying Florida law); see
also 2002 Irrevocable Trust for Richard C. Hvizdak v. Huntington Nat’l Bank,
No. 2:08-CV-556-FTM-99DNF, 2008 WL 5110778, at *11 (M.D. Fla. Dec. 1,
2008) (having dismissed the fraud claim, the court must “dismiss the civil
conspiracy claim as there is no longer an underlying tort or underlying unlawful
act to form the basis of a conspiracy”).
Here, Rothenberg cannot maintain his claim for conspiracy because he
has not sufficiently pled any underlying civil wrong. See Martinez, 480 F.3d
In his claims for civil conspiracy, Rothenberg fails to allege any
additional facts, and simply presents legal conclusions that each Defendant
“conspired to accomplish an unlawful purpose,” “committed unlawful, overt acts
to further the object o[f] their course of action,” and “conspired internally
nationwide” to subject Rothenberg to tortious conduct. See Second Amended
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Complaint ¶¶ 38–39. These allegations are simply “a formulaic recitation of
the elements of a cause of action,” and as such they simply do not suffice to state
a claim for relief that is plausible on its face. See Twombly, 550 U.S. at 555.
As such, the conspiracy claims are due to be dismissed.
In sum, each of Rothenberg’s claims against each Defendant are due to be
dismissed because each one fails to include “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570. Indeed, the
allegations in Rothenberg’s Second Amended Complaint are best described as
“conclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts,” which are insufficient to state any plausible claim to
relief. Jackson, 372 F.3d at 1262. Such allegations amount to nothing more
than “unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Iqbal,
556 U.S. at 678. In his Second Amended Complaint, Rothenberg neither gives
Defendants fair notice of the claims he brings or their factual basis, nor does he
present sufficient factual matter to allow the Court to conclude that he states
any plausible claim to relief. His Second Amended Complaint is due to be
“supplementary filings” provide “much of the very factual content claimed to be
lacking” in his Second Amended Complaint, Swift Response at 13, further leave
to amend is unwarranted. As an initial matter, a request for affirmative relief,
- 29 -
such as a request for leave to amend a pleading, is not properly made when
simply included in a response to a motion. See Rule 7(b); see also Chabad
Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., Fla., 48 F.4th 1222, 1236 (11th
Cir. 2022) (“[W]here a request for leave to file an amended complaint simply is
imbedded within an opposition memorandum, the issue has not been raised
properly.” (quoting Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277
(11th Cir. 2018))); Rosenberg v. Gould, 554 F.3d 962, 965 (11th Cir. 2009). In
addition to this deficiency, the request in the Swift Response also fails to satisfy
the requirement that “[a] motion for leave to amend should either set forth the
substance of the proposed amendment or attach a copy of the proposed
amendment.” Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); see also
McGinley v. Fla. Dep’t of Highway Safety & Motor Vehicles, 438 F. App’x 754,
757 (11th Cir. 2011) (affirming denial of leave to amend where plaintiff did not
set forth the substance of the proposed amendment); United States ex rel.
Atkins v. McInteer, 470 F.3d 1350, 1361–62 (11th Cir. 2006) (same). More
importantly, Rothenberg has had two opportunities to cure the defects in his
Original Complaint. Despite the Court’s instruction regarding his need to set
forth sufficient factual allegations in his pleading, Rothenberg simply has failed
to do so. Accordingly, the Court will dismiss the Second Amended Complaint
with prejudice. See Lacy v. BP P.L.C., 723 F. App’x 713, 717 (11th Cir. 2018)
(holding that a district court did not abuse its discretion by dismissing a pro se
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complaint without granting leave to amend because the plaintiff “failed to
demonstrate that he would be able to resolve the defects in his amended
complaint” despite “multiple opportunities to do so”).
For the foregoing reasons, Defendants’ Motions are due to be granted and
the case is due to be dismissed. Accordingly, it is
The Motions to Dismiss (Docs. 47, 49, 50, and 51) are GRANTED.
Plaintiff Aaron Rothenberg’s Second Amended Complaint (Doc. 44)
The Clerk of the Court is directed to enter judgment in favor of
Defendants, terminate all pending motions, and close the file.
DONE AND ORDERED in Jacksonville, Florida, on November 14, 2023.
Counsel of Record
Pro Se Party
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